Thomas M. Cooley Law Sch. v. Kurzon Strauss, LLP

• Decision Date: 02 July 2014
• Docket Number: No. 13–2317.,13–2317.
• Citation: 759 F.3d 522
• Parties: THOMAS M. COOLEY LAW SCHOOL, Plaintiff–Appellant, v. KURZON STRAUSS, LLP; David Anziska; Jesse Strauss, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

759 F.3d 522

THOMAS M. COOLEY LAW SCHOOL, Plaintiff–Appellant,
v.
KURZON STRAUSS, LLP; David Anziska; Jesse Strauss, Defendants–Appellees.

No. 13–2317.

United States Court of Appeals,
Sixth Circuit.

Argued: April 30, 2014.
Decided and Filed: July 2, 2014.

[759 F.3d 524]

ARGUED:Michael P. Coakley, Miller Canfield, Paddock and Stone, P.L.C., Detroit, Michigan, for Appellant. David Anziska, Law Offices of David Anziska, Brooklyn, New York, for Appellee Anziska. Jesse Strauss, Strauss Law PLLC, New York, New York, for Appellees Kurzon and Strauss. ON BRIEF:Michael P. Coakley, Brad H. Sysol, Paul D. Hudson, Miller Canfield, Paddock And Stone, P.L.C., Detroit, Michigan, for Appellant. David Anziska, Law Offices of David Anziska, Brooklyn, New York, for Appellee Anziska. Jesse Strauss, Strauss Law

[759 F.3d 525]

PLLC, New York, New York, for Appellees Kurzon and Strauss.

Before: DAUGHTREY, McKEAGUE, and GRIFFIN, Circuit Judges.

OPINION
GRIFFIN, Circuit Judge.

Plaintiff Thomas M. Cooley Law School claims that defendants Kurzon Strauss, LLP, David Anziska, and Jesse Strauss published defamatory statements regarding plaintiff's institution, causing $17 million in damages. In granting defendants' motions for summary judgment, the district court held that plaintiff was a limited-purpose public figure and that the record would not allow a reasonable jury to conclude that defendants published the challenged statements with actual malice. We agree and affirm.

I.

Plaintiff Thomas M. Cooley Law School is a non-profit law school with campuses in Lansing, Ann Arbor, Auburn Hills, and Grand Rapids, Michigan, and Riverview, Florida. Plaintiff is currently the largest law school in the country, enrolling over 3,500 students at its five campuses.

When plaintiff filed suit, defendant Kurzon Strauss, LLP was a New York law firm with two partners, defendant Jesse Strauss and nonparty Jeffrey Kurzon, and one “of counsel” attorney, defendant David Anziska. A few months later, Kurzon Strauss, LLP changed to Kurzon LLP, and Strauss and Anziska ended their associations with the firm.

On June 8, 2011, under a heading titled “Investigating the Thomas Cooley School of Law,” Anziska posted the following statement on the website “JD Underground,” hosted at http:// www. qfora. com/ jdu:

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

On June 13, 2011, defendants received a cease-and-desist letter from plaintiff claiming that the JD Underground post was false and defamatory. Also on June 13, Anziska spoke on the phone with plaintiff's general counsel about the matter. As a result of these communications, on June 15, 2011, under a heading titled “Retraction re: Investigating the Thomas Cooley School of Law,” Strauss posted the following statement on JD Underground:

It has been brought to this firm's attention that a post on this site on June 8, 2011 entitled, “Investigating the Thomas Cooley School of Law” contained certain allegations which may have been couched as fact regarding employment

[759 F.3d 526]

and default data. These statements are hereby retracted. Moreover, representatives of Thomas Cooley Law School have informed us that published reports regarding Thomas Cooley Law School's student loan default rate and of an investigation by the Federal Department of Education are incorrect. Therefore, we retract those statements as well.

