Ragin, Jr. v. The Harry Macklowe Real Estate Co. Findings of Fact and Conclusions of Law

    UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OP NEW YORK

X

LUTHER M. RAGIN, JR., DEBORAH PISH 
RAGIN, RENAYE B. CUYLER, JEROME F. 
CUYLER and OPEN HOUSING CENTER.* INC.,

Plaintiffs, 88 Civ. 5665 (RWS)

-against-
THE HARRY MACKLOWE REAL ESTATE CO. 
THE HARRY MACKLOWE ORGANIZATION, 
HARRY MACKLOWE and ELFON REALTY CO.,

Defendants.
X

PLAINTIFFS' PROPOSED FINDINGS nr FACT AMD CONCLSSION8 OF T..«

LEFRAK NEWMAN & MYERSON 
575 Madison Avenue 

New York, New York 10022



Prior Proceedings .......................... 26
Failure to Include the Logo ..............  27
Evidence of Recklessness and
Discriminatory Intent ..................... 28
Macklowe's Personal Involvement ..........  33
Macklowe's Net Worth ...................... 34
The Cost of Remedial Advertising .........  34

ARGUMENT .......................................  35
I. THE INDIVIDUAL PLAINTIFFS AND THE OPEN 

CENTER HAVE STANDING TO ALLEGE A CLAIM 
UNDER THE FAIR HOUSING ACT FOR
DISCRIMINATORY ADVERTISING ..........  35

A. Individual Plaintiffs Have Standing
to Bring This Lawsuit ...............  3 5

B. The Open Housing Center Has Standing
to Bring This Lawsuit ...............  3 8

II. DEFENDANTS VIOLATED SECTION 3604(c)
OF THE FAIR HOUSING ACT .............  39

A. Plaintiffs' Claims Are Not
Time-Barred ..........................  4 0

B. Plaintiffs Proved By a Preponderance 
of the Evidence That Defendants Made,
Printed or Published the Advertisements 
For Riverterrace and Riverbank West,
or Caused Them to be Made, Printed 
or Published ......................... 44

C. Plaintiffs Established That an Ordinary
Reader Would Understand the Advertisements, 
or Any of Them, as Indicating a Racial 
Preference, Limitation, or Discrimination 
or an Intent to Make Such Preference, 
Limitation, or Discrimination .......  46

D. Plaintiffs ProVed That Defendants
Harry Macklowe and HMRE Intended That 
Their Advertisements Convey a Racially 
Discriminatory Message ..............  54

ii



III. PLAINTIFFS HAVE PROVEN COGNIZABLE 
INJURY BY WHICH THEY WERE DAMAGED
UNDER SECTION 3604 (c)   58

A. Individual Plaintiffs Established That
They Were Substantially Insulted and 
Distressed by the Advertisements ....  58

B. The Open Housing Center Was Forced 
to Expend Resources as a Result of 
Defendants' Advertisements Which 
Would Have Been Spent on Other
Services .............................  62

IV. PLAINTIFFS SHOULD BE AWARDED
COMPENSATORY DAMAGES ................. 64

V. PLAINTIFFS SHOULD BE AWARDED
PUNITIVE DAMAGES ..................... 65

VI. PLAINTIFFS ARE ENTITLED TO
INJUNCTIVE RELIEF .................... 67

VII. THE 1988 AMENDMENTS GOVERN 
PUNITIVE DAMAGES AND ATTORNEYS'
FEES .................................  68

CONCLUSION .....................................  74

iii



UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK --------------------------------------- x
LUTHER M. RAGIN, JR., DEBORAH FISH 
RAGIN, RENAYE B. CUYLER, JEROME F. 
CUYLER and OPEN HOUSING CENTER, INC.,

Plaintiffs, 88 Civ. 5665 (RWS)

-against-
THE HARRY MACKLOWE REAL ESTATE CO., 
THE HARRY MACKLOWE ORGANIZATION, 
HARRY MACKLOWE and ELFON REALTY CO.,

Defendants.
X

PLAINTIFFS/ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

Preliminary Statement
Plaintiffs respectfully submit these proposed findings 

of fact and conclusions of law, and urge the Court to affirm the 
compensatory and increase the punitive damage awards of the 
advisory jury against defendant The Harry Macklowe Real Estate 
Company, Inc. (hereinafter, "The Company" or "HMRE") and order 
similar relief against defendant Harry Macklowe. It is also 
requested that the Court order injunctive relief against 
defendants. The length of jury deliberations and the 
reasonableness of the award by the four jurors who carefully 
listened to the facts as they were being presented by both sides 
for 16 trial days demonstrate the wisdom of an award which should 
be adopted by this Court.

In sum, the record amply supports a finding of 
liability against both Harry Macklowe and The Company for



violating Section 3604(c) and causing each plaintiff to be 
injured thereby and to suffer substantial damage. As the 
evidence revealed, defendants acted in "reckless disregard" of 
the law, and thus, a punitive damage award is well warranted.

STATEMENT OF FACTS
It is respectfully requested by plaintiffs that the 

Court make the following factual findings:
Plaintiffs

1. Plaintiffs Luther M. Ragin, Jr., Deborah Fish 
Ragin ("the Ragins"), Renaye B. Cuyler, Jerome F. Cuyler ("the 
Cuylers")(sometimes collectively referred to as "the Individual 
Plaintiffs") are black residents of New York City who were 
looking for housing in the New York metropolitan area during the 
time, from the Fall of 1985 until December of 1988, when 
defendants were marketing Riverbank West ("RBW") and 
Riverterrace, two large residential buildings in Manhattan, 
through advertising in The New York Times (Tr. 170, 380). As 
more greatly detailed in paragraphs 4-5, 8, and 16 infra, their 
search included reading certain real estate pictorial 
advertisements, which displayed photographs of only white models 
(sometimes referred to as "the all-white Macklowe 
advertisements") (Tr. 380).

Luther and Deborah Ragin
2. Luther Ragin grew up in the Bronx. His mother, a 

bookkeeper, and his father, a teacher, came to New York from 
South Carolina (Tr. 162). Mr. Ragin excelled in high school and

2



was accepted at Harvard where he received a bachelor's degree and 
then later completed a joint degree program in law and public 
policy at Harvard Law School and the JFK School of Government 
(Tr. 163) . In 1980 Luther Ragin joined the Chase Manhattan Bank 
in New York. In 1982 Chase sent him to London where he remained 
until 1985 (Tr. 164), when he returned to New York1 (Tr. 165).

3. Deborah Fish Ragin was born and raised in 
Cleveland (Tr. 330). Ms. Ragin was, like her husband, an 
excellent student. She graduated from Vassar College, and 
received master and doctorate degrees from Harvard University.
For a time she worked in London, and after returning to New York, 
looking for housing was "pretty much like a full-time job" from 
late October through June of 1986. Presently, Ms. Ragin is 
working at Beth Israel Medical Center (Tr. 335).

4. In 1985, while in London, Luther Ragin's mother 
sent him the Sunday New York Times real estate sections and 
articles from New York Magazine, so he could get reacquainted 
with the housing market in New York City. Mr. Ragin testified 
that while he was in London, he saw advertisements for 
Riverterrace in New York Magazine (Tr. 166). When the Ragins 
returned to New York they actively looked for housing. Luther 
consulted with the Bank's relocation firm about housing options

1 Since January 1989, Luther has been Chief Financial Officer 
of Earl Graves Ltd., a minority owned company, where he is 
responsible for financial matters and operations of the company and 
its six subsidiaries (Tr. 203). During the years relevant to this 
lawsuit, the Ragins' household income varied from $100,000 in 1986 
to $130,000 in 1989 (Tr. 253-254).

3



(Tr. 168-9), met with real estate brokers, and regularly read The 
New York Times and New York Magazine (Tr. 170, 182).

5. The Sunday New York Times real estate section 
served as the Ragins' principal guide in the housing search. Ms. 
Ragin testified that it was her full-time job to look for housing 
on the weekdays (Tr. 336), and they looked together on the 
weekends.

6. Because they were reluctant to commit themselves 
to a particular geographical area by a purchase of a home, they 
looked at rental apartments as well as cooperative apartments 
(Tr. 337).

7. After an extensive search, the Ragins visited the 
Castle Village cooperative development in Washington Heights (Tr. 
178), and signed a subscription agreement for a cooperative 
apartment at Castle Village in March of 1986. Because of various 
legal problems relating to the conversion, which the Ragins were 
told could continue for two to three years, the Ragins did not 
close on the apartment until December of 1986, and they continued 
to actively look for housing (Tr. 180, 181).

8. After December 1986 and continuing to and after 
the filing of this action, the Ragins continued to review The New 
York Times display advertisements (Tr. 182 and 338).

Renave and Jerome Cuvier
9. Renaye Cuyler and Dr. Jerome Cuyler, residents of 

Brooklyn since 1980, have been married for 20 years. They have a 
15 year old son and a 13 year old daughter (Tr. 376).

4



10. Ms. Cuyler grew up in Williamsburg, Virginia, and 
came to New York to attend Adelphi University in Garden City, New 
York where she graduated in 1970. Ms. Cuyler received her 
Masters degree in speech pathology from George Washington 
University in 1971 and then worked for several years as a speech 
pathologist at Harlem Hospital, and later as an administrator and 
teacher at Adelphi University where she met Jerome (Tr. 377-378).

11. Ms. Cuyler later received a J.D. from Fordham Law 
School and has been a practicing lawyer ever since her graduation 
(Tr. 378) . In 1986 she established her own law firm specializing 
in personal injury litigation (Tr. 379) .

12. Jerome Cuyler was born and raised in Bayone, New 
Jersey. His father worked for the Navy Yard as a bus driver and 
mechanic and his mother was a housewife. He was the oldest of 
eight brothers and sisters (Tr. 393).

13. Jerome graduated from Marist Prep School for Boys. 
For many years he was the only black student there. He then 
graduated from Marist College in Poughkeepsie, New York and 
received a degree in chemistry (Tr. 394) .

14. Jerome received his Masters degree in biochemistry 
from Adelphi University while working full-time as a teacher of 
chemistry at CCNY and as a high school chemistry teacher in New 
York City (Tr. 395).

15. In 1972, Jerome Cuyler entered medical school at 
Cornell and received his degree in 1976. After his residency at 
Harlem Hospital Dr. Cuyler completed a post-doctoral fellowship

5



at Albert Einstein College of Medicine in the Bronx. He was 
physician in charge of geriatric services at Saint Barnabas 
Hospital. Presently, he is employed by Brooklyn Jewish Hospital 
as its Associate Director (Tr. 395).

16. The Cuylers have been regular readers of The New 
York Times for over 20 years. As Ms. Cuyler testified, reading 
the real estate section of that paper "is a ritual that we have 
gone through for the 20 years of our marriage, not only looking 
for homes to live in, but we are, as you can see, investors, and 
we continue to read the real estate section, every Sunday, during 
the week, at times looking for real estate investment" (Tr. 380, 
397) .

The Open Housing Center
17. The Open Housing Center (hereinafter'"OHC") is a 

not-for-profit corporation headquartered in New York City. OHC 
provides a wide range of services with respect to housing in New 
York Metropolitan area, which include among others providing 
information, outreach, and investigation of complaints with 
respect to discriminatory practices in housing (Tr. 415-420, 426- 
427) .

18. OHC has produced approximately fifteen booklets 
dealing with housing opportunities and housing (Tr. 415, 425).

19. OHC also conducts Fair Housing seminars throughout 
the New York community primarily among, professionals and civil 
rights groups (Tr. 417-418). The organization also testifies at 
governmental agencies (Tr. 417), and gives speeches and makes

6



presentations at meetings of various groups (Tr. 426).
20. One of the major functions of the OHC is to 

investigate complaints of discrimination. OHC uses various 
methods in such investigations which include telephone interviews 
(Tr. 420) , investigating the ownership of certain buildings (Tr. 
420) , and investigating pattern and practice cases (Tr. 416-417).

21. OHC also provides housing information to the 
general public (Tr. 419), and works on other cases pending in the 
areas of rental and sales discrimination (Tr. 427).

22. The mission of OHC is to reduce the level of 
segregation in the residential housing market and to have a 
housing market free from discrimination of any kind (Tr. 425).

23. Phyllis Spiro is the Associate Director of the OHC 
and in that capacity she attended a conciliation meeting at 
NYSDHR where settlement of this matter was discussed but not 
reached (Tr. 479).

24. After the conciliation meeting, OHC continued to 
monitor the papers, collect the advertisements and chart them, 
and then decided to file this federal lawsuit (Tr. 479).

25. Ms. Spiro had to devote a substantial part of her 
time trying to counteract defendants' practices, which greatly 
interfered with the work Spiro normally does for Open Housing 
Center, including, among other activities, extensive counseling 
of clients, updating booklets, investigating claims, conducting 
educational and outreach programs, and supervising testing work 
(Tr. 419, 426).

7



26. Ms. Spiro also spent time preparing the 
administrative complaint against defendants (Tr. 463-465).

27. Ms. Spiro has been trying to counteract 
defendants' practices since February of 1987 and her work has 
included keeping and reviewing original newspapers, coordinating 
plaintiff meetings, and answering discovery requests. Ms. Spiro 
had to turn down meetings, delay working on booklets, delay other 
research and client work. Ms. Spiro personally worked at least 
150-200 hours on this case (Tr. 499-502).

28. OHC had a three person staff from 1986-1988 while 
it was researching and pursuing Riverterrace and RBW complaints 
(Tr. 424).

29. While this case was being prepared OHC only had a 
three person staff. It is the only organization of - its kind in 
the City of New York (Tr. 423-424).

30. Ms. Spiro and Jeanette Ramsey monitored newspapers
on a daily basis (Tr. 424). Ms. Spiro testified,

In the first couple of years, if not a little 
bit more, of working on the advertising 
issue, it took away whole blocks of my time 
. . . The conflict was just very difficult.
Sometimes, Ms. Hoeber, the director, would 
not attend a conference at the Human Rights 
Commission so I could go to work or have to 
appear in court so I could be deposed or 
whatever. The time crunch was just very 
difficult in '87 and '88 (Tr. 429).
31. Ms. Spiro began to chart advertisements in 

February, 1987 (Tr. 464; Trial Exh. 3).
32. Ms. Hoeber (then OHC's executive director) also 

worked on the case and attended conferences and meetings (Tr.
8



499) .

Defendants and Their Buildings
33. Defendant The Harry Macklowe Real Estate Company, 

Inc. is engaged in management, construction and development of 
real estate (Tr. 1300-1301).

34. Mr. Macklowe is the sole owner of the Company (Tr.
760) .

35. Riverterrace, located at 515 East 72nd Street, New 
York, New York ("Riverterrace") is owned by York 72 Associates of 
which defendant Harry Macklowe was and continues to be a general 
partner (Tr. 761).

36. RBW, located at 555 West 42nd Street, New York,
New York, was owned until 1991 by Elfon, of which defendant Harry 
Macklowe was also a general partner (Tr. 763).

37. Both Riverterrace and RBW were and continue to be 
managed by the Company (Tr. 762, 763).

The Macklowe Advertisements at Issue
38. Defendants placed numerous human model 

advertisements in the New York Times (sometimes referred to as 
"the thirty-four advertisements") between 1985 and 1988 thirty- 
four of them were admitted in evidence at trial. (Trial Exhs.
4B, 5B, 6B, 7B, 8B, 10B, 11B, 12B, 13B, 14B, 15B, 16B, 17B, 18B,
19B, 20B, 2IB, 23B, 24, 25B, 26B, 28B, 29B, 30B, 3 IB, 91, 92,
93B, 94B, 105, 106, 108, 109 and CC). Not one of these
advertisements contains a non-white model.

The individual plaintiffs saw numerous all-white human

9



model advertisements published by defendants including the 
thirty-four advertisements as detailed in the chart annexed 
hereto as Addendum "A".

39. Of the thirty four advertisements in evidence, 
advertisements for the rental of apartments at Riverterrace bear 
the following dates: May 11, 1986 (Trial Exh. 109), January 4, 
1987 (Trial Exh. 91), February 8, 1987 (Trial Exh. 92), February 
15, 1987 (Trial Exh. 93B) and March 22, 1987 (Trial Exh. 94B). 
Advertisements for Riverterrace also appeared on other days and 
in different media including, but not limited to, March 24, 1986 
in The New Yorker; May 25, 1987 in New York Magazine: and 
September 22, 1986 New York Magazine (Tr. 548).

40. Of the thirty-four advertisements in evidence, 
advertisements for the rental of apartments at RBW appeared on 
the following dates: April 5, 1987 (Trial Exh. CC), April 26,
1987 (Trial Exh. 4B), May 3, 1987 (Trial Exh. 5B), May 17, 1987 
(Trial Exh. 108), August 30, 1987 (Trial Exh. 6B), September 6, 
1987 (Trial Exh. 7B), September 13, 1987 (Trial Exh. 8B), 
September 20, 1987 (Trial Exh. 105), September 27, 1987 (Trial 
Exh. 10B), October 4, 1987 (Trial Exh. 11B), October 11, 1987 
(Trial Exh. 12B), October 18, 1987 (Trial Exh. 13B), October 25, 
1987 (Trial Exh. 14B), November 1, 1987 (Trial Exh. 15B),
November 22, 1987 (Trial Exh. 16B), November 29, 1987 (Trial Exh. 
17B), December 6, 1987 (Trial Exh. 18B), February 7, 1988 (Trial 
Exh. 19B), March 6, 1988 (Trial Exh. 20B), March 13, 1988 (Trial 
Exh. 2IB) , April 17, 1988 (Trial Exh. 23B), April 24, 1988 (Trial

10



Exh. 24), May 1, 1988 (Trial Exh. 25B), May 22, 1988 (Trial Exh. 
26B), September 25, 1988 (Trial Exh. 106), October 2, 1988 (Trial 
Exh. 28B), November 6, 1988 (Trial Exh. 29B), November 20, 1988 
(Trial Exh. 30B) and December 11, 1988 (Trial Exh. 31B).

