Case: 1:18-cv-07810 Document #: 22 Filed: 02/18/19 Page 1 of 22 PageID #:53

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

)
JEFFREY MALKAN, ) Case No. 1:18-cv-07810
)
Plaintiff, )
) Hon. Judge John Robert Blakey
v. )
)
AMERICAN BAR ASSOCIATION; )
COUNCIL OF THE SECTION OF LEGAL )
EDUCATION AND ADMISSIONS TO THE )
BAR, AMERICAN BAR ASSOCIATION; and )
ACCREDITATION COMMITTEE OF THE )
SECTION OF LEGAL EDUCATION AND )
ADMISSIONS TO THE BAR, AMERICAN )
BAR ASSOCIATION, )
)
Defendants. )

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF

THEIR TO DISMISS UNDER FEDERAL RULES 12(b)(1) AND 12(b)(6)
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TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 1

BACKGROUND ............................................................................................................................ 2

A. The ABA’s Role as Accreditor. .................................................................. 2

B. Malkan’s Employment at SUNY-Buffalo. ................................................. 3

C. Malkan’s Termination. ................................................................................ 4

D. This Litigation............................................................................................. 4

LEGAL STANDARD..................................................................................................................... 5

ARGUMENT .................................................................................................................................. 5

I. MALKAN LACKS ARTICLE III STANDING TO SUE THE ABA. .................. 5

A. Any Injury from SUNY-Buffalo’s Termination of the Contract Does Not

Give Malkan Standing to Sue the ABA. ..................................................... 6

B. Harm to the Legal Education Community Cannot Confer Standing. ......... 8

II. THE COMPLAINT FAILS TO STATE A CLAIM AGAINST THE ABA. ......... 8

A. The Complaint Fails to State a Claim for Fraud. ........................................ 8

1. The Complaint Fails to Identify a False Statement of Fact. ........... 9

2. The Complaint Does Not Allege Knowledge of the Falsity. ........ 10

B. The Complaint Fails to State a Claim for Negligent Misrepresentation. .. 11

1. The ABA Owes No Duty to Malkan as a Matter of Law. ............ 11

2. The Complaint Does Not Plausibly Allege that the ABA Should
Have Discovered SUNY-Buffalo’s Non-Compliance. ................. 13

C. Malkan’s Declaratory Judgment Claim Also Fails. .................................. 14

III. MALKAN’S CLAIMS ARE UNTIMELY. ......................................................... 14

CONCLUSION ............................................................................................................................. 15

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TABLE OF AUTHORITIES

Cases Page(s)

Ambrose v. New England Ass’n of Sch. & Colleges, Inc.,

252 F.3d 488 (1st Cir. 2001) ....................................................................................9, 11, 12, 13

Anschutz Corp. v. Merrill Lynch & Co.,

690 F.3d 98 (2d Cir. 2012).................................................................................................11, 13

Ashcroft v. Iqbal,
556 U.S. 662 (2009) ...................................................................................................................5

Barbara’s Sales, Inc. v. Intel Corp.,

879 N.E.2d 910 (Ill. 2007) .......................................................................................................11

Bd. Of Forensic Document Exam’rs, Inc. v. Am. Bar. Ass’n,

287 F. Supp. 3d 726 (N.D. Ill. 2018) .........................................................................................9

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) ...............................................................................................................3, 5

CitiMortgage, Inc. v. Parille,

2016 IL App 2d 150286 ...........................................................................................................15

Clark v. Robert W. Baird Co.,

142 F. Supp. 2d 1065 (N.D. Ill. 2001) .....................................................................................15

Credit Gen. Ins. Co. v. Midwest Indem. Corp.,

916 F. Supp. 766 (N.D. Ill. 1996) ............................................................................................15

Dearborn Ins. Co. v. Int’l Surplus Lines Ins. Co.,

719 N.E.2d 1092 (Ill. App. Ct. 1999) ........................................................................................8

DH2, Inc. v. SEC,

422 F.3d 591 (7th Cir. 2005) .....................................................................................................7

Eiseman v. State of New York,

511 N.E.2d 1128 (N.Y. 1987) ..................................................................................................11

Gabriel v. Albany Coll. of Pharmacy and Health Scis.,

No. 2:12–CV–14, 2013 WL 4456690 (D. Vt. Aug. 16, 2013) ..........................................12, 13

United States ex rel. Garst v. Lockheed-Martin Corp.,

328 F.3d 374 (7th Cir. 2003) .....................................................................................................5

Heiman v. Bimbo Foods Bakeries Distribution Co.,

902 F.3d 715 (7th Cir. 2018) ...............................................................................................8, 15

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Keams v. Tempe Tech. Inst., Inc.,

110 F.3d 44 (9th Cir. 1997) ...............................................................................................12, 13

Ko v. Eljer Indus., Inc.,

678 N.E.2d 641 (Ill. App. Ct. 1997) ........................................................................................15

