UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - DONGGUK UNIVERSITY,

Plaintiff,

v. YALE UNIVERSITY,

Defendant. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

x : : : : : : : : : x

No. 3:08-CV-00441 (RNC) JUNE 2, 2008

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS

Defendant Yale University (“Yale”) respectfully submits this memorandum of law in

support of its motion to dismiss all claims in Plaintiff Dongguk University’s (“Dongguk”)

Complaint.

I. PRELIMINARY STATEMENT

Dongguk is a university located in Korea. It hired as a professor, without making any

efforts to check her credentials, a woman who had forged her academic degrees, plagiarized her

doctoral dissertation, and repeatedly lied about her academic background. The professor, named

Jeong Ah Shin, was ultimately criminally charged, convicted, and ordered jailed for 18 months

for her repeated dishonesty, and Dongguk claims that its reputation – understandably enough –

has been damaged. Instead of facing up to its own responsibility for hiring such a person,

Dongguk seeks to shift the blame for its own inadequate efforts onto Yale, which had nothing to

do with the impostor’s fraud or Dongguk’s foolhardy decision to hire her. In fact, Yale was

itself the victim of the same fraud since Shin falsely claimed to have earned a Yale Ph.D. and

submitted to Dongguk fraudulent documents which, on their face, supported that false claim.

After Dongguk hired her, it forwarded one of those documents (which appeared to have been

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written on Yale stationery) to a Yale employee, who was fooled by the forgery. Overlooking –

actually, ignoring – Dongguk’s own responsibility for the hiring, which occurred before anything

was sent to Yale, Dongguk has seized on that error and has sought to make Yale responsible for

damages as diverse as Dongguk’s failure to win a customer satisfaction award and its inability to

start a law school.

Dongguk’s attempt to shift the blame for Shin’s fraud and its own hiring of her onto Yale

must fail because Dongguk cannot state any claims upon which relief can be granted. Dongguk

cannot state a negligence claim because Yale owed it no duty and caused it no harm. Dongguk

cannot state a reckless and wanton conduct claim because Yale did not consciously disregard any

known danger to it. Dongguk cannot state a breach of implied contract claim because Yale

entered into no agreement with Dongguk, and Dongguk provided no consideration to Yale.

Dongguk cannot state a defamation claim because Yale made no defamatory statements about

Dongguk, and Dongguk has not alleged actual malice. Because Dongguk cannot state any

claims against Yale, the Court should dismiss Dongguk’s Complaint in its entirety.

II. BACKGROUND1

Dongguk, a private, Buddhist-affiliated university located in Seoul, South Korea, was

founded by a Buddhist monastic order known as the Jogye Order. (Compl. ¶¶ 1, 8.) In the

summer of 2005, while planning to increase its faculty and expand its art history program,

Dongguk received a résumé from a woman named Jeong Ah Shin. (Id. ¶¶ 43-47.) Shin had been

working in Korean art museums since 1997, and she had won awards for her work in planning

art exhibitions there. (Id. ¶¶ 30-39.) During this period, Shin also taught graduate and

1 For purposes of this motion, Yale assumes the allegations of Dongguk’s Complaint to

be true.

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undergraduate classes at no fewer than six Korean universities and frequently wrote art columns

for Korean newspapers. (Id. ¶¶ 40-41.)

On May 8, 2005, Kukmin Ilbo, a Korean newspaper, reported that Shin would receive a

doctorate degree from Yale on May 14. (Gwang Hyeong Lee, Jeong Ah Shin, Curator, “I will

try to make the museum a place that can be loved by the public.”, Kukmin Ilbo (5/8/05)

(attached as Ex. A).2) The May 8 article reported that Shin had begun working as a curator at

South Korea’s Kumho Museum of Art in 1997 and enrolled in Yale’s doctorate program in 1998,

requiring “round-trip airfare to and from the U.S.,” simultaneous “work on the thesis and

exhibition planning,” and “many sleepless nights.” (Id.) The article identified Shin’s doctoral

thesis as “Guillaume Apollinaire: Catalyst for Primitivism, For Picabia and Duchamp” and stated

that Yale had exempted Shin from certain courses because of her museum experience and that

she had nevertheless “attended classes without missing any of them.” (Id.)

Dongguk’s then-President, Ki Sam Hong, reviewed Shin’s résumé and determined that

she was qualified to be a “special hiring candidate” in Dongguk’s Art History Department.

(Compl. ¶ 48.) Shin then submitted an application form to Dongguk, stating her employment

background, awards she had received, and her academic credentials, including a Ph.D. from

Yale. (Id. ¶¶ 49-50.) Shin also submitted a letter dated May 27, 2005, on Yale Graduate School

letterhead, stating that she had been admitted to Yale in August 1996 and received a Ph.D. in Art

2 Because Dongguk relied upon the May 8, 2005 Kukmin Ilbo article in its Complaint

(see Compl. ¶ 42), the Court may consider the article on Yale’s motion to dismiss. “[T]he complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference. Even where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, which renders the document integral to the complaint.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002) (internal citations and quotation marks omitted); see also, e.g., Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993) (on motion to dismiss, court may consider “documents . . . of which plaintiffs had knowledge and relied on in bringing suit”).

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History in May 2005 (the “Certification Letter”). (Id. ¶ 51; see also Certification Letter (attached

as Ex. B).) The Certification Letter appeared to have been signed by Pamela Schirmeister, an

Associate Dean of the Yale Graduate School of Arts and Sciences. (Compl. ¶¶ 51-52.)

After Hong’s review, Dongguk decided to move forward with Shin’s application, which

was forwarded to Dongguk’s Faculty Hiring/Promotion Committee. (Compl. ¶¶ 53-54.) That

committee agreed with then-President Hong’s recommendation that Shin was eligible to become

an assistant professor in Dongguk’s Art History Department. (Id. ¶ 55.) On August 30, 2005,

the Dongguk University Foundation’s Board of Directors – which provides general oversight of

Dongguk and final approval of its proposed faculty members – approved Shin’s hiring, and

Dongguk officially hired her on September 1, 2005. (Id. ¶¶ 12, 57-58.) (In 2007, a group of

monks belonging to the Jogye Order publicly called for the dismissal of the Dongguk University

Foundation’s entire Board of Directors because of their role in approving Shin’s hiring, igniting

a factional feud between Buddhist groups affiliated with the Jogye Order. (Id. ¶¶ 125-26.))

Only after hiring Shin did Dongguk contact Yale. (Compl. ¶¶ 58-59.) Hyung Taik Ahn,

a Dongguk administrator, sent the Certification Letter to Yale on September 6, 2005. (Id. ¶¶ 60-

61.) In response, Schirmeister sent a September 22, 2005 fax to Ahn “confirming that the

[Certification Letter] was issued by the Yale Graduate School and signed by me.” (Id. ¶¶ 63-64;

fax from Schirmeister to Ahn of 9/22/05 (attached as Ex. C), at 1.) Shin continued working at

Dongguk until 2007. (Compl. ¶¶ 65-66.)

On June 4, 2007, a Dongguk official, Euiyon Cho, received documents suggesting that

Shin had not actually written a Ph.D. dissertation, as she had claimed, but had plagiarized the

purported dissertation. (Compl. ¶ 67.) On June 7 and 11, respectively, Yale employees

confirmed to Cho, in response to his inquiries, that Shin had not written the dissertation and had

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not earned a Ph.D. from Yale’s Art History department. (Id. ¶¶ 68-72.) Nevertheless, on July 5,

2007, Dongguk President Youngkyo Oh wrote to Yale President Richard Levin, asking if Yale

had awarded a Ph.D. to Shin and, if not, why Schirmeister had sent the September 22, 2005 fax.

(Id. ¶¶ 75-76.) Yale Deputy General Counsel Susan Carney responded to Oh’s letter on Levin’s

behalf, stating that Shin had not received a Ph.D. from Yale, that the Certification Letter was a

forgery, that the September 22, 2005 fax was “not authentic,” and that Yale had no “knowledge

currently regarding the creation or issuance of these documents.” (Id. ¶¶ 79-82.) Also in July

2007, Korean news reporters contacted Gila Reinstein, Associate Director of Yale’s Office of

Public Affairs, who explained that the Certification Letter was in a different form from Yale’s

standard degree-verification documents and had been “forged.” (Id. ¶¶ 95-97.)

