Cunningham v. Cornell University

Opinion

SCHLICHTER BOGARD & DENTON, LLP ATTORNEYS AT LAW ? JEROME J. SCHLICHTER £00 SOUTH FOURTH STREET, Sure 1200 ab jschlichter@uselaws.com ST, LOUIS, MISSOURI 63102 (314) 621-6115 [po FAX (314} 621-5934 wrw.uselaws,com A cubed p LAN

November 7, 2019 4 yet Ve Via Facsimile Taw 36 2 yn OO The Honorable P. Kevin Castel me yo" United States District Court, th po 69 Southern District of New York / p ZH □ fe 500 Pearl Street ae New York, New York 10007 LF. ) 5 Re: Cunningham v. Cornell University, No. 1:16-ev-06525-PKC (8.D.N.Y.) J v

ear Judge Castel: □ | Plaintiffs present this pre-motion letter seeking to strike Defendants’ Memorandum of Law in Support of Defendants’ Motion in Limine to Exclude Plaintiffs’ Expert Wendy Dominguez’s Share Class Opinions (Doc, 360) and the Declaration of Ankur Mandhania in Support of Defendants’ Motion in Limine to Exclude Plaintiffs’ Expert Wendy Dominguez’s Share Class Opinions (Doc. 361) and seal those docket entries from the public record pursuant to Federal Rule of Evidence 408. After the Court’s order on the motion for summary judgment (Doc. 365), the parties engaged in a series of discussions about possible settlement of the remaining claims in the case. The discussions included calls between the undersigned and Nancy Ross. The emails attached as Exhibit 2 to the Mandhania Declaration were an explanation of a settlement demand that Ms. Ross requested. To protect the confidentiality of settlement discussions and encourage settlement, Rule 408 of the Federal Rules of Evidence provides “[e]vidence of the following is not admissible--on behalf of any party--cither to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction . . . conduct or a statement made during compromise negotiations about the claim.” Defendants appear to be using my statements explaining a settlement demand to dispute the amount of damages or impeach Ms. Dominguez’s opinion. This is entirely impermissible and “highly improper.” See Coutard y. Mun. Credit Union, 848 F.3d 102, 114 (2d Cir, 2017)(holding “offers of compromise are not admissible in evidence to ‘disprove the validity or amount of a disputed claim.’”)(emphasis in original)(quoting Fed. R. Evid. 408); Abeyta v. City of New York, 588 F. App'x 24, 26 n.i (2d Cir, 2014)(Plaintiff’s citation to defendants’ prior settlement offer is also unpersuasive and highly improper.”). Exhibit 2 and any references to it should be stricken from the record. Plaintiffs notified Defendants of their highly improper filing within an hour of receiving service and requested that they withdraw the filing. Defendants have refused to do so.

SCHLICHTER BOGARD & DENTON, LLP ATIORNEYS AT LAW Hon. P, Kevin Castel November 7, 2019 Page 2

Given the time sensitive nature of this matter, Plaintiffs request an expedited ruling on the pre- motion letter or expedited briefing schedule: Plaintiffs’ Motion: November 12, 2019 Defendants’ Opposition: November 13, 2019 Plaintiffs’ Reply: November 14, 2019. This letter has been served via facsimile, pursuant to Paragraph I(A)(i) of Your Honor’s Individual Practices, because it “contains matters that a party asserts should be under seal.” All active parties will receive service copies of this letter via e-mail. Thank you for your consideration of this matter. Sincerely,

Jerome J. Schlichter

oN oy SCHLICHTER yo BOGARD & OUP RITP AT DEN l GN Date: 21/07/2019 12:21:21 PM

Cunningham v. Cornell University, No. 16-6525

To: Hon. P. Kevin Castel From: Morgan Smith Organization: Southern District of New Y nization: gal Fax Number: 1--212-805-7949 Fax Number: Phone Number: Phone Number: Email; msmith@uselaws.com

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