41. In addition to thirty-four advertisements admitted 
into evidence, defendants engaged in a continuous pattern and 
practice of publishing other similar advertisements for 
Riverterrace and Riverbank West in The New York Times. New York 
Magazine, New Yorker and other media between 1985 and 1989 (Tr. 
548). None of these advertisements contained a non-white human 
model.

42. To prospective renters who visited Riverterrace 
and RBW defendants distributed over 1,500 post cards depicting 
all-white models enjoying the recreational facilities and other 
amenities available to residents of RBW and Riverterrace (Tr.
850, 923).

43. Postcards, often bearing the same images as.The 
New York Times advertisements were sent to prospective renters to 
reinforce the image of the building established by the newspaper 
and magazine advertisements (Tr. 923-924).

44. Many of the post card layouts appeared in 
defendants' newspaper advertising. None of these post card or 
newspaper advertisements depicted a single human model who is 
black or even non-white (Tr. 923-924; Trial Exh. 119).

45. In addition, defendants placed numerous poster 
advertisements depicting human models on buses, bus shelters and

11



telephone kiosks giving extensive exposure of these ads to a 
large segment of the population of New York City. None of these 
advertisements depicted a single human model who is black or even 
non-white.

46. Between 30 and 40% of the renters at RBW and 
Riverterrace were attracted to the buildings by the 
advertisements (Tr. 802).

47. The Company and Harry Macklowe personally and 
through their principals, employees, and agents, actively 
participated in the preparation and approval of the 
advertisements for RBW and Riverterrace. See 51 121, 134-135, 
infra.

The Message Conveyed by the Macklowe Advertisements
Rosemarie Roberts7 View of the Message
48. Rosemarie Roberts was employed by the Company as a 

Vice President in charge of Residential Leasing. She left the 
Company in the Fall of 1988 to accept other employment with 
higher compensation (Tr. 672, 674).

49. Ms. Roberts testified that she believed that the 
advertisements were implicitly exclusionary in that they did not 
have any people of color represented in them (Tr. 693-694).

50. Ms. Roberts testified that she did not feel free 
to express her view on the exclusionary message of the 
advertisements to Harry Macklowe when she was employed by the 
Company (Tr. 730).

51. Ms. Roberts testified that in all aspects of

12



advertising Harry Macklowe made the final decisions. "He was very 
specific about what he wanted. Everyone else basically 
implemented what Harry said, rather than having any real input." 
Macklowe was involved in approving every advertisement (Tr. 681, 
729) .

Defendant Macklowe on the Message of the Advertisements
52. Defendant Macklowe testified that the way in which 

human models are portrayed in an advertisement can give a certain 
message and that it would make a difference if all models in the 
advertisement were African American (Tr. 808) .

53. Defendant Macklowe testified that the goal with 
the RBW advertisements was to attract a young rental crowd —  
recent college graduates coming to New York to work in the 
finance, insurance or real estate industries. Whild the 
apartments required household income of at least $43,000 they 
were designed to be shared (Tr. 1314-1315).

The Opinion of Sheldon Werdiger of the
Message of the Advertisements__________
54. Sheldon Werdiger was the Company's former Vice 

President in Charge of Marketing and oversaw the advertising 
campaigns at issue. Sheldon Weidiger testified that "what is 
very important in a display advertisement is the visual impact of 
the ad" (Tr. 957).

55. Werdiger testified that there were six different 
layouts during the post-opening campaign for RBW all of which 
used white models, almost all of which had a single white female 
model (Tr. 1173).

13



56. Werdiger also testified that there were
advertisements published in the New York Times and New Yorker 
Magazine with drawings of people who were white (Tr. 1274-75).

57. Werdiger testified that the Company was not 
"particularly thinking about" advertising to the Hispanic 
population of New York City (Tr. 1283).

58. The photo in the "theater ad" was not a stock 
photograph, but a recreation by assembling 75 people who were 
employees of the Company and of the Company's advertising agency 
(Tr. 1169). None of the 75 people displayed in the "theater ad" 
is non-white.

Plaintiffs' Expert
59. Defendants featured white models in their real 

estate advertisements to communicate the message that RBW and 
Riverterrace offered a racially homogeneous and exclusive 
environment to white renters.

60. William Allen is the Senior Vice President, 
Director of Creative Services of Uniworld Group, an advertising 
agency which specializes in marketing to black and hispanic 
Americans (Tr. 555-556, 565). Mr. Allen has been involved in 
every aspect of the creation of a consumer advertisement. (Tr. 
557, 563-564). Allen was qualified as an expert in advertising 
(Tr. 657).

61. Mr. Allen testified that age, gender, demeanor and 
race are very important in selecting a message and in choosing 
the target of the message (Tr. 586). All-white model advertising

14



conveys to the public a clear racial preference for white 
tenants. The exclusion of black models from defendants' real 
estate advertisements sends the message that blacks are not 
welcome at Riverterrace and RBW (Tr. 598).

62. William Allen testified that of the 15 million 
people in New York, seven million are persons of color and two 
million, seven hundred thousand are African American. About 
100,000 African American New York City households would be able 
to pay the rent at RBW and Riverterrace (Tr. 579-580).

63. Especially in ads where the situation is social 
and the advertisement is for a place of residence, exclusion of 
African Americans shows a preference for someone other than 
African Americans (Tr. 601).

64. If one is interested in selling apartments to a 
diverse group of people, it was Mr. Allen's opinion that one 
includes a diverse group of people in the advertisement (Tr. 599- 
600) .

65. It was Mr. Allen's opinion that real estate has 
historically been a sensitive area for all African Americans 
because of the history of segregated housing (Tr. 609-610).

66. In Mr. Allen's opinion, African-Americans identify 
greater with advertisements which include African American human 
models. Multiple images that exclude African Americans give a 
specific message of exclusion to African Americans (Tr. 616).

67. In Mr. Allen's opinion, the absence of any African 
American human models in defendants' advertisements indicates to

15



the black consumer that you are not invited. Mr. Allen testified 
that the message of such an advertisement is that, "[t]his is not 
a hospitable environment. We are not reaching out to you" (Tr. 
666) .

Plaintiffs' Reaction to the Macklowe Advertisements
68. Individual plaintiffs drew from the all-white 

Macklowe advertisements the message intended by defendants —  a 
message of discrimination and exclusion. Plaintiffs felt that as 
black persons, they were not welcome at RBW and Riverterrace.

69. The individual plaintiffs believed that the 
advertisements they saw indicated to them a preference, 
limitation and discrimination based on race. They were 
substantially offended and hurt by the racially discriminatory 
message of all-white advertisements published by defendants.

70. Plaintiffs' indignation and distress increased 
over time as they observed that defendants' advertising for RBW 
and Riverterrace continued to feature only whites.

71. As a result of the all-white Macklowe 
advertisements for RBW and Riverterrace, the individual 
plaintiffs were deterred from even visiting or seriously 
considering those two buildings.

Renave B. Cuvier's Reaction to the Macklowe Ads
72. Ms. Cuyler saw numerous advertisements for 

Riverterrace and RBW. She testified specifically that she saw at 
least 13 advertisements, in evidence for Riverterrace and RBW 
from 1986 to 1988. (Tr. 381, Trial Exhs. 4B, 5B, 6B, 10B, 13B,

16



23B, 26B, 28B, 29B, 31B, 93B, 94B and 109). See Addendum A for 
dates of advertisements seen by Ms. Cuyler.

73. Ms. Cuyler testified that she was not offended by 
one advertisement containing a single white model but by the 
continued publication "week after week, month after month of all- 
white model advertisements" (Tr. 386) .

74. Ms. Cuyler still feels the pain of growing up in a 
community that made distinctions based on color. She testified 
that she does not feel her experience with discrimination is 
extraordinary or unique among blacks (Tr. 391) .

75. Ms. Cuyler discussed her reactions to these 
advertisements with Gail Wright, her friend, a former staff 
attorney with the NAACP Legal Defense Fund, Inc. after May of 
1986 (Tr. 387).

76. The record demonstrates that Ms. Cuyler is not 
hypersensitive, political or radical (Tr. 388) and that she is an 
ordinary reader of The New York Times (Tr. 380).

Dr. Jerome Cuyler#s Reaction to the Macklowe Ads
77. Dr. Cuyler saw numerous ads for Riverterrace and 

Riverbank West as they ran in The New York Times between 1986 and 
1988, of which sixteen were admitted in evidence (Tr. 398; Trial 
Exhs. 4B, 5B, 6B, 8B, 10B, 12B, 23B, 26B, 28B, 29B, 31B, 93B,
94B, 105, 106 and 109). See Addendum A for dates of 
advertisements seen by Dr. Cuyler.

78. In addition to The New York Times advertisements 
Dr. Cuyler saw advertisements on the sides of New York buses,

17



including the one which depicted a Caucasian woman lying on the 
beach (Trial Exh. 26B; Tr. 404).

79. Dr. Cuyler described his reaction to seeing these 
advertisements as being annoyed that over the space of so many 
advertisements published by Macklowe, not one would show a person 
of color. Dr. Cuyler testified that "I got the message" (Tr.
400). He said "the repetitiveness of the advertisement begins to 
drum a message home to you and after doing this for a while, it 
begins to become quite clear that this is not by happenstance." 
The message to him was that blacks and minorities were not 
welcome in the building being advertised (Tr. 399) and made him 
concerned that his two children will be subjected to the same 
kind of discriminatory messages (Tr. 401).

80. Dr. Cuyler testified that he would have received a 
different message if there had been even one image of a black 
person in advertisements of RBW or Riverterrace (Tr. 408).

81. The record demonstrates that Dr. Cuyler is an 
ordinary reader of The New York Times.

Luther Ragin's Reaction to the Macklowe Ads
82. Mr. Ragin testified that he saw numerous 

advertisements for Riverbank and RBW from 1985 to 1988 at least 
29 of which were admitted in evidence. (Tr. 205-252, Trial Exhs. 
4B, 5B, 6B, 7B, 8B, 10B, 11B, 12B, 13B, 14B, 15B, 16B, 17B, 18B, 
19B, 2 0B, 2IB, 23B, 24, 25B, 26B, 28B, 29B, 30B, 31B, 93B, 94B,
108 and 109). See Addendum A for dates of advertisements seen by 
Mr. Ragin.

18



83. Mr. Ragin testified that he first saw 
advertisements for Riverterrace in 1985 while the Ragins were 
living in London and planning to return to New York. Mr. Ragin's 
mother sent copies of Sunday real estate section of The New York 
Times and New York Magazine to the Ragins in London, so that they 
could get reacquainted with the New York housing market. It was 
then that he first noticed that there were no black models in 
defendants' advertisements.

84. After the Ragins returned to New York, Luther 
Ragin called Betty Hoeber, then OHC's executive director, a long­
time friend of Luther's parents for suggestions about housing 
(Tr. 175), and discussed also his reactions to some of 
defendants' advertisements with her (Tr. 172). He shared his 
concern with Ms. Hoeber that the advertisements he had seen in 
The New York Times only showed white people even when there were 
dozens of models in a picture (Tr. 176). Mr. Ragin remembered 
saying to Betty Hoeber that "they must not believe that there are 
actually black people who can afford to buy or rent these 
apartments because you certainly do not see them depicted in any 
way" (Tr. 177).

85. Mr. Ragin testified that during the period between 
March and December of 1986, when the Ragins had not closed on 
their Castle Village apartment, he also saw a number of 
advertisements for Riverterrace in New York Magazine (Tr. 182).
He specifically recalled seeing two advertisements, one called 
"Live It Up at 5:15" and the other called "Meet Me At 5:15" (Tr.

19



252). It was also during that time when Mr. Ragin saw a 
Riverterrace advertisement, entitled "HOME", published on May 11, 
1986 (Trial Exh. 109). He described the advertisement as a 
collage of pictures of five or six people "who are reflected in 
different positions, engaged in different activities associated 
with this particular development" (Tr. 248).

86. After the Ragins moved into Castle Village in 
December of 1986 they continued to keep an active interest in 
housing opportunities in the New York area and they regularly 
reviewed the Sunday New York Times' real estate section until 
(and after) the filing of this action (Tr. 182) .

87. After December 1986 Luther Ragin saw many 
advertisements for both RBW and Riverterrace. He recalled seeing 
half page display advertisements for Riverterrace dated March 15, 
and March 22, 1987 (Tr. 251; Trial Exhs. 93B and 94B). Mr. Ragin 
also saw the "lipstick advertisements" for RBW which ran between 
October 1987 and April 1988, and he testified that one of these 
advertisements ran after February 15, 1988 —  on April 17, 1988 
(Tr. 236) Mr. Ragin also remembered seeing "Beauty and the Best" 
advertisements published in November and December of 1988. These 
advertisements were the first time defendants advertisements 
contained the equal housing opportunity logo (Tr. 246) .

88. When Mr. Ragin saw the "theater ad" for RBW for 
the first time on April 27, 1987, he was "amazed and offended 
that an ad for a property on the west side of Manhattan which 
depicted so many human models would not have a single person of

20



color" (Tr. 214).
89. When he saw the same advertisement on the 

following Sunday, his reaction was exacerbated because it no 
longer was an isolated occurrence but the repeated publications 
"suggested that there was a campaign of always excluding blacks 
in the depictions . . . and signaled [to him] that this was not a 
complex which was . . . desirous of attracting black 
applications" (Tr. 216-17) .

90. Mr. Ragin saw Trial Exh. 108 (the theater 
advertisement) for the third time when it was published on May 
17, 1987. It reinforced Mr. Ragin's reaction that defendants 
intended "to hang out a sign that basically said that blacks need 
not apply" (Tr. 230).

91. When Mr. Ragin saw a half page display 
advertisement for RBW showing a woman walking on the beach on or 
about September 13, 1987 (Trial Exh. 8B), he noticed the absence 
of a logo. Because this advertisement ran in conjunction with 
many other advertisements over a period of time as part of an 
advertising campaign for RBW "which always and invariably used 
human beings, and those human beings were always and invariably 
white" (Tr. 210-211), this advertisement indicated a racial 
preference to him. He noted that these advertisements continued 
after the administrative complaint was filed (Tr. 230).

92. Mr. Ragin testified that his reactions "come out 
of understanding what has been a history in [New York City] and 
in this country of longstanding housing discrimination and

21



housing segregation.” He testified, "I didn't just wake up in 
the morning without these advertisements being in some context" 
(Tr. 238).

93. Mr. Ragin testified that in his opinion nearly 
every black person in the City of New York has had a personal 
experience with housing discrimination or has a relative who had 
an experience with it or a close friend who has had an experience 
with it. If there are any blacks who have not had any such 
experience, Mr. Ragin testified that "they are very lucky and 
rare indeed" (Tr. 238). The Court accepts this opinion.

94. The advertisements were infuriating to Mr. Ragin 
also because the developer ignored their complaints thus sending 
him the message that "we don't exist, we don't live here. Our 
business isn't wanted" (Tr. 239).

95. When all-white human model real estate 
advertisements continued to run after the administrative 
complaints were filed and after they were brought to defendants' 
attention and after probable cause was found by NYSDHR it 
reinforced Luther Ragin's reaction that defendants intended to 
exclude blacks and that black residents were not welcome to apply 
for housing at these buildings (Tr. 233-234, 821).

96. The record demonstrates that Mr. Ragin is an 
ordinary reader of The New York Times.

22



Deborah Ragin's Reaction to the Macklowe Ads
97. Ms. Ragin saw numerous advertisement for 

Riverterrace and Riverbank West between 1985 and 1988 of which at 
least 16 she specifically recalled seeing at or about the time 
they were published in The New York Times (Tr. 368, 370, 375; 
Trial Exhs. 4B, 5B, 6B, 13B, 14B, 15B, 16B, 18B, 19B, 23B, 25B, 
26B, 93B, 94B, 108 and 109). See Addendum "A" for the dates 
advertisements were seen by Ms. Ragin. In addition, Ms. Ragin 
saw several advertisements for Riverterrace in New York Magazine 
in 1986 (Tr. 357) .

98. Ms. Ragin discussed her reactions to these 
advertisements with her husband. She testified that she was 
offended by this continuous use of white models and felt that 
"someone was trying to get across that black people were not to 
think of this as reasonable housing" (Tr. 340) .

99. The record demonstrates that Ms. Ragin is an 
ordinary reader of The New York Times.

Dr. Gayle's Reaction to the Macklowe Ads
100. Dr. Lloyd Gayle, defendants' witness, confirmed 

plaintiffs' reaction.
101. Dr. Gayle moved to Riverterrace in June of 1991, 

two and a half years after this lawsuit was commenced (Tr. 1404).
102. Dr. Gayle learned of the building from a 

classified ad that did not include human models. He lived in the 
area and was familiar with the building (Tr. 1414).

103. Dr. Gayle has not seen human model ads for

23



Riverterrace or Riverbank West before he was approached by 
defendants and asked to testify in this case.

104. Dr. Gayle testified that it was hard for him to 
separate his positive experience of living at Riverterrace from 
his reaction to the advertisements (Tr. 1421-1422). Nonetheless, 
he agreed that if black people had been included in Riverterrace 
advertisements, a "different message" from the one in all-white 
advertisements would have been sent. Such a change, he testified 
" . . . could alter the . . . racial mix of the building" (Tr. 
1420-1421).

105. Dr. Gayle also testified that he would have 
definitely approved of the inclusion of black models in 
defendants pictorial real estate advertisements if Mr. Macklowe 
were to have included black models in his advertisements (Tr. 
1423)}

Professor William Lee's Opinions Were Not Credible
106. Defendants' expert was Professor William Lee of 

the University of Georgia.
107. Dr. Lee has never published any articles dealing 

with the impact of advertising on black consumers (Tr. 1044). 
Other than reading two books on the subject of housing

Carol Allen has been a tenant at Riverbank West since 
August of 1989. She saw three advertisements for Riverbank West 
(Trial Exhs. 7B, 8B and 25B), all single white model advertisements 
which appeared in the New York Times in the Fall of 1987 and in the 
Spring of 1988, more than a year before Ms. Allen moved to 
Riverbank West (Tr. 995). Ms. Allen testified, that she does not 
find any current newspaper advertisements racially offensive (Tr. 
992) .

