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NEW YORK � A Manhattan federal judge has ruled that the BAR/BRI bar exam review is comprised of separate state-specific and multistate components that could potentially be tied and forced on consumers in violation of antitrust laws. Between 80 percent and 90 percent of those who take a bar preparatory course, or around 40,000 lawyers and students a year, take one offered by BAR/BRI, a unit of Canadian financial and legal information conglomerate Thomson Corp. The company has recently been the target of antitrust class actions in New York and Los Angeles alleging it abuses a monopoly position. Part of a BAR/BRI course is devoted to the law of a particular state, while the rest covers law common to all states. New York plaintiff Anthony Park, whose case has not yet been certified a class action, enrolled in BAR/BRI in 2002. He is claiming the company used its dominant position in state law courses to force him to also buy its multistate course. Southern District Judge William Pauley Thursday granted summary judgment to Park on two elements of his illegal tying claim, finding both that state-specific and multistate courses were separate products and that those were the two markets relevant to an antitrust case. He denied Thomson’s motion to dismiss in full. Thomson had argued that the two parts of a BAR/BRI course comprise a single functionally integrated product. But Judge Pauley said the standalone products marketed by BAR/BRI’s much smaller competitors like PMBR and Study Group demonstrated otherwise. “That numerous sellers offer [a multistate-only] or specific-state course to buyers every year answers the question as to whether there is separate demand for separate courses,” Judge Pauley wrote in Park v. Thomson Corp., 05 Civ. 2931. The judge also rejected Thomson’s contention that the relevant distinction was between standalone courses and integrated courses, with the former being widely regarded as supplemental to the latter. Judge Pauley said Thomson had not shown that the purchase of separate state and multistate courses would not be interchangeable with the purchase of an integrated course. To prevail in his antitrust claim, Park must still show he was an unwilling consumer coerced into buying the integrated BAR/BRI course. He must also show BAR/BRI’s tying of its product was an exploitation of the company’s market power and that it had an anticompetitive effect.
‘The evidence suggests that BAR/BRI used its substantial market share to control competition, boost prices and potentially force unwilling consumption of its [multistate] instruction.’

William Pauley New York federal judge

“The evidence suggests that BAR/BRI used its substantial market share to control competition, boost prices and potentially force unwilling consumption of its [multistate] instruction,” Judge Pauley wrote. “In particular, there are issues of fact whether offering only an integrated course insulates BAR/BRI from competition, allows supra-competitive prices, and forces individuals who seek to combine BAR/BRI instruction with another bar review provider to pay twice.” The judge said Thomson may be able to justify its tying arrangement at trial by showing that disaggregating the BAR/BRI course into state-specific and multistate components would undermine the course’s effectiveness. He noted that it was unclear whether students who take an integrated BAR/BRI course have a higher passage rate than those who combine separate courses. BAR/BRI courses generate approximately $125 million in revenue and $60 million in profit a year, according to the ruling. Thomson’s lawyer, Steven Molo of Shearman & Sterling, said he and his client were studying the decision. But he said they were looking forward to a trial at which they would show BAR/BRI had not violated any antitrust laws. Molo is also defending the company against a larger antitrust suit in federal court in Los Angeles. That suit, filed on behalf of 300,000 lawyers and law students who took BAR/BRI course, claims the company used monopoly pricing to overcharge test-takers by $1,000 each. The California suit also claims BAR/BRI struck an illegal agreement with Kaplan Inc., the dominant Law School Admission Test preparatory course provider, by which the two companies agreed not to compete with each other. Anthony Lin is a reporter with the New York Law Journal, a Recorder affiliate.

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