Guest Post: The ACC's Petition for Writ

Everything you need to know about the ACC vs. Florida State before next week's (potential) hearings!

Ed Note: TwistNHook is in overdrive to summarize everything ahead of court proceedings scheduled for next week. Will Florida State finally get a win? Or will the ACC prevail, either by winning traditionally in court or just by further delaying proceedings? If you’re catching up, here is Twist’s most recent update, which includes links to his earlier works on this court case.

We are still focused on the state of FL here.  There has been a sharp increase in activities in FL recently.  This is part of that increase.  This post is about the ACC’s Petition For Writ Of Certiorari.  It appears to be about a new and creative way to delay the FL process.  

There are four ongoing lawsuits regarding the realignment saga.  One in FL, one in SC, and two in NC.  Everyone is trying to stop the lawsuits they do not want.  They want their preferred state to handle the lawsuit.  So, FSU is trying to stop the NC lawsuit and the ACC is trying to stop the FL lawsuit.  

Motion To Stay

As such, when FSU filed their lawsuit in FL, the ACC moved to stay (aka stop) the matter from proceeding.  On April 9, 2024, the FL Court heard a hearing and made an oral ruling.  This oral ruling was that the ACC’s Motion To Stay was denied.  That is the ruling that the ACC appeals here.  Was it proper for the FL Court to not stay the FL matter given that there is a NC matter?  

What is a bit weird here is that the FL Court then dismissed that FSU complaint.  FSU filed a new complaint (2nd Amended Complaint).  There is a hearing set for June 18, 2024 regarding a new Motion To Dismiss/Stay that 2AC.  Can you appeal a denied motion on a complaint later dismissed?  

Methinks this is a way to try to delay everything as much as possible.  The ACC is concerned about a “race to judgment.”  That is to say that if multiple states have ongoing lawsuits, it comes down to whichever one gets to judgment first.  The ACC is fighting that off 100%.  At the same time that they filed this appeal, they filed a Motion in FL to stay the FL proceeding pending resolution of this appeal.  

I am not a FL appellate expert.  It may be that the FL appellate process can be wrapped up between now and June 18, 2024.  It would be surprising to me if that was the case.  So, this could be designed to push the June 18, 2024 hearing back.  That June 18, 2024 hearing was about 4-6 weeks earlier than I anticipated it would be.  The FL Judge moved that hearing up quite considerably, in my view.  This could be the ACC’s response to push it all back.

This is especially true given that if the ACC loses, they are back in the same position as before (Motion To Dismiss/Stay).  Of course, if they lose, then the appellate court gave its imprimatur to the FL Judge to not stay the 2AC.  So, there is some risk here, but delay is the name of the ACC’s game.  Fight everything, delay everything.  They are trying to delay until February, 2025, at least, when ESPN could extend the ESPN-ACC contract to 2036.  That would undercut FSU’s arguments and hurt their legal case.

Petition For Writ

So, let’s dig into the Petition For Writ Of Certiorari.  This is similar to FSU’s Petition For Writ in NC.  It does not appear to be an automatic appeal.  The ACC’s appeal has to be selected.  So, this could delay everything for weeks or months and then the appeal could not be selected.  In my view, it suffers from the same thing the FSU Petition For Writ suffered from, repetitiveness.  

They structure it the same way as FSU did theirs (which means that either I’m wrong or multiple different warring groups of fancy pants lawyers are wrong!).  They put their facts up front, then give the legal standard and then say everything all over again.  I would put the legal standard up front and really focus on how the ACC meets the legal standard.  This seems like the same story over and over and over again.

Priority And Comity 

The basic gist is that the appellate court should overturn the FL Judge for two reasons: Priority and Comity.

Priority is that whoever files first gets to proceed.  Here, the ACC filed first in NC, so they should proceed and the FL case should be stayed.  The ACC argues that the Judge basically ignored that and constructed a new rule.  This new rule created an exception to priority based on a random series of factors raised by the Judge.  Apparently, no Judge or Court anywhere else had constructed this rule.  

The Judge first said that this case “smelled” of forum shopping.  Forum shopping is where a party tries to force a case into its preferred forum even if its not the right one.  The dispute here is whether NC or FL are the correct forums.  The FL Judge felt that the ACC ambushing FSU in NC was inappropriate.  

Then, the appeal argues that the FL Judge picked a bunch of random cases from throughout the country to justify not staying the FSU case.  The cases included NC cases (but not the Order that the NC Judge made on the same exact issue) and federal patent cases.  Interestingly, the NC Court and FL Court both considered the exact same NC case (Coca Cola Bottling Co v. Durham Coca Cola Bottling Co) and came to the exact opposite conclusions on that case.  

