For all but the bravest law school graduates, an expensive cram session known as a bar review course is considered standard procedure before anyone puts his or her legal education on the line and takes a bar examination. As the number of lawyers boomed, the bar review became big business -- so big, in fact, that it has become the target of a huge class action antitrust lawsuit. The lead defendant is Harcourt Brace Jovanovich Inc., and the plaintiffs are 80,000 lawyers who took the bar review courses given by Harcourt and its subsidiaries from 1973 to 1979.
The lawsuit has been lumbering along in the U.S. District Court in Chicago since January 1977. One of the things that has taken so long is the "enormous task" of identifying all the people who were members of the class of plaintiffs, said Charles Barnhill Jr. of Chicago's Davis, Miner & Barnhill, one of three law firms representing the lawyers. A list of names was drawn up from state bar groups and law schools. Since January, a formal Notice of Pendency of Class Action detailing the lawsuit has been sent to 80,000 lawyers across the country.
The lawsuit was filed against Harcourt's Legal and Professional Publications, Inc. (LPP) and the two bar review companies that it bought in 1976: BRI Bar Review Institute, which offered bar review courses in states east of the Mississippi, and Bay Area Review Course (BAR), which operated in California and other western states.
The lawyers want money damages, roughly estimated at $4 million (tripled if they win the case) because the bar reviews' allegedly anticompetitive practices forced them to pay unnecessarily high prices to take the bar review course. And they want the federal court to bust up the bar review and restore competition by ordering Harcourt to divest itself of BRI and BAR.
The lawsuit contends that Harcourt's bar review courses (known as the BRI-BAR Institute Inc. and by far the predominant bar review course in the country) illegally have forced students to buy or lease course books as a condition of attending the lectures. This "tying practice" also has increased the price of the bar review courses because it virtually eliminated the discount used-book market.
For example, the BRI-BAR review course for the District will cost $480 this fall, plus a mandatory $45 book deposit which will be returned if the books are brought back within two weeks after the bar exam. There is a $50 discount if you sign up before Nov. 15. In San Franciso, a $100 book deposit is credited towards the total cost of the course, which last year was $425 and this year is not expected to be more than an additional 9 percent, or somewhere below $573. In Chicago the course costs $495, with a $35 refundable book deposit. In New York the BRI-BAR review course cost $575, plus a $45 refundable book deposit. Josephson's Bar Review Course in New York costs $595 (with $100 off if you sign up before Oct. 16) plus a $50 refundable book deposit.
The lawsuit also alleges that in 1973 the Bar Review Institute of Chicago and the Bay Area Review Course of agreed not to compete with each other in the same states, and divided up the business in states where neither firm had been established. At the same time, the lawsuit claims, BAR and BRI formed a joint venture in New York, where the glut of lawyers makes for a lucrative bar review market. The lawsuit contends that the result was unfairly high prices for bar review courses in California, Illinois and New York. In 1976, when Harcourt's LPP took over both BRI and BAR, continued high prices in those three states was guaranteed, the lawsuit contends. The lawyers also charge that the Harcourt companies have a virtual monopoly over the bar review in Illinois.
Kimball R. Anderson, an attorney at Winston & Strawn in Chicago, which is representing Harcourt, said the big publishing house (which also owns Legal Times of Washington) has denied all the charges brought by the lawyers. Anderson said the case "seems to be moving at a snails pace" and is a long way off from resolution.
Leroy Nesbitt, Patricia Wynn and Ronald P. Wertheim have been nominated for a seat on the D.C. Superior Court vacated when Judge James A. Belson moved upstairs to the D.C. Court of Appeals. The D.C. Judicial Nomination Commission sent their names over to the White House, which now has 60 days to pick one of the three to be Belson's successor.
Nesbitt, a former president of the D.C. Superior Court Trial Lawyers Association, is is a well-known criminal defense lawyer. Wynn, a former professor at Georgetown Law Center, was a staff attorney with the city's Public Defender Service and is a former member of the D.C. Bar Board of Governors. She is now counsel to Stiller, Schwartz & Kaswell. Wertheim, a former partner at Ginsburg Feldman Weil & Bress, once taught law at the University of Virginia, has been deputy general counsel to the Peace Corps and represented several notables during the Watergate days, including Robert C. Mardian, former assistant attorney general in the Nixon administration and an official in the 1972 Committee to Re-Elect the President, and Fred Fielding, John Dean's chief assistant and now White House counsel. Wertheim is now a member of the Merit Systems Protection Board.