Wednesday, October 30, 2019

An egregious case of bullying and unethical behavior: TAMU anthropologist Sharon Gursky [Updated Nov 3]

Sharon Gursky
Last month, I reported on a litany of allegations of abuse by some faculty members in the Texas AM anthropology department. They included sexual harassment, bullying, and various kinds of unethical behavior including the stealing of student work and ideas and forcing students to participate in experiments in possible violation of international law. The accused faculty included the current chair of the department.

The response from some department leaders was to tell students and fellow faculty that I had no real sources other than a few disgruntled students who had left the department. And a dean (Pamela Matthews, College of Liberal Arts) reportedly told a meeting of the faculty that they had nothing to worry about because the allegations had been published by just one reporter.

But the current grad students themselves set their faculty straight in a letter urging them to take the allegations seriously. Nevertheless, one accused anthropologist, Sharon Gursky, hired an attorney who threatened to sue me if I did not delete the allegations against her. Of course I have not, for the simple reason that the accusations of bullying and unethical behavior against Gursky are well substantiated via multiple witnesses over a significant period of time.

In this post, I will elaborate on those accusations to make the case clear. As always, I do not report rumors, but information based on actual witnesses to the behavior I am describing. The behavior represents a pattern of bullying, retaliation, pettiness, self-dealing, plagiarism, theft of intellectual property, and other violations of student rights. To quote one faculty member, Gursky has engaged in a "reign of terror" against her own and other students. To make matters worse, much of the anthropology faculty has long been aware of Gursky's misconduct; so has the university administration.

Belittling, bullying and threatening students

The abuses testified to by students include belittling their field skills and their writing; retaliating against students who advise prospective students not to come to TAMU; forcing students to take her classes so she can have a full head count; violating privacy by telling a group of students that she intended to fail one of their colleagues; forcing a student to drop a class taught by another faculty member who had advocated on behalf of abused students; belittling a student who won an award by saying it was not deserved; and intimidating students who complained about the behavior by calling them into her office for interrogations.

To protect the brave students who have shared their stories, I have given just a few examples above out of many, and I have been circumspect with the details. But there are so many episodes along these lines that Gursky is a clear and present danger to the mental health of those junior colleagues the university has entrusted to her care, in a very negligent fashion given TAMU's knowledge of the abuses.

Egregious mocking of a student with a disability

One of the most widely discussed abuses by Gursky involved a student with an eating disorder, a situation described to me by several witnesses. As one put it: "Over the years [Gursky] often made disparaging comments about this student regarding her eating habits (she was aware of the disorder.) She noted that she wouldn't invite her to Thanksgiving because the girl wouldn't eat anything, made a comment following a study on caloric restriction on primates that this student 'would live forever' [see image below], and a number of other things. On Valentine's Day, 2017, she gave all the students in her lab boxes of chocolate...[but] she emptied the box and replaced it with celery sticks" for the student with the eating disorder.

Students reported this abuse to TAMU's human relations department as well as to the then department chair, Cynthia Werner, but nothing was done. Again, this abuse was observed by multiple witnesses.

This image illustrates Gursky's direct naming of the student in reference to the eating disorder. Her name is blacked out here.

Unethical behavior: Misappropriating a student's thesis project, plagiarizing a student's thesis.

In the letter to me threatening a defamation suit if I do not take the allegations down, Gursky's lawyer refers in some detail, using six points, to an allegation that she misappropriated the thesis project of one of her students for her own research. That ethical breach eventually led to the student leaving the TAMU anthropology department, despite entreaties from other faculty who knew he had been wronged and almost begged him to stay.

Let's call this student "Thomas," not his real name, to protect his privacy. Thomas filed an ethics violation report with the university about the stealing, describing it in detail. He had come to TAMU to work with Gursky, and they had agreed ahead of time on a thesis project that involved primate ultrasonic vocalizations. Thomas had many discussions with Gursky about this, along with conversations with other researchers who were advising him and offering help. In the fall of 2017, Thomas proposed a more specific version of his thesis, involving how insects responded to the ultrasonic calls of tarsiers and bats. Thomas was convinced there was convergent evolution at work. Gursky had, in fact, helped Thomas to write grant proposals on this research.

But the following spring, according to Thomas's ethics complaint, he laid out to Gursky the experimental approach he intended to use. "That's when I was told, 'You can't do that,'" Thomas wrote. "Not really understanding why I asked how things had changed, as we had been sharing ideas about this research since I had arrived to the program. Her response was, 'That's what I'm doing.'"

