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Stubbs v. Gerken: Yale Law's Motion To Dismiss
These two students might have been treated horribly by the law school—but whether they can win their lawsuit is a separate question.
One of the first things law students learn in Torts is that not everything that’s wrong or bad is actionable, i.e., something you can sue over. The definition of a “tort,” after all, is “a legal wrong.” Something might be unethical, immoral, or shady—but if it’s not proscribed by law, there’s no liability.
I was reminded of this while reading Yale Law School’s motion to dismiss in Stubbs v. Gerken, the lawsuit that two Yale law students filed in Connecticut federal court against the school and three administrators. The students might have been treated horribly by YLS administrators, as their complaint alleges. But whether they can win damages against Yale in a lawsuit is a different question, as the motion makes clear.
So let’s turn to the lawsuit itself. When it was filed in November 2021, it was captioned Doe v. Gerken, because the two students were seeking to proceed under pseudonyms. As predicted by Professor Eugene Volokh, an expert on pseudonymity in litigation, the plaintiffs’ motion to use pseudonyms was denied. So the students filed a Second Amended Complaint under their own names, Sierra Stubbs and Gavin Jackson, which also includes additional allegations. (As I told the Yale Daily News, the denial of pseudonymity doesn’t say much about Judge Sarah Merriam’s views on the merits of the suit, since this was really a separate, procedural issue.)
Stubbs and Jackson are suing Yale Law School; its recently reappointed dean, Heather Gerken; and the two administrators who previously played starring roles in the Trap House-gate email scandal, associate dean Ellen Cosgrove and diversity director Yaseen Eldik. The plaintiffs allege that the defendants “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”—specifically, Professor Amy Chua, investigated for the Dinner Party-gate scandal. In their 22-page complaint, the plaintiffs allege retaliation, tortious business interference, defamation, and related claims.
What do the defendants have to say for themselves? Let’s look at their motion to dismiss (with thanks to Professor Volokh for flagging it). The motion was filed on Monday by Jonathan Freiman and Paul Tuchmann, two leading litigators in Connecticut who are partners at Wiggin & Dana, one of the top law firms in the state.1
As you’d expect from lawyers like Freiman and Tuchmann and a firm like Wiggin & Dana, the brief is very well done. What I like about it most is that it doesn’t overplay its hand, as so many briefs do. For example, here’s their first footnote (p. 1, citation omitted):
Defendants view the case as meritless and many of the factual allegations as flatly wrong, but sufficiently detailed factual allegations in a complaint must be treated as true on a motion to dismiss. The allegations that Defendants would dispute if the case survived this motion range from the broad (e.g., allegations of efforts to “blackball” students or “retaliate” against them) to the particular (e.g., allegations that Cosgrove ever met or even talked with the Professor about Plaintiffs).
This is a good footnote because it recognizes that on a motion to dismiss, everything in the complaint must be treated as true. It’s acknowledging something the other side has in its favor, which increases Freiman and Tuchmann’s credibility with the court. At the same time, the footnote concedes nothing on the facts and actually sets the stage for fighting on that front later, noting that the defendants dispute the factual account of the plaintiffs in both its broad contours and its tiny particulars.
Now let’s look at the individual causes of action and how the motion responds to them. First up is the plaintiffs’ claim that Yale breached its contract with them. Once again, the motion acknowledges what is in the plaintiffs’ favor, conceding that “[n]umerous courts have found that university student handbooks represent enforceable contracts ‘between the school and its active students’” (p. 8).
Less skillful lawyers might have tried to fight this point, but Freiman and Tuchmann are smart enough to pick their battles. Conceding that violating a university policy can in theory breach a contract, they argue that this particular contract claim should be dismissed (pp. 10-11, citations omitted, emphasis in original):
It is not surprising that Plaintiffs did not attach a copy of the Policy—which is publicly available to them or anyone visiting Yale’s website—to the SAC [Second Amended Complaint]. If they had, it would have been obvious that their breach of contract claim fails for three reasons.
First, the Policy was not in effect when the events they complain of took place. Second, they do not allege that they ever ‘reported a concern, filed a complaint, and/or participated in an investigation pursuant to this policy,” i.e., the Policy Against Discrimination and Harassment based on specifically defined protected characteristics. Third, they do not allege that they ‘reported a concern, filed a complaint, and/or participated in an investigation’ concerning discrimination or harassment.”
On the first point, the motion argues that the policy went into effect on August 1, 2021, while the events at issue took place between February 2021 and April 2021.
On the second and third points, the complaint mentions that Sierra Stubbs is African American, Gavin Jackson is Asian American, and Professor Amy Chua is a professor of color. But the defendant’s motion argues that the investigation and complaints at issue here had nothing to do with the racial or ethnic backgrounds of Stubbs, Jackson, and Chua—i.e., their being persons of color is just a coincidence—and so the policy doesn’t apply.
