Tag: pathways

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 

New Year, New INTO?

INTO University Partnerships’ (INTO) recently released Report and accounts made up to 31 July 2022 point to the impact of the pandemic, global student mobility changes and the financial health of pathways.  There are also three new board appointments in the past three months to consider in a higher education recruitment environment where talk of consolidation is gathering pace.  The court case with the University of South Florida is noted as a contingent liability.

And The Tide’s Gonna Turn1

Starting with the Board appointments, there is reason to celebrate as INTO moves from being a board of six men in the previous year’s Report to a smorgasbord (pun intended) of seven men and three women in January 2023.  That makes the group board bigger than the INTO Executive team of nine – four men and five women.  At the date and time of writing the new Board Directors haven’t appeared on the corporate website which is a bit of a shame as two were appointed at the start of November.

It’s not clear whether the new appointees signal a reshaping of strategic direction for INTO.  Annalisa Gigante started at Bain&Co and one profile highlights that “..her key focus areas are sustainability, digital technologies including AI and IoT, new business models, and building high performing teams.”  Nicholas Adlam was at Bain&Co for five years (not overlapping with Annalisa) and held a number of management roles before joining INTO as “growth and transformation” consultant in 2020.  I am guessing that Tamsin Todd is the same individual as the CEO of Find My Past but INTO is not listed on her LinkedIn profile and I can find no supporting announcement of the appointment.

Another Year Older and Deeper In Debt2

Turnover for the year to 31 July 2022 is shown as an adjusted figure improving by £15m to £138m but its worth remembering that the adjustment removes discontinued operations.  For reference the adjusted turnover was shown as £194m in the Report to 31 July 2019.  Back in the Report for 2017 the Group turnover was shown as £276.5m which suggests that the closure of partnerships and the pandemic may have halved its size since then3.

To try and put some sense of the changes since then the 2017 Report noted the “Number of INTO partnerships” as 24.  In the most recent report there appear to be 50% holdings in 11 operational ventures plus 51% in INTO Newcastle and 100% of INTO SLU.  The relationship with Hofstra University is not noted in any form in the current Report.

What has continued to mount is the debt owed by joint ventures to INTO University Partnerships.  The year-on-year increase in debt is over £8m with the majority of the change reflecting the longer-term trend of partnerships in the US becoming increasingly indebted.  This reflects the challenges facing US pathways in recent years. 

How Long Can This Go On?4

New faces and the end of the pandemic could lead to a reset and INTO certainly seems in need of it.  The US operation saw the return of David Stremba as SVP of Partnership Development, North America and the UK leadership team was re-jigged last year with a seeming change in focus across Russell Group and non-Russell Group universities in the portfolio.  Perhaps a combination of direct recruitment contracts, in person and in country activity through initiatives like the University Access Centres, and the return of student demand from China will see a change in fortunes.   

There are, however, headwinds.  While the UK has had a boom in international recruitment over the past three years partners like Newcastle University and the University of East Anglia have underperformed the sector.  In the US it seems that Shorelight has been making much more rapid progress on direct recruitment and has retained more pathway partners than INTO.  The public and apparently acrimonious split with the University of South Florida may be unhelpful to INTO in brokering new deals.

Whether there is some merit or enough financial firepower for a merger, sale or takeover with another operator may be one question to answer.  Some form of alliance with a careers/employability focused partner or building/buying a credible online delivery operation might also add some interest to what looks a dated offering.  All things for the new board members to ponder.             

NOTES

There’s a working theme to the sub-titles.

  1. A lyric of hope from “9 to 5” by the wonderful Dolly Parton. The song—and film— were released in 1980 and owe their titles to 9to5, National Association of Working Women,  an organization founded in 1973 with a mission supporting women working for equal pay, power and participation.
  2. Slightly adjusted line (the lyric says “day” not “year”) from 16 Tons written by Merle Travis.  It is based on life in the mines of Muhlenberg County, Kentucky.  Several lines in the lyrics are direct quotes from his brother and father who worked in the mines.
  3. The adjustment of figures is difficult to follow.  Links are given to the source data for those who wish to investigate further and I am always happy to receive and publish an authoritative correction.
  4. From Working In the Coal Mine which was written by Allen Toussaint and a hit for Lee Dorsey in 1966.  Neither had ever been down a coal mine

Image by Arek Socha from Pixabay 

PATHWAYS GREAT CONSOLIDATION?

Last week’s news that Oxford International Education Group (OIEG) is in the hunt for buying Cambridge Education Group (CEG) could be the first step in consolidation for the pathway sector.  It comes after a few torrid years where aspirations for pathway growth in the US foundered and the pandemic wreaked havoc with global student mobility.  Murmurs that QA Higher Education may also be on the block and long-standing speculation that Andrew Colin and/or Leeds Equity might seek options on their investment in INTO make for a potential realignment of interests.

On the face of it a trade sale for CEG has the advantage of reducing recruiter competition in a market where new entrants have been one factor in the growing cost of student acquisition.  It would also make for a group that had some genuine clout with fifteen UK pathway partners1 including a Russell Group name in the University of Southampton.  Both have minor interests in the US and CEG bring European partners and a burgeoning digital business with ten partners listed.

In the UK2 this would make it larger than Navitas (11), Kaplan (11) and INTO (6) and the same size as Study Group (who lost Coventry London in 2022 and where rumours suggest another possible defection in the north of England).  It’s a point where you could see one of those players having a look at QA Higher Education who have seven university partners including four where they offer a pathway but six where they deliver an undergraduate degree programme in partnership with a university.  The restructuring could even extend into consolidation of pathway operators with the aggregator and OPM markets.   

From Strength or Weakness?  

A recent comment on mergers and acquisitions suggested that “you can’t keep a good capitalist down and eventually greed will overcome fear.”  Many investors have cash in hand after a year with little action and there are suggestions CEG is available for between £150m and £200m.  The financial returns of the various elements of CEG and OIEG are not easy to divine from published information but one can either read or deduce a number of things:

Cambridge Education Group

The financials below come from the accounts of Camelot Topco, ultimate parent company of CEG3, for the year ended 31 August 2021.

ONCAMPUS revenue declined in 2021 to £39.6m due to the pandemic but was £54.4m in 2020.  CEG Digital revenue increased to £12.1m in 2021 from £6.2m in 2020 (one would presume partly due to pandemic related online measures).  Underlying EBITDA was £7.8m in 2020 but fell back to £3.2m in 2020 due to the pandemic.  Across the two business there were around 4,000 students enrolled.

Oxford International Education Group

The financials below come from the accounts of Sparrowhawk 2 Limited, the holding company of OIEG4, for the year ended 31 August 2022.  The comparative year on year numbers span the acquisition of the business in early 2021.

