MASSACHUSETTS SCHOOL OF LAW AT ANDOVER, INC., Plaintiff, Appellant,

v.

AMERICAN BAR ASSOCIATION, et al., Defendants, Appellees.

No. 97-1926.

United States Court of Appeals,

First Circuit.

Heard Jan. 8, 1998.

Decided April 24, 1998.

Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and BOUDIN, Circuit Judge.

SELYA, Circuit Judge.

The lawsuit that undergirds this appeal pits a fledgling law school, built on a foundation of unconventional premises, against the legal establishment. The gargantuan record, capable of inducing tapephobia in even the hardiest appellate panel, is forbidding, but sheer bulk rarely is an accurate proxy for complexity. Having scaled the mountain of papers and obtained a clear view of the legal landscape, we conclude that the lower court correctly apprehended both the issues and the answers. Consequently, we uphold the several rulings that the appellant so vigorously contests.

I. THE PROTAGONISTS

In late 1995, Massachusetts School of Law (MSL) sued the American Bar Association (the ABA), the American Association of Law Schools (the AALS), New England School of Law (NESL), and fourteen individual defendants. The facts that inform MSL's wide-ranging allegations are too diffuse to shed much light at this juncture, so we leave them shuttered until they can illuminate the specific issues raised by this appeal. We deem it helpful, however, to describe at the outset the institutions and individuals involved in the litigation.

We begin with MSL, a non-profit institution that opened its doors in 1988. The school's self-proclaimed mission is to provide high-quality, affordable legal education to capable persons who traditionally have been shut out of the legal profession, including members of disadvantaged demographic populations and persons turning to the law in search of a second career. To this end, MSL does not require applicants to take the Law School Aptitude Test (LSAT) because it considers the test biased. Moreover, MSL's curriculum features a higher- than-usual percentage of adjunct instructors and a concentrated focus on professional skills courses. MSL is not a fully accredited law school, but in 1990, the Massachusetts Board of Regents authorized the school to award the J.D. degree and thereby enabled MSL graduates to sit for the Massachusetts bar.

The ABA is the largest national organization of the legal profession. It has a membership of more than 380,000, composed principally of practicing lawyers (including lawyers in government and corporate America), judges, court administrators, and legal educators. Though the ABA does not have the power to discipline lawyers, it promulgates model rules, develops guidelines, and strives to function as the national voice of the legal profession. In that capacity, it long has served as the chief accreditor of law schools.

The AALS is a non-profit association of 160 law schools. Its stated objective is "the improvement of the legal profession through legal education." It serves as a trade organization for law professors and, with reference to legal education, acts as the academy's principal representative to the federal government and to national higher education organizations. The AALS is separate from the ABA, but the two informally interlock in various ways. Many individuals are active in both organizations and many AALS members participate in the ABA accreditation process.

The fourteen individual defendants divide into two groups. One group (the Eight Individual Defendants) comprises the seven members of the ABA's Accreditation Committee (the Committee) plus the immediate past chair of the ABA's Section of Legal Education and Admissions to the Bar (the Section). The other group (the Six Individual Defendants) comprises the five members of the ABA team that visited MSL during its unsuccessful effort to obtain accreditation, plus a consultant who advised the ABA during that process. All fourteen individual defendants are active participants in accreditation-related matters.

NESL is an ABA-accredited law school located in Boston, Massachusetts. MSL regards itself as a competitor of NESL--and one which, if accredited, would be all the more formidable.

II. THE ACCREDITATION PROCESS

For more than 70 years, the ABA has promulgated the standards for law school accreditation (the Standards). It is widely believed among legal educators and regulatory organizations that compliance with the Standards enhances the quality of legal education. MSL disputes this conventional wisdom but, since 1952, the United States Department of Education (the DOE) has recognized the ABA as a "reliable authority" anent the quality of legal education and has designated it as the relevant accrediting body. 20 U.S.C. § 1099b(a). [FN1] As a result of this recognition, ABA-accredited schools are eligible to participate in federal student loan programs. See 20 U.S.C. § 1141(a)(5). Accredited institutions also receive various state-based benefits, not the least of which is that all fifty states, the District of Columbia, and the Commonwealth of Puerto Rico deem graduation from an ABA-accredited institution sufficient to satisfy the legal education requirement for admission to the bar.

FN1. Federal law provides criteria by which a DOE-approved accreditor must review an applicant institution. See 20 U.S.C. § 1099b(a)(5) (requiring the accreditor to assess the institution's curricula, faculty, physical facilities, fiscal stability, student services, program length, degrees offered, and history of student complaints). The Standards faithfully track section 1099b's framework.

The accreditation process works something like this. A law school may apply for ABA accreditation after three years of operation. Its application must include a self-study, delineating its perception of its present and projected compliance with the Standards and explaining any deviations from them. The Committee reviews each application and appoints a site-visit team to conduct interviews and inspect the applicant's physical plant. This team reports its findings to the Committee. If the Committee determines that the school is in compliance with the Standards, the accreditation process moves forward. If a school is found not to be in compliance with the Standards, the Committee nonetheless may recommend provisional accreditation if it receives satisfactory assurances that the applicant will achieve compliance within three years. See Standard 104(a).

In the absence of compliance (actual or anticipated), there is another potential route to accreditation: the applicant may request a variance from the Standards, and the body that oversees the accreditation process, the Council of the Section (the Council), may choose to grant it as a matter of discretion. Standard 802 governs the variance procedure. Because this Standard is central to MSL's accreditation effort, we reprint it in full:

A law school proposing to offer a program of legal education contrary to the terms of the Standards may apply to the Council for a variance. The variance may be granted if the Council finds that the proposal is consistent with the general purpose of the Standards. The Council may impose such conditions or qualifications as it deems appropriate.

III. MSL'S ACCREDITATION EFFORT

MSL applied for ABA accreditation in 1992. From the outset, MSL recognized that its practices were discordant with the Standards, yet remained steadfast in its deliberately contrarian mission. [FN2] At no time did MSL argue present compliance with the Standards or promise future compliance. Instead, it confessed in its self-study that "[t]o the considerable extent MSL's goals and methods are innovative, sometimes they deliberately run counter to conventional ABA criteria of accreditation." Not surprisingly, MSL invoked Standard 802 by letter dated January 27, 1993, and requested "a waiver of each and every Standard that ... might bar accreditation" on the ground that, despite its admitted lack of conformity, "MSL provides a high quality legal education that meets the underlying objectives of the accreditation process."

FN2. There is some suggestion that MSL thought it could cow the ABA into granting accreditation despite its lack of compliance. In a 1992 memorandum from Dean Lawrence Velvel to members of MSL's board of trustees, the dean predicted that if the ABA "is given reason to believe it is facing a tiger, it will seek to quickly come to a reasonable accommodation with MSL." He then noted that "[t]he ABA ran a deficit of two million dollars last year, and is in desperation about insufficient revenues.... The ABA's financial straits are crucially important because ... the lawyers needed to defend serious lawsuits cost a small fortune. The ABA will not want and cannot afford the heavy fees it would have to spend to defend against a suit by MSL."

An ABA team visited MSL's campus in April 1993. The next month, the site- visit team recommended that the Committee deny accreditation because MSL was in default of myriad Standards. [FN3] The Committee accepted the recommendation and rejected the application. MSL successively appealed to the Council and to the ABA's House of Delegates, both of which upheld the denial of accreditation.

FN3. Areas of noncompliance included (1) an inordinately high student/faculty ratio; (2) the school's excessive reliance on part-time faculty; (3) the unusually heavy teaching loads carried by full-time faculty members; (4) the failure to provide sabbaticals for full-time faculty; (5) the inclusion of six-credit bar review courses in the school's curriculum; (6) the lack of a suitable placement program; (7) problems with MSL's class schedule; (8) the absence of any policies designed to ensure that full-time MSL students devote substantially all their working hours to the study of law; (9) the failure to use LSATs or some other acceptable testing mechanism to determine apparent aptitude for legal study; (10) the absence of any written plan for achieving compliance with Standard 212 (requiring "concrete action" to provide legal education to qualified members of groups that "have been victims of discrimination in various forms"); and (11) an inadequate physical plant.

IV. PROCEDURAL HISTORY

Although the instant litigation has all the hurly-burly of a major engagement, it is in point of fact a rear-guard action. In November 1993, MSL brought an antitrust suit against the ABA, the AALS, and twenty-one individual defendants (including twelve of the fourteen persons sued here) in the United States District Court for the Eastern District of Pennsylvania. The Third Circuit subsequently characterized MSL's complaint as alleging that the named defendants conspired "to enforce the ABA's anticompetitive accreditation standards [and thus violated the Sherman Act] by: (1) fixing the price of faculty salaries; (2) requiring reduced teaching hours and non-teaching duties; (3) requiring paid sabbaticals; (4) forcing the hiring of more professors in order to lower student/faculty ratios; (5) limiting the use of adjunct professors; (6) prohibiting the use of required or for-credit bar review courses; (7) forcing schools to limit the number of hours students could work; (8) prohibiting ABA-accredited schools from accepting credit transfers from unaccredited schools and from enrolling graduates of unaccredited schools in graduate programs; (9) requiring more expensive and elaborate physical and library facilities; and (10) requiring schools to use the LSAT." Massachusetts Sch. of Law at Andover, Inc. v. American Bar Ass'n, 107 F.3d 1026, 1031-32 (3d Cir.) (MSL I ), cert. denied, --- U.S.----, 118 S.Ct. 264, 139 L.Ed.2d 191 (1997). Between 1994 and 1996, the district court published no fewer than nine opinions. [FN4] At the end of the line, the district court entered summary judgment in favor of all remaining defendants (including the ABA and the AALS), and the Third Circuit affirmed. See id.

FN4. See Massachusetts Sch. of Law at Andover, Inc. v. American Bar Ass'n, 846 F.Supp. 374 (E.D.Pa.1994) (dismissing claims against certain individual defendants for lack of personal jurisdiction); 853 F.Supp. 837 (E.D.Pa.1994) (resolving controversies anent discovery); 853 F.Supp. 843 (E.D.Pa.1994) (denying plaintiff's motion for reconsideration); 855 F.Supp. 108 (E.D.Pa.1994) (granting in part defendants' motions for summary judgment); 857 F.Supp. 455 (E.D.Pa.1994) (reconsidering discovery orders); 872 F.Supp. 1346 (E.D.Pa.1994) (denying plaintiff's recusal motion); 895 F.Supp. 88 (E.D.Pa.1995) (reaffirming earlier decision); 914 F.Supp. 1172 (E.D.Pa.1996) (imposing sanctions); 937 F.Supp. 435 (E.D.Pa.1996) (granting remaining defendants' dispositive motions).

With the antitrust case still extant, MSL sought to try its luck in the Massachusetts state courts. Its suit named the ABA, the AALS, twelve of the same individuals whom it had sued in MSL I, and three virgin defendants (NESL and two additional Committee members, Moeser and Yu). MSL's complaint asserts claims for violation of Mass. Gen. Laws ch. 93A and for tortious misrepresentation against all the defendants, as well as claims for fraud, deceit, civil conspiracy, and breach of contract against the AALS, the ABA, and the fourteen named individuals. The strand that sews together this tapestry of charges is MSL's accusation that the ABA and the AALS for many years have banded together to monopolize legal education with a goal of increasing their institutional power and boosting the salaries of law professors and administrators. MSL asserts that its educational philosophy poses a threat to the ABA/AALS cabal and that the two organizations therefore conspired to deny MSL accreditation, despite the fact that MSL's educational offerings are exemplary.

Invoking 20 U.S.C. § 1099b(f), discussed infra Part V, the defendants removed the case to the United States District Court for the District of Massachusetts. The district court denied MSL's timely motion to remand. After a full year's worth of pretrial skirmishing, the court methodically dismembered MSL's complaint, defendant by defendant, during a four month period in 1997: on January 10, it granted NESL's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6); on February 13, it granted the Eight Individual Defendants' motion to dismiss for lack of personal jurisdiction; on March 3, it granted the AALS's motion for summary judgment; and on May 8, it granted summary judgment in favor of the ABA and the Six Individual Defendants. MSL appeals from each of these rulings.

We first address two threshold jurisdictional issues: the refusal to remand and the court's holding that it lacked jurisdiction over the Eight Individual Defendants. From that point forward, we proceed on a defendant-by- defendant basis.

V. THE MOTION TO REMAND

The court below denied MSL's motion to remand, ruling that the suit arose under federal law. See 28 U.S.C. § 1331 (1994); see also Viqueira v. First Bank, 140 F.3d 12, 17-19 (1st Cir.1998) (discussing federal question jurisdiction). Judge Lasker premised this holding on 20 U.S.C. § 1099b(f), which provides in pertinent part:

Notwithstanding any other provision of law, any civil action brought by an institution of higher education seeking accreditation from, or accredited by, an accrediting agency or association approved by the Secretary ... and involving the denial, withdrawal, or termination of accreditation of the institution of higher education, shall be brought in the appropriate United States district court.

We review the denial of a motion to remand de novo and place the burden of persuasion upon the party who insists that federal jurisdiction obtains. See BIW Deceived v. Local S6, 132 F.3d 824, 831 (1st Cir.1997).

We appear to be the first appellate court to address this seldom-used removal statute. The statutory language is straightforward and the provision's meaning clear: if a civil action brought by an institution of higher education involves a denial of accreditation, then federal jurisdiction exists. MSL, by self-characterization, is an institution of higher education, and the ABA's withholding of accreditation is the cynosure of its suit. Thus, to the extent that MSL alleges harms within the accreditation process--and such allegations permeate its complaint--section 1099b(f) applies.

The only colorable issue that MSL raises with regard to remand implicates the constitutionality of section 1099b(f). This, too, is a question of first impression. For a case properly to "aris[e] under" federal law, 28 U.S.C. § 1331, Congress must confer federal jurisdiction in the context of a broad statutory framework within an area susceptible to congressional regulation. In other words, the jurisdictional grant must be "simply one part of [a] comprehensive scheme." Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 496, 103 S.Ct. 1962, 1972-73, 76 L.Ed.2d 81 (1983). MSL contends that section 1099b(f) fails this test and that Article III does not permit Congress to confer federal jurisdiction by means of such a freewheeling jurisdictional statute. See, e.g., The Propeller Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443, 452, 13 L.Ed. 1058 (1851); Mossman v. Higginson, 4 U.S. (4 Dall.) 12, 13, 1 L.Ed. 720 (1800) (per curiam).

The focus of our inquiry thus becomes whether section 1099b(f)'s grant of jurisdiction occurs within a sufficiently comprehensive regulatory scheme. We answer this question affirmatively. Accreditation serves an important national function because once an institution of higher education becomes accredited by the DOE or its designated accrediting agency, the institution becomes eligible for federal student loan monies. See Chicago Sch. of Automatic Transmissions, Inc. v. Accreditation Alliance of Career Schs. & Colleges, 44 F.3d 447, 449 (7th Cir.1994). The Higher Education Act and the DOE's implementing regulations spin a sophisticated regulatory web that governs the relationship between accrediting agencies and accreditation applicants. See, e.g., 34 C.F.R. § 602.24, 602.28 (1996) (requiring that accrediting agencies apply consistent standards and give applicants due process). The grant of federal jurisdiction over matters involving accreditation is reasonably related to the efficient operation of that system. No more is exigible.

To summarize, section 1099b(f)'s grant of federal jurisdiction occurs within a broad statutory framework, properly the subject of congressional concern. Accordingly, the statute comports with Article III. Removal was altogether appropriate.

VI. THE EIGHT INDIVIDUAL DEFENDANTS

When the district court applies the prima facie standard and grants a motion to dismiss for want of in personam jurisdiction without conducting an evidentiary hearing to resolve disputed jurisdictional facts, the court of appeals reviews its ruling de novo. See Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 147 (1st Cir.1995). The lower court's decision to dismiss MSL's action as to the Committee members--defendants Hasl, Moeser, Ryan, Schneider, Sowle, Walwer, and Yu--falls within this sphere. So does the order dismissing the action against the last of the Eight Individual Defendants, Henry Ramsey, Jr. (the chair of the Section). Withal, Ramsey's situation requires a more extended analysis.

The factual basis for MSL's jurisdictional initiative derives predominantly from three events that occurred in 1993. According to the complaint, Hasl, Moeser, Schneider, and Ramsey met in Boston on February 6. The quartet allegedly "used false statements and charges"--the nature of which is not disclosed--in order "to try to bring their plan of non-accreditation of MSL to fruition." A review of the parties' proffers reveals, however, that the only MSL-related business transacted at this meeting involved a decision to delay the site visit by one month. MSL next alludes to a Committee meeting that took place on June 23 in Brooklyn, New York. The Eight Individual Defendants all attended this session and participated in the denial of MSL's application for accreditation. The Eight Individual Defendants, save Ramsey, also attended a retreat that took place on Nantucket Island, in Massachusetts, from June 24- 27. MSL asserts conclusorily that the Committee "finalized" the denial of its application during this period, but the record flatly contradicts this assertion: the retreat participants all maintain (to quote from typical language appearing in their several affidavits) that "[w]hile in Nantucket, the Committee did not take up any agenda item concerning MSL, as all matters concerning MSL had been concluded in Brooklyn, New York, on June 23, 1993." MSL proffers no clear evidence showing that these statements are inaccurate.

On a motion to dismiss for want of in personam jurisdiction, Fed.R.Civ.P. 12(b)(2), the plaintiff ultimately bears the burden of persuading the court that jurisdiction exists. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936); Rodriguez v. Fullerton Tires Corp., 115 F.3d 81, 83 (1st Cir.1997). In conducting the requisite analysis under the prima facie standard, we take specific facts affirmatively alleged by the plaintiff as true (whether or not disputed) and construe them in the light most congenial to the plaintiff's jurisdictional claim. See Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 203 (1st Cir.1994). We then add to the mix facts put forward by the defendants, to the extent that they are uncontradicted. See, e.g., Topp v. CompAir Inc., 814 F.2d 830, 836-37 (1st Cir.1987). We caution that, despite the liberality of this approach, the law does not require us struthiously to "credit conclusory allegations or draw farfetched inferences." Ticketmaster-N.Y., 26 F.3d at 203.