Thomas's relationship with Gursky degenerated after that, as might be expected, and he eventually chose to leave TAMU despite urgings by other faculty that he stay (including offers to pay his tuition.) Before he left, however, Gursky promised to include him as coauthor on a paper she was preparing if he helped her with some of the graphs (a paper that was within Thomas's area of expertise.) But when the paper was published, she was sole author, with no acknowledgement at all of Thomas's role (she did acknowledge others.)

The six points laid out by Gursky's attorney, including the statement that she knew about the ABR (auditory brainstem response) system and how to use it (there is documentation that statement is false), and the statement that "all complaints were found to be unsubstantiated," are not accurate. Gursky was cleared by the university of procedural violations, but not of the actual ethical violations. Even that finding is suspect, given TAMU's long history of sweeping complaints under the rug, as illustrated in my earlier posts.

There is a lot more to this case, and there are witnesses, including former department chair Cynthia Werner and university administrators who were involved in "investigating" the ethics complaint.

In a second case of alleged theft of intellectual property, a student turned in chapters of her dissertation to Gursky, only to see them written up verbatim in a poster Gursky presented at a meeting months later. I will not provide further details to protect the privacy of this student, but the lawyer's letter clearly includes a retaliatory warning to all such witnesses (he makes the statement that Gursky is "well aware" of the identity of my sources.)

As I mentioned repeatedly above, Gursky's abuse of students is well known within the department and by the university administration. Yet she continues to terrorize students without restraint. The threat of a lawsuit against me is just another aspect of that bullying behavior, because ultimately the intent of such a threat is to further intimidate students into being silent. But it's not working.

Amazingly, in January 2018, during a search for a new department chair to replace Cynthia Werner, Gursky submitted a letter nominating herself for the role. "My vision for the department is for it to become a more collegial environment," she wrote without apparent irony, "where all individuals feel welcome and can thrive."

Gursky did not get the job. Instead it went to anthropologist Darryl de Ruiter, who, at the time he accepted it, had been found guilty in a Title IX proceeding of conduct unbecoming a faculty member in the wake of a sexual harassment complaint who alleged misconduct during field work in South Africa. Most of the faculty did not know this when they voted for him--the findings were kept secret, although Werner reportedly knew all about them.

Thus does the toxic culture in the TAMU anthropology department get perpetuated, with some of its leading faculty fully complicit in the abuses. Perhaps Gursky's attorney should get to know his client better before he issues any more threats against the reporter who has, with the help of numerous brave current and former members of the anthropology department, revealed the truth about her.

Addendum: As I mentioned in my original post about Gursky's legal threats, her lawyer, Daniel R. Warner, is serving two years' probation in a plea bargain with the Arizona bar over serious allegations of fraud.

Update Nov 3: After a number of anthropologists shared this post on Facebook and social media, Gursky began commenting on their posts and denying the accusation that she stole a graduate student's dissertation. That is her right, but in doing so, she has deliberately outed the student who was forced to leave the anthropology department as a result of her unethical behavior (I stand by my reporting on that.) This appears to be an attempt to get revenge on his whistleblowing by trying to wreck his career. Also, Gursky refers to the university's inquiry into the matter as having cleared her; this is not at all true. In fact, TAMU, as in so many cases of alleged misconduct, failed to conduct a serious inquiry and did not deal with the ethical issues.

This Twitter thread includes a screen shot of one of Gursky's Facebook comments.

Further update: An interesting Facebook exchange between Gursky and me:

  • Sharon Gursky He signed his name on the complaint. It was never confidential.
    • Michael Balter Is this seriously your excuse for outing him? Every complainant is known to the administration and often to the abuser. He did not ask to be outed to the entire anthropology community in which he must now work. You are really something.
    Write a reply...

  • Sharon Gursky I was cleared of EVERYTHING. All allegations occurred as a bullying attempt on me within 6 week period. I did tell a student she could not have someone on her committee if she wanted me to chair it. We have different perspectives on evolution. I didSee More
    • Michael Balter First you were not cleared of ethics violations. A letter from a TAMU dean is worthless given how long the administration has covered for you and other abusers in your department. Second, I have a pile of witnesses about your bullying and unethical behavior. Sharon, you hired a lawyer accused of fraud and on probation with the Arizona bar to threaten to sue me if I did not take the allegations down. So I did not, now go ahead and sue and let's take depositions and do legal discovery and see how you fare. I'm very happy to debate your behavior in a court of law if that's what you want. But those in your department who know all about your behavior and have helped cover it up, and members of the administration, will all be part of that process.
    • Sharon Gursky If it would not cost me 200K I would sue your ass. But since you have no assets from which I could recoup the costs...i have to let you use your first amendment rights.
    • Sharon Gursky Please note all this happened Fall 2018
    • Michael Balter Sharon Gursky That's great, sorry you had to waste your money on a lawyer accused of fraud. Did he tell you he was on probation with the bar when you hired him?
    • Michael Balter Talking about Daniel R. Warner, Arizona attorney, for those who are curious.
    • Michael Balter Sharon Gursky Relevance of when it happened? Your misconduct goes back years.

