STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DIVISION

COUNTY OF MECKLENBURG 23CV040918-590

ATLANTIC COAST CONFERENCE, a

North Carolina Nonprofit Unincorporated
Association,

Plaintiff,

v.

BOARD OF TRUSTEES OF FLORIDA

STATE UNIVERSITY.

Defendant.

PLAINTIFF’S BRIEF IN OPPOSITION TO

DEFENDANT’S MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO
STAY

Case No.2023CVS40918 ECF No. 30 Filed 02/27/2024 15:10:05 N.C. Business Court
 INDEX

INDEX............................................................................................................................ii
TABLE OF AUTHORITIES .........................................................................................iii
SUMMARY OF ARGUMENT ....................................................................................... 1
ARGUMENT .................................................................................................................. 3
I. There Was and Is a Justiciable Controversy .......................................... 3
II. FSU’s Motion Does Not Show the Conference’s
Complaint was “Unauthorized” ............................................................... 7
III. This Court Has Jurisdiction over FSU.................................................... 9
IV. FSU’s New Claim that It Did Not Execute the Grant of
Rights in 2013 and 2016 is Not a Basis for Dismissal.......................... 15
V. The ACC’s Claims for Breach of Confidentiality, Breach of Fiduciary
Duty, and Breach of the Duty of Good Faith and
Fair Dealing are Valid............................................................................ 17
VI. FSU Has Failed to Prove that Litigating this Matter in
North Carolina Would be a “Substantial Injustice”.............................. 21
CONCLUSION............................................................................................................. 28
APPENDIX................................................................................................. App. 001-063

ii
 TABLE OF AUTHORITIES

Cases

Allen ex rel. Allen & Brock Const. Co. v. Ferrara,

141 N.C. App. 284 (2000) 6
Atl. Coast Conference v. Univ. of Md.,
230 N.C. App. 429 (2013) 9
Blaylock v. AKG N. Am.,
285 N.C. App. 72 (2022) 14
Broer v. Fla. State Univ.,
2022 WL 2289143 (Fla.Cir.Ct. June 17, 2022) 17
Cardiorentis Ag v. IQVIA, Ltd.,
2018 NCBC LEXIS 243 (N.C. Super. Ct. Dec. 31, 2018) 26
Casey v. Grantham,
239 N.C. 121 (1954) 19
Clancy v. Onslow County.,
151 N.C. App. 269 (2002) 27
Coca-Cola Bottling Co. Consol. v. Durham Coca-Cola Bottling Co.,
141 N.C. App. 569 (2000) 23
Covenant Equip. Corp. v. Forklift Pro, Inc.,
2008 NCBC LEXIS 12 (N.C. Super. Ct. May 1, 2008) 14
Diamond Candles, LLC v. Winter,
2020 NCBC LEXIS 28 (N.C. Super. Ct. Mar. 12, 2020) 24
Doe v. New Coll. of Fla.,
2023 U.S. Dist. LEXIS 173689 (M.D. Fla. Sept. 28, 2023) 16
Farmer v. Troy University,
382 N.C. 366 (2022) 10
Fiske v. Kieffer,
2016 NCBC LEXIS 12 (N.C. Super. Ct. Feb. 16, 2016) 8
Fortune Ins. Co. v. Owens,
351 N.C. 424 (2000) 25
Franchise Tax Board of California v. Hyatt,
587 U.S. ___, 139 S.Ct. 1485 (2019) 9
Futures Grp., Inc. v. Brosnan,
2023 NCBC LEXIS 7 (N.C. Super. Ct. Jan. 19, 2023) 25
Gaston Bd. of Realtors, Inc., v. Harrison,
311 N.C. 230 (1984) 8
Goard v. Branscom,
15 N.C. App. 34 (1972) 19
Goldston v. State,
361 N.C. 26 (2006) 4
Governors Club, Inc. v. Governor’s Club Ltd.,
152 N.C. App. 240 (2002) 18

iii
Harleysville Mut. Ins. Co. v. Narron,
155 N.C. App. 362 (2002) 23
Harris Teeter Supermarkets, Inc. v. Ace Am. Ins.Co.,
2023 NCBC LEXIS 125 (N.C. Super. Ct. Oct. 10, 2023) 23
Henry v. New Jersey Transit Corp.,
39 N.Y.3d 361, 210 N.E.3d 451 (2023) 15
In re T.R.P.,
360 N.C. 588 (2006) 10
Jackson v. Marshall,
140 N.C. App. 504 (2000) 20
Jackson v. NAACP Houston Branch,
2016 Tex. App. LEXIS 10181 (Tex.App. Sept. 15, 2016) 20
Jones v. Shoji,
336 N.C. 581 (1994) 19
Kintz v. Amerlink, Ltd.,
2005 N.C. App. LEXIS 2389 (Ct. App. Nov. 1, 2005) 26
Kure Corp. v. Peterson,
2017 NCBC LEXIS 1 (N.C. Super. Ct. Jan. 5, 2017) 22
La Mack v. Obeid,
2015 NCBC LEXIS 24 (N.C. Super. Ct. Mar. 5, 2015) 23
Master v. Country Club of Landfall,
263 N.C.App. 181 (2018) 8
McAdoo v. Univ. of N. Carolina at Chapel Hill,
225 N.C. App. 50, 71 (2013) 8
Miller v. Carolina Coast Emergency Physicians, LLC,
277 N.C. App. 449 (2021) 14
N. Iredell Neighbors for Rural Life v. Iredell County,
196 N.C. App. 68 (2009) 7
N.C. Dep’t of Revenue v. Graybar Elec. Co., Inc.,
373 N.C. 382 (2020) 13
Nautilus Ins. Co. v. Winchester Homes, Inc.,
15 F.3d 371 (4th Cir. 1994) 22
Nexsen Pruet Jacobs & Pollard,
112 N.C. App. 353 (1993) 21
NGM Ins. Co. v. Evans,
642 F. Supp.2d 511 (W.D.N.C. 2009) 22
Nlend v. Nlend,
896 S.E.2d 72 (N.C. Ct. App. 2024) 21
Pan-Am Tobacco Corp. v. Dep’t of Corr.,
471 So.2d 4 (Fla. 1984) 12
Perry v. Bank of Am., N.A.,
251 N.C. App. 776 (2017) 4
Pilot Title Ins. Co. v. Nw. Bank,
11 N.C. App. 444 (1971) 22

