ExamSoft Settlement

May 20th, 2015 / By Deborah J. Merritt

A federal judge has tentatively approved settlement of consolidated class action lawsuits brought by July 2014 bar examinees against ExamSoft. The lawsuits arose out of the well known difficulties that test-takers experienced when they tried to upload their essay answers through ExamSoft’s software. I have written about this debacle, and its likely impact on bar scores, several times. For the most recent post in the series, see here.

Looking at this settlement, it’s hard to know what the class representatives were thinking. Last summer, examinees paid between $100 and $150 for the privilege of using ExamSoft software. When the uploads failed to work, they were unable to reach ExamSoft’s customer service lines. Many endured hours of anxiety as they tried to upload their exams or contact customer service. The snafu distracted them preparing for the next day’s exam or getting some much needed sleep.

What are the examinees who suffered through this “barmageddon” getting for their troubles? $90 apiece. That’s right, they’re not even getting a full refund on the fees they paid. The class action lawyers, meanwhile, will walk away with up to $600,000 in attorneys’ fees.

I understand that damages for emotional distress aren’t awarded in contract actions. I get that (and hopefully got that right on the MBE). But agreeing to a settlement that awards less than the amount exam takers paid for this shoddy service? ExamSoft clearly failed to perform its side of the bargain; the complaint stated a very straightforward claim for breach of contract. In addition, the plaintiffs invoked federal and state consumer laws that might have awarded other relief.

What were the class representatives thinking? Perhaps they used the lawsuit as a training ground to enter the apparently lucrative field of representing other plaintiffs in class action suits. Now that they know how to collect handsome fees, they’re not worried about the pocket change they paid to ExamSoft.

I believe in class actions–they’re a necessary procedure to enforce some claims, including the ones asserted in this case. But the field now suffers from so much abuse, with attorneys collecting the lions’ share of awards and class members receiving relatively little. It’s no wonder that the public, and some appellate courts, have become so cynical about class actions.

From that perspective, there’s a great irony in this settlement. People who wanted to be lawyers, and who suffered a compensable breach of contract while engaged in that quest, have now been shortchanged by the very professionals they seek to join.