Also, the presentation of Themis’ survey emphasized the
disclaimer. As Kaplan’s expert said: “When respondents scrolled down to reach
the question, they were left with a view of the ad that is heavily focused on
the disclaimer. If respondents read the question and then looked back up to the
ad, the disclaimer is the first thing they would see (and possibly the only
part of the ad they would see).” The court found Kaplan’s arguments “highly
probative” (noting in passing that it saw no reason to distinguish a trademark
case accepting Kaplan’s position from a false advertising case).

 

Themis argued that, in any event, the ad was factually true
and facially unambiguous and therefore survey evidence of misleadingness couldn’t
be considered, apparently trying to invoke the Mead Johnson/Havana Club line of cases, but the court noted that
there was no “binding” authority supporting Themis’ argument.  (Also, if you need a footnote to clarify your
claim, your claim is not “facially” unambiguous.)  In any event, Themis failed to establish that
the pass rates were literally true.

 

Themis’ study, however, didn’t suffice to defeat Kaplan’s
motion, because it didn’t test the Themis ad at issue.  “Given this disparity in footnote prominence,
it is possible that a substantial number of the students who correctly answered
the question would not have answered correctly if presented with the much
smaller footnote of the actual Themis Ad at issue here.”  (Which makes my point about facial ambiguity.)  Themis argued that law students were trained
to read “fine print,” especially given the expense of bar prep and the
importance of passing the bar.  (I
routinely ask my students how many of them have read the full agreement between
them and the law school, or them and their landlords.  Spoiler: always some, never a lot.)  Moreover, “[n]o Themis student has ever
complained to Themis that Themis’ advertisements are misleading or deceptive.”  Those arguments were enough to reject Kaplan’s motion for summary judgment.  The court would not hold, as a matter of law,
that law students were unlikely to read footnotes signaled by asterisks “when
evaluating which expensive bar review course to choose to prepare for one of
the most important tests of their lives, especially when there is evidence that
no student has ever complained of being misled.”

 

Kaplan also argued that, even assuming that students read
the footnote, Themis’ ads were still misleading with respect to some
jurisdictions because of a lack of statistical significance.  (I think Kaplan should be arguing about practical significance,
but this is a common lawyers’ problem.)  For
example, Themis advertised that 100% of its students who were first time takers
and completed 75% or more of the course passed the July 2013 Washington D.C.
bar exam, compared to the DC-wide average of 71%. But that 100% pass rate was
based a population of four students, which couldn’t realistically show any
Themis advantage.  The court agreed that
comparing Themis pass rates to state/district-wide averages might imply that
the Themis pass rates were based on a sample size large enough to show significance
(statistical or practical).  A reasonable
jury could go either way.