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<pre>                  UNITED STATES COURT OF APPEALS <br>                      FOR THE FIRST CIRCUIT <br>                    _________________________ <br> <br>No. 97-1926 <br> <br>          MASSACHUSETTS SCHOOL OF LAW AT ANDOVER, INC., <br>                      Plaintiff, Appellant, <br> <br>                                v. <br> <br>                AMERICAN BAR ASSOCIATION, ET AL., <br>                      Defendants, Appellees. <br>                    _________________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>       [Hon. Morris E. Lasker, Senior U.S. District Judge] <br>                    _________________________ <br> <br>                              Before <br> <br>                      Selya, Circuit Judge, <br>                 Campbell, Senior Circuit Judge, <br>                    and Boudin, Circuit Judge. <br>                    _________________________ <br> <br>     Michael L. Coyne, with whom Peter M. Malaguti was on brief, <br>for appellant. <br>     Joseph L. Kociubes, with whom Peter J. Mancusi, Bingham, Dana <br>LLP, David T. Pritikin, David R. Stewart, Sidley & Austin, Darryl <br>L. DePriest, and Catherine A. Daubard were on brief, for appellees <br>American Bar Association and affiliated individuals. <br>     Vincent M. Amoroso, with whom Peabody & Arnold, Robert A. <br>Burgoyne, and Fulbright & Jaworski L.L.P. were on brief, for <br>appellee Association of American Law Schools. <br>     James R. DeGiacomo, with whom Judith K. Wyman and Roche, <br>Carens & DeGiacomo, P.C. were on brief, for appellee New England <br>School of Law. <br> <br>                    _________________________ <br> <br>                         April 24, 1998 <br> <br>                    _________________________

          SELYA, Circuit Judge.  The lawsuit that undergirds this <br>appeal pits a fledgling law school, built on a foundation of <br>unconventional premises, against the legal establishment.  The <br>gargantuan record, capable of inducing tapephobia in even the <br>hardiest appellate panel, is forbidding, but sheer bulk rarely is <br>an accurate proxy for complexity.  Having scaled the mountain of <br>papers and obtained a clear view of the legal landscape, we <br>conclude that the lower court correctly apprehended both the issues <br>and the answers.  Consequently, we uphold the several rulings that <br>the appellant so vigorously contests. <br>I.  THE PROTAGONISTS <br>          In late 1995, Massachusetts School of Law (MSL) sued the <br>American Bar Association (the ABA), the American Association of Law <br>Schools (the AALS), New England School of Law (NESL), and fourteen <br>individual defendants.  The facts that inform MSL's wide-ranging <br>allegations are too diffuse to shed much light at this juncture, so <br>we leave them shuttered until they can illuminate the specific <br>issues raised by this appeal.  We deem it helpful, however, to <br>describe at the outset the institutions and individuals involved in <br>the litigation. <br>          We begin with MSL, a non-profit institution that opened <br>its doors in 1988.  The school's self-proclaimed mission is to <br>provide high-quality, affordable legal education to capable persons <br>who traditionally have been shut out of the legal profession, <br>including members of disadvantaged demographic populations and <br>persons turning to the law in search of a second career.  To this <br>end, MSL does not require applicants to take the Law School <br>Aptitude Test (LSAT) because it considers the test biased.  <br>Moreover, MSL's curriculum features a higher-than-usual percentage <br>of adjunct instructors and a concentrated focus on professional <br>skills courses.  MSL is not a fully accredited law school, but in <br>1990, the Massachusetts Board of Regents authorized the school to <br>award the J.D. degree and thereby enabled MSL graduates to sit for <br>the Massachusetts bar. <br>          The ABA is the largest national organization of the legal <br>profession.  It has a membership of more than 380,000, composed <br>principally of practicing lawyers (including lawyers in government <br>and corporate America), judges, court administrators, and legal <br>educators.  Though the ABA does not have the power to discipline <br>lawyers, it promulgates model rules, develops guidelines, and <br>strives to function as the national voice of the legal profession.  <br>In that capacity, it long has served as the chief accreditor of law <br>schools. <br>          The AALS is a non-profit association of 160 law schools.  <br>Its stated objective is "the improvement of the legal profession <br>through legal education."  It serves as a trade organization for <br>law professors and, with reference to legal education, acts as the <br>academy's principal representative to the federal government and to <br>national higher education organizations.  The AALS is separate from <br>the ABA, but the two informally interlock in various ways.  Many <br>individuals are active in both organizations and many AALS members <br>participate in the ABA accreditation process. <br>          The fourteen individual defendants divide into two <br>groups.  One group (the Eight Individual Defendants) comprises the <br>seven members of the ABA's Accreditation Committee (the Committee) <br>plus the immediate past chair of the ABA's Section of Legal <br>Education and Admissions to the Bar (the Section).  The other group <br>(the Six Individual Defendants) comprises the five members of the <br>ABA team that visited MSL during its unsuccessful effort to obtain <br>accreditation, plus a consultant who advised the ABA during that <br>process.  All fourteen individual defendants are active <br>participants in accreditation-related matters. <br>          NESL is an ABA-accredited law school located in Boston, <br>Massachusetts.  MSL regards itself as a competitor of NESL   and <br>one which, if accredited, would be all the more formidable. <br>II.  THE ACCREDITATION PROCESS <br>          For more than 70 years, the ABA has promulgated the <br>standards for law school accreditation (the Standards).  It is <br>widely believed among legal educators and regulatory organizations <br>that compliance with the Standards enhances the quality of legal <br>education.  MSL disputes this conventional wisdom but, since 1952, <br>the United States Department of Education (the DOE) has recognized <br>the ABA as a "reliable authority" anent the quality of legal <br>education and has designated it as the relevant accrediting body.  <br>20 U.S.C.  1099b(a).  As a result of this recognition, ABA- <br>accredited schools are eligible to participate in federal  student <br>loan programs.  See 20 U.S.C.  1141(a)(5).  Accredited <br>institutions also receive various state-based benefits, not the <br>least of which is that all fifty states, the District of Columbia, <br>and the Commonwealth of Puerto Rico deem graduation from an ABA- <br>accredited institution sufficient to satisfy the legal education <br>requirement for admission to the bar. <br>          The accreditation process works something like this.  A <br>law school may apply for ABA accreditation after three years of <br>operation.  Its application must include a self-study, delineating <br>its perception of its present and projected compliance with the <br>Standards and explaining any deviations from them.  The Committee <br>reviews each application and appoints a site-visit team  to conduct <br>interviews and inspect the applicant's physical plant.  This team <br>reports its findings to the Committee.  If the Committee determines <br>that the school is in compliance with the Standards, the <br>accreditation process moves forward.  If a school is found not to <br>be in compliance with the Standards, the Committee nonetheless may <br>recommend provisional accreditation if it receives satisfactory <br>assurances that the applicant will achieve compliance within three <br>years.  See Standard 104(a). <br>          In the absence of compliance (actual or anticipated), <br>there is another potential route to accreditation:  the applicant <br>may request a variance from the Standards, and the body that <br>oversees the accreditation process, the Council of the Section (the <br>Council), may choose to grant it as a matter of discretion.  <br>Standard 802 governs the variance procedure.  Because this Standard <br>is central to MSL's accreditation effort, we reprint it in full: <br>          A law school proposing to offer a program of <br>          legal education contrary to the terms of the <br>          Standards may apply to the Council for a <br>          variance.  