The Petition states that the following were the potpourri of factors discussed by the FL trial Court:

1. The 10 factor test from NC (not FL)

2. Whether ACC is “taking” FSU’s media rights (the ACC is not a governmental agency)

3. Sovereign immunity (which would be considered in NC, FL

4. Florida public records law

5. Impacts of dispute on ACC members (as compared to ACC)

6. FL Court’s ability to apply NC Court law (seems like this should inure to the ACC’s benefit)

7. Other pending lawsuits that may impact a uniform resolution (see parentheses for #6)

8. Location of witnesses

9. Location of electronic documents (aren’t these everywhere??)

10. FSU being in FL

11. Whether the ACC did their 2/3rds vote (which seems like something a NC Judge should handle)

12. Whether the GOR was ratified by the FSU board (which is their weird argument that solely the Board can ratify contracts)

13. Whether these issues affect FSU more than the ACC

This is what the appeal says the FL Judge did for factors.  The other aspect to the ACC argument is comity.  Comity is the rule that one state must respect the rulings of others.  So, the ACC is arguing that NC has priority and NC has ruled that it has priority, so FL must respect that ruling.  

Legal Standard

On page 27 of the Petition, the ACC gets to the legal standard.  First, the Appellate court must determine if there is “irreparable harm.”  That means that the lower Court’s ruling is so damaging that it cannot be repaired and must be flatly deleted.  Second, the appellate Court looks to see if the trial court departed from the “essential requirements of the law.”  More than just a little mistake.  

So, the mistakes have to have created irreparable harm and be serious departures from the law.  This is a fairly high standard, which is why most appeals are not successful.  The ACC argues that this one, however, meets both elements of the standard.  There is one case (Reliable Restoration 313 So 3d 1209) that they cite over and over and over and over again.  This is their key case and if the appellate judges find this case relevant, it could mean success for the ACC.  

This case standards for the proposition that the mere “possibility of inconsistent rulings amongst different courts adjudicating related lawsuits” constitutes irreparable harm.  This is the ACC’s king case.  The ACC argues that there is a possibility of inconsistent rulings between the first filed NC case and the second filed FL case and so the FL case must be stayed.  

Multi-Part Test

The ACC argues that the FL Judge “departed from the essential requirements of the law” by constructing this multi part test, which is different from priority.  Under FL priority, the first filed case gets to proceed.  There are only limited exceptions, not a multi-part test.  The exceptions to priority require “exceptional circumstances.”  According to the Petition, no Court in FL has accepted “forum shopping” as an exceptional circumstance.  

Under FL law, exception circumstances includes “the possibility of delay in adjudicating the earlier action or other factors or circumstances which would also warrant a denial of stay.”  In regards to delay in adjudicating the NC action, it is moving forward smoothly.  

However, this “other factors” seems like it could open the door for the FL Judge’s multi-part test.  The ACC goes through an analysis about how other FL Courts have said “forum shopping” is not an exceptional circumstance.  They also argue that they weren’t forum shopping but forum selection.  Forum shopping would be like filing in Montana, because the ACC Commish’s brother is a Judge there.  They argue that they just filed in their local Court.  The ACC argues that the only relevant “exceptional circumstances” are delay with the first filed case, which is not the situation here.  

Then, the ACC goes through a long analysis under the FL Judge’s multi-part test.  This is to show that even were you to use this new test, the stay is still warranted.  I like this lawyering, I like to turn the other side’s arguments around against them.  This is a fairly lengthy analysis, but to summarize it, all of the factors raised by the Judge go in the ACC’s favor.  Not sure how far that will go, but it is the last argument at the end, so it is not their #1 argument.

Conclusion

Most appeals are unsuccessful and the appellate Court has to select this one before the ACC can even argue the merits.  There is a chance that they are not even selected.  However, this is less about winning and more about delay.  Push the June 18, 2024 hearing back as far as possible.  The Appellate Court released an Order on June 7, 2024 giving the ACC 10 days to serve this on the trial Judge.  That means that on June 17, 2024, the ACC will serve this on the trial Judge.  With the hearing on June 18, 2024, it seems likely that there is no way this FL matter can move forward on that date.  

Expect to see new and creative ways from the ACC to delay this matter.  Even if they are unsuccessful on the merits, they will be successful with delay.  Since delay benefits the ACC, this is just win win win for them.