Wednesday, May 31, 2006, 3:29 PM

Class Action Certified in BAR/BRI Case

At a hearing on May 15, 2006, a judge in the US District Court for the Central District of California certified a class action in the case of Rodriguez v. West Publishing Corp., d/b/a BAR/BRI, and Kaplan, Inc., 05 CV 3222 (C.D. Calif.). The class consists of approximately 300,000 law students who purchased the BAR/BRI full-service bar exam review course between August 1997 and 2006.

According to the complaint, BAR/BRI is the only full-service bar review course in the United States, offering courses for almost all jurisdictions, and Kaplan is the largest provider of preparatory courses for the LSAT. As the complaint alleges, a person desiring to pass the grueling and important bar exam is almost certain to take a full-service bar review course.

The complaint contains three claims or causes of action. The first claim involves an alleged violation of Section 7 of the Clayton Act with regard to BAR/BRI's acquisition of the assets of its direct competitor, West Bar. The complaint alleges that because of this unlawful acquisition, the competition in the full-service bar review course submarket was substantially lessened. The second claim involves an alleged violation of Section 1 of the Sherman Act with regard to BAR/BRI's conspiracy, primarily with Kaplan, to eliminate competition in the full-service bar review market. According to the complaint, BAR/BRI and Kaplan agreed to a market division whereby BAR/BRI agreed to stay out of the LSAT business and Kaplan agreed to stay out of the full-service bar review business. The third and final claim involves an alleged violation of Section 2 of the Sherman Act. The complaint alleges that BAR/BRI has created a monopoly on the full-service bar review course market by agreeing to a market division with Kaplan, by engaging in other anticompetitive activities to preserve and maintain its monopoly, by continuing to charge excessive, supracompetitive prices for its full-service bar review course.

In the interests of full disclosure, I want to note that I am a member of the class, having purchased BAR/BRI's full service bar review course in 2001. Thanks to Sara Decatur, another class member and law school classmate of mine, for alerting me to this case. I expect that nearly all of the associates in any law firm are also members of the class. Unlike many other class members, I was not reimbursed by any law firm for the cost of BAR/BRI because I spent two years clerking for federal judges before joining a law firm. I wonder if the fact that most law firms reimburse attorneys for the cost of BAR/BRI will have any impact on the potential damages? I also wonder whether BAR/BRI is represented by a firm that has attorneys who are members of the class, and if so, whether this presents a conflict?

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