Case 1:16-cv-03770-KPF Document 110 Filed 09/25/17 Page 1 of 76
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`16 Civ. 3770 (KPF)
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`OPINION AND ORDER
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`LLM BAR EXAM, LLC,
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`BARBRI, INC., COLUMBIA LAW
`SCHOOL, NEW YORK UNIVERSITY
`SCHOOL OF LAW, HARVARD LAW
`SCHOOL, BENJAMIN N. CARDOZO
`SCHOOL OF LAW, ST. JOHN’S
`UNIVERSITY SCHOOL OF LAW, DUKE
`UNIVERSITY SCHOOL OF LAW,
`UNIVERSITY OF SOUTHERN
`CALIFORNIA GOULD SCHOOL OF LAW,
`FORDHAM UNIVERSITY SCHOOL OF
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`LAW, GEORGETOWN UNIVERSITY LAW
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`CENTER, EMORY UNIVERSITY SCHOOL
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`OF LAW, THE REGENTS OF THE
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`UNIVERSITY OF CALIFORNIA, SYLVIA
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`T. POLO, and NITZA ESCALERA,
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`Defendants. :
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`------------------------------------------------------ X
`KATHERINE POLK FAILLA, District Judge:
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`::
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`Plaintiff,
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`v.
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`This is a dispute between two companies that prepare law school
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`graduates for a time-honored (and seemingly Sisyphean) rite of legal passage:
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`the bar examination. Each year, thousands of foreign attorneys obtain Master
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`of Laws (“LL.M.”) degrees from American law schools. Since 2009, Plaintiff LLM
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`Bar Exam, LLC (“LBE”) has sought to train many of these foreign LL.M.
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`graduates to take and pass the New York and California bars. But LBE claims
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`that it has been thwarted in its efforts by Defendant Barbri, Inc. (“Barbri”) — a
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`USDC SDNY
` DOCUMENT
` ELECTRONICALLY FILED
` DOC #: _________________
` DATE FILED: ______________
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`September 25, 2017
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`Case 1:16-cv-03770-KPF Document 110 Filed 09/25/17 Page 2 of 76
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`far older, and far larger, rival. Barbri, LBE alleges, stole LBE’s proprietary idea
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`for a bar review course catered to foreign LL.M. graduates. Its representatives
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`disparaged LBE to would-be clients. And, critically, LBE claims that Barbri
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`has colluded with law schools nationwide in order to monopolize the bar
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`preparation industry.
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`In 2016, LBE sued Barbri, several law schools located in New York
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`(collectively, the “New York Law Schools”),1 and several other law schools
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`located outside of New York (collectively, the “Non-New York Law Schools”).2
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`The First Amended Complaint — the operative complaint in this case — seeks
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`relief under Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1-2; the
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`Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(c)
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`(“RICO”); the Copyright Act, 17 U.S.C. §§ 101 et seq.; and a battery of state
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`laws.
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`Barbri, the New York Law Schools, and the Non-New York Law Schools
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`(collectively, “Defendants”) have filed a combined motion to dismiss the First
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`Amended Complaint and three supporting briefs: (i) an omnibus brief on behalf
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`of all Defendants; (ii) a brief on behalf of Barbri; and (iii) a brief on behalf of the
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`1
`These Defendants include Columbia Law School (“Columbia”) and its Dean of Graduate
`Legal Studies, Sylvia T. Polo; Fordham University School of Law (“Fordham”) and its
`Assistant Dean of Student Affairs, Nitza Escalera; New York University Law School
`(“NYU”); Benjamin N. Cardozo School of Law (“Cardozo”); and St. John’s University
`School of Law (“St. John’s”).
`These Defendants include Harvard Law School (“Harvard”); Duke University School of
`Law (“Duke”); the University of Southern California Gould School of Law (“USC”);
`Georgetown University Law Center (“Georgetown”); and Emory University School of Law
`(“Emory”). Previously, LBE sued The Regents of the University of California. (Dkt. #1,
`#85). On December 1, 2016 — before Defendants moved to dismiss the First Amended
`Complaint — LBE voluntarily dismissed the Regents from this action. (Dkt. #89, 90).