In addition to fabricating a Yale Ph.D., Shin also fabricated bachelor’s and master’s

degrees from the University of Kansas. (See “Growing Suspicion” Dongguk University being

deceived or protected? Dongguk University did not verify undergraduate and master’s degrees

of Professor Shin, Hankook Ilbo (7/18/07) (attached as Ex. D).3) When Shin’s fraud became

public, Dongguk initially announced that it had sent a request for verification of Shin’s degrees

to the University of Kansas. (Id.) It was later revealed, however, that Dongguk had not sent

such a request, nor had it attempted to verify Shin’s purported degrees from the University of

Kansas at all. (Id.) Dongguk acknowledged, “Our announcement that we had requested a

verification of academic records to the University of Kansas was a mistake.” (Id.) The Hankook

Ilbo noted that “there is no satisfactory explanation for why [Dongguk] University requested the

verification only to Yale University but not to the University of Kansas, and how it did not even

know whether the request was sent or not amid the recent controversy.” (Id.) In light of

3 Dongguk relied upon the July 18, 2007 Hankook Ilbo article in its Complaint. (See

Compl. ¶ 108.)

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Dongguk’s false claim to have verified Shin’s University of Kansas records, the Hankook Ilbo

raised the question of whether Dongguk had actually requested verification of Shin’s records

from Yale. (Id.) The newspaper also reported that, when Dongguk hired Shin, it ignored her

failure to submit academic records, raising “suspicion that [Dongguk] was not deceived by the

lies of Shin, but may have actively protected and covered up Shin for some reason.” (Id.)

In the summer of 2007, Shin became a national celebrity in South Korea. A Korean

newspaper reported that Shin “became the talk of the town when she was appointed the Director

of the Gwangju Biennale [art exhibition], the youngest ever to serve in the position.” ( Kyu

Hyun Lee & Ran Hee Park, The “Fake Doctor” Scandal for the Cinderella of the Art World,

Chosun Ilbo (7/12/07) (attached as Ex. E).4) When Shin’s fraud became public, “[t]he whole art

world was thrown into confusion” (id.), and the Gwangju Biennale Foundation withdrew her

appointment. (See Biennale Curator’s Degree Revealed a Forgery, Chosun Ilbo (7/13/07)

(attached as Ex. F).5)

Also in the summer of 2007, the Seoul Western District Prosecution Office commenced a

criminal investigation into Dongguk and Shin. (Compl. ¶¶ 127-28.) The prosecutors ultimately

brought criminal charges against Shin, former South Korean government official (and Shin’s

lover) Yang Kyun Byeon, and Yong Taek Lim, a Buddhist monk and the Chairman of the

Dongguk University Foundation’s Board of Directors. (See Seoul Western District Court

Judgment of 3/31/08 (notarized translation attached as Ex. G).6) In or around November 2007,

4 Dongguk relied upon the July 12, 2007 Chosun Ilbo article in its Complaint. (See

Compl. ¶¶ 92-93.)

5 Dongguk relied upon the July 13, 2007 Chosun Ilbo article in its Complaint. (See Compl. ¶¶ 96-97.)

6 The Court may take judicial notice of the indictments and convictions of Shin, Byeon, and Lim. See Fed. R. Evid. 201(f) (“Judicial notice may be taken at any stage of the

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the Korean prosecutors issued a document subpoena to Yale. (Compl. ¶ 149.) In responding to

the subpoena, Yale discovered that the September 22, 2005 fax was authentic, as Carney

explained in a November 29, 2007 letter to Oh. (Id. ¶¶ 151-52.) Carney explained that

Schirmeister had sent the September 22, 2005 fax in “the rush of business.” (Id. ¶153.) Yale

issued a public statement apologizing to Dongguk for the error. (Id. ¶ 155.)

On March 31, 2008, Shin was convicted of forging her academic credentials, embezzling

money from Sungkok Art Museum (where she worked as chief curator (Compl. ¶ 36)),

embezzling artwork, interfering with the Gwangju Biennale’s selection of its artistic director, and

interfering with Dongguk’s and other universities’ screening of educational faculty. (See Seoul

Western District Court Judgment of 3/31/08 (Ex. G), at 3-8.) Shin was sentenced to 18 months

in prison. (Id. at 2.) Byeon was convicted of obstruction and abuse of authority for exercising

influence to provide government funds to the Heungdeok and Bogwang Temples. (Id. at 8-11.)

Byeon received a suspended prison sentence and 160 hours of community service. (Id. at 2-3.)

Lim was convicted of requesting and receiving a state subsidy for Heungdeok Temple (id. at 11-

14), and he received a suspended prison sentence and 120 hours of community service (id. at 2-

3). While the court found Shin and Byeon not guilty of bribery in connection with Dongguk’s

employment of Shin, the court nevertheless found that Dongguk hired Shin at Byeon’s urging

because he had told Dongguk’s then-President Hong that hiring Shin “will be a great help to

Dongguk University financially.” (Id. at 40-43.)

proceeding.”); Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993) (on motion to dismiss, court may consider “matters of which judicial notice may be taken”). In adjudicating a motion to dismiss, “‘[a] court may take judicial notice of a document filed in another court not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings.’” Global Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006) (quoting Int’l Star Class Yacht Racing Ass’n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998)).

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Dongguk filed its Complaint in this action on March 24, 2008, alleging four claims

against Yale: negligence, reckless and wanton conduct, breach of implied contract, and

defamation. (Compl. ¶¶ 173-204.)

III. ARGUMENT

A. Standard of Review

The purpose of a Rule 12(b)(6) motion is “to assess the legal feasibility of the

complaint.” Global Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 155 (2d Cir.

2006) (citation omitted). In deciding a motion to dismiss, the Court must accept all well-pleaded

factual allegations as true. See Albright v. Oliver, 510 U.S. 266, 268 (1994). Dismissal is

warranted if the plaintiff’s allegations are insufficient to establish a legally cognizable claim

upon which relief can be granted. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Frasier v.

Gen. Elec. Co., 930 F.2d 1004, 1007 (2d Cir. 1991). “While the pleading standard is a liberal

one, bald assertions and conclusions of law will not suffice” to defeat a well-reasoned motion to

dismiss. Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996).

B. Dongguk Cannot State a Negligence Claim Because Yale Owed Dongguk No

Duty and Caused It No Harm.

Dongguk’s first claim is based on Yale’s supposed negligence in: (1) its response to

Dongguk’s September 5, 2005 letter (Compl. ¶ 175); (2) its response to Dongguk’s July 5, 2007

letter (id. ¶¶ 176-77); and (3) its September 21, 2007 “Official Statement.” (Id. ¶ 178.)7

Dongguk cannot state a negligence claim because Yale owed no duty to Dongguk and because

Yale was neither the cause in fact nor the proximate cause of any harm to Dongguk. See, e.g.,

Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 566 (1998) (“The essential elements of

7 In explaining why Dongguk has failed to state a negligence claim upon which relief can

be granted, Yale reads Dongguk’s Complaint broadly and addresses its other allegations as well.

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a cause of action in negligence are well established: duty; breach of that duty; causation; and

actual injury.”) (citation and quotation marks omitted).

1. Yale had no duty to protect Dongguk from Shin’s fraud.

“Duty is imperative to a negligence cause of action,” RK Constructors, Inc. v. Fusco

Corp., 231 Conn. 381, 385 (1994) (citation and internal quotation marks omitted), and “[t]he

existence of a duty . . . is a matter of law.” Murdock v. Croughwell, 268 Conn. 559, 565 (2004).

“[O]nly if a duty is found to exist, does the trier of fact then determine if the duty was violated.”

Doe v. Norwich Roman Catholic Diocesan Corp., 268 F. Supp. 2d 139, 146 (D. Conn. 2003).

In the absence of any statute, contract, or other source of an obligation on Yale’s part to

exercise reasonable care – none are present here – Yale could only have owed a duty to Dongguk

to exercise reasonable care if it gratuitously undertook such a duty by choosing to perform the

actions alleged in the Complaint. The law, however, recognizes no gratuitous duty to exercise

reasonable care to prevent intangible economic harm, and Dongguk has not alleged any physical

harm. (See Compl.) “The long established common law rule in this state is that in the absence

of privity of contract between the plaintiff and defendant, or of an injury to the plaintiff’s person

or property, a plaintiff may not recover in negligence for a purely economic loss.” DeVillegas v.

Quality Roofing, Inc., No. CV92 0294190S, 1993 Conn. Super. LEXIS 3185, at *6-7 (Conn.

