Massachusetts School of Law at Andover, Inc. v. American Bar Ass'n

Opinions of the United

1997 Decisions States Court of Appeals

for the Third Circuit

2-28-1997

MA Sch of Law v. Amer Bar Assn

Precedential or Non-Precedential:

Docket 96-1792

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-1792

MASSACHUSETTS SCHOOL OF LAW AT ANDOVER, INC.

v.

AMERICAN BAR ASSOCIATION; LAW SCHOOL ADMISSION

SERVICES, INC.; LAW SCHOOL ADMISSION COUNCIL;

THE ASSOCIATION OF AMERICAN LAW SCHOOLS, INC.;

JAMES P. WHITE; NINA APPEL; JOSE R. GARCIA-PEDROSA;

LAURA N. GASAWAY; FREDERICK M. HART; RUDOLPH C. HASL;

CARL C. MONK; R. W. NAHSTOLL; HENRY RAMSEY, JR.;

NORMAN REDLICH; JOHN E. RYAN; GORDON D. SCHABER;

PAULINE SCHNEIDER; STEVEN R. SMITH; CLAUDE R. SOWLE;

ROBERT A. STEIN; RENNARD STRICKLAND; ROY T. STUCKEY;

LEIGH H. TAYLOR; FRANK K. WALWER; SHARP WHITMORE;

PETER A. WINOGRAD

Massachusetts School of

Law at Andover, Inc.

("MSL"),

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 93-06206)

Argued December 10, 1996

BEFORE: BECKER, MANSMANN, and GREENBERG, Circuit Judges

(Filed: February 28, 1997)

Michael M. Baylson (argued)

Elise E. Singer

Edward G. Beister, III

Melissa H. Maxman

Duane, Morris & Heckscher

4200 One Liberty Place

Philadelphia, PA 19103-7396

Lawrence R. Velvel (argued)

Michael L. Coyne

Constance L. Rudnick

1

Peter M. Malaguti

Massachusetts School of Law at

Andover

500 Federal Street

Andover, MA 01810

Attorneys for Appellant

David T. Pritikin (argued)

Jeffrey H. Dean

David R. Stewart

Sidley & Austin

One First National Plaza

Chicago, IL 60603

Barbara W. Mather

L. Suzanne Forbis

Pepper, Hamilton & Scheetz

18th & Arch Streets

3000 Two Logan Square

Philadelphia, PA 19103-2799

Attorneys for Appellees

American Bar Association

James P. White, Nina

Appel, Jose R. Garcia-

Pedrosa, R.W. Nahstoll,

Henry Ramsey, Jr., Norman

Redlich, John E. Ryan,

Gordon D. Schaber,

Pauline Schneider,

Steven R. Smith, Claude

R. Sowle, Robert A.

Stein, Rennard

Strickland, Roy T.

Stucky, Leigh H.

Taylor, Frank K. Walwer,

Sharp, Whitmore, and

Peter A. Winograd

Mark P. Edward (argued)

Morgan, Lewis & Bockius

2000 One Logan Square

Philadelphia, PA 19103

Attorneys for Appellees

Law School Admission

Services, Inc. and Law

2

School Admission Council

Robert A. Burgoyne

(argued)

Stephen M. McNabb

Fulbright & Jaworski

801 Pennsylvania Avenue,

N.W.

Washington, DC 20004

Attorneys for Appellees

The Association of

American Law Schools,

Inc. and Carl C. Monk

Joel I. Klein

Acting Assistant Attorney

General

A. Douglas Melamed

Deputy Assistant Attorney

General

Catherine G. O'Sullivan

Andrea Limmer

Marion L. Jetton

Attorneys

Department of Justice

950 Pennsylvania Ave. N.W.

Washington, D.C. 20530-0001

Attorneys for United

States as Amicus Curiae

OPINION OF THE COURT

GREENBERG, Circuit Judge.

This case is before this court on appeal from an order

of the district court granting summary judgment on all counts to

the appellees in this antitrust action brought against them by

3

the Massachusetts School of Law at Andover, Inc. (“MSL”). The

district court had jurisdiction under 28 U.S.C. §§ 1331 and 1337,

and this Court has jurisdiction under 28 U.S.C. § 1291. This

appeal principally presents a number of questions regarding the

scope of immunities from the antitrust laws and related antitrust

discovery issues. An examination of the parties and conduct in

question is first necessary.

I. FACTUAL AND PROCEDURAL HISTORY

A. The Parties

MSL has been operating a law school in Massachusetts

since 1988. The Board of Regents of Massachusetts authorized MSL

to grant the J.D. degree in 1990. This authority allowed MSL's

graduates to take several bar examinations, including that in

Massachusetts. MSL has the stated policy of providing low-cost

but high quality legal education and attracting mid-life, working

class, and minority students. MSL facilitates this policy with

its admissions procedure and a tuition of $9,000 per year. Many

of MSL's policies and practices conflict with American Bar

Association ("ABA") accreditation standards, and MSL aggressively

has sought changes in those standards.

The ABA, a national professional organization of

attorneys whose membership is open to members of any bar in the

United States, has been concerned with legal education and bar

admissions throughout its history. In 1921, through its Section

of Legal Education and Admissions to the Bar (the “Section”), the

ABA first developed standards of accreditation for legal

4

education programs. The ABA petitioned state supreme courts to

rely on its accreditation decisions in connection with bar

admission decisions. Now, all 50 states and the District of

Columbia consider graduation from an ABA-accredited law school

sufficient for the legal education requirement of bar admission.

App. at 1396-1409. The United States Secretary of Education

considers the Council of the Section to be the national agency

for accreditation of professional schools of law and a reliable

authority concerning the quality of legal education. App. at

3378. The ABA informs the states of its accreditation decisions

and annually sends them the Review of Legal Education in the

United States, the ABA accreditation standards, and any proposed

revisions of the standards. During the period at issue, there

were 177 ABA-accredited law schools in the United States and over

50 unaccredited schools with some form of state approval such as

MSL enjoys. The ABA consistently has opposed attempts to change

or waive bar admission rules to allow graduates of schools not

accredited by the ABA to take the bar examination. See, e.g.,

app. at 3623-53.

Many states have methods of satisfying the legal

education requirement other than graduation from an ABA-

accredited school. These methods include legal apprenticeship,

practice in another state, and graduation from a school approved

by the American Association of Law Schools (“AALS”) or a state

agency. The AALS is an association of 160 law schools which

serves as a learned society for law schools and legal faculty and

as a representative of the law school community with the federal

5

government and other education organizations. Furthermore, in

every state, a bar applicant or law school can petition the bar

admission authority for revision or waiver of the rules. MSL won

a waiver of New Hampshire's rules to allow its graduates to take

the bar in 1995, and has filed petitions seeking similar relief

in Connecticut, Maine, New York, and Rhode Island. Maryland and

Washington, D.C. have granted petitions of graduates of MSL to

take the bar. MSL graduates can take the bar examination

immediately after graduation in California, Massachusetts, New

Hampshire, Vermont and West Virginia, and in 12 other states

after practicing in another state first.

The ABA allows graduates of non-accredited schools to

join the ABA once they are admitted to a bar and does not

prohibit its members from hiring or otherwise dealing with

graduates of such schools. The ABA does not prevent its members

from teaching at non-ABA-accredited schools, but it does not

allow its accredited schools to let students transfer credits

from unaccredited schools or to accept graduates of unaccredited

schools into graduate programs.