The variance may be granted if the <br>          Council finds that the proposal is consistent <br>          with the general purpose of the Standards.  <br>          The Council may impose such conditions or <br>          qualifications as it deems appropriate. <br> <br>III.  MSL'S ACCREDITATION EFFORT <br>          MSL applied for ABA accreditation in 1992.  From the <br>outset, MSL recognized that its practices were discordant with the <br>Standards, yet remained steadfast in its deliberately contrarian <br>mission.  At no time did MSL argue present compliance with the <br>Standards or promise future compliance.  Instead, it confessed in <br>its self-study that "[t]o the considerable extent MSL's goals and <br>methods are innovative, sometimes they deliberately run counter to <br>conventional ABA criteria of accreditation."  Not surprisingly, MSL <br>invoked Standard 802 by letter dated January 27, 1993, and <br>requested "a waiver of each and every Standard that . . . might bar <br>accreditation" on the ground that, despite its admitted lack of <br>conformity, "MSL provides a high quality legal education that meets <br>the underlying objectives of the accreditation process." <br>          An ABA team visited MSL's campus in April 1993.  The next <br>month, the site-visit team recommended that the Committee deny <br>accreditation because MSL was in default of myriad Standards.  The <br>Committee accepted the recommendation and rejected the application.  <br>MSL successively appealed to the Council and to the ABA's House of <br>Delegates, both of which upheld the denial of accreditation. <br>IV.  PROCEDURAL HISTORY <br>          Although the instant litigation has all the hurly-burly <br>of a major engagement, it is in point of fact a rear-guard action.  <br>In November 1993, MSL brought an antitrust suit against the ABA, <br>the AALS, and twenty-one individual defendants (including twelve of <br>the fourteen persons sued here) in the United States District Court <br>for the Eastern District of Pennsylvania.  The Third Circuit <br>subsequently characterized MSL's complaint as alleging that the <br>named defendants conspired "to enforce the ABA's anticompetitive <br>accreditation standards [and thus violated the Sherman Act] by:  <br>(1) fixing the price of faculty salaries; (2) requiring reduced <br>teaching hours and non-teaching duties; (3) requiring paid <br>sabbaticals; (4) forcing the hiring of more professors in order to <br>lower student/faculty ratios; (5) limiting the use of adjunct <br>professors; (6) prohibiting the use of required or for-credit bar <br>review courses; (7) forcing schools to limit the number of hours <br>students could work; (8) prohibiting ABA-accredited schools from <br>accepting credit transfers from unaccredited schools and from <br>enrolling graduates of unaccredited schools in graduate programs; <br>(9) requiring more expensive and elaborate physical and library <br>facilities; and (10) requiring schools to use the LSAT."  <br>Massachusetts Sch. of Law at Andover, Inc. v. American Bar Ass'n, <br>107 F.3d 1026, 1031-32 (3d Cir.) (MSL I), cert. denied, 118 S. Ct. <br>264 (1997).  Between 1994 and 1996, the district court published no <br>fewer than nine opinions.  At the end of the line, the district <br>court entered summary judgment in favor of all remaining defendants <br>(including the ABA and the AALS), and the Third Circuit affirmed.  <br>See id.  <br>          With the antitrust case still extant,  MSL sought to try <br>its luck in the Massachusetts state courts.  Its suit named the <br>ABA, the AALS, twelve of the same individuals whom it had sued in <br>MSL I, and three virgin defendants (NESL and two additional <br>Committee members, Moeser and Yu).  MSL's complaint asserts claims <br>for violation of Mass. Gen. Laws ch. 93A and for tortious <br>misrepresentation against all the defendants, as well as claims for <br>fraud, deceit, civil conspiracy, and breach of contract against the <br>AALS, the ABA, and the fourteen named individuals.  The strand that <br>sews together this tapestry of charges is MSL's accusation that the <br>ABA and the AALS for many years have banded together to monopolize <br>legal education with a goal of increasing their institutional power <br>and boosting the salaries of law professors and administrators.  <br>MSL asserts that its educational philosophy poses a threat to the <br>ABA/AALS cabal and that the two organizations therefore conspired <br>to deny MSL accreditation, despite the fact that MSL's educational <br>offerings are exemplary. <br>          Invoking 20 U.S.C.  1099b(f), discussed infra Part V, <br>the defendants removed the case to the United States District Court <br>for the District of Massachusetts.  The district court denied MSL's <br>timely motion to remand.  After a full year's worth of pretrial <br>skirmishing, the court methodically dismembered MSL's complaint, <br>defendant by defendant, during a four month period in 1997:  on <br>January 10, it granted NESL's motion to dismiss pursuant to Fed. R. <br>Civ. P. 12(b)(6); on February 13, it granted the Eight Individual <br>Defendants' motion to dismiss for lack of personal jurisdiction; on <br>March 3, it granted the AALS's motion for summary judgment; and on <br>May 8, it granted summary judgment in favor of the ABA and the Six <br>Individual Defendants.  MSL appeals from each of these rulings. <br>          We first address two threshold jurisdictional issues:  <br>the refusal to remand and the court's holding that it lacked <br>jurisdiction over the Eight Individual Defendants.  From that point <br>forward, we proceed on a defendant-by-defendant basis. <br>V.  THE MOTION TO REMAND <br>          The court below denied MSL's motion to remand, ruling <br>that the suit arose under federal law.  See 28 U.S.C.  1331 <br>(1994); see also Viqueira v. First Bank, ___ F.3d ___, ___ (1st <br>Cir. 1998) [No. 97-2127, slip. op. at 8-13] (discussing federal <br>question jurisdiction).  Judge Lasker premised this holding on 20 <br>U.S.C.  1099b(f), which provides in pertinent part: <br>          Notwithstanding any other provision of law, <br>          any civil action brought by an institution of <br>          higher education seeking accreditation from, <br>          or accredited by, an accrediting agency or <br>          association approved by the Secretary . . . <br>          and involving the denial, withdrawal, or <br>          termination of accreditation of the <br>          institution of higher education, shall be <br>          brought in the appropriate United States <br>          district court. <br> <br>We review the denial of a motion to remand de novo and place the <br>burden of persuasion upon the party who insists that federal <br>jurisdiction obtains.  See BIW Deceived v. Local S6, 132 F.3d 824, <br>831 (1st Cir. 1997). <br>          We appear to be the first appellate court to address this <br>seldom-used removal statute.  The statutory language is <br>straightforward and the provision's meaning clear:  if a civil <br>action brought by an institution of higher education involves a <br>denial of accreditation, then federal jurisdiction exists.  MSL, by <br>self-characterization, is an institution of higher education, and <br>the ABA's withholding of accreditation is the cynosure of its suit.  <br>Thus, to the extent that MSL alleges harms within the accreditation <br>process   and such allegations permeate its complaint   section <br>1099b(f) applies. <br>          The only colorable issue that MSL raises with regard to <br>remand implicates the constitutionality of section 1099b(f).  This, <br>too, is a question of first impression.  For a case properly to <br>"aris[e] under" federal law, 28 U.S.C.  1331, Congress must confer <br>federal jurisdiction in the context of a broad statutory framework <br>within an area susceptible to congressional regulation.  In other <br>words, the jurisdictional grant must be "simply one part of [a] <br>comprehensive scheme."  Verlinden B. V. v. Central Bank of Nigeria, <br>461 U.S. 480, 496 (1983).  MSL contends that section 1099b(f) fails <br>this test and that Article III does not permit Congress to confer <br>federal jurisdiction by means of such a freewheeling jurisdictional <br>statute.  See, e.g., The Propellor Genesee Chief v. Fitzhugh, 53 <br>U.S. (12 How.) 443, 452 (1851); Mossman v. Higginson, 4 U.S. (4 <br>Dall.) 12, 13 (1800) (per curiam). <br>          The focus of our inquiry thus becomes whether section <br>1099b(f)'s grant of jurisdiction occurs within a sufficiently <br>comprehensive regulatory scheme.  We answer this question <br>affirmatively.  