More JAWS for INTO and USF

Sequels are rarely as good as the original but after a new hope with previous reports of dispute resolution between University of South Florida (USF)1 and INTO University Partnerships (INTO)1 we may have reached a point where the empire strikes back.  For new readers, USF gave notice to voluntarily dismiss its case against defendants INTO on 3 January 2023, on the basis that the defendants were “taking the actions that the Financing Corporation’s declaratory judgment lawsuit sought.”2  This followed a hearing on 16 December 2022 where USF’s motion for the appointment of a Receiver for INTO USF, INC had been heard.  Eventually, on 13 February 2023, Circuit Judge Darren D. Farfante declined “USF Plaintiffs’ Motion for Appointment of a Receiver.”3 but the case has been reopened.

The following commentary attempts to outline progress and indicate key issues with reference to the publicly available filings.  These are complex issues and readers looking for a more complete understanding should access the Court records.  I make no attempt to comment on the merits of either case and welcome authoritative comments and amendment.   

Just When You Thought It Was Safe to Go Back in the Water

Even before the motion was declined USF had sought “..an order finding that the Financing Corporation is the prevailing party in its request for declaratory relief…..and is therefore entitled to attorney’s fees and costs, to be paid by Defendants…”4

The same day, INTO USF, Inc. and INTO USF LP filed to “…respectfully request that the Court (i) declare the INTO Parties as the prevailing parties in the declaratory judgment action, and (ii) hold in abeyance determination of the amount of fees and costs owed until the remaining claims between the parties are resolved.”5

There have been further filings on the matter on both the side of USF6,8 and that of the INTO parties7,9.   There is a good amount of legal argument but for the lay person the choice phrases include assertions like, “a pyrrhic victory”6, “completely ignores both Florida case law and the facts of this case”7, “..hoisted by their own petard”8, and “..premised entirely on a sleight-of-hand”9.  It’s all good knockabout stuff but one wonders how much lawyerly time and client money is going into this.  

The case then became an SRS Reopen Event on 16 February 2023.14  It appears that the “prevailing” party “..in the Declaratory Judgment Action (Doc #97) and Plaintiff’s Motion to Determine Entitlement to Prevailing Party Attorneys’ Fees and Costs (Doc #98)” will now be the subject of a Zoom hearing on May 10, 2023 at 2.30pm13

While this has been going on there have been developments in INTO’s claims of breach of fiduciary duty against the Jennifer Condon, Karen Holbrook, Nick Trivunovich, and Ralph Wilcox (collectively known in the case filings as the “FC Directors”).  In summary, INTO argue that they “…served as directors of INTO USF, Inc and owed it fiduciary duties, simultaneously served in positions for USF and prioritized the interests of USF over the interests of the Company in seeking its wind-down and termination.”16

This had originally been included as Count V of INTO’s complaint but had been challenged on several grounds including that the individuals had sovereign immunity by dint of carrying out their duties as a result of being employees of USF.  In a motion to dismiss this aspect of INTO’s case the filing noted “Section 768.28(9) protects state employees for torts committed within the scope of their employment.” and that “All the actions the FC Directors took that allegedly breached their fiduciary duty occurred while USF employed them.”11 The judge found in favor of this argument but while, “As pled, sovereign immunity bars Count V against the FC Directors” the Plaintiffs (INTO) were “..given leave to amend Count V of the Amended Complaint against the FC Directors.9

The opportunity to make such an amendment was taken in the Second Amended Complaint10.  Where Count V alleging “Breach of Fiduciary Duty Against the Former USFFC-Designated Joint Venture Directors” has been re-drafted.  There are several amendments but an example that indicates the tone says, “The Former USFFC-Designated Joint Venture Directors were appointed to the Board, and took on these fiduciary responsibilities to the Joint Venture, independent of the duties and responsibilities they owed to USF by the nature of their employment.”

The deadline for the defendants to respond to the Second Amended Complaint was originally 9 March 2023 but an extension to 20 March 2023 was granted without any opposition.12 There seems little doubt that this falls into thecategory of….to be continued.