Super. Ct. Nov. 30, 1993) (striking negligence claim because plaintiff did not allege injury to

person or property or privity of contract) (attached as Ex. H);8 see also Doe v. Yale Univ., 252

Conn. 641, 663 (2000) (“When the claimed result is an inadequate education, there is no viable

8 Neither the Connecticut Supreme Court nor the Appellate Court has ruled on the

physical harm requirement, and some Superior Courts have declined to apply it. See Reynolds, Pearson & Co., LLC v. Miglietta, No. CV000801247, 2001 Conn. Super. LEXIS 952, at *11-14 (Conn. Super. Ct. Mar. 27, 2001) (attached as Ex. I). In the absence of clear guidance from the Connecticut appellate courts, the Court should follow the predominant approach of Prosser & Keeton, the Restatement (Second) of Torts, and other states’ highest courts.

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claim because we are unwilling to recognize such a legal duty as a matter of public policy.

When, however, the result is physical harm, as in the present case, we are willing to recognize

the claim because it falls within the traditionally recognized duty not to cause physical harm by

negligent conduct.”).

“In the absence of privity of contract between two disputing parties the general rule is

‘there is no . . . duty to exercise reasonable care to avoid intangible economic loss or losses to

others that do not arise from tangible physical harm to persons and tangible things.’” Floor Craft

Floor Covering, Inc. v. Parma Community Gen. Hosp. Ass’n, 54 Ohio St. 3d 1, 3 (Ohio 1990)

(quoting Prosser & Keeton, Law of Torts (5 Ed. 1984) 657, Section 92). The Restatement

(Second) of Torts also recognizes this basic legal principle:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or

(b) the harm is suffered because of the other’s reliance upon the undertaking.

Restatement (Second) of Torts § 323 (1965); see also id. § 7(3) (defining “physical harm” as “the

physical impairment of the human body, or of land or chattels”). Many courts have recognized

the negative inference implicit in Section 323: there is no duty to exercise reasonable care to

protect another from non-physical harm. See, e.g., Hatleberg v. Norwest Bank Wis., 283 Wis. 2d

234, 240 (2005) (“[I]nasmuch as Erickson’s estate suffered no physical harm, Wells Fargo was

not subject to ‘Good Samaritan’ liability under § 323 of the Restatement (Second) of Torts.”);

532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 96 N.Y.2d 280, 292 (2001)

(“plaintiffs’ negligence claims based on economic loss alone fall beyond the scope of the duty

owed them by defendants and should be dismissed”); O’Connell v. Killington, Ltd., 164 Vt. 73,

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77 (1995) (“Negligence law does not generally recognize a duty to exercise reasonable care to

avoid intangible economic loss to another unless one’s conduct has inflicted some accompanying

physical harm.”); Or. Laborers-Employers Health & Welfare Trust v. Philip Morris, Inc., 17 F.

Supp. 2d 1170, 1183 (D. Or. 1998) (“Physical harm is a requisite element of a claim for breach

of an assumed duty.”).

While the Supreme Court of Connecticut has not had occasion to interpret the “physical

harm” requirement of Restatement section 323, it has interpreted the similar section 324A, which

provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking . . . .

Restatement (Second) of Torts § 324A (1965). Applying section 324A’s “physical harm”

requirement, the Supreme Court has held that “a claim for commercial loss based on . . . lost

investment expectations . . . does not fall within the confines of ‘physical harm’ as that term is

used in § 324A.” Waters v. Autuori, 236 Conn. 820, 833 (1996). Because the plaintiff in Waters

alleged only economic losses, not physical harm, the court rejected her contention that the

defendant’s voluntary promulgation of professional accounting standards required it to assume a

cognizable duty of care to her. Id. Likewise, because Dongguk has not alleged any physical

harm, Yale’s alleged actions did not require it to assume a duty of care to Dongguk.

Even if Dongguk’s inability to allege any physical harm did not doom its negligence

claim, Dongguk still has not alleged, and cannot allege, any duty that Yale owed it. The

determination of whether one party owes a duty to another involves a two-part inquiry: (1)

whether “the ordinary [person] in the defendant’s position, knowing what he knew or should

have known, [would] anticipate that harm of the general nature of that suffered was likely to

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result”; and (2) as a matter of public policy, whether the defendant’s responsibility should extend

to the harm that the plaintiff has alleged. RK Constructors, Inc., 231 Conn. at 385-86 (citations

and quotation marks omitted).

As to the first prong of the duty inquiry, an ordinary person in Yale’s position would not

have anticipated that the harm that Dongguk has alleged was likely to result from any of Yale’s

actions. “[I]f it is not foreseeable to a reasonable person in the defendant’s position that harm of

the type alleged would result from the defendant’s actions to a particular plaintiff, the question of

the existence of a duty to use due care is foreclosed, and no cause of action can be maintained by

the plaintiff.” RK Constructors, Inc., 231 Conn. at 385-86. Even “[a] simple conclusion that the

harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a

legal duty exists.” Id. at 386.

In assessing whether Dongguk’s alleged harm was foreseeable, the key is what Yale

“knew or should have known” at the time of its alleged actions. See RK Constructors, 231 Conn.

at 385. But Dongguk has not alleged, and cannot allege, that Schirmeister either knew or should

have known, in September 2005, that its supposed hundred-year reputation would be destroyed if

she, upon looking at a Yale-embossed document with what appeared to be her signature on it,

stated that it had been issued (as it said) by the Yale Graduate School. While Shin’s appointment

to direct the Gwangju Biennale would make her a national celebrity, and her fraud would

become a national scandal that culminated in the criminal convictions of Shin, Byeon, and Lim,

Schirmeister could not have foreseen that in 2005. None of the harm that Dongguk has alleged

was reasonably foreseeable by Schirmeister in 2005.

Just as Yale owed Dongguk no duty in 2005, Yale also had no duty to protect Dongguk

from Shin’s fraud in 2007 by determining that Schirmeister’s September 22, 2005 fax, alone

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among the documents supporting Shin’s claim, was genuine. See, e.g., Waters, 236 Conn. at

826.9 Yale had no such duty because, faced with Shin’s fraudulent scheme, it could not have

foreseen that the authenticity of the September 22, 2005 fax could cause harm of the nature

alleged by Dongguk. Yale could not have foreseen that its statements regarding Schirmeister’s

fax would “publicly humiliate[] and deeply shame[]” Dongguk “in the eyes of the Korean

population” (see Compl. ¶ 157); lead “the Korean media and population-at-large” to conclude

that Dongguk “was dishonest and incompetent and that Dongguk[’s] . . . role in the scandal had

tarnished the reputation of Korea as a country” (see id. ¶ 164); lead “significant segments of the

Korean population” to conclude that Dongguk “was a disgrace to Korean society and . . . had

undermined Korean social values” (see id. ¶ 165); or cause any of the other harm that Dongguk

has alleged (see id. ¶¶ 166-72). See, e.g., Lodge v. Arett Sales Corp., 246 Conn. 563, 577-78

(1998) (citations omitted) (“Imposing liability on these defendants for a harm that they

reasonably could not be expected to anticipate and over which they had no control would serve

no legitimate objective of the law.”).

Foreseeability aside, see Waters, 236 Conn. at 827 (“the conclusion that a particular

injury to a particular plaintiff or class of plaintiffs possibly is foreseeable does not, in itself,

create a duty of care”), the second prong of the duty analysis also does not support the existence

of a duty on Yale’s part because public policy does not favor extending Yale’s responsibility to

the harm that Dongguk has alleged. “With respect to the second inquiry, namely, the policy

analysis, there generally is no duty that obligates one party to aid or to protect another party.”

9 Among the documents supporting Shin’s claim, her “faculty position application form”

contained untruthful statements about her credentials (see Compl. ¶¶ 49-50), her Yale diploma was forged (see letter from Carney to Oh of 7/10/97 (attached as Ex. J), at 1 (Dongguk relied upon Carney’s July 10, 2007 letter in its Complaint (see Compl. ¶¶ 79-83))), the Certification Letter was forged (see Compl. ¶ 51; letter from Carney to Oh of 7/10/97 (Ex. J), at 1), and her purported dissertation was plagiarized (see Compl. ¶¶ 67-72).

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Ryan Transp., Inc. v. M & G Assocs., 266 Conn. 520, 526 (2003). “[A]bsent a special

relationship of custody or control, there is no duty to protect a third person from the conduct of

another.” Fraser v. United States, 236 Conn. 625, 632 (1996) (citations and quotation marks

omitted).

