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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DR. JENNY H. CONVISER and
ASCEND CONSULTATION IN
HEALTH CARE, LLC,
Plaintiffs,
v.
DEPAUL UNIVERSITY,
Defendant.

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Case No.: 20-cv-03094
Honorable Marvin E. Aspen

MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS
Defendant DePaul University, by counsel and pursuant to Fed. R. Civ. P. 12(b)(6), moves
to dismiss Plaintiffs’ Complaint (“Compl.,” ECF No. 1-1) for the reasons set forth below.
INTRODUCTION
This case is not really about Dr. Jenny Conviser. It is even less about her company, Ascend
Consultation in Health Care, LLC. It is about former DePaul softball coach Eugene Lenti, who
separated from DePaul two years ago. Even by Conviser’s own telling, she and her company were
barely even a footnote in that story. But Conviser has recognized that Lenti’s high-profile
separation presents an opportunity, and seeks to capitalize on that opportunity by bootstrapping
herself and Ascend to Lenti’s sudden exit. According to Conviser, but for her claimed role in that
exit, she would still be treating DePaul’s students. Therefore, she claims, DePaul has violated
Title IX, Ascend’s vendor agreement, and Illinois common law. Even imagining Conviser’s
account were true, however (as the Court must at this stage), her peripheral presence in the events
she describes cannot carry the weight of her legal claims. The Court should therefore dismiss
them.
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FACTUAL ALLEGATIONS
Conviser is a licensed clinical psychologist who has provided mental health treatment
services to the DePaul community since 2005. (Compl. ¶¶ 8, 12.)1 In 2017, DePaul signed a
Professional Services Agreement with Conviser’s company, Ascend (the “PSA”), which governed
the parties’ working relationship. (Compl. ¶ 100.)2 The PSA provides that DePaul “may refer
student-athletes that it believes are in need of clinical psychological assessment to Ascend.” (Ex.
A ¶ 2) (emphasis added). The PSA does not require DePaul to make any such referrals, is not
exclusive, and specifically notes that Ascend will not “market or hold itself out publicly as an
employee of DePaul or official sports psychologist of DePaul Athletics.” (Id. ¶ 11(b).)
Several months before the parties executed the PSA, in the fall of 2016, Conviser informed
DePaul’s Director of Sports Medicine, Sue Walsh, and Associate Athletics Director, Kathryn
Statz, that she believed Lenti was “out-of-control” and “abusive and aggressive” toward softball
staff and players. (Compl. ¶¶ 47-48.) DePaul encouraged Conviser to meet with Lenti and teach
him “how to cultivate a collaborative and healthy environment of respect between staff and
student-athletes.” (Id. ¶¶ 49-51.) Conviser reported the results of these meetings to DePaul. (Id.
¶ 53.) DePaul took no adverse action against Conviser based on these reports about Lenti—to the
contrary, it signed a new contract with her the following year. (Id. ¶ 100.)
The next—and last—time Conviser claims to have raised Lenti’s conduct with DePaul3
was in December 2017, at a meeting Conviser had called to “discuss the status of student mental

1

DePaul disputes Conviser’s version of events, but must accept it as true for purposes of this motion only.
The Court may consider the PSA at the pleadings stage because the Complaint incorporates the PSA, and
because it is central to Plaintiffs’ claims. E.g., Allstate Life Ins. Co. v. Peoplesoft, Inc., 2004 WL 1375383,
at *2 (N.D. Ill. May 26, 2004) (collecting cases).
3
Conviser also alleges that, at some unspecified time, she “and her staff” directed “a patient to report a
sexual assault to the University (this time unrelated to Lenti and the softball team).” (Compl. ¶ 66.)
Conviser does not provide any specifics about this alleged report, nor does she explain whether or how she
believes it was connected to DePaul’s decision to stop using her services.
2

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health resources and services at DePaul.” (Compl. ¶¶ 60-61.) DePaul administrators allegedly
expressed disbelief, and did nothing as a result of the meeting. (Compl. ¶¶ 62-65.)
Sometime in 2018, a student told one of Conviser’s colleagues that she had seen Lenti
punch his assistant coach. (Compl. ¶ 74.) Conviser’s colleague counseled the patient to report the
incident to DePaul’s Title IX office. (Id. ¶ 73.) Importantly, Conviser had no role in these events.
She was not the victim; she did not witness the incident; she did not hear the student recount the
incident; she did not tell the student to report it; and she made no reports herself, nor did her
colleague. In other words, by Conviser’s own account, she was four degrees removed from the
situation: Conviser’s co-worker directed a third party (the student) to report misconduct against a
fourth party (the assistant coach). A week after the student’s report, Conviser claims DePaul
stopped referring patients to Ascend, citing a preference for internal resources. (Id. ¶¶ 83, 85.)
On receiving the student’s complaint, DePaul’s Title IX office opened an independent and
confidential investigation into Lenti. (Id. ¶ 76.) In June 2018, Lenti left DePaul. (Id. ¶ 80.) Based
on these allegations, Conviser claims unlawful retaliation under Title IX, breach of contract,
indemnification, defamation, and false light invasion of privacy. For the reasons below, each of
these claims fails.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), dismissal is proper where a plaintiff has
failed to state a claim even though all facts alleged are taken as true. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). To survive a motion to dismiss under Rule 12(b)(6), the plaintiff must
allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. A claim has
facial plausibility “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009). “A plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550 U.S. at 555 (citation omitted).
ARGUMENT
Conviser’s Complaint alleges six counts against DePaul: Title IX retaliation; breach of
contract/breach of the implied covenant of faith and fair dealing; indemnification; defamation per
se and per quod; and false light invasion of privacy. Even taking all of Conviser’s factual
allegations as true, she has failed to state a plausible claim under any of these theories. DePaul
addresses each in turn.
A. Conviser Cannot State A Claim For Title IX Retaliation
1. Conviser Does Not Have Title IX Standing
To bring a claim under Title IX, as with any statutory claim, Conviser must have statutory
standing. Statutory standing is distinct from jurisdictional standing, and presents the question
whether the plaintiff “falls within the class of plaintiffs whom Congress has authorized to sue.”
Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 (2014). The Supreme
Court also has framed this inquiry as whether the plaintiff “comes within ‘the zone of interests’”
of a particular statute. Id. at 127. In particular, “the plaintiff must establish that the injury [she]
complains of ([her] aggrievement, or the adverse effect upon [her]) falls within the ‘zone of
interests’ sought to be protected by the statutory provision” at issue. Air Courier Conference of
Am. v. Am. Postal Workers Union AFL-CIO, 498 U.S. 517, 523-24 (1991) (citation omitted). The
“zone of interests” analysis begins with the statute’s text. Lexmark, 527 U.S. at 129.
Title IX’s text provides that “[n]o person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be subjected to discrimination under

