Well, it’s only taken a week for ExamSoft to go from a random company whose name you couldn’t remember one week after the bar exam to “ExamSoft: Destroyer Of Worlds.” Today we can report that the first lawsuit has been filed against the company. It won’t be the last.
This is going to be a fun ride, and we are only at the beginning. By next week I predict the counter-narrative to get rolling. Maybe a dean will pen a New York Times op-ed about how kids these days, with their computers and text machines and MyBooks, don’t know how to take “personal responsibility.” Somebody will say that it is the test takers’ fault, for buying a program and having the audacity to believe that it would work as intended.
Looking deeper into my crystal taco, as lawsuits proliferate, there will be a circuit split. The Second and the Seventh will affirm decisions against ExamSoft, while the Third and Fifth will reverse. The Third will say that we need to learn a powerful lesson about our over-reliance on technology, while the Fifth will hold that a reasonable person wouldn’t try to write an essay in the clouds: “that’s pure hogwash,” it’ll say.
Eventually this will get to the Supreme Court, which will rule, 5-4, to relieve ExamSoft of liability. Writing for the majority, Justice Alito will argue: “When a person, such as ExamSoft, fails so spectacularly in its duties, the key question is to determine if that person is a man or a woman. If male, the person’s own sense of shame will be punishment enough. But if female, the Court must teach a lasting lesson. Here, we find ExamSoft to be a male person, and therefore must reverse the trial courts. The students should clearly incorporate themselves if they wish to pursue further remedies.” Concurring in part, Scalia will tell us that the bar has become too easy of a test and ExamSoft merely introduced a greater barrier to entry. Breyer’s dissent will be something like: “I was robbed once just like these test takers and, goodness gracious, it was scary.”
Okay, you’re welcome. Now that we all know where this thing is going, we can savor the wonderful journey together. Let’s look at the first lawsuit….
In Litchfield v. Examsoft Worldwide, plaintiff Phillip Litchfield, represented by Edelson PC (disclosure: an ATL advertiser), seeks to bring a class-action complaint against ExamSoft. I’m going to go on and assume you are all familiar with the facts here. Let me highlight the causes of action. You can read the full complaint on the next page:
- Violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS §§ 505/1, et seq.)
- Breach of Contract
- Unjust Enrichment
I think the plaintiffs have good arguments for all of those. I feel like paragraphs 39-42 of the complaint really explain all you need to know about the position of ExamSoft users:
39. Had Plaintiff and the Subclass known of Defendant’s inability to upload their exam results in a timely and reliable manner, they would not have purchased the SofTest program.
40. By omitting the fact that its product would not act in a reliable and predictable manner in uploading exam results, Defendant violated section 510/2(a) of the ICFA.
41. Based upon Defendant’s omissions described herein, Plaintiff and the Subclass reasonably expected that the SofTest program would reliably and timely upload their exam results. These are reasonable and objective consumer expectations based upon the circumstances. It is equally reasonable for a consumer to believe that ExamSoft would design and maintain its internal systems in a commercially reasonable manner that would appropriately handle the demand of Exam Day and adequately process exam responses.
42. Plaintiff and the Subclass reasonably relied upon Defendant’s omissions in paying to purchase Defendant’s SofTest program and using it on Exam Day
That’s really the heart of it, right? If ExamSoft gave any indication that its software could crap out so spectacularly, people wouldn’t have bought the product. I don’t know if that rises to the level of fraud in Illinois, but at the very least it reads like a textbook breach of contract.
But ExamSoft has yet to respond. And really, that’s why I’m so excited about this lawsuit. ExamSoft will have to actually respond and defend itself. It’s been a week. ExamSoft still hasn’t properly explained itself, apologized, or given any indication about what it intends to do to make up for its failures to those affected. All it has done so far is hide behind some boilerplate language about no refunds, and that is just not going to cut it in front of a judge.
Illinois is just one state. So many other jurisdictions await ExamSoft and their lawyers. And who in the hell is going to use their software in February? I cannot wait to see how ExamSoft tries to spin all of this.
(Check out the full complaint on the next page. What do you think of it?)