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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, Facebook.com and Twitter.com 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 https://michael-balter.blogspot.com/2019/09/texas-amanthropology-
rife-with sexual.

html?fbclid=IwAR1CMSRwNlGMqbHGtjHJBZ9ZUxKvuQc--
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
10/14/2019
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
10/14/2019
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

Letter
to Michael Balter
10/14/2019
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 Facebook.com, Twitter.com,
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.

Sincerely,

Daniel R. Warner, Esq.

Enclosures as stated.

EXHIBIT 1
________/_______
Initials
Page 1 of 5

CONFIDENTIAL SETTLEMENT AGREEMENT AND RELEASE
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.”
WHEREAS:
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
unenforceable.
________/_______
Initials
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
breach.
(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
Representations.
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,
________/_______
Initials
Page 3 of 5
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
Parties.
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
Party.
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.
________/_______
Initials
Page 4 of 5
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
disclosure.
WHEREFORE, the Parties undersigned agree to the foregoing on the date first set forth
above.
________/_______


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.)

3 comments:

Anonymous said...

Any lawyers want to help me understand a couple of things? 1) Why is it important that Balter be a “journalist” and not a journalist? 2) Why is Balter, Balter, but Gursky is Sharon? This is clearly an intentional choice, but I am baffled as to what it is intended to achieve.

Anonymous said...

Hi Michaal

Did you sent the "Popehat signal" about that threat?
Cheers, anonymous

Michael Balter said...

Hi Anonymous, thanks for the suggestion. Just did that today.