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any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a).
The statute does not expressly prohibit retaliation, nor does it create a private right of action, so its
text is of limited use here. Rather, Title IX’s retaliation cause of action was created by the United
States Supreme Court in Jackson v. Birmingham Board of Education, 544 U.S. 167, 173-74 (2005).
Review of that decision, the cases applying it, and Title IX’s legislative history confirms
that the statute does not protect non-student, non-parent, non-employees like Conviser. First, when
discussing the scope of Title IX’s retaliation protections in Jackson, the Supreme Court focused
exclusively on conduct targeting either employees or students (id. at 179 n.3, 180), i.e., those who
have a protected interest in an “education program or activity.” The plaintiff in that case was a
school employee, and therefore clearly within Title IX’s zone of interests.
Second, Title IX prohibits discrimination only in an “education program or activity.”
Accordingly, courts—including the Seventh Circuit—have consistently refused to extend the
statutory zone of interest beyond those who actually participate in educational programs: students,
employees, and (in some limited circumstances) parents. See Brown v. Illinois Dep’t of Human
Servs., 717 F. App’x 623, 626 (7th Cir. 2018) (affirming dismissal of a vendor’s Title IX claim
because “she is not an employee of the Department”); Rossley v. Drake Univ., 336 F. Supp. 3d
959, 970 (S.D. Iowa 2018) (dismissing Title IX retaliation claim because former Board of Trustees
member was outside the statutory zone of interests); Prey v. Kruse, 2009 WL 10679036, at *2
(S.D. Ohio June 9, 2009) (holding that Jackson “does not confer standing beyond potential
beneficiaries or employees of a federally funded education program” and dismissing non-student,
non-employee’s retaliation claim); Lopez v. San Luis Valley, Bd. of Co-Op Educ. Servs., 977 F.
Supp. 1422, 1426 (D. Colo. 1997) (dismissing Title IX retaliation claims where the plaintiff was
“not an employee of [the defendant] and is not seeking either admission to or services under the

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[defendant’s] program”). These decisions uniformly recognize that Title IX protects only plaintiffs
excluded from “those programs which relate to either educational opportunities for students or …
programs intended for faculty and staff.” Rossley, 336 F. Supp. 3d at 971.
Title IX’s legislative history further underscores this conclusion. When summarizing the
scope of the provision that ultimately became Title IX’s core discrimination prohibition, bill
sponsor Senator Bayh noted: “we are dealing with three basically different types of discrimination
here. We are dealing with discrimination in admission to an institution, discrimination of available
services or studies within an institution once students are admitted, and discrimination in
employment within an institution, as a member of a faculty or whatever.” 118 Cong. Rec. 5812
(1972).4 Elsewhere, Senator Bayh again emphasized that the “amendment covers discrimination
in all areas where abuse has been mentioned,” namely, “employment practices for faculty and
administrators, scholarship aid, access to programs within the institution such as vocational
education classes, and so forth.” 118 Cong. Rec. 5807.
As independent contractors, Conviser and Ascend5 fall squarely outside this wellestablished “zone of interest.” Conviser was not a DePaul student, and she was not a DePaul
employee. She therefore does not, and cannot, allege deprivation of any educational benefit.
Rather, she simply alleges that DePaul stopped sending her business. Thus, to allow Conviser’s
suit to proceed would open the Title IX floodgates to anyone who has ever crossed commercial
paths with a college or university. That cannot be right. Cf. Shebley v. United Cont’l Holdings,

4

The Supreme Court has recognized that “Senator Bayh’s remarks, as those of the sponsor of the language
ultimately enacted, are an authoritative guide to the statute’s construction.” N. Haven Bd. of Educ. v. Bell,
456 U.S. 512, 526-27 (1982).
5
Ascend is even further outside Title IX’s zone of interest than Conviser. Ascend can neither be a victim
of discrimination “on the basis of sex” nor be deprived of an education. Cf. White Glove Staffing, Inc. v.
Methodist Hosps. of Dallas, 2017 WL 3925328, at *3 (N.D. Tex. Sept. 7, 2017) (finding that a corporation
lacked Title VII standing because it had no racial identity and was outside the statute’s zone of interest).

