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Plaintiff’s Original Class Action Complaint Page 1 of 37

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

JANE DOE individually and for all others similarly situated, Plaintiff, vs. TEXAS A&M UNIVERSITY 12th MAN FOUNDATION a/k/a THE 12TH MAN FOUNDATION, Defendant.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. _______________________ ORIGINAL CLASS ACTION COMPLAINT FOR BREACH OF CONTRACT; FOR PROMISSORY ESTOPPEL; AND FOR DECLARATORY JUDGMENT Jury Demanded

INTRODUCTION

Plaintiff brings this action individually and for all those similarly situated who, 1.

like her, endowed scholarships pursuant to the Texas A&M University 12th Man Foundation

Permanently Endowed Scholarship Program. Such persons, called “Permanently Endowed

Donors,” beginning in the 1970s paid large sums of money to the Defendant Texas A&M

University 12th Man Foundation (the “Foundation”) after having been promised various benefits

in return.1 In fact, the Foundation itself distinguishes them as “Permanently Endowed 12th Man”

on its 12th Man Foundation Membership list. See, Exhibit 3.

When solicited, the Permanently Endowed Donors were promised benefits that 2.

1 The Chronicle of Higher Education has ranked the 12th Man Foundation as the ninth highest in the nation for fundraising for athletes. “We have the largest endowment in the Big 12.” See, September 28, 2007, Minutes of Foundation meeting attached hereto as Exhibit 2. (Exhibit 1, is attached to Plaintiff’s In Camera Motion to File Under Seal hereinafter referred to as Exhibit 1).

Case 0:15-cv-60581-WPD Document 1 Entered on FLSD Docket 03/19/2015 Page 1 of 37



included (1) tickets (either free or at face value) to all Texas A&M home football games in the

“best available” seating locations, (2) tickets (either free or at face value) for all away Texas

A&M football games, (3) game day parking in the “best available” locations for home games,

and (4) other football game-related benefits, all at no further cost. These benefits were promised,

until about 1992, to be for the lifetimes of the endowed donor and the joint holders of the

endowment (usually a spouse or children) or, starting in about 1992, for 30 years. The seating

benefits also were to be continually upgradeable, at no cost, to the “best available” seat location

as better seat locations became available through death or attrition.

In 2005, after increasing its fundraising goals, the Foundation concluded that it 3.

had made a bad deal with its Permanently Endowed Donors and it began its plans to violate its

contracts with the Permanently Endowed Donors. In a letter to Miles Marks (then the

Foundation’s Executive Director) and the Executive Committee, dated June 3, 2005, Mr.

William K. Altman outlines, to his horror, the Foundation’s discussion of this plan at the

Annual Meeting of the 12th Man Foundation Advisory Board of Directors:

At the Annual Meeting of the 12th Man Foundation Advisory Board of Directors, I was clearly appalled to hear a representative of the Executive Committee stand up and say that priority seating for the 12th Man endowed donors would no longer be honored….I realize that college athletics has become big business, but I didn’t realize and really can’t believe that the 12th Man Foundation has succumbed to “big business folks ethical lapses”….[that] people who relied on the honor of fellow Aggies should simply ignore the questionable ethical aberration….Yes, I feel badly having sent this letter. However, I would feel much worse if I let a perceived violation of everything sacred about Aggieland transpire without comment. See, Exhibit 4. (emphasis added)

Arbitrarily determining that the Permanently Endowed Donors had, as of 2005, 4.

received “full value” for their payments, the Foundation began eroding the Permanently




Endowed Donors’ benefits.

[T]he sacrifices made by our endowed donors is [sic] exemplary, however, full value has been received for these sacrifices. Integrity demands that we honor these contracts for their duration. It should not demand that we memorialize them.

See 2005 Parking Report, 12th Man Foundation, p. 15 (attached as Exhibit 5).

The Foundation’s long-term strategy was simple: reclaim and resell, at a higher 5.

price, the highest value benefits to a “new generation” of Aggie alumni. In direct violation of

the law and the Aggie Code of Honor, “An Aggie does not lie, cheat or steal or tolerate those

that do2”, the Foundation and those who ran it, deliberately and systematically set out to whittle

away at the agreements it had made with the Permanently Endowed Donors. The Foundation

and those who ran it, deliberately and systematically, little by little, stole back the benefits to

which the Permanently Endowed Donors were entitled. All of this was, by the Foundation’s own

admissions, driven by the desire for “cash.” The Foundation’s actions included:

(1) discontinuing the practice of providing preferred seating to Permanently

Endowed Donors at away games;

(2) requiring Permanently Endowed Donors to pay substantial sums to upgrade

seat locations when better seat locations for home games became available;

(3) allocating game day parking exclusively through its new fundraising-

enhancing system called the Priority Point Program, effectively dispossessing large

2 The Aggie Code of Honor is an effort to unify the aims of all Texas A&M men and women toward a high code of ethics and personal dignity. For most, living under this code will be no problem, as it asks nothing of a person that is beyond reason. It calls only for honesty and integrity, characteristics that Aggies have always exemplified.

The Aggie Code of Honor functions as a symbol to all Aggies, promoting understanding and loyalty to truth and confidence in each other. http://aggiehonor.tamu.edu.


http://aggiehonor.tamu.edu/



numbers of Permanently Endowed Donors of “best available parking” unless they paid

more money to the Foundation;

(4) charging Permanently Endowed Donors an annual parking fee;

(5) allocating away game tickets using the Priority Point Program, effectively

dispossessing some Permanently Endowed Donors of the ability to purchase away game

tickets that were in high demand;

(6) charging Permanently Endowed Donors service fees on tickets;

(7) designating the Arkansas game in Dallas a “neutral site” game in an effort to

avoid its obligation to provide, at no added cost, preferred seating to Permanently

Endowed Donors; and,

(8) most significantly, taking away the Permanently Endowed Donors’ established

seat locations for home football games under the Kyle Field Reseating Plan, forcing

Permanently Endowed Donors either to accept inferior seating locations or to pay large

sums of money, effectively dispossessing Permanently Endowed Donors of their

established seat locations for the duration of their endowments, all in violation of the

promises made years ago to these alumni in order to induce their large payments to the

Foundation. In 2013, the Foundation announced its Kyle Field Redevelopment and

Reseating Plans. The Reseating Plan calls for the “reseating” of the entire stadium,

including Permanently Endowed Donors, despite the Permanently Endowed Donors

having established seat locations (e.g., west side, second deck, north 15 yard line, row 1,

aisle) for the duration of their endowment. The Reseating Plan breaches the critical

promise of lifetime seat locations (and the ability to improve them at no cost).that was

made to Permanently Endowed Donors. Even as the Foundation prepared to effect that




breach, in 2013, its officials, in internal documents, described seat locations, correctly,

with specific reference to Permanently Endowed Donors, as “a lifetime seat location.”

