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TABLE OF CONTENTS

 

Page

Preliminary Statement

1

TJSL’s Motion for Summary

4

Procedural History

6

Statement of Facts

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I. TJSL’S EMPLOYMENT FIGURES

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II. TJSL’S SECRET GOALS CONCERNING THE EMPLOYMENT

DATA

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III. TJSL HAD A POLICY AND PRACTICE OF INFLATING ITS EMPLOYMENT FIGURES

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IV. THE EVIDENCE OF MISREPORTING

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V. TJSL KNEW THAT ITS EMPLOYMENT DATA WAS MISLEADING AND INACCURATE

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VI. PLAINTIFFS RELIED ON TJSL’S INFLATED FIGURES

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Legal Standard

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Argument

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I. TJSL CANNOT SHIFT THE BURDEN ON SUMMARY JUDGMENT BY IGNORING THE RELIANCE ALLEGATIONS IN

THE COMPLAINT

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II. THERE IS A TRIABLE ISSUE OF FACT CONCERNING CAUSATION, MATERIALITY AND REASONABLE RELIANCE

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A. TJSL’s Employment Data Was Material To Plaintiffs’ Decision To Enroll

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1. Materiality Is a Question of Fact

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2. This Court Previously Found That TJSL’s Employment Data Was Material

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3. Plaintiffs’ Declarations Create A Triable Issue of Fact Concerning Materiality

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B. Plaintiffs’ Reliance On TJSL’s Published Employment Figures Was Reasonable

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1. Reasonable Reliance Is a Question of Fact for the Jury

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2. Plaintiffs Reasonably Relied on TJSL’s Published Employment Figures

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3. TJSL Fails to Present any Evidence That Plaintiffs’ Interpretation Was Unreasonable as a Matter of Law

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PLAINTIFFS’ CONSOLIDATED OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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C.

Plaintiffs Had No Obligation To “Investigate” TJSL’s Misrepresentations

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III. TJSL WRONGLY ARGUES THAT A FIDUCIARY RELATIONSHIP IS REQUIRED TO PROVE NEGLIGENCE

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A.

Negligence Requires A Duty of Care Based On Foreseability

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IV. TJSL IS NOT ENTITLED TO SUMMARY ADJUDICATION AS TO

 

THE CLRA CLAIMS

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A. The Court Previously Held That TJSL’s Conduct Is Proscribed By The CLRA

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B. TJSL’s CLRA Notice Argument Is Meritless

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1. Alaburda Provided Notice on Behalf of All Plaintiffs

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2. Summary Adjudication Is Inappropriate Even if Plaintiffs Failed to Provide Notice of the CLRA Claim

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V. TJSL FAILS TO ESTABLISH UNCLEAN HANDS AS A MATTER OF LAW

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VI. THERE IS A TRIABLE ISSUE OF FACT AS TO PLAINTIFFS’

 

FRAUD CLAIM

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A. TJSL Has Presented No Credible Evidence In Support Of Its Argument

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B. Fraud May Be Proven By Circumstantial Or Indirect Evidence

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Conclusion

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ii

PLAINTIFFS’ CONSOLIDATED OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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CASES

Aguilar,

25 Cal. 4th at 856

Alliance Mortg. Co. v. Rothwell,

10 Cal. 4th 1226 (1995)

TABLE OF AUTHORITIES

Ample Bright Dev., Ltd. v. Comis Int'l,

913 F. Supp. 2d 925 (C.D. Cal. 2012)

Apollo Capital Fund LLC,

158 Cal. App. 4th at 241

Arthur v. Davis,

126 Cal. App. 3d 684 (1981)

Atlantic Richfield Co.,

25 Cal. 4th 826 (2001)

Boyd v. Bevilacqua,

247 Cal. App. 2d 272 (1966)

City of Hope Nat’l Med. Ctr. v. Genentech, Inc.,

43 Cal. 4 th 375 (2008)

Consumer Advocates v. Echostar Satellite Corp.,

113 Cal. App. 4 th 1351 (2003)

Corra v. Energizer Holdings, Inc.,

962 F. Supp. 2d 1207 (E.D. Cal. 2013)

Donnell v. California Western School of Law,

200 Cal. App. 3d 715 (1988)

In re Easysaver Rewards Litig.,

737 F. Supp. 2d 1159 (S.D. Cal. 2010)

Engalla v. Permanente Med. Grp., Inc.,

15 Cal. 4th 951 (1997)

Garcia v. Superior Court,

50 Cal. 3d 728 (1990)

Gomez-Jimenez v. New York Law School,

36 Misc. 3d 230 (2012)

Grant-Burton v. Covenant Care, Inc.,

99 Cal. App. 4th 1361 (2002)

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34

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34, 35

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Gray v. Don Miller & Assocs., Inc.,

35 Cal. 3d 498 (1984) (same)

Guido Koopman, 1 Cal. App. 4th 837 (1991)

Hadland v. NN Investors Life Ins. Co.,

24 Cal. App. 4 th 1578 (1994)

Hall v. Time Inc.,

158 Cal. App. 4 th 847 (2008)

Hart v. Browne,

103 Cal. App. 3d 947 (1980)

Hebbard v. Colgrove,

28 Cal. App. 3d 1017 (1972)

Henderson v. Pac. Gas & Elec. Co.,

187 Cal. App. 4th 215 (2010)

Hill v. Roll Int’l Corp.,

195 Cal. App. 4 th 1295 (2011)

Hussey-Head v. World Sav. & Loan Ass’n,

111 Cal. App. 4th 773 (2003)

In re Tredinnick,

264 B.R. 573 (B.A.P. 9th Cir. 2001)

Kahn v. E. Side Union High Sch. Dist.,

31 Cal. 4th 990 (2003)

Kipp v. City & Cnty. of San Francisco,

145 Cal. App. 3d 875 (1983)

Kwikset Corp. v. Superior Court,

51 Cal. 4th 310 (2011)

Ladd v. County of San Mateo,

12 Cal 4 th 913 (1996)

Morgan v. AT & T Wireless Servs., Inc.,

177 Cal. App. 4th 1235 (2009)

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OCM Principal Opportunities Fund v. CIBC World Mkts. Corp.,

157 Cal. App. 4th 835 (2007)

Phillips v. DePaul Univ.,

Case No. 12 CH 3523, Ill. Cir. Ct., Mem. & Order (Sept. 11, 2012)

Saelzler v. Advanced Grp. 400,

25 Cal. 4th 763 (2001)

Seeger v. Odell,

18 Cal. 2d 409 (1941)

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Shopoff & Cavallo LLP v. Hyon,

167 Cal. App. 4 th 1489 (2008)

Small v. Fritz Cos., Inc.,

30 Cal. 4th 167 (2003)

Sprague v. Equifax, Inc.,

166 Cal. App. 3d 1012 (1985)

Teselle v. McLoughlin,

173 Cal. App. 4th 156 (2009)

Tillery v. Richland,

158 Cal. App. 3d 957 (1984)

Weirum v. RKO Gen., Inc.,

15 Cal. 3d 40 (1975)

Wilhelm v. Pray, Price, Williams & Russell,

186 Cal. App. 3d 1324 (1986)

Zumbrun v. Univ. of S. Cal.,

25 Cal. App. 3d 1 (1972)

STATUTES

Cal. Civ. Code § 1782

Cal. Civ. Proc. Code § 437c(c)

Cal. Civ. Proc. Code § 437c(o)

Cal. Civ. Proc. Code § 437c(p)(2)

Cal. Evid. Code § 1101(b)

Cal. Evid. Code § 1105

v

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PLAINTIFFS’ CONSOLIDATED OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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Preliminary Statement

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Mark Twain once said, “there are three kinds of lies: lies, damn lies and statistics.” This case

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concerns all three.