Land of Lincoln Loss

All this comes as market reports suggest that the joint venture between INTO and Illinois State University (ISU) has come to an end with a direct recruitment arrangement remaining.17  The joint venture was formed in March 2018 and as of “June 30, 2022 and 2021, the Company had an accumulated deficit of $12,155,144 and $11,806,337, respectively.” according to the financial statements and reports.  It becomes the sixth of INTO’s eleven US joint ventures to close since 2020 (including INTO St Louis which is now 100% owned by INTO).

Perhaps interestingly,  ISU’s international student population (non-US citizen in student enrollment reports) appears to have climbed quickly over the past five years going from 511 to 736 from Fall 2018 to Fall 2022.  However, the significant change is year on year from 2021 (557 enrolled) to 2022 (736 enrolled) with the growth entirely made up of graduate students.  Meanwhile, non-degree seeking international students (the usual location of pathway numbers in US university enrollment data) fell from 44 in Fall 2018 to 14 in Fall 2022.

It seems possible that ISU has been able to benefit from the more widespread growth in graduate students from south-east Asia but that this has not flowed through in any meaningful way to the pathway operation.  That would reflect the situation seen at some other pathway Centers in INTO’s US portfolio.  It remains to be seen how other joint venture partners reflect on the situation as Fall 2023 comes into sharp focus.  

NOTES

  1. The case in the Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County, Florida Circuit Civil Division is formally between USF Financing Corporation (plaintiffs) and INTO USF LP and INTO USF, INC (defendants).  The terms USF and INTO are used in this blog for brevity.  The Consolidated Lead Case is 22-CA-006001, Div. L. and  filings referenced below relate to this case. (Joint Case Management Report – Filing # 162471158 E-Filed 12/06/2022 12:51:36 PM16)
  2. Filing # 163938884 E-Filed 01/03/2023 09:29:50 AM
  3. 02/13/2023 11:22:52 AM Electronically Filed: Hillsborough County/13th Judicial Circuit.
  4. Filing # 166039948 E-Filed 02/02/2023 05:03:54 PM
  5. Filing # 166035151 E-Filed 02/02/2023 04:30:42 PM
  6. Filing # 166713446 E-Filed 02/13/2023 05:30:56 PM
  7. Filing # 166710887 E-Filed 02/13/2023 05:03:58 PM
  8. Filing # 167161634 E-Filed 02/20/2023 04:55:28 PM
  9. Filing # 167148563 E-Filed 02/20/2023 03:16:05 PM
  10. 02/14/2023 01:11:28 PM Electronically Filed: Hillsborough County/13th Judicial Circuit.
  11. Filing # 167652717 E-Filed 02/27/2023 07:53:06 PM
  12. Filing # 162259450 E-Filed 12/02/2022 11:01:26 AM
  13. 03/08/2023 06:38:01 AM Electronically Filed: Hillsborough County/13th Judicial Circuit.
  14. Filing # 168483841 E-Filed 03/10/2023 01:09:08 PM
  15. Reopen event: A reopen event occurs when a motion, pleading or other recordable action occurs on a case that requires additional court activity after a disposition event has closed the case for court activity. Note that a reopen event involves at least one action and that additional post-judgment actions may occur before the case is reclosed.
  16. Filing # 162471158 E-Filed 12/06/2022 12:51:36 PM
  17. It is reasonable to note that both INTO and ISU appear to show INTO pathway courses on their websites.  Any update from either party is welcome.

Image by Mote Oo Education from Pixabay 

Fade Away or Speculate

With businesses being sold, some chances of consolidation and some new information being available it seems a good moment to have a look at the fortunes of the major pathway businesses.  There is also the chance to speculate on how the future might look for some of them.  It’s all by way of a contribution to the thinking in the higher education sector and the author, as always, is happy to have authoritative responses that bring clarity, correction or corroboration. 

Shorelight

As reported in July 2022, Shorelight seems to be all in on developing an aggregator-style approach to direct recruitment partnerships.  It looks as if another flagship Pathway partnership has been lost with the University of Mississippi no longer featuring on the website at all.  The partnership was launched in September 2018 with Shorelight CEO, Tom Dretler, saying “Our programs would not be thriving as they are today without our partnerships with top-tier universities like Ole Miss that provide international students with access to high-demand degree programs.”  Maybe they’ll miss Ole Miss…

It’s difficult to say with certainty how well the direct recruitment business is doing or how financially rewarding it is.  An investment-oriented perspective comes from Huron Consulting Group who took a $27.9m stake in Shorelight during 2014 and 2015, which rose to $40.9m in 2020.  The original maturity date for the early investment was 2020 which was pushed out to 2024 when the additional investment was made. 