Accreditation serves an important national function <br>because once an institution of higher education becomes accredited <br>by the DOE or its designated accrediting agency, the institution <br>becomes eligible for federal student loan monies.  See Chicago Sch. <br>of Automatic Transmissions, Inc. v. Accreditation Alliance of <br>Career Schs. & Colleges, 44 F.3d 447, 449 (7th Cir. 1994).  The <br>Higher Education Act and the DOE's implementing regulations spin a <br>sophisticated regulatory web that governs the relationship between <br>accrediting agencies and accreditation applicants.  See, e.g., 34 <br>C.F.R.  602.24, 602.28 (1996) (requiring that accrediting agencies <br>apply consistent standards and give applicants due process).  The <br>grant of federal jurisdiction over matters involving accreditation <br>is reasonably related to the efficient operation of that system.  <br>No more is exigible. <br>          To summarize, section 1099b(f)'s grant of federal <br>jurisdiction occurs within a broad statutory framework, properly <br>the subject of congressional concern.  Accordingly, the statute <br>comports with Article III.  Removal was altogether appropriate. <br>VI.  THE EIGHT INDIVIDUAL DEFENDANTS <br>          When the district court applies the prima facie standard <br>and grants a motion to dismiss for want of in personam jurisdiction <br>without conducting an evidentiary hearing to resolve disputed <br>jurisdictional facts, the court of appeals reviews its ruling de <br>novo.  See Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d <br>138, 147 (1st Cir. 1995).  The lower court's decision to dismiss <br>MSL's action as to the Committee members   defendants Hasl, Moeser, <br>Ryan, Schneider, Sowle, Walwer, and Yu   falls within this sphere.  <br>So does the order dismissing the action against the last of the <br>Eight Individual Defendants, Henry Ramsey, Jr. (the chair of the <br>Section).  Withal, Ramsey's situation requires a more extended <br>analysis. <br>          The factual basis for MSL's jurisdictional initiative <br>derives predominantly from three events that occurred in 1993.  <br>According to the complaint, Hasl, Moeser, Schneider, and Ramsey met <br>in Boston on February 6.  The quartet allegedly "used false <br>statements and charges"   the nature of which is not disclosed   in <br>order "to try to bring their plan of non-accreditation of MSL to <br>fruition."  A review of the parties' proffers reveals, however, <br>that the only MSL-related business transacted at this meeting <br>involved a decision to delay the site visit by one month.  MSL next <br>alludes to a Committee meeting that took place on June 23 in <br>Brooklyn, New York.  The Eight Individual Defendants all attended <br>this session and participated in the denial of MSL's application <br>for accreditation.  The Eight Individual Defendants, save Ramsey, <br>also attended a retreat that took place on Nantucket Island, in <br>Massachusetts, from June 24-27.  MSL asserts conclusorily that the <br>Committee "finalized" the denial of its application during this <br>period, but the record flatly contradicts this assertion:  the <br>retreat participants all maintain (to quote from typical language <br>appearing in their several affidavits) that "[w]hile in Nantucket, <br>the Committee did not take up any agenda item concerning MSL, as <br>all matters concerning MSL had been concluded in Brooklyn, New <br>York, on June 23, 1993."  MSL proffers no clear evidence showing <br>that these statements are inaccurate. <br>          On a motion to dismiss for want of in personamjurisdiction, Fed. R. Civ. P. 12(b)(2), the plaintiff ultimately <br>bears the burden of persuading the court that jurisdiction exists.  <br>See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 <br>(1936); Rodriguez v. Fullerton Tires Corp., 115 F.3d 81, 83 (1st <br>Cir. 1997).  In conducting the requisite analysis under the prima <br>facie standard, we take specific facts affirmatively alleged by the <br>plaintiff as true (whether or not disputed) and construe them in <br>the light most congenial to the plaintiff's jurisdictional claim.  <br>See Ticketmaster, Inc. v. Alioto, 26 F.3d 201, 203 (1st Cir. 1994).  <br>We then add to the mix facts put forward by the defendants, to the <br>extent that they are uncontradicted.  See, e.g., Topp v. Compair <br>Inc., 814 F.2d 830, 836-37 (1st Cir. 1987).  We caution that, <br>despite the liberality of this approach, the law does not require <br>us struthiously to "credit conclusory allegations or draw <br>farfetched inferences."  Ticketmaster-N.Y., 26 F.3d at 203. <br>          A district court may exercise authority over a defendant <br>by virtue of either general or specific jurisdiction.  SeeDonatelli v. National Hockey League, 893 F.2d 459,  462-63 (1st <br>Cir. 1990).  General jurisdiction "exists when the litigation is <br>not directly founded on the defendant's forum-based contacts, but <br>the defendant has nevertheless engaged in continuous and systematic <br>activity, unrelated to the suit, in the forum state."  United <br>Elec., Radio & Mach. Workers v. 163 Pleasant St. Corp., 960 F.2d <br>1080, 1088 (1st Cir. 1992).  MSL does not argue, and we find no <br>facts to suggest, that any of the Eight Individual Defendants can <br>be brought before a Massachusetts court on a general jurisdiction <br>theory. <br>          In the absence of general jurisdiction, a court's power <br>depends upon the existence of specific jurisdiction.  Specific <br>jurisdiction exists when there is a demonstrable nexus between a <br>plaintiff's claims and a defendant's forum-based activities, such <br>as when the litigation itself is founded directly on those <br>activities.  See Donatelli, 893 F.2d at 462.  In this instance, MSL <br>asserts specific jurisdiction under Mass. Gen. L. ch. 223A.  3 <br>(1992).  MSL cites variously to section 3(a), which extends <br>"personal jurisdiction over a person, who acts directly or by an <br>agent, as to a cause of action in law or equity arising from the <br>person's . . . transacting any business" in Massachusetts, and to <br>section 3(c), which authorizes personal jurisdiction over a non- <br>resident who causes "tortious injury" by an "act or omission in <br>this Commonwealth." <br>          We need not pause to consider the particulars of the <br>Massachusetts long-arm statute.  Even if that statute, correctly <br>applied, would purport to grant jurisdiction over the Eight <br>Individual Defendants   a matter of state law on which we take no <br>view   MSL still would have to demonstrate that "the exercise of <br>jurisdiction pursuant to that statute comports with the strictures <br>of the Constitution."  Pritzker v. Yari, 42 F.3d 53, 60 (1st Cir. <br>1994).  In the personal jurisdiction context, we have characterized <br>compliance with the Constitution as implicating "three distinct <br>components, namely, relatedness, purposeful availment (sometimes <br>called 'minimum contacts'), and reasonableness."  Foster-Miller, 46 <br>F.3d at 144.  We analyze the situations of the Eight Individuals <br>Defendants through this prism. <br>          In order for the extension of personal jurisdiction to <br>survive constitutional scrutiny, a claim must "arise out of, or be <br>related to, the defendant's in-forum activities."  Ticketmaster- <br>N.Y., 26 F.3d at 206.  We have approached the relatedness inquiry <br>with slightly different emphases when the plaintiff asserts a <br>contract claim then when she asserts a tort claim:  if a contract <br>claim, our stereotypical inquiry tends to ask whether the <br>defendant's forum-based activities are "instrumental in the <br>formation of the contract," Hahn v. Vermont Law Sch., 698 F.2d 48, <br>51 (1st Cir. 1983); if a tort claim, we customarily look to whether <br>the plaintiff has established "cause in fact (i.e., the injury <br>would not have occurred 'but for' the defendant's forum-state <br>activity) and legal cause (i.e., the defendant's in-state conduct <br>gave birth to the cause of action)."  United Elec., Radio & Mach. <br>Workers, 960 F.2d at 1089; see also Ticketmaster-N.Y., 26 F.3d at <br>207 (noting that the relatedness inquiry is intended in part to <br>"ensure[] that the element of causation remains in the forefront of <br>the due process investigation").  In respect to the Eight <br>Individual Defendants, MSL presents only tort claims before us, <br>and thus our relatedness analysis thus focuses on causation.  