Overall turnover increased to £58.8m from £33.4m the previous year.  This includes pathways, a separate English language business, operations in north America, IELTS testing and two businesses in India.  It is possible to deduce that at least £14.5m of the £58.8m is not pathway related but the accounts state that pathway revenue had increased £11m year on year.  The numbers indicate that the business made a small operating loss on the year (£0.9m) but it is stated that this masks an “underlying profit of £2,907k”.  The business is forecast to “generate positive EBITDA” during the financial year to August 2023.  

Without having CEG’s accounts for 2022 it is not possible to know what a comparative performance to August 2022 was but one would anticipate a rebound in pathway business aided by the addition of new partners.  The business is also able to trumpet the addition of Loughborough University, who have been talking with potential pathway operators since at least 2007, as a partner in December 2022.  All in all, it looks as if OIEG would be taking on a larger business with some substantial and complementary assets.   

Caveat Emptor        

CEG is able to tell a strong story on digital developments and a growing portfolio of well ranked partners which might make it a very attractive proposition.  OIEG is an aspirational business which can point to partners that have done very well out of the growth in UK student recruitment with the University of Greenwich being one of the most significant beneficiaries of the growth in the Indian market.  So, what could possibly go wrong…

Anyone looking at the UK government’s turbulent approach to international student recruitment would point to the continuing possibility of changes to visa policy as a Conservative Government prepares the ground for an election in no more than 24 months.  Significant limitations on student family members (other than with PhD students) and constraints on post study work are two of the main ghosts at the feast.  More severe limitations on lower-ranked universities and “poor quality courses” would be particularly damaging to both CEG and OIEG portfolios.

Alongside that is the sense that CEG might see a window of opportunity that means a race to the exit is the most sensible option in a market where several factors could compromise future performance.  Examples include the evident resurgence of Australia as a competitor after several years of weakness, as well as the reality that Canada remains strong and the US seems to be concentrating on visa turnaround times in major growth markets.  All that is before the revitalisation of China as an international student recruiter with eyes on Africa and India, which seems an inevitable consequence of its borders reopening after COVID.

Those who have been involved in mergers and acquisitions will also recognise the substantial risks involved in trying to merge business cultures, operational activities and brands.  For pathway operators, even as they become increasingly involved in direct recruitment, there is the added challenge of a sales team trying to cope with a plethora of university brands in their bag and not doing justice to any of them.  Smart universities will also have the potential for amendments to contracts if ownership changes and could choose to negotiate hard on revised targets and penalties for failure.

What seems likely is that consolidation will come sooner rather than later as some operators and investors head for the exit doors while the UK environment looks acceptable. The possibility of aggregators, online delivery and post study employment options coming into the mix are likely to make for an interesting year. Interesting times.

NOTES

  1. This count includes seven OIEG partners and the eight listed in CEG’s ONCAMPUS brand.
  2. This is likely to be contested territory but I have attempted to review those relationships which are on campus, joint ventures, and have a pathway element. Authoritative corrections are welcome.
  3. The ultimate controlling partner is Bridgepoint Euro IV Fund managed by Bridgepoint Advisers Ltd.  The interest was purchased in April 2013 for a reported £185m.  In July 2019 reports indicated that Bridgepoint had sold the CATS Colleges division of CEG to Bright Scholar for a transaction value of £150m.
  4. The ultimate controlling party is THI Holdings GmbH which acquired a majority stake in March 2021 in a deal which saw OIEG’s schools division sold to Nord Anglia Education.    

Image by Pete Linforth from Pixabay 

Officium….Conflictus

A 2020 Harvard Law School Forum on Corporate Governance claimed that “…the overall state of JV governance is still not good.”   The same Forum offered a piece in 2019 which explicitly discussed the “JV Directors Duty of Loyalty” and begins “Many joint venture board directors find themselves in a perceived state of conflicted interest.”  It’s relevant reading when the court case1 between INTO2 and University of South Florida financing Company (USFFC) shows the Secondary Case3 naming four employees of the University of South Florida (USF) as defendants. 

These individuals were appointed by USSFC as directors on the Joint Venture between USF and INTO University Partners (IUP), with one of them serving for just a single day on the joint-venture Board.  The defendants, Jennifer Condon, Karen Holbrook, Nick Trivunovich, and Ralph Wilcox are collectively referred to in the submissions as the “Former USFFC-Designated Joint Venture Directors.”4. INTO’s claim is that, “As a result of the USF Parties’ threats and failure to perform their contractual obligations, as well as the Former USFFC-Designated Joint Venture Directors’ breaches of their fiduciary duties to the Joint Venture and INTO USF LPLP, Plaintiffs have suffered and continue to suffer financial harm in the tens of millions of dollars.”5.

INTO Claims Against the Individuals as Count V

The INTO claim for “Breach of Fiduciary Duty Against the Former USFFC-Designated Joint Venture Directors.” is Count V of their complaint6.  The assertion is that they, “..breached these duties by continuing to serve on the Joint Venture’s board of directors with knowledge that USFFC and USF intended to and did purport to terminate the USA despite the Former USFFC-Designated Joint Venture Directors’ serious conflicts of interest.”

In the same Count, two of the four are further accused that they “..breached their fiduciary duties by actively advocating for the baseless termination of the USA [University Services Agreement]..” and that “Their advocacy for termination of the USA was motivated by their concern for the advancement of USF, not the Joint Venture or INTO USF LP, and their loyalty to USFFC and USF, whose interests they put before those of the Joint Venture and INTO USF LP.”

There is the further suggestion that, “The Former USFFC-Designated Joint Venture Directors breached their fiduciary duties by resigning as directors and leaving the interests of the Joint Venture and INTO USF LP without proper care.”

This was not the first time the question of conflict of interest had come up but it was an interesting reversal from an earlier accusation by Fell. L. Stubbs, Treasurer of USF and Executive Director of USSFC.  On 13 May 2 he sent a memo alleging that “While INTO has continuously accused the USF FC appointed directors of conflicts that they have taken care to appropriately manage, INTO has not done the same. For instance, Anmar Kawash, an INTO appointed director to INTO USF, continues to represent the stockholder and IUP in the parties’ dispute.”7

Defendant’s Response and Motion to Dismiss Count V

The defendant’s response on 3 November8 was a Motion to Dismiss Count V claiming, “The ultimate issue…is whether the University of South Florida (“USF”) correctly terminated its University Services Agreement (“USA”) with the Company [INTO USF Inc,.  It continued,“But that simple breach of contract case has exploded into an eight-count diatribe against any person or company that provided information to USF or agreed with the termination decision….”  In addition to claiming that the individuals acted in ways that were “contractually agreed” and which they were “entitled to” do the response asserts that “…this lawsuit is the INTO Entities’ way of exacting revenge and forcing anyone who reported to USF about the Company’s financial distress to pay the penalty.”

