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VIRGINIA

:
IN THE CIRCUIT COURT OF AMHERST COUNTY
JESSICA CAMPBELL, BRITTANY
BEHRENS, DONNA BEHRENS, JOHN
BEHRENS, ALEXIA REDICK
BARTLETT, LELIA DUNNING,
ANDREW C. BENJAMIN, JANICE I.
BENJAMIN, MAKAYLA B. BENJAMIN
and CATHERINE PEEK,

Case No. CL15009390

Plaintiffs,
v.
SWEET BRIAR INSTITUTE, and
JAMES F. JONES, JR.,
INDIVIDUALLY and as INTERIM
PRESIDENT OF SWEET BRIAR
INSTITUTE,
Defendants.

MOTION FOR PRELIMINARY INJUNCTION REQUIRING
OPERATION OF COLLEGE DURING CASE,
AND FOR WAIVER OF INJUNCTION BOND
The Plaintiffs, Jessica Campbell, Brittany Behrens, Donna Behrens, Alexia Redick
Bartlett, Lelia Dunning, Andrew C. Benjamin, Janice I. Benjamin, Makayla B. Benjamin and
Catherine Peek, by and through counsel, file this motion for (i) a preliminary injunction requiring
the Defendants to continue operating Sweet Briar College while this case is pending, and (ii) for
an order waiving the requirement for an injunction bond. In support hereof, the Plaintiffs state as
follows:
Background
1.

This case concerns the Defendants' announced plan to close Sweet Briar College

(“Sweet Briar”).

2.

Sweet Briar is a women's liberal arts college located in Sweet Briar, Virginia,

about 12 miles north of Lynchburg, Virginia.
3.

The college’s campus is located on 3,250 acres in the foothills of the Blue Ridge

Mountains, on the former estate of the college's founder, Indiana Fletcher Williams
(“Williams”).
4.

Over the last century, the college has grown to a sizable campus. Twenty-one of

the thirty buildings on campus are listed on the National Register of Historic Places.
5.

Today, Sweet Briar has nearly 700 students. The college is accredited to award

degrees in the Bachelor of Arts, Bachelor of Fine Arts, Bachelor of Science, Master of Arts in
Teaching, and Master of Education.
Defendants have sufficient funds to
finance a restructuring of the college
6.

On March 3, 2015, Sweet Briar’s interim President, James F. Jones, Jr. (“Jones”),

announced that Sweet Briar would close at the end of the summer session, citing
"insurmountable financial challenges".
7.

Defendant Jones’ claim of “insurmountable financial challenges” does not stand

up under scrutiny.
8.

According to Sweet Briar’s financial statements, Sweet Briar has sufficient funds

to continue operation of the college while this case is being litigated. The Plaintiffs have
recently learned the following information:
a)

For six of the past seven years, Sweet Briar’s operating expenses
have exceeded operating revenues.

b)

At this time, Sweet Briar continues to have an endowment of
$84 million. This is equal to $129,000 per student, which is far
higher than the endowment for many other stronger universities:

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College
Springfield College
Northeastern
Drexel University
Villanova
Boston University

9.

Endowment/Student
$14,154
$22,492
$23,788
$35,475
$37,402

c)

For the fiscal year ending June 30, 2014, Sweet Briar increased its
assets from $160.6 million to $163.9 million, a gain of $3.3
million. This includes land, buildings, investments, everything.

d)

For that same fiscal year (2014), Sweet Briar’s liabilities decreased
from $30.7 million to $29.5 million, a reduction of $1.2 million.

e)

Over the longer term, Sweet Briar’s books and records look
equally healthy. Between June 30, 2009 and June 30, 2014, the
college’s assets fell from $172 million to $163.9 million, a drop of
$8.1 million. However, the school’s liabilities fell at an even faster
rate — from $50.5 million in 2009 to $29.5 million now. This is a
drop of $21 million, meaning that the college’s financial position
improved by $12.9 million during this five year period.

f)

During this five year period, the college’s endowment increased
from $74.3 million to $84 million today, an increase of nearly ten
million dollars.

g)

Sweet Briar has sufficient funds to pay for a restructuring, as
required by the cy pres doctrine. $25 million of the endowment is
presently unrestricted. This is sufficient funds to pay for the
college’s operating loss, while the college either finds a new model
for women’s education or as a co-ed college.

h)

Any operating loss would be further offset by increased donations
from alumnae. In the last month, the alumnae have pledged over
$3 million towards the continued operation of the college.

