More on Harassment of the Alleged Victim Prior to the Disputed 2012 North Baltimore Aquatic Club Incident

Published August 1st, 2013, Uncategorized

This is adapted from a post originally published here on January 2. I took that post down in order to delete language inconsistent with the recent settlement of the Doe v. Muchnick lawsuit. The full text of the consent order is again reproduced at the bottom of this post. The disputed February 2012 incident, which underlay the suit, remains under investigation by USA Swimming.

 

by Irvin Muchnick

The alleged victim’s problems with a clique of bullying North Baltimore Aquatic Club teammates appeared to go back at least a year prior to the disputed February 2012 incident. One swimmer posted on the victim’s Facebook page the comment, “Biggest fagut [sic] EVER!” Others chimed in similarly. The fallout was that Jamie Barone, then lead coach of the Challenge One group, suspended the offending poster.

But that was hardly the extent of the premeditated misery to which the victim was subjected by teammates, week after week. Twice that fall, the family had to replace his gear after his swim bag was stolen. A third time, the bag was stolen but recovered when someone tipped the alleged victim that it had been thrown away on a parking lot. For the first time, the alleged victim, who had been with NBAC for nine years, began finding excuses to skip practices. His parents’ concern escalated, but they couldn’t get him to talk much about what was going on. They stuck it out with NBAC because they felt that swimming had become an indispensable facet of his young-adult identity.

Then, in the days prior to the February 2012 incident, there were other episodes, according to the mother. In one, the alleged victim’s underwear was shoved in his face in the locker room. In another, the same swimmer who had instigated the underwear taunt “licked him in the pool.”

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CONSENT ORDER

Minor Plaintiff, John Doe, through his parents, James and Jane Doe (collectively referred to as “Plaintiff”), and his counsel, Anne T. McKenna and Andrew C. White, filed the above-captioned lawsuit against Defendants, Irvin Muchnick and Concussion, Inc. (“Defendants”). Plaintiff brought this action against Defendants as a result of blog and Internet posts made by Defendants concerning an alleged incident during a North Baltimore Aquatic Club practice that was held at Meadowbrook Swim Club in Baltimore City, Maryland, in February 2012 (hereinafter referred to as “the alleged February 2012 NBAC incident”).

Plaintiff’s Complaint asserts the following claims against Defendants: defamation, invasion of privacy, intentional infliction of emotional distress, constructive fraud, and violation of 47 U.S.C.A. § 231; simultaneously with the filing of the Complaint, Plaintiff also moved for a temporary restraining order and preliminary injunction. On May 13, 2013, Judge Richard Bennett of the U.S. District Court for Maryland heard oral argument on Plaintiff’s Motion for Temporary Restraining Order, and on May 14, 2013, Judge Bennett entered an Order which, by agreement of the parties, has remained in effect until today’s date. Subsequent to May 13, 2013, hearing, Defendants retained counsel, Mark I. Bailen and Laurie A. Babinski, and the law firm of BakerHostetler.

By agreement of the parties and the Court, a hearing date was set on Plaintiff’s Motion for a Preliminary Injunction of June 25, 2013. Prior to that hearing, however, the parties agreed to resolve this matter pursuant to entry of this consent Order and the terms contained herein.

Accordingly, the following IS HEREBY ORDERED, this 15th day of July 2013:

1. This Order and all its terms shall apply to Irvin Muchnick, Tim Joyce and any other individual associated with Concussioninc.net or any individual working on behalf of or at the direction of Irvin Muchnick; and for purposes of this Order, the terms “Defendants” shall encompass all such persons;