In seeking the Motion to Dismiss there are claims the action is barred by sovereign immunity, absolute immunity and corporate “primacy of contract” doctrine, as well as failing to show a cause of action.  There is a specific argument that the individual who was a director for one day “did not take part in any of the conduct about which the INTO Entities complain” because the appointment was made after “the SHA was terminated.” 

Request for Production and a Further INTO Response on Count V

On 9 November INTO issued “Requests for Production”9 to each of the four individuals covering the period from January 1, 2019.  The main elements requested are “all documents relating to the lawsuit”, “All documents and communications relating to the February 2022 board meeting”, “All documents and communications relating to Your resignation as a director of the Joint Venture”, and “All Your notes or minutes from any meetings, whether in person or remote, involving You relating to the Joint Venture and/or Plaintiffs”.

On 23 November INTO filed its response10 to the defendants’ Motion to Dismiss of 3 November, claiming “It is difficult to imagine a clearer example of divided loyalties and breach of fiduciary duty than the one laid out in the Amended Complaint.”  The Response lays out its reasons for this claim and makes legal points against the assertions of immunity and other arguments for dismissal.  The argument related to the individual who was a director for one day states that she “..breached her fiduciary duties to the Joint Venture by resigning from her position as Joint Venture director, leaving the Joint Venture without proper care..”

The Defendant’s Reply to INTO’s Response on Count V

To a casual reader, the Reply for the defendants’ on 2 December11 adopts a tone that mixes legal argument with language that a detached observer might consider scornful.  On sovereign immunity they say, in a “gotcha” moment, “Given this law, the INTO Entities pled directly into the sovereign immunity defense.” and conclude, “This end-run on USF’s sovereign immunity is futile.” 

On Primacy Doctrine they suggest, “The INTO Entities confuse substantive and procedural law, as well mutually exclusive remedies.”  On the failure to “state a cause of action” against Jennifer Condon they state, “The INTO Entities’ ineffectual response shows nothing more than their scorched earth policy.”  This looks like a level of rhetoric which one assumes a judge will calmly sift through and ignore while considering the facts of the case.

Breaking Up Is Hard To Do

When Neil Sedaka released the song in 1962 he sang “Think of all that we’ve been through and breaking up is hard to do.”  The current court saga certainly seems a long way from 2010 when IUP and USF began their partnership.  Or even May 2013, when IUP founder Andrew Colin received a Global Leadership Award from the University of South Florida in recognition of his contribution to international education. 

The intervening years may have led to a point where speculation about the “end of the long-term joint venture” model has become a reality.  It may even give other joint venture directors pause for thought about the governance model they work under, the obligations they might have and the legal cover that is offered for disputes.  In this case a moment of truth may come on 25 January 2023 when a hearing is scheduled to hear the motion to dismiss Count V on the grounds of sovereign and absolute immunity12.

NOTES 

This blog reflects on complex legal issues and makes no assertions in support of or against any of the parties involved. References are provided for readers wishing to read more detail. Any authoritative corrections on matters of fact are welcome.

All filing references relate to documentation filed with The Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County, Florida Circuit Civil Division.  Further information about the case including the lawyers representing the parties are included in a previous blog.

  1. In the Consolidated Lead Case CASE NO.: 22-CA-006001, Div. L, USF Financing Corporation (USFFC), a Florida not-for-profit corporation, is the Plaintiff while INTO USF LP, a Delaware limited partnership, and INTO USF, INC., a Florida corporation are the defendants (Filing # 156524107 E-Filed 08/31/2022).
  2. As INTO USF LP and INTO USF, INC., are the listed parties in the cases the term INTO is used to describe them in this blog.
  3. In the Secondary Case INTO USF LP, a Delaware limited liability partnership, and INTO USF, INC., a Florida corporation, are the Plaintiffs, while USF FINANCING CORPORATION, a Florida not-for-profit corporation, and THE BOARD OF TRUSTEES OF THE UNIVERSITY OF SOUTH FLORIDA, Defendants.  The amended complaint (Filing # 157809124 E-Filed 09/20/2022) added the four individuals.
  4. Filing # 157809124 E-Filed 09/20/2022  
  5. Filing # 157809124 E-Filed 09/20/2022
  6. Filing # 157809124 E-Filed 09/20/2022
  7. Filing # 153460265 E-Filed 07/15/2022 Exhibit G
  8. Motion and Incorporated Memorandum of Law to Dismiss Count V of the Amended Complaint Against the Former USF FC-Appointed Directors Filing # 160604060 E-Filed 11/03/2022
  9. Filing # 160982138 E-Filed 11/09/2022
  10. Filing # 161827652 E-Filed 11/23/2022
  11. Filing # 162259450 E-Filed 12/02/2022
  12. Filing # 162395119 E-Filed 12/05/2022

Image by Mohamed Hassan from Pixabay 

INTO THE JAWS OF UNCERTAINTY

Friday December 16 at 1pm doesn’t have the resonance of High Noon but a court filing1 suggests it may be the moment for a Special Set Evidentiary Hearing to determine whether a Receiver will be appointed for INTO USF Inc2 (INTO)3. It is termed, somewhat ominously, a JAWS4 hearing in the Docket Entries for the case but it’s not clear who is “gonna need a bigger boat”.  Churchill may have said that “meeting jaw to jaw is better than war” but in business terms this encounter may defy that maxim.

As always, this blog attempts to inform readers but notes that no opinion is offered on the merits of the case or the assertions by either side. For keen readers of detail, the paperwork in the case is filed with The Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County, Florida Circuit Civil Division and is publicly available. The Consolidated Lead Case is CASE NO.: 22-CA-006001, Div. L, with a secondary case as CASE NO.: 22-CA-006726, Div. L.

These are complex matters and I will be happy to receive authoritative factual corrections and make any necessary amendments.

WHAT’S IT ALL ABOUT?

The Hearing follows a Motion and Incorporated Memorandum of Law from USF Financing Corporation (USFFC), on 3 October 2022, for appointment of a receiver5. The fundamental request is that this is “…to (1) take control of the assets of the Company and (2) release what should be state auxiliary funds only for the purpose of funding the teach-out, together with such other and further relief as this Court deems just and proper.” 

INTO’s response on 24 October6 urged the court to reject the request with the Argument under two main headings – that “the Joint Venture Is Not Engaging in Self-Dealing Or Waste” and that “the USF Parties’ Arguments Are Baseless.”  It also notes “Appointing a receiver is a rare and extraordinary remedy.” Plaza v. Plaza, 78 So. 3d 5, 6(Fla. Dist. Ct. App. 2011).”