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`2
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`Case 1:16-cv-03770-KPF Document 110 Filed 09/25/17 Page 3 of 76
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`Non-New York Law Schools. The first two of these briefs argue that LBE has
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`failed to state a claim for relief, and urge the Court to dismiss the First
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`Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). The third
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`brief contends that the Court lacks personal jurisdiction over the Non-New
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`York Law Schools, and thus that the Court should dismiss the First Amended
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`Complaint as to these defendants pursuant to Rule 12(b)(2).
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`The First Amended Complaint is 78 pages long and contains 63 exhibits.
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`But it pleads no facts that plausibly support LBE’s federal antitrust, RICO, or
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`copyright claims. The Court declines to exercise supplemental jurisdiction over
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`LBE’s state-law causes of action, though it shares Defendants’ skepticism as to
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`the viability of these claims. Thus, and for the reasons set forth below, the
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`Court grants Defendants’ motion to dismiss.
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`BACKGROUND3
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`A.
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`Factual Background
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`Broadly, the First Amended Complaint alleges that Defendants have
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`committed misconduct along two axes — one vertical, and one horizontal.
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`First, LBE claims that Barbri has entered into agreements with the New York
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`Law Schools and the Non-New York Law Schools (the “Law School
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`Agreements”). (See, e.g., FAC ¶ 44). Pursuant to the Law School Agreements,
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`3
`This Opinion draws on facts from the First Amended Complaint (“FAC” (Dkt. #85)) and
`the Exhibits (“Ex.”) attached thereto. For purposes of this Opinion, the Court assumes
`that the First Amended Complaint’s allegations are true. E.g., Ashcroft v. Iqbal, 556
`U.S. 662, 678 (2009).
`For ease of reference, the Court will refer to LBE’s opposition brief as “LBE Opp.” (Dkt.
`#102).
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`Case 1:16-cv-03770-KPF Document 110 Filed 09/25/17 Page 4 of 76
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`LBE alleges, Barbri donates money to these schools and hires their faculty
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`members to teach bar review courses; in exchange, the law schools ensure that
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`Barbri remains the country’s preeminent provider of bar preparation courses.
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`(Id.). Second, LBE alleges that the New York Law Schools and the Non-New
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`York Law Schools — enticed by Barbri’s financial support — have conspired
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`with each other to prevent LBE from challenging Barbri. (See, e.g., id. at
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`¶¶ 197-99). The result, LBE claims, is that Barbri has monopolized the market
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`for preparing foreign LL.M. graduates to take the bar (what LBE terms the
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`“LLM Market”). (Id. at ¶¶ 29-31, 196).
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`Understanding this case requires the Court to take stock of the
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`relationships between and among these parties. And given the First Amended
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`Complaint’s length, that task involves several steps. The Court will begin by
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`listing the parties to this suit. Then, the Court will review LBE’s allegations
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`about the LLM Market. The Court will next turn to LBE’s allegations about
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`Barbri. And finally, the Court will consider LBE’s allegations about the New
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`York Law Schools and the Non-New York Law Schools.
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`1.
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`The Parties
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`LBE “is a limited liability company” based in New York City. (FAC ¶ 9).
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`It “offers test preparation courses for the New York State and California State
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`bar examinations, designed for and marketed exclusively to internationally
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`trained/educated lawyers who obtain or are in the process of obtaining [LL.M.
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`degrees] in law schools across the United States.” (Id.). The bulk of the First
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`Amended Complaint’s allegations concern LBE’s courses that prepare foreign
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`Case 1:16-cv-03770-KPF Document 110 Filed 09/25/17 Page 5 of 76
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`LL.M. graduates to take the New York bar. (See, e.g., id. at ¶¶ 24, 26-27, 37,
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`48). LBE began marketing these courses — which “offer[] several unique
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`features to assist [f]oreign LL.M. [s]tudents in passing the NY Bar Exam” — in
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`spring 2009. (Id. at ¶¶ 25-26). And LBE enjoyed success after that point:
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`Indeed, in a February 2016 e-mail to an administrator at USC, LBE’s founder,
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`Emanuele Tosolini, wrote that LBE “ha[d] over 500 enrolled students.” (Ex. 57;
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`see also FAC ¶¶ 27, 48, 64, 68, 96, 135, 144, 159)). But as a result of
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`Defendants’ “collective actions … all instigated and directed by Barbri, … LBE
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`was forced out of business” at a time not specified in the First Amended
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`Complaint. (FAC ¶ 61).