iv
Poole v. Bahamas Sales Associate, LLC,
209 N.C. App. 136 (2011) 23
Rifenburg Constr., Inc. v. Brier Creek Assocs. Ltd. Partnership,
160 N.C. App. 626 (2003) 19
Shelter Corp. v. BTU, Inc.,
154 N.C. App. 321 (2002) 19
Shooster v. BT Orlando Ltd. P’ship,
766 So.2d 1114 (Fla. 5th DCA 2000) 2
State v. Peraza,
259 So.3d 728 (Fla. 2018) 13
Steele v. Comm’r of Soc. Sec.,
2024 Fla. LEXIS 259 (Feb. 15, 2024) 13
Stephenson v. Parsons, 96 N.C. App. 93 (1989),
96 N.C. App. 93 (1989) 6
Storey Mountain, LLC v. George,
357 So.3d 709 (Fla. Dist. Ct. App. 2023) 13
Swenson v. Thibaut,
39 N.C. App. 77 (1978) 14
Tanglewood Land Company, Inc. v. Wood,
40 N.C. App. 133 (1979) 25
Tribike Transp., LLC v. Essick,
2022 NCBC LEXIS 143 (N.C. Super. Ct. Nov. 30, 2022) 17
Wachovia Bank v. Harbinger Cap. Master Fund I, Ltd,
201 N.C. App. 507 (2009) 23
Willowmere Cmty. Ass'n v. City of Charlotte,
370 N.C. 553 (2018) 8

Statutes

Ala. Const., Art. I, §14 ................................................................................................. 10

Fla. Const. Art. X, §13 ................................................................................................. 12
Fla. Stat. § 622.07 ........................................................................................................ 13
Fla. Stat. §1001.72(1)............................................................................................. 12, 17
Fla. Stat. §768.28(1)............................................................................................... 12, 20
N.C.G.S. §1-254.............................................................................................................. 4
N.C.G.S. §1-75.12............................................................................................. 21, 23, 24
N.C.G.S. §1-75.7(1) ...................................................................................................... 14
N.C.G.S. §55A-3-02(a)(1) ............................................................................................. 10
N.C.G.S. §59B-2(2)....................................................................................................... 19
N.C.G.S. §59B-3 ........................................................................................................... 19
N.C.G.S. §59B-7(e) ....................................................................................... 3, 11, 12, 21

Other Authorities

59A Am.Jur.2d Partnership §279 ............................................................................... 19

v
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF MECKLENBURG 23CV040918-590

ATLANTIC COAST CONFERENCE, a

North Carolina Nonprofit
Unincorporated Association,
PLAINTIFF’S BRIEF IN OPPOSITION
Plaintiff, TO DEFENDANT’S MOTION TO
DISMISS OR, IN THE ALTERNATIVE,
v. TO STAY

BOARD OF TRUSTEES OF FLORIDA

STATE UNIVERSITY.

Defendant.

The Plaintiff ATLANTIC COAST CONFERENCE (“ACC” or “the Conference”)

submits this Brief and materials in Opposition to the Defendant Board of Trustees of

Florida State University’s (“FSU”) Motion to Dismiss or Stay.

SUMMARY OF ARGUMENT

Thirty-three years ago, FSU joined the ACC, a North Carolina nonprofit

unincorporated association. Over the decades, FSU actively participated in the

management of the Conference, as was its right under North Carolina law. (ECF#12

¶¶8-11). In 2013, and again in 2016, FSU entered into Grant of Rights agreements

(“Grant of Rights”) with the ACC. Those agreements allowed FSU to receive millions

of dollars in media rights payments. But in 2023, FSU declared that this was not

enough and that it would do “whatever was necessary” to avoid these agreements.

FSU’s plan to breach these agreements culminated on December 21 with the calling

of an “emergency” Board meeting on 24 hours’ notice.

 The Conference understood, correctly, that FSU intended to breach the Grant

of Rights by challenging them in court. The Conference thus sued on December 21 to

declare the agreements valid under North Carolina law. By the early morning of

December 22, FSU posted its as-yet unfiled lawsuit online, alleging that the FSU

Board had authorized the lawsuit even though the Board had not yet met. When the

Board did meet, the sole purpose of the “emergency” meeting was revealed to be

litigation against the ACC. Minutes after that meeting, the ACC served its lawsuit

on FSU. Undeterred, FSU filed its lawsuit.

Florida is a “priority” jurisdiction in which the first served lawsuit takes

priority. See Shooster v. BT Orlando Ltd. P’ship, 766 So.2d 1114, 1116 (Fla. 5th DCA

2000). There is no dispute over which lawsuit was served first. FSU stipulated it was

served on December 22 and the ACC was not served until December 28.1 To avoid

application of Florida’s priority law, FSU filed these Motions to dismiss or stay in

North Carolina. FSU, however, takes a shotgun approach raising everything from

jurisdictional issues to a claim that it never really signed the Grant of Rights. And

throughout FSU repeatedly insists that the ACC acted improperly by filing its

lawsuit over North Carolina agreements in North Carolina, and claims that this

Court will “favor” the ACC.

None of these arguments have merit. There is nothing improper about a North

Carolina organization asking the courts of North Carolina to interpret contracts

governed by North Carolina law. Additionally, FSU, as a member of the ACC,

1 See Exhibit 1.

2
consents by statute to suit by the Conference in North Carolina for its claims.

N.C.G.S. §59B-7(e). FSU’s other arguments for dismissal, at best, only raise

questions of fact. And FSU shows no reason, much less “substantial injustice,” that

requires this Court to defer to the courts of Florida.

ARGUMENT2

I. There Was and Is a Justiciable Controversy

While FSU’s Motion seeks dismissal of the Amended Complaint, FSU makes

no serious argument that there was not a concrete controversy at the time it was

filed. Instead, FSU directs its arguments to the time of the filing of the original

Complaint. It does so to obtain a finding that it can use in Florida to argue that the

original Complaint was not valid, and thus was not first served. But that argument

also has no merit.

FSU claims that when the ACC filed its original Complaint, there was an

insufficiently concrete “controversy.” It argues that the Conference was barred from

defending the validity of the Grant of Rights until the FSU Board formally voted to

sue. But FSU ignores that the Grant of Rights includes an agreement that FSU

would not challenge them. (ECF##2 ¶55; ECF#2.2 ¶6; ECF#12 ¶64; ECF#12.2 ¶6)

(FSU would not take “any action, or permit any action to be taken by others . . . or

fail to take any action, that would affect the validity and enforcement of the Rights

granted to the Conference.”). To protect its rights, the Conference was not required

2Because FSU submitted no documents contradicting factual allegations of the

Complaints, the ACC’s factual allegations are treated as true.

3
to wait until FSU sued, breaching that covenant. To the contrary, the ACC had

bargained for a covenant not to sue and was entitled to enforce that covenant when

breach was imminent.

