[Information and status of events in this article were current as of its writing on February 21, 2020.]

Harvey Weinstein faces over 80 accusers with allegations ranging from sexual harassment to rape in both civil lawsuits and criminal charges. Over two years after the civil actions commenced against him, a tentative civil settlement has been reached amongst the film producer, board members of his production company — The Weinstein Co. — and some of Weinstein’s accusers.

Per the proposed $47 million settlement, approximately $25 million would be allocated to the accusers, while another $12 million would go to Weinstein and board members of The Weinstein Co. to cover legal costs. Judges presiding over both cases – one in bankruptcy court and the other in federal court in New York – must first approve the settlement. 

The news regarding the civil lawsuits comes as Weinstein faces trial regarding his criminal charges, and it meets concerns voiced amongst some of the accusers and their legal counsel. Although not all of Weinstein’s accusers are part of the two lawsuits at issue in the proposed settlement, a large number of accusers are part of the class-action lawsuit. 

Class-action: Commencement and Implications

The class-action lawsuit against Weinstein brings together a number of accusers under one legal proceeding. To initiate a class-action, according to Federal Rules of Civil Procedure, Rule 23, a district court must make the following findings: 

• The sheer number of class members makes it impracticable for all to join in the action
• Common question(s) of law or fact is shared amongst the class members
• The named class members’ claims and/or defenses are representative of the remaining class members, and
• The named class members will adequately protect the entire class’ interests

Additionally, FRCP Rule 23 requires that one of the following findings must be made: the requirement of separate actions on behalf of the class members would make inconsistent rulings or a ruling regarding one class member would substantially impair other class members’ abilities to protect their interests; injunctive or declaratory relief for all class members would be warranted due to the defendant’s actions that apply, generally, to the entire class; or the existence of common questions of law or fact predominate the specific questions of class members in that a class-action would be a more beneficial or superior method in resolving the matter. 

A class-action has its advantages and disadvantages for both class members and defendants. Naturally, for the court system, streamlining numerous litigations into a single action is cost and time-effective. For the defendants, steering clear of future litigation against similarly-situated plaintiffs is also generally beneficial. However, a large number of opposing litigants can result in a significant payout at the end of litigation or settlement. 

In the proposed Weinstein settlement, for example, board members of The Weinstein Co. are granted immunity from future litigation. Additionally, Weinstein is not required to admit any wrongdoing, with the payout not coming out of Weinstein’s pockets, directly, but out of the insurance company policies held by The Weinstein Co. What’s more, even non-members to the class-action are precluded from future litigation.  

Members of the class-action settlement are split over the matter of this tentative settlement. Some accusers challenged the proposal, and have chosen to proceed with separate litigation. One such accuser is former actress and model Kaja Sokola, who, initially, was part of the class-action lawsuit. Sokola removed herself from the class-action after refusing to agree with the proposed settlement terms. Now, she has filed a separate lawsuit in New York under the Child Victims Act, as the she was 16 years of age at the time of the alleged sexual assault.

Parallel Civil and Criminal Cases: Advantages and Disadvantages to Both Sides

As new civil suits are being filed, Weinstein currently is on trial for the criminal charges he faces in New York. Weinstein maintains a plea of not-guilty, as he is on trial for 2004 sexual assault accusations and a 2013 rape accusation. If found guilty, Weinstein could face up to a life sentence in prison. 

Weinstein’s criminal proceedings are not hindered by any pending civil actions. However, the civil suits can be affected by the timing of the criminal matter coming to an end. In one vein, it is to the advantage of a defendant to reach a settlement regarding a civil lawsuit while criminal charges remain pending. For example, as Weinstein’s criminal trial is unfolding, he is protected by his Fifth Amendment right against self-incrimination. 

In turn, it is often to the plaintiff’s advantage that a civil settlement be reached following the criminal proceedings, as the once-protected criminal defendant can now be deposed and questioned. 

Often, a civil action is stayed during the pendency of the criminal trial. Perhaps most importantly, discovery in the civil matter is often placed on hold and the civil matter resumes once the criminal trial ends. A defendant’s request to freeze civil discovery and depositions, then, is often a prudent route. 

Regarding two of Weinstein’s civil cases, stays were requested pending the criminal trial. The proposed settlement involving the parties to the two civil lawsuits in bankruptcy court and New York federal court, however, has made its way into the hands of the two presiding judges. As a result, the next step is whether the settlement meets the judges’ approval. 

Seeking Judge Approval of Civil Settlements

Approval by the judge is the ultimate seal to a civil settlement. As part of reaching a settlement, the parties on both sides of the action have taken the time to reach an agreement, put that agreement in writing, and submit it to be signed-off by the presiding judge. Just because the parties involved in reaching the Weinstein proposed settlement have submitted their agreement to the two presiding judges, however, does not mean it is a done deal.

In general, a judge being asked to approve a civil settlement to a class-action in federal court looks to whether the requirements set forth in Rule 23 of the Federal Rules of Civil Procedure are met. After a showing that reasonable notice to all class members has been made and allowing the opportunity for the objection of class members, an agreement is presented to the judge for the court to determine whether the proposed settlement is fair, reasonable, and adequate. 

Providing proper notice and the opportunity for objection can be quite tedious, and federal courts tend to examine the requisite precursors closely before determining the three-prong test of whether the proposed settlement terms are fair, reasonable, and adequate. As such, it is not uncommon for class-action settlements to witness several years in the making before securing final approval by the court. 

Needless to say, the civil and criminal matters stemming from the sexual misconduct allegations against Harvey Weinstein are yet to meet a final conclusion. As the criminal trial in New York continues, criminal charges were filed against Weinstein in Los Angeles County, California. What’s more, the civil matters range from recent filings to proposed settlements awaiting judge approval. From a prudent law students’ perspective, paying attention to how the Harvey Weinstein trial unfolds – with the myriad of accusations and the number of civil cases and criminal charges he faces – lends itself to an opportunity to explore a number of legal issues. 

About the Author
Allen Yates of the firm Yates & Wheland focuses his practice on helping those who are facing difficult issues in criminal defense and personal injury. Allen has been named a SuperLawyer Rising Star since 2015 and has served on hundreds of cases in State and Federal Courts in Tennessee and Georgia.