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` Barbri “is a Delaware corporation” that provides bar review classes to
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`both LL.M. and Juris Doctor (“J.D.”) graduates. (FAC ¶ 10). Barbri is “a direct
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`competitor of LBE.” (Id.). And by LBE’s account, Barbri holds “a monopoly
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`within the bar review marketplace”: LBE “assume[s]” that Barbri has an “over
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`80% market share” of that marketplace and enjoys “$110 million [in] revenue.”
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`(Id. at ¶ 43). “1.2 million” students have taken Barbri’s courses “[o]ver the past
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`fifty [ ] years.” (Id.).
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`The New York Law Schools and the Non-New York Law Schools are all
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`law schools “accredited by the American Bar Association.” (FAC ¶¶ 11-20).
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`LBE alleges that foreign attorneys pursuing LL.M. degrees matriculate in high
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`numbers at these ten schools. (Id. at ¶ 32). Polo is Columbia’s Dean of
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`Graduate Legal Studies. (Id. at ¶ 22). And Escalera is an Assistant Dean of
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`Student Affairs at Fordham. (Id. at ¶ 23).
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`Case 1:16-cv-03770-KPF Document 110 Filed 09/25/17 Page 6 of 76
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`The LLM Market
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`2.
`The linchpin of LBE’s antitrust claims is the existence of the LLM
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`Market — “the U.S. market for bar examination review courses for [f]oreign
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`LL.M. [s]tudents.” (FAC ¶ 29). LBE posits that the LLM Market is one of “[t]wo
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`markets … relating to bar examination review,” with the other being the “JD
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`Market.” (Id.). And LBE alleges that “[t]he LLM Market is far more limited than
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`the JD Market in part because … significantly” fewer foreign LL.M. graduates
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`“sit for a bar examination.” (Id. at ¶ 31). In 2015, for example, foreign LL.M.
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`graduates comprised 44% of those who sat for the February administration of
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`the New York bar, and 29% of those who sat for the July administration. (Id. at
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`¶ 24). Because “many jurisdictions require internationally trained/educated
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`lawyers to obtain LL.M. degrees from law schools accredited by the American
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`Bar Association … in order to sit for the bar examination, the relevant
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`geographic market” for the LLM Market “is the United States.” (Id. at ¶ 38).
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`For many reasons, LBE alleges, foreign LL.M. graduates fare worse on
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`the bar exam than J.D. graduates. (FAC ¶¶ 33-34). Of note, both LL.M.
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`graduates and J.D. graduates take the same bar exam: They “are in direct
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`competition.” (Id. at ¶ 34). But most LL.M. programs do not cover the subjects
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`“tested in a bar examination.” (Id. at ¶ 33). Moreover, most foreign LL.M.
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`graduates are not native English speakers; most J.D. graduates are. (Id. at
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`34). “[T]raditionally,” only 30-40% of foreign LL.M. graduates pass the New
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`York bar. (Id. at ¶ 27). Foreign LL.M. graduates who took LBE’s course, in
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`Case 1:16-cv-03770-KPF Document 110 Filed 09/25/17 Page 7 of 76
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`contrast, passed at “significantly high[er] … rates compared to those of [LBE’s]
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`competitors.” (Id.; see also id. at ¶¶ 70, 75, 128).
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`LBE alleges that there are “exceedingly high” “[b]arriers to entry in both
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`the JD Market and the LLM Market.” (FAC ¶ 39). “A potential provider of bar
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`examination review courses and related services must develop an extensive
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`network of relationships with universities, law schools, and students across the
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`country … to even enter the market.” (Id.). Further, in order to attract law
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`students to sign up for its courses, a bar review company must maintain an
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`active presence on law school campuses. (Id. at ¶ 41). And LBE claims that
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`the cornerstone of every bar review company’s on-campus marketing is
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`“tabling” — setting up a table to “meet with students.” (Id.).