Defendants Jones and Sweet Briar are not acting in good faith. On March 30,

2015, the faculty’s attorney, Thomas Lauria, offered to help Sweet Briar restructure its debt on a
pro bono basis. Attorney Lauria is well-qualified to do so. He is the global head of restructuring
at the international law firm of White & Case. During the course of his thirty year career, Lauria
has helped restructure over $100 billion of debt. Defendants Jones and Sweet Briar have refused
attorney Lauria’s generous offer, showing that they have no intent to comply with the applicable
trust documents or the cy pres doctrine, set forth in Va. Code Ann. § 64.2-731.
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Relief Requested
10.

The Plaintiffs are current students, alumnae, or parents of students at Sweet

11.

The Plaintiffs respectfully request that the Court grant a preliminary injunction

Briar.

requiring the Defendants to operate Sweet Briar as a college while this case is being litigated.
12.

This Court has the authority to grant a preliminary injunction while this case is

pending. Va. Code Ann. § 8.01-620 (2015).
13.

To secure a preliminary injunction, a party must show irreparable harm. Wright

v. Castles, 232 Va. 218, 349 S.E.2d 125 (1986).
14.

Although the Virginia Supreme Court has not established standards for granting

or denying a preliminary injunction, other Virginia state courts have adopted the standard used
by the United States Court of Appeals for the Fourth Circuit. Under this standard, the Court
must consider the following four factors in a balancing test:
(1) the likelihood of irreparable harm to the plaintiff if the injunction is denied;
(2) the likelihood of irreparable harm to the defendant if the injunction is granted;
(3) the likelihood that the plaintiff will succeed on the merits; and
(4) the public interest.
Hotjobs.com, Ltd. v. Digital City, Inc., 53 Va. Cir. 36, 39, 2000 Va. Cir. LEXIS 191, 6-7 (Va.
Cir. Ct. 2000); Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353 (4th Cir. 1991).
15.

As explained below, the Plaintiffs satisfy this test.

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The Plaintiffs face imminent and irreparable
harm if an injunction is not granted.
16.

The Plaintiffs will suffer imminent and irreparable harm if an injunction is

17.

Defendants are attempting to destroy an institution that took over a century to

denied.

build, and currently has over $150 million of assets.
18.

If Defendants succeed in closing Sweet Briar, the Plaintiff students will be

irreparably harmed. This is because the students will be required to enroll at other schools,
where they may not receive equivalent credit for their Sweet Briar classes. If this occurs, the
Plaintiff students will be required to expend time and money taking new classes. Some of the
Plaintiff students cannot afford either the time or the money to take additional classes. As a
result, they may not be able to graduate from a college at all. There is no monetary remedy for
the lost years of these students' lives.
19.

The Plaintiff alumnae will be almost as badly damaged.

If Sweet Briar is

allowed to close, then the reputational value of the alumnae's four year college degrees from
Sweet Briar will be forever damaged. There is no monetary remedy for the impaired degrees and
lost alumnae experiences of this Plaintiff class.
20.

If the college is allowed to close, the Plaintiff students will never be able to earn

a four year degree from Sweet Briar college, as required by their contracts with the college.
Both students and alumnae will also lose the opportunity to mentor Sweet Briar students later in
their lives.
21.

There is no monetary remedy for the lost years of the Plaintiff students' lives, or

the lost experiences that the students and the alumnae will suffer as a result of the Defendants'
conduct.

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The likelihood of irreparable harm is
certain if an injunction is not granted.
22.

The likelihood of this harm is certain to occur, if the Court does not grant a

preliminary injunction. The students of Sweet Briar need immediate assurance that the college
will continue holding classes during the fall of 2015. Two weeks ago, Defendants held a college
fair on Sweet Briar’s campus. Sweet Briar’s students have already applied for alternative
colleges for fall classes. If the Court does grant an immediate injunction, then Sweet Briar’s
existing student body will begin accepting alternative colleges in the next few days.
23.

It is already rumored that Defendant Jones has entered into an agreement to give

away Sweet Briar’s prestigious study abroad program for no consideration, and that he has
shredded many documents on campus. It is feared that these documents include applications for
incoming students for the fall 2015 semester.
24.

Defendant Jones has also advised the members of the faculty that their services

will not be required after the summer semester. In some instances, the faculty have been
terminated as of May 30, 2015.
25.

If Defendants succeed in shutting down Sweet Briar's operations, it will be

difficult or impossible to restart those operations. After the death of Sweet Briar’s founder,
Indiana Fletcher Williams, in 1900, it took six years before the college started operations in
1906. A gap in operations at this time would likely cause a similar delay in fulfilling the intent
of the trust documents.
26.

Thus, if a preliminary injunction is not granted, it is highly likely that the

Plaintiffs will be forever denied relief.

