The ABA’s move to consolidate three lawsuits against it over its accreditation standards for law schools was nixed by Aug. 1 but the decision wasn’t surprising, scholars and a prominent complex litigation attorney familiar with the process told Bloomberg Law.
The Judicial Panel on Multidistrict Litigation has been more rigorous in recent years to ensure the objectives of the multidistrict litigation statute will be promoted by granting a petition for consolidation, especially when only two or three cases are involved, Elizabeth Cabraser, partner at Lieff Cabraser Heimann & Bernstein, LLP, who has served as lead counsel in many MDLs, told Bloomberg Law.
Cabraser said the JPML views MDL treatment as a “last, rather than first resort,” and encourages counsel to utilize informal coordination methods first, including coordination of discovery and change of venue motions.
The point of multidistrict litigation is to achieve efficiencies, which can be done with three cases without consolidation, J. Maria Glover, a professor at Georgetown Law School in Washington, told Bloomberg Law.
Three for-profit law schools sued the ABA separately this spring after the ABA found the schools didn’t comply with its accreditation standards. The schools alleged its law school accreditation standards are arbitrary and violate due process.
The ABA moved to consolidate the cases at the end of May in the U.S. District Court for the Western District of North Carolina.
It argued that if the cases aren’t consolidated, there’s “a substantial risk of inconsistent rulings on key issues.”
The schools are Florida Coastal School of Law, now-shuttered Charlotte School of Law, and Arizona Summit Law School. They form a consortium run by the Infilaw System. The ABA is the official accrediting body for law schools.
The JPML ruling said that although the actions involve “nearly identical legal challenges” and share factual questions, there are only three cases with the same attorneys.
It’s quite possible for the attorneys for both parties to cooperate in this situation, Glover said.
The ruling makes sense, Derek Muller, a professor at Pepperdine School of Law, told Bloomberg Law.
There isn’t much discovery in these cases and “existing trial management techniques are enough” to manage the cases, he said.
The JPML said that the courts involved can order the parties to coordinate pretrial activities.
The ABA said in a statement that its attorneys are reviewing the order but that it had no further comment. It is represented by Sidley Austin.
The schools are represented by Kirkland & Ellis.
“The law schools are pleased that the six judges of the MDL Panel saw no merit in the ABA’s request to consolidate the actions,” H. Christopher Bartolomucci, one of the attorneys representing the schools, told Bloomberg Law in an email.
Former Solicitor General and Supreme Court veteran Paul D. Clement is another Kirkland attorney on the case.
The ruling comes at a time of change for the ABA. The group is considering changes to its accreditation committee and standards. It will also vote on whether to end requirements that accredited law schools use admissions tests as a factor for admission.
The ABA is also facing financial challenges amid declining membership and resulting budget woes. It is undertaking an administrative overhaul as a result.
The case is In re ABA Law Sch. Accreditation Litig., J.P.M.L., MDL No. 2855, 8/1/18.
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(Updated with additional comments)