See, Affidavit of Claude M. McQuarrie III, (Exhibit 6).

The Reseating Plan is mandatory. It requires payments of both “Capital 6.

Campaign Gifts” and “Annual Seat Contributions” in the tens of thousands of dollars (totaling

$20,000 per seat for just the next 15 years, in the above example). It also requires all members,

including Permanently Endowed Donors, to compete financially for seat locations in a Seat

Selection process, whereby those with the most contributions to the Foundation have highest

priority in seat selection. In effect, the Foundation wants the Plaintiff and the putative class

members to buy once again, for 15 years only, the same seats they already bought for a lifetime

or 30 years.

The “Seat Selection” phase of the Reseating Plan began March 16, 2015, despite 7.

the fact the west side of the stadium (the area at issue) is not even rebuilt yet, when those having

the highest priority point rankings began choosing their seats in the new, Redeveloped Kyle

Field. In that process, Plaintiff and those similarly situated will lose their established seat

locations and many are having to pay additional amounts, often just to obtain seat locations that

are still inferior to their established seat locations.

The Foundation’s Reseating Plan will destroy vested, lifetime (or in some 8.

instances, limited term) rights under approximately (as of July 2013) 494 endowments

representing approximately 1760 of the 102,512 seats in the Redeveloped Kyle Field.

Plaintiff respectfully asks the Court to act on an expedited basis to certify a class 9.

of the Permanently Endowed Donors holding contractual rights to seating locations in Kyle Field

that were established for life (or 30 years), long before the Reseating Plan was conceived, and




well before creation of the Priority Points Program, and; to help protect its right to specific

performance by requiring the Foundation to provide notice to other Foundation members now

selecting seat locations that the Permanently Endowed Donors’ established seat locations at issue

are subject to this litigation, the outcome of which could affect their actual availability for sale.

This notice, which is easily implemented with a software change for future purchasers, or which

can be provided in writing to those who have already purchased, will continue to protect the

rights of the Permanently Endowed Donors, protect the Foundation from litigation in the future

from current ticket purchasers and provide the new (otherwise unwitting) ticket purchasers with

the notice of the true status of the seat locations they think they are selecting/purchasing.

Preservation of the rights of the Permanently Endowed Donors, and notice to all potential

purchasers, is necessary until such time as this Court can address Class Certification and

Declaratory Judgment. This notice will serve to further protect the rights of the Plaintiff and the

Putative Class Members and will not cause a hardship on the Foundation.

Class certification is appropriate both because Plaintiff’s rights arose uniformly 10.

and are being eroded uniformly, and also because this action meets the other requirements of

Rule 23

Plaintiff is entitled to the equitable remedy of specific performance. Her 11.

established seat location rights are as unique as real estate because they are location rights.

Monetary damages are impossible to measure, as the (substantial) amount of additional

contributions required of Plaintiff and the Class under the Foundation’s Reseating Plan is

uncertain because the various new fees unilaterally imposed on them can change at the whim of

the Foundation based on its assessment of what the market will bear. The Endowment

Agreement is clear as to its “lifetime” and “no extra charge” terms, whether the Agreement was




initially oral or in writing. Specific performance is possible, and Plaintiff has acted promptly to

secure her rights.

PARTIES

Plaintiff is a graduate of Texas A&M University (TAMU) residing in Fort 12.

Lauderdale, Florida. She is a football fan and supporter of TAMU, who has enjoyed attending

home and away Aggie football games since she was a student at TAMU. She sues Defendant as

“Jane Doe” because she realistically fears the reprisals and retribution with which others

similarly situated and who have opposed the Foundation’s efforts have been threatened.

As set forth in her affidavit filed as Exhibit 1 to Plaintiff’s In Camera Motion to 13.

File Under Seal, Plaintiff Doe is a Permanently Endowed Donor of the Foundation under its

Permanently Endowed Scholarship Program. She purchased, inter alia, the right, under her

endowment contract, to use two seats in an established location in the TAMU football stadium

known as Kyle Field. She paid $17,5003 for this right and other bundled rights, and she was

promised by Defendant that this sum would guarantee her the use of the two seats for her lifetime

and that she could upgrade those seat locations at no additional cost to the best available seating

at Kyle Field whenever better seat locations became available.

A cornerstone of TAMU institutional culture is the “Aggie Code of 14.

Honor.” http://student-rules.tamu.edu/aggiecode. As the website says, for many years Aggies

have followed a Code of Honor, which is: “An Aggie does not lie, cheat or steal or tolerate those

who do.” It is an “effort to unify the aims of all Texas A&M men and women toward a high

3 Plaintiff initially paid $30,000 for a four seat endowment. Her father later bought a four seat endowment for her brother. When the father was unable to fully pay the remaining monies owed on the brother’s endowment, the Plaintiff and her brother agreed with the Foundation that they would instead accept two, two seat endowments and pay $35,500 total. No other terms of the endowment agreement were altered. Thus, ultimately, Plaintiff paid $17,750 for her current, two seat endowment.


http://student-rules.tamu.edu/aggiecode



code of ethics and personal dignity. For most, living under this code will be no problem, as it

asks nothing of a person that is beyond reason. It only calls for honesty and integrity,

characteristics that Aggies have always exemplified. … [it] functions as a symbol to all Aggies,

promoting understanding and loyalty to truth and confidence in each other.”

Ms. Doe and her student colleagues embraced the Aggie Code of Honor, and as a 15.

graduate, Ms. Doe expected, and reasonably relied upon, every graduate to honor his/her word,

oral or written. When Aggies tell each other they will do something, they believe it and expect it

to be done, as promised, regardless of whether the promise is reduced to writing at the time.

Keeping one’s word is an essential part of the Aggie Code of Honor, and all Aggies are aware

that they should, and safely may, rely upon each other’s word in their interactions of any kind.

In May 1983, when Ms. Doe was completing her third year at TAMU, her father 16.

approached her with the idea of purchasing a Permanently Endowed Scholarship. Ms. Doe met

with Mr. Harry Green (a TAMU graduate, class of ‘52), Executive Director of the Aggie Club

(which later changed its name to the Texas A&M University 12th Man Foundation). One of Mr.

