D's TRO Response

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

SAMMY D. YORK, HENRY H. HOLUBEC, JR., and GREGORY R. HAYES Plaintiffs,

) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 2:15-CV-00352

v.

OPPOSITION TO PLAINTIFFS APPLICATION FOR TEMPORARY RESTRAINING ORDER AND FOR PRELIMINARY INJUNCTION, SUBJECT TO ITS MOTION TO DISMISS

TEXAS A&M UNIVERSITY 12TH MAN FOUNDATION a/k/a THE 12TH MAN FOUNDATION,

Defendant. In accordance with Federal Rule of Civil Procedure 65(b), Defendant Texas A&M

University 12th Man Foundation a/k/a The 12th Man Foundation (Foundation) files its

Opposition to Plaintiffs Application for Temporary Restraining Order and for Preliminary

Injunction, subject to its Motion to Dismiss that is being filed contemporaneously with this

Opposition.

INTRODUCTION AND STATEMENT OF ISSUES

Plaintiffs inappropriately seek to prevent the Foundation from reseating Kyle Field on

March 16, 2015. Plaintiffs are not entitled to the temporary restraining order they seek because:

Plaintiffs have known about (and participated in) the reseating process for nearly two years, but they waited to apply for injunctive relief until three days before the final reseating step was scheduled to occur;

Plaintiffs application for a temporary restraining order or preliminary injunction fails because Plaintiffs cannot meet their burden of proving (1) irreparable injury, (2) a substantial likelihood of success on their claim for specific performance, (3) lack of harm to the Foundation due to the injunction, and (4) lack of harm to the public; and

Case 2:15-cv-00352-JRG Document 3 Filed 03/13/15 Page 1 of 27 PageID #: 470

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Plaintiffs cannot seek or receive injunctive relief on behalf of all endowed donors because an endowed donors class has not been, and cannot be, certified as a class.

For these reasons, Plaintiffs application for a temporary restraining order or preliminary

injunction should be denied.

FACTUAL BACKGROUND

The Foundation is a Texas nonprofit corporation that provides substantial funding for

athletic scholarships and Texas A&M sports programs. In accordance with its fundraising

mission, the Foundation began the Permanently Endowed Scholarship Program in the late 1970s.

The Permanently Endowed Scholarship Program offered endowed donors certain benefits in

recognition of scholarship donation(s) to the Foundation. The agreements vary widely by date,

donation amount, benefit type, and benefit duration. In the case of many endowed donors, the

benefits offered by the Foundation included tickets to home football games. There are currently

approximately 453 endowed donors representing 1,500 seats at Kyle Field.

I. History of Kyle Field

The original Kyle Field was built in 1927. Two years later in 1929, grandstands were

added at the north and west ends, turning Kyle Field into a 33,000 seat horseshoe. Capacity was

raised to 41,500 in 1953 when a partial second deck and a press box were added. The remainder

of the second deck and other improvements were added in 1967 to raise the capacity to 48,000.

In 1999, the Bernard C. Richardson End Zone was added, raising the capacity to 82,600.

In 2004, OConnell, Robertson & Associates and Heery International was commissioned

to provide a facilities assessment for Kyle Field and to develop an Athletic Facilities Master

Plan.1 The primary focus of the Master Plan was to address a number of deficiencies, including

1 Texas A&M Master Athletic Facilities Plan, attached as Exhibit B.


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life safety and code issues, structural items, accessibility issues, and mechanical, electrical, and

plumbing issues at Kyle Field. Between 2004 and 2012, Texas A&M made various limited

improvements to Kyle Field to address some of these deficiencies.

II. Redevelopment of Kyle Field

In 2012, in order to remedy substantially all of the deficiencies identified in the Report,

as well as to increase seating capacity in Kyle Field,2 the University began a multi-year analysis

of various redevelopment plans for Kyle Field. Populous, one of the worlds premier sports

facility architectural design firms, was engaged to lead the design study phase for the renovation

and redevelopment of Kyle Field. This phase explored over forty variations of Kyle Fields

design, including twenty different build options. After considering the alternatives proposed by

Populous, the Texas A&M University Board of Regents3 approved the redevelopment of Kyle

Field at the cost of $450 million.

As part of the Kyle Field redevelopment plan, the west side of the stadium, where almost

all endowed donors previously sat, was demolished on December 21, 2014.4 A new west side is

currently being constructed, and it bears no resemblance, either inside or out, to the structure that

was demolished in December 2014.5 In addition to increasing capacity and improving sight lines,

the new stadium is designed to provide a significantly improved game-day experience, from the

quality of the seats to the comfort of the concourses. The first two levels of the west side will be

primarily armchair seating (significantly reducing the seating capacity of those areas). The entire

2 In 1979, Texas A&M had an enrollment of 31,331 and an alumni base of 97,771. By 1994, enrollment was up to 42,018, and years of high enrollment had increased the alumni base to 207,169. Recently, enrollment has eclipsed 50,000, and alumni numbers have surpassed 400,000. 3 Texas A&M University is not a party to the proceedings, but owns and operates the properties (Kyle Field and the surrounding parking areas) that are the subject of the litigation. 4 Demolition of Texas A&M Universitys Kyle Field West Stands, Controlled Demolition, Inc., https://www.youtube.com/watch?v=tgt2a9RaMOo. 5 Information about the Kyle Field redevelopment is available at kylefield.com and also at http://www.seats3d.com/ncaa/texas_am/football/2015/.


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first level of the new west side will feature 20 wide, chair-back, arm-chair seating with 33

tread depths (i.e., more leg room). These seats will be protected by a shade canopy, will offer bar

service, access to the field box bar, access to the Champions Hall, and a climate controlled

concourse (none of which currently exists on any of the west side levels). The entire new west

side will also house high-quality concessions and merchandising options. Other improved

amenities throughout the stadium will include the latest game-day technology, wider concourses,

increased concession options and points of sale, and additional, new restrooms.

