p's motion for supp relief

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Plaintiff’s Motion for Rule 23(d)(5) Orders

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

JANE DOE, individually and for all others

similarly situated,

Plaintiff,

vs.

TEXAS A&M UNIVERSITY 12th MAN

FOUNDATION a/k/a THE 12TH MAN

FOUNDATION,

Defendant.

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No. 0:15-cv-60581-WPD

MOTION FOR ORDERS PURSUANT

TO RULE 23(d)(5) AND THE

INHERENT AUTHORITY OF THE

COURT

Expedited Relief Requested

Case 0:15-cv-60581-WPD Document 8 Entered on FLSD Docket 03/24/2015 of 24


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Pursuant to Federal Rule of Civil Procedure 23(d)(5) and the Court’s inherent authority,

Plaintiff respectfully moves the Court to order on an expedited basis that Defendant Texas A&M

University 12th Man Foundation (Foundation) disclose to potential and recent purchasers of

seating rights at Texas A&M University’s Kyle Field football stadium that certain Permanently

Endowed seating rights are in dispute in this litigation. The order is necessary so that the

equitable rights of Plaintiff and the Class to specific performance of their Permanently Endowed

Scholarship Program contracts with the Foundation are not disturbed by any claim of a bona fide

purchaser without notice.

Additionally, Plaintiff asks the Court to order the Foundation to cease and desist and

otherwise to refrain from its efforts to harass, intimidate, punish or disadvantage Plaintiff and the

Class Members for their expressed disagreement with, and actions to prevent or remedy, the

Foundation’s Reseating Plan for Kyle Field that is the basis of Plaintiff’s Original Class Action

Complaint in this proposed class action.

As more fully developed below and in Plaintiff’s Original Class Action Complaint, this

lawsuit concerns the Foundation’s unilateral abolition of lifetime stadium seating rights

bargained for by 494 major donors to the Foundation including Plaintiff Doe prior to the

Foundation’s unilateral decision to remodel and “reseat” the locations in Kyle Field in which the

1760 premium seats of the proposed class of Permanently Endowed Scholarship Donors had

long been established. The Foundation’s Reseating Plan denies Plaintiff and the Class two

promises that the Foundation kept for decades until now: 1) the right to an established seat

location within Kyle Field for the duration of their endowment agreements (lifetime or 30-year),

and 2) the right to maintain (and to improve) those established seat locations at no additional cost

for the duration of their endowment agreements. Plaintiff and the Class seek specific

performance of these promises.

Disclosure that the 1,760 seat locations at issue (out of 102,512 in the stadium) in this

lawsuit is necessary to preserve the equitable remedy of specific performance for breach of

contract to Plaintiff and the Class, and to achieve full disclosure to Foundation members, who


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are unaware that the seat locations they may be selecting are claimed to be subject to a superior,

pre-existing right of ownership, the resolution of which claim is one of the subjects of this

lawsuit. While the Foundation should want to protect its own interests by full disclosure to its

customers, see § 501.204, Fla. Stat. Ann. (declaring deceptive acts or practices in the conduct of

any trade or business unlawful), Plaintiff asks the Court to order disclosure so that the

Foundation’s new purchasers of these disputed seating rights do so with full knowledge and thus

gain no equitable claim to the seats as bona fide purchasers without notice.

Protection of Plaintiff and the Class from intimidation and retaliation by the Foundation

is, unfortunately, also necessary. The legal rights of the parties before the Court cannot be fairly

determined under threat by one of retaliation against the other. Courts frequently control access

and the flow of information to potential class members to preserve the integrity of the legal

process.

The Court’s acting on an expedited basis is necessary because the Defendant’s

Seating Selection process began March 16, 2015, and is ongoing. Each day, the highest

ranked donors of the Foundation are selecting their seats from the best, remaining seating

locations, some of which belong to Plaintiff and the Class. Thus, each day that passes the

rights of the Class to seek specific performance of the Endowment Agreement to regain their

established seating locations at Kyle Field may be diminished to the extent the new persons

could maintain that they acquired their seats in good faith without notice of the claims of

Plaintiff and the Class.

Activity Prior to This Filing

The Foundation’s goal from the very beginning has to been to string the Endowed Donors

along and continuously jerk them around until the Reseating Process began, at which point the

Foundation thought it would be home free from the claims of the Endowed Donors. A detailed

account of the despicable actions of the Foundation is contained in the Affidavit of Claude M.

McQuarrie III, Exhibit 4 hereto. Initially, certain Endowed Donors tried to resolve the issues with



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the Foundation informally, to no avail1. Finally in 2013, Endowed Donors began filing individual

state court actions. Eventually, a judge ordered all the cases to a “global mediation” in the Fall

of 2014. Id., at para. 25. The mediations did not begin until February 2015 and continued right

up to the impending March 16th deadline with no resolution in sight for some Endowed Donors.

Id.

Finally, Friday, March 6, 2015, at 5:00 p.m., negotiations broke off for three of the

Endowed Donors, who recognized they were not being dealt with in good faith. Those

Endowed Donors recognized they would have to take extraordinary action to protect their Seat

Locations and those of other fellow Aggie Endowed Donors, which was important to them.

Sammy D. York, Henry H. Holubec, Jr. and Gregory Hayes were forced to step forward and

seek injunctive relief.

They filed a Class Action Complaint and Motion for Temporary Restraining Order

(TRO) and Preliminary Injunction in the United States District Court for the Eastern District

of Texas. Judge Rodney Gilstrap of that court denied the TRO and Preliminary Injunction,

finding that those plaintiffs had not met the high standard for such extraordinary relief. York v.

Texas A&M 12th Man Foundation, No. 2:15-cv-00352-JRG, slip op. at 3 (U.S. Mar. 14, 2015)

(copy attached as Exhibit 1).