Krywin v. Chi. Transit Auth.,

938 N.E.2d 440 (Ill. 2010) .......................................................................................................13

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ...............................................................................................................5, 8

Malkan v. Mutua,
699 F. App’x 81 (2d Cir. 2017) .................................................................................................4

Malkan v. Mutua,
No. 1:12-CV-00236 (MAT), 2016 WL 7335574 (W.D.N.Y. Dec. 18, 2016) ...........................4

Malkan v. Mutua,
No. 12-CV-0236A(SR), 2015 WL 13746778 (W.D.N.Y. Dec. 1, 2015) ..................................4

Neptuno Treuhand-Und Verwaltungsgesellschaft Mbh v. Arbor,

692 N.E.2d 812 (Ill. App. Ct. 1998) ..........................................................................................8

Orgone Capital III, LLC v. Daubenspeck,

912 F.3d 1039 (7th Cir. 2019) ...................................................................................................2

Ossining Union Free Sch. Dist. v. Anderson LaRocca Anderson,

539 N.E.2d 91 (N.Y. 1989) ................................................................................................12, 13

People by Schneiderman v. Credit Suisse Sec. (USA) LLC,

107 N.E.3d 515 (N.Y. 2018) ......................................................................................................8

Prof’l Massage Training Ctr., Inc. v. Accreditation All. of Career Sch. & Colls.,
781 F.3d 161 (4th Cir. 2015) .....................................................................................................9

Segovia v. United States,

880 F.3d 384 (7th Cir. 2018) .....................................................................................................6

Silha v. ACT, Inc.,

807 F.3d 169 (7th Cir. 2015) .............................................................................................5, 6, 8

Simon v. E. Ky. Welfare Rights Org.,

426 U.S. 26 (1976) .................................................................................................................6, 7

Thomas M. Cooley Law Sch. v. Am. Bar Ass’n,

459 F.3d 705 (6th Cir. 2006) .............................................................................................13, 14

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Tillitz v. Am. Corr. Ass’n,

No. 03–1470–HA, 2004 WL 2203275 (D. Or. Sept. 29, 2004) .........................................12, 13

Warth v. Seldin,
422 U.S. 490 (1975) ...................................................................................................................8

Statutes

735 ILCS 5/13-205 ........................................................................................................................14

735 ILCS 5/13-210 ........................................................................................................................15

Other Authorities

34 C.F.R. § 602 ................................................................................................................................2

59 Fed. Reg. 22250 (Apr. 29, 1994) ................................................................................................2

ABA Standards and Rules of Procedure for Approval of Law Schools 2016-2017....................2, 3

Fed. R. Civ. P. 9(b) ..........................................................................................................................5

Fed. R. Civ. P. 12(b)(1)..............................................................................................................5, 15

Fed. R. Civ. P. 12(b)(6)..........................................................................................................5, 8, 15

N.Y. C.P.L.R. § 213 .......................................................................................................................15

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INTRODUCTION

In 2008, SUNY Buffalo School of Law (“SUNY-Buffalo” or “Law School”) informed

Plaintiff Jeffrey Malkan that it had decided not to renew his employment contract. In Malkan’s

view, SUNY-Buffalo’s action violated standards established by the American Bar Association

(“ABA”)1 for accreditation of law schools. But Malkan’s complaint—filed more than ten years

later—does not seek relief from SUNY-Buffalo for its alleged violation. Instead, having failed to

obtain relief from SUNY-Buffalo in earlier litigation, Malkan now asks this Court to award him

damages and enter a declaratory judgment against the ABA. The ABA, however, was not a party

to the contract and played no role in the Law School’s decision—and so the Complaint against it

cannot stand, for multiple independent reasons.

First, Malkan lacks Article III standing to assert these claims against the ABA. The only

injury he alleges stems from the termination of his employment, but no such injury can be traced

to the ABA, because the ABA played no part in the independent decision of SUNY-Buffalo not to

renew Malkan’s contract. Likewise, Malkan cannot show that a favorable decision will redress his

alleged injury, because no order against the ABA can undo SUNY-Buffalo’s 2008 decision as to

Malkan’s employment. These powers rest with SUNY-Buffalo, which is why Malkan spent eight

years litigating his termination with the Law School.

Second, the Complaint does not state a claim for fraud or negligent misrepresentation.

Malkan fails to plead any false statement, because he alleges no facts that could establish that the

ABA’s constitutionally protected opinion as to SUNY-Buffalo’s compliance with ABA Standards

is false. Moreover, the Complaint does not plausibly allege that the ABA knew of SUNY-Buffalo’s

1
“ABA” refers collectively to Defendants the American Bar Association, Council of the Section of Legal
Education and Admissions to the Bar (“Council”), and its Accreditation Committee (“Committee”). In
August 2018, the ABA House of Delegates voted to disband the Committee, and the ABA Rules were
revised to reflect its dissolution.