24



discrimination, Dr. Lee never conducted independent research on 
the effects of advertising on black consumers, and has never 
taught a seminar or course dealing with the impact of 
advertisements on black consumers (Tr. 1049, 1050-51, 1055-58).

108. Dr. Lee is not familiar with any studies 
involving real estate advertisements. His opinion is based on 
studies of black consumers' reaction to other products (Tr. 1072- 
73) .

109. The following opinions by Dr. Lee are not credible 
or material in light of other evidence introduced at trial:

a. Dr. Lee's opinion that "for blacks, the race of 
the model does not impact the purchase decision" (Tr. 1067);

b. Dr. Lee's opinion that defendants'' 
advertisements do not disfavor particular ethnic or racial groups 
(Tr. 110-1111);

c. Dr. Lee's opinion that Exhibit 109 (the "Home" 
advertisement for Riverterrace), containing 5 all-white human 
models does not express a racial preference; and

d. Dr. Lee's opinion that no racial message would 
be conveyed by Trial Exh. 109 if it were to contain all-black 
models (Tr. 1103-1104).

110. Even defendant Macklowe disagreed with Dr. Lee's 
opinion when he testified that the message of an advertisement 
would be different if all the models were black (Tr. 808) .

25



Prior Proceedings
111. After seeing the all-white Macklowe advertisements 

The New York Times and in other media, the Ragins, the Cuylers
and the Open Housing Center met in the spring of 1987 to discuss 
their reactions to these advertisements and decided to file an 
administrative complaint (Tr. 254, 389). The Ragins and the 
Cuylers had not previously met.

112. Individual plaintiffs and Open Housing Center,
Inc. ("OHC") filed an administrative complaint with the New York 
State Division of Human Rights (hereinafter "NYSDHR") on June 15, 
1987, charging the Company, Harry Macklowe, and others with an 
unlawful discriminatory practice under the Fair Housing Act by 
defendants' publication of some, but not ultimately all, of the 
all-white Macklowe advertisements.

113. Plaintiffs had the option of first initiating an 
action in the federal court, but instead they decided to pursue 
conciliation proceedings at NYSDHR in an effort to persuade 
defendants to agree to change their practices. They hoped that 
when defendants were confronted with their personal feelings 
about these advertisements and the Open Housing Center's concern, 
as well as the HUD regulations on advertising which includes 
human models, they would change their practices. Plaintiffs were 
wrong (Tr. 233).

114. Defendants continued to publish all-white 
advertisements, and conciliation efforts failed. The NYSDHR 
conducted its own investigation and review of the challenged

26



advertisements. NYSDHR then entered a formal determination that 
there was probable cause to support the complaints against both 
defendants. (Trial Exh. 1).

115. The New York State also filed an administrative 
complaint against the Company for the publication of 
discriminatory advertisments and, thereafter, NYSDHR made a 
finding that there was probable cause that violations had 
occurred (Trial Exh. 107).

116. Despite this finding, defendants continued to 
publish all-white advertisements. The last such ad appeared on 
December 11, 1988 four months after this lawsuit was commenced.

117. Plaintiffs filed the original complaint in this 
action on August 12, 1988 with the Clerk of the United States 
District Court for the Southern District of New York alleging 
that defendants Harry Macklowe, The Company, The Harry Macklowe 
Organization and others violated 42 U.S.C. § 3604(c).

Failure to Include the Logo
118. None of defendants' pictorial real estate 

advertisements, prior to the filing of administrative complaint 
on June 15, 1987, displayed the equal housing opportunity logo in 
conformance with the Fair Housing Advertising regulations 
promulgated by the U.S. Department of Housing and Urban 
Development, appearing at 24 C.F.R. § 109.30 (Tr. 453).

119. No pictorial real estate advertisement for 
Riverterrace ever contained an Equal Housing Opportunity logo.

120. No RBW pictorial real estate advertisement

27



contained an Equal Housing Opportunity logo until September 25, 
1988, or more than a month after the federal lawsuit was 
commenced. However, the Equal Housing Opportunity logo finally 
included by defendants did not conform to the size requirements 
of HUD.

Evidence of Recklessness and Discriminatory Intent
121. Defendants were aware that advertising projects a 

specific image. Sheldon Werdiger ("Werdiger") testified that he 
learned from focus groups that "what is very important in a 
display advertisement is the visual impact of the ad" (Tr. 957) .

122. Defendants carefully selected the all-white image 
they wanted to project in their advertisements:

a. All human models used for advertisements for 
Riverterrace and Riverbank West, except the "theater ad" (Trial 
Exhs. 4B, 5B and 108) were selected from stock photographs (Tr. 
1169) .

b. Werdiger testified that he saw nonwhite 
models in the stock photos shown to defendants and did not select 
any of them (Tr. 951).

c. Werdiger never requested that the advertising 
agencies include a black person in defendants' advertisements 
(Tr. 953), although as plaintiffs' expert, William Allen, 
testified, stock photos that include African Americans are 
readily available to advertisers (Tr. 602-603).

d. Defendant Macklowe testified that he 
participated "in reviewing proposed models or stock photographs

28



from books that were being considered as part of a visual for an 
ad" (Tr. 798).

e. Defendant Macklowe never requested models or 
stock photos to be provided that included black models, and never 
discussed as an option including a black model in any one of his 
advertisements (Tr. 798).

f. At his deposition defendant Macklowe recalled 
reviewing stock and original photos, while three months later at 
trial he could not recall that and did not understand what it 
meant to "review photos" (Tr. 745). Macklowe testified falsely 
as to these matters at trial in an effort to hide the extent of 
his involvement in the selection of the images that appeared in 
the all-white Macklowe advertisements.

g. Defendants did not purchase bus’shelter 
advertisements or telephone kiosk advertising space in Harlem, to 
wit, above 125th Street and below 160th Street in Manhattan (Tr. 
1253-54). Their decision not to advertise in Harlem, a community 
heavily populated by Afro Americans was not an accident.

h. Defendant Macklowe testified that he 
encircled the Harlem-Astoria bus route and put a question mark 
next to it on the memo listing bus routes on which Riverbank 
advertisements would be displayed, because he did not want to be 
short-changed in Harlem (Tr. 852-855; Trial Exh. 61). Macklowe 
testified falsely at trial as to his motivation in drawing 
special attention to the Harlem bus routes in the memo to Jo-Ann 
Harding. His explanation that he did not want to be short-

29



changed (of bus ads running) in Harlem, when viewed together with 
other evidence introduced at trial, can only be seen as a mere 
pretext for the intentional discrimination he was committing.

i. Although defendant Macklowe chose the 
publications in which the advertisements would appear, he did not 
choose to publish display advertisements for Riverterrace or RBW 
in any publication whose primary readership was black (Tr. 779).

j. Defendant Macklowe testified that he did not 
make any efforts to find out what equal housing regulations were 
applicable (Tr. 752-753).

123. Macklowe testified that he became aware of the 
plaintiffs' administrative complaint involving claims of 
discriminatory advertising in November of 1987 (Tr. 821; Trial 
Exhs. 114 and 143).

124. Defendant Macklowe in an attempt to give the 
appearance that the administrative complaint had been 
appropriately investigated testified untruthfully that he 
discussed the complaint with Rosemary Roberts. However,
Rosemarie Roberts did not discuss the complaint with Harry 
Macklowe, did not even see the complaint and certainly did not 
investigate its merits (Tr. 694, 708-709).

125. At his deposition defendant Macklowe testified 
that he made no efforts to learn about Fair Housing laws, while 
only three months later at trial he "recalled" speaking with 
counsel to "make sure" compliance had occurred with the relevant 
regulations governing advertisements under the Fair Housing Act

30



(Tr. 754-55, 757). Macklowe testified falsely as to these 
matters at trial.

126. Macklowe testified that he thought the 
administrative complaint was "a silly complaint" (Tr. 888).

127. Rather than integrating the advertisements after 
this lawsuit was commenced, the Company chose to run 
advertisements in 1990 which did not include any human models 
(Tr. 827).

128. Defendant Macklowe had actual knowledge of the 
probable cause finding by NYSDHR several months before this 
action was commenced (Tr. 893).

129. Defendant Macklowe recalled discussing with 
Werdiger the New York Times' notices to advertisers about the use 
of human models and the logo in advertisements (Tr.'902).

130. 25 advertisements for RBW containing white models 
ran after the administrative complaint was filed in this action 
(Tr. 910-11; Trial Exhs. 6B, 7B, 8B, 10B, 11B, 12B, 13B, 14B,
15B, 16B, 17B, 18B, 19B, 20B, 21B, 23B, 24, 25B, 26B, 28B, 29B,
3OB, 3IB, 105 and 106). Exhibits 28B, 29B, 30B, 31B and 106 were 
published after the lawsuit was filed and after determinations of 
probable cause by NYSDHR (Tr. 913-915).

131. Defendant Macklowe testified that he could have 
included black models in his advertisements in the summer of 
1987, after the administrative complaint was filed, if he had 
wanted to do so (Tr. 938).

132. Werdiger testified that after he learned of the

31



complaint in 1988 he told his advertising agency to diversify the
photographic stock but did not select any photos of nonwhite
models because, according to his trial testimony, they did not
fit graphically (Tr. 1211-1213). However, in his pre-trial
testimony Werdiger explained somewhat differently why no black
models were used in advertisements for Riverterrace or RBW:

Very often, because of the configuration of 
an ad or the way an ad is set up or the 
purportions [sic] of the advertising piece, 
there is a very limited range of figures, 
forms, activities that will fit on the page.
The selection is very much based on form, 
activity, the interest of the advertisement 
and impact it has in the newspaper or other 
vehicle we are advertising in (Tr. 952).

In light of the evidence introduced at trial, Werdiger's
purported reasons stated in testimony at trial and at his
deposition for not including blacks in the all-whit6 Macklowe
advertisements are pretextual eleventh hour explanations of
defendants' discriminatory conduct.3

133. At his deposition defendant Macklowe testified 
that defendants advertising campaign targeted Asian ethnic 
groups, yet at trial defendant Macklowe denied targeting certain 
groups for RBW (Tr. 828-29, 833). Defendant Macklowe testified 
falsely at trial that certain ethnic groups were not targeted.

134. Defendant Macklowe testified that he discussed 
the administrative complaint with Rosemarie Roberts and inguired 
as to her opinion about the merit of the complaint, because

"Those who can demonstrate no legitimate reason for acting 
more likely than not acted for a discriminatory reason." Ibrahim v. 
New York State Dep't of Health. 904 F.2d 161, 168 (2d Cir. 1990).

32



Rosemarie Roberts was black (Tr. 882-883, 884-85, 886-7). 
Defendant Macklowe testified falsely at trial as to these 
matters.

Macklowe's Personal Involvement
135. At his deposition defendant Macklowe testified 

that he was not personally involved in the design and approval of 
display advertisements (Tr. 764). Three months later, at trial, 
defendant Macklowe began by testifying that he was "somewhat 
involved" in design and approval of advertisements, and after 
being shown numerous memos and letters demonstrating his 
involvement, defendant Macklowe finally admits that he was 
"actively involved" in the advertisement campaign (Tr. 764-766, 
766-69, 770, 775, 806-809, 815, 830, 856-858, 868-69; Trial Exhs. 
41, 61, 62, 63, 64, 68, 69 and 70). Macklowe testified falsely 
at his deposition as to the degree of his involvement in the 
design and approval of the Macklowe all-white advertisements, and 
only grudgingly admitted the extent of his participation after 
being confronted with conclusive documentary proof. See also Tr. 
1123 (Werdiger testified that defendant Macklowe was personally 
involved in Riverterrace and RBW advertisement campaigns).

136. Defendant Macklowe was very actively involved and 
interested in the public image and advertising of his buildings 
(Tr. 868).

33



Macklowe/s Net Worth4
137. Defendant Macklowe testified that he owns the 

following eight buildings in New York City:
a. 865 First Avenue
b. 420 East 54th Street ("Rivertower")
c. 1143 First Avenue
d. 30 :East End Avenue
e. 192 East 75th Street
f. 146 East 57th Street ("Metropolitan Tower")
g. 515 East 72nd Street ("Riverterrace")
h. 555 West 42nd Street ("RBW")5

The Cost of Remedial Advertising
138. Mr. Macklowe testified that in general, an 

advertising program for one year for one building using 
newspapers as the main form of advertising would cost between 1/2 
and 1 million dollars (Tr. 776-777).

Evidence of Macklowe's net worth is incomplete, as a 
deposition of Macklowe was to have been held following a jury 
verdict if the jury had found him liable for punitive damages. The 
jury did not. We would explore, if allowed now by the Court, Mr. 
Macklowe's equity in the buildings he said he owned, as well as his 
ownership of other assets.

5 Mr. Macklowe testified that he owned RBW until last year (Tr. 757-9).
34



ARGUMENT
POINT I

THE INDIVIDUAL PLAINTIFFS AND THE OPEN HOUSING
CENTER HAVE STANDING TO ALLEGE A CLAIM UNDER THE
FAIR HOUSING ACT FOR DISCRIMINATORY ADVERTISING
As requested of the Court on June 29, plaintiffs 

address initially the question of standing.
The Court accurately noted in the pre-trial conference 

immediately preceding the trial that defendants are not 
"disputing [plaintiffs'] standing" (Tr. 31). Indeed, there was 
not a word spoken by defendants about the issue of plaintiffs' 
standing during the trial or when they moved for a directed 
verdict after all evidence had been presented.

As the Supreme Court has repeatedly held,' with respect 
to suits brought under the Fair Housing Act, Congress intended to 
define standing "as broadly as is permitted by Article III of the 
Constitution." Trafficante v. Metropolitan Life Ins. Co.. 409 
U.S. 205, 209 (1972) (quotation omitted); Gladstone Realtors. 441 
U.S. at 109. The "sole requirement" that a plaintiff need show 
for standing under the Fair Housing Act "is the Art. Ill minima 
of injury in fact." Havens Realty Coro, v. Coleman. 455 U.S.
363, 372 (1982). No prudential limitations on standing may be 
applied. Id. at 372.

A. Individual Plaintiffs have standing 
to bring this lawsuit_______________

Defendants may argue now that plaintiffs do not have 
standing because they never visited Riverbank West and

35



Riverterrace or sought to rent an apartment there. Under the
Fair Housing Act, however, the requirements of standing are not
nearly so rigorous.6 It is enough that the Ragins and the
Cuylers regularly read The New York Times real estate section and
saw RBW and Riverterrace advertisements (Tr. 170, 182, 380, 397).
There is no requirement in the law that they must actually apply
to a racially prejudiced realtor. As the Second Circuit said in
Ragin v. New York Times.

A claimant may establish a prima facie case 
for such damages [in a human model 
advertising case] simply by oral testimony 
that he or she is a newspaper reader of a 
race different from the model used and was 
substantially insulted and distressed bv a certain ad.

923 F.2d at 1005 (emphasis added). Similarly, the Court in 
Saunders held:

Just as the testers in Havens Realty suffered 
a statutorily recognized injury when he 
received an unlawful representation, so did 
Saunders receive an injury under [Section 
804(c) of] the Act when she received an 
unlawful advertisement indicating a tenant prference based on race.

659 F. Supp at 1053 {emphasis added}. No court has ever found 
that a person who is offended by discriminatory housing 
advertisement in order to challenge such ads, actually risks 
further insult and injury by applying for or seeking to rent or

Furthermore, unlike Section 3604(a), which prohibits 
discriminatory refusals to sell or rent, Section 3604(c) contains 
no requirement that the victim make a "bona fide" offer for the 
purchase or rental of housing —  a factor the Supreme Court found 
significant in finding broad standing for testers under another 
provision of Section 3604. Havens. 455 U.S. at 373.

36



purchase the housing in question.
Nor did plaintiffs have to prove that if it were not 

for the defendants' advertising, they would have purchased 
apartments at Riverbank West or at Riverterrace.7 Plaintiffs 
need only to demonstrate, and they did, that they are readers of 
The New York Times and that they were substantially offended by 
the advertisements. (Tr. 170, 182, 230, 240, 380, 386, 387 and 
399) Raqin. et al. v. The New York Times Company. 923 F.2d 995, 
1005 (2d Cir. 1991), cert, denied. 116 L.Ed.2d 54 (1991);
Saunders v. General Service Coro.. 659 F. Supp.1042 (E.D. Va. 
1987) .

Two circuit courts which have reviewed cases under this 
section have set forth the requirements necessary for standing. 
Raqin. et al. v. The New York Times Company. 923 F.2d 995; Spann 
v. Colonial Village. 899 F.2d 24 (D.C. Cir. 1990), cert, denied. 
Ill S.Ct. 508 (1990). Indeed, this is a unique situation where 
the ability of the individual plaintiffs to bring this type of 
claim has been affirmed by this Circuit. In Raqin v. New York 
Times Co. the Second Circuit perceived no standing issue in a 
discriminatory advertising case based on all-white human model 
advertising in the New York Times in which the plaintiffs were 
simply presented as "black persons who have been looking for 
housing in the New York metropolitan area." Raqin, et al. v. The

7 The plaintiffs did not need to prove that they could have 
afforded to purchase an apartment at Riverbank West or 
Riverterrace, although the record supports that the Ragins and the 
Cuylers could afford to live at Riverterrace and Riverbank West.

37



New York Times Co.. 923 F.2d at 998.
In short, the individual plaintiffs, as black 

homeseekers, who were discouraged and offended by reviewing the 
Macklowe advertising, are among the citizens whose rights are 
violated by infringements of Section 3604(c) and who therefore 
have Article III standing to bring suit under that provision. 
Havens. 455 U.S. at 373.

