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Assessment Technologies Institute, LLC v. Parkes

United States District Court, D. Kansas

December 9, 2019

ASSESSMENT TECHNOLOGIES INSTITUTE, LLC, Plaintiff,
v.
CATHY PARKES, d/b/a LEVEL UP RN, Defendant.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Plaintiff Assessment Technologies Institute, LLC's (“ATI”) Motion for Preliminary Injunction (Doc. 13) and Defendant Cathy Parkes (“Parkes”) Motion to Strike or Alternatively Motion for Leave to File a Surreply (Doc 44). ATI seeks to enjoin Parkes from continuing to sell nursing-education study cards and placing nursing-education videos on YouTube or elsewhere that infringe on ATI's copyrights and/or misappropriate ATI's trade secrets in breach of its contracts with Parkes. ATI further requests Parkes be ordered to remove certain nursing-education videos from YouTube. These matters are fully briefed, and the Court heard a full day of evidence and argument on plaintiff's preliminary injunction motion on November 12, 2019. The Court has considered the parties' briefs, the evidence adduced at the hearing, the parties' oral arguments and is prepared to rule. Given that some, but not all, portions of Parkes' nursing-education materials are likely to infringe on and misappropriate trade secrets of ATI's programs, the Court grants in part and denies in part ATI's motion for preliminary injunction. The Court denies Defendant's motion to strike and grants its alternative motion to file a surreply.

         I. Introduction

         ATI spent years and millions of dollars developing, maintaining, and improving a package of products that includes review materials, assessment and remediation methodology, practice examinations, actual proctored examinations, and myriad other study tools including electronic flash cards and various types of video presentation. ATI's proctored examinations are not only actual tests that measure student performance, but are designed, through a proprietary algorithm developed by ATI, to measure deficits and performance that are addressed through focused remediation by ATI.

         ATI has a client base exceeding 50% of the 4000 nursing-education providers in the United States as well as some international clients. Defendant Cathy Parkes, who matriculated at a nursing school in 2013-2015 that used ATI's products, including practice and proctored examinations, continued to use her ATI-issued account after she had passed her licensing examination-the National Council Licensure Examination for the licensing of nurses in the United States (“NCLEX”)-and became a registered nurse. ATI claims that Parkes breached her contract with ATI, entered into back when she was a nursing student and purchased the ATI materials, agreeing to ATI's terms and conditions to not use or disclose ATI's materials directly or derivatively.

         Beginning in late 2017, Parkes began offering YouTube videos that discussed some of ATI's materials. Upon ATI's request, Parkes removed the videos from YouTube. But Parkes replaced these with new videos that ATI claims infringe on its copyrights and misappropriate its trade secrets, by revealing in a coded fashion what test questions and answers students would encounter on ATI proctored examinations. In 2018, Parkes began selling study flash cards that ATI claims infringe its copyrighted Review Modules. ATI further alleges that this misappropriation of its actual test questions and answers-its trade secrets-has harmed ATI's reputation surrounding the integrity of its tests and its assessments.

         Nursing education involves core concepts that are recognized broadly in the field and that nursing graduates are expected to master, such that they can pass the NCLEX. ATI materials, like the many textbooks it referenced in its materials, and like other nursing textbooks and educational materials in the record, cover these core concepts, which ATI organized and compiled around nine Review Modules. There is no dispute that despite the common core of knowledge and subject matters covered in nursing education materials, such materials are copyrightable. Indeed, Defendant claims that her flash cards and videos are copyrighted or copyrightable. The questions presented here are whether Defendant copied ATI's undisputedly copyrighted materials, which undisputedly represent a compilation, and whether Defendant misappropriated portions of ATI's materials that are protected trade secrets.

         II. Findings of Fact

         The Court heard a full day of evidence on ATI's motion for preliminary injunction. ATI called four witnesses at the hearing: Dr. Jerry Gorham, Vice President of Assessment Sciences for Ascend Learning, LLC, the parent company of ATI; Mark Williams-Abrams, Chief Product Officer of ATI; Michael Lynch, Senior Vice President of the ATI Nursing Education division of ATI; and Jaime Fiorucci-Hughes, Vice President of Strategic Partnerships/Global Markets for ATI Nursing.

         Parkes called one expert witness, Dr. Jessica Coviello, Associate Professor of Nursing at Yale School of Nursing. Cathy Parkes did not testify at or attend the hearing. After considering the parties' briefs, witness testimony, and documentary evidence, the Court makes the following findings of fact for purposes of deciding the preliminary injunction motion.

