Yale's Motion to Dismiss the Yale Law School DinnerPartyGate Lawsuit

I wrote about the Complaint in November, and included this excerpt (which is of course just the plaintiffs' side of the story):

[1.] Two Yale Law School deans, along with Yale Law School's Director of Diversity, Equity & Inclusion, worked together in an attempt to blackball two students of color from job opportunities as retaliation for refusing to lie to support the University's investigation into a professor of color.

[2.] Gerken, Yale Law School's Dean, and Cosgrove, the Associate Dean, approached an esteemed law professor and expert in constitutional law, and discouraged the professor—who already employed Jane and John as long-term research assistants—from hiring Jane and John as so-called "Coker Fellows," prestigious teaching assistant positions that often lead to federal clerkships and other lucrative career opportunities.

[3.] Defendants Gerken and Cosgrove approached the professor as retaliation for Plaintiffs Jane and John's reporting a harassing and defamatory report (the "Dossier"), which was compiled and circulated by another law student and related to Plaintiffs' private interactions with a high-profile Yale Law School Professor, Amy Chua ….

[4.] The Dossier, which Defendants disseminated, placed Jane and John at the center of an ongoing campus-politics feud between Gerken and Chua.

[5.] When Plaintiffs reported the Dossier to the University, Defendants Cosgrove and Eldik pressured Jane and John to make knowingly and materially false statements in a formal complaint against Chua.

[6.] When Plaintiffs refused, Gerken and Cosgrove retaliated by speaking with the professor and telling him that he should not hire Jane and John because of their "lack of candor," despite Plaintiffs' steadfast refusal to lie to further the University's crusade against Chua.

[7.] Not only did Gerken and Cosgrove harm Plaintiffs by knowingly circulating a document full of lies to Plaintiffs' employer and professor, but they also violated the University's Policy Against Discrimination and Harassment (the "Handbook")—by its own terms a binding contract on all members of Yale's community—whereby the administration is explicitly prohibited from retaliating against students who report a concern, file a complaint, and/or participate in an investigation….

(You can also read the currently operative Second Amended Complaint.) The Motion to Dismiss (in the case now called Stubbs v. Gerken) has just been filed, so I thought I'd quote its summary of argument—you can of course read the full motion for more:

The Yale anti-retaliation policy on which Plaintiffs base their breach of contract claim [and their promissory estoppel claim] was not yet even in effect when Plaintiffs allege they were retaliated against, and in any event the policy prohibits retaliation based on complaints of discrimination or harassment related to protected characteristics (such as race or gender), not on any conceivable sort of alleged retaliation….

Their tortious interference claim fails because they do not allege any specific business relationships they had with professors or judges—except for their relationship with the Professor, and as to him, they do not allege that he did not extend teaching assistant offers to them.

The defamation claim against Gerken and Cosgrove fails because Plaintiffs allege  statements of opinion, and their defamation claim relating to Bell's statements likewise relies on opinion statements—and opinions offered by a professor not alleged to have been part of the school's administration or in any other way acting in furtherance of her employer when she commented as a law professor on a lawsuit.

Plaintiffs' unreasonable publicity and false light claims fail because they do not allege Defendants ever publicized the already very-public "dossier," which they admit has attracted significant public interest.

Finally, the IIED claim fails because it does not allege extreme and outrageous conduct causing severe emotional distress.

Comments

[DaivdBehar]

Yale Law is a treason indoctrination camp. Defund it. De-accredit it. Shut it down. Seize its assets in civil forfeiture.

[DaivdBehar]

The Dean and endowed chairs are part of the lawyer hierarchy. Arrest them. Try them an hour. The sole evidence would be their legal utterances. Shoot them in the court basement after reading of the verdict, guilty of treason. I think that is reasonable.

[DaivdBehar]

They are indoctrinating students into a cult criminal enterprise. They have supernatural beliefs, which are blatantly false. They use these doctrines to take $trillion from us and return nothing of interest. They believe in mind reading, in forecasting, in standard of conduct set by a fictitious character. They are ridiculous in their scam.

[Noscitur a sociis]

Prof. Volokh, what’s your sense of the current standard of discourse in the comments sections the blog?

[Eugene Volokh]

I’ve ended up muting several commenters, and I generally like what’s left.