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Inc., 357 F. Supp. 3d 684, 694 (N.D. Ill. 2019) (dismissing airline passengers’ race discrimination
claims under a parallel provision in Title VI because the passengers were not intended beneficiaries
of the airline’s federal funding); Friends of Trumbull v. Chicago Bd. of Educ., 123 F. Supp. 3d
990, 994 (N.D. Ill. 2015) (declining to interpret provision protecting “‘any person aggrieved’ by
discrimination on the basis of disability” to “mean that virtually anyone could file an ADA suit as
long as they have some association with someone, somewhere, who has a disability and who has
been plausibly subjected to discriminatory action”).
Because Conviser has not, and cannot, allege deprivation of an educational benefit, she
falls outside Title IX’s zone of interests. The Court should therefore dismiss Count I.
2. Conviser Has Failed To Plead Her Retaliation Claim
Even if Conviser had statutory standing, her retaliation claim would still fail because she
has failed to plausibly allege the prima facie elements of Title IX retaliation. As in any retaliation
case, those elements are (1) protected activity; (2) material adverse action; and (3) but-for causal
connection between the two. Burton v. Bd. of Regents of Univ. of Wisconsin Sys., 851 F.3d 690,
695 (7th Cir. 2017) (applying Title VII’s retaliation framework to the Title IX context). Here,
Conviser’s primary retaliation theory is that DePaul “terminated” the PSA because her colleague
encouraged a student to report Lenti’s assault on his assistant coach sometime in 2018. (Compl. ¶
83.) But, Conviser also references three earlier conversations with DePaul’s athletics and/or Title
IX staff, dating back to 2016, that purportedly support her retaliation claim. (Id. ¶¶ 47-49, 61-63,
66.) Neither theory supports a plausible retaliation claim.
a. Conviser Has Alleged No Causal Connection Between Her Early Complaints
And DePaul’s Decision To Stop Referring Patients To Ascend
Even assuming Conviser’s various conversations with DePaul’s athletics staff and Title IX
office in 2016 and December 2017 were protected activity, those discussions cannot support her
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retaliation claim because she alleges no facts connecting those conversations to DePaul’s decision
to stop sending her patients in June 2018. For one thing, the months (years, as to the 2016
complaint) between these events preclude any causal inference. Parkins v. Civil Constructors of
Ill., Inc., 163 F.3d 1027, 1038 (7th Cir. 1998) (finding a three month gap between the plaintiff’s
harassment complaint and layoff too long to prove a causal connection); Hughes v. Derwinski, 967
F.2d 1168, 1174 (7th Cir. 1992) (finding a four month gap too long to establish causation).
Further, Conviser does not allege any retaliatory acts between her first complaint in 2016
and the 2018 contract “termination” that would allow her to bridge this gap. E.g., Marijan v. Univ.
of Chicago, 2018 WL 3463272, at *5 (N.D. Ill. July 18, 2018) (dismissing retaliation claims absent
any indication of “ongoing retaliation” in the 19 months between the plaintiff’s complaint and her
termination). To the contrary, the Complaint shows that after Conviser first raised concerns about
Lenti in 2016, DePaul issued her a new contract. (Compl. ¶¶ 47-50, 57.) And, far from dismissing
Conviser’s concerns, DePaul encouraged Conviser to address her concerns directly with Lenti, and
facilitated meetings in which she could do so. (Compl. ¶¶ 49-50.) In short, because Conviser
offers nothing more than her own speculation to connect these 2016 and 2017 reports to the alleged
2018 decline in patient referrals, these reports cannot support a retaliation claim.
b. Conviser Cannot State A Claim Based On Fourth-Hand Knowledge Of
Misconduct
Conviser’s tenuous connection to an alleged student report about Lenti in 2018 fares no
better. Though the United States Supreme Court has recognized that a plaintiff need not engage
in protected activity herself to state a retaliation claim, the circumstances in which “third-party
retaliation” claims may proceed are narrow, and depend on the significance of the plaintiff’s
relationship with the third party. Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 174-75 (2011).
Although the Court declined to list a “fixed class of relationships for which third-party reprisals
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are unlawful,” it noted that “firing a close family member will almost always” support a thirdparty retaliation claim, while “inflicting a milder reprisal on a mere acquaintance will almost never
do so[.]” Id. The Supreme Court’s rationales for allowing retaliation claims in the Title IX context,
as articulated in Jackson, implicitly recognize the importance of this close affiliation to protected
activity. See 544 U.S. at 180 (noting that if “recipients were permitted to retaliate freely,
individuals who witness discrimination would be loath to report it”); id. at 181 (noting the
importance of prohibiting retaliation “against all those who dare complain”) (emphases added).
Despite Conviser’s transparent efforts to interject herself into Lenti’s departure, she cannot
allege any such close affiliation. Conviser alleges only that she worked with someone who
encouraged a third party to engage in protected activity by reporting suspected Title IX misconduct
against yet another party. By her own admission, Conviser herself had no role in either the
reporting or the underlying incident.6 She has therefore pled herself out of court.7 See, e.g.,
Mackall v. Colvin, 2015 WL 412922, at *23-24 (D. Md. Jan. 29, 2015) (finding that an employer’s
alleged retaliation against the plaintiff based on her co-worker’s protected activity failed to satisfy
the Thompson test); Williams v. Daiichi Sankyo, Inc., 947 F. Supp. 2d 1234, 1250 (N.D. Ala. 2013)
(finding that the plaintiff could not bring a third-party retaliation claim based on protected activity
of a colleague who was neither a close friend nor a family member).
As Jackson emphasized, the point of allowing Title IX retaliation claims is to protect those

6

Conviser’s distance from the student’s reporting also defeats any claim of causation because Conviser
does not, and cannot, explain how DePaul could have known she had anything to do with the report.
Needless to say, DePaul could not retaliate against Conviser because of something it did not even know
about. Cf. Hudson v. West Harvey/Dixmoor Sch. Dist. No. 147, 168 F. Supp. 2d 851, 854 (N.D. Ill. 2001)
(dismissing a retaliation claim absent allegations that the employer knew about the plaintiff’s involvement
in protected activity).
7
Ascend’s Title IX claim is also a non-starter in this regard because Ascend, as a corporate entity, “cannot
participate in protected activity.” Crawford v. George & Lynch, Inc., 2012 WL 2674546, at *3 (D. Del.
July 5, 2012).

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who “witness” and “report” discrimination (in this case, the student). Conviser neither witnessed
nor reported anything. And, she fails to explain why adverse action against her or Ascend—when
she had no firsthand connection with the student witness, much less with the alleged victim—
would deter that student from reporting again. Cf. Thompson, 562 U.S. at 175 (noting that thirdparty reprisals are only materially adverse if they would deter a reasonable complaining party from
opposing future discrimination). Therefore, Count I should be dismissed.
B. Ascend Has Not Stated A Breach Of Contract Claim Since DePaul Had No Obligation
to Refer Student-Athletes to Ascend
To plead breach of contract under Illinois law, a plaintiff must allege “(1) the existence of
a valid and enforceable contract; (2) substantial performance by the plaintiff; (3) a breach by the
defendant; and (4) resultant damages.” Reger Dev., LLC v. Nat’l City Bank, 592 F.3d 759, 764
(7th Cir. 2010). Courts “construe contracts by giving their unambiguous terms clear and ordinary
meaning[.]” Id. (citations omitted). In reviewing contracts, courts review the agreement as a
whole, rather examining any one provision in isolation. Id.
Here, Ascend cannot establish that DePaul breached the PSA because DePaul had no
obligation to refer student-athletes to Ascend. The Complaint selectively misquotes the PSA’s
key provision: the PSA does not say that DePaul “agreed ‘to refer student-athletes” to Ascend
(Compl. ¶ 57); rather, it says “DePaul may refer student-athletes…to Ascend.” (Ex. A ¶ 2(a)
(emphasis added).) Moreover, the PSA explicitly confirms that Ascend is a non-exclusive
provider, and will evaluate “student-athletes referred to it by DePaul on a non-exclusive basis.”
(Ex. A ¶ 2(a) (emphasis added).) Further, in Paragraph 11(b), “AscendCHC agrees not to market
or hold itself out publicly…as the exclusive or official sports psychologist of DePaul Athletics.”
In short, the PSA is clear that DePaul had the option—but not the obligation—to refer studentathletes to Ascend. DePaul did not breach the PSA by declining to make referrals that it had no
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obligation to make. Count II must therefore be dismissed.8 See Royal Consumer Prods. LLC v.
Walgreen Co., 2019 WL 1595889, *2-4 (N.D. Ill. April 15, 2019) (dismissing breach of contract
action where defendant had no contractual obligation to purchase goods from the plaintiff).
Further, since DePaul had no obligation to refer student-athletes to Ascend, it could not
have breached the implied covenant of good faith and fair dealing. Illinois law does not permit a
party to use the implied covenant of good faith and fair dealing to impose new, affirmative
obligations. E.g., Suburban Ins. Servs., Inc. v. Va. Sur. Co., Inc., 322 Ill. App. 3d 688, 693 (1st
Dist. 2001). As discussed above, DePaul had no obligation to refer student-athletes to Ascend,
and therefore could not have breached this implied covenant. See e.g. Pharm. Horizons, Inc. v.
SXC Health Sols., Inc., 2012 WL 1755169, at *5 (N.D. Ill. May 15, 2012) (holding that “[b]ecause
no underlying contractual obligation existed, under Illinois law, the implicit duty of good faith and
fair dealing cannot add that term.”). Therefore, Count II should be dismissed.
C. The PSA’s Indemnification Provision Does Not Cover First-Party Claims
“Whether a particular indemnification agreement actually does cover claims by a party
depends on the language of the contract.” Allied Waste Transp., Inc. v. Bellemead Dev. Corp.,
2014 WL 4414510, at *7 (N.D. Ill. Sept. 8, 2014). An indemnification provision “is subject to
contract interpretation rules.” Va. Sur. Co., Inc. v. N. Ins. Co. of N.Y., 224 Ill. 2d 550, 556 (2007).
Courts applying Illinois law have consistently found that indemnification provisions are
limited to third-party claims if the provision contains language that is inconsistent with first-party
indemnification. See, e.g., NAR Bus. Park, LLC v. Ozark Auto. Distributors, LLC, 430 F. Supp.

