The first major hearing in the legal battle between the Phi Gamma Delta fraternity (FIJI) and Jason Belsky, a former UCSB student and FIJI pledge, will take place at 9 a.m. today in the Santa Barbara County Courthouse.
Belsky and his family filed a lawsuit in September 2003 alleging abusive hazing took place during his time as a member of FIJI’s Fall 2002 pledge class. The lawsuit names the national fraternity as well as the local chapter and several of its members. On Jan. 5, the national organization filed a motion to dismiss two of the 10 allegations listed in the suit — one count of fraud and one count of unfair business practices.
At today’s hearing, Judge James Brown will decide whether the motion will be approved. Brown, who has seen all the evidence for the case, has already posted a tentative ruling on the case in favor of striking the two allegations.
Alex Grab, the Belskys’ attorney, said the basis for including the two claims under scrutiny is a letter sent out by the fraternity to the parents of pledges outlining its anti-hazing policy. According to the letter, “hazing is not a part of our fraternity or its development process.” The letter also contained a request for $385 in pledge and initiation fees.
In light of the alleged hazing incident, the Belskys claim the letter misrepresented the fraternity’s anti-hazing policy, and — since FIJI is technically a corporation — that this constitutes fraud and unfair business practices.
Brown’s tentative ruling said the letter is a form of “constitutionally protected free speech on a public issue” and provides information about fraternity policy rather than a contractual promise and as such, it cannot be construed as a fraudulent document.
Grab said he agrees the subject of the letter is of public importance, but in this case precedent is in the Belskys’ favor. He cited the case of Nike v. Kasky, in which Nike was sued for running a publicity campaign denying that it used sweatshop labor. Nike made an appeal similar to FIJI’s motion to strike down the allegations and lost, subsequently settling the lawsuit out of court.
“I’m confident that based on the precedent, we are right,” Grab said. “The case law supports us.”
Attorney Michael Osborne, who is representing the FIJI national fraternity, said the fraternity is also arguing that the national fraternity had no way of knowing that hazing was taking place, and that it was assured by members of the local chapter that none was occurring.
“Our position is that the national fraternity had no knowledge of any hazing going on,” Osborne said.
Despite the uncertain future of the two allegations based on Brown’s tentative ruling in favor of the defendant, Grab said he is still hopeful the motion will be denied.
“It’s hard to say,” Grab said. “If he doesn’t change his tentative ruling, we are prepared to appeal it immediately, and I’m confident that a court of appeals will agree with us.”
Osborne, on the other hand, said he is confident the judge’s mind will not be easily changed, and his decision will mirror the tentative ruling.
“Unless there is something new that comes to light [at the hearing], it’s my expectation that he will follow his tentative ruling,” Osborne said.