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33. West Publishing was acquired by a Canadian company Thomson in 1996. Shortly thereafter, Thomson decided to sell West Bar. West had proved to be a viable competitor to BAR/BRI which by the summer of 1997 course had already earned a gross profit. For whatever reason West's new owner at the time Thomson wanted no part of the bar review business and put WestBar up on the block.
34. West transferred to BAR/BRI pertinent assets of West Bar in the fall of 1997, eschewing at the time other less anticompetitive potential and viable acquirers. Without substantial competition, BAR/BRI's net prices per student then increased substantially in most states.
35. BAR/BRI also acquired WestBar's superior academic materials and the right to provide a course to some 20-plus thousand students previously signed up to take the WestBar course. Also, it "bought" the right to close out WestBar's nationwide infrasturcture which was formed, in part, by acquiring other local and regional courses in existence at the time. With that one stroke, BAR/BRI's monopoly was all but cast into cement. This acquisition violated at least Section 7 of the Clayton Act (15 U.S.C. § 18.)
36. In 2001, West returned to the full-service bar review business when it purchased the BAR/BRI business for a sum believed to be more than $200 million, a far higher price than BAR/BRI paid for West Bar’s burgeoning, competitive, bar review course assets in 1997. The substantial price difference is due to the fact that the acquisition of West Bar’s assets by BAR/BRI eliminated the only viable competitor in the market, or likely to be in the market, for the foreseeable future. (Boardwalk and Park Place are, of course, worth far, far more when owned by one player than by two in the Monopoly game. This economic truism readily explains the greater value attached to the consolidated bar review course business acquired by West Publishing to re-enter this market. Here, of course, West owns virtually all of Parker Brothers' Atlantic City.)
37. Notwithstanding West's claim of its erstwhile bar review course business’s purported lack of “fit” within Thomson’s “long term strategic direction” as of 1997, BAR/BRI is now an extremely profitable business of West.
38. Kaplan. Kaplan Inc., is a promoter of many exam preparation courses, including CPA, LSAT, GMAT, MCAT and GRE, but not bar review. Kaplan did compete in the full-service bar review business briefly in the early 1990s. Since then, it has not relented in its efforts to enter the full-service bar review business on a national scale, just as it offers it many other exam prep courses. On July 31, 1997, Kaplan entered into a letter of intent with West Publishing to purchase the assets of West Bar. However, within the next 10 days, executives of Kaplan and BAR/BRI secretly communicated. As a result of these communications Kaplan withdrew its bid for West Bar, instead entered into a "co-marketing" agreement with BAR/BRI in which BAR/BRI secretly paid to Kaplan $750,000 per year, but on the condition that Kaplan secretly agree to stay out of the full-service bar review course market. BAR/BRI and Kaplan also agreed further to “strategically” work together in the future to promote their complementary businesses.
39. Around the time the Kaplan/West Bar acquisition fell through, West announced it was closing West Bar because it did not fit within its “long term strategic direction.” As noted above, it then divested its operative bar review assets to BAR/BRI, including its students’ commitments to purchase and complete its bar review course. Also around that time, BAR/BRI quietly wound down, at least, its LSAT preparation course. (Part of its agreement with Kaplan was that BAR/BRI would not continue its LSAT course in competition with Kaplan's dominant LSAT course.) Bar/Bri's combination with Kaplan violated § 1 of the Sherman Act.
40. In or about October 2006, Kaplan acquired PMBR (see paragraphs 28-29 above). Prior to its 1997 Agreement with BAR/BRI, it sought to enter into the full service bar review business course business. To date, however, it has not so entered the market, nor has BAR/BRI resumed the sale of a separate supplemental bar review course. Every indication then is that Bar/Bri continues the PMBR conspiracy now with Kaplan.
