BAR/BRI or Kaplan? Class Action Reveals They Are in Cahoots.

On December 6, 2010, a partial payment of $30,000,000 was approved for distribution amongst class members in involved in the BAR/BRI and Kaplan class action law suit. In Rodriguez v. West Publishing Company, plaintiffs sued on behalf of more than 300,000 class members who took a bar review course from BAR/BRI between August 1, 1997 to July 31, 2006. 2007 WL 2827379, *1 (C.D.C.A. Sept. 10, 2007). BAR/BRI is a subsidiary of West Publishing.

Plaintiffs claim that BAR/BRI agreed not to compete in the LSAT business and Kaplan agreed not to compete in the bar review business. Furthermore, plaintiffs argued that BAR/BRI’s offer to law students to pay the full amount for a bar prep course during their 1L year is anticompetitive because it forces test takers into a three year hold. Many students accepted the BAR/BRI lock-in rate and other bar prep courses faced a large barrier to market entry.

The settlement agreement removes the three year hold on law students when they enter into a contract with BAR/BRI. BAR/BRI has also agreed to abide by advertising requirements as noted by antitrust laws. Rodriguez, 2007 WL 2827379, *12. For five years, BAR/BRI will clarify that the law student’s initial enrollment payment does not commit the student to taking BAR/BRI or require the student to make a full payment to BAR/BRI. West Publishing terminated the co-marketing agreement between BAR/BRI and Kaplan that existed since 1997. See here for more details.

With the help of technology and perhaps with the ease of information flow, over 88,000 claims for over 130,000 BAR/BRI courses have been processed. This class action has been described as a class action money mill. Perhaps technology, which promotes quick news, has spurned a settlement amongst the parties. When it comes to big name litigation cases, there is an underlying public interest in settling and quieting litigation. In re Visa Check/Master Money Antitrust Litigation, 297, F. Supp. 2d 503, 510 (E.D.N.Y. 2003).

To read more about the settlement agreements for the two law suits against BAR/BRI, they are available online here and here.

How Far Should the Government go to Prevent 21st Century Bullying? A Look at the Massachusetts Cyber-Bullying Bill

(Photo by: Chesi - Fotos CC)

In response to a number of high-profile cases involving intense bullying, both within Massachusetts and in other states, Governor Deval Patrick signed into law last May a bill aimed at combating bullying in public schools. Although bullying is certainly nothing new for schools and students, the law also combats a truly 21st century aspect of bullying: cyber-bullying. In doing so, the Commonwealth joins over 20 other states with laws or proposed legislation about cyber-bullying.

The Massachusetts legislation defines cyber-bullying as “bullying through the use of technology or any electronic communication” (M.G.L.A. 71 § 37O(a) (2010)). The statute prohibits cyber-bullying on school grounds or through school leased or owned electronic devices. The law also prohibits cyber-bullying which creates a hostile environment at school for the victim, infringes on the rights of the victim at school, or materially and substantially disrupts the education process. Additionally, the statute requires schools to develop a comprehensive and preventative anti-bullying plan.

Although this legislation is created with the best intentions, cyber-bullying laws could potentially infringe upon First Amendment rights of students. In order to prevent that, the Massachusetts statute includes language that limits the breadth of the law to classes of student speech. The Supreme Court has already ruled on what may be regulated by schools in terms of speech. For instance, by limiting the prohibition of cyber-bullying to that which substantially and materially disrupts the education process, Massachusetts’ legislators have attempted to follow the precedent set in the case Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), which allowed schools to prohibit speech which materially and substantially disrupts learning in schools. Nonetheless, the number of courts which have applied this material and substantial test to online content has been few, and it has yet to reach the Supreme Court.

It is easier for schools to argue that traditional bullying falls within the Tinker standard; traditional bullying is likely to be confined to the school yard, where it can easily be called a distraction to the learning process. Cyber-bullying, on the other hand, happens across the Internet, where the line between school and home is blurred and allows bullies almost constant access to their victims. Depending upon how broadly or narrowly courts determine whether online content materially and substantially affects the educational process, schools could be given vast or slim power to regulate student online content.