B. The Open Housing Center has standing 
to bring this lawsuit________________

The Open Housing Center which sues on its own behalf, 
has demonstrated an actual or threatened injury in fact fairly 
traceable to the alleged illegal action. See Valiev Forge 
Christian College v. Americans United for Separation of Church 
and State. Inc.. 454 U.S. 464, 472 (1982). As set forth in f^s 
27 through 32 of the Statement of Facts, supra. the injury to the 
organization is concrete and not merely a setback to the 
organization's abstract interests. Havens Realty Coro, v. 
Coleman. 455 U.S. at 379.

Defendants' repeated all-white advertisments drained 
the resources of the Open Housing Center, which the group would 
have otherwise devoted to its programs independent of the lawsuit 
challenging defendants' action. Havens, supra. 455 U.S. at 379. 
The organization's programs and activities were adversely 
affected by defendants' advertising. Instead of focusing on 
their other activities, the Open Housing Center staff was forced 
to divert their attention to activities to counteract and try to 
stop the advertisements at issue. See Spann. 899 F.2d at 27 and

38



Havens. 455 U.S. at 379. Defendants' repeated publication of 
all-white advertising not only interfered with the Center's 
ability to carry out its efforts to assure equal access to 
housing and to eliminate unlawful housing discrimination, but 
also caused OHC to suffer an injurious drain on resources (Tr. 
424). See id. at 29. A damage award will redress this injury.

Therefore, the Open Housing Center has standing under 
the Fair Housing Act. Havens Realty Corn, v. Coleman. 455 U.S 
at 379; Spann v. Colonial village, Inc.. 899 F.2d at 29.

POINT II
DEFENDANTS VIOLATED SECTION 3604(c)
OF THE FAIR HOUSING ACT

The human model advertising campaigns for Riverbank
West and Riverterrace by Harry Macklowe and the Company clearly
violated Section 3604(c) which provides in relevant part:

It shall be unlawful ... to make, print, or 
publish, or cause to be made, printed or published 
any notice, statement, advertisement, with respect 
to the sale or rental of a dwelling that indicates 
any preference, limitation, or discrimination 
based on race, color, religion, sex, or national 
origin, or an intention to make any such 
preference, limitation, or discrimination...
There can be no dispute that the defendants made,

printed or published or caused to be made, printed or published
the advertisements for Riverterrace and Riverbank West that are
at issue in this case. While defendants dispute Macklowe's
personal involvement, the facts show otherwise.

Plaintiffs have also proved by a preponderance of the

39



evidence that (1) to the ordinary reader defendants' 
advertisements suggest a racial preference, limitation or 
discrimination; and (2) that one or more of the defendants 
intended to indicate such racial preference, limitation or 
discrimination. While the law requires plaintiffs to prove only 
one of the elements, the record here demonstrates that plaintiffs 
proved both. 42 U.S.C. § 3604(c); United States v. Hunter. 459 
F.2d 205, 215 (4th Cir.), cert, denied. 409 U.S. 934 (1972);
Raain v. New York Times Co.. 923 F.2d at 999-1000; Spann v. 
Colonial Village, Inc.. 899 F.2d at 27-29; Saunders v. General 
Services Corp.. 659 F. Supp. at 1057-59.

A. Plaintiffs' Claims Are Not Time-Barred
At the time this lawsuit was commenced, The Fair 

Housing Act of 1968 prescribed that : "[a] civil action shall be 
commenced within one hundred and eighty days after the alleged 
discriminatory practice occurred." 42 U.S.C. § 3612(a)(1982).
The federal complaint in this action was filed on August 12,
1988. The following month the limitations period was extended by 
Congress to two years.

The Supreme Court has held that "where a plaintiff, 
pursuant to the Fair Housing Act, challenges not just one 
incident of conduct violative of the Act, but an unlawful 
practice that continues into the limitation period, the complaint 
is timely when it is filed within 180 days of the last asserted 
occurrence of the practice." Havens Realty Corp. v. Coleman. 455

40



U.S. at 379 (emphasis added). The most recent circuit court to
deal with the limitations period issue in a discriminatory
advertising explained that the definition of a violation within
the statutory period must necessarily include the cumulative
effect of the entire advertising campaign. Spann, et al. v.
Colonial Village. Inc., et al.. 899 F.2d at 29. The Court in
Spann reversed the district court's dismissal of the claim, on
the basis that the Judge failed to consider violations prior to
the 180 day period, stating:

Here [in an advertising case] . . .  it is highly 
unlikely that a single ad containing only white models 
could alone violate § 804(c). Plaintiff's claim rests 
on 'sheer numbers'. Therefore, the court should look 
to defendant's conduct before the actionable period to 
show the violative character of defendant's conduct in 
that period. In failing to make an inquiry of the 
latter kind, the district court erred.

Spann, et al. v. Colonial Village. Inc., et al.. 899 F.2d at 30,
n6. (emphasis added).

Therefore, to determine whether claims were timely 
filed in this case, the Court should consider also defendants' 
conduct occurring prior to February 15, 1988, and after August 
12, 1988, as part of a continuing course of unlawful conduct 
which clearly violated the statute. As the D.C. Circuit held in 
Spann, and as Judge Haight held in Ragin et al. v. Bevlen. the 
relevant period is not limited to the 180 days prior to the 
filing of the complaint where a continuing violation is alleged.

The first New York Times human model advertisements 
admitted in evidence were published in May of 1986 (Trial Exh. 
109). The advertising campaign launched by defendants continued

41



through 1987 and 1988 until December 1988, four months after this 
lawsuit was commenced and was not limited to publications in The 
New York Times. Each plaintiff viewed numerous advertisements 
published by the defendants during the entire campaign. Each 
plaintiff testified that they had seen on repeated occasions 
prior to that time other advertisements published by the same 
defendants, which contained other single all-white models as well 
as multiple all-white human models. All of the advertisements 
viewed by plaintiffs before February 15, 1988 (and after) should 
be considered on the subject of the injury suffered by the 
plaintiffs, because these prior advertisements were "part of a 
continuing pattern and practice of unlawful activity." (Jury 
Charge at Tr. 1852); Havens Realty Coro, v. Coleman. 455 U.S. at 
380-81; Raain v. Bevlen. Inc.. No. 89 Civ. 8558, slip op., 1990 
WL 4008 (S.D.N.Y. January 17, 1990) (copy attached as Addendum 
B). Judge Haight agreed with plaintiffs' argument that under 
Havens "the statute of limitations is satisfied in respect of a 
particular defendant so long as that defendant caused to be 
published one advertisement violative of the statute within 180 
days of the filing of the complaint." Judge Haight observed that 
"viewed as a whole, that policy or practice may demonstrate a 
violation of section 3604(0), even if a particular advertisement 
viewed alone would not." Raain. et al. v. Gilbert Charles 
Bevlen, Inc, et al.. 1990 U.S. Dist. LEXIS 361 (emphasis added).

Mr. Ragin saw six advertisements published by 
defendants between February 15, 1988 and August 12, 1988 (Tr.

42



236; Trial Exhs. 20B, 21B, 23B, 24, 25B, 26B). Ms. Ragin 
testified that she saw three ads in the 180 day period (Tr. 370, 
374; Trial Exhs. 23B, 25B and 26B); Ms. Cuyler saw two 
advertisements in the 180 day period (Tr. 381; Trial Exhs. 23B 
and 26B); and Mr. Cuyler testified that he saw two advertisements 
in the statutory period (Tr. 398; Trial Exhs. 23B and 26B). The 
continuing pattern and practice of excluding black models from 
their advertisements intensified plaintiffs' injury when they 
viewed these advertisements between February 15 and August 12 of 
1988. Six advertisements for Riverbank West appeared in The New 
York Times between February 15, 1988 and August 12, 1988 (Tr. 
Exhs. 2OB, 2IB, 23B, 24, 25B and 26B). Each one of them depicted 
a white model. None of the advertisements displayed the Equal 
Housing Opportunity Logo.

Moroeover, all-white ads continued to be published for 
months after the complaint was filed. Therefore, since the last 
of the continuous stream of all white advertisements was not 
published more than 180-days before August 12 of 1988, under the 
"continuing violation"/"last asserted occurrence" rule of Havens 
and Spann the plaintiffs' claims are not time-barred. Spann at

g32, referring to Havens at 380-381.

To hold otherwise would, in effect, penalize plaintiffs for 
their decision to file an administrative complaint on June 15, 
1987, for their decision to allow the conciliation efforts to run 
their course, and for their decision to wait until probable cause 
was found by NYSDHR in May of 1988. It would undermine Congress' 
preference that victims in appropriate cases would first try to 
resolve the claims informally before going to federal court.

43



B. Plaintiffs proved by a preponderance of the 
evidence that defendants made, printed or 
published the advertisements for Riverterrace and 
Riverbank West, or caused them to be made, printed 
or published._____________________________________

Mr. Macklowe conceded, as was also demonstrated by 
various memoranda, letters, meeting reports and other documents 
(Trial Exhs. 41, 61-64, 68-70), that he was actively involved in 
the design and approval of the display advertisements for 
Riverbank West and Riverterrace, even though only three months 
earlier in his deposition he vehemently denied any such 
involvement (Tr. 764-766, 766-769, 770, 775, 806-809, 815, 830, 
856-858, 868-869; Trial Exhs. 41, 61-64, 68-70). He also stated 
that his active involvement was the same in the advertising 
process for each of the residential buildings. "I was very hands- 
on and interested in the public image and the advertising of all 
my products" (Tr. 868). Rosemarie Roberts confirmed that Harry 
Macklowe was the person who made all of the decisions, determined 
what image should be conveyed in the advertisements for his 
property, and was involved in every aspect of the advertising 
campaign (Tr. 681,729).

In approving the advertisements Mr. Macklowe was not 
merely acting as president of the Company - the managing agent 
for Riverterrace and Riverbank West, Harry Macklowe had an 
ownership interest in both Riverterrace and Riverbank West during 
the time these advertisements were being printed and published 
(Tr. 757-759). He was a general partner of entities that owned 
each building - 72nd and York Associates and Elfon (Tr. 763 ).

44



As such, he is personally responsible for publication of these 
advertisements. New York courts have held that where, as here, 
the wrong was committed in behalf of the partnership and within 
the reasonable scope of the partnership business, all partners 
are liable for the wrong as joint tortfeasors. Caplan v. Caolan. 
268 N.Y. 445 (1935); 16 N.Y.Jur.2d § 1411. Since Mr. Macklowe 
committed a tort against plaintiffs in this case while acting in 
his capacity as general partner of the entities that owned 
Riverterrace and Riverbank West, he can be found individually 
liable even if the partnership is not sued. Partnership Law § 26, 
CPLR 1025, Pedersen v. Manitowock Co.. 25 N.Y.2d 412 (1969).

The Company and its staff were also directly involved 
in the advertising process, and the level of the company's 
involvement with the advertisements was similar for,each of the 
buildings. Therefore both defendants Harry Macklowe and the 
Company clearly caused these advertisements to be made, printed, 
and published. United States v. Hunter. 459 F.2d 205, 210 (4th 
Cir. 1972)

45



C. Plaintiffs established that an ordinary reader 
would understand the advertisements, or any of 
them, as indicating a racial preference, 
limitation, or discrimination or an intent to make 
such preference, limitation, or discrimination.

1. The racially discriminatory message of Defendants' 
Advertisements

As the courts have held, "Congress used broad language 
in Section 3604(c)." Ragin v. New York Times. 923 F.2d at 1000.
It prohibits statements in any form that "indicate any 
preference, limitation or discrimination based on race [or] 
color... or an intention to make such preference, limitation or 
discrimination," 42 U.S.C. § 3604(c) (emphasis added). Id. at 
1000. The Second Circuit held that the statute reaches farther 
than the "most provocative and offensive expressions of racism." 
Ragin, et al. v. The New York Times Company. 923 F.2d at 999.
The Second Circuit held in Ragin. et al. v. The New York Times 
that,

Ordinary readers may reasonably infer a 
racial message from advertisements that are 
more subtle than the hypothetical swastika or 
burning cross, and we read the word 
'preference' to describe any ad that would 
discourage an ordinary reader of a particular 
race from answering it.

Id. at 999-1000 (Emphasis added).
In light of the above, the failure of the 

advertisements to include racially discriminatory "code words" is 
entirely irrelevant to a consideration of defendants' liability

46



for using discriminatory all-white model advertising. 9 Anything 
in an advertisement, whether it's a picture, a drawing, or words 
which indicate or suggest a racial preference to the ordinary 
reader is prohibited.

Professor William Lee, defendants' expert witness, 
ignored the basic truth about advertising, that its purpose is to 
make people like the product advertised so as to encourage them 
to use it or buy it. In contrast William Allen, plaintiffs' 
expert with over 2 0 years of practical experience in advertising 
testified that in his opinion the use of human models in real 
estate ads is intended to personalize the advertisements and 
encourage viewers to associate themselves in a positive way with 
the housing complex advertised (Tr. 616). The record 
demonstrates that the opinion of defendants' expert, William Lee 
should be disregarded. See Statement of Facts, 5 5 101-143,
supra.

Mr. Allen testified that, the message conveyed by real 
estate advertisements is different from the message that would be 
conveyed by all-white advertisements for products other than 
housing. Unlike product advertisements which can be purchased by 
anyone and used in his or her own environment, housing 
advertisements which portray people in social setting, have a 
very different impact on black consumers because of the history

9 Not words alone may convey a racially discriminatory 
message. Mr. Ragin testified that one must see "the ad or the 
picture of the ad in its totality, including whether it was one ad 
or a series of advertisements, whether there was a logo, whether there were models in the ad." (Tr. 289)

47



of housing discrimination and segregation.
Incredibly, Professor Lee, said that it would not make 

any difference if all of the models in these real estate 
advertisements had been black, in terms of the message conveyed 
to an ordinary reader —  the reaction of the ordinary reader 
would have been the same. Lee's opinion should be disregarded 
because he failed to recognize an obvious truth.

The Department of Housing and Urban Development 
(hereinafter "HUD") also disagrees with Professor Lee. HUD 
regulations require that human models used in housing display 
advertisements "be clearly definable as reasonably representing 
majority and minority groups in the metropolitan area" (Tr. 984- 
985). HUD also requires that advertisements display the Equal 
Opportunity Logo:

A simple formula can guide the real estate 
advertiser in using the Equal Opportunity 
logotype, statement, or slogan. 'In all 
space advertising, advertising in regularly 
printed media such as newspapers or 
magazines, the following standards should be 
used.' And then there is a half a page or 
larger, the size of the logo, 2 by 2 inches; 
a quarter of a page up to half a page, 1 by 1 
inch; four columns inches to one-eighth of a 
page, half an inch.

(Tr. 985). Defendants did not comply with either of these 
requirements.10

Defendants emphasize that plaintiffs never visited

The Second Circuit has used HUD regulations as "additional 
support for the view that racial messages conveyed bv the use of 
human models are not exempted" from Section 3604(c). Raain. et al. 
v. The New York Times Company. 923 F.2d at 1000 (emphasis supplied).

48



Riverbank West or Riverterrace, and that had they gone there, 
they would have been warmly received. If the advertisements the 
Ragins and the Cuylers reviewed had been integrated, they would 
have been far more willing to consider any apartment at Riverbank 
West or Riverterrace. However, by publishing all-white 
advertisements defendants made sure that black persons like the 
plaintiffs would not even reach the lobbies of Riverterrace and 
Riverbank West. Luther Ragin testified, "I felt very strongly 
that the message was that they certainly were not interested in 
me being a resident of that complex and if that was indeed their 
feeling, I had no particular interests in pursuing an application 
with them" (Tr. 255). In Mr. Allen's words: "if you want to
appeal to them, you include them. If you don't want to appeal to 
them, you ignore them." [cite]

Thus the record is clear —  defendants ads convey the 
racially discriminatory message, that white tenants were 
preferred at Riverterrace and Riverbank West.

2. Plaintiffs are ordinary readers.
In their attempt to convince the jury that the 

individual plaintiffs are not ordinary readers, defendants on 
their summation for the first time proposed a theory regrettably 
unsupported by the evidence: Mr. Yankwitt suggested to the jury
that rather than reading The New York Times and looking for 
housing, plaintiffs set out on a crusade orchestrated by the Open 
Housing Center, to select advertisements which contained white 
models and bring lawsuits against developers (Tr. 1730-1733,

49



1766). Defendants' disingenuous theory is completely unsupported 
because the record shows that:

(1) The individual plaintiffs were in the market for 
housing in the New York metropolitan area between 1985 and 1988. 
Beginning in 1985 through approximately 1987, the Ragins were 
actively engaged in looking for housing in the area. Thereafter, 
they continued to look at housing periodically. The Cuylers were 
also in the housing market (Tr. 182, 336, 338, 380, 397).

(2) The Ragins and the Cuylers are and have been regular 
readers of The New York Times' Sunday real estate section. (Tr. 
170, 182, 380, 397) That section of the Times contained numerous 
real estate display ads, including the Macklowe ads which led to 
this suit.

(3) Luther Ragin discussed his reaction to all-white 
advertisements with Betty Hoeber of the Open Housing Center after 
having seen defendants' advertisements in London (Tr. 172).

(4) Renaye Cuyler testified that she discussed her reaction 
to all-white advertisements with Gail Wright after she saw 
advertisements published by defendants (Tr. 387) .

(5) Plaintiffs testified that they met in the spring of 
1987 to discuss the ads that they have previously seen and then 
decided to file an administrative complaint (Tr. 254, 389).

(6) Ms. Spiro testified that she began to chart all-white 
advertisements in February of 1987. By that time Luther Ragin, 
Deborah Ragin, Renaye Cuyler and Jerome Cuyler have already seen 
numerous ads published by defendants.

50



(7) In reviewing The New York Times real estate ads in
connection with their housing search, the Ragins and the Cuylers 
noticed that Macklowe's and the company's advertising campaign, 
used exclusively white models, and did not use blacks, despite 
the fact that almost thirty percent of the New York area 
population is black.

(8) The all-white Macklowe advertising conveyed to the 
Ragins and the Cuylers "a message that as black persons, they 
were not welcome at RBW or River Terrace." (Tr. 233-234, 821).
The Times' advertising, including that of Macklowe, indicated to 
them that the parties responsible for placing those ads did not 
want to have black people live in the developments that they were 
associated with. (Tr. 230, 233-234, 821). What the developers 
were saying to plaintiffs in these advertisements was, "We prefer 
not having Blacks." The plaintiffs experienced these feelings 
before they spoke or met with the Open Housing Center.

