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In a suit that could have national implications for how law students prepare for the bar exam, the National Conference of Bar Examiners has accused a California company of illegally copying questions from the Multistate Bar Examination for use in bar exam preparation courses. In the suit, NCBE claims 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. In response to the suit, lawyers for MLSI contend that the 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 in a motion for summary judgment, NCBE says that while it concedes some similarity is acceptable, MLSI’s materials are sometimes strikingly similar to actual MBE questions. Since the pool of material is so large, NCBE argues that “something more than coincidence” must explain how both the MBE and MLSI’s prep course feature questions based on the same 1908 Vermont Supreme Court case. Now a federal judge has ruled that the case must go to trial, rejecting NCBE’s argument that its proof of copyright infringement is so strong that it is entitled to judgment as a matter of law. “Certainly, both plaintiff and defendant are entitled to draw upon the same source material to design a question,” Senior U.S. District Judge John P. Fullam wrote. “What is impermissible is for [MLSI] to copy plaintiff’s wording and tone in such a question.” But in the context of a summary judgment motion, Fullam said, “I cannot determine as a matter of law that an observer would find the questions impermissibly similar or whether any such similarity can be attributed to both parties’ reliance on the same public material. These are issues of fact to be determined at trial.” According to court papers, MLSI is based in Santa Monica, Calif., 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.” On its Internet Web site, www.pmbr.com, the company says it specializes in preparing students for the MBE and has more than 30,000 customers per year. NCBE claims in the suit that its development of the 200-question MBE is a “lengthy, painstaking and expensive process” in which law professors, lawyers and judges are involved in drafting questions in six areas — constitutional law, contracts, criminal law and procedure, evidence, real property and torts. The suit says the MBE is a “secure” test, meaning that its questions are confidential and have not been disclosed to the general public. Since 1978, the suit says, NCBE has registered copyrights for all MBE questions. Some MBE questions are used more than once, the suit says, “for the principal reason of equating test scores from one test administration to another.” As a result, the suit says, unauthorized disclosure of MBE test questions “compromises the integrity of future examinations; causes significant financial harm to NCBE; and undermines the licensing process established by jurisdictions which use the MBE.” The suit alleges that employees of PMBR routinely sit for bar exams in various states. “They do so in order to memorize or otherwise reconstruct test questions for use in PMBR’s bar review program, not for the purpose of gaining bar admission,” the suit alleges. The suit says PMBR’s Web site boasts that “PMBR monitors every bar exam and updates materials to reflect changing trends.” In its formal answer to the suit, PMBR denied those allegations. But NCBE claims it has proof of the practice. According to the suit, PMBR’s founder, Robert Feinberg, took the bar exam in Alaska in February 2003 and “attempted to leave the room with notes recorded on scratch paper — contrary to the instructions that had been given to all examinees — but was stopped by an exam official.” In the answer to the suit, PMBR admitted that Feinberg took the Alaska bar exam, but denied the remaining allegations. The suit alleges that PMBR’s marketing materials strongly hint that its prep courses include actual MBE test questions. According to the suit, PMBR’s Web site says its courses “cover issues which are consistently repeated on the MBE.” The Web site also includes “testimonials” from former PMBR customers, one of which says: “I found myself thinking ‘That question was covered by PMBR.’ I was amazed how on-target you guys were.” NCBE claims that due to PMBR’s distribution of secured questions, it has been forced to “retire the compromised questions.” The suit seeks an injunction barring PMBR from using “any test question or answer that is identical or substantially similar to any MBE test question or answer.” It also seeks an order barring PMBR from sending any of its employees or others to take a bar exam with the intent of gaining access to the questions and disclosing their contents to PMBR. NCBE is represented by attorneys Barbara W. Mather and Christopher J. Huber of Pepper Hamilton in Philadelphia, and Robert A. Burgoyne and Caroline M. Mew of Fulbright & Jaworski in Washington, D.C. PMBR is represented by attorneys Manny D. Pokotilow and Salvatore Guerriero of Caesar Revise Bernstein Cohen & Pokotilow in Philadelphia, and Anthony L. Press of Morrison & Foerster in Los Angeles.

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