Monday, November 14, 2011

Prior Settlements Did Not Preclude Antitrust Suit Against Bar Review Course Provider

This posting was written by Jeffrey May, Editor of CCH Trade Regulation Reporter.

The U.S. Court of Appeals in San Francisco last week reversed the dismissal of an antitrust class action against West Publishing Corporation, its BAR/BRI subsidiary, and Kaplan, Inc., brought on behalf of law students and lawyers purchased bar review courses between August 2006 and March 2011.

Bar to Current Action?

The lower court had erred in concluding that earlier settlements barred the claims in the current action that BAR/BRI engaged in monopolistic behavior and paid Kaplan large sums of money to refrain from entering the bar review market.

The appellate court concluded that a $49 million settlement with consumers who purchased a BAR/BRI course between August 1, 1997, and July 31, 2006, (Rodriguez v. West Publishing Corp., 2009-1 Trade Cases ¶76,614) did not bar the current suit for damages and prospective relief.

The current plaintiffs’ interests in a monetary recovery were not represented by the plaintiffs in the earlier suit. In addition, the earlier settlement did not preclude the current plaintiffs from seeking injunctive relief for alleged conduct that took place before that settlement was entered.

Shared Lawyer, Interests

Although they shared a lawyer and some interests with the earlier class, the earlier settlement did not necessarily address all their potential interests, nor were those similarities sufficient for a finding of virtual representation, in the appellate court’s view.

Another antitrust suit brought in 2007 on behalf of two individual law students who intended to take the bar exam in 2010 (Schall v. West Publishing Corp.) did not bind the plaintiffs in the current action.

The plaintiffs in the current class action were not a party to this earlier action and their interests in a monetary recovery and injunctive relief were not represented in the suit. Thus, they could not be bound by the disposition of that case.

The November 7, 2011, not-for-publication decision in Stetson v. West Publishing Corp., No. 08-55818, appears at 2011-2 Trade Cases ¶77,671.

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