8

Ascend also claims that by failing to refer student-athletes to Ascend, DePaul anticipatorily breached the
PSA and that the material breaches constituted constructive termination. These allegations are insufficient
to support a breach of contract claim because, as discussed above, the unambiguous terms of the contract
are clear that DePaul had no obligation to refer student-athletes to Ascend. As such, any failure to refer
student-athletes to Ascend is not an anticipatory breach or constructive termination of the PSA.

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3d 443, 461 (N.D. Ill. 2019) (collecting cases and noting that “indemnification provisions that
include a duty to defend generally exclude first-party claims, as it makes little sense to defend a
claim against one’s self”); Allianz Glob. Corp. & Specialty Marine Ins. Co. v. Host Int’l, Inc., 2013
WL 1629437, at *6 (N.D. Ill. April 16, 2013) (finding that the duty to “indemnify, defend and hold
harmless” could only arise in a third party action).
The logic in these cases dictates the same result here. Specifically, the PSA requires “each
Party” to “defend, indemnify, and hold harmless the other party.” (Ex. A ¶ 9(a) (emphasis added).)
Moreover, Paragraph 9(b) requires the indemnified party to notify the indemnifying party of the
existence of any claims “within a reasonable time after the Indemnified Party learns of such claim
or cause of action.” It further requires the indemnified party’s consent before compromising or
settling any claim subject to indemnification. (Id. ¶ 9(b).) Because the PSA’s indemnification
section provides for a duty to defend, approval of settlement, and notice of claims, it would be
illogical for that provision to apply to first-party actions. John Hancock Life Ins. Co. v. Abbott
Labs., Inc. 183 F. Supp. 3d 277, 326 (D. Mass 2016) (applying Illinois law and limiting similar
provisions to third-party claims). As such, the Court should dismiss Count III with prejudice.
D. Conviser Has Not Adequately Pled Defamation Or False Light
Conviser’s defamation and false light claims (Counts IV, V, and VI) are equally
implausible. To state a defamation claim in Illinois, a plaintiff typically must allege “facts
establishing that the defendant made a false statement about the plaintiff, that the defendant made
an unprivileged publication of that statement to a third party, and that this publication caused
damages.” Bianchi v. McQueen, 2016 IL App (2d) 150646, ¶ 89 (2016) (citation omitted). Illinois
courts recognize certain types of statements that are so inherently harmful that they are “per se”
defamatory, in which case the court may presume damages. See Solaia Tech., LLC v. Specialty

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Publ’g Co., 221 Ill. 2d 558, 578 (2006). Absent presumed damages, the plaintiff must allege
“special damages,” which require “a specific accounting of [the plaintiff’s] damages or an
explanation of how the purported defamation caused them.” Lott v. Levitt, 556 F.3d 564, 570 (7th
Cir. 2009). In addition to these elements, plaintiffs claiming false light require must prove that the
defendant made false statements to the “public,” and that the statements would be “highly
offensive to a reasonable person.” Cf. Aroonsakul v. Shannon, 279 Ill. App. 3d 345, 349-50 (2d
Dist. 1996).
But Conviser’s allegations do not require close scrutiny of these distinctions because two
universal defamation principles preclude both of Conviser’s defamation claims.

First, a

defamation plaintiff must always “specifically state the words considered actionable.” Appraisers
Coal. v. Appraisal Inst., 1993 WL 326671, at *8 (N.D. Ill. Aug. 18, 1993) (citation omitted).
Courts in this district have long recognized that federal pleading standards require a plaintiff to
specifically describe the statements alleged “so that the defendant can ‘form responsive
pleadings.’” Marron v. Eby-Brown Co., LLC, 2012 WL 182234, at *4 (N.D. Ill. Jan. 23, 2012)
(quoting Woodard v. Am. Family Mut. Ins. Co., 950 F. Supp. 1382, 1388 (N.D. Ill. 1997).)
Second, and similarly universal, is the premise that a statement is not actionably
defamatory if the speaker is privileged to make it. As relevant here, Illinois has embraced the
Second Restatement of Torts’ robust concept of litigation privilege, which provides:
An attorney at law is absolutely privileged to publish defamatory matter concerning
another in communications preliminary to a proposed judicial proceeding, or in the
institution of, or during the course and as part of, a judicial proceeding in which he
participates as counsel, if it has some relation to the proceeding.
Restatement (2d) of Torts § 586 (1977).
When applying this privilege, Illinois courts have recognized that “[a]n attorney must be
at liberty to candidly and zealously represent his client in communications to potential opposing
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parties in litigation or other proceedings without the specter of civil liability for his statements
clouding his efforts.” Atkinson v. Affronti, 369 Ill. App. 3d 828, 833 (1st Dist. 2006) (citing the
Restatement). Thus, the privilege protects all pre-litigation statements made in any written
communication to a potential litigant. Id. This is true “regardless of the attorney’s motives in
making that communication” and any alleged knowledge of truth or falsity.

Scarpelli v.