The new west side will also feature a new club level (no club level currently exists on the

west side), which will take up an entire new level on the west side of the stadium. This club level

will have approximately 2,000 fewer seats than the current second deck to accommodate the new

armchair seats, 77 new club suites, 74 loge boxes of various sizes, and a private club capable of

serving 3,900 people, which will be similar to the club-level offerings found in Reliant Stadium

and Cowboys Stadium. The old bare-bones second deck seating no longer exists.

III. Reseating of Kyle Field

Reseating all season tickets holders is a natural and unavoidable consequence of Kyle

Fields redevelopment. Although Kyle Fields new design will result in an overall increase of

seating capacity, the new west side of the stadium will have significantly fewer seats. The first

two levels of the new west side will now provide wide armchairs with increased leg room. The

new west side will also feature a new club level, which will have approximately 2,000 fewer

seats than the current second deck. In total, the new west side has more than 4,100 fewer seats.

The Foundation first announced the reseating process in May 2013. At that time, all

endowed donors were sent a letter describing the reseating process.6 The May 2013 letter

6 All three named Plaintiffs assert in their affidavits that they received this letter.


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announced the reseating initiative and explained that the reseating process would begin in July

2013 and would conclude in the spring of 2015. In accordance with this letter, all endowed

donors were mailed an Endowed Selection Packet in July 2013.7 This packet again explained in

detail the reseating process. All three named Plaintiffs, 453 other endowed donors, and over

9,000 non-endowed donors signed their selection packets and chose to begin the reseating

process. Altogether, 9,762 donor accounts tied to a total of 50,829 seats have been participating

in the reseating process for the 2015 football season. The donors enrolled in the reseating process

selected their new seat sections in July and August 2013.8 All sections on the west side became

fully committed before the end of August, 2013.9 On January 15, 2015, donor rankings within

each section, including the ranks of endowed donors and of all three named Plaintiffs, were

finalized in preparation for the seat selection scheduled for March 16, 2015.

IV. Impact on Endowed Donors

In an effort to treat all endowed donors fairly, the Foundation initiated a process to

address the benefits received by endowed donors in the redevelopment and reseating of Kyle

Field.10 Specifically, members of the Foundation staff and Board of Trustees hosted meetings

with endowed donors. These meetings provided a forum that encouraged impactful suggestions

and the expression of candid and heartfelt concerns regarding the integration of the current

benefits of endowed donors into the overall reseating process. The goal of these meetings was

two-fold. First, the Foundation strived to listen carefully to the desires and concerns of endowed

donors. Second, the Foundation desired to use the endowed donors input in a manner that would

7 July 17, 2013 Endowed Selection Packet, attached as Exhibits CF. 8 Id.; May 1, 2013 E-mail to All Donors, attached as Exhibit G. 9 Frequently Asked Questions, Reseating Process, attached as Exhibit L. 10 Exhibits CF.


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allow the Foundation to develop an integration plan that would fairly reward the loyalty and

generosity of all endowed donors, as well as be fair to all non-endowed donors.

As a result of input it received from these meetings, the Foundation gave endowed donors

the opportunity to choose their seating section in the new Kyle Field first, before any other

donors, ensuring that their first-choice section would be available.11 Additionally, the Foundation

offered all of the endowed donors, beginning in the 2015 football season, a $2,000 per-seat, per-

year credit to apply to an endowed donors seating choice anywhere in the stadium.12 This credit

allowed endowed donors to choose seating in a majority of the new Kyle Field (including

obtaining chair-back seats in quality locations) even if they made no additional donations.13

Substantially all (i.e., nearly 99%) of the endowed donors, including Plaintiffs, elected to use this

credit to select seating in the new Kyle Field.

Furthermore, in order to fund the new construction of Kyle Field, each donor seat in the

new Kyle Field requires a capital campaign contribution payable over five years and an annual

seating contribution.14 Endowed donors are permitted to apply their credit to their capital

campaign contribution and/or the annual contribution, and the credit will be available for the

remainder of each individual endowed donors benefits term.15 If the endowed donors selected

seating location requires an increase in cost in the future, the endowed donor will receive an

equal percentage increase in his or her credit.

For example, if an endowed donor selects a first-level armchair seat between the goal-line

and the 30 yard-line that requires a $2,000 per seat capital campaign contribution, and a $1,500

11Exhibit G. 12 Exhibits CF. 13 West Side Seating Options, attached as Exhibits IJ. 14 Exhibits C, L. 15 Exhibits CF.


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annual contribution, the credit would cover both the capital campaign and the annual

contributions:

Year Campaign Annual Total Allowance

2015 $400 $1,500 $1,900 $2,000

2016 $400 $1,500 $1,900 $2,000

2017 $400 $1,500 $1,900 $2,000

2018 $400 $1,500 $1,900 $2,000

2019 $400 $1,500 $1,900 $2,000

2020 on $0 $1,500 $1,500 $2,000

Plaintiffs purport to represent endowed donors who are unsatisfied with the credit offered

by the Foundation, and who desire seating in the new, Club-level seating locations in the new

Kyle Field starting in the 2015 football season. The Foundation does not believe it would be fair

or prudent to provide these unforeseen, un-bargained for, and substantially upgraded benefits to

Plaintiffs in a brand new facility (all of the named Plaintiffs currently sit on the west side of Kyle

Field) with no additional donation from Plaintiffs. Providing Plaintiffs these additional benefits

is not within the scope of what was originally offered and agreed to by Plaintiffs. However,

Plaintiffs allege that as a result of the redevelopment, they are entitled to seats in the same

general locale as their former seats (or best available seats). Those seats do not equate to or

even resemble their original seating and amenities in the old Kyle Field.