Thursday, October 24, 2019

Is the presence of anthropologist Darryl de Ruiter on the Rising Star and Malapa teams consistent with a "zero tolerance" policy?

Darryl de Ruiter
Last month I reported on a large number of allegations of sexual harassment, bullying, and unethical behavior among some faculty in the Texas AM University (TAMU) anthropology department, based on a significant number of sources. Although some faculty and university administrators have tried to dismiss the accusations, chalking them up to disgruntled former members of the department and the imagination of a #MeToo reporter, the current graduate students set them straight in a later letter to faculty urging them to take the matter seriously. Among those accused of misconduct are the department chair himself, Darryl de Ruiter, a paleoanthropologist active on two key South African teams led by Wits University scientist Lee Berger. One team works at the site of Malapa, where the hominin Australopithecus sediba was discovered; the other at the Rising Star cave system, where remarkable discoveries of numerous hominin individuals have been made over the past six years.

I had been aware of sexual harassment allegations concerning de Ruiter for the past few years, but I was only recently authorized to report on them. I did so in last month's post about the TAMU anthropology department, where I reported that de Ruiter had been subject to a Title IX proceeding on some of the allegations, found guilty of conduct unbecoming a professor, and sanctioned with one year of monitoring which only recently ended. As I pointed out, while the university let de Ruiter off the hook on the specific charge of sexual harassment, the content of the bullying he was found guilty of was clearly sexual to a certain extent.

Darryl de Ruiter's continuing presence on the Malapa and Rising Star teams (whose researchers overlap to a considerable extent) raises some important issues. Lee Berger's teams, as well as Wits University itself, practice a "zero tolerance" policy, which has been applied in the past to other team members. I have reason to believe that Berger and some other team members have been aware for some time of the allegations concerning de Ruiter, but so far no action has been taken, at least not publicly. I put a series of questions about this matter to Berger, and re-sent them when he did not respond, but so far he has not addressed them. This is perplexing, as I know from other situations that Berger has often shown significant leadership in the fight against sexual harassment and has been outspoken about it. I hope that he, and the team, will now publicly respond to the question of whether it is appropriate for de Ruiter to remain on the team.

A very key aspect of this situation is that the alleged sexual harassment that led to the Title IX investigation took place in South Africa itself. That makes it particularly relevant to Wits and the Berger teams. 

The detailed allegations concerning de Ruiter can be found at this link. And below are the questions I put to Lee Berger about this matter, which I still hope he will answer. (The "new site" refers to another possible fossil find, just announced.)

Dear Lee,

I hope you are doing well.

Congratulations on the discovery of the new site, I’m sure that is going to open a new and exciting era of excavations for you and your team.

Speaking of your team:

As you know, I have been investigating numerous allegations of misconduct concerning Texas A&M faculty, which include sexual harassment, bullying, and unethical conduct. I have published one main preliminary report on my reporting, along with updates and social media posts. As you may also know, I never publish rumors or second hand information, but only the results of direct testimony from either victims of abuse, witnesses to abuse, or other individuals directly involved in the matters at hand.

Among the individuals at TAMU who have been credibly accused of wrongdoing are the anthropology department chair, Darryl de Ruiter. I have known about bullying and sexual harassment allegations concerning Darryl since 2016, and have talked to multiple victims and witnesses to that behavior.

As I believe you know, Darryl was subject to a Title IX investigation in 2018 and the university published findings in that particular case. Although the original accusations included bullying and sexual harassment (the bullying was alleged to be of a frankly sexual nature), the university saw fit to find him guilty of a lesser charge, conduct unbecoming a faculty member. My own findings about what happened are based on testimony from relevant individuals, and the fact that Darryl is alleged to have harassed and bullied multiple individuals.

I know that Wits, and the Rising Star and Malapa projects specifically, have a zero tolerance policy towards sexual harassment. I also know that this policy has been invoked in regards to other members of your teams in the past. Nevertheless, as far as I know, Darryl continues to be an active member of both teams (please let me know if this is not the case, in a question below.)