The Huron Consulting Group Inc. annual report for the year ending December 2022 shows that the maturity date has been pushed out to 2027 which suggest they are not expecting it to be repaid any time soon.  Other news from the filing was that the “fair value” of the holding was reduced year on year from $65.9m to $57.6m.  Tracking the percentage difference between the investment holding and the “fair value” suggests that after a peak in 2018 it’s been pretty much downhill ever since.

INTO University Partnerships

It’s difficult to know where to start with INTO but there is a sense of something in the air.  The public spat with the University of South Florida1 appears to have seen the legal arguments reopened2 with a continuing pursuit of individuals from the University for Breach of Fiduciary Duty3.  More recently the company’s first ever partner, the University of East Anglia in the UK, has seen its vice-chancellor resign and a suggestion that the joint venture won’t be returning profits for distribution until 2029/30.

A single outpost in Australia seems bound to come under pressure from the super-dominance of Navitas after their purchase of Study Group’s interests in Australia and New Zealand.  Study Group’s retrenchment and the potential for a strong competitor emerging if Oxford International Education Group succeeds in a bid for Cambridge Education Group could bring increased pressure on the pathway business in the UK.  There seems to have been no progress in new business development in the US and the partners there show little sign of a post-pandemic boom.

All this comes after an upweighting of the INTO Group Board with two senior directors in Annalisa Gigante and Tamsin Todd and the addition of Nick Adlam whose LinkedIn profile indicates he also works for Andrew Colin’s Espalier Ventures Limited4.  It is not uncommon for companies to strengthen their board before looking for new investment or possibly to secure a public listing of some sort.  Perhaps the Alternative Investment Market, once described as a ‘casino’ by Roel Campos of the US Securities and Exchange Commission is a route.  

It’s pure speculation (no pun intended) but an IPO for a part share of the business could offer Leeds Equity an exit while bringing some new cash for INTO to revitalise its business.  It’s the sort of audacious move that might appeal to the company’s lead shareholder.  AIM also seems to offer the flexibility on governance and regulation as well as the access to capital that might be appealing.       

Study Group

Amid all the talk of it being “consistent with the strategies of both companies” it was difficult not to believe that Study Group’s sale of its Australia and New Zealand operations to Navitas was that of a company in needs of cash.  We know from Study Group’s 2021 annual report that covenants on its term loan debt were set aside until 2024 and that Ardian provided a capital injection of £40m in February 2022 on top of an investment of £17m in February 2021.  Adjusted EBITDA of £14.4m was down from £25m year on year.

All that is on top of the loss of Lancaster University which comes just a few years after Leicester University jumped ship to Navitas back in 2019 and suggestions that CEG has been more successful when competing for high ranked university partners in recent years.  The signing of Teesside University in the UK in 2021 was a bright spot but the logic of picking up a direct recruitment partnership with Florida Atlantic University, which split with Navitas in 2019, seems strange given recent history in the US. The business in the Netherlands has also been closed as a result of “changes in international student recruitment regulations”.

Insendi is sometimes touted as the brightest star in the Study Group playbook and of 54 university partners on the company website at least 21 are with the online platform only.  There is no doubt that it has had some decent names with elements of Imperial College and Johns Hopkins on the roster.  But given the ongoing pressures on OPMs and reports of a “rocky time” in the sector the future seems less than certain.

CEG, QA Higher Education and Oxford International Education Group

The “for sale” sign has gone up around CEG and there were suggestions in 2022 that QA Higher Education might also be up for grabs.  It has been flagged that Oxford International Education Group may well be in the hunt and winning CEG would take them to 13 pathways in the UK but a further prize would be the ten online CEG partners. While CEG has been successful in securing new university partners in recent years there have been suggestions that the commercial terms require very strong recruitment to be sustainable, so any deterioration in UK visa conditions could make life difficult.6 

News around QA Higher Education has been more muted and the recent appointment of a new COO, Kit Tse, who held a similar role at Oxford International Education Group, might suggest that they are in it for the longer haul.  The real question, if so, might be whether there is scope for significant future growth in the UK when universities without commercial pathway partners are finding recruitment fairly straightforward.