McDermott Will & Emery LLP, 2018 IL App (1st) 170874, ¶ 18 (2018). “[T]he only requirement
is that the statements are pertinent to a possible future legal proceeding.” Id. at 250.
Conviser’s defamation and false light claims stumble on both of these hurdles. Litigation
privilege squarely precludes all three claims. The only allegedly defamatory statement that
Conviser specifically attributes to DePaul appeared in a letter from DePaul’s general counsel’s
office, in which DePaul pointed out some of the factual inaccuracies underpinning Conviser’s
threatened claims. (Compl. ¶¶ 127-129; Ex. B.)9 As the Complaint acknowledges, DePaul’s letter
was prompted by Conviser’s counsel’s own demand. (Compl. ¶¶127-128.) That letter reads, in
pertinent part: “As for the various allegations outlined in your letter, the facts relayed by Dr.
Conviser are wholly inaccurate and oversensationalized. This revisionist history is emblematic of
a pattern observed by University Athletics’ staff when interacting with your client—she simply
did not get her facts right.” (Id.) It is this last phrase with which Conviser now takes issue.
Conviser cannot sue for this statement, however, because DePaul’s in-house counsel wrote
it in the course of defending her client against a possible legal claim.10 Both the letter’s subject

9

As with the PSA, the Court may consider this letter at the pleadings stage because it is “referred to in the
plaintiff’s complaint and central to [her] claim.” Serv. by Air, Inc. v. Phoenix Cartage & Air Freight, LLC,
78 F. Supp. 3d 852, 858 n.2 (N.D. Ill. 2015) (quoting Rosenblum v. Travelbyus.com Ltd., 299 F.3d 657, 661
(7th Cir. 2002).)
10
DePaul’s statement is also not actionable under either a defamation or a false light theory because, until
Conviser filed this lawsuit, only Conviser and her counsel had seen it. Jernryd v. Nilsson, 1985 WL 3590,
at *17 (N.D. Ill. Nov. 8, 1985) (holding that statements made only to the plaintiff or his attorney were not
“publications” and therefore could not support a defamation claim); see also Ex. B at 1 (addressed to

14

 Case: 1:20-cv-03094 Document #: 13 Filed: 06/02/20 Page 15 of 17 PageID #:101

line (“Conviser/Ascend v. DePaul University”) and its contents confirm its relevance to thenpotential (now pending) litigation. (Ex. B.) Under these circumstances, DePaul’s letter is
protected by absolute immunity.

E.g., Atkinson, 861 N.E.2d at 255 (finding pre-litigation

defamatory statements protected by litigation privilege); see also Brown v. McGarry & Hinshaw
& Culbertson, LLP, 2020 IL App (1st) 190427-U, ¶ 38 (affirming dismissal of defamation claims
based on attorney’s letter characterizing malpractice claims as “false” and “fabricated”); Mouloki
v. Epee, 2016 WL 910496, at *4 (N.D. Ill. Mar. 10, 2016) (dismissing false light claims based on
litigation privilege).
To the extent Conviser claims any other defamation or false publications occurred, she has
failed to provide the required specificity. Conviser alleges that DePaul has defamed her “on more
than one occasion” (Compl. ¶¶ 122, 136), but offers no details about what the other alleged
incidents were, when they happened, what was said, or who said it. Such threadbare conclusions
are insufficient to survive a motion to dismiss. See, e.g., Johnson v. Joliet Junior Coll., 2007 WL
1119215, at *3 (N.D. Ill. Apr. 10, 2007) (dismissing defamation claims based on conclusory
allegations that the defendant “relayed to employees, supervisors, and colleagues, through oral and
written submissions, untrue and offensive statements regarding Johnson’s inability to perform her
duties”). In short, Conviser’s defamation and false light claims in Counts IV, V, and VI are an
afterthought, and the Court should dismiss them.
CONCLUSION
For the foregoing reasons, DePaul requests that the Court dismiss Plaintiffs’ Complaint in
its entirety with prejudice, and for other such relief as this Court deems just and appropriate.

Conviser’s attorney). Conviser’s conclusory distortion of DePaul’s letter to infer that DePaul made this
statement “to student-athletes, managers, trainers, coaches and other third parties” is therefore insufficient
to allege publication. (Compl. ¶¶ 123-124, 137-138.)

15

 Case: 1:20-cv-03094 Document #: 13 Filed: 06/02/20 Page 16 of 17 PageID #:102

Date: June 2, 2020

Respectfully submitted,
DePaul University
By:

/s/ Christina M. Egan
Christina M. Egan
Amy Starinieri Gilbert
Melissa Marie Weiss
McGuireWoods LLP
77 West Wacker Drive, Suite 4100
Chicago, Illinois 60601-1815
cegan@mcguirewoods.com
agilbert@mcguirewoods.com
mweiss@mcguirewoods.com
Telephone: 312.849.8100
Fax: 312.849.3690
R. Craig Wood (pro hac vice forthcoming)
McGuireWoods LLP
652 Peter Jefferson Pkwy, Suite 350
Charlottesville, VA 22911
Telephone: 434.977.2558
Fax: 434.980.2274
cwood@mcguirewoods.com
Heidi E. Siegmund (pro hac vice)
McGuireWoods LLP
Gateway Plaza
800 East Canal Street
Richmond, VA 23219-3916
Telephone: 804.775.1049
Fax: 804.698.2315
hsiegmund@mcguirewoods.com

16

 Case: 1:20-cv-03094 Document #: 13 Filed: 06/02/20 Page 17 of 17 PageID #:103

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on June 2, 2020, I electronically filed the foregoing
Memorandum in Support of Defendant’s Motion to Dismiss with the Clerk of the Court by using
the CM/ECF system and served a copy via electronic mail and first class mail, postage prepaid,
upon the following:
Art Bresnahan
ZUMPANO PATRICIOS & BRESNAHAN, LLC
829 N Milwaukee Avenue
Chicago, IL 60642
acoluccio@zplaw.com
Michael S. Popok
Hamnutal G. Lieberman
Michelle C. Malone
ZUMPANO PATRICIOS & BRESNAHAN, LLC
417 Fifth Avenue, Suite 826
New York, NY 10016
mpopok@zplaw.com
hlieberman@zplaw.com
mmalone@zplaw.com
Ben Meiselas
GERAGOS & GERAGOS, PC
644 South Figueroa Street
Los Angeles, California 90017
meiselas@geragos.com
/s/ Christina M. Egan
One of Defendant’s Attorneys

17

 Case: 1:20-cv-03094 Document 13-1 Filed: 06/02/20 Page 1 of 8 PageID #:104

EXHIBIT A

Case: 1:20-cv-03094 Document 13-1 Filed: 06/02/20 Page 2 of 8 PageID #:105

PROFESSIONAL SERVICES AGREEMENT

The Professional Service Agreement (?Agreement?) is; made and entered into by and between
Ascend Consultation we in Health Care? an Illinois; limited liability company
and DEPAIEL an Illinois noefor-?profil corporation (?Del?eol?).
This Agreement shall, Sl?lp?l?SBde any and all prior? Agreements between the parties.