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purported non-compliance with ABA Standards until well after Malkan was terminated—too late

for any asserted fraud to cause Malkan’s injury. Malkan’s negligent-misrepresentation claim fails

because the ABA does not owe a legal duty to faculty, and the Complaint does not explain what a

reasonable accreditor would have done differently to discover SUNY-Buffalo’s non-compliance

with the ABA’s Standards. Malkan’s declaratory judgment claim fails for the same reasons, and

should likewise be dismissed.

Third, Malkan sued the ABA too late. Malkan learned all of the facts underlying the claims

alleged in the Complaint by August 28, 2008, when the Law School sent him his termination letter.

The limitations period for Malkan’s claims expired five years later in August 2013.

BACKGROUND2

A. The ABA’s Role as Accreditor.

The ABA is a not-for-profit voluntary professional association. Since 1952, the U.S.

Department of Education has designated the Council as the national accreditor for programs

leading to the J.D. degree. Compl. ¶ 13 (ECF No. 1); 34 C.F.R. § 602. In that role, the Council is

responsible for determining whether law schools “provide students with quality education or

training worth the time, energy, and money they invest in it.” 59 Fed. Reg. 22250 (Apr. 29, 1994).

The Council adopts Standards for Approval of Law Schools (the “Standards”), which set out

criteria for ABA accreditation, as well as Interpretations and Rules of Procedure that govern the

accreditation process. Compl. ¶¶ 24–25; see also ABA Standards and Rules of Procedure for

2
Solely for purposes of this motion, Defendants accept as true the factual allegations in the Complaint. See
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In evaluating Defendants’ motion, the Court can
“take judicial notice of matters of public record and consider documents incorporated by reference in the
pleadings.” Orgone Capital III, LLC v. Daubenspeck, 912 F.3d 1039, 1044 (7th Cir. 2019) (citing
Milwaukee Police Ass’n v. Flynn, 863 F.3d 636, 640 (7th Cir. 2017)).

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Approval of Law Schools 2016-2017, at 51 (“ABA Rules”).3 The ABA regularly monitors ABA-

approved law schools’ compliance with the Standards, ABA Rules at 54, and conducts a periodic

comprehensive review of each law school (referred to as a site evaluation), id. at 52–53. In

addition, anyone can file a written complaint alleging that a given school is not compliant with the

Standards, and such complaints are then investigated by the Managing Director. Id. at 73–74.

B. Malkan’s Employment at SUNY-Buffalo.

Malkan began working at SUNY-Buffalo in 2000, when the school offered him a job as a

Clinical Associate Professor of Law and Director of the Legal Research and Writing Program.

Compl. ¶ 37. On April 28, 2006, the Promotion and Tenure Committee recommended Malkan’s

promotion to full Clinical Professor of Law. Id. ¶ 38. In October 2006, the then-dean of SUNY-

Buffalo offered Malkan a contract that reflected the promotion. The letter accompanying the

contract explained that it was “intended to fully comply” with ABA rules, “particularly [S]tandard

405(c) and all accompanying interpretations, especially interpretations 405-6 and 405-8.” Id. ¶ 39.

ABA Standard 405(c) requires law schools to “afford to full time clinical faculty members

a form of security of position reasonably similar to tenure.” ABA Rules at 29. Interpretation 405-

6 explains that a “program of renewable long-term contracts” satisfies Standard 405(c), and defines

“long-term contract” to mean “at least a five-year contract that is presumptively renewable or other

arrangement sufficient to ensure academic freedom.” Id. at 29–30. Malkan alleges that the contract

offered to him in 2006 was “405(c)-compliant,” and that based on the “405(c)-compliant contract,

together with the Law School’s status as an ABA accredited law school,” he “expect[ed] that his

3
The 2016-2017 ABA rules were in effect when Malkan submitted his third-party comment to the ABA.
Compl. ¶ 45. The 2016-2017 ABA rules are available at https://www.americanbar.org/content/
dam/aba/publications/misc/legal_education/Standards/2016_2017_aba_standards_and_rules_of_procedur
e.pdf.

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contract renewal would be mandatory, in the absence of good cause, upon the expiration of each

term of service.” Compl. ¶ 41.

C. Malkan’s Termination.

Two years later, on August 28, 2008, then-Dean Makau Matua notified Malkan that the

Law School would not renew his contract following its termination in August 2009. Compl. ¶ 42.

In 2012, Malkan filed suit, alleging that the Law School’s dean deprived him of a “property interest

in a 405(c)-qualified, presumptively renewable contract and university title/rank of full clinical

professor” without due process. See Malkan v. Mutua, No. 12-CV-0236A(SR), 2015 WL

13746778, at *3 (W.D.N.Y. Dec. 1, 2015) (internal quotation marks omitted); see also Compl.

