As expected, the ACC has filed a motion to dismiss the FSU amended complaint. We saw with the response to the AG that the ACC appears to be fully vested in challenging jurisdiction overall. I was and am surprised, but I had never looked into it with a ton of detail. I thought the issue was mostly an issue of pleading, but the ACC takes a strong shot at the idea there is simply no jurisdiction here. My gut tells me that jurisdiction will be found, but I am not sure.
The ACC then argues the ripeness issue as to challenging the withdrawal payment. They say until we announce we are leaving and trigger it, it's not an issue. I think this will be rejected.
They then move to dismiss particular claims, alleging they do not "state a cause of action." The first issue is the withdrawal payment issue. They make the same arguments as before. It would be good to read them. There are some specific issues in NC that would be very bad for FSU if they apply (and they likely do). For example, under NC law it could be that this is not even subject to the illegal penalty analysis. There is NC law saying that a withdrawal payment is not the same as a liquidated damages penalty, especially when it's not tied to "breach."
Next it argues that the FSU breach of contract claims are not valid. A lot of it seems on point. Like I don't see how FSU can rely on the laudatory language as binding contract terms. And I think most of the claims have a major issue - that FSU was engaged in all those decisions. I think a few of these may get bounced now, but expect Judge Cooper to leave some breach of contract claims standing.
FSU had added a new count in the Amended Complaint expressly challenging jurisdiction in NC. The ACC argues that the Florida court cannot rule on the issue before a NC court. That is probably right. That issue will have to be appealed through the NC courts and possibly into the federal courts if there is a base jurisdiction issue to resolve.
The ACC seeks again to dismiss the restraint of trade count. I think that will be dismissed. It really is not a legal principle that applies here.
The Amended Complaint also has a count claiming the Grant of Rights is unenforceable for other reasons. One is the claim FSU has a fundamental right to leave so it's not consistent. I think this is a weak argument, but I am not sure it's a dismissal argument. Next is the suggestion the contracts were never approved because they are signed by the president. I think this is weak, and it may be an issue the court can and should address this early. It is just a legal question. FSU also claims the GoR was not supported by consideration. I think the ACC argument on this is stronger. It may have been piss poor consideration, but there was consideration. The ACC does a good job citing a lot of law on how courts don't engage in sufficiency often. Next is the FSU claim that the penalties are overall just unconscionable. That may survive dismissal, but I am not sure where this would go. I think they would have to prove both procedural and substantive unconscionability, and I am not sure they can do that. The last thing the ACC moves to dismiss is the claim of contractual frustration of purpose. I suspect this will be dismissed. The applicable doctrine is not designed to protect parties from not taking into account expected or expectable changes in the market, economy, etc.
The ACC then moves to generally dismiss a lot based on the statutes of limitations and equitable defenses like laches or estoppel. I think they are all good defenses, but I am not sure they are solid enough to justify dismissal now.
I wonder if we will see this addressed 6/18 or if all this gets put on hold pending the cert petition.
The ACC then argues the ripeness issue as to challenging the withdrawal payment. They say until we announce we are leaving and trigger it, it's not an issue. I think this will be rejected.
They then move to dismiss particular claims, alleging they do not "state a cause of action." The first issue is the withdrawal payment issue. They make the same arguments as before. It would be good to read them. There are some specific issues in NC that would be very bad for FSU if they apply (and they likely do). For example, under NC law it could be that this is not even subject to the illegal penalty analysis. There is NC law saying that a withdrawal payment is not the same as a liquidated damages penalty, especially when it's not tied to "breach."
Next it argues that the FSU breach of contract claims are not valid. A lot of it seems on point. Like I don't see how FSU can rely on the laudatory language as binding contract terms. And I think most of the claims have a major issue - that FSU was engaged in all those decisions. I think a few of these may get bounced now, but expect Judge Cooper to leave some breach of contract claims standing.
FSU had added a new count in the Amended Complaint expressly challenging jurisdiction in NC. The ACC argues that the Florida court cannot rule on the issue before a NC court. That is probably right. That issue will have to be appealed through the NC courts and possibly into the federal courts if there is a base jurisdiction issue to resolve.
The ACC seeks again to dismiss the restraint of trade count. I think that will be dismissed. It really is not a legal principle that applies here.
The Amended Complaint also has a count claiming the Grant of Rights is unenforceable for other reasons. One is the claim FSU has a fundamental right to leave so it's not consistent. I think this is a weak argument, but I am not sure it's a dismissal argument. Next is the suggestion the contracts were never approved because they are signed by the president. I think this is weak, and it may be an issue the court can and should address this early. It is just a legal question. FSU also claims the GoR was not supported by consideration. I think the ACC argument on this is stronger. It may have been piss poor consideration, but there was consideration. The ACC does a good job citing a lot of law on how courts don't engage in sufficiency often. Next is the FSU claim that the penalties are overall just unconscionable. That may survive dismissal, but I am not sure where this would go. I think they would have to prove both procedural and substantive unconscionability, and I am not sure they can do that. The last thing the ACC moves to dismiss is the claim of contractual frustration of purpose. I suspect this will be dismissed. The applicable doctrine is not designed to protect parties from not taking into account expected or expectable changes in the market, economy, etc.
The ACC then moves to generally dismiss a lot based on the statutes of limitations and equitable defenses like laches or estoppel. I think they are all good defenses, but I am not sure they are solid enough to justify dismissal now.
I wonder if we will see this addressed 6/18 or if all this gets put on hold pending the cert petition.
