Another school year is about to start and, frankly, I am glad. I miss the undergraduates. They seem to hang around a lot more when school is in session and it is so much easier to communicate to our young brothers. And, that is a good thing because it is also easier to dispel any misperceptions and misconstrued comments that are usually taken and made out of context to make a point.
One such instance arose in April of this year (2004) when the Superior Court of the District of Columbia issued an order in Kappa Alpha Psi v. Robert Jenkins, et al., granting the defendants' motion for summary judgment and dismissed the Fraternity's case. The incorrect scuttle-butt that resulted from the court's ruling indicated the Fraternity suffered a resounding defeat and that offenders are now free to conduct themselves in any manner they wish, without fear of recourse. That is not what the court said.
You might remember from a previous General Counsel's Report that the Fraternity sued for breach of contract, slander, and infringement of the fraternal name and identity. The suit sought $20 million in compensatory damages, $11 million in punitive damages, attorneys fees, costs of litigation, and injunctive relief to restrain the defendants from any illegal use of the fraternity name, rituals, paraphernalia, or gestures.
The activity in question, a "coming out show," occurred on or about April 28, 2001 at Emery Park in Washington, D.C. and was part of another non-sanctioned event called "Kappa Cool Out." The Province Polemarch had specifically banned the event before it occurred and published the prohibition in the local campus newspaper.
In ruling for the defendants, it is important to point out that the court did not say the Fraternity could not sue on the theories in the case. The court merely held that the Fraternity did not present enough evidence to substantiate the claims made against the defendants. The court impliedly acknowledged the validity of all the claims on which the Fraternity sued but found insufficient evidence to allow the case to go to trial.
On the breach of contract claim, the court found that merely citing the ritualistic oath was not enough to establish a binding contract without written evidence or "paperwork memorializing the oath the defendant members allegedly took." The court also ruled that the Fraternity did not show that it suffered damages as a result of the breach. But, the court also said the Fraternity did not have to prove damages with mathematical certainty but only had to "provide a reasonable basis on which to estimate damages."
On the slander claim, the court did not say the claim was not good, it only said that "Kappa ...failed to state with specificity the actual words defendants spoke." Again, the problem was not with the claim itself but with the evidence, or lack thereof, needed to support the claim.
Finally, the court addressed the claim of Infringement of the Fraternity name. Once again, the court recognized the validity of the claim, but held the Fraternity had not "shown that it has patented, copyrighted, or trademarked any of the...gestures or symbols used by defendants." It was merely a lack of evidence needed to prove up the claim.
So offenders should not take heart that these suits by the Fraternity will now go away. You can bet your bottom dollar that this is still a viable tool at the Fraternity's disposal and the next case will have sufficient presentation of evidence to survive this type of court challenge. The new sheriff is still in town and you better believe he is reloading his Uzi for another attack.
Playboy Does Not Play
I am sure you have heard that Playboy has sued the Fraternity for trademark infringement, alleging members are illegally displaying the Playboy bunny symbol on clothing and advertisements. This is serious business and this suit could result in the Fraternity paying millions of dollars in judgment or settlement. But, keep in mind that individual members and chapters are also at risk if you are caught displaying the symbol without authorization. This type of verdict is identical to personal injury verdicts that result from hazing. They will stay with you until satisfied and are, generally, not dischargeable in bankruptcy. You will also be subject to fraternity discipline. You are warned.
Quick Notes on Hazing
A jury awarded the estate of a pledge 12.6 million dollars against Kappa Sigma. The pledge drowned in seven feet of water during a pledge activity. The Fraternity's insurance carrier denied coverage on the basis that the loss occurred from illegal pledge activity.
Four members of Alpha Phi Alpha Fraternity were expelled from Southern Methodist University in Dallas Texas after forcing candidates to drink hot sauce and excessive amounts of water during an illegal pledge activity. One candidate suffered serious injury after inhaling the hot sauce and vomit into his lungs. He was in the hospital for a week. The four expelled individuals and four others were indicted on felony assault charges and they face up to 20 years in prison for the offense.
Again, YOU ARE WARNED.
Welcome back young brothers. Enjoy your school year and please, BE SMART.
Until next time, I am
Yours in the Bond,
Reuben A. Shelton (Past Province Polemarch)
General Counsel
Middle Western Province
GeneralCounsel@KAPsiMWP.com