At the time of filing its Opposition to the Motion for TRO and Preliminary Injunction, the

Foundation filed a Motion to Dismiss for Lack of Jurisdiction and submitted credible evidence

that an exception to CAFA existed in that case, and Texas court lacked jurisdiction. Rather than

rush to non-suit, the York Plaintiffs researched whether the jurisdictional defect could be cured

by adding an out of state Plaintiff. The Foundation’s position is that Plaintiff Doe cannot proceed

in Florida with her case as long as the York case is pending. So, as the games continued, the

Foundation rushed and filed an answer in an attempt to keep the very case alive that the

Foundation said could not proceed in federal court in Texas. The York Plaintiffs, who do not

1 Affidavit of Claude M. McQuarrie III, Exhibit 4, para. 24.



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wish to waste the Texas court’s resources, joined in the Defendant’s Motion to Dismiss and filed

their own Motion to Dismiss the Texas action. These motions are pending before the Texas

court.

Specific Relief Requested

Plaintiff moves the Court upon the allegations in her Original Class Action Complaint,

the following memorandum of law, and evidence in the affidavits attached to the Complaint of

the following participants in the Foundation’s Permanently Endowed Scholarship Program:

Plaintiff Doe (Complaint Exhibit 1) (sealed), Sammy D. York (Complaint Exhibit 7), former

Foundation Executive Committee member Henry H. Holubec, Jr. (Complaint Exhibit 8), and

Gregory R. Hayes (Complaint Exhibit 9), for orders:

1. requiring Defendant 12th Man Foundation to disclose in writing prior to the time

of purchase and within 48 hours of the Court’s order to the purchasers of seating locations in

the Redeveloped Kyle Field that correspond to the locations of Plaintiffs’ established seating

locations and to those of proposed Class members that the right to be seated at those locations

this year, and for the term of their 15-year endowment and thereafter, is disputed in this action

and subject to determination by the Court. Plaintiff asks the Court to order Defendant to mail

notice to purchasers and to provide notice in advance of purchase via notice posted or

appearing at mouse-click or hover-over selection of a disputed seating location on the

Foundation’s Seat Selection webpage;

2. restraining Defendant 12th Man Foundation from its efforts to harass and

intimidate the Permanently Endowed Donors who object to the Foundation’s plan to reseat

Kyle Field; and

3. ordering Defendant 12th Man Foundation to refrain from taking any action that

would punish or disadvantage Plaintiff or any other Permanently Endowed Donor by reason

of the bringing of this lawsuit.

As additional evidence in support of this relief, Plaintiff files with this motion the Affidavit

of Deborah Lawson detailing the threats made against her alumni group by the Foundation, when

the group was considering legal action against the Foundation to protect its three Endowed Seats.

See Exhibit 3, filed herewith. Other Foundation threats and intimidation are detailed in Mr.

Holubec’s affidavit attached to the Complaint at Exhibit 8.

Finally, the Affidavit of Claude M. McQuarrie III filed with the Complaint at Exhibit 6



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is updated to include information about the history of related litigation and filed with this motion

as Exhibit 4.

Dated: March 24, 2015

Respectfully submitted,

PODHURST ORSECK, P.A

s/ JOHN GRAVANTE, III

Peter Prieto

John Gravante III

25 West Flagler Street, Suite 800

Miami, Florida 33130

(305) 358-2800

[email protected]

[email protected]


DEBRA BREWER HAYES

CHARLES CLINTON HUNTER

700 Rockmead, Suite 210

Houston, TX 77339-2111

Telephone: (281)-815-4963

Facsimile: (832) 575-4759

[email protected]

[email protected]

ATTORNEYS FOR PLAINTIFF


mailto:[email protected]



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MEMORANDUM IN SUPPORT OF MOTION FOR RULE 23(D)(5) ORDERS

Plaintiff asks the Court to protect her property interests and to protect the integrity of this

litigation by issuing orders pursuant to rule 23(d)(5) and the Court’s inherent authority requiring

the Defendant Foundation to make certain disclosures and restraining the Foundation from

intimidating and punishing Plaintiff and Class members, either for voicing their objections to the

Foundation’s reseating plan, or for participating in this action.

Introduction

Plaintiff has sued Defendant for specific performance of her Permanently Endowed Donor

contract. As alleged in Plaintiff’s Original Class Action Complaint, Ms. Doe’s father contributed

over $30,000 to the Foundation to endow four seats in exchange for the best tickets to all Texas

A&M University (TAMU) football games, the “best available” seating and “best available”

parking at TAMU’s Kyle Field, and admission to a pre-game buffet—all at no charge other than

the endowment. Defendant’s Development Staff uniformly and consistently represented to

potential donors that they also could upgrade their seats during the term of their endowments

without additional charge, as other endowed seating locations became available through death or

attrition. Class Action Complaint (CAC) ¶2.

Over time, the stadium seats and parking spaces became more valuable, and the

Foundation concluded that it had made bad deals with the Permanently Endowed Donors, who the

Foundation believed had not continued to donate at levels of the “new generation” of Aggie alumni

that had come along. Thus, the Foundation began to erode the benefits bargained for by the

established Permanently Endowed Donors so that it could attract new and additional donations

from “the next generation of the 12th Man donors.” See Aggie Access Priority Point Program

described on the Foundation’s website page, printed at Complaint Exhibit 12. Ultimately, the

Foundation created a rewards and incentive structure called the Priority Points Program that it first

applied to parking, promising that it would not impact Endowed seating. Recently, the

Foundation decided to remodel a portion of Kyle Field in which the Endowed seating is located



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and took that event as an occasion to break its promises and apply the Priority Points Program to

seating in the “Redeveloped Kyle Field.”