The individual plaintiffs are ordinary readers. They 
are "neither the most suspicious nor the most insensitive of our 
citizenry." Raqin, et al. v. The New York Times Company. 923 
F.2d at 1002. Any ordinary reader viewing defendants' 
advertisements the same number of times and in the same context 
as plaintiffs viewed them would naturally understand them to 
indicate that white persons were preferred as tenants of 
Riverterrace and Riverbank West (Jury Charge at Tr. 1847).11

11 Defendants' advertising should be judged from the 
perspective of the persons whose rights Congress was trying to 
protect under this section of the Fair Housing Act; in this case,

51



That plaintiffs are highly educated individuals does 
not make them "non-ordinary readers" —  in fact (were they white) 
they would have been the targets of defendants' ads. Plaintiffs 
overcame many obstacles to achieve great success in their 
professional careers. They testified about experiencing 
discrimination, and about being able to accept pain, insult and 
hardship in their lives.

Jerome Cuyler was the only black student in his school 
for some period of time (Tr. 394). He experienced 
discrimination, but survived it and achieved professional 
success. Renaye Cuyler described with tears in her eyes how 
defendants' advertisements reminded her of being denied access to 
swimming pools. (Tr. 388) Ms. Ragin testified about some of the 
pain she felt when she was growing up in Cleveland.- Defendants' 
advertisements reminded her of housing segregation, white flight, 
blockading areas of her city so that blacks would not drive 
through white neighborhoods. Luther Ragin spoke of feelings of 
outrage when he viewed the "theater ad" for Riverbank West which 
depicted 75 white people and not a single non-white person (Tr. 
214, 230).

These experiences did not cause the plaintiffs to 
become radicals. On the contrary, Deborah Ragin excelled at

the persons being protected were blacks. Numerous courts have 
applied the same principle in the analogous situation involving 
race or sex harassment in employment. Dickerson v. State of N.J. 
Dept, of Human Services. 767 F.Supp. 605, 615 (D.N.J. 1991); Harris 
v. International Paper Co. . 765 F.Supp. 1509, 1515-16 (D.Me.
1991) .-Ellison v. Bradv. 924 F.2d 872, 879 (9th Cir. 1991); Yates v. 
Avco Corp.. 819 F.2d 630, 637 (6th Cir. 1987).

52



Vassar College and received a merit award to attend Harvard 
Graduate School (Tr. 331-332). She devoted a significant amount 
of her time to working in research on drugs and AIDS prevention 
that benefit entire society, both black and white (Tr. 333-335). 
Until these advertising cases, Ms. Ragin had never filed any 
types of discrimination complaints in her life (Tr. 348). Luther 
Ragin has accomplished a great deal. He is not hypersensitive.
He testified that one advertisement featuring a single white 
model, viewed in isolation, would not offend Mr. Ragin, but the 
combination of such advertisements, with single and multiple 
models, all white, viewed every week for a long period of time 
did (Tr. 265, 266).

Unfortunately, memories of racial discrimination also 
do not make the plaintiffs hypersensitive. Such is, the
experience of the great majority of African Americans over the

, 12 age of 35.
Defendants' witnesses, however, can hardly be 

characterized as ordinary readers under the circumstances of this 
case. Carol Allen, a tenant at Riverbank West since August of 
1989* 13 testified for the defendants, that she does not find any 
current newspaper advertisements racially offensive (Tr. 992).
She saw three advertisements for Riverbank West (Trial Exhs. 7B,

Even defendants' own witness, Carol Allen, a black resident 
of Riverbank West, testified that she experienced racial 
discrimination.

13 No human model advertisements for Riverbank West appeared 
in the New York Times after December of 1988.

53



8B and 25B), all single white model advertisements which appeared 
in the New York Times in the Fall of 1987 and in the Spring of 
1988, more than a year before she moved to Riverbank West (Tr. 
995) .

Dr. Lloyd Gayle, a black tenant at Riverterrace, had 
not seen human model ads for Riverterrace or Riverbank West 
before he was approached by defendants and asked to testify in 
this case. He moved to Riverterrace in June of 1991 (Tr. 1404), 
two and a half years after the last human model advertisement 
published by defendants appeared in The New York Times and nearly 
three years after this lawsuit was commenced.

Moreover, both Ms. Allen and Dr. Gayle are currently 
tenants of defendants' buildings. They clearly cannot be 
ordinary readers because they cannot separate their, personal 
experience as tenants at RBW and Riverterrace from their reaction 
to these advertisements.

Defendants would like this court to believe that one 
would have to be hypersensitive to think that the advertisements, 
including the Riverbank West theater advertisement with more than 
75 white human models (Trial Exh. 4B) or the "Home" advertisement 
for Riverterrace (Trial Exh. 109) convey a racial preference or 
suggest that white tenants may be preferred. The evidence, as 
the record demonstrated, is to the contrary.

D. Plaintiffs proved that defendants Harry Macklowe
and HMRE intended that their advertisements convey 
a racially discriminatory message.________________

Mr. Allen testified that, the selection of models is

54



critical to the success of an advertisement. Every feature of 
the model is carefully considered, and nothing is accidental, 
especially in light of the cost of advertising (Tr. 586). It was 
not an accident, therefore, that all the models chosen by 
defendants to be included in ads for Riverterrace and River Bank 
West were young. Defendants themselves stated that they sought 
to attract young people (Tr. 1314-1315). It is not an accident 
that they were female in the advertisements for Riverbank West. 
Sheldon Werdiger testified about defendants' intent to convey a 
"provocative image". It is also not an accident that each and 
every one of the models is white. Defendants' careful selection 
of the race, age and sex of the models leads to the fair 
conclusion that the use of only white models by defendants was 
not a coincidence and was intended to convey a racially 
discriminatory message.

Defendants refused to include a single black model in 
their display advertisements even after defendants learned that 
the administrative complaint has been filed on June 15, 1987.
Even after probable cause was found by NYSDHR in May of 1988 Mr. 
Macklowe and the Company refused to include a single black model 
in their advertisements (Trial Exh. 1). Yet Mr. Macklowe 
testifies that he was concerned about not getting enough exposure 
in Harlem for his advertisements (Tr. 852-855, Trial Exh. 61). 
This is why Mr. Macklowe testified under oath that he placed a 
question mark next to the Harlem-Astoria Route on the memo from 
the advertising agency which described possible bus routes on

55



which RBW ads would be displayed. Mr. Macklowe said he did not 
want to be "shortchanged in Harlem" (Tr. 852-855). This Court 
should conclude that Macklowe7s explanation was sheer pretext. 
Ibrahim v. New York State Dep/t of Health, 904 F.2d at 168.

Moreover, even after this lawsuit was commenced on 
August 12, 1988, Mr. Macklowe and the Company still did not 
include a single black model in their advertisements. They only 
deemed it finally necessary to display the Equal Housing 
Opportunity Logo on all white ads which ran from September to 
December of 1988. This is the first time that defendants made 
any effort to comply with the law relating to the regulation of 
real estate advertising. However, they did not do it correctly. 
The logo did not conform to the size requirement of HUD 
regulations.

There are numerous different images that were created 
by defendants in these advertisements. Each and every image was 
approved by defendants. Harry Macklowe7s extensive involvement 
is evident from the record, from his testimony, from the 
testimony of Rosemarie Roberts, Sheldon Werdiger and from 
numerous memos and letters bearing his handwritten notes. Each 
time a new layout or image was chosen, especially after 
defendants were on notice of the complaints, Harry Macklowe had 
an opportunity to integrate the ad. Even defendants7 own 
witnesses testified that it was easy to include blacks in these 
advertisements (Tr. 938) and that the advertisements would appeal 
to them if blacks were included (Tr. 1423). Dr. Gayle stated

56



that Mr. Macklowe should have included blacks in his 
advertisements after the complaint was filed. Dr. Gayle also 
felt that it might have changed the racial composition of 
Riverterrace if blacks were included in advertisements for that 
building (Tr. 1423). Carol Allen also stated that advertisements 
containing blacks would have appealed to her (Tr. 1020).
Instead, defendants made a conscious effort throughout their 
advertising campaign to exclude black human models, For example, 
the theater ad, containing 75 white people, was not a stock 
photograph, but was separately created by assembling 75 all-white 
people.

Defendants would have this Court believe that this case 
is about the racial composition of the tenancies at Riverterrace 
and Riverbank West. It is not. Whether or not defendants had a 
certain percentage of blacks in their buildings is not relevant 
to the effect of the advertisements on ordinary readers.
Michael Paese, an accountant employed by defendants and called as 
their witness testified that a $20,000 income would qualify a 
person to live in Riverbank West in a one bedroom apartment with 
a roommate (Tr. 1359), and that an income of $17,500 would 
qualify one person to share an efficiency. Defendants' own 
evidence demonstrates that there are only 9 percent blacks living 
at Riverbank West, but defendants did not calculate what 
percentage of the New York City population was black and earned 
$20,000. Incorrectly, defendants used an income of $35,000 as

57



. 14the relevant income bracket.
Significantly, defendants did not present any figures 

about racial composition of Riverterrace. The only evidence was 
the testimony of Dr. Gayle, defendants' own witness who said he 
knew of only two or three other families at Riverterrace who were 
black (Tr. 1421).

The record demonstrates that Mr. Macklowe personally, 
and The Harry Macklowe Real Estate Company, Inc. intended to 
exclude non-white models from their advertisements for 
Riverterrace and Riverbank West. See Statement of Facts, 5? 120- 
133, supra.

POINT III
PLAINTIFFS HAVE PROVEN COGNIZABLE 
INJURY BY WHICH THEY WERE DAMAGED 
UNDER SECTION 3604(c)

A. Individual plaintiffs established that they were 
substantially insulted and distressed by the 
advertisements._________________________________

Contrary to defendants' argument on summation, this 
record demonstrates that the individual plaintiffs' humiliation,' 
indignation or distress was not caused by 200 years of racial 
discrimination in America (Tr. 1756) . It was caused by Mr. 
Macklowe's and HMRE's advertisements. As Times readers and 
homeseekers in the New York Metropolitan area, plaintiffs were 
members of the specific audience to whom the Macklowe advertising 
was deliberately distributed, and they were directly injured when 14

14 .Their own exhibit demonstrates that there are 16 percent 
blacks in the $20,000 and above bracket. They had only 9 
percent.

58



that discriminatory advertising reached them and had its damaging 
effect.

Plaintiffs have proven a personal and concrete injury. 
As the record clearly shows, among other things, that the Ragins 
and the Cuylers were four black homeseekers in the New York 
metropolitan area in which Harry Macklowe and HMRE were marketing 
Riverterrace and Riverbank West from 1985 to 1988 (Tr. 170, 380) 
that they reviewed the Sunday New York Times7 real estate section 
regularly in connection with their housing search (Tr. 170, 182,
3 80 and 397) ; and that as a result of viewing the advertisements, 
they were discouraged, offended, and deprived of their statutory 
right to nondiscriminatory advertising. These facts not only 
plainly establish their standing under Havens Realty Coro, v. 
Coleman. 455 U.S. 363 (1982), as discussed in Point.I, and 
demonstrate that they were "ordinary readers" as defined by
relevant caselaw, but also that they were direct victims of Mr.
Macklowe's and the Company's discriminatory advertising, and 
suffered cognizable injury. "As a matter of law, if a plaintiff’ 
establishes that he or she actually read the advertisements in 
the normal course and that he or she was substantially insulted
and distressed by the ads, injury has been proven" (Jury Charge
at Tr. 1850) .

Luther Ragin described his reaction to defendants 
advertisements as a feeling that defendants were hanging out a 
sign saying that blacks need not apply (Tr. 230) . Mr. Ragin 
stated that it was the continuous depiction of only white models

59



that offended him, not any isolated advertisement depicting a 
single white model (Tr. 210-211). The advertisements were 
particularly infuriating to Mr. Ragin after the administrative 
complaint was filed, because it sent him a message that "we don't 
exist, we don't live here, our business isn't wanted" (Tr. 239).

Ms. Ragin described her reaction as first feeling 
anger, then disgust, and finally humiliation. She was angry 
because she didn't like the clear message "that I don't even have 
to think about applying to these places." She was disgusted 
because it is presumptuous and unfair for someone else to make 
that judgment for her, and she was humiliated because she felt 
this was a continuation of discriminatory practices that she had 
hoped no longer existed in the United States (Tr. 341).

These advertisements reminded Ms. Ragin of growing up 
in Cleveland. She described the barricades to integration that 
were erected in Cleveland. Ms. Ragin testified that, "the 
feelings of exclusion, you are not welcome, you are not wanted 
here, were all brought very vividly with these pictures" (Tr.
343) .

For her there was a connection between the all-white
advertisement and this experience. Ms. Ragin testified that,

It was part of the feeling that whenever there was 
housing that is considered affordable or nice or 
something that would be a place that someone would want 
to live, that it either is going to be —  its going to 
be reserved for white people, that the two races are 
not supposed to reside in any close quarters, but the 
moment that happens, something is wrong and there is 
going to be this white flight pattern.

She testified that it was like a message to white people that
60



"you don't have to worry that your neighbors [are] going to be
black ... it's going to be an okay community, it going to be safe
and secure and protected from these other people" (Tr. 345).

She found that advertisements offensive "because I
don't see why anybody should have to feel safe and secure and
protected from people like them who can afford to live there and
have value and appreciation for the property and would want to
live there as well" (Tr. 345).

The advertisements were humiliating because it came to
her in a graphic and visual way "that [she was] not good enough
to live somewhere, that there is something that impugns me as a
person, which because they don't know me it has to be only based
on my race. And that is a humiliating experience" (Tr. 348) .

Renaye Cuyler recalled that looking at these
advertisements reminded her of growing up in Williamsburg,
Virginia, when blacks were not allowed to go to public swimming
pools. She testified that it was like rubbing salt in a wound.
These advertisements, particularly the ones that had a picture of
only Caucasian people in a swimming pool conjured up memories of
Ms. Cuyler's childhood. When Ms. Cuyler gave the following
testimony, it was apparent that her feelings had caused her great
emotional distress when she was asked about her reaction to the
Macklowe advertisements. She testified,

Of being denied access of swimming pools, houses, 
recreational facilities of all kinds. I come from the 
South. Seeing advertisements like this were both 
humiliating and degrading. And the best thing I can 
say, its like rubbing salt in a wound; the continued 
publication, particular when it comes to housing,

61



reminded of rubbing salt in a wound. [Ms. Cuyler 
paused to compose herself.] Pardon me. And that 
continued to be my reaction every time I saw these 
advertisements.

(Tr. 386)
When Jerome Cuyler saw these advertisements he was 

offended and hurt. He testified that he grew up in a segregated 
neighborhood, but he worked his way out of it, by not complaining 
and by achieving significant success in his life. These 
advertisements made him feel that despite all of his 
accomplishment and all of the obstacles he had to overcome in his 
life, he was still not good enough and would never be good enough 
because of the color of his skin. Mr. Cuyler testified that, 
"having come through the system, gone through and done what is 
expected of an individual who wants to improve society and 
himself, only to find in this period of time that not much has 
changed insofar as the subtle messages gets in advertising." (Tr. 
401)

Jerome Cuyler also testified that advertisements like 
these made him concerned that his two children will be subjected 
to the same kind of discriminatory messages (Tr. 401).

B. The Open Housing Center was forced to expend
resources as a result of defendants' advertisements 
which would have been spent on other services._____

The Open Housing Center has been in business for over
25 years. It is the only fair housing center in New York City
and during the time this case was being investigated it had only
a three person staff (Tr. 423-424). The evidence demonstrated

62



how significantly all of the OHC's programs, including 
counseling, giving speeches, putting together publications, 
rendering individual assistance to those seeking housing, were 
interfered with by the activities that were required to try to 
stop Harry Macklowe and his company from continuing to advertise 
with only whites.

Phyllis Spiro alone spent 150 to 200 hours of her time 
on this matter. This time was spent on answering discovery 
requests, attended meetings, conferences and depositions, 
reviewing newspapers and coordinating plaintiffs' meetings. This 
was time that was taken away from other projects of the Open 
Housing Center, including extensive counseling of clients, 
updating booklets, investigating claims, conducting educational 
and outreach programs and supervising testing work -(Tr. 419,
426). Ms. Spiro testified that, preparation for this lawsuit 
took away whole blocks of her time. She concluded that "[t]he 
conflict was just very difficult." (Tr. 429).

The evidence demonstrated that defendants' action 
depleted the resources of the Opening Housing Center, which the 
organization would have otherwise devoted to its regular 
programs. The Open Housing Center thus suffered a concrete 
injury and well deserves to be compensated.

63



POINT IV

PLAINTIFFS SHOULD BE 
AWARDED COMPENSATORY DAMAGES

The record demonstrates that individual plaintiffs saw 
the advertisements published by defendants and that they were 
injured by these ads. They were distressed, humiliated, 
embarrassed and insulted as a result of Harry Macklowe's and the 
Company's conduct. Individual plaintiffs therefore deserve to be 
compensated for the damages that they suffered.

The advisory jury correctly decided that the Harry 
Macklowe Real Estate Company, Inc. is liable for the injury 
caused to individual plaintiffs and to the Open Housing Center. 
The jury was correct to assess that each individual plaintiff 
should be compensated for his or her injury in the amount of 
$25,000, and this Court should adopt this award. The jury was 
also correct in assessing that the Open Housing Center should be 
compensated in the amount of $100,000. The record demonstrates 
that the Open Housing Center suffered concrete injury proximately 
caused by defendants' racially discriminatory advertisements. The 
jury's compensatory award was reasonable and the product of 
careful deliberations after hearing 16 days of trial testimony.
It was neither inadequate nor excessive.