Public policy does not favor imputing to Yale a duty to have uncovered, and protected

Dongguk from, Shin’s fraud. All of the allegations upon which Dongguk’s negligence claim are

based – Yale’s erroneously authenticating Shin’s fraudulent certification letter in 2005 and

Yale’s erroneously deeming the September 22, 2005 fax to be another forgery in 2007 – emerge

from Shin’s fraud in fabricating her degrees, her diplomas, and the Certification Letter, and in

plagiarizing her dissertation. But for Shin’s fraud, Schirmeister would not have sent the

September 22, 2005 fax, and Carney and Reinstein would not have made the 2007 statements.

Dongguk’s negligence claim effectively charges Yale with a duty to protect Dongguk from

Shin’s fraud, by uncovering the fraud in 2005 (before Schirmeister sent the September 22, 2005

fax) and by determining its precise limits in 2007 (before Carney and Reinstein made their

alleged statements). In the absence of a special relationship or Yale’s explicitly assuming the

duty, public policy does not favor imputing such a duty to Yale, even if Yale should have known

that some action on its part would have protected Dongguk from Shin’s fraud. See, e.g.,

Murdock v. Croughwell, 268 Conn. 559, 567 (2004) (“‘The fact that the actor realizes or should

realize that action on his part is necessary for another’s aid or protection does not of itself impose

upon him a duty to take such action.’”) (quoting Restatement (Second) of Torts § 314 (1965)).

Since Dongguk made no effort to verify Shin’s purported credentials before hiring her,

Dongguk must have been either complicit in, or willfully ignorant of, Shin’s fraud. Either way,

Connecticut public policy does not support any duty on Yale’s part to have protected Dongguk

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from Shin’s fraud. Assuming that Dongguk was merely willfully ignorant of Shin’s fraud,

Connecticut public policy does not support the imposition of a duty upon a defendant to protect a

plaintiff from the criminal acts of a third party. See Gomes v. Commercial Union Ins. Co., 258

Conn. 603, 616-17 (2001) (“The damage to the plaintiffs’ property was caused by the conduct of

the person or persons who perpetrated the criminal activity, not by the action or inaction of the

desk clerk. The attenuation between the hotel defendants’ conduct and the plaintiffs’ harm is too

remote, as a matter of public policy, to impose a duty.”). Of course, if Dongguk was complicit in

Shin’s fraud, public policy would be even less supportive of imposing a duty upon Yale to have

protected Dongguk from its own criminal acts. (See Seoul Western District Court Judgment of

3/31/08 (Ex. G), at 40-43 (finding that Dongguk hired Shin at her lover Byeon’s urging because

he had told Dongguk’s then-President Hong that hiring Shin “will be a great help to Dongguk

University financially”).)

Regardless of whether Dongguk abetted Shin’s crimes, public policy does not favor

saddling Yale with a duty to have protected Dongguk from Shin’s fraud because Dongguk’s

actions actually made it more difficult for Yale to uncover Shin’s fraud. At the time of Ahn’s

September 2005 letter to Yale, Dongguk had “received information that raised questions

regarding the accuracy of Shin’s statement that she had received a Ph.D. from Yale” (Compl. ¶

59), and it knew that Shin had been working at Korean museums, writing for Korean

newspapers, and teaching at Korean universities when she claimed to have been earning a Ph.D.

in New Haven (id. ¶¶ 31-42, 51). Yet, despite all of Dongguk’s reasons to suspect Shin’s fraud

in September 2005, all that it sent Yale was the fraudulent Certification Letter, whose

reproductions of Yale Graduate School letterhead and Schirmeister’s signature allowed Yale to

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be taken in by Shin’s fraud. (Id. ¶ 63; Certification Letter (Ex. B); Statement by Yale University

Office of Public Affairs of 12/29/07 (attached as Ex. K).10)

All else aside, public policy would not permit the imposition of potential liability

sounding in negligence upon Yale. What university, duly advised by counsel, would begin to

respond to the sort of questions asked by Dongguk if the price tag was potentially massive

liability – here the claim is $50,000,000 – to claimants around the world with respect to

information relating to indefinite time periods? Imposing a duty (and, once again, wholly

unforeseeable damages) on a university for speaking openly to the press after being victimized –

as here – by a criminally-oriented supposed former student, would surely lead universities to

avoid any communication at all with the press in circumstances like the present. The

Restatement approach to “negligent undertaking” cases offers appropriate line-drawing.

Drawing a bright line at physical harm, the Restatement recognizes that gratuitous undertakings

like Yale’s give rise to no duty to exercise reasonable care to prevent purely economic harm.

See Restatement (Second) of Torts §§ 323, 324A (1965).

Because Dongguk has not alleged any physical harm, because Yale could not have

reasonably foreseen the economic harm that Dongguk has alleged, and because Connecticut

public policy does not support the imposition of a duty to protect another from the crimes or

intentional torts of a third party, Yale owed Dongguk no duty to exercise reasonable care, either

in 2005 or in 2007.

2. Yale was not a cause in fact of any harm to Dongguk.

Yale’s alleged negligence was not a cause in fact of any harm to Dongguk because all of

the harm that Dongguk has alleged would have occurred regardless of Yale’s alleged negligence.

10 Dongguk relied upon Yale’s December 29, 2007 statement in its Complaint. (See

Compl. ¶ 155.)

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Regardless of Yale’s alleged negligence in sending the September 22, 2005 fax, and regardless

of Yale’s alleged negligence in making the various statements in 2007, Dongguk would have

become embroiled in the controversy surrounding Shin’s fraud because it hired Shin without

checking her credentials and failed to detect the fraud.

“Before liability for negligence can arise there must be disclosed some relation of cause

and effect between the negligence and the loss or harm.” Lippitt v. Ashley, 89 Conn. 451, 507

(1915). “The test for cause in fact is, simply, would the injury have occurred were it not for the

actor’s conduct.” Paige v. St. Andrew’s Roman Catholic Church Corp., 250 Conn. 14, 25

(1999). Because Dongguk’s alleged injuries would have occurred regardless of Yale’s alleged

negligence, Yale’s alleged negligence was not a cause in fact of Dongguk’s alleged injuries.

Cause in fact, occasionally referred to as actual cause asks whether the defendant’s conduct “caused” the plaintiff’s injury. Thus, if the plaintiff’s injury would not have occurred “but for” the defendant’s conduct, then the defendant’s conduct is a cause in fact of the plaintiff’s injury. Conversely, if the plaintiff’s

injury would have occurred regardless of the defendant’s conduct, then the defendant’s conduct was not a cause in fact of the plaintiff’s injury. Here, the court correctly defined cause in fact as: “Would the injury have occurred were it not for [the defendant’s] negligent . . . conduct . . . ?”

Stewart v. Federated Dep’t Stores, Inc., 234 Conn. 597, 605 (1995) (emphasis added; citations

omitted).

Dongguk alleges that, because of Yale’s negligence, it was criticized in the Korean media

and its reputation suffered. (Compl. ¶¶ 115-16, 119, 157, 164-65.) But the allegations of the

Complaint make plain that Dongguk would have incurred the same media criticism and harm to

its reputation regardless of Yale’s alleged negligence. Regardless of Yale’s actions, Dongguk

would have employed Shin (as Dongguk did not contact Yale until after hiring her), the Korean

media would have criticized Dongguk (for having hired Shin without checking her credentials

and without detecting her fraud), and Dongguk’s reputation would have suffered. Regardless of

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Yale’s alleged negligence, Dongguk would have been forced to expend money “defending itself

against the claim that it had acted improperly because it had supposedly failed to verify Shin’s

Ph.D.” (Id. ¶ 171.) Dongguk did fail to verify Shin’s Ph.D. (and, for that matter, her other

purported degrees) before hiring her, and it would have been criticized for doing so regardless of

Yale’s actions. Indeed, independently of anything that Yale did or failed to do, Shin and Byeon

were indicted for influencing Dongguk’s then-President Hong to hire Shin in exchange for “help

in making Dongguk University receive government financial support” (see Seoul Western

District Court Judgment of 3/31/08 (Ex. G), at 40-42), Lim, the Chairman of Dongguk’s Board,

was indicted for conspiring with Byeon to receive government funds for Heungdeok Temple (id.

at 11-14), and the Korean media criticized Dongguk for failing to verify Shin’s purported

bachelor’s and master’s degrees with the University of Kansas, for falsely stating that it had

verified those degrees, and for ignoring the fact that Shin did not submit academic records at the

time of her employment. (See “Growing Suspicion” Dongguk University being deceived or

protected? Dongguk University did not verify undergraduate and master’s degrees of Professor

Shin, Hankook Ilbo (7/18/07) (Ex. D).)