         A. ATI

         Plaintiff ATI licenses nursing-education materials to nursing schools nationwide. It provides services to over half of nursing schools in the United States. Its offerings are multifold: it licenses nursing program curriculum including products such as textbooks, videos, digital study cards, “ATI Review Modules, ” and “ATI Proctored Exams, ” and “ATI Practice Exams” that assess preparedness for the NCLEX. Nursing schools can use the ATI exams to function as nursing students' graded exams for purposes of obtaining their degree. ATI also offers “ATI Pulse” and “ATI Comprehensive Predictor, ” which is a predictive algorithm and remediation program to help students assess their preparedness for the NCLEX and identify areas for improvement. ATI owns copyrights to these materials.

         B. Cathy Parkes

         Defendant Cathy Parkes is a registered nurse in California, and the creator of Level Up RN, formerly called “Pass the ATI.” Parkes attended an accelerated nursing program at a California nursing school from 2013-2015 that licensed ATI's products, including practice and proctored exams. To access ATI materials required by her school, Parkes was required to create and access an ATI account. When she did so, she expressly agreed to ATI's Terms and Conditions by clicking “I agree.” These included terms prohibiting disclosure, copying, selling, distributing, or creating derivative works of ATI educational material. Parkes agreed to ATI's Terms and Conditions a second time in 2016 so she could continue accessing the account after her graduation. Parkes continued to access her ATI account for about three and a half years after graduation.

         In November 2017, after graduating nursing school, Parkes created the website “PassTheATI.com, ” a YouTube account titled “Pass the ATI, ” and social media accounts labeled “Pass the ATI.” Parkes uploaded videos of herself, allegedly discussing ATI Review Modules. In May 2018, Parkes began selling study cards with one deck corresponding to each of ATI's nine Review Modules.

         In October 2018, ATI sent Parkes a cease and desist letter, notifying her that “Pass the ATI” infringed on ATI's trademark rights. In response, Parkes did not change her content, but instead changed her domain name to “LevelUpRN.com.” However, “PassTheATI.com” still redirects users to LevelUpRN.com.

         On May 10, 2019, ATI sent a second infringement notice demanding Parkes remove her content from YouTube. On June 27, 2019, Parkes removed all her YouTube videos, and began uploading replacement videos that made no express reference to ATI. These are the videos now at issue. The parties engaged in settlement discussions from May 30-July 12, 2019. ATI filed suit six weeks after those discussions ended.

         C. ATI Review Modules

         Nursing schools that license ATI exams may require their students to purchase ATI's student materials, including Review Modules. ATI's Review Modules are intended to help students prepare for ATI exams, and ultimately the NCLEX. There is one Module for each of the nine ATI Proctored Exam topics:

• RN Fundamentals
• RN Leadership
• RN Nutrition
• RN Adult Medical Surgical
• RN Community Health
• RN Maternal Newborn
• RN Mental Health
• RN Nursing Care of Children .RN Pharmacology

         As Mr. Williams-Abrams testified, ATI has curated, digested, and presented information in a unique way within its modules, while retaining the accuracy of nursing information. Industry experts and ATI's own experts determined several years ago that dividing this material into nine modules was the most effective way to convey it to students. Creating the modules requires research, selection, and compilation of materials into a useable format. Specifically, it takes sixty or more employees working for two years to build one Review Module from scratch at a cost of $600, 000. It costs ATI $400, 000 to maintain each of its Modules with updates every three years. To create and maintain its Modules, ATI consults external contractors who are nursing experts, advisory boards, health care providers, as well as external sources such as the World Health Organization and the Centers for Disease Control and Prevention.

         D. Similarities Between Parkes' Study Cards and ATI Review Modules

         The organization, structure and depth of information contained in Parkes' study cards is similar to ATI's Review Modules. Examples ATI uses to illustrate nursing concepts are also found in Parkes' material to illustrate those same concepts. Parkes' study decks correspond in name, number, and subject-matter to each of ATI's Review Modules. Parkes' study decks are called:

• Nursing Fundamentals
• Nursing Leadership
• Nutrition for Nursing
• Medical Surgical Nursing
• Community Health Nursing
• Maternal Newborn Nursing
• Mental Health Nursing
• Pediatric Nursing
• Pharmacology[1]