The advisory jury erred however in its finding Harry 
Macklowe not liable to the plaintiffs. The record demonstrates 
that Harry Macklowe as owner of Riverterrace and Riverbank West 
was personally involved in the advertising campaign and 
personally intended to exclude black human models from his ads so

64



as to achieve a racially homogeneous environment in his 
buildings. See 5 5  120-135 of the Statement of Facts. Such a
goal was in Mr. Macklowe's personal financial interest.
Therefore, this Court should find Mr. Macklowe liable to the 
plaintiffs and award an additional amount of compensatory damages 
to individual plaintiffs and to the Open Housing Center to 
compensate them for the injury they suffered as a result of Mr. 
Macklowe's conduct.

POINT V
PLAINTIFFS SHOULD BE 

AWARDED PUNITIVE DAMAGES
The Company and Mr. Macklowe, too, by their intentional 

and malicious actions more fully set forth in 55 68-99 of the 
Statement of Facts and in Point 11(D) supra. demonstrated 
"callous disregard" for the Fair Housing Act. To deter future 
violations and to ensure that defendants would not view 
compensatory damage award in this case as the cost of "doing 
business" punitive damages are warranted.

However, the amount of jury's punitive damage award was 
incorrect as they jury fell victim to defendants' Company 
mischaracterization of the Company's financial condition. The 
testimony of Mr. Johanesen, Chief Financial Officer of the 
Company regarding the Company's financial condition was simply 
not credible. It was based on the balance sheet prepared two 
days before Mr. Johanesen testified. The Company did not produce 
a single audited financial statement. The financial statement it 
did produce reflected a $5 million dollar loan from Harry

65



Macklowe to the Company which was given without a promissory 
note. The Company's CFO testified that he did not know when, if 
at all, the loan was to be repaid to Mr. Macklowe or what the 
interest rate, if any, was. Even if this Court were to conclude 
that the Company had a negative net worth, this does not mean 
that a small punitive amount should be awarded.

In order to deter future violations by the Company a 
higher award than the $62,500 awarded by the advisory jury is 
needed. This amount of punitive damages need bear no ratio or 
relationship to the amount of compensatory damages. Guccione v. 
Hustler Magazine, Inc.. 632 F. Supp. 313 (S.D.N.Y. 1986) (Sweet, 
J.) (83 Civ. 8020); N.Y.P.J.I. §§ 2:278 and 3:38. The Court may
wish to consider as a guideline in determining an appropriate 
punitive award that defendants spent about $ 1 million dollars in 
each year of their discriminatory advertising campaign.

A punitive damage award is also warranted against 
defendant Harry Macklowe. Mr. Macklowe's malicious and 
intentional conduct in callous disregard of the Fair Housing Act 
is demonstrated by the record. See Statement of Facts, 55 120-
135, and Points 11(B) and 11(D) of the Argument. This Court 
should hold a hearing on Mr. Macklowe's net worth before it can 
decide what amount of punitive damages is needed to prevent Mr. 
Macklowe from violating the Fair Housing Act in the future.

66



POINT VI

PLAINTIFFS ARE ENTITLED TO INJUNCTIVE RELIEF 
The record demonstrated the intentional, reckless and 

malicious nature of defendants' conduct. This Court should 
therefore issue a corrective injunction ensuring that defendants 
do not violate the Fair Housing Act in the future and requiring 
defendants to integrate future human model advertisements.
Courts have recently shown a great willingness to issue broad 
affirmative orders in Title VIII cases brought by individual 
homeseekers. Stewart v. Furton. 774 F.2d 706, 708 (6th Cir.
1985); Marable v. Walker. 704 F.2d 1219, 1221 (11th Cir. 1983); 
Rogers v. 66-36 Yellowstone Blvd, Co-op. Owners. 599 F. Supp. 79, 
81-87 (E.D.N.Y. 1984).

Specifically this Court should order that defendants 
comply with the Fair Housing law and conduct all of its future 
advertising practices in a manner that does not discriminate on 
the basis of race, color, national origin, sex or religion or 
otherwise violate the Fair Housing Act. The Court should also 
require that all future advertisements published by or on behalf 
of defendants that depict human models meet the following 
requirements:

(a) Advertisements which depict one or two human 
models
At least one out of every three such 

advertisements published for a particular residential development 
or complex that appear in a given publication, on television or

67



other medium, should contain one or more black human models. At 
least one out of every three such advertisements published for 
multiple developments or no particular development that appear in 
a given publication, on television or other medium, shall contain 
one or more black human models.

(b) Advertisements which depict three or more human
models

In each such advertisement, black human models shall 
constitute at least 33% of the human models in the ad —  i.e., 
one black in an ad which depicts three models; two blacks in an 
ad which depicts four, five or six models; three blacks in an ad 
which depicts seven, eight or nine models; etc.

(c) Ecual Social Setting
Black human models shall be portrayed in an equal 

social setting with the white human models in any particular 
advertisement or series of advertisements published by or on 
behalf of defendants.

(d) Equal Housing Opportunity Logo 
All advertisements published by or on behalf of 

defendants shall include an Equal Housing Opportunity logo in 
accordance with the size requirements promulgated by HUD at 24 
C.F.R. 109.30(a) (and Appendices).

POINT VII
THE 1988 AMENDMENTS GOVERN PUNITIVE 

DAMAGES AND ATTORNEYS' FEES
With regard to the amount of punitive damages and the 

availability of attorneys fees without inquiry into plaintiffs'
68



ability to pay, the 1988 amendments to the Fair Housing Act
,, . 15govern this case.

The cases that have examined these 1988 amendments have 
uniformly concluded that the amendments, which affect only 
aspects of the available remedy and not defendant's substantive 
rights, are to be applied to cases pending at the time of the 
effective date of the amendment. See. Sassower v. Field. 138 
F.R.D. 369, 372 (S.D.N.Y. 1991), and United States v. Rent 
America. Coro.. 734 F.Supp. 474 (S.D.Fla. 1990) .

As the Supreme Court held, when analyzing a statute 
that changed the law with regard to the imposition of attorneys 
fees in civil rights cases, "a court is to apply the law in 
effect at the time it renders its decision, unless doing so would 
result in manifest injustice or there is statutory direction or 
legislative history to the contrary." Bradley v. Richmond School 
Board. 416 U.S. 696, 711 (1974) (applying retroactively a statute 
allowing a successful school desegregation plaintiff to obtain 
attorneys fees).

This is particularly true when the change in the law 
"involves a procedural matter such as attorneys' fees or 
sanctions. . . ." Sassower v. Field. 138 F.R.D. 369, 372 
(S.D.N.Y. 1991). In Sassower. Judge Goettel applied the 1988

At the time this case was begun, the Fair Housing Act 
limited punitive damages to a cap of $1000 and required the Court 
to inquire into plaintiff's ability to pay attorneys fees before 
awarding such fees. 42 U.S.C. § 3612(c) (1968). In Public Law
100-430, passed September 12, 1988, and effective March 12, 1989, 
Congress removed both the cap and the limitation upon attorneys 
fees.

69



amendment to the Fair Housing Act concerning attorneys' fees to 
award such fees to the defendant, even though the original act in 
effect at the time plaintiff instituted its lawsuit did not 
provide for fees to be paid to a prevailing defendant.

While this Court has held in this case that the 1988 
amendments may not be applied "retroactively” to revive a claim 
that is time-barred under the original statute, Raqin v. Harry 
Macklowe Real Estate Co., Inc.. 126 F.R.D. 475, 479 n.l (S.D.N.Y. 
1989), in remedial matters which do not revive otherwise barred 
claims and affect only the nature of the remedy, new laws are to 
be applied to pending cases absent a showing of manifest 
injustice to the parties affected. Bradley v. Richmond School 
Board. supra. 16

This is also the conclusion of the most comprehensive 
judicial analysis of the "retroactivity" of the 1988 amendments 
to the Fair Housing Act to date, United States v. Rent America. 
Corp., 734 F.Supp. 474 (S.D.Fla. 1990). In that case, the Court 
applied to a pending action the 1988 amendment extending the 
Attorney General's authority to sue for money damages as well as 
for injunctive relief.

In Raqin, this Court relied upon Ocean & Atmospheric 
Science. Inc, v. Smvth Van Line. Inc.. 446 F.Supp. 1158 (S.D.N.Y. 
1978) , which examined the retroactivity question only in the 
context of whether an act extending a statute of limitations should 
be given retroactive effect. As the Seventh Circuit noted in 
Village of Bellwood v. Dwivedi. 895 F.2d 1521, 1527 (7th Cir. 
1990), the presumption of Bradley "is reversed when it is proposed 
to use a newly enacted statute of limitations to revive a 
previously barred claim." The Ocean & Atmospheric Science case 
does not deal with the issues raised in the text.

70



HUD's regulations are in accord. Implementation of the 
Fair Housing Amendments Act of 1988, Final Rule, 54 Fed. Reg. 
3232, 3259 (Jan. 23, 1989) provides: 17

The general rule of statutory construction is 
that remedial and procedural legislation not 
affecting vested rights must be applied to any 
claim cognizable under the prior law that is 
pending on the effective date or that is filed 
thereafter. Bradley v. Richmond School Board. 416 
U.S. 696, 715-16 (1974). While it is true that 
statutes that affect substantive rights ordinarily 
may not be applied retroactively, . . . this 
principle has no applicability here. The 1988 
Amendments . . .  do not create new legal duties or 
responsibilities. Rather, they merely provide a 
new process by which aggrieved persons may enforce 
existing rights protected under Title VIII. . .
Because the new remedies and enforcement 
procedures do not affect vested rights, 
retroactive application is entirely appropriate 
unless a manifest injustice would result.

That same analysis governs here.
Bowen v. Georgetown University Hospital. 488 U.S. 204

(1988), relied upon by defendants, does not require a different
result. At issue in Bowen was the propriety of new
administrative regulations that retroactively affected
substantive rights —  the right to reimbursement under the
Medicare statute.

Bowen does not cite or make any reference to Bradley or 
to the question of whether subsequent statutory changes in the 
available remedy should be applied to pending cases in the 
absence of any clear congressional direction as to retroactivity.

HUD's regulations in this area are entitled to deference, 
whether or not specifically enforceable. Racrin v. New York Times 
Co.. 923 F.2d at 1000 n.l; Fenwick-Schafer v. Sterling Homes Corp.. 
774 F.Supp. 361, 365 (D.Md. 1991).

71



Bowen was concerned exclusively with the application of a
substantive administrative regulation. While the Supreme Court 
has noted that there is an "apparent tension" between Bowen and 
Bradley. Kaiser Aluminum & Chemical Corporation v. Boniorno, 494 
U.S. 827, 110 S.Ct. 1570, 1577 (1990), a tension the Court has 
not resolved, and much judicial and other ink has been spilt over 
the two cases, particularly as applied to the Civil Rights Act of 
1991, this Court need not entry that fray.

The case law in this Circuit is clear: the "manifest 
injustice" standard of Bradley—  the law in effect at the time 
of the 1988 amendments —  applies to issues of remedy in the 
absence of any clear congressional intent as to retroactivity. 
Jackson v. Bankers Trust Company. 1992 U.S.Dist. LEXIS 6290 
(S.D.N.Y. May 4, 1992) (Martin, J.) (a copy of this decision is 
attached as Addendum C), and Croce v. V.I.P. Real Estate. Inc.. 
786 F.Supp. 1141 (E.D.N.Y. 1992) (Spatt, J.).

That test reguires the application of the 1988 
amendments to the case at bar. There has been no change in the 
substantive law —  the legality of defendants' conduct has not 
been affected by the 1988 amendments. Nor are defendants 
suddenly exposed to new and unanticipated liabilities as a result 
of their already prohibited conduct: attorneys fees and punitive
damages were available under the old act.

All that has changed are two aspects of the potential 
damages that can be awarded —  the amount of punitive damages and 
the imposition of attorneys fees without regard to plaintiffs'

72



own finances. Defendants have known of plaintiffs' position on 
these aspects of damages throughout the case and have been able 
to present their defenses to it.

Thus, in the words of the Court in United States v.
Rent America. C o m . . 734 F.Supp. at 480, "retroactive application 
of the [1988 amendments] does not impose additional nor 
unforeseeable obligations on the Defendants in the present case. 
In light of these findings, . . . the Bradley test is satisfied."

The 1988 amendments, accordingly, should govern the 
questions of attorneys fees and punitive damages in this case.

73



CONCLUSION
It is respectfully requested that the Court adopt the

verdict of the advisory jury to the extent requested, increase 
the advisory jury's award of punitive damages, enjoin defendants 
as requested, that judgment be made against both Harry Macklowe 
and The Harry Macklowe Real Estate Company, Inc. and that
plaintiffs be entitled to their attorneys' fees, expenses and
costs.
Dated: New York, New York

July 15, 1992

Respectfully submitted,

Thomas A. Holman.(TAH 2094)
Marshall Beil
Alla Roytberg
LEFRAK NEWMAN & MYERSON
575 Madison Avenue
New York, New York 10022
(212) 421-7633
Kerry Alan Scanlon 
NAACP LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC.
1275 K Street, N.W. Suite 301 
Washington, D.C. 20005 
(202) 682-1300
Attorneys for Plaintiffs

74



A ( ■ '



ADDENDUM A

NAME OF PLAINTIFF IMAGE IN AD DATE OF AD EXHIBIT
NUMBER

TR.
PAGE

LUTHER RAGIN RBW —  THEATRE 04/26/87 4B 205
05/03/87 5B 208
05/17/87 108 230

RBW —  woman on 08/30/87 6B 240
sand 09/6/87 7B 192

04/24/88 24 240

RBW —  woman 09/13/87 8B 209
with a 09/27/87 10B 2 1 1
beach bag 10/4/87 11B 244

RBW —  lipstick 10/11/87 12B 216
10/18/87 13B 234
10/25/87 14B 234
11/01/87 15B 234
11/22/87 16B 235
11/29/87 17B 235
12/06/87 18B 235
02/07/88 19B 235
04/17/88 23B 235
saw them 
from Oct. 87 
to Apr. 8 8  
about the 
time they 
ran in NYT

-

RBW —  skier 03/06/88 2 0B 243
03/13/88. 2 IB 243

RBW —  woman in 05/01/88 25B 243
water 
"Get It"

05/22/88 26B 243

RBW —  "Beauty 1 0 /2 2 / 8 8 28B 245
and the 1 1 /6 / 8 8 29B 245
Best" 1 1 /2 0 / 8 8 3 0B 245

1 2 /1 1 / 8 8 3 IB 245

RT —  "Time & 02/15/87 93B 251
Place" 03/22/87 94B 251

RT —  "Live it 1986 252
Up" 256

RT —  "Meet me" 1986
Rt —  "HOME" 05/11/86 109 248

1



NAME OF PLAINTIFF IMAGE IN AD DATE OF AD EXHIBIT
NUMBER

TR.
PAGE

DEBORAH FISH RAGIN RBW —  THEATRE 4/26/87 4B 370
05/03/87 5B
05/17/87 108

RBW —  woman on 08/30/87 6B 370
sand

RBW —  lipstick 10/18/87 13B 37010/25/87 14B 374
11/01/87 15B11/22/87 16B
12/06/87 18B02/07/88 19B
04/17/88 23B

RBW —  woman in 05/01/88: 25B 374
water 05/22/88 26B
"Get It"

RT —  "Time & 02/15/87 93B 370
Place" 03/22/87 94B

RT—  "HOME" 05/11/86 109 361

2



NAME OF PLAINTIFF IMAGE IN AD DATE OF AD EXHIBIT
NUMBER

TR.
PAGE

RENAYE CUYLER RBW —  THEATRE 04/26/87
05/03/87

4B
5B

381

RBW —  woman on 
sand

08/30/87 6B 381

RBW —  woman 
with a 
beach bag

09/27/87 10B 381

RBW —  lipstick 10/18/87 
04/17/83 
also saw 
on buses 
and bus 
stops

13B
23B

381

RBW —  woman in 
water 
"Get It"

05/22/88 26B 381

RBW —  "Beauty 
and the 
Best"

1 0 /2 / 8 8
1 1 /6 / 8 8
1 2 /1 1 / 8 8

28B 
29B 
3 IB

381

RT —  "Time & 
Place"

02/15/87 
03/22/87 
saw more 
than once

93B
94B

381

RT—  "HOME" 05/11/86 109 381

3



NAME OF PLAINTIFF IMAGE IN AD DATE OF AD EXHIBIT
NUMBER

TR.
PAGE

JEROME CUYLER RBW —  THEATRE 04/26/87 4B 398
05/03/87 5B

RBW —  woman on 08/30/87 6B 398sand
RBW —  woman 09/13/87 8B 398with a 09/27/87 10B

beach bag 09/20/87 105
RBW —  lipstick 10/18/87 13B 398

04/17/88! 23B
RBW —  woman in 65/22/88 26B 398

water saw on 404
"Get It" buses

RBW —  "Beauty 1 0 /2 / 8 8 28B 398
and the 1 1 /6 / 8 8 29B
Best" 1 2 /1 1 / 8 8 3 IB

09/25/88 106
RT —  "Time & 02/15/87 93B 398Place" 03/22/87 94B

RT—  "HOME" 05/11/86 109 398

4



Addendum B
* * .• £ * * *  H fc j *  - ’s *



1990 U.S. Dist. LEXIS 361 printed in FULL format.

PAGE 2

LUTHER M. RAGIN, JR. OEBORAH FISH RENAYE B. CUYLER. JEROME 
F. CUYLER, OPEN HOUSING CENTER, INC., and NATIONAL 
ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE. 

Plaintiffs v. GILBERT CHARLES BEYLEN, INCORPORATED. THE 

RELATED COMPANIES, INC.. PUNNING INNOVATIONS, INC., HOUSING 
INNOVATIONS. INC., and RECTOR PUCE L. ASSOCIATES L.P.. 

Defendants

No. 89 Civ. 8558 (CSH)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF

NEW YORK

1990 U.S. Dist. LEXIS 361

January 9, 1990, Decided; January 17, 1990. Filed

COUNSEL; [*1]

WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW, Washington, D.C.,

Of Counsel: Kerry Alan Scanlon, Esq., HILL, BETTS & NASH, New York, New York, Of 

Counsel: Thomas A. Holman, Esq., Attorneys for Plaintiffs.

