Well, the entries are all in, and with copious amounts of coffee, aspirin and candy corn after a raucous Halloween night, I was able to pick a winner for this blog's first-ever specious complaint contest. For those of you who have been living under a rock for the last week, I challenged my readers to review the class action complaint recently filed against the University of Illinois by a disgruntled student who was not admitted to the school, and to outline in 200 words or less the arguments that belonged in the motion to dismiss. It was a traditional issue-spotting exercise.
And the winner is: Brian P. Perryman, an associate at the Washington, DC firm Jorden Burt LLP. Brian is a 2003 graduate of George Mason University School of Law and was an editor on the law review there.
Congratulations, Brian!!! You can expect to receive your new Rumpole book at your office in the next few days.
Brian handles a variety of types of consumer class actions for the consumer financial services industry. When asked about his entry in this contest, Brian said that the challenging part wasn't thinking of all of the reasons the complaint should be dismissed; rather, "the challenge was to stay under your 200-word limit."
Brian had second thoughts about his CAFA jurisdiction argument and asked me to delete it, but because I believe it is still plausible, I have included it here as well. Here is Brian's winning entry:
"No CAFA jurisdiction.
1. Parties not minimally diverse.
2. $5 million threshold not met. 7K students x 10 years x $40 < $5 million.
Lacks Article III standing. Injury not traceable to “tainted” application process or that plaintiff’s application was affected.
Wrong venue. Parties located in Central District of Illinois. Substantial events occurred there.
Violates Rule 10(f), does not allege time of application, which is material to statute of limitations.
Class allegations subject to striking.
1. Nationwide class improper, Illinois law cannot be applied to every applicant.
2. Class composition cannot be determined without ascertaining whether class members were denied admission because of tainted process or other, legitimate reason.
All counts barred by State Lawsuit Immunity Act. 745 ILCS 5/1.
Count I – Catalog not contract. No breach because no allegation that “tainted” process was reason plaintiff’s application denied.
Counts II & III – No implied contract alleged, no breach alleged as in Count I.
Count IV – No allegation that fee unjustly obtained because no allegation that “tainted” process was reason application denied.
Count V – Does not identify misrepresentation or a duty to disclose facts.
Count VI – No violation of constitutional rights.
Count VII – No fiduciary duty or complex transaction requiring accounting."
An honorable mention goes to University of Miami School of Law third year student Santiago Asconape, who is the founder and President of the school's new Mass Torts Litigation Society, which purports to be the only student organization in the country dedicated to the study of complex litigation. They publish a newsletter called "The Class Act," which is worth a read.
Santiago's entry proposed an early challenge to the class allegations:
In this case, it is easily determined from the complaint that individual issues of law and fact will overwhelm common issues. Plaintiffs proposed class is much too vague and amorphous. One applicant may have been rejected because of a poor GPA. Another, for his poorly written personal statement. Another, for disciplinary reasons. Individual mini-trials would be required to discern which applicants truly were rejected because of their lack of political clout. Furthermore, the plaintiff has proposed a nationwide class. The Plaintiff's alleged claims will vary from state to state, and the resulting choice of law issues will make satisfaction of Rule 23's predominance and superiority requirements impossible.
I almost threw my vote to Santiago in the hope that I would receive an all-expenses paid trip to address the Society in Miami during the coldest week of NYC's February, but I was afraid that I would run afoul of the new disclosure rules for bloggers. Nevertheless, I am heartened to see students with such a keen interest in mass torts and class actions. Congratulations to you, Santiago, for an excellent entry, and best of luck to you and your colleagues in the Mass Torts Litigation Society.