I just finished reading Gone Girl (affiliate link), the riveting and disturbing novel by Gillian Flynn. It brilliantly demonstrates, in a way that lawyers can appreciate, how the exact same set of events can be explained in radically different ways.
Given its focus on fighting, in terms of the war between the sexes and the battle for the truth, Gone Girl was appropriate to read in between the latest filings in Marchuk v. Faruqi & Faruqi. The salacious sexual harassment lawsuit has the entire legal world talking.
Yesterday we wrote about Alexandra Marchuk’s second amended complaint. Now let’s dive into the answer, filed with impressive swiftness after the complaint, which paints a very different picture of events and of the plaintiff….
We’ll go through the answer and highlight the strongest or most notable points, just as we went through the amended complaint yesterday. From paragraph four (emphases in the answer):
Recently obtained discovery, long known to Marchuk and her counsel, has now exposed this central allegation [of forcible sex between Marchuk and F&F partner Juan Monteverde] as spurious. On December 19, 2011, three days after the alleged assault, Marchuk visited with her gynecologist. In relevant part, her gynecologist’s report states:
[Patient] here for new annual gyn[ecological] exam and c/o [complains of] post-coital bleeding after unprotected intercourse 12/15/11 after getting drunk at office holiday party. [Patient] reports it was consensual with boss. She remembers that he stopped when she told him told him to.… [Patient] states she is emotionally/psychologically ok …. [Emphasis added]
In fairness to Marchuk, her second amended complaint offers an explanation for what she told her doctor (paragraph 78): “still in shock from the encounter, unsure of whether she would continue working at F&F, and apprehensive about what might happen if she reported what had actually happened, [she said] that her boss had stopped when she told him to, even though that was not the truth.”
That explanation seems entirely plausible, and it’s smart for Marchuk to admit that she lied — i.e., said something “that was not the truth” — instead of trying to whitewash matters. Of course, Marchuk would be in a better position today if she had gone to an emergency room immediately after the encounter with a claim of forcible sex, instead of going to her gynecologist a few days later and stating she had consensual albeit drunken sex. But hindsight is 20/20 and life is a messy business.
The answer marshals additional medical evidence in support of its version of events (paragraph seven):
[N]ine months after the alleged sexual assault, her counsel arranged and paid for her to see a psychiatrist for the first time. Her psychiatrist’s notes state: “The sex itself she didn’t recall….” Yet in her three later pleadings — the first filed 16 months after the alleged attack — Marchuk’s memory somehow inexplicably returned to enable her to then describe the sex in detail. (See Complaint ¶ 65) Of great interest, too, the psychiatrist’s notes state that he will check with Marchuk’s counsel to confirm that he would be paid from the back-end of any settlement.
Hmm, not sure there will be any settlement — maybe a judgment after a verdict instead, since it seems that F&F and Monteverde want to go the distance.
In the second amended complaint, Marchuk cited Google chats for contemporaneous corroboration of the alleged harassment. It seems that F&F’s lawyers found some Gchats to their liking as well (emphases in the answer, footnote omitted):
9. For example, six days after the alleged assault, in a December 22, 2011 Google chat with a law school friend, Marchuk explained why she reluctantly resigned her employment at F&F: “i would have kept working there, to be honest but everyone else has a strong reaction, im still not quite comprehending it…. well, hopefully it wont come to that [a lawsuit] and they will pay me off to go away …. my friend found me one [a lawyer] she knew I wouldn’t do anything.” (Emphasis added)
10. Also on December 22, 2011, Marchuk told another law school friend: “I really wanted to not make a big deal about it and keep working with him [Monteverde]. I have a good friend that wouldn’t let that happen.” (Emphasis added)
11. And in another illuminating email, a Marchuk acquaintance stated and asked Marchuk’s close law school friend: “WOW. that is really sad: I feel so bad for her. Ugh that sounds terrible. I hate to ask, but do you think its all true?” Marchuk’s close friend replied: “Well I was talking to her about a lot of this while it was going on and I definitely feel I got a different version of the story.” (Emphasis added)
Again, this is not helpful to Marchuk, although I don’t think it’s fatal to her claim either. Sexually charged cases, such as ones involving claims of sexual harassment or date rape, often abound in ambiguity. Mounting a successful criminal case against Juan Monteverde, with Marchuk’s allegations evaluated unnder the “beyond a reasonable doubt” standard, might be difficult. But a civil action for damages, under a “preponderance of the evidence” standard, could succeed.