Kaplan

The good ship Kaplan seems to sail steadily on its way while others roll, pitch and yaw in choppy seas.  The Annual Report and Financial Statements suggest a relatively untroubled (or at least well managed) COVID period with revenue rising from £116.5 in 2019 to £133m in 2021 and profit going from £7.2m to £12m.  It’s a solid portfolio with something for everyone but there may be a moment in a later blog to have a look at each of the underlying pathways to see who may not be doing so well.

Summary

The scope for consolidation in the sector seems to be clear but the froth and excitement created by record-breaking enrollments in the UK and a bounce-back in the US could also tempt unwary investors to enter the market.  They may want to cast their minds back to the period in the early 2010s when over a billion dollars was invested in pathway on the back of a belief that the US was the new El Dorado.  Parthenon Group’s statement that, “We anticipate that growth will be constrained only by the pace at which private providers can develop the market” did not age well.

Global competition continues to increase, source markets continue to evolve and the uncertainties of Government policy continue to be an existential threat to any expansion ambitions.  Anyone who has brought two businesses together will also tell you that for every synergy there is a clash of ego and culture while for every opportunity there is a bedevilling and unforeseen challenge.  It all makes for a moment when operators probably have to choose to step back and fade away or show the appetite for risk and speculation.     

NOTES

  1. This has been extensively covered in previous blogs (starting August 2022) with the lead case being closed in January 2023.  Court Filings indicate it was reopened on 16 February 2023.  A future blog will look at the circumstances and any continuing action.
  2. SRS Reopen Event shown at the Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County Florida Complex Business Litigation Division. 
  3. Filing # 167652717 E-Filed 02/27/2023 07:53:06 PM in the Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County Florida Complex Business Litigation Division
  4. Espalier Ventures is 100% owned by Andrew Colin with INTO University Partnerships Limited making up 99% of its turnover.
  5. It is only fair to say that in 2015 Marcus Stuttard, head of AIM, reflected that, “If AIM was just a casino it wouldn’t have lasted 20 years.”  The obvious riposte might have been that the oldest licensed casino in Nevada turned 90 in 2021 because there will always be gamblers!
  6. This is a summary of discussions with third-parties and there is no direct evidence that terms are more onerous than some others in the sector. The general point is that universities are more experienced in understanding pathways and are likely to be more demanding given the number of pathway options available.

“We Rely On Own Goals”

Reports suggest that the University of East Anglia (UEA) is in “financial turmoil” and facing a £30m deficit this year rising to £45m within three years.  Clive Lewis, MP, for the constituency in which UEA sits has spoken of the university being in a “death spiral”, is seeking a meeting with the Education Minister and calling for a possible public enquiry.  A deeper dive offers some thoughts for other institutions on leadership, governance, cutting losses and getting the value proposition right. 

Matching Reward and Responsibility

Vice-Chancellor David Richardson, who tendered his resignation last week and left with immediate effect became a university Pro-Vice Chancellor in 2011 and Vice-Chancellor in 2014.  He had been at the university for over 30 years and taught in the famous Lasdun Teaching Wall for much of his career.  It would be difficult to suggest that he is not an insider and has no culpability for long term decision making about the institution and its future.

For that experience the rewards were substantial.  Richardson’s emoluments have increased by around £90,000 since he took office in 2014.  In 2019/20 when the “…mean paid basic salary for the heads of all [university] providers was £219,000”, his salary was 23% higher at £270,000 so exceptional performance was to be expected.  Salary and benefits are also only part of the story with pension contributions rising even more quickly in percentage terms over his tenure to achieve total emoluments of £343,000. 

In addition, the University reported that from 2018 to 2021, when he might have been expected to be focusing solely on the institution’s increasingly perilous financial situation, he was earning an additional £13,000 a year as a non-executive member of the Norfolk and Norwich University Hospital NHS Foundation Trust board.

Another point about the upward trend in his salary is its comparison, as a multiple, to that earnt by others in the University.  The multiple grew every year with the exception of 2021 when the Executive Team “volunteered a 10% reduction in salary for the first six months of 2020-21 with the vice-chancellor volunteering 15%.” The figures suggest the vice-chancellor more than made up for it the year after and just before resigning.