The Declaratory Judgment Act provides that “[a]ny person interested under a

. . . written contract . . . may have determined any question of construction or validity

arising under the . . . contract . . . and obtain a declaration of rights.” N.C.G.S. §1-

254. It allows a contract to be “construed either before or after there has been a

breach.” Id. Indeed, “the object of the declaratory judgment is to permit

determination of a controversy before obligations are repudiated or rights are

violated.” Perry v. Bank of Am., N.A., 251 N.C. App. 776, 779 (2017) (emphasis

added). While “a declaratory judgment action must involve an actual controversy

between the parties, plaintiffs are not required to allege or prove that a traditional

‘cause of action’ exists against a defendant in order to establish an actual

controversy.” Goldston v. State, 361 N.C. 26, 33 (2006).

FSU both concedes and relies on the ACC’s pleading that it had imminent

notice of FSU’s intent to sue for purposes of its motion to stay. (ECF#20 at 23). This

concession is driven by the facts. Beginning in February 2023, FSU planned to

challenge the validity of these contracts. On February 23, the Board discussed

leaving the ACC and whether FSU could recoup its withdrawal payment by joining

another conference for more money. (ECF#2 ¶¶94-96; ECF#12 ¶¶117-119). The

Grant of Rights does not permit this because media rights remain with the ACC even

after FSU leaves. The discussion on leaving the Conference continued on August 3,

4
with one Trustee stating, “we need to do whatever is necessary.” (ECF#2 ¶104;

ECF#12 ¶132). The day before, FSU’s Chairman said the Grant of Rights was “the

least of my worries. . . . We have gotten a lot of counsel on that document and that

will not be the document that keeps us from taking action.” (ECF#2 ¶107; ECF#12

¶135). The Complaint alleges that by August, FSU was planning to breach the Grant

of Rights.

In early December, FSU’s Complaint was shared with the FSU Board.

(ECF#12 ¶153). Each trustee was also given an “individual briefing” concerning the

challenge to the Grant of Rights. (Id. ¶154). Before the December 22 meeting, the

Board Chairman had spoken with each Trustee “for the purpose of securing the

necessary votes to proceed to litigation.” (Id. ¶155). On December 21 an “emergency”

Board meeting was called. By 8:12 am on the morning of December 22, FSU’s News

Service posted the complaint including an allegation that the Board (which had not

met) authorized the litigation. (Id. ¶169; ECF#12.15). The Board meeting at 10:00

am was neither an emergency nor called in accordance with the Board’s procedures.

(ECF#2 ¶¶110-14; ECF#12 ¶¶143-48). During the meeting, counsel for FSU stated

they would file the lawsuit as soon as the Board voted. (ECF#12 ¶157).

It is difficult to imagine how this controversy could have been more concrete

on December 21. FSU cites no facts from the pleadings which show otherwise; it

simply argues that because its Board could have “changed its mind,” litigation was

not inevitable. But the fact that litigation immediately occurred shows the

controversy was concrete and breach was imminent. In Stephenson v. Parsons, the

5
Court of Appeals found that “litigation [was] unavoidable” when after the plaintiff

filed a declaratory judgment action, the anticipated litigation by the defendant

occurred. 96 N.C. App. 93, 96 (1989) (“At the time summary judgment was entered,

defendant had, in fact, filed a complaint in the Superior Court [and] . . . sought

injunctive relief and monetary damages.”). The record “thus shows an actual

controversy between these parties as to the validity of the covenant not to compete

and that litigation was not only unavoidable but had actually begun.” Id.

FSU creates a world where only the breaching party can sue, and the non-

breaching party may never seek to enforce its rights in the face of an imminent

breach. This has never been the law. See Allen ex rel. Allen & Brock Const. Co. v.

Ferrara, 141 N.C. App. 284, 291-2 (2000) ( where litigation is forthcoming, “[c]ertainly

plaintiff should not be required to await suit, perhaps indefinitely”). Here an actual

controversy about the Grant of Rights (including the covenant not to sue) existed by

December 21. Breach was not only unavoidable but occurred within hours of the

Conference’s filing. And the Complaints show the decision to breach had been made

well before December 22. That FSU engaged in pre-holiday subterfuge to try to file

its “emergency” complaint first does not mean that a controversy did not exist before

then.3

3 The cases cited by FSU address anticipatory litigation in the context of a dispute,
not an imminent breach. FSU ignores that the filing of its lawsuit challenging the
Grant of Rights was itself the breach, not just an effort to invoke judicial
interpretation of a contract’s terms.

6
 FSU urges the Court not to issue a declaration under §1-257, arguing relief

“would not terminate the uncertainty or controversy giving rise to the proceeding.”

But FSU does not explain how a declaration by this Court would not remove all

uncertainty. Nor does FSU explain why it cannot raise here all of the arguments it

makes in Florida. If this Court declares the Grant of Rights valid under North

Carolina law, or holds FSU is barred from challenging them, there will no longer be

uncertainty about those agreements.4

II. FSU’s Motion Does Not Show the Conference’s Complaint was
“Unauthorized”

FSU argues a two-thirds vote by the ACC’s Board was required for the filing

of the original Complaint, and that the failure to affirmatively plead authorization

warrants dismissal.

FSU’s invocation of cases involving bargained-for conditions precedent by

parties to litigation ignores that North Carolina law requires only that the ACC allege

that it was an unincorporated association and that North Carolina law gave it the

right to sue. Cf. N. Iredell Neighbors for Rural Life v. Iredell County, 196 N.C. App.

68, 74-5 (2009). This it did in both complaints. (ECF##2 ¶2; ECF#12 ¶2). The ACC

need not allege compliance with its internal bylaws or governance procedures:

4 What is not ripe is FSU’s claim in Florida that the withdrawal payment is an
improper penalty. There FSU fails to allege that it intends to withdraw from the
Conference, that it would have withdrawn but for the withdrawal provision, or that
it will withdraw if the provision is stricken. Instead, FSU states that if its relief is
granted, then its Board might meet at some point and could vote to withdraw. This
is the paradigm of a non-ripe claim.

7
 Nothing in our jurisprudence on standing requires a corporate litigant
to affirmatively plead or prove its compliance with corporation bylaws
and internal rules relating to its decision to bring suit.

Willowmere Cmty. Ass'n v. City of Charlotte, 370 N.C. 553, 560-61 (2018). On this

basis alone, FSU’s Motion should be denied.

In addition, FSU’s claim that the lawsuit was unauthorized is unsupported. As

a voluntary association, the ACC is entitled to interpret its bylaws concerning its

internal affairs. McAdoo v. Univ. of N. Carolina at Chapel Hill, 225 N.C. App. 50, 71

(2013) (“[i]t is well established that courts will not interfere with the internal affairs

of voluntary associations”); Master v. Country Club of Landfall, 263 N.C.App. 181,

120 (2018) (same). So long as the ACC’s interpretation is reasonable, no challenge is

permitted. See Gaston Bd. of Realtors, Inc., v. Harrison, 311 N.C. 230, 237 (1984)

(“[T]he charter and bylaws of an association may constitute a contract between the

organization and its members wherein members are deemed to have consented to all

reasonable regulations and rules.”).