ABA accreditation is open to any law school that

applies and meets the ABA standards. The ABA grants provisional

accreditation to schools that substantially comply with its

standards and promise to comply fully within three years. An

Accreditation Committee makes an initial evaluation of a school

for provisional accreditation and gives a recommendation to the

Council of the Section. The Council then makes a recommendation

6

to the ABA House of Delegates, which has the ultimate decision-

making authority.

A law school must have been teaching students for five

years and graduated three classes to be eligible for AALS

membership. The AALS holds an annual meeting, professional

conferences and workshops,1 and publishes the Journal of Legal

Education. All of its current members are ABA-accredited, but

accreditation is neither necessary nor sufficient for membership

approval. The AALS accredits schools in the sense that it

determines whether a school meets its membership requirements,

but it has accreditation standards and procedures separate from

those of the ABA. The AALS conducts a site visit, independently

of the ABA, when a school applies for membership, and it conducts

periodic visits after membership, usually jointly with the ABA if

the school is ABA-accredited. The AALS is not involved with site

inspections for provisional ABA accreditation, such as the one

the ABA undertook at MSL.

The Law School Admissions Council, Inc. (“LSAC”) is the

successor organization to the Law School Admission Council and

Law School Admission Services, Inc. The LSAC, as have its

predecessors, administers the Law School Admissions Test

(“LSAT”). The LSAC is not affiliated formally with either the

ABA or the AALS and does not participate in the ABA accreditation

process. Membership in the LSAC is open to any United States law

1. The AALS does not prohibit non-members from

attending these conferences, and representatives of MSL have

attended them, even though MSL is not a member and never has

applied for membership. App. at 2279-80.

7

school that (1) requires that “substantially all of its

applicants for admission take the Law School Admission Test,” and

(2) is ABA-accredited or an AALS member. App. at 2552. MSL does

not require the LSAT, never has applied for AALS membership, and

is not ABA-accredited, so thus is not eligible for LSAC

membership.

In addition to administering the LSAT, the LSAC

performs a number of other services. The Candidate Referral

Service (“CRS”) provides lists of names and addresses of people

who have taken the LSAT. Use of the CRS is open to any school

which has degree granting authority from a state, regardless of

LSAC membership or ABA accreditation, and MSL has made use of

this service. App. at 2410-12, 2511-12, 2427-29. The Law School

Data Assembly Service (“LSDAS”) provides a summary of a law

school applicant's college record and LSAT score. LSDAS is also

open to all schools and has been used by MSL. App. at 2410-12.

The LSAC publishes a handbook, The Official Guide to U.S. Law

Schools, with a two-page description of each United States LSAC

member school, and two appendices with the names and addresses of

Canadian LSAC members and unaccredited United States law schools,

including MSL, known to the LSAC. The LSAC also sponsors

regional recruiting forums for law school applicants and

conferences of pre-law advisors which are only open to LSAC

members.

B. The Complaint

MSL applied for provisional ABA accreditation during

the fall of 1992 and early 1993. MSL never claimed it was or

8

would be in compliance with ABA standards, but instead asked for

a waiver under Standard 802 which allows the Council to grant

variances from the standards. Following the established process,

a seven-member site evaluation team appointed by and representing

only the ABA visited MSL and then prepared a 76-page report which

was sent to MSL. MSL sent a 90-page response to the site team

report.

The Accreditation Committee, after reviewing the site

report and the MSL materials, and hearing a presentation from six

MSL representatives, recommended denial of MSL's accreditation

application because it did not meet the ABA requirements. The

Committee also recommended denial of the waiver request. In a

letter to MSL explaining its denial recommendation, the Committee

listed 11 areas where MSL failed to comply with ABA standards.

App. at 837-48. These areas included the high student/faculty

ratio, over reliance on part-time faculty, the heavy teaching

load of full-time faculty, the lack of adequate sabbaticals for

faculty, the use of a for-credit bar review class, the failure to

limit the hours students may be employed, and the failure to use

the LSAT or give evidence validating its own admission test.2

App. at 845-46. The body of the letter discussed the inadequacy

of MSL's law library, but the letter did not cite that inadequacy

as one of the reasons for the denial recommendation. App. at

842-43; see app. at 845-46. The letter did not discuss the

2. MSL challenged all these standards, as well as

standards on faculty salaries and law libraries, in its antitrust

complaint.

9

salaries of MSL's faculty. Invoking ABA procedures, MSL appealed

but, after a full review at which MSL had the opportunity to make

a presentation, the denial of accreditation was upheld on

February 8, 1994.

MSL filed this action on November 23, 1993, alleging

that the ABA, AALS, LSAC, and 22 individuals combined and

conspired to organize and enforce a group boycott in violation of

section 1 of the Sherman Act and conspired to monopolize legal

education, law school accreditation, and the licensing of

lawyers, in violation of section 2 of the Sherman Act. 15 U.S.C.

§§ 1-2. The complaint basically alleged that the appellees

conspired to enforce the ABA's anticompetitive accreditation

standards by: (1) fixing the price of faculty salaries; (2)

requiring reduced teaching hours and non-teaching duties; (3)

requiring paid sabbaticals; (4) forcing the hiring of more

professors in order to lower student/faculty ratios; (5) limiting

the use of adjunct professors; (6) prohibiting the use of

required or for-credit bar review courses; (7) forcing schools to

limit the number of hours students could work; (8) prohibiting

ABA-accredited schools from accepting credit transfers from

unaccredited schools and from enrolling graduates of unaccredited

schools in graduate programs; (9) requiring more expensive and

elaborate physical and library facilities; and (10) requiring

schools to use the LSAT.3 MSL alleged that enforcement of these

3. MSL alleges that a self-interested cabal of legal

educators who enforce the allegedly anti-competitive criteria to

their own advantage has "captured" the ABA accreditation process.

10

anticompetitive criteria led to the denial of its application for

provisional accreditation and caused MSL to suffer a “loss of

prestige” and direct economic damage in the form of declining

enrollments4 and tuition revenue.

After MSL filed its complaint, the Antitrust Division

of the United States Department of Justice (“DOJ”) began an

investigation of the ABA's accreditation process and on June 27,

1995, filed suit against the ABA in the United States District

Court for the District of Columbia alleging violations of section

1 of the Sherman Act. The ABA entered into a consent decree with

the DOJ on June 25, 1996, settling that case.

After a period of discovery under Rule of Reason

standards, the district court granted the appellees summary

judgment on both counts. The court held MSL did not suffer a

cognizable antitrust injury; any disadvantage it incurred was

attributable to the decision by the individual states to preclude

graduates of unaccredited schools from taking bar examinations,

and such injury “cannot be the basis for antitrust liability”

under Eastern R.R. Presidents Conference v. Noerr Motor Freight,

Inc., 365 U.S. 127, 81 S.Ct. 523 (1961). Massachusetts School of

Law v. American Bar Ass'n, 937 F. Supp. 435, 441 (E.D. Pa. 1996).

The court also held that to the extent that the unaccredited

status creates a stigma which injures MSL, Noerr precludes

recovery for the injury because it is “incidental to the primary,

4. MSL says that its entering classes are now only 40%

of what they were before the denial of accreditation. MSL br. at

4.

11

protected injury resulting from governmental decisions to

preclude MSL graduates from taking certain bar examinations.”

Id. at 442. In the alternative, the court held that even if the

stigmatic injury were not incidental to Noerr-protected conduct,

the claim still would fail because the ABA has done nothing more

than express its opinion, which is speech protected by the First

Amendment, and not conduct for which there can be antitrust

liability. Id. at 442-46.