¶¶ 42, 55. The district court rejected Malkan’s claim, holding that he had no protected property

interest in renewed appointment because state regulations governing term appointments in SUNY

schools did not create any legal right in a renewed appointment. Malkan v. Mutua, No. 1:12-CV-

00236 (MAT), 2016 WL 7335574, at *2 (W.D.N.Y. Dec. 18, 2016). The Second Circuit affirmed

on the same grounds. Malkan v. Mutua, 699 F. App’x 81, 83 (2d Cir. 2017); see also Compl. ¶ 55.

D. This Litigation.

On November 27, 2018, Malkan filed a two-count Complaint against the ABA. In Count

I, Malkan advances claims for fraud and negligent misrepresentation based on the ABA’s

accreditation of SUNY-Buffalo. Malkan alleges that the ABA “certified [SUNY Buffalo] to be in

compliance with all ABA accreditation standards, including Standard 405(c)”; that SUNY Buffalo

“successfully argued before the U.S. Court of Appeals” that it “is not now, and never has been, in

compliance with Standard 405(c)”; and that Malkan “could not possibly have accepted a clinical

faculty appointment at SUNY Buffalo if he had any reason to believe that the ABA’s imprimatur

on that law school’s compliance with Standard 405(c) was fraudulently applied.” Compl. ¶¶ 78,

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80–81. Count II seeks a declaratory judgment that “the ABA violated its legal duty to truthfully

report the compliance status of SUNY Buffalo[] and to take mandatory enforcement action against

it for repudiating Standard 405(c),” which Malkan contends “would benefit the legal education

community” and “restor[e] [Malkan’s] reputation.” Compl. ¶ 88–89.

LEGAL STANDARD

The Complaint should be dismissed under Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6). To survive dismissal under Rule 12(b)(6), the Complaint must allege “enough facts to

state a claim to relief that is plausible on its face,” Twombly, 550 U.S. at 547, meaning that from

the facts alleged the Court can “draw the reasonable inference that the defendant is liable for the

misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at

556). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id. Although the Court assumes the factual allegations in the Complaint

are true, it need not “accept as true a legal conclusion couched as a factual allegation.” Twombly,

550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Motions to dismiss for

lack of standing are subject to these same standards. Silha v. ACT, Inc., 807 F.3d 169, 173 (7th

Cir. 2015). Because Malkan advances a fraud claim, the Complaint must satisfy the heightened

pleading standard of Rule 9(b), which requires pleading “the who, what, when, where, and how”

of the fraud. United States ex rel. Garst v. Lockheed-Martin Corp., 328 F.3d 374, 376 (7th Cir.

2003).

ARGUMENT

I. MALKAN LACKS ARTICLE III STANDING TO SUE THE ABA.

Any party that seeks relief in federal court must establish, as an “irreducible constitutional

minimum,” that he has Article III standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

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(1992). To meet this requirement, “a plaintiff must show (1) it has suffered an ‘injury in fact’ that

is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;

(2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as

opposed to merely speculative, that the injury will be redressed by a favorable decision.” Silha,

807 F.3d at 173.

As far as Defendants can discern, the Complaint alleges two potential injuries. First,

Malkan alleges injury from the supposedly improper termination of his employment contract,

which created an alleged “stigma of a ‘for cause’ termination” that “made it impossible for him to

resume his career at any other accredited law school.” Compl. ¶ 9; see also id. ¶ 89. Second,

Malkan alleges an injury to the “legal education community” in the form of a “non-functional

[accreditation] standard,” which Malkan says fails to provide “legal educators” with “accurate

information” and which permits “attacks on the integrity and academic freedom of the clinical

faculties throughout the United States.” Compl. ¶¶ 10, 88. Neither purported injury supports

standing.

A. Any Injury from SUNY-Buffalo’s Termination of the Contract Does Not Give
Malkan Standing to Sue the ABA.

The ABA had nothing to do with SUNY-Buffalo’s decision to terminate Malkan’s contract.

For that reason, no alleged injury to Malkan from his termination is traceable to the ABA, and no

award against the ABA could redress any such injury.

As the Supreme Court has explained, an injury is not “fairly traceable” to a defendant if

the injury “results from the independent action of some third party not before the court,” Simon v.

E. Ky. Welfare Rights Org., 426 U.S. 26, 41–42 (1976), especially when that third party has broad

discretion to act. See Segovia v. United States, 880 F.3d 384, 389 (7th Cir. 2018) (plaintiffs’ injury

from not receiving absentee ballots could not be traced to federal defendants, because the state of

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Illinois exercised independent “discretion to determine eligibility for overseas absentee ballots”);

DH2, Inc. v. SEC, 422 F.3d 591, 597 (7th Cir. 2005) (no standing where “the injury DH2 complains

of hinges on the decisions of independent actors whose discretion—though subject to securities

laws and regulation by the SEC—is nonetheless quite broad”).