USF made a reply to this on 31 October7 noting that “The USF parties seek to protect for the teach-out $7.5 million of payments made by international students and sponsoring foreign governments for academic instruction and student housing provided by USF.”  They assert that, “At no point in their Response do the INTO Entities indicate they will forward those funds to USF to be used for their intended purpose.”

THIS IS ROUND TWO

Last time the parties were in court in relation to the case was on 19 August 2022 when an Evidentiary Hearing considered an Emergency Motion from INTO for a Temporary Injunction to Maintain the Status Quo.  There was “…live testimony by both parties” and the Clerk’s notes8 indicate that John Sykes, Co-founder and Deputy CEO of INTO University Partnerships, Kiki Caruson, Vice President of USF World and Fell L. Stubbs, Treasurer of University of South Florida and Executive Director of the USF Financing Corporation were in court as witnesses.

An order denying the Motion was made on 31 August9 with none of the four key requirements for preliminary injunctive release having been met.  However, it was noted that “..this ruling is not dispositive or determinative of the merits of the main issues in the case.”

THE BIGGER PICTURE

There are over 100 pages of documentation, including original contracts, in the three documents related to appointing a receiver.  The dispute is part of a wider case centering on USFFC seeking a Declaratory Judgement on 21 April 2022 stating it “…provided its notice of termination of the University Services Agreement and the Direct Admit Marketing Services Agreement….. Once USF terminated the University Services Agreement with the Company, this termination automatically terminated the Stockholders Agreement, which now requires the parties to dissolve and wind-up the Company.”10

INTO’s response of 20 September noted that between February and April 2022 they understood that USF were “..exploring the possibility of revising by mutual consent the original terms of the partnership” but that USF then “…improperly sought to terminate their contracts with Plaintiffs and dissolve INTO USF, Inc.”  They also state that they “..have at all times vigorously disputed USFFC and USF’s assertion that the Joint Venture was insolvent. Not only is this conduct in bad faith and in clear breach of the parties’ contracts, but it represents a transparent attempt to wrongfully appropriate the business of a company that was supposed to be its partner and that it knows has substantial value.”11

Apparently, “The parties have engaged in both forms of alternative dispute resolution mechanisms, but were unsuccessful in reaching a resolution of their dispute.”12

On the legal side USSFC are represented by Buchanan Ingersoll and Rooney PC while INTO have Sivyer Barlow Watson & Haughey, P.A., Bush Ross, P.A., and Susman Godfrey L.L.P.  The latter’s website makes the claim that they are “..America’s premier litigation boutique” so the stakes seem high. 

Notes

All filing references relate to documentation filed with The Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County, Florida Circuit Civil Division. 

  1. Filing #159856710, E-Filed 10/24/2022. Jaws Confirmation No. 12J – 349103917354.
  2. INTO USF Inc.,is described in its Marketing and Recruitment Services Agreement with INTO University Partnerships Limited as “offering a range of academic preparatory programs and English language courses to international students which, when successfully completed, enable qualified international students the ability to progress to undergraduate and graduate degree programs at the University (collectively, the “INTO USF Programs”) Filing # 153460265 E-Filed 07/15/2022 Exhibit B
  3. For simplicity the term INTO is used for submissions by defendants, INTO USF LP, a Delaware limited partnership, and INTO USF, INC., a Florida corporation, in the Consolidated Lead Case CASE NO.: 22-CA-006001, Div. L where USF Financing Corporation (USFFC), a Florida not-for-profit corporation, is the Plaintiff (Filing # 156524107 E-Filed 08/31/2022).
  4. JAWS is the acronym for the Judicial Automated Workflow System for the Thirteenth Judicial Circuit System of Florida.
  5. Filing # 158504942, E-Filed 10/03/2022
  6. Filing # 159869006 E-Filed 10/24/2022
  7. Filing # 160306990 E-Filed 10/31/2022
  8. CDOCboa89b3b594b23_1661607751
  9. CDOCbo8ffb49b6e49c_1662035965
  10. Filing # 153460265 E-Filed 07/15/2022
  11. Filing # 157809124 E-Filed 09/20/2022
  12. Filing # 153460265 E-Filed 07/15/2022

    Image by Dmitry Abramov from Pixabay 

    Open Doors or Closing Time for US Pathways?

    Open Doors data for 2021/22 confirmed trends that have already become evident in the UK and are likely to shape the future of global student recruitment for several years.  It also points to some stark realities for pathway operators that may cast a shadow over any hopes for a post-pandemic recovery in the US.  Most starkly, the recovery was marked by the highest ever new postgraduate intake, largely driven by students from India, while new undergraduate enrollment was only just above 2011/12 levels.

    Will China Bounce or Break or Will It Depend Where It’s Dropped?

    One of the biggest questions facing pathway operators in the US is whether enrollment numbers from China have reached a low point and will rebound.  The overall number of degree students from China enrolled in 2021/22 was 232,674 which was 16.7% down on 2017.  Undergraduate enrollments were down 26.3%.

    However, the impact is not the same across all states.  Consideration of the 25 states with more than 10,000 international students in 2017 shows four who increased the overall number of “Foreign Students in the State” – Arizona, Massachusetts, North Carolina and Maryland. The first two made significant percentage increases from India while the latter two also increased the percentage enrolled from China

    By contrast the two states with the largest percentage loss in international students over the five years were Oregon (-42.4%) and Iowa (-34%).  Of the 25 states, they had the highest percentage of students from China and in the case of Oregon the second highest percentage was from Saudi Arabia rather than India in 2017.  The leading universities in each state – Oregon State University, Corvallis and Iowa State University – lost 26.7% and 30% of international students enrollment respectively.    

      *Information from Open Doors Fact Sheets 2017 and 2022.  Numbers relate to “foreign students in the state”. 

    A thoughtfully argued piece in University World News has suggested that a variety of factors could see a significant rebound by Autumn 2025.  This is tempered by factors including the growing strength of other recruiting countries and the developing academic quality of Chinese universities.  Others have suggested that unpredictable geopolitics, the potential for online delivery and universities desire for diversity may be major factors suppressing demand from China. 

    Either way it seems an unpredictable future and not something to bet the house on.  Certainly, US universities wanting to rebuild their numbers are going to have to think long and hard about products, price points, promotion and graduate employability.  It seems possible that as global alternatives increase, recruitment markets change and in-country competition stiffens the role of pathways will come under further scrutiny.    

    Pathways Poser

    Responses by the main pathway operators to changing market dynamics have differed.  A previous blog illustrated Shorelight’s pivot from pathways to direct recruitment options but there has been little sign of such significant movement from its main US competitor, INTO University Partnerships (IUP).  The situation in Oregon, home to key IUP partner Oregon State University (OSU), suggests that the need for action may be growing.   

