ADR and Governance News from Jim Reiman

April 29, 2016 Friends and colleagues

Spring has arrived!!!!  Yahoo!

I trust this finds you well.  This month, as in most months, I’ll focus on three areas:  corporate governance, alternative dispute resolution (“ADR”), and eDocuments and eDiscovery.   Additionally, I’ll include a matter of general interest for my “Interesting Case of the Month.”

In the corporate governance arena, this month’s articles address the performance of controlled companies and the sticky issue of board tenure – how long is too long for a director to serve, and at what point does a long-term director lose his/her independence.

For my ADR practitioner readers, I highlight 3 cases:  the first addressing the scope of confidentiality in mediation, and two which are more of general interest:  the Yukos decision (in which the Yukos US$ 50 Billion arbitration award was over-turned), and the Tom Brady/New England Patriots “deflategate” decision in which the Second Circuit Court of Appeals reversed the District Court and upheld the arbitration decision suspending Brady.

Regarding eDocuments and eDiscovery, I present an article that addresses the interrelationship between the explosive growth in the quantity of data companies are keeping as a consequence of the rapidly shrinking cost of storage, and the issues which this and moving such data into the “cloud” are creating.

Finally, for my “Interesting Case of the Month,” I review a case arising on a New York college campus that crystalizes the issue of reverse discrimination in sexual harassment investigations and procedures, and the impact on men who are falsely accused of sexual misconduct.

This Month’s Articles

Corporate Governance

• Controlled Companies – Do They Out Perform or Under Perform Non-Controlled Companies?This is the report of a study funded by Investor Responsibility Research Center Institute (IRRCi) analyzing the performance of controlled companies (those wherein a single investor or investor group owns 30% or more of a company’s voting stock) to those of non-controlled companies with the goal of determining whether the concentration of risk and capital produces better or worse results.  The study also examines the implications of the data for non-controlling investors in controlled companies.
• Board Tenure:  How Long is Too Long? Two articles are presented – one appearing in the Wall Street Journal and one in the National Association of Directors’ Directorship.  Both address the increasingly discussed issue of board tenure – how long is too long?  At what point does a long standing independent director lose his/her independence?

Alternative Dispute Resolution

• Mediation Privilege:  Grubaugh v. Blomo County Of Maricopa Abc Grubaugh addresses the limits of mediation confidentiality, and highlights the split among jurisdictions that allow exceptions to the privilege with respect to legal malpractice cases, and those that don’t.  It also distinguishes between mediation confidentiality and privilege, and attorney/client confidentiality and privilege.
• Arbitration Jurisdiction:  The Russian Federation v Yukos Universal Limited Yukos, the US$ 50 Billion arbitral award entered in 2014 against the Russian Federation, was over-turned by the Dutch court last week.  A link to the English language version of the decision is provided, along with a very brief description of the reason the Dutch court found for the Russian Federation and links to excellent articles discussing the arbitral award and the Dutch Court’s decision.
• Vacatur of Arbitral Awards:  National Football League v Tom Brady Last week proved a big week for arbitral decisions.  In addition to the Yukosdecision, the Second Circuit Court of Appeals (New York) reversed the lower court’s ruling vacating the arbitration decision suspending Tom Brady, and reinstated Brady’s suspension.  The case is presented not to entertain American football fans, but because of what the Second Circuit says about arbitration and when arbitration awards may be vacated.  That said, I do permit my personal bias against the New England Patriots to show and highlight some of the factual findings of the decision.

eDocuments

• 3 Reasons Your E-Discovery Solution is Not Ready for the 21st Century Rather than presenting a case addressing an e-discovery issue, this month I present an article that raises issues and concerns regarding the growing quantity of data that companies are keeping, and the state of the technology to retrieve that data and respond to discovery requests.

Interesting Case of the Month

• Columbia Mattress Protest:  Nungesser v. Columbia University This case raises the issue of reverse discrimination, and the impact on males falsely accused of sexual misconduct.  The court, striking the plaintiff’s complaint, held:  “[E]ven if, as [plaintiff] asserts, [the female defendant] made a false accusation of rape as revenge for rejection, this cannot be classed as ‘gender-based’ harassment since she was targeting plaintiff as an individual, not due to his maleness.” As one newspaper columnist [interestingly, a woman] commented:  “By the same reasoning, sexual assault or sexual harassment should not be seen as “gender-based” offenses since they are directed at specific individuals.  If, as feminists claim, female victims of sexual violence are assaulted because they are women, one can surely argue that falsely accused men are accused because they are male — particularly when the rhetoric around campus sexual assault almost invariably singles out men as the perpetrators.”

