We have been following the highly dubious litigation of cross claims between Thomas M. Cooley Law School and Kurzon Strauss and some bloggers.  The law school filed a defamation claims against the firm and bloggers who criticized the institution’s portrayal of its graduates’ employment statistics.  United States District Judge Robert J. Jonker has now dismissed the case. However, in a rather curious lesson for its students, Cooley is pledging to continue the litigation with an appeal.

The dispute was triggered by the law firm’s solicitation of information in preparing for a class action lawsuit against law schools. Here is the posting from the court decision below:

It is undisputed that on June 8, 2011, Mr. Anziska posted the following statement on the
website “JD Underground,” hosted at http://www.qfora.com/jdu:

My firm is currently conducting a broad, wide-ranging investigation of a number of law schools for blatantly manipulating their post-graduate employment data and salary information. These schools are preying on the blithe ignorance of naive, clueless 22-year-olds who have absolutely no idea what a terrible investment obtaining a JD degree is. Perhaps one of the worst offenders is the Thomas Cooley School of Law, which grossly inflates its post-graduate employment data and salary information. More ominously, there are reports that there [sic] students are defaulting on loans at an astounding 41 percent, and that the school is currently being
investigated by the DOE for failing to adequately disclose its students’ true default rates. Unfortunately, the ABA has proven to be absolutely toothless in regulating these schools and stamping out these dubious practices, and most likely schools like Thomas Cooley will continue to defraud unwitting students unless held civilly accountable. If you have any relevant information or know of anyone who has attended Thomas Cooley feel free to contact me at anziska@kurzonstrauss.com.

Obviously, all correspondences will be kept strictly confidential.

(Compl., docket # 1-1, at ¶ 8; Anziska aff., docket # 202, at ¶ 15.)

The law school responded with a cease and desist letter alleging defamation and the law firm (while threatening its own defamation action for the letter) issued the following retraction:

It has been brought to this firm’s attention that a post on this site on June 8, 2011 entitled, “Investigating the Thomas Cooley School of Law” contained certain allegations which may have been couched as fact regarding employment and default data. These statements are hereby retracted. Moreover, representatives of Thomas Cooley Law School have informed us that published reports regarding Thomas Cooley Law School’s student loan default rate and of an investigation by the Federal Department of Education are incorrect. Therefore, we retract those statements as well.

However, the law firm posted a draft complaint with largely the same allegations. The posted draft oddly read PRIVILEGED & CONFIDENTIAL” at the top and bottom of each page of the Draft Complaint despite being posted publicly. It alleged that Cooley “blatantly misrepresent[s] and manipulat[e]s its employment statistics to prospective students, employing the type of ‘Enron-style’ accounting techniques that would leave most for-profit companies facing the long barrel of a government indictment and the prospect of paying a substantial criminal fine[;].” It further stated

My firm is currently conducting a broad, wide-ranging investigation of a number of law schools for purportedly manipulating their post-graduate employment data and salary information. Among the many schools we are investigating is the Thomas M. Cooley Law School which claims that 76 percent of its graduates have allegedly secured employment within nine months of graduation. If you have any relevant information or know of anyone who has attended Thomas Cooley feel free to contact me at anziska@kurzonstrauss.com. Obviously, all correspondences will be strictly confidential. Thanks in advance.

(Id. at Ex. B and F; Anziska aff. at Ex. 26.) Cooley then filed a complaint alleging six claims of defamation; tortious interference with business relations; breach of contract; and false light against Defendants.

Jonker ruled that the law school constitutes a limited public figure and thus subject to the higher constitutional standard for defamation. As such the law school would need to prove actual malice either in the knowledge of falsity of the factual statements or a reckless disregard of the truth. Yet, Jonker found a clear effort to research the allegations by the law firm before publication. The real bite however comes after the court dismisses much of the comments as hyperbole. But it then adds:

“Further, the statement that “Cooley grossly inflates its graduates’ reported mean salaries” may not merely be protected hyperbole, but actually substantially true. 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.’”).”

Thus, in suing the law firm and bloggers, Cooley succeeded in securing an opinion finding that the allegations of inflated figures and misrepresentation are true. Now, Cooley will appeal and potentially add an appellate finding against the school. It is the type of logic that makes Las Vegas what it is today.

Here is the opinion: Opinion_Granting_SJ_Motion