Green’s responsibilities, apparently, was to talk with individuals about becoming “endowed

donors” under the club’s Permanently Endowed Scholarship Program. Mr. Green explained the

essential terms of the program. He stressed that at that time the Foundation was struggling in its

efforts to attract donors sufficient to meet their needs.

Ms. Doe was shown a color brochure that Mr. Green had given her father. A 17.

replica is attached as Exhibit B to Exhibit 1. It showed an “endowed” seating area in the

stadium, Kyle Field, on the west side, second deck, straddling the 50 yard line. It also contained

a diagram of the parking areas, which showed among others Lot “A Reserved,” the lot

contiguous to the west side of the stadium. The description on the same page as the diagram said




that Lot A Reserved was used for priority parking for the “Endowed” level of contributors.

Mr. Green described the benefits that could be purchased by making the 18.

endowment as including the best tickets to all TAMU football games, the “best available”

seating and “best available” parking at Kyle Field, and admission to a pre-game buffet. He

showed Ms. Doe and her father where her seat locations as a Permanently Endowed Donor

would be for home games, using a diagram of the west side of Kyle Field. Mr. Green said that

Ms. Doe could get seats in the area on the second deck, near the 50 yard line and that was

designated for endowed donors, but that the only seats then available in that area would be high

up in the section. Ms. Doe’s father asked Mr. Green whether Ms. Doe could go outside of the

designated area, away from the 50 yard line, and select seats on the front row of the second deck,

if any were available. Mr. Green replied that he would determine whether that was possible and,

if so, would find out what seats were available.

Ms. Doe‘s father thereafter told her that Mr. Green had told him that he had 19.

determined that a Permanently Endowed Donor could select seats outside of the designated area

and further that some front row seats were available on the second deck. Another visit to Mr.

Green’s office was scheduled.

At that meeting, Mr. Green showed Ms. Doe and her father seat locations on the 20.

diagram that were on the front row of the second deck, on about the north 15 yard line. He said

that they could be Ms. Doe’s for life. Mr. Green said that she was “lucky” because she would

have the seats in that location for the rest of her life. The seats were located in section 213, on

row 1, seats 1-4 (on the aisle). Seat 1 was on about the north 15 yard line.

Mr. Green explained the game day parking benefit in similar terms, saying that 21.

parking would be the best that they have, and would be in the lot behind the stadium’s west side,




which Ms. Doe recognized from the brochure as Lot A (and which Ms. Doe and her father

agreed was the best available).

Ms. Doe asked Mr. Green whether she might ever have the opportunity to move 22.

her seat location. He answered that Ms. Doe could move if better seats became available, which

he said usually happened when someone died or otherwise gave up their seats. He explained

that, as better seat locations became available, Ms. Doe would have the option, at no cost, to

move to such improved locations.

Mr. Green said that all of the benefits would be for Ms. Doe’s lifetime. 23.

Mr. Green explained to Ms. Doe and her father that the benefits could be received 24.

if the endowment sum of $30,000 (for a four seat endowment) were paid in three years, and that

thereafter there would be no further cost, with the tickets for all games, home and away, and the

pre-game buffet, being “complimentary” (meaning no charge beyond the endowment payment).

Mr. Green made no mention of any required incentive program, such as the 25.

Priority Point Program that was later announced in 2006 (about 23 years after Ms. Doe’s

endowed scholarship agreement was made in 1983), and he made no reference to any such

program or similar mechanism whereby Ms. Doe would have to compete financially with others

for the benefits she could purchase beginning in 1983.

Although $30,000 seemed like a very large sum of money at that time, it was very 26.

significant to Ms. Doe that, by this agreement, these benefits (seat and parking locations, and all

costs) could be locked in for life and that Ms. Doe could be assured that she would not have to

pay anything further for them.

In reliance upon what Mr. Green had told Ms. Doe and her father in the above-27.

described meetings, Ms. Doe decided that she wanted to enter into the Permanently Endowed




Scholarship Program agreement. From May 1983 through August 1985, the $30,000 endowment

amount was paid.

In May 1983, as further confirmation of the contract, Ms. Doe received a letter 28.

from Mr. Green asking her to “send us an 8x10 black and white glossy photograph of yourself so

we can order your 12th Man Permanently Endowed Scholarship plaques.” Exhibit C to Exhibit

1. The letter continued, explaining that the picture would be used to make plaques that would be

used in the Aggie Club Offices and in Cain Hall. Id. Ms. Doe’s understanding was that the Club

used these plaques to demonstrate publicly its appreciation to the Permanently Endowed Donors

for their support. Her plaque was hung in the Aggie Club offices. Further, Permanently

Endowed Donors were recognized on the field at the beginning of an Aggie home football game

at Kyle Field in 1983.

Beginning with the 1983 football season, Ms. Doe received the benefits that had 29.

been described, including tickets for home and away games, admission to the buffet, and parking

in Lot A (initially with an assigned, numbered and reserved-by-name place) for home games.

That continued, through the 2014 season, with tickets being “complimentary,” although the Club

(by then renamed the 12th Man Foundation), unilaterally and without Ms. Doe’s consent, had, in

about 2007, changed her parking location to Lot H after the Priority Point Program was instituted

(discussed below). Lot H is not contiguous to Kyle Field, and it is nowhere near as desirable a

parking area as is Lot A. Lot H is not the “best available” parking at Kyle Field, and it has not

been since the Foundation took Lot A parking away from Ms. Doe by refusing to grandfather

Permanently Endowed Donors from its application (beginning in 2007) of the Priority Point

Program to the Foundation’s allocation of parking benefits. In 2014, still unable to qualify under

the Priority Point Program for parking in Lot A, Ms. Doe’s parking was changed to Lot D, a




garage containing handicapped parking spaces, so that her mother would not have to walk all the

way from Lot H, where most of the other Permanently Endowed Donors were forced to park.

After Ms. Doe’s endowment was, by agreement, modified to be a two seat 30.

endowment to accommodate payment for her brother’s endowment, her home game seat

locations thus became established as Section 213, Row 1, seats 1-2, on the west side, second

deck and on or about the north 15 yard line, aisle. Ms. Doe’s name was affixed to the seats for a

period of years. Ms. Doe received and used those tickets through the 2014 season. They have a

clear sightline and proximity to the entire field that makes them superior to most other seats in

the stadium. They are superior to seats on the north, east and south sides also because of the

afternoon sun angle. Being on the north 15 yard line, on the 1st row on the right side

immediately adjacent to the aisle on the second deck of the west side, the seat locations are

unique.