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With this lawsuit, Plaintiffs allege that Defendant Thomas Jefferson School of Law (“TJSL”)

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engages in a course of conduct designed to inflate its employment statistics. TJSL’s internal

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documents reflect a consistent set of practices that were designed to deceive prospective students,

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including Plaintiffs. TJSL’s improper practices include: (1) falsifying graduates’ employment status

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on the eve of the reporting deadline; (2) disregarding communications from graduates who said they

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were unemployed; (3) falsely claiming that graduates were “unknown” rather than unemployed; (4)

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improperly submitting employment data to NALP well after the reporting deadline; (5) concealing

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unfavorable “salary” and “employed at graduation” figures from U.S. News; (6) reporting graduates

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as “employed” if they had a job any time “since graduation,” even if they were unemployed at the

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time of the reporting deadline; (7) sending biased cover letters along with the employment surveys;

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(8) disciplining employees who fail to hit target employment numbers; and (9) training employees to

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falsify the numbers. In the end, TJSL simply manufactures the employment status of its graduates

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and reports those made up numbers to the public.

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TJSL has at all times operated in the dark. TJSL was not subject to any oversight or

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supervision when reporting its employment figures. No one checked or verified the information that

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TJSL submitted. No one looked at TJSL’s source data to determine whether it was reliable (or that it

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even existed). TJSL had the ability to manufacture and manipulate its employment figures, and it did

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just that. As Laura Weseley —the Assistant Dean of the Career Services Office (the “CSO”)—stated

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concerning the misreporting of numbers: “It is no big deal. Everyone does it.”

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TJSL also had an incentive to mislead the public. It would be an understatement to say there

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is a lot riding on these employment figures. The employment figures comprise 20 percent of the

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rankings published each year in the annual U.S. News “Best Graduate Schools” edition. The

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employment figures are also published on the ABA website and on TJSL’s website. These figures

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can determine whether a law school thrives or fails. The figures can also determine whether and

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which students decide to attend TJSL.

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PLAINTIFFS’ CONSOLIDATED OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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Beverly Bracker worked in TJSL’s CSO from 2001-2014. She was the Director of the CSO

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when she left, and TJSL designated her to testify as one of its Persons Most Qualified (“PMQ”).

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Bracker testified at deposition that she did not give TJSL’s rankings “any consideration.” When

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Bracker provided that testimony, she was obviously aware of the inherent conflict of interest she

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had—the person collecting and reporting TJSL’s employment figures clearly should not have a

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“goal” or target concerning the employment figures or a plan for TJSL to move up in the rankings.

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Bracker’s job was to ensure that TJSL reported accurate information to the public, not to ensure that

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TJSL moved up in the rankings.

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Bracker lied under oath when she said that she never gave the rankings “any consideration.”

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The evidence suggests that both Bracker and TJSL were obsessed with the rankings and the

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employment figures. In fact, Bracker’s own internal emails state that: “of course we all agree the

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school deserves to be ranked higher! And I firmly believe that will be the case in the not to [sic]

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distant future.” In that email, Bracker demonstrated a very detailed understanding of how US News

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calculates its rankings. Not only was Bracker well aware of the rankings, she actually had a plan for

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TJSL to move up in the rankings. That plan involved inflating TJSL’s employment figures and

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moving to a new $90 million building in downtown San Diego. As Bracker told a TJSL graduate:

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“we WILL move up in the ranks, and I think many of us feel that will happen with our move to the

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new building downtown.” She further stated in an email that “Raising the profile and reputation of

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the law school and increasing the career opportunities for all our students and graduates are

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constantly in the minds of us in Career Services.” The notion that Bracker and TJSL did not care

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about the U.S. News rankings is a total fabrication and it is belied by the evidence.

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Bracker was not alone. Numerous employees at TJSL were responsible for tracking TJSL’s

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employment data. Over the years, TJSL created internal memos—not released to the public—that

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analyzed its employment data and compared it from year to year. TJSL has been unable to explain

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why so much time was devoted to analyzing its employment figures. The fact of the matter is that

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TJSL recognized that its employment figures needed to be high (i.e., inflated) or it had no chance of

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moving up in the rankings (or paying for its new $90 million building).

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TJSL not only tracks its employment figures, it implemented policies that were designed to

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ensure that TJSL hit “goal” or target numbers. TJSL disciplined employees who failed to hit these

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targets. In one year, TJSL instructed Karen Grant, the Associate Director of the CSO, that, “given the

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strength of the market, our numbers should be higher than last year, which was 82.37 percent.” TJSL

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gave Grant poor reviews and ultimately terminated her for failing to meet TJSL’s “goals.”

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Frank Mead, the Assistant Dean of Career Services at TJSL, represented in one year that TJSL

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was “going to exceed NALP’s national average” when reporting its employment rates. Mead made

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that promise nine months before the reporting deadline (in fact, TJSL reported one of its best

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employment figures on record during that year).

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TJSL’s obsession with its employment figures resulted in a practice of book cooking. In an

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effort to meet its “goals,” TJSL developed a systematic plan deigned to game the system. Through

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discovery, Plaintiffs have learned that TJSL routinely violates its own internal policies and the NALP

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instructions in order to inflate its numbers. For instance, at all relevant times, TJSL had a policy of

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reporting the employer names for its graduates when it submits information to NALP. This policy is

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evidenced by TJSL’s internal memos, and several TJSL employees testified to this fact at deposition.

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TJSL’s internal policy is consistent with the NALP User Guide, which provides that law schools are

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required to report employer names. There is no legitimate reason a law school would be ignorant of

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an employer’s name if it decided to report a graduate as “employed” (i.e., if TJSL knew someone was

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working, it should have known where that person was working). TJSL, though, reported no employer

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names for up to 30 percent of graduates that it reported as “employed” for the Class of 2003. And

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TJSL did the same thing in other years. TJSL was entirely unable to explain the fact that it violated

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its own internal policies for roughly one-third of those it reported as employed.

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With their opposition papers, Plaintiffs have submitted the Declaration of Prof. Michael

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Belch. Prof. Belch has a Ph.D. in marketing and has designed and conducted hundreds of surveys.

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He surveyed TJSL graduates for the Classes of 2009 and 2010. Those surveys reveal that TJSL

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misreported the employment status of roughly 20 and 28 percent of its graduates, respectively.

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Significantly, there was not a single instance where TJSL reported a graduate as unemployed who

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actually had a job (i.e., virtually all of the misreporting benefitted TJSL). These surveys illustrate

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TJSL’s course of conduct in deliberately and flagrantly attempting to inflate its employment figures.

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TJSL’s course of conduct also involves a cover-up. TJSL claims to have shredded all of the

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graduate surveys that existed before 2009. The documents seem to have disappeared from this planet

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without anyone at TJSL being able to explain this phenomenon. Indeed, several TJSL employees

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testified they are aware of no policy or practice of shredding CSO documents. And TJSL has been

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unable to state when or how the documents actually disappeared.

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TJSL’s Motion for Summary Judgment.

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The arguments made by TJSL in its Motion for Summary Judgment ignore the facts and

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misstate the law. TJSL argues that a fiduciary duty is required in order to prove negligence. None of

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the cases cited by TJSL actually hold that (or anything close to it). That is simply not the law. A

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duty of care on a negligence claim is owed to all foreseeable plaintiffs—a fiduciary duty is simply not

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an element of a negligence claim. TJSL does not address the relevant test for foreseeability and its

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argument therefore fails.