RECITALS

DePeul requires the services of professionals specializing in the evaluation and
treatment of mental illnesses? iesuee of a nature, and nutritional therapy for
etudentethletee at; Del?anl;

Dell?eul desires to continue to refer certain stodeneathleies to obtain clinical
and/or counseling on nonexclusive basis from the professionals of
Ascend;

is Willing to provide clinical assessment and
and nutrition esseesmentl education and support for studenbathletee at De?Peul
University who have been, preepproved by the Univerelty for such services; 

THEREFORE, based upon the foregoing and upon the provisions} conditions and terms

contained hereafter, AseenchlelC and Del?enl agree as follows:

1 . TERM

The term of the Agreement will be for four (4) years beginning July l, 2017 (the
?Effective Date?), and ending; June 2021 (the ??I?ermine?lion Date?).

go

REFERRAL

Del?enl may refer eludenlwathlefes that: it believes are in need of clinical
assessment to Ascendl Ascend will provide a preliminary
assessment for such studen?~etl1lele and make a recommendation as to the form of
funnel? treefneent.

Ascend agrees to conduct a preliminary eenlnelion of illnesses of a 
or nutritional nature of the referred. ?to it by DePaul on. a non~
exelueive basis. ?l?he services will be provided on Del?aul?s campus) or at
located, at 737 North Michigan Avenue #1925, Chicago;
600113 at the. convenience of the studenlwethlete.

3. CONDITIONS OF SERVICES

(61) Studenbalhlelee en l?ePaul are not required to make use of any of AsoendClelC?s
services, and will not be required to utilize counseling or

 

servmes as a condition of participation in DePaulle athletic
programs.

Case: 1:20-cv-03094 Document 13-1 Filed: 06/02/20 Page 3 of 8 PageID #:106



The terms of this Agreement do not extend to the evaluation and/or treatment of
any illness that is in nature.

4., REPRESENTATIONS AND WARRANTIES





(6)

represents and warrants that it has the necessary knowledge?
experience, abilities? skills and resources to perform its obligations under this
Agreemehti and agrees to perform its ohligetioos under this Agreement in a
professional madden consistent with prevailing industry standards and practices.
represents that all staff members working with Del?eul student?
athletes are duly licensed in, the State of and in, good standing to engage in
the practice of clinical and that individual staff members: licenses
sod/or registrations have not been suspended revoked? or restricted in any
manner. Proof of eseh lioeosure with the Stste of Illinois shall be provided to
Del?aul upon written, request.

represents that it has disclosed? to the best. of its knowledge, (1) the
existence and basis of soy legeh regulatory? or professional proceeding against
AsoeodCHC or its medical personnel instituted by any persom organisation?
governmental agency, health care facility? peer review organisation, or
professional society which involves so allegation of substandard, care or
professional misconduct raised sgeiost or its medical. personnelg and
(it) any allegation of substandard care or professional misconduct raised against
by soy person, organization, governmental agency health care
fecllityt peerweview organisation or professional society.

AseeodCHC represents and warrants that it will comply with all local, state and
federal laws rules regulations and professional standards regarding its
performance of services to be provided under this Agreement.

5. INFORMATION SHAMNG





All information, shared during AseeodCHC?s consultations with student-athletes
shall remain con?dential unless a. valid Authorization for Release of Mental
Health Records, pursuant to and, the Mental Health, and,
Developmental Disabilities Con?dentiality Aet (?Authorisation?) is executed by
the stedeotethlete.

If the stodeotnathlete executes an Authorization, AsceodCiHC shall abide by the
terms and eonditioos contained in the Authorization and disclose the studente
sthlete'is mental health information and treatment to those authorized st Del?eul,
in accordehee with all applicable state and federal laws.

6. PAYMENT TERMS
AsceodCHC shall, bill DePeel for services rendered on smoothly basis at an hourly rate
of $l40 (the ?Guaranteed Fee?). Ascend agrees to bill DePeul at the conclusion of each,
month it) accordance with all applicable state and federal laws. Del?aul agrees to pay all
invoices within thirty (30) days of receipt. lo, the event that any amount of the

r)
{a

Case: 1:20-cv-03094 Document 13-1 Filed: 06/02/20 Page 4 of 8 PageID #:107

Guaranteed, Fee has not been paid in full before the Termination Date, such amount shall
be paid on the Termination Date.

APPLICABLE LAWS

The parties agree to comply with. all applicable federal and, state laws related to the
protection and privacy of student records? medical, records, and mental health records,
including but not limited to, the Federal Educational Rights Privacy Act (FERPAL Health
losoreece Portability and Accountability Act of 1996 Illinois Mental Health
and, Developmental Disabilities Coo?deotielity Act; Illinois Mental Health and
Developmental Disabilities Code; Illinois Con?dentiality Act; Illinois Personal,
Protection Act (li?ll?A); and the Federal Drug Abuse, Prevention, Treatment
and Conepreheoeive Alcohol Abuse and Alcoholism 'Preventiong Treatment?
Rehabilitation Act of 1970.

INTELLECTUAL PROPERTY

(3) AscoodCHC acknowledges that the named logos, service marks: trademarks,
trade dreesl trade newest, copyrights and, patents} Whether or not registered, new or
hereafter owned by licensed, by Del?eol or its af?liates (collectively ?Del?aul
Marlee?) are proprietary to DePeol; provided, however, Del?eol agrees that
they use the heme ?DePe?ol? or ?Del?eol University? to identify
DePeul as client in literature, marketing materials and advertising
materiele.

shall, not use the Del?oul Marks for any purpose except as expressly
permitted in writing by ?DePeol,

INDEMNIFICATION

To the ?lliest extent: permitted by law? each Party (?the Indemnifying Party?) shall
defend indemnify, and hold. harmless the other party (?the indemni?ed Party?),
its egootso employees? affiliates, trustees, directot; of?cere, faculty members; poet
or present, from. eod against any and all, claime, damaged losses? and expeoscs
including but not limited to, reasonable eyttomeyet fees, arising out of or relating
to any octoel or alleged misrepresentation: breech of warranty: breech of
promise? or breach of covenant by the Indemnifying Patty of any representation,
warranty.) promise? or coyeheot in this Agreement; and (ii) personal injury or
property damage caused in whole or in part? by the eote, errors or omissions of
the Indemnifying Pertyg its employees, agents? rep?resentetivee or subcontractors
arising out of or related to the Indemnifying Party?s performance of its obligations
in this Agreement.

(lo) The Indemni?ed Party agrees to notify the ledeotoityiog Party of the existence of
any eech claims or causes of action Within a time after the Indemni?ed
Party learns of such claim or cause of action. The Indemnifying Party shall not

 

compromise or settle any claim covered by thie indemni?cation provision without
the Indemni?ed Pertyie consent.