A district court may exercise authority over a defendant by virtue of either general or specific jurisdiction. See Donatelli v. National Hockey League, 893 F.2d 459, 462-63 (1st Cir.1990). General jurisdiction "exists when the litigation is not directly founded on the defendant's forum- based contacts, but the defendant has nevertheless engaged in continuous and systematic activity, unrelated to the suit, in the forum state." United Elec., Radio & Mach. Workers v. 163 Pleasant St. Corp., 960 F.2d 1080, 1088 (1st Cir.1992). MSL does not argue, and we find no facts to suggest, that any of the Eight Individual Defendants can be brought before a Massachusetts court on a general jurisdiction theory.

In the absence of general jurisdiction, a court's power depends upon the existence of specific jurisdiction. Specific jurisdiction exists when there is a demonstrable nexus between a plaintiff's claims and a defendant's forum-based activities, such as when the litigation itself is founded directly on those activities. See Donatelli, 893 F.2d at 462. In this instance, MSL asserts specific jurisdiction under Mass. Gen. L. ch. 223A. § 3 (1992). MSL cites variously to section 3(a), which extends "personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person's ... transacting any business" in Massachusetts, and to section 3(c), which authorizes personal jurisdiction over a non-resident who causes "tortious injury" by an "act or omission in this Commonwealth."

We need not pause to consider the particulars of the Massachusetts long-arm statute. Even if that statute, correctly applied, would purport to grant jurisdiction over the Eight Individual Defendants--a matter of state law on which we take no view--MSL still would have to demonstrate that "the exercise of jurisdiction pursuant to that statute comports with the strictures of the Constitution." Pritzker v. Yari, 42 F.3d 53, 60 (1st Cir.1994). In the personal jurisdiction context, we have characterized compliance with the Constitution as implicating "three distinct components, namely, relatedness, purposeful availment (sometimes called 'minimum contacts'), and reasonableness." Foster-Miller, 46 F.3d at 144. We analyze the situations of the Eight Individuals Defendants through this prism.

In order for the extension of personal jurisdiction to survive constitutional scrutiny, a claim must "arise out of, or be related to, the defendant's in-forum activities." Ticketmaster-N.Y., 26 F.3d at 206. We have approached the relatedness inquiry with slightly different emphases when the plaintiff asserts a contract claim then when she asserts a tort claim: if a contract claim, our stereotypical inquiry tends to ask whether the defendant's forum-based activities are "instrumental in the formation of the contract," Hahn v. Vermont Law Sch., 698 F.2d 48, 51 (1st Cir.1983); if a tort claim, we customarily look to whether the plaintiff has established "cause in fact (i.e., the injury would not have occurred 'but for' the defendant's forum-state activity) and legal cause (i.e., the defendant's in-state conduct gave birth to the cause of action)." United Elec., Radio & Mach. Workers, 960 F.2d at 1089; see also Ticketmaster-N.Y., 26 F.3d at 207 (noting that the relatedness inquiry is intended in part to "ensure[ ] that the element of causation remains in the forefront of the due process investigation"). In respect to the Eight Individual Defendants, MSL presents only tort claims before us, [FN5] and thus our relatedness analysis thus focuses on causation. We find this element clearly lacking as regards the seven Committee members.

FN5. To be sure, MSL originally brought a breach of contract claim against the Eight Individual Defendants, but this claim was frivolous from cradle to grave. The law is settled in Massachusetts that, "[u]nless otherwise agreed, a person making or purporting to make a contract for a disclosed principal does not become a party to the contract." Porshin v. Snider, 349 Mass. 653, 212 N.E.2d 216, 217 (1965) (internal quotation marks and citation omitted).

The only activities undertaken in Massachusetts by any of these seven persons that possibly could relate to MSL's state-law claims consists of the participation of three of them in the Boston meeting and the attendance of all seven at the Nantucket retreat. MSL's insinuations notwithstanding, the particularized facts that were before the district court show conclusively that both of these activities were benign: the Boston meeting dealt with MSL in a purely peripheral sense (doing no more than to delay the site visit to MSL's facility by one month), [FN6] and the retreat did not deal with MSL at all.

FN6. MSL does not allege that this postponement constituted an actionable harm. For our part, we do not fathom how it plausibly can be said to give rise to MSL's state-law claims.

MSL also argues that two letters written to it by James White, an ABA consultant, are sufficient to extend personal jurisdiction over the Eight Individual Defendants. One of these communiques informed MSL of the Committee's decision not to grant MSL provisional approval; contemporaneous copies were sent by White to the seven Committee members. The other letter informed MSL of the Council's decision to reject its application for a variance pursuant to Standard 802 and to deny its accreditation appeal. Contemporaneous copies of this letter were sent to defendants Hasl, Moeser, and Ramsey.

These missives do not carry weight in the jurisdictional calculus vis-a-vis the Eight Individual Defendants. We cannot subscribe to a transitive view of minimum contacts, which would hold that a letter from A to B that reports on C's actions confers personal jurisdiction over C in B's home state based on those actions. Without a more substantial nexus, the extension of such jurisdiction would violate due process, for the connection between C's actions in an extra-forum jurisdiction and B's home state is too attenuated to satisfy the relatedness requirement. See Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 417, 104 S.Ct. 1868, 1873-74, 80 L.Ed.2d 404 (1984). Nor do we think that the case for the application of such a novel rule is bolstered by the mere fact that A (acting, for aught that appears, on his own initiative) chooses to inform C of his communication with B by mailing her a copy of it.

Although MSL does not assert in so many words that the Committee's denial of accreditation at the Brooklyn meeting constitutes conduct directed into Massachusetts sufficient to bestow personal jurisdiction, it intimates as much. We therefore address this possibility. The transmission of facts or information into Massachusetts via telephone or mail would of course constitute evidence of a jurisdictional contact directed into the forum state, see Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 2184, 85 L.Ed.2d 528 (1985), but we must determine whether the Committee's decision to deny accreditation--a decision that had effects in Massachusetts--qualifies as such a contact.

We have wrestled before with this issue of whether the in-forum effects of extra-forum activities suffice to constitute minimum contacts and have found in the negative. For example, in Sawtelle v. Farrell, 70 F.3d 1381 (1st Cir.1995), we recounted Kowalski v. Doherty, Wallace, Pillsbury & Murphy, 787 F.2d 7 (1st Cir.1986), and noted that in Kowalski "we rejected the plaintiff's contention that, because the 'effects' of the firm's negligence were felt in New Hampshire, the law firm had caused an injury there by conduct directed at that forum." Sawtelle, 70 F.3d at 1390. Just as the New Hampshire effects of Massachusetts negligence, without more, could not sustain an action in New Hampshire against the negligent actor, see Kowalski, 787 F.2d at 11, so too the Massachusetts effects of the Eight Individual Defendants' New York actions, without more, fail to sustain an action in a Massachusetts court. Accord Sawtelle, 70 F.3d at 1394 (holding that New Hampshire effects of non-forum negligence, without more, are insufficient to support personal jurisdiction).

Ramsey is in a slightly different position. Although what we have just discussed pertains to him--after all, he participated in both the Boston and Brooklyn meetings--it is not conclusive because the record reflects that, unlike his seven cohorts, he had other contacts which might suffice to clear the relatedness hurdle. Ramsey wrote a memorandum to White that memorialized a conversation between Ramsey and MSL's Dean Velvel. Ramsey reported that during this conversation Velvel attempted to couple MSL's effort to obtain waivers under Standard 802 with MSL's plan to persuade the DOE to jettison the ABA as the national accrediting agency for law schools. The memorandum itself indicates that Ramsey sent a copy to Velvel, presumably at MSL, and the inclusion of Velvel's Andover telephone number indicates that Velvel was in Massachusetts when he and Ramsey spoke. Although the contents of this memorandum hardly flatter MSL, the memorandum constitutes some indication that Ramsey engaged in conduct that might bear upon the relatedness inquiry.

Because of our doubts about the outcome of the relatedness inquiry vis-a-vis Ramsey, we turn to the question of whether Ramsey's contacts with Massachusetts "represent a purposeful availment of the privilege of conducting activities in [Massachusetts], thereby invoking the benefits and protections of [its] laws and making the defendant's involuntary presence before [the Massachusetts] court foreseeable." Pritzker, 42 F.3d at 61 (internal quotation marks and citation omitted).

Even though the record suggests that Ramsey participated in a telephone call with Dean Velvel concerning MSL's accreditation while Velvel was in Massachusetts, it is uninformative as to who initiated the call. In either case, we believe that this solitary telephone conversation and the subsequent mailing of a copy of Ramsey's memorandum, even when combined with Ramsey's participation in the Boston meeting, are insufficient to establish purposeful availment. See, e.g., Aylward v. Fleet Bank, 122 F.3d 616, 618 (8th Cir.1997) (holding that three telephone calls and one letter within a seven month period were insufficient to support the exercise of personal jurisdiction when the alleged injury did not arise directly from the contacts); U.S.S. Yachts, Inc. v. Ocean Yachts, Inc., 894 F.2d 9, 11 (1st Cir.1990) (holding that three letters sent to Puerto Rico were insufficient to support the exercise of personal jurisdiction in that venue). Put another way, based on these exiguous contacts Ramsey could not reasonably have foreseen being haled into a Massachusetts court to answer allegations of a wide-ranging conspiracy. We therefore conclude that the extension of personal jurisdiction to him would violate his due process rights.

In a last-ditch effort to stem the tide, MSL laments that it did not have the opportunity to engage in jurisdictional discovery. The docket contains no evidence, however, that MSL ever made a motion or other documented request for jurisdictional discovery in the district court. [FN7] Therefore, in accordance with firmly settled principles, we will not entertain its plaint now. See Sunview Condo. Ass'n v. Flexel Int'l, Ltd., 116 F.3d 962, 964-65 (1st Cir.1997).

FN7. MSL's belated Rule 56(f) motion, see infra Part X, did not mention jurisdictional discovery.

We have said enough on this score. Because MSL neither alleged nor proffered sufficient facts to permit the exercise of jurisdiction over the Eight Individual Defendants, the district court did not err when it granted their motion to dismiss. See Fed.R.Civ.P. 12(b)(2).

VII. THE ABA AND THE AALS

The ABA and the AALS each present multiple grounds in support of the district court's grant of summary judgment. The most striking of these is the defense of res judicata. In its present iteration, this defense turns on whether the judgment entered in the previous litigation between the parties (MSL I ) bars the plaintiff from maintaining the instant action against these two institutional defendants. [FN8]

FN8. The res judicata defense also might be available to some or all of the fourteen individual defendants. In its classic formulation, res judicata operates not only between parties, but between parties and their privies, see, e.g., Fiumara v. Fireman's Fund Ins. Cos., 746 F.2d 87, 92 (1st Cir.1984), and the actions attributed to the individual defendants apparently occurred in their capacities as representatives of the ABA. The situation is tenebrous, however, because most of these defendants (all except Moeser and Yu, to be exact) successfully escaped from the Pennsylvania proceedings on jurisdictional grounds, see MSL v. ABA, 846 F.Supp. 374 (E.D.Pa.1994), thus complicating their current effort to find shelter under the Pennsylvania court's judgment. See generally Computer Assocs. Int'l, Inc. v. Altai, Inc., 126 F.3d 365, 370 (2d Cir.1997) (suggesting, on somewhat dissimilar facts, that "[e]ven where a second action arises from some of the same factual circumstances that gave rise to a prior action, res judicata is inapplicable if formal jurisdictional or statutory barriers precluded the plaintiff from asserting its claims in the first action"), cert. denied, --- U.S. ----, 118 S.Ct. 1676, 140 L.Ed.2d 814 (1998). We do not need to resolve this thorny question because all the individual defendants reach safe harbor on other, more pedestrian theories. See supra Part VI; infra Part IX.

Where, as here, both the potentially precluding suit and the potentially precluded suit were litigated in federal courts, federal law governs the res judicata effect of the prior judgment. See Gonzalez v. Banco Central Corp., 27 F.3d 751, 755 (1st Cir.1994). The elements of federal res judicata are "(1) a final judgment on the merits in an earlier suit, (2) sufficient identicality between the causes of action asserted in the earlier and later suits, and (3) sufficient identicality between the parties in the two suits." Id. In this instance, the first and third tines of the test are foregone conclusions. Because the Supreme Court denied certiorari after the Third Circuit affirmed the district court's entry of final judgment in MSL I, the finality of the earlier judgment cannot be gainsaid. By like token, MSL, the ABA, and the AALS were parties to the precursor litigation and thus satisfy the identicality requirement. The question, then, is whether the state-law claims that MSL now advances against the ABA and the AALS are sufficiently related to the causes of action asserted in MSL I to warrant claim preclusion.

We begin with bedrock. To bring claim preclusion into play, a cause of action need not be a clone of the earlier cause of action. "Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414-15, 66 L.Ed.2d 308 (1980). We have adopted a transactional approach to determine whether causes of action are sufficiently related to support a res judicata defense. See Kale v. Combined Ins. Co., 924 F.2d 1161, 1166 (1st Cir.1991). "Under this approach, a cause of action is defined as a set of facts which can be characterized as a single transaction or series of related transactions." Apparel Art Int'l, Inc. v. Amertex Enters., Ltd., 48 F.3d 576, 583 (1st Cir.1995). This boils down to whether the causes of action arise out of a common nucleus of operative facts. See Gonzalez, 27 F.3d at 755. In mounting this inquiry, we routinely ask "whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations." Aunyx Corp. v. Canon U.S.A., Inc., 978 F.2d 3, 6 (1st Cir.1992) (quoting Restatement (Second) of Judgments § 24 (1982)).

These principles are dispositive here. MSL's pending claims, though rooted in Massachusetts law, plainly arise from the same set of operative facts as its earlier antitrust claims. Although MSL describes the later claims more colloquially and dresses them in different legal raiment, the conduct that underbraces the two sets of claims is strikingly similar in time, space, origin, and motivation. Both suits stem from MSL's failed efforts in 1992 and 1993 to receive ABA accreditation. In both cases, MSL alleges that the ABA and the AALS orchestrated a long-term scheme to accumulate power and money and a short-term scheme to deny accreditation unjustly to MSL because MSL dared to oppose their hegemony.

In addition to their common heritage, the two suits also are compatible in a practical sense. It is settled "that where the witnesses or proof needed in the second action overlap substantially with those used in the first action, the second action should ordinarily be precluded." Porn v. National Grange Mut. Ins. Co., 93 F.3d 31, 36 (1st Cir.1996). Because neither MSL's antitrust claims nor its state-law claims survived summary disposition, we must make an informed prophecy as to what witnesses would have appeared and what proof would have emerged had the two cases been tried. Here, the two suits' factual underpinnings are the same. This unmistakable congruence strongly suggests that the same witnesses--largely ABA, AALS, and MSL personnel--and information--the evolution of the ABA accreditation procedures and the details of the MSL accreditation effort--would have been necessary to resolve both cases. This substantial imbrication makes it apparent that the two cases would have formed a convenient trial unit and argues powerfully for claim preclusion. See id. at 34; see also King v. Union Oil Co., 117 F.3d 443, 445 (10th Cir.1997).

To the extent that reasonable expectations, objectively assayed, enter into the res judicata calculus, they augur here toward the same conclusion. In the first place, since the two sets of claims arise in the same time frame out of similar facts, "one would reasonably expect them to be brought together," Porn, 93 F.3d at 37. In the second place, a party may be more readily presumed to expect that a court will treat multiple causes of action as a single trial unit when the plaintiff has all the facts necessary to bring the second claim at its disposal before or during the pendency of the first. MSL does not identify any significant facts that were not within its ken before the antitrust action reached its climax. We therefore conclude that the application of res judicata is an entirely predictable consequence of MSL's unilateral decision to split its claim.

Of course, res judicata will not attach if the claim asserted in the second suit could not have been asserted in the first. See In re Newport Harbor Assocs., 589 F.2d 20, 24 (1st Cir.1978). In an effort to avoid looming defeat, MSL tries to squeeze through this loophole by questioning whether it could have brought the instant claims in the Eastern District of Pennsylvania. Insofar as this question relates to MSL's pursuit of the ABA and the AALS, it is easily answered.

Under 28 U.S.C. § 1367(a), a federal court that exercises federal question jurisdiction over a claim may also assert supplemental jurisdiction over all state-law claims that arise from the same operative facts. See BIW Deceived, 132 F.3d at 833; Rodriguez v. Doral Mortgage Corp., 57 F.3d 1168, 1175 (1st Cir.1995). As we already have determined, the facts upon which MSL grounded its antitrust action concern MSL's efforts to receive ABA accreditation between 1992 and 1993. This same trove of facts also provides the basis for MSL's state-law claims against the ABA and the AALS. As a result, had MSL ventured to bring its current compendium of claims before the Pennsylvania federal district court as part and parcel of MSL I, that court could have entertained them in conjunction with the antitrust action then before it. See 28 U.S.C. § 1367.

Despite the fact that the Court has ceded the federal judiciary broad leeway to "look to the common law or to the policies supporting res judicata ... in assessing the preclusive effect of decisions of other federal courts," Allen, 449 U.S. at 96, 101 S.Ct. at 415, MSL makes one last effort to undercut the district court's determination. Res judicata cannot be applied against a plaintiff unless the plaintiff had a full and fair opportunity to litigate all its claims in the original action. See id. at 90, 101 S.Ct. at 412-13; Kale, 924 F.2d at 1168. Citing a series of adverse discovery rulings, MSL argues that it did not receive such an opportunity in the Eastern District of Pennsylvania.

The Court has not yet addressed the standard for determining the existence vel non of a full and fair opportunity in regard to a prior federal judgment. The standard, however, is quite permissive as it pertains to prior state court judgments. To meet this standard, a state court judgment need only "satisfy the minimal procedural requirements of the Fourteenth Amendment's Due Process Clause." Kremer v. Chemical Constr. Corp., 456 U.S. 461, 481, 102 S.Ct. 1883, 1897, 72 L.Ed.2d 262 (1982). We do not envision a significantly less latitudinarian test for federal court judgments. We hold, therefore, that as long as a prior federal court judgment is procured in a manner that satisfies due process concerns, the requisite "full and fair opportunity" existed.

