Web Update: New judge assigned to Robertson case

The six-year-old dispute over the Robertson Foundation’s $900 million endowment has been assigned to a new judge, just months before case is scheduled to go to trial.

Retired Camden County Superior Court Judge John Fratto has been recalled to take over the case from Mercer County Superior Court Judge Maria Sypek, placing him in charge of adjudicating the largest donor-intent lawsuit in U.S. history. The trial is set to begin Jan. 20, 2009.

Fratto, 73, conducted a hearing last Friday to address motions filed by both sides about the order in which issues would be addressed during the trial.

Attorneys for the Robertson family proposed the trial be split in two. Under their proposal, the first phase would have dealt with the Foundation’s spending from its inception in 1962 until the complaint was filed in 2002, and a second phase would have addressed the University’s spending of the funds since the complaint was filed and whether non-monetary relief would be awarded. The University’s attorneys argued that the split was unfair, claiming that such a bifurcation would be contrary to the normal trial process and would hinder the defendants’ ability to defend themselves.

The University’s lawyers had moved to start the trial with claims against the named defendants in the case: President Tilghman, Stephen Oxman ’67 and Peter Wendell ’72. Both men served as University-designated trustees of the Robertson Foundation. Another defendant, former University trustee Jay Sherrerd ’52, who also sat on the Robertson Foundation board and was founding chairman of its investment committee, passed away in April.

Fratto declined to bifurcate the trial in the manner requested by the plaintiffs. He also declined to begin the trial with an evaluation of whether the individual defendants violated their fiduciary duties to the foundation, as the University's lawyers had requested.

Instead, he ruled that the trial will be conducted in two phases. The judge will first hear evidence and rule on all liability issues. If he determines in the first phase of the trial that the defendants have any liability, he will then hear the plaintiffs' claims on damages in a second phase.

Sypek became the second judge to preside over the case after Superior Court Judge Neil Shuster retired on March 1. Shuster had presided over the case since it was filed on July 17, 2002. In late June, Sypek postponed the start of trial from October 2008 to January 2009.

Sypek, who as chancery judge also must oversee many other cases in Mercer County, told both parties that she would have very limited time to try the case. Linda Feinberg, the county’s assignment judge, then asked State Supreme Court Chief Justice Stuart Rabner '82 to recall a retired judge.

Rabner agreed. Fratto will be able to hear the case on a continuous basis because unlike Sypek, he does not have a docket of other cases. The trial is expected to run four days per week when it begins in late January.

A graduate of Temple University and Temple Law School, Fratto was appointed to the bench in 1989 and retired in 2005. He served in the civil, family and criminal divisions and was the presiding civil judge for Camden County.

More to come.