1997 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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1

 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 
2

 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 

 
3

 

 

 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 
4

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 
5

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 ABAaccredited 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 
6

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 
7

to the ABA House of Delegates, which has the ultimate decisionmaking 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. 
8

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 
9

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. 
10

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. 
11

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. 
12

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 
13

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 
14

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 “priceaffecting,” 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 
15

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 
16

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. 
17

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 
18

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, 
19

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). 
20

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). 
21

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 
22

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. 
23

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. 
24

 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. 
25

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. 
26

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. 
27

 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.” 
28

 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 
29

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 ABAaccredited schools are required to pay higher salaries, an 

unaccredited school should have a cost advantage. See MSL, 937 
30

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. 
31

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 
32

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. 
33

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 “selfdestructive.” 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. 
34

 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. 

 
35

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. 
36

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. 
37

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. 
38

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. 
39

 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). 
40

 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 
41

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). 
42

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. 
43