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Baloney isn't just at the deli counter. Following last week's overhyped ExamSoft "barmageddon" story, Above the Law posted that law firms were actively "trawling" for class representatives in preparation for the inevitable lawsuits. You know how cartoon characters get dollar signs in their eyes? I imagine it's a lot like that.
Jay Edelson, of Edelson PC in Chicago, broke through the tape to become the first lawyer to file a class action against ExamSoft.
The complaint begins with a fair amount of bluster, including "[t]he total collapse of the ExamSoft upload system," "wholly insufficient infrastructure," and "emotional distress." Someone get the smelling salts! I may just swoon under all this stress! And that's just page two!
The real allegations come later: (1) Violation of Illinois' Consumer Fraud and Deceptive Business Practices Act; (2) Negligence; (3) Breach of contract; and (4) Unjust enrichment. Much of the lawsuit is predicated on the argument that ExamSoft should have known that thousands and thousands of people would all simultaneously try to upload their exam files, and they should have seen this coming!
Well, let's see: In July 2013, there were 59,589 bar exam takers, according to the National Conference of Bar Examiners. In 2012, there were 59,405, and in 2011, there were 57,074. You get the picture. There's been an increase in bar takers over the years -- but not by much, and in all those other years, there were no problems with ExamSoft.
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John McAlary, executive director of the New York State Board of Law Examiners, told Reuters there may have been 49,500 takers affected nationwide. The upshot of this is that ExamSoft likely wasn't caught woefully and recklessly unprepared for an onslaught of exam takers. It probably had the same infrastructure for handling exam uploads that it had last year, and the year before that, when the number of exam takers was roughly the same and there were no issues.
Even if the class action claims make out a prima facie case for all of those causes of action, how were any of the plaintiffs harmed? Phillip Litchfield, the person on the caption, ultimately did get his exam file uploaded. The statement of facts takes care to emphasize, however, that nobody really knows whether their files got uploaded. This, of course, is the problem with suing right now: No one knows their scores. The people who passed the bar exam will have suffered no damages, and the people who didn't pass will have to make the case that they failed either because their exams files weren't uploaded or because of the stress the whole situation caused.
Many states extended their deadlines to the next day, so it's likely the students who took to Twitter to complain ultimately got their exams in. But what better way for a brand-new lawyer to make a splash in the legal community than with a silly class action suit?
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