This lawsuit is brought because, despite Defendant’s rationalization of convenience,

Permanently Endowed Donors have not received full value for the financial sacrifices they made

long ago before Johnny “Football” Manziel boosted TAMU’s Aggie football program into national

prominence.

Rather than “grand-father” the Class’ Endowed seating locations into its Reseating Plan’s

Seat Selection process2, the Foundation has required the Class to compete with new donors for the

seating rights promised to them in their Endowment Agreements. First, the Reseating Plan took

away the Seating Locations the Endowed Donors have held for years. Then, the Reseating Plan

required the Endowed Donors to make additional contributions to compete for ranking in the Seat

Selection process and thereafter to make substantial, additional and continuing annual payments

(called “Capital Campaign Gifts” and “Annual Seat Contributions”) to the Foundation just to be

eligible to watch Aggie football games from the Endowed seating locations that they had long ago

established as theirs. The Reseating Plan does not provide any guaranteed right for the Endowed

Donor to get their exact Seat Location, no matter what they pay. The Reseating Plan is not the

experience or the deal for which Plaintiff and the Class bargained with the Foundation.

Argument

Plaintiff and the Class are entitled to specific performance of the Endowment Agreement.

The Court has the power and the duty to protect this equitable right by ordering disclosures about

this litigation to participants in the Foundation’s Seat Selection process. The Court also has the

power and duty to protect the integrity of is processes from the threats, intimidation and

punishment of the Foundation leveled at putative Class members.

2 In contrast, the University of Texas at Austin honored its commitments to alumni with grand-fathered stadium

ticket pricing, but is restricting resale rights on those seats. See Stefan Scrafield, Longhorns football ticket prices

increase; best seats command hefty cost for new buyers, available at http://collegesportsblog.dallasnews.com/

2015/03/texas -increases-football-ticket-prices-by-six-percent-introduces-199-season-ticket-option.html/.


http://collegesportsblog.dallasnews.com/


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I. THE COURT HAS THE POWER AND DUTY TO ISSUE THE

REQUESTED ORDERS, AND GOOD CAUSE EXISTS FOR THEM

The Court may exercise its inherent powers or its broad discretionary powers under rule

23(d)(5) to protect the parties, class members and the Court’s processes during this litigation both

before and after class certification. As a federal district court in Florida noted long ago:

It has long been recognized that a Court has the inherent power to enter such Orders

as may be necessary to the proper administration of the litigation before it. This

concept is embodied in Rule 23(d), Federal Rules of Civil Procedure, which provides,

inter alia, that the Court, in class actions such as these, ‘may make appropriate orders:

(1) determining the course of proceedings * * * (3) imposing conditions on the

representative parties * * * (and) (5) dealing with similar procedural matters.’

Peoples v. Wainwright, 325 F. Supp. 402, 403 (M.D. Fla. 1971) (issuing orders embodying the

ultimate relief sought in prisoner rights litigation pursuant to inherent powers and rule 23(d)(5)).

See also, Newberg, Orders in the Conduct of Class Actions: A Consideration of Subdivision (d),

in The Class Action—A Symposium, 1969, 10 B.C.Ind. & Com.L.Rev. 577.

The federal rules were amended in 1966 to state specifically that courts have the power

to issue orders to control class action litigation. See, § 1796 Orders Relating to the Conduct of

Class Actions—Other Procedural Matters, 7B Fed. Prac. & Proc. Civ. § 1796 (3d ed.) (“Although

prior to 1966 there was no specific provision governing the court’s power to issue orders

controlling the procedure in class actions, it generally was recognized that there was wide judicial

latitude in the management of class suits.”). The only limitation is that a court “cannot issue orders,

in the guise of managing the action, that actually substantially alter a party’s ability to present the

merits of a claim or defense.” Id.

The Court has the power and the duty to direct or restrict communications from the

Foundation to prevent interference with the proper administration of a class action and the

effectiveness of its remedial nature and to restrict conduct that abuses the rights of members of the

class. The Court may control any abuse of the class action process

as well at the precertification stage as after certification as a class action … in view

of its supervisory power over and its special responsibility in actions brought as



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class actions…the District Court would appear to have an ample arsenal to

checkmate any abuse of the class action procedure, if unreasonable prejudice to

absentee class members would result, irrespective of the time when the abuse arises.

Shelton v. Pargo, Inc., 582 F.2d 1298, 1306 (4th Cir. 1978). The Court is a fiduciary who must

protect the rights of absent class members. See, e.g., Burford v. Cargill, Inc., CIV.A. 05-0283,

2013 WL 4506224, at *7 (W.D. La. Aug. 21, 2013) (invalidating companies’ “collection services”

agreement with class members).

Courts have used rule 23(d)(5) to order the parties and their counsel to refrain from

contacting absent members of a class with regard to the litigation without the court’s approval. See

cases cited in 7B Fed. Prac. & Proc. Civ. § 1796 n.11 and discussion id., at § 1794.

Moreover, good cause exists to issue the requested orders. Plaintiff and the members of

the proposed class need, as wells as the new purchasers, the Court’s protection from the

Foundation. Once new seating rights are issued to unwitting purchasers, the situation will become

like that described by a court asked to order re-seating of a football stadium in Pittsburgh.

Moreover, we do not believe that greater injury would result from refusing rather

than granting Plaintiffs’ request for an injunction ordering Defendants to reissue

“all seat licenses and all season ticket seats.” To the contrary, the granting of such

injunctive relief would disturb the seating assignments of thousands of fans who

may be as satisfied with their seats as Plaintiffs are dissatisfied. Inevitably, this

would lead to the filing of additional lawsuits, prolonging the outcome of this

litigation.