The next few paragraphs of the complaint describe the fateful night of the Faruqi firm holiday party, alleging that a colleague saw Monteverde and Marchuk kissing and holding hands. Then they went back to the F&F offices (paragraph 15):
On December 16, 2011, at approximately 3:00 a.m., Marchuk and Monteverde arrived at F&F offices. During their short walk, they continued their foreplay. When they arrived at the building, the security guard unlocked the front door for them. The guard acknowledges that they appeared drunk, were swaying and walking shoulder to shoulder, and enjoying each other’s company. He also recalls that Marchuk was giggling. Even Marchuk now admits that she was “[u]nder the influence of alcohol” (see Second Amended Complaint ¶ 76), just like she admitted to her gynecologist that she was “drunk” at the time. Moreover, as before, if Marchuk did not want to go upstairs to the Firm’s offices with Monteverde, she could have gone home.
Why did Marchuk go upstairs with Monteverde? Here’s what she testified (footnote three):
Also not credible was Marchuk’s deposition testimony that she went upstairs with Monteverde because she “thought that he would want to kiss me. I figured he’d wanna touch my breasts again. I thought that would be enough for him.” And if Marchuk’s motivation for going upstairs with Monteverde was to obtain a year-end bonus, that hardly shines a flattering light on her decision making.
Going upstairs with Monteverde was certainly a poor choice on Marchuk’s part. But let she (or he) who has never done something ill-advised while drunk cast the first stone.
As for the aftermath of the sexual encounter, here’s more from the security guard (paragraph 19):
Finally, the building security guard has acknowledged that at approximately 3:30 a.m., he unlocked the building’s front door so Marchuk and Monteverde could leave and that they were laughing and in good spirits when they left.
This security guard sounds like one of F&F and Monteverde’s most helpful witnesses.
These next few allegations, regarding the controversial carpet, are wild:
20. Upon returning to F&F’s office that same day, December 16, after presumably freshening up and a few hours’ sleep at home, Marchuk emailed Monteverde and asked that he call her. When he called, she told him to come to the office immediately because there were blood stains on his carpet and someone might see them.
21. When Monteverde arrived, he saw the stains. They were red; they were not brown, the color of dried blood. Marchuk said that he had hurt her when they (allegedly) had sexual intercourse; Monteverde responded that they did not, in fact, have intercourse. Nevertheless, Monteverde told Marchuk that he would spill coffee on the stains and then have the stains cleaned. She did not object, and Monteverde poured coffee on them. Three days later on December 19, 2011, building maintenance cleaned the carpet and removed the stains.
22. In her Second Amended Complaint, Marchuk accuses Monteverde of spoliation for removing the stains and later discarding the carpet. (See Second Amended Complaint ¶¶ 90-91) But Marchuk wanted the stains removed, which was the reason that she emailed and spoke with Monteverde in the first place. If she did not want the stains removed, she would not have urgently solicited Monteverde to come to the office that morning. Rather, she would have taken a photograph of the stains with her cell phone, complained to Lubna and Nadeem Faruqi that she was sexually assaulted, retained legal counsel, and told the Faruqis that she had photographed the stains, which were still on Monteverde’s carpet. At the time the stains were removed, Marchuk had not threatened to sue, but had urged Monteverde to remove the stains, and thus spoliation could not have occurred.
Reading between the lines, F&F and Monteverde are accusing Marchuk of trying to frame Monteverde by putting either fake blood or fresh blood on the carpet. This doesn’t seem terribly compliant with Occam’s razor — again, it reminds me of the deliciously twisted plot of Gone Girl — but I suppose it’s possible. (Presumably there are records relating to this key period of time, such as records of when Marchuk and Monteverde entered and left the building on the 16th, or records of their email and phone communication from that day.)
We learned from the L’Affaire Lewinsky about the evidentiary value of dresses. Alas, we won’t see such sartorial evidence here (paragraph 23):
[D]uring discovery, Defendants asked Marchuk to produce the dress and underwear that she wore the night of December 15, 2011 for inspection and DNA testing. Her counsel responded that Marchuk had discarded them, an undeniable act of spoliation if she were intending to sue. Moreover, contradicting counsel’s response, Marchuk’s best friend, Tori Leventhal, testified that it was her understanding that Marchuk had saved her underwear as evidence.
Again, in hindsight, Marchuk should have preserved her panties. But one can also understand why she might have destroyed them, wanting to erase every memory of that terrible evening.
These next allegations fit into this case’s pattern of fascinating ambiguity. I’m guessing that the former partner in question is Emily Komlossy, who wrote the memo to name partner Nadeem Faruqi about Marchuk’s harassment claims that we mentioned yesterday. From the complaint (paragraphs 29-31):
Later that evening, Marchuk, admittedly inebriated, told the partner that Monteverde had kissed and fondled her breasts the week before in LexBar, and then joked that Monteverde was “not even a good kisser.” Marchuk did not say that he had harassed her in any way or that his actions were unwelcomed. Marchuk also specifically stated that she did not want to complain to the Faruqis about Monteverde. Soon thereafter, the partner related that although no one at the Firm knew it yet, Monteverde’s wife was pregnant. Upon hearing that, Marchuk (who already knew that Monteverde was married) burst out crying and continued to cry uncontrollably.