MSL appeals from the order for summary judgment and a

number of prior orders related to discovery, the dismissal of the

individual appellees for lack of personal jurisdiction, the

denial of a motion to recuse Judge Ditter, and the

disqualification of MSL's inside counsel. The DOJ has filed an

amicus brief arguing that the district court erred in holding

that any stigmatic injury from non-accredited status was

incidental to a Noerr-protected injury to the extent that there

was no actual petitioning of government in this case. The DOJ

also argues that the district court erred in holding that the

First Amendment immunizes anticompetitive effects brought about

through speech.

II. DISCUSSION

A. Standard of Review

We review a district court order granting summary

judgment de novo both as to factual and legal questions. Mathews

v. Lancaster Gen. Hosp., 87 F.3d 624, 632 (3d Cir. 1996);

Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998

12

F.2d 1224, 1230 (3d Cir. 1993). We review discovery orders under

an abuse of discretion standard. Wisniewski v. Johns-Manville

Corp., 812 F.2d 81, 90 (3d Cir. 1987); Marroquin-Manriquez v.

INS, 699 F.2d 129, 134 (3d Cir. 1983). As germane here, MSL has

to show that the district court's denial of discovery “made it

impossible to obtain crucial evidence, and implicit in such a

showing is proof that more diligent discovery was impossible.”

In re Fine Paper Antitrust Litig., 685 F.2d 810, 818 (3d Cir.

1982) (citation omitted). We review the district court's denial

of the motion for recusal for abuse of discretion. Blanche Road

Corp. v. Bensalem Township, 57 F.3d 253, 265 (3d Cir.), cert.

denied, 116 S.Ct. 303 (1995); United States v. Antar, 53 F.3d

568, 573 (3d Cir. 1995).

B. Discovery Issues

1. Price Fixing

MSL argues that a district court order of May 20, 1994,

which held that the ABA standards were not price fixing and per

se unlawful and that discovery would proceed under a Rule of

Reason analysis, MSL, 853 F. Supp. 837 (E.D. Pa. 1994), is

contrary to law and should be reversed. MSL contends that the

district court held in this order that “the ABA had not fixed

prices,” and that that holding is contrary to settled law. MSL

br. at 40. This argument mischaracterizes the district court's

holding. As the district court correctly noted, ABA Standard

405(a) (considering faculty salaries as part of school's ability

to attract and retain quality faculty) is somewhat vague.

Although not dispositive, the lack of a specific price floor or

13

ceiling suggests that the standard represents something other

than a classic price-fixing arrangement. MSL, 853 F. Supp. at

840. The court, however, did say that the standard was “price-

affecting,” which in many cases is sufficient for a per se

approach. Id. See United States v. Socony-Vacuum Oil Co., 310

U.S. 150, 221-24, 60 S.Ct. 811, 843-46 (1940).

The court properly then went on to consider the context

of the case. In this regard, it is significant that the ABA is a

professional society and the Supreme Court has indicated that it

has “been slow to condemn rules adopted by professional societies

as unreasonable per se,” even when the behavior resembles conduct

usually subject to a per se approach. FTC v. Indiana Fed'n of

Dentists, 476 U.S. 447, 458, 106 S.Ct. 2009, 2018 (1986) (Rule of

Reason approach even though behavior resembled group boycott);

see also National Soc'y of Prof. Eng. v. United States, 435 U.S.

679, 692-94, 98 S.Ct. 1355, 1365-66 (1978) (using Rule of Reason

analysis even though agreement affected prices); Goldfarb v.

Virginia State Bar, 421 U.S. 773, 788 n.17, 95 S.Ct. 2004, 2013

n.17 (1975) (distinguishing between practice of professions and

other business activities); United States v. Brown Univ., 5 F.3d

658, 672 (3d Cir. 1993) (Rule of Reason approach used even though

behavior resembled price fixing).

MSL nevertheless argues that the price fixing aspect of

the ABA standards has infected the entire conspiracy, justifying

a per se approach, and that the Supreme Court has discouraged

finding new exceptions to the per se standard. See FTC v.

Superior Court Trial Lawyers Ass’n, 493 U.S. 411, 428-31, 110

14

S.Ct. 768, 778-79 (1990). We, however, do not apply a new

exception to the per se approach here. Rather, the use of the

Rule of Reason is appropriate here because where “a conspiracy of

this sort is alleged in the context of a profession, the nature

and extent of [the] anticompetitive effect are too uncertain to

be amenable to per se treatment.” Wilk v. American Medical

Ass'n, 719 F.2d 207, 221 (7th Cir. 1983).

MSL also appeals the district court's July 20, 1994

discovery order which held that MSL had not been injured by the

alleged price fixing, and therefore denied discovery as to the

faculty salary standard except insofar as it related to MSL's

accreditation application. MSL, 857 F. Supp. 455 (E.D. Pa.

1994). Contrary to MSL's argument, this order did not hold as a

final matter that the alleged salary fixing had no impact on MSL.

It merely stated that "the evidence presently at hand does not

support MSL's contention that one of the reasons the ABA declined

to accredit MSL was noncompliance with the salary standard[].”

Id. at 458. The court allowed MSL to continue discovery to

ascertain whether salary was a factor in accreditation denial,

but barred broader discovery as to the development and

implementation of that standard.

MSL did find evidence that the ABA had data on its

salaries (collected as part of general fact-finding about the

school) and evidence that the ABA had warned other schools about

low salaries. Nevertheless, MSL is not able to point to any

evidence, or draw a reasonable inference, that the ABA actually

used salary as a factor in denying MSL's accreditation or that

15

the ABA's stated reasons for denying it accreditation were

pretextual. In fact, the evidence and inferences point the other

way, demonstrating that the ABA explicitly states low salaries as

a factor when it is one. Thus, we cannot find that the district

court's limitation of discovery in this manner was an abuse of

discretion.

2. Conspiracy

MSL argues that the district court denied it the

discovery necessary to prove its allegations of conspiracy. MSL

complains generally about the lack of usefulness of the materials

it did receive during discovery, but largely confines its

argument to the materials the ABA turned over to the DOJ, some

544,000 pages. MSL cites a number of cases, including Golden

Quality Ice Cream Co. v. Deerfield Speciality Papers, Inc., 87

F.R.D. 53 (E.D. Pa. 1980), for the proposition that civil

antitrust plaintiffs can obtain discovery of documents produced

for government antitrust cases. Br. at 37. In these cases,

however, the government case had begun before the civil case, and

the civil plaintiffs sought copies of the material given to the

government at the outset of discovery in their cases. See Golden

Quality, 87 F.R.D. at 59.5

In the present case, the government's investigation

began after MSL's, and MSL sought all of the documents given to

5. Further, these cases involved requests to stay the

civil proceedings until the completion of the government

investigation. See, e.g., Golden Quality, 87 F.R.D. at 55. Of

course, we recognize that the government's case against the ABA

was civil but we are using civil to mean a non-governmental case.

16

the government after the court set the confines of discovery in

MSL's case. Thus, the district court held in an order dated

August 6, 1996, that a request for all documents given to the

government was an attempt “to do an end run around” the existing

discovery framework. The court found that MSL could have

obtained all those documents which were relevant through the

existing discovery framework. See Board of Educ. of Evanston

Township v. Admiral Heating and Ventilation, Inc., 513 F. Supp.

600, 603-04 (N.D. Ill. 1981) (denying complete turnover of all

materials collected by grand jury investigation). Given the

context of this case, the court did not abuse its discretion in

this ruling.