That principle applies here. No injury associated with Malkan’s termination can be fairly

traced to the ABA or its decision to accredit SUNY-Buffalo. Malkan does not and cannot allege

that the ABA dictates employment decisions for accredited law schools, or that the ABA played

any part in SUNY-Buffalo’s independent decision not to renew his contract. Indeed, the only way

in which the ABA is alleged to be connected to Malkan’s employment dispute is through its

adoption of Standard 405(c)—which Malkan claims SUNY-Buffalo violated when it chose to

terminate the contract. This is insufficient to establish traceability. See DH2, 422 F.3d at 496–97

(plaintiff lacked standing to challenge SEC regulations that applied to third parties with whom

plaintiff contracted, because those third parties exercised independent discretion). Moreover, under

Malkan’s own theory—that the ABA’s Standard 405(c) was violated by the action that SUNY-

Buffalo took—the ABA did not cause Malkan’s injury, but if anything sought to prevent it.

For much the same reason, Malkan has not alleged redressability. To meet this requirement,

the Complaint must allege a “substantial likelihood that victory in this suit would result” in curing

any injury from Malkan’s allegedly improper termination. Simon, 426 U.S. at 45. But no relief this

Court could order against the ABA could unwind SUNY-Buffalo’s 2008 decision not to renew

Malkan’s contract. No declaration concerning the ABA’s judgment in accrediting SUNY-Buffalo,

nor any damages award the ABA could be ordered to pay, would give Malkan his job back or

affect his reputation in the legal community.

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B. Harm to the Legal Education Community Cannot Confer Standing.

Malkan’s claim of purported harm to the legal education community does not give him

standing to pursue claims against the ABA either. See, e.g., Compl. ¶ 88. Standing requires an

“‘injury in fact’ that is [] concrete and particularized,” Silha, 807 F.3d at 173 (citation omitted),

meaning that the injury “must affect the plaintiff in a personal and individual way.” Lujan, 504

U.S. at 560 n.1. Harms that are “shared in substantially equal measure by . . . a large class of

citizens . . . do[] not warrant exercise of jurisdiction.” Warth v. Seldin, 422 U.S. 490, 499 (1975).

Examples of such “generalized grievance[s]” include an injury to the interest in seeing that the law

is obeyed or procedures are followed. See Lujan, 504 U.S. at 576. Malkan cannot claim that any

harm to the legal education community is “concrete and particularized” to him, and therefore

cannot establish standing on this basis.

II. THE COMPLAINT FAILS TO STATE A CLAIM AGAINST THE ABA.

Should the Court reach the merits, all of Malkan’s claims should be dismissed under Rule

12(b)(6).

A. The Complaint Fails to State a Claim for Fraud.

The Complaint fails to plead at least the first two elements necessary to state a claim for

fraud. To state a claim, the Complaint must allege: “(1) a false statement of material fact;

(2) knowledge or belief of the falsity by the party making it; (3) an intention to induce the other

party to act; (4) action by the other party in reliance on the truth of the statements; and (5) damage

to the other party resulting from such reliance.” Neptuno Treuhand-Und Verwaltungsgesellschaft

Mbh v. Arbor, 692 N.E.2d 812, 815 (Ill. App. Ct. 1998).4 The first element is plainly absent since

4
Because the Complaint invokes this Court’s diversity jurisdiction, this Court applies Illinois’s choice-of-
law principles. Heiman v. Bimbo Foods Bakeries Distribution Co., 902 F.3d 715, 718 (7th Cir. 2018).
Illinois law applies to Malkan’s fraud claim because there is no difference between New York and Illinois

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Malkan alleges no facts showing that the ABA’s opinion as to SUNY-Buffalo’s compliance was

false. And Malkan has not plausibly alleged that the ABA knew that SUNY-Buffalo was out of

compliance with Standard 405(c) at the time he agreed to become a full-time clinical faculty

member.

1. The Complaint Fails to Identify a False Statement of Fact.

Malkan’s fraud claim is based on the ABA’s accreditation of SUNY-Buffalo, which

allegedly “certified” that SUNY-Buffalo complied “with all ABA accreditation standards,

including Standard 405(c).” Compl. ¶ 78. But whether a school is in compliance with ABA

Standards is a matter of professional opinion reserved to the accreditor. Accreditation decisions

involve “wide-ranging expertise in what may be highly technical and specialized fields of

education” and represent “the professional judgment of the educators involved in the accreditation

process.” Prof’l Massage Training Ctr., Inc. v. Accreditation All. of Career Sch. & Colls., 781

F.3d 161, 171 (4th Cir. 2015) (citation omitted). These professional opinions are constitutionally

protected expressions of opinion. Cf. Bd. Of Forensic Document Exam’rs, Inc. v. Am. Bar. Ass’n,

287 F. Supp. 3d 726, 736 (N.D. Ill. 2018). For these reasons, courts are not free to review

accreditation decisions to determine whether they were right or wrong. See Ambrose v. New

England Ass’n of Sch. & Colleges, Inc., 252 F.3d 488, 497 (1st Cir. 2001) (accreditation opinions

are “not the sort of representations that . . . can easily be shown to be actionably false” because

doing so would require courts “to substitute [their] judgment for that of professional educators

regarding . . . suitability for accreditation”).