         The names of Parkes' nine study decks align with the names of ATI's Review Modules- in some instances they are identical and in others, almost identical. For example, one ATI Review Module is titled “Nutrition for Nursing” just as Parkes' corresponding deck and video are titled “Nutrition for Nursing”; ATI's “Fundamentals for Nursing” is Parkes' “Nursing Fundamentals” in both her card deck and video.[2] Additionally, ATI has a Review Module named “Nursing Leadership and Management, ” which covers patient conflicts and torts against patients that commonly arise in the nursing profession. The Review Modules' chapters are titled “Managing Client Care, ” “Coordinating Client Care, ” “Professional Responsibilities, ” “Maintaining a Safe Environment, ” and “Facility Protocols.”[3] Parkes' corresponding deck and video are both titled “Nursing Leadership” and cover the same topics.[4]

         Parkes' study cards are also similar in structure to ATI's Review Modules. ATI has nine Review Modules, and Parkes has nine corresponding study decks. Parkes' units within her study decks also track with the units in ATI's Review Modules. For example, Mr. Williams-Abrams testified Parkes' Maternal Newborn Nursing study cards contain the same four units as ATI's Maternal Newborn Module. The names of Parkes' units also correspond with ATI's naming conventions. Specifically, two of ATI's units in the Maternal Newborn Nursing Module- “Antepartum Nursing Care” and “Postpartum Nursing Care”-are labeled with the exact same title in Parkes' corresponding study deck.[5] The other two units in this ATI Review Module are “Intrapartum Nursing Care Section: Labor and Delivery” and “Newborn Nursing Care.”[6]Parkes' titles for these units are “Labor and Delivery” and “Newborn Assessment and Care, ” respectively.[7] As Mr. Williams-Abrams testified, Parkes mirrors the unit, chapter and sub-topic structure of ATI. This structure is not a generic presentation. For example, ATI has four units in its Maternal Newborn Review Module, and twenty-seven chapters; no other textbooks contain that same structure. In her testimony, Dr. Coviello repeatedly characterizes this and similar material as merely common core curriculum for nursing schools not protected by copyright. But, Dr. Coviello is offered as an expert in her capacity as a nurse practitioner and nursing educator. Accordingly, the Court does not consider her opinions on copying and copyright law to be probative on the issue of similarity.

         Similarities between ATI and Parkes' content are also present at the micro level. For example, Mr. Williams-Abrams testified that ATI presents the condition “placenta previa” in a way very different from nursing textbooks. For example, one text-Pillitteri-organizes its presentation of this condition into headers over several pages of content, while ATI presents it in a brief format with just essential information a student needs to pass ATI tests. Notably, Parkes mirrors ATI's unique presentation.[8]

         Many specific examples that ATI uses to illustrate nursing concepts also appear in Parkes' study cards. Mr. Williams-Abrams testified that Parkes copied unique examples for nursing concepts that ATI developed with its consultants. Parkes uses the example of a father who loses his job and subsequently destroys his child's toy to demonstrate “displacement.”[9] This is the exact illustration of “displacement” offered by ATI.[10] Parkes admitted this appeared in her study card, arguing it was “at worst de minimis copying” and has since removed it from her deck.[11] Parkes uses the same example of “stuporous behavior” that appears in ATI's Review Modules: “rubbing the sternum.”[12] Parkes also uses ATI's example of a man bringing his wife flowers following an instance of domestic abuse; both examples appear under the subhead “undoing” in ATI's Mental Health Module and Parkes' Mental Health card deck.[13]

         Other similar examples of verbatim, rephrased, or reworded content are present in the record. They appear in the following study card decks that correspond to ATI Review Modules: Community Health Nursing, [14] Nursing Fundamentals, [15] Nursing Leadership and Management, [16]Maternal Newborn Nursing, [17] Mental Health Nursing, [18] Pediatric Nursing, [19] and Nutrition for Nursing.[20] These specific examples of verbatim, rephrased, or reworded content that appear in Parkes' study cards also track the same order of progression as ATI's material. However, ATI presents no particular examples of copying from its RN Adult Medical Surgical Review Module to Parkes' Medical Surgical Nursing study card deck. And, ATI points to just one example of rephrased or reworded copying in Parkes' Pharmacology study deck.[21]