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The Plaintiffs will succeed on the merits because
the have a clear breach of contract action.
27.

It is also likely that the Plaintiffs will succeed on the merits in this case.

28.

As stated in the complaint, each of the Plaintiffs has a contract with Sweet Briar.

Under Virginia law, a contract is formed when one party accepts the offer made by the other
party, and provides consideration for the performance of the deal.
29.

In this case, each of the Plaintiff students, parents, and alumnae accepted Sweet

Briar's offer to purchase four-year liberal arts degrees from Sweet Briar College.

The

Defendants are now seeking to breach that contract by refusing to provide those degrees to the
students and/or their parents, or by intentionally damaging the reputational value of the degrees
already sold to the alumnae.
30.

Also, as stated in the complaint, the Defendants have not complied with their

obligations under Virginia state law.
31.

Virginia, as in most states, follows the legal doctrine of “cy près” whenever there

is a proposed change to a charitable corporation, as in this case.
32.

According to the cy pres doctrine, whenever the original objective of the creator

of a trust becomes “impossible, impracticable, or illegal to perform,” a court must amend the
terms of the charitable trust as closely as possible to the original intention of the testator or
settlor to prevent the trust from failing. Campbell v. Board of Trustees, 220 Va. 516, 524, 260
S.E.2d 204, 209, 1979 Va. LEXIS 291, 17 (Va. 1979).
33.

In Virginia, the cy pres doctrine has been codified by statute. That statute states

as follows:
A. Except as otherwise provided in subsection B, if a particular charitable
purpose becomes unlawful, impracticable, impossible to achieve, or
wasteful:

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1. The trust does not fail, in whole or in part;
2. The trust property does not revert to the settlor or the settlor’s
successors in interest; and
3. The court may apply cy pres to modify or terminate the trust by
directing that the trust property be applied or distributed, in whole or in
part, in a manner consistent with the settlor’s charitable purposes.
Va. Code Ann. § 64.2-731 (2015).
34.

Defendants Jones and Sweet Briar have not complied with the above statute in

their efforts to close Sweet Briar.
35.

Defendants Jones and Sweet Briar have violated the cy pres doctrine in the

following particulars:
a)

By failing to utilize the land of Indiana Fletcher Williams for purposes of
women’s education;

b)

By failing to advise Sweet Briar alumnae of the college’s intent to close,
and to seek funds from alumnae to close the funding gap;

c)

By failing to hire a Dean of Admissions for the school since 2012;

d)

By failing to take advantage of significant overseas demand for American
education by marketing the school in Asia as an all-women’s college (as
Barnard has done);

e)

By failing to hire a Director of Alumnae for several years, or to actively
maintain the college’s alumnae program;

f)

By entering into fiscally imprudent contracts in excess of fair market
value;

g)

By mis-stating the financial distress of the college in their efforts to close
the college;

h)

By refusing to consider the donated services of national experts to
restructure the college’s debt and expenditures;

i)

By refusing to consider the possibility of a chapter 11 bankruptcy case to
eliminate all or a portion of the college’s debt;

j)

By failing to consider the possibility of converting to a co-educational
campus;

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36.

k)

By failing to fully explore the possibility of offering joint classes with
other colleges;

l)

By refusing the offer of another local school to jointly offer online course
offerings;

m)

By failing to explore the possibility of raising additional revenue by
farming a portion of the college’s land.

For the foregoing reasons, the Plaintiffs have a binding contract with Sweet

Briar, which can be enforced by an injunction in this case.
The public interest strongly favors
the continued operation of Sweet Briar College.
37.

Finally, the public interest strongly favors the continued operation of Sweet Briar

as a college.
38.

Sweet Briar College is a major employer in the Amherst County area. If the

Defendants shut down the college, then they will eliminate a major source of economic
development for the region, as well as at least one hundred jobs.
39.

For the past one hundred years, Sweet Briar has also contributed materially to the

culture of the surrounding region, by sponsoring countless musical, artistic, dramatic and
academic events.
40.

On March 30, 2015, the Commonwealth of Virginia filed its own lawsuit against

Defendant Jones, seeking his removal from the college’s operations. Such lawsuit recognizes the
vital importance of Sweet Briar to the Amherst County region.
41.

The town of Amherst, Virginia has passed a resolution supporting the efforts of

the Commonwealth in opposing to closing of Sweet Briar.

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The case law supports granting an injunction.
42.

This case is not without precedent. In 1979, the Board of Directors of Wilson

College -- a womens' college located in Pennsylvania -- proposed to close the college.
43.

A group of alumni, students, parents and faculty sued the college, seeking an

injunction to keep the college open.
44.