We <br>find this element clearly lacking as regards the seven Committee <br>members. <br>     The only activities undertaken in Massachusetts by any of <br>these seven persons that possibly could relate to MSL's state-law <br>claims consists of the participation of three of them in the Boston <br>meeting and the attendance of all seven at the Nantucket retreat.  <br>MSL's insinuations notwithstanding, the particularized facts that <br>were before the district court show conclusively that both of these <br>activities were benign:  the Boston meeting dealt with MSL in a <br>purely peripheral sense (doing no more than to delay the site visit <br>to MSL's facility by one month), and the retreat did not deal with <br>MSL at all. <br>     MSL also argues that two letters written to it by James <br>White, an ABA consultant, are sufficient to extend personal <br>jurisdiction over the Eight Individual Defendants.  One of these <br>communiques informed MSL of the Committee's decision not to grant <br>MSL provisional approval; contemporaneous copies were sent by White <br>to the seven Committee members.  The other letter informed MSL of <br>the Council's decision to reject its application for a variance <br>pursuant to Standard 802 and to deny its accreditation appeal.  <br>Contemporaneous copies of this letter were sent to defendants Hasl, <br>Moeser, and Ramsey. <br>     These missives do not carry weight in the jurisdictional <br>calculus vis--vis the Eight Individual Defendants.  We cannot <br>subscribe to a transitive view of minimum contacts, which would <br>hold that a letter from A to B that reports on C's actions confers <br>personal jurisdiction over C in B's home state based on those <br>actions.  Without a more substantial nexus, the extension of such <br>jurisdiction would violate due process, for the connection between <br>C's actions in an extra-forum jurisdiction and B's home state is <br>too attenuated to satisfy the relatedness requirement.  SeeHelicoperos Nacionales de Colombia v. Hall, 466 U.S. 408, 417 <br>(1984).  Nor do we think that the case for the application of such <br>a novel rule is bolstered by the mere fact that A (acting, for <br>aught that appears, on his own initiative) chooses to inform C of <br>his communication with B by mailing her a copy of it. <br>     Although MSL does not assert in so many words that the <br>Committee's denial of accreditation at the Brooklyn meeting <br>constitutes conduct directed into Massachusetts sufficient to <br>bestow personal jurisdiction, it intimates as much.  We therefore <br>address this possibility.  The transmission of facts or information <br>into Massachusetts via telephone or mail would of course constitute <br>evidence of a jurisdictional contact directed into the forum state, <br>see Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985), but <br>we must determine whether the Committee's decision to deny <br>accreditation   a decision that had effects in Massachusetts   <br>qualifies as such a contact. <br>     We have wrestled before with this issue of whether the <br>in-forum effects of extra-forum activities suffice to constitute <br>minimum contacts and have found in the negative.  For example, in <br>Sawtelle v. Farrell, 70 F.3d 1381 (1st Cir. 1995), we recounted <br>Kowalski v. Doherty, Wallace, Pillsbury & Murphy, 787 F.2d 7 (1st <br>Cir. 1986), and noted that in Kowalski "we rejected the plaintiff's <br>contention that, because the 'effects' of the firm's negligence <br>were felt in New Hampshire, the law firm had caused an injury there <br>by conduct directed at that forum."  Sawtelle, 70 F.3d at 1390.  <br>Just as the New Hampshire effects of Massachusetts negligence, <br>without more, could not sustain an action in New Hampshire against <br>the negligent actor, see Kowalski, 787 F.2d at 11, so too the <br>Massachusetts effects of the Eight Individual Defendants' New York <br>actions, without more, fail to sustain an action in a Massachusetts <br>court.  Accord Sawtelle, 70 F.3d at 1394 (holding that New <br>Hampshire effects of non-forum negligence, without more, are <br>insufficient to support personal jurisdiction). <br>     Ramsey is in a slightly different position.  Although <br>what we have just discussed pertains to him   after all, he <br>participated in both the Boston and Brooklyn meetings   it is not <br>conclusive because the record reflects that, unlike his seven <br>cohorts, he had other contacts which might suffice to clear the <br>relatedness hurdle.  Ramsey wrote a memorandum to White that <br>memorialized a conversation between Ramsey and MSL's Dean Velvel.  <br>Ramsey reported that during this conversation Velvel attempted to <br>couple MSL's effort to obtain waivers under Standard 802 with MSL's <br>plan to persuade the DOE to jettison the ABA as the national <br>accrediting agency for law schools.  The memorandum itself <br>indicates that Ramsey sent a copy to Velvel, presumably at MSL, and <br>the inclusion of Velvel's Andover telephone number indicates that <br>Velvel was in Massachusetts when he and Ramsey spoke.  Although the <br>contents of this memorandum hardly flatter MSL, the memorandum <br>constitutes some indication that Ramsey engaged in conduct that <br>might bear upon the relatedness inquiry. <br>     Because of our doubts about the outcome of the <br>relatedness inquiry vis--vis Ramsey, we turn to the question of <br>whether Ramsey's contacts with Massachusetts "represent a <br>purposeful availment of the privilege of conducting activities in <br>[Massachusetts], thereby invoking the benefits and protections of <br>[its] laws and making the defendant's involuntary presence before <br>[the Massachusetts] court foreseeable."  Pritzker, 42 F.3d at 61 <br>(internal quotation marks and citation omitted). <br>     Even though the record suggests that Ramsey participated <br>in a telephone call with Dean Velvel concerning MSL's accreditation <br>while Velvel was in Massachusetts, it is uninformative as to who <br>initiated the call.  In either case, we believe that this solitary <br>telephone conversation and the subsequent mailing of a copy of <br>Ramsey's memorandum, even when combined with Ramsey's participation <br>in the Boston meeting, are insufficient to establish purposeful <br>availment.  See, e.g., Aylward v. Fleet Bank, 122 F.3d 616, 618 <br>(8th Cir. 1997) (holding that three telephone calls and one letter <br>within a seven month period were insufficient to support the <br>exercise of personal jurisdiction when the alleged injury did not <br>arise directly from the contacts); U.S.S. Yachts, Inc. v. Ocean <br>Yachts, Inc., 894 F.2d 9, 11 (1st Cir. 1990) (holding that three <br>letters sent to Puerto Rico were insufficient to support the <br>exercise of personal jurisdiction in that venue).  Put another way, <br>based on these exiguous contacts Ramsey could not reasonably have <br>foreseen being haled into a Massachusetts court to answer <br>allegations of a wide-ranging conspiracy.  We therefore conclude <br>that the extension of personal jurisdiction to him would violate <br>his due process rights. <br>     In a last-ditch effort to stem the tide, MSL laments that <br>it did not have the opportunity to engage in jurisdictional <br>discovery.  The docket contains no evidence, however, that MSL ever <br>made a motion or other documented request for jurisdictional <br>discovery in the district court.  Therefore, in accordance with <br>firmly settled principles, we will not entertain its plaint now.  <br>See Sunview Condo. Ass'n v. Flexel Int'l, Ltd., 116 F.3d 962, 964- <br>65 (1st Cir. 1997). <br>     We have said enough on this score.  Because MSL neither <br>alleged nor proffered sufficient facts to permit the exercise of <br>jurisdiction over the Eight Individual Defendants, the district <br>court did not err when it granted their motion to dismiss.  SeeFed. R. Civ. P. 12(b)(2). <br>VII.  THE ABA AND THE AALS <br>     The ABA and the AALS each present multiple grounds in <br>support of the district court's grant of summary judgment.  The <br>most striking of these is the defense of res judicata.  In its <br>present iteration, this defense turns on whether the judgment <br>entered in the previous litigation between the parties (MSL I) bars <br>the plaintiff from maintaining the instant action against these two <br>institutional defendants.  <br>     Where, as here, both the potentially precluding suit and <br>the potentially precluded suit were litigated in federal courts, <br>federal law governs the res judicata effect of the prior judgment.  <br>See Gonzalez v. Banco Central Corp., 27 F.3d 751, 755 (1st Cir. <br>1994).  The elements of federal res judicata are "(1) a final <br>judgment on the merits in an earlier suit, (2) sufficient <br>identicality between the causes of action asserted in the earlier <br>and later suits, and (3) sufficient identicality between the <br>parties in the two suits."  