With this context, I would like to ask you the following questions on the record.

1. When did you first hear about bullying and/or sexual harassment allegations concerning Darryl de Ruiter?

2. When did you first become aware that Darryl had been subject to a Title IX investigation at TAMU?

3. Did Darryl at any time tell you that he had been subject to a Title IX? If so, when, and briefly, what did he tell you?

4. Did Darryl at any time tell you that he had been on a one-year period of sanctions, including monitoring and reporting, as a result of the Title IX findings?

5. What actions have you taken in response to these allegations, if any, and/or investigations regarding them?

6. Is Darryl still an active member of the Rising Star and Malapa teams?

7. Do you plan to take any future action concerning Darryl, if you know that at this point?

I realize there are a lot of questions here. I would like to publish an additional report about these matters no later than Thursday Oct 24. I would be grateful for any responses you feel inclined to make to these questions; it would also be helpful if you could acknowledge receipt of this email, which I have sent to the two addresses I have for you.

With thanks and best wishes,


Credit: WikiMedia Commons/Paul H. G. M. Dirks et al

Monday, October 14, 2019

Anthropology professor threatens lawsuit against reporter for reporting the truth about her bullying and unethical conduct [Updated Nov 4, 2019: No lawsuit?]

Sharon Gursky

I have received the following letter from Texas A&M anthropologist Sharon Gursky's attorney, concerning the allegations contained in a recent blog post in which she was included. I stand by my reporting, which is based on multiple witnesses and ample documentation. I have included Exhibit 1, the settlement letter they want me to sign; the other exhibits, which I have not included here, consist of the blog posts, Facebook posts, and Tweets regarding the allegations.

The university "investigation" referred to in the letter was another in a series of whitewashes with which the TAMU administration dispensed of a number of complaints from students, and has no more validity than any of the others. What Gursky may not realize, but her lawyer certainly will, is that a lawsuit is a two-sided battle in which I would have the right to engage in legal discovery. That means that I would be able to subpoena all documents related to this matter, including ones I may not currently have possession of; and I would be able to subpoena witnesses for depositions, including other faculty members, administrators, and everyone at TAMU or elsewhere with knowledge of the facts. (Just by the way, I would conduct legal discovery of the entire situation in the department, as described in the original blog post, to help establish in my defense that the allegations against Gursky arose in the course of a legitimate journalistic investigation into a pattern and practice of abuse across the anthropology department.)

The other thing that Gursky's attorney might tell her is that, as a freelance writer, I would be free to publicize every detail of any lawsuit that she might file, including the additional information that would result from legal discovery. That's because I would not employ any attorney who counseled me to be quiet, as is the case in most lawsuits that involve major media outlets with their own attorneys (I explain the background to my decision to proceed in this way in a recent piece in the Columbia Journalism Review.)

The end result would be that the well founded allegations against Gursky would receive many times more attention than they are generating now, before a much broader audience.

It's bad enough that Gursky and other anthropology faculty at the university have bullied and harassed students in the department, but even worse that they continue to try to intimidate those students and the reporter to whom they have turned as a last resort. In fact, this threatened lawsuit is much more than a futile attempt to silence a #MeTooSTEM reporter; it's a pernicious attempt to intimidate the current and former students who were caused to suffer from Gursky's bullying and unethical behavior, and who are suffering still. That cannot be allowed to stand.

Added note, Oct 15: In his threatening letter to me, Gursky's attorney states, in reference to my sources, that "we are well aware of who they are..."  This is unlikely to be the case, given how many sources there are for my statements about Gursky, but including this particular phrase seems to be an attempt to intimidate both them and me, and a prelude to possible retaliation. I have thus reported this threat of a lawsuit to TAMU's Department of Civil Rights and Equity Investigations and asked them to begin an inquiry. As is the ethical obligation of all reporters, I will under absolutely no circumstances reveal the identity of my sources without their express permission.

Update: It's been brought to my attention that Daniel R. Warner, the attorney hired by Sharon Gursky to threaten me and thus also threaten the students who blew the whistle on her, was put on probation last year by the Arizona bar for multiple counts of fraud.

                                                                       * * *

Re: Immediate Action Required – Removal of Defamatory Posts; Cease and Desist

Defamation of Sharon Gursky

Mr. Balter:

Please be advised that we represent Sharon Gursky, PhD (“Sharon”) in trying to
resolve the above-referenced matter before it is escalated into litigation. This letter shall
serve as (1) a demand to cease and desist publishing any further information concerning
our client; (2) a demand for removal of all defamatory statements that you published about
our client on various websites; and (3) your notice that a lawsuit will be filed against you
if you fail to comply these demands.