The absence of causation in fact is perhaps most apparent from all of the actions that

Dongguk took with respect to Shin before it ever contacted Yale. Before contacting Yale, or,

apparently, attempting to verify Shin’s credentials in any way, Dongguk did all of the following:

� “Ki Sam Hong, the then-President of Dongguk University, determined that Shin was qualified to be a ‘special hiring candidate’ for Dongguk University’s Art History Department.” (Compl. ¶ 48);

� “Dongguk University decided to move forward with Shin’s application.” (Id. ¶ 53);

� “Shin’s application was forwarded to Dongguk University’s Faculty Hiring/Promotion Committee for approval.” (Id. ¶ 54);

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� “the Faculty Hiring/Promotion Committee agreed with the President’s recommendation that Shin was eligible to become an assistant professor in Dongguk University’s Art History Department” (id. ¶ 55);

� “Dongguk University’s Office of Academic Affairs submitted Shin’s name . . . to Dongguk University Foundation’s Board of Directors for final hiring approval.” (Id. ¶ 56);

� the Dongguk University Foundation’s Board of Directors approved Shin for hiring (Id. ¶ 57); and

� “On September 1, 2005, Shin was officially hired by Dongguk University as an assistant professor.” (Id. ¶ 58.)

As a result of these actions, all of which Dongguk took before contacting Yale, any harm

that Dongguk has suffered as a result of hiring Shin and failing to check her credentials would

have occurred regardless of Yale’s alleged negligence. Even if Schirmeister had not sent the

September 22, 2005 fax (or if the September 22, 2005 fax had stated that the Certification Letter

was a forgery), and even if Yale had never questioned the authenticity of the September 22, 2005

fax, Dongguk still would have suffered all of the harm that it has alleged. Before Dongguk

contacted Yale, Shin forged her degrees and plagiarized her dissertation, Shin’s lover interceded

on her behalf, and Dongguk hired Shin – with the approval of the President and the Board of

Directors – without checking her credentials. Therefore, regardless of Yale’s alleged negligence,

Dongguk would have incurred the same harm: it would have employed a fraudulent professor;

monks belonging to the Jogye Order would have called for the dismissal of Dongguk University

Foundation’s Board of Directors (see Compl. ¶ 125); Shin would have been prosecuted for her

crimes; the Korean prosecutors would have focused on Dongguk (see id. ¶ 146 (“the Korean

Prosecutors focused their attention on Dongguk University’s supposed failure to verify Shin’s

Ph.D [sic] credentials”)); the Korean media would have reported on Dongguk’s employment of a

fraudulent professor and failure to check her credentials (see, e.g., id. ¶ 115 (“numerous articles

were published in print and on websites in and outside of Korea about Dongguk University’s

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supposed failure to verify Shin’s credentials”); see also “Growing Suspicion” Dongguk

University being deceived or protected? Dongguk University did not verify undergraduate and

master’s degrees of Professor Shin, Hankook Ilbo (7/18/07) (Ex. D)); Dongguk would have had

to spend money defending itself against the charges relating to its failure to verify Shin’s

credentials or uncover her fraud (see Compl. ¶ 171); and, as a result of all of the above,

Dongguk’s reputation would have suffered.

Because all of the harm that Dongguk has alleged would have occurred regardless of

Yale’s alleged negligence, Yale was not a cause in fact of any harm to Dongguk.

3. Yale was not a proximate cause of any harm to Dongguk.

To the extent Dongguk has alleged causation in fact, it still cannot state a negligence

claim because Yale’s alleged negligence was not a proximate cause of any harm to Dongguk.

Rather, Shin’s fraud and Dongguk’s failure to verify her credentials or uncover her fraud before

hiring her were the proximate cause of Dongguk’s alleged harm.

“Functionally, proximate cause is defined as an actual cause that is a substantial factor in

the resulting harm.” Coste v. Riverside Motors, Inc., 24 Conn. App. 109, 113-14 (1991). “The

question to be asked in ascertaining whether proximate cause exists is ‘whether the harm which

occurred was of the same general nature as the foreseeable risk’ created by the defendant’s act.”

Abrahams v. Young & Rubicam, Inc., 240 Conn. 300, 306 (1997) (quoting Doe v. Manheimer,

212 Conn. 748, 758 (1989)).

The harm that Dongguk has alleged is not of the same general nature as any foreseeable

risk created by Yale’s alleged negligence. Yale’s alleged negligence did not create the risk that

Dongguk’s reputation, alumni contributions, or student applications would suffer (or that

Dongguk would incur any of the other harm that it has alleged). Rather, it was Shin’s fraud,

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combined with Dongguk’s hiring Shin without checking her credentials, that created the risk of

all of the harm that Dongguk has alleged.

The gravamen of Dongguk’s Complaint is that Yale’s actions harmed Dongguk’s

reputation, causing the various alleged damages. (See, e.g., Compl. ¶ 157 (alleging that

Dongguk “was publicly humiliated and deeply shamed in the eyes of the Korean population”).)

But Yale’s actions could not have created the risk of harm to Dongguk’s reputation because,

independently of Yale’s actions, that risk was created by a series of actions in which Yale played

no role: the crimes of Shin, Byeon, and Lim, Dongguk’s failure to verify Shin’s credentials

before hiring her, Dongguk’s failure to verify Shin’s purported University of Kansas degrees at

any time, and Dongguk’s false statement about that failure. Yale’s alleged negligence in sending

the September 22, 2005 fax could not have created the risk that the Korean media and public

would criticize Dongguk for failing to check Shin’s credentials because, by the time Dongguk

contacted Yale in September 2005, it had already hired Shin without checking her credentials.

(See Compl. ¶¶ 58, 60.) Likewise, Yale’s alleged negligence in making the 2007 statements

could not have created the risk that the Korean public would believe that Dongguk had falsely

claimed to have verified Shin’s credentials because, by the time Yale made the 2007 statements,

Dongguk had already falsely claimed to have verified Shin’s credentials with the University of

Kansas. (See “Growing Suspicion” Dongguk University being deceived or protected? Dongguk

University did not verify undergraduate and master’s degrees of Professor Shin, Hankook Ilbo

(7/18/07) (Ex. D) (“Contrary to the explanation given by [Dongguk] in the beginning, it is found

that [Dongguk] did not verify the undergraduate and master’s degrees of Professor Shin, which

was proven to be fraudulent.”).) The risk of harm to Dongguk existed prior to, and

independently of, any of Yale’s actions.

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Even with the benefit of hindsight, neither Schirmeister’s 2005 fax nor Carney’s and

Reinstein’s alleged 2007 statements could have been substantial factors in Dongguk’s alleged

harm. Although Dongguk’s Complaint attempts to blame Yale for the Shin scandal, it cannot

obscure the distinction between Shin’s fraud and Yale’s alleged negligence: Shin’s fraud caused

Dongguk’s alleged damages, while Yale was merely a victim of Shin’s fraud. Therefore,

Dongguk has alleged neither cause in fact – because Dongguk’s alleged harm would have

occurred regardless of anything that Yale did – nor proximate cause – because Yale did not

create a foreseeable risk of any harm that Dongguk allegedly suffered.

C. Dongguk Cannot State a Reckless and Wanton Conduct Claim Because Yale

Did Not Consciously Disregard a Known Danger to Dongguk.

Dongguk has not alleged a cognizable claim of reckless and wanton conduct, which

requires the conscious disregard of a known danger. Dongguk’s reckless and wanton conduct

claim, like its negligence claim, is based upon Schirmeister’s September 22, 2005 fax, Carney’s

alleged failure to determine whether the fax was authentic, and Reinstein’s alleged 2007

statements. (See Compl. ¶¶ 180-90.) Putting aside the question of whether Schirmeister’s

September 22, 2005 fax and Carney’s and Reinstein’s 2007 statements were erroneous, Dongguk

has not alleged that Schirmeister knew that the September 22, 2005 fax was untrue or that Carney

and Reinstein knew that their 2007 statements were untrue (conscious disregard), nor has it

alleged that Schirmeister knew that the September 22, 2005 fax would injure Dongguk or that

Carney and Reinstein knew that their 2007 statements would injure Dongguk (known danger).

Dongguk’s conclusory allegations that Yale acted with “a reckless and wanton disregard of

Dongguk University’s rights and interests” (id. ¶¶ 183, 188) and made statements “wantonly and

recklessly” (id. ¶ 189) are insufficient to state a claim. See Sheiman v. Lafayette Bank & Trust

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Co., 4 Conn. App. 39, 46 (1985) (“The mere use of the words ‘reckless’ and ‘wanton’ is

insufficient to raise an actionable claim of reckless and wanton misconduct.”).

A reckless and wanton conduct claim must clear a high bar.