I hope you find one or more of the below articles of interest and worthy of your inbox’s space.

Warm regards,

Jim Reiman

Articles / Corporate Governance

Controlled Companies in the S&P 1500:  A Follow-up Review of Performance & Risk

This is a report funded by the Investor Responsibility Research Center Institute (IRRCi)conducted by Institutional Shareholder Services Inc. (ISS).  As regular readers of this Newsletter know, I’m a big fan of IRRCi and (full disclosure) its executive director is a friend.   IRRCi conceives and either conducts itself or funds others to study and answer questions that thoughtful investors and governance wonks are asking.  In this case, IRRCi asks:  how do controlled companies (defined by the study as companies wherein “any person or group own[s] 30 percent or more of a company’s voting power”) perform compared to non-controlled companies?

The question is relevant in part because those who support controlled companies and promote multi-tier stock ownership and other mechanisms to create or maintain “control” argue that control of a firm’s voting power enables management teams to minimize the impact of short-term market pressure, so as to focus on long-term business prospects. They promise higher returns over time in exchange for public shareholders’ loss of control.”

Good arguments.  So, does actual performance support the rhetoric?  Answer:  No.

As summarized in the Press Release announcing the Report:  “Controlled companies generally underperformed non-controlled firms over all periods reviewed in terms of total shareholder returns, revenue growth, and return on equity, according to a new study. The study also finds that average chief executive (CEO) pay is significantly higher at controlled companies with multi-class stock structures:  three times higher than that at single-class stock controlled firms and more than 40 percent higher than average CEO pay at non-controlled firms. In addition, director tenure typically runs longer, board refreshment is generally slower, and boardrooms are less diverse at controlled companies.”  However, “controlled companies outperformed non-controlled firms with respect to return on assets.  Results for returns on invested capital were mixed: controlled companies outperformed marginally (by less than a percentage point) for most time periods, but underperformed over the 10-year period.”

The reason I like IRRCi studies is that they go beyond the headline numbers and examine the implications of their data.  In the case of this study, they ask what are the consequences for non-controlling investors.  The Report’s Conclusion is a good summary:

“The findings of this study are consequential for both investors and board members at controlled firms. The findings show that control matters. This study also shows that not all controlled firms are created equal. At least in the United States, the control mechanism matters. Controlled companies featuring multiple classes of stock generally underperformed on a broad swath of financial metrics over the long term, are perceived as having more financial risk, and offer fewer rights to unaffiliated shareholders than dispersedly owned firms. By contrast, firms in which the controlling party’s voting power and economic power are aligned outperform other controlled companies in some respects while offering unaffiliated shareholders comparatively more rights. While these are directional conclusions and there are exceptions, these findings challenge claims by advocates of controlled firms that such structures ultimately benefit all shareholders. While insiders may favor the combination of public market liquidity with private market autonomy, it does not appear that external shareholders necessarily benefit from this tradeoff.”  

  The full report:  Controlled Companies in the Standard & Poor’s 1500; A Follow-up Review of Performance & Risk

See a webinar relating the Report’s findings:  

The Report’s Press Release and Summary

Board Tenure

The question of board tenure – how long is too long? – is receiving increasing attention by large shareholders, proxy advisory firms, and directors.  The answers vary, and opinions seem strong on all points along the spectrum of answers.  Two articles are presented below which address this issue:  one appearing in the Wall Street Journal (WSJ) and another in the National Association of Corporate Directors’ (NACD) Directorship magazine.

The WSJ article sets the landscape:  “At 24% of the biggest U.S. companies, a majority of the board has been in place for at least 10 years, a Wall Street Journal analysis found. It is a marked changed from 2005, when long-term directors made up a board majority at 11% of large companies.”

The benefits of long term tenure:  deep knowledge of the company’s culture and its operational (and management’s) strengths and weaknesses, a comprehensive understanding of the company’s markets and competitive position, and often over-looked – institutional memory.  The concerns:  “longtime board members may grow too close to the companies and management teams they are supposed to oversee, and lack the critical eye and fresh ideas that newer directors likely bring.”

