Academic journal article Harvard Law Review

Torts - Fraudulent Misrepresentation - Sixth Circuit Finds Law School Applicants Could Not Reasonably Rely on School-Provided Employment Statistics

Academic journal article Harvard Law Review

Torts - Fraudulent Misrepresentation - Sixth Circuit Finds Law School Applicants Could Not Reasonably Rely on School-Provided Employment Statistics

Article excerpt

TORTS-FRAUDULENT MISREPRESENTATION--SIXTH CIRCUIT FINDS LAW SCHOOL APPLICANTS COULD NOT REASONABLY RELY ON SCHOOL-PROVIDED EMPLOYMENT STATISTICS.--MacDonald V. Thomas M. Cooley Law School, 724 F.3d 654 (6th Cir. 2013).

Until the recent recession, law was widely considered a safe and lucrative profession. (1) ln the last few years, however, the media has raised awareness of the dim career prospects facing many law school graduates. (2) Some struggling graduates have filed lawsuits against their alma maters, claiming that the schools misrepresented their students' employment outcomes. (3) Recently, in MacDonald v. Thomas M. Cooley Law School, (4) the Sixth Circuit upheld the dismissal of a class action lawsuit accusing a law school of disseminating false employment statistics that misled the plaintiffs into attending a low-quality institution. (5) The court treated the plaintiffs more like businesspeople who made a bad investment than like consumers who were sold a faulty product. Other courts considering similar cases have more sympathetically understood the context in which applicants receive school-supplied information and have allowed the cases to move forward. Still, even those courts did not explore the full social and psychological context that law school reform advocates blame for applicants' seemingly "unreasonable" decisionmaking.

Thomas M. Cooley Law School (Cooley), a Michigan-based institution, has the loosest admissions standards of any accredited or provisionally accredited American law school. (6) Relying on statistics like library square footage and student body size, Cooley publishes a widely mocked law school guide, which ranks it second-best in the country. (7) But the employment prospects of its graduates are grim, (8) even compared to the generally dire state of the legal job market. (9) of the twelve named plaintiffs --Cooley graduates from 2006 to 201010--all struggled to find legal employment, and some never did. (11) Several plaintiffs, for instance, could not find full-time, permanent legal employment after law school, took temporary contract assignments to make ends meet, and now own and operate their own firms (12)--which by no means ensures a stable income, especially in the early years. (13)

The plaintiffs sued Cooley in federal district court as part of a nationwide effort to hold law schools accountable for deceptive marketing practices. (14) The plaintiffs' main claims--a claim under the Michigan Consumer Protection Act (15) (MCPA) and a common law claim of fraudulent misrepresentation (16)--focused on two statistics provided by Cooley in its "Employment Report and Salary Survey" (17): first, that the "percentage of graduates employed" was seventy-six percent, and second, that the "average starting salary for all graduates" was $54,796. (18) These statistics were based on "unaudited, unverified, and self-reported" responses from about eighty-three percent of 2010 graduates. (19) Cooley published these statistics on its website and also provided them to U.S. News & World Report, the American Bar Association (ABA), and the National Association for Law Placement (NALP). (20) The plaintiffs alleged that they had relied on similar statistics in deciding to attend Cooley. (21) Emphasizing that Cooley "primarily market[ed] its product to naive, relatively unsophisticated consumers," (22) the plaintiffs asked for $300 million in damages to compensate them and their putative class--students enrolled at Cooley at any time since August 11, 2005. (23)

The district court granted Cooley's motion to dismiss for failure to state a claim. (24) First, the court dismissed the claim that Cooley violated the MCPA by engaging in "[u]nfair, unconscionable, or deceptive methods, acts or practices in the conduct of trade or commerce." (25) The court noted that, under Michigan precedent, the MCPA does not apply to goods or services "purchased primarily for business or commercial rather than personal purposes. …

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