The American Bar Association has asked a federal panel to consolidate three accreditation lawsuits filed against it last month by InfiLaw Corp. and its for-profit law schools.
The suits, focused on the ABA’s sanctions against Florida Coastal School of Law, the now-closed Charlotte School of Law, and Arizona Summit Law School, raise nearly identical issues, according to a motion filed May 30 by the ABA to the U.S. Judicial Panel on Multidistrict Litigation. Allowing the suits to proceed independently risks district courts reaching inconsistent rulings on how the ABA accredits law schools, according to the motion. That, in turn, would throw the ABA’s accreditation activities into chaos.
“It makes no sense for the cases to proceed on separate but parallel tracks,” the ABA’s motion reads. “Not only would such duplicative litigation require three federal judges to invest their time and effort in resolving identical pretrial factual and legal questions, but the duplication also presents a very serious risk of inconsistent rulings on those issues.”
But the plaintiffs oppose the consolidation.
“Each one of the suits is different and was properly filed in the district where the particular law school is located,” said Kirkland & Ellis partner Chris Bartolomucci, who is representing InfiLaw alongside fellow partners Paul Clement and Viet Dinh. “The motion to transfer is a purely procedural maneuver to which the schools will respond.”
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Consolidating the cases would make the litigation easier to manage for the ABA’s team of lawyers from Sidley Austin and help it contain costs. A multidistrict litigation would also prevent common witnesses from being deposed three different times or appearing at pretrial hearings across the country, and would streamline discovery, according to the motion.
The ABA has proposed that the suits be consolidated in the U.S. District Court for the Western District of North Carolina, where the Charlotte suit was filed. Charlotte has a major airport—it’s a hub for American Airlines—making it easy for the ABA’s Chicago-based lawyers and InfiLaw’s Washington-based lawyers to get there, the motion argues. Moreover, Judge Graham Mullen, the ABA argues, has experience with multidistrict litigation and is already presiding over four consolidated class actions brought by former Charlotte School of Law students against the school and InfiLaw. Finally, North Carolina has far fewer pending cases than the district courts in Florida and Arizona, where the two other cases were filed.
InfiLaw has until June 22 to respond to the ABA’s motion to consolidate the suits.
InfiLaw kicked off its wave of litigation against the ABA’s Council of the Section of Legal Education and Admissions to the Bar and the ABA’s accreditation committee on May 10, filing suit on behalf of itself and Florida Coastal School of Law. The ABA in October found the Jacksonville, Florida, school to be out of compliance with a number of its accreditation standards pertaining to admissions, academic support, and the rigor of its educational program.
The Charlotte School of Law filed suit five days later, claiming that the ABA’s decision to place the school on probation in the fall of 2016 ultimately led to its closure in August 2017. And finally, Arizona Summit sued on May 24. The ABA placed the Phoenix school on probation in March 2017 for its admission practices, low bar pass rates, and its academic support. The ABA also found the school out of compliance with standards pertaining to a school’s finances earlier this year.
Each of the suits alleges that the ABA violated the schools’ due process rights in finding them out of compliance because the accreditation standards are unlawfully vague. The three suits also allege that the ABA acted under pressure from the U.S. Department of Education to target for-profit law schools. In each case, the court will have to determine whether the ABA, as an accreditor recognized by the Education Department, qualifies as a state actor subject to the Fifth Amendment.
Additionally, all three plaintiffs are seeking damages as well as an injunction preventing the ABA from enforcing its admissions and educational rigor standards against any law school.
Conflicting rulings would “yield particularly grave consequences here,” according to the ABA’s motion.
“The ABA accredits more than 200 law schools nationwide under the same standards that InfiLaw and the law school plaintiffs challenge in these three suits,” it reads. “Inconsistent court rulings based on inconsistent interpretations of the ABA’s standards will disrupt the council’s accreditation work nationwide—which serves an essential consumer protection function for prospective law students and the public.”