Further, it would not be prudent for the Foundation to offer such additional benefits to

Plaintiffs without requiring additional contributions, in light of the substantial revenues that need

to be generated by Kyle Field seating in order to accomplish the redevelopment in accordance


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with the Board of Regents directions. For any endowed donor unsatisfied with the credit, the

Foundation has offered the endowed donor a complete refund of his or her contributions, despite

the fact that each respective endowed donor has already received numerous years of benefits

from his or her contributions.16

ARGUMENT & AUTHORITIES

I. Plaintiffs Intentionally Delayed Filing Their Application for a Temporary Restraining Order and for a Preliminary Injunction.

Plaintiffs inexcusably filed their application for injunctive relief less than three business

days before the reseating of Kyle Field was scheduled to occur and almost two years after first

learning that Kyle Field would be subject to reseating.17 During the twenty-two months that

Plaintiffs failed to seek injunctive relief, the Foundation, all three named Plaintiffs, and

thousands of other donors completed multiple public steps in preparation for the reseating.18 In

fact, the March 16, 2015, seat selection process that Plaintiffs seek to enjoin is the very last step

of the two-year reseating process.19 Plaintiffs indefensible delay is a blatant attempt at

gamesmanship, and Plaintiffs request for a temporary restraining order and preliminary

injunction should be denied for this reason alone.

Delay in seeking a temporary injunction indicates the relief sought does not require

drastic or speedy action. Citibank, N.A. v. Citytrust, 756 F.2d 273, 276 (2d Cir. 1985). When a

plaintiff unreasonably delays before applying for injunctive relief, the court has the discretion to

bar the requested relief under the doctrine of laches. See Fanos v. Maersk Line, Ltd., 246 F.

Supp. 2d 676, 683 (S.D. Tex. 2003) aff'd by 363 F.3d 358 (5th Cir. 2004). Laches may be applied

16 Id. 17 The reseating process was first announced on May 1, 2013, with the seat selection scheduled for spring of 2015 (March 16, 2015). Plaintiffs did not file their application for injunctive relief until March 11, 2015. 18 Exhibit G; Exhibits CF. 19 Exhibit G; Reseating Seat Selection Timeline, attached as Exhibit K.


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when a party lacks diligence in pursuing their claims and when that partys lack of diligence

results in prejudice to the other party. See Costello v. United States, 365 U.S. 265, 282 (1961).

Even if a particular period of delay may not rise to the level of laches and thereby bar a

permanent injunction, it may still indicate an absence of the kind of irreparable harm required to

support a preliminary injunction. Citibank, 756 F.2d at 276 (denying temporary restraining order

when the plaintiff did not seek an injunction until more than ten weeks after directly learning of

possible harm and more than nine months after indirectly receiving of possible harm). In

accordance with these principles, Plaintiffs request for a temporary restraining order should be

denied.

II. Plaintiffs Are Incapable of Proving Entitlement to a Temporary Restraining Order.

A temporary restraining order is an extraordinary and drastic remedy, and it is to be

treated as the exception rather than the rule. Anderson v. Jackson, 556 F.3d 351, 360 (5th Cir.

2009); Mississippi Power & Light Co. v. United Gas Pipeline Co., 760 F.2d 618, 621 (5th Cir.

1985). A court may only grant a temporary restraining order if: (1) there is a substantial threat

that the applicant will suffer irreparable harm if the injunction is not granted; (2) there is a

substantial likelihood that the applicant will succeed on the merits; (3) the threatened injury

outweighs any damage that the injunction might cause the nonmovant; and (4) the injunction will

not disserve the public interest. Boothe v. Price, No. 6:13-CV-191, 2014 WL 261380, at *12

(E.D. Tex. Jan. 22, 2014); see also Nichols v. Alcatel USA, Inc., 532 F.3d 364, 372 (5th Cir.

2008); Ridgely v. Federal Emergency Management Agency, 512 F.3d 727, 734 (5th Cir. 2008).

The applicant for a temporary restraining order bears the burden of proving each of these

elements. Boothe, 2014 WL 261380, at *12. Here, Plaintiffs cannot prove even one of these

elements.


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a. Plaintiffs cannot prove they face a substantial threat of irreparable harm.

Plaintiffs cannot show that they will suffer imminent, irreparable harm if the Court denies

their requested injunctive relief. As a threshold matter, there can be no irreparable injury if

adequate monetary damages exist. See DFW Metro Lines Servs. v. Southwestern Bell Tel. Co.,

901 F.2d 1267, 1269 (5th Cir. 1990). As is discussed at length below in Section II(b)(1),

Plaintiffs season tickets inherently possess a monetary value. Therefore, if Plaintiffs were to

succeed on their breach of contract action, monetary damages would fully compensate them for

the loss of their seats. For this reason alone, Plaintiffs cannot prove they will suffer irreparable

harm if the seats they seek are assigned to a different donor.

Additionally, nothing in the reseating process deprives Plaintiffs of their contractual

rights or suggests harm. Plaintiffs will not be denied tickets to Aggie football games, removed

from the alumni section of Kyle Field, or placed in the worst seats at Kyle Field.20 To the

contrary, after March 16, 2015, Plaintiffs will continue to sit in the endowed seating area, to fully

participate in game-day activities, and to be a highly-regarded endowed donor.21 Plaintiffs will

also receive a credit of $2,000 per seat per year for the lifetime of the endowment, a benefit only

afforded to endowed donors.22 Under these circumstances, it cannot be reasonably argued that

the possibility that Plaintiffs may not be assigned seats in their most-preferred location amounts

to irreparable harm.

