Tuesday, July 7, 2015

You Missed This! Additional Information for the Campbell Law Observer

The news of Sweet Briar College's closure resurrection has reached audiences worldwide.  Unfortunately, the untruths spouted by the previous President and Board of Directors have stuck in the public's collective brain (so many jokes, so little time); #SweetBriar supporters continue to correct misinformation.

Paige Miles Feldman, Managing Editor of the Campbell Law School Observer, wrote about the current state of Sweet Briar, but left out a lot of information.  Four months ago, I would have glanced at the article, noticed the legal mumbo jumbo legalese, and turned tail.  My family has one lawyer; I'm not it.  How my world has changed since the afternoon of March 3, 2015!  As it turns out, I like the law and all of its gobbledegook concepts (you're going down in our next argument, baby brother).

Ms. Feldman, allow me to clarify some of the misconceptions in your article.
  1. Sweet Briar Women’s College in Virginia

  2. SBC "will live to see another year" and "the money will only keep the school open for so long"
    We will, in fact, be open for the next 114 years.  And beyond.

  3. Bowyer "claimed that Sweet Briar was a trust, and therefore would require court action to close.  Sweet Briar disagreed, stating that because it did not have stockholders, it did not need the permission of the court to close."
    We lovingly call the Amherst suit Lawsuit #1.  The lawyers for the former president and Board argued that Sweet Briar was a non-stock non-profit corporation--not a trust--and therefore were subject only to the Business Judgement Rule, not the Virginia Uniform Trust Code.  Trusts do not have stockholders.

  4. "Initially, the injunction was denied in circuit court on the grounds that the court lacked the ability to stop the school from closing."
    The requested injunction (based on Virginia Code § 57-59) had nothing to do with whether or not the court was able to stop the closure.  Circuit Court Judge James Updike ruled that Sweet Briar was a non-stock corporation, not a trust, which is why the injunction was denied under this statute.

  5. "The Virginia Supreme Court did not agree with the decision, and ordered the court to reconsider it."
    The way this is written, I understood you to mean that the Supreme Court of Virginia did not agree that "the court lacked the ability to stop the school from closing."  That's misleading.  

  6. "As a part of this order, the higher court said that being a trust and a non-stock corporation were not mutually exclusive in this case, and Sweet Briar could exist as both."
    The ruling does not apply just to Sweet Briar; "in this case" should be removed.

    In addition, the court did not rule that Sweet Briar could exist as both a corporation and a trust, merely that a corporation could also be a trust.  The ruling said nothing about Sweet Briar herself, which is why the case was remanded back to Circuit Court. (yes! more chances to make swoony eyes at Judge Updike.)

  7. "While Bowyer sought the injunction, she also contacted Sweet Briar’s vice-president for finance and administration and asked him to ensure that employees maintain any documents regarding Sweet Briar."
    Commonwealth's Attorney Ellen Bowyer sent a cease-and-desist letter to Scott Shank because his office held midnight shredding parties to destroy school records.  

  8. "Additionally, she requested an injunction to forbid the school from using any donated money to shut down the school.  The court allowed this action."
    This is what's known as burying the lede.  This sentence should be moved up one paragraph to follow #4 above.

    "This action" was the first of many legal battles won, providing a 60-day injunction against the College from using previously-solicited funds for closure based on Virginia Code § 57-57.  It did not enjoin the College from soliciting donations for the purpose of winding-down operations (if I never see "winding-down" again, it will be too soon).

  9. "After the Amherst County Attorney filed suit, the faculty of Sweet Briar chose to also file an injunction in mid-April."
    Technically, this is Lawsuit #3.  Lawsuit #2 is the student/parent/alumnae suit, which I discuss in point #13 below.  

  10. "They claimed that the shutdown would be a breach of contract, but the school replied with a clause from the faculty manual:  that faculty can only be fired 'under extraordinary circumstances because of financial exigencies.'  Naturally, the faculty disagreed with this reasoning, arguing that the school was in fact not in danger of financial crisis."
    The faculty presented the manual, not the College.  As noted in the Faculty and Staff Complaint on page 12:


  11. "Ultimately, the decision by the Virginia Supreme Court ruled, and Sweet Briar could stay open."
    The court's ruling worked in #SaveSweetBriar's favor, but it was not an automatic victory.  All parties spent five weeks in mediation under the guise guidance of the office of Virginia Commonwealth's Attorney General Mark Herring. (Herring only called for mediation after we stalked harassed spoke with him at multiple political fundraisers)

  12. "The $24 million is nothing more than a temporary solution"
    It's $28 million.

