A federal appeals panel has agreed a district judge properly determined a scandal-plagued volleyball coach is obligated to pay more than $20,000 in plaintiff legal bills for allegedly interfering with class action notification.
In February 2018, Laura Mullen filed a federal lawsuit in Chicago alleging coach Rick Butler had a history of “sexual abuse of underage girls” in connection with Sports Performance Volleyball Club and Great Lakes Volleyball Center, operated by GLV Inc.
Butler’s wife, Cheryl Butler, also was a named defendant. Mullen, whose daughter played at Sports Performance, said she and other parents “would never have sent their girls” to the club had they known “a child sexual predator would coach their teenage daughters.”
Mullen’s allegations followed national sports media reporting on Butler’s ban from both USA Volleyball and the Amateur Athletic Union. Mullen said ESPN called Butler “the most powerful coach in youth volleyball,” noting he was able to place his players to top college programs throughout the country. She said Butler has, for more than three decades, “used his position of power to sexually abuse no fewer than six underage teenage girls, and likely more.”
In 2019, U.S. District Judge Matthew Kennelly certified a class of those “who paid for volleyball instruction through the Sports Performance program that Rick Butler supervised.” Although he granted the Butlers summary judgement in 2020, he also sanctioned the couple and their attorney Danielle D’Ambrose, of Chicago. They challenged the sanctions before the U.S. Seventh Circuit Court of Appeals.
Judge Michael Brennan wrote the panel’s opinion, filed Feb. 5; Judges Joel Flaum and Thomas Kirsch concurred.
On appeal, the Butlers acknowledged communicating with class members but said the messages “were not misleading or coercive and that there is no evidence a class member’s decision to opt out of the class was unduly influenced or based upon anything but the member’s own free will,” Brennan wrote. They also said they were responding to customers who initiated contact and “unequivocally expressed an intent to opt out of the class action.”
However, Brennan wrote, Kennelly’s ruling relied on evidence the Butlers were proactive, intent on convincing people to opt out of class participation. He said Cheryl Butler sent an email that read “Opt out is crucial!” and found that a “clear direction … to her employees to respond to class members’ inquiries by emphasizing and focusing on opting out, not by directing them to the class notice.”
Brennan also said Kennelly asked D’Ambrose why an employee would reach out to class members, and she could respond only that “I don’t believe it was appropriate.” The panel further established that the existence of a business relationship between a defendant and potential class members doesn’t preclude the existence of coercion.
Turning to the amount of sanctions, the panel found Judge Kennelly “carefully examined the billing records submitted by Mullen’s counsel, discussed each allowed cost and cut out fees and expenses not caused by the Butlers’ misconduct.” Brennan further wrote Kennelly had the right to assess civil sanctions of $5,000 against both Butlers as a penalty.
The Butlers also argued Kennelly’s nonmonetary sanctions against D’Ambrose were inappropriate because she acted in good faith, but Brennan said the appeals panel lacked the jurisdiction to tackle that question because D’Ambrose herself didn’t appeal the penalty.
The panel also rejected the Butlers’ arguments that Kennelly improperly denied their request for him to sanction Mullen on a variety of conditions, finding Kennelly’s explanations to be “logical and reasonable.”
In a related action, the Butlers and GLC sued Mullen and her legal team, the Chicago firm Edelson PC, in June. They alleged Mullen’s allegations bolstered a “sham class action lawsuit” they called “part of a deceitful, calculated plan to cut the Butlers off from their supporters, punish GLV customers for their association with the Butlers, and destroy the Butlers’ business.”
Edelson did not respond to a request for comment.