ACC VS Univ Maryland: Round 1 to ACC

[HtownOrange]

Anecdotal info:

I have been involved in some large scale litigation (much larger than this issue). Both sides will request virtually any document, phone records, texts, emails, verbal conversations, etc. that they believe may help in their arguments. This is part of discovery. Once each side has the documents they will prepare to depose any party that may be of use to their case. Both sides do this and there are generally no surprises as each side has surrendered the request documents to each other. Side A knows what was sent to Side B and what was received from Side B, and vice versa.

With that in mind, both sides will prepare for depositions, both to prepare the people to be deposed on their side and to tear apart the other side's deposees. Both sides have excellent attorneys and everyone will be well prepared. However, neither side can go back and change what has happened, these are the facts. These will be exposed on both sides. This is what gets ugly as each side has information that in the public can dimish their reputation.

I.e: From the ACC side; expect Maryland to review how he ACC chose Syracuse, Pitt, Louisville, and ND. Expect the ACC to demand all communications between any Maryland employee, Board member, large donor/booster (they fall under Maryland's scope of responsibility per the NCAA). Even though not everyone will be guilty of breaking laws or contracts, they will have things they do NOT want exposed (personal info, financial info, methods, contacts, etc).

Both sides will file motions to limit evidence, throw out evidence, block the other side, etc. Each of these will require a hearing before a judge. Once the discovery is completed, both sides will likely wish to negotiate a settlement based on the facts before them. Each side will know what the other has and each side will know that the judge will rule in a trial based on these same facts (the hearings will have determined what is in and what is out). This helps both sides negotiate, they already have a good idea what the outcome will be.

If they cannot agree to settle the matter, then a trial will be held. There are very few surprises in court, unlike Hollywood. Approximately 95-98% of all cases (criminal and civil) are resolved before a trial is held.

Every time a hearing is held and one side wins that argument, their respective case is strengthened. As mentioned above, winning at the trial (fact finding, a.k.a. court of first impression) level is very important and makes it harder to overturn the decision. Though appeals and supreme courts can decide a case de novo (or, as i it was new, as if they were the fact finders) they are reluctant to do overturn a factfinder decision unless it is contrary to law or overwhelming evidence.

Both sides could negotiate right now as both sides know what will probably be in evidence. However, with $52MM on the line, spending a $1MM to reduce this number (Maryland) or enforce this number (ACC) is a business decision to force the other side to settle at a truer number than an acceptable number right now.

* Of note: In NY, the court of first impresion is the Supreme Court, with the Appeals Court the highest court in the state. In all other jurisdictions, the Supreme Court is the highest court.

 

[Alsacs]

Sorry for the delay, when I said Maryland would move the case from NC State court to Federal Court I meant that under the law if you have diversity in the lawsuit meaning all the plaintiffs and defendants reside from different states then either side(however 90% of the time its the defendant) can move the case into federal court if the lawsuit has complete diversity and the amount in controversy is over $75,000 dollars. In this case the amount in controversy is well over 75k and Maryland is the Defendant and none of the plaintiffs are from Maryland so Maryland can move the case from NC Distrist Court into NC Federal Court. The reasoning for doing this is because Maryland will try to negate the homecourt advantage that the ACC and its members will have in NC District Court. In the state of NC, judges are elected by the people and sometimes have to make rulings that are more in line with their constituents rather than have the freedom that appointed judges have. In Federal Court every Judge is appointed and while the NC Federal Judges probably have a NC centric lean they are probably going to give Maryland and its legal team a fairer outcome in rulings than NC State District judges.

Onto the issue of jury trial if I could read the initial pleading I could tell if the ACC requested a jury trial or not. Under rule 38 NCRCP you must request a jury trial within 14 days of the initial pleading. The ACC would likely want a jury trial as in civil cases you don't need a unanimous jury to be victorious and its likely the ACC would be able to get a friendly jury even I would expect all peremptory challenges to used by Maryland.