Stephen Haas, writing in a NACD article, notes:

No overarching law or regulation currently limits the length of board service in the United States. In fact, few United States public companies address board tenure directly in their bylaws. According to SpencerStuart, approximately 3 percent of company boards in the S&P 500 have specified term limits for directors. Only 17 companies in the S&P 500 set term limits for their directors in 2012, with no company adopting a term of less than 10 years. That same year, board turnover on the S&P 500 reached a 10-year low, reflecting the trend toward directors remaining in their positions. 

Mandatory retirement ages are more common. SpencerStuart reports that 72 percent of companies in the S&P 500 have mandatory retirement ages, which reflects a 6 percent increase since 2003. Of those, the mandatory age exceeds 72 in 88 percent of corporate boards. Over the last 10 years, the percentage of boards with mandatory retirement ages of 75 or older has increased from 3 percent to 24 percent, while the percentage of boards with a mandatory retirement at age 70 decreased from 51 percent to 11 percent. Moreover, some U.S. public companies allow boards to waive the mandatory retirement age for directors, which is typically between age 72 and 75, according to David A. Katz and Laura A. McIntosh, authors of Renewed Focus on Corporate Director Tenure.

As a result of this trend to long-term tenure, proxy advisory firms and other investor governance groups are looking at board tenure when evaluating boards.  Per Haas:

Institutional Shareholder Services has been visible in highlighting potential issues with corporate director tenure, with its new Governance QuickScore 2.0 program. The product, which uses specific governance factors and technical specifications to rate company governance, takes director tenure into account. According to ISS, “[a] tenure of more than nine years is considered to potentially compromise a director’s independence.” ISS has not disclosed the weighting that each metric will actually have, so it is unknown how much impact long-tenured directors will have on a company’s QuickScore rating.

ISS has yet to alter its voting policy outside of QuickScore such that tenure can lead to a determination that a director is not independent. ISS does urge shareholders to vote against proposals to limit tenure by mandatory retirement ages or term limits, but it suggests shareholders scrutinize the average tenure of all directors if their tenure exceeds 15 years in order to promote independence and alternative perspectives. 

State Street Global Advisors (SSGA) revised its view on board tenure in 2014 to reflect its support for board refreshment and planning for director succession. According to SSGA’s Head of Corporate Governance Rakhi Kumar, the new policy is “designed to identify companies with a preponderance of long-tenured directors, which may indicate a lack of refreshment of skills and perspectives . . . . [L]ong tenure may also diminish a director’s independence.” Though SSGA does not consider long-tenured directors to be entirely ineffective, SSGA discourages their presence on committees where “independence is considered paramount,” including the audit, compensation, and nominating/governance committees.

I try not to editorialize in this Newsletter and strive not to voice my personal opinion, but in this case I am compelled to add my thoughts.  There is a corollary question to this issue that I rarely hear raised – how long does it take for a new director to learn the company and industry so that s/he may contribute to the full extent of his/her capability?

There is a drive within governance for diversity – not just of demographic categories (gender, race, country of origin), but diversity of experience.   The result is that boards are being populated with directors from outside the industry of the company’s core business.  Thus the question:  how long does it take for a new director from a different industry background to learn the company and industry so as to fully contribute?

Michele Hooper, President and Chair of the Chicago Chapter of the NACD, asked this question at a “round-table” dinner of directors that I recently attended.  The answers given were 2 – 3 years generally, and 5 – 6 years for companies with a complex structure operating in a complex industry. From this perspective, a director with 10 years’ tenure doesn’t seem so long.

  Theo Francis and Joann S. Lublin, Wall Street Journal, March 23, 2016, Big Investors Question Corporate Board Tenures

  Stephen Haas, NACD Directorship, March 2016,  A Closer Look at the Emerging Debate Over Board Tenure 

Articles / Alternative Dispute Resolution

Mediation Privilege:  Grubaugh V. Blomo County Of Maricopa Abc

Grubaugh addresses the limits of mediation confidentiality, and highlights the split among jurisdictions that allow exceptions to the privilege with respect to legal malpractice cases and those that don’t.

In Grubaugh, the plaintiff claimed that her former attorneys provided “substandard legal advice. . .  during a family court mediation,” and claimed damages as a result of that poor advice.  Her prior attorneys (the defendants) argued that the entire mediation process is privileged under Arizona law, hence communications allegedly made during and after such process related to the mediation cannot be used to support a legal malpractice claim.  As a result, they argue, Grubaugh’s complaint should be dismissed.