The second cause of action is promissory estoppel. The defendants argue that the “promissory estoppel claim fails because it impermissibly duplicates their breach of contract claim” (p. 16). This is not terribly exciting. The complaint includes a promissory estoppel claim as a fallback position in case the contract claim fails, and the defendants are basically arguing that if the contract claim doesn’t fly, the promissory estoppel claim shouldn’t either.
The third cause of action is tortious interference with prospective business relationships. The plaintiffs claim that the defendants interfered with their (1) landing positions as teaching assistants with a prominent professor (whom we know to be Paul Kahn), and (2) securing judicial clerkships (with unidentified judges). Regarding Professor Kahn, the defendants argue that the plaintiffs “have not adequately alleged they suffered actual loss,” i.e., the plaintiffs don’t allege that Kahn didn’t extend offers to them to serve as teaching assistants (and the motion alludes to a Yale Daily News article reporting that Stubbs was in fact offered a TA job with Kahn, but declined it). Regarding the judges, the defendants argue that the plaintiffs fail to identify a specific relationship with a specific judge that was interfered with by the defendants.
The fourth cause of action is defamation, i.e., that the defendants “shared and stated numerous false statements defaming Sierra and Gavin to third parties.” The response of the defendants: “Both theories fail because Plaintiffs complain of non-actionable opinions, not facts.”
I’m not so sure about this “opinions versus facts” argument. The defendants argue that Deans Gerken and Cosgrove shared with Professor Kahn their “belief” that Stubbs and Jackson told lies in the Chua investigation, and such beliefs “are textbook opinion statements, not statements of fact.” I admit I haven’t dived into the case law, but it seems odd to me that you can get out of a defamation claim by saying you were just sharing a “belief” when your “belief” pertained to statements of fact.
If I write a story in which I falsely claim that X committed murder and describe how X supposedly committed the murder, but I actually know that X did not commit murder, can I really escape liability by saying I was just sharing my “belief” or “opinion” that X committed murder? I have my doubts.
The fifth and sixth causes of action, unreasonable publicity and false light, are similar to the defamation claim. The defendants argue that (1) “Plaintiffs do not allege that Defendants shared the [allegedly defamatory'] ‘dossier’ with more than one person” (Professor Kahn); (2) “the contents of the ‘dossier’ were not private when shared” (because they were already all over the law school); and (3) “the unreasonable publicity claim also fails because the contents of the ‘dossier’ have attracted great public interest” (pp. 28-32).2
The seventh and final cause of action is intentional infliction of emotional distress (“IIED”). The defendants argue that “Plaintiffs’ claim fails for two separate reasons: it does not allege that Gerken and Cosgrove engaged in ‘extreme and outrageous’ conduct, or that Plaintiffs have suffered ‘severe’ emotional distress.” I don’t have much to say about this claim, other than to note how we all recall from the bar exam that IIED claims are notoriously difficult to win. My guess is that the plaintiffs’ lawyer— John Balestriere, a smart and thorough lawyer—included this count as a fallback option or catchall claim. But this case will probably be decided based on one of the other counts.
So there you have it: a detailed breakdown of the defendants’ motion to dismiss in Stubbs v. Gerken. It’s a well-executed motion, and I suspect that it will result in dismissal of at least some of the claims in the case. If the allegations of the complaint are true, Sierra Stubbs and Gavin Jackson were subjected to some pretty s**tty treatment from YLS administrators. But as I mentioned at the start of this post, not everything s**tty is actionable.
That said, I suspect that at least some causes of action, perhaps the defamation and defamation-adjacent claims, will make it past the motion-to-dismiss stage. If that happens, Stubbs and Jackson will get to conduct discovery. This would likely involve getting emails and texts from Heather Gerken, Ellen Cosgrove, and Yaseen Eldik, as well as taking their depositions—which wouldn’t be fun for them or for YLS.
So if Judge Merriam dismisses some but not all of the claims, don’t be surprised to see Yale Law School settle the case. Settling after losing your motion to dismiss but before the start of discovery is quite common. See, e.g., Prince Andrew’s settlement this week of Virginia Giuffre’s lawsuit accusing him of sexual abuse. And I don’t think Yale Law School wants this soap opera to be renewed for a second season.
For profiles of Freiman and Tuchmann, see Law360. Freiman is a YLS alum himself, as is John Balestriere, lead counsel to the plaintiffs, so this case has YLS all over it. Tuchmann is a Harvard Law School graduate and former assistant U.S. attorney (E.D.N.Y.).
I reached out to both Yale Law’s spokesperson and John Balestriere to see if either had comment on the motion to dismiss. YLS said it had nothing to add to its earlier statement, which called the lawsuit “legally and factually baseless.” Balestriere told me, “We are confident that our clients have pleaded claims which should proceed to trial, and we look forward to litigating the motion.”
On the third point, the defendants cite to this post of mine in giving examples of public interest in the “dossier.” Thanks for the shout-out, gents! (If your recollection needs refreshing about what the “dossier” was all about, I refer you to my earlier story, All About Amy (Chua), The Law Professor We Can't Stop Talking About.)