The Pennsylvania state court found that the Plaintiffs had standing and granted an

injunction. See Zehner v. Alexander, Court of Common Pleas of Franklin County, Pennsylvania,
Case No. 56 of 1979, O.C.D., Vol. 89, Page 262 (students and alumni had standing to challenge
decision to close Wilson College); see also Galton v. College of Pharmaceutical Sciences, 70
Misc. 2d 12 (N.Y. Co. Sup. Ct. 1972) (students and alumni had standing to challenge decision to
close College of Pharmaceutical Sciences in the City of New York).
45.

Wilson College later went co-ed, and continues to operate today. The school

currently has triple the number of students it had in 1979.
46.

The same result is possible and legally proper in this case. Sweet Briar has a

noteworthy campus, strong faculty, and active alumnae that will continue to attract students
years into the future.
The Defendants actions will undermine all charities in Virginia.
47.

Finally, there are important public policy arguments for granting an injunction.

48.

If the Defendants are permitted to close Sweet Briar without making any effort to

comply with the cy pres doctrine, then all charities in Virginia will suffer.
49.

In this case, Sweet Briar accepted a donation of $1 million -- and refused to

refund it -- only a month before announcing its closing. If this sort of fraud is tolerated, the case
will set a precedent which will encourage national charities to move their operations out of
Virginia.

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Requested Waiver of Injunction Bond
50.

Under Virginia law, this Court has the authority to waive the requirement of an

injunction bond. Va. Code Ann. § 8.01-631 (2015).
51.

The Plaintiffs respectfully request that the Court waive the requirement of the

52.

All of the property and assets subject to the proposed injunction will continue to

bond.

be in the possession and control of the Defendants, and will still be used for the ongoing
operation of Sweet Briar.
53.

Sweet Briar’s financial condition for the next year will largely depend upon the

results from the college’s investments. If such investments do well, as they have for the last
couple of years, it is possible that Sweet Briar’s assets will grow during the upcoming academic
year.

If Sweet Briar loses money during this time, the Plaintiffs submit that it would be

appropriate for the Defendants to bear such loss, as they have not yet obtained permission from
either a court or the state’s attorney general to not operate as a college.
54.

The Plaintiffs therefore respectfully request that the Court waive the requirement

of an injunction bond in this case.

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WHEREFORE, for the reasons set forth above, the Plaintiffs respectfully request that this
Honorable Court (a) grant a preliminary injunction requiring the Defendants to continue
operating as a college while this case is pending, and (ii) for an order waiving the requirement
for an injunction bond.
Respectfully submitted,

By:_____________________
Elliott J. Schuchardt
VA Bar # 86721
SCHUCHARDT LAW FIRM
541 Redbud Street
Winchester, VA 22603
Phone: (412) 414-5138
E-mail: elliott016@gmail.com
Counsel for the Plaintiff

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CERTIFICATE OF SERVICE
I, Elliott Schuchardt, hereby certify that I served a true and correct copy of the foregoing
motion on the following persons on this 17th day of April 2015 by means of e-mail and first
class mail, postage prepaid:
Calvin W. Fowler, Jr. Esq.
Williams Mullen Clark Dobbins
200 S. 10th Street
Richmond, VA 23219
Counsel to Sweet Briar Institute & James F. Jones, Jr.

__________________________
Elliott J. Schuchardt

VIRGINIA:
IN THE CIRCUIT COURT OF AMHERST COUNTY
JESSICA CAMPBELL, BRITTANY
BEHRENS, DONNA BEHRENS, JOHN
BEHRENS, ALEXIA REDICK
BARTLETT, LELIA DUNNING,
ANDREW C. BENJAMIN, JANICE I.
BENJAMIN, MAKAYLA B. BENJAMIN
and CATHERINE PEEK,

Case No. CL15009390

Plaintiffs,
v.
SWEET BRIAR INSTITUTE, and
JAMES F. JONES, JR.,
INDIVIDUALLY and as INTERIM
PRESIDENT OF SWEET BRIAR
INSTITUTE,
Defendants.

ORDER
This matter came before the Court on the Plaintffs' motion for (i) a preliminary injunction
requiring the Defendants to continue operating Sweet Briar College as a college while this case
is pending, and (ii) for an order waiving the requirement for an injunction bond. After having
considered such motion, and any opposition thereto, it is hereby ORDERED as follows:
1)

The Defendants are directed to continue business and academic operations at

Sweet Briar College while this case is pending, pending further order of this Court.

2)

The Court finds that the public interest warrants waiver of the injunction bond.

The Plaintiffs' motion for a waiver of the bond is granted.
BY THE COURT:

___________________________
Amherst County Circuit Judge

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