    OSU provides long term, consistent enrollment reporting though its Office of Institutional Research which gives some weight to this thinking.  Despite the 2021/22 growth reported in the Open Doors data, OSU did not show international postgraduate growth in Fall 2021.  Fall 2022 numbers show another overall decline in international enrollments driven by falling undergraduate numbers and only limited growth in postgraduates.   

    *These figures include all INTO Oregon State University (INTO OSU) pathway enrollments except Academic English

    The impact of declining numbers from China is evident.  Despite recruitment support for direct admits from pathway partners IUP there seems to be limited ability to accelerate enrollment of students from other markets to compensate.  While the number of students coming from India to enrol is showing reasonable growth it is starting from a low base. 

    Overall enrollment has been impacted by a continuing decline in the INTO OSU pathway operation.  Undergraduate pathway enrollments in Fall 2022 were down 80% over five years (and 65% on 2019), while graduate pathway enrollments were down 57% over five years (and 62% since 2019).  Total enrollments for INTO OSU have fallen 72% since 2017.

    A previous review of Fall 2022 preliminary numbers from INTO George Mason University showed that IUP’s pathway operation at that university was struggling to bounce back after the pandemic but there was no information available concerning countries of origin.  INTO OSU data offers country insights and shows that three of the four main countries of origin have seen declines, with China falling from 581 students to 48 over 5 years (92%).  Numbers from India have shown small fluctuations but in Fall 2022 the intake of 16 was the same as in 2017.

    Money Matters

    Alongside declining volumes the INTO OSU debt to IUP increases.  This is, presumably, all well and good if the joint venture can generate enough pathway enrollments or find alternative revenue streams to pay the debt back over time.  However, three of IUP’s US joint ventures have closed in recent years – at Colorado State University, Marshall University and Washington State University – with a fourth, at St Louis University now wholly owned. 

    The joint venture at the University of South Florida is not currently recruiting and is under threat.   Recent court filings have shown that USF Financing Corporation (USFFC) sought a “declaratory judgment that the 2010 stockholders Agreement between USF FC, the Company, and the INTO Defendants is terminated as of April 21, 2022.” The grounds were that the joint venture is “insolvent under both a balance sheet basis and inability to pay debts as they become due, and (b) has demonstrated a material adverse financial position where it could not perform all or a substantial part of its obligations..”.

    *Taken from IUP annual reports up to and including that for the year ended 31 July 2021.  Excludes INTO SLU which is wholly owned, INTO USF which is not currently recruiting and INTO Hofstra which the INTO University Partnerships annual report does not record as a joint venture.

    **The 2021 Financial Statements of Illinois State University (p.50) note that “INTO ISU has an agreement with its two partners, Global and INTO NA, which allows INTO ISU to borrow up to $6,000,000 in operating capital from INTO NA with an interest rate of 6%…. INTO ISU has outstanding borrowings with INTO NA in the amounts of $6,000,000 and accrued interest of $488,392 for the year ended June 30, 2021.”  INTO NA is a wholly owned subsidiary of INTO University Partnership Limited (IUP).

    Reflections and Realities

    Global pathway operators have many creative, flexible and commercially minded individuals but it’s worth remembering Margaret Thatcher’s dictum that “there is no way in which one can buck the market.”  Open Doors provides a picture of 2021/22 but as more universities report on their Fall 2022 enrollments it becomes even clearer that the dynamics have changed.  With all four major recruiting countries having relatively benign government policies it is no time to be clinging to outdated models with 2023 recruitment already starting.

    Notes

    As always the text reflects my understanding of the data. I am happy to receive any alternative thoughts or corrections from authoritative sources.

    Image by Kingrise from Pixabay 

    INTO Court as Joint Venture Sours

    There are signs that INTO University Partnerships’ (INTO) relationship with the University of South Florida may be ending after a recent Court Evidentiary Hearing1 on 19 August 2022.  While no public record of a judgement has appeared, rumors suggest there are communications in circulation advising that enrollment to INTO University of South Florida (INTO USF) will cease.  If any authoritative source can provide an alternative explanation or clarification, I will be happy to correct any misunderstandings.

    It is appropriate to note that both INTO and the University of South Florida still feature INTO University of South Florida on their websites at the time of writing (27 August). The INTO Study site for students also offers the opportunity to apply for courses at the university. This may be the result of a time lag or the possibility of further discussion and this blog is written in good faith to explore the background to the Court case and the joint venture’s history.

    The underlying case for a university going to court to end a joint-venture pathway that was once among the most successful in the world deserves attention.  Publicly available court filings outline the case2 and material on the INTO Corporate and University of South Florida websites is used to summarize the history and other background about the joint venture relationship.  The source of further commentary is referenced through hyperlinks.  

    Summary of the Case

    A Court filing3 from USF Financing Corporation (USFFC) to the Thirteenth Judicial Court in and for the state of Florida Civil Division dated 15 July 2022 seeks a “declaratory judgment that the 2010 stockholders Agreement between USF FC, the Company4, and the INTO Defendants is terminated as of April 21, 2022.” The grounds are that the joint venture is “insolvent under both a balance sheet basis and inability to pay debts as they become due, and (b) has demonstrated a material adverse financial position where it could not perform all or a substantial part of its obligations..”.  The particular difficulties of pathway programs in the United States have been widely explored and the filing incorporates direct reference to my blog of February 2022 regarding the growing level of indebtedness of INTO’s US ventures.

    With an eye on its responsibilities for “stewardship of public resources” the University of South Florida terminated the program in April 2022 and “initiated the process for the teach-out of the programs’ enrolled international students….”  The filing asserts that “The INTO defendants refuse to acknowledge the Stockholders Agreement termination and refuse to participate in the teach-out or develop the Plan to dissolve and wind-up the Company.”  There are a number of points made around the fiduciary duty of the three INTO appointed Directors of INTO USF Inc, to creditors and shareholders “once a company is insolvent” with a memo, the accompanying Exhibit G of the filing, asserting that “the INTO appointed directors have a conflict of interest.”

    INTO University of South Florida

    INTO partnered with the University of South Florida in 2010 and the case study on the INTO website asserts “extraordinary” enrollment and economic impacts.  The accompanying graph (reproduced below) suggests that even if this was true up until 2016/17 the ensuing years have seen a significant decline in enrollment to the pathway.  Enrollments look to have peaked at around 800 but have subsequently fallen by around 100 a year to stand at c300 (this would be supported by the USF Fact Books showing non-degree seeking international students declining by a similar amount).