Here, MSL points to its numerous failed efforts to obtain additional discovery in the Eastern District of Pennsylvania and asseverates that draconian restrictions deprived it of an adequate chance to litigate its claims in MSL I. These allegations of discovery error are reheated for our consumption. They previously were reviewed and rejected by the Third Circuit, see MSL I, 107 F.3d at 1033-34, and we see no reason to revisit that determination.

At any rate, a full and fair opportunity to litigate cannot be equated with a license to do as a party pleases. The adjudicative process operates pursuant to rules, and an opportunity to litigate is no less "full" or "fair" simply because the forum court enforces conventional limitations on pretrial discovery. By any conceivable criterion, MSL had its full and fair opportunity to assert, in the Pennsylvania proceeding, the panoply of procedural and substantive rights guaranteed it by federal law. Its first action therefore furnishes a proper predicate for the application of res judicata in its second action.

In this instance, all roads lead to Rome. MSL had an appropriate opportunity to litigate its first set of claims, and conveniently could have brought the second set as part of the same proceeding. Its failure to do so dooms the instant action since MSL's two sets of allegations arise from a common nucleus of operative facts and fit together tongue and groove. We conclude that, as a consequence of this road not taken, res judicata precludes MSL's state-law claims against the ABA and the AALS. Accordingly, we affirm the district court's grant of summary judgment in favor of these two institutional defendants. [FN9]

FN9. Given this disposition, we do not address the other reasons that the ABA and the AALS tout as independently sufficient to support the entry of judgment in their favor.

VIII. NEW ENGLAND SCHOOL OF LAW

The district court granted NESL's motion to dismiss, ruling that the complaint failed to state a claim against NESL upon which relief could be granted. See Fed.R.Civ.P. 12(b)(6). We review this determination de novo, accept all well-pleaded facts as true, and draw all reasonable inferences in favor of the plaintiff. See Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir.1989). Notwithstanding the generous contours of this standard, a reviewing court need not "swallow plaintiff's invective hook, line, and sinker; bald assertions unsupportable conclusions, periphrastic circumlocutions, and the like need not be credited." Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996).

MSL's briefing reads as if it were seeking to hold NESL liable for civil conspiracy. Nevertheless, its complaint aims the conspiracy charge elsewhere and the sufficiency of a complaint ordinarily should be tested by examining the claims that are stated therein rather than by weighing afterthought claims that are only mentioned in a legal brief. See Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 22 (1st Cir.1998); Doyle v. Hasbro, Inc., 103 F.3d 186, 190 (1st Cir.1996); Litton Indus., Inc. v. Colon, 587 F.2d 70, 74 (1st Cir.1978). As MSL's complaint does not level a conspiracy charge against NESL, we limit our inquiry to the claims that MSL saw fit to plead.

MSL's complaint asserts two causes of action against NESL: tortious misrepresentation and violations of the Massachusetts statute governing unfair and deceptive trade practices (commonly known as Chapter 93A). The complaint predicates these causes of action on an exchange of correspondence between NESL officials (specifically, James Lawton, the chair of NESL's board of trustees, and Ellen Wayne, NESL's placement director) and the ABA's consultant, James White. We catalog these four pieces of correspondence.

Lawton wrote to White on January 2, 1990, stating in pertinent part:

The chairman of the Massachusetts Board of Regents is former U.S. Senator Paul Tsongas and he is for all intents and purposes the "principal" in the Massachusetts School of Law at Andover. Mr. Tsongas has the solid support of the Boston Globe and the Board of Regents are under his complete control at this time.

My guess is that any other, new or competing law schools, which may come into existence will not receive support from the Regents who are a rigidly controlled group of Dukakis loyalists who will only do what they are told by the present administration under Tsongas and [Governor] Dukakis.

Later that year, Wayne informed White that Massachusetts authorities had authorized MSL to award J.D. degrees, and that its graduates henceforth could sit for the Massachusetts bar. This missive, dated June 19, 1990, also mentioned that MSL had requested and received a table at a fair sponsored by the Northeast Association of Pre-Law Advisors (NAPLA). Wayne reported that NAPLA's by-laws had compelled approval of MSL's request, but that the NAPLA board of directors would amend the by-laws to restrict participation in subsequent programs to "ABA approved law school[s]." The complaint does not allege that NAPLA excluded MSL from any subsequent events.

Eight days later, White wrote to Lawton and solicited his opinion as to the possibility of convincing the Massachusetts Supreme Judicial Court (SJC) to amend its rules and require graduation from an ABA-accredited law school as a prerequisite to taking the Massachusetts bar examination. Lawton's response, dated July 17, 1990, indicated his approbation and recommended that members of the bar petition for such an amendment. The complaint does not allege that such a request was ever made or that the SJC revised its rules in the desired manner. [FN10]

FN10. We take judicial notice that the SJC has not amended its rules to exclude MSL graduates from sitting for the Massachusetts bar. See SJC Rule 3:01, § 2 (1997).

The first letter from Lawton to White is plainly inaccurate insofar as it proclaims a Tsongas/MSL connection. Senator Tsongas, who had ties to a different unaccredited law school, had none with MSL. MSL does not assert that the first letter contains any other inaccuracies and does not point to any misstatements in the remaining three epistles.

Against this mise-en-scene, we turn to MSL's claim of tortious misrepresentation. This strikes us as something of a misnomer (our canvass of Massachusetts case law does not reveal a single articulation of the elements of a particularized cause of action for tortious misrepresentation), but in all events, Massachusetts jurisprudence recognizes causes of action for both fraudulent misrepresentation and negligent misrepresentation. See, e.g., Craig v. Everett M. Brooks Co., 351 Mass. 497, 222 N.E.2d 752, 753 (1967) (fraudulent misrepresentation); Nycal Corp. v. KPMG Peat Marwick, 426 Mass. 491, 688 N.E.2d 1368, 1371 (1998) (negligent misrepresentation). MSL's complaint does not plead this claim with sufficient particularity to support a charge of fraud, [FN11] see Fed.R.Civ.P. 9(b), and thus, we interpret the complaint as an attempt to articulate a claim for negligent misrepresentation. The elements of such a cause of action are that the defendant falsely represented a past or existing material fact without any reasonable basis for thinking it to be true; that he intended to euchre the plaintiff into relying on the representation; that the plaintiff, unaware of the representation's falsity, justifiably relied on it; and that the plaintiff suffered harm due to his reliance. See 37 Am.Jur.2d, Fraud and Deceit § 12 (1968).

FN11. The complaint does contain a separate count for fraud and deceit, but that count does not name NESL as a defendant.

The claim deserves short shrift. To be sure, the comments about Senator Tsongas amount to a misrepresentation, but MSL does not plead that it relied on that misrepresentation to its detriment, [FN12] and such reliance cannot plausibly be inferred from the complaint's other averments. The general rule is that, without this necessary element, there can be no recovery for negligent misrepresentation under Massachusetts law. See Romanoff v. Balcom, 4 Mass.App.Ct. 768, 339 N.E.2d 927, 927 (1976).

FN12. This omission is scarcely an oversight. In MSL's claim for fraud and deceit against the ABA and various individual defendants, it explicitly claims to have relied upon representations made by those parties. In formulating its misrepresentation claim against NESL, however, MSL makes no comparable assertion. The contrast is telling.

There is an exception to this rule. In the absence of detrimental reliance, a party still may be held liable under Massachusetts law for misrepresentation of information negligently supplied for the guidance of others. See Fox v. F & J Gattozzi Corp., 41 Mass.App.Ct. 581, 672 N.E.2d 547, 551 (1996) (stating that if a defendant "in the course of his business ... supplies false information for the guidance of others in their business transactions," he "is subject to liability for pecuniary loss caused to [third persons] by [the recipient's] justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information") (quoting Restatement (Second) Torts § 552(1) (1977)).

MSL's claim for tortious misrepresentation fails to qualify for this exception. Even if we assume that Lawton's first letter to White occurred in the course of a "business transaction"--a fact that MSL does not allege--MSL pleads neither that it (or anyone else, for that matter) relied upon Lawton's faux pas nor that it suffered any harm as a result of the transmittal of the Tsongas-related (mis)information. Hence, the district court did not err in granting NESL's motion to dismiss the tortious misrepresentation count.

We next engage MSL's Chapter 93A claim for "unfair and deceptive acts." Mass. Gen. Laws ch. 93A, § 2. By their nature, Chapter 93A claims tend to be case-specific. Their general meter, however, is that the defendant's conduct must be not only wrong, but also egregiously wrong--and this standard calls for determinations of egregiousness well beyond what is required for most common law claims. See Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 390 N.E.2d 243, 251 (1979). To quote a by-now-familiar formulation, "the objectionable conduct must attain a level of rascality that would raise an eyebrow of someone inured to the rough and tumble of the world of commerce." Levings v. Forbes & Wallace, Inc., 8 Mass.App.Ct. 498, 396 N.E.2d 149, 153 (1979).

MSL's complaint is inscrutable as to the precise nature of its Chapter 93A claim and its briefing is not very helpful on this score. Its complaint attributes nothing to NESL beyond the latter's role in the exchange of correspondence described above. MSL apparently means to asseverate that publication of the statements contained in the exchange of correspondence defamed or otherwise damaged it and thus transgressed Chapter 93A. This asseveration cannot survive scrutiny.

The SJC recently has held that "where allegedly defamatory statements do not support a cause of action for defamation, they also do not support a cause of action under [Chapter] 93A." Dulgarian v. Stone, 420 Mass. 843, 652 N.E.2d 603, 609 (1995). Truth is an absolute defense to a defamation action under Massachusetts law, see Bander v. Metropolitan Life Ins. Co., 313 Mass. 337, 47 N.E.2d 595, 598 (1943), and MSL therefore must demonstrate that NESL published "a false and defamatory written communication of and concerning the plaintiff." McAvoy v. Shufrin, 401 Mass. 593, 518 N.E.2d 513, 517 (1988). As previously noted, the only false statement ascribed to any NESL representative concerns Senator Tsongas's alleged patronage of MSL.

We next consider if that statement can form the basis for a claim of defamation by MSL. Whether a statement is reasonably susceptible of a defamatory meaning is a question of law for the court. See Foley v. Lowell Sun Pub. Co., 404 Mass. 9, 533 N.E.2d 196, 197 (1989). For a communication to qualify as defamatory, "[t]he test is, whether, in the circumstances, the writing discredits the plaintiff in the minds of any considerable and respectable class in the community." Smith v. Suburban Restaurants, Inc., 374 Mass. 528, 373 N.E.2d 215, 217 (1978). The core question, therefore, is not whether Lawton's demonstrated falsehood discredits somebody--it plainly denigrates the late senator--but whether it significantly discredits MSL. See New Eng. Tractor-Trailer Training, Inc. v. Globe Newspaper Co., 395 Mass. 471, 480 N.E.2d 1005, 1007 (1985).

In our estimation, the misstatement contained in Lawton's January 2 letter does not sink to this level. The senator enjoyed an enviable reputation as a public servant of the highest integrity. MSL has failed utterly to suggest how any educational institution could be defamed by attributing to it a connection with him. Absent such a link, no action lies. See, e.g., Schwanbeck v. Federal-Mogul Corp., 31 Mass.App.Ct. 390, 578 N.E.2d 789, 804 (1991) (explaining that false statements must have adverse consequences for a plaintiff in order to be actionable under Chapter 93A). Thus, the Tsongas- related comment, though untrue, is not defamatory of and concerning MSL.

Nor does MSL's complaint allege any other cognizable basis for Chapter 93A liability on NESL's part. The four items of correspondence hint that NESL did not wish MSL well, but none of the matters which its representatives discussed with White suggest activities so scurrilous as to trigger liability under Chapter 93A. Although we understand that a Chapter 93A violation need not rest on an independent common law tort, see Massachusetts Farm Bureau Fed'n, Inc. v. Blue Cross, Inc., 403 Mass. 722, 532 N.E.2d 660, 664 (1989), the conduct must at least come within shouting distance of some established concept of unfairness. See Gooley v. Mobil Oil Corp., 851 F.2d 513, 515-16 (1st Cir.1988).

To sum up, even if Lawton and Wayne, on NESL's behalf, participated in activities of the kind adumbrated by their correspondence, such activities, though hostile to MSL and inimical to its interests, are not "so seriously deceptive and harmful" as to permit recovery under Chapter 93A. Zayre Corp. v. Computer Sys. of Am., Inc., 24 Mass.App.Ct. 559, 511 N.E.2d 23, 30 n. 23 (1987). Indeed, NESL's suspected (but unproven and unalleged) "actions"-- e.g., asking NAPLA to amend its by-laws or petitioning the SJC to revise its rules--do not abridge any legal duty or bedrock concept of unfairness, and are not so "unethical, oppressive, or unscrupulous" as to be actionable under Chapter 93A. PMP Assocs., Inc. v. Globe Newspaper Co., 366 Mass. 593, 321 N.E.2d 915, 917 (1975) (citation and internal quotation marks omitted). What is more, MSL fails to allege how NESL's involvement in these activities actually caused any cognizable economic harm to it. In itself, this is a fatal flaw. See Zayre Corp., 511 N.E.2d at 30; see also Mass. Gen. Laws ch. 93A, § 11 (explaining that, in a Chapter 93A claim, the complainant must show that she "suffer[ed] a loss of money or property, real or personal, as a result of the use ... of an unfair method of competition or an unfair or deceptive act or practice").

That ends the matter. Because MSL has not advanced any sound basis on which NESL could be held liable either for negligent misrepresentation or for transgressing Chapter 93A, we uphold Judge Lasker's order granting NESL's motion to dismiss.

IX. THE SIX INDIVIDUAL DEFENDANTS

We need not linger long over MSL's claims against the Six Individual Defendants. [FN13] This sextet comprises the ABA's consultant (White), plus the five members of the site-visit team (Garcia-Pedrosa, Nahstoll, Smith, Strickland, and Winograd). Judge Lasker dismissed MSL's breach of contract claim against these persons under Rule 12(b)(6) and entered summary judgment in their favor on MSL's remaining claims.

FN13. Five of these defendants participated in the site visit to MSL's facility. In all events, none of them contested the district court's exercise of in personam jurisdiction.

Our review is swift because "[w]e have steadfastly deemed waived issues raised on appeal in a perfunctory manner, not accompanied by developed argumentation." United States v. Bongiorno, 106 F.3d 1027, 1034 (1st Cir.1997). An issue lacks developed argumentation if the appellant merely mentions it as "a possible argument in the most skeletal way, leaving the court to do counsel's work." United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990).

This is such a case. MSL's brief focuses mainly on the ABA and does not make any real attempt to construct a reasoned argument that would call into legitimate question the district court's rulings with regard to the Six Individual Defendants. Of course, with a record appendix that boasts more than 6,500 pages, MSL has furnished a welter of paper, but it has not arrayed these plethoric evidentiary materials in any systematic way vis-a-vis these defendants. Instead, MSL strives to bind together several mounds of proof, quasi-proof, and unsubstantiated allegations together with desultory rhetoric. More is required to pass muster under Bongiorno and Zannino. Accordingly, MSL has forfeited any objection to the lower court's entry of judgment in favor of the Six Individual Defendants.

X. THE RULE 56(f) MOTION

Fed.R.Civ.P. 56(f) provides:

Should it appear from the affidavits of a party opposing [a motion for summary judgment] that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

MSL contends that the district court erroneously denied its motion for further discovery under Rule 56(f). This contention lacks force.

We first set the stage. The ABA and the Six Individual Defendants moved for dismissal on March 29, 1996. The AALS filed a motion for summary judgment on the same date. MSL opposed both motions and the court heard oral arguments on June 7. Three weeks later, while the district court still had the motions under advisement, MSL moved to defer their adjudication until it had obtained more discovery. After conferring with all counsel, the district court denied the Rule 56(f) motion on August 28. On September 26, 1996, the AALS filed a supplemental motion for summary judgment. Four days later, the ABA and the Six Individual Defendants filed a joint motion for summary judgment. MSL again filed oppositions, but did not renew its Rule 56(f) motion. The district court granted the AALS's motion for brevis disposition on March 3, 1997, and granted the parallel motion brought on behalf of the ABA and the Six Individual Defendants on May 8, 1997.

In this venue, MSL ardently embraces Rule 56(f). It contends that the district court acted improvidently in refusing the requested continuance and proceeding to rule upon the defendants' dispositive motions.

To savor the balm of Rule 56(f), a party must act in a timely fashion. See Resolution Trust Corp. v. North Bridge Assocs., Inc., 22 F.3d 1198, 1204 (1st Cir.1994). Moreover, the moving papers must contain a proffer which, at a bare minimum, articulates a plausible basis for the movant's belief that previously undisclosed or undocumented facts exist, that those facts can be secured by further discovery, and that, if obtained, there is some credible prospect that the new evidence will create a trialworthy issue. See Mattoon v. City of Pittsfield, 980 F.2d 1, 7-8 (1st Cir.1992); Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 988 (1st Cir.1988). Finally, the motion must set forth good cause to explain the movant's failure to have conducted the desired discovery at an earlier date. See Maldonado- Denis v. Castillo-Rodriguez, 23 F.3d 576, 584 (1st Cir.1994); Resolution Trust, 22 F.3d at 1205.

We review the denial of relief under Rule 56(f) for abuse of discretion. See Sheinkopf v. Stone, 927 F.2d 1259, 1263 (1st Cir.1991). We discern no abuse here. To the contrary, the record reveals that MSL's attempt to invoke Rule 56(f) was both too late and too little.

We deal first with the temporal aspect. It is firmly established that a Rule 56(f) motion must be made within a reasonable time following the receipt of a motion for summary judgment. See Resolution Trust, 22 F.3d at 1204. This means that a Rule 56(f) motion normally should precede or accompany the response to the summary judgment motion or follow as soon as practicable thereafter. See Paterson-Leitch, 840 F.2d at 988. Of course, there may be extenuating circumstances under which "a party opposing a dispositive motion may not realize until the initial round of oral argument that he requires additional discovery time." Id. But this is an outer limit, and a Rule 56(f) extension request made after the conclusion of oral argument on a summary judgment motion ordinarily comes too late. See C.B. Trucking, Inc. v. Waste Mgmt., Inc., 137 F.3d 41, 44 n. 2 (1st Cir.1998) ; Ashton-Tate Corp. v. Ross, 916 F.2d 516, 520 (9th Cir.1990); Dowling v. City of Philadelphia, 855 F.2d 136, 140 (3d Cir.1988); Pfeil v. Rogers, 757 F.2d 850, 856-57 (7th Cir.1985).