Furthermore, Plaintiffs will not be irreparably harmed by the reseating process because

Plaintiffs are not entitled to the seats they seek through this lawsuit. The seats that Plaintiffs

allegedly bargained for and expected to receive at the time of agreement were narrower,

20 Exhibits CF. 21 Exhibits IJ. 22 Exhibits CF.


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frequently bench-style, and with access to minimal, outdated amenities. At no point were

Plaintiffs seats considered luxury seats. However, Plaintiffs inexplicably claim that precisely the

same agreement that entitled them to their old seats now entitles them to exclusive, club-level,

luxury seats with access to private concessions, restrooms, and clubs.23 Directly ignoring the

significant and undisputed differences between the seats Plaintiffs formerly occupied and the

seats they demand today, Plaintiffs are requesting that this Court find that Plaintiffs will be

irreparably harmed if this Court does not stop the Foundation from assigning to others the luxury

seats that Plaintiffs did not bargain for or ever expect to receive.

b. Plaintiffs cannot prove a substantial likelihood of success on the merits.

Plaintiffs do not have a substantial likelihood of obtaining specific performance. A

plaintiff seeking specific performance must prove (1) no adequate remedy at law exists; (2) the

plaintiff is ready and willing to perform; and (3) the defendants specific performance is

possible. Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407 (Tex. 2011).

Additionally, specific performance may only be awarded if the controlling agreement explicitly

entitles the plaintiff to the requested performance and if enforcement would not entail prolonged

judicial supervision. Guzman v. Acuna, 653 S.W.2d 315, 318 (Tex. App.San Antonio 1983,

writ dismd); Cytogenix, Inc. v. Waldroff, 213 S.W.3d 479, 487 (Tex. App.Houston [1st Dist.]

2006, pet. denied). Here, Plaintiffs are unlikely to succeed on the merits because they cannot

establish the absence of an adequate legal remedy, cannot prove that present performance is

possible, cannot provide any evidence that their endowment agreements entitle them to specific

seats, and cannot enforce specific performance without extended judicial supervision.

23 Complaint, 5, 28, 29, 91(3).


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1. Plaintiffs are not entitled to specific performance because adequate legal damages are available in this case.

Plaintiffs season tickets are, by their very nature, worth an ascertainable amount of

money. The value of a season ticket is calculated daily by ticketing agents, customers, stadium

owners, and ticketing wholesalers. As a result, courts across this country have repeatedly held

that a breach of contract pertaining to a sporting event is fully compensable at law. E.g.,

Brotherson v. Prof. Basketball Club, 604 F. Supp. 2d 1276, 129394 (W.D. Wash. 2009)

(finding damages adequately compensate NBA season ticket holders); Hairston v. Pacific-10

Conference, 893 F. Supp. 1485, 1493 (W.D. Wash. 1994) (holding that ticket holders failed to

establish that monetary damages constitute inadequate compensation); Yocca v. Pittsburg

Steelers Sports, Inc., 806 A.2d 936, 946 (Pa. Commw. 2002) (rejecting a plaintiffs claim that no

adequate remedy existed because Pittsburg Steelers season tickets were priceless and

determining that damages are adequate compensation for ticket holders), overruled in part on

other grounds by 854 A.2d 425. Any argument that monetary damages are unavailable

deliberately ignores Plaintiffs sole motivation for filing this lawsuit: Plaintiffs feel they should

not have to donate the amount of money necessary to obtain football tickets in a certain seating

area.24

Plaintiffs theory of damages, that it is impossible to determine the amount of lifetime

contributions required to have the donor rank necessary to be in a position to select the seats

Plaintiffs seek, is misguided. Not only is this determination irrelevant to the value of the seats

Plaintiffs allegedly bargained for in the old stadium, but Plaintiffs are incorrect in arguing that

these values cannot be determined. In fact, Plaintiffs allegedly impossible valuation is one of

many ways in which the benefits could be economically evaluated. Perhaps most simply, the fair 24 Complaint, 21, 29.


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market value of the tickets (in whatever location) on the secondary market could be determined,

the donation amounts for other non-endowed donors who sat next to and around the endowed

donors could be determined, and even Plaintiffs allegation of choosing any exact new seat in the

stadium could be determined, either by fair market value on the secondary market. In fact, even

the most extreme model, the one Plaintiffs mention, is subject to an monetary determination. As

Plaintiffs acknowledge, the selection order within each section was set as of January 15, 2015.

The priority points of each donor used to determine this order are based on contributions made

up until that point, so these amounts are already fixed and known. Once seat selections are made,

it can easily be determined exactly how much each donor in every seat contributed as of January

15, 2015. Therefore, Plaintiffs argument fails because any number of monetary evaluation

amounts are fixed and readily determinable.

Furthermore, Plaintiffs incorrectly argue that their particular seats are unique enough to

merit the extraordinary remedy of specific performance. Plaintiffs do not even seek their exact

pre-redevelopment seats. Instead, Plaintiffs ask this Court to force the Foundation to provide

Plaintiffs with the best available seats or with seats in the same seating location as their pre-

redevelopment seats.25 Plaintiffs, therefore, are actually arguing that seats similar to their pre-

redevelopment seats will satisfy the Foundations alleged contractual obligations. Plaintiffs

acceptance of similar seats destroys any argument that Plaintiffs pre-redevelopment seats are so

unique as to have a special and peculiar nature and value. See Madariaga v. Morris, 639

S.W.2d 709, 711 (Tex. App.Tyler 1982, writ refd n.r.e.). Therefore, Plaintiffs specific

performance claim will fail because they cannot prove inadequate legal damages.

25 Application Brief, 33, 34.


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2. Plaintiffs are not entitled to specific performance because present performance is impossible.