A memorandum from the Foundation announced changes to the endowed 31.

scholarship levels to become effective January 1, 1991. A copy is attached at Exhibit E to

Exhibit 1. The memorandum continues, saying that new donors “will continue to receive

complimentary tickets and preferred parking privileges for their lifetimes ….” Id. This language

is consistent with, though not comprehensive of, the terms of Ms. Doe’s Permanently Endowed

Donor agreement.

In 1991, the attached letter (Exhibit F to Exhibit 1) from Mr. Green reaffirmed 32.

the existence of the Permanently Endowed Donor agreement. As the letter indicates, the

endowment’s duration is measured by Ms. Doe’s lifetime.4

4 Although the letter states that the endowment was $15,000, in actuality the amount paid was $17,750 (half the total of $35,500 that had been paid for her and her brother’s two endowments).




In 2006, the Foundation announced the adoption of its new “Priority Point 33.

Program.” At that time, Ms. Doe was living in Jupiter, Florida. Under that program, which

became effective in about 2007, Foundation members began receiving credit in the form of

“Priority Points” in return for their contributions (one point per $25) to the Foundation, as well

as for such things as years of continuous giving, a one-time credit for being an Endowed Donor,

and others. The Foundation then allocates benefits such as priority for seating at basketball and

baseball games (and other sports), tickets for conference and NCAA tournament events, and

other benefits as determined by the Executive Committee, on the basis of a member’s priority

point total and ranking relative to all other members. The Foundation decided also not to

grandfather Permanently Endowed Donors from the application of the program to the extent such

might conflict with the Permanently Endowed Donors’ purchased benefits, which in Ms. Doe’s

case resulted in loss of her Lot A parking, which she regards as a breach of the Permanently

Endowed Donor agreement.

In 2013, the Foundation announced its “Redevelopment” of Kyle Field and a 34.

companion Kyle Field “Reseating Plan.” She was living in Fort Lauderdale, Florida at that time.

The redevelopment is a $450 million renovation project undertaken by the Foundation

immediately after Texas A&M player Johnny Manziel made history in 2012 by becoming the

first freshman to win the Heisman Trophy. According to the Foundation’s Kyle Field website,

FAQ page (Exhibit G, to Exhibit 1), the renovation is being done “Because Texas A&M

deserves the finest collegiate facilities and the goal is to build the greatest venue in the history of

college football…. A redeveloped Kyle Field will amplify and honor our past and our traditions

while expanding the intimidation factor.” Id. According to the Foundation’s Kyle Field website,

FAQ page, the Reseating is necessary “to generate the funding for the project ….” Id.




The location of the seats for which Ms. Doe was promised in 1983 lifetime tickets 35.

(section 213, seats 1 and 2) corresponds to the redeveloped Kyle Field section that is called the

“Prime West Club.” In July 2013, Ms. Doe received a letter from the Foundation about the

Reseating Plan process. Ms. Doe was living in Fort Lauderdale, Florida at the time. The relevant

portion (an enclosure) is attached as Exhibit H to Exhibit 1. Under the Reseating Plan, per the

letter’s enclosure, if Ms. Doe wished to have any chance to obtain two seats for the seasons

beginning in 2015 and on the west side, second deck, row 1, north 15 yard line (which location is

in the Prime West Club section), she would have to pay the following: a $5,000 per seat capital

campaign “gift,” payable in 5 annual installments beginning in 2013, for a total (for two seats) of

$10,000 (which is effective for only a 15 year term, after which the Foundation claims to have

the right to institute additional charges), plus an annual seat “contribution” of $3,000 per seat

(subject to annual increases), less a $2,000 annual per seat credit, for a net (2 seats, 15 years) of

$30,000, beginning in 2015; for a grand total of $40,000 for the first 15 years. Making these

payments would have amounted to Ms. Doe paying again for a lifetime seat location that she had

already purchased. Ms. Doe could not afford these payments, so she had no alternative but to

designate a less desirable, and less expensive, section, West Field Box (where the seating

location is not comparable to her established seat location of second deck, row 1, aisle, on or

about the north 15 yard line).

The Foundation’s actions to require the Permanently Endowed Donors to pay 36.

additional sums (in the form of “capital campaign gifts,” “annual seat contributions,” and

indeterminable additional payments needed to accrue priority points sufficient to achieve high

point rank needed for seat selection priority) to retain their established seat locations were

unilateral. Importantly, these extra fees can increase at the whim of the Foundation and can be




supplemented with additional fees created at its convenience. Additionally, the current “deal”

lasts for only 15 years with no representations about what will happen then. Thus, the future cost

of buying that to which Plaintiff is already entitled is unknown and incalculable by a trier of fact.

The Foundation’s actions amounted to a breach of trust, and a breach of the Permanently

Endowed Scholarship Program agreements. In response to the Foundation’s breach, Ms. Doe

spoke with, and then wrote, the Foundation’s Executive Director, Skip Wagner. Ms. Doe’s

email to Mr. Wagner, which she sent to him while residing in Florida, is attached as Exhibit I to

Exhibit 1.

The payments discussed in paragraph 35, above, would have assured only that 37.

Ms. Doe would get two seats located somewhere in the Prime West Club section (which the

Foundation says will be on the second deck between the 5-20 yard lines). Had Ms. Doe

designated that section and paid the additional $40,000, Ms. Doe still would be prevented from

securing her established (and already purchased under her endowment agreement) seat location.

The Foundation announced earlier this year that the Kyle Field seat selection 38.

process would begin on March 16, 2015. Ms. Doe resided in Florida at the time of that

announcement. Starting on that day, in Priority Point rank order within each respective section,

and by appointment, each person who designated in each section (and who thereby has slots in

such section) is choosing his/her seat locations. This process is ongoing even though the west

side of the stadium is just beginning to be rebuilt.

In the (now ongoing), seat selection process, the seats in the location 39.

corresponding to Ms. Doe’s established seat locations will be selected and then claimed by

whomever selects them. This is because Ms. Doe’s Priority Point total (and thus rank) is

relatively low (and also because she is unable and unwilling to pay the $40,000 additional for




the next 15 years to retain two seats in the Prime West Club (the section that includes the

location that corresponds to her established seat location)). Accordingly, in Prime West Club

(assuming Ms. Doe were selecting her seat locations there), Ms. Doe would instead end up with

a seat location near the 5 yard line, on a less preferable (high) row, which would not be

comparable to Ms. Doe’s established seat location (second deck, on or about north 15 yard line,

row 1, aisle). Ms. Doe’s appointed date to select her seat location is April 14, 2015. She will

make that selection using the internet from her home in Fort Lauderdale, Florida.