MSL also argues that it was not given sufficient

opportunity to conduct discovery to withstand the appellees'

summary judgment motion. MSL cites several cases for the

proposition that granting summary judgment before the opposing

party has had sufficient opportunity for discovery can be

reversible error. See, e.g., Arnold Pontiac-GMC, Inc. v. General

Motors Corp., 786 F.2d 564, 568 (3d Cir. 1986); Mannington Mills,

Inc. v. Congoleum Indus., Inc., 610 F.2d 1059, 1073 (3d Cir.

1979). Br. at 4. These cases are in tension with another line

of cases which encourages the use of summary judgment in order to

avoid burdensome litigation expenses when the allegations are

theoretical or speculative. See, e.g., Pennsylvania ex. rel.

Zimmerman v. Pepsico, Inc., 836 F.2d 173, 182 (3d Cir. 1988);

Pennsylvania Dental Ass'n v. Medical Serv. Ass’n, 745 F.2d 248,

262 (3d Cir. 1984). While the present case fits neither paradigm

17

exactly, the district court, by allowing fairly extensive

discovery and then closing discovery and entertaining the summary

judgment motion, did not abuse its discretion.

C. Summary Judgment

MSL asserts three types of injury resulting from the

ABA's allegedly anticompetitive conduct. The first is that MSL

is at a competitive disadvantage in recruiting students because

graduates of unaccredited schools cannot take the bar examination

in most states. Second, MSL says that denial of accreditation

creates a stigma, independent of the bar examination issue.

Finally, MSL contends that the ABA's enforcement of its

accreditation standards injures it directly by increasing the

cost of faculty salaries and creating a boycott of unaccredited

schools.

In granting summary judgment to the appellees, the

district court held that they were not subject to antitrust

liability for MSL's principal alleged injury, a competitive

disadvantage in recruiting students, to the extent that the

decisions of the individual states to prohibit graduates of

unaccredited schools from taking their bar examinations caused

the injury. MSL, 937 F. Supp. at 441. The court based this

holding on the principles of Noerr, 365 U.S. 127, 81 S.Ct. 523.

MSL argues on appeal that the Noerr principles do not apply here

because private anti-competitive conduct is immunized only where

it is (1) clearly and affirmatively authorized by state policy,

and (2) actively supervised by the state. California Retail

Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 105,

18

100 S.Ct. 937, 943 (1980). See also FTC v. Ticor Title Ins. Co.,

504 U.S. 621, 112 S.Ct. 2169 (1992); Patrick v. Burget, 486 U.S.

94, 108 S.Ct. 1658 (1988). The DOJ, in its amicus brief, does

not challenge this aspect of the district court's holding.

In Parker v. Brown the Supreme Court held that the

Sherman Act does not prohibit an anticompetitive restraint

imposed by a state as an act of government. 317 U.S. 341, 352,

63 S.Ct. 307, 314 (1943). The decision in Noerr reaffirmed the

Parker doctrine in stating “where a restraint upon trade or

monopolization is the result of valid governmental action, as

opposed to private action, no violation of the Act can be made

out.” 365 U.S. at 136, 81 S.Ct. at 529. Noerr went on to hold

that any attempt to petition or influence the government to

impose an anticompetitive restraint is immune from antitrust

action.6 Id. Further, even if the anticompetitive restraint

results directly from private action, it is still immune if it is

an “incidental effect” of a legitimate attempt to influence

governmental action. Id. at 143-44, 81 S.Ct. at 533. As the

Supreme Court put it, “Parker and Noerr are complementary

expressions of the principle that the antitrust laws regulate

business, not politics; the former decision protects the States'

acts of governing, and the latter the citizens' participation in

government.” City of Columbia v. Omni Outdoor Advertising, Inc.,

6. Noerr dealt specifically with legislative lobbying,

but its principles were applied to cover attempts to influence

the executive and judicial branches in United Mine Workers v.

Pennington, 381 U.S. 657, 85 S.Ct. 1585 (1965), and California

Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct.

609 (1972).

19

499 U.S. 365, 383, 111 S.Ct. 1344, 1355 (1991). Thus, the

initial substantive issues on this appeal are whether state or

private conduct caused the injury MSL alleges it suffered because

its graduates could not take the bar examination in most states,

and whether, if MSL suffered an injury as a result of the ABA's

conduct, the injury was an incidental effect of the ABA's attempt

to influence the states with respect to establishing criteria for

bar admission. We will discuss each alleged injury separately.

1. Injury from bar examination requirements

Each state retains the authority to decide what

applicants may take its bar examination and may be admitted to

the bar.7 Accordingly, MSL's argument that the ABA received

“carte-blanche delegated authority to decide who can take bar

exams,” MSL reply br. at 19, is simply wrong. See cases cited

supra note 7. Many, but not all, states consider the

accreditation decisions of the ABA in their legal education

requirement (one of many requirements) for taking the bar

examination. Yet, every state retains the final authority to set

7. See, e.g., Hoover v. Ronwin, 466 U.S. 558, 569, 104

S.Ct. 1989, 1996 (1984) (“Pursuant to the State Constitution the

Arizona Supreme Court has plenary authority to determine

admissions to the bar.”); In re Murphy, 393 A.2d 369, 371 (Pa.

1978) (bar admission “exercised [] exclusively by the Supreme

Court”); In re Hansen, 275 N.W.2d 790, 796 (Minn. 1978) (“We have

not delegated our authority to the ABA but, instead, have simply

made a rational decision to follow the standards of educational

excellence it has developed.”); Potter v. New Jersey Supreme

Court, 403 F. Supp. 1036, 1040 (D.N.J. 1975) (State's adoption of

“the standards of an approving body does not support a conclusion

that such adoption is an abrogation or delegation of the power or

duty to supervise the practice of law in this State pursuant to

the mandate of the State Constitution.”), aff’d, 546 F.2d 418 (3d

Cir. 1976).

20

all the bar admission rules, and individual applicants or law

schools can petition the states for waivers or changes.

To the extent that MSL's alleged injury arises from the

inability of its graduates to take the bar examination in most

states, the injury is the result of state action and thus is

immune from antitrust action under the doctrine of Parker v.

Brown, 317 U.S. at 352, 63 S.Ct. at 314. The ABA does not

decide who can take the bar examinations. Rather, it makes an

accreditation decision which it conveys to the states, but the

states make the decisions as to bar admissions. Without state

action, the ABA's accreditation decisions would not affect state

bar admissions requirements. Because the states are sovereign in

imposing the bar admission requirements, the clear articulation

and active supervision requirements urged by MSL are

inapplicable. See Quinn v. Kent Gen. Hosp., Inc., 617 F. Supp.

1226, 1240 (D. Del. 1985). In short, this case does not involve

a delegation of state authority. To the contrary, the states use

the ABA to assist them in their decision-making processes. Thus,

we have here a government action case.

Our holding is consistent with current antitrust

jurisprudence. The Supreme Court held in a challenge to

Arizona's bar admissions policies that the conduct in question

"was in reality that of the Arizona Supreme Court," and thus

immune under Parker. Hoover v. Ronwin, 466 U.S. 558, 573-74, 104

S.Ct. 1989, 1998 (1984). Further, the Supreme Court has held

that when a state supreme court adopts a state bar rule banning

legal advertising, and retains final enforcement authority over

21

it, Parker immunity applies. Bates v. State Bar of Arizona, 433

U.S. 350, 361, 97 S.Ct. 2691, 2697 (1977) (“The Arizona Supreme

Court is the real party in interest; it adopted the rules, and it

is the ultimate trier of fact and law in the enforcement

process.”). This case is entirely analogous. The states do not

adopt the ABA's accreditation processes, but they do adopt and

give effect to the results.8 Thus, the cases cited by MSL

(Midcal, Patrick, ant Ticor) are inapplicable because they dealt

with situations where private parties were engaging in conduct,

whether price-fixing (Midcal and Ticor) or denying hospital

privileges (Patrick), which led directly to the alleged antitrust

injury. Here, the state action setting the bar examination

requirements led to the alleged injury.9

Our holding is also consistent with several court of

appeals and district court decisions applying the principles of

Noerr. In Lawline v. American Bar Ass’n, 956 F.2d 1378 (7th Cir.