Measured against these temporal benchmarks, MSL's motion--which was not made until three weeks after oral argument on the defendants' initial set of dispositive motions--was out of time. [FN14] Nor do sufficiently excusatory circumstances exist. At the time it instituted this action, MSL had been at war with the ABA and the AALS for roughly two years. It had received amplitudinous discovery in the antitrust case and knew--or should have known-- immediately upon receipt of the defendants' dispositive motions whether it needed more information to oppose them. There is no readily apparent reason why MSL procrastinated in deploying Rule 56(f), and MSL fails to offer any persuasive explanation for the delay.

FN14. To be sure, the defendants filed supplemental motions at a later date, but MSL takes nothing from that circumstance because it did not renew its Rule 56(f) initiative in respect to those supplementations.

Although we could affirm the district court's denial of Rule 56(f) relief on this basis alone, the ruling also rests on solid substantive grounds. The plaintiff accompanied its motion with an affidavit, executed by Dean Velvel, that described the facts it hoped to unearth through further discovery. By and large, these facts pertain to the existence and operation of the ostensible conspiracy between the ABA and the AALS. But MSL did not suggest below, and does not suggest here, how these new materials would palliate the force of the ABA's and the AALS's res judicata defense. [FN15]

FN15. Indeed, the institutional defendants did not advance the res judicata defense until a final judgment had been entered in MSL I (which occurred after the district court had denied MSL's Rule 56(f) motion in this case). If MSL genuinely believed that further discovery would be utile on this issue, it should have renewed its Rule 56(f) motion. As previously noted, it did not do so.

That omission undermines MSL's position. Whatever other issues originally may have lurked in the penumbra of the defendants' motions, the stark reality is that MSL's action founders because it could have raised its state-law claims in MSL I, but did not do so. No additional discovery can alter that reality. Thus, the short answer to MSL's protest about truncated discovery is that, as against the ABA and the AALS, the district court's refusal to grant a Rule 56(f) continuance was harmless.

Substantively speaking, there is yet another obstacle blocking MSL's path. A party relying on Rule 56(f) must demonstrate that he exercised due diligence in pursuing discovery. See C.B. Trucking, 137 F.3d at 45; Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 92 (1st Cir.1996). The district court denied MSL's motion to remand on January 18, 1996. Insofar as we can tell, MSL thereafter failed to take steps reasonably available to it to secure discovery. We explain briefly.

The District of Massachusetts operates under an "automatic discovery" paradigm. See Fed.R.Civ.P. 26(a)(1); D. Mass. Loc. R. 26.2 (1996). The court's local rules provide that unless otherwise ordered by a judicial officer, a "party must provide to other parties disclosure of the information and materials called for by [the automatic discovery rule]" before that party can initiate further discovery. D. Mass. Loc. R. 26.2(A). The record contains no evidence that MSL complied with its automatic discovery responsibilities, that it attempted to initiate any discovery, or that it sought permission from a judicial officer to do so. What is more, Judge Lasker issued a scheduling order on February 28, 1996, in which he admonished all counsel that, if discovery could not be effectuated consensually, "motions to compel discovery may be filed in accordance with the provisions of Local Rule 26.2(C)." MSL never filed any such motion. [FN16]

FN16. The Record Appendix contains an April 18, 1996 letter from MSL's counsel to the district judge which "requests that the Court order the immediate production of discovery MSL has sought on its state law claims." This letter does not appear in the docket, and cannot be construed as a motion. See Weinberger v. Great N. Nekoosa Corp., 925 F.2d 518, 528 (1st Cir.1991); Hebert v. Wicklund, 744 F.2d 218, 221 n. 3 (1st Cir.1984). Even were the letter to be so construed, it would fail to satisfy Local Rule 26.2(C) (warning that the court will "not consider any discovery motion that is not accompanied by a certification, as required by [other local rules], that the moving party has made a reasonable good- faith effort to reach agreement with opposing counsel on the matters set forth in the motion").

We will not paint the lily. Rule 56(f) is designed to "minister[ ] to the vigilant, not to those who slumber upon perceptible rights." Paterson- Leitch, 840 F.2d at 989 n. 5 (internal quotation marks and citation omitted). Given its lethargic approach to discovery, MSL cannot now be heard to complain about the district court's refusal to stay proceedings on the summary judgment motions. See Mattoon, 980 F.2d at 8; Hebert v. Wicklund, 744 F.2d 218, 222 (1st Cir.1984).

To this point, we have focused on the ABA and the AALS. Nonetheless, the upshot is the same across the board. With regard to the fourteen individual defendants, the affidavit that accompanied the Rule 56(f) motion mentions only one--Steven Smith--and only mentions him in the most inconsequential manner. The affidavit does not refer to NESL. Therefore, the record does not sustain a claim that discoverable materials actually existed that would have raised a trialworthy issue as to any of these fifteen defendants.

XI. CONCLUSION

We need go no further. MSL adduces other arguments, but none of them requires elaboration. It suffices to say that David does not always best Goliath.

Affirmed.

__________________________

MASSACHUSETTS SCHOOL OF LAW AT ANDOVER, INC., Plaintiff,

v.

AMERICAN BAR ASSOCIATION (an Unincorporated Association existing until December 7, 1992), American Bar Association (an Incorporated Trade Association Existing since December 7, 1992), The association of American Law Schools, New England School of Law, Steven Smith, Peter Winograd, Richard W. Nahstoll, Rennard Strickland, Jose Garcia-Pedrosa, John E. Ryan, Claude R. Sowle, Frank K. Walwer, Pauline A. Schneider, Erica Moeser, Rudolph C. Hasl, Henry Ramsey, Jr., and Dian Yu, Defendants.

Civil Action No. 95-12320-MEL.

United States District Court, D. Massachusetts.

March 3, 1997.

As Amended March 10, 1997..

LASKER, District Judge.

The Massachusetts School of Law sues the American Bar Association, the American Association of Law Schools, and several individual defendants claiming that it was unfairly denied ABA accreditation. [FN1] MSL alleges that the AALS conspired with the American Bar Association "to drive MSL out of the legal education market" and that its actions violate Mass. Gen. L. c. 93A as "unfair and deceptive acts" in the conduct of trade or commerce and constitute tortious misrepresentation. (Complaint ¶ 68.)

FN1. The New England School of Law was also named as a defendant in MSL's Complaint; however, MSL's Complaint has been dismissed as to NESL for failure to state a claim.

The AALS moves, pursuant to Fed.R.Civ.P. 56, for summary judgment, or in the alternative, pursuant to Fed.R.Civ.P. 12(b), to dismiss for failure to state a claim, lack of personal jurisdiction, and insufficient service of process. [FN2]

FN2. The AALS has also filed a supplemental motion for summary judgment on the ground of res judicata based on the dismissal of claims by MSL against it in the Eastern District of Pennsylvania. In its supplemental motion, the AALS requested that the Court enter summary judgment for the AALS on the basis of the merits of MSL's state law claims. Accordingly, and since it is appropriate to leave resolution of the res judicata question until disposition of an appeal pending in the United States Court of Appeals for the Third Circuit, the issues raised in the supplemental motion are not addressed.

The motion for summary judgment is granted. [FN3]

FN3. The disposition of this motion has been complicated and delayed by the nature and form of the material submitted by MSL in opposition. When this and companion motions by the individual defendants and the American Bar Association were filed, approximately simultaneously, MSL filed separate memoranda in response to each motion supported by a single 180- page "Combined Statement of Facts" which, in turn, referred to over 200 exhibits. Because this submission clearly violated Local Rule 56.1, which states in relevant part that

Opposition to motions for summary judgment shall include a concise statement of the material facts of record as to which it is contended that there exists a genuine issue to be tried. (emphasis added)

I declined to accept the material as presented.

Thereafter, MSL presented a somewhat scaled-down version of the earlier material consisting of a 14-page memorandum consisting of a denial of each of AALS's statements, and referring to a 68-page affidavit of Lawrence Velvel, Dean of Massachusetts School of Law which, in turn, was accompanied by 160 exhibits. Unfortunately, the Velvel affidavit does not comply with Rule 56.1 because it neglects to cite page references to many of the cited documents. Moreover, a number of the statements contained in the Velvel affidavits do not appear to be made on personal knowledge as required by F.R. Civ. P. 56(e).

Furthermore, the Velvel affidavit itself states that many of the exhibits are "in part authenticated" and would not be admissible without further "authenticating discovery." On June 28, 1996, when MSL filed the revised response referred to above, it simultaneously filed a motion under Fed.R.Civ.P. 56(f) for an order staying action on the pending summary judgment motions to permit further discovery. MSL's motion was denied at a conference with counsel on August 28, 1996, partly because MSL itself had stated in its memorandum in opposition to AALS's motion for summary judgment that the evidence that is already available [regarding the AALS] far exceeds the minimal amount which serve to defeat summary judgment.

Giving up hope of procuring from MSL the "precise statement" required by Local Rule 56.1, I have accepted the second wave of material. However, in this opinion, I rely only on facts which are either of record (i.e. official minutes or association records) or as to which I have no reason to believe there is a dispute. I make no findings as to the correctness or accuracy of material submitted by MSL, but reach the conclusion that, assuming the facts referred to in this opinion were or are true, the AALS is entitled to summary judgment in its favor. I have reviewed each document referred to in the Velvel affidavit under the heading which Velvel entitled "Facts Supporting MSL's Argument that the AALS' Motion for Summary Judgment or to Dismiss Should be Denied Because the AALS and the ABA Have Worked Together in a Civil Conspiracy or Joint Enterprise." This heading encompasses paragraphs 96 through 115 of the Velvel affidavit and references exhibits 92 through 137A. Although I have physically accepted the other documents cited in Velvel's affidavit, I have not yet made a ruling on their admissibility because they do not appear to be relevant to the present decision.

I.

A. The ABA's Denial of Accreditation to MSL

MSL was founded in 1988. In 1990, the Massachusetts Board of Regents awarded MSL state approval which allowed its students to sit for the Massachusetts bar examination and to practice law in Massachusetts. Thereafter, MSL applied for ABA accreditation. MSL submitted its accreditation application to the ABA on October 21, 1992. The ABA site inspection began on March 3, 1993. The ABA team which visited MSL issued a report on MSL in May 1992. In a letter dated July 1, 1993, the ABA Accreditation Committee denied provisional accreditation to MSL.

James P. White, Consultant to the ABA on Legal Education, chose the members of the ABA site inspection team for MSL. Two members of the ABA team for MSL, Rennard Strickland and Steven Smith, had served the AALS in a volunteer capacity. At the time of the ABA site visit to MSL, Strickland was the President-elect of the AALS and Smith was about to become Chair of the AALS' Accreditation Committee.

B. The American Association of Law Schools

The AALS is an association of 160 law schools whose stated purpose is to improve the legal profession through legal education. It was founded in 1900 and serves as the "learned society" for law schools and law school faculty, as well as a representative of the law school community in relations with the federal government and other higher education organizations. (Sworn Declaration of Carl Monk, Executive Director of the AALS, Tab 1 to AALS Brief in Support, ¶ 7-8 .)

The ABA and the AALS have separate membership standards which are applied by separate committees and separate bodies of review. (Monk Decla. ¶ 12.) Thus, when a school first applies for AALS membership, the AALS conducts its own site visit. (Monk Decla. ¶ 13.) MSL has never applied to the AALS for membership.

MSL does not dispute any of these facts, but asserts that "because the same personnel control the AALS and the ABA accreditation bodies, and because of the agreements forged between the organizations, de facto they operate in a joint, wholly coordinated fashion rather than being separate." (MSL Response to AALS Statement of Facts at 4.)

C. The Complaint

Thirty-four pages of MSL's Complaint describe what MSL calls the ABA's "guild-like control of the accreditation" system--a system that has, according to MSL, been "captured" by law school faculty, administrators and librarians who restrain competition among law schools by fixing compensation, establishing the terms of working conditions, and limiting competition from non-ABA approved schools. (Complaint ¶ 33.)

The Complaint contends that the AALS has played a large role "in creating and perpetuating the ABA's guild-like accreditation process" and that the "AALS, its accreditation standards and its personnel played a crucial role in the creation and implementation of many of the ABA accreditation criteria and practices." (Complaint ¶ 37.) MSL describes the AALS-ABA relationship as "so intimate," based on the following undisputed facts: (1) the AALS was created at the behest of the ABA's accreditation section; (2) many of the individuals who are leaders of the AALS are also leaders of the ABA's accreditation section, including several of the defendants named in this case; (3) the AALS has voting rights in the ABA's House of Delegates; (4) the leaders of the AALS and of the ABA's Section regularly collaborate; and (5) the majority of "ABA site inspectors" who evaluated MSL had substantial AALS credentials and experience, and several are current leaders of the AALS. (Id.) Accordingly, MSL argues that the AALS and its personnel participate with the ABA in accreditation of schools and "participated with the ABA in actions to prevent MSL from obtaining accreditation." (Id.).

To this end, MSL alleges that the AALS and the ABA use "arbitrary and capricious procedural methods" which are "kept secret [and] employed to competitively stifle schools such as MSL" and employ "unwritten, secret rules and procedures that a school must follow in order to obtain accreditation" which were used unfairly against MSL. Moreover, MSL charges that "[f]or over two decades, the ABA, acting in cooperation with the AALS, concealed unlawful and improper actions routinely taken in the accreditation process" and that MSL "brought the defendants' unlawful actions to the attention of the Antitrust Division of the Department of Justice [which] resulted in the DOJ launching an investigation against the ABA." (Complaint ¶ 49.)

The Complaint includes two claims against the AALS: a violation of Mass. Gen. Laws c. 93A § 11 [FN4] and a state common law claim for tortious misrepresentation. The c. 93A claim alleges that the defendants committed "unfair and deceptive acts" in the conduct of trade or commerce in violation of c. 93A by: refusing to accredit MSL because it would offer low-tuition competition; employing unwritten secret criteria and rules against MSL; withholding and secreting information and evidence from MSL; concealing and physically destroying evidence; engaging in retaliatory denial of accreditation to MSL; [and] deceptively refusing to implement ABA standard 802 which allows a law school to obtain a "variance" from the other standards, and therefore refusing to accredit MSL. In addition, MSL alleges that the defendants have "unfairly and deceptively conspired with each other to drive MSL from the legal education market" and that the defendants' actions "were unfair methods of competition" in violation of c. 93A. (Complaint ¶¶ 68-69.)

FN4. Mass. Gen. Laws c. 93A § I I provides that:

Any person who engages in the conduct of any trade or commerce and who suffers any loss of money or property, real or personal, as a result of the use or employment by another person who engages in any trade or commerce of an unfair method or competition or an unfair or deceptive act or practice ... may ... bring an action ... for damages.

The tortious misrepresentation claim alleges that the defendants made tortious misrepresentations, including but not limited to misrepresentations made to MSL, the creation of an ABA site inspection report filled with misrepresentations and misleading information, and misrepresentations made in testimony to government agencies in the presence of MSL representatives.

D. The AALS' Motion for Summary Judgment

The AALS' argument for granting summary judgment in its favor rests on a single proposition: nonparticipation. First, it asserts that because it is undisputed that MSL did not apply for AALS accreditation, and because the AALS was not involved in the ABA's consideration of MSL's application, it cannot be found to have acted unfairly or deceptively towards MSL in violation of c. 93A. Second, AALS submits that since it was not involved in the site visit of MSL, it did not and could not have made any of the misrepresentations that form the basis of MSL's claims for tortious misrepresentation, including statements made in the ABA site inspection report and statements made by ABA representatives to the Department of Education. [FN5]

FN5. The AALS also asserts that it did not participate in the correspondence between James White and NESL Chairman Lawton regarding MSL's activities in Massachusetts, another basis upon which MSL asserts a tortious misrepresentation claim. In a recent opinion, this Court found that the exchanged letters did not support a claim for tortious misrepresentation. Accordingly, whether or not the AALS was aware of the letters, it cannot be liable on any claim related to the NESL-ABA correspondence.

MSL responds that the AALS in fact participated in the site visit to MSL based on the "evidence that the AALS and ABA have intentionally engaged in a joint enterprise concerning law school accreditation, and the AALS is therefore responsible for actions taken by the ABA in furtherance of the joint venture." (MSL Opp. to AALS Statement of Facts at 6.) At oral argument, MSL admitted that its "case against the AALS is largely circumstantial with respect to their involvement, specifically with regard to MSL's accreditation." (Hr'g Tr. at 9-10.) Thus, with regard to the c. 93A count, MSL argues that because "MSL is charging ... that the AALS was part of a common or joint enterprise, or civil conspiracy, and that actions in furtherance of this enterprise were taken against MSL[,]" the AALS "is liable even if one assumes that it did not engage in the transactions with MSL." (Mem. in Opp. at 20.) Similarly, MSL argues that regardless of whether the AALS made any of the alleged tortious misrepresentations about MSL, it is nonetheless liable for tortious misrepresentation "if [the statements] were made in furtherance of the common or joint enterprise alleged by MSL." (Id. at 18.)

MSL also contends that the AALS is liable under c. 93A and for tortious misrepresentation because "many of the [alleged] actions were taken by AALS leaders" who were on the ABA site team to MSL, including Rennard Strickland, President-elect of the AALS, who wrote the faculty section of the ABA site inspection report on MSL, and Steven Smith, then soon-to-be Chair of the AALS Accreditation Committee, who wrote the summary of the site visit to MSL, both of whom criticized many aspects of the school and its faculty. (Sworn Affidavit of Lawrence R. Velvel, Dean of MSL, Exs. 117-118). Accordingly, MSL argues that a reasonable juror could conclude that "numerous false statements were made by persons acting de facto on behalf of the AALS." (Mem. in Opp. at 18-19.)