Yocca v. Pittsburgh Steelers Sports, Inc., 806 A.2d 936, 946 (Pa. Commw. Ct. 2002), rev'd, 578

Pa. 479, 854 A.2d 425 (2004). Full disclosure of the claims made in this lawsuit to the

participants in the Foundation’s Seat Selection process will avoid such problems in the re-seating

of Kyle Field. In that way, expectations of the new purchasers will not become settled, and the

equitable rights of Plaintiff and the Class will not be diminished. As shown below, Plaintiff and

the Class have a strong case for specific performance that deserves protection by the Court. As

it is the Foundation who as acted in opposition to the settled expectations of the Permanently

Endowed Class, equity dictates that it fully inform participants in its Seating Selection process


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that the rights to 1760 seats in Kyle Field are in dispute.

Similarly, good cause exists for the Court to order Defendant not to attempt to influence

the outcome of this litigation via threats, harassment and punishment of parties and Class

members. The evidence adduced by Plaintiff in the affidavits of Deborah Lawson and Henry

Holubec is sufficient to find “a likelihood of serious abuses.” Ojeda-Sanchez v. Bland Farms,

600 F. Supp. 2d 1373, 1378 (S.D. Ga. 2009) (citation omitted). “Actual harm need not proven,”

id., although Ms. Lawson relates that the threats against her organization were harmful enough to

keep it from bringing the litigation it had considered against the Foundation.

II. PLAINTIFF’S ENTITLEMENT TO SPECIFIC PERFORMANCE

SHOULD BE PROTECTED AS AGAINST SUBSEQUENT PURCHASERS

Plaintiff asks the Court to order the Defendant Foundation to notify persons participating

in the Seat Selection process of this lawsuit and of Plaintiff’s claims so that these participants

(and through them the Foundation) cannot later claim the equitable rights of a bona fide

purchaser without notice and thereby defeat specific performance.

Plaintiff and the Class are entitled to specific performance. They bought the right to

experience Aggie football from the vantage point of Permanently Endowed Donors. The

contractual rights of Plaintiff and the Class are peculiar and unique location rights akin to real

estate, for which specific performance is readily available. The Foundation has admitted the

existence of the Endowment Agreements, their terms and duration, and it has admitted that the

Reseating Plan breaches these agreements. The Foundation has no meritorious defense to

specific performance of its contract with Plaintiff and the Class.

A. DEFENDANT HAS ADMITTED THE EXISTENCE OF

ENDOWED DONOR CONTRACTS AND THAT THE

RESEATING PLAN VIOLATES THOSE CONTRACTS

The history of the endowed donor program is summarized by the Foundation in its Parking

Report created in January 2005 (attached as Complaint Exhibit 5). In the report, the Foundation

admits the existence of the permanently endowed donor parking and seating benefits. On page



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10 of Parking Report, the history of the bargains made with Permanently Endowed Donors are

summarized.

The Foundation’s motivation for eroding Permanently Endowed Donor benefits is

explained on page 15 of the Parking Report as “The perks from the Endowment Program have not

created incremental financial loyalty to the Athletic Program. The data provided shows the

opposite result.”

A committee charged with studying the impact on Permanently Endowed Donors of the

Foundation’s Reseating Plan recommended that the rights of Permanently Endowed Donors be

preserved by “grand-fathering” them (Priority Point Task Force, February 1, 2006 meeting) but

the Foundation’s trustees overrode this recommendation. (Full Development Committee meeting,

February 24, 2006; see Complaint Exhibit 18.) The Foundation claims that its Reseating Plan is

“fair” and that the Permanently Endowed Donors should just be “good Aggies” and accept the

changes.

More specifically, over the years, the Foundation has made the following admissions

against its interests:

a. In a letter dated June 10, 1988, Defendant describes Mr. York’s Permanently Endowed

Donors benefits to include “four complimentary tickets to all A&M football games, buffets at

home football games and parking at all home games. This was the commitment of the Aggie

Club.” (Emphasis added.) (Copy attached as Complaint Exhibit 7-B.)

b. In letter to Permanently Endowed Donor York dated October 10, 1991, and signed by

the Foundation’s Executive Director Harry J. Green, Jr., the Foundation admits the existence

of the 12th Man Foundation’s Permanently Endowed Scholarship Program and that it included

benefits for Plaintiff York of a 2-seat endowment to be honored “during the lifetimes of Sammy

York and/or Cherisa York.” (Copy attached hereto as Complaint Exhibit 7-D.)

c. In a Memorandum of Endowment Subcommittee Recommendations dated June 22,

2004, the Foundation admits the existence of endowments and discusses a buy-back program

and recommends that the upgrade benefits no longer be honored unless the endowed member

has a written agreement. (Copy attached hereto as Complaint Exhibit 14.)

d. In a letter dated March 3, 2005, Foundation Executive Director W. Miles Marks

discusses the benefits of Permanently Endowed Donors and “grand-fathered seating for Kyle

Field not subject to change and how the suggested Priority Points System will not affect grand-



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fathered programs like that of the endowed donors.” (Copy attached hereto as Complaint

Exhibit 16.)

e. In its February 24, 2006 Minutes of the Full Development Committee Meeting, written

and verbal promises having been made incident to endowment agreements are acknowledged.