I have reviewed your blog, and posts pertaining to our
client, and it is evident that you have published several false and defamatory statements.
While I understand you claim to be a “journalist,” it is apparent that your “blogging” is a
hobby, secondary to your career in education. In any event, however, our client is not
interested in “your sources”; we are well aware of who they are and take no issue with
them seeking to have their concerns addressed through the proper channels. It is your
reckless and malicious conduct that is the problem.1
In your blog post, located at
rife-with sexual.

1 See McGill v. Parker, 179 A.D.2d 98, 108, 582 N.Y.S.2d 91, 97 (1st Dep't 1992) (noting that
while “a standard which requires a showing that the publisher of defamatory material ‘acted in a
grossly irresponsible manner ...’ is particularly suited to a media defendant,” there “is no reason ...
why the Constitution should be construed to provide greater protection to
the media in defamation suits than to others exercising their freedom of speech”).
Letter to Michael Balter
Page 2 of 4

wbsSrrOGOUOlpFYjraleJtw0Qc, you published the following false and defamatory
information about our client:
In two cases for which I have been given documented evidence, Gursky
either misappropriated or stole outright the research ideas of her students for
her own use. In one case, sources and documents attest, she used the
dissertation project of one of her students to get grant funding from the
university. In another, she used the research of a student for a poster session
at a meeting without permission.

Gursky is also a celebrated bully in the department. Her abuses include
publicly mocking a student with an eating disorder, publicly discussing the
academic struggles of a student in front of others (a possible violation of
federal privacy laws), publicly shouting at and attempting to humiliate
students, and forcing students to take her classes unnecessarily so they would
have sufficient enrollment. Once again, department leaders were fully aware
of this behavior but have done nothing effective about it.

It speaks volumes that you published these statements but (1) failed to contact our client to
get her side of the story, (2) did not attempt to obtain any information from the university
regarding their investigation process, (3) did not inquire whether any of the complaints
regarding our client’s alleged conduct were dismissed, and (4) failed to interview any thirdparty
witnesses. It is apparent that you failed to conduct any type of objective investigation
regarding our client’s alleged conduct, and your clear lack of objectively is the exact
opposite of true journalism. You published the statements with a reckless disregard as to
whether the statements were false and damaging to our client’s reputation, which has taken
her decades to build.

Had you conducted basic due diligence, you would have learned that (1) all
complaints pertaining to our client were investigated and found to be unsubstantiated; (2)
various third-party witnesses were interviewed during the investigation; (3) our client
asked the student to make one figure for the poster, our client provided her data and
analyses to the student, and the student was given credit for his work as his name was
published in the abstract; (4) our client was able to show that on the AUP animal use
protocol application, which was submitted online one month prior to the accusations, how
this student’s assigned role was denoted; (5) regarding the Leakey grant application idea,
our client was able to produce a final report to a grant agency showing that her next step
would be to evaluate the function of the alarm calls, and this report was submitted before
our client worked with this student in this regard; and (6) regarding dissertation idea, in
2012, our client published a paper on the ultrasonic vocalizations and hearing using the
method ABR auditory brainstem response that the student was going to use, but he never
got to stage of collecting data, writing a grant or writing a dissertation.

Letter to Michael Balter
Page 3 of 4

Your statements are clearly false and defamatory. “[E]ach person who repeats the
defamatory statement is responsible for the resulting damages.” Geraci v. Probst, 15
N.Y.3d 336, 342, 938 N.E.2d 917, 921 (2010). Defamation is the injury to one's reputation,
either by written expression (libel) or oral expression (slander). Morrison v. National
Broadcasting Co., 19 N.Y.2d 453, 280 N.Y.S.2d 641, 227 N.E.2d 572 (1967). The
elements of libel are: [1] a false and defamatory statement of fact; [2] regarding the
plaintiff; [3] which are published to a third party and which [4] result in injury to plaintiff.
Idema v. Wager, 120 F.Supp.2d 361 (S.D.N.Y.2000); Ives v. Guilford Mills, 3 F.Supp.2d
191 (N.D.N.Y.1998). Certain statements are considered libelous per se. They are limited
to four categories of statements that: [1] charge plaintiff with a serious crime; [2] tend to
injure plaintiff in its business, trade or profession; [3] plaintiff has some loathsome disease;
or [4] impute unchastity. Liberman v. Gelstein, 80 N.Y.2d 429, 590 N.Y.S.2d 857, 605
N.E.2d 344 (1992); Harris v. Hirsh, 228 A.D.2d 206, 643 N.Y.S.2d 556 (1st dept.1996).
Where statements are libelous per se, the law presumes that damages will result and they
need not be separately proved. Id. at 435, 590 N.Y.S.2d 857, 605 N.E.2d 344. The amount
of such damages “is peculiarly within the jury's province.” Calhoun v. Cooper, 206 A.D.2d
497, 497, 614 N.Y.S.2d 762 (1994).