The bylaws require approval only for the initiation of “material” litigation.

“[M]aterial” is undefined, but its use plainly indicates that not all litigation requires

approval by the Board. See Fiske v. Kieffer, 2016 NCBC LEXIS 12, *11 (N.C. Super.

Ct. Feb. 16, 2016) (“[E]very word and every provision is to be given effect.”). In

addition, the Board (including FSU) unanimously approved the ESPN Agreements,

which authorized the Conference to take all commercially reasonable actions to

protect the rights provided to ESPN. (ECF##2 ¶126; ECF#12 ¶¶80, 82, 149). The

Board and Conference’s leadership determined that the initial declaratory judgment

8
Complaint did not require a two-thirds vote because it met the already-approved

obligation to take commercially reasonable action, sought only to protect existing

agreements and did not change any contractual or commercial relationships, let alone

materially. If FSU means to challenge these determinations, its challenge only raises

questions of fact not proper at this stage.

The ACC Membership approved the Amended Complaint (which added

material claims) on January 12, 2024, including the original claims filed on December

21. See Exhibit 2. While not required because the original Complaint was valid,

this approval is “the affirmance ... of a prior act [and] ... is given effect as if originally

authorized by him.” Am. Travel Corp. v. Cent. Carolina Bank, 57 N.C. App. 437, 442

(1982) (citing Restatement (Second) of Agency §82; see also Holland v. Warren, 2020

NCBC LEXIS 146 (N.C. Super. Ct. Dec. 15, 2020) (allowing retroactive ratification of

transaction by board of directors of a nonprofit association).

III. This Court Has Jurisdiction over FSU

While FSU concedes that it can be sued for breach of contract, it argues that

as a sovereign entity it cannot be sued for those breaches in North Carolina.

In 2013, the University of Maryland made a similar argument, which was

rejected on the basis of comity. Atl. Coast Conference v. Univ. of Md., 230 N.C. App.

429, 440 (2013). Several years later, in Franchise Tax Board of California v. Hyatt,

the U.S. Supreme Court abrogated comity and held that a sovereign must provide

express consent to suit in another jurisdiction. 587 U.S. ___, 139 S.Ct. 1485, 1499

(2019). Hyatt, however, prescribed neither the form nor the method for such consent

9
 Farmer v. Troy University, 382 N.C. 366 (2022), cert. denied 143 S.Ct. 2561

(2023), addressed the issue of consent left open in Hyatt. In Farmer, a North Carolina

resident employed by Troy University, an Alabama public university and sovereign

under Alabama law, asserted tort claims against Troy. Troy argued that it did not

consent to foreign jurisdiction under Hyatt. Indeed, the Alabama Constitution

provides that “the State of Alabama shall never be made a defendant in any court of

law or equity.” Ala. Const., Art. I, §14. The North Carolina Supreme Court found

that by registering to do business in North Carolina, Troy subjected itself to the

Nonprofit Corporation Act, which provides that a corporation can “sue and be sued.”

N.C.G.S. §55A-3-02(a)(1). Troy’s ability to “sue and be sued,” under North Carolina

law, along with the fact that Troy entered North Carolina to conduct commercial

activity, meant that Troy “explicitly waived its sovereign immunity.” 382 N.C. at 371-

73.5

Farmer controls this case. FSU came to North Carolina to become a member

of the ACC, a nonprofit unincorporated association under North Carolina law. As a

member, FSU managed the Conference and received millions of dollars, generated in

large part by the Grant of Rights, which are governed by North Carolina law.

(ECF#12 ¶12).6 In fact, there is no dispute that FSU is otherwise subject to

5 While FSU moved under subject-matter jurisdiction, Farmer analyzed this question
as one of either personal jurisdiction, or as a failure to state a claim under a
traditional sovereign immunity analysis. Nor could this be subject-matter
jurisdiction because “[s]ubject matter jurisdiction cannot be conferred upon a court
by consent.” In re T.R.P., 360 N.C. 588, 595 (2006).
6 FSU first executed the Grant of Rights and Amended Grant of Rights. (ECF#2 at

¶¶57-69, 99-105). These agreements were later counter-signed by the ACC

10
jurisdiction under North Carolina’s long-arm statute and the Due Process Clause

because of its continuous commercial activity in this state through its membership in

the ACC.

North Carolina’s Uniform Unincorporated Nonprofit Association Act

(“UUNAA”) governs the ACC and its Members. In Section 7, “Liability of members

or other persons,” a member is given the right to “assert a claim against or on behalf

of the association.” N.C.G.S. §59B-7(e). Similarly, an association is given the right

to sue its members for its claims: “[A] nonprofit association may assert a claim

against a member or person referred to as a ‘member’ by the nonprofit association.”

Id. Thus, a member has both the right to sue on behalf of the association, and, in

plain terms, the liability of being sued by the association in North Carolina.

By being a Member Institution of the ACC and participating in its

management, FSU consented to be sued by the Conference in North Carolina as

surely as did Troy by registering to do business in North Carolina. Indeed, the

consent imposed by the UUNAA is narrower than the “sue and be sued” consent in

Farmer. Under the UUNAA, consent is limited to the claims of the association; it is

not general consent to any claim from anyone. This aligns with the statutory scheme

that a member of a nonprofit association, while having a right to bring claims for (or

Commissioner in North Carolina. (Id.). Thus, these agreements were created under
North Carolina law.

11
against) the association, must also be answerable to claims made by the association.

N.C.G.S. §59B-7(e).7

This conclusion is bolstered by Florida law.

Unlike the Alabama Constitution, Florida’s Constitution states that

“[p]rovision may be made by general law for bringing suit against the state as to all

liabilities now existing or hereafter originating.” Fla. Const. Art. X, §13. The Florida

legislature provided that FSU has the right “to contract and be contracted with, to

sue and be sued, to plead and be impleaded in all courts of law or equity.” Fla. Stat.

§1001.72(1). Thus, “where the state has entered into a contract fairly authorized by

the powers granted by general law, the defense of sovereign immunity will not protect

the state from action arising from” that contract. Pan-Am Tobacco Corp. v. Dep’t of

Corr., 471 So.2d 4, 5 (Fla. 1984).

FSU concedes this waiver but insists the phrase “all courts of law or equity”

means only Florida courts. But if the Florida legislature intended to limit this scope,

it knew how to do so. For example, as FSU notes, claims to recover money damages

in tort “against a state university board of trustees shall be brought in the county

in which that university’s main campus is located or in the county in which

the cause of action accrued if the university maintains therein a substantial

presence for the transaction of its customary business.” Fla. Stat. §768.28(1)

7 The two cases cited by FSU do not address this issue. Ashworth v. Glades County.
Bd. of County Commissioners was decided before Hyatt and involved litigation
against a Florida sovereign in Florida. Austin v. Glynn County, Georgia, was a federal
claim against a sovereign entity that neither cited nor discussed Hyatt.