(Copy attached hereto as Complaint Exhibit 18.)

f. In its April 7, 2006, Executive Committee Meeting Minutes the Foundation

memorializes its decision to deny appeals of Priority Point System decisions on “oral promises

that lack other supporting documentation.” (At item XII.) (Copy attached hereto as Complaint

Exhibit 19).

g. In its Q&A Points for Aggie Access Priority Points System at the Foundation’s Annual

Board Meeting on June 24, 2006, the Foundation notes in the response to Question 2 that “cash

[rather than honor] drove the priority point system.” (Copy attached hereto as Complaint

Exhibit 17.)

h. In its Recap of Development Committee September 12, 2006, Conference Call Minutes

the Foundation acknowledges agreements in place for lifetime endowments and considered

honoring its obligation by passing to beneficiaries actual parking spaces but decided instead to

pass priority points. (Copy attached hereto as Exhibit 5.)

i. 2007 Minutes of a Board meeting of the Foundation reveal in its last item that Priority

Points appeals have resulted in exceptions for certain Permanently Endowed Donors. (Copy

attached hereto as Exhibit 6.)

j. In Minutes of the September 28, 2007, Board of Trustees meeting, the Foundation

reports that it is the ninth highest in the nation for fundraising for athletics and the largest

endowment in the Big 12. “The Priority Points program has been a success. The issues of

reassigning parking have been worked out, and no lawsuits have been filed.”(Copy attached

hereto as Exhibit 7.)

k. Per the Minutes of a Foundation Budget Committee Meeting on August 26, 2008, the

Foundation’s Executive Director recommended that the Arkansas game in Dallas not be

included in the Permanently Endowed Donors complimentary, preferred seating tickets for

home and away games by designating the game as a “neutral site.” (Copy attached hereto as

Complaint Exhibit 20.)

l. Minutes of the Priority Seating Task Force on April 3, 2009, reveal that the Foundation

has no seating policy documents prior to 1985. In Mr. Taylor’s opinion the (unspecified)

policy changes made in 1991 “did not give any right(s) to specific seat(s).” Other comments

about a letter sent to all donors in 1991 do not appear to concern Permanently Endowed Donors

but instead “all donors.” Mr. Taylor acknowledges that the letter “could create problems for

reseating.” Mr. Sparks comments “that the renovation [of Kyle Field] will mean new seats and

if a donor was always guaranteed the same seat, there could never be any stadium expansion



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or renovation.” He states that “the next step is to list groups with agreements and a fair and

equitable plan will be needed for seating.” (Copy attached hereto as Complaint Exhibit 21.)

m. Minutes of the December 17, 2012, meeting of the Foundation’s Seating Committee

list various options (on page 2) for dealing with the rights of Permanently Endowed Donors,

and the Committee recommends that legal counsel be engaged. The options include: honoring

the endowment contracts; refunding endowment contributions; eliminating the endowed

seating program; and issuing credits to Permanently Endowed Donors to use for seating

options. (Copy attached hereto as Complaint Exhibit 23.)

n. Minutes of the April 3, 2013, Priority Seating Committee Endowed Members Meeting

show an appreciation by the Foundation that, in the collective opinions of its Permanently

Endowed Donors, the Foundation’s proposed reseating is “altering” or “reducing” benefits of

Permanently Endowed Donors; that the reseating process will “significantly downgrade”

Permanently Endowed Donors seating locations including continual downgrading of locations;

and a common theme among Permanently Endowed Donors is that the Foundation needs to

honor the agreement with Permanently Endowed Donors. (Copy attached hereto as Complaint

Exhibit 26.)

o. Foundation Board of Trustees April 4, 2013, meeting minutes, page 4, discuss the

anticipated reseating process, particularly as it affects Endowed Donors. There, referring to

the Endowed Donors (who have lifetime or 30 year term) benefits, it is stated, “There are about

1,800 tickets for endowed donors and 1,300 are a lifetime seat location.” See Exhibit 1 on

Affidavit of Claude M. Mcquarrie (attached hereto as Exhibit 4). The Foundation thus

admits, in the context of discussing the soon-to-be-announced Reseating Plan, that the

“Endowed Donors” have “seat locations” for life (in the case of donors whose purchased

benefits that were for life).

p. Foundation letter to Permanently Endowed Donors dated May 17, 2013, states that

“500 unique endowed seat holders” exist with “approximately 1899 seats.” The letter admits

the existence of agreements with the Permanently Endowed Donors but contends that the

“privileges of the endowed seat holders vary widely….” While the Foundation claims that it

intends to operate fairly, the letter goes on to describe how the Foundation will breach the

endowment agreements by unilaterally changing the performance it will render. (Copy

attached hereto as Complaint Exhibit 25.)

q. Email from Foundation President Skip Wagner dated May 29, 2013, acknowledges

existence of endowment agreements and his decision to allow Permanently Endowed Donors

to participate in the seat selection process so they could pay “the going rate” to “remain in the

general location their seats are currently in.…” (Copy attached hereto as Exhibit 28.)

r. Email from Michael Solomon dated May 31, 2013, regarding Permanently Endowed

Donors Seat Holder Reconsideration and stating that allowing Permanently Endowed Donors

to pick first is doing “the best job we can in honoring their agreement.” (Copy attached hereto

as Exhibit 9.)



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s. Email thread among Foundation leaders with seating option table on page two showing

the West Legacy Club and other desirable locations sold out as of August 22, 2013. (Copy

attached hereto as Exhibit 10.)

t. Board of Trustees Meeting Minutes dated September 6, 2013, and indicating on page

3 that out of 495 Permanently Endowed Donors accounts, 353 paid additional money to the

Foundation as a result of its Reseating Plan (indicating the number of Class members entitled

to incidental monetary relief). (Copy attached hereto as Complaint Exhibit 15.)

These admissions by the Defendant Foundation establish the existence of endowment

agreements, the terms of the agreements, the duration of the agreements, and that the Foundation

knowingly reneged on its obligations to the Permanently Endowed Donor Class under the excuse

of seizing an opportunity to raise more money from a “new generation” of Aggie donors and with

little regard for how its so-called “fair” reseating plan breached the Endowment Agreements,

dishonoring Texas A&M University and the Aggie community.