In assessing the amount of damages to award for defamation, a jury is not limited
to compensating the plaintiff for “economic” losses, such as demonstrable lost profits. See
Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).
Rather, a plaintiff may suffer “non-economic” injuries as well. Among these is the loss of
reputation, which includes the loss of professional status and the ability to earn wages, as
well as any humiliation or mental suffering caused by the defamation. See Mattox v. News
Syndicate Co., 176 F.2d 897, 901–02 (2d Cir.1949) (“[I]t is universally agreed that the
damages recoverable in libel are the plaintiff's loss of reputation in the minds of those who
know him or know about him, together with this mental suffering as a result of the libel.”);
see also Lundell Mfg. Co. v. Am. Broad. Co., 98 F.3d 351, 364–65 (8th Cir.1996)
(upholding an award of $900,000 for damage to reputation—in addition to a separate award
of $158,000 for past and future lost profits—where defendant's act of defamation impaired
plaintiff's ability to sell a recycling machine); Resolution Trust Corp. v. Miramon, 935
F.Supp. 838, 844 (E.D.La.1996) (“Damages for loss of reputation seek to make one whole
for loss of the ability to earn wages, borrow money, and to enjoy life as fully as before the
injury.”); Prozeralik v. Capital Cities Commc'ns, Inc., 222 A.D.2d 1020, 1021, 635
N.Y.S.2d 913, 914 (4th Dep't 1995) (upholding an award of $6,000,000 for injury to
plaintiff's reputation and $3,500,000 for mental suffering—in addition to a separate award
of $1,500,000 for direct financial loss—where defendant's act of defamation injured the
reputation of prominent local restaurateur), lv. denied, 88 N.Y.2d 812, 672 N.E.2d 605,
649 N.Y.S.2d 379 (1996) (Table). “The same rules, of course, apply to a corporation, and
where its standing, integrity, or credit are assailed, damages are presumed.” Edwards X

to Michael Balter
Page 4 of 4

ray Co. v. Ritter Dental Mfg. Co., 124 Misc. 898, 899–900, 210 N.Y.S. 299, 301–02 (Sup.
Ct. 1925).

Accordingly, for publishing the statements, you may be held liable for presumed
damages, as well as punitive damages, which may be substantial. Nevertheless, our client
is willing to give you one last chance to resolve this matter without legal action. This is the
last and final settlement offer that will be extended to you. Notably, the terms of the
settlement are extremely generous under the circumstances; you are not being required to
pay any money, including attorneys’ fees. Instead, our client is willing to release you from
all claims on the following conditions:

1. You will remove all information you published or caused to be published on the
Internet about our client (including blog, as well as,,
and any other platform);
2. You will refrain from publishing or causing the publication of any information
about our client on the Internet; and
3. You will refrain from “investigating” our client.
If, within 10 days from the date of this letter, I do not receive a signed copy of the
Settlement Agreement (which has been attached as Exhibit 1 hereto), we will presume that
you have no desire to settle this matter short of litigation and will proceed accordingly.
Furthermore, you are hereby notified that, if this matter is resolved via litigation, you may
be liable for our clients’ costs and attorneys’ fees, and that this letter may be provided to
the judge and/or jury for that purpose, in addition to demonstrate your malicious intent. I
look forward to hearing from you within 10 days.


Daniel R. Warner, Esq.

Enclosures as stated.