Finally, OrangePA the deposition isn't limited completely to the issue of the bylaws breach I am sure the Maryland lawyers will go thru EVERY email, message, letter Swofford issued to his members and will surely ask about ESPN's involvement in expansion talks and will make Swofford squeal during his deposition it won't be pretty. The ACC lawyers surely will prepare and deflect as many questions as they can but it will be bad that is why I am sure this will get settled.

 

[HtownOrange]

For those following the legal speak, please understand that lawsuits are far more complex than we present in this forum. However, we, like you, are simply presenting out opinions and trying to keep it simple.

Those of you that have been through lawsuits personally or corporately can vouch from your personal experience that there are many things that go on before a trial is actually held.

Please feel free to challenge us for explanations. Please be patient, though, as there will be much confusion. Please understand that we are only presenting our opinions, just like Oklahoma joining the B1G, any day now, unless it doesn't.

 

[Alsacs]

For those following the legal speak, please understand that lawsuits are far more complex than we present in this forum. However, we, like you, are simply presenting out opinions and trying to keep it simple.

Those of you that have been through lawsuits personally or corporately can vouch from your personal experience that there are many things that go on before a trial is actually held.

Please feel free to challenge us for explanations. Please be patient, though, as there will be much confusion. Please understand that we are only presenting our opinions, just like Oklahoma joining the B1G, any day now, unless it doesn't.

+1 what I am saying is legal speak, but is my opinion I am sure the ACC attorneys and Maryland attorneys may have different opinions.

 

[Crusty]

Sorry for the delay, when I said Maryland would move the case from NC State court to Federal Court I meant that under the law if you have diversity in the lawsuit meaning all the plaintiffs and defendants reside from different states then either side(however 90% of the time its the defendant) can move the case into federal court if the lawsuit has complete diversity and the amount in controversy is over $75,000 dollars. In this case the amount in controversy is well over 75k and Maryland is the Defendant and none of the plaintiffs are from Maryland so Maryland can move the case from NC Distrist Court into NC Federal Court. The reasoning for doing this is because Maryland will try to negate the homecourt advantage that the ACC and its members will have in NC District Court. In the state of NC, judges are elected by the people and sometimes have to make rulings that are more in line with their constituents rather than have the freedom that appointed judges have. In Federal Court every Judge is appointed and while the NC Federal Judges probably have a NC centric lean they are probably going to give Maryland and its legal team a fairer outcome in rulings than NC State District judges.

Onto the issue of jury trial if I could read the initial pleading I could tell if the ACC requested a jury trial or not. Under rule 38 NCRCP you must request a jury trial within 14 days of the initial pleading. The ACC would likely want a jury trial as in civil cases you don't need a unanimous jury to be victorious and its likely the ACC would be able to get a friendly jury even I would expect all peremptory challenges to used by Maryland.

Finally, OrangePA the deposition isn't limited completely to the issue of the bylaws breach I am sure the Maryland lawyers will go thru EVERY email, message, letter Swofford issued to his members and will surely ask about ESPN's involvement in expansion talks and will make Swofford squeal during his deposition it won't be pretty. The ACC lawyers surely will prepare and deflect as many questions as they can but it will be bad that is why I am sure this will get settled.

That is pretty much what I have been expecting as well except that I am not so sure the ACC would want a jury trial as juries are so unpredictable I would think they would rather have a NC judge regardless state of federal. That said, it is possible that they might want to scare the hell out of MD with prospect of a tar heal jury and force them to a favorable settlement.

Now that the trial will not change venue it is time for MD to have the case removed to federal court. If they are going to do it they will do it sooner rather than later so as to get the federal rules to apply. I suspect that will be the next move we read about.

With respect to discovery, let's not forget that Wallace Loh will get deposed as well and it will not be pretty either. The simplest depo even as a fact witness not involved in the case can be painful. Anyway, my guess is that MD has more to hide than the ACC. I doubt that the discovery process will deter either party in a matter so important.