[DaivdBehar]

Volokh is a denier of the supernatural doctrines of the law, mind reading, forecasting, and standards set by a fictitious character. These are not legal in our secular nation. He is not stupid. He is worse, a denier, a denier in the service of rent seeking, a crime like armed robbery.

[TwelveInchPianist]

Kinda like cussing out somebody wearing headphones?

[I Callahan]

I think you can safely assume you’re one of those who’s blocked.

[the new guy]

I just came here to say muting certain commenters makes reading so much better.

[Noscitur a sociis]

My inquiry was prompted by several comments which have since been deleted.

[ducksalad]

Seems like there is a limit here after all. The missing ones had some specific calls for violence. But still, given the commenter and over-the-top tone, nothing one could imagine as a true threat.

[Eugene Volokh]

I very rarely delete comments, especially now that I’ve blocked some commenters and don’t generally even see their comments. But, generally speaking, I do that when they involve vulgar insults (especially of fellow commenters), or calls for murder used as invective — not because they are true threats of violence (they are obvious hyperbole), but because they tend to poison the conversation.

[DaivdBehar]

If you think the comments are a nuisance, what do you think about the legal profession, a toxic occupation 10 times more damaging than organized crime?

[Number 2]

Two quick observations about the second amended complaint, is if I have nothing better to do with my time:

First, I detect a flaw in the pleadings. A corporation is deemed to reside in the state of incorporation, not the state in which it may be located. In pleading diversity, the plaintiffs pled the state in which Yale is located, but not the state of incorporation. In many federal courts, that flaw would be sufficient for the court to hold that diversity was not sufficiently pled.

Second, I wonder why Dossier Boy was not named as a defendant. His false allegations about the plaintiffs are arguably defamation, and his illegal recording of their phone conversations, a crime under Connecticut law, is arguably an invasion of privacy. And does anyone know whether Yale Law school, with its purported emphasis on character, has taken any corrective action against Dossier Boy For his illegal, criminal act?

[Noscitur a sociis]

and his illegal recording of their phone conversations, a crime under Connecticut law,

What crime is that?

[Number 2]

It is my understanding that Connecticut law does not permit the one-sided recording of a telephone call. All parties must consent to the recording.

[John F. Carr]

I haven’t been following the details and I don’t remember the alleged circumstances. For non-LEO types the applicable law is chapter 952 sections 53a-187 and 53a-189, which prohibit intercepting or mechanical eavesdropping of a call “by a person other than a sender or receiver thereof, without the consent of either the sender or receiver”.

[Number 2]

Then I may have been misinformed about Connecticut law.

[Number 2]

OK, this come from the website of the Woolf Law Firm, East Hartford, Connecticut, April 2020:

“In Connecticut, the legality of a recording depends on the circumstances of the situation. When recording an in-person conversation in which the parties are physically present in the same location, only one person needs to be aware of and consent to the recording. If none of the parties are aware of the recording, the person making the recording could be charged with eavesdropping, which is a Class D felony. Connecticut Class D felonies can result in up to five years in prison and up to $5,000 in fines.

When recording a telephone conversation, all parties need to be aware that the recording is happening. If all parties are not aware of and consent to a recording, the person making the recording could be charged with eavesdropping. Notably, the charge of eavesdropping does not apply to “wiretapping” by police officers or other law enforcement officials that is done as part of the lawful performance of their duties.“

So all parties to a telephone call need to be aware and consent to the recording. My comment about dossier boy stands.

[Noscitur a sociis]

You’re usually better off looking at the text of the actual law than SEO optimization filler from a two-bit law firm.

[Number 2]

You are right.

Here is the answer: CT Gen. Stat. 52-570d(a) makes it unlawful for an oral private telephonic communication to be recorded absent consent of all parties either in writing or obtained at the start of the recording, or absent a verbal notification recorded at the beginning of the communication by the recording party, or absent an automatic tone warning device automatically producing a distinct signal repeated at intervals of approximately 15 seconds during the communication.

However, I was wrong about this being a crime; it is a civil violation that can be remedied by a private party through a civil action.

I have invested far too much time in this.

[bernard11]

Is it possible all these people are insane?

[gormadoc]

“the policy prohibits retaliation based on complaints of discrimination or harassment related to protected characteristics”
That is a surprisingly narrow anti-retaliation policy.

[John F. Carr]

I thought it was standard. You can’t punish somebody for being/doing X and you can’t punish somebody for complaining that he was punished for being/doing X.