Id.  In this instance, the first and <br>third tines of the test are foregone conclusions.  Because the <br>Supreme Court denied certiorari after the Third Circuit affirmed <br>the district court's entry of final judgment in MSL I, the finality <br>of the earlier judgment cannot be gainsaid.  By like token, MSL, <br>the ABA, and the AALS were parties to the precursor litigation and <br>thus satisfy the identicality requirement.  The question, then, is <br>whether the state-law claims that MSL now advances against the ABA <br>and the AALS are sufficiently related to the causes of action <br>asserted in MSL I to warrant claim preclusion. <br>     We begin with bedrock.  To bring claim preclusion into <br>play, a cause of action need not be a clone of the earlier cause of <br>action.  "Under res judicata, a final judgment on the merits of an <br>action precludes the parties or their privies from relitigating <br>issues that were or could have been raised in that action."  Allenv. McCurry, 449 U.S. 90, 94 (1980).  We have adopted a <br>transactional approach to determine whether causes of action are <br>sufficiently related to support a res judicata defense.  See Kalev. Combined Ins. Co., 924 F.2d 1161, 1166 (1st Cir. 1991).  "Under <br>this approach, a cause of action is defined as a set of facts which <br>can be characterized as a single transaction or series of related <br>transactions."  Apparel Art Int'l, Inc. v. Amertex Enters., Ltd., <br>48 F.3d 576, 583 (1st Cir. 1995).  This boils down to whether the <br>causes of action arise out of a common nucleus of operative facts.  <br>See Gonzalez, 27 F.3d at 755.  In mounting this inquiry, we <br>routinely ask "whether the facts are related in time, space, <br>origin, or motivation, whether they form a convenient trial unit, <br>and whether their treatment as a unit conforms to the parties' <br>expectations."  Aunyx Corp. v. Canon U.S.A., Inc., 978 F.2d 3, 6 <br>(1st Cir. 1992) (quoting Restatement (Second) of Judgments  24 <br>(1982)). <br>     These principles are dispositive here.  MSL's pending <br>claims, though rooted in Massachusetts law, plainly arise from the <br>same set of operative facts as its earlier antitrust claims.  <br>Although MSL describes the later claims more colloquially and <br>dresses them in different legal raiment, the conduct that <br>underbraces the two sets of claims is strikingly similar in time, <br>space, origin, and motivation.  Both suits stem from MSL's failed <br>efforts in 1992 and 1993 to receive ABA accreditation.  In both <br>cases, MSL alleges that the ABA and the AALS orchestrated a long- <br>term scheme to accumulate power and money and a short-term scheme <br>to deny accreditation unjustly to MSL because MSL dared to oppose <br>their hegemony. <br>     In addition to their common heritage, the two suits also <br>are compatible in a practical sense.  It is  settled "that where <br>the witnesses or proof needed in the second action overlap <br>substantially with those used in the first action, the second <br>action should ordinarily be precluded."  Porn v. National Grange <br>Mut. Ins. Co., 93 F.3d 31, 36 (1st Cir. 1996).  Because neither <br>MSL's antitrust claims nor its state-law claims survived summary <br>disposition, we must make an informed prophecy as to what witnesses <br>would have appeared and what proof would have emerged had the two <br>cases been tried.  Here, the two suits' factual underpinnings are <br>the same.  This unmistakable congruence strongly suggests that the <br>same witnesses   largely ABA, AALS, and MSL personnel   and <br>information   the evolution of the ABA accreditation procedures and <br>the details of the MSL accreditation effort   would have been <br>necessary to resolve both cases.  This substantial imbrication <br>makes it apparent that the two cases would have formed a convenient <br>trial unit and argues powerfully for claim preclusion.  See id. at <br>34; see also King v. Uncon Oil Co., 117 F.3d 443, 445 (10th Cir. <br>1997). <br>     To the extent that reasonable expectations, objectively <br>assayed, enter into the res judicata calculus, they augur here <br>toward the same conclusion.  In the first place, since the two sets <br>of claims arise in the same time frame out of similar facts, "one <br>would reasonably expect them to be brought together," Porn, 93 F.3d <br>at 37.  In the second place, a party may be more readily presumed <br>to expect that a court will treat multiple causes of action as a <br>single trial unit when the plaintiff has all the facts necessary to <br>bring the second claim at its disposal before or during the <br>pendency of the first.  MSL does not identify any significant facts <br>that were not within its ken  before the antitrust action reached <br>its climax.  We therefore conclude that the application of res <br>judicata is an entirely predictable consequence of MSL's unilateral <br>decision to split its claim. <br>     Of course, res judicata will not attach if the claim <br>asserted in the second suit could not have been asserted in the <br>first.  See In re Newport Harbor Assocs., 589 F.2d 20, 24 (1st Cir. <br>1978).  In an effort to avoid looming defeat, MSL tries to squeeze <br>through this loophole by questioning whether it could have brought <br>the instant claims in the Eastern District of Pennsylvania.  <br>Insofar as this question relates to MSL's pursuit of the ABA and <br>the AALS, it is easily answered. <br>     Under 28 U.S.C.  1367(a), a federal court that exercises <br>federal question jurisdiction over a claim may also assert <br>supplemental jurisdiction over all state-law claims that arise from <br>the same operative facts.  See BIW Deceived, 132 F.3d at 833; <br>Rodriguez v. Doral Mortgage Co., 57 F.3d 1168, 1175 (1st Cir. <br>1995).  As we already have determined, the facts upon which MSL <br>grounded its antitrust action concern MSL's efforts to receive ABA <br>accreditation between 1992 and 1993.  This same trove of facts also <br>provides the basis for MSL's state-law claims against the ABA and <br>the AALS.  As a result, had MSL ventured to bring its current <br>compendium of claims before the Pennsylvania federal district court <br>as part and parcel of MSL I, that court could have entertained them <br>in conjunction with the antitrust action then before it.  See 28 <br>U.S.C.  1367. <br>     Despite the fact that the Court has ceded the federal <br>judiciary broad leeway to "look to the common law or to the <br>policies supporting res judicata . . . in assessing the preclusive <br>effect of decisions of other federal courts," Allen, 449 U.S. at <br>96, MSL makes one last effort to undercut the district court's <br>determination.  Res judicata cannot be applied against a plaintiff <br>unless the plaintiff had a full and fair opportunity to litigate <br>all its claims in the original action.  See id. at 90; Kale, 924 <br>F.2d at 1168. Citing a series of adverse discovery rulings, MSL <br>argues that it did not receive such an opportunity in the Eastern <br>District of Pennsylvania. <br>     The Court has not yet addressed the standard for <br>determining the existence vel non of a full and fair opportunity in <br>regard to a prior federal judgment.  The standard, however, is <br>quite permissive as it pertains to prior state court judgments.  To <br>meet this standard, a state court judgment need only "satisfy the <br>minimal procedural requirements of the Fourteenth Amendment's Due <br>Process Clause."  Kremer v. Chemical Constr. Corp., 456 U.S. 461, <br>481 (1982).  We do not envision a significantly less latitudinarian <br>test for federal court judgments.  We hold, therefore, that as long <br>as a prior federal court judgment is procured in a manner that <br>satisfies due process concerns, the requisite "full and fair <br>opportunity" existed. <br>     Here, MSL points to its numerous failed efforts to obtain <br>additional discovery in the Eastern District of Pennsylvania and <br>asseverates that draconian restrictions deprived it of an adequate <br>chance to litigate its claims in MSL I.  These allegations of <br>discovery error are reheated for our consumption.  They previously <br>were reviewed and rejected by the Third Circuit, see MSL I, 107 <br>F.3d at 1033-34, and we see no reason to revisit that <br>determination. <br>     At any rate, a full and fair opportunity to litigate <br>cannot be equated with a license to do as a party pleases.  The <br>adjudicative process operates pursuant to rules, and an opportunity <br>to litigate is no less "full" or "fair" simply because the forum <br>court enforces conventional limitations on pretrial discovery.  