12
(emphasis added). Had the Florida Legislature intended to limit contract litigation

to the courts of Florida, it would have added similar language, or even the words “in

this state,” at the end of “in all courts of law or equity.” Indeed, it has done so in other

statutes. See Fla. Stat. § 622.07 (“Every association shall have the power and

authority to . . . sue and be sued in this state.”) (emphasis added). Put simply, “all

courts of law or equity” must mean “all,” including courts outside Florida, particularly

when the legislature knew how to say otherwise. Cf. N.C. Dep’t of Revenue v. Graybar

Elec. Co., Inc., 373 N.C. 382, 391 (2020) (“When a legislative body includes particular

language in one section of a statute but omits it in another section of the same Act, it

is generally presumed that the legislative body acts intentionally and purposely in

the disparate inclusion or exclusion.”); Storey Mountain, LLC v. George, 357 So.3d

709, 714 (Fla. Dist. Ct. App. 2023) (same).

This plain reading is consistent with the “textualist” approach to statutory

interpretation adopted by Florida’s Supreme Court. As recently as this month, that

Court wrote: “As expressed in our cases involving statutory interpretation, we are

committed to the supremacy-of-text principle—that is, the words of a governing text

are of paramount concern to us, and what they convey, in their context, is what the

text means.” Steele v. Comm’r of Soc. Sec., 2024 Fla. LEXIS 259, *6 (Feb. 15, 2024).

See also State v. Peraza, 259 So.3d 728, 733 (Fla. 2018) (“Because even a clearly

discernible Legislative intent cannot change the meaning of a plainly worded statute,

it would only confuse matters to focus on what the Legislature might have intended

rather than what the statute actually says.”).

13
 Moreover, before it objected to personal jurisdiction, FSU made a general

appearance under N.C.G.S. §1-75.7(1), and thus waived that defense. On February

1, FSU voluntarily filed an Opposition to the Conference’s Amended Motion to Seal.

(ECF#15). FSU’s Opposition sought a ruling on the applicability of the Public Records

Acts of Florida and North Carolina and whether it could enter into a confidentiality

agreement. In doing so, FSU did not reserve the question of personal jurisdiction,

nor even mention it. Under §1-75.7(1), a “court of this State having jurisdiction of

the subject matter may . . . exercise jurisdiction over a person: (1) Who makes a

general appearance in an action . . . .” For decades it has been the law that “if a

defendant by motion or otherwise invokes the adjudicatory powers of the court in

any other matter not directly related to the questions of jurisdiction, he has made a

general appearance and has submitted himself to the jurisdiction of the court whether

he intended to or not.” Swenson v. Thibaut, 39 N.C. App. 77, 80 (1978) (emphasis

added); see also Blaylock v. AKG N. Am., 285 N.C. App. 72, 76 (2022) (same). Courts

apply a “very liberal interpretation of what constitutes a general appearance.” Miller

v. Carolina Coast Emergency Physicians, LLC, 277 N.C. App. 449, 463 (2021)

(challenging subject-matter jurisdiction is a general appearance); Covenant Equip.

Corp. v. Forklift Pro, Inc., 2008 NCBC LEXIS 12, *35 (N.C. Super. Ct. May 1, 2008)

(Notice of Designation is a general appearance for purposes of personal jurisdiction).

14
Consent under Hyatt is a waivable defense, see Henry v. New Jersey Transit Corp., 39

N.Y.3d 361, 389, 210 N.E.3d 451 (2023), and FSU has done so here.8

IV. FSU’s New Claim that It Did Not Execute the Grant of Rights in 2013
and 2016 is Not a Basis for Dismissal

FSU argues that its Board did not vote on the Grant of Rights and thus they

were not authorized. It further claims the Conference named the wrong party. But

FSU’s arguments are contradicted by the agreements and the allegations of the

Amended Complaint.9

FSU does not dispute that it is a Member Institution (and, indeed, sues in

Florida on that basis (see, e.g., ECF#19.1 ¶¶9, 193-5, 231, 234)). The Grant of Rights

signed by FSU’s President warranted that the Member Institution “either alone, or

in concert with an affiliated entity. . . has the right, power and capacity to execute,

deliver, and perform this Agreement and to discharge the duties set forth.”

(ECF#12.2 ¶6(a)). FSU further warranted that the “execution, delivery and

performance of this Agreement and the discharge of all duties contemplated hereby,

have been duly and validly authorized by all necessary action on the part of such

Member Institution.” (Id. ¶6(b)). The Amended Complaint alleges FSU “agreed to

and executed the Grant of Rights on April 19, 2013” and its “President was authorized

to agree to and execute the Grant of Rights . . . on behalf of Florida State.” (ECF#12

8 Notably, while three judges held that New Jersey Transit failed to preserve and
thus waived its consent defense, two judges held that New Jersey Transit consented
to suit under Hyatt by operating in New York.
9 FSU’s argument is also contradicted by its own regulations and policies affirming

its President’s authority to enter such contracts. FSU Regulation 2.015 and FSU
Policies 1-5 and 2-7.

15
¶¶66-67, 99-100). These warranties and allegations establish the necessary

authority. But even if FSU’s argument was plausible (which it is not), whether its

President was authorized to sign the Grant of Rights creates at most a factual

dispute.

The Amended Complaint further alleges FSU accepted millions of dollars of

benefits created by the Grant of Rights over more than a decade. (Id. ¶¶187-201).

Based upon this years-long acceptance of benefits, the ACC also pleaded waiver and

estoppel. FSU’s argument that it did not vote on these agreements despite accepting

their benefits is the hallmark of waiver and estoppel, again raising at best a factual

issue (including a question of ratification). The Amended Complaint also alleges that

the FSU Board annually certifies the “[r]esponsibility for the administration of the

athletics program has been delegated to the CEO/President/Chancellor of the

Institution,” (ECF#12 ¶¶142, 243; ECF#12.13), and describes favorable statements

of Trustees after the President signed the agreements. (ECF#12 ¶¶74-75). These

allegations sufficiently establish actual authority.

FSU also argues that because the Grant of Rights agreements named “Florida

State University” and not “Florida State University Board of Trustees,” the

Conference failed to sue the proper party. But FSU routinely moves to dismiss claims

against “Florida State University” because there is no entity named “Florida State

University” that is capable of being sued. See, e.g., Doe v. New Coll. of Fla., 2023 U.S.

