Suit Against Brooklyn Law School Gets A Rough Hearing

The class action suits against law schools received another hit according to reports in the National Law Journal and the ABA Journal.  Judge Schmidt presiding over the case against Brooklyn Law School (BLS) indicated serious doubts about the fraud claims leveled against the school.  The National Law Journal quotes him as saying to plaintiff’s counsel “Where is the basis for a fraud argument?  You have generalized industry statistics. Where do you see that they have deceived the public?"

The article does not contain a direct response to that question.  The general argument for fraud, though, is that the figure is misleading by not indicating how many of those jobs were legally oriented or required a J.D.  The attorney for BLS countered by saying the school was within reporting standards in place by the ABA.  In any event, the figure of 91.3 percent employment is irrelevant as it is not a predictor of future employment opportunities.  The future is not actionable under New York law.

The attorneys sparred over whether the Second Circuit case of Gotlin v. Lederman applied to the deceptive marketing claim.  That case involved representations of doctors on the cure rate for pancreatic cancer.  There were claims of an advertised successful treatment rate of over 90 percent, though the term “successful” was not explained in specific detail.  There were issues concerning the way the brochures advertising cancer treatment represented the likely results.

The Second Circuit affirmed the dismissal of all of plaintiff’s claims by the District Court but returned the deceptive marketing claim back to the District Court as a genuine issue of material fact as to whether the representations were deceptive and whether plaintiffs were injured.  The Appeals Court did note:

In this respect, the district court correctly concluded that defendants’ marketing brochures are only evidence of “what representations the defendants made” and not “whether those representations were fraudulent or misleading,”  Gotlin v. Lederman, 616 F.  Supp. 2d 376, 392 (E.D.N.Y. 2009) (emphases in original).  Accordingly, the court concluded that it was unable to assess the relative truthfulness of the scientific and medical claims appearing in defendants’ brochures without at least some evidence, expert or otherwise, indicating that those claims were false or otherwise misleading.

The Court goes on to note some of the superlatives in the doctors' marketing brochure:  “possibilities never dreamt before,” “superb results,” “great effectiveness,” and “superior outcomes.”  I don’t know if BLS advertised law school as an opportunity leading to a great career in the law or with any language that implied a guarantee or likely success beyond the reported jobs number.  I do think that is the some of evidence the plaintiffs in the law school cases will probably have to supply beyond raw numbers.  This assumes the case against BLS will survive a summary judgment motion which the articles imply it will not.  [MG]