Malkan’s Complaint does not plausibly allege that the ABA’s decision to accredit SUNY-

law. Dearborn Ins. Co. v. Int’l Surplus Lines Ins. Co., 719 N.E.2d 1092, 1096 (Ill. App. Ct. 1999) (“In the
absence of a conflict, Illinois law applies as the law of the forum.”); People by Schneiderman v. Credit
Suisse Sec. (USA) LLC, 107 N.E.3d 515, 525 (N.Y. 2018) (identifying same five elements for claims of
fraud).

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Buffalo was “false.” The Complaint assumes that SUNY-Buffalo is “not able to comply with ABA

Standard 405(c) because presumptively renewable contracts are prohibited by the SUNY Trustees’

Policies.” Compl. ¶ 46. Presumptively renewable contracts, however, are not the only way to

satisfy Standard 405(c). To the contrary, Interpretation 405-6 expressly provides that Standard

405(c) can be satisfied by any “other arrangement sufficient to ensure academic freedom.” ABA

Rules at 30 (emphasis added). As Malkan alleges, a representative of the ABA indicated that a

“‘thorough review’” of the Law School’s compliance with Standard 405(c) was undertaken, and

the ABA found no violation. Compl. ¶ 48. Malkan may disagree with that determination, but such

disagreement cannot be the basis of a fraud claim.

2. The Complaint Does Not Allege Knowledge of the Falsity.

The Complaint similarly does not plausibly allege that the ABA knew its certification of

SUNY-Buffalo’s compliance with Standard 405(c) was false in 2006, when Malkan entered into

the employment contract in purported reliance on the ABA’s accreditation. See Compl. ¶¶ 41, 80.

To the contrary, Malkan alleges that at that time, SUNY-Buffalo’s actions were “405(c)-

compliant.” Compl. ¶ 41. It was only years later, in 2015—long after Malkan had made any

decision in reliance on SUNY-Buffalo’s accreditation by the ABA—that the New York Attorney

General allegedly “successfully argued” that SUNY Board of Trustees’ policies prevented the Law

School from granting “presumptively renewable contracts,” as Malkan contends is necessary to

comply with Standard 405(c). Compl. ¶¶ 43, 81. But the Complaint does not even allege that the

ABA knew of SUNY-Buffalo’s litigation position in 2015—much less that the ABA knew in 2006

of SUNY-Buffalo’s alleged repudiation of Standard 405(c), which had not yet occurred. Simply

put, at the time that Malkan claims to have relied on the ABA’s accreditation of SUNY-Buffalo,

even he agrees that SUNY-Buffalo was “405(c)-compliant.” Compl. ¶¶ 41, 80.

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B. The Complaint Fails to State a Claim for Negligent Misrepresentation.

To state a claim for negligent misrepresentation under New York law,5 Malkan must plead:

(1) that the ABA had a duty, as a result of a special relationship, to give correct information;

(2) that the ABA made a false representation that it knew or should have known was incorrect;

(3) that the ABA knew that Malkan desired the information supplied in the representation for a

serious purpose; (4) that Malkan intended to rely and act upon it; and (5) that Malkan reasonably

relied on it to his detriment. Anschutz Corp. v. Merrill Lynch & Co., 690 F.3d 98, 114 (2d Cir.

2012); see also Eiseman v. State of New York, 511 N.E.2d 1128 (N.Y. 1987). The first element is

absent as a matter of law—accreditors like the ABA do not owe a legal duty to third-parties,

including faculty. And the second element is inadequately pleaded. The Complaint is devoid of

allegations about how the ABA should have known about SUNY-Buffalo’s non-compliance with

Standard 405(c).

1. The ABA Owes No Duty to Malkan as a Matter of Law.

Courts have consistently rejected claims based on so-called “negligent accreditation”

because accreditors do not owe a legal duty to third-parties, like students and faculty. In Ambrose

v. New England Association of Schools and Colleges, Inc., 252 F.3d 488, 497 (1st Cir. 2001), for

example, the court considered whether seven former students of Thomas College could sue the

New England Association of Schools and Colleges for “act[ing] carelessly in conferring

accreditation because the College did not in fact meet NEASC’s own accreditation requirements.”

Citing “persuasive case law from other jurisdictions and relevant public policy considerations,”

the court held that the claim of “negligent accreditation” was “not actionable.” Id. at 498. As the

5
New York law applies to Malkan’s negligence claim because New York has the “most significant
relationship to the occurrence and the parties.” Barbara’s Sales, Inc. v. Intel Corp., 879 N.E.2d 910, 919
(Ill. 2007) (citation omitted). Malkan’s domicile is New York, see Compl. ¶ 16, and he presumably received
and relied on the ABA’s accreditation in New York. See Barbara’s Sales, 879 N.E.2d at 923–24.

