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Never Overcharge a Lawyer
BAR/BRI is accused of monopolizing the bar review market.


By Kate DuBose Tomassi
1 August 2005
American Lawyer

Should aspiring lawyers be on the lookout for corporate predators even
before they start practicing law? They should, according to five plaintiffs who,
after taking the bar exam, concluded that BAR/BRI, the
very company they paid to prep them, could have taught a course on
snuffing out competition and charging unfair prices. The litigants seek
at least $300 million in damages.

Their class action charges West Publishing Corp. (which does business
for bar review purposes under the name BAR/BRI) and Kaplan, Inc., the
giant test prep company, with violating federal antitrust laws by
conspiring to eliminate competition in the bar review market. "Boardwalk
and Park Place are, of course, worth far, far more when owned by one
player than by two in the Monopoly game," alleges the amended complaint,
filed May 26 in U.S. district court in Los Angeles.

That one player is West's BAR/BRI, which administers more than 95
percent of bar exams, according to West's parent, The Thomson
Corporation. Eliot Disner of the Santa Monica firm Van Etten Suzumoto &
Becket, representing the plaintiffs, estimates that BAR/BRI has prepped
around 300,000 lawyers since 1997 (including this reporter) and that it
frequently overcharges "substantially in excess of $1,000 above a
competitive price." In 1996, for instance, the cost of the prep course
in California was $1,300. BAR/BRI raised the price to $1,625 the next
year and to $1,950 the year after that. Prepping a single lawyer now
costs up to $2,850 in California and $2,500 in New York-a cost
multiplied for law firms preparing to hire a large class of first-years.


"We are highly confident in our position that we did nothing wrong, and
if we are forced to demonstrate it at trial, we will," says Steven Molo
of Shearman & Sterling, representing BAR/BRI.

Plaintiffs charge Kaplan with helping BAR/BRI eliminate West Bar, once a
nationwide competitor to BAR/BRI. In 1996 Kaplan was planning to buy
West Bar, a potentially valuable addition to its SAT, LSAT, and MCAT
arsenal, from West, which did not own BAR/BRI at the time. Then BAR/BRI
allegedly contacted a Kaplan exec with this offer: If Kaplan pulled out
of the West Bar deal, BAR/BRI would nix its LSAT prep course and pay
Kaplan more than $500,000 per year.

Though not a party to the alleged collusion, West may have shafted
students as well. A month after Kaplan canceled its plans to buy West
Bar, West announced that West Bar did not fit its "long-term strategic
direction" and divested its review course assets to BAR/BRI-effectively
shrugging off contractual responsibility for thousands of students who
had signed up to take West Bar at guaranteed prices. By the time West
reentered the market by acquiring BAR/BRI in 2001, West Bar did not
exist.

"We are confident that if this case goes to trial, we will prevail,"
says Dick Riley, Kaplan's VP of communications. "Kaplan has an
established history of maintaining the highest ethical and legal
standards in its business practices."

Since West took over BAR/BRI, the questionable deals have extended to
one-state competitors. For instance, as of 2004, BAR/BRI charged a mere
$695 for its Louisiana bar review course, in large part because
Louisiana State University offered a similar course at a low rate. Then
BAR/BRI allegedly offered LSU over $50,000 per year to cancel its
course. LSU agreed, whereupon BAR/BRI raised its rates to $1,095.
Elsewhere, BAR/BRI allegedly goes so far as to use its financial needs
scholarship to lure kids who have signed up for a cheaper course.

West and Kaplan have moved to transfer the case to U.S. district court
in New York. A hearing is scheduled for August 1.
 
[Update: West and Kaplan lost the motion.  The case remains in federal
court in California.]