    Source: INTO Global.com

    The Court filing includes INTO USF, Inc’s Financial Statement to June 30, 2021 (Exhibit E) showing a net loss of $3.276m that year and $206,000 the year before.  This is supported by the USFFC’s Financial Statements to 30 June 2021 which comment on “approximately $3.3 million of net loss incurred by INTO USF during the year ended June 30, 2021.”  USFFC’s share of INTO USF’s “net accumulated (deficit)” was shown as $1.794m.

    As noted in the February 2022 blog “China Crisis for US Pathways”, since 2018 when INTO Illinois State University opened, “total level of indebtedness across all US operations has nearly doubled from £18m to £35m”.  This figure included the debts at institutions where joint ventures have now closed – Washington State University, Marshall University and Colorado State University.  The blog also reflects that INTO has become the 100% owner of what was previously a joint venture at St Louis University.

    One feature of both INTO USF (the second INTO partnership in the US) and INTO Oregon State University (the first) is that they are listed in INTO’s Annual Report as Inc. and are C-corporations.  Informed opinion suggests that closely held corporations (which these appear to be) “have been held to higher fiduciary duty standards” and this may be reflected in the “conflict of interest” comment.  Later US joint ventures are listed as LLC’s where, “By agreement, parties can alter certain duties to expand, restrict, or eliminate fiduciary duties owing to either the LLC or the other members and managers”, which suggests there may have been advice leading INTO to pursue alternative structures.5

    Summary

    It is worth waiting to see any Court judgement and whether there is an appeal process but the filing and other financial statements seem definitive in outlining the decline of the joint-venture’s financial situation.  If the joint venture is closed it would leave INTO with six joint ventures in the US, as well as the fully owned St Louis University operation and the “comprehensive partnership” with Hofstra (which is not listed in INTO’s annual reports as having joint ownership). 

    As well as the closures in the US there have been several INTO joint ventures shut down in the UK in recent years.  In addition, INTO has taken a controlling interest in the joint venture with Newcastle University and the financial arrangements at the joint venture with City University have changed.  As noted in a recent blog the yearly financial reporting for INTO University of East Anglia is shown at Companies House as overdue, for a joint venture under significant financial pressure.

    On top of all that there are rumors of imminent changes at the top in the INTO Finance team and the return of a familiar face to the INTO North America team but that is for another day.

    Notes

    1. Case number: 22-CA-006726 before Judge D.D. Farfante
    2. I am unaware of any written response by INTO University Partnerships to the case filed
    3. Filing#153460265 Efiled 07/15/2022 07:45:26 PM
    4. “the Company” is defined as INTO USF Inc which is the C-Corporation established in 2010 with stockholders USFFC and INTO USA LLC.  Its board has three nominees from INTO and three from USFFC.
    5. The purpose of this paragraph is to provide further information which may be relevant and the quoted elements comes from the source indicated.  There is no intention to give legal advice or guidance and readers are advised to seek appropriate counsel on company structures.

    Image by Venita Oberholster from Pixabay 

    US International Enrollments See the Light But Pathway Struggle Continues

    It’s always a delight when there is a shaft of light that gives an insight into important issues like international student enrollment.  George Mason University (GMU) has made available a day by day view of preliminary enrollments1 which offers a near real time picture of what is happening at the university and its pathway partnership with INTO University Partnerships (IUP),  INTO Mason.  It probably gives a reasonable indicator of how US institutions and their pathways are faring as the pandemic unwinds and follows data points in the early part of 2022 including:

    • IEE Spring 2022 Snapshot where 65% of 559 institutions responding reported “an increase in their international student applications for the 2022/23 academic year”
    • a Wall Street Journal report showing the number of F-1 visas issued to Chinese students  dropped in the first six months of 2022 to 31,055 compared to 64,261 issued in the first six months of 2019
    • The Siasat Daily and others report that between January and May 2022 US consulates issued nearly 15,000 “F1 or student visas” to students in India – triple the number issued in 2022

    Visa delays are still an issue but things are moving.  The question is how much and what are the implications.  GMU’s contemporaneous data gives some directions of travel.  There is still some time to go before official census data and the data does not provide country by country insights but the transparency is welcome.

    Source data for the graphs below is on the GMU Office of Institutional Effectiveness and Planning website.  The graphs combines information on preliminary enrollment data for 2022 with year-by-year data from the normal census point in October of previous years.    

    INTO Mason Pathway Struggles to Recover

    Recruitment to INTO Mason has been struggling for several years and had dropped, before the pandemic, by 35% from 371 in 2017 to 241 in 2019.  Numbers enrolled halved during the two years impacted by the pandemic.  In a year where recovery might be anticipated the enrollments of 117 for Fall 2022 remain below those Fall 2020, less than half of 2019 and even further down on 2018.2

    While the GMU data does not allow an analyse of enrollments by country it seems plausible to believe that declines in students from China contributed significantly to performance pre-pandemic and there is little sign of recovery.  It also seems likely that any growth in students coming to the US is largely made up of graduates who do not require pathway courses.  This would be consistent with previous suggestions that the changing market dynamics are likely to undermine the core pathway business model.

    Note: Filter used was Fall enrollments, INTO Mason, US campuses, all students (Preliminary data for 2022 taken at 22 August, 2022 – shown as First day of classes)

    Accelerated Growth in Direct Graduate Enrollment at GMU

    Direct enrollment to GMU has taken a significantly different course.  From 2021 to the preliminary numbers in 2022, graduate enrollment has surged by 46% from 1641 to 2397.  While UG enrollment is still below 2019 the graduate growth has boosted overall enrollment of non-resident aliens to a six-year high of 3844.

    This suggests that the opportunity to recruit has come in countries, such as India, where the majority of students are seeking a graduate course.  GMU presents the overall enrollment data in a way which includes INTO Mason numbers but it is clear from the graph above that the pathway cannot be responsible for the growth in recruitment.  There is no indication of the extent, if any, to which IUP’s direct recruitment efforts for GMU have supported this growth.   

    Note: Filter used was Fall enrollments, ALL GMU US Campuses, non-resident alien. (Preliminary data for 2022 taken at 22 August, 2022 – shown as First day of classes)

    Pandemic Escalates Debt Levels at Joint Venture

    Each year, in its published annual report, IUP records the level of debt it is owed by its joint ventures.  In a single year near peak enrollment the INTO Mason joint venture did not owe anything but since then the level of debt has escalated and the first two years of the pandemic saw a significant growth in indebtedness.  A previous blog has shown the growing level of indebtedness of all of IUP’s US joint ventures (including the three that have closed in recent years).

