U.S. District Judge William H. Pauley III of the Southern District of New York repeatedly cited the expert witness testimony of Nathan’s Dr. John Pisarkiewicz in his opinion denying Thomson Corporation a motion for summary judgment. He also cited Dr. Pisarkiewicz’s testimony in his opinion granting in part the plaintiff’s motion in the antitrust tying matter.
In March 2005, a class action was brought against Thomson Corp., producers of the bar exam preparation course BAR/BRI, for unlawful tying, monopoly leveraging, and unjust enrichment. Before tackling the question of class action certification, the court sought to resolve several merit issues. The main issue was whether there are two separate products—a tying product and a tied product—and whether each is in a separate relevant market. Here, the products in question are multistate bar exam preparation materials and single state materials. The plaintiff argued that Thomson made the sale of the multistate materials conditional on the purchase of single state materials
Judge Pauley cited Dr. Pisarkiewicz’s expert witness declaration, deposition testimony, and rebuttal report in his reasoning that there are indeed two separate products and two separate relevant markets. The Court acknowledged that Thomson may have sufficient market power, but was not convinced that the plaintiff had shown the power sufficient to prove a per se illegal tying arrangement.
The opinion in this matter (Park v. Thomson Corp., 05-CV-2931 (WHP)) may be found at 2007 U.S. Dist. Lexis 2001; 2007-1 Trade Cos (CCH) P 75,552.