Doing calculations similar to those explained above, for Ms. Doe’s remaining 40.

expected lifetime (assuming 82 year life expectancy), and assuming price increases offset any

discounting to present value, the second (15-year) term would cost another $40,000, net of the

$2,000 per seat credit.

The total cost, therefore, simply to secure a (not necessarily comparable) seat 41.

location in Prime West Club section for home games for the remainder of Ms. Doe’s life would

be approximately $80,000. This figure does not include, however, the amount of the

contributions that would be necessary to compete successfully in the Priority Point Program for a

ranking sufficiently high to be in a position to select seats located on row 1, on or about the north

15 yard line, aisle, in the Prime West Club section. That amount is prospectively indeterminable,

but, given the very high desirability of front row, 15 yard line seat locations in a section that runs

from the 5 to the 20 yard lines, it will be very large (likely a hundred thousand dollars or more).

On or about January 9, 2015, Ms. Doe faxed from Fort Lauderdale, Florida 42.

(where she was residing at the time) to the Foundation a completed version of the Foundation’s

2015 Football Season Ticket Statement, Kyle Field Campaign Gift Statement, Parking Request

and Annual Donation for Endowed Seat Holders. Included with that application was Ms. Doe’s




credit card authorization for payment of the amounts the Foundation’s application indicated had

to be paid in order to secure tickets for home and away games and for parking at home games for

the 2015 season. Ms. Doe had no choice but to pay these amounts if she were to receive those

benefits, even though she was supposed to receive such benefits without further charge,

according to the Permanently Endowed Scholarship Program agreement entered into in 1983.5

Defendant Texas A&M University 12th Man Foundation is a Texas non-profit 43.

corporation, which was originally incorporated on April 5, 1950, as “The Aggie Club.”

Defendant may be served with citation herein by serving its registered agent for service of

process, Randel L. Howard, at Joe Routt Blvd. at Clark Street, Texas A&M University Campus,

College Station, Texas 77843.

II. JURISDICTION

The Court has original jurisdiction over the individual action of Plaintiff because 44.

there is complete diversity of citizenship between Plaintiff and Defendant and because the matter

in controversy on Plaintiff’s individual claim exceeds the sum or value of $75,000. 28 U.S.C.A.

§ 1332(a).

The Court has original jurisdiction over this action also because it is filed as a 45.

class action involving more than 100 putative class members and the matter in controversy

exceeds the sum or value of $5,000,000, exclusive of interest and costs, and is a class action in

which members of the class of plaintiffs are citizens of a State different from Defendant. 28

5 The putative Class Members have had materially the same experience as that described by Ms. Doe. See, Exhibit 7 Affidavit of Sammy D. York, Exhibit 8, Affidavit of Henry H. Holubec, Jr. and Exhibit 9, Affidavit of Gregory R. Hayes.




U.S.C.A. § 1332(d).

Defendant is subject to personal jurisdiction under the Florida long-arm statute § 46.

48.193(7) because it failed to perform acts in Florida required by a contract. § 48.193(7) Fla.

Stat. Ann. (2014). Specifically, the Foundation failed to provide Plaintiff Doe, in Florida, with

the free tickets to Aggie football games for the 2015 season, and it directed communications

about its breach of contract to her while she resided in Florida.

Additionally, Defendant is subject to the jurisdiction of Florida courts generally 47.

because it operates, conducts, engages in and carries on a business or business venture in Florida

through its participation in the Southeastern Conference (SEC). Either as principal, or as the

agent of TAMU, the Foundation acts in concert with other members of the SEC to advertise and

promote in Florida SEC athletic contests held throughout the southeast United States; to sell

tickets in Florida to SEC events held in Florida and elsewhere; and to assist in the conduct of

athletic contests involving TAMU athletes being played in Florida.

Additionally, Defendant is subject to the jurisdiction of Florida courts generally 48.

because it operates, conducts, engages in and carries on a business or business venture in Florida

through its solicitation of donations and contributions for the Foundation in Florida, and it sells,

and/or licenses the sale, of tickets, merchandise and services related to TAMU football and other

TAMU athletic events by conduct directed at the Florida market for such goods and services.

III. VENUE

Venue in this district is proper pursuant to 28 U.S.C.A. § 1391(b)(2) because, as 49.

alleged herein, a substantial part of the events or omissions giving rise to Plaintiff’s claim




occurred here.

IV. CONDITIONS PRECEDENT

All conditions precedent have been performed or have occurred as required by 50.

contract or law.

V. COMMON COURSE OF CONDUCT BY 12TH MAN FOUNDATION

Defendant 12th Man Foundation was organized in 1950 to aid and assist worthy 51.

individuals in obtaining an education at Texas A&M University. Its most recent, restated articles

of incorporation indicate that the Foundation is organized to operate exclusively for charitable

purposes to make expenditures to or for the support or benefit of Texas A&M University,

including providing scholarships to men and women who attend Texas A&M University.

The Foundation solicits donations to further its charitable purposes from alumni 52.

of Texas A&M University and the general public including persons in Florida. Additionally,

Texas A&M University authorizes the Foundation to sell seating nationally and in Florida for

TAMU athletic events including football games held at the University’s football stadium known

as Kyle Field and to exploit nationally, including in Florida, the TAMU name, logo and other

intellectual property on sportswear and other merchandise.

The Foundation uses the money raised by its fundraising activities to support 53.

TAMU athletics by, inter alia, funding recruiting trips to meet athletes and to promote TAMU

athletic programs to persons in Florida and other locales across the nation. The Foundation

funds scholarships for athletes, including Florida athletes, to attend TAMU and to participate in

sporting events nationwide including those involving teams from other colleges in the

Southeastern Conference, which includes the University of Florida.




According to the sworn deposition testimony of Frank Shannon, Executive 54.

Director of Defendant 12th Man Foundation,6 who worked there in various capacities between

1991 and 1997, the purpose and main activity of the Foundation is fundraising from donors.7 In

the 1980s, the Foundation solicited alumni in person and made oral endowment contracts with

them that were memorialized in letters to Permanently Endowed Donors in October 1991.