Page 1 of 5

This Agreement is entered into this ____ day of October, 2019 (the “Effective Date”),
between Sharon Gursky (“Sharon”); and Michael Balter (“Balter”). Sharon and/or Balter may be
hereinafter referred to individually as “Party” and/or collectively as “Parties.”
A. Balter published or caused to be published certain defamatory statements about Sharon,
some of which have been attached as Exhibit A hereto (the “Posts”).
B. Sharon contemplated filing a lawsuit against Balter for defamation; however, Sharon
proposed this Settlement Agreement prior to filing suit and Balter agreed.
C. The Parties now wish to settle any and all disputes short of litigation.
THEREFORE, in consideration of the promises, covenants and warranties set forth below
and the mutual agreement of the Parties and other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the Parties agree as follows:
1. Essential Representations by Balter.
1.1 Balter represents and warrants to Sharon as follows:
(a) As of the Effective Date, Balter has removed the Posts, as well as any and all
information Balter posted, or caused to be posted, on the Internet about Sharon.
(b) As of the Effective Date, Balter, directly or indirectly, shall not publish or cause to
be published any information about any Sharon on the Internet.
(c) As of the Effective Date, Balter shall not (a) publicly publish, or cause or encourage
the public publication of, any negative, defamatory, damaging or disparaging statement
about any Sharon or any statement that would cause Sharon embarrassment or humiliation
or otherwise cause or contribute to such persons or entities being held in disrepute by the
public1; or (b) publish, cause to be published or encourage the publication, on the Internet
of any negative, defamatory, damaging or disparaging statement concerning Sharon.
1 This provision does not, in any way, restrict or impede the applicable Party from enforcing this Agreement
or exercising protected rights to the extent that such rights cannot legally be waived by agreement or from
complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an
authorized government agency, provided that such compliance does not exceed that required by the law,
regulation or order. To the extent a court/tribunal of competent jurisdiction finds that the Party is precluded
as a matter of law from contractually waiving any such rights under the certain facts and circumstances
before the court, this provision shall be construed as being inapplicable and thus should not be stricken as
Page 2 of 5
(d) Other than the Posts, as of the Effective Date, Balter has not published or caused to
be published any information on the Internet about Sharon.
(e) Balter will immediately cease and permanently refrain from investigating Sharon.
(f) Balter acknowledges and agrees that any breach of any of the representations above
will result in irreparable injury and that the remedies at law will be inadequate, and that in
addition to any other remedy Sharon may have (including but not limited to those set out
herein), Sharon shall be entitled to the specific performance of this Agreement, as well as
both temporary and permanent injunctive relief (notwithstanding any limitations in law or
equity, such as being required to post a bond).
(g) Balter acknowledges and agrees that damages flowing from any breach of this
Agreement (including any breach of any of the representations above and/or the
confidentiality provisions below) are not readily susceptible to being measured in monetary
terms; therefore, in the event of breach of any provision of this Agreement, Sharon will be
entitled to collect liquidated damages from Balter in the amount of $25,000 USD per
(h) The Agreement shall in all respects be governed by and construed according to the
laws of the state of Arizona, without regard to the conflicts of laws principles thereof. Any
suit or other proceeding arising out of or relating to this Agreement shall be instituted and
maintained in Maricopa County, Arizona. The Parties expressly waive any objections to
such jurisdiction and venue and irrevocably consent and submit to the personal and subject
matter jurisdiction of such courts in any action or proceeding. However, this Agreement
and/or any court order or judgment arising out of or related hereto shall be enforceable in
every state and worldwide.
(collectively, the “Representations”).
1.2 The Parties acknowledge and agree that the Representations are an essential term
of this Agreement, and the Parties would not enter into this Agreement but for the
2. Release of All Claims.
Subject to the provisions of the Agreement stating otherwise and except for fulfilling the
obligations created by this Agreement (and contingent upon doing so, as applicable, respectively),
each of the Parties, for themselves, their marital communities, their owners, agents, attorneys,
representatives, officers, employees, successors and assigns, now and forever release, renounce,
and surrender any and all claims (whether known or unknown), claims for damages, actions, causes
of actions, suits, debts, dues, sums of money, accounts, reckonings, bonds, bill, specialties,
covenants, contracts, controversies, agreements, stipulations, promises, variances, trespasses,
damages, judgments, extents, executions, and demands whatsoever (collectively “Claims”),
including but not limited to any in law or in equity, as against each other and any and all
subsidiaries, affiliates, attorneys, employees, officers, directors, stockholders, representatives,
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agents, successors and assigns that the Parties ever had, now have, or hereafter may have for any
reason whatsoever, whether relating to disputes referenced above or otherwise. The Parties
acknowledge and agree that this Release set forth hereinabove is a General Release, and that the
Party expressly waives and assumes the risk of any and all claims for damages which exist as of
