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Eliot G. Disner (SBN CA 068832)
A Professional Corporation
DISNER LAW CORPORATION
2029 Century Park East. 19th Floor
Los Angeles, California 90067
Telephone: (310) 286-0600
Facsimile: (310) firstname.lastname@example.org
Alan Harris (SBN CA 146079)
HARRIS & RUBLE
5455 Wilshire Blvd., Suite 1800
Los Angeles, CA 90036
Telephone: (323) 931-3777
Facsimile: (323) 931-3366 email@example.com
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
BRIAN SCHALL AND ANAND L. DANIELL, Individuals,
WEST PUBLISHING CORPORATION, a Minnesota Corporation dba BAR/BRI,
CASE NO. CV 05-3222 R(MCx)
COMPLAINT FOR VIOLATION OF THE U.S. ANTITRUST LAWS (15 U.S.C. § 2, ET SEQ.)
JURY TRIAL DEMANDED
Plaintiffs Brian Schall and Anand L. Daniell bring this action for injunctive relief under the antitrust laws of the United States.
1. Plaintiffs file this complaint for one singular purpose: to break up the the illegally obtained and maintained monopoly of BAR/BRI (an assumed name of Defendant "West Publishing Corporation") in the market for the provision of bar review preparation courses for the nation's various bar exams and to otherwise restore viable and enduring competition in that market. BAR/BRI has monopolized the bar review course market through means other than skill, industry, foresight or historical accident. In fact, it has committed a catalogue of antitrust violations over the years in order to maintain its monopoly, including market division, unlawful acquisition, and conspiracy to restrain trade. As will be detailed further herein, the practices of BAR/BRI are longstanding and so pervasive that this lawsuit presently seeks only the remedy of eviscerating BAR/BRI's unlawful market power to permit the sun to shine in this dark corner of the world, then to allow competition there to blossom.
2. Plaintiffs are incoming law students who will become consumers in that marketplace when they graduate from law school in some two years and nine months. This Court then is asked to expeditiously and actively enforce the antitrust laws here, in order to permit such a competitive marketplace to develop to the extent reasonably possible.
JURISDICTION AND VENUE
3. This Complaint is filed and these proceedings are instituted under Section 16 of the Clayton Act, 15 U.S.C. § 26, to obtain injunctive relief and the costs of suit, including reasonable attorneys’ fees, against Defendants to remedy violations of Section 2 of the Sherman Act, 15 U.S.C. § 2, as alleged in great detail hereinbelow.
4. Jurisdiction is conferred upon this Court pursuant to 28 U.S.C. §§ 1331 and 1337, and by Section 16 of the Clayton Act, 15 U.S.C. § 26.
5. Defendant transacts business, maintain offices, or is found within this Judicial District. The interstate commerce described hereinafter is also carried on, in part, within this Judicial District. Venue is proper in this District pursuant to the provisions of 15 U.S.C. § 22 and 28 U.S.C. § 1391.
6. Brian Schall (“Schall”) is an individual who resides in Los Angeles, California. Schall is enrolled as an incoming first-year law student at University of the Pacific McGeorge School of Law in Sacramento, California. Schall seeks, to the extent possible, a competitive marketplace for bar review preparation courses, in which market he intends to become a consumer, in preparation for the bar exam he will be taking in one state or another in or about July, 2010. At this time, Schall has not decided in which state he intends to practice law, and, therefore, seeks the creation of competitive conditions throughout the market.
7. Anand L. Daniell (“Daniell”) is an individual who resides in Irvine, California. Daniell is enrolled as an incoming first-year law student at Stanford Law School in Stanford, California. Daniell seeks, to the extent possible, a competitive marketplace for bar review preparation courses, in which market he intends to become a consumer, in preparation for the bar exam he will be taking in one state or another in or about July, 2010. At this time, Daniell has not decided in which state he intends to practice law, and, therefore, seeks the creation of competitive conditions throughout the market.