U)

l0.

ll.

Case: 1:20-cv-03094 Document 13-1 Filed: 06/02/20 Page 5 of 8 PageID #:108

(0)

The provisioee of the Indemnity Clause shall survive the cancellation} expiration,
or termination of this agreement or the rights granted, under this agreement for any
reason.

PROFESSIONAL LIABILITY INSURANCE





(C)



(8)

The ineureoee required is in additioo to and separate from other obligations
contained in, this Agreement

AseeodCHC warrants and shell produce evidence in the form of a Certi?cate of
Insurance that its ineoreoee provides that DePeul is specifically added as an
additional inseted under Professional Liability (?Certi?cates?) no
later than 30 days after the execution of this agreement by both parties, as
evidence of satisfaction of the ioeutmtee requirements described below.

The Certificates; shell Specify that in the event of cancellation, or a material Change
to. eovemge, at least (3 0) days? prior written notice shall be given to DePattl.

he Certi?cates shall meet the minimum aforementioned requirements:

Professional Liability

Professional Liability
One Million ($13000,000) Dollars Each Occurrence
Three Million ($3,0005000) Dollars Annual Aggregate

The aforementioned, policies of insurance shall he considered primary insurance
and any other coverage or available to DePettl Shall be considered
exeesei

INDEPENDENT CONTRACTOR







Ascend is or: independent contractor of Del-?eel, and neither not any
of its employees or contracted health service providers are employees, agents,
joint vehturete or partners of Del?ettl

agrees not to mexket or hold, itself out publicly es an employee of
Del?aul or as the exclusive or of?cial sports ofDePaul Athletiee

A list of and independent contractors who will perform
services under the terms of this Agreement shall he set forth in Exhibit 
AseendCliC agrees: to add my new employees or independent who
will provide services hereunder to Exhibit ?8?1 Del?eul hes thirty (30) days from
the of this Agreement to object to any individual identi?ed in
Exhibit The individuals identi?ed in Exhibit are considered employees
and/or agents of end eoveted under this Agreement.

CHOICE OF LAW

This Agreement is governed by and shall be eoostrued in accordance with the laws of the
State of Illinois. Both patties agree that any state or federal court within Cook County,
shall have exelostve jurisdiction over any action or proceeding relating to or
arising under this Contract.

13.

14.

15.

16.

Case: 1:20-cv-03094 Document 13-1 Filed: 06/02/20 Page 6 of 8 PageID #:109

ASSIGNMENT

This Agreement and all, rights and bene?ts horoohdor are pomonal to Ascc~3:oda and neither
this Agreement nor any right or lototost of under this Agroomont may be:
assigood without prior writtoo consent of DePaul; provided, however, if AscothHC is
sold or transforrod to how ownership and DoPahl does not consent to an assignment of
tho Agroomonb Ascend/CHO may terminate the Agreement.

TERMINATION

This Agreement shall ooly be tonninated prior to tho ?l?oz?mihatioh Date with prior
written notice as; fully set forth, below or as otherwise provided, in Soctloh 14:

By DoPaol it}; tho ovoht Dol?oul, in the exercises: of its reasonable discretion,
dotormioos that its stodootothlotes have boon or will be exposed to
imminent harm as a womb: of the care dolivotod or to be delivered by
Ascend.

(ii) By Dol?aol to the want that any obtmselor treating student
athlotos is oomiotod of a felony, or bloods guilty or ?no contest? with
respect to any felony charge.

By ?DoPo?ul in the event that AsoothHCits business license or corporate
ohatitot in the State of "Illinois is limited? or revoked.

This Agreement may be terminated with prior written. notice as fully set forth
below:

By oithor upon tho material breach of any term of this Agreement;
providod thirty (30) days prior written notice is delivered to the broachihg
potty the cause giving rise. to the claimed brooch has not been ourod
within, the thirty (3 0) day notice: potiod.

SEVERABILITY

lf any term: clouso or provision of this Agreement is hold to be: illogah invalid or
unenforceable: or the application thereof to any person or circumstance: shall to any
extent be illogal, iovalid or ohonforooablo bode: present or future laws effective: during
the: term, hereof or of 31:13 horoof which sorvivo tozmlhotlom then and in any
such otzootg it is the express intohtioo of tho portios that tho remainder of this Agreemon?g
or the application of such term? clooso or provision other than, to those: as to which it is
hold illogah invalid or uhontbrooablog shall not ho affected thereby, and each term: clause
or provision of this; Agreomoh?t and tho applicatioo thereof shall be legal, valid and

enforceable to the fullest oxtoht by law.

MISCELLANEOUS
All notiooa t?oqoostog conseots and other horouoder stall. be in

 

Whom and shall be addressed to tho roceiving address set forth below or


such other addtoso as designated by notice hereunder, aod shall be dolivorod by
hmld? (ii) toloxodt tolocoplods or made by thosimilo transmisoiom soot by

l7.

l8.

l9.

Case: 1:20-cv-03094 Document 13-1 Filed: 06/02/20 Page 7 of 8 PageID #:110

overnight courier? or (iv) Sent by certi?ed or registered mail, return receipt
requested? postage prepaid.

DePaul University; Ascend:

Jean Lend, Ponsetto Jenny H. Convisert PsyD: COAASP
Athletic Direotor Founder: CEO

Del?eul University Asoeod Consultation in Health Care? LLC
2323 Sheffield 737 North Michigan Avenueg #1925
Chicago? Illinois 606M Chicago, Illinois 6061 

With a cog to: With a copy to:

DePaul University Nixon and Peabody

Of?ce of the Getteral Counsel Attn: Tina Solisg Esq.

1 East Jackson. Boulevard 401 Michigan Ave} Chicago? IL 60611 .
Chicago? IL 60604 (3l2) 

All noticed; requestst consents and other communications hereunder shall be
deemed to have been given by hand: at the time of delivery thereof to the
receiving party at the address of such party set forth above (ii) if telefaxed,
teleoopied, or made by facsimile tranemiseioot at the time that receipt thereof has
been acknowledged by electronic: con?rmation, or collorxldor:g if gent by
overnight courier} or: the next day following the day of such mailing is made (or
in the ease that sooh mailing is made on Saturday? on the immediately following
regular business; doy? or (iv) if sent by certified or regletered mail, on the third
day following the time of such mailing thereof to such address (or in the case that
the third day is either a 53etortleyg Sunday, or holiday on the innoediately
following regular business day).