Dist. LEXIS 173689, *21 (M.D. Fla. Sept. 28, 2023) (“This Court and other district

courts in Florida have held that the university is not the proper entity to be sued, but

16
rather, an action against a Florida State University proceeds in the name of the

university's Board of Trustees.”); Broer v. Fla. State Univ., 2022 WL 2289143, at *2

(Fla.Cir.Ct. June 17, 2022) (same); see also Exhibit 4 (motion to dismiss “Florida

State University” because it is “not endowed with an independent corporate existence

and so lacks the capacity to sue or be sued in its own name and is not a proper party.”).

Had the ACC named “Florida State University,” FSU would move to dismiss on that

ground. FSU is the proper party because it “constitutes the contracting agent of the

university” and has the power “to contract and be contracted with” and “to sue and

be sued.” Fla. Stat. §1001.72.10

V. The ACC’s Claims for Breach of Confidentiality, Breach of Fiduciary

Duty, and Breach of the Duty of Good Faith and Fair Dealing are
Valid

FSU argues that the Fourth, Fifth, and Sixth Claims for Relief should be

dismissed for imposing “extracontractual” obligations not supported by North

Carolina law. It cites no case law in support of this argument.

The Fourth and Sixth Claims for Relief are claims for breach of contract.

Because there are “no heightened pleading requirements” for claims involving breach

of contract, they require only an allegation of a valid contract and breach of its terms.

Tribike Transp., LLC v. Essick, 2022 NCBC LEXIS 143, *19 (N.C. Super. Ct. Nov. 30,

2022).

10A copy of the FSU website attached as Exhibit 3 states the Board “is the public
body corporate of the university . . . and serves as the . . . legal owner.”

17
 The Fourth Claim alleges that the Conference had an agreement with ESPN

that imposed confidentiality terms on the Conference and each of its members, that

FSU was aware of and approved this agreement, that the ACC informed FSU of the

confidentiality requirements, and that it made compliance with confidentiality a

condition of FSU’s review of the ESPN Agreements. (ECF##12 ¶140; ECF#12.12)).

Subject to these conditions, FSU reviewed the agreements. FSU then disclosed

confidential information. (ECF#12 ¶¶161-72, 215, 219-29). This is more than

sufficient to provide notice of an agreement and its breach.

The Sixth Claim alleges that the ACC Constitution and Bylaws represent a

contract between FSU and the ACC (Id. ¶267), that it specifically charges the

Commissioner with negotiating media rights, and that FSU gave the Conference the

right to exploit its media rights (Id. ¶270). The ACC then alleges that the actions

taken by FSU in challenging the Grant of Rights, violating its fiduciary obligations,

and disclosing confidential information, all violate the duty of good faith and fair

dealing imposed by North Carolina law on every contract. In particular, FSU’s

actions were designed to deprive the Conference of its assigned media rights and the

ability to exploit and market those rights. It is axiomatic that in “every contract there

is an implied covenant of good faith and fair dealing that neither party will do

anything which injures the rights of the other to receive the benefits of the

agreement.” Governors Club, Inc. v. Governor’s Club Ltd., 152 N.C. App. 240, 251

(2002).

18
 The Fifth Claim alleges that FSU breached its fiduciary obligation to the

Conference. The UUNAA does not prescribe duties of governance, instead providing

that principles of law and equity will continue to govern. N.C.G.S. §59B-3. The

UUNAA defines a nonprofit association as an organization of two or more members

joined by mutual consent for a common nonprofit purpose. N.C.G.S. §59B-2(2). This

definition tracks the common law definition of an “association” as a “joint venture”

involving a common agreement to carry out a venture in which the profits are shared

and there is an equal right of control. See Goard v. Branscom, 15 N.C. App. 34, 38

(1972) (“The general rule deducible from the cases which have passed on the question

is that the members of an unincorporated association are engaged in a joint

enterprise…”). The Amended Complaint shows that the Board manages the

Conference, each Member sits on the Board with an equal vote, (ECF##12.1 ¶1.5.1),

and the Members share net revenue. (Id. ¶2.5.2,). These are the defining features of

a joint venture. See Rifenburg Constr., Inc. v. Brier Creek Assocs. Ltd. Partnership,

160 N.C. App. 626, 632 (2003).

A joint venture is “in the nature of a kind of partnership, and although a

partnership and a joint [venture] are distinct relationships, they are governed by

substantially the same rules.” Jones v. Shoji, 336 N.C. 581, 585 (1994) (quotation

omitted). And it “is elementary that the relationship of partners is fiduciary and

imposes on them the obligation of the utmost good faith in their dealings with one

another in respect to partnership affairs.” See Casey v. Grantham, 239 N.C. 121

(1954); Se. Shelter Corp. v. BTU, Inc., 154 N.C. App. 321, 327 (2002). Because each

19
Member acts as a general partner, each also owes a fiduciary obligation to the

unincorporated association. See 59A Am.Jur.2d Partnership §279 (“the law imposes

obligations [on partners] arising out of the nature of their fiduciary relationship,

running not only to the partnership but to copartners as well”). Cf. Jackson v.

Marshall, 140 N.C. App. 504, 508 (2000) (affirming holding that “the General

Partner’s fiduciary duty is to the partnership”); Jackson v. NAACP Houston Branch,

2016 Tex. App. LEXIS 10181, *21 (Tex.App. Sept. 15, 2016) (“Assuming . . . that

formal fiduciary duties apply in the context of nonprofit associations like the NAACP,

such duties generally run to the organization”). Thus, each member owes a fiduciary

obligation, to the association not to defeat or destroy its common purpose.

Here FSU violated that obligation, for its own benefit, and without regard for

the best interest of the Conference. (ECF#12 ¶¶252-55). By breaching its obligations

under the Grant of Rights, FSU undermines the basic contractual structure through

which the ACC generates revenues for its members to fund their athletic programs.

(Id. ¶¶249-51). This duty is bolstered by the provisions of the ACC Constitution that

address conflicts of interest of withdrawing members, permitting the exclusion of a

withdrawing member from meetings which “could present a conflict of interest.”

(ECF#12.1 ¶1.5.1.3(iii)). It is plain that as a Member, FSU would owe a higher duty

to the Conference than a withdrawing member.11

11 FSU suggests that a claim for breach of fiduciary duty is a tort required to be
brought in Leon County, Florida. Fla. Stat. §768.28(1). (ECF#20 at 14). But that
statute applies “to recover damages in tort for money damages,” and the ACC seeks
only injunctive relief for this breach. Moreover, this claim is plainly “a claim against

20
VI. FSU Has Failed to Prove that Litigating this Matter in North
Carolina Would be a “Substantial Injustice”

FSU alternatively moves to stay, arguing only Florida is the “true forum” and

only FSU is the “true Plaintiff.” FSU grounds its Motion on two propositions. First,

it argues that the ACC engaged in improper “procedural fencing” by filing first to

obtain a more “favorable” forum. Second, it claims that the statutory factors under

N.C.G.S. §1-75.12 and Lawyers Mutual Liability Insurance. Co. v. Nexsen Pruet

Jacobs & Pollard, 112 N.C. App. 353, 356 (1993) “favor” a stay. Neither proposition

is true. Moreover, FSU largely ignores its burden to prove that litigation in this court

would work a substantial injustice. The phrase “substantial injustice” appears

nowhere in the substance of FSU’s argument, see ECF#20 at 20-27, yet it is the

“essential question for the trial court when contemplating a motion for a stay under

§1-75.12 ….” Nlend v. Nlend, 896 S.E.2d 72 (N.C. Ct. App. 2024).