Starting in 1994, the Foundation offered to potential donors the opportunity to purchase

endowments that included the right to purchase at “face value” (i.e., without a premium charge)

two endowed seating area football season tickets for home and away games, along with

privileges in the endowed parking area for thirty years, for $20,000.8 Four seat endowments

were available for a price of $40,000.9

The agreement terms, including the amount of the required payments and the 55.

payment terms, were all authorized by the Foundation’s Executive Committee and were the acts

of the Foundation.10 The written agreements made no mention that additional payments might be

later required in order to continue enjoying the offered benefits.11 In these written agreements,

the “endowed seating area” and “endowed parking area” were not indicated graphically or

otherwise defined. Neither was it stated that the Foundation’s Executive Committee had the

right at any time to define or redefine these terms unilaterally.12

Instead, in 1994 (unlike in some prior years, when brochures specifically depicted 56.

6 Mr. Shannon’s deposition was taken in Tullos v. Texas A&M University 12th Man Foundation, No. 2011-70365 (152nd Dist. Ct., Harris Cty, Tex. May 28, 2014). Excerpts of the transcript of Mr. Shannon’s deposition are attached hereto as Exhibit 10. 7 Shannon Dep. 314:10-13. 8 Id. 225:17-23 9 Id. 58:15-19. 10 Id. 64:4-12. 11 Id. 73:4-74:2. 12 Id. 64:13-21.




the endowed seating area and the endowed parking area, as in the case of Jane Doe), the only

source of information about the meaning of “endowed seating area” and “endowed parking area”

was the Foundation’s Development Staff, who sold the endowment plans.13 See, Exhibit B to

Exhibit 1. Also see, Exhibit 7, Affidavit of Sammy D. York. Prospective endowed donors

were informed by the Foundation’s Development Staff both about the available seat locations

and the parking location from which the donor could pick at the time of his or her endowment.14

This Development Staff uniformly and consistently represented to potential 57.

donors that their endowment entitled them to (1) the seat location of their choice from those then

available, (2) and that the seat location they selected and “best available” parking were theirs for

the terms of their individual Permanently Endowed Scholarship Agreement.15 See, Id., Exhibit

1, and Exhibits 8 and 9. Affidavits of Henry H. Holubec, Jr. and Gregory R. Hayes. (Indeed,

for a period of years, the Foundation placed the endowed donors’ names on their seats at Kyle

Field, and for those parking in Lot A, on their assigned, reserved parking places.)16

The Foundation’s Development Staff also consistently represented to potential 58.

donors that they could upgrade their seat location without additional charge as other, better seat

locations became available and based on the seniority of the endowed donor.17 (In contrast, non-

endowed donors had to make additional payments to improve their seating to a location outside

the area specified for their level of contribution.18)

As a result of the Foundation’s solicitation of endowment payments, Plaintiff and 59.

13 Id. 70:3-19. 14 Id.70:12-19. 15 Id. 50:15-21. 16 Id. 79:10-19. 17 Id. 220:1-18. 18 Id. 200:25-201:1-7




members of the Proposed Class entered into oral19 and written endowment contracts.20 The

contracts are uniform because, according to former Executive Director (from 1977 to 1992),

Harry Green, they were produced from a template.21

Since this time, at least one new campus building has been built on more than one 60.

of the “best available” parking lots originally containing parking spaces for the Permanently

Endowed Donors. Now, Kyle Field is in the process of being redeveloped. The attendance both

at Texas A&M University and at Texas A&M football games has increased.

As the premium seat locations and best available parking spaces thus became 61.

more valuable, the Foundation began to erode the benefits bargained for by the Permanently

Endowed Donors so that it could attract new and additional payments. Ultimately, the

Foundation created a rewards and incentive structure “for the next generation of the 12th Man

donors,” but it did so at the expense of Permanently Endowed Donors. See Aggie Access Priority

Point Program described on the Foundation’s website page, printed at Exhibit 12.

There are several writings which re-affirm the terms of the Permanently Endowed 62.

Scholarship Program agreement. For instance, in December 1991, the Foundation elected to

“modify” the football seating and parking policy for 1992 for certain of its members. A letter

was sent to all members (including donors AND to all Permanently Endowed Donors). See,

Exhibit 13. The letter again confirmed the rights of the Permanently Endowed Donors to their

“established” seating locations, and it reassured the Permanently Endowed Donors that their

established seating locations would “not be affected by this policy.” Id.

19 Oral agreements were subsequently ratified in writing in various documents. 20 Green Dep. 28:14-23, 29: 3-18 Excerpts of the transcript of Mr. Green’s deposition are attached hereto as Exhibit 11. 21 Id. 110:23.




Over time, the Foundation realized that it could make more money from the 63.

Permanently Endowed Donors’ benefits if it could just get them back and resell them. A special

committee called the Endowment Subcommittee was formed to study the matter, and the

Foundation began chipping away at the “problem” presented by these permanent endowment

agreements. On May 26, 2004 (as reported in its June 22, 2004 Memorandum) the Endowment

Subcommittee issued its recommendations to the Foundation’s Executive Committee. See,

Exhibit 14, June 22, 2004 Memorandum to Executive Committee. Previously, the Executive

Committee had decided to initiate a buy-back program which was to commence in the fall of

2004. The program sought to buy-back Permanently Endowed Donors’ endowments so that they

could be “resold to new endowed donors.” Id. The Endowment Subcommittee issued its opinion

that the “endowment repurchase by the 12th Man Foundation belongs to the 12th Man Foundation

and can be resold to new endowed owners.” Id.

Ultimately, the Foundation succeeded in getting eighteen (18) Permanently 64.

Endowed Donors to agree to the buy-back. See, Exhibit 15, September 6, 2013 Minutes of

Foundation meeting.

Also in its May 26, 2004 meeting, the Endowment Subcommittee: 65.

“…agreed to recommend to the Executive Committee that no upgrade in seats for existing endowed donors will be allowed with any vacancies that occur in endowed donors (sic) seats. However, the committee also recommends that if an endowed donor has a written agreement which states otherwise the written agreement will be honored by the 12th Man Foundation.”

Exhibit 14. This recommendation, which was adopted by the Foundation, was a deliberate

decision and statement of intent to breach in future years the Foundation’s Permanently

Endowed Scholarship Program agreements whenever better seat locations became available.




In March 2005, the Foundation again confirmed the terms of its agreements with 66.

the Permanently Endowed Donors. Mr. W. Miles Marks, Executive Director and CEO of the

Foundation wrote to Neal (the last name is redacted) and asked him to sit on a Task Force that

would create a priority system of “allocating parking, season tickets, road game tickets, suites,

club seats, and bowl game tickets,” which the Foundation thought had not heretofore been

clearly defined. See, Exhibit 16. However, Mr. Marks made it clear that the Permanently

Endowed Donors’ seat locations are “grand-fathered” and will remain “intact and will not be

affected by this system.” He also confirmed the Permanently Endowed Donors’ rights to “prime

parking spaces around Kyle Field...” Id., at 2.