         Dr. Coviello testified that to the extent there is any similarity between ATI and Parkes' material, it is limited to general nursing knowledge that is not owned by ATI or Parkes. She testified that Parkes' material provides nursing facts that can be reviewed and memorized, and are accessible to a different type of learner than ATI's materials. Further, Dr. Coviello testified the similar examples that ATI points to are merely nursing facts. For example, she testified the way that ATI or Parkes describes the “placenta previa” is the same way it would be described in other authorities. However, Dr. Coviello points to just one source-the Loudermilk text-that discusses placenta previa; the text covers the condition in a pages-long explanation, unlike ATI's and Parkes' brief, bulleted summary of the condition. The Court accordingly finds Dr. Coviello's testimony is not evidence of an uncopyrightable nursing fact, but rather evidence that nursing concepts can be organized in unique and varying ways, capable of earning copyright protection. Further, Dr. Coviello testified “rubbing the sternum” is something commonly taught in acute care, and not an example of “painful stimuli” unique to ATI. Yet, her testimony on this subject centers around the fact she has taught this nursing practice in acute care; she does not testify that this example is the hallmark for “painful stimuli, ” routinely used by nursing texts. In fact, she points the Court to no other sources that use “rubbing the sternum” as an example of painful stimuli. Thus, the Court does not consider this testimony as evidence that Parkes did not copy.

         Parkes' units in her Mental Health study card deck track with ATI's units within its Mental Health Review Module.[22] Dr. Coviello testified this is because it is a natural sequence- starting with basic knowledge and progressing toward population-based knowledge. She testified this order of progression aligns with the content that nurses should know, and this is evidenced by similar presentation in the mental health section of another textbook, Townsend.[23]

         The Court finds that while ATI's module and the Townsend textbook follow the same sequence of information, the structure of presentation of that material, as well as how the material is titled and classified, is different. On the other hand, Parkes materials largely follow the same sequence, structure of presentation, titles and classifications of ATI's materials.

         Specifically, Townsend's unit titled “Psychiatric/Mental Health Nursing Interventions” is aligned in the exhibit with ATI's “Traditional Nonpharmacological Therapies” unit. Parkes' similar unit is titled “Non-pharmacological Therapies.”[24] Exhibit 28-38 aligns Townsend's “Care of Clients with Psychiatric Disorders” unit with two ATI units: “Psychological Disorders and Psychopharmacological Therapies.”[25] Parkes' units in her study cards, like ATI's materials, are divided into two units, called “Mental Health Disorders” and “Pharmacological Therapies.”[26]And, while the Townsend text does not have a unit that corresponds to ATI's “Psychiatric Emergencies, ” nor the chapter within ATI's Specific Populations unit titled “Care of Clients Who Are Dying and/or Grieving, ”[27] Parkes' final unit in her Mental Health Study deck is titled “Loss/Grief and Psychiatric Emergencies.”[28]

         Some of Parkes' study cards material has an original element. Parkes materials include a few instances of mnemonic devices to aid in memorization in Parkes' cards; ATI does not use mnemonics.

         E. ATI Review Modules Are Unique Among Nursing-Education Resources

         ATI's Review Modules are markedly different from prominent nursing texts in terms of organization, structure, and depth of information presented. As Mr. Williams-Abrams testified, ATI arranges its materials differently than a typical textbook; textbooks contain a thorough presentation of curriculum while ATI presents only the most essential information. Side-by-side comparisons of tables-of-contents in nursing texts and ATI's Review Module units show differences in the volume of content discussed in each source, and how material is organized and named.[29]

         For example, differences exist between ATI's Maternal Newborn Review Module and Pillitteri, Loudermilk, and Varney's Midwifery texts excerpts on the same subject. While each of these sources presents childbearing in chronological order-labor and delivery after antepartum care, but before newborn care-each source conveys the subjects in different depths, structures, and type and number of sub-topics covered or not covered. Pillitteri's maternal newborn text is organized into three units with a different unit structure and chapter organization than ATI; Loudermilk uses an eight-unit structure, unlike ATI's four-unit structure; and Varney's Midwifery Parts 1-3 are not covered in ATI's Maternal Newborn Nursing Module.

         Although Dr. Coviello testified ATI follows the same presentation structure as some nursing texts, she also acknowledged differences between ATI and the various textbooks. Varney's, Pillitteri's, and Loudermilk's texts cover material that is not covered in ATI's Review Module. And, Dr. Coviello acknowledged that she did not include a side-by-side comparison of Loudermilk and ATI's Maternal Newborn Review Module in her declaration because Loudermilk would need to jump over hundreds of pages to arrive at the same sequence as ATI's presentation of material.