ENTIRE AGREEMENT

This Agreement together with the Exhibits atteehed heretm set fOtth the entire
understanding between the parties relating to the transactions described herein, there
being no terms or conditions other than those contained hereim and all conditions other
than those contained herein; and all prior agreements or understandings? whether written
or unmittem are superseded. by thie Agreement.

ADDITIONAL ASSURANCES

The provisions of this Agreement shall, be self operative and shall not, require ?lrther
agreement by the parties except as may he herein Speci?cally provided to the contrary;
provided, however} that at the request of either party? the other party shall execute such,
additional instruments and take such additional acts as are necessary or ueeful to
effectuate this Agreement.

BINDING EFFECT

 

 

This Agreement Shall be binding on and inure to the bene?t of the parties and their heirs,
erretomato:a administrators, and respective Successors, and permitted designs.

6

Case: 1:20-cv-03094 Document 13-1 Filed: 06/02/20 Page 8 of 8 PageID #:111

20? QOUNTERPARTS

This Agreement may be executed in any number ofcounterpans.? and by different parties
herein on separate counterpart signature pages, and all such counterparts taken together
shall be deemed to constitute one and the same instrument

IN WITNESS WHEREOF, the parties hereby have: executed this Agreement on the date
or dated stated below.

DB PAUL UNIVERSETY LLC, an Iliinois limited
an Illimia not far pro?t corporation liability company
By. M. 24% By: Jenny H, Conviser. PSVD

 

 

 

 

 

Date: Date: 5/5/2017 A WES)
Attest: Attast: . 
Date? Date: Wl/Q/g?q)

Case: 1:20-cv-03094 Document 13-2 Filed: 06/02/20 Page 1 of 3 PageID #:112

EXHIBIT 

Case: 1:20-cv-03094 Document #: 13-2 Filed: 06/02/20 Page 2 of 3 PageID #:113

Office of the General Counsel
1 East Jackson Boulevard
Chicago, Illinois 60604-2287
312/362-8865
FAX: 312/362-3242

SENT VIA EMAIL
March 16, 2020
Mr. Michael Popok
Zumpano Patricios & Popok
417 Fifth Avenue, Suite 826
New York, New York 10016
mpopok@zplaw.com
Re:

Conviser/Ascend v. DePaul University

Dear Michael,
As in-house counsel for DePaul University, I am writing on behalf of my client to confirm receipt
and follow up on your February 28, 2020 correspondence to University President Dr. A. Gabriel
Esteban regarding your client Dr. Jenny Conviser and her allegations against the Athletics
Department. As I mentioned in our email correspondence last week, going forward I would ask
that you direct any further communications regarding this matter to the Office of the General
Counsel in lieu of University employees.
We have reviewed your letter in detail and strongly disagree with both your depiction of the facts
and the viability of any alleged claims against the University. The University has not breached
any agreement with Dr. Conviser, nor can she rely upon a statutory basis for retaliation as an
independent contractor. If anything, as explained below, it has in fact been Dr. Conviser who has
stymied the information sharing necessary to fulfill Title IX mandates.
To start, despite your insistence that Dr. Conviser’s affiliation with the University has been
terminated, Dr. Conviser’s contract remains fully in effect and she continues to treat DePaul
University student-athletes to this day. The University’s current contract with Dr. Conviser’s firm,
Ascend Consultation in Health Care LLC (“Ascend” or “AscendCHC”), runs from July 1, 2017
through June 30, 2021, and continues to govern the terms by which Ascend treats current studentathletes (the “Agreement”). The Agreement allows DePaul the option, but not the obligation, to
use Dr. Conviser’s services, as paragraph 2(a) of the Agreement states that “DePaul may refer
student-athletes that it believes are in need of clinical psychological assessment to Ascend.”
Paragraph 3(a) goes on to state that “[s]tudent-athletes at DePaul are not required to make use of
any of AscendCHC’s services, and will not be required to utilize AscendCHC’s counseling or
psychological services as a condition of participation in DePaul’s athletic programs.”
As a result, there is no minimum amount of services required by the parties’ contract, nor is there
any exclusivity requirement that prohibits the University from seeking mental health services from
any other provider at any time. Indeed, Dr. Conviser is imminently aware of this nonexclusivity,
as when negotiating the current contract the University requested, and she agreed, to the following

 Case: 1:20-cv-03094 Document #: 13-2 Filed: 06/02/20 Page 3 of 3 PageID #:114

terms of paragraph 11(b): “AscendCHC agrees not to market or hold itself out publicly as . . . the
exclusive or official sports psychologist of DePaul Athletics.”
In light of ongoing budget constraints, the University has made a concerted effort to consolidate
the provision of its services to use in-house University resources wherever possible. This includes
services provided to student-athletes and has resulted in an increase in student-athletes’ use of the
University’s internal mental health and wellness providers in its University Counseling Services
and Health, Promotion, and Wellness offices. As noted above, the University is not prohibited by
its contract with Ascend from using other service providers, let alone deciding to provide such
services itself directly as a measure for potential cost savings and more comprehensive and
cohesive on-campus student services. The decision to increasingly use University providers has
in fact been validated by larger participation of student-athletes in using such providers, possibly
because of greater convenience and trust in familiar on-campus personnel.
As for the various allegations outlined in your letter, the facts relayed by Dr. Conviser are wholly
inaccurate and oversensationalized. This revisionist history is emblematic of a pattern observed
by University Athletics’ staff when interacting with your client—she simply did not get her facts
right. Though the falsehoods are too voluminous to correct in their entirety, it’s worth noting that
Kathryn Statz has never managed any Title IX investigation or proceeding involving a studentathlete or coach; indeed, Ms. Statz was not even employed by DePaul University in 2018 when
your client claims she was allegedly conducting an investigation forming the basis of these claims.
Beyond relaying inaccurate information, Dr. Conviser also historically shared clients’ unsolicited
confidential information and then refused to cooperate with follow-up requests necessary to
respond to the University’s Title IX obligations. This compelled both the Athletics Director and
the actual Title IX Coordinator (a former attorney for the Department of Education’s Office for
Civil Rights) to independently remind Dr. Conviser in writing of her obligations to report Title IX
matters of sex discrimination and harassment to appropriate University officials. If anything, it is
Dr. Conviser who failed to adhere to confidentiality and Title IX standards.
In closing, it is truly unfortunate that Dr. Conviser would try to exploit the alleged confidences of
student-athletes and coaches she previously worked to support in order to exact greater revenue
for her firm from a nonprofit, educational institution. Suffice it to say the University is well within
its rights to increasingly utilize its own counseling and health centers for student-athlete services
for any reason. As a result, the University will not entertain a meeting with your client nor agree
to enter into a tolling agreement for claims without merit.
Regards,
Laura Warren
Laura Warren
Senior Associate General Counsel
DePaul University