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`The First Amended Complaint’s description of the LLM Market leaves two
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`questions unanswered. First, apart from LBE and Barbri, who competes (or in
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`LBE’s case, competed) in the LLM Market? LBE alleges that “there are a very
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`limited number of bar preparation providers in the JD Market and even [fewer]
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`in the LLM Market.” (FAC ¶ 42). But other than Barbri and LBE, the First
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`Amended Complaint does not mention any of these companies by name. The
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`First Amended Complaint’s exhibits, in contrast, mention two other companies
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`that appear to offer bar review courses for foreign LL.M. graduates: Pieper
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`(Ex. 38) and Kaplan (Ex. 20-21, 37). Complicating matters, LBE alleges that
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`after “LBE was forced out of business” due to “the collective actions of
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`Defendants, … Barbri retained the entire LLM Market for itself.” (FAC ¶ 61).
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`Case 1:16-cv-03770-KPF Document 110 Filed 09/25/17 Page 8 of 76
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`Second, how old is the LLM Market? LBE asserts that the LLM Market
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`comprises “the U.S. market for bar examination review courses for [f]oreign
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`LL.M. [s]tudents.” (FAC ¶ 29). But such courses did not exist before LBE came
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`around: LBE alleges that it was “the first company to offer” a bar review course
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`“that catered directly to the needs of [f]oreign LL.M.” graduates. (Id. at ¶ 37).
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`Foreign LL.M. graduates took bar examinations (at the very least, the New York
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`bar) before LBE began operating in 2009; by LBE’s account, it “developed [its]
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`bar review course” because foreign LL.M. graduates traditionally fared poorly
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`on the bar. (Id. at ¶¶ 36-37). And yet, according to the First Amended
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`Complaint, the LLM Market did not exist until LBE began offering its courses.
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`3.
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`LBE’s Allegations about Barbri
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`Barbri, LBE claims, has monopolized the LLM Market. (See, e.g., FAC
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`¶ 212). And it has accomplished this goal through three means: First, LBE
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`alleges that for years before this case began, “Barbri engaged in an aggressive
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`campaign of harassment, disinformation, defamation, and unfair competition
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`against LBE at any school where LBE actively marketed.” (Id. at ¶¶ 47, 50).
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`Second, LBE claims that in 2013, Barbri developed a course for foreign LL.M.
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`graduates that was and remains “identical to LBE’s course.” (Id. at ¶¶ 58-60).
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`Third, LBE alleges that Barbri has maintained “long standing financial
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`relationship[s] with” the New York Law Schools and the Non-New York Law
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`Schools by entering into Law School Agreements with all of them. (Id. at ¶ 44).
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`Case 1:16-cv-03770-KPF Document 110 Filed 09/25/17 Page 9 of 76
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`a.
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`Barbri’s Alleged Defamation of LBE
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`The First Amended Complaint alleges — repeatedly — that Barbri has
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`spread “false, misleading, and derogatory statements … [about] LBE’s bar
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`preparation program.” (FAC ¶ 51; see also id. at ¶¶ 50, 52-53, 61, 64-65, 67,
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`192, 209, 220). Those false statements concerned “LBE’s methodology,
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`materials, and professors, … the financial strength of the company, and … the
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`business experience of the company.” (Id. at ¶ 51). And LBE claims that
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`Barbri made these statements to “dissuade … [f]oreign LL.M. [s]tudents from”
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`signing up for LBE’s courses, and to convince foreign LL.M. students who had
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`signed up for LBE’s courses “to break their enrollment contracts and withdraw
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`from the LBE program.” (Id.; see also id. at ¶¶ 192, 209, 220, 240, 249).
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`Here, too, the First Amended Complaint leaves an important question
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`unanswered — what false statements did Barbri make about LBE? The First
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`Amended Complaint identifies one statement that appears to have been an
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`outright falsehood: During a recruiting event at Columbia, Natalie Urrea,
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`Barbri’s Director of International Business Development, “claimed that she was
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`a [f]oreign LL.M. [s]tudent who [was] an alumna of Barbri who successfully
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`passed the NY Bar Exam on her first try by following Barbri’s LLM [c]ourse.”
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`(FAC ¶ 74). In fact, LBE claims, “Urrea obtained a [J.D.] from Temple
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`University … is not a [f]oreign LL.M. [s]tudent[,] and … did not pass the NY Bar
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`Exam until July 2014.” (Id.). In any event, the First Amended Complaint does
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`not allege that Urrea said anything about LBE.