  13. "Students were rightfully upset, but did not sue to attempt to stop the closure, and might not have standing to do so if this happens again."
    Lawsuit #2, filed by Elliott Schuchardt on behalf of students, parents, and alumnae, netted a bigger gain than the initial injunction from Lawsuit #1: a six-month stay on selling or disposing of any of the College's assets.

    Honestly, 95% of us believed that the case would flounder (sorry, Elliott!); imagine our surprise when we won!  Elliott has major cojones. (don't worry, Catherine! it's just an expression!)

  14. "If Sweet Briar students had attempted to bring suit on a contract claim, they would likely have also failed.  Furthermore, the only way Sweet Briar students could possibly win on a contract claim in the future is if Sweet Briar closed in the middle of a semester, thus requiring the school to refund any tuition to the students."
    Delete delete delete.

  15. "[T]he faculty could again sue over the financial exigencies clause, or any other contract breach that could be in question."
    Truuuuuue.  But 10,000 people spent four months saving Sweet Briar.  Do you really think that we're going to let the College fail?

    If we find that there are financial exigencies, we'll be able to prove them and reverse course.  If we fail and the College closes, at least we will have done everything in our power to save her.  Unlike the previous administration, we won't hide the financials at every turn.

  16. "Here, everything was dismissed by the court before final judgments were reached."
    An important point: the lawsuits were dismissed as part of the Settlement Agreement.

I love a good rebuttal, but I do expect better research from a third-year law student.


16 comments:

  1. I appreciate the point by point rebuttal, much better than my remarks. I expect better research by a third-year law student, too.

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    1. I thrive on order and adore list-making!

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  2. I enjoyed the crossed out wording the best. Good rebuttal. Don't think a law degree is a must to win an argument!

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    1. I've had way too much fun with the strike-through feature over the years. :)

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  3. It seems as though a lot of your 'corrections' are mere "this is how I would have written a biased version of this article."

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    1. What bias? All I see are facts.

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    2. Thanks for your comment, SCOTUSBarLawyer. Please let me know where I've missed the mark; I have no problem updating my arguments should you prove me wrong.

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  4. I have to respectfully disagree, SCOTUSBarLawyer. Let's take her last point as an example, just so I don't have to scroll all the way back up. The article said, "Here, everything was dismissed by the court before final judgments were reached." Absolutely incorrect. There was no final judgment -- the case settled -- and to the extent that you might interpret the term "judgement" broadly to include the order Judge Updike signed approving the settlement, the cases were dismissed contemporaneously with the settlement agreement taking effect (because the dismissal and the approval of the settlement were all contained in the same document that he signed).

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    1. Well, if you would have gone to law school, or done further research, you would know that in the legal world, "judgment" simply means the final part of a case. There are many types of judgments: judgment without prejudice, summary judgment, judgment notwithstanding the verdict, consent judgment, etc. So a settlement agreement is a judgment.
      I renew my original comment: this blog is full of 'edits' and not 'corrections.'

      Also, I dare you to go to court and use "delete, delete, delete" as your argument. Something tells me it won't work out in your favor.

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    2. I'm not a lawyer, so I'm totally justified in saying "Delete delete delete" in response to Ms. Feldman's article. (Actually, now that I think about it, deleting the whole article might be in her best interest. Move over Jack Handy, Deep Thoughts are mine!)

      Did you read the part I suggested she remove? "If Sweet Briar students had attempted to bring suit..." Sweet Briar students DID bring suit. She neglected an entire lawsuit, the one that earned a six-month injunction. That's a pretty big lapse.

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  5. The law student would have been a better writer if she had gone to Sweet Briar!

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  6. I went to Sweet Briar and graduated from Campbell with the Class of 1985. I am disappointed at the superficial and incorrect article authored by someone at my law school. Perhaps actually reading the pleadings and the amicus briefs would have been instructive. It is imperative that comments by attorneys seek to enlighten, bit confuse.

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    1. I'm really, really, really surprised at the poor construction of her article. The 3Ls I've known have been articulate, resourceful, and detailed.

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  7. Actually "students" did not bring the suit. An alumae brought suit, and then dropped out. Her suit was based the closing tainting her degree, the article discusses current students not having standing for a suit based on contract. Two completely unrelated causes of actions, therefore the issue of standing is different.

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    1. Originally, one alumna filed suit, which she forfeited when Bowyer made it to the docket.

      She then joined Lawsuit #2 (as noted above: http://www.scribd.com/doc/262462103/Campbell-Motion-for-Order-Preserving-Sweet-Briar-s-Assets#scribd) with STUDENTS Brittany Behrens & Makayla Benjamin, their parents, and other alumnae.

      Documents re: said lawsuit are found here: https://www.scribd.com/elliott_schuchardt.

      You're welcome. :)

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