Before addressing the Arizona Appellate Court’s opinion, it is important to be clear as to what was at issue.  There was no claim that a confidentiality agreement (often an express agreement signed by all participants to a mediation) was breached or should be set aside.  Rather, at issue was the applicability and scope of Arizona’s mediation privilege statute, which provides:

“The mediation process is confidential.  Communications made, materials created for or used and acts occurring during a mediation are confidential and may not be discovered or admitted into evidence unless one of [four] exceptions [are] met”

The plaintiff did not assert that one of the applicable exceptions applied.  Instead, she argued that by filing the legal malpractice action against her former counsel she waived the privilege, hence advice allegedly provided during and after the mediation could be used to support her law suit.  The trial court agreed and permitted the action to proceed.  The defendant lawyers appealed, and the Arizona appellate court reversed.

Explaining its decision, the Court differentiated mediation privilege in Arizona from attorney-client privilege.

The mediation process privilege, however, differs from the attorney-client privilege, which may be impliedly waived. [citation omitted].  The attorney-client privilege originated at common law and was subsequently codified by the Arizona legislature. At common law, the privilege was impliedly waived when a litigant’s “course of conduct [was] inconsistent with the observance of the privilege.” [citation omitted]

In contrast to the attorney-client privilege, Arizona’s mediation process privilege has no common law origin. It was created entirely by the legislature. Therefore, this court must rely upon the language of the statute to determine its meaning. Unlike waiver of the attorney-client privilege under the statute and common law, the statutory waiver provisions of the mediation process privilege are specific and exclusive [citation omitted].

Finding no applicable waiver under the statute, the Arizona Appellate Court held that the mediation privilege applied and therefore the alleged “substandard” advice could not be used to support plaintiff’s complaint.  Accordingly, the case was dismissed.

I present the case for two reasons:  First, it sets out the important lesson that mediation privilege is a creature of statute and not common law.  Second, as highlighted in an American Bar Association article describing the case, there is a split among the states regarding the scope of mediation confidentiality and when/how mediation disclosures may be revealed.  Bottom line:  know the statutes governing the mediations you conduct.

  The full opinion, Grubaugh V. Blomo County Of Maricopa Abc

Pamela Sakowicz Menaker, Litigation News, March 16, 2016 “Mediation Communications Inadmissible in Attorney Malpractice Suit”

Yukos US$ 50 Billion Award Reversed:  The Russian Federation v Yukos Universal Limited

For those of you who are not familiar with the case, the Yukos litigation is one of the biggest disputes in the arbitration world.  While the case is too complex and its history too long to describe properly in this Newsletter, suffice it to say that it comprised a multi-year hearing, a multi-million-dollar arbitration fee, and involved several of the world’s leading arbitration practitioners.  The final result of the arbitration was a finding that the arbitration tribunal had jurisdiction to arbitrate the dispute (an issue vigorously contested), and a finding against the Russian Federation and award in favor of Yukos in the amount of US$ 50 Billion.  Yes, that’s billion with a “B.”

Many arbitration practitioners were deeply troubled by reports of events that occurred during the proceedings and many of the rulings made during the arbitration.  Therefore, Albert Jan van den Berg (lead counsel for Russia) not surprisingly stated upon learning of the Dutch Court’s ruling:

“If the Yukos awards had been held valid and enforceable, the integrity and credibility of investment arbitration would have been seriously jeopardised,”

Also not surprising, Tim Osborne, director of GML (the company that indirectly owns the majority of Yukos’s shares), stated:

“We fully stand by the unanimous awards received in 2014 on the politically motivated destruction of Yukos. We will appeal the surprise decision by The Hague court and have full faith that the rule of law and justice will ultimately prevail.”

Emmanuel Gaillard, head of international arbitration at Shearman & Sterling and lead counsel for the shareholders in the arbitration, stated:

“The arbitral tribunal was composed of arbitrators of the highest calibre who were unanimous in their reasoning. I am confident that today’s decision will be reversed on appeal.”

The saga will continue.

Full text of the Hague District Court’s Opinion:

Alison Ross, Global Arbitration Review, “US$50 Billion Yukos awards set aside in The Hague,” April 20, 206

Arbitration Vacatur:  NFL v Tom Brady

American football fans are all familiar with the story:  prior to the start of the AFC championship game in January 2015, the game balls to be used by New England Patriots’ quarterback Tom Brady mysteriously deflated to an air-pressure more to the liking of Brady; those of its opponent suffered no air pressure loss.  Charges of cheating were made, and the NFL investigated.  Following an investigation, the NFL suspended Brady.  He requested arbitration, and the NFL commissioner, Roger Goodell, served as arbitrator and conducted a hearing.  Following the hearing, Goodell confirmed the suspension.