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TJSL also argues that Plaintiffs cannot establish reliance on TJSL’s misrepresentations as a

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matter of law. It contends that the employment figures at issue were not “material” to Plaintiffs’

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decision to enroll. TJSL, though, already lost this argument when it moved for summary judgment in

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2012. This Court held precisely the opposite: that the declaration submitted by Alaburda was

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sufficient to raise a triable issue of fact as to materiality. Indeed, it is simply not credible to suggest

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that employment figures are immaterial to prospective students who intend to spend hundreds of

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thousands of dollars and three years of their lives attending law school.

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Indeed, TJSL has not even shifted the burden of production on the issue of reliance. It

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decided to file declarations that were previously submitted by Plaintiffs in this case. Those

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declarations clearly state that Plaintiffs would not have attended TJSL if they knew that TJSL had

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falsely inflated its employment figures. TJSL fails to address this evidence, much less rebut it. TJSL

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cannot simply ignore the evidence that it decided to file with the Court.

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TJSL’s motion for summary adjudication as to fraud is equally without merit. TJSL claims

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there is no triable issue of fact that its employment figures are misleading. TJSL, though, has

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submitted no evidence indicating that its figures are accurate. TJSL did not attach any evidence

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substantiating its published figures. It did not file declarations from the individuals who collected

and reported the employment data attesting to their accuracy. Moreover, TJSL ignores the allegations

in the Sixth Amended Complaint relating to its misconduct. 1 In TJSL’s moving papers, there is not a

single citation to any of the allegations of wrongdoing in the operative complaint. California law is

clear—a motion for summary judgment must be denied when the moving party fails to address

material allegations in the operative complaint. Again, TJSL cannot prevail on summary judgment

by simply ignoring the issues.

Regardless, TJSL’s entire argument on the fraud claim is based on a single piece of evidence.

TJSL cites to Plaintiffs’ written discovery responses in order to establish that Plaintiffs fail to identify

the specific individuals that TJSL misreported from the Classes of 2000-2003. There is no

requirement, though, that Plaintiffs identify the specific individuals in the first place. A jury can infer

from TJSL’s improper policies and practices that TJSL misreported its employment data. Moreover,

Plaintiffs have submitted direct evidence that the figures were inflated during the relevant period,

including the fact that TJSL violated its own internal policies by reporting that graduates were

“employed” without any employer data for up to one-third of the class. And Plaintiffs’ survey

evidence indicates that TJSL inflated its employment figures by more than 20 percent.

Finally, during the course of this lawsuit, TJSL has repeatedly cited to other cases against law

schools around the country. Those cases are easily distinguished. As the trial court noted in Phillips

v. DePaul Univ., Case No. 12 CH 3523, Ill. Cir. Ct., Mem. & Order at 4 (Sept. 11, 2012), “The

Complaint does not allege that any of the Employment Information was false.” In none of the law

school cases cited by TJSL did the plaintiffs allege that the employment information was inflated or

simply inaccurate.

misleading in that they failed to disclose the fact that the figures included non-law related and part

time employment. In contrast, Plaintiffs here expressly allege that the employment information

Instead, the plaintiffs in those cases argued that the employment figures were

1 The Fifth Amended Complaint (“5AC”) was the operative pleading at the time TJSL filed its Motion for Summary Judgment. Plaintiffs filed the Sixth Amended Complaint (“6AC”) after TJSL filed its Motion for Summary Judgment. The allegations in the 5AC and 6AC are virtually identical

as to all matters pertaining to this Motion.

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disseminated by TJSL is false, that TJSL has engaged in a course of conduct designed to inflate its

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employment figures.

Procedural History

The Original Complaint. Alaburda filed this lawsuit on May 26, 2011. (Register of Action

(“ROA”), No. 1.) On July 18, 2011, Defendant filed a demurrer and motion to strike. (ROA, Nos.

11-12.) On August 17, 2011, Defendant withdrew both motions. (ROA, Nos. 13, 17-18).

Demurrer to the Fourth Amended Complaint. Plaintiffs filed the Fourth Amended

Complaint (“4AC”) on August 11, 2012. The 4AC was filed on behalf of Alaburda, Ballard, Loomis

and Nguyen. (4AC, ¶¶ 75-86.) TJSL demurred to the 4AC. (ROA, No. 84.) This Court heard

Defendant’s Demurrer to the 4AC on November 16, 2012. (ROA, Nos. 109-110.) This Court

overruled the Demurrer in all respects. (ROA, Nos. 111-116.)

The 2012 Motion for Summary Judgment. This Court heard Defendant’s Motion for

Summary Judgment on November 16, 2012 (the “First MSJ”). There, Defendant argued that: (1)

Alaburda’s claims are barred by the statute of limitations; (2) Alaburda was not injured by

Defendant’s misconduct; (3) Alaburda failed to mitigate her damages; and (4) Alaburda is not a

“consumer” under the Consumer Legal Remedies Act (“CLRA”). The Court denied summary

judgment. (ROA Nos. 113-116.) In its written order dated November 29, the Court rejected all of

Defendant’s arguments.

(November 29, 2012 Order at pp. 1-9.)

Significantly, the Court rejected Defendant’s argument on the question of injury and

causation. The Court held: “Based upon the reasoning in Kwikset, a plaintiff is entitled to relief when

he or she, ‘would not have bought the product but for the misrepresentation. That assertion is

sufficient to allege causation, the purchase would not have been made but for the misrepresentation.

It is also sufficient to allege economic injury.’” (Id. at p. 9.) The Court further held that:

Simply stated, labels matter. Labels on locksets and labels on higher education. Consumers’ right to make informed, educated decisions when determining an

education investment depends upon transparency and accurate information. To the extent misrepresentations were made, consumers are injured by enrolling in an

institution that is not what it purports to be. (Id.)

The Court noted that Plaintiff bargained for a legal education and that “representations

regarding that legal education are material to the decision of whether to enroll.” (Id.)

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Class Certification. This Court denied Plaintiff’s Motion for Class Certification on October

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21, 2013. (ROA No. 169.) The Court held that there were individualized issues of restitution and

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that class treatment was therefore inappropriate. The Court, though, did find that Plaintiffs

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established a common practice: “In our case, plaintiffs have alleged a uniform practice on the part of

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TJSL.” (Certification Order at p. 10:24.) The Court noted that Plaintiffs “have the burden on

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certification to show that defendant conducts itself in a common way or that the policies have a

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widespread illegal effect.” (Id. at 10:25-26.) This Court relied upon the evidence presented by

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Plaintiffs—including deposition transcripts, TJSL’s written discovery responses and the Declaration

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of Karen Grant—in holding that “plaintiffs have established for purposes of certification a common

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practice by TJSL.” (Id. at 10:25-11:26.)

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The Sixth Amended Complaint.

The 6AC was filed by Alaburda, Loomis, Ballard and

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Nguyen, all of whom graduated from TJSL. (ROA, No. 473.) There, Plaintiffs allege they were

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misled by TJSL’s false and inaccurate employment statistics. The 6AC alleges that Defendant has a

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policy of, among others: (1) routinely counting unemployed graduates as “employed”; (2) shredding

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critical documents relating to Defendant’s employment data (id); (3) counting unemployed graduates

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as “unknown” in order to improperly skew the data (id.); (4) reporting unpaid volunteers and interns

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as “employed,” in violation of the NALP and ABA guidelines; and (5) failing to record the source of

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the employment information it receives and using generally unreliable sources (6AC, ¶¶ 3, 68, 69).

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Plaintiffs collectively owe more than $650,000 in connection with their law school education

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at TJSL. (6AC, ¶¶ 16, 26, 34, 43.) Plaintiffs would not have enrolled at TJSL if they knew that

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Defendant inflated its employment data. (Id., ¶¶ 18, 28, 36, 44.) The 6AC seeks damages and

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restitution in the amount of all tuition and fees paid by Plaintiffs. (Id., ¶ 121.) Plaintiffs also seek

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injunctive relief, disgorgement, punitive damages, and attorneys’ fees. (Id. at 24:12-25:11.) The

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6AC contains claims for violations of Business & Professions Code sections 17200 and 17500,

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violations of the CLRA, intentional and negligent misrepresentation and negligence.