By <br>any conceivable criterion, MSL had its full and fair opportunity to <br>assert, in the Pennsylvania proceeding, the panoply of procedural <br>and substantive rights guaranteed it by federal law.  Its first <br>action therefore furnishes a proper predicate for the application <br>of res judicata in its second action. <br>     In this instance, all roads lead to Rome.  MSL had an <br>appropriate opportunity to litigate its first set of claims, and <br>conveniently could have brought the second set as part of the same <br>proceeding.  Its failure to do so dooms the instant action since <br>MSL's two sets of allegations arise from a common nucleus of <br>operative facts and fit together tongue and groove.  We conclude <br>that, as a consequence of this road not taken, res judicata <br>precludes MSL's state-law claims against the ABA and the AALS.  <br>Accordingly, we affirm the district court's grant of summary <br>judgment in favor of these two institutional defendants. <br>VIII.  NEW ENGLAND SCHOOL OF LAW <br>     The district court granted NESL's motion to dismiss, <br>ruling that the complaint failed to state a claim against NESL upon <br>which relief could be granted.  See Fed. R. Civ. P. 12(b)(6).  We <br>review this determination de novo, accept all well-pleaded facts as <br>true, and draw all reasonable inferences in favor of the plaintiff.  <br>See Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st <br>Cir. 1989).  Notwithstanding the generous contours of this <br>standard, a reviewing court need not "swallow plaintiff's invective <br>hook, line, and sinker; bald assertions unsupportable conclusions, <br>periphrastic circumlocutions, and the like need not be credited."  <br>Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996). <br>     MSL's briefing reads as if it were seeking to hold NESL <br>liable for civil conspiracy.  Nevertheless, its complaint aims the <br>conspiracy charge elsewhere and the sufficiency of a complaint <br>ordinarily should be tested by examining the claims that are stated <br>therein rather than by weighing afterthought claims that are only <br>mentioned in a legal brief.  See Beddall v. State St. Bank & Trust <br>Co., ___ F.3d ___, ___ (1st Cir. 1998) [No. 97-1666, slip op. at <br>20-21]; Doyle v. Hasbro, Inc., 103 F.3d 186, 190 (1st Cir. 1996); <br>Litton Indus., Inc. v. Colon, 587 F.2d 70, 74 (1st Cir. 1978).  As <br>MSL's complaint does not level a conspiracy charge against NESL, we <br>limit our inquiry to the claims that MSL saw fit to plead. <br>     MSL's complaint asserts two causes of action against <br>NESL:  tortious misrepresentation and violations of the <br>Massachusetts statute governing unfair and deceptive trade <br>practices (commonly known as Chapter 93A).  The complaint <br>predicates these causes of action on an exchange of correspondence <br>between NESL officials (specifically, James Lawton, the chair of <br>NESL's board of trustees, and Ellen Wayne, NESL's placement <br>director) and the ABA's consultant, James White.  We catalog these <br>four pieces of correspondence. <br>     Lawton wrote to White on January 2, 1990, stating in <br>pertinent part: <br>          The chairman of the Massachusetts Board <br>     of Regents is former U.S. Senator Paul Tsongas <br>     and he is for all intents and purposes the <br>     "principal" in the Massachusetts School of Law <br>     at Andover.  Mr. Tsongas has the solid support <br>     of the Boston Globe and the Board of Regents <br>     are under his complete control at this time. <br>          My guess is that any other, new or <br>     competing law schools, which may come into <br>     existence will not receive support from the <br>     Regents who are a rigidly controlled group of <br>     Dukakis loyalists who will only do what they <br>     are told by the present administration under <br>     Tsongas and [Governor] Dukakis. <br> <br>     Later that year, Wayne informed White that Massachusetts <br>authorities had authorized MSL to award J.D. degrees, and that its <br>graduates henceforth could sit for the Massachusetts bar.  This <br>missive, dated June 19, 1990, also mentioned that MSL had requested <br>and received a table at a fair sponsored by the Northeast <br>Association of Pre-Law Advisors (NAPLA).  Wayne reported that <br>NAPLA's by-laws had compelled approval of MSL's request, but that <br>the NAPLA board of directors would amend the by-laws to restrict <br>participation in subsequent programs to "ABA approved law <br>school[s]."  The complaint does not allege that NAPLA excluded MSL <br>from any subsequent events. <br>     Eight days later, White wrote to Lawton and solicited his <br>opinion as to the possibility of convincing the Massachusetts <br>Supreme Judicial Court (SJC) to amend its rules and require <br>graduation from an ABA-accredited law school as a prerequisite to <br>taking the Massachusetts bar examination.  Lawton's response, dated <br>July 17, 1990, indicated his approbation and recommended that <br>members of the bar petition for such an amendment.  The complaint <br>does not allege that such a request was ever made or that the SJC <br>revised its rules in the desired manner. <br>     The first letter from Lawton to White is plainly <br>inaccurate insofar as it proclaims a Tsongas/MSL connection.  <br>Senator Tsongas, who had ties to a different unaccredited law <br>school, had none with MSL.  MSL does not assert that the first <br>letter contains any other inaccuracies and does not point to any <br>misstatements in the remaining three epistles. <br>     Against this mise-en-scne, we turn to MSL's claim of <br>tortious misrepresentation.  This strikes us as something of a <br>misnomer (our canvass of Massachusetts case law does not reveal a <br>single articulation of the elements of a particularized cause of <br>action for tortious misrepresentation), but in all events, <br>Massachusetts jurisprudence recognizes causes of action for both <br>fraudulent misrepresentation and negligent misrepresentation.  See, <br>e.g., Craig v. Everett M. Brooks Co., 222 N.E.2d 752, 753 (Mass. <br>1967) (fraudulent misrepresentation); NYCAL Corp. v. KPMG Peat <br>Marwick, 688 N.E.2d 1368, 1371 (Mass. 1998) (negligent <br>misrepresentation).  MSL's complaint does not plead this claim with <br>sufficient particularity to support a charge of fraud, see Fed. <br>R. Civ. P. 9(b), and thus, we interpret the complaint as an attempt <br>to articulate a claim for negligent misrepresentation.  The <br>elements of such a cause of action are that the defendant falsely <br>represented a past or existing material fact without any reasonable <br>basis for thinking it to be true; that he intended to euchre the <br>plaintiff into relying on the representation; that the plaintiff, <br>unaware of the representation's falsity, justifiably relied on it; <br>and that the plaintiff suffered harm due to his reliance.  See 37 <br>Am. Jur. 2d, Fraud and Deceit  12 (1968). <br>     The claim deserves short shrift.  To be sure, the <br>comments about Senator Tsongas amount to a misrepresentation, but <br>MSL does not plead that it relied on that misrepresentation to its <br>detriment, and such reliance cannot plausibly be inferred from the <br>complaint's other averments.  The general rule is that, without <br>this necessary element, there can be no recovery for negligent <br>misrepresentation under Massachusetts law.  See Romanoff v. Balcom, <br>339 N.E.2d 927, 927 (Mass. App. Ct. 1976). <br>     There is an exception to this rule.  In the absence of <br>detrimental reliance, a party still may be held liable under <br>Massachusetts law for misrepresentation of information negligently <br>supplied for the guidance of others.  See  Fox v. F & J Gattozzi <br>Corp., 672 N.E.2d 547, 551 (Mass. App. Ct. 1996) (stating that if <br>a defendant "in the course of his business . . . supplies false <br>information for the guidance of others in their business <br>transactions," he "is subject to liability for pecuniary loss <br>caused to [third persons] by [the recipient's] justifiable reliance <br>upon the information, if he fails to exercise reasonable care or <br>competence in obtaining or communicating the information") (quoting <br>Restatement (Second) Torts  552(a) (1977)). <br>     MSL's claim for tortious misrepresentation fails to <br>qualify for this exception.  Even if we assume that Lawton's first <br>letter to White occurred in the course of a "business transaction" <br>  a fact that MSL does not allege   MSL pleads neither that it (or <br>anyone else, for that matter) relied upon Lawton's faux pas nor <br>that it suffered any harm as a result of the transmittal of the <br>Tsongas-related (mis)information.  