Brady challenged the arbitration award in the Federal District Court of New York, and the District Court vacated the award “reasoning that Brady lacked notice that his conduct was prohibited and punishable by suspension, and that the manner in which the proceedings were conducted deprived him of fundamental fairness.”  Last week, the Second Circuit Court of Appeals reversed, reinstating the suspension.

As much as I would enjoy ranting on the ethics of the New England Patriots team, I present the decision not because it vindicates my personal belief that Brady should be punished, but because of what the Second Circuit says about arbitration and when arbitration awards may be vacated.

The basic principle driving both our analysis and our conclusion is well established:  a federal court’s review of labor arbitration awards is narrowly circumscribed and highly deferential – indeed, among the most deferential in the law.  Our role is not to determine for ourselves whether Brady participated in a scheme to deflate footballs or whether the suspension imposed by the Commissioner should have been for three games or five games or none at all.  Nor is it our role to second-guess the arbitrator’s procedural rulings.  Our obligation is limited to determining whether the arbitration proceedings and award meet the minimum legal standards established by the Labor Management Relations Act [citation omitted]  We must simply ensure that the arbitrator was “even arguably construing or applying the contract and acting within the scope of his authority” and did not “ignore the plain language of the contract.”  [citation omitted]   These standards do not require perfection in arbitration awards.  Rather, they dictate that even if an arbitrator makes mistakes of fact or law, we may not disturb an award so long as he acted within the bounds of this bargained-for authority.

OK – I can’t resist.  I have to rant just a bit and relate the following facts from the opinion:

In addition to videotape evidence and witness interviews, the investigation team examined text messages exchanged between [Jim] McNally and [John] Jastremski [“two Patriots equipment officials”] in the months leading up to the AFC Championship Game.  In the messages, the two discussed Brady’s stated preference for less-inflated footballs.  McNally also referred to himself as “the deflator” and quipped that he was “not going to ESPN. . .yet,” and Jastremski agreed to provide McNally with a “needle” in exchange for “cash,” “newkicks,” and memorabilia autographed by Brady.  [citation omitted]

  **********

Significantly, the Report also found that, after more than six months of not communicating by phone or message, Brady and Jastremski spoke on the phone for approximately 25 minutes on January 19, the day the investigation was announced.  This unusual pattern of communication continued over the next two days.  Brady had also taken the “unprecedented step” on January 19 of inviting Jastremski to the quarterback room, and had sent Jastremski several text messages that day that were apparently designed to calm him.  The Report added that the investigation had been impaired by Brady’s refusal “to make available any documents or electronic information (including text messages and emails), notwithstanding an offer by the investigators to allow Brady’s counsel to screen the production.

**********

Shortly before the hearing, it was revealed that on March 6 – the same day that he was to be interviewed by the Wells investigative team – Brady had “instructed his assistant to destroy the cellphone that he had been using since early November 2014, a period that included the AFC Championship Game and the initial weeks of the subsequent investigation,” despite knowing that the investigators had requested information from the phone several weeks before. [citation omitted]  Although Brady testified that he was following his ordinary practice of disposing of old cell phones in order to protect his personal privacy, he had nonetheless retained phones that he had used before and after the relevant time frame.

Full text of the opinion in National Football League v Tom Brady

Articles / e-Documents

3 Reasons Your E-Discovery Solution is Not Ready for the 21st Century

This month, rather than present a case resolving an e-Discovery issue, I present an article I ran across which discusses the relationship (and challenges) of the “cloud” as it relates to e-Discovery.  While its principle theme is the explosive growth in the quantity of data as a result of the rapidly decreasing cost of storage, I started thinking about backups, control, and the myriad other issues related to discovery requests and retrieval capabilities (and costs) when companies use third party “cloud” providers for their data storage.  I commend the article to you, in part for its content and the “message” it delivers, and in part to get readers thinking about the issues.

