Antitrust Lawyer Blog Commentary on Current Developments

DOJ Alleges American Bar Association Violates Antitrust Consent Decree

On June 23, the DOJ filed a petition asking the U.S. District Court for the District of Columbia to hold the American Bar Association (“ABA”) in civil contempt for violating multiple provisions of a 1996 antitrust consent decree. The consent decree prohibited the ABA from misusing the law school accreditation process. The DOJ also filed a proposed order and a stipulation in which the ABA acknowledges the violations alleged in the Division's petition and agrees to reimburse the United States $185,000 in fees and costs incurred in the Division's investigation.
The proposed order is subject to court approval. This action underscores the degree to which the Antitrust Division takes compliance with court decrees very seriously. In June 1995, the DOJ filed an antitrust lawsuit against the ABA in U.S. District Court for the District of Columbia. In its complaint, the DOJ alleged that the ABA allowed its law school accreditation process to be misused by law school personnel with a direct economic interest in the outcome of accreditation reviews, resulting in anticompetitive conduct. In 1996, the court entered an agreed-upon final judgment prohibiting the ABA from fixing faculty salaries and compensation, boycotting state-accredited law schools by restricting the ability of their students and graduates to enroll in ABA-approved schools, and boycotting for-profit law schools. The final judgment also established the framework of structural reforms and compliance obligations. According to the petition, and as acknowledged by the ABA, the ABA violated six structural and compliance provisions in the 1996 consent decree on one or more occasions. Those provisions included requirements that the ABA: (1) annually certify to the court and the United States that it has complied with the terms of the final judgment; (2) provide proposed changes to accreditation standards to the United States for review before such changes are acted on by the ABA's Council of the Section of Legal Education and Admissions to the Bar; (3) provide briefings to certain ABA staff and volunteers concerning the meaning and requirements of the decree; (4) obtain annual certifications from certain ABA staff and volunteers that they agree to abide by the decree and are not aware of any violations; (5) ensure that no more than half of the membership of the ABA's Standards Review Committee be comprised of law school faculty; and (6) include a university administrator who is not a law school dean or faculty member on the on-site evaluation teams.