1992), the Court of Appeals for the Seventh Circuit held under

Noerr that the ABA could not be held liable for any antitrust

injury resulting from the Illinois Supreme Court's adoption of

ethical standards developed and promulgated by the ABA. Id. at

8. The Supreme Court opinion in Allied Tube & Conduit

Corp. v. Indian head, Inc, 486 U.S. 492, 108 S.Ct. 1931 (1988),

is also consistent with our holding because it specifically

excluded from consideration any injury resulting from the

adoption of the challenged standards by any government and dealt

only with the independent marketplace effect of the defendant's

conduct. Id. at 500, 108 S.Ct. at 1937.

9. In its reply brief, MSL continues to miss the crucial

point that it is the direct action of the states which causes its

injury and continues to discuss cases where private conduct

caused the alleged antitrust injury. MSL reply br. at 11-15.

22

1383. Similarly, in Sessions Tank Liners, Inc. v. Joor Mfg.,

Inc., 17 F.3d 295, 299 (9th Cir. 1994), the Court of Appeals for

the Ninth Circuit held that a defendant which convinced a private

association to produce a code that was adopted by or relied upon

by a number of municipalities, and that injured the plaintiff,

was immune from antitrust liability because the “injuries for

which [plaintiff] seeks recovery flowed directly from government

action.”10 Id. at 299. These cases cannot be distinguished

effectively from this case.

In another analogous case, an organization that

accredited chiropractic schools was held immune from Sherman Act

liability for denying a school's accreditation because of a

dispute over educational philosophy, when the alleged injury

resulted from state decisions to deny licenses to graduates of

unaccredited schools and from the effects of lobbying in favor of

those state decisions. Sherman College of Straight Chiropractic

v. American Chiropractic Ass’n, 654 F. Supp. 716, 722-23 (N.D.

Ga. 1986), aff'd, 813 F.2d 349 (11th Cir. 1987). See also

Zavaletta v. American Bar Ass'n, 721 F. Supp. 96 (E.D. Va. 1989)

(dismissing suit by students at unaccredited law school because

of Noerr immunity). In these circumstances, MSL's claim that the

ABA's conduct injured it because its graduates cannot take the

bar examination in most states fails.

2. Stigma injury

10. In Sessions, the injury resulted from the denial of

permits, while here the injury is from the prohibition precluding

applicants from taking bar examinations in many states.

23

MSL also alleges that independent of any bar

examination requirements, it was injured by the stigmatic effect

in the market place of the denial of accreditation. MSL claims

that the ABA has conducted a campaign to convey the idea that ABA

accreditation is the sine qua non of quality and that the ABA is

the most, or only, competent organization to judge law schools.

There is enough evidence to create a genuine dispute of material

fact on this issue. See app. at 2105-09, 3570-72. Nevertheless,

the district court ruled that this injury could not form the

basis for antitrust liability because it was “incidental to the

primary, protected injury,” and thus immune under Noerr. MSL,

937 F. Supp. at 442. MSL challenges this holding on the grounds

that there was no petitioning of government here, and therefore

Noerr does not apply. The DOJ as amicus challenges the holding

to the extent it finds petitioning unnecessary for immunity for

stigma injury, but takes no position on whether any petitioning

took place. We hold that there was sufficient petitioning to

invoke Noerr immunity.11

MSL relies extensively on the Supreme Court's decision

in Allied Tube & Conduit Corp. v. Indian Head, Inc, 486 U.S. 492,

11. In its reply brief, MSL seriously misstates the

Noerr doctrine, arguing that only "successful petitioning of

courts to clearly and affirmatively authorize . . . closely

supervise, review and approve" the ABA's conduct would provide

immunity. MSL reply br. at 19. Under Noerr, any solicitation of

government action is immune, whether or not it is successful.

This mischaracterization stems from MSL's continued inability to

recognize that there is state action at issue here, not private

conduct.

24

108 S.Ct. 1931 (1988).12 In Allied Tube, a producer of

electrical conduit sought approval of its product from the

National Fire Protection Association for inclusion of the product

in the Association's National Electrical Code. A substantial

number of state and local governments adopted the code virtually

without change. To be included in the code, all that was

required was a majority vote of the members present at the annual

meeting of the Association. To prevent approval of the

electrical conduit at question in the case, competitors of the

producer stacked the annual meeting with persons who pledged to

vote against approval. On the facts in Allied Tube the Court

held that the code developed by the defendants had a force in the

marketplace independent of any government adoption (or

petitioning for such adoption) in that there was a conspiracy

among manufacturers, distributors, and consumers not to trade in

products not approved by the code. 486 U.S. at 503, 507, 108

S.Ct. at 1938-40. Further, the Court held that the application

of Noerr immunity depends “on the context and nature of the . . .

activity,” and found the challenged conduct to be “the type of

commercial activity that has traditionally had its validity

determined by the antitrust laws.” 486 U.S. at 504-05, 108 S.Ct.

at 1939. That was so, the Court reasoned, because the activity

12. MSL's additional reliance on American Soc'y of

Mechanical Eng’rs, Inc. v. Hydrolevel Corp., 456 U.S. 556, 102

S.Ct. 1935 (1982), is misplaced because that case dealt with

agency and apparent authority issues and does not consider Parker

or Noerr immunity. It also dealt with an attempt to interfere

directly with a company's customers, 456 U.S. at 562, 102 S.Ct.

at 1940, an exception to Noerr inapplicable here.

25

of which the producer complained involved the dubious commercial

practices of economically interested actors that had an impact on

the political process; it was not political activity that had an

impact on commerce.

The conduct of which MSL complains here is basically

the ABA's justification of its accreditation decisions and MSL is

asserting a loss of prestige resulting from it. This conduct is

neither normal commercial activity nor the type of restraint of

trade involved in Allied Tube, and thus that case is not

controlling. A loss of prestige resulting from a refusal to

approve a product or service does not alone make out an antitrust

claim. See Schachar v. American Academy of Ophthalmology, Inc.,

870 F.2d 397, 399 (7th Cir. 1989); Consolidated Metal Prods.,

Inc. v. American Petroleum Inst., 846 F.2d 284, 293 (5th Cir.

1988).

Noerr immunity is proper in this case because the ABA

engaged in petitioning activity, and the stigma injury which MSL

suffered was incidental to that activity.13 MSL admits that in

the past, “from the 1920's to approximately the mid 1970's,” the

ABA petitioned the states in a campaign to prohibit graduates

from unaccredited schools from taking bar examinations. See MSL

br. at 16. This campaign was obviously successful as now most

states require graduation from an ABA-accredited school for

admission to the bar. The ABA's current conduct surely would be

considered petitioning if it took place during the past campaign.

13. There is no “conspiracy” exception to either Noerr

or Parker immunity. Omni, 499 U.S. at 383, 111 S.Ct. at 1355.

26

The fact that the ABA was successful in lobbying the states does

not weaken its position. The ABA continues to communicate its

accreditation decisions to the states, and it desires that they

continue to give them credence. Discussing the quality and

competence of its decisions is a legitimate, although somewhat

indirect, way of petitioning the states to continue to follow its

guidance. Yet, such activity is no more indirect than the public

relations campaign held to be petitioning in Noerr. 365 U.S. at

140-41, 81 S.Ct. at 531.