the Effective Date, but which the Party does not know of or suspect to exist, whether through
ignorance, oversight, error, negligence, or otherwise, and which, if known, would materially affect
the Party’s decision to enter into this Release and Settlement Agreement.
3. Covenant Not to Sue. Each Party represents and warrants that the Party has not filed or
commenced any lawsuits or other legal proceedings against the other Party. Each Party warrants
and represents, unless otherwise provided herein, not to file or commence any lawsuits or legal
proceedings against the other Party based on any claims, allegations, alleged defaults, causes of
action, obligations or responsibilities, existing or alleged prior to the Effective Date, relating to
any matter referenced herein or otherwise related to and/or arising out the relationship between the
4. Acknowledgements. Each Party represents, warrants and acknowledges the following:
4.1 The Party has carefully read and understands the effect of this Agreement. Each
Party had the assistance of separate counsel or has had the opportunity to have separate
counsel review, discuss and consider all terms of this Agreement.
4.2 No Party’s signing of this Agreement is based upon their reliance upon any
representation, understanding or agreement not expressly set forth herein.
4.3 The Party is signing this Agreement by their free and voluntary act, without duress,
coercion or undue influence exerted by or on behalf of any of the other Parties or any other
4.4 The Party is the sole owner of the claims or causes of action being released herein,
and the Party has not conveyed or assigned any interest in any such claims or causes of
action to any person or entity not a Party hereto.
4.5 The Party has full and complete authorization and power to sign this Agreement in
the capacity herein stated. This Agreement is a valid, binding, and enforceable obligation
of the Party and does not violate any law, rule, regulation, contract or agreement otherwise
enforceable by the Party.
4.6 The recitals above are true and correct and are hereby incorporated into this
Agreement as representations and warranties, respectively.
5. Effective Date. The Parties may sign this Agreement at different times for convenience
sake. This release shall not be effective until after all Parties or their lawful agents have signed
this release, after which the effective date shall revert back to the Effective Date that is first set
forth above.
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6. Binding Effect. The undersigned represent and warrant that they are authorized to execute
this Agreement for, and to bind, their principals, spouses, and marital communities, as applicable
and that this Agreement and all of its terms and provisions shall be binding upon and inure to the
benefit of the Parties and their heirs, legal representatives, successors, and assigns.
7. Attorneys’ Fees and Legal Expenses. If any proceeding or action shall be brought to
recover any amount under this Agreement, or for or on account of any breach hereof, or to enforce
or interpret any of the terms, covenants, or conditions of this Agreement, the prevailing party shall
be entitled to recover from the other party, as part of the prevailing party's costs, reasonable
attorneys' fees, the amount of which shall be fixed by the court and shall be made a part of any
award or judgment rendered (regardless of whether or not the matter is contested).
8. Construction. The language in all parts of this Agreement will be construed as a whole
according to its fair meaning and not strictly for or against any Party. Any rule of construction to
the effect that ambiguities are to be resolved against the drafting Party shall not apply in the
interpretation of this Agreement or any amendments hereto.
9. Counterparts. The Parties hereto further stipulate and agree that this Agreement may be
executed in any number of counterparts, all the counterparts shall be deemed to constitute one
instrument, and each counterpart shall be deemed an original. Facsimile and pdf signatures shall
serve as originals.
10. Severability. If any provision of this Agreement is held to be invalid or unenforceable, the
remaining provisions shall continue in full force and effect in such jurisdiction to the fullest extent
permitted by law and the invalidity or unenforceability of any provision hereof in any jurisdiction
shall not affect the validity or enforceability of such provision in any other jurisdiction.
11. No Waiver. The waiver by either Party of a breach of any provision of the Agreement shall
not operate or be construed as a waiver of any subsequent breach.
12. Entire Agreement. This Agreement and the attachments hereto, constitute the entire
agreement between the Parties in connection with the subject matter hereof and supersedes all
agreements, proposals, representations and other understandings, oral or written, of the Parties.
13. Confidentiality. The terms of this Agreement are confidential, and no Party will disclose
its terms to any third party without the prior written consent of the other Party, except: (a) as
otherwise agreed to by all Parties in writing, separately or hereunder; (b) as reasonably necessary
to enforce rights under this Agreement; (c) where a disclosure is reasonably required by applicable
accounting or regulatory purposes; (d) under judicial or governmental subpoena, demand or
requirement, provided that the disclosing Party agrees to request provisions of confidentiality; or
(e) as otherwise required by law, provided that prompt, prior notification is provided to the other
Party as soon as practicable so that the other Party has an opportunity to seek protection from such
WHEREFORE, the Parties undersigned agree to the foregoing on the date first set forth

Update Nov 4, 2019: It looks as though Gursky is not going to sue me after all. See update at the bottom of this more recent post (a Facebook exchange with Gursky.)