LOS ANGELES – University of Southern California (USC) students and alumnae today filed an amended class action settlement agreement that creates a $215 million fund recognizing all survivors of former student health center gynecologist George Tyndall, while establishing institutional reforms on campus such as new procedures for identification, prevention, and reporting of sexual and racial misconduct.

The filing addresses questions raised by Judge Stephen V. Wilson of the Central District of California, who in an April 18, 2019 order asked the parties for additional information and amendments to the proposed settlement. In considering an earlier version of the settlement, Judge Wilson wrote, “The Court takes no issue with the substantive terms of settlement between Plaintiffs and Defendants, and the Court believes that the proposed settlement, as is, ultimately may be fair and reasonable under the prevailing standards.”

The revised agreement includes additional information on the implementation of institutional reforms as determined by the Equitable Relief Committee, made up jointly of class and USC representatives. This includes:

• Increased scrutiny and monitoring of health center employees, including pre-hiring background checks, credential verification, and annual education and performance reviews.
• Improved health center patient practices, including updated sensitive exam practices and allowing students to select a physician based on gender.
• New methods for collecting information about potential misconduct, including through the solicitation of patient feedback and implementation of plain-language notice for recognizing and reporting sexual harassment and gender-based violence.
• Appointment of an Independent Women’s Health Advocate. This independent (non-USC) individual, to be selected jointly by the parties and approved by the Court, will serve a three-year term. The Advocate will (a) receive complaints of improper sexual or racial conduct reported by any patient, student, and/or personnel at the Student Health Center; (b) confirm that all such complaints are investigated by either the USC’s Office of Professionalism and Ethics and/or the Office of Equity and Diversity and/or Title IX Officer;  and (c) ensure USC compliance with changes required by settlement and to report, as appropriate, any failures of this process to USC’s Senior Vice President, Legal Affairs and Professionalism. If the Advocate believes the requirements and goals of the settlement are not being sufficiently addressed by USC, she can raise those concerns to Class Counsel, the Panel, and ultimately, the Court, for resolution.
• Development of new training programs for USC students and staff designed to prevent sexual misconduct and sexual assault.
• Appointment of an Independent Consultant with expertise in university best practices related to prevention and response to sexual assault and misconduct, who will be put on the USC Task Force responsible for conducting a wide-ranging climate survey of USC students as well as existing USC policies and procedures for the disclosure, reporting, and response to sexual violence on campus, and make recommendations of changes to implement in light of the survey results. The report and recommendations of the Task Force will be released publicly to the USC community. If the Independent Consultant believes the requirements and goals of the settlement are not being sufficiently addressed by USC, she can raise those concerns to Class Counsel, the Panel, and ultimately, the Court, for resolution

These institutional changes are of particular importance to survivors and current students alike. Four USC student leaders submitted a declaration in support of the proposed settlement. "The reforms set out in the Report are important steps toward changing the way things are done at USC, and ensuring that the University invests in real protection for its students that empowers them to feel safe on their own campus. While financial compensation for survivors is important, these kinds of reforms are an essential part of making survivors whole," stated Shany Ebadi '19 (Chief Diversity Officer, USC Undergraduate Student Government), Jessica O'Connor '20 (Vice President of External Affairs, Trojan Advocates for Political Progress), Joy Shin '19 (Executive Director, USC Asian Pacific American Student Assembly) and Katherine Thanos '20.

The additional information and procedural amendments on other aspects of the settlement, as requested by the Court, include:

• The adoption of the court’s suggestion to extend the claims review process to include an OB/GYN and a forensic psychologist on a panel along with the Special Master.
• Further enumeration of the risks of proceeding to trial with individual claims including statute of limitations defenses, such as difficulties within the legal system to properly account for largely psychological injuries, due process limitations that would limit potential awards, and Tyndall’s likely defense that he never departed from a medical standard of care.
• Clarification of the timing and procedure for calculations of pro rata adjustments based on the potential number and size of awards; such information will be made available to class members in the notice.

The class includes all women who were seen for treatment by Tyndall at the USC Student Health Center during the period from August 14, 1989 to June 21, 2016 for (a) for women's health issues, or (b) whose treatment by Tyndall included an examination by him of her breast or genital areas, or (c) whose treatment included the taking of photographs or videotapes of her unclothed or partially clothed body. The tier payment system remains structurally the same for survivors from the initial agreement. The payments for each class member will be determined as follows:

• Tier 1. Every class member will receive an initial, minimum $2,500 payment in addition to being eligible for Tier 2 or Tier 3 payments. Those who can be identified through USC's existing health center records will be automatically mailed a Tier 1 payment check for $2,500 once the settlement is effective. Those class members who could not be identified through USC's records must submit a simple signed Statement of Class Membership Form to receive their $2,500 payment.