         None of the five school curricula that Dr. Coviello reviewed divided their material into the same nine topics as ATI Review Modules, or even into nine topics at all. Yet, Parkes' study cards track with ATI's structure. Further, there is no evidence that Parkes gathered her material from any other sources besides ATI. Parkes did not testify; and in her declaration, Parkes does not assert that she gathered her material from any other sources. And, Dr. Coviello testified she never spoke to or requested to speak to Parkes regarding sources Parkes relied on in creating her study cards or videos.

         F. ATI Proctored and Practice Exams

         The security of ATI's exams is essential to its business because its clients-nursing schools-purchase licensed ATI exams to accurately assess their students and prepare them for the NCLEX. Such assessment requires that exam “test items” and answers are not readily disclosed to students. Dr. Gorham testified the term “test item” is used instead of “question” because not every item asks a question, but rather requests the examinee to do a task, such as choose the best response to a nursing situation. These test items and answers are highly secure- even faculty are not allowed to see them. ATI protects the secrecy of its proctored exams by following the Copyright Office's Secure Test Procedures, maintaining a strictly controlled test environment, requiring proctors and students to enter confidentiality agreements prior to accessing an ATI Proctored Exam, and employing an ATI Test Security Team that further preserves this confidentiality. Parkes does not contest that she twice agreed to ATI's Terms and Conditions that expressly prohibit disclosure of information contained in ATI's exams.

         Parkes' uploaded YouTube video playlists that correspond to ATI's nine Review Modules and Proctored Exam subjects as follows:

• Nursing Fundamentals
• Nursing Leadership
• Nutrition for Nursing
• Medical Surgical Nursing
• Community Health Nursing
• Maternal Newborn (OB) Nursing .Mental Health Nursing .Pediatric Nursing .Nursing Pharmacology[30]

         Dr. Gorham testified ATI began investigating Parkes' videos after a nursing-school client contacted ATI, expressing concern that Parkes' videos are teaching to the test. His investigation team went through each video and identified places where Parkes signaled examination content, then compared it to exam items that Parkes had been exposed to.

         During its investigation, ATI found a number of instances in Parkes' videos where Parkes gave verbal signals that she was disclosing an answer to an ATI exam question. ATI was alarmed that Parkes highlighted these answers in her YouTube videos with oral flags such as “this is super important for your test, ” “I would definitely be familiar with [] for your exam, ” “I would definitely remember [], ” and its “super important that you know [].”[31]

         ATI introduced a chart that shows time stamps of instances where the investigation found Parkes signaled a proctored item next to the test question or item disclosed. ATI's Information Technology group logged over 240 instances of Parkes accessing ATI products from 2013 to 2019. While Parkes was a nursing student, from 2013-2015, she was exposed to ATI's proctored exams, which her nursing school used as actual exams for its students. After she graduated in 2015, Parkes no longer had access to actual proctored exams through her ATI account, but she could still access practice exams. After her 2015 graduation, Parkes took about twenty-seven ATI Practice Exams. Dr. Gorham testified that he can think of no reason why someone would access ATI's materials after obtaining their nursing license unless they were harvesting information from the products.

         ATI test items use a multiple-choice format. Each test item is followed by four suggested answers, of which the examinee tries to select the correct one. There could be more correct answers to the question posed, but ATI lists only one correct answer (per question) among the possible answers.

         For each of the instances of disclosure identified in the investigation, Parkes had been exposed to the proctored exam item on one of the tests. During these instances of disclosure, Parkes discusses similar material in her YouTube videos that correspond in name and substance to ATI's nine Review Modules and test subjects. For example, an ATI Proctored Exam question asks: XXXXX The possible answers are: XXXXX [32] The correct answer is XXXXX Parkes flagged this test item in one of her XXXXX videos as XXXXX [33] Specifically, she says:

         XXXXX

         As Dr. Coviello testified, the symptoms of XXXXX are important for nurses to know because a XXXXX can indicate that the XXXXX is not XXXXX which can be fatal to a patient. Yet, Dr. Coviello did not explain why Parkes would focus on this, but not other important information related to a patient with The Court finds that Parkes focused on this particular information because she knew the content of ATI's test items and answers.