B. THE FOUNDATION’S RESEATING OF ENDOWED

SEATS CONSTITUTES BREACH OF CONTRACT

As noted above, the Foundation acknowledged that the contract rights of Plaintiff and of

the proposed Endowed Donor class could “create problems for reseating.” The Foundation’s

unilateral decisions to deliver less and less on the benefits it sold to Plaintiff and the class for the

purchasers’ lifetimes (or in some instances, for 30 years) and to charge the Endowed Donors for

benefits that were already paid for constitutes breach of the Foundation’s Endowment contract.

A strikingly similar case was recently decided in a donor’s favor by the Supreme Court of

South Carolina. In Lee v. Univ. of S. Carolina, 407 S.C. 512, 757 S.E.2d 394 (2014), reh’g

denied (May 7, 2014), a season ticket holder brought a declaratory judgment action against a

state university and university donor club seeking determination of whether actions by the

university and the club constituted breach of the contract between the parties. The contract

provided the ticket holder the opportunity to purchase tickets to football and basketball games for

his lifetime in exchange for naming the university the sole, irrevocable beneficiary of a $100,000

life insurance policy.



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A dispute arose when the club later unilaterally imposed a “seat license fee” in addition

to ticket costs, just as the Foundation, here, has added its additional and substantial charges that

have priced-out Plaintiff and the Class from their established seating locations in Kyle Field.

The excuse the club used to justify its imposition of the extra fee was that the life insurance

policy for which it had bargained had not realized the intended $100,000 face value. That is, the

club imposed the extra fee because it, like the Foundation, later thought it had made a bad deal

with the donor. Id. at 515-16, 757 S.E.2d at 369-97.

The South Carolina Supreme Court ruled that the club’s “unilateral attempt to modify the

Agreement is impermissible…. [because] once a bargain is formed, and the obligations set, a

contract may only be altered by mutual agreement and for further consideration.” Id., at 518, 757

S.E.2d at 398 (internal quotations and citation omitted); accord St. Joe Corp. v. McIver, 875 So.

2d 375, 382 (Fla. 2004). The court held that the club was required to allow the season ticket

holder the opportunity to purchase tickets without being subject to the payment of a seat license

fee that was not part of the original bargain.

In the case at bar, the Foundation has literally tried to bully the Permanently Endowed

Donors into accepting a new seating deal without the Endowed Donor’s consent and without

consideration to the Endowed Donors for what the Foundation wants to take from them. The

Foundation’s Reseating Plan and the Seat Selection Plan that commenced on March 16, 2015,

breaches the Permanent Scholarship Endowment Agreement made between the Foundation and

Plaintiff and the members of the proposed Class. See Am. Airlines, Inc. v. Wolens, 513 U.S. 219

(1995) (retroactive modification of frequent flyer program actionable as breach of contract).

C. IMPOSSIBILITY DOES NOT EXCUSE THE FOUNDATION’S

BREACH, AND THERE HAS BEEN NO UNDUE DELAY

The Foundation has attempted to justify its breach of the Endowment Agreement by

claiming that the Endowed Donors’ seats in Kyle Field no longer exist, but instead have been

replaced by new, more luxurious and fewer seats. Thus, the Foundation claims that further



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performance by it under the Endowment Agreements is “impossible” or “unfair.” Obviously,

“unfair” is not a defense to breach of contract regardless how bad the deal turns out for one of

the parties.

Moreover, the Foundation’s argument is entirely disingenuous. In the individual cases

filed against it in Texas, the Foundation located seats closely related to the Endowed Donor’s

previous seating locations and pulled those from the Reseating Plan and Seat Selection process

while settlement negotiations ensued. Thus, it is possible to specifically redress the Plaintiff and

the putative Class Member’s rights.

In any event, impossibility of performance is not available as a defense to a party who by

its voluntary act created the impossibility. Solomon v. Greenblatt, 812 S.W.2d 7, 18 (Tex.App.-

Dallas 1991, no writ) (citing Martin v. Star Publishing Co., 126 A.2d 238, 242 (Del.1956) and 6

S. Williston: A Treatise on the Law of Contracts § 1960). Stafford, 231 S.W.3d at 537.

In Florida, impossibility of performance “is a defense to nonperformance and refers to

situations where the purpose for which the contract was made has become impossible to

perform.” Spring Lake NC, LLC v. Figueroa, 104 So.3d 1211, 1216 (Fla. 2d DCA 2012). When

determining impossibility, courts focus on “‘whether an unanticipated circumstance has made

performance of the promise vitally different from what should reasonably have been within the

contemplation of both parties when they entered into the contract.’ ” Ferguson v. Ferguson, 54

So.3d 553, 556 (Fla. 3d DCA 2011) (quoting 6 Williston, Contracts (Rev. ed.) § 1931 (1938)).

Where the risk was foreseeable when the agreement was made and could have been expressly

addressed in the agreement, “[t]he doctrine of impossibility of performance should be employed

with great caution.” Am. Aviation, Inc. v. Aero–Flight Serv., Inc., 712 So.2d 809, 810 (Fla. 4th

DCA 1998).

“Even where performance actually becomes impossible after execution of the agreement,

the doctrine cannot be invoked as a defense if ‘knowledge of the facts making performance

impossible’ was available at the inception of the agreement to the party claiming impossibility.”

Zephyr Haven Health & Rehab Ctr., Inc. v. Hardin ex rel. Hardin, 122 So. 3d 916, 920 (Fla. 2d



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DCA 2013) review denied sub nom. Hardin v. Zephyr Haven Health Rehab Ctr., 135 So. 3d 287

(Fla. 2014) (citations omitted).

A football stadium is not a permanent structure. At the time of entering the Permanent

Endowment Scholarship Program agreements with Plaintiff and Class members, the Foundation

knew or should have known that repairs, remodeling and additions were likely within the

“lifetimes” of Plaintiff and Class members and their Permanently Endowed Donor children.