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The Current Motion for Summary Judgment. TJSL filed four separate Motions for

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Summary Judgment against all Plaintiffs. The Motions largely overlap. TJSL makes identical

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arguments in all four motions that Plaintiffs’ fraud claims fail as a matter of law because there is no

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PLAINTIFFS’ CONSOLIDATED OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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evidence of misreporting. (Alaburda Motion at 12:12-13:3; Ballard Motion at 12:11-13:2; Nguyen

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Motion at 14:1-14:20; Loomis Motion at 12:20-13:10.)

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TJSL fails to present any evidence substantiating its argument that its figures are accurate.

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(Id.) Nor does TJSL cite any law in connection with this argument. (Id.)

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TJSL also argues that Plaintiffs did not reasonably rely on the employment figures in US

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News.

(Alaburda Motion at 6:10-11:5; Ballard Motion at 5:21-10:14; Nguyen Motion at 5:19-12:3;

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Loomis Motion at 6:8-10:23.) TJSL claims that Alaburda, Nguyen and Ballard could not have relied

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on the employment figures because they were only accepted at one school (TJSL). (Alaburda Motion

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at 5:1-6:9; Ballard Motion at 4:15-5:2; Nguyen Motion at 5:21-7:3.) And TJSL argues as to all

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Plaintiffs that they failed to conduct an adequate investigation of the accuracy of the employment

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figures.

(Alaburda Motion at 6:10-11:5; Ballard Motion at 9:25-10:14; Nguyen Motion at 11:1-12:3;

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Loomis Motion at 10:5-23.)

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TJSL argues as to all Plaintiffs that their negligence claims fail because there is no evidence

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they were owed a fiduciary duty. (Alaburda Motion at 11:6-12:2; Ballard Motion at 10:15-11:11;

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Nguyen Motion at 12:1-24; Loomis Motion at 10:24-11:20.)

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And TJSL contends that the CLRA claims filed by Nguyen, Loomis and Ballard must be

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dismissed because they allegedly failed to provide statutory notice. (Ballard Motion at 11:12:12-1;

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Nguyen Motion at 13:2-8; Loomis Motion at 11:22-12:10.) In fact, there is no dispute that Alaburda

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provided notice of the only CLRA claim at issue in this lawsuit before she filed.

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Statement of Facts

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I.

TJSL’S EMPLOYMENT FIGURES

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Each year, TJSL collects employment data for its students and graduates. TJSL reports this

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employment data to publications like U.S. News, as well as the ABA and NALP. Defendant’s

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published employment statistics in NALP and U.S. News emanate from the same source data.

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(Plaintiffs’ Consolidated Additional Material Facts in Support of Their Opposition to TJSL’s Motion

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for Summary Judgment (“AMF”) 1.)

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The process starts off with TJSL collecting and reporting employment and salary data on a

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graduate-by-graduate basis to information clearinghouse NALP. (AMF 2.) Based on this data that it

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receives from TJSL, NALP prepares a summary that contains aggregate employment and salary

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figures for the recent graduating class (the “NALP Summaries”). (AMF 3.)

TJSL then uses the numbers and percentage from the annual NALP summaries to complete a

questionnaire from U.S. News. (AMF 4.)

II. TJSL’S SECRET GOALS CONCERNING THE EMPLOYMENT DATA

TJSL’s Internal Documents Reflect Secret Targets and Goals. In 2007, the head of the

CSO—Assistant Dean Laura Weseley—told the employee responsible for collecting and reporting

employment data—Karen Grant (“Grant”)—that TJSL expected to see an employment statistic that

exceeded 82 percent for that year. (AMF 5.) When Grant asked for a one-day vacation, Weseley

reminded Grant about the target: “given the strength of the market, our numbers should be higher

than last year, which was 82.37 percent.” (AMF 6.) Weseley then states that Grant could only take a

vacation day “so long as it won’t interfere with the numbers.” (AMF 7.) TJSL had no explanation

for why the top official in the CSO was instructing Grant to hit a target number. (AMF 8.)

TJSL prepared and circulated an internal memo entitled “NALP Employment Data.” (AMF

9.) The memo compares TJSL’s employment figures for 2003-2006, including TJSL’s “total

employed,” “total unemployed” and “job status unknown.” (AMF 10.) The chart reflects the

percentage “increase/decrease” for each category of employment data from 2003 to 2006. (AMF 11.)

There is no other information in the chart. (AMF 12.) TJSL could not explain why it decided to

compare its employment figures year-over-year. (AMF 13.)

TJSL issued an internal document entitled “Career Development Proposal for Recent Grads.”

(AMF 14.) The Proposal provides that TJSL’s: “goal is to have as many [graduates] as possible

employed by the time we do ERSS stats in January, 2007.” (AMF 15.) TJSL could not explain why

it had a “goal” that was directly tied to the ERSS reporting deadline. (AMF 16.)

TJSL drafted internal documents summarizing TJSL’s employment figures year-over-year

from 1996-2008. (Jan. 26, 2010 Email from Kransberger (AMF 17.) The internal documents

contained headings expressly referencing “Career Services.” (AMF 18.) Bracker could not explain

why these documents were created, even though they represent an analysis of the CSO and she was

the Director of the CSO. (AMF 19.)

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Frank Mead, the Assistant Dean of Career Services, closely tracked TJSL’s employment

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figures. He issued a prediction nine months before the reporting deadline to Dean Kransberger that

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TJSL’s employment figures were “going to exceed NALP’s national average for 2010.” (AMF 20.)

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In fact, TJSL’s employment figure for the Class of 2010 was 84.36 percent (Mead’s prediction was

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apparently a self-fulfilling prophesy—TJSL reported one of the highest employment figures ever for

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the Class of 2010). (AMF 21.)

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Mead sent emails to the CSO employees who were responsible for collecting employment

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data, and he instructed them to “make the numbers ladies.” (AMF 22.) Mead routinely asked for

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updates regarding the employment figures during the collection process. (AMF 23.) Mead stated that

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TJSL had a “goal” for “TJSL to exceed by as much as possible the national percentage of those

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employed 9 months out.” (AMF 24.) He announced that “goal” to the very same TJSL employees

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who were responsible for collecting and reporting the data. (AMF 25.)

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The purpose of any survey should be to gather accurate data, not to create data. (AMF 26.)

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Setting goals and targets for employees conducting a survey is likely to influence the results and

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produce employment figures that are flawed and unreliable. (AMF 27.)

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TJSL Disciplined Employees for Failing to Meet the Goals and Targets. TJSL did a year-

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end employee review of Grant on December 4, 2006. (AMF 28.) TJSL’s review of Grant at that time

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was glowing. In six out of seven categories, Grant received either “good” or “excellent” marks.

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(AMF 29.) The notes indicated that Grant “has demonstrated a tremendous level of enthusiasm.”

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(AMF 30.)

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After TJSL performed its initial performance review of Grant, she collected and reported the

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employment figures for the Class of 2006. (AMF 31.) Grant complained about TJSL’s improper

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practices before reporting the employment data for the Class of 2006. (AMF 32.) She was told by

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Laura Weseley, the Assistant Dean of the CSO, that “It is no big deal. Everyone does it.” (AMF 33.)

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TJSL then changed its tune. On September 4, 2007, TJSL did another employee performance

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review of Grant. At that time, TJSL indicated that Grant “needs improvement” in four out of the five

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categories reviewed.