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`Case 1:16-cv-03770-KPF Document 110 Filed 09/25/17 Page 10 of 76
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`Apart from this allegation, LBE principally takes issue with the fact that
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`Barbri disparaged LBE to foreign LL.M. students (see FAC ¶ 61) — although it
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`is unclear if these disparaging remarks were in fact falsehoods. For example,
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`LBE alleges that on an unspecified date, Erica B. Fine, who has held various
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`management positions with Barbri, “advised NYU [f]oreign LL.M. [s]tudents to
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`complain about LBE to their law school administration in a blatant effort to
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`undermine LBE’s ability to market and sell its course to NYU [f]oreign LL.M.
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`[s]tudents.” (Id. at ¶¶ 80-81). LBE also alleges that Fine “advised various” NYU
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`faculty members and administrators “to bar LBE from marketing at NYU.” (Id.
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`at ¶ 82). Likewise, sometime in 2016, while Barbri and LBE were attempting to
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`settle a dispute involving students who had signed up for both companies’
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`courses, “Barbri’s representatives … stated to [some of] the students that LBE
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`was not a reputable course, and indeed was kicked out of major law schools for
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`poor performance and problems with students.” (Id. at ¶¶ 54-56). As the
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`Court will explain infra, it seems that some of these disparaging statements
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`had a kernel of truth in them. (Cf. id at ¶ 313 (“Defendants knowingly stated
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`and published false and derogatory statements about LBE, including that LBE
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`is a disreputable business.”)).
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`In any case, in the spring of 2014, Tosolini met with Barbri’s President,
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`Mike Sims, “to discuss Barbri’s predatory marketing activities against LBE.”
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`(FAC ¶ 53; see id. at ¶ 57). At first, Sims “denied any disparagement.” (Id. at
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`¶ 53). But Sims eventually conceded to Tosolini “that all personnel at Barbri
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`connected with the disparaging actions against LBE [were] being ‘let go by
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`Barbri.’” (Id.). And when “Tosolini brought up specific instances and actions
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`by [ ] Fine with the administration at Harvard, Sims apologized and offered to
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`‘make a phone call to Harvard’ and relay that ‘Barbri ha[d] no issues with
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`LBE’s presence at Harvard.’” (Id.). Tosolini declined Sims’s offer. (Id.).
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`b.
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`Barbri’s Course for Foreign LL.M. Graduates
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`In December 2012, Sims and Stephen Fredette, Barbri’s Chairman and
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`CEO, approached LBE “to discuss a possible buyout.” (FAC ¶ 57). Tosolini
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`“met with[ ] Sims and Fredette,” and later provided them with information
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`about LBE’s business and “other proprietary information.” (Id.; see Ex. 4).
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`Ultimately, Barbri opted not to purchase LBE. (FAC ¶ 57).
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`Instead, LBE claims, Barbri copied LBE’s course. Before 2012, “Barbri
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`did not have a dedicated review course specifically designed for [f]oreign LL.M.
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`[s]tudents.” (FAC ¶ 45). Instead, Barbri sold only “one type of bar review
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`course to both the JD Market and the LLM Market.” (Id. at ¶ 46). But in the
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`spring of 2013, Barbri started to develop and market a course targeted towards
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`foreign LL.M. graduates. (Id. at ¶ 58). And that fall, Barbri released this
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`course, which “is identical to LBE’s course.” (Id. at ¶¶ 59-60). Like LBE’s
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`course, Barbri’s version offers:
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`[A] personalized study plan that is tailored by the
`student but guided by Barbri
`(same as LBE’s
`individualized
`study
`schedules);
`[an]
`LL.M.
`fundamentals course that provides an overview of the
`multistate subjects (similar to LBE’s early subject
`matter review course); legal writing workshops … ; an
`MBE foundation course … and an MBE course …
`(similar to LBE’s intensive review course and advanced
`test-taking techniques course); and Free Repeat
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`Case 1:16-cv-03770-KPF Document 110 Filed 09/25/17 Page 12 of 76
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`Guarantee where a student may repeat the [bar review
`course] by attending lectures or online for the same
`state the next time the [bar review course] is offered by
`[Barbri], without paying additional fees (similar to LBE’s
`money-back guarantee).