Driven by the desire to increase cash revenue, the Executive Committee created 67.

the Priority Point System. See, Exhibit 17. In 2006, the Foundation announced the adoption of

its new “Priority Point Program.” Under that program, which became effective in about 2007,

Foundation members receive credit in the form of “Priority Points” in return for their

contributions (one point per $25) to the Foundation, as well as for such things as years of

continuous giving, a one-time credit for being a Permanently Endowed Donor, and others. The

Foundation then would allocate benefits such as priority for away football games, home football

parking, and seating at basketball and baseball games (and other sports), tickets for conference

and NCAA tournament events, and other benefits as determined by the Executive Committee, on

the basis of a donor’s Priority Point total and ranking relative to all other members.

At this time, and contrary to the express recommendation of the task force that 68.

had been formed to study the issue to “grandfather” the Permanently Endowed Donors to the

extent of their benefits, the Foundation decided instead to apply the Priority Point Program to

parking benefit allocation for all members. It took this action despite its actual knowledge that




doing so would conflict with the Permanently Endowed Donors’ parking benefits, which in the

case of Plaintiff Doe resulted in her loss of Lot A parking, a continuing breach of her endowment

agreement with the Foundation.

The Foundation’s own documents show the Foundation acknowledged that 69.

“verbal promises” had been made to the Permanently Endowed Donors regarding the right to

priority parking. See, Exhibit 18, February 24, 2006 Minutes of Full Development Committee

meeting, p. 2. Furthermore, this (and other) Foundation documents confirm the existence of the

Permanently Endowed Donors’ parking privileges. Id.; Exhibit 5, 2005 Parking Report.

Clearly, the Foundation made the fundamental decision that it would no longer 70.

honor its commitment to provide “best available” parking benefits to Permanently Endowed

Donors because the “best available” aspect of the agreement regarding parking benefits had not

been reduced to writing. Instead, effective in June of that year, the Priority Point Program would

be adopted and, in the next year, would apply, without grandfathering Permanently Endowed

Donors, in violation of their contractual rights.

On April 7, 2006, the Executive Committee met. Facing the gloomy report of 71.

lagging pledges compared to the prior year, the Executive Committee prepared for the

implementation of the Priority Point Program. See, Exhibit 19, p. 3. To implement and protect

their February 24, 2006 decision to not honor its commitments regarding Permanently Endowed

Donor “best available” parking, the Foundation established a priority point appeal process. Id., at

4. In doing so, however, it determined that appeals from denials of orally promised parking

benefits would be outside the jurisdiction of the appeals panel (and thus rejected regardless of the

facts). It further determined that the Executive Committee was to give “strong direction to the

panel and develop a philosophical position of unappealable items, such as oral promises that lack




other supporting documentation. Id. The Executive Committee would ratify the appeal panel’s

recommendations.” Id.

In August, 2008, the Foundation’s Budget Committee recommended “[A]rkansas 72.

game tickets not be included in the complimentary group for endowments by designating the

annual games as a neutral site, similar to bowl games, not a home or road game.” See, Exhibit

20, August 26, 2008 Foundation minutes. This led to further erosion of the Permanently

Endowed Donors’ benefits, in breach of the Foundation’s contracts with them.

The Foundation, having determined that Kyle Field renovation would be “an 73.

opportunity to earn more revenue,” created a Priority Seating Task Force which met in 2009 to

discuss Foundation documents that “could create problems for reseating.” See, Exhibit 21, April

3, 2009 Minutes, p. 2. The Foundation discussed its December 1991 letter and acknowledged

that “[T]his could be construed that donors could keep the same seats on the lower west side of

Kyle Field.” Id. That is precisely what the Permanently Endowed Donors, who indisputably

already had established seat locations for the duration of their endowments, are entitled to.

On August 25, 2011, Mr. Frank Shannon, III, the Executive Director of the 74.

Foundation in 1994, provided a signed written statement discussing the terms of the Permanently

Endowed Scholarship Program agreements. See, Exhibit 22. Mr. Shannon’s statement

confirmed the following regarding the endowments:

(1) He was involved in soliciting the Permanently Endowed Scholarship Program; (2) Depending on the payment, the Permanently Endowed Donors got 2 or 4 seats; and (3) Parking privileges offered were in the best available parking area closest to the stadium; and (4) The benefits would last for 30 years (post 1992).

In 2012, the Foundation confirmed the “[E]ndowments are either lifetime, 75.




perpetual or expire between 2014 and 2032.” See, Exhibit 23, December 17, 2012 Minutes.

In 2013, the Foundation announced its “Redevelopment” of Kyle Field and a 76.

companion Kyle Field “Reseating Process.” The redevelopment is a $450 million renovation

project undertaken by the Foundation immediately after Texas A&M freshman player Johnny

Manziel made history in 2012 by becoming the first freshman to win the Heisman Trophy.

According to the Foundation’s Kyle Field website, FAQ page, see Exhibit 24, the renovation is

being done “[B]ecause Texas A&M deserves the finest collegiate facilities and the goal is to

build the greatest venue in the history of college football…. A redeveloped Kyle Field will

amplify and honor our past and our traditions while expanding the intimidation factor.” Id.

(emphasis added). According to the Foundation’s Kyle Field website, FAQ page, the Reseating

is necessary “to generate the funding for the project ….” Id. (emphasis added).

A May 17, 2013, letter sent to all Permanently Endowed Donors acknowledges 77.

their “charitable endowment contribution” and then proceeds to tell them how their seating

locations will be taken away unless they make significant additional contributions. See, Exhibit

25, May 17, 2013 Letter. Minutes of a committee that had previously met with groups of

Permanently Endowed Donors, however, describe the understandable overall disappointment,

dissatisfaction and upset by the Permanently Endowed Donors to the planned Reseating. See,

Exhibit 26, April 3, 2013 Minutes.

This lawsuit is brought because, despite the Foundation’s rationalizations of 78.

convenience, the Foundation is breaching its contracts with Plaintiff and Class members.

Endowments made before about 1992 do not expire during the lifetimes of the Permanently

Endowed Donors. Those made afterward expire only after 30 years. Under the Reseating Plan,

Permanently Endowed Donors’ established seat locations (that had been promised them for the




duration of their endowments) will be forever lost unless and until they make additional and

continuing annual payments to Defendant, payments that are not called for by their contracts.