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court explained, existing case law did not support any duty owed by an accreditor to “a person

who is not a party to the accreditation process.” Id. at 499. Moreover, the court lacked any

“satisfactory standard of care by which to evaluate educators’ professional judgments,” and cited

“the patent undesirability of having courts attempt to assess the efficacy of the operations of

academic institutions.” Id. For these reasons, the court declined to “blaze a new, unprecedented

trail and hold an accreditor liable to a consumer of the accredited service under a negligent

accreditation theory.” Id.

The Ninth Circuit rejected a similar claim in Keams v. Tempe Technical Institute, Inc., 110

F.3d 44 (9th Cir. 1997). As in New York, no “Arizona case authority had recognized a duty of care

creating liability” under analogous facts, so the Court “recognize[d] that under Arizona law [the

accreditors] owed no duty to TTI students.” Id. at 47. Likewise, in Tillitz v. American Correctional

Ass’n, No. 03–1470–HA, 2004 WL 2203275, at *1 (D. Or. Sept. 29, 2004), the court rejected an

inmate’s claims against the American Correctional Association, explaining that no “Oregon

authority recogniz[ed] a duty of care creating liability” for negligent accreditation, and that “claims

for negligent accreditation have failed throughout state and federal courts.” Id. at *4 (citation

omitted); see also Gabriel v. Albany Coll. of Pharmacy and Health Scis., No. 2:12–CV–14, 2013

WL 4456690, at *8–9 (D. Vt. Aug. 16, 2013) (Vermont law does not support any duty of care

owed by accreditors to students and other third-parties).

Like every other state’s law, New York law imposes no duty to “act as a reasonable

accreditor.” Indeed, New York defines the “duty” element of a negligent misrepresentation claim

“more narrowly than other jurisdictions.” Ossining Union Free Sch. Dist. v. Anderson LaRocca

Anderson, 539 N.E.2d 91, 95 (N.Y. 1989) (citation omitted). Legal duties are not “determined

simply by the class of persons who relied on the negligent misrepresentations.” Id. at 94. Instead,

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the “long-standing” rule in New York is that a plaintiff can recover for negligent

misrepresentations only “where there is actual privity of contract between the parties or a

relationship so close as to approach that of privity.” Id.; see also Anschutz Corp., 690 F.3d at 115.6

No such relationship exists here; accordingly, Malkan’s negligence claim fails.

Essentially, Plaintiffs’ negligent accreditation claim asks this Court to review “the

correctness vel non of [the ABA’s] decision to accredit” SUNY-Buffalo, including its compliance

with Standard 405(c). Ambrose, 252 F.3d at 499. That, in turn, requires this Court to apply

“standards for accreditation” that “are not guides for the layman but for professionals in the field

of education.” Thomas M. Cooley Law Sch. v. Am. Bar Ass’n, 459 F.3d 705, 713 (6th Cir. 2006).

Courts lack “a satisfactory standard of care by which to evaluate educators’ professional

judgments,” and therefore the ability to “assess the efficacy of the operations of academic

institutions.” Ambrose, 252 F.3d at 499. Without some indication that New York courts would be

the first in the nation to allow a negligent accreditation claim, Malkan’s claim against the ABA

should not be allowed to proceed.

2. The Complaint Does Not Plausibly Allege that the ABA Should Have
Discovered SUNY-Buffalo’s Non-Compliance.

Malkan has also failed to allege that the ABA should have known its accreditation of

SUNY-Buffalo could be accurately characterized as false. Anschutz Corp., 690 F.3d at 114 (“[T]he

defendant made a false representation that he or she should have known was incorrect.”). Absent

from the Complaint are any allegations specifying how the ABA should have known about SUNY-

Buffalo’s supposed non-compliance with Standard 405(c) in 2006, when he accepted an

6
The result would be the same under Illinois law. Like New York, an element of negligent
misrepresentation in Illinois is the existence of a legal “duty,” which asks “whether the plaintiff and
defendant stood in such a relationship to one another that the law imposes on the defendant an obligation
of reasonable conduct for the benefit of the plaintiff.” Krywin v. Chi. Transit Auth., 938 N.E.2d 440, 447
(Ill. 2010). This is essentially the same standard applied in Ambrose, Keams, Tillitz, and Gabriel.

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appointment as a full Clinical Professor of Law. Malkan does not allege, for example, (1) what a

“reasonable accreditor” would have done to assess SUNY-Buffalo’s compliance, (2) what the

ABA in fact did, or (3) how the ABA’s actions allegedly departed from those of a supposed

“reasonable accreditor.” Instead of alleging facts about the ABA’s conduct—much less how the

ABA’s actions constituted negligence—Malkan relies solely on the fact the New York attorney

general successfully argued in 2015 that the SUNY Board of Trustees’ prevented the Law School

from complying with Standard 405(c). See, e.g., Compl. ¶ 2 (“The dispositive fact before this Court

is the ruling by the U.S. Court of Appeals . . . that it is legally impossible for [SUNY-Buffalo] to

comply with ABA Standard 405(c).”); ¶ 81 (“The Attorney General . . . successfully argued . . .

that [SUNY-Buffalo] is not now, and never has been, in compliance with Standard 405(c).”). That

fact says nothing about what the ABA should have known to be true eleven years earlier.