While I doubt that any interlocutory appeals (as someone mentioned) will arise to delay the hearing of this case, however, the case could certainly still drag on. As a practical matter, so long as the specter of of a $50 million exit fee is out there, ACC members will probably cool their jets. Delay good (fire bad!)

 

[IthacaMatt]

For all the attorneys out there, why would this go to trial? This is a contract claim. It's a matter of law. Unless there are questions of fact, I don't see why a jury would be necessary for this claim. Motion practice would seem sufficient.

Questions of fact will arise as to the measure of damages. How is it measured? By the impact on TV contracts? Can you measure the instability inflicted on the conference by a defection? (Look to the Big East...) Maryland will argue that Louisville was quickly grabbed as a replacement, mitigating the ACC's damages, but if I were arguing the case for the ACC, I would be pointing a finger at what happened to the Big East and say that the damage to my conference cannot be measured and that the full exit fee must be upheld because (A) it was agreed to by the membership; and (B) if the Big 10 is permitted to do this again, tens of millions of dollars per year in damage will be done to *each* member institution many years into the future. What's the total value of the ACC's contract with ESPN, something like $2 billion over 10 years?

Sure, this will probably be settled, but not until one side or the other releases some damaging information to get the momentum going their way.

 

[SUbear]

That is pretty much what I have been expecting as well except that I am not so sure the ACC would want a jury trial as juries are so unpredictable I would think they would rather have a NC judge regardless state of federal. That said, it is possible that they might want to scare the hell out of MD with prospect of a tar heal jury and force them to a favorable settlement.

Now that the trail will not change venue it is time for MD to have the case removed to federal court. If they are going to do it they will do it sooner rather than later so as to get the federal rules to apply. I suspect that will be the next move we read about.

With respect to discovery, let's not forget that Wallace Loh will get deposed as well and it will not be pretty either. The simplest depo even as a fact witness not involved in the case can be painful. Anyway, my guess is that MD has more to hide than the ACC. I doubt that the discovery process will deter either party in a matter so important.

While I doubt that any interlocutory appeals (as someone mentioned) will arise to delay the hearing of this case, however, the case could certainly still drag on. As a practical matter, so long as the specter of of a $50 million exit fee is out there, ACC members will probably cool their jets. Delay good (fire bad!)

Delany also subject to be deposed(not in the BIG PR strategy), and it might also not be to the BIGs interest as to attempting to damage the ACC(after the ND shift to ACC who the BIG really covets). All this I would think. probably favors a settlement more to the ACC side of 50M with perhaps the BIG agreeing to pony up a part of Maryland payment.

 

[Crusty]

Delany also subject to be deposed(not in the BIG PR strategy), and it might also not be to the BIGs interest as to attempting to damage the ACC(after the ND shift to ACC who the BIG really covets). All this I would think. probably favors a settlement more to the ACC side of 50M with perhaps the BIG agreeing to pony up a part of Maryland payment.

It will be hard to reach Delaney unless the case is moved to federal court. NC has no jurisdiction over him.

 

[HtownOrange]

It will be hard to reach Delaney unless the case is moved to federal court. NC has no jurisdiction over him.

Agreed, but the ACC will get copies of any and all communications to or from Delaney/B1G/each school, at least from the Maryland end. Then they will request to depose these individuals and if the individuals choose not to be deposed, the ACC will spin this in court. Without the depositions, this will likely bode ill for Maryland, especially if there is any evidence of anything underhanded. If there is anty stonewalling, the ACC may simply add the B1G, BTN and each school as a co-conspirator/co-defendant, charge them with interference and then they fall under the NC Court jurisdiction.

The Federal courts may still be in play, either way.

Obviously, this can backfire, but the ACC has the upper hand in that they have the contract on their side. Maryland has the burden of proof right now to prove why the contract is invalid or punitive and they must do so with clean hands.

 

[Crusty]

Correct Htown- I really do think MD has the most to hide and it could get embarrassing. At the end of the day this will boil down to a finding of fact with respect to the liquidated damages issue. Home team wins.

 

[kirbivore]

so when is round 2?