SHIFF & TISMAN, New York, New York, Of Counsel: Stephen E. Tisman, Esq.,

Attorneys for Defendants. Gilbert Charles Beylen, Inc.

BATTLE FOWLER, New York, New York, Of Counsel: Donald C. Moss, Esq., Lori B. 

Katz, Esq., Attorneys for Defendants, The Related Companies, Inc., Planning 
Innovations, Inc., Housing Innovations, Inc., and Rector Place L, Associates, 

L.P.

0PINI0N8Y: HAIGHT, JR.

OPINION: MEMORANDUM OPINION AND ORDER

CHARLES S. HAIGHT, JR., UNITED STATES DISTRICT JUDGE

The four individual plaintiffs in this case are black persons and citizens of 

the United States. Plaintiffs Open Housing Center, Inc. and National Association 

for the Advancement of Colored People number among their objectives the 
elimination of unlawful racially discriminatory housing practices. In a 
complaint filed on December 2, 1988 plaintiffs charge defendants with such 
practices, in violation of Title VIII of the Civil Rights Act of 1968, 42 U.S.C. 

@@ 3601 et. seq. (the Fair Housing Act or "FHA”), and the [*2] Civil Rights 

Acts of 1866 and 1870. 42 U.S.C. @@ 1981 and 1982.

Plaintiffs allege that defendant Gilbert Charles Beylen, Inc. ("GCB”), "is a 
marketing and sales agency" incorporated under New York law. Complaint, para. 7. 

Defendants The Related Companies, Inc., Rector Place L. Associates L.P.,

Planning Innovations, Inc., and Housing Innovations, Inc. are alleged to be the 

developers, owners or sponsor of Battery Pointe, a condominium located at 300 

Rector Place in New York City. Complaint, paras. 8-10.



1990 U.S. Dist. LEXIS 361. *2
PAGE 3

LEXSEE

The complaint alleges that "[s]ince January 1986 and before, and continuing 
to within 180 days of this complaint," GCB "has, alone, or in convert with 

others, frequently made, printed, published and/or caused to be made, printed, 

or published" pictorial advertisements appearing in the real estate section of 

the New York Times. A substantial amount of this advertising has depicted human 
models, for such properties as Battery Pointe, and other buildings known as the 
Strand, the Royale, the Dunhill, Parc Place, Cityspire, the Stanford, and 1555 
Perry Street, all located in Manhattan. Plaintiffs allege:

In most if not all cases, defendant [GCB] was the exclusive marketing and sales 
or [*3] rental agent for these properties and was hired, among other 
reasons, to help produce advertising compaigns designed to sell or rent units in 
those buildings.

Plaintiffs allege that "none or very few" of the human models depicted in 

these advertisements were black; and, that prior to the filing of administrative 
complaints against GCB in June 1987, the advertisements failed to display the 
Equal Housing Opportunity Logo type referred to in the Fair Housing Advertising 

Regulations promulgated by the U.S. Department of Housing and Urban Development 
appearing at 24 C.F.R. @ 109.30. Complaint, paras. 11-14.

Comparable allegations are made against defendant Related Companies for 
"properties including Battery Pointe and Park Place." Complaint para. 15. If 
defendant Related Companies was involved with any of the other properties 

referred to in plaintiffs' allegations against GCB, the complaint does not 
specify them.

The comparable allegations against defendants Planning Innovations, Inc., 
Housing Innovations, Inc., and Rector Place L. Associates L.P. appear to relate 
solely to advertising for Battery Pointe.

Defendants now move to dismiss the claims under 42 U.S.C. @@ 1981 and 1982; 
for partial [*4] summary judgment on the basis of the statute of limitations; 
and to strike certain portions of the complaint.

I.
Defendants’ motion to dismiss the claims asserted under @@ 1981 and 1982 is 

granted. See Ragin v. The New York Times Company, 89 Civ. 0228 (CSH) (S.D.N.Y.,

December 18, 1989) at slip op. 28-31 and cases cited.

II.

Plaintiffs state viable claims against defendants for violations of the FHA,

42 U.S.C. @ 3604 (c). Ragin v. The New York Times Company, supra, at slip on.
5-21 and cases cited.

Defendants move for summary judgment dismissing much of the complaint on the

basis of time bar. The relevant statute of limitations appears in the FHA at @

3612(a) which, at the time the action was commenced within one hundred and 

eighty days after the alleged discriminatory housing practice occurred . . . ." 

Defendants argue, in substance, that plaintiffs can complain only of 
advertisements appearing in the New York Times within 180 days of the 

commencement of the action on December 2, 1988. If that contention is correct, 

it would remove from the complaint and bar proof concerning a number of the



1990 U.S. Dist. LEXIS 361, *4
PAGE 4

LEXSEE

buildings referred to in plaintiffs' allegations.

Plaintiffs respond that the complaint [*5] charges defendants with a 

continuing violation of the FHA against which the statute of limitations would 

not serve as a bar. They rely upon Havens Realty Corp. v. Coleman, 455 U.S. 363 
(1982), the other cases, and contend that the statute of limitations is 
satisfied in respect of a particular defendant so long as that defendant caused 

to be published one advertisement violative of the statute within 180 days of 
the filing of the complaint.

Plaintiffs are correct. In Havens Realty Corp., defendant was charged with 
violating 8 3604(a) in refusing to rent apartments because of race and color. 

Plaintiff alleged five specific incidents of refusal to rent: four occurring 
more than 180 days before the complaint was filed, and the fifth within 180 days 
of the filing. The Supreme Court held that none of the alleged incidents was 
time-barred:

. . . where a plaintiff, pursuant to Fair Housing Act, challenges not just one 

incident of conduct violative of the Act, but an unlawful practice that 

continues into the limitations period, the complaint is timely when it is filed 
within 180 days of the last asserted occurrence of the practice.

455 U.S. at 380-81 (footnote omitted).

See [*6] also Heights Conmunity Congress v. Hilltop Realty, Inc., 774 F.2d 
135 (6th Cir. 1985), cert, denied U.S. 1019 (1986) (where complaint alleged 
continuing pattern of "racial steering" conduct violative of Title VIII, and 

only one violation occurred during 180 limitations period, complaint held timely 
as to all violations alleged).

Defendants at bar seek to distinguish Havens Realty on the ground that there, 

"the allegations and proof showed illegal acts —  not acts which are on their 

face neutral and non-discriminatory —  continuing into the limitations period." 

Reply brief at 13. Furthermore, defendants characterize the publication of each 
advertisement at bar as "a discrete act", with "no continuing element to the 
act." Id. at 14.

That analysis is doubly flawed. First, it assumes that the merits will be 

resolved in defendant's favor: the factfinder will conclude the ads did not 
violate the statute. That may be the ultimate result, but for purposes of an 

affirmative defense based upon the statute of limitations, I assume the truths 
of plaintiffs’ allegations. Second, advertisements are not regarded as 
unconnected, "discrete" acts if they form part of a defendant's advertisement 

[*7] policy or practice. Viewed as a whole, that policy or practice may 

demonstrate a violation of section 3604(c), even if a particular advertisement 
viewed alone would not. Ragin v. The New York Times Company, supra, at slip op. 
18-20.

GCB stresses that it acted as a real estate marketer and sales agent for a 

number of different owners and developers. But that does not change the statute 
of limitations analysis if GCB sufficiently controlled or contributed to the 

advertisements to characterize them as a continuing practice of GCB. If that was 
the case, and if plaintiffs also prove that the advertisements violated the 

statute, then GCB will be shown to have participated in a continuing violation, 

and the defense of time-bar is not available. Whether or not plaintiffs will



1990 U.S. Oist. LEXIS 361, *7
PAGE 5

LEXSEE

succeed in proving these allegations is, of course, another matter. But the 
affirmative defense addresses the face of plaintiff's pleading; and for the 
reasons stated, that part of defendants' motion is denied.

III.

I decline to strike any part of the complaint. The complaint seeks only 

declaratory and injunctive relief, so there is no jury to inflame by the 
language of the pleading. Defendants' arguments suggest [*8] some issues of 
actnissibility, but these may be left for resolution at trial.

Conclusion

The complaint does not state in separate counts plaintiffs' claims under @@ 
1981 and 1982 on the other hand, and under the Fair Housing Act on the other. 
Therefore it is sufficient to say for present purposes that insofar as the 
complaint asserts claims under @0 1981 and 1982, it is dismissed with prejudice.

To that extent defendants’ motions are granted. They are otherwise denied.

It is so ORDERED.

Dated: New York, New York 

January 9, 1990



Addendum C
«ii-.>*»■»:.-■ .K iW - i' r-&i*tucA.-*Si



ARDRIL EVELYN JACKSON, Plaintiff, v. BANKERS TRUST COMPANY,

Defendant.

88 Civ. 4786 (JSM)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF

NEW YORK

1992 U.S. Dist. LEXIS 6290

’ . PAGE 2

1992 U.S. Oist. LEXIS 6290 printed in FULL format.

April 27, 1992, Decided 
May 4. 1992, Filed

UDGES: [*1] MARTIN

PINIONBY: JOHN S. MARTIN

PINION: OPINION and ORDER

OHN S. MARTIN, JR. U.S. District Judge.

Prior to enactment of the Civil Rights Act of 1991 (hereinafter the ”1991 
,ct" or the "Act"), which was signed into law on November 21, 1991, this Court 
lismissed plaintiff's employment discrimination claims brought under 42 U.S.C. 8 
981. Urging a retroactive application of the 1991 Act, the plaintiff now moves 

lursuant to F.R.C.P. 15(a) to reinstate her 8 1981 claims and to add claims for 

ixpert witness fees, jury trial, and punitive damages. For the reasons 
:ontained herein, the motion to reinstate the 8 1981 claims are denied and the 

lotion to add claims for fees, jury trial, and punitive damages is granted.

FACTUAL BACKGROUND

On July 11, 1988 plaintiff Ardril Evelyn Jackson ("Jackson") commenced this 
iction alleging that Bankers Trust Company ("Bankers Trust") discriminated 
igainst her in employment on the basis of race and retaliation. Her suit was 

irought under Title VII of the Civil Rights Act of 1964, as amended. 42 U.S.C. 8 

!000e et seq. and the Civil Rights Act of 1866, 42 U.S.C. 8 1981.

Bankers Trust moved to dismiss, inter alia, plaintiff's 8 1981 claims for 

:ailure to [*2] state a claim upon which relief can be granted, contending 

:hat plaintiff's claims for promotion, transfer and assignment, salary, and 

jonus were barred by the Supreme Court's decision in Patterson v. McLean Credit 

Jnion, 491 U.S. 164, 109 S.Ct. 2363 (1989). nl

- - - - - - - - - - - - - - - - -  -Footnotes- - - - - - - - - -  —  - - - - - -

nl In Patterson, the Supreme Court read 8 1981 as proscribing discriminatory 

:onduct only in the formation of contracts. As such, the Court held that racial 

iarassment during employment is not actionable under 8 1981.

-End Footnotes- - - - - - - - - - - - - - - - -

By Report and Recomnendation dated March 29, 1991, Magistrate Bernikow found 

that Patterson barred plaintiff's claims as they were then pleaded, but



cotmiended that plaintiff "be given leave to replead those claims alleging 
scrimination in promotion, transfer and assignment, and salary to conform 
th the Supreme Court's pronouncement in Patterson. By Memorandum Opinion and 
der dated April 29, 1991, this Court affirmed Magistrate Bernikow's Report and 

icomrendation in all respects.

Subsequently, [*3] Jackson submitted an Amended Complaint to cure the 
■fects noted by Magistrate Bernikow. Bankers Trust then moved to dismiss. 8y 
linion and Order dated August 1, 1991, the Court granted Bankers Trust's second

ition to dismiss. The Court dismissed Jackson's amended bonus claim on the

•ound that plaintiff had not been granted leave to replead that issue and had 

liled to allege any facts sufficient to maintain that claim. The salary claim 

is dismissed as being timed barred under the applicable statute of limitations, 

jstly, the transfer and promotion claims were dismissed on the ground that 
laintiff had failed to allege that she had applied for an available position 

id as such had failed to cure the defect of the original complaint.

Urging a retroactive application of the 1991 Act, Jackson now seeks to 
“instate her @ 1981 claims and add claims for expert witness fees, jury trial, 

nd punitive damages.

DISCUSSION

The Motion to Reinstate the @ 1981 Claims

Jackson first seeks reinstatement of her @ 1981 claims. She argues that 
hese claims were previously dismissed on the ground that they failed to state a 

ause of action under Patterson, a case now [*4] congressionally overruled 

y the 1991 Act. n2 As such, she maintains that the claims should be reinstated 

s viable claims under the 1991 Act. which is to be applied retroactively.

................................  -Footnotes- - - - - - - - - - - - - - - - - -

n2 in light of the Supreme Court's decision in Patterson, Congress amended @ 
981 to define the making and enforcement of contracts as the making, 
lerformance, modification and termination of contracts, and the enjoyment of all 

lenefits, privileges, terms, and conditions of the contractual relationship.

.991 Civil Rights Act @ 101.

PAGE 3

1992 U.S. Dist. LEXIS 5290. *2 LEXSEE

----------------- -End Footnotes------------------ —

Had the Court dismissed Jackson's I? 1981 claims solely on the ground that 
:hey were barred by Patterson, we would find it necessary to address the issue 
>f whether the 1991 Act should be applied retroactively to these claims. As the 
natter stands, however, Jackson’s 0 1981 claims were dismissed on grounds that 
:hey were insufficiently plead and/or untimely. As such, the retroactive 

ipplication of the 1991 Act as to these claims is not at issue.

For example, Jackson's bonus claim was dismissed on [*5] the ground that 

the plaintiff had failed to allege any facts which could support a bonus claim. 

3laintiff alleged that Bankers Trust "had a custom, policy and practice of 

saying bonuses . . . .  [and] solely because of plaintiff’s race and color, 

defendant refused to offer any bonus to plaintiff. However, in an affidavit 

sated November 28, 1990, Jackson conceded that she was in a position where 

there was no entitlement to bonuses." In light of this concession, the Court



1992 U.S. Dist. LEXIS 6290, *5

PAGE 4
LEXSEE

included that she had not made out a claim well grounded in fact that she was 
’refused" a bonus. See Jackson v. Bankers Trust Co., No. 88-4786, slip op. 

[S.D.N.Y. Aug. 1, 1991).

Similarly, Jackson’s transfer and promotion claim was dismissed because she 

failed to plead the requisite elements. In order to maintain a racial 
discrimination claim for failure to promote or transfer, a plaintiff must allege 

that: a) she applied and was qualified for an available position; b) she was 
rejected for that position; and c) after she was rejected the defendant either 
:ontinued to seek applicants for the position or filled the position with an 

amployee of a different race. Nothing in the 1991 Act obviates this 
requirement. [*6] In her original complaint, Jackson failed to alleged that 

she applied for a promotion or transfer, and accordingly, we dismissed these 
claims with leave to replead. Thereafter Jackson repleaded these claims. Again 
she failed to allege that she applied for a promotion or transfer, and the claim 

was dismissed.

Lastly, Jackson’s claim for failure to make a salary adjustment at the time 
cf her promotion in 1983 was denied on the ground that it was barred by the 

applicable statute of limitations.

While the Supreme Court's decision in Patterson figured in the Court's 

analysis, not one of the plaintiff's claims was dismissed on the ground that it 
was barred by this decision. Rather, each claim was dismissed either on the 

ground that the claim was insufficiently plead or time-barred. As such, even 
were the Court to determine that the 1991 Act should be applied retroactively to 
these claims, the same result would obtain in that the defects in plaintiff s @ 
1981 claims would not be cured. These claims were insufficient under the law 
prior to the 1991 Act, and they are insufficient under the law subsequent to the 
1991 Act. Accordingly, the Court denies plaintiff’s motion to reinstate [*7] 

her @ 1981 claims.

B. The Motion to Add Claims for Expert Witness Fees, Jury Trial, Punitive 

Damages

Separate and distinct from Plaintiff's motion to reinstate her § 1981 claims 

is her motion to add claims for expert witness fees, jury trial, and punitive 

damages.

Plaintiff contends that the 1991 Act, which amends Title VII to provide the 
right to a jury trial, expert fees, and punitive damages, applies retroactively 

to cases which were pending at the time of the enactment of the Act.

To determine whether a statute should be applied retroactively or only 
prospectively, a court must first turn to the language of the statute itself. 
"Absent a clearly expressed legislative intention to the contrary, that language 

must ordinarily be regarded as conclusive." Kaiser Aluminum & Chemical Corp. v. 

Bonjorno, 494 U.S. 827, 110 S.Ct. 1570, 1575 (1990) (quoting Consumer Product 

Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056 

(1980)).

The effective date of the statute is set forth in @ 402 of the 1991 Act;

(a) In General. —  Except as otherwise provided, this Act and the amendments 

made [*8] by this Act shall take effect upon enactment.



1992 U.S. Dist. LEXIS 6290, *8
PAGE 5

LEXSEE

(b) Certain Disparate Impact Cases. —  Notwithstanding any other provision of 
this Act, nothing in this Act shall apply to any disparate impact case for which 
a complaint was filed before March 1, 1975, and for which an initial decision 

was rendered after October 30, 1983.

Subsection (a), while providing that the 1991 Act takes effect upon 
enactment, gives no indication of whether the Act should be applied 
retroactively or merely prospectively. Indeed, as noted by at least one court, 
"this language could be construed to mean either that the Act should be applied 
to any charge or case pending on or after the date of enactment, or that it 
should be applied only to conduct occurring after that date." Vogel v. City of 
Cincinnati, No. 91-3474, slip op. (6th Cir. March 13, 1992).