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`(Id. at ¶ 60 (internal quotation marks omitted)). LBE alleges that by creating a
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`bar review course identical to LBE’s, “Barbri has infringed LBE’s copyrights in
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`violation of [the] Copyright Act.” (Id. at ¶ 304). The First Amended Complaint
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`does not allege that LBE holds, or has applied for, a copyright of any sort.
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`c.
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`The Law School Agreements
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`Finally, LBE alleges that Barbri has used the Law School Agreements “to
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`exclude and restrain competition in the JD Market and the LLM Market.” (FAC
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`¶ 44; see also id. at ¶¶ 197, 200, 207). It is unclear whether the Law School
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`Agreements are oral or written. It is also unclear when Barbri entered into the
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`Law School Agreements.
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`The Law School Agreements, LBE alleges, are symbiotic. Barbri donates
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`money to the New York Law Schools and the Non-New York Law Schools; gives
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`“large overpaid contracts to law school faculty members”; and makes “personal
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`bribes via gifts and significant financial gain” to these schools’
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`“administration[s], staff[,] and personnel.” (FAC ¶ 44). In return, the New York
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`Law Schools and the Non-New York Law Schools give Barbri “direct access [to]
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`and control of … these schools” in order “to promote and sell [Barbri’s]
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`products on campus directly to the JD Market and LLM Market”; allow Barbri
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`to “use campus facilities for lecture space”; and let Barbri “utilize law school
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`faculty, including professors and deans.” (Id.). The effect of the Law School
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`Agreements, LBE alleges, “is to exclude and restrain competition in the JD
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`Market and the LLM Market and to maintain supracompetitive prices of bar
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`review courses for the common benefit of” Defendants. (Id.).
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`LBE also alleges that the Law School Agreements allowed Barbri to
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`become “the exclusive provider of bar review courses” at the New York Law
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`Schools and the Non-New York Law Schools. (FAC ¶ 196). Other parts of the
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`First Amended Complaint contradict this claim. For one, from 2009 through at
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`least 2015, LBE provided bar review courses to foreign LL.M. graduates of the
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`New York Law Schools and the Non-New York Law Schools. (See, e.g., id. at
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`¶¶ 48, 135, 159; see also id. at ¶ 27 (“Since its inception, LBE has grown very
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`attractive among [f]oreign LL.M. [s]tudents[.]”)). And as the Court mentioned
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`supra, there are at least two other companies — Pieper (Ex. 38) and Kaplan
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`(Ex. 20-21, 37) — that seem to offer bar review courses for foreign LL.M.
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`graduates.
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`And other allegations in the First Amended Complaint’s belie LBE’s claim
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`that the Law School Agreements allow Barbri “to maintain supracompetitive
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`prices.” (FAC ¶ 44). Indeed, it seems that Barbri made a practice of
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`discounting its rates to attract foreign LL.M. students to sign up for its courses.
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`(Id. at ¶¶ 56, 99, 161; see also Ex. 11 (“[I]n other schools where [LBE was]
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`permitted to market [its] course, competitors were pressured to offer an
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`additional $1,000 discount to compete with [LBE].”)).4
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`4
`In its opposition brief, LBE argues that Barbri “was able to effectively control and fix the
`prices charged to [f]oreign LL.M. [s]tudents, nearly $600.00 more than Barbri’s product
`in the JD Market.” (LBE Opp. 17). In support of this claim, LBE relies on a Barbri
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`Case 1:16-cv-03770-KPF Document 110 Filed 09/25/17 Page 14 of 76
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`4.
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`LBE’s Allegations About the New York Law Schools and the
`Non-New York Law Schools
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`Most of the First Amended Complaint’s allegations, and nearly all of its
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`exhibits, concern the New York Law Schools and the Non-New York Law
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`Schools. The gist of those allegations is that all ten of these schools have
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`impeded LBE’s efforts to market its courses on their campuses. Below, the
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`Court considers LBE’s allegations about these schools, following the same
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`order as the First Amended Complaint: Columbia, NYU, Fordham, St. John’s,
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`Cardozo, Harvard, Georgetown, Duke, USC, and Emory.