    Source: INTO University Partnership Annual Reports

    A recent report from an IUP university partner in the UK suggested that the decline in its joint venture with IUP was so significant that there “will be no distribution in respect of 2020/21 nor for the next three years whilst the joint venture recovers”.  At INTO Mason the level of indebtedness appears to have grown by £1.5m a year in each of the pandemic years and there is little to suggest that INTO Mason’s enrollments this year will grow above those in 2020.  IUP has they have the opportunity to offset any problems in pathway performance with direct recruitment revenue streams but the scale of the challenge seems clear.    

    No Miraculous Recovery

    As noted in a previous blog, the changing international student recruitment picture is likely to fundamentally change the way that pathway operators develop sustainable revenue streams.  In the US, Shorelight has acted quickly to develop a direct recruitment partners and has significantly outstripped IUP in this regard.  With recovery in the traditional core market of Chinese undergraduates looking sluggish and increasingly unlikely to ever reach the heights of the growth years the strategic challenge is very real for all concerned.

    There has been a longer-term malaise around IUP with recent changes at Board level and a developing “boots on the ground” strategy suggesting a shake-up is underway.  It comes off the back of a diminishing presence in both the US and UK which may be difficult to recover.  The route forward remains fraught with pitfalls and uncertainty.

    The direction of travel at GMU reflects the more general emerging picture for the US. Graduate enrollments look strong but as the recent IDP annual report showed interest from China looks relatively weak. As suggested in my recent blogs, the new enrollment battleground is India and with Australia back in the game and hungry it’s going to be an interesting year.

    Notes

    1. The Preliminary Daily Enrollment Reports and Dashboards carry data from 19 April 2022 to 25 August 2022 (as at 25 August).  Other Enrollments Reports carry an historical record taken at a Census date in October each year.
    2. INTO Mason accepts students at a number of intake points in the year but Fall enrollment is generally the largest intake and is the sole point of reference for this blog.

    Image by Joe from Pixabay 

    INTO THE OUT-DOOR?

    Like most fledgling businesses, INTO University Partnerships (INTO) had some difficult moments in its early years. In March 2008,  Austin Mitchell MP raised the matter in a Parliamentary question why it had not filed financial records with Companies House and founder Andrew Colin said that the delay in submitting accounts was a “simple mistake.”  It’s not the sort of mistake you expect a £119m revenue company to be making 14 years later, so the apparent failure to file accounts on time for the joint venture with the University of East Anglia (INTO UEA llp) seems a reasonable moment for considering other possible reasons.

    Companies House confirmed on 4 August that, “Upon checking the company record I can confirm that the LLP’s accounts for the period ending 31/07/2021 have not yet been received for filing at Companies House.”  This blog speculates without knowing the detail behind the late filing and it may turn out to be simply a matter of administrative failure.  Time will tell and I would be happy to provide an update if anyone with appropriate authority from the company or university contacts me with a plausible explanation.

    At one end of the spectrum the failure may simply be down to bad planning and Companies House list fines starting at £150 for being a month late to £1500 for being six months over the filing deadline.  They do go on to say that “Not filing your confirmation statements, annual returns or accounts is a criminal offence – and directors or LLP designated members could be personally fined in the criminal courts.”  One would guess that it’s unlikely to get that far.

    The delay does, however, raise the possibility that INTO and the University of East Anglia are in discussions about the future of the joint venture and are delaying the filing until a direction is clear.  It would require someone with appropriate accounting/auditing qualifications (which I don’t have) to fully explain the complexities of what needs to be declared in terms of timing (from balance sheet date to authorization for issue) and whether events are adjusting or non-adjusting.  Change would not, however, be unprecedented because recent history has seen INTO become 51% owners and take “significant control” of INTO Newcastle University LLP and new profit/loss sharing arrangements at INTO City LLP were noted in the 2020 accounts.

    Slip Sliding Away

    A previous blog noted the trajectory of INTO UEA’s student enrollments and the slide in the university’s international tuition fee revenue.  The parlous state of affairs at the joint venture was confirmed with the statement that there “will be no distribution in respect of 2020/21 nor for the next three years whilst the joint venture recovers and builds up surpluses for distribution.”  All that alongside a £7m loan guaranteed equally by both partners might be drivers of a discussion about the future.

    The University’s Council meeting in October 2021 was advised by the Vice Chancellor that at that point it was falling short of recruitment targets by c1,000 students.  This might suggest that international enrollments were also not picking up and the feed through from the joint venture was not as hoped.  It all seems good fodder for the Council member who requested at the Council meeting the following month an executive summary of “what was keeping the VC awake at night.”

    One other thing that might be on that list for both the University and the joint venture is that both look to be poorly positioned to seize the opportunities offered by India as the major growth market for the UK.  According to HESA data, UEA’s intake from India rose from 40 to 175 between 2016/17 and 2020/21 in a period when total Indian students in the UK rose from 16,900 to 84,555.  It is a period when UEA’s enrollment of students from China fell from 1,320 to 810.        

    Winds of Change

    The trail of INTO’s long term, joint venture model has been patchy and it has, arguably, not proved to be as responsive to university needs as the more traditional stand-alone pathway model.  In the UK five operational joint ventures have closed – INTO Glasgow Caledonian University (2020), INTO St Georges University (2017), INTO University of Gloucestershire (2019), INTO UEA London (2014), and INTO Newcastle London (2020).  In the US there have been closures at INTO Marshall (2019), INTO Colorado State University (2021) and INTO Washington State University (2021) as well as INTO St Louis becoming fully owned by INTO in 2021.

    A recent blog noted the shift in Shorelight’s range of university relationships from joint-venture pathways oriented to direct recruitment.  INTO has not been as dynamic in making that move but the shifting sands and complexities are captured in the grid below.  This presumes that the University of East Anglia remains a joint venture pathway operation with the university.

     Joint Venture Pathway with UniversityPathways (wholly or majority owned)Direct Recruitment OnlyDirect Admit Affiliates*
    US8128
    UK5310
    Australia1000

    *Described as “American universities that offer more choices to international students who seek direct admission.”

    The turbulence in international student recruitment is being felt throughout the sector and pathway operations are particularly sensitive to changes impacting the relatively small number of student that require extensive language support alongside academic study skills.  There are many examples of changing course portfolios, including International Year One, which reflect creative responses to new demands and developing visa scenarios to broaden the market for pathways.  It may be that the continuing need for flexibility brings an end to the long-term, deeply embedded, joint-venture vision that was considered by some to be an industry game-changer. 

    Image by Clker-Free-Vector-Images from Pixabay 

    Pathways Pivot for India?

