You Must Remember This

One prediction for 2024 is that the ongoing legal dispute between INTO University Partnerships (INTO) and the University of South Florida (USF)1 is likely to provide hours of insight and legal argument.  It appears that the mediation of November 2023 was unsuccessful2 and there is plenty of continuing legal activity in the early part of 2024.  As ever, the summary below is taken from published documents and makes no observation on the arguments made by either side.

The Fundamental Things Apply

Things get moving early in the year with a JAWS hearing on a USF Motion for Summary Judgement on Thursday 4 January3.  INTO had been granted a continuance on a hearing of the Motion back in September 20234 but their next motion to delay the hearing further was denied on 4 December 20235.  The motion seeks a summary judgement against “(…the “INTO Entities”) on Count I, Breach of Contract, and Count VI, Breach of Duty of Good Faith and Fair Dealing, of the Second Amended Complaint (“SAC”)”.6

A range of legal arguments have been made on both sides and the tone is set early in the most recent submissions.  INTO’s filing suggests that the summary judgement should be denied because USF’s “..allegedly “unambiguous” interpretation of the contracts at issue is still unsupported by the contract language and violates the core tenets of contract law”.7  On the other hand USF’s response to that filing starts with the line, “The INTO Entities’ response ignores basic contract law.”8

In this context, it is interesting for a lay-person to read an article written for the Bar Association of San Francisco which starts, “If you wish to be taken seriously by the court, whether in oral or written argument, never malign or belittle your opponents or their position.”  As previous blogs have noted the various flourishes, acid comments and hyperbole in the written submissions for this case seem to ignore that advice with monotonous regularity.  

That No One Can Deny

Already up and running, with a lot more to come, is the taking of depositions under oath and on the record.  There must be a lot of management time, effort and probably stress (as well as lawyers fees) going into briefing and preparation for these.    

INTO’s lawyers are taking depositions from 14 USF related individuals9 with a start on December 12, 2023 and continuing from January 5 to January 25, 2024.  These include Glenn Besterfield, who was center director for INTO USF when it opened in 2009.  He later became dean for the Office of Admissions and associate vice president for student success at USF before moving on to become Dean of Enrolment Management at the University of North Florida in spring 2023.      

For USF the count runs to 12 INTO related individuals10 with ex-global COO Anmar Kawash and ex-CFO Jon Holmes among them.  The depositions start on January 4 and end with INTO founder Andrew Colin on Wednesday, March 13.

As Time Goes By

It is no surprise that this depth and breadth of activity led to a third extension of case management deadlines on 14 December11.  The Order indicates that discovery closes on March 29, 2024, with expert discovery closing on June 14, 2023 and the “Deadline to have dispositive and Daubert motions12 heard of [Friday], August 23, 2024.”  This seems set for the long haul.

In its Annual Report to July 2022, INTO noted as “contingent liabilities” that it had “provided for legal fees up to 31 July 2022 in relation to this ongoing litigation.  Further legal fees are expected to be incurred in FY23 in respect of this dispute and have been included in forecasts for this period.” It looks like FY24 will have more of the same.

For the University of South Florida their financial audit for the year to July 2022 said, “The University is involved in several pending and threatened legal actions. The range of potential loss from all such claims and actions, as estimated by the University’s legal counsel and management, should not materially affect the University’s financial position.”  To give this some context USF’s operating revenue for the year was $894m.

NOTES

The title and sub-headings of the blog are from “As Time Goes By” made famous by Dooley Wilson in the film Casablanca which was released in 1942. Dooley was a singer and drummer but not a pianist so the tinkling of the ivories was dubbed in. The song was written by Herman Hupfeld who was born nearly 130 years ago on 1 February 1894. Even as time goes by, class is permanent.

  1. The background to the court case between INTO University Partnerships and the University of South Florida has been outlined in several previous blogs. As before, the terms INTO and University of South Florida are used as short forms for the range of corporate plaintiffs and defendants. Full details and all public documents reference in this blog can be found through https://hover.hillsclerk.com/html/case/caseSearch.html the Hillsborough County Clerk of Courts search facility. Insert 22 for the year, CA-Circuit Civil for the Court type and 006001 for the case number.
  2. Filing # 188238925 E-Filed 12/18/2023 01:13:33 PM (point 4. of Exhibit 25 – Affidavit of Shawn J. Rabin)
  3. Filing # 187809851 E-Filed 12/11/2023 08:28:02 PM
  4. 09/14/2023 11:07:38 AM Electronically Filed: Hillsborough County/13th Judicial Circuit
  5. 12/04/2023 12:13:13 PM Electronically Filed: Hillsborough County/13th Judicial Circuit
  6. Filing # 179813559 E-Filed 08/16/2023 03:28:09 PM)
  7. Filing # 188161134 E-Filed 12/15/2023 06:08:23 PM
  8. Filing # 188693985 E-Filed 12/27/2023 11:55:52 AM  
  9. Filing # 186997655 E-Filed 11/29/2023 02:20:27 PM
  10. Filing # 186594368 E-Filed 11/21/2023 12:05:10 PM
  11. 12/14/2023 10:05:23 AM Electronically Filed: Hillsborough County/13th Judicial Circuit
  12. A Daubert motion is a specific type of motion in limine13.  It is raised before or during trial, to exclude the presentation of unqualified evidence to the jury.  Daubert motion is used to exclude the testimony of an expert witness does not possess the requisite level of expertise or used questionable methods to obtain data.  It is the outcome of 1993 Supreme Court case, Daubert v. Merrell Dow Pharms., 509 U.S. 579 (U.S. 1993).
  13. Always interesting when a footnote needs a footnote but the term was new to me.  In limine is a Latin term meaning “on/at the threshold”.  In this context it relates to a pretrial motion requesting that certain evidence be found inadmissible.

Image by Mohamed Hassan from Pixabay

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