NB: Measure is the multiple of the vice-chancellor’s basic salary on the median pay of staff (excluding student workers who could be paid through a third party) where the median pay is calculated on a full-time equivalent basis for the salaries paid by the provider to its staff.

Most would say that Richardson was well paid and had a long-term understanding of the university, its potential and its challenges.  As far as I can see the resignation announcement and personal statement on the university website contains no sign of accepting responsibility for its financial collapse or the impact on those who had been his colleagues for, in some cases, decades.  When Chair of UEA Council, Dr Sally Howes stated, “I’m sure I speak for the whole community when we thank David for his commitment and service to UEA for these many years” it is abundantly clear that she does not capture all views on his tenure as VC.  

Seeking Good Council (sic)

Richardson was supported on the University’s Executive Team by six pro-vice chancellors, a provost and deputy vice-chancellor, and four senior administrators.  It is not entirely clear how this overlaps with the key management personnel who the Financial Statements describe as “..those ten individuals having authority and responsibility for planning, directing and controlling the activities of the University.”  What is clear is that in 2017/18 there were nine of them with £1,296m compensation and by 2021/22 there were 10 with compensation of £1,813m.

Other key figures in terms of oversight were Dr Sally Howes, the University’s incoming Chair in August 2021 who became the first Chair of the University’s Council, for at least ten years and possibly ever, to receive remuneration (recorded as £30,000 in the 2021/22 Financial Statement).  On making the appointment the University noted that she brought “… a wealth of experience in strategic roles in the UK space industry.”  Mark Williams had been Treasurer on Council since August 2016 and was previously a partner at Deloitte, one of the UK’s big four professional services companies, so was far from a newcomer.

There were, arguably, quite a few people who had taken positions of responsibility to lead the University.  However, anyone familiar with higher education will recognize the issues raised in a 2020 report “Universities Governance: A Risk of Imminent Collapse” and the urgent need for reform.  It’s summary notes points like, “Council members and VCs rate themselves highly, but in reality are cumbersome and fail to devote adequate time to critical governance issues” and “The office of Vice-Chancellor (VC) has gained tremendous power, while its counterbalance – the university council – is poorly-structured and outdated in approach.”  

Pathed with Good Intentions

The signs that UEA might be sleepwalking over a cliff seem apparent on reviewing the Financial Statements.  In 2018 and 2019 David Richardson and Mark Williams signed off the Business Review including the sentence, “The University remains confident that it has in place adequate funding to support the operational and development plans, and to provide a reserve for managing financial risks, over the next three years.” 

For 2020, 2021 and 2022 the wording changed to, “The University remains confident that it has in place adequate funding to support the operational and development plans, and to provide a reserve for managing financial risks, over the next five years.” (my emphasis).  It is difficult to understand what drove this change in the timescale of their confidence at a point when the world was going through, then recovering from a pandemic where everyone’s future was in turmoil.  Their confidence proved to be ill-placed.

Some of the Council minutes are equally concerning in retrospect.  In November 2021 they report that the “Chair indicated that there is no end-to-end responsibility to management of risk.  It was Council’s responsibility to set the risk management appetite.”  The following sentence, “VC indicated that risks will be managed more closely in future” but a later revelation that the internal audit had found areas for major improvements for the second year suggests a lack of attention to critical detail.

At the next meeting in January 2022 a note from the Audit Committee comments, “concerns about red risks was noted and concerns were expressed about risk management and the extent to which it is embedded in the organization.”  Perhaps prophetically given current circumstances Council “..suggested that staff morale might be considered to be added to the risk register.”  In just three months the approved budget deficit set at £20.8m for 2021/22 had increased to £25m.

There is a sense in going through the set of  2021/22 Council minutes that the risk of failure and a diminishing hold on core management disciplines was being flagged but repressed.  There does not appear to be much sense of mounting urgency over critical issues and while the danger of over-optimistic forecasting is flagged the abiding confidence in having “adequate funding” overwhelms it.  Whether this was just happy talk, an attempt to obscure reality or simply a failure to comprehend is unclear.  