41. Louisiana. In Louisiana, for many years there were two courses, one operated by BAR/BRI out of Tulane University (part of the West Bar acquisition) and another independently operated by Louisiana State University in Baton Rouge. In 2003, BAR/BRI acquired the right to provide the LSU course for a three-year period, and for that paid the sum of $100,000 to LSU. LSU then withdrew from the market and BAR/BRI became a monopolist there. Within three years, the price charged for the Louisiana bar review course had tripled! At least one faculty member of its Louisiana course has a contract extending through 2007. Therefore, this agreement appears to continue to the present. In any event, no new bar review course has emerged in Louisiana since 2003. The agreement, therefore, eliminated all competition from Louisiana and violated section 1 of the Sherman Act (15 U.S.C. § 1).
42. Supreme Bar Review. Supreme Bar Review is a course operating in Ohio. It is one of BAR/BRI's very few competitors. Although Supreme is limited to Ohio, BAR/BRI has taken steps to rid the course even from that State. BAR/BRI has used several improper devices to accomplish this task. Throughout the country, in conjunction with the American Bar Association, BAR/BRI offers various scholarship programs providing assistance to needy students. However, it has misused this program in Ohio and elsewhere (see Rigos below).
43. In Ohio, BarBri's so-called "Tuition Assistance Plan" has been offered to students who intend to take the Supreme course. The secret purpose of the plan is to provide those students an amount of money at least equal to the price difference between the Supreme course and the BAR/BRI course, whether or not they need financial support. The ABA never authorized its name to be associated with the competitive use of this assistance program. The effect is to improperly divert business from Supreme to BAR/BRI.
44. BAR/BRI has undertaken other acts to suppress Supreme and eliminate it from the market. Particularly when Supreme first entered the market, BAR/BRI took aggressive steps to eliminate it. Among other things, it started a rumor that Supreme would be going out of business soon, i.e., not in the market to provide courses for nervous students who might sign up with it. It also made comparative representations about its passing percentages which were misleading, if not outright false. In addition, it filed a federal lawsuit against Supreme seeking to have it shutdown. After two years of costly litigation, that meretricious lawsuit failed to achieve that objective, as Supreme remains in business at the present time.
45. Within various law schools in Ohio, BAR/BRI has also effectively co-opted so-called Student Bar Association executives who are responsible for bulletin board advertising space and the like. Important to the promotion of a bar review course, particularly a new bar review course is the right to post flyers on bulletin boards within the law schools. As it happens, in many law schools the management of those bulletin boards and other public access spaces of the same sort have been ceded by the administration to the so-called student government. In many law schools the student government is referred to as the SBA (or Student Bar Association). BAR/BRI has made it a practice, at least in Ohio, of approaching "executives" of such SBAs, persuading them to become BAR/BRI reps and offering them a free BAR/BRI course. Then BAR/BRI either requires or incentivizes such executives not to approve the posting of flyers on bulletin boards of competing bar review courses. Thus, Supreme has been blocked in law schools in Ohio from posting advertising about its course because SBA executives, so co-opted by BAR/BRI, have refused to permit such flyers to be so posted. As there are few, if any, other places to promote bar review courses than in a law school (where all the potential and actual consumers reside), the restriction on such advertising is a substantial restraint on competition imposed on Supreme by BAR/BRI in Ohio.
46. DeVry. Like Becker and Kaplan, DeVry is a provider of a variety of courses for post secondary examinations and a most likely potential entrant into the bar review course market. Among the most significant of its offerings is the preparatory course for the CPA exam. Until July 1999, BAR/BRI offered a CPA prep course along with its bar review course. In that year, BAR/BRI sold its so-called Conviser Duffy CPA Course to DeVry. Like Kaplan and Becker before it, DeVry, too, is a most likely entrant into the bar review course business. Plaintiffs are informed and believe that incident to BAR/BRI's sale to DeVry of said CPA course, each party has agreed not to compete in the market of the other, i.e., Bar/Bri, not to initiate another CPA prep course and DeVry comparably not to initiate a bar review course. This market division also violates section 1 of
the Sherman Act (15 U.S.C. § 1).