[W]illful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention.

Craig v. Driscoll, 262 Conn. 312, 342-43 (2003) (citation and internal quotation marks omitted).

“The state of mind amounting to recklessness may be inferred from conduct. But, in

order to infer it, there must be something more than a failure to exercise a reasonable degree of

watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them.”

Dubay v. Irish, 207 Conn. 518, 532 (1988) (citation and quotation marks omitted).

“Recklessness requires a conscious choice of a course of action either with knowledge of the

serious danger to others involved in it or with knowledge of facts which would disclose this

danger to any reasonable man.” Figlar v. Edwards, No. CV990336947S, 2000 Conn. Super.

LEXIS 2897, at *6 (Conn. Super. Ct. Nov. 7, 2000) (quotation marks and citation omitted;

emphasis added) (attached as Ex. L). “To merely allege that the defendant knew of the risk

posed . . . , without an allegation of intent to cause harm or intentional disregard as to the risk, is

insufficient to state a claim sounding in recklessness.” Id. at *8 (emphasis added).

Instead of reckless and wanton conduct, all that Dongguk has alleged is that Yale made

errors, which it corrected when it learned the truth. (See Compl. ¶¶ 150-53, 155.) Such

allegations are not nearly sufficient to state a reckless and wanton conduct claim.

There is a wide difference between negligence and reckless or wanton misconduct. Recklessness is a state of consciousness with reference to the consequences of one’s acts. It requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with

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knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent. It is more than negligence, more than gross negligence.

Sheiman, 4 Conn. App. at 45-46 (citations and internal quotation marks omitted).

Dongguk has not alleged any conscious choice on Yale’s part, nor has it alleged facts

from which any conscious choice could be inferred. Instead, all that Dongguk has alleged is that

Schirmeister made a mistake in sending the September 22, 2005 fax and that Carney and

Reinstein made mistakes in their 2007 statements. (See, e.g., Compl. ¶ 139 (alleging that

“Carney should have been able to determine that the September 5 Registered Letter had been

received by Yale University and that the September 22 Fax was authentic”).) Dongguk has not

even suggested any motive on Yale’s part to provide incorrect information or to harm Dongguk.

Indeed, Dongguk acknowledges that, once Yale realized its errors, it corrected them and

apologized to Dongguk. First, in response to Dongguk’s June 2007 inquiries, Yale accurately

stated that it had no record of Shin’s plagiarized dissertation (id. ¶ 69) and that Shin had not

received a Ph.D. from Yale’s Art History Department (id. ¶ 72). Next, in response to Dongguk’s

July 2007 inquiries, Yale accurately stated that Shin had not received a Ph.D. from Yale and that

the Certification Letter was a forgery. (Id. ¶ 81.) Later, when Yale learned that Schirmeister had

sent the September 22, 2005 fax, it promptly corrected its error and apologized to Dongguk. (Id.

¶¶ 151-53, 155.)

Dongguk’s failure to allege facts from which the requisite state of mind may be inferred

dooms its reckless and wanton conduct claim. See, e.g., Anglin v. Town of E. Hartford, No.

CV065001800, 2007 Conn. Super. LEXIS 2571, at *17-19 (Conn. Super. Ct. Sept. 27, 2007)

(striking reckless or wanton conduct claims) (attached as Ex. M); Appleton v. Crystal Water Co.,

No. CV 000062719S, 2000 Conn. Super. LEXIS 2527, at *6 (Conn. Super. Ct. Sept. 15, 2000)

-25-

(striking reckless or wanton conduct claim; “The plaintiff has failed to plead facts that would

demonstrate that the defendant knew, or that any reasonable person would have known, that the

lack of barbed wire on certain areas of its property would present a high degree of danger and

that the defendant made a conscious choice to depart from the standard of care necessitated by a

situation where a high degree of danger to others seemed apparent.”) (attached as Ex. N).

In addition to Dongguk’s failure to allege the requisite state of mind, Dongguk’s reckless

and wanton conduct claim also must fail because Yale’s alleged actions entailed no risk of

physical danger to Dongguk. The purely reputational harm that Dongguk has alleged is

insufficient to support a reckless and wanton conduct claim. “One is guilty of reckless

misconduct when knowing or having reason to know of facts which would lead a reasonable

[person] to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm

to the other but also involves a high degree of probability that substantial harm will result to

him.” Craig v. Driscoll, 64 Conn. App. 699, 721 (2001) (emphasis added; citation and quotation

marks omitted), aff’d, 262 Conn. 312 (2003); see also, e.g., Stanulonis v. Marzec, 649 F. Supp.

1536, 1543 (D. Conn. 1986) (recklessness requires defendant’s “‘knowing or having reason to

know of facts which would lead a reasonable man to realize, not only that his conduct creates an

unreasonable risk of physical harm to another, but also that such risk is substantially greater than

that which is necessary to make his conduct negligent’”) (emphasis added) (quoting Restatement

(Second) of Torts § 500 (1965 & App. 1975)). Every Connecticut case that has recognized

liability for reckless and wanton conduct involved the conscious disregard of a known risk of

physical danger. See, e.g., Pouliot v. Paul Arpin Van Lines, Inc., 367 F. Supp. 2d 267, 275 (D.

Conn. 2005) (“Providing an individual with a defective vehicle with which to transport an 800-

pound piece of equipment may be considered reckless behavior, undertaken with a wanton

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disregard for the possibility of injury to that individual, in a situation where danger is

apparent.”).

In the absence of any allegation that Yale consciously disregarded a known danger to

Dongguk or caused Dongguk physical harm, Dongguk cannot state a claim for reckless and

wanton conduct. In addition, since duty is an essential element of a reckless and wanton conduct

claim, Yale incorporates by reference section III.B.1., supra. See Sheiman, 4 Conn. App. at 46

(“To be legally sufficient, a count based on reckless and wanton misconduct must, like an action

in negligence, allege some duty running from the defendant to the plaintiff.”).

D. Dongguk Cannot State a Breach of Implied Contract Claim.

“The elements of a breach of contract claim are: (1) the formation of an agreement, (2)

performance by one party, (3) breach of the agreement by the other party, and (4) damages.”

SACS Global Trust & Mortgage, LLC v. Thomas, 478 F. Supp. 2d 285, 288 (D. Conn. 2007).

1. Yale Did Not Enter Into a Contract with Dongguk.

Dongguk cannot state a breach of implied contract claim for the most basic of reasons: it

has not alleged, and cannot allege, that it formed an agreement with Yale.

The rules governing contract formation are well settled. To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties. . . . To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties. . . . If the minds of the parties have not truly met, no enforceable contract exists. . . . An agreement must be definite and certain as to its terms and requirements. . . . So long as any essential matters are left open for further consideration, the contract is not complete. A contract requires a clear and definite promise.

Geary v. Wentworth Labs., Inc., 60 Conn. App. 622, 627 (2000) (citations and internal quotation

marks omitted).

“A contract implied in fact, like an express contract, depends on actual agreement, and

the party charged must have agreed, either by words or action or conduct, to undertake a

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contractual commitment to the party seeking to enforce such a commitment. A contractual

promise cannot be created by plucking phrases out of context; there must be a meeting of the

minds between the parties.” Peralta v. Cendant Corp., 123 F. Supp. 2d 65, 83 (D. Conn. 2000)

(citations and internal quotation marks omitted); see also Pecoraro v. New Haven Register, 344

F. Supp. 2d 840, 844 (D. Conn. 2004). “An implied contract is an agreement between the parties

which is not expressed in words but which is inferred from the acts and the conduct of the

parties. The test is whether the conduct and acts of the parties show an agreement.” Brighenti v.

New Britain Shirt Corp., 167 Conn. 403, 406 (1974) (citations omitted).

Yale did not agree to undertake any contractual commitment to Dongguk, and Dongguk

has not alleged any words or actions from which an agreement may be inferred. All that

Dongguk has alleged is that Yale “establish[ed] protocols to be used in verifying whether Yale

University has awarded graduate or post-graduate degrees to particular individuals.” (Compl. ¶

192.) But Yale’s “protocols” for verifying degrees cannot constitute a contract between Yale

and Dongguk because there was no meeting of the minds. Yale did not promise Dongguk that it

would follow its alleged “protocols” in responding to Ahn’s September 5, 2005 letter (indeed,

Schirmeister did not even perceive Ahn’s letter as requesting the verification of a degree (see fax

from Schirmeister to Ahn of 9/22/05 (Ex. C), at 1)), and Dongguk did not even know what

Yale’s “protocols” were, or if they existed at all. (See Compl. ¶ 25 (alleging “[u]pon information

and belief” that Yale “has established certain protocols regarding the verification of Ph.D.’s and

other degrees claimed to have been awarded by Yale University”).) Absent an “actual

agreement” between Yale and Dongguk to particular terms, there can be no implied contract.