But $2,500 is just the minimum. Every class member is also eligible to make a Tier 2 or Tier 3 claim for an award up to $250,000. A three-member claims panel, made up of a Court-appointed Special Master and the Special Master’s selections for an OB/GYN and a forensic psychologist, will review and allocate Tier 2 and Tier 3 claims with the assistance and guidance of a team of experts, including those in gynecology, psychology, psychiatry, PTSD, and the unique needs of sexual trauma survivors. This approach has been successfully employed in other sexual assault settlements.

• Tier 2. Class members have the option to submit a Claim Form describing her experience with Tyndall, the impact to her, and the harm she suffered. Payments are between $7,500 and $20,000, subject to review by the three-member panel and pro rata adjustments.
• Tier 3. Class members can also choose to provide information about her experience and its impact in the form of an interview with the team for the three-member panel, in addition to the written Claim Form. Payments are between $7,500 and $250,000, subject to review by the three-member claims panel and pro rata adjustments.

Steve W. Berman of Hagens Berman Sobol Shapiro LLP, Annika K. Martin of Lieff Cabraser Heimann & Bernstein LLP, and Daniel C. Girard of Girard Sharp LLP led the negotiations as plaintiffs co-lead class counsel.

"This settlement gives every single woman who saw Tyndall a choice in how they want to participate and hold USC accountable, while also forcing the school to change to ensure this doesn't happen again,” plaintiffs co-lead class counsel said in a statement. “We are confident our renewed motion for preliminary approval will answer the Court’s questions, lead to approval of this agreement, and provide these survivors the relief and measure of closure they deserve."

If the settlement receives preliminary approval, a notice will be sent to all class members with information on how to submit claims and the process for opting out or objecting. The notice will also indicate whether they have been pre-identified as class members through USC's records. Claim forms must be post-marked to the claims administrator within 120 days from when the notice is mailed to class members. The settlement will become effective if the court grants final approval and once any appeals are exhausted.

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WHAT THEY ARE SAYING: USC/TYNDALL CLASS ACTION SETTLEMENT AGREEMENT

Meggie Kwait, class representative, attended USC from 2005 to 2009

“Through this settlement, USC is finally acknowledging the women who say they were abused by Tyndall and who have been ignored throughout the past 30 years. As interim president Wanda Austin stated, the university is promising to make impactful changes. In addition to a $215 million award, the settlement our attorneys negotiated requires USC to implement structural changes to prevent and report abuse, in the health center and beyond. Nothing can ever give us back what Tyndall and USC took from us, but for me, it is gratifying to know that future generations of Trojan women will not be shamed into silence.”

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Shannon O’Conner, class representative, attended USC from 1991 to 1995

“The settlement gives survivors a chance to unite for the betterment of an institution we all care about. One of the most difficult parts of my assault was that I thought I was Tyndall’s only victim. Now I know I am not alone; I have thousands of women standing beside me, saying that we will no longer tolerate this terrible behavior. I draw my strength from the courage of the other women who have stood up with me against this sexual predator who stalked the campus of our beloved University for nearly 30 years.”

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Diana Kruzman, current USC student and editor of The Daily Trojan

“This is huge. Other than compensation for the victims, the settlement will require USC to implement reforms, including background checks for health center employees & giving female students the option to see a female doctor.”

Layn R Phillips, former U.S. District Judge, who mediated this settlement as well as the Michigan State sex-abuse cases (doc. 67-4)

“Based on my experience as a litigator, a former U.S. District Judge and a mediator, I believe that the Settlement represents a recovery and outcome that is reasonable and fair for the Settlement Class and all parties involved. I further believe it was in the best interests of the parties that they avoid the burdens and risks associated with taking a case of this size and complexity to trial, and that they agree on the Settlement now before the Court. I strongly support the Court's approval of the Settlement in all respects.”

Elisabeth Treadway, class representative, attended USC from 1997 to 2001

“The settlement holds USC accountable for their failure to protect female students under their care and supervision. The process for receiving compensation is straightforward and gives victims the choice on how much of their story they want to share. While I am ready to speak publicly about my experience, I understand many women are not. Importantly, this settlement acknowledges all of us.”

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Vanessa Carlisle, class member, attended USC from 2011 to 2016

“By offering compensation to all of Tyndall’s former patients, the settlement tacitly assumes that if you saw Tyndall, something unpleasant and potentially traumatizing happened. Survivors will not be grilled in order to receive compensation. They will be believed. If a class member chooses to tell her story, she can move into a different tier of compensation.”

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About Hagens Berman
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