         Another ATI Proctored Exam question asks: XXXXX The possible answers are[34] XXXXX The correct answer is[35] Similarly, Parkes flags XXXXX as an important consideration prior to XXXXX Specifically, she says: XXXXX [36]

         ATI offers thirty-two additional instances of Parkes discussing a nursing subject by focusing on the specific information that ATI tests on, including the precise answer ATI seeks to that test item.[37] The examples offered by ATI occur in Parkes' Medical Surgical Nursing videos 2, 4, 14, 20, 22, 25, 26 and 34; Nursing Pharmacology videos 4, 8, 17, 20, and 39; and Maternal Newborn (OB) Nursing videos 2, 5, 6, 8, 10 and 12.[38] Dr. Gorham testified Parkes is referring specifically to the ATI exams when she says “test;” the key difference from the videos she removed and replaced on YouTube, in which she explicitly referenced the “ATI” exams.

         The Court finds, as Dr. Gorham testified, that Parkes is not just teaching nursing facts in these videos. Rather, Parkes' videos focus on the key to a specific test item rather than the subject-matter generally. For example, with respect to XXXXX Parkes points out the answer to the ATI question- XXXXX -rather than other information important XXXXX As Dr. Gorham testified, there are other important nursing facts surrounding XXXXX including that a patient needs to be XXXXX because it allows doctors to XXXXX While Parkes mentions XXXXX she does not discuss why it is important medically, as she does with XXXXX .

         G. Evidence of Harm to ATI

         Mr. Lynch testified that the nursing-education industry is highly competitive because there are only 4000 nursing programs, and therefore a limited number of potential clients. The industry is reputation-driven because nursing-school clients choose a test-preparation company such as ATI or Kaplan based on NCLEX pass rates of schools that use their products. An NCLEX pass rate is important to nursing school clients because a minimum pass rate is required to maintain their accreditation. ATI's reputation is dependent upon the security and reliability of exams that predict how a student will perform on the NCLEX. As Mr. Lynch testified, if ATI's reputation for security and reliability of its products is compromised, ATI has no value to bring to its clients.

         Mr. Lynch testified that two categories of ATI products are particularly harmed by Parkes' conduct-products in the “ATI Learning Loop” and “ATI Pulse.” The “ATI Learning Loop” educational philosophy allows students to apply information at a higher level rather than just learning facts. This process detects areas of weakness in students' study and directs them to remediation. The review assessments and Proctored Exams are part of this Learning Loop process. ATI has roughly twelve psychometricians that are experts at writing higher-level questions like those that appear on the NCLEX.

         ATI Pulse is a proprietary predictive algorithm that helps students understand their probability of passing the NCLEX. It took three to four years and over $100, 000 to create the predictive algorithm, and the ongoing process of supporting it costs millions of dollars. It is used in conjunction with the nine proctored assessments to which ATI's nine Review Modules correspond. In addition to predicting NCLEX pass rates, ATI Pulse encourages students to be more engaged with the Learning Loop process; based on how a student performs on an ATI exam, Pulse gives the student feedback and directs them to remediation tools.

         Mr. Lynch testified that Parkes' videos and study cards harm ATI's business in a significant way because she is teaching to the test and signaling how to answer specific questions. This jeopardizes the validity and reliability of the assessment and yields false or inflated scores when students have not truly mastered the content. Parkes' conduct harms the reliability of ATI's predictive algorithms and harms students who are given false probabilities of their NCLEX pass rate based on inflated preliminary assessment scores.

         These concerns are evidenced by client communications. Mr. Lynch has received in-person feedback and emails from clients expressing concerns about whether ATI's exams have been compromised. When a complaint like this is received, he testified, it is directed to the ATI security team to investigate. Mr. Lynch testified to specific emails from ATI clients that caused particular concern. Specifically, a faculty member at XXXXX wrote: “My greatest concern is it appears she is teaching them how to pass a test, advertising her proficiency level 3 performance. This may significantly impact the ATI Learning Loop process.”[39] As Mr. Lynch testified, this is concerning to ATI because Parkes has inside knowledge of tested material and is sharing it, which impacts the ATI Learning Loop Process. Specifically, with a client like XXXXX that has XXXXX campuses and hundreds of faculty members, it jeopardizes ATI's business of selling secure exams when someone else is selling a shortcut to the test after having already taken it herself.

         A second email from Professor Berlynn Ching of Golden West College School of Nursing expressed similar concerns:

[T]he students have told me that they would have never been able to answer certain test questions without Cathy specifically discussing it. An example that the students told me about was: XXXXX do not go together as I can also confirm that when I reviewed the “Mastery of Content” (confidential sheet that is for an educator's eyes only), ...

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