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Aug 11, 2023

Poets&Quants

Known as a fierce litigator, Andrew Miltenberg has been hired by Harvard Business School’s Francesca Gino Harvard Business School Professor Francesca Gino has hired a high-profile litigator to

Known as a fierce litigator, Andrew Miltenberg has been hired by Harvard Business School’s Francesca Gino

Harvard Business School Professor Francesca Gino has hired a high-profile litigator to represent her in a $25 million lawsuit she filed against Harvard Business School Dean Srikant Datar, Harvard and a blog that accused her of research fraud.

Andrew Miltenberg, a founding partner of New-York-based Nesenoff & Miltenberg, rose to national prominence for defending college men accused of sexual assault. His defense of

The subject of a New York Times profile in 2017, Miltenberg is known as a fierce litigator who has represented more than 1,000 students and over 250 faculty members and administrators in disciplinary and tenure hearings in more than 40 states. The vast majority of those student cases involved charges of sexual assault and sexual harassment.

GINO’S LAWYER HAS BEEN DESCRIBED AS A FIERCE LITIGATOR WHO IS AS ‘FLAMBOYANT AS A CONSERVATIVE GRAY SUIT’

His cases have generated attention from national news media, including The New York Times, The Wall Street Journal, Newsweek, The Washington Post, USA Today, The Los Angeles Times, CBS Sunday Morning, New York Magazine, The Huffington Post, Fox News, and National Public Radio.

“If you were to ask my mother, she would defend me,” he once quipped to an interviewer who asked him about being known as “the rape-guy lawyer.” Miltenberg, who has spent much of his career on business litigation, including defamation claims, prefers to be known as “the due-process guy.”

Despite his high profile, he has been described as a soft-spoken attorney who “seems as flamboyant as a conservative gray suit.”

In representing Gino, he has taken on yet another highly controversial cause–alleging defamation, breach of contract and gender discrimination–that is getting international attention.

‘THE PROFESSIONAL AND REPUTATIONAL DAMAGE TO GINO HAS BEEN DEVASTATING’

Francesca Gino

An award-winning behavioral scientist at Harvard Business School, Gino has been accused of fabricating data in at least four published research papers, and possibly many more. A spate of news articles–fuled by the blog Data Colada–have detailed instances in which Gino is accused of fabricating data and manipulating results. In her lawsuit, however, she disputes that she has done anything wrong and has sued for defamation and breach of contract. After a three-person investigation committee found her guilty of research misconduct, Dean Datar placed Gino on unpaid administrative leave, taken away all her benefits, including healthcare, banned her from campus and Harvard’s publishing platforms, and began the process of stripping her of tenure.

“Professor Gino is a brilliant and highly esteemed researcher and is looking forward to proving her innocence,” says Miltenberg. “In the course of her career, she has collaborated with many in her field and is looking forward to definitively establishing her innocence, both to her peers and the public.”

While declining to address the firm’s legal strategy, Miltenberg predictably maintains that Gino’s case is strong. “At the time of the investigation, Professor Gino was dedicating her time to her duties as a full time professor at the business school,” he adds. “As laid out in the Complaint, she was not given sufficient time to defend herself and was given documents by the investigation committee piecemeal. The defamation, contract, and Title IX claims are strong. The legal merits of the case are solid.”ing a lot of media attention. The legal merits of the case are solid.”

HARVARD BUSINESS SCHOOL’S PROCESS FOR INVESTIGATING THE FRAUD CLAIMS WAS ‘INHUMANE AND CRUEL’

The lawyer argues that the process Harvard Business School used to both investigate claims of research fraud and to discipline Gino was broken. “It also violated the university’s past procedures in how they deal with tenured professors who are accused of misconduct,” adds Miltenberg. “Harvard Business school’s process for investigating the allegations ofraud violated Professor Gino’s contractual rights. A faculty member should get prompt notice of the allegation and be subjected to an employee policy that has been vetted. They created something for her and kept her in the dark of the allegations for three months. At the end of the proceeding, Dean Datar read a letter to Professor Gino with the his decision, and did not permit her to respond.”

The U.S. District Court in Boston has issued summons to Dean Datar, Harvard, and the three authors of the blog Data Colada for a response to the charges made in Gino’s suit. Miltenberg is unable to estimate a timeframe for the lawsuit. “Litigation is a long process,” he says. “In October there will be an answer or response to the complaint. We are still at the beginning steps. It may seem long because of the media interest in the case but this is just the earliest step.”

Miltenberg would not say whether he or his client would entertain a settlement if offered by Harvard’s lawyers. “We are litigators,” he says. “We don’t take cases that we don’t think are meritorious.”

HARVARD BUSINESS SCHOOL DEAN DEFENDS ACTIONS TO FACULTY

Harvard has declined comment on the lawsuit, but in an email to Harvard Business School faculty, Dean Datar defended his decision to discipline Gino. ” I ultimately accepted the investigation committee’s recommended sanctions, which included immediately placing Professor Gino on administrative leave and correcting the scientific record (a measure incumbent on every responsible academic institution when research misconduct is found),” Datar added.

“I did so after consulting confidentially with a small number of individuals at HBS and Harvard, including senior faculty members here at the School, as is permitted by our policy. The sanctions reflect a shared belief that the misconduct represented a significant violation of academic integrity and that the evidence not only met but surpassed the applicable preponderance of evidence standard. I shared my conclusions with Professor Gino and, in accordance with our policy and consistent with University practice, began implementing the institutional actions.”

Miltenberg’s response to the dean’s message to faculty. “Dean Datar’s email to faculty leaves many questions unanswered. For example, why was a brand new policy put in place in 2021 for Professor. Gino, and yet it was only now – in 2023 – being shared with faculty?,” he asks. “And furthermore, why were faculty not consulted at all on this new policy? Why specifically was Harvard abandoning its former policy and tailoring a new one specifically for Professor Gino? And why, after they rushed to put it in place, did Harvard fail to follow that policy as stated?”

DON’T MISS: WHAT FRANCESCA GINO’S HARVARD LAWSUIT SAYS ABOUT DATA COLADA’S FRAUD ALLEGATIONS or THE ACADEMIC MOB COMES FOR A HARVARD BUSINESS SCHOOL THOUGHT LEADER

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