Moreover, any remodeling that did not provide enough seating for existing Permanently

Endowed Donors (if this Foundation claim is true) is the sole fault of the Foundation. Thus, any

claim by the Foundation that it cannot allow Plaintiffs to retain their seat locations because they

no longer exist and have been replaced with fewer, nicer seats is without merit.

Moreover, undeniably, the Permanently Endowed Donors seating locations still exist. The

“redeveloped” Kyle Field will have a 50 yard line, a west side, three decks, and rows of seats

located on all three decks at various yard lines that correspond with the Permanently Endowed

Donors’ established seat locations. Plaintiff’s and the Class’ established seat locations will still

exist and will still rightfully belong to them. And, Plaintiff will still be entitled to these seats for

“free” throughout her lifetime. The remedy to this situation caused by the actions of the

Foundation is to “grand-father” Plaintiff and the Permanently Endowed Class, an option

considered but discarded by the Foundation in its lust for “cash” from the “new generation” of

Aggie alumni.

In the Texas case, the Foundation had the nerve to argue to Judge Gilstrap that the

plaintiffs there had waited too long to sue. As detailed above and in the Affidavit of Claude M.

McQuarrie III (Exhibit 4 hereto), it is the Foundation who has delayed and forced this latest

effort of the Class for justice.

If any Class member has delayed, it is not the unreasonable delay that constitutes laches.

The Foundation has not done anything or made any expenditure that it would not have made had

the Class acted more promptly. See, e.g., De Huy v. Osborne, 118 So. 161, 164 (Fla. 1928)

(laches prevents purchaser from acceptance of deed seven months after failed tender and after



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vendee made substantial improvements in reliance on the default). Neither Plaintiff, nor the

Class, has delayed speculating on a price increase of the asset. Cf. Perry v. Benson, 107 So. 2d

213, 215-16 (Fla. 2d DCA 1958).

The Foundation has no meritorious defense to breach of contract.

III. PLAINTIFF FACES LOSS OF EQUITABLE RIGHTS UNLESS

PARTICIPANTS IN THE FOUNDATION’S SEAT SELECTION

PROCESS ARE FULLY INFORMED OF THE CLAIMS MADE IN

THIS LAWSUIT

Plaintiff asks the Court to protect her property interest3 and that of the Class by ordering

the Foundation to disclose to persons who have participated or will participate in the Seat

Selection process the existence of this litigation and the nature of Plaintiff’s claims. Disclosure is

necessary to preserve Plaintiff’s equitable right to specific performance of the Endowment

Agreement against claims of that participants in the Foundation’s Seat Selection process acquire

stadium seating rights as bona fide purchasers without notice.

A. SPECIFIC PERFORMANCE IN FLORIDA

The granting or withholding of a decree for specific performance is a matter within the

sound judicial discretion of a court of equity, controlled by settled principles of law and equity

applicable to the particular facts. Robinson v. Univ. of Miami, 100 So. 2d 442, 444-45 (Fla. 3d

DCA 1958). In Florida, specific performance of a contract is a matter of equitable cognizance as

applied both to real and personal property, and where, in the case of personal property, it is of a

peculiar character and value, specific performance will be granted. Fraser v. Cohen, 31 So. 2d

463 (Fla. 1947).

3 The Foundation treats rights under the Endowment Agreement as property that is transferable within the Endowed

family. See Seating Options, Terms Available at http://kylefield.com/seating (last visited March 8, 2015) (“The

donor of record may transfer the rights to the seats for the remaining years of the term to their spouse or their lineal

ascendants or descendants. (Note: Priority Points are not transferrable.)”). And, in Texas, tickets to sporting events

are community property subject to division in divorce proceedings. Warriner v. Warriner, 394 S.W.3d 240, 248

(Tex. App.—El Paso 2012, no pet.) (Texas Christian University football season tickets). Similarly, contract rights

represented by points systems are valuable personal property. In re Marriage of C.A.S. & D.P.S., 405 S.W.3d 373,

388 (Tex. App. 2013), reh’g dismissed (Aug. 6, 2013) (airline reward miles and hotel points).


http://kylefield.com/seating


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Also, when the value of the property involved is uncertain or not readily ascertainable in

the open market, or if the damages resulting from the breach of the contract are too uncertain or

indefinite, specific performance will be granted. Damages in a law action cannot be speculative

or conjectural, but must be reasonably ascertainable. Hogan v. Norfleet, 113 So. 2d 437, 439

(Fla. 2d DCA 1959).

Thus, Florida courts have decreed specific performance of a contract granting an

exclusive franchise to export bananas. Fraser v. Cohen, 31 So. 2d 463 (Fla. 1947) (peculiar

character found in “all the bananas delivered for export at two named ports in the Dominican

Republic”). Similarly, “due to the limitations respecting the number and location of liquor

establishments and the conditions under which the license is issued, a liquor license has come to

have the quality of property” such that specific performance lies. House v. Cotton, 52 So. 2d 340,

341 (Fla. 1951)).

In Lewis v. Arthur, 72 So. 2d 397 (Fla. 1954), the court ordered specific performance of a

contract for purchase of corporate stock of a closed or closely held corporation relying on the

reasoning of McCutcheon v. Nat'l Acceptance Corp., 197 So. 475, 478 (Fla. 1940) (specific

performance lies because such “stocks that have no recognized market value, or [] are not readily

procurable except from the defendant”). Accord: Baruch v. W. B. Haggerty, Inc., 188 So. 797,

799 (Fla. 1939).

Perhaps the uniqueness of the location was the basis for the court’s grant of specific

performance in Legg v. Hill, 42 So. 2d 168, 169 (Fla. 1949), where suit was brought to enforce

an option for the purchase of a restaurant.

