2nd Circuit Affirms Barbri Didn't Collude With Law Schools to Violate Antitrust Laws

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Bar exam prep behemoth Barbri Inc. did not run afoul of antitrust laws in its dealings with law schools as a competitor alleged, a federal appeals court has ruled.

The U.S. Court of Appeals for the Second Circuit on Thursday affirmed dismissal of LLM Bar Exam’s $50 million antitrust suit, which claimed Barbri colluded with law schools to keep the plaintiff off campuses, dominate the LL.M. bar prep market and eventually drive it out of business.

The appellate court found in a seven-page opinion that LLM Bar Exam’s allegations of Sherman Act and RICO violations failed to state a plausible claim to relief, and concluded that the lower court was correct to dismiss the plaintiff’s remaining claims in 2017.

LLM Bar Exam’s attorney, Judd Spray, did not immediately respond to requests for comment, nor did the company’s founder Emanuele Tosolini.

"Barbri is pleased that the Second Circuit affirmed the District Court’s judgment to dismiss the case for failure to state a claim," said Barbri president Mike Sims on Thursday.

LLM Bar Exam was a test prep company founded in 2009 by Tosolini, who helps run Tosolini, Lamura, Rasile & Toniutti, a self-described international law firm with offices in Italy, New York and other U.S. states. The company sued Barbri and 11 law schools in 2016, claiming they conspired to give Barbri a monopoly over bar prep for LL.M. students. Among the defendant schools were Columbia Law School; New York University School of Law; Harvard Law School; Georgetown University Law Center; Emory University School of Law; and the University of Southern California Gould School of Law. (LLM Bar Exam later voluntarily dismissed all but the New York law schools from the appeal.)

“LLM Bar Exam claims that Barbri and the law schools entered into agreements whereby Barbri donates money to the schools, bribes their administrators and hires their faculty to teach bar review courses; in exchange, the law schools give Barbri ‘direct access … to promote and sell its products on campus directly to the JD Market and LLM Market” and “use campus facilities for lecture space,’” reads the appellate decision, summarizing the plaintiffs’ allegations.

LLM Bar Exam claimed the law schools barred it from their campuses at the behest of Barbri, preventing the company for marketing its test prep services. But according to the appellate opinion, several law schools say they took action against LLM Bar Exam due to complaints from students.

“There were complaints about the quality of LBE’s course materials, about LBE’s refusal to provide refunds to students, about misrepresentations made by LBE’s marketing representatives to students considering signing up for LBE’s course, and about LBE’s business tactics, including the use of binding language in its contracts and its decision to pursue litigation against students,” the opinion reads.

LLM Bar Exam, which later shut down, claimed that Barbri has more than 80 percent of the bar exam prep market and actively tried to keep the company out of the bar prep market for LL.M. students. However, the court noted that at least two other test prep companies offered products for LL.M. students at the time that LLM Bar Exam closed.

It was not the first time Barbri had been sued for antitrust violations. The company has been hit with a series of antitrust suits since the 2000s. It has settled numerous cases, among them a 2007 settlement for $49 million in a suit that said law school graduates paid more than they should have for courses because of wrongful noncompetition in the market.