(AMF 34.) Grant’s review indicates that she “had a hard time reaching a large

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number of [graduates].” (AMF 35.) In fact, in 2006 when Grant was responsible for collecting the

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employment data, TJSL had the fewest number of “unknowns” in the history of the school (i.e.,

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TJSL’s criticism of Grant was entirely unfounded). (AMF 36.)

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Grant was terminated by TJSL in September 2007. (AMF 37.)

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TJSL Lies About Having Goals and Targets. At deposition, TJSL’s PMQ Bracker denied

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that there was a desire to see TJSL move up in the U.S. News rankings:

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Q:

Did you believe that Thomas Jefferson should have been ranked higher?

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A· ·

I never gave that any thought.

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Q· ·

Did you believe that Thomas Jefferson would go up in the rankings?

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A· ·

That just really wasn't in my way of looking at it. I don't really give it

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consideration.

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(AMF 38.) She also testified that the desire to move up in the rankings did not influence any of her

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decisions: “that that was not any motivation that I had.” (AMF 39.)

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But Bracker stated exactly the opposite in written correspondence at the time. Indeed,

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Bracker, the head of the office at TJSL charged with collecting and reporting the employment data,

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stated that “of course we all agree the school deserves to be ranked higher! And I firmly believe that

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will be the case in the not to [sic] distant future.” (AMF 40.) Bracker then explains in great detail the

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process for TJSL to “move up in the ranks” in the U.S. News rankings. (AMF 41.) She knew in

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2009—when she was the Director of Career Services at TJSL—that the rankings take into

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consideration the “reputation of the school, undergraduate GPA, LSAT scores, acceptance rate of

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applicants, bar pass rate, employment placement rate, faculty-student ratio and size of the library.”

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(AMF 42.) Bracker then describes TJSL’s efforts to move up in the ranks. She notes that TJSL’s

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employment placement rate increased five percent that year; that TJSL’s library will increase in size

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when it moves to the new $90 million building; and that “the reputation of the school is ever-

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improving.” (AMF 43.) She then promises that: “we WILL move up in the ranks, and I think many

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of us feel that will happen with our move to the new building downtown.” (AMF 43.) Bracker was

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unable to offer any explanation as to the reason she made the foregoing promise. (AMF 44.)

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Bracker testified that she was unconcerned with TJSL’s reputation and ranking during her

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employment at TJSL:

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Q:

Were you focused, as the director of career services, on the reputation of Thomas

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Jefferson?

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A:· ·

No.· I would say I was focused on trying to help the students find jobs.

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Q:· ·

So, no, you were not?

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· · · · · MR. SULLIVAN: Objection; asked and answered, misstates witness' testimony.

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THE DEPONENT: That wasn't a particular focus.

 

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(AMF 45.)

 

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The truth of the matter is set forth in black and white. As Bracker stated in an email: “Raising

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the profile and reputation of the law school and increasing the career opportunities for all our students

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and graduates are constantly in the minds of us in Career Services.”

(AMF 46.)

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III.

TJSL HAD A POLICY AND PRACTICE OF INFLATING ITS EMPLOYMENT

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FIGURES

 

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TJSL Trains Its Employees to Misreport the Employment Figures. TJSL has a practice of

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instructing employees in its CSO to report students as “employed” even though they were known to

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be “unemployed.” (AMF 47.) Specifically, TJSL instructed its employees to report graduates as

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“employed” if they had a job at any time since graduation (even though TJSL knew the graduate was

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currently unemployed). (AMF 48.) TJSL admits that the practice of reporting students as

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“employed” if they were known to be unemployed is improper. (AMF 49.)

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TJSL also switches graduates from “unemployed” to “employed,” before the reporting

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deadline, “but not vice-versa.” (AMF 50.) In other words, if TJSL learned that an unemployed

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graduate found a job, that graduate would be reported as “employed.” (AMF 51.) If TJSL learned

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that an employed graduate lost a job, that graduate would still be reported as “employed.” (AMF 52.)

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The foregoing policies and practices are reflected in Grant’s handwritten notes that she took during a

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TJSL staff meeting on October 16, 2006. (AMF 53.)

 

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TJSL Skews the Results of Post-Graduation Employment Surveys. TJSL sent surveys to

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its graduates in connection with the employed at nine months figure. (AMF 54.) In many years TJSL

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sent a cover letter along with these surveys. (AMF 55.) For the Class of 2003, TJSL sent a cover

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letter stating: “These statistics are widely published, and go a long way to improving (or diminishing)

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a law school’s reputation and ranking.” (AMF 56.) For the Class of 2005, TJSL sent its survey with

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the following message: “A full, accurate response from our recent graduates can only help the school

become more prestigious, thus making your degree more marketable.” (AMF 57.) TJSL could not

explain its decision to remind graduates that their responses will affect the “marketability” of their

degree. (AMF 58.) TJSL’s decision to include cover letter to the post-graduate employment

questionnaire compromised the integrity of the survey and rendered the results unreliable. (AMF 59.)

Each February, TJSL sent a questionnaire to its graduates in relation to the annual “survey.”

The questionnaire asks whether the graduates had been employed any time “since graduation.” (AMF

60.) The questionnaire did not distinguish at all between current and former employment. (AMF

61.). The same is true for a call script for telephonic surveys. (AMF 62.). In other words, TJSL

would report a graduate as “employed,” even though that graduate was unemployed so long as the

graduate was working any time “since graduation.” Indeed, Nikki Love—who was responsible for

collecting and reporting the employment data—admits that the “employed” figure includes those

“who have recently been employed.” (AMF 63.) This practice renders TJSL’s entire survey results

unreliable because it results in unemployed graduates reporting themselves as employed. (AMF 64.)

TJSL also circulated an internal email discussing whether to participate in Princeton Review’s

“Best Law Schools Student Survey.” (AMF 65.) TJSL decided to game the system by sending the

survey only “to students who will paint the most positive picture possible of TJSL.” (AMF 66.)

Bracker denied having any knowledge of the Princeton Review survey, even though she was copied

on numerous emails relating to it. (AMF 67.)

TJSL Hires Its Own Graduates. 2 TJSL claims that “it was not a common practice” that

TJSL hired its own graduates. (AMF 68.) In fact, TJSL prepared an internal document reflecting

employer names for the Classes of 2007-2010. (AMF 69.) That document indicates that TJSL hired

its own graduates every year between 2007 and 2010. 3 TJSL’s deposition testimony on this issue is

2 The New York Times’ January 8, 2011 article “Is Law School A Losing Game?” by David Segal. states that “[a] number of law schools hire their own graduates, some in hourly temp jobs that, as it turns out, coincide with the [NALP reporting deadline]” thereby improving the law school’s

employment figures. See http://www.nytimes.com/2011/01/09/business/09law.html.

3 There has been a great deal of controversy in recent years concerning law schools hiring their own graduates in order to report them as employed to ERSS. This practice is widely regarded as improper

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demonstrably false.

TJSL Inflates the Number of “Unknown” Graduates to Mask Unemployment. For

purposes of reporting employment data to U.S. News (as well as NALP and the ABA), law schools

are better off reporting a graduate as “unknown” as opposed to “unemployed.” During the relevant

period, U.S. News treated 25 percent of all “unknown” graduates as being employed. (AMF 70.)

NALP, the ABA, and TJSL’s own website simply excluded all “unknown” graduates when

calculating the percent of graduates known to be employed. (AMF 71.)

The percentage of TJSL’s graduates that were “unknown” was a large percentage of the class.

Class of 2000 Graduates—22.4 Percent. There were 143 graduates in the Class of

2000. TJSL reported 32 Class of 2000 graduates—or 22.4 percent—as “unknown.”

(AMF 72.)

