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
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
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
Violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS §§ 505/1, et seq.) Negligence 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
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
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.
(Check out the full complaint on the next page. What do you think of it?)
Litchfield v ExamSoft Worldwide – Class Action by PowersBooth
Earlier: The Inevitable Trawling For ExamSoft Class Action Participants Has Begun!
The Biggest Bar Exam Disaster Ever? ExamSoft Makes Everyone's Life Hard
Dear ExamSoft: Please Give Kids Their Money Back Before The Internet Murders You
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