In response, the AALS argues that MSL has recharacterized this case from one based on the ABA's denial of accreditation to MSL in 1993 to one alleging a joint enterprise of the ABA and AALS "go[ing] back to the early 1900s." Moreover, AALS contends that to the extent "that a conspiracy is even mentioned in the complaint, it is an alleged conspiracy to harm MSL ... not a conspiracy involving law school accreditation generally." (Reply Brief at 10.) Finally, the AALS asserts that, assuming MSL's Complaint can be read as alleging a civil conspiracy, summary judgment should be granted because an unlawful conspiracy cannot be inferred from the facts presented by MSL, namely, that the ABA and AALS have overlapping members, and communicate about accreditation matters of mutual concern.

As noted above, MSL's claims against the AALS are not based on any specific actions taken by the AALS against MSL, but rather on the AALS' alleged complicity with the ABA in attempting to drive MSL from the legal education market. Accordingly, liability under each count is predicated upon a finding that the AALS was involved in a conspiracy with the ABA.

The allegations in the Complaint relating to conspiracy are far from clear. At times, MSL alleges that there is a general conspiratorial relationship between the ABA and the AALS with regard to accreditation. At other times, the gravamen of the charge is a conspiracy with regard to the accreditation of MSL itself. For two reasons the generalized allegations are considered only as evidence in support of the particular claims relating to MSL: first, because the generalized allegations appear to be related basically to MSL's antitrust claims now pending on appeal before the Court of Appeals for the Third Circuit; and second, to the extent that MSL complains about the overall relationship between the ABA and the AALS, as distinct from the effect of that relationship on MSL, there is a question as to whether MSL has standing to do so.

It is worth noting that in response to the ABA's motion to stay this action pending disposition of the action in the Eastern District of Pennsylvania, MSL itself asserted, in opposition, that:

the two cases involve neither a single cause of action, nor identical factual and legal issues and duplicative litigation. The relevant facts to be adjudicated in the two cases are different. The facts to be determined in the antitrust case are whether the defendants committed acts to fix salaries and to fix the terms and conditions of work, whereas the facts to be determined in the state case are whether the defendants made fraudulent statements, breached promises, attempted to have MSL's state certification rendered nugatory, destroyed evidence and took actions to injure MSL's reputation and ability to recruit students.

(MSL's Mem. in Opp. to Motion to Stay at 2.)

Thus, MSL cannot base its present claims against the AALS on the theory that there is an unlawful conspiracy as to accreditation in general and that the actions against MSL were undertaken in furtherance of that conspiracy. Rather, MSL must show that there was an unlawful conspiracy as to the accreditation of MSL in particular. [FN6]

FN6. In addition, a word should be said about the several misleading statements MSL makes regarding the DOJ investigation of the ABA. Although it may be true (as MSL contends it is in the Complaint) that MSL's antitrust allegations against the ABA resulted in a DOJ suit against the ABA, the AALS was never a party to that lawsuit. Nonetheless, MSL avers in the Complaint that . . . the ABA and the AALS have often claimed, publicly and privately, that their accreditation activities merely seek to assure that students receive a quality legal education. However, this claim was recently exposed as false by the [DOJ] in a June 27, 1995 complaint which charged violations of the federal antitrust laws." Complaint at 3.

MSL is simply wrong in asserting that the DOJ Complaint "exposed" anything, or that it established that a statement made by the ABA was false. While the DOJ-ABA suit did result in a consent decree, the decree itself stated that "[t]his final judgment shall not be evidence or admission by any party to any issue of fact or law." Accordingly, the DOJ suit is irrelevant to the issues here: first, because the suit resulted in no factual or legal conclusions; second, because it addressed wholly different issues; and third, because the AALS was not a party.

II.

MSL alleges a civil conspiracy, which, is referred to in Massachusetts as "concert of action." In such a case a defendant is liable for the tortious acts of another where there is "first, a common design or agreement, although not necessarily express, between two or more persons to do a wrongful act, and second, proof of some tortious act in furtherance of the agreement." Aetna Casualty & Surety Co. v. P & B Autobody, 43 F.3d 1546, 1564 (1st Cir.1994); Payton v. Abbott Labs, 512 F.Supp. 1031, 1035 (D.Mass.1981).

In the case at hand, MSL argues that a civil conspiracy between the AALS and the ABA to drive it from the legal education market can be inferred in two ways: first, from evidence that the two organizations have worked together "for the past 75 years" on accreditation matters; and second, from the fact that persons affiliated with the AALS served on the ABA site inspection team of MSL.

A. Cooperation between the AALS and the ABA on Accreditation Matters

MSL has produced documents that show that: the AALS has worked with the ABA since the 1920s in establishing accreditation standards, (Ex. 93 to Velvel Aff.); the AALS was involved in the adoption of the ABA's "Standards of Approval of Law Schools" in 1973, which drew heavily on the "regulations of the AALS," (Ex. 101 to Velvel Aff.); throughout the 1970s representatives of the ABA and the AALS frequently discussed the accreditation status of law professors and law schools, (Exs. 102-104 to Velvel Aff.) [FN7]; since then, the AALS Executive Director and the ABA Consultant on Accreditation have met on a quarterly basis and are in frequent telephone contact, (Ex. 124 to Velvel Aff.); and that proposed AALS bylaws and Executive Committee Regulations are sent to the ABA for their comments, (Ex. 125 to Velvel Aff.).

FN7. Exhibit 102 by MSL is a good example of the insufficiency of the material submitted by MSL in opposition: according to the Velvel affidavit, the material contained in exhibit 102 is a statement by an unnamed speaker, allegedly representing the AALS, at a meeting with the ABA accreditation committee in 1973. There is no evidence of the identity of the speaker or of his position with the AALS or of the agenda of the meeting at which the statement was made. Accordingly, it is very difficult to attribute any evidentiary value to such an offering. Unfortunately, the problems just described relate to many of the exhibits submitted by MSL.

MSL argues that a reasonable juror could infer from this evidence that the relationship between the AALS and the ABA amounted to a conspiracy to deny MSL's application. However, the voluminous documents submitted by MSL establish that while the relationship between the AALS and the ABA undoubtedly includes general coordination as to areas of mutual interest, there are many areas in which the organizations act separately, including those actions most relevant to the present inquiry, that is, both organizations handle initial inspections and specific accreditation decisions as to individual schools independently.

For example, in the AALS' application for continued recognition by the Council on Postsecondary Accreditation, it stated:

Although most of the accreditation activities of the Association are reinspections that involve the type of cooperation with the ABA described above, there are specific accrediting activities that the AALS undertakes entirely independently of the ABA. When a school applies for membership in the AALS, the site evaluation team is appointed solely by the AALS and the school completes a Membership Application Questionnaire and prepares a self-study submission solely for the Association.

(Ex. 97 to Velvel Aff.)

In addition, the documents establish that although the ABA and the AALS have done joint inspections of schools since the 1970s, they only do so after a school has been accredited by both organizations. (Exs. 109-115 to Velvel Aff.) Moreover, although MSL is correct that Millard Ruud testified on deposition in MSL's case against the ABA and AALS brought in the Philadelphia litigation, that while he was the Executive Director of the AALS, he communicated with James White about "everything," he qualified that statement, explaining that "everything" included the "plans" of the organizations, but did not include "accreditation matters" about specific schools. (Ex. 123 to Velvel Aff.) Ruud's testimony is corroborated by the Monk declaration, which states that "[t]he ABA and the AALS have separate accreditation committees, separate levels of initial decision making, and separate levels of internal review." (Monk Decla. ¶ 15.)

MSL presents evidence of one instance in which the AALS joined the ABA in a site visit regarding provisional ABA accreditation, testified to by Millard Ruud in a deposition in the Philadelphia litigation. Ruud stated that in his capacity as AALS Executive Director and his position as the former ABA Consultant on Accreditation, he once "went with James White for his first inspection as a[ABA] consultant and did accompany him on that visit, and that was an application for provisional approval." However, Ruud explained that he "was sort of [White's] mentor on the first inspection" and that he "didn't remember any other instance in which [he] serve[d] as a site evaluator." (Ex. 105 to Velvel Aff.) This marginal evidence is insufficient to allow a reasonable juror to conclude that the ABA and the AALS regularly collaborated on site visits involving provisional ABA accreditation or "conspired" in a tortious manner.

MSL also contends that certain letters exchanged between the ABA and the AALS establish that proposed changes in AALS standards would be "killed" if they were objected to by the ABA. (Exs. 126-128 to Velvel Aff.) However, nothing in these documents suggests that the ABA wielded such power over the AALS. To the contrary, in one memo, White notes that the ABA Accreditation Committee would not "discuss the merits of the [AALS accreditation standards] proposal, as it was deemed inappropriate to comment or interfere with any determination of the AALS to modify their criteria" but rather would consider only its "impact ... on the accreditation process of the American Bar Association." (Ex. 127 to Velvel Aff.)

In sum, the evidence presented by MSL does not create a factual dispute as to the question of whether the ABA acted independently from the AALS regarding provisional accreditation of law schools. Nor does MSL provide information upon which an inference can be drawn that, in its case, the AALS and the ABA diverged from their normal course of activities and entered an agreement to deny MSL accreditation.

This finding is consistent with decisions of other courts which have found that mere contact or communication between professional organizations on mutual issues of concern was insufficient to establish an unlawful conspiracy. See Cooper v. Forsyth County Hospital Ass'n, 789 F.2d 278 (4th Cir.1985) (granting summary judgment where the only evidence of antitrust conspiracy "consist[ed] primarily of contacts and communications between hospital Board of Trustees and North Carolina Orthopedic Association"). The Court of Appeals for the District of Columbia addressed a case which involved similar allegations to the case at hand in Kreuzer v. American Academy of Periodontology, 735 F.2d 1479 (D.C.Cir.1984). There the plaintiff alleged a conspiracy in restraint of trade under the Sherman Antitrust Act between the American Dental Association (ADA) and the American Academy of Periodontology (AAP) to deny him active membership in the AAP. [FN8] Kreuzer applied to the AAP for "active" membership in 1975; "active" membership is the highest degree of membership within the AAP and requires the applicant to meet special criteria. A standing Membership Committee of the AAP denied Kreuzer "active" membership because he failed to meet the AAP's "limited practice requirement" which required a dentist "to limit [his or her] practice exclusively to the special areas approved by the ADA"--here, periodontics. Id. at 1482.

FN8. The relationship between the ADA and the AAP is somewhat analogous to that between the ABA and the AALS. The ADA is responsible, for the accreditation of dental schools and graduate programs and for the recognition of specialty organizations such as the AAP. The AAP is a nonprofit organization whose purpose is "to advance the art and science of periodontology, and by its application, maintain and improve the health of the public." Kreuzer, 735 F.2d at 1482. The AAP's activities include: publication of the Journal of Periodontology and various consumer education materials, conduct of an annual scientific session, issuance of scholarships and grants, and formation of standards for advancing training. Id.

Kreuzer pointed to the long history between the two organizations in asking the court to infer that they had conspired in evaluating his application. The AAP and the ADA did not dispute that they had regular contact about ethical issues. Moreover, the evidence showed that the AAP wrote to the ADA seeking advice on how to interpret a particular rule as it applied to Kreuzer, although the letter made no specific reference to Kreuzer. The Court of Appeals affirmed entry of summary judgment for the defendants, holding that the "mere showing of frequent relations between alleged co-conspirators ... is insufficient to infer an illegal agreement" and that it would "not infer conspiracy to violate the antitrust laws based on a showing of regular contract between two independent professional associations on general matters of mutual concern and interest." Id. at 1488. See also Manego v. Orleans Board of Trade, 598 F.Supp. 231, 239 (D.Mass.1984) (in suit alleging antitrust conspiracy between town Board of Selectman and town Board of Trade, court found that "the Selectman's membership in the Board of Trade [was] not probative of conspiracy"), aff'd 773 F.2d 1 (1st Cir.1985).

Moreover, it is worth noting that cooperation is legal and permissible in our society. Cooperation may degenerate into conspiracy but to establish conspiracy, there must be evidence of an evil intent or objective as the aim of the action. Although the materials submitted by MSL in opposition to the motion are voluminous, they contain no evidence of evil intent. If the present proceeding were a jury trial, no reasonable juror could reach the conclusion that a conspiracy existed and, indeed, even MSL reaches that conclusion only by piling self-serving inference upon inference.

B. Actions of "AALS leaders" on the ABA Site Team

The question remains whether the actions of the ABA site team members who were affiliated with the AALS raises a triable issue as to whether the AALS and the ABA tortiously agreed to deny MSL accreditation. MSL argues that an ABA-AALS conspiracy could be found to exist because "many of the actions [by the site team] were taken by AALS leaders." Specifically, MSL cites the fact that "Rennard Strickland, then President-elect of the AALS, wrote the faculty section of MSL's site report" and that Steven Smith, "who was about to become the Chair of the AALS' Accreditation Committee, wrote the summary of the site report in which he strongly criticized nearly every aspect of the school." MSL also relies on the fact that James White chose Strickland and Smith and "two other AALS activists, Jane Hammond and Peter Winograd," out of 400 potential inspectors for the MSL site visit.

MSL points to the testimony on deposition in the Philadelphia litigation of Millard Ruud, former President of the AALS, to prove that the AALS-affiliated members of the ABA site team were also representing the AALS. Ruud agreed that the faculty sections of ABA site inspection reports are invariably written by a representative of the AALS because that person would be "specially concerned" with faculty issues. (Ex. 116 to Velvel Aff.) However, Ruud's testimony is addressed specifically to joint inspections, which Carl Monk testified are only used after a school is both ABA- and AALS-accredited. (See Monk Decla. ¶¶ 14- 15) Monk's declaration is corroborated by an exhibit produced by MSL, in which Carl Monk stated in a July 27, 1992 letter to the Executive Committee of the AALS:

As you know, site evaluations of members of the AALS and accredited by the ABA are joint site evaluations. Generally, the ABA appoints all but one member of the joint site evaluation team, but all team members represent both organizations.

Ex. 116 to Velvel Aff.

Steven Smith, one of the alleged "AALS leaders," also testified, on deposition, that "[t]here [are] some teams that are obviously not joint teams. The MSL team was not a joint team. It was a pure ABA team, and in those cases the AALS plays no role.... For a school that is both a member of the AALS and approved by the ABA, they're often--for the regular sabbatical site evaluations, there is a joint team." (Smith Dep. at 24.)

In sum, it is undisputed that the ABA and AALS participate in joint inspections after a school has received separate accreditation from both organizations. However, because the joint accreditation activities between the AALS and ABA cannot be the basis for MSL's conspiracy claim in this case, evidence that an AALS member typically wrote the faculty portion of ABA-AALS joint inspection reports does not sustain MSL's burden. Nor can an inference be drawn that because an AALS member more likely than not wrote the faculty sections of the ABA-AALS joint inspection reports, the two organizations entered an unlawful conspiracy as to MSL. [FN9]

FN9. As further proof of the conspiracy, MSL charges that Rennard Strickland admitted on deposition in the Philadelphia action that "only ABA schools may become members of the AALS" (Ex. 136 to Velvel Aff.), and that the AALS itself has described accreditation as a succession of three steps: first, provisional ABA approval, second, full ABA approval, and third, membership in the AALS (Ex. 137 to Velvel Aff.). However, assuming arguendo that the AALS relies on ABA-accreditation for making AALS membership decisions (which MSL has not proven), it nonetheless fails to establish that the ABA worked jointly with the AALS in making its own provisional accreditation decisions.

MSL has produced no evidence upon which a reasonable juror could conclude that the AALS-affiliated members of the ABA team were participating as representatives of the AALS in their inspection of MSL. Indeed, in a reply to a letter from Velvel regarding whether the ABA sent any communications regarding MSL to the AALS (see Tab 1(a) to Mem. in Sup.), Monk responded that there was no AALS representative on the [MSL] site team, ... no report or any other communication regarding [MSL] has been sent to the AALS, [and] the AALS does not have a representative on site visit teams for schools that are not members of the [AALS].

Id.

James White's affidavit confirms the testimony of Monk: White states that "the AALS did not participate in the site evaluation of MSL" and "that none of the members of the Team were appointed by AALS." White Aff. ¶ 35. Though MSL is correct that the AALS has one delegate within the ABA's 500-member House of Delegates, the affidavits of both Monk and White state that the AALS representative did not participate in the House's consideration of MSL's appeal of denial of provisional ABA accreditation. Monk Decla. ¶ 19; White Aff. ¶ 36.

In sum, there is no evidence upon which a reasonable juror could conclude that the AALS directed the AALS-affiliated members of the MSL site team or that the AALS-affiliated members reported to the AALS on any of the activities regarding MSL. At most, the evidence establishes that there is overlapping membership between the AALS and the ABA organizations and that persons affiliated with the ABA are, many times, also connected to the AALS. Such evidence is not sufficient to sustain a conspiracy claim See In Federal Prescription Services, Inc. v. American Pharmaceutical Ass'n, 663 F.2d 253 (D.C.Cir.1981) ( "Mere membership in association is not enough to establish participation in a conspiracy with other members of the association, much less in a conspiracy between those associations and yet another association."); Sherman College of Straight Chiropractic v. American Chiropractic Ass'n, 654 F.Supp. 716, 728 (N.D.Ga.1986) ("evidence of overlapping membership is [not] probative of conspiracy" between state licensing boards and Federation of Chiropractic Licensing Boards); Orleans Board of Trade, 598 F.Supp. at 239.

The AALS has moved, in the alternative, to dismiss MSL's Complaint against the AALS for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), for lack of adequate specificity under Fed.R.Civ.P. 9(b); for lack of personal jurisdiction, Fed.R.Civ.P. 12(b)(2); and insufficient service of process, Fed.R.Civ.P. 12(b)(5). The motion to dismiss for lack of specificity under Fed.R.Civ.P. 9(b) is denied. The Complaint, although verbose and generalized in places, nevertheless leaves no doubt as to the nature of MSL's claims against the AALS.