The Foundation cannot provide Plaintiffs with their pre-redevelopment seats because the

West Side of Kyle Field was demolished on December 21, 2014.26 In an attempt to circumvent

the undisputed fact that the destruction of Kyle Field rendered specific performance impossible,

Plaintiffs incorrectly argue that seats in the same seating location as their pre-redevelopment

seats continue to exist.27 While it is true that the new Kyle Field will generally consist of three

decks, rows of seats, and a football field containing a 50-yard line,28 those are the only

similarities between the new and old stadiums. In fact, no seat in the new Kyle Field will be in

the same seating location as any seat in pre-redeveloped Kyle Field. The West Side of

Redeveloped Kyle Field will contain 4,100 fewer seats, will be several feet lower, and will

provide attendees with significantly different sight lines. Therefore, the seats that Plaintiffs

allegedly bargained for and expected to receive at the time of agreement are not the seats that

they ask this Court to order the Foundation to provide. Furthermore, Plaintiffs initial request to

halt the reseating process and ultimate request to redistribute west side seating, are both

impossible because donation agreements have already been made with other donors. For all of

these reasons, Plaintiffs do not have a substantial likelihood of establishing that specific

performance is possible.

3. Plaintiffs are not entitled to specific performance because the alleged agreements do not explicitly provide for the requested performance.

The clarity of an agreement is scrutinized at a higher standard when a plaintiff is seeking

specific performance than when merely seeking a legal remedy. Guzman, 653 S.W.2d at 318

26 Demolition of Texas A&M Universitys Kyle Field West Stands, Controlled Demolition, Inc., https://www.youtube.com/watch?v=tgt2a9RaMOo. 27 Application Brief, 33, 34. 28 Application Brief, 34.


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(Greater certainty respecting the terms and conditions of a contract sought to be enforced is

required in equity than at law.). Pursuant to this standard, [t]he essential elements of a contract

must be defined with sufficient precision to enable the court to determine the parties

obligations. Id. Contractual clarity, moreover, must be based on language of the agreement

itself and cannot be achieved through the introduction of parol evidence. Wilson v. Fisher, 188

S.W.2d 150, 152 (Tex. 1945).

The terms of the alleged agreements in this case indisputably fail to provide the clarity

necessary for a court to award specific performance. The alleged oral agreements contain no

written language from which to definitively ascertain the Foundations specific obligations.

Plaintiffs, therefore, cannot prove their contractual right to the specific performance they seek.

4. Plaintiffs are not entitled to specific performance because such an award would impermissibly require this Court to assume a protracted supervisory role.

A decree of specific performance should be readily enforceable. See Cytogenix, 213

S.W.3d at 487; Rodriguez v. VIA Metro Transit Sys., 802 F.2d 126, 132 (5th Cir. 1986). The

alleged agreements between the Foundation and Plaintiffs would require the Foundation to

continually perform for many more decades. To illustrate, Plaintiffs claim that some of the

endowed agreements will continue through the lifetimes of the donors children.29 The Court will

undoubtedly find its role in the oversight and enforcement of the Foundations continued

operations for this lengthy period of time difficult at best and impossibly draining at worst.

Under these circumstances, equity neither permits nor requires the extraordinary remedy of

specific performance.

29 Complaint, 2.


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c. Plaintiffs cannot prove the threatened injury outweighs the harm of an injunction and cannot prove the injunction will not undermine the public interest.

Plaintiffs gloss over the havoc an injunction would wreck upon Texas A&M University,

the Foundation, and the public. The upcoming seat selection represents the culmination of a $450

million fundraising campaign spearheaded by both the Foundation and the Texas A&M

University Board of Regents.30 Public bonds and private donations constitute the majority of the

$450 million dollars raised.31 If this Court were to enjoin the Foundation from completing the

final step of the reseating process, then the Foundation may be unable to fulfill some of its

obligations to the taxpayers and to the thousands of private donors that relied upon the two-year

reseating process.

Furthermore, Plaintiffs glibly request that this Court prohibit the reseating of Kyle Field

for the 2015 football season32 while simultaneously arguing that the Foundation will not suffer

any harm because the 2015 season is sold out.33 Plaintiffs blatantly ignore the fact that if the

Foundation is enjoined from distributing tickets to more than 1,500 tickets on the west side of the

stadium for the 2015 football season, then the 2015 season will no longer be sold out. Instead,

the 2015 football season could result in an extraordinary loss of west side revenue to the

Foundation and Texas A&M University, because the entire reseating process would have to be

halted, and potentially completely.34 Enjoining the distribution of more than 1,500 tickets on the

west side would reverse the process that began in August 2013 when each of those sections were

fully committed to endowed and non-endowed donors. If this litigation continues into 2016,

30 Exhibit G. 31 Further information is available at http://kylefield.com/faq. 32 Application Brief, 62 33 Id. 34 Infra, IV.


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which is likely given its very recent filing date, Plaintiffs may also be jeopardizing the entire

2016 football season in the same manner.

This Court cannot find that the severe harm an injunction would cause the Foundation

and the public is outweighed by Plaintiffs inability to sit in their preferred seats for free. See W.

Ala. Quality of Life Coalition v. U.S. Fed. Highway Admin., 302 F. Supp. 2d 672, 685 (S.D. Tex.

2004) (holding that a plaintiffs concerns about the environment were outweighed by the $7.5

million loss the defendant would suffer if enjoined). Therefore, Plaintiffs are incapable of

proving that the balance of equities affirmatively tips in their favor. Id.

III. Class-Wide Injunctive Relief Should Not Be Granted When No Class Has Been Certified and When an Injunction Class Would Not Provide Appropriate or Final Relief.

a. A class-wide injunction would not provide the final relief Plaintiffs seek.

