Saturday, July 22, 2006

On A Lighter Note

Recent TPS posts (not to mention recent TPS comments) have reflected the seriousness of recent news. Talk of imminent war and global conflagration tends to do that. For a moment, I would encourage everyone to step back from the parapets and join in common cause against our true enemy: BAR/BRI.

In case you lawyers haven't been checking your mail, it seems a few enterprising bar-takers in several states have filed a lawsuit in the Ninth Circuit against BAR/BRI and another infamous test preparation company, Kaplan, Inc. Why?

In a nutshell, the lawsuit alleges not only that BAR/BRI used its dominant position to absorb or crush regional and local bar examination preparation competition, but also that BAR/BRI and Kaplan committed the joint sin of colluding to not tread in each others' territory (i.e., BAR/BRI agreed to not intervene in Kaplan's areas of expertise -- non-bar examination preparation, such as for the SATs, LSATs, GMATs, and MCATs -- and Kaplan agreed not to try and make a name for itself in the bar examination preparation field). (The full slate of allegations against BAR/BRI and Kaplan can be found here. Kaplan's answer to the plaintiffs' first amended complaint can be found here. The answers and affirmative defenses of West Publishing Corporation, the current parent company of BAR/BRI, can be found here. I encourage you to read these filings at your leisure.)

I will let Sherman Act experts duke it out as to whether or not there were actual, technical violations of the Sherman Act (although, if Kate DuBose Tomassi of the American Lawyer is to be believed, certain claims, such as BAR/BRI's approximate 95% market share of the national bar examination preparation market, coupled with shady anecdotal evidence indicating BAR/BRI may have paid off Louisiana State University to drop its university-sponsored bar prep program so that BAR/BRI could eliminate the last remaining local competition and dramatically raise its rates in Louisiana, make it appear as if the allegations are not without substance). I would only point out (as someone who actually took Antitrust Law in law school) that there is a common-sense element to the application of antitrust law, that certain situations simply scream monopoly, and that a company that has a virtual stranglehold on market share nationwide and can therefore raise prices pretty much at will can reasonably be labeled a monopoly and dealt with accordingly. (The plaintiffs themselves say it best on page three of their amended complaint: "Absorption of West Bar's business into the already dominant BAR/BRI eliminated substantial actual competition from the bar review course market, and, in fact, made BAR/BRI the only company providing bar review courses preparing for virtually every state in the United States. Without substantial competition, BAR/BRI's net prices per student then increased substantially in most states.")

I, along with all my fellow BAR/BRI alumni who do not opt out of this class action lawsuit (find out how to opt out here), literally have a stake in the outcome of this suit. I am already thinking of ways to spend my share of the pot, which, according to the lawsuit, is in the vicinity of $1,000 (before taxes, of course).

But seriously, I am curious what my fellow alums think of this suit, and the prospects of victory for us downtrodden former bar-preppers. Put another way, does anyone think this suit has no merit? (I realize I'm totally tipping my hand as to where I stand on the validity of the suit, but I think you probably knew that from the start of this post.) Input, please.

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