Basics In a Bind

Meanwhile, the basics of running a decent university seem to have been forgotten.  At a point in time when many universities have adjusted their recruitment strategies to secure significant financial advantage UEA seems to have been stranded as a high-priced, non-Russell Group outpost of misguided thinking.  International student income in 2021/22 was lower than in 2016.

Just by way of comparison it is worth considering, say, the University of Leicester’s performance.  In 2016 the income from international students was £52m but in 2022 it had reached £71.8m.  Leicester is of comparable quality optically at 29th in the Complete University Guide compared to UEA’s 27th , it is non-Russell Group and its fees for international PGT are generally higher than UEA.  There seems to be a failure of international recruitment strategy at UEA that management should have addressed.       

Meanwhile the University performance on Research Grants and Contracts has been flat for five years and while the Home Full-Time Student increase looks strong the university notes in its 2021/22 financial statement that it “…fell approximately 8% short (2021:17% short) of entry targets..”.  Taking these alongside the failure to tackle international student recruitment and the continuing decline in the real value of Home student fee tuition suggests an inability to control key revenue lines effectively. 

NB: Research Grants and Contracts are University only to provide a like for like comparison over the period.

Along the way, the joint venture with INTO University Partnerships fell into serious difficulties with losses accelerating and the path to profitability seeming to extend from three years in the 2019/20 Statement to five years from 2021/22.  In 2019/20 the words used were, “..there will be no distribution in respect of 2019/20 nor for the next three years (my emphasis) whilst the joint venture recovers and builds up surpluses for distribution” which implied a distribution by 2023/24 at the latest.  In 2021/22 the words had changed to say, “…there will be no distribution in respect of 2021/22 nor for the next five years (my emphasis) while the joint venture recovers and builds up surpluses for distribution” which suggest no distribution until 2029/30.  The slippage in forecasting recovery is baffling when for the privilege of maintaining the relationship UEA has also become co-guarantor for half of a loan of up to £7m to the joint venture. 

Challenging Times or Chumps in Charge?

Nobody should underestimate the difficulties caused by the pandemic but it is clear that many institutions responded quickly and effectively to changed circumstances.  It should not be a surprise to universities that international student dynamics were always likely to favour Russell Group universities for brand conscious candidates while those from many growth markets are more interested in lower cost tuition and accommodation.  You can’t buck the market and shouldn’t consider your aspirations and ambitions as any guarantee against the cold reality of competitive markets.

Suggestions that problems and costs associated with the Lasdun Teaching Wall have exacerbated the situation are far from new.  However, the 2006 Conservation Development Strategy for the University of East Anglia noted the issues and that solutions would “…require the expenditure of resources by UEA.”  Whether university leadership failed to respond sufficiently at the time or later is a matter that the possible “public enquiry” espoused by local MP, Clive Lewis could consider.

Either way, the recriminations will go on.  In a relatively small community like Norwich the prospect of compulsory redundancies after a £13.5m loss in 2021/22 had already sent shock waves through the city.  The rapid escalation of the scale of loss from £37m in three years to £45m undoubtedly requires action that will be far more draconian than if the problems had been isolated and acted upon earlier.  It is troubling that the lack of confidence in University leadership extends to the interim Vice-Chancellor who has been part of recent decision making.

A UEA Council Minute of November 2021 suggests the VC should bring forward a summary to each meeting of “what was keeping the VC awake at night”.  With the decision to resign we might never know the answer to that question but the difficult times ahead will cause many academics and administrators to rethink their own futures.  It may also be interesting to see if the Education Minister is kept awake at night by the HEPI article in September 2021 suggesting, “Why the Government should never bail out a university” and the past rhetoric of the Office for Students.

NOTES

  1. The headlines is from a quote by ex-Norwich City manager Daniel Farke responding to claims of complacency in October 2020. They were promoted that year. Then relegated the next season with Farke leaving in November 2021.
  2. Financial information about the University, Vice-Chancellor emoluments and other compensation are taken from the University Financial Statements
  3. Information about INTO UEA is taken from the annual returns to Companies House.

Image by Arek Socha from Pixabay 

Amendments

On 2 March the reference in the third paragraph from the end to the constituency MP was amended to Clive Lewis (from Charles Lewis).