Sale of businesses including franchises and good will have frequently been the subject of

specific enforcement in equity. Hogan v. Norfleet, 113 So. 2d 437, 439 (Fla. 2d DCA 1959)

(citing 49 Am.Jur. 151 and Annotation in 152 A.L.R. 4). The reasons advanced for decreeing

specific enforcement are that franchises and good will of a business or the value of a going

business and the profits involved cannot be readily ascertained and the estimation of value would

be so indefinite that recovery would not furnish a complete and adequate remedy at law. Id.



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(citing Chamber of Commerce of Hot Springs v. Barton, 195 Ark. 274, 112 S.W.2d 619 (1937)

(sale of radio stations); Garber v. Siegel, 194 Misc. 966, 87 N.Y.S.2d 597 (Sup. Ct. 1948)

modified, 274 A.D. 1068, 86 N.Y.S.2d 456 (App. Div. 1949) (carbonated beverage route and

business); Sw. Pipe Line Co. v. Empire Natural Gas Co., 33 F.2d 248 (8th Cir. 1929) (contract to

sell merchantable natural gas).

B. SPECIFIC PERFORMANCE IN THE CASE AT BAR

Specific performance is appropriate in the case at bar. A lifetime, prepaid seating

location in the same, upgradeable location in the Endowed Seating area among other

Permanently Endowed Donors in the football stadium of one’s college alma mater is location-

specific personal property of a unique and peculiar nature, such that damages are not an adequate

remedy under Florida jurisprudence. The certainty of the enjoyment of this experience over a

lifetime cannot be replaced with money and cannot be matched week after week by purchasing

game tickets on Stub Hub (if a ticket is available) for a random set of seats. Stub Hub does not

allow one to plan a season’s worth of Aggie football game experiences. In any event, the

Endowed Donor Aggie football game experience purchased from the Foundation by Plaintiff and

the Class is so unique and peculiar that it cannot be monetized.

The unique and peculiar character of sporting events was recognized in a case brought

over the disqualification of the University of Washington from PAC-10 games, including the

bowl game, for two years. The court ruled that, while the players’ claimed loss of the benefits

associated with playing in a bowl game (airfare, hotel expenses and the like) can be ascertained

to the penny, “their claims regarding the right to attend a bowl game in 1994 cannot be

quantified. The latter are cognizable in equity.” Hairston v. Pac.-10 Conference, 893 F. Supp.

1485 (W.D. Wash. 1994), as amended (Dec. 19, 1996), aff'd sub nom. Hairston v. Pac. 10

Conference, 101 F.3d 1315 (9th Cir. 1996).4

4 Cf. Yocca v. Pittsburgh Steelers Sports, Inc., 806 A.2d 936, 946 (Pa. Commw. Ct. 2002), rev'd on other grounds,

578 Pa. 479, 854 A.2d 425 (2004) (claim that fan was charged higher Club I price for seats that were really Club II

seats can be adequately compensated by money damages); Brotherson v. Prof'l Basketball Club, L.L.C., 604 F. Supp.



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Not only are the Endowed Seating rights peculiar and unique, their value is impossible to

ascertain. Like the stock in the McCutcheon case, Endowed Seats may be procured only from

Defendant. Stub Hub does not sell them. And because the Foundation can change the pricing of

the extra charges and add additional fees and charges at whim, Affidavit of Claude M.

McQuarrie III ¶15 (Exhibit 4 hereto), the value of Plaintiff’s loss cannot be determined with any

degree of certainty today. Thus, the only complete remedy for Defendant’s breach of the

Permanent Endowment Agreements is specific performance.

Conclusion

We all know money rules college football. At the intersection of money and morality, a

strong moral compass is required. Unfortunately, increased emphasis on fundraising has been

allowed to trump honor at the Foundation, whose trustees have knowingly chosen to ignore the

promises it made decades ago to (and until recently, performed for) its most loyal members in

return for their substantial payments. Plaintiff asks the Court to issue orders preserving her right

to seek specific performance by notifying Seat Selection participants of her claims and those of

the Class, and also to order the Foundation not to communicate threats or punish objectors to its

Reseating Plan, so that the legal processes of the Court are maintained.

Dated: March 24, 2015 Respectfully submitted,

PODHURST ORSECK, P.A

s/ JOHN GRAVANTE, III

Peter Prieto

John Gravante III.

25 West Flagler Street, Suite 800

Miami, Florida 33130

(305) 358-2800

[email protected]

[email protected]

2d 1276, 1293-94 (W.D. Wash. 2009) (season ticket holders were not interested in attending games transferred to

another city, but only sought tickets to resell).



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DEBRA BREWER HAYES

CHARLES CLINTON HUNTER

700 Rockmead, Suite 210

Houston, TX 77339-2111

Telephone: (281)-815-4963

Facsimile: (832) 575-4759

[email protected]

[email protected]

ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE

I hereby certify that Randel Howard, the Registered Agent for Service of Process of the

Defendant Foundation, was served with summons and complaint on March 24, 2015. The

Process Server’s return of service is expected to be available for filing with the Court on March

24, 2015.

A courtesy copy of this motion was served on March 24, 2015, on counsel for the

Foundation in the Texas federal action by electronic mail, as follows:

Layne E. Kruse (State Bar No. 11742550)

[email protected]

Randall S. Richardson (State Bar No. 24027658)

[email protected]

Otway Denny (State Bar No. 05755500)

[email protected]

NORTON ROSE FULBRIGHT US LLP

1301 McKinney, Suite 5100

Houston, Texas 77010

Telephone: (713) 651-5151

Telecopier: (713) 651-5246

s/ Charles Clinton Hunter

____________________________

Charles Clinton Hunter, declarant





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p's motion for supp relief

Documents