Universities, like other great economic, cultural and religious institutions set a certain value to their reputations. They like individuals everywhere understand that reputation may have important effects in shaping their relationships with their stakeholders and other with whom they deal.
(Pix (c) Larry Catá Backer 2013)
Some universities, like many businesses, have sought to become quite aggressive recently in the protection of their reputations--aggressive enough, at times it seems, to worry courts about the university's interference with the speech rights of others, and especially with the rights of others to develop opinions about the university that may vary from the line the university would prefer everyone adopt. This mania for control makes economic sense, but it does, at least at its limit, suggest a disrespect for the fundamental ordering principles of this Republic that universities, more than most institutions, ought to be especially careful to avoid.
This is a lesson that the Thomas M. Cooley Law School may be learning at the moment, which has not been able, as yet, to move forward a defamation lawsuit against law firms and bloggers critical of the school's description of its students' employment statistics. Martha Neil, Cooley Law defamation suit against law firm and bloggers critical of its job stats is nixed by judge, ABA Journal, Sept. 30. 2013. This post also includes a description of the press releases issued by the parties. For all universities now heavily invested in such reporting, the case presents an important lesson in the problems of reporting statistics and the limits of reporting agencies to control the "spin" of its statistical disclosures. But all of this may change when the appellate court visits these issues in the coming yesr.
Martha Neil, Cooley Law defamation suit against law firm and bloggers critical of its job stats is nixed by judge, ABA Journal, Sept. 30. 2013.
A federal judge has nixed a defamation suit filed by Thomas M. Cooley Law School against a law firm and bloggers who criticized the institution's portrayal of its graduates' employment statistics.
Finding that the law school is, at minimum, a limited-purpose public figure, U.S. District Judge Robert J. Jonker on Monday ruled (PDF) that, as a matter of law, Cooley could not show clear and convincing proof of actual malice and granted a summary judgment motion by the plaintiffs, dismissing the case. The law school vows to appeal.
"After a federal trial court and a federal appeals court both found the Kurzon Strauss misrepresentation case against Cooley to be without merit, it's hard to reconcile Judge Jonker's ruling that Kurzon Strauss's unfounded accusations can't be pursued as defamation" said general counsel Jim Thelen in a press release. "We will pursue the case in the appeals court now, where we'll have a new hearing on these issues."
In a competing press release (PDF), founding partner Jesse Strauss of Strauss Law called the ruling "a victory for free speech."
Meanwhile, although the Strauss firm has, so far, had limited success with the litigation it has pursued against Cooley and other law schools on behalf of individuals allegedly misled by inaccurate statistics about students' post-graduate employment, the judge offered a zinger amidst a discussion of non-defamatory hyperbole.
"Further, the statement that 'Cooley grossly inflates its graduates’ reported mean salaries' may not merely be protected hyperbole, but actually substantially true," Jonker wrote, citing two opinions in which courts had reached similar conclusions.
"MacDonald v. Thomas M. Cooley Law School, 880 F. Supp. 2d 785, 794 (W.D. Mich. 2012) (finding that the average starting salary for all graduates specified in Cooley’s 2010 Employment Report 'does not represent the average starting salary for ‘all’ graduates; nor does it even represent the graduates’ average starting salary for whom Cooley knew the employment status. Standing alone, the representation is objectively untrue.'); MacDonald v. Thomas M. Cooley Law School, 724 F.3d 654 (6th Cir. 2013) ('We agree with the district court that this statistic is "objectively untrue.”')."
The defendants were understandably content with the result:
September 30, 2013, New York, NY
FOR IMMEDIATE RELEASE
Jesse Strauss 212-822-1496
Cooley Law School’s Defamation Lawsuit Dismissed
Decision Rejects Cooley Law School’s Attempt to Squelch Debate About the Value of a Cooley Law Degree
The Thomas M. Cooley Law School (“Cooley”) today lost its “defamation” action against the lawyers who represented twelve Cooley alumni who sued the school for disseminating misleading information about the employment outcomes for Cooley graduates. The twelve graduates alleged that Cooley’s employment data purporting that between 76% and 81% of its graduates were “employed” within nine months of graduation was misleading and false. In fact, only 28.8% of Cooley’s class of 2012 reported being employed in full time permanent jobs in the legal industry within nine months of graduation, which includes 44 solo practitioners. This is substantially worse than the overall rate of full time permanent employment requiring a law degree for graduates of the class of 2012, which stood at 56%.
Jesse Strauss, founder of the New York City based commercial litigation and class action law firm Strauss Law PLLC and one of the lawyers who represented seventy five graduates around the nation suing fourteen different schools for disseminating similar misleading employment data made following statement:
“We regard this as a victory for free speech. From the beginning we saw this lawsuit as nothing more than an attempt to harasses and intimidate us into abandoning our clients and their important claims against Cooley. We are happy that the Court saw this lawsuit for what it was and dismissed it. However, on behalf of our twelve Cooley clients who are Cooley alumni we are disappointed that Cooley chose to incur substantial legal fees on this meritless suit rather than using those funds to help its debt laden graduates in their daunting quest for employment in a legal economy where the supply of lawyers far outstrips the demand for legal services. Notably, while we sued 14 schools around the nation, Cooley was the only one which sued us in a clumsy attempt to prevent debate regarding this important issue. It should have known better.”Mr. Strauss added that David Anziska and he were only retained by their twelve Cooley clients after
Cooley publically announced its “defamation” action in July of 2011, and credit Cooley’s lawsuit as the reason why their twelve clients chose to retain them to sue Cooley. Mr. Strauss and Mr. Anziska sued Cooley in August 2011. Their local counsel was Steven Hyder, a Cooley alumnus.
The Thomas M. Cooley Law School had a different take:
Cooley to Appeal Dismissal of Defamation Case Against New York Law Firm
Sept. 30, 2013 – U.S. District Court Judge Robert Jonker today dismissed a defamation lawsuit which Thomas M. Cooley Law School filed in July 2011 against the New York-based Kurzon Strauss law firm after that firm falsely accused the law school of fraudulently misrepresenting its post-graduate employment statistics. Cooley recently prevailed in the U.S. Court of Appeals for the Sixth Circuit when the appeals court affirmed the dismissal of a separate lawsuit Kurzon Strauss had filed against Cooley over the supposed misrepresentations, specifically finding that Cooley had not fraudulently reported any of its employment data.
In dismissing Cooley's defamation case today, the Court chose not to address the defamatory nature of Kurzon Strauss's false accusations against Cooley, but instead ruled that Cooley could not prove that the Kurzon Strauss lawyers defamed Cooley with "actual malice."
"After a federal trial court and a federal appeals court both found the Kurzon Strauss misrepresentation case against Cooley to be without merit, it's hard to reconcile Judge Jonker's ruling that Kurzon Strauss's unfounded accusations can't be pursued as defamation" said Jim Thelen, Cooley's Associate Dean for Legal Affairs and General Counsel.
"We will pursue the case in the appeals court now, where we'll have a new hearing on these issues," Thelen continued.
In its unsuccessful misrepresentation case against Cooley over Cooley's reported post-graduate employment statistics—one of several unsuccessful cases it filed against law schools around the country—the Kurzon Strauss firm had solicited Cooley graduates over the Internet to file claims that Cooley fraudulently misrepresented its graduates' employment status in order to dupe them into attending law school. But Judge Gordon Quist of the U.S. District Court for the Western District of Michigan dismissed that case in July 2012, finding it to be completely without legal merit. The Sixth Circuit Court of Appeals affirmed that ruling this summer. Seven other cases like it around the country have also been dismissed.