C. Malkan’s Declaratory Judgment Claim Also Fails.

Malkan’s declaratory judgment claim fails as well. The Complaint seeks a declaration that

“the ABA violated its legal duty to truthfully report the compliance status of SUNY Buffalo[] and

to take mandatory enforcement action against it for repudiating Standard 405(c).” Compl. ¶ 88.

Malkan’s declaratory judgment claim essentially seeks judicial review of the ABA’s finding that

SUNY-Buffalo has complied with Standard 405(c). Malkan has failed to allege facts sufficient to

establish violation of that Standard. See p. 9–10, supra. But, even if there were some doubt, courts

“are not free to conduct a de novo review or substitute [their] judgment for that of the ABA or its

Council.” Cooley, 459 F.3d at 713. The declaratory judgment claim therefore should be dismissed.

III. MALKAN’S CLAIMS ARE UNTIMELY.

Finally, Malkan’s claims also should be dismissed because he brought them five years too

late. Under Illinois law, Malkan’s claims are subject to a five-year statute of limitations. 735

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ILCS 5/13-205;7 CitiMortgage, Inc. v. Parille, 2016 IL App 2d 150286 ¶ 43 (fraud); Credit Gen.

Ins. Co. v. Midwest Indem. Corp., 916 F. Supp. 766, 774 (N.D. Ill. 1996) (negligent

misrepresentation). A claim for fraud or negligent misrepresentation “accrues when the plaintiff

suffers injury” or “has enough information about his injury to apprise a reasonable person of the

need for further inquiry to determine whether a legal wrong has been committed.” Clark v. Robert

W. Baird Co., 142 F. Supp. 2d 1065, 1075 (N.D. Ill. 2001) (citations omitted).

Under either test, Malkan’s claims accrued no later than August 28, 2008, when SUNY-

Buffalo informed Malkan that it was terminating his contract. Compl. ¶ 42. At that point, Malkan

knew all of the facts that form the basis of his claims. Id. He knew, for example, that (on Malkan’s

theory) Standard 405(c) supposedly required SUNY-Buffalo to offer clinical faculty

presumptively renewable contracts, that the Law School was declining to renew his contract

“without any consultation, deliberation, or recommendation by the faculty,” and that the Law

School was accredited by the ABA. Id. Because these are the same facts alleged in the Complaint,

in August 2008 Malkan had all the knowledge needed to bring claims against the ABA, and a

timely claim would have had to have been filed no later than August 2013.

CONCLUSION

For these reasons, the ABA requests that the Court dismiss Plaintiff’s Complaint for lack

of subject matter jurisdiction under Rule 12(b)(1), or, alternatively to dismiss the Complaint for

failure to state a claim under Rule 12(b)(6).

7
Illinois’s statute of limitations applies to Malkan’s claims. Heiman, 902 F.3d at 718. Illinois law “borrows”
another state’s statute of limitations “[w]hen a cause of action has arisen in a state or territory out of th[e]
State.” 735 ILCS 5/13-210. But the borrowing statute does not apply here because the ABA is a resident of
Illinois. Ko v. Eljer Indus., Inc., 678 N.E.2d 641, 646 (Ill. App. Ct. 1997) (citation omitted) (noting statute
only applies where none of the parties are Illinois residents); Compl. ¶ 16. And even if it did, Malkan’s
claims are untimely under New York’s six-year statute of limitations. N.Y. C.P.L.R. § 213 (McKinney).

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Dated: February 18, 2019 Respectfully submitted,

By: /s/ Benjamin I. Friedman

Tacy F. Flint
Steven J. Horowitz
Benjamin I. Friedman
SIDLEY AUSTIN LLP
One South Dearborn Street
Chicago, Illinois 60603
(312) 853-7000
(312) 853 7063 (Fax)
tflint@sidley.com
shorowitz@sidley.com
benjamin.friedman@sidley.com

Attorneys for Defendants American Bar

Association; Council of the Section of Legal
Education and Admissions to the Bar,
American Bar Association; and
Accreditation Committee of the Section of
Legal Education and Admission, American
Bar Association.

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CERTIFICATE OF SERVICE

I hereby certify that on February 18, 2019, I electronically filed the foregoing document

with the clerk of the court for the Northern District of Illinois, Eastern Division, using the

electronic case filing system of the court. The electronic case filing system sent a “Notice of E-

Filing” to Plaintiff, who is proceeding pro se.

/s/ Benjamin I. Friedman

Benjamin I. Friedman

17