Class of 2001 Graduates—22.7 Percent. There were 154 graduates in the Class of

2001. TJSL reported 35 Class of 2001 graduates—or 22.7 percent—as “unknown.”

(AMF 73.)

Class of 2002 Graduates—21.3 Percent. There were 141 graduates in the Class of

2002. TJSL reported 30 Class of 2002—or 21.3 percent— as “unknown.” (AMF 74.)

Class of 2003 Graduates—24.2 Percent. There were 149 graduates in the Class of

2003. TJSL reported 36 Class of 2003—or 24.2 percent—of graduates as “unknown.”

(AMF 75.)

During this period, the national average of unknown graduates for law schools was approximately 8-

10 percent. (i.e., TJSL’s unknown rate was more than double the national average). (AMF 76.)

TJSL did not even attempt to “find” many of the graduates that it later reported as unknown.

For the Class of 2009, TJSL circulated an email requesting information on the eve of the reporting

deadline for its “unknown” graduates. (AMF 77.) Significantly, that email contained only 11 names.

(AMF 77.) TJSL, though, ultimately reported 31 graduates as “unknown.” (i.e., TJSL was apparently

not even looking for 20 graduates that it ultimately reported as “unknown.”). (AMF 78.)

Plaintiffs are also aware that TJSL classified a graduate as unknown even though they were

unemployed. TJSL reported Plaintiff Daniela Loomis as “unknown.” (AMF 79.) Loomis, though,

told TJSL on two different occasions before the reporting deadline that she was unemployed. (AMF

if the law school fails to disclose it. See http://www.wsj.com/articles/law-schools-face-new-rules-on-

reporting-graduates-success-1426629126.

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PLAINTIFFS’ CONSOLIDATED OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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80.) Moreover, TJSL’s own internal notes from February 10, 2011, reflect the fact that Loomis was

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“seeking employment” (i.e., unemployed). (AMF 81.) TJSL was unable to substantiate its decision

to report Loomis as “unknown.” (AMF 82.)

TJSL Conceals Employment and Salary Data That Could Hurt Its Rankings.

Until Plaintiffs filed this lawsuit, TJSL did not report its “employed at graduation” figures to

U.S. News. (AMF 83.) There is no dispute that TJSL had this information available at its fingertips

during many of the years at issue. (AMF 84.) When TJSL did finally disclose the “employed at

graduation” figure for the first time for the Class of 2010, the figure was remarkably low (28.10

percent). (AMF 85.) The following year, TJSL reported an employed at graduation figure of 9.7

percent. (AMF 86.) From 2000-2011, TJSL successfully presented a lopsided and misleading picture

of its employment figures by concealing its “employed at graduation” figures from the public. TJSL

offered no explanation for its decision to conceal this information. (AMF 87.)

TJSL also concealed salary figures from U.S. News—it did not report salary data to for the

Classes of 2000-2003, even though it was in possession of that information.

(AMF 88.)

IV. THE EVIDENCE OF MISREPORTING

TJSL’s False and Inaccurate Reporting.

TJSL Has A Practice of Knowingly Misreporting Unemployed Graduates As “Employed”

Ryan Kohut. Kohut sent an email dated February 21, 2006, to Rauber indicating he was unemployed but that that he “did a little bit of contract legal work before

Christmas.” (AMF 89.) TJSL reported Kohut as employed, even though TJSL knew he was currently unemployed and had not worked in months. (AMF 90.)

Kyle Ishmael. He returned a survey on February 9, 2011 indicating that he was

unemployed and “seeking work.” (AMF 91.) TJSL reported him as “employed.” (AMF 92.)

Erin King. She submitted a survey to TJSL on February 5, 2011 indicating that she

was “unemployed” and “seeking work.” (AMF 93.) TJSL reported her as employed. (AMF 94.)

Mindy Facer. TJSL knew she was unemployed and seeking work as of February

27, 2007 (well after the employment cutoff). (AMF 95.) TJSL reported her as “employed.” (AMF 96.)

Benedict Hoffman. TJSL knew that he was unemployed and seeking work as of

February 27, 2007. (AMF 97.) TJSL reported him as “employed.” (AMF 98.)

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Jaclyn Swe. TJSL knew she was unemployed and seeking work as of February 27,

2007 (well after the employment cutoff). (AMF 99.) TJSL reported her as

“employed.” (AMF 100.)

Rene Larson. TJSL reported Rene Larson as “employed,” even though TJSL knew

that she was unemployed and studying for the Bar as of February 27, 2007 (well after the employment cutoff). (AMF 101.)

Kimberly McCabe. TJSL reported Kimberly McCabe employed, even though

TJSL knew that she was unemployed and studying for the Bar as of February 27,

2007 (well after the employment cutoff). (AMF 102.)

Orchid Barzin. TJSL knew that Orchid Barzin was unemployed on the February 15,

2011 reporting cutoff and that she did not find employment until weeks after the

cutoff had passed (AMF 103.) TJSL reported her as “employed.” (TJSL’s ERSS

Printout for Class of 2010 at DTJSL 009319 (PAE, Ex. 56).)

TJSL Has A Practice of Knowingly Misreporting Unemployed Graduates as “Not Seeking Work”

Veronica Ramallo. TJSL reported Veronica Ramallo as unemployed “not seeking

work,” even though it knew that she was studying for the Bar and seeking work (i.e., unemployed) right before the cutoff. (AMF 105.)

Nine Different Graduates from the Class of 2007. On February 28, 2008, TJSL

reported Jennifer Barta, Gary Tadashi Dote, Henry Garon, Comran Hojabrpour, Nataline Muenster, Theresa Segbersm, Andrew Vogel. Wendy Ward, and Awbrey

Watts as unemployed, studying for the Bar full-time. (AMF 106.) TJSL then went back and changed its reporting of these graduates to unemployed “not seeking work”

on May 6, 2008 (more than two months after the reporting cutoff). 4 (AMF 107.)

TJSL Has A Practice of Knowingly Misreporting Unemployed Graduates as Students

Eric Johnson. Five days before the reporting cutoff, TJSL was aware that Eric Johnson had just (unsuccessfully) finished running for political office and that he

was unemployed. (AMF 109.) In spite of that, TJSL reported Eric Johnson as “enrolled in a full-time degree program” even though it knew that to be false. (AMF

110.)

TJSL Has A Practice of Knowingly Misreporting Unpaid Graduates as “Employed

Eight Class of 2005 Graduates. TJSL knew that Darren Bean, Adriana Cespedes,

Jacqueline Del Chiaro, James Hassan, David Kawk, Andrew Moher, William Sharp,

and Veda Tavakkoly were working in unpaid positions. (AMF 111.) It reported

them as “employed” (i.e., unemployed).

5

(AMF 112.)

4 Graduates reported as unemployed “not seeking work” are excluded from U.S. News’s calculation of a law school’s employment rate. (AMF 108.) Graduates reported as studying for the Bar are considered to be unemployed in U.S. News’s employment figure. (Id.) These inaccurate reporting changes had the net effect of inflating TJSL’s employment figure reported in U.S. News. 5 Graduates working in unpaid positions must be reported as “unemployed seeking work” pursuant to

the NALP Guidelines. (AMF 113.)

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Plaintiffs’ Survey Evidence Demonstrates Further Misreporting. Plaintiffs’ expert, Prof.

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Belch, performed a survey that he sent to all graduates from the Classes of 2009 and 2010. (AMF

114.) That survey revealed that TJSL misreported a significant number of those graduates, including

20 percent for 2009 and 28 percent for 2010. (AMF 115.) Significantly, there was not once instance

where TJSL incorrectly misreported an employed graduate to TJSL as unemployed (i.e., the only

misreported graduates were those that TJSL had counted as employed or unknown). (AMF 116.)

