A sweeter settlement in BAR/BRI antitrust lawsuit
The National Law Journal
The second time was the charm for a settlement in a class action alleging that law school students paid too much for BAR/BRI bar review preparatory course materials after West Publishing Corp. and Kaplan Inc. conspired to monopolize the market.
A fresh agreement provides for a payment of $9.5 million in cash. Lawyers told U.S. District Judge Manuel Real in Los Angeles, who rejected a previous settlement in 2011, that they would file documents by March 18 seeking preliminary approval of the new deal.
Real scheduled a hearing for April 15.
Plaintiffs attorney Alan Harris, a partner at Los Angeles-based Harris & Ruble, did not return a call for comment. John Shaughnessy, a spokesman for West's parent corporation, Thomson Reuters Corp., and Kaplan spokeswoman Carina Wong did not respond to requests for comment.
The case, filed on February 6, 2008, is distinct from a $49 million class settlement against West and Kaplan Inc. that Real approved in 2007. That case, filed in 2005, involved a class of 300,000 students who claimed they were overcharged by about $1,000 for the preparatory course for the Law School Aptitude Test after West and Kaplan conspired to monopolize the market in violation of the Sherman Act. Under that settlement, which involved purchases from 1997 and 2006, each student was to receive $125.
Both cases were filed by Eliot Disner, who was ousted from his former firm, McGuireWoods, after objecting to the first settlement. Disner died in 2009. On August 10, the U.S. Court of Appeal for the Ninth Circuit upheld Real's decision to deny attorney fees to McGuireWoods for the older case, citing the firm's "egregious" ethical violation in failing to disclose to class members that incentive awards based on the settlement's value would go to named plaintiffs.
The newer case, filed on behalf of two law school graduates who alleged they overpaid for their BAR/BRI courses and three law students who expected to take the bar exam in 2008 and 2009, involves those who purchased the courses as of August 1, 2006. The suit, which also levels antitrust allegations, seeks certification of a class of individuals who have paid for a BAR/BRI course and another of law students who anticipate purchasing the course. The potential class initially was estimated to be more than 120,000.
On April 7, 2008, Real dismissed the case; the plaintiffs appealed to the Ninth Circuit, which heard oral arguments on September 30, 2009. The case returned to Real's courtroom, however, when both sides reached a settlement.
Real preliminarily approved that deal on March 21, 2011. But on June 20 of that year, he rejected the settlement after objectors raised concerns that Kaplan's portion of the deal involved coupons. Under the initial deal, West would have paid $5.29 million in cash and Kaplan would have provided discount certificates worth $150 each toward the purchase of future course materials.
Real sent the case back to the Ninth Circuit. On November 7, 2011, that court reversed his dismissal order and referred the case to mediation.
On January 14, lawyers in the case told the Ninth Circuit they had reached a new settlement, which they outlined in court documents on March 7.
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