Instead, FSU complains the Conference engaged in a “race to the courthouse.”

But FSU ignores the fact that if there was a race to the courthouse, FSU started it.

As detailed in both Complaints, since before August 2023 FSU intended to breach the

Grant of Rights through litigation. The planning for breach was done through

individual briefings of Trustees to avoid public disclosure under Florida’s “sunshine”

laws. And when the Board convened a meeting on the last business day before the

Christmas Holiday for an “emergency” matter, it did so to try to be the first to file a

lawsuit, a lawsuit which it had already publicly released, and which its counsel was

a member or person referred to as a ’member’ by the nonprofit association.” N.C.G.S.

§59B-7(e).

21
poised to file immediately. Thus, FSU’s grievance is not that there was a race to the

courthouse, but that it lost.

Moreover, there is nothing improper about a party seeking to protect its rights

by filing first. Indeed, in a case in which the defendants sought Rule 11 sanctions

after the plaintiff threatened to be “first to file” unless its settlement offer was

accepted, this Court wrote:

Defendants, however, have not pointed to any authority demonstrating

that a desire to gain litigation advantage is beyond the scope of
“vindicating rights” or “putting claims of right to a proper test.” Finding
that Plaintiff acted with an improper purpose would expose to sanction
countless attorneys who make pre-filing settlement demands or seek to
file before the opposing party does.

Kure Corp. v. Peterson, 2017 NCBC LEXIS 1, *16 (N.C. Super. Ct. Jan. 5, 2017).

Under North Carolina law, there is nothing inappropriate in filing a lawsuit “in an

entirely proper effort to obtain prompt resolution of a dispute.” Nautilus Ins. Co. v.

Winchester Homes, Inc., 15 F.3d 371, 380 (4th Cir. 1994). And North Carolina courts

have repeatedly confirmed that choosing to file in one court over another where both

courts are proper is “insufficient to be considered procedural fencing.” NGM Ins. Co.

v. Evans, 642 F. Supp.2d 511, 517 (W.D.N.C. 2009). Put simply, “[j]urisdiction lies

where the court is convinced that litigation, sooner or later, appears to be

unavoidable.” Pilot Title Ins. Co. v. Nw. Bank, 11 N.C. App. 444, 449 (1971).

FSU insists that this lawsuit was filed to obtain a more “favorable” forum,

(ECF#20 at 1, 8, 20, 23), but it never explains why this Court is more “favorable” to

the ACC. A party suing where it exists is not improper forum shopping. Rather,

improper forum shopping occurs when a party seeks to avoid less favorable law in

22
another forum or tries to improperly obstruct other proceedings. Every case cited by

FSU involves such conduct. For example, in Harris Teeter Supermarkets, Inc. v. Ace

Am. Ins. Co., the plaintiff sued insurance companies in North Carolina hoping to

avoid the application of the law of its home forum in Ohio. 2023 NCBC LEXIS 125,

n. 16 (N.C. Super. Ct. Oct. 10, 2023). In Poole v. Bahamas Sales Associate, LLC, 209

N.C. App. 136, 143 (2011), the plaintiff filed in North Carolina to “circumvent a

choice-of-law provision agreed to by the parties which would otherwise subject them

to the laws of the State of Florida.” In La Mack v. Obeid, 2015 NCBC LEXIS 24, *18

(N.C. Super. Ct. Mar. 5, 2015), the plaintiff filed a “hip pocket” complaint to preserve

first-filed status, and did not serve the lawsuit until it was served with a competing

action. And in Harleysville Mut. Ins. Co. v. Narron, 155 N.C. App. 362, 369 (2002),

the plaintiff filed a lawsuit asking the court to determine the amount of an insured

loss when there was a binding appraisal provision giving appraisers that right and

an appraisal proceeding was already pending.12 But not only does FSU fail to explain

why this court will “favor” the ACC, it concedes that a Florida court must apply North

Carolina law in its Florida lawsuit. (ECF#20 at 26).

12Two other cases cited by FSU also do not support a stay. Wachovia Bank v.
Harbinger Cap. Master Fund I, Ltd, 201 N.C. App. 507 (2009), involved a case where
the plaintiffs, after suing in North Carolina, were granted an injunction restraining
defendants from filing in New York. The injunction was modified to permit the New
York lawsuit, and defendants sued a number of other entities (including plaintiffs).
The Court, having permitted suit in New York, then found that the New York
proceedings should take priority. Coca-Cola Bottling Co. Consol. v. Durham Coca-
Cola Bottling Co., 141 N.C. App. 569 (2000) involved competing lawsuits in North
Carolina, and not an assessment of either §1-75.12 or Lawyers Mutual.

23
 In short, FSU claims it is improper for a North Carolina organization to seek

a declaration from a North Carolina court on the validity of a North Carolina contract

which FSU intended to and did breach. This is not the law. To the contrary, once it

became apparent that FSU intended to breach its obligations by filing a lawsuit, the

ACC had the right to sue to settle the validity of the Grant of Rights, and to do so in

the state whose law applied and where the ACC is headquartered, North Carolina.

Similarly, a reasonable analysis of the factors under §1-75.12 and Lawyers

Mutual show that a stay should be denied.

North Carolina courts “begin with the presumption that a plaintiff’s choice of

forum deserves deference,” and a “plaintiff’s choice to sue in its home forum is given

great deference.” Harris Teeter, 2023 NCBC LEXIS 125, *58. To overcome this

“strong presumption,” a moving party must prove “that the balance of equities tips in

[its] favor so as to justify staying the North Carolina action,” by showing “(1) more

than a bare balance of convenience in its favor and (2) that a stay does more than

merely shift the inconvenience.” Diamond Candles, LLC v. Winter, 2020 NCBC

LEXIS 28, *32 (N.C. Super. Ct. Mar. 12, 2020). FSU concedes that North Carolina

law will apply to the claims by the Conference concerning the Grant of Rights, the

ACC Constitution and Bylaws, and FSU’s related breaches. And while FSU has

breached its obligations under the Grant of Rights by filing a lawsuit in Florida, this

does not mean that Florida is the more appropriate forum, particularly where the

damaged party is a North Carolina organization (to which FSU belongs).

