September 10, 2009 6:25 PM

Kaplan and BAR/BRI Win Split Victory in Advertising Catfight

Posted by Zach Lowe

If you've been in law school over the last year, you've see the Kaplan flyers boasting that students who took Kaplan's supplemental summer bar exam courses had a 90 percent pass rate, well above the 73 percent national average. 

Those same flyers reminded readers that rival prep company BAR/BRI prepares "the vast majority of test-takers" who sit for the annual bar exam, and concluded that, based on the gap in passage rates, "BAR/BRI is not enough!"

West Publishing, the parent company of BAR/BRI, was not pleased. West thought the ads led students to assume the average passage rate for BAR/BRI-prepped students is only 73 percent, and it argued that Kaplan's 90 percent passage rate was based on tiny sample sizes and misleading surveys. So they complained to the National Advertising Division, a division of the Better Business Bureau that serves as the ad agency's self-monitoring body.

Both sides can claim victory after NAD's recent decision. The division scolded Kaplan for presenting the statistics in a way that led students to believe only 73 percent of BAR/BRI students passed the bar when that's simply the national average, and BAR/BRI's passage rate is actually higher. (Kaplan had argued that they were merely presenting two separate facts--that the national passage rate on the summer exam is 73 percent, and that BAR/BRI claims to prepare the "vast majority" of test-takers. If readers put two and two together, Kaplan argued, that wasn't the company's intent).

But NAD said Kaplan can continue to trumpet that 90 percent passage rate over BAR/BRI's objections that the number was inaccurate. BAR/BRI argued that Kaplan weeded out potential low scorers and created a sample size so small the results were irrelevant. BAR/BRI also challenged the methodology behind Kaplan's claim that more test-takers considered Kaplan's prep questions the most "realistic." 

But NAD sided with Kaplan on each of those claims. They bought Kaplan's arguments that the sample sizes--1500 in 2007 and 1000 last year--were big enough, and that larger surveys from prior years had produced similar results. 

"We are pleased that the NAD's findings validate our research on both of the major points BAR/BRI challenged--that our 90 percent summer bar passing rate is 17 percentage points higher than the national average, and that students found our questions to be the most realistic," a Kaplan spokeswoman says.

In regard to the adverse sections of the ruling, Kaplan says it will "take them into account in future advertising."

Why all the acrimony? It may have something to do with the fact that last year Kaplan introduced full-service bar exam prep courses in New York, New Jersey and Florida in addition to its nationwide supplemental courses that focus on the multibar section of the exam. Those full service courses are intended to compete with BAR/BRI's offerings.

BAR/BRI did score a victory on this point: NAD ruled that Kaplan's ads were misleading in indicating that the 90 percent passage rate applies to its new full-service courses, when in fact it only applies to its supplemental courses. NAD said Kaplan should stop leading consumers to believe otherwise.

What happens if Kaplan just ignores this ruling? Well, NAD has no punitive enforcement power, but it can forward complaints to the Federal Trade Commission if a company flouts its recommendations.

Additional reporting by Nate Raymond.

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