With regard to the AALS' 12(b)(6) argument, that it could not be found to have violated c. 93A because MSL provides educational services and thus is not involved in "trade or commerce" within the meaning of the statute, it would be inappropriate for a federal court to decide this unresolved matter of state law where the case before it can be and is decided on other grounds. As to the issue of lack of personal jurisdiction, the AALS makes a strong argument consistent with the earlier opinion in this case dismissing MSL's Complaint as to various individual defendants. On the issue of insufficient service of process, MSL raises a serious question as to waiver on the part of the AALS.

The motion for summary judgment is granted and the Complaint is dismissed as to AALS.

It is so ordered.

__________________________

MASSACHUSETTS SCHOOL OF LAW AT ANDOVER, INC.

v.

AMERICAN BAR ASSOCIATION; Law School Admission Services, Inc.; Law School Admission Council; The Association of American Law Schools, Inc.; James P. White; Nina Appel; Jose R. Garcia-Pedrosa; Laura N. Gasaway; Frederick M. Hart; Rudolph C. Hasl; Carl C. Monk; R.W. Nahstoll; Henry Ramsey, Jr.; Norman Redlich; John E. Ryan; Gordon D. Schaber; Pauline Schneider; Steven R. Smith; Claude R. Sowle; Robert A. Stein; Rennard Strickland; Roy T. Stuckey; Leigh H. Taylor; Frank K. Walwer; Sharp Whitmore; Peter A. Winograd, Massachusetts School of Law at Andover, Inc. ("MSL"), Appellant.

No. 96-1792.

United States Court of Appeals,

Third Circuit.

Argued Dec. 10, 1996.

Decided Feb. 28, 1997.

Affirmed.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

This case is before this court on appeal from an order of the district court granting summary judgment on all counts to the appellees in this antitrust action brought against them by the Massachusetts School of Law at Andover, Inc. ("MSL"). The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1337, and this Court has jurisdiction under 28 U.S.C. § 1291. This appeal principally presents a number of questions regarding the scope of immunities from the antitrust laws and related antitrust discovery issues. An examination of the parties and conduct in question is first necessary.

I. FACTUAL AND PROCEDURAL HISTOR

A. The Parties

MSL has been operating a law school in Massachusetts since 1988. The Board of Regents of Massachusetts authorized MSL to grant the J.D. degree in 1990. This authority allowed MSL's graduates to take several bar examinations, including that in Massachusetts. MSL has the stated policy of providing low-cost but high quality legal education and attracting mid-life, working class, and minority students. MSL facilitates this policy with its admissions procedure and a tuition of $9,000 per year. Many of MSL's policies and practices conflict with American Bar Association ("ABA") accreditation standards, and MSL aggressively has sought changes in those standards.

The ABA, a national professional organization of attorneys whose membership is open to members of any bar in the United States, has been concerned with legal education and bar admissions throughout its history. In 1921, through its Section of Legal Education and Admissions to the Bar (the "Section"), the ABA first developed standards of accreditation for legal education programs. The ABA petitioned state supreme courts to rely on its accreditation decisions in connection with bar admission decisions. Now, all 50 states and the District of Columbia consider graduation from an ABA-accredited law school sufficient for the legal education requirement of bar admission. App. at 1396-1409. The United States Secretary of Education considers the Council of the Section to be the national agency for accreditation of professional schools of law and a reliable authority concerning the quality of legal education. App. at 3378. The ABA informs the states of its accreditation decisions and annually sends them the Review of Legal Education in the United States, the ABA accreditation standards, and any proposed revisions of the standards. During the period at issue, there were 177 ABA-accredited law schools in the United States and over 50 unaccredited schools with some form of state approval such as MSL enjoys. The ABA consistently has opposed attempts to change or waive bar admission rules to allow graduates of schools not accredited by the ABA to take the bar examination. See, e.g., app. at 3623-53.

Many states have methods of satisfying the legal education requirement other than graduation from an ABA-accredited school. These methods include legal apprenticeship, practice in another state, and graduation from a school approved by the American Association of Law Schools ("AALS") or a state agency. The AALS is an association of 160 law schools which serves as a learned society for law schools and legal faculty and as a representative of the law school community with the federal government and other education organizations. Furthermore, in every state, a bar applicant or law school can petition the bar admission authority for revision or waiver of the rules. MSL won a waiver of New Hampshire's rules to allow its graduates to take the bar in 1995, and has filed petitions seeking similar relief in Connecticut, Maine, New York, and Rhode Island. Maryland and Washington, D.C. have granted petitions of graduates of MSL to take the bar. MSL graduates can take the bar examination immediately after graduation in California, Massachusetts, New Hampshire, Vermont and West Virginia, and in 12 other states after practicing in another state first.

The ABA allows graduates of non-accredited schools to join the ABA once they are admitted to a bar and does not prohibit its members from hiring or otherwise dealing with graduates of such schools. The ABA does not prevent its members from teaching at non-ABA-accredited schools, but it does not allow its accredited schools to let students transfer credits from unaccredited schools or to accept graduates of unaccredited schools into graduate programs.

ABA accreditation is open to any law school that applies and meets the ABA standards. The ABA grants provisional accreditation to schools that substantially comply with its standards and promise to comply fully within three years. An Accreditation Committee makes an initial evaluation of a school for provisional accreditation and gives a recommendation to the Council of the Section. The Council then makes a recommendation to the ABA House of Delegates, which has the ultimate decisionmaking authority.

A law school must have been teaching students for five years and graduated three classes to be eligible for AALS membership. The AALS holds an annual meeting, professional conferences and workshops, [FN1] and publishes the Journal of Legal Education. All of its current members are ABA-accredited, but accreditation is neither necessary nor sufficient for membership approval. The AALS accredits schools in the sense that it determines whether a school meets its membership requirements, but it has accreditation standards and procedures separate from those of the ABA. The AALS conducts a site visit, independently of the ABA, when a school applies for membership, and it conducts periodic visits after membership, usually jointly with the ABA if the school is ABA- accredited. The AALS is not involved with site inspections for provisional ABA accreditation, such as the one the ABA undertook at MSL.

FN1. The AALS does not prohibit non-members from attending these conferences, and representatives of MSL have attended them, even though MSL is not a member and never has applied for membership. App. at 2279-80.

The Law School Admissions Council, Inc. ("LSAC") is the successor organization to the Law School Admission Council and Law School Admission Services, Inc. The LSAC, as have its predecessors, administers the Law School Admissions Test ("LSAT"). The LSAC is not affiliated formally with either the ABA or the AALS and does not participate in the ABA accreditation process. Membership in the LSAC is open to any United States law school that (1) requires that "substantially all of its applicants for admission take the Law School Admission Test," and (2) is ABA-accredited or an AALS member. App. at 2552. MSL does not require the LSAT, never has applied for AALS membership, and is not ABA-accredited, so thus is not eligible for LSAC membership.

In addition to administering the LSAT, the LSAC performs a number of other services. The Candidate Referral Service ("CRS") provides lists of names and addresses of people who have taken the LSAT. Use of the CRS is open to any school which has degree granting authority from a state, regardless of LSAC membership or ABA accreditation, and MSL has made use of this service. App. at 2410-12, 2511-12, 2427-29. The Law School Data Assembly Service ("LSDAS") provides a summary of a law school applicant's college record and LSAT score. LSDAS is also open to all schools and has been used by MSL. App. at 2410-12. The LSAC publishes a handbook, The Official Guide to U.S. Law Schools, with a two-page description of each United States LSAC member school, and two appendices with the names and addresses of Canadian LSAC members and unaccredited United States law schools, including MSL, known to the LSAC. The LSAC also sponsors regional recruiting forums for law school applicants and conferences of pre-law advisors which are only open to LSAC members.

B. The Complaint

MSL applied for provisional ABA accreditation during the fall of 1992 and early 1993. MSL never claimed it was or would be in compliance with ABA standards, but instead asked for a waiver under Standard 802 which allows the Council to grant variances from the standards. Following the established process, a seven-member site evaluation team appointed by and representing only the ABA visited MSL and then prepared a 76-page report which was sent to MSL. MSL sent a 90-page response to the site team report.

The Accreditation Committee, after reviewing the site report and the MSL materials, and hearing a presentation from six MSL representatives, recommended denial of MSL's accreditation application because it did not meet the ABA requirements. The Committee also recommended denial of the waiver request. In a letter to MSL explaining its denial recommendation, the Committee listed 11 areas where MSL failed to comply with ABA standards. App. at 837-48. These areas included the high student/faculty ratio, over reliance on part-time faculty, the heavy teaching load of full-time faculty, the lack of adequate sabbaticals for faculty, the use of a for-credit bar review class, the failure to limit the hours students may be employed, and the failure to use the LSAT or give evidence validating its own admission test. [FN2] App. at 845-46. The body of the letter discussed the inadequacy of MSL's law library, but the letter did not cite that inadequacy as one of the reasons for the denial recommendation. App. at 842-43; see app. at 845-46. The letter did not discuss the salaries of MSL's faculty. Invoking ABA procedures, MSL appealed but, after a full review at which MSL had the opportunity to make a presentation, the denial of accreditation was upheld on February 8, 1994.

FN2. MSL challenged all these standards, as well as standards on faculty salaries and law libraries, in its antitrust complaint.

MSL filed this action on November 23, 1993, alleging that the ABA, AALS, LSAC, and 22 individuals combined and conspired to organize and enforce a group boycott in violation of section 1 of the Sherman Act and conspired to monopolize legal education, law school accreditation, and the licensing of lawyers, in violation of section 2 of the Sherman Act. 15 U.S.C. §§ 1- 2. The complaint basically alleged that the appellees conspired to enforce the ABA's anticompetitive accreditation standards by: (1) fixing the price of faculty salaries; (2) requiring reduced teaching hours and non-teaching duties; (3) requiring paid sabbaticals; (4) forcing the hiring of more professors in order to lower student/faculty ratios; (5) limiting the use of adjunct professors; (6) prohibiting the use of required or for-credit bar review courses; (7) forcing schools to limit the number of hours students could work; (8) prohibiting ABA-accredited schools from accepting credit transfers from unaccredited schools and from enrolling graduates of unaccredited schools in graduate programs; (9) requiring more expensive and elaborate physical and library facilities; and (10) requiring schools to use the LSAT. [FN3] MSL alleged that enforcement of these anticompetitive criteria led to the denial of its application for provisional accreditation and caused MSL to suffer a "loss of prestige" and direct economic damage in the form of declining enrollments [FN4] and tuition revenue.

FN3. MSL alleges that a self-interested cabal of legal educators who enforce the allegedly anti-competitive criteria to their own advantage has "captured" the ABA accreditation process.

FN4. MSL says that its entering classes are now only 40% of what they were before the denial of accreditation. MSL br. at 4.

After MSL filed its complaint, the Antitrust Division of the United States Department of Justice ("DOJ") began an investigation of the ABA's accreditation process and on June 27, 1995, filed suit against the ABA in the United States District Court for the District of Columbia alleging violations of section 1 of the Sherman Act. The ABA entered into a consent decree with the DOJ on June 25, 1996, settling that case.

After a period of discovery under Rule of Reason standards, the district court granted the appellees summary judgment on both counts. The court held MSL did not suffer a cognizable antitrust injury; any disadvantage it incurred was attributable to the decision by the individual states to preclude graduates of unaccredited schools from taking bar examinations, and such injury "cannot be the basis for antitrust liability" under Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). Massachusetts School of Law v. American Bar Ass'n, 937 F.Supp. 435, 441 (E.D.Pa.1996). The court also held that to the extent that the unaccredited status creates a stigma which injures MSL, Noerr precludes recovery for the injury because it is "incidental to the primary, protected injury resulting from governmental decisions to preclude MSL graduates from taking certain bar examinations." Id. at 442. In the alternative, the court held that even if the stigmatic injury were not incidental to Noerr- protected conduct, the claim still would fail because the ABA has done nothing more than express its opinion, which is speech protected by the First Amendment, and not conduct for which there can be antitrust liability. Id. at 442-46.

MSL appeals from the order for summary judgment and a number of prior orders related to discovery, the dismissal of the individual appellees for lack of personal jurisdiction, the denial of a motion to recuse Judge Ditter, and the disqualification of MSL's inside counsel. The DOJ has filed an amicus brief arguing that the district court erred in holding that any stigmatic injury from non-accredited status was incidental to a Noerr-protected injury to the extent that there was no actual petitioning of government in this case. The DOJ also argues that the district court erred in holding that the First Amendment immunizes anticompetitive effects brought about through speech.

II. DISCUSSION

A. Standard of Review

We review a district court order granting summary judgment de novo both as to factual and legal questions. Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 632 (3d Cir.1996); Petruzzi's IGA Supermarkets, Inc. v. Darling- Delaware Co., 998 F.2d 1224, 1230 (3d Cir.1993). We review discovery orders under an abuse of discretion standard. Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 90 (3d Cir.1987); Marroquin-Manriquez v. INS, 699 F.2d 129, 134 (3d Cir.1983). As germane here, MSL has to show that the district court's denial of discovery "made it impossible to obtain crucial evidence, and implicit in such a showing is proof that more diligent discovery was impossible." In re Fine Paper Antitrust Litig., 685 F.2d 810, 818 (3d Cir.1982) (citation omitted). We review the district court's denial of the motion for recusal for abuse of discretion. Blanche Road Corp. v. Bensalem Township, 57 F.3d 253, 265 (3d Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 303, 133 L.Ed.2d 208 (1995); United States v. Antar, 53 F.3d 568, 573 (3d Cir.1995).

B. Discovery Issues

1. Price Fixing

MSL argues that a district court order of May 20, 1994, which held that the ABA standards were not price fixing and per se unlawful and that discovery would proceed under a Rule of Reason analysis, Massachusetts School of Law v. American Bar Ass'n, 853 F.Supp. 837 (E.D.Pa.1994), is contrary to law and should be reversed. MSL contends that the district court held in this order that "the ABA had not fixed prices," and that that holding is contrary to settled law. MSL br. at 40. This argument mischaracterizes the district court's holding. As the district court correctly noted, ABA Standard 405(a) (considering faculty salaries as part of school's ability to attract and retain quality faculty) is somewhat vague. Although not dispositive, the lack of a specific price floor or ceiling suggests that the standard represents something other than a classic price-fixing arrangement. MSL, 853 F.Supp. at 840. The court, however, did say that the standard was "price-affecting," which in many cases is sufficient for a per se approach. Id. See United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 221-24, 60 S.Ct. 811, 843-46, 84 L.Ed. 1129 (1940).

The court properly then went on to consider the context of the case. In this regard, it is significant that the ABA is a professional society and the Supreme Court has indicated that it has "been slow to condemn rules adopted by professional societies as unreasonable per se," even when the behavior resembles conduct usually subject to a per se approach. FTC v. Indiana Fed'n of Dentists, 476 U.S. 447, 458, 106 S.Ct. 2009, 2018, 90 L.Ed.2d 445 (1986) (Rule of Reason approach even though behavior resembled group boycott); see also National Soc'y of Prof. Eng. v. United States, 435 U.S. 679, 692- 94, 98 S.Ct. 1355, 1365-66, 55 L.Ed.2d 637 (1978) (using Rule of Reason analysis even though agreement affected prices); Goldfarb v. Virginia State Bar, 421 U.S. 773, 788 n. 17, 95 S.Ct. 2004, 2013 n. 17, 44 L.Ed.2d 572 (1975) (distinguishing between practice of professions and other business activities); United States v. Brown Univ., 5 F.3d 658, 672 (3d Cir.1993) (Rule of Reason approach used even though behavior resembled price fixing).

MSL nevertheless argues that the price fixing aspect of the ABA standards has infected the entire conspiracy, justifying a per se approach, and that the Supreme Court has discouraged finding new exceptions to the per se standard. See FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411, 428-31, 110 S.Ct. 768, 778-79, 107 L.Ed.2d 851 (1990). We, however, do not apply a new exception to the per se approach here. Rather, the use of the Rule of Reason is appropriate here because where "a conspiracy of this sort is alleged in the context of a profession, the nature and extent of [the] anticompetitive effect are too uncertain to be amenable to per se treatment." Wilk v. American Medical Ass'n, 719 F.2d 207, 221 (7th Cir.1983).

MSL also appeals the district court's July 20, 1994 discovery order which held that MSL had not been injured by the alleged price fixing, and therefore denied discovery as to the faculty salary standard except insofar as it related to MSL's accreditation application. MSL, 857 F.Supp. 455 (E.D.Pa.1994). Contrary to MSL's argument, this order did not hold as a final matter that the alleged salary fixing had no impact on MSL. It merely stated that "the evidence presently at hand does not support MSL's contention that one of the reasons the ABA declined to accredit MSL was noncompliance with the salary standard[ ]." Id. at 458. The court allowed MSL to continue discovery to ascertain whether salary was a factor in accreditation denial, but barred broader discovery as to the development and implementation of that standard.

MSL did find evidence that the ABA had data on its salaries (collected as part of general fact-finding about the school) and evidence that the ABA had warned other schools about low salaries. Nevertheless, MSL is not able to point to any evidence, or draw a reasonable inference, that the ABA actually used salary as a factor in denying MSL's accreditation or that the ABA's stated reasons for denying it accreditation were pretextual. In fact, the evidence and inferences point the other way, demonstrating that the ABA explicitly states low salaries as a factor when it is one. Thus, we cannot find that the district court's limitation of discovery in this manner was an abuse of discretion.

2. Conspiracy

MSL argues that the district court denied it the discovery necessary to prove its allegations of conspiracy. MSL complains generally about the lack of usefulness of the materials it did receive during discovery, but largely confines its argument to the materials the ABA turned over to the DOJ, some 544,000 pages. MSL cites a number of cases, including Golden Quality Ice Cream Co. v. Deerfield Specialty Papers, Inc., 87 F.R.D. 53 (E.D.Pa.1980), for the proposition that civil antitrust plaintiffs can obtain discovery of documents produced for government antitrust cases. Br. at 37. In these cases, however, the government case had begun before the civil case, and the civil plaintiffs sought copies of the material given to the government at the outset of discovery in their cases. See Golden Quality, 87 F.R.D. at 59. [FN5]

FN5. Further, these cases involved requests to stay the civil proceedings until the completion of the government investigation. See, e.g., Golden Quality, 87 F.R.D. at 55. Of course, we recognize that the government's case against the ABA was civil but we are using civil to mean a non- governmental case.