This represents empirical data evidencing TJSL’s fraudulent practices. 6

TJSL Conceals the Number of Graduates Working in Unskilled Jobs. Recent TJSL

graduate Mary Cheney reported that she was earning $9 per hour at Banana Republic. (AMF 117.)

TJSL reported her as being employed in a professional job. (Id.) Bracker instructed the CSO to

report another recent graduate, Erin King, as being employed because she believed King was working

at Victoria’s Secret. (AMF 118.) TJSL reported that King’s employment job type was “unknown,”

even though TJSL knew that King was working at Victoria’s Secret. (AMF 119.)

TJSL has practice of misreporting graduates as working in “other-professional” jobs even

when TJSL has no information on the type of job or employer name. (AMF 120.)

TJSL Switches Graduates’ Employment Status on the Eve of the Reporting Deadline. In

2008, TJSL circulated an email the day before the employment status cutoff. (AMF 121.) TJSL did

not know the employment status of 24 graduates as of February 14, 2008. (Id.) TJSL admits that it

had been attempting to collect employment data for these graduates for approximately four months at

that point, to no avail. (AMF 122.) TJSL ultimately reported 21 out of the 24 graduates as

“employed” or “unemployed not seeking” (i.e., TJSL switched the employment status of 87.5 percent

of this group in its favor at the last possible minute). (AMF 123.) At deposition, TJSL was unable to

state what it relied on when it reported these graduates as “employed.” (AMF 124.) TJSL ultimately

reported zero graduates as “unknown” for the Class of 2007. (AMF 125.)

Similarly, for the Class of 2008, TJSL circulated an email on the eve of the reporting deadline.

(AMF 126.) That email reflected 22 graduates whose employment status was “unknown” on

6 Prof. Belch also performed a survey of the Class of 2003.

number of responses to draw a meaningful conclusion.

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He did not receive a sufficient

PLAINTIFFS’ CONSOLIDATED OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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February 16, 2009. (Id.) TJSL ultimately reported 13 of those graduates as “employed.” (AMF

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127.) And TJSL provided absolutely no employer data for six of these graduates (i.e., no employer

name, salary, city, job type—TJSL essentially submitted a blank form that said “employed”). (AMF

128.) TJSL was unable to explain why it reported these 13 individuals as employed or what it relied

on in doing so. (AMF 129.) TJSL also reported three graduates as “unknown” who were not

identified on the February 16 list (indicating that TJSL apparently decided to report certain graduates

as “unknown” without looking for them). (AMF 130.)

TJSL Reports Graduates as “Employed” But Fails to List Their Employers.

TJSL’s

internal policies require the CSO to identify a graduate’s employer name when reporting the data to

ERSS. (AMF 185.) The NALP User’s Guide requires TJSL to enter employer data for its graduates.

(Id.) TJSL admits that its policy was, during all years, to enter the employer name into the software

when reporting graduates’ employment status. (AMF 186.)

In fact, TJSL produced ERSS Printouts for 2003, 2009 and 2010. 7 In 2003, TJSL reported 46

graduates with no employer names (i.e., approximately 30 percent of reported graduates had no

employer names) (AMF 132); in 2009, TJSL reported 11 percent of its graduates with no employer

names (AMF 133); and in 2010, TJSL reported 41 graduates as “employed” with no employer name

(i.e., 18.5 percent). (AMF 134.)

At deposition, TJSL failed to explain the reason why even a single graduate was reported as

“employed” with no employer data. (AMF 135.) Bracker testified that it may have been because

TJSL was under a “time crunch” in each of these years, but she did not recall that being the case.

(AMF 136.) Bracker also claimed it may have been a “glitch in the system,” even though she did not

recall that being the case. (AMF 137.) No one at TJSL has been able to explain these violations.

The ERSS Printouts are consistent with a 2011 TJSL internal memorandum (the “2011

Memo”). (AMF 138.) The 2011 Memo reflects the fact that TJSL tracked employer names for its

graduates. The 2011 Memo does not mention a “time crunch” or “glitch in the system.” Instead, the

2011 Memo reflects only 81 employer names for the Class of 2007, even though TJSL reported 169

7 TJSL claims to have shredded/deleted all ERSS Printouts, except for the Classes of 2003, 2009 and

2010 prior to the filing of this lawsuit. (AMF 131.)

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graduates as employed (i.e., TJSL had no employer data for 52 percent of its graduates). (AMF 139.)

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The Classes of 2008-2010 also contain gaps ranging from 21 percent to 27 percent. (AMF 140.)

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TJSL was unable to explain these gaps. (AMF 141.)

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TJSL Shredded the Source Data Relating to Graduate Employment. TJSL did not

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provide its source data to NALP during the relevant period (i.e., TJSL did submit the surveys and

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spreadsheets it relied upon to NALP). (AMF 142.) It claims that it had a policy of shredding the

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surveys after the reporting deadline had passed each year. (AMF 143.)

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Notwithstanding TJSL’s alleged policy of shredding its source documents, TJSL’s PMQ did

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not know how the ERSS submissions were destroyed. (AMF 144.) Bracker denies knowing what

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happened to the graduate surveys for the Classes of 2003-2012, even though she worked in the CSO

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during all of those years and was the Director of Career Services from 2007-2013. (AMF 145.)

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According to Bracker, TJSL had no policy with respect to the retention of these surveys. (AMF 146.)

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In contrast, Grant testified that she is unaware of TJSL shredding any of its employment

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documents and that she did not do so. (AMF 147.) And Lisa Kellogg testified that she never

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shredded the employment surveys or the student files when she was in charge of collecting and

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reporting the employment data. (AMF 148.) According to Kellogg, all of the graduates surveys and

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student files were still in the Alumni Office when she retired in 2003. (AMF 149.) And Bracker

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admits she does not remember the spreadsheets relied upon by TJSL being destroyed. (AMF 150.)

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TJSL has no explanation as to how and when these documents disappeared.

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The fact that TJSL claims to have shredded all graduate surveys prior to 2009 is even more

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puzzling in light of the fact that the CSO maintains student files going back to 2003. (AMF 151.)

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TJSL claims that it deliberately kept the employment surveys separate from the student files. (Id.)

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TJSL’s PMQ could not explain why the student surveys were never placed in the student files (even

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though that information would obviously assist TJSL in counseling its graduates). (Id.)

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TJSL Games The System By Submitting Employment Data Well After The Deadline. The deadline to submit employment data to NALP is in February or early March each year. (AMF

152.) In 2005, TJSL submitted employer data to NALP on April 13 (more than one month after the

reporting deadline). (AMF 153.). That email reflects the fact that TJSL “had two late

respondents.” (Id.) TJSL admits that it decided to submit these “late respondents” to NALP more

than one month after the deadline. (AMF 154.) The following year, TJSL again submitted employer

data after the reporting deadline. (AMF 155.) When asked, Bracker testified regarding the NALP

deadline that “I'm not sure exactly that I would say mandatory.” (AMF 156.)

TJSL’s Policies and Practice Have Remained Constant Over the Years. The collection

and reporting of employment data was initially performed by TJSL’s Alumni Office. In 2003, TJSL

decided to transfer the collection and reporting of employment data from the Alumni Office to the

CSO. The transfer was insignificant. In fact, the Alumni Office relied upon information provided by

the CSO anyway. (AMF 157.) The CSO was in possession of this information because the CSO

provided employment counseling to graduates and maintained notes regarding their employment

status. (AMF 158.) In fact, the CSO had more information regarding the students’ and graduates’

employment information than the Alumni Office. (AMF 159.) The CSO employees ultimately asked

the Dean to transfer the collection and reporting to the CSO. (Id.)