See Therrien v. Safeguard Mfg. Co., 180 Conn. 91, 94 (1980) (“A contract implied in fact, like

an express contract, depends on actual agreement.”).

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Dongguk’s conclusory allegation that Yale and Dongguk “entered into an implied

contract” “[b]ased upon their dealings with one another” (Compl. ¶ 194) also is insufficient

because Dongguk has not alleged the terms of the alleged contract or any “dealings” upon which

a contract may be based. “In order to plead a breach of contract cause of action, a complaint

must allege the provisions of the contract upon which the claim is based.” Derrig v. Thomas

Reg’l Directory Co., No. CV 980583548S, 1999 Conn. Super. LEXIS 1658, at *5 (Conn. Super.

Ct. June 22, 1999) (citation and quotation marks omitted) (attached as Ex. O); see also, e.g.,

Hartlin v. Cody, 144 Conn. 499, 505 (1957) (breach of contract claim “was not properly raised in

the pleadings” because relevant provisions of contract were neither recited nor incorporated by

reference); Pitts v. Carabillo, No. CV 990334727S, 2000 Conn. Super. LEXIS 1308, at *8

(Conn. Super. Ct. May 22, 2000) (striking breach of contract claim because plaintiff failed to

allege term of contract allegedly breached) (attached as Ex. P); Pulliam v. Bridgeport Hosp., No.

CV 32 08 41, 1995 Conn. Super. LEXIS 1570, at *2-4 (Conn. Super. Ct. May 23, 1995) (striking

breach of contract claim because complaint failed to identify terms of alleged contract) (attached

as Ex. Q).

Absent a meeting of the minds, there can be no agreement between Yale and Dongguk,

and therefore no breach of implied contract claim.

2. Dongguk Provided No Consideration to Yale.

Even if Dongguk could otherwise allege an agreement between it and Yale, it still could

not state a breach of implied contract claim because it provided no consideration in exchange for

Yale’s alleged agreement to be bound by its “protocols” for verifying degrees. See, e.g., Shapiro

v. St. Paul’s Flax Hill Coop., Inc., No. CV 990170389S, 1999 Conn. Super. LEXIS 2726, at *2

(Conn. Super. Ct. Oct. 6, 1999) (“there is no valid legal consideration and hence no valid

contract claim”) (attached as Ex. R).

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“To be enforceable, a contract must be supported by valuable consideration. The

doctrine of consideration is fundamental in the law of contracts, the general rule being that in the

absence of consideration an executory promise is unenforceable.” Conn. Nat’l Bank v. Voog,

233 Conn. 352, 366 (1995) (citation and internal quotation marks omitted). “Consideration

consists of a benefit to the party promising, or a loss or detriment to the party to whom the

promise is made.” Gianetti v. Norwalk Hosp., 211 Conn. 51, 61 (1989) (citation and quotation

marks omitted). “An implied contract must have a consideration as certainly as an express one;

and the failure to perform the consideration precludes any contract by implication, as fully as it

precludes an express one. Where there is no consideration the law never implies a promise.”

Masonic Mut. Benefit Ass’n v. Tolles, 70 Conn. 537, 543 (1898).

Dongguk has not alleged that it provided any consideration to Yale in exchange for

Yale’s alleged agreement to be bound by its alleged protocols for verifying degrees. In the

absence of consideration, Dongguk could not have had an enforceable contract with Yale, and it

cannot state a breach of implied contract claim.

E. Dongguk Cannot State a Defamation Claim.

1. Yale Made No Defamatory Statements about Dongguk.

Dongguk cannot state a defamation claim, in the first instance, because none of the

statements that form the basis of the claim were about Dongguk or tended to harm Dongguk’s

reputation. (See Compl. ¶ 198.) In order to state a defamation claim, Dongguk must allege that:

(1) Yale made a defamatory statement; (2) the defamatory statement identified Dongguk to a

reasonable third person; (3) the defamatory statement was published to a third person; and (4)

Dongguk’s reputation suffered injury as a result of the defamatory statement. See QSP, Inc. v.

Aetna Cas. & Sur. Co., 256 Conn. 343, 356 (2001).

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“A defamatory statement is defined as a communication that tends to ‘harm the

reputation of another as to lower him in the estimation of the community or to deter third persons

from associating or dealing with him.’” Cweklinsky v. Mobil Chem. Co., 267 Conn. 210, 217

(2004) (citation omitted). “A plaintiff must ‘reasonably’ understand under all the circumstances

that an allegedly defamatory statement was intended to refer to him.” Dontigney v. Paramount

Pictures Corp., 411 F. Supp. 2d 89, 92 (D. Conn. 2006). “Where the alleged defamatory

statements [are] not made about the . . . plaintiffs, they do not satisfy the ‘of and concerning’

element crucial to prevailing on a common-law defamation claim.” QSP, Inc., 256 Conn. at 355-

56.

Dongguk cannot state a defamation claim because none of the alleged statements that

form the basis of the claim were made about Dongguk. Dongguk’s defamation claim is based

upon the following alleged statements:

� Reinstein’s statement that the Certification Letter had been “forged” (Compl. ¶¶ 95-97);

� Reinstein’s statement that “even if the September 22 Fax and the Certification Letter were ‘faxed from Yale University, it does not change the fact they were all fake documents that were not prepared by Yale University’” (id. ¶ 105);

� Reinstein’s statements that Yale’s Art History Department and Graduate School had not received the September 5, 2005 letter (id. ¶¶ 107-12);

� Reinstein’s statement that Yale had not received an inquiry from Dongguk (id. ¶ 122); and

� Yale’s Official Statement that all documents supporting Shin’s claim were forgeries (id. ¶ 143).

First, the allegations in Paragraphs 94-97 of Dongguk’s Complaint incorrectly conflate

Shin’s forged Certification Letter with Schirmeister’s September 22, 2005 fax. In the quoted

Chosun Ilbo articles, Reinstein did not state that Schirmeister’s fax had been forged; rather, she

stated that Shin’s Certification Letter had been forged. Because the statements attributed to

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Reinstein in these paragraphs referred to a “letter” containing Schirmeister’s “signature” and

serving as an “academic record verification,” the statements could only have referred to the

Certification Letter, not the fax. (See Compl. ¶¶ 95, 97.) The Certification Letter, not the fax,

contained Schirmeister’s apparent signature on a letter that purported to be an academic record

verification. (See Certification Letter (Ex. B); fax from Schirmeister to Ahn of 9/22/05 (Ex. C),

at 1.)

In any event, even if the statements attributed to Reinstein in the July 13 and 14, 2007

Chosun Ilbo articles could be interpreted as stating that the September 22, 2005 fax had been

forged, those statements still would not defame Dongguk. Reinstein’s statements did not refer to

Dongguk at all. (See Compl. ¶¶ 94-97.) These statements could not be reasonably interpreted as

meaning that Dongguk had forged the fax because the July 13 Chosun Ilbo article stated that the

September 22, 2005 fax had been “used as a confirmation for the academic record when

Professor Shin was hired as a Professor of Dongguk University in 2005.” (Id. ¶ 95.) The

statement that the September 22, 2005 fax had been used to confirm Shin’s academic record

precludes an inference that Dongguk – as opposed to, say, Shin, or an accomplice of hers – had

forged the fax. The newspaper article from which Dongguk quotes in Paragraph 97 of the

Complaint also does not suggest any malfeasance on Dongguk’s part, but rather states that Shin

“had used the fax . . . to confirm that she graduated with a doctoral degree in art.” (Biennale

Curator’s Degree Revealed a Forgery, Chosun Ilbo (7/13/07) (Ex. F).)

Next, Reinstein’s statement that “even if the September 22 Fax and the Certification

Letter were ‘faxed from Yale University, it does not change the fact they were all fake

documents that were not prepared by Yale University’” (Compl. ¶ 105) cannot be reasonably

understood as stating that Dongguk had forged the September 22, 2005 fax or the Certification

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Letter. Once again, Reinstein’s statement did not refer to Dongguk at all. Moreover, the news

article that reported this statement referred to the September 22, 2005 fax as “Jeong Ah Shin’s

Fake Fax” and stated that Dongguk had “received [it] through fax from Yale University in

September 2005 when recruiting Shin.” (Yale Decides Against Investigating ‘Jeong Ah Shin’s

Fake Fax’, DongA Ilbo (7/16/07) (attached as Ex. S).11 Indeed, Reinstein’s acknowledgment

that the September 22, 2005 fax may have been “faxed from Yale University” (Compl. ¶ 105)

not only is contrary to an inference that Dongguk had forged the fax, but also bolstered

Dongguk’s claim to have received a fax from Yale.

