Second Round of Motions to Dismiss Are In!

As expected, Texas A&M and Texas Wesleyan have filed their revamped motions to dismiss on December 7th. Responses are due no later than December 28th. You can read them here:

Doc028 – TWU’s Motion to Dismiss

Doc029 – TWU’s Brief in Support of its Motion to Dismiss

Doc030 – Texas A&M University’s Motion to Dismiss

Doc031 – Texas A&M University’s Brief in Support of its Motion to Dismiss

The schools’ arguments and quick responses are essentially that:

  1. Argument: Because the law school could have been closed at any time, and the plaintiffs would be worse off if that had happened, the plaintiffs should be happy about the way things have wound up.
    Response: Had the law school program been closed, the drop down menus would all still have Texas Wesleyan University School of Law on their lists. The only way that the plaintiffs could be damaged more than the current situation would be if TWU went out of business completely. But frankly, this is not a legal argument; the idea that you should be grateful to a con man who leaves you with gas money to get home is asinine.
  2. Argument:The defendant universities argue that the defendants owe no duties to the pre-acquisition graduate plaintiffs because they can cite cases where alumni groups lost.
    Response: In those cases, there were no promises to the alumni which impact their careers, and processes in which the alumni could have participated, but instead relied on the promises which reasonably should have been reliable, and which were also given to the governing bodies.
  3. Argument:TWU argues that it is doing all it is supposed to do by validating grades, and that it owes no duty of care to its alumni, and even that the duty of care sought is impossible.
    Response: TWU does not even bother to answer the promises that it made to the alumni during the purchase process, or the promises in multiple documents stating that the name change would naturally identify its previous graduates as part of its community. For example, see the letter written and signed by A&M President Loftin and TWU President Slabach to the Southern Association of Colleges and Schools Commission on Colleges, which includes the promise: “If approved, TWUSL would become “Texas A&M University School of Law at Texas Wesleyan University.” These kinds of statements, made to quell any opposition to the acquisition, created a duty, if nothing else did. TWU appears to believe that, if it provides grade and diploma verification in any way, then it has done its duty (though it states emphatically that it has no duty at all). But as everyone reading this probably knows, most attorneys begin a legal verification by filling out an online form with the dropdown menus that the plaintiffs used to be able to use, but now cannot. TWU wants to say “Who, me?” and claim that we should go to the ABA to resolve the issue, or some other organization. But LSAC did not change the school’s name on a whim; someone told it to make the change.
  4. Argument:A&M continues to claim sovereign immunity protection on trademark infringement, and argues that we have joined unnecessary parties.
    Response: All of A&M’s components use the A&M trademarks, and it is unknown who has the right to sue plaintiffs if they created a diploma or developed A&M paraphernalia. The cases which A&M cites are those where the dispute was not similar to the one here, but stem from a claim of infringement. A&M can claim that it has the ability to steal and infringe the trademarks of others all day long, but that is not the dispute here.
  5. Argument:A&M argues with the §1983 claims, alleging that plaintiffs do not deserve to an A&M diploma because they did not pay A&M for a diploma. It also points out that, in the amended complaint, we have inadvertently eliminated the request for the §1983 injunctive relief to treat all of the graduates equally.
    Response: The first paragraph claims that A&M is irrationally discriminating, and several other paragraphs point out the issue, but the word “injunction” is not in the document. We probably need to ask for permission to clarify this in an amended complaint.

Issues Remaining – This is where we need your help:

  1. We added the entire membership of the Board of Regents as defendants, as they have all failed in their duties. However, this may have been unnecessary. We need to ensure that correct capacity and liability is correctly alleged. I have not served these individuals yet, and it would not be too difficult to eliminate those who are not useful. We already have two solid legal teams working against us, and while most of them would probably let the Attorney General handle it, there’s a very real possibility that we could wind up with another several legal teams. Ugh.
  2. We need someone who is very familiar with the Family Educational Rights and Privacy Act(FERPA). I have some ideas that I need to bounce off someone more knowledgeable than me.
  3. We need evaluation of the case law, to confirm that we are correctly distinguishing our dispute sufficient to argue against dismissal of the claims.

To conclude – the original complaint was filed after weeks of mulling over the issues for a long time, drafting and redrafting multiple times. It was a lot of work, but it was filed on our office’s schedule, which I could control. I no longer have control of the schedule. One could make the case that the amended complaint was not as well-written or edited as it should have been. I need help to clean this up and ask for the court’s blessing to accept a second amendment and make it better than it is, and I need to do that in the next couple of weeks. Your assistance is invited.

Merry Christmas,
Warren V. Norred

P.S. If you have not seen the letter in which A&M President Loftin and TWU President Slabach wrote to Dr. Wheelan of the Southern Association of Colleges and Schools Commission on Colleges, take the time to look at it.

Categories: