Thomas M. Cooley Law School has gone to court with an interesting defamation case against the New York firm, Kurzon Strauss, and anonymous bloggers after it was accused of misrepresenting the success of its graduates. The firm had posted a draft class action against the law school. The litigation raises a host of issues of privilege and free speech.
The law school says the draft complaint falsely accuses the school of fabricating data on job placement and student loan default rates.
Judicial filings and in-court statements are privileged under common law. However, this was not filed and was posted as a draft. As such, it would not be entitled to the privilege.
There remains free speech issues, of course. The law school should be treated as a public figure subject to New York Times v. Sullivan, but even under the higher standard the firm and bloggers can be held liable for knowingly falsehoods or reckless disregard of the truth.
Notably, the complaint focuses on establishing “fault amounting to at least negligence” — raising the question of whether they will fight the application of New York Times v. Sullivan. As noted in New York, if the corporation is a “public figure,” the defendant will have a qualified privilege and the defendant must establish actual malice. See Friends of Animals v Assoc. Fur Manufacturers, 46 NY2d 1065, 390 N.E.2d 298 (1979).
David Anziska, counsel to the Kurzon firm and a defendant in the Cooley case, is not backing off. In fact, he is planning a counter-attack: “This is one of the most ridiculous, absurd lawsuits in recent memory. Suffice it to say, not only will we defend ourselves vigorously but we fully intend to countersue both Thomas Cooley and their lawyers at Miller Canfield for abusing the legal process with this blatantly idiotic lawsuit.”
The bloggers include such people as Rockstar05 who denounced the “scam” at the law school (See paragraph 14) The school is obviously going to seek to strip the blogger of anonymity — a trend in civil litigation.
In addition to the defamation claims in Count One, Count Two allegely tortious interference with Business Relations. A second complaint was filed against some of the defendants that is virtually identical.
Part of the risk of this litigation is that the law school risks full discovery on its past reporting and disclosures as well as its placement rates. All schools tend to gild the lily a bit. It could be quite messy in discovery.
Source: ABA Journal