24
 Moreover, whether some of FSU’s claims in the Florida action are controlled

by Florida law is irrelevant to whether this North Carolina Action must be stayed,

particularly where, as here, the ACC’s claims are grounded in North Carolina law.13

While the ACC Constitution and Bylaws act as a contract between the members of

the ACC to establish a joint venture, they also serve as governing documents for the

Conference. North Carolina adheres to the “internal affairs” doctrine so claims

involving the governing documents of an organization will be subject only to the law

of the state that created the entity. See Futures Grp., Inc. v. Brosnan, 2023 NCBC

LEXIS 7, *6 (N.C. Super. Ct. Jan. 19, 2023). Because it is undisputed that the ACC

is a North Carolina unincorporated association, the substantive law of North

Carolina applies to the ACC Constitution and Bylaws. (ECF##12 ¶¶69, 105;

ECF#12.2; ECF#12.7). Similarly, the lex loci contractus principle requires the

application of North Carolina law to the Grant of Rights agreements. See Fortune

Ins. Co. v. Owens, 351 N.C. 424, 466 (2000); Tanglewood Land Company, Inc. v. Wood,

40 N.C. App. 133, 136-37 (1979). The Grant of Rights reveal that their creation

occurred in North Carolina, where the Commissioner executed the agreements.

(ECF#2 ¶¶57-60, 74-81). While FSU forecasts defenses based on Florida law, this

does not change the legal reality that these instruments will be judged under North

Carolina law.

13 Factor #5 of Lawyers Mutual.

25
 In addition, litigation of the ACC’s claims involves matters of local concern that

are properly addressed in local courts.14 The ACC has existed in North Carolina for

more than 70 years. In 2023 it received a taxpayer-funded incentive to locate its

headquarters to Charlotte, and North Carolina universities have been an integral

part of its existence since its founding. (ECF#12 ¶¶11, 16, 32). The Grant of Rights

and the ACC Constitution are governed by North Carolina law and the determination

of whether they have been breached or are invalid will substantially impact this

North Carolina nonprofit association. A North Carolina court thus has a “local

interest in resolving the controversy.” See Cardiorentis Ag v. IQVIA, Ltd., 2018

NCBC LEXIS 243, *23 (N.C. Super. Ct. Dec. 31, 2018) (North Carolina courts

generally have an interest in providing a forum to hear disputes involving injuries

related to citizens of the state); Kintz v. Amerlink, Ltd., 2005 N.C. App. LEXIS 2389,

*10 (Ct. App. Nov. 1, 2005) (that certain claims would be governed by North Carolina

law cuts against a stay).

Nor does the convenience of witnesses justify a stay.15 Several of the material

witnesses reside in North Carolina.16 And many witnesses outside North Carolina

do not live in Florida.17 That FSU has been traveling to North Carolina to manage

14 Factors #6 and #7 of Lawyers Mutual.

15 Factor #2 of Lawyers Mutual.
16 John Swofford (ACC Commissioner through 2021), Jim Phillips (ACC

Commissioner from 2021 to Present), Dean Jordan (Managing Executive, Properties,

Wasserman), and other ACC- related witnesses live in North Carolina.
17 Eric Barron, FSU President at the time of the Grant of Rights, is the retired

President of Pennsylvania State University. Stan Wilcox, FSU Athletic Director from
2013 to 2018, is the Executive Vice President of Regulatory Affairs for the NCAA in
Indianapolis, Indiana.

26
the ACC for 33 years shows that North Carolina is an accessible forum to FSU and

its witnesses.18 Moreover, the sources of proof are in North Carolina.19 The

communications between the Conference and its members or media partners will be

on the ACC servers, or reflected in ACC minutes or other records. The payments

received by the Conference and made to members are also maintained by the ACC.

And, as FSU has complained, the ESPN Agreements are kept in the ACC’s

headquarters.

Finally, although FSU’s arguments acknowledge the substantial overlap in

these lawsuits, FSU argues that this Court must defer to the Florida Action because

it is “broader in scope.” Broader scope is not a factor under Lawyers Mutual, and

FSU’s ignores that its defenses will necessarily broaden the scope of this lawsuit once

they are filed. Indeed, FSU will be required to assert any defenses to enforcement of

the Grant of Rights in this lawsuit -- or waive them. See, e.g., Clancy v. Onslow

County., 151 N.C. App. 269, 271–72 (2002) (res judicata applies to all “issues which

could have been raised in [a] prior action but were not” and thereby forces “parties to

join all matters which might or should have been pleaded in one action.”)

Thus, this Court need not defer to the Florida courts because FSU has not met

its burden to show substantial injustice.

18 Indeed, in the Maryland litigation cited by FSU, it not only authorized the filing of
suit in North Carolina against Maryland, but it also asked the North Carolina court
to resolve a question of whether counsel for the plaintiff had a conflict of interest.
Thus, when it suits its interests, FSU appears to have no objection to North Carolina
courts. See Exhibit 5.
19 Factor #4 of Lawyers Mutual.

27
 CONCLUSION

FSU’s Motions should be denied.

This the 27th day of February, 2024.

WOMBLE BOND DICKINSON (US) LLP

/s/ James P. Cooney III

James P. Cooney III (N.C. Bar No. 12140)
Sarah Motley Stone (N.C. Bar No. 34117)
Patrick Grayson Spaugh (N.C. Bar No.
49532)
301 South College Street, Suite 3500
Charlotte, North Carolina 28202-6037
Telephone: 704-331-4980
Jim.Cooney@wbd-us.com
Sarah.Stone@wbd-us.com
Patrick.Spaugh@wbd-us.com

Attorneys for Plaintiff Atlantic Coast

Conference

28
 CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.8

I hereby certify that the foregoing Plaintiff’s PLAINTIFF’S BRIEF IN

OPPOSITION TO DEFENDANT’S MOTION TO DISMISS OR, IN THE
ALTERNATIVE, TO STAY complies with the 7,500 word count applicable to briefs
in support of motions pursuant to Rule 7.8 of the General Rules of Practice and
Procedure for the North Carolina Business Court.
This the 27th day of February, 2024.

/s/ James P. Cooney III

James P. Cooney III

29
 CERTIFICATE OF SERVICE

I certify that on February 27, 2024, the foregoing document was sent via
email to:

Christopher C. Lam
C. Bailey King, Jr.
BRADLEY ARANT BOULT CUMMINGS, LLP
214 North Tryon Street, Suite 3700
Charlotte, NC 28202
Telephone: (704) 338-6000
Facsimile: (704) 332-8858
clam@bradley.com
bking@bradley.com

Counsel for Defendant

/s/ James P. Cooney III

James P. Cooney III

30