If interpreted too broadly, students could be punished for almost anything they put on the Internet, if the content had any type of negative implications about another student. In a world where the Internet can be accessed almost instantly, from almost anywhere, it is not unfathomable that courts could hold any type of Internet content as an affect on the educational process. Courts may find the content offensive even when that content may have little to do with school. If the bill is interpreted too narrowly, First Amendments rights of students will be safe, but the provision will become ineffective for its purpose. By applying the material and substantial criteria to only the most egregious form of cyber-bullying, the most common forms of bullying will go on unpunished. Current criminal laws, such as harassment and stalking statutes will be able to cover the rest that the cyber-bullying bill does not address.

No one condones the words and actions that bullies use to inflict pain on their victims. Nonetheless, protecting one’s right to free speech, even when the message is disagreeable, is a priority in our society. For other states considering adopting legislation to combat cyber-bullying, they should avoid prohibitions which run the risk of either failing under constitutional grounds or being corroded by judicial interpretation. Instead, other states should look to where the Massachusetts bill goes right which is in the bill’s requirement on schools to take a more proactive approach to preven bullying and helping the victims. Instead of attempting to ban speech, the government should focus on discouraging bullies from developing and helping victims to overcome the harassment.

The Startup Visa Act of 2010: Bolstering Innovation and Technology for America's Future

Over the past year, venture capital and technology companies have rallied around legislation aimed at making visas more available for entrepreneurial foreign investors. Senators Kerry and Lugar originally introduced the Startup Visa Act on February 24, 2010 in response to suggestions from venture capital companies. The Startup Visa Act of 2010 aims to reform the EB-5 Visa which currently governs the availability of visas to foreign investors.

The proposed legislation would provide a visa for a foreign investor who seeks to start a company and secures at least $250,000 from venture capitalist or angel investors. Permanent residency would be available to those immigrant investors who, after two years, created at least five U.S. jobs and raised an additional one million dollars in capital or have revenues exceeding one million dollars. This legislation was introduced with the hopes of bolstering innovation that current U.S. immigration policy does not allow for. The new legislation is supported by fears that the U.S. is losing ground to other nations in terms of innovation, technology, and high-tech jobs.

The innovation of immigrant entrepreneurs can be in seen in tech and pharmaceutical companies such as Google, Pfizer, Yahoo, and eBay. From 1995-2005 immigrants founded over 25% of start-up technology companies and have since provided 450,000 jobs and 52 billion dollars in sales (http://startupvisa.com). Immigrants make up nearly half of the science and technology PhDs and nearly a quarter of the science and tech workforce. Yet with restrictive immigration work policies, the education and innovations of immigrants is being lost to other nations.

The Start-up Visa Act of 2010 provides an important basis for increasing innovation and technology in the U.S. by allowing brilliant minds from around the world to set-up shop in the U.S. Some critics claim that this act will enable the U.S. to steal talent from other nations. While the criticism is founded in truth, many foreigners educate themselves at U.S. institutions and are forced to return to their original homes because they cannot obtain visas in the U.S. The education immigrants received in the U.S. helps their country and act supporters believe the knowledge is better served in U.S. industries. The Startup Visa Act is an excellent way to entice U.S. educated immigrants to remain in the U.S. and put their U.S. educations to use. Enticing talented technologically advanced minds to remain or come to the U.S. will enable the U.S. to remain a leader in innovation.

Critics also fear the act will create corruption in the immigration process and will create too much competition for American companies. As to the first assertion of corruption in immigration, this type of work is already available under EB-5 and the Startup Visa Act would merely increase access to these types of work visas. Additionally, it would not be right to punish everyone at the expense of the few that may try to abuse the system.

Further, the claim that making it easier for foreign investors to start companies in the U.S. would create too much competition is largely unfounded since the number of domestic start-up companies has been on the decline in the states and on the rise abroad. The Startup Visa Act could help reverse the downward trend of start-ups, tech, and science related jobs by pumping technology and innovation into our economy while creating jobs for U.S. citizens to fill. It is a smart step forward to keeping the U.S. ahead in technology and innovation.

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