There is an exception to Noerr immunity that would

apply if the ABA “attempted directly to persuade anyone not to

deal with” MSL. See Noerr, 365 U.S. at 142, 81 S.Ct. at 532.

There is no evidence that the ABA made such an attempt (there was

such evidence in Allied Tube), nor is there any other evidence

suggesting that Noerr immunity should not apply here. In a

supplemental filing of information after oral argument, MSL

produced two instances where it claims the ABA directly mentioned

MSL. The first is a Boston Globe article about the denial of

accreditation to MSL in which an ABA governor defended the ABA

standards as providing “a minimum level of quality and consumer

protection assurance to the public.” John H. Kennedy, “Andover

Law School Loses Appeal for Accreditation,” Boston Globe,

February 9, 1994, at 42. The second proffered piece of evidence

is a transcript of the ABA House of Delegates debate of MSL's

accreditation application, where one member urged the denial of

MSL's application and stated that the standards with which MSL

did not comply “lie at the heart of a quality institution.”

27

Both of these statements do nothing more than defend

the ABA standards. As we discuss above, this is valid, if

indirect, petitioning activity. The ABA is not saying directly

that MSL is a bad institution, or that a particular student

should not go there. MSL's attempts to characterize all the

ABA's comments about the quality of its accreditation process as

direct attacks on MSL does not make them direct attacks. We also

point out that if a claim for stigma injury could be advanced in

circumstances like those here, Noerr immunity would be confined

severely; a petitioner for governmental action is likely to urge

that the action is needed to ensure that standards are met,

thereby suggesting that some entities do not meet appropriate

standards.

3. Direct injury from ABA standards

MSL alleges a third injury which occurs directly from

the ABA's enforcement of its standards, independent of both the

bar examination and stigma issues. The challenged standards

relate to faculty salaries (MSL charges price-fixing) and

limitations on accredited schools accepting transfers or graduate

students from unaccredited schools (MSL charges a boycott).

Although the ABA is immune from liability attributable to the

state action in requiring applicants for the bar examination to

have graduated from an ABA-accredited law school and from any

stigma injury resulting from the denial of accreditation under

the Noerr petitioning doctrine, the ABA is not immune in the

actual enforcement of its standards. The state action relates to

the use of the results of the accreditation process, not the

28

process itself. The process is entirely private conduct which

has not been approved or supervised explicitly by any state. See

Midcal, 445 U.S. 97, 100 S.Ct. 937. Thus, the ABA's enforcement

of an anticompetitive standard which injures MSL would not be

immune from possible antitrust liability. Extending Noerr

immunity to this type of private activity would run counter to

Allied Tube.

We start our analysis of this direct injury issue by

pointing out that “to survive [] motion for summary judgment,

[the plaintiff] must establish that there is a genuine issue of

material fact as to whether [the defendants] entered into an

illegal conspiracy that caused [the plaintiff] to suffer a

cognizable injury.” Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 1355 (1986). The

district court held that MSL did not raise a genuine issue of

fact as to whether it was injured by the salary, transfer or

graduate student standards. MSL, 937 F. Supp. at 441 n.10, 445

n.20.

As we discuss above, MSL failed to show sufficient

evidence that it was denied accreditation because it did not

comply with the salary standard. Therefore, MSL has to show that

the ABA's alleged fixing of salaries at its accredited schools

somehow injured it in another way. At first glance, the argument

that the ABA's faculty salary standards injured MSL makes no

economic sense. As the district court commented, if ABA-

accredited schools are required to pay higher salaries, an

unaccredited school should have a cost advantage. See MSL, 937

29

F. Supp. at 441 n.10. Indeed, it would appear that a conspiracy

to increase the conspirators' costs would be no more logical than

would a conspiracy to reduce the conspirators' income. Cf. Advo,

Inc. v. Philadelphia Newspapers, Inc., 51 F.3d 1191, 1195-1204

(3d Cir. 1995) (discussing predatory pricing monopoly case).

Thus, while we consider this appeal on ordinary summary judgment

standards, we point out that it could be argued that MSL "must

come forward with more persuasive evidence to support [its] claim

than would otherwise be necessary." Matushita, 475 U.S. at 587,

106 S.Ct. at 1356.

MSL alleges that the faculty salary standards injured

it in two ways. First, MSL asserts that it raised its salaries

in an attempt to get accreditation. This claim is in direct

conflict to its consistent assertion that it refused to comply

with the ABA's anticompetitive standards and for that reason was

denied accreditation. See, e.g., MSL br. at 3-4. The claim also

is remarkable because MSL made it clear that it would not comply

with ABA standards to obtain certification. Further, MSL's

assistant dean testified that MSL salaries have “never been tied

to” ABA standards.14 App. at 439. Rather, its dean stated that

the salary increases were made out of fairness and as a reward

for hard work. App. at 393. The only other related evidence

shows that MSL acted independently to increase its salaries, and

then later found that this action might help it get

14. MSL points out that the assistant dean has no role

in setting MSL's salaries, so he is only giving his personal

belief on the issue. MSL reply br. at 30, sup. app. at 5476-79.

30

accreditation. See app. at 828. Unsupported allegations to the

contrary, see app. at 2123, are not sufficient without

explanation to outweigh the prior testimony and avoid summary

judgment. See Hackman v. Valley Fair, 932 F.2d 239, 241 (3d Cir.

1991); Martin v. Merrell Dow Pharm., Inc., 851 F.2d 703, 706 (3d

Cir. 1988); but see Videon Chevrolet, Inc. v. General Motors

Corp., 992 F.2d 482, 488 (3d Cir. 1993) (distinguishing Martin

and holding that statements have to be clearly contradictory and

without explanation to be insufficient to defeat summary judgment

motion). There has not been sufficient explanation of the

contradiction to create a genuine issue of material fact and

justify reversing the summary judgment.

MSL's second contention that the ABA's salary standards

injured it is that the standards inflated the market cost of law

professors, thereby increasing the salaries MSL must pay its

faculty. This market price argument is equally unavailing.

MSL's stated policy was to rely on adjunct faculty. MSL did not

produce evidence that any of its faculty other than its dean ever

had been employed at another law school. In effect, MSL was

hiring faculty from a different market, one unaffected by the

ABA's conduct, or at least a different provider in the same

market (teachers who never taught at ABA-accredited schools).

The report by MSL's economic expert does not contradict this

point, app. at 3568, because it contains only general and

theoretical observations and is not tied to evidence in the

31

record.15 Thus, we can disregard it for the purposes of

reviewing the summary judgment. See Pennsylvania Dental Ass'n v.

Medical Serv. Ass'n, 745 F.2d 248, 262 (3d Cir. 1984). Our

result is supported by MSL's policy towards salaries: “because a

professor at MSL must prove himself or herself as a full-time

faculty member before obtaining a large salary, MSL retained a

level of starting salaries that are below ABA requirements.”

App. at 2123.16

The situation here is analogous to that in Mid-West

Paper Prods. Co. v. Continental Group, Inc., 596 F.2d 573 (3d

Cir. 1979). In that case we held that a purchaser from

competitors of a price-fixer did not have standing to sue the

price-fixer on the grounds that the general market price

increased as a result of the price fixing. Id. at 587. We

explained Mid-West Paper in In re Lower Lake Erie Iron Ore

Antitrust Litig., 998 F.2d 1144, 1167-68 (3d Cir. 1993), where we

focused on how direct an impact the challenged conduct had on the

15. "[A]s I understand it, MSL was forced to raise its

salaries to levels above what it would have otherwise (a) in an

attempt to satisfy the standards and (b) because of the market

effects of the standards on prices in the input markets. The

anticompetitive effects of those practices affect input prices

(salaries, etc.) for MSL, as well for every other law school.

