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

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
SAMMY D. YORK, HENRY H.
)
HOLUBEC, JR., and GREGORY R. HAYES )
)
Plaintiffs,
)
)
)
)
v.
)
)
)
TEXAS A&M UNIVERSITY 12TH MAN
)
FOUNDATION a/k/a THE 12TH MAN
)
FOUNDATION,
)
)
Defendant.
)

No. 2:15-CV-00352
OPPOSITION TO PLAINTIFFS
APPLICATION FOR TEMPORARY
RESTRAINING ORDER AND FOR
PRELIMINARY INJUNCTION, SUBJECT
TO ITS MOTION TO DISMISS

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

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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

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

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

July 17, 2013 Endowed Selection Packet, attached as Exhibits CF.

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.
8

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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, peryear 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

11

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

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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.
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.
17

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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.
Exhibits IJ.
22
Exhibits CF.
21

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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 preredevelopment seats.25 Plaintiffs, therefore, are actually arguing that seats similar to their preredevelopment 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.
Further information is available at http://kylefield.com/faq.
32
Application Brief, 62
33
Id.
34
Infra, IV.
31

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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).
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.
36

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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
44

Complaint, 63.
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 optout 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
48

Complaint, 70.
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
nancy@icklaw.com
Layne E. Kruse (State Bar No. 11742550)
layne.kruse@nortonrosefulbright.com
Randall S. Richardson (State Bar No. 24027658)
randall.richardson@nortonrosefulbright.com
Otway Denny (State Bar No. 05755500)
otway.denny@nortonrosefulbright.com
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

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