Hence, the district court did <br>not err in granting NESL's motion to dismiss the tortious <br>misrepresentation count. <br>     We next engage MSL's Chapter 93A claim for "unfair and <br>deceptive acts."  Mass. Gen. Laws ch. 93A,  2.  By their nature, <br>Chapter 93A claims tend to be case-specific.  Their general meter, <br>however, is that the defendant's conduct must be not only wrong, <br>but also egregiously wrong   and this standard calls for <br>determinations of egregiousness well beyond what is required for <br>most common law claims.  See Whitinsville Plaza, Inc. v. Kotseas, <br>390 N.E.2d 243, 251 (Mass. 1979).  To quote a by-now-familiar <br>formulation, "the objectionable conduct must attain a level of <br>rascality that would raise an eyebrow of someone inured to the <br>rough and tumble of the world of commerce."  Levings v. Forbes & <br>Wallace, Inc., 396 N.E.2d 149, 153 (Mass. App. Ct. 1979). <br>     MSL's complaint is inscrutable as to the precise nature <br>of its Chapter 93A claim and its briefing is not very helpful on <br>this score.  Its complaint attributes nothing to NESL beyond the <br>latter's role in the exchange of correspondence described above.  <br>MSL apparently means to asseverate that publication of the <br>statements contained in the exchange of correspondence defamed or <br>otherwise damaged it and thus transgressed Chapter 93A.  This <br>asseveration cannot survive scrutiny. <br>     The SJC recently has held that "where allegedly <br>defamatory statements do not support a cause of action for <br>defamation, they also do not support a cause of action under <br>[Chapter] 93A."  Dulgarian v. Stone, 652 N.E.2d 603, 609 (Mass. <br>1995).  Truth is an absolute defense to a defamation action under <br>Massachusetts law, see Bander v. Metropolitan Life Ins. Co., 47 <br>N.E.2d 595, 598 (Mass. 1943), and MSL therefore must demonstrate <br>that NESL published "a false and defamatory written communication <br>of and concerning the plaintiff."  McAvoy v. Shufrin, 518 N.E.2d <br>513, 517 (Mass. 1988).  As previously noted, the only false <br>statement ascribed to any NESL representative concerns Senator <br>Tsongas's alleged patronage of MSL. <br>     We next consider if that statement can form the basis for <br>a claim of defamation by MSL.  Whether a statement is reasonably <br>susceptible of a defamatory meaning is a question of law for the <br>court.  See Foley v. Lowell Sun Pub. Co., 533 N.E.2d 196, 197 <br>(Mass. 1989).  For a communication to qualify as defamatory, "[t]he <br>test is, whether, in the circumstances, the writing discredits the <br>plaintiff in the minds of any considerable and respectable class in <br>the community."  Smith v. Suburban Restaurants, Inc., 373 N.E.2d <br>215, 217 (Mass. 1978).  The core question, therefore, is not <br>whether Lawton's demonstrated falsehood discredits somebody   it <br>plainly denigrates the late senator   but whether it significantly <br>discredits MSL.  See New Eng. Tractor-Trailer Training, Inc. v. <br>Globe Newspaper Co., 480 N.E.2d 1005, 1007 (Mass. 1985). <br>     In our estimation, the misstatement contained in Lawton's <br>January 2 letter does not sink to this level.  The senator enjoyed <br>an enviable reputation as a public servant of the highest <br>integrity.  MSL has failed utterly to suggest how any educational <br>institution could be defamed by attributing to it a connection with <br>him.  Absent such a link, no action lies.  See, e.g., Schwanbeck v. <br>Federal-Mogul Corp., 578 N.E.2d 789, 804 (Mass. App. Ct. 1991) <br>(explaining that false statements must have adverse consequences <br>for a plaintiff in order to be actionable under Chapter 93A).  <br>Thus, the Tsongas-related comment, though untrue, is not defamatory <br>of and concerning MSL. <br>     Nor does MSL's complaint allege any other cognizable <br>basis for Chapter 93A liability on NESL's part.  The four items of <br>correspondence hint that NESL did not wish MSL well, but none of <br>the matters which its representatives discussed with White suggest <br>activities so scurrilous as to trigger liability under Chapter 93A.  <br>Although we understand that a Chapter 93A violation need not rest <br>on an independent common law tort, see Massachusetts Farm Bureau <br>Fed'n, Inc. v. Blue Cross, Inc., 532 N.E.2d 660, 664 (Mass. 1989), <br>the conduct must at least come within shouting distance of some <br>established concept of unfairness.  See Gooley v. Mobil Oil Corp., <br>851 F.2d 513, 515-16 (1st Cir. 1988). <br>     To sum up, even if Lawton and Wayne, on NESL's behalf, <br>participated in activities of the kind adumbrated by their <br>correspondence, such activities, though hostile to MSL and inimical <br>to its interests, are not "so seriously deceptive and harmful" as <br>to permit recovery under Chapter 93A.  Zayre Corp. v. Computer Sys. <br>of Am., Inc., 511 N.E.2d 23, 30 n.23 (Mass. App. Ct. 1987).  <br>Indeed, NESL's suspected (but unproven and unalleged) "actions"   <br>e.g., asking NAPLA to amend its by-laws or petitioning the SJC to <br>revise its rules   do not abridge any legal duty or bedrock concept <br>of unfairness, and are not so "unethical, oppressive, or <br>unscrupulous" as to be actionable under Chapter 93A.  PMP Assocs., <br>Inc. v. Globe Newspaper Co., 321 N.E.2d 915, 917 (Mass. 1975) <br>(citation and internal quotation marks omitted).  What is more, MSL <br>fails to allege how NESL's involvement in these activities actually <br>caused any cognizable economic harm to it.  In itself, this is a <br>fatal flaw.  See Zayre Corp., 511 N.E.2d at 30; see also Mass. Gen. <br>Laws ch. 93A,  11 (explaining that, in a Chapter 93A claim, the <br>complainant must show that she "suffer[ed] a loss of money or <br>property, real or personal, as a result of the use . . . of an <br>unfair method of competition or an unfair or deceptive act or <br>practice"). <br>     That ends the matter.  Because MSL has not advanced any  <br>sound basis on which NESL could be held liable either for negligent <br>misrepresentation or for transgressing Chapter 93A, we uphold Judge <br>Lasker's order granting NESL's motion to dismiss. <br>IX.  THE SIX INDIVIDUAL DEFENDANTS <br>     We need not linger long over MSL's claims against the Six <br>Individual Defendants.  This sextet comprises the ABA's consultant <br>(White), plus the five members of the site-visit team (Garcia- <br>Pedrosa, Nahstoll, Smith, Strickland, and Winograd).  Judge Lasker <br>dismissed MSL's breach of contract claim against these persons <br>under Rule 12(b)(6) and entered summary judgment in their favor on  <br>MSL's remaining claims. <br>     Our review is swift because "[w]e have steadfastly deemed <br>waived issues raised on appeal in a perfunctory manner, not <br>accompanied by developed argumentation."  United States v. <br>Bongiorno, 106 F.3d 1027, 1034 (1st Cir. 1997).  An issue lacks <br>developed argumentation if the appellant merely mentions it as "a <br>possible argument in the most skeletal way, leaving the court to do <br>counsel's work."  United States v. Zannino, 895 F.2d 1, 17 (1st <br>Cir. 1990). <br>     This is such a case.  MSL's brief focuses mainly on the <br>ABA and does not  make any real attempt to construct a reasoned <br>argument that would call into legitimate question the district <br>court's rulings with regard to the Six Individual Defendants.  Of <br>course, with a record appendix that boasts more than 6,500 pages, <br>MSL has furnished a welter of paper, but it has not arrayed these <br>plethoric evidentiary materials in any systematic way vis--vis <br>these defendants.  Instead, MSL strives to bind together several <br>mounds of proof, quasi-proof, and unsubstantiated allegations <br>together with desultory rhetoric.  More is required to pass muster <br>under Bongiorno and Zannino.  Accordingly, MSL has forfeited any <br>objection to the lower court's entry of judgment in favor of the <br>Six Individual Defendants. <br>X.  THE RULE 56(f) MOTION <br>     Fed. R. Civ. P. 56(f) provides: <br>          Should it appear from the affidavits of a <br>     party opposing [a motion for summary judgment] <br>     that the party cannot for reasons stated <br>     present by affidavit facts essential to <br>     justify the party's opposition, the court may <br>     refuse the application for judgment or may <br>     order a continuance to permit affidavits to be <br>     obtained or depositions to be taken or <br>     discovery to be had or may make such other <br>     order as is just. <br> <br>MSL contends that the district court erroneously denied its motion <br>for further discovery under Rule 56(f).  This contention lacks <br>force. <br>     We first set the stage.  The ABA and the Six Individual <br>Defendants moved for dismissal on March 29, 1996.  The AALS filed <br>a motion for summary judgment on the same date.  MSL opposed both <br>motions and the court heard oral arguments on June 7.  Three weeks <br>later, while the district court still had the motions under <br>advisement, MSL moved to defer their adjudication until it had <br>obtained more discovery.  After conferring with all counsel, the <br>district court denied the Rule 56(f) motion on August 28.  On <br>September 26, 1996, the AALS filed a supplemental motion for <br>summary judgment.  Four days later, the ABA and the Six Individual <br>Defendants filed a joint motion for summary judgment.  MSL again <br>filed oppositions, but did not renew its Rule 56(f) motion.  The <br>district court granted the AALS's motion for brevis disposition on <br>March 3, 1997, and granted the parallel  motion brought on behalf <br>of the ABA and the Six Individual Defendants on May 8, 1997. <br>     In this venue, MSL ardently embraces Rule 56(f).  It <br>contends that the district court acted improvidently in refusing <br>the requested continuance and proceeding to rule upon the <br>defendants' dispositive motions. <br>     To savor the balm of Rule 56(f), a party must act in a <br>timely fashion.  See Resolution Trust Corp. v. North Bridge <br>Assocs., Inc., 22 F.3d 1198, 1204 (1st Cir. 1994).  Moreover, the <br>moving papers must contain a proffer which, at a bare minimum, <br>articulates a plausible basis for the movant's belief that <br>previously undisclosed or undocumented facts exist, that those <br>facts can be secured by further discovery, and that, if obtained, <br>there is some credible prospect that the new evidence will create <br>a trialworthy issue.  See Mattoon v. City of Pittsfield, 980 F.2d <br>1, 7-8 (1st Cir. 1992); Paterson-Leitch Co. v. Massachusetts Mun. <br>Wholesale Elec. Co., 840 F.2d 985, 988 (1st Cir. 1988).  Finally, <br>the motion must set forth good cause to explain the movant's <br>failure to have conducted the desired discovery at an earlier date.  <br>See Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 584 (1st <br>Cir. 1994); Resolution Trust, 22 F.3d at 1205. <br>     We review the denial of relief under Rule 56(f) for abuse <br>of discretion.  See Sheinkopf v. Stone, 927 F.2d 1259, 1263 (1st <br>Cir. 1991).  We discern no abuse  here.  To the contrary, the <br>record reveals that MSL's attempt to invoke Rule 56(f) was both too <br>late and too little. <br>     We deal first with the temporal aspect.  It is firmly <br>established that a Rule 56(f) motion must be made within a <br>reasonable time following the receipt of a motion for summary <br>judgment.  See Resolution Trust, 22 F.3d at 1204.  This means that <br>a Rule 56(f) motion normally should precede or accompany the <br>response to the summary judgment motion or follow as soon as <br>practicable thereafter.  See Paterson-Leitch, 840 F.2d at 988.  Of <br>course, there may be extenuating circumstances under which "a party <br>opposing a dispositive motion may not realize until the initial <br>round of oral argument that he requires additional discovery time."  <br>Id.  But this is an outer limit, and a Rule 56(f) extension request <br>made after the conclusion of oral argument on a summary judgment <br>motion ordinarily comes too late.  See  C.B. Trucking, Inc. v. <br>Waste Mgmt., Inc., ___ F.3d ___, ___ (1st Cir. 1998) [No. 96-2347, <br>slip op. at 8 n.2]; Ashton-Tate Corp. v. Ross, 916 F.2d 516, 520 <br>(9th Cir. 1990); Dowling v. City of Philadelphia, 855 F.2d 136, 140 <br>(3d Cir. 1988); Pfeil v. Rogers, 757 F.2d 850, 856-57 (7th Cir. <br>1985). <br>     Measured against these temporal benchmarks, MSL's motion <br>  which was not made until three weeks after oral argument on the <br>defendants' initial set of dispositive motions   was out of time.  <br>Nor do sufficiently excusatory circumstances exist.  At the time it <br>instituted this action, MSL had been at war with the ABA and the <br>AALS for roughly two years.  It had received amplitudinous <br>discovery in the antitrust case and knew   or should have known   <br>immediately upon receipt of the defendants' dispositive motions <br>whether it needed more information to oppose them.  There is no <br>readily apparent reason why MSL procrastinated in deploying Rule <br>56(f), and MSL fails to offer any persuasive explanation for the <br>delay. <br>     Although we could affirm the district court's denial of <br>Rule 56(f) relief on this basis alone, the ruling also rests on <br>solid substantive grounds.  The plaintiff accompanied its motion <br>with an affidavit, executed by Dean Velvel, that described the <br>facts it hoped to unearth through further discovery.  By and large, <br>these facts pertain to the existence and operation of the <br>ostensible conspiracy between the ABA and the AALS.  But MSL did <br>not suggest below, and does not suggest here, how these new <br>materials would palliate the force of the ABA's and the AALS's res <br>judicata defense. <br>     That omission undermines MSL's position.  Whatever other <br>issues originally may have lurked in the penumbra of the <br>defendants' motions, the stark reality is that MSL's action <br>founders because it could have raised its state-law claims in MSL <br>I, but did not do so.  No additional discovery can alter that <br>reality.  Thus, the short answer to MSL's protest about truncated <br>discovery is that, as against the ABA and the AALS, the district <br>court's refusal to grant a Rule 56(f) continuance was harmless. <br>     Substantively speaking, there is yet another obstacle <br>blocking MSL's path.  A party relying on Rule 56(f) must <br>demonstrate that he exercised due diligence in pursuing discovery.  <br>See C.B. Trucking, ___ F.3d at ___ [slip op. at 9]; Ayala-Gerena v. <br>Bristol Myers-Squibb Co., 95 F.3d 86, 92 (1st Cir. 1996).  The <br>district court denied MSL's motion to remand on January 18, 1996.  <br>Insofar as we can tell, MSL thereafter failed to take steps <br>reasonably available to it to secure discovery.  We explain <br>briefly. <br>     The District of Massachusetts operates under an <br>"automatic discovery" paradigm.  See Fed. R. Civ. P. 26(a)(1); D. <br>Mass. Loc. R. 26.2 (1996).  The court's local rules provide that <br>unless otherwise ordered by a judicial officer, a "party must <br>provide to other parties disclosure of the information and <br>materials called for by [the automatic discovery rule]" before that <br>party can initiate further discovery.  D. Mass. Loc. R. 26.2(A).  <br>The record contains no evidence that MSL complied with its <br>automatic discovery responsibilities, that it attempted to initiate <br>any discovery, or that it sought permission from a judicial officer <br>to do so.  What is more, Judge Lasker issued a scheduling order on <br>February 28, 1996, in which he admonished all counsel that, if <br>discovery could not be effectuated consensually, "motions to compel <br>discovery may be filed in accordance with the provisions of Local <br>Rule 26.2(C)."  MSL never filed any such motion. <br>     We will not paint the lily.  Rule 56(f) is designed to <br>"minister[] to the vigilant, not to those who slumber upon <br>perceptible rights."  Paterson-Leitch, 840 F.2d at 989 n.5 <br>(internal quotation marks and citation omitted).  Given its <br>lethargic approach to discovery, MSL cannot now be heard to <br>complain about the district court's refusal to stay proceedings on <br>the summary judgment motions.  See Mattoon, 980 F.2d at 8; Hebertv. Wicklund, 744 F.2d 218, 222 (1st Cir. 1984). <br>     To this point, we have focused on the ABA and the AALS.  <br>Nonetheless, the upshot is the same across the board.  With regard <br>to the fourteen individual defendants, the affidavit that <br>accompanied the Rule 56(f) motion mentions only one   Steven Smith <br>  and only mentions him in the most inconsequential manner.  The <br>affidavit does not refer to NESL.  Therefore, the record does not <br>sustain a claim that discoverable materials actually existed that <br>would have raised a trialworthy issue as to any of these fifteen <br>defendants. <br>XI.  CONCLUSION <br>     We need go no further.  MSL adduces other arguments, but <br>none of them requires elaboration.  It suffices to say that David <br>does not always best Goliath.   <br> <br>     Affirmed.</pre>

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