The putative class cannot be an injunction class under Rule 23 (b)(2). That rule applies

only where final injunctive relief is appropriate. In contrast, Plaintiffs here are inviting as

many as 450 new lawsuits into this Court. The injunction demand is merely for an order that

each class member be given a seat that most closely resembles each Class Members established

seat location,35 and that each class member be given best available parking as well.36 This

language is not sufficiently specific. Rule 65(d) mandates that every injunction state its terms

specifically and describe in reasonable detail the act or acts restrained or required.37

Instead, the relief would require this Court to hear hundreds of new disputes about what seat

35 Complaint, 91(3). 36 Complaint, 91(4). 37 Plaintiffs TRO proposal also demands a gag order on the defendant to prevent any communications about the lawsuit to its own donors. This is unreasonable and unfair. These issues have been pending for nearly two years. All parties have discussed these issues with donors and fans. Apparently, want this Court to stop defendant from responding to any questions about the lawsuits from donors and from defending its actions and procedures with thousands of members of the Foundation. The essence of the lawsuit is about the problem of reseating and defendant deals with that problem every day.


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closely resembles a seat that was demolished last year. A parallel factual dispute will be over

what best available parking means when the Texas A&M campus is constantly under

construction. In essence, Plaintiffs are urging that this federal court handle all ticket disputes in

College Station for the next several years.

The Seventh Circuits denial of an injunction class in Kartman v. State Farm, 634 F.3d

883 (7th Cir. 2011), is directly on point. There, the court held that certification of an injunction

class to force roof re-inspections for homeowner policy holders was not warranted where the

contemplated equitable relief was neither appropriate, nor final. Id. at 892. An injunction is not

a final remedy if it would merely lay an evidentiary foundation for subsequent determinations of

liability. Id. at 893. In Kartman, the injunction only opened the door to individualized factual

inquiries. Id. Likewise, the requested injunction here only opens the door to more litigation.38

b. An endowed donor class has not been and will not be certified.

Plaintiffs are demanding a class-wide injunction before this Court has even certified a

class. Although Plaintiffs recognize that they must ask the Court to act on an expedited basis to

certify an injunctive class,39 Plaintiffs have not filed a motion for class certification, nor have

they made any attempt to carry the heavy burden of proof needed to justify a class action. At

best, Plaintiffs have made conclusory class assertions in their complaint without the rigorous

proof needed to support class certification.40 Gen. Telephone Co. v. Falcon, 457 U.S. 147, 160

(1982) (certification is proper only if the trial court is satisfied, after a rigorous analysis, that the

38 The only authority that Plaintiffs cite (Pltfs. Application, 22) for their novel attempt to obtain a TRO for an alleged breach of contract class before any class has been certified is one district court case from Florida: Peoples v. Wainwright, 325 F. Supp. 402 (M.D. Fla. 1971). This case is not precedent for our case. It was an order to a prison warden to allow correspondence to inmates from the attorney of record for an inmate class. The case obviously could not proceed without allowing attorney communications. 39 Complaint, 9. 40 Complaint, 10 (conclusory statement that class certification is appropriate both because Plaintiffs rights arose uniformly and are being eroded uniformly and this action meets the other requirements of a Rule 23(b)(2) injunctive class seeking incidental monetary relief).


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prerequisites of Rule 23(a) have been satisfied and actual, not presumed, conformance with

Rule 23(a) remains ... indispensable).

Although Plaintiffs do not even cite the applicable class action rule, regardless of whether

this is a proposed Rule 23(b)(1) or (b)(2) or (b)(3) class,41 Plaintiffs cannot make conclusory

class allegations and expect a court to enter a mandatory injunction without rigorous analysis

of conflicts and adequacy of representation, which is a pre-requisite in any class case. Plaintiffs,

moreover, cite no precedent for certifying a class in a football ticket breach of contract dispute.

Indeed, in the pending federal court dispute over NFL football ticket sales to the Super Bowl,

which is also under a breach of contract theory, Judge Lynn denied class certification after a

rigorous analysis on whether the plaintiffs met their burden. Simms, et al. v. Jones, et al., 296

F.R.D. 485 (N.D. Tex. 2013). In that case, moreover, the contract was simplewhat was printed

by the NFL on a form ticket. Here, in contrast, Plaintiffs concede that they are suing on alleged

oral agreements or a variety of different contract forms that existed over many years.

Plaintiffs have also not provided any evidence that they are entitled to class certification

under Federal Rule of Civil Procedure 23. In seeking class certification, all classes must satisfy

the four baseline requirements of Rule 23(a): (1) numerosity; (2) commonality; (3) typicality;

and (4) adequacy of representation. Plaintiffs cannot carry their burden of showing that their

proposed class meets all the requirements. Fed. R. Civ. P. 23(a); In re Monumental Life Ins. Co.,

365 F. 3d 408, 415 (5th Cir. 2004). The party seeking certification bears the burden of proof

that the proposed class meets all the requirements. Castano v. Am. Tobacco Co., 84 F.3d 734,

41 Although plaintiffs assert that this is an injunction class, it is clear that they want a large sum of money. Paragraph 62 of Plaintiffs Complaint demands a refund of all monies paid by Class members as additional payments to the Foundation to maintain their established seat locations. . . or to upgrade of the same . . . . In essence, this is a damage claim based on the breach of contract theory. Although plaintiffs may try to label this as a Rule 23(b)(2) injunction class, money is the apparent driver per Rule 23(b)(3).


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740 (5th Cir. 1996). The proponent must show that the class satisfies all the requirements in fact;

this is not a mere pleading standard. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct 2541, 2551

(2011).