The practices injure all of the schools that have accepted the

standards, as well as those that have not. Because the standards

have an undeniable impact on input costs, every school is forced

to incur higher costs, along with the reduction in the

flexibility needed to respond efficiently to changing conditions,

all schools suffer competitive injury as well." App. at 3568.

16. It is interesting to note that MSL charges that the

ABA and the AALS engaged in a conspiracy to restrain trade. It

thus appears that insofar as the salary standards are concerned,

MSL believes that the AALS conspired to increase its member law

schools' costs.

32

plaintiff. MSL was not impacted directly by the ABA's criteria

because it was hiring a different kind of professor. Mid-West

Paper thus controls, and summary judgment was proper.17

MSL also alleges a boycott in that the ABA prevented

its accredited schools from accepting transfers or graduate

students from unaccredited schools. The district court held that

MSL had not produced any evidence that it was injured by either

of these rules. MSL, 937 F. Supp. at 445 n.20. This holding is

correct. MSL has done nothing more than state the standards and

allege that they injured MSL. See app. at 2108, 2120. There is

no factual support for these allegations. Further, the evidence

shows that MSL actively opposed its students transferring, both

in policy and practice.18 MSL therefore cannot claim that the

ABA's prohibition on transfers with credit injured it.19

17. This is true even though Mid-West Paper dealt with

standing and we deal here with whether there is a genuine issue

of fact as to MSL’s injury, for the concepts are similar.

18. Its dean testified in another proceeding “MSL would

have [] denied admission had it known [a student] intended to

seek transfer away as soon as possible.” App. at 1415. MSL

considered transfers to be “extremely harmful to the school,” id.

at 1416, and that assisting students in transferring was “self-

destructive.” Id. at 1231.

19. MSL's reliance on the allegations in the

government's antitrust case which we described above is

unavailing for two reasons. First, those allegations never were

proven because the case was settled, and therefore cannot be

taken as true in this case. See United States v. Microsoft

Corp., 56 F.3d 1448, 1460-61 (D.C. Cir. 1995); Petruzzi's IGA v.

Darling-Delaware, 998 F.2d at 1247. Second, the government never

alleged that MSL suffered any injury from these standards and

does not so argue in its amicus brief in this case. See, e.g.,

DOJ br. at 6-7.

33

MSL also alleges that the AALS boycotted MSL by

refusing membership and that the LSAC boycotted MSL by refusing

to allow it to attend certain recruiting conferences. See MSL

br. at 59. The allegations regarding the AALS are simply

incorrect. AALS membership is independent of ABA accreditation,

and MSL never has applied for such membership. App. at 2278-80.

Even though it is not a member, MSL can attend AALS conferences

and has done so. Id. at 2280. Therefore MSL has not suffered

any injury at the hands of the AALS.

The LSAC's failure to invite MSL to its conferences

does not constitute a boycott.20 Under the fact-pattern here to

demonstrate a boycott, MSL has to show that these conferences are

an essential facility for recruiting students as there is no

other potential basis for the boycott claim. Such an essential

facility or claim fails whenever a plaintiff (1) cannot show that

the defendant has a monopoly over the alleged essential facility;

(2) the facility cannot be duplicated in a reasonable manner; and

(3) the plaintiff has been denied its use. Ideal Dairy Farms,

Inc. v. John Labatt, Ltd., 90 F.3d 737, 748 (3d Cir. 1996). MSL

has shown only that the LSAC denies it participation. There is

no evidence suggesting that the LSAC has a monopoly over access

to law students or pre-law advisors, or even over recruiting

fairs. The LSAC does not hinder MSL's recruiting in any way, it

20. LSAC conferences are only open to LSAC member

schools. MSL is not a member of the LSAC because it does not use

the LSAT and it is not accredited by either the ABA or the AALS.

34

just does not aid it by allowing MSL to attend its conferences.21

Such activity is not required by the antitrust laws, and its

absence does not constitute antitrust injury.

Further, MSL has not shown that the LSAC injured it.

The LSAC never allowed MSL to attend its conferences and, prior

to ABA accreditation denial, MSL's enrollment exceeded its

projections. App. at 2420-24. It was the denial of

accreditation which caused MSL’s enrollment to decline, and as

discussed above, in light of Parker and Noerr that loss cannot be

the basis for antitrust liability. MSL contends that as long as

it was injured in some way by the overall alleged conspiracy, it

need not show injury from its individual aspects, and cites in

this respect In re Lower Lake Erie Iron Ore Antitrust Litig., 998

F.2d at 1172. Reply br. at 35. While this principle is correct,

it is inapplicable here. In re Lower Lake Erie did not involve

state action or petitioning of government immunity issues. Here,

MSL must show that it was injured in some way by the ABA's

enforcement of its standards, independent of any injury from the

immune state action or petitioning, and as we discuss above, it

has not done so.

Inasmuch as we hold that MSL has failed to demonstrate

an injury for which antitrust liability may lie, we need go no

further to affirm the district court's summary judgment order

with respect to issues beyond those controlled by Parker and

21. Similarly, MSL's claims about getting only a listing

in The Official Guide to U.S. Law Schools fail because there are

many such publications, some of which do describe MSL.

35

Noerr. Thus, we do not consider the district court's alternative

free speech immunity theory. Further, we make no comment on

whether MSL produced sufficient evidence to show the existence of

a conspiracy for two reasons.22 First, the alleged conspiracy

with respect to the injuries from the bar examination

requirements and the stigma from denial of accreditation involved

immunized conduct. See Omni, 499 U.S. at 381-84, 111 S.Ct. at

1354-56. Second, MSL did not demonstrate that it suffered injury

from the conduct not immunized. 15 U.S.C. § 15; see Matsushita,

475 U.S. at 585-86, 106 S.Ct. at 1355; Mathews v. Lancaster Gen.

Hosp., 87 F.3d at 641; see also Sciambra v. Graham News, 892 F.2d

411, 414-15 (5th Cir. 1996); United States Football League v.

National Football League, 842 F.2d 1335, 1377-78 (2d Cir. 1988).

Of course, we hasten to add that we do not hold that if MSL had

been able to demonstrate injury from conduct beyond the scope of

Parker and Noerr antitrust immunity there necessarily would be

liability as we have no need to reach that point.

D. Dismissal of the Individual Appellees

The district court dismissed claims against the 22

individual appellees for lack of personal jurisdiction in the

Eastern District of Pennsylvania in an order on March 11, 1994.

MSL, 846 F. Supp. 374 (E.D. Pa. 1994). The court, upon

reconsideration and after MSL had conducted some discovery, found

on May 31, 1994, that MSL could not “suggest, much less show,

22. We do note, however, that there is no probative

evidence that the AALS or LSAC was involved in any kind of

conspiracy with the ABA.

36

substantial acts in Pennsylvania.” MSL, 853 F. Supp. 843, 845

(E.D. Pa. 1994). MSL challenges the dismissal on the grounds

that it was entered before MSL was allowed to undertake any

discovery as to the appellees' contacts within the district.

Our rule is generally that jurisdictional discovery

should be allowed unless the plaintiff's claim is "clearly

frivolous." Nehemiah v. The Athletics Congress, 765 F.2d 42, 48

(3d Cir. 1985), citing Compagnie des Bauxites de Guinee v.