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`A global note before embarking down this road: LBE makes an identical
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`allegation about all ten of these law schools: “More than one time, [school] and
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`its representatives stated that it was constantly exchanging information about
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`LBE’s bar review program, business[,] and access to various other law schools,
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`among others, with the other Defendants.” (FAC ¶¶ 62, 79, 93, 111, 119, 125,
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`134, 143, 158, 174). The First Amended Complaint’s 309 other paragraphs do
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`not provide additional support, or context, for this claim. Nor do the First
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`Amended Complaint’s exhibits. Instead, the First Amended Complaint alleges
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`that some representatives of some of the New York Law Schools and the Non-
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`“Enrollment Application” that is attached as an exhibit to LBE’s brief. (Id. (citing Dkt.
`#102-1)). The Court cannot consider this document — which was neither attached to,
`nor cited in, the First Amended Complaint — in adjudicating Defendants’ motion to
`dismiss. See, e.g., Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (limiting
`“universe of materials” a court can consider when deciding a Rule 12(b)(6) motion to
`“facts stated on the face of the complaint, … documents appended to the complaint or
`incorporated in the complaint by reference, … matters of which judicial notice may be
`taken,” and documents that are “integral to the complaint” (internal quotation marks
`and citations omitted)). For the same reasons, the Court will not consider the Affidavit
`of Rebecca Patterson in Opposition to Motion to Dismiss. (Dkt. #102-2).
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`Case 1:16-cv-03770-KPF Document 110 Filed 09/25/17 Page 15 of 76
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`New York Law Schools communicated with each other about LBE. The Court
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`will address those allegations below, and consider their import in the
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`“Discussion” section of this Opinion.
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`a.
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`Columbia
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`Barbri enjoys “a long-standing relationship with Columbia.” (FAC ¶ 62).
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`Three Columbia faculty members teach Barbri bar review classes. (Id.). Barbri
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`has made “numerous donations and gifts to Columbia,” and Columbia has
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`granted Barbri “exclusive and privileged access to Columbia.” (Id.).5
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`LBE began marketing its course to Columbia’s foreign LL.M. students in
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`2009. (FAC ¶ 63). “Within a few weeks,” roughly 20 of those students signed
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`up to take LBE’s course, “putting LBE in immediate competition with Barbri in
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`the LLM Market.” (Id.). “In the spring of 2010, LBE conducted a few live,
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`interactive lectures … for New York law students,” and reactions to those
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`lectures “were mostly favorable and … generally successful.” (Id. at ¶ 64). But
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`sometime thereafter, Barbri made “disparaging and untrue statements … about
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`LBE for the sole purpose of misinforming” foreign LL.M. students at Columbia
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`“who were already enrolled with LBE to breach their enrollment agreement[s]
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`with LBE to enroll with Barbri.” (Id. at ¶¶ 64-65). To this end, Barbri advised
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`5
`LBE also repeats this allegation — “In exchange for such gifts [or ‘gifts and donations’],
`Barbri enjoyed and continues to enjoy exclusive and privileged access to [school].” — for
`all ten of the law school defendants. (FAC ¶¶ 62, 79, 93, 111, 119, 125, 134, 143, 158,
`174). As the Court explained earlier, the First Amended Complaint belies LBE’s
`repeated assertion that Barbri is the exclusive provider of bar review courses at these
`schools. (See supra at 13).
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`Case 1:16-cv-03770-KPF Document 110 Filed 09/25/17 Page 16 of 76
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`students who had already signed up for LBE’s course “to meet with [Polo] to
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`seek refunds that were not due or owing to these students.” (Id. at ¶ 66).
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`LBE alleges that, because of Barbri’s “disparaging and untrue
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`statements,” “Polo coerced [ ] Tosolini to give refunds to students.” (FAC ¶ 67).
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`In exchange, Columbia “allow[ed] LBE to continue marketing its product and
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`conduct[ing] presentations on Columbia’s campus.” (Id.). As part of this
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`agreement, LBE was “allowed to table” on Columbia’s campus “once a week for
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`the entire [Fall 2010] [S]emester.” (Id. at ¶ 68). And that effort bore fruit:
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`“During the first day of tabling” alone, “over [100] students stopp[ed] by the
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`LBE table, leaving their contact information and expressing an overwhelming
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`interest in LBE.” (Id.).