First, Plaintiffs proposed class is not adequately defined or clearly ascertainable. Young

v. Nationwide Mut. Ins., 693 F.3d 532, 53738 (6th Cir. 2012). A class is not definable if it is too

vague or if the court would be required to hold extensive and individualized fact-finding to

determine membership. Id. Plaintiffs proposed class includes donors with Permanently

Endowed Scholarship Program agreements whose established seat locations; priority parking or

other endowment benefits, including upgrade rights, are subject to altercation or termination if

they do not make additional, continuing payments to Defendant.42 However, none of the

endowment contracts, oral or written, expressly confer a right to an established seat location.

Thus, the court would necessarily be required to hold individualized hearings on each endowed

donors contract. As a result, class certification would be improper because Plaintiffs have failed

to propose a definable class.

Second, Plaintiffs have also put forth no evidence of numerosity. While there is no

definite standard for what size class satisfies this prong, in assessing numerosity the Court should

consider the geographic dispersion of the class, the ease with which class members can be

identified, the nature of the action the size of each plaintiffs claim. In re TWL Corp., 712 F.3d

886, 894 (5th Cir. 2013). In considering these factors, the fundamental inquiry turns on whether

joinder of the proposed class member is impracticable. Simms, 296 F.R.D. at 500. Here Plaintiffs

have inaccurately claimed that membership in the class is so numerous as to make it

42 Complaint, 62.


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impracticable to bring all Class members before the Court.43 Plaintiffs offer no evidence to

show that the proposed class would suffer significant geographic diversity or that the difficulty in

identifying potential members would make joinder impracticable. Id. (finding the plaintiffs failed

to satisfy numerosity where no evidence of geographic diversity was presented); Jaynes v.

United States, 69 Fed. Cl. 450, 45455 (Fed. Cl. 2006) (finding that a class with as many as 258

putative members failed to satisfy numerosity because 80% of the proposed class was located

within the state). In fact, Plaintiffs admit that the Class members can be readily determined

from records maintained by the Foundation.44 Thus, Plaintiffs cannot satisfy this element of class

certification.

Third, Plaintiffs also cannot satisfy commonality or typicality. The dispositive inquiry

into determining commonality is not whether the class raises common questions, but whether the

class generates common answers that are capable of resolving the suit. Wal-Mart, 131 S. Ct. at

2551. The Supreme Court in Wal-Mart noted that dissimilarities within the proposed class are

what have the potential to impeded the generation of common answers. Id. To establish

typicality, the class must show the claims or defenses of the class and the proposed class

representative (1) arise from the same event, pattern, or practice, and (2) are based on the same

legal theories. Stirman v. Exxon Corp., 280 F.3d 544, 562 (5th Cir 2002). Plaintiffs allege there

are numerous substantial questions of law and fact common to all members of the proposed

class, such as whether the Foundation is contractually obligated to provide endowment benefits

to Plaintiffs and whether Plaintiffs or other members have any further obligations to maintain

their established seat locations, priority parking, or other endowed benefits.

43 Complaint, 63. 44 Id.


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Yet, as the Supreme Court has noted, any cleverly crafted complaint can literally raise

common questions. Id. Plaintiffs have not, and cannot, show that common answers can be

generated by the class. Plaintiffs allege that Permanently Endowed Donors were promised

benefits in the best available seating locations and game day parking in the best available

locations for home games.45 However, Plaintiffs endowment agreements never use the words

best available to describe the bargained for seat or parking location. Nor do Plaintiffs

endowment agreements identify an established seat location. In fact, the vast majority of the

proposed classs endowment agreements were made orally. Plaintiffs success on the merits is

predicated not on the plain language of their individual agreements, if written, but on oral

representations allegedly made outside of the agreement. Thus, the class would be unable to

generate a common answer that would be capable of resolving the entire suit because whether

the Foundation breached each agreement would require a factual inquiry into each agreement.

Doing so would devolve into 450 mini-trials. Here, the dissimilarities are too great to satisfy

commonality.

Fourth, the proposed class representatives cannot show that they will adequately protect

the interest of the class because their interests necessarily conflict with other potential class

members interests. See Fed. R. Civ. P. 23(d); Randall v. Rolls-Royce Corp., 637 F.3d 818, 824

(7th Cir. 2011) (If there is conflict of interest related to the specific issues being litigation, the

proposed class representative cannot adequately represent the class). Here, Plaintiffs request the

Court to order the Foundation to provide each proposed class member with best available

parking and seats in a location that is commensurate to each members seat location in the old

stadium. However, the number of parking spaces available for allocation to donors has declined

45 Id. 2.


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each year as entire parking lots have been eliminated due to ongoing construction and will

continue to decline as new construction eliminates the availability of parking adjacent to the

stadium. Likewise, the reconstruction of the west side of Kyle Field reduced capacity by

approximately 4,100 seats. Thus, because of the reduced amount of benefits as well as the

subjective nature of the remedy sought, there may necessarily be endowed donors that demand

seating or parking in the same seating location as the proposed class representatives which would

improperly place them in direct conflict as to the specific issues being litigated.

Further, Plaintiffs cannot show that their interests are aligned with those of class

members. Of the 45 total endowed donors, only a small portion have raised an issue with the

reseating. The vast majority have participated in the reseating process without complaint, and

several have voiced strong support for the process. In fact, 334 endowed donors have used their

opportunity to choose first, and elected to purchase seats in a locations that require a donation

above and beyond the $2,000 credit provided by the Foundation and 8 endowed donors have

selected seats located in a suite. Out of the top 1000 donors, 243 are endowed donors with

priority point levels that enable them to be among the first to select seats within their desired

sections. It is clear that these potential class members would have no interest in enjoining the

reseating; thus, the proposed representatives interests do not align with the entire class they seek

to represent. Whats more, many donors would reject a remedy that may ultimately jeopardize

the 2015 football season. Thus, enjoining the Foundation from moving forward with the

Reseating does not align with interests of all proposed class members and Plaintiffs have failed

to show that their representation of the class is adequate.

c. An endowed donor class would violate its members due process rights.