At her deposition, the former partner refused to characterize Marchuk’s statements as a complaint. She testified that Marchuk could not stop crying after she learned that Monteverde’s wife was pregnant, so she was unable to ascertain the reason why she was crying. She emphatically denied that she told Marchuk not to complain to the Faruqis. Further, she said that she retained independent counsel and considered suing Marchuk for defamation because of the untruths that Marchuk alleged in her Complaint about their conversation.
In a September 19, 2011 Google chat with a law school friend, Marchuk described what happened at Rossini’s as follows: “the female partner at my firm who lives in FL was up last week Friday took me out … I got drunk and spilled my guts … she told me juan’s wife is pregnant and I proceeded to cry so hard it hurt the next day … a cry hangover.” 5 Thus, Marchuk confirms here that she started to cry when she heard that Monteverde’s wife was pregnant, and not when she was “conveying her concerns” to the partner (see Second Amended Complaint ¶ 36), which in turn suggests Marchuk’s infatuation and attraction to Monteverde.
So it’s undisputed that Marchuk cried upon hearing about Monteverde’s wife being pregnant. But why? One theory, the “Fatal Attraction” theory of F&F, is that she was infatuated with and attracted to Monteverde. But there are other possibilities. Perhaps Marchuk was upset by the prospect of “Don Juan Monteverde,” a philanderer even by his own account, becoming a father. In any event, it’s an intriguing piece of evidence.
Here’s an allegation that contributes to the picture the answer seeks to paint of Marchuk as obsessed with Monteverde (paragraph 68; emphasis added):
[During the F&F holiday party], Monteverde left his table and took his first course over to the Faruqi family table to eat with them. Following service of the main course, Marchuk moved to the seat that Monteverde had just vacated. In an uninvited and unwelcomed act of intimacy, she ate part of Monteverde’s main course off his plate. A few minutes later, Marchuk left the table and sat down next to Monteverde at the Faruqi family table. She did not bring her food or the remainder of Monteverde’s main course with her. While she laughed at the jokes and stories that Monteverde and others told, she hardly participated in the conversation. About 30 minutes later, when Monteverde got up and left the table, Marchuk got up and followed Monteverde.
The observation is almost literary in quality and arguably a little too cute. But I suppose eating off of a partner’s plate is a metaphor for life as an associate.
Remember the notorious “I gave you Alexandra” comment made by founding partner Nadeem Faruqi, cited by Marchuk as showing Nadeem Faruqi knew about Monteverde’s harassing ways? Here is F&F’s explanation for the quotation (paragraph 75):
Nadeem Faruqi also called a Firm meeting on December 16, thanked everyone for attending the holiday party, and announced that he was dividing everyone into seven teams based on practice areas, such as M&A Litigation, Derivative Litigation, etc. Each team would have a team leader and have two, one or no junior associates. Nadeem assigned Monteverde to lead the M&A team and Marchuk to be a member of this team. Following this announcement, Monteverde said that it was not fair that only one junior associate was assigned to his team. As an acknowledgement to Marchuk’s work, Nadeem responded, “I gave you Alexandra.” Acknowledging her enthusiasm for the assignment, Marchuk (and others) laughed.
The answer concludes with a discussion of the counterclaim’s main allegation, namely, that Marchuk maliciously distributed her complaint to the media, F&F clients and opposing counsel, and Juan Monteverde’s wife. F&F speculates that Marchuk and/or a “Jone Doe” might have hacked into the firm’s computer systems in order to conduct the distribution, although that seems a little convoluted; it’s not as simple as Marchuk’s suggestion that a disgruntled employee was behind it.
There’s much more in the answer, and we haven’t even touched on the counterclaims, but this post has already reached epic length. If you’d like to read more, we refer you to the complete answer and counterclaims, reprinted on the next page.
Going back to Gone Girl, just because there are multiple explanations for a given set of events doesn’t mean they’re all equally valid. As fans of The X-Files know, the truth is out there.
When we contacted him for comment on the Faruqi filing, Marchuk’s lawyer, Harry Lipman, had this to say: “We can’t wait to try this case to a jury.” And we can’t wait for the trial either.
(Flip to the next page to read Faruqi & Faruqi and Juan Monteverde’s answer to the second amended complaint and their second amended counterclaims.)