In the present case, the government's investigation began after MSL's, and MSL sought all of the documents given to the government after the court set the confines of discovery in MSL's case. Thus, the district court held in an order dated August 6, 1996, that a request for all documents given to the government was an attempt "to do an end run around" the existing discovery framework. The court found that MSL could have obtained all those documents which were relevant through the existing discovery framework. See Board of Educ. of Evanston Township v. Admiral Heating and Ventilation, Inc., 513 F.Supp. 600, 603-04 (N.D.Ill.1981) (denying complete turnover of all materials collected by grand jury investigation). Given the context of this case, the court did not abuse its discretion in this ruling.

MSL also argues that it was not given sufficient opportunity to conduct discovery to withstand the appellees' summary judgment motion. MSL cites several cases for the proposition that granting summary judgment before the opposing party has had sufficient opportunity for discovery can be reversible error. See, e.g., Arnold Pontiac-GMC, Inc. v. General Motors Corp., 786 F.2d 564, 568 (3d Cir.1986); Mannington Mills, Inc. v. Congoleum Indus., Inc., 610 F.2d 1059, 1073 (3d Cir.1979). Br. at 4. These cases are in tension with another line of cases which encourages the use of summary judgment in order to avoid burdensome litigation expenses when the allegations are theoretical or speculative. See, e.g., Pennsylvania ex. rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 182 (3d Cir.1988); Pennsylvania Dental Ass'n v. Medical Serv. Ass'n, 745 F.2d 248, 262 (3d Cir.1984). While the present case fits neither paradigm exactly, the district court, by allowing fairly extensive discovery and then closing discovery and entertaining the summary judgment motion, did not abuse its discretion.

C. Summary Judgment

MSL asserts three types of injury resulting from the ABA's allegedly anticompetitive conduct. The first is that MSL is at a competitive disadvantage in recruiting students because graduates of unaccredited schools cannot take the bar examination in most states. Second, MSL says that denial of accreditation creates a stigma, independent of the bar examination issue. Finally, MSL contends that the ABA's enforcement of its accreditation standards injures it directly by increasing the cost of faculty salaries and creating a boycott of unaccredited schools.

In granting summary judgment to the appellees, the district court held that they were not subject to antitrust liability for MSL's principal alleged injury, a competitive disadvantage in recruiting students, to the extent that the decisions of the individual states to prohibit graduates of unaccredited schools from taking their bar examinations caused the injury. MSL, 937 F.Supp. at 441. The court based this holding on the principles of Noerr, 365 U.S. 127, 81 S.Ct. 523. MSL argues on appeal that the Noerr principles do not apply here because private anti-competitive conduct is immunized only where it is (1) clearly and affirmatively authorized by state policy, and (2) actively supervised by the state. California Retail Liquor Dealers Ass'n v. Midcal Aluminum, Inc., 445 U.S. 97, 105, 100 S.Ct. 937, 943, 63 L.Ed.2d 233 (1980). See also FTC v. Ticor Title Ins. Co., 504 U.S. 621, 112 S.Ct. 2169, 119 L.Ed.2d 410 (1992); Patrick v. Burget, 486 U.S. 94, 108 S.Ct. 1658, 100 L.Ed.2d 83 (1988). The DOJ, in its amicus brief, does not challenge this aspect of the district court's holding.

In Parker v. Brown the Supreme Court held that the Sherman Act does not prohibit an anticompetitive restraint imposed by a state as an act of government. 317 U.S. 341, 352, 63 S.Ct. 307, 314, 87 L.Ed. 315 (1943). The decision in Noerr reaffirmed the Parker doctrine in stating "where a restraint upon trade or monopolization is the result of valid governmental action, as opposed to private action, no violation of the Act can be made out." 365 U.S. at 136, 81 S.Ct. at 529. Noerr went on to hold that any attempt to petition or influence the government to impose an anticompetitive restraint is immune from antitrust action. [FN6] Id. Further, even if the anticompetitive restraint results directly from private action, it is still immune if it is an "incidental effect" of a legitimate attempt to influence governmental action. Id. at 143-44, 81 S.Ct. at 533. As the Supreme Court put it, "Parker and Noerr are complementary expressions of the principle that the antitrust laws regulate business, not politics; the former decision protects the States' acts of governing, and the latter the citizens' participation in government." City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 383, 111 S.Ct. 1344, 1355, 113 L.Ed.2d 382 (1991). Thus, the initial substantive issues on this appeal are whether state or private conduct caused the injury MSL alleges it suffered because its graduates could not take the bar examination in most states, and whether, if MSL suffered an injury as a result of the ABA's conduct, the injury was an incidental effect of the ABA's attempt to influence the states with respect to establishing criteria for bar admission. We will discuss each alleged injury separately.

FN6. Noerr dealt specifically with legislative lobbying, but its principles were applied to cover attempts to influence the executive and judicial branches in United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965), and California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972).

1. Injury from bar examination requirements

Each state retains the authority to decide what applicants may take its bar examination and may be admitted to the bar. [FN7] Accordingly, MSL's argument that the ABA received "carte-blanche delegated authority to decide who can take bar exams," MSL reply br. at 19, is simply wrong. See cases cited supra note 7. Many, but not all, states consider the accreditation decisions of the ABA in their legal education requirement (one of many requirements) for taking the bar examination. Yet, every state retains the final authority to set all the bar admission rules, and individual applicants or law schools can petition the states for waivers or changes.

FN7. See, e.g., Hoover v. Ronwin, 466 U.S. 558, 569, 104 S.Ct. 1989, 1996, 80 L.Ed.2d 590 (1984) ("Pursuant to the State Constitution the Arizona Supreme Court has plenary authority to determine admissions to the bar."); In re Murphy, 482 Pa. 43, 393 A.2d 369, 371 (1978) (bar admission "exercised [ ] exclusively by the Supreme Court"); In re Hansen, 275 N.W.2d 790, 796 (Minn.1978) ("We have not delegated our authority to the ABA but, instead, have simply made a rational decision to follow the standards of educational excellence it has developed."); Potter v. New Jersey Supreme Court, 403 F.Supp. 1036, 1040 (D.N.J.1975) (State's adoption of "the standards of an approving body does not support a conclusion that such adoption is an abrogation or delegation of the power or duty to supervise the practice of law in this State pursuant to the mandate of the State Constitution."), aff'd, 546 F.2d 418 (3d Cir.1976).

To the extent that MSL's alleged injury arises from the inability of its graduates to take the bar examination in most states, the injury is the result of state action and thus is immune from antitrust action under the doctrine of Parker v. Brown, 317 U.S. at 352, 63 S.Ct. at 314. The ABA does not decide who can take the bar examinations. Rather, it makes an accreditation decision which it conveys to the states, but the states make the decisions as to bar admissions. Without state action, the ABA's accreditation decisions would not affect state bar admissions requirements. Because the states are sovereign in imposing the bar admission requirements, the clear articulation and active supervision requirements urged by MSL are inapplicable. See Quinn v. Kent Gen. Hosp., Inc., 617 F.Supp. 1226, 1240 (D.Del.1985). In short, this case does not involve a delegation of state authority. To the contrary, the states use the ABA to assist them in their decision-making processes. Thus, we have here a government action case.

Our holding is consistent with current antitrust jurisprudence. The Supreme Court held in a challenge to Arizona's bar admissions policies that the conduct in question "was in reality that of the Arizona Supreme Court," and thus immune under Parker. Hoover v. Ronwin, 466 U.S. 558, 573-74, 104 S.Ct. 1989, 1998, 80 L.Ed.2d 590 (1984). Further, the Supreme Court has held that when a state supreme court adopts a state bar rule banning legal advertising, and retains final enforcement authority over it, Parker immunity applies. Bates v. State Bar of Arizona, 433 U.S. 350, 361, 97 S.Ct. 2691, 2697, 53 L.Ed.2d 810 (1977) ("The Arizona Supreme Court is the real party in interest; it adopted the rules, and it is the ultimate trier of fact and law in the enforcement process."). This case is entirely analogous. The states do not adopt the ABA's accreditation processes, but they do adopt and give effect to the results. [FN8] Thus, the cases cited by MSL (Midcal, Patrick, and Ticor ) are inapplicable because they dealt with situations where private parties were engaging in conduct, whether price-fixing (Midcal and Ticor ) or denying hospital privileges (Patrick ), which led directly to the alleged antitrust injury. Here, the state action setting the bar examination requirements led to the alleged injury. [FN9]

FN8. The Supreme Court opinion in Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988), is also consistent with our holding because it specifically excluded from consideration any injury resulting from the adoption of the challenged standards by any government and dealt only with the independent marketplace effect of the defendant's conduct. Id. at 500, 108 S.Ct. at 1937.

FN9. In its reply brief, MSL continues to miss the crucial point that it is the direct action of the states which causes its injury and continues to discuss cases where private conduct caused the alleged antitrust injury. MSL reply br. at 11-15.

Our holding is also consistent with several court of appeals and district court decisions applying the principles of Noerr. In Lawline v. American Bar Ass'n, 956 F.2d 1378 (7th Cir.1992), the Court of Appeals for the Seventh Circuit held under Noerr that the ABA could not be held liable for any antitrust injury resulting from the Illinois Supreme Court's adoption of ethical standards developed and promulgated by the ABA. Id. at 1383. Similarly, in Sessions Tank Liners, Inc. v. Joor Mfg., Inc., 17 F.3d 295, 299 (9th Cir.1994), the Court of Appeals for the Ninth Circuit held that a defendant which convinced a private association to produce a code that was adopted by or relied upon by a number of municipalities, and that injured the plaintiff, was immune from antitrust liability because the "injuries for which [plaintiff] seeks recovery flowed directly from government action." [FN10] Id. at 299. These cases cannot be distinguished effectively from this case.

FN10. In Sessions, the injury resulted from the denial of permits, while here the injury is from the prohibition precluding applicants from taking bar examinations in many states.

In another analogous case, an organization that accredited chiropractic schools was held immune from Sherman Act liability for denying a school's accreditation because of a dispute over educational philosophy, when the alleged injury resulted from state decisions to deny licenses to graduates of unaccredited schools and from the effects of lobbying in favor of those state decisions.

Sherman College of Straight Chiropractic v. American Chiropractic Ass'n, 654 F.Supp. 716, 722-23 (N.D.Ga.1986), aff'd, 813 F.2d 349 (11th Cir.1987). See also Zavaletta v. American Bar Ass'n, 721 F.Supp. 96 (E.D.Va.1989) (dismissing suit by students at unaccredited law school because of Noerr immunity). In these circumstances, MSL's claim that the ABA's conduct injured it because its graduates cannot take the bar examination in most states fails.

2. Stigma injury

MSL also alleges that independent of any bar examination requirements, it was injured by the stigmatic effect in the market place of the denial of accreditation. MSL claims that the ABA has conducted a campaign to convey the idea that ABA accreditation is the sine qua non of quality and that the ABA is the most, or only, competent organization to judge law schools. There is enough evidence to create a genuine dispute of material fact on this issue. See app. at 2105-09, 3570-72. Nevertheless, the district court ruled that this injury could not form the basis for antitrust liability because it was "incidental to the primary, protected injury," and thus immune under Noerr. MSL, 937 F.Supp. at 442. MSL challenges this holding on the grounds that there was no petitioning of government here, and therefore Noerr does not apply. The DOJ as amicus challenges the holding to the extent it finds petitioning unnecessary for immunity for stigma injury, but takes no position on whether any petitioning took place. We hold that there was sufficient petitioning to invoke Noerr immunity. [FN11]

FN11. In its reply brief, MSL seriously misstates the Noerr doctrine, arguing that only "successful petitioning of courts to clearly and affirmatively authorize ... closely supervise, review and approve" the ABA's conduct would provide immunity. MSL reply br. at 19. Under Noerr, any solicitation of government action is immune, whether or not it is successful. This mischaracterization stems from MSL's continued inability to recognize that there is state action at issue here, not private conduct.

MSL relies extensively on the Supreme Court's decision in Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988). [FN12] In Allied Tube, a producer of electrical conduit sought approval of its product from the National Fire Protection Association for inclusion of the product in the Association's National Electrical Code. A substantial number of state and local governments adopted the code virtually without change. To be included in the code, all that was required was a majority vote of the members present at the annual meeting of the Association. To prevent approval of the electrical conduit at question in the case, competitors of the producer stacked the annual meeting with persons who pledged to vote against approval. On the facts in Allied Tube the Court held that the code developed by the defendants had a force in the marketplace independent of any government adoption (or petitioning for such adoption) in that there was a conspiracy among manufacturers, distributors, and consumers not to trade in products not approved by the code. 486 U.S. at 503, 507, 108 S.Ct. at 1938- 40. Further, the Court held that the application of Noerr immunity depends "on the context and nature of the ... activity," and found the challenged conduct to be "the type of commercial activity that has traditionally had its validity determined by the antitrust laws." 486 U.S. at 504-05, 108 S.Ct. at 1939. That was so, the Court reasoned, because the activity of which the producer complained involved the dubious commercial practices of economically interested actors that had an impact on the political process; it was not political activity that had an impact on commerce.

FN12. MSL's additional reliance on American Soc'y of Mechanical Eng'rs, Inc. v. Hydrolevel Corp., 456 U.S. 556, 102 S.Ct. 1935, 72 L.Ed.2d 330 (1982), is misplaced because that case dealt with agency and apparent authority issues and does not consider Parker or Noerr immunity. It also dealt with an attempt to interfere directly with a company's customers, 456 U.S. at 562, 102 S.Ct. at 1940, an exception to Noerr inapplicable here.

The conduct of which MSL complains here is basically the ABA's justification of its accreditation decisions and MSL is asserting a loss of prestige resulting from it. This conduct is neither normal commercial activity nor the type of restraint of trade involved in Allied Tube, and thus that case is not controlling. A loss of prestige resulting from a refusal to approve a product or service does not alone make out an antitrust claim. See Schachar v. American Academy of Ophthalmology, Inc., 870 F.2d 397, 399 (7th Cir.1989); Consolidated Metal Prods., Inc. v. American Petroleum Inst., 846 F.2d 284, 293 (5th Cir.1988).

Noerr immunity is proper in this case because the ABA engaged in petitioning activity, and the stigma injury which MSL suffered was incidental to that activity. [FN13] MSL admits that in the past, "from the 1920's to approximately the mid 1970's," the ABA petitioned the states in a campaign to prohibit graduates from unaccredited schools from taking bar examinations. See MSL br. at 16. This campaign was obviously successful as now most states require graduation from an ABA-accredited school for admission to the bar. The ABA's current conduct surely would be considered petitioning if it took place during the past campaign. The fact that the ABA was successful in lobbying the states does not weaken its position. The ABA continues to communicate its accreditation decisions to the states, and it desires that they continue to give them credence. Discussing the quality and competence of its decisions is a legitimate, although somewhat indirect, way of petitioning the states to continue to follow its guidance. Yet, such activity is no more indirect than the public relations campaign held to be petitioning in Noerr. 365 U.S. at 140-41, 81 S.Ct. at 531.

FN13. There is no "conspiracy" exception to either Noerr or Parker immunity. Omni, 499 U.S. at 383, 111 S.Ct. at 1355.

There is an exception to Noerr immunity that would apply if the ABA "attempted directly to persuade anyone not to deal with" MSL. See Noerr, 365 U.S. at 142, 81 S.Ct. at 532. There is no evidence that the ABA made such an attempt (there was such evidence in Allied Tube ), nor is there any other evidence suggesting that Noerr immunity should not apply here. In a supplemental filing of information after oral argument, MSL produced two instances where it claims the ABA directly mentioned MSL. The first is a Boston Globe article about the denial of accreditation to MSL in which an ABA governor defended the ABA standards as providing "a minimum level of quality and consumer protection assurance to the public." John H. Kennedy, "Andover Law School Loses Appeal for Accreditation," Boston Globe, February 9, 1994, at 42. The second proffered piece of evidence is a transcript of the ABA House of Delegates debate of MSL's accreditation application, where one member urged the denial of MSL's application and stated that the standards with which MSL did not comply "lie at the heart of a quality institution."

Both of these statements do nothing more than defend the ABA standards. As we discuss above, this is valid, if indirect, petitioning activity. The ABA is not saying directly that MSL is a bad institution, or that a particular student should not go there. MSL's attempts to characterize all the ABA's comments about the quality of its accreditation process as direct attacks on MSL does not make them direct attacks. We also point out that if a claim for stigma injury could be advanced in circumstances like those here, Noerr immunity would be confined severely; a petitioner for governmental action is likely to urge that the action is needed to ensure that standards are met, thereby suggesting that some entities do not meet appropriate standards.

3. Direct injury from ABA standards

MSL alleges a third injury which occurs directly from the ABA's enforcement of its standards, independent of both the bar examination and stigma issues. The challenged standards relate to faculty salaries (MSL charges price-fixing) and limitations on accredited schools accepting transfers or graduate students from unaccredited schools (MSL charges a boycott). Although the ABA is immune from liability attributable to the state action in requiring applicants for the bar examination to have graduated from an ABA-accredited law school and from any stigma injury resulting from the denial of accreditation under the Noerr petitioning doctrine, the ABA is not immune in the actual enforcement of its standards. The state action relates to the use of the results of the accreditation process, not the process itself. The process is entirely private conduct which has not been approved or supervised explicitly by any state. See Midcal, 445 U.S. 97, 100 S.Ct. 937. Thus, the ABA's enforcement of an anticompetitive standard which injures MSL would not be immune from possible antitrust liability. Extending Noerr immunity to this type of private activity would run counter to Allied Tube.

We start our analysis of this direct injury issue by pointing out that "to survive [ ] motion for summary judgment, [the plaintiff] must establish that there is a genuine issue of material fact as to whether [the defendants] entered into an illegal conspiracy that caused [the plaintiff] to suffer a cognizable injury." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). The district court held that MSL did not raise a genuine issue of fact as to whether it was injured by the salary, transfer or graduate student standards. MSL, 937 F.Supp. at 441 n. 10, 445 n. 20.