Next, Reinstein’s statements that Yale’s Art History Department and Graduate School

had not received the September 5, 2005 letter (Compl. ¶¶ 110-12) also did not defame Dongguk.

Dongguk has not alleged that Reinstein said that Dongguk had never sent the September 5, 2005

letter. Far from accusing Dongguk of not having sent the September 5, 2005 letter, or of

fabricating it, and far from making any definitive statement at all about the September 5, 2005

letter, Reinstein’s statements indicated only that she could not find the letter among Yale’s

records, concluding, “I do not know what happened.” (Id. ¶ 112.)

Like the other statements, Reinstein’s alleged statement to the Munhwa Broadcasting

Corporation that Yale had not received an inquiry from Dongguk asking about Shin’s Ph.D.

(Compl. ¶¶ 120-22) also could not be reasonably interpreted as defaming Dongguk. As in her

previous statements, Reinstein did not state that Dongguk had not sent the September 5, 2005

letter. Rather, Reinstein said, presumably of the September 5, 2005 letter, “To the best of my

knowledge, this letter never arrived at Yale, we never received this.” (See MBC broadcast of

8/4/07 (compact disc enclosed as Ex. T), at 32:57.) Reinstein’s “[t]o the best of my knowledge”

11 Dongguk relied upon the July 16, 2007 DongA Ilbo article in its Complaint. (See

Compl. ¶¶ 104-05.)

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qualification precludes any defamatory interpretation. In any event, Dongguk has not alleged

that Reinstein made a false statement and actually did know that the September 5, 2005 letter had

arrived at Yale.

Finally, Yale’s Official Statement “that all documents supporting Shin’s claim were

forgeries” (Compl. ¶ 143) said nothing about Dongguk. As in the previous statements, Yale did

not state that Dongguk had forged any documents, nor could that conclusion be reasonably

inferred from Yale’s statement. Rather, since the statement referred to all documents supporting

Shin’s claim, the only reasonable inference to be drawn is that Shin (or someone working in

concert with her) had forged the documents. Indeed, the news article that reported Yale’s

September 21, 2007 Official Statement did not even mention Dongguk. (See Yale University

Exceptionally Announced “All of Shin’s Documents are Fraudulent,” DongA Ilbo (Sept. 23,

2007) (attached as Ex. U).12) Rather, the article discussed only Shin’s fraud, explaining how

Shin’s various assertions were untrue. (Id.)13

In the absence of any defamatory statements by Yale about Dongguk, Dongguk cannot

state a defamation claim against Yale.

2. Dongguk Is a Public Figure, and Yale Made No Statements about It

with Actual Malice.

In order to state a defamation claim, a public figure must allege that the defendant

published a defamatory statement about it with actual malice. See, e.g., Masson v. New Yorker

Magazine, Inc., 501 U.S. 496, 508 (1991). “Actual malice” means “that the defendant published

a statement with knowledge of its falsity or with a high degree of awareness of the publication’s

12 Dongguk relied upon the September 23, 2007 DongA Ilbo article in its Complaint.

(See Compl. ¶¶ 143-44.)

13 Moreover, with the sole exception of Schirmeister’s September 22, 2005 fax, all of the documents supporting Shin’s claim were forgeries. (See supra p. 13 n.9.)

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probable falsity, or while the defendant in fact entertained serious doubts as to the truth of the

publication.” Konikoff v. Prudential Ins. Co. of Am., 234 F.3d 92, 100-01 (2d Cir. 2000)

(citations, quotation marks, and alterations omitted). “‘Actual malice’ occurs when a statement

is made ‘with knowledge that it was false or with reckless disregard of whether it was false or

not.’” Morron v. City of Middletown, 464 F. Supp. 2d 111, 118 (D. Conn. 2006) (quoting New

York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964)).

As a self-described “important academic institution[]” with a worldwide reputation (see

Compl. ¶¶ 6-8, 13, 15-16), Dongguk is a public figure. “The decision whether or not a plaintiff

in a defamation suit is a public figure is one properly made by the court in the first instance.”

Meeropol v. Nizer, 560 F.2d 1061, 1066 n.6 (2d Cir. 1977). Courts have consistently held that

colleges and universities are public figures for defamation purposes. See, e.g., Long Island Univ.

v. Grucci for Congress, Inc., 781 N.Y.S.2d 148, 149 (N.Y. App. Div. 2004); Ithaca College v.

Yale Daily News Publ’g Co., 433 N.Y.S.2d 530, 533-34 (N.Y. Sup. Ct. 1980), aff’d, 445

N.Y.S.2d 621 (N.Y. App. Div. 1981); Univ. of the S. v. Berkley Publ’g Corp., 392 F. Supp. 32,

33 (S.D.N.Y. 1974).

Because Dongguk is a public figure, its defamation claim requires Yale to have made

defamatory statements about it with “actual malice.” See New York Times Co. v. Sullivan, 376

U.S. 254, 279-80 (1964). Dongguk, however, has not alleged that Yale made any statements

about it with knowledge that they were false or with reckless disregard of whether they were

false. See id. Rather, Dongguk has alleged malice in conclusory fashion only. (See Compl. ¶

198 (alleging that Yale “maliciously” made various statements).) Dongguk’s failure to allege

actual malice dooms its defamation claim. See Beler v. Milford Bd. of Educ., No.

CV054002886S, 2005 Conn. Super. LEXIS 1932, at *5 (Conn. Super. Ct. June 23, 2005)

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(“Beler’s failure to allege facts to establish that the statements published to McCready were false

or that Firn had an awareness of their probable falsity or entertained serious doubts as to the truth

of the statements is fatal to his claim of defamation.”) (attached as Ex. V).

In any event, Yale’s own actions, as alleged by Dongguk, demonstrate Yale’s lack of

malice toward Dongguk. Yale’s prompt investigation into the 2005 correspondence, once

Dongguk inquired, and its considerable correspondence with Dongguk, in an obvious effort to

learn the truth, demonstrate Yale’s lack of malice. (See Compl. ¶¶ 98-102, 129-36.) Moreover,

the fact that, once Yale discovered that Schirmeister had sent the September 22, 2005 fax, it

promptly acknowledged that fact and apologized to Dongguk (see id. ¶¶ 148-53, 155) precludes

any malice on Yale’s part. See Rogus v. Bayer Corp., No. 3:02cv1778, 2004 U.S. Dist. LEXIS

17026, at *35 (D. Conn. Aug. 25, 2004) (“Given that the company promptly investigated the

complaints regarding the notes and ordered Fuhrman to remove them from the file, no reasonable

juror could conclude on the basis of the undisputed facts that Bayer acted with regard to these

two letters with malice in fact.”) (attached as Ex. W).

To the extent Dongguk has alleged that Yale was negligent in learning the truth about

Ahn’s September 5, 2005 letter and Schirmeister’s September 22, 2005 fax, such allegations do

not support a claim of malice. “[A] finding of actual malice cannot be predicated merely on a

charge that a reasonable publisher would have further investigated before publishing. . . . Rather,

a public figure defamation plaintiff must show either that the publisher actually entertained

serious doubts about the veracity of the publication, or that there are obvious reasons to doubt the

veracity of the informant or the accuracy of his reports.” Herbert v. Lando, 781 F.2d 298, 308

(2d Cir. 1986) (citation and internal quotation marks omitted). Dongguk has not alleged, and

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cannot allege, such serious doubts or obvious reasons. Rather, all that Dongguk has alleged is

that Yale made statements that turned out to be untrue.

IV. CONCLUSION

For the foregoing reasons, Yale respectfully requests that the Court dismiss all claims in

Dongguk’s Complaint.

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DEFENDANT YALE UNIVERSITY By: /s/ Felix J. Springer

Felix J. Springer (#ct05700) Howard Fetner (#ct26870) Day Pitney LLP 242 Trumbull Street Hartford, CT 06103 (860) 275-0100 (phone) (860) 275-0343 (fax) fjspringer@daypitney.com hfetner@daypitney.com Its attorneys

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CERTIFICATION

I hereby certify that on June 2, 2008, a copy of the foregoing Memorandum of Law was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court’s CM/ECF System.

/s/ Felix J. Springer