Kurzon Strauss LLP

Sometime between June 17, 2011, and July 13, 2011, Anziska sent a draft proposed class action complaint to twenty individuals, eighteen of whom were either former or current students of plaintiff law school. The complaint stated, among other things, that plaintiff “blatantly misrepresent[s] and manipulat[es] its employment statistics to prospective students, employing the type of ‘Enron-style’ accounting techniques that would leave most for-profit companies facing the long barrel of a government indictment and the prospect of paying a substantial criminal fine”; and that plaintiff “grossly inflates its graduates' reported mean salaries[.]” Anziska instructed these individuals to forward the draft complaint to “anyone who may be interested[.]” As a result, the complaint was forwarded to an additional twenty people, and, ultimately, it became publicly available on the internet.¹

On July 14, 2011, plaintiff filed suit against defendants, alleging state-law claims of defamation, tortious interference with business relations, breach of contract, and false light. The district court granted summary judgment in favor of defendants; plaintiff timely appealed.

II. A.

We review de novo the district court's grant of summary judgment. Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir.2009). Summary judgment is proper when, viewing the evidence in the light most favorable to the nonmoving party, there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Burley v. Gagacki, 729 F.3d 610, 618 (6th Cir.2013).

B.

To provide the appropriate context for plaintiff's arguments, we first identify the alleged defamatory statements. Plaintiff alleges that the following statements from defendants' JD Underground post were defamatory:

Cooley “grossly inflates its post-graduate employment and salary information”[;]

“[T]here are reports that there [sic] students are defaulting on loans at an astounding 41 percent rate, and that the school is currently being investigated by the DOE for failing to adequately disclose its students' true default rates[;]”

“[M]ost likely schools like Thomas Cooley will continue to defraud unwitting students unless held civilly accountable.”

Plaintiff also alleges that the following statements made in defendants' draft proposed class action complaint were defamatory:

Cooley “blatantly misrepresent[s] and manipulat[es] its employment statistics

[759 F.3d 527]

to prospective students, employing the type of ‘Enron-style’ accounting techniques that would leave most for-profit companies facing the long barrel of a government indictment and the prospect of paying a substantial criminal fine[;]”

Cooley “grossly inflates its graduates' reported mean salaries[.]”

With these statements in mind, we next turn to the applicable law.

C.

The elements of a defamation claim under Michigan law are: (1) a false and defamatory statement about the plaintiff; (2) an unprivileged communication to a third party; (3) fault amounting at least to negligence on the part of the publisher; and (4) actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by publication. Mitan v. Campbell, 474 Mich. 21, 706 N.W.2d 420, 421 (2005).

Regarding the third element—the fault standard—if the plaintiff is a “public figure,” the plaintiff must also establish that the defendant published the defamatory statement “ ‘with “actual malice,”—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.’ ” Herbert v. Lando, 441 U.S. 153, 156, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). The actual malice standard arose from the Supreme Court's recognition that the First Amendment limits the extent to which speech may be chilled by tort liability. See Sullivan, 376 U.S. at 279–80, 84 S.Ct. 710. A plaintiff must show actual malice by clear and convincing evidence and whether a record may support a finding of actual malice is a question of law. Harte–Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 667, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989); Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

There are two kinds of “public figure” plaintiffs: a “limited-purpose” public figure and a “general-purpose” public figure. See Bufalino v. Detroit Magazine, Inc., 433 Mich. 766, 449 N.W.2d 410, 416 (1989) (Levin, J., concurring). A limited-purpose public figure is a public figure with respect to “a limited range of issues,” and one achieves that status by “voluntarily inject[ing] himself ... into a particular public controversy.” Gertz, 418 U.S. at 351, 94 S.Ct. 2997. A general-purpose public figure is one who attains “such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts.” Id.

D.

The district court held that plaintiff is a limited-purpose public figure regarding the public controversy over “the value of a law degree” and that it has failed to offer proof from which a reasonable jury could find actual malice by clear and convincing evidence. Plaintiff advances a variety of challenges to these holdings. First—leading with an issue never presented below—plaintiff argues that it need not show actual malice because defendants' defamatory statements were unprotected commercial...