Other than the fact that some sources of information have changed—like the advent of

Facebook and LinkedInTJSL admits that its employment collection and reporting practices have

remained constant during the relevant period.

conduct relating to the collection and reporting of employment data when it filed its 2012 Motion for

Summary Judgment. (AMF 161.) (describing standardized process that TJSL utilizes “each year”).

And TJSL’s written discovery responses evidence a consistent pattern of collecting and reporting the

employment data. (AMF 162.) Significantly, TJSL’s PMQ could not identify any differences

regarding the manner in which TJSL analyzed information regarding graduates’ employment status

each year. (AMF 163.)

(AMF 160.) TJSL described a consistent course of

Dean Kransberger admitted at deposition that TJSL has no written policy concerning the

sources of information that are acceptable when collecting and reporting employment data.

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Q:

Okay. Does Thomas Jefferson have a policy concerning the acceptable sources of information to confirm somebody’s employment? Let me ask it a different way. Does

Thomas Jefferson have a written policy concerning the acceptable source of information to confirm somebody’s employment status?

A:

No.

(AMF 164.)

V. TJSL KNEW THAT ITS EMPLOYMENT DATA WAS MISLEADING AND

INACCURATE

TJSL Knows That Graduates Do Not Find Employment. The CSO has no effective

solution to the issue of rampant unemployment among TJSL graduates. In response to the significant

number of unemployed graduates, TJSL’s Professor Herrera advised the CSO to tell unemployed

graduates: “you will have to volunteer until you can get a job.” (AMF 165.) She further states that “I

know that doesn’t pay the bills but neither does sending 50 resumes a week without having someone

on the receiving side know who you are.” (Id.)

The advice provided by Dean Kransberger is precisely the opposite. When a graduate

complained that he had sent out “a couple hundred resumes” and only received “rejection letters,”

Dean Kransberger responded in a single sentence fragment: “Need to send more than a couple

hundred

to working for free or send hundreds of resumes to employers who are not interested.

.” (AMF 166.) TJSL’s solution to the plight of its graduates appears to be either commit

Dean Kransberger sent an internal email recognizing that Knobbe Martens, a reputable law

firm, has been telling TJSL students “that they need to transfer if they want to be hired.” (AMF 167.)

In another email, Dean Kransberger discusses the fact that TJSL’s top students transfer to other

schools because of “the reality that some firms in town won’t hire our graduates,” and the “received

[sic] wisdom of how inadequate our Career Services Office has been.” (AMF 168.)

TJSL conducted an extensive “self-study” of the CSO (the “Self-Study”). (AMF 169.)

Bracker denied any knowledge of the CSO “Self-Study,” even though she was the Director of the

CSO at the time. (AMF 170.) The “Self-Study” analyzed and compared job placement rates for

TJSL graduates from 1996-2008. The Self-Study recognizes that TJSL “continues to battle lingering

negative perceptions of the quality of the law school’s graduates.” (AMF 171.) It states that

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the opportunity of permanent employment after graduation.” (Id.) The “Self-Study” states that “we

also continue to encounter firms that will not consider hiring our graduates regardless of class rank,

incoming LSAT score or prior work experience.” (Id.) And TJSL acknowledges that it has been

unable to attract law firms willing to conduct on-campus interviews (it has instead relied upon a

“resume drop program” where employers do not commit to interview anyone at TJSL). (AMF 172.)

Indeed, Bracker, who worked in the CSO for 13 years, could only name two law firms that ever

participated in an on-campus interviewing program. (AMF 173.)

TJSL Is Entirely Indifferent to the Plight of Its Graduates. TJSL has done no analysis at

any time to determine whether graduates will be able to pay off their student loans. (AMF 174.)

TJSL does not counsel students on finding jobs that will allow them to pay off their student loans.

(Id.) TJSL does not keep track of how many graduates have been able to pay off their student loans.

(Id.) TJSL does not know how many total graduates have defaulted on their student loans. (Id.)

TJSL does not know how many graduates have deferred repayment of their student loans. (Id.) TJSL

does not know how much money graduates need to make in order to pay down average indebtedness.

(Id.) TJSL does not know the prevailing interest rate on student loans. (Id.) TJSL does not know the

monthly payment required to pay down the average student indebtedness (Id.) TJSL does not take

loans into consideration when counseling graduates. (Id.) And TJSL does not counsel students on

finding jobs that permit deferment or forgiveness. (Id.)

VI. PLAINTIFFS RELIED ON TJSL’S INFLATED FIGURES

Alaburda reviewed the employment figures for TJSL in the 2004-2006 Editions of U.S. News

& World Report “Best Graduate Schools.” (AMF 175.) Believing those figures to be accurate, she

applied, was accepted and enrolled at TJSL. (AMF 176.)

Alaburda would never have enrolled at, or paid tuition to attend, TJSL if she had known that

TJSL’s “employment nine months after graduation” figures in U.S. News were actually lower than

reported. (AMF 177.) Alaburda would not have attended a school that misreported its employment

data. (Id.) In addition, TJSL held itself out as an ABA-accredited institution and Alaburda enrolled

there believing that its reported employment data complied with the standards established by the

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reported inaccurate employment data to the ABA, U.S. News & World Report or NALP which, in

turn, could jeopardize its accreditation status. (Id.) 8 Ballard, Nguyen and Loomis also declare that

they relied on TJSL’s inaccurate and misleading employment figures in the 2003 and 2006 Editions

of U.S. News in deciding to enroll—none would have attended TJSL had they known that the school

was inflating its employment data in violation of the rules (AMF 179.)

The other Plaintiffs all believed that the employment figures related to attorneys or graduates

in law-related jobs at law firms or in business, government, clerkships, etc. (AMF 180.) None of the

Plaintiffs believed that the employment figures included non-professional jobs, like waiters, pool

cleaners and grocery store clerks. (AMF 181.)

Legal Standard

A party is entitled to summary judgment only if there is no triable issue of material fact and

the party is entitled to judgment as a matter of law. Cal. Civ. Proc. Code § 437c(c). A defendant

moving for summary judgment has the burden of showing that a cause of action lacks merit because

one or more elements cannot be established or there is a complete defense to that cause of

action. Cal. Civ. Proc. Code § 437c(o); Aguilar v. Atlantic Richfield Co., 25 Cal. 4th 826, 850

(2001). If the defendant fails to make this initial showing, the motion must be denied. Id.

If the moving papers make a prima facie showing that justifies a defense judgment, the motion

must nevertheless be denied if the plaintiff makes a prima facie showing of the existence of a triable

issue of material fact. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar, 25 Cal. 4th at 856 (“[T]he court

may not weigh the plaintiff’s evidence.”). The burden of persuasion remains with the moving

party. Kahn v. E. Side Union High Sch. Dist., 31 Cal. 4th 990, 1002-03 (2003). The court strictly

construes the moving party’s declarations; the opposition evidence and the reasonable inferences

therefrom must be accepted as true and liberally construed. Aguilar, 25 Cal. 4th at 843, 850.

Grant-

8 Plaintiffs filed this lawsuit after reviewing a New York Times Article published in January 2011. The article states that many law schools were using “Enron-type accounting standards” to report their

employment data; had been temporarily hiring graduates shortly before the reporting deadline in order to inflate their employment figures; and contains a quote from TJSL’s Associated Dean of

Student Affairs, Dean Beth Kransberger, who admitted that some law schools “are manipulating” their employment “results.”

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Burton v. Covenant Care, Inc., 99 Cal. App. 4th 1361, 1369 (2002). “Circumstantial evidence is just

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as good as direct evidence to create a triable issue of fact.” Hussey-Head v. World Sav. & Loan