8. Defendant West Publishing Corporation is a wholly-owned subsidiary of Thomson Company (“Thomson”) and also known as “West Group” (here, “West”). West is a Minnesota corporation headquartered in Eagan, Minnesota. Thomson is a Canadian corporation with its principal place of business in Toronto, Ontario, and substantial offices in the U.S. Thomson calls itself the “World’s Leading Information Resource.”
9. In or about 2001, Thomson’s competitor, Reed Elsevier, Inc., dba Lexis/Nexis purchased BAR/BRI, among other lines of business, from Harcourt General Inc., which owned BAR/BRI at the time. After Reed Elsevier purchased BAR/BRI, it promptly sold it to its competitor Thomson, which now operates BAR/BRI through West. At that time, Thomson also acquired MicroMash Bar Review (“MicroMash”), a full-service home study bar review course.
10. At all pertinent times, BAR/BRI has been the only full-service bar review course operating throughout the United States that offers courses for virtually all jurisdictions herein. In the past, it has also operated LSAT and other test preparation courses, including a CPA test preparation course.
TRADE AND COMMERCE
11. At all pertinent times, BAR/BRI has regularly sold and shipped bar review courses, course volumes, books, audio tapes and other materials, inter alia, across state lines. It has also continuously engaged in soliciting students to take courses outside their resident states. Therefore, BAR/BRI’s activities, including the anticompetitive activities described herein, are in and substantially affect interstate commerce.
12. The provision of bar review courses to individuals preparing to take a bar examination is a relevant product market for purposes of enforcement of the antitrust laws. In addition, the provision of so-called full-service bar review courses to such individuals, which in dollar volume accounts for the vast preponderance of all sales in the overall market, is in and of itself a relevant product market (or submarket) for purposes of enforcement of the antitrust laws.
13. A relevant geographic market for purposes of enforcement of the antitrust laws here is the United States. Other relevant geographic markets for antitrust law enforcement purposes may include each jurisdiction in the U.S., i.e., state or the District of Columbia, in which full-service bar review courses are provided ("States"), and the venues of every law school, in which a measurable percentage of students attend who emanate from, or migrate to, other states.
14. The relevant business engaged in by BAR/BRI consists of training law school graduates for the bar examination each needs to pass before receiving a license to practice law in the States, or any of them. The bar examination in most States in the United States consists of, at least, two parts. One part is the Multistate Bar Examination (“MBE”). The MBE is prepared by the National Conference of Bar Examiners. It is required by nearly all States. The second part of the bar examination consists of a test prepared under the control of each State’s Board of Bar Examiners or similarly-titled state license-issuing body, which may incorporate the Multistate Essay Examination and/or the Multistate Performance Test. This part is designed to test local law and/or general legal concepts and the application thereof typically in essay format. The materials and courses are substantially similar from State to State.
15. BAR/BRI provides a full-service bar review course, typically about seven weeks in duration, in which substantive law is reviewed, test-taking techniques are taught, and pertinent skills honed for the grueling multi-day exam that awaits each exam-taker. Bar review courses are the principal means employed by law school graduates to prepare for the bar examination. BAR/BRI provides to students, among other things, a set of written review materials, lectures on the subjects and points of substantive law that are tested in that State and review questions that are similar to those asked previously, or have actually been asked previously, by the bar examiners therein.
16. MicroMash offers courses in about 21 states, plus the District of Columbia. It, too, has prepared thousands of law students to pass a state bar examination.
17. Despite, or more likely because, these intensive preparation courses are predominately provided by BAR/BRI, the nation's bar exam passage rate has been steadily sinking. This trend has been occurring over the past several years, as LSAT scores for incoming law students have been rising and competition stiffening among students just to get in to law school (MBAs are less attractive then they were 10 years ago.) There can be little doubt that BAR/BRI has contributed to this decline by behaving like many monopolists that earn substantial profits with or without a quality product which, therefore, has chosen to deliver an inferior product in recent years. Thus, BAR/BRI: (1) teaches with bulky, aged and often inapt materials, (2) increasingly offers videotaped over live lectures, and (3) invests more funds in killing what little competition remains, rather than improving its product offering.