Antitrust Law Daily Wrap Up, ANTITRUST—DNJ: Forced Divulgence of Social Security Number on GRE Tests Did Not Lead to Antitrust Injury , (Jan 30, 2013)

By E. Darius Sturmer, J.D.

A prospective graduate student could not maintain claims that a testing service, numerous educational institutions, and related associations (or their boards of directors) violated federal and New Jersey antitrust law, and committed several other torts, by ignoring his requests to take the “Graduate Record Examinations” (GRE) General Test and Subject Tests without having to provide his social security number to the administrators of the tests, the federal district court in New Jersey, has ruled in a not-for-publication opinion (Marin v. Landgraf, January 28, 2013, Shipp, M.).

The student contended that the testing service had acted, with respect to graduate admissions, as an agent of two universities to which he had applied, and further alleged that the administrator used unlawful practices such as price fixing and exclusive dealing to maintain its dominant position and to shut out competitors of every kind. Thus, he averred, his access to graduate school was foreclosed by the administrator’s denial of access to the exam without disclosure of his social security number. According to the student, this arrangement constituted a conspiracy to monopolize or an attempt to conspire to monopolize in violation of Sections 1 and 2 of the Sherman Act and those laws’ counterparts in the New Jersey Antitrust Act.

The problem with the plaintiff’s antitrust claims, in the court’s view, was that they did not allege any antitrust injury. The plaintiff’s assertion that the cumulative conduct of the testing service, a graduate school, and the affiliated application service that mandated use of the GRE test denied him the opportunity to take the test and apply to graduate schools. However, this alleged harm was not an antitrust injury because it did not arise from interference with the “economic freedom of participants in the relevant market.” The “[i]nability to take a standardized exam and apply to a graduate school is not grounded in any economic effect—higher prices or decreased output—that could result from an antitrust violation,” the court stated. Further, the complaint in force, presented no plausible facts to indicate that but for the alleged antitrust violation, exclusive dealings, the plaintiff would have been able to take the GRE without providing his social security number.

The court also rejected as frivolous claims that the alleged conduct amounted to interference with prospective business activities, violation of a New York state law regarding the privacy of social security numbers, or discrimination prohibited by 42 U.S.C. §1983.

The case is Civil Action No. 11-690 (MAS) (LHG).

Attorneys: Mel Marin, pro se. Andrew Robert Jacobs (Berman, Sauter, Record & Jardim, P.C.) for Kurt Landgraf.

Companies: Educational Testing Service; New York Institute of Technology; Physician Assistant’s Education Assn.

Cases: Antitrust NewJerseyNews