In light of this ambiguity, Plaintiff argues that subsection (a) must be read 

in conjunction with subsection (b). Reading these sections in tandem, she 

contends that Congress' exclusion of disparate impact from retroactive effect 
evidences its intent to give other sections retroactive effect. Under any other 

reading, the Plaintiff argues, subsection (b) [*9] would be divested of

meaning. n3 Plaintiff's argument has some merit, and indeed has been pressed by 

several courts. See, e.g., Long v. Carr, No. 88-0263, slip op. (N.D. Ga. Jan. 
31, 1992); Stender v. Lucky Stores, Inc., 780 F. Supp. 1302 (N.D. Cal. 1992); 
Croce v. V.I.P. Real Estate, Inc., No. 89-2121, slip op. (E.D.N.Y. March 21, 
1992). However, absent more, the Court cannot say with positive assurance that 
subsection (b) rises to the level of indicating clear legislative intent that 
the 1991 Act should apply retroactively. n4 Accord McLaughlin v. New York, No. 
89-0924, slip op. (N.D.N.Y. March 5. 1992).

- - - - - - - - - - - - - - - - -  -Footnotes- - - - - - - - - - - - - - - - - -

n3 Another section which would be divested of meaning is Section 109, which 

addresses the protection of extraterritorial employment. The section expressly 

limits its application to conduct that occurs post-enactment.

n4 Our determination that subsection (b) should not be read as settling the 

matter is further supported by our awareness of the purpose of this subsection. 

The legislative record indicates that @ 402(b) was designed to avoid the impact 
of the Act on the litigants in Wards Cove Packing Co. v. Antonio, 490 U.S. 642, 
109 S.Ct. 2115 (1989). See 137 Cong. Rec. S. 15954 [daily ed. Nov. 5, 1991] 

[Senator Murkowski 's letter to colleagues]. As such, it is conceivable that 
Congress' intent was so limited. Khandelwal v. Compuadd Corp., 780 F. Supp.

1077, 1078 (E.D. Va. 1992) (limiting ? 402(b) as responding solely to Wards Cove 
and having no bearing on retroactive application of remainder of Act); Thompson 

v. Johnson & Johnson Mgmt Information Ctr., No. 86-0319, slip op. (D.N.J. Feb.

18, 1992) (same).

- - - - - - - - - - - - - - - -  -End Footnotes- - - - - - - - - - - - - - - - -

no]

Having found no indication of a clear intent in the language of the 1991 Act, 
we turn to the legislative history. Here, too, we are provided with little 

guidance. Indeed, it has been suggested that Congress "punted on the question 

of whether or not the Act applies retroactively." King v. Shelby Medical Center, 

779 F. Supp. 157 (N.D. Ala. 1991). Rather than a consensus as to any retroactive 
effect, we are provided only with personal views. Senator Kennedy: "It will



1992 U.S. Oist. LEXIS 6290. *10

PAGE 6
LEXSEE

be up to the courts to determine the extent to which the bill will apply to 

cases and claims that are pending on the date of enactment. Ordinarily, courts 
in such cases apply newly enacted procedures and remedies to pending cases. 137 
Cong. Rec. S. 15,485, daily ed. Oct. 30, 1991. Senator Oanforth: "Our intention 

in drafting the effective date provision was to adhere to the principle followed 

by the vast majority of Supreme Court cases . . .  to apply new law 
prospectively." 137 Cong. Rec. S. 15,483, daily ed. Oct. 30, 1991. n5

- - - - - - - - - - - - - - - - -  -Footnotes- - - - - - - - - - - - - - - - - -

n5 As sumnarized by Judge Gessell in Van Meter v. Barr, 778 F. Supp. 83 

(D.D.C. 1991):

The congressional 'debates' were, with few exceptions, hardly more than a series 
of declarations and counter-declarations, which often addressed 'retroactivity' 

without defining that term or focusing on the crucial, separate problem at issue 

here of how the 1991 Act was supposed to affect federal employment cases pending 

before the Courts.

Van Meter, 778 F. Supp. at 84.

- - - - - - - - - - - - - - -  - -End Footnotes- - - -  - -  - -  - -  - -  - -  - -  -

[*U ]

Nor is the policy statement issued by the Equal Employment Opportunity 
Commission ("EEOC") dispositive. In response to the uncertainty concerning the 

retroactive effect of the 1991 Act, the EEOC, on December 27, 1991, indicated 
that it "[would] not seek damages under the Civil Rights Act of 1991 for events 
occurring before November 21, 1991." It is urged that the EEOC's construction of 

the 1991 Act is entitled to great deference under Chevron U.S.A., Inc. v.

Natural Res. Def. Council, 467 U.S. 837, 843-44, 104 S.Ct. 2778 (1984) (holding 

that the construction of a statute by the agency that administers it is entitled 

to deference, provided the construction is reasonable). However, there is a 

notable exception to this rule. Where an agency has not been empowered to 
promulgate rules, courts may accord less weight to that agency's construction of 
a statute. General Electric Co. v. Gilbert, 429 U.S. 125, 140-43, 97 S.Ct. 401, 
410-11. Invoking this exception, the Supreme Court has declined to defer to the 
EEOC's construction of Title VII. See, e.g., EEOC v. Arabian American Oil Co., 

Ill S.Ct. 1227, 1235 (1991). [*12] Indeed, at least one court has declined to

follow the policy statement at issue. U.S. v. Dept, of Mental Health, No. 

90-0621, slip op. (E.D. Cal. March 2, 1992). n6

- - - - - - - - - - - - - - - - -  -Footnotes- - - - - - - - - - - - - - - - - -

n6 Specifically, the court found that the EEOC's policy guidance:

. . . is not entitled to the deference often accorded to the findings or 

statements of administrative agencies in their area of expertise. The EEOC's 
expertise is not in the area of statutory interpretation, "questions of law that 
can be answered with 'traditional tools of statutory construction’ are within 

the expertise of the courts, not the agencies."

United States v. Dept, of Mental Health (citations omitted).

- - - - - - - - - - - - - - - -  -End Footnotes----- - - - - - - - - - - - - -



1992 U.S. Dist. LEXIS 6290, *12
PAGE 7

LEXSEE

Because congressional intent with regard to retroactivity is not clear, we 
must turn to presumptions found in case precedent to determine whether the 

statute should be applied retroactively.

The Supreme Court has not yet settled the question of whether a congressional 
enactment should be applied retroactively where the legislative intent is silent 
or ambiguous. [*13] In Bradley v. Richmond School Board, 416 U.S. 596, 711, 
94 S.Ct. 2006, 2016 (1974), the Court enunciated the principle that "a court is 

to apply the law in effect at the time it renders its decision, unless doing so 
would result in manifest injustice or there is statutory direction or 

legislative history to the contrary." By contrast, in the more recent decision 

of Bowen v. Georgetown University Hospital, 488 U.S. 204, 208, 109 S.Ct. 468,

471 (1988), the Court suggested that "retroactivity is not favored in the law .

. . [and] congressional enactments . . .will not be construed to have 
retroactive effect unless their language requires this result." The Supreme 
Court acknowledged the "apparent tension" between these cases in Bonjorno, 494 
U.S. at 837, 110 S.Ct. at 1576-77. n7 However, the Supreme Court skirted 
resolving the issue by determining that, in the case before it, congressional 
intent regarding retroactivity was clear.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _  -Footnotes- - - - - - - - - - - - - - - - - -

n7 Indeed, Justice Sealia wrote in his concurring opinion. "These two lines 
of cases are not merely, as the Court confesses,in 'apparent tension'; they are 

in irreconcilable contradiction and have spawned Courts of Appeals opinions to 
match." Bonjorno, 110 S.Ct. at 1579 (Scalia, J., concurring).

................................. -End Footnotes- - - - - - - - - - - - - - - - -

[*14]

Faced with these inconsistent precedents, the Court finds persuasive the 
rationale articulated by the Seventh Circuit:

We believe there is no prejudice in applying only Bradley and its progeny. . . . 

Any tension between [Bowen and Bradley] is negated because, under Bradley, a 

statute will not be deemed to apply retroactively if it would threaten manifest 
injustice by disrupting vested rights.

Federal Deposit Ins. Corp. v. Wright, 942 F.2d 1089, 1095 n.6 (7th Cir. 1991).

See also U.S. v. Peppertree Apartments, 942 F.2d 1555, 1561 n.3 (11th Cir. 1991) 
(rejecting Bowen and adopting Bradley analysis), petitioner for cert, filed,

Dec. 26, 1991; Kruso v. International Tele. & Tele. Corp., 872 F.2d 1416,

1424-25 (9th Cir. 1989), cert, denied, 110 S.Ct. 3217 (1990) (following the 
Bradley rule); Croce v. V.I.P. Real Estate. No. 89-2121, slip op. (E.D.N.Y.

March 21, 1992) (harmonizing the Bradley and Bowen rulings and concluding that 

new legislation should be applied retroactively unless it alters pre-existing 
substantive rights); Mojica v. Gannett Co., 779 F. Supp. 94, 96-97 (N.D. 111. 
1991) [*15] (weighing the merits of Bradley and Bowen and concluding that

Bradley is the better rule). n8

Footnotes



1992 U.S. Dist. LEXIS 6290, *15
PAGE 8

LEXSEE

n8 A decision to apply the 1991 Act retroactively unless manifest injustice 
would result is consistent with easel aw suggesting that retroactive effect 

should be applied where the purpose of the statute is not to amend, but merely 
to restore and clarify congressional intent. Mrs. W. v. Tirozzi, 832 F.2d 748, 

754-55 (2d Cir. 1987); Leake v. Long Island Jewish Medical Center, 695 F. Supp. 

1414 (E.D.N.Y. 1988), aff'd, 869 F.2d 130 (2d Cir. 1989). See also Ayers v. 
Allain, 893 F.2d 732, 754-55 (5th Cir. 1990) ("Retroactive application of a 

statute is appropriate when Congress enacts the statute to clarify the Supreme 
Court's interpretation of previous legislation thereby returning the law to its 
previous posture"), rev'd en banc on other grounds, 914 F.2d 676 (1990), cert, 

granted, 111 S.Ct. 1579 (1991) (retroactivity issue not briefed or argued).

Here, the 1991 Act specifically provides that it is designed "to respond to 
recent decisions of the Supreme Court." See 0 3(4) of the 1991 Act. That 
Congress, in enacting the 1991 Act, overturned Supreme Court interpretations of 
@ 1981 provides support for applying the 1991 Act retroactively. But Cf. 
McLaughlin v. New York, No. 89-0924, slip op. (N.D.N.Y. March 5, 1992) 
(distinguishing provision in 1991 Act for punitive damages as not restorative in 
nature and thus declining to apply the Act on "restorative legislation theory"); 

Maddox v. Norwood Clinic, No. 91-1452, slip op. (N.0. Ala. Feb. 4, 1992) (same).

. —  - - - - - - - - - - - - -  -End Footnotes- - - - - - - - - - - - - - - - -

[*16]
Under the Bradley test, three factors are to be considered in determining 

whether retroactive application would result in manifest injustice: 1) the 
nature and identity of the parties; 2) the nature of the rights affected; and 3) 
the impact of the change in law on pre-existing rights. Bradley, 416 U.S. at 
718, 94 S.Ct. at 2019. These three factors have been synthesized as follows: 
"Retroactive application of a new law results in manifest injustice when the 

disappointment of private expectations outweighs the public interest in 
enforcing a new rule." Federal Deposit Ins. Corp. v. Engel, 746 F. Supp. 1223, 
1224 (S.D.N.Y. 1990).

The first prong of the Bradley test distinguishes litigation involving only 

private parties from litigation involving a public entity. Where only private 

parties are involved, the Bradley court intimated, it is more likely that some 

injustice will result in retroactive application of a change of law. Here, the 

litigation is between private parties. However, as noted in Mojica v. Gannett 

Co., 779 F. Supp. 94, 98 (N.0. 111. 1991), "that the circumstances involve 
private parties [*17] only . . . does not preclude retroactive enforcement." 
Here, the 1991 Act is intended to eliminate intentional discrimination in the 
workplace, a matter of public concern. Thus, while "the present case is not one 
where the plaintiff is acting in the role of a ’private attorney general,’ . . . 

the public component of the dispute between the parties cannot be ignored." 

Mojica v. Gannett Co., 779 F. Supp. at 98. Accord Croce v. V.I.P. Real Estate; 
Stender v. Lucky Stores, Inc., 780 F. Supp. 1302, 1307 (N.D. Cal. 1992); Poston 

v. Reliable Drug Stores, No. 91-1160, slip op. (S.D. Ind. Feb. 19, 1992); Graham 

v. Bodine Elec. Co., No. 90-4272, slip op. (N.D. 111. Jan. 23, 1992); Long v. 
Davis, No. 88-0263, slip op. (N.D. Ga. Jan. 14, 1992). As such, the first 

Factor militates in favor of applying the Act retroactively to pending cases.

The second prong of the Bradley test requires that we consider the nature of 
the rights involved. Specifically, we must determine whether application of the 

jresent law "would infringe upon or deprive a person of a right that had matured 

)r become unconditional." Bradley, 416 U.S. at 720, 94 S.Ct. at 2020-21.



1992 U.S. Dist. LEXIS 6290, *17
PAGE 9

LEXSEE

[*18] Here, the plaintiff seeks to amend her complaint to add claims for 

expert witness fees and punitive damages. Plaintiff also seeks to demand a jury 
trial. These amendments do not introduce the assertion of a new substantive 
cause of action; plaintiff only seeks additional remedies for an existing cause 

of action. Thus, none of these claims infringe upon any pre-existing, 

substantive rights of the defendant. The defendant in this case did not have a 
vested right to a non-jury trial. Nor can it be said that at the time the 
defendant engaged in the alleged illegal discrimination, it had a vested right 
to limit its liability.

Lastly, the third prong of the Bradley test requires that we examine the 
impact of the change in law upon existing rights. This requires that the Court 

determine whether a party would have sought to alter its conduct in light of the 

new standards. As such, applying law retroactively may be deemed to result in 
injustice to the extent that the party may have not had an opportunity to shape 
its conduct accordingly. Here, it cannot be said that requiring the defendant 
to submit to a jury trial and subject itself to expert fees and punitive damage 
alters [*19] any of the defendants existing rights. Our position on this 

issue had ample judicial support. See Cary v. Chicago Housing Authority, No. 

87-6998, slip op. (N.D. 111. Dec. 13, 1991) (applying 1991 Act retroactively to 
provide for recovery of expert fees); Davis v. Tri-State Mack Distributions,

Inc., No. 89-0912, slip op. (E.D. Ark. Dec. 16, 1991) (same); La Cour v. Public 
Service Co., No. 89-1532, slip op. (S.D. Tex. Dec. 6, 1991) (granting demand for 
jury trial in Title VII suit); Long v. Carr, No. 88-0263, slip op. (N.D. Ga. Jan 
31, 1992) (no manifest injustice in applying 1991 Act retroactively to allow 
amendment for jury trial and damages); Croce v. V.I.P. Real Estate, No. 89-2121, 
slip op. (E.D.N.Y. March 21, 1992) ("the prospect of a defendant facing a jury 
trial in lieu of a bench trial, or potential compensatory damages where none 
previously existed, simply does not impact on 'existing rights"'); Scarboro v. 

First Am. Nat'l Bank, 619 F.2d 621, 622 (6th Cir. 1980) (per curiam) (citing 

Bradley and allowing jury trial amendment on the ground that "a jury resolution” 
poses "[no] threat of injustice to either party"), cert denied, [*20] 449

U.S. 1014, 101 S.Ct. 572 (1980); Mojica v. Gannett Co., 779 F. Supp. 94 (N.D.

111. 1991) ("the increased potential for damages . . .  is not likely to have 

effected the conduct of the parties in committing any acts of discrimination 
that may have occurred").

Moreover, even were the defendant to assert that it would have acted 
differently had it known that it would be subject to a jury trial, expert 
fees,or punitive damages, the Court would still conclude that allowing the 

amendments in this situation is appropriate. Employment discrimination based on 
race was reprehensible prior to Patterson and remains reprehensible today. As 
such, the Court will not sanction any stance that employers have a right to 
discriminate under a cost-benefit analysis.

Accordingly, the motion to reinstate the @ 1981 claims is denied. The motion 

to amend the complaint to add claims for expert fees, jury trial, and punitive 
damages is granted.

SO ORDERED.

Dated: April 27, 1992

JOHN S. MARTIN, JR., U.S.D.J.



AFFIDAVIT OF SERVICE

STATE OF NEW YORK )
: ss:COUNTY OF NEW YORK )

GENEVIEVE DeSIMONE, being duly sworn, deposes and
says:

I am not a party to the action, am over 18 years of 
age and reside at Staten Island, New York.

On July 15, 1992, I caused the within PLAINTIFFS' 
PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW to be served 
upon:

Robinson, Silverman, Pearce, Aronsohn & Berman
Attorneys for Defendants 
1290 Avenue of the Americas 
New York, New York 10104

by causing a true copy of the same to be served by hand at the 
address indicated above.

Sworn to before me this
J \ — -day of July, 1992.

-^ /n \ JU>1 <̂\ . ̂~1 v-xMii
Notary Public

crviiLT J. WLfGCMAN c-la. 
Notary Public, State of New York 

No 31-4967133 
Qualified in New York Countv 

Commission Expires j  / i ^

' — ^ -v V



AFFIDAVIT OF SERVICE

STATE OF NEW YORK )
: ss:COUNTY OF NEW YORK )

GENEVIEVE DeSIMONE, being duly sworn, deposes and
says:

I am not a party to the action, am over 18 years of 
age and reside at Staten Island, New York.

On July 15, 1992, I caused the within PLAINTIFFS' 
PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW to be served 
upon:

Robinson, Silverman, Pearce, Aronsohn & Berman
Attorneys for Defendants 
1290 Avenue of the Americas 
New York, New York 10104

by causing a true copy of the same to be served by hand at the 
address indicated above.

Sworn to before me this
/  'b

— -day of July, 1992

7
Notary Public

c iw lt  j. w e i s s m a n  is—Of.
Notary Public, State of New York

No 31-4967133
Qualified in New York Countv 

Commission Expires