L’Union Atlantique S.A. D’Assurances, 723 F.2d 357, 362 (3d Cir.

1983). The district court found (at least by implication), and

we agree, that MSL's jurisdictional claims were clearly

frivolous. Our result is in accord with other cases which hold

that a mere unsupported allegation that the defendant “transacts

business” in an area is “clearly frivolous.” See Garshman v.

Universal Resources Holding, Inc., 641 F. Supp. 1359, 1366

(D.N.J. 1986), aff'd on other grounds, 824 F.2d 223 (3d Cir.

1987);23 see also American Centennial Ins. Co. v. Handal, 901 F.

Supp. 892, 899 (D.N.J. 1995). MSL legitimately cannot allege a

nationwide conspiracy and then say, without more evidence, that

such a conspiracy must have effects in Pennsylvania.

Further, jurisdictional discovery generally relates to

corporate defendants and the question of whether they are “doing

business” in the state. See Compagnie Des Bauxites, 723 F.2d at

362 and cases cited therein. Where the defendant is an

23. Garshman was decided on venue grounds, but the

analysis is the same as for personal jurisdiction. Garshman, 641

F. Supp. at 1366.

37

individual, the presumption in favor of discovery is reduced.

See Shaw v. Boyd, 658 F. Supp. 89, 91 n.1 (E.D. Pa. 1987). Thus,

the district court's order dismissing the individual appellees

without ordering discovery first was correct.24

E. Recusal of Judge Ditter

MSL made several attempts to have Judge Ditter recused.

Judge Ditter denied MSL's recusal motion in an opinion dated

December 16, 1994. MSL, 872 F. Supp. 1346 (E.D. Pa. 1994).

MSL's attempts to seek his recusal in this court were also

unavailing (one denied, one held moot in light of this appeal).

Inasmuch as we are affirming the summary judgment, we need not

consider arguments regarding reassignment on remand. We review

the denial of the recusal motion for abuse of discretion.

MSL argues that Judge Ditter has both the appearance of

bias and actual bias, and should be removed from the case under

either 28 U.S.C. § 455(a) or this court's authority as recognized

in Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 167 (3d

Cir. 1993), and Haines v. Liggett Group, Inc., 975 F.2d 81, 98

(3d Cir. 1992). The standard for recusal is whether an objective

observer reasonably might question the judge's impartiality. MSL

contends that both one past out-of-court experience, and the bias

which it asserts is apparent from his rulings, justify Judge

Ditter's recusal.

24. We note that in view of our merits disposition we

can conceive of no way that the individual appellees could be

liable in this case.

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MSL argues that Judge Ditter's participation in 1974-75

on an outside committee which tried to help the Delaware Law

School, where his son was then a student, obtain ABA

accreditation justifies recusal. In over 200 pages of documents

submitted by MSL relating to Delaware Law School (gleaned from

depositions and testimony before several courts), Judge Ditter's

name appears only six times. This evidence suggests nothing more

than that Judge Ditter had several meetings with the person who

was the driving force behind the effort to make changes at

Delaware Law School in order to qualify for accreditation. There

is one affidavit from the former dean of that school that

suggests that Judge Ditter played a more active role, but Judge

Ditter, in his careful consideration of the recusal motion,

sufficiently points out the inconsistencies between this

declaration and other more contemporaneous testimony. See MSL,

872 F. Supp. 1346, 1358-65 (E.D. Pa. 1994). We thus affirm Judge

Ditter's holding that nothing related to Delaware Law School

creates an appearance of bias in this case. This is true both

because of Judge Ditter's limited role at the time and the amount

of time which has passed. This view is in accord with the

prevailing case law. See, e.g., In re Allied Signal, Inc., 891

F.2d 974, 976 (1st Cir. 1989) (upholding denial of recusal motion

based on social and business relationship eight years earlier

between judge and one of plaintiff's attorneys); Alexander v.

Chicago Park Dist., 773 F.2d 850, 857 (7th Cir. 1985) (denying

recusal motion based on judge's representation of witness 25

years earlier).

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Furthermore, we do not understand why Judge Ditter's

participation in the Delaware Law School accreditation process,

no matter how intensive, would cause an objective observer to

believe that he would not be impartial here. The Delaware Law

School and MSL situations, though somewhat similar in nature, are

unrelated. Indeed, it is difficult even to articulate a

reasonable basis on which to argue that by reason of Judge

Ditter's experiences regarding the Delaware Law School he would

have a bias here. As far as we can see, there is no more basis

to think that Judge Ditter was not impartial here because of his

experiences 20 years ago with Delaware Law School, than to

believe that a judge who had been in an automobile accident would

not be impartial in a case involving a different accident.

MSL also argues that Judge Ditter's rulings, both in

substance (allegedly always against MSL) and in form (allegedly

repeatedly vilifying and condemning MSL and its dean),

demonstrate actual bias. Since we have affirmed several of the

rulings MSL contends demonstrate bias, and a review of the record

shows that there was no pattern of consistently ruling against

MSL, there is no actual bias.

We also point out that a judge's consistent pattern of

ruling against a party could be entirely justified for that party

might consistently be taking positions that cannot be supported.

Even-handed justice does not require a judge to balance

numerically the rulings in favor of and against each party.

After all, each ruling stands on its own. Furthermore, the

Supreme Court has said that “judicial rulings alone almost never

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constitute a valid basis for a bias or partiality motion.”

Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 1157

(1994).25 We do not believe that a reasonable person who looked

at Judge Ditter's rulings objectively would find the appearance

of bias. See United States v. Bertoli, 40 F.3d 1384, 1413 (3d

Cir. 1994). It should be apparent to anyone that he worked

diligently in this hard-fought case and, as far as we are

concerned, reached the correct outcome.

We also do not find that any of Judge Ditter's comments

cited by MSL, see MSL br. at 23-25, suggest the appearance of

partiality. The Liteky Court held that “judicial remarks during

the course of a trial that are critical or disapproving of, or

even hostile to, counsel, the parties, or their cases, ordinarily

do not support a bias or partiality challenge.” 510 U.S. at 555,

114 S.Ct. at 1157; see also In re Skobinsky, 167 B.R. 45, 52

(E.D. Pa. 1994). MSL's desire to impute hostile intent to Judge

Ditter does not mean he had that intent, and does not create an

appearance of bias. MSL's attitude appears to be that anyone who

disagrees with it is both wrong and biased, but the evidence does

not show this. The cases cited by MSL are inapplicable because

they dealt with unique extrajudicial contact with a party, In re

Sch. Asbestos Litig., 977 F.2d 764 (3d Cir. 1992), an implicit

admission of bias by the judge, In re Antar, 71 F.3d 97, 101 (3d

Cir. 1995), or reassignment on remand, Haines and Alexander.

Since this case will not be remanded, we need not consider

25. The holding in Liteky required bias to stem from an

“extrajudicial source” to support a recusal under section 455(a).

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reassignment and, as we discussed, Judge Ditter's denial of the

recusal motion was not an abuse of discretion.

F. Disqualification of Inside Counsel

MSL also appeals the district court's disqualification

of five members of MSL’s administration and faculty from serving

as trial counsel, giving oral argument, and taking depositions.26

Since MSL does not allege that it received incompetent counsel,

and we are affirming the summary judgment order, the issue

probably is moot. In any event, the court did not err in

requiring the disqualification.

III. CONCLUSION

The order of the district court entered August 29,

1996, granting the appellees summary judgment and the other

orders on appeal will be affirmed.

26. By agreement among the parties, this order later was

modified to allow two of the MSL professors to act as trial

counsel. MSL br. at 29 n.12.

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