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PHILADELPHIA � In a ruling that promises to fundamentally alter the way many American law students prepare for the bar exam, a federal judge has concluded that a California company illegally copied questions from the Multistate Bar Examination for use in its bar exam preparation courses and ordered it to pay more than $11.9 million to the National Conference of Bar Examiners. In the suit, NCBE claimed that employees of Multistate Legal Studies Inc. have attended bar exams in several states for the sole purpose of copying questions to be used in its prep courses. MLSI is based in Santa Monica and has offices in Philadelphia and New York. It operates bar review programs under the trade name PMBR, which stands for “preliminary multistate bar review.” Lawyers for MLSI insisted that any similarities between the questions in their prep courses and those on the MBE stem from the fact that both are drawn from the same pool of material � hornbooks, law treatises and case law � and that such similarity is entirely permissible. But Senior U.S. District Judge John Fullam disagreed and said the evidence showed MLSI had copied both the detailed facts in the questions as well as the correct and incorrect answers. “I conclude that nearly all of the 113 challenged questions are substantially similar to copyrighted MBE questions,” Fullam wrote. “In many instances, evidence of copying practically leaps from the page.” The ruling is a victory for attorneys Barbara Mather and Christopher Huber of Pepper Hamilton in Philadelphia and Robert Burgoyne and Caroline Mew of Fulbright & Jaworski in Washington, D.C. Fullam noted that many advertisements for the PMBR course use “testimonials” from former students that emphasize the similarity between its practice questions and those on the MBE. In one ad, a student is quoted as saying that “dozens of nearly identical questions appeared on the actual exam,” and another says he “breezed through the exam because I recognized so many of the questions from PMBR.” Because the illegally copied questions were a “major selling-point” for MLSI, Fullam concluded that the company should pay damages equal to one-third of its $35.7 million in revenues from a five-year period ending in 2005 during which more than 125,000 students took its three-day course, paying fees ranging from $250 to $300. “Because question similarity is a major draw, and because infringing questions made up close to 40 percent of the PMBR from 2003 through 2005 (though a substantially lower percentage in 2001 and 2002), I conclude that attributing one-third of defendants’ revenues to the infringing questions is justified,” Fullam wrote. MLSI was also enjoined from future copying of MBE test questions and its employees are now prohibited from taking bar exam tests “for any purpose other than to obtain bar admission in the jurisdiction in which the examination is being given.” Shannon P. Duffy is a reporter with The Legal Intelligencer, a Recorder affiliate based in Philadelphia.

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