Moreover, this mandatory class-wide injunction is dangerously close to the Supreme

Courts opinion in Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), which reversed the Fifth


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Circuit and the Eastern District of Texas on the attempt to certify a mandatory class that required

all asbestos claimants to participate in an asbestos settlement. Despite pleas to allow a creative

use of Rule 23, the Supreme Court was more concerned about the limits of due process in

binding absent class members.

Plaintiffs here are attempting to bind absent class members without notice or right to opt-

out to an injunction that will prevent them from obtaining football seat assignments that they

have bought and paid for months ago. In essence, three disgruntled donors are trying to hold all

the donors hostage while they complain about their seats. Plaintiffs failure to sue after knowing

about this dispute for months is telling. In the years leading up to their lawsuit, Plaintiffs

acknowledge that approximately 15 Permanently Endowed Donors either bought state court

lawsuits, or announced intentions to do so in the past several years.46 For class certification

purposes, this only proves that certification of a class is not warranted after donors have already

made their choice---either by paying their money and participating in obtaining seats in the new

Kyle Field or by being among the handful to bring various state court lawsuits. The fact that

donors have already made choices only highlights the inherent conflicts within the putative class,

which create an insurmountable bar to certification. Many donors, for instance, have already

chosen sections that they perceive are better than their seats in the old Kyle Field. Yet, the

plaintiffs want to turn back the clock and take those seats away from class members so they can

be redistributed. The class hardly has a uniform interest on seat selection. See Lukenas v. Bryces

Mountain Resort, Inc., 538 F.2d 594 (4th Cir. 1976) (affirming denial of class certification for

Rule 23(b)(2) injunction class where differences and antagonism among class members).

46 Application Brief, 6.


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To try to justify a class action label, nevertheless, Plaintiffs go further. They insult their

fellow Aggies by claiming that individual members of the Proposed Class have little interest or

ability to prosecute an individual action due to the complexities of the issues involved.47 The

record clearly shows otherwise. The putative class members have exercised great interest and

acted accordingly. Nor can the three putative class reps be allowed merely to assert that they

have no interest adverse to the interests of the other members of the proposed Class and will

fairly and adequately protect the interests of the Class.48 This bald assertion is directly contrary

to the fact that over 90% of the alleged members of the class have participated in the process,

without objection. Accordingly, the conflicting interests of the three putative class reps, who are

apparently using this lawsuit to leverage their personal ticket options must be scrutinized before

any class can be certified and before any class-wide injunctive relief be considered.

IV. If This Court Grants Plaintiffs Application, A Bond Should be Set for an Amount Sufficient to Cover the Potential Financial Impact of any Delay or Alteration in the Reseating Process.

If a temporary restraining order is issued, the bond should be sufficient to protect the

rights of the Foundation during the pendency of this lawsuit. See Fed. R. Civ. P. 65(c). The bond

serves to assure the enjoined party that it may readily collect damages from the funds posted in

the event that it was wrongfully enjoined, without further litigation and without regard to the

possible insolvency of the assured. Continuum Co. v. Incepts, Inc., 873 F.2d 801, 803 (5th Cir.

1989).

Plaintiffs requested injunction could cause a massive financial blow to the Foundation.

Ultimately, because the reseating process is now almost complete, and because the seats

Plaintiffs are demanding have already been promised to other donors, including other endowed 47 Complaint, 70. 48 Id. 67.


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donors, Plaintiffs requested injunction would likely force the Foundation to redo the entire

reseating process and start over once the injunction is lifted. The reselection process allowed

donors to select seats for a term of years. Foundation donors are obligated themselves to pay

their capital campaign contribution and annual contribution, and the Foundation may be forced to

un-obligate them if the Foundation cannot assign seats in the west side. In order to ensure that

the status quo is maintained, that is, that the construction moves forward, and our pledged

contributions remain the same, we need the total capital campaign contribution as a bond, until

we know how much of that can be re-obligated when we re-seat.

As it stands now, the Foundation expects to receive approximately $30 million for the

2015 season from the seats at issue and those otherwise subject to the reseating process on the

west side of the new stadium. If the Court is inclined to grant the requested injunctive relief, the

Foundation would ask that it be allowed to submit an affidavit in support of the at least $30

million amount the Foundation believes is sufficient to cover the risk.

CONCLUSION AND PRAYER

Plaintiffs are not entitled to a temporary restraining order or preliminary injunction.

Defendant Texas A&M University 12th Man Foundation a/k/a The 12th Man Foundation

respectfully prays that Plaintiffs Application for Temporary Restraining Order and for

Preliminary Injunction be denied, and the Court grant it such other and further relief to which it

may show itself justly entitled.


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Respectfully Submitted, March 13, 2015

/s/ Otis Carroll Otis Carroll (State Bar No. 03895700) Lead Attorney IRELAND, CARROLL & KELLEY PC 6101 S. Broadway, Suite 500 Tyler, Texas 75703 Tel: (903) 561-1600 Fax: (903) 581-1071 [email protected] 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 Attorneys for Defendant Texas A&M University 12th Man Foundation a/k/a The 12th Man Foundation

CERTIFICATE OF FILING AND SERVICE

I certify that on March 13, 2015, the foregoing document was electronically transmitted

to the Clerk of Court using the ECF System for filing. Based on the records currently on file, the

Clerk of Court will transmit a Notice of Electronic Filing to all registered counsel of record.

_________/s/ Randall Richardson____________ Randall Richardson


Documents

D's TRO Response