    E.M. Forster suggested we should “mistrust all enterprises that require new clothes”2 but Shorelight has restyled its website and is offering aggregator type filters which reflect a change of direction.  The filters help clear up what’s been going on with their portfolio and suggests that the pressures on their pathway offerings are causing them to pivot at pace.  The site gives a clear sight into the dash for direct recruitment partners that looks to be the increasingly popular modus operandi for all pathway operators. 

    Searching suggests that a “groundbreaking new partnership”, signed with Mercer University in October 2018 who were described as “an exemplary partner for Shorelight” at the time, doesn’t even make the roster in 2022.  The pathway program in the fifteen year contract with the University of Kansas signed in 2014 seems to have come to an end just eight years later.  And the pathway with the University of Central Florida (UCF) heralded in 2013 as “another big win for the students of an institution that is clearly on the move” is also over.

    Only nine university partners are shown offering the full service of undergraduate and postgraduate pathway option with direct recruitment in both.  Leaving aside the three American Collegiate offerings there are a total of 14 undergraduate pathways and 12 postgraduate pathways.  It’s a complex offering, including three which are postgraduate direct recruitment only and with some significant restrictions – the Johns Hopkins University choices appear to be for engineering programs only.

    UG Direct Only11
    UG Direct and UG Pathway Option (no PG)14
    PG Direct Only3
    PG Direct and Pathway Option (no UG)12
    PG and UG Direct with Pathway Options in both9
    UG and PG Direct Only (no pathways)12

    For new readers, the American Collegiate offering is a “choice” program hosted by American University in Washington DC and with courses through UCLA Extension in Los Angeles.  The goal is then to transfer to an institution that will accept the credits.  American Collegiate Live offers online courses taught by UMass Boston and bearing academic credit with “full recognition” by 13 universities

    The Past Is a Different Country1

    When Elizabeth Redden reviewed the US pathway scene for InsideHigher Ed in 2018 she commented, “With a few notable exceptions, both Shorelight and INTO tend to contract with large institutions, and their partnerships tend to be larger scale.”  Those days seem long past with Shorelight’s burgeoning list including a long string of smaller, regional colleges.  INTO’s closures at Washington State University and Colorado State University also suggest the game has changed irrevocably.

    For completeness, the current state of relationships3 on major pathway operator websites shows:

     Current Total US PartnersCurrent US With Pathway*Closed in US Since 2018**
    Shorelight42183
    INTO1193
    Navitas317
    Study Group958
    • *Excludes American Collegiate
    • **Pathway announced/operational but no longer shown

    It is difficult at this point not to recall the ill-fated words of Karen Khemka, a partner with the Parthenon Group, who said in 2014, “The U.S. third-party/outsourced pathway market is less than half the size of the Australian market despite having a higher education system that is 10 times the size. We anticipate that growth will be constrained only by the pace at which private providers can develop the market.”  It came towards the end of a period when private equity invested over a billion dollars in pathway operators but as I asked in a 2018 blog, “..has attention to the supply side of the equation ignored the challenges of changing patterns of demand around the world?”

    Unless We Remember We Cannot Understand1

    Curiously, the pathway operators inverted the equation when they were promoting the growing supply of students to meet the demand of universities in the traditional recruiting countries of the US, UK and Australia.  They quoted the dubious “8 million globally mobile students by 2025” mantra and largely ignored the potential growth of inter-country competition, relatively low cost of entry for new pathways, the rising cost of acquisition as agent and student choice grew, and the threat of substitute products through technology.  Ignoring one of Porter’s Five Forces seems poor business sense but shunning all five seems less than sensible when you are investing significant amounts of money.      

    One talented US leader, running the American portfolio of a UK-based pathway operator, posed these fundamental questions shortly after INTO celebrated its £66m investment from Leeds Equity and Shorelight’s launch.  The company carried on regardless, although US losses mounted, the quality of partners declined and the UK operation stopped adding new partners.  As the Trojans found, it is unwise to ignore the insights and prophecies of a truth telling Cassandra.

    Other observations that were rarely heard out or given sufficient attention included:

    • the home of the pathways in Australia and the UK were 13-year schooling systems where the Foundation year of a pathway completed a fundamental requirement. This gave an ideal opportunity for language tuition and academic skill development.  US universities already took students after 12 years schooling and those with larger international cohorts often had well developed ELIs to accommodate language needs;   
    • recognition that the bubble created by fast-growing demand from China, particularly at undergraduate level, was coming to an end as demographics changed;
    • understanding that the bounty of state-sponsored language students was fading fast and unlikely to be replaced;
    • for many US universities the attraction of students paying out of state fees was as attractive financially as international students and seemed more accessible as a market;
    • the best US universities could already recruit if they wanted to and so the opportunities to have great brand names on the website was always going to be minimal.

    A Room With A View?1

    While new recruitment markets are emerging they are quite different in character and nature.  The growth in students from India has led to a demand at post-graduate level, often without the need for significant English language or pathway academic skills.  It seems likely that Shorelight’s willingness to take on direct recruitment for less well-known institutions reflects the reality that those students are less brand conscious, looking for lower fees and are more focused on a qualification that gives them post-study work options.

    It may be a model that is less stable and less lucrative than the pathway model appeared to be in the early part of the 21st Century but INTO and Shorelight have found the going very tough at many of their US pathways and need to do something.  As INTO launches its new strategy there may even be a longer term appetite for uniting forces with Shorelight in the US to become a super-dominant player.  Bringing the two groups together would offer a large direct recruitment portfolio, allow some selective reduction in competing or uncompetitive institutions, fill a gap in terms of online technology for INTO and should enable significant reductions in overheads.

    All of these types of potential mergers are riddled with questions about existing financial arrangements, for example Huron Consulting has $40.9 million in convertible debt in Shorelight Holdings LLC maturing in January 2024, competing institutions and cultural fit.  But when the CEO of INTO is talking explicitly about “lighter touch, lower investment” (The PIE live interview, 11 July 2022) ways of having discussions with universities, it seems reasonably clear that there is a shared interest in building non-pathway relationships.  The real question will be whether the new era for organizations that cut their teeth on pathways can drive enough revenue and profitability to be worthwhile and whether consolidation offers added value.   

    Of course, it may also be that the days of the recruitment behemoths are over.  Twenty years of pathways has created some highly skilled individuals with strong in-country contacts who could simply choose to go solo with a smaller portfolio of hand-selected university names.  Faced with a choice between being one of eight names in a portfolio or being in the bag of a sales team with 37, 48 or even 100 different products to promote, a smart university might choose to be in a select pack rather than a faceless herd.

    Notes

    1. Shameless use of E.M. Forster book titles and quotes throughout the article.
    2. Apparently, Forster adapted this quote from Henry David Thoreau
    3. It is not always easy to interpret the websites of pathway operators and I am happy to accept authoritative and evidenced corrections and note amendments where appropriate

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