Brad Harris, David Kilgore, Legal Tech News, March 4, 2016, 3 Reasons Your E-Discovery Solution is Not Ready for the 21st Century

Articles / Interesting Case of the Month

Reverse Discrimination and the Unfair Treatment Of Men In The Handling Of Sexual-Assault / The  Columbia Mattress Protest:  Nungesser v. Columbia University 

This case initially struck me as ridiculous and curious at the same time, hence a good piece for this section of the Newsletter.  As I learned more about the facts and the issue presented, however, and thought more and more about it, I’ve been struck by the legitimacy of some of the arguments regardless of the technical merits of the case.

The facts:  Emma Sulkowicz and Paul Nungesser were both undergraduate students at Columbia University (full disclosure:  I’m an alum).  Sulkowicz accused Nungesser of raping her.  The University investigated and found Nungesser “not responsible.”

Per Nungesser’s complaint:

Columbia proceeded with an investigation that spanned seven months and culminated with a two-hour hearing, . . . at which Emma and Paul both testified.  At the conclusion of the Hearing, Columbia discredited Emma’s entire story, finding Paul “not responsible” for the alleged “non-consensual sexual intercourse.”

Per a New York Post article describing the events:  “[Columbia] completely exonerated Nungesser on four different charges, despite a process stacked against the accused.”

When Columbia refused to take action, Sulkowicz filed charges with the NY Police.  Both the Police and the New York County District Attorney’s Office investigated.  They, like Columbia, determined not to pursue the matter, effectively exonerating Nungesser.

Despite the findings of all investigators that Nungesser was “not responsible” for the acts claimed by Sulkowicz, she (as the Court summarized Nungesser’s complaint) strove to “brand [Nungesser] as a serial rapist.”  Sulkowicz provided Nungesser’s name to the New York Post and perhaps other newspapers as an unpunished rapist, and the Columbia school newspaper identified Nungesser in an article it published as an unpunished rapist.

When these efforts to have Nungesser expelled failed, Sulkowicz, a visual arts student, commenced a “visual arts protest” in which she carried her dorm room mattress with her wherever she went “in protest” that her alleged rapist was still attending Columbia.  The protest became known as the “Mattress Project” and continued until Sulkowicz’s graduation (she even carried it onto the stage when she received her graduation diploma).

Not only did Columbia do nothing to stop the Mattress Project and harassment of Nungesser, it awarded Sulkowicz academic credit for the “performance art.”  Sulkowicz’s art professor, quoted in the College newspaper, stated:

“carrying around your university bed — which was also the site of your rape — is an amazingly significant and poignant and powerful symbol.”

For the purposes of the discussion presented in this Newsletter, please assume that Nungesser was falsely accused.  Please also know that I have no thoughts or opinion, let alone information, regarding the veracity of Sulkowicz’s charges and make no judgment regarding such.

Nungesser, after graduating, filed suit in Federal District Court in New York alleging that “Columbia, by permitting Sulkowicz’s activism and awarding her academic credit for the Mattress Project, violated his rights under Title IX of the Education ‘Amendments of 1972.’”  As Nungesser alleges in his lawsuit,  “Columbia University, as an institution, was not only silent, but actively and knowingly supported attacks on Paul Nungesser, after having determined his innocence, legitimizing a fiction..’”

This past week the Court dismissed Nungesser’s complaint finding that it failed to state a proper claim under Title IX.  While Nungesser has the right to (and according to his attorneys will) file an amended complaint or appeal, consider the Court’s reasoning.  As reported by the New York Post:

[The judge] reasons that even if, as Nungesser asserts, Sulkowicz made a false accusation of rape as revenge for rejection, this cannot be classed as “gender-based” harassment since she was targeting Nungesser as an individual, not due to his maleness.

Yet by the same reasoning, sexual assault or sexual harassment should not be seen as “gender-based” offenses since they are directed at specific individuals.

If, as feminists claim, female victims of sexual violence are assaulted because they are women, one can surely argue that falsely accused men are accused because they are male — particularly when the rhetoric around campus sexual assault almost invariably singles out men as the perpetrators

Per the New York Post,

Nungesser is one of over 100 men who have sued colleges and universities for what they allege is unfair treatment in the handling of sexual-assault accusations. Many of these lawsuits have been dismissed, others settled.

Nungesser’s case is more of an uphill battle than most, since he wasn’t expelled or even suspended, but cleared of the charges. Even so, he says his academic experience was irreparably damaged as Sulkowicz’s activism — particularly her mattress protest, approved as her senior “art project” by a Columbia professor also named in the suit — publicly branded him a rapist.

the full opinion in the case Nungesser v Columbia University