As we discuss above, MSL failed to show sufficient evidence that it was denied accreditation because it did not comply with the salary standard. Therefore, MSL has to show that the ABA's alleged fixing of salaries at its accredited schools somehow injured it in another way. At first glance, the argument that the ABA's faculty salary standards injured MSL makes no economic sense. As the district court commented, if ABA-accredited schools are required to pay higher salaries, an unaccredited school should have a cost advantage. See MSL, 937 F.Supp. at 441 n. 10. Indeed, it would appear that a conspiracy to increase the conspirators' costs would be no more logical than would a conspiracy to reduce the conspirators' income. Cf. Advo, Inc. v. Philadelphia Newspapers, Inc., 51 F.3d 1191, 1195-1204 (3d Cir.1995) (discussing predatory pricing monopoly case). Thus, while we consider this appeal on ordinary summary judgment standards, we point out that it could be argued that MSL "must come forward with more persuasive evidence to support [its] claim than would otherwise be necessary." Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356.

MSL alleges that the faculty salary standards injured it in two ways. First, MSL asserts that it raised its salaries in an attempt to get accreditation. This claim is in direct conflict to its consistent assertion that it refused to comply with the ABA's anticompetitive standards and for that reason was denied accreditation. See, e.g., MSL br. at 3-4. The claim also is remarkable because MSL made it clear that it would not comply with ABA standards to obtain certification. Further, MSL's assistant dean testified that MSL salaries have "never been tied to" ABA standards. [FN14] App. at 439. Rather, its dean stated that the salary increases were made out of fairness and as a reward for hard work. App. at 393. The only other related evidence shows that MSL acted independently to increase its salaries, and then later found that this action might help it get accreditation. See app. at 828. Unsupported allegations to the contrary, see app. at 2123, are not sufficient without explanation to outweigh the prior testimony and avoid summary judgment. See Hackman v. Valley Fair, 932 F.2d 239, 241 (3d Cir.1991); Martin v. Merrell Dow Pharm., Inc., 851 F.2d 703, 706 (3d Cir.1988); but see Videon Chevrolet, Inc. v. General Motors Corp., 992 F.2d 482, 488 (3d Cir.1993) (distinguishing Martin and holding that statements have to be clearly contradictory and without explanation to be insufficient to defeat summary judgment motion). There has not been sufficient explanation of the contradiction to create a genuine issue of material fact and justify reversing the summary judgment.

FN14. MSL points out that the assistant dean has no role in setting MSL's salaries, so he is only giving his personal belief on the issue. MSL reply br. at 30, sup. app. at 5476-79.

MSL's second contention that the ABA's salary standards injured it is that the standards inflated the market cost of law professors, thereby increasing the salaries MSL must pay its faculty. This market price argument is equally unavailing. MSL's stated policy was to rely on adjunct faculty. MSL did not produce evidence that any of its faculty other than its dean ever had been employed at another law school. In effect, MSL was hiring faculty from a different market, one unaffected by the ABA's conduct, or at least a different provider in the same market (teachers who never taught at ABA-accredited schools). The report by MSL's economic expert does not contradict this point, app. at 3568, because it contains only general and theoretical observations and is not tied to evidence in the record. [FN15] Thus, we can disregard it for the purposes of reviewing the summary judgment. See Pennsylvania Dental Ass'n v. Medical Serv. Ass'n, 745 F.2d 248, 262 (3d Cir.1984). Our result is supported by MSL's policy towards salaries: "because a professor at MSL must prove himself or herself as a full-time faculty member before obtaining a large salary, MSL retained a level of starting salaries that are below ABA requirements." App. at 2123. [FN16]

FN15. "[A]s I understand it, MSL was forced to raise its salaries to levels above what it would have otherwise (a) in an attempt to satisfy the standards and (b) because of the market effects of the standards on prices in the input markets. The anticompetitive effects of those practices affect input prices (salaries, etc.) for MSL, as well for every other law school. The practices injure all of the schools that have accepted the standards, as well as those that have not. Because the standards have an undeniable impact on input costs, every school is forced to incur higher costs, along with the reduction in the flexibility needed to respond efficiently to changing conditions, all schools suffer competitive injury as well." App. at 3568.

FN16. It is interesting to note that MSL charges that the ABA and the AALS engaged in a conspiracy to restrain trade. It thus appears that insofar as the salary standards are concerned, MSL believes that the AALS conspired to increase its member law schools' costs.

The situation here is analogous to that in Mid-West Paper Prods. Co. v. Continental Group, Inc., 596 F.2d 573 (3d Cir.1979). In that case we held that a purchaser from competitors of a price-fixer did not have standing to sue the price-fixer on the grounds that the general market price increased as a result of the price fixing. Id. at 587. We explained Mid-West Paper in In re Lower Lake Erie Iron Ore Antitrust Litig., 998 F.2d 1144, 1167-68 (3d Cir.1993), where we focused on how direct an impact the challenged conduct had on the plaintiff. MSL was not impacted directly by the ABA's criteria because it was hiring a different kind of professor. Mid-West Paper thus controls, and summary judgment was proper. [FN17]

FN17. This is true even though Mid-West Paper dealt with standing and we deal here with whether there is a genuine issue of fact as to MSL's injury, for the concepts are similar.

MSL also alleges a boycott in that the ABA prevented its accredited schools from accepting transfers or graduate students from unaccredited schools. The district court held that MSL had not produced any evidence that it was injured by either of these rules. MSL, 937 F.Supp. at 445 n. 20. This holding is correct. MSL has done nothing more than state the standards and allege that they injured MSL. See app. at 2108, 2120. There is no factual support for these allegations. Further, the evidence shows that MSL actively opposed its students transferring, both in policy and practice. [FN18] MSL therefore cannot claim that the ABA's prohibition on transfers with credit injured it. [FN19]

FN18. Its dean testified in another proceeding "MSL would have [ ] denied admission had it known [a student] intended to seek transfer away as soon as possible." App. at 1415. MSL considered transfers to be "extremely harmful to the school," id. at 1416, and that assisting students in transferring was "self-destructive." Id. at 1231.

FN19. MSL's reliance on the allegations in the government's antitrust case which we described above is unavailing for two reasons. First, those allegations never were proven because the case was settled, and therefore cannot be taken as true in this case. See United States v. Microsoft Corp., 56 F.3d 1448, 1460-61 (D.C.Cir.1995); Petruzzi's IGA v. Darling- Delaware, 998 F.2d at 1247. Second, the government never alleged that MSL suffered any injury from these standards and does not so argue in its amicus brief in this case. See, e.g., DOJ br. at 6-7.

MSL also alleges that the AALS boycotted MSL by refusing membership and that the LSAC boycotted MSL by refusing to allow it to attend certain recruiting conferences. See MSL br. at 59. The allegations regarding the AALS are simply incorrect. AALS membership is independent of ABA accreditation, and MSL never has applied for such membership. App. at 2278-80. Even though it is not a member, MSL can attend AALS conferences and has done so. Id. at 2280. Therefore MSL has not suffered any injury at the hands of the AALS.

The LSAC's failure to invite MSL to its conferences does not constitute a boycott. [FN20] Under the fact-pattern here, to demonstrate a boycott MSL has to show that these conferences are an essential facility for recruiting students, as there is no other potential basis for the boycott claim. Such an essential facility or claim fails whenever a plaintiff (1) cannot show that the defendant has a monopoly over the alleged essential facility; (2) the facility cannot be duplicated in a reasonable manner; and (3) the plaintiff has been denied its use. Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 748 (3d Cir.1996). MSL has shown only that the LSAC denies it participation. There is no evidence suggesting that the LSAC has a monopoly over access to law students or pre-law advisors, or even over recruiting fairs. The LSAC does not hinder MSL's recruiting in any way, it just does not aid it by allowing MSL to attend its conferences. [FN21] Such activity is not required by the antitrust laws, and its absence does not constitute antitrust injury.

FN20. LSAC conferences are only open to LSAC member schools. MSL is not a member of the LSAC because it does not use the LSAT and it is not accredited by either the ABA or the AALS.

FN21. Similarly, MSL's claims about getting only a listing in The Official Guide to U.S. Law Schools fail because there are many such publications, some of which do describe MSL.

Further, MSL has not shown that the LSAC injured it. The LSAC never allowed MSL to attend its conferences and, prior to ABA accreditation denial, MSL's enrollment exceeded its projections. App. at 2420-24. It was the denial of accreditation which caused MSL's enrollment to decline, and as discussed above, in light of Parker and Noerr that loss cannot be the basis for antitrust liability. MSL contends that as long as it was injured in some way by the overall alleged conspiracy, it need not show injury from its individual aspects, and cites in this respect In re Lower Lake Erie Iron Ore Antitrust Litig., 998 F.2d at 1172. Reply br. at 35. While this principle is correct, it is inapplicable here. In re Lower Lake Erie did not involve state action or petitioning of government immunity issues. Here, MSL must show that it was injured in some way by the ABA's enforcement of its standards, independent of any injury from the immune state action or petitioning, and as we discuss above, it has not done so.

Inasmuch as we hold that MSL has failed to demonstrate an injury for which antitrust liability may lie, we need go no further to affirm the district court's summary judgment order with respect to issues beyond those controlled by Parker and Noerr. Thus, we do not consider the district court's alternative free speech immunity theory. Further, we make no comment on whether MSL produced sufficient evidence to show the existence of a conspiracy for two reasons. [FN22] First, the alleged conspiracy with respect to the injuries from the bar examination requirements and the stigma from denial of accreditation involved immunized conduct. See Omni, 499 U.S. at 381-84, 111 S.Ct. at 1354-56. Second, MSL did not demonstrate that it suffered injury from the conduct not immunized. 15 U.S.C. § 15; see Matsushita, 475 U.S. at 585-86, 106 S.Ct. at 1355; Mathews v. Lancaster Gen. Hosp., 87 F.3d at 641; see also Sciambra v. Graham News, 892 F.2d 411, 414-15 (5th Cir.1990); United States Football League v. National Football League, 842 F.2d 1335, 1377-78 (2d Cir.1988). Of course, we hasten to add that we do not hold that if MSL had been able to demonstrate injury from conduct beyond the scope of Parker and Noerr antitrust immunity there necessarily would be liability as we have no need to reach that point.

FN22. We do note, however, that there is no probative evidence that the AALS or LSAC was involved in any kind of conspiracy with the ABA.

D. Dismissal of the Individual Appellees

The district court dismissed claims against the 22 individual appellees for lack of personal jurisdiction in the Eastern District of Pennsylvania in an order on March 11, 1994. Massachusetts School of Law v. American Bar Ass'n, 846 F.Supp. 374 (E.D.Pa.1994). The court, upon reconsideration and after MSL had conducted some discovery, found on May 31, 1994, that MSL could not "suggest, much less show, substantial acts in Pennsylvania." Massachusetts School of Law v. American Bar Ass'n, 853 F.Supp. 843, 845 (E.D.Pa.1994). MSL challenges the dismissal on the grounds that it was entered before MSL was allowed to undertake any discovery as to the appellees' contacts within the district.

Our rule is generally that jurisdictional discovery should be allowed unless the plaintiff's claim is "clearly frivolous." Nehemiah v. The Athletics Congress, 765 F.2d 42, 48 (3d Cir.1985), citing Compagnie des Bauxites de Guinee v. L'Union Atlantique S.A. d'Assurances, 723 F.2d 357, 362 (3d Cir.1983). The district court found (at least by implication), and we agree, that MSL's jurisdictional claims were clearly frivolous. Our result is in accord with other cases which hold that a mere unsupported allegation that the defendant "transacts business" in an area is "clearly frivolous." See Garshman v. Universal Resources Holding, Inc., 641 F.Supp. 1359, 1366 (D.N.J.1986), aff'd on other grounds, 824 F.2d 223 (3d Cir.1987); [FN23] see also American Centennial Ins. Co. v. Handal, 901 F.Supp. 892, 899 (D.N.J.1995). MSL legitimately cannot allege a nationwide conspiracy and then say, without more evidence, that such a conspiracy must have effects in Pennsylvania.

FN23. Garshman was decided on venue grounds, but the analysis is the same as for personal jurisdiction. Garshman, 641 F.Supp. at 1366.

Further, jurisdictional discovery generally relates to corporate defendants and the question of whether they are "doing business" in the state. See Compagnie Des Bauxites, 723 F.2d at 362 and cases cited therein. Where the defendant is an individual, the presumption in favor of discovery is reduced. See Shaw v. Boyd, 658 F.Supp. 89, 91 n. 1 (E.D.Pa.1987). Thus, the district court's order dismissing the individual appellees without ordering discovery first was correct. [FN24]

FN24. We note that in view of our merits disposition we can conceive of no way that the individual appellees could be liable in this case.

E. Recusal of Judge Ditter

MSL made several attempts to have Judge Ditter recused. Judge Ditter denied MSL's recusal motion in an opinion dated December 16, 1994. Massachusetts School of Law v. American Bar Ass'n, 872 F.Supp. 1346 (E.D.Pa.1994). MSL's attempts to seek his recusal in this court were also unavailing (one denied, one held moot in light of this appeal). Inasmuch as we are affirming the summary judgment, we need not consider arguments regarding reassignment on remand. We review the denial of the recusal motion for abuse of discretion.

MSL argues that Judge Ditter has both the appearance of bias and actual bias, and should be removed from the case under either 28 U.S.C. § 455(a) or this court's authority as recognized in Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 167 (3d Cir.1993), and Haines v. Liggett Group, Inc., 975 F.2d 81, 98 (3d Cir.1992). The standard for recusal is whether an objective observer reasonably might question the judge's impartiality. MSL contends that both one past out-of-court experience, and the bias which it asserts is apparent from his rulings, justify Judge Ditter's recusal.

MSL argues that Judge Ditter's participation in 1974-75 on an outside committee which tried to help the Delaware Law School, where his son was then a student, obtain ABA accreditation justifies recusal. In over 200 pages of documents submitted by MSL relating to Delaware Law School (gleaned from depositions and testimony before several courts), Judge Ditter's name appears only six times. This evidence suggests nothing more than that Judge Ditter had several meetings with the person who was the driving force behind the effort to make changes at Delaware Law School in order to qualify for accreditation. There is one affidavit from the former dean of that school that suggests that Judge Ditter played a more active role, but Judge Ditter, in his careful consideration of the recusal motion, sufficiently points out the inconsistencies between this declaration and other more contemporaneous testimony. See MSL, 872 F.Supp. 1346, 1358-65 (E.D.Pa.1994). We thus affirm Judge Ditter's holding that nothing related to Delaware Law School creates an appearance of bias in this case. This is true both because of Judge Ditter's limited role at the time and the amount of time which has passed. This view is in accord with the prevailing case law. See, e.g., In re Allied Signal, Inc., 891 F.2d 974, 976 (1st Cir.1989) (upholding denial of recusal motion based on social and business relationship eight years earlier between judge and one of plaintiff's attorneys); Alexander v. Chicago Park Dist., 773 F.2d 850, 857 (7th Cir.1985) (denying recusal motion based on judge's representation of witness 25 years earlier).

Furthermore, we do not understand why Judge Ditter's participation in the Delaware Law School accreditation process, no matter how intensive, would cause an objective observer to believe that he would not be impartial here. The Delaware Law School and MSL situations, though somewhat similar in nature, are unrelated. Indeed, it is difficult even to articulate a reasonable basis on which to argue that by reason of Judge Ditter's experiences regarding the Delaware Law School he would have a bias here. As far as we can see, there is no more basis to think that Judge Ditter was not impartial here because of his experiences 20 years ago with Delaware Law School, than to believe that a judge who had been in an automobile accident would not be impartial in a case involving a different accident.

MSL also argues that Judge Ditter's rulings, both in substance (allegedly always against MSL) and in form (allegedly repeatedly vilifying and condemning MSL and its dean), demonstrate actual bias. Since we have affirmed several of the rulings MSL contends demonstrate bias, and a review of the record shows that there was no pattern of consistently ruling against MSL, there is no actual bias.

We also point out that a judge's consistent pattern of ruling against a party could be entirely justified for that party might consistently be taking positions that cannot be supported. Even-handed justice does not require a judge to balance numerically the rulings in favor of and against each party. After all, each ruling stands on its own. Furthermore, the Supreme Court has said that "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994). [FN25] We do not believe that a reasonable person who looked at Judge Ditter's rulings objectively would find the appearance of bias. See United States v. Bertoli, 40 F.3d 1384, 1413 (3d Cir.1994). It should be apparent to anyone that he worked diligently in this hard-fought case and, as far as we are concerned, reached the correct outcome.

FN25. The holding in Liteky required bias to stem from an "extrajudicial source" to support a recusal under section 455(a).

We also do not find that any of Judge Ditter's comments cited by MSL, see MSL br. at 23-25, suggest the appearance of partiality. The Liteky Court held that "judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge." 510 U.S. at 555, 114 S.Ct. at 1157; see also In re Skobinsky, 167 B.R. 45, 52 (E.D.Pa.1994). MSL's desire to impute hostile intent to Judge Ditter does not mean he had that intent, and does not create an appearance of bias. MSL's attitude appears to be that anyone who disagrees with it is both wrong and biased, but the evidence does not show this. The cases cited by MSL are inapplicable because they dealt with unique extrajudicial contact with a party, In re Sch. Asbestos Litig., 977 F.2d 764 (3d Cir.1992), an implicit admission of bias by the judge, In re Antar, 71 F.3d 97, 101 (3d Cir.1995), or reassignment on remand, Haines and Alexander. Since this case will not be remanded, we need not consider reassignment and, as we discussed, Judge Ditter's denial of the recusal motion was not an abuse of discretion.

F. Disqualification of Inside Counsel

MSL also appeals the district court's disqualification of five members of MSL's administration and faculty from serving as trial counsel, giving oral argument, and taking depositions. [FN26] Since MSL does not allege that it received incompetent counsel, and we are affirming the summary judgment order, the issue probably is moot. In any event, the court did not err in requiring the disqualification.

FN26. By agreement among the parties, this order later was modified to allow two of the MSL professors to act as trial counsel. MSL br. at 29 n. 12.

III. CONCLUSION

The order of the district court entered August 29, 1996, granting the appellees summary judgment and the other orders on appeal will be affirmed.

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