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`But in September 2010, Columbia suspended LBE from marketing on its
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`campus. (FAC ¶¶ 68-69). Tosolini and another LBE employee, Rebecca
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`Patterson, met with Polo to find out why they had been banned from Columbia.
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`(Id. at ¶ 69; see Ex. 5). Polo told them “that she would only recommend and
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`endorse Barbri because Barbri was and is a powerful friend of Columbia, … the
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`oldest bar review course[,] and [that Columbia] students are smart and do not
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`need any other course.” (FAC ¶ 69). Polo also questioned whether Tosolini, “as
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`a foreign-educated student[,] [had] the necessary knowledge and expertise to”
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`prepare students to take an American bar exam. (Id.).
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`Columbia students “became wary of” LBE after it was barred from
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`marketing on campus. (FAC ¶ 68). But eight of the students who stopped by
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`LBE’s table in fall 2010 stuck with LBE’s course — and all eight passed the
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`Case 1:16-cv-03770-KPF Document 110 Filed 09/25/17 Page 17 of 76
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`July 2011 administration of the New York bar. (Id.). Buoyed by these results,
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`in August 2011, Tosolini wrote a letter to Michelle Greenberg-Kobrin,
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`Columbia’s Dean of Students, to see if LBE could return to Columbia’s
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`campus. (Id. at ¶ 70; Ex. 5). Greenberg-Kobrin asked for a list of all Columbia
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`students who had signed up for LBE’s course in the preceding two
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`years — “including students who ha[d] enrolled but then dropped out” — and
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`Tosolini complied. (Ex. 5). But “[d]espite the 100% pass rate provided to
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`Columbia by LBE,” Columbia opted to wait one year before making a decision
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`on whether to allow LBE back on its campus. (FAC ¶ 70; Ex. 6).
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`On September 28, 2012 — after LBE again unsuccessfully attempted to
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`return to Columbia’s campus — Tosolini wrote a letter to Dean David Schizer.
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`(FAC ¶ 71; Ex. 9). In it, Tosolini complained of the “active and ongoing case of
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`discrimination against [him] and [LBE] by certain members of the [Columbia]
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`administration.” (Ex. 9). He also, perhaps unwittingly, undercut LBE’s current
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`arguments regarding the singularity of its competition. In the First Amended
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`Complaint, LBE alleges that Tosolini’s letter took issue with “Polo’s continued
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`favoritism toward Barbri.” (FAC ¶ 71). In fact, Tosolini wrote that “Dean Polo
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`stated to [him] ... that she would recommend a major competitor over [LBE] to
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`her students,” but the letter does not identify that competitor by name. (Ex. 9).
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`And Tosolini added that he was “aware of … favoritism that continuously takes
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`place in favor of other major bar review companies at” Columbia. (Id.
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`(emphasis added)). Tosolini wrote that students had told LBE “about the other
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`bar review companies disparaging [LBE] to students, while they have display
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`Case 1:16-cv-03770-KPF Document 110 Filed 09/25/17 Page 18 of 76
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`tables on [Columbia’s] campus.” (Id. (emphasis added)). On October 5, 2012,
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`Lynn Beller, an Assistant Dean at Columbia, wrote Tosolini an e-mail in which
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`she explained that the decision to bar LBE from Columbia was made by a
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`committee that included Polo. (Ex. 10). Beller added that this committee had
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`decided to ban LBE from Columbia’s campus for the upcoming year. (Id.).
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`Undeterred, in July 2013, LBE sent to Greenberg-Kobrin a petition
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`requesting that LBE be allowed back on Columbia’s campus. (FAC ¶ 73; Ex.
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`11). Over 50 foreign students who received LL.M. degrees from Columbia in
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`2013 signed the petition. (FAC ¶ 73; Ex. 11). In December of that year, a
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`foreign student who received an LL.M. from Columbia in 2013, then passed the
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`New York bar after taking LBE’s course, e-mailed Polo to ask that LBE be let
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`back on campus. (FAC ¶ 73; Ex. 12). Neither the petition, nor the e-mail,
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`worked. (FAC ¶ 73).
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`Columbia continued to bar LBE from marketing on its campus through
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`the 2014 academic year. (FAC ¶ 75). To be clear, LBE still marketed its course
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`to Columbia students: For example, LBE held “an event off-campus”
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`(presumably in 2