2. Defendants shall not publish in any format, whether written, spoken, or posted online, the following:

a) Any and all references to the real name of the minor Plaintiff, John Doe, in any correlation whatsoever with the alleged February 2012 NBAC incident that underlies the allegations in the above-captioned case;

b) Any and all references that discuss the details of any investigation by any Maryland government agencies or Maryland police departments of the alleged February 2012 NBAC incident, though references to the fact that the alleged February 2012 NBAC incident was reported to any Maryland government agencies or Maryland police departments and the disposition thereof are permissible;

c) any and all references to which information or records relating to the Minor Plaintiff John Doe may be in the possession of any Maryland government agencies or Maryland police departments involved in investigating the alleged February 2012 NBAC incident;

d) Any and all references that would identify by real name the minor, John Doe, as Plaintiff in the above-captioned matter;

e) Any discussions of the alleged February 2012 NBAC incident that refer to the matter as a “sexual assault” or otherwise state that:

· Any criminal activity occurred;

· Plaintiff’s conduct or any other minor’s conduct was in any way criminal

· Plaintiff’s conduct was in any way tortious;

3. In no way does this Order restrict or preclude Defendants from publishing any other matters in connection with NBAC, USA Swimming, or other such matters that do not pertain to the alleged February 2012 NBAC incident, or that do pertain to the alleged February 2012 NBAC incident but otherwise comply with the terms of this Consent Order;

4. Within ten (10) days of entry of this Consent Order, Plaintiff shall file a Voluntary Stipulation of Dismissal without Prejudice. This filing shall in no way preclude Plaintiff’s rights to refile this matter or bring an additional cause of action in the event Plaintiff believes that the terms of this Order are being or have been violated;

5. The parties agree that Defendants are permitted to publish the following statements regarding the above-captioned matter:

Plaintiff brought this action against Defendants as a result of blog and Internet posts made by Defendants concerning an alleged incident during North Baltimore Aquatic Club practice that was held at Meadowbrook Swim Club in Baltimore City, Maryland, in February 2012.

Plaintiff sought the issuance of a temporary restraining order, preliminary injunction, and filed a complaint asserting the following claims against Defendants: defamation, invasion of privacy, intentional infliction of emotional distress, constructive fraud, and violation of 47 U.S.C.A. § 231.

On May 13, 2013, Judge Richard Bennett of the U.S. District Court for Maryland heard oral argument on Plaintiff’s Motion for Temporary Restraining Order; with the Court’s permission Defendant Muchnick appeared pro se via teleconference. During the Course of that hearing, Defendant Muchnick argued that the blog posts were speech protected by the First Amendment, but agreed to remove any and all references to the names of minors involved in the alleged February 2012 incident and all references suggesting that he had access to information or records in the possession of Maryland government agencies that were involved in investigating the alleged incident pending hearing on Plaintiff’s Motion for Preliminary Injunction.

On May 14, 2013, Judge Bennett entered an Order wherein he denied in part Plaintiff’s Request for a Temporary Restraining Order but specifically reserved all matters raised in Plaintiff’s Motion for Temporary Restraining Order for the full hearing on the Plaintiff’s Motion for Preliminary Injunction. The Order further ordered the removal of the references described above as Defendant Muchnick had agreed pending the hearing on Plaintiff’s Motion for Preliminary Injunction. Subsequent to May 13, 2013, hearing, Defendants retained counsel, Mark I. Bailen and Laurie A. Babinski, and the law firm of BakerHostetler.

By agreement of the parties and the Court, a June 25, 2013 hearing date was set on Plaintiff’s Motion for a Preliminary Injunction . By agreement of the parties and with the Court’s consent, the preliminary injunction hearing was continued while the parties attempted to reach settlement of plaintiff’s claims. Prior to a preliminary injunction hearing being held, the parties mutually agreed to resolve this matter by entry of a Consent Order.

6. Defendants are permitted to post unsealed public records of the above-captioned proceedings and Orders of this Court, provided they do so in a manner consistent with the terms of this Consent Order. However, Defendants may not post misrepresentative excerpts of the pleadings in this case. If Defendants publish excerpts, such publication should be accompanied by a link to the entire document.

7. Defendants will remove all publications, including Internet posts and social media platforms, and all content that are inconsistent with the terms of this Order.


So ordered this 15th day of July, 2013.

William D. Quarles, Jr.

United States District Judge