Immediate relief is necessary because on March 16, 2015, the Foundation began 79.

its Seating Selection process under its Reseating Plan, whereby the Foundation will reassign

Plaintiff’s and the Class’ established seat locations (and their parking) and will further eradicate

the contractual rights of Plaintiff and the Class Members.

Unless the Court acts promptly to certify one or more classes of established 80.

Permanently Endowed Donors and to protect Plaintiff and class members from the Foundation’s

lack of disclosure in its Seat Selection process and from the Foundation’s threats and malicious

conduct, Plaintiff and the proposed Class will be deprived of the equitable remedy of specific

performance of the Endowment Agreements for which they bargained and paid dearly many

years ago.

VI. CLASS ACTION ALLEGATIONS

This action is brought as a class action under Rule 23 of the Federal Rules of Civil 81.

Procedure. The 12th Man Foundation’s conduct has been systematic and continuous and has

affected large numbers of Permanently Endowed Donors over time. Plaintiff brings this class

action to secure redress for the 12th Man Foundation’s uniform and common practice of eroding

established stadium seating, parking and other endowment contract benefits through application

of its Priority Point Program, its Reseating Plan and through its other actions.

The 12th Man Foundation during the Class Period uniformly has denied 82.

Permanently Endowed Donors their established seat locations, their best available parking, seat

location upgrades free of additional payments based on their seniority, and other benefits. The

12th Man Foundation’s conduct has been uniform throughout the Class Period, and it has




impacted all members of the proposed Class in a common and similar manner to how it affects

Plaintiff.

Plaintiff and all Members of the proposed Class have fully complied with all 83.

endowment contract provisions necessary for them to receive their endowment seat locations,

best available parking and other benefits. For literally decades, until about when it adopted its

Priority Point Program, the 12th Man Foundation had applied established seat locations, best

available parking and other endowment benefits to each member of the proposed Class and

found that each Class member had fulfilled the requirements for such benefits to apply. No

further performance was required by any member of the proposed Class to secure all available

benefits under his, her or its endowment agreement.

Plaintiff seeks certification of one of the following Classes: 84.

INJUNCTION CLASS UNDER 23(b)(2): For the Court to determine the rights of all persons with Permanently Endowed Scholarship Program contracts to established seat locations, best available parking or other endowment benefits, including upgrade rights without making additional, continuing payments to Defendant and to grant them injunctive relief in the form of specific performance with incidental damages to balance the equities.

DAMAGES CLASS UNDER 23(b)(3): In the alternative, if the Class is denied specific performance, all persons with Permanently Endowed Scholarship Program contracts whose established seat locations, best available parking or other endowment benefits, including upgrade rights, were altered or terminated by the Foundation and to award them damages including restitution of all payments made in excess of the endowment payments and ticket prices (for those whose contracts required them to purchase their tickets at face value).

Excluded from the Class are a) any individual who has filed a state court action to address his or her individual claims unless and until he or she provides written notice of a desire to be included here and (b) the assigned judge, the judge’s staff and family.

Membership in the Class is so numerous as to make it impractical to bring all 85.




Class members before the Court. Plaintiff believes there are hundreds of persons in the Class

and, on information and belief, that the Class will include approximately 494 Permanent

Endowed Donor agreements impacting approximately 1760 seats in Kyle Field.

Plaintiff is typical of members of the Class. She entered into an endowment 86.

contract with Defendant before it created and applied its Priority Point Program, and before it

conceived of and implemented the Kyle Field Reseating Plan, made her payments, and sought

and enjoyed benefits under the Permanently Endowed Scholarship Program contract until her

benefits were unilaterally eroded without her consent under Defendant’s Priority Point Program

and Reseating Plan and by Defendant’s other actions common to members of the Class.

There are numerous and substantial question of law and fact common to all of the 87.

members of the proposed Class which predominate over any individual issues. Included within

the common questions of law and fact are:

a. Whether the 12th Man Foundation was and is contractually obligated to provide

endowment benefits to Plaintiff and members of the proposed Class.

b. Whether Plaintiff and members of the proposed Class had or have any further

obligations including additional payments necessary to maintain their established seat

locations, best available parking or other endowment benefits.

c. Whether Plaintiff and members of the proposed Class had or have any further

obligations including additional payments necessary to upgrade their established seat

locations, best available parking or other endowment benefits.

d. Whether the 12th Man Foundation exercised good faith and fair dealing in

unilaterally applying its Priority Point Program, and otherwise, to erode the established

endowment benefits of Plaintiff and of the proposed Class. e. Whether the term of the Permanently Endowed Scholarship Program agreement




of Plaintiff’s and of the proposed Class is for the life of the donor or his/her spouse or

children, or for a specified term of thirty years;

f. Whether the benefits of the Permanently Endowed Scholarship Program contracts

were promised by the 12th Man Foundation to be for the duration of the endowment;

g. Whether the established seat locations of Permanently Endowed Donors were

represented to be for the duration of the endowment, i.e., lifetime or a term of thirty

years;

h. Whether game day parking in Lot H is “best available” parking as that term was

used in the representations made when endowments were sold;

i. Whether the 12th Man Foundation breached its Permanently Endowed Scholarship

Program contracts with Plaintiff and the proposed Class by applying the Priority Point

Program, or other actions, to erode Permanently Endowed Donor benefits.

j. Whether damages are an adequate remedy for Defendant’s breaches of contract.

Plaintiff has no interest adverse to the interests of other members of the proposed 88.

Class and will fairly and adequately protect the interests of the Class.

Plaintiff has retained the undersigned counsel, who are experienced and 89.

competent in the prosecution of class actions and complex litigation. These counsel have the

resources and experience necessary to prosecute this case.

A class action is superior to other available methods for the fair and efficient 90.

adjudication of this controversy. Absent a class action, due to the unilateral application of the

Seat Selection process and the Priority Point Program without the consent of Plaintiff or the

proposed Class, the Class members have suffered and will continue to suffer irreparable harm




that has no adequate remedy at law or, alternatively damages, and the 12th Man Foundation’s

conduct will proceed without effective remedy.

Individual members of the proposed Class have little interest or ability to 91.

prosecute an individual action due to the complexities of the issues involved, the costs of

assembling proof, the time required, and the immeasurable, although significant, damages

suffered by each member of the proposed Class.

This action will allow the orderly, fair, and expeditious administration of Class 92.

claims. Economics of time, effort, and expense will be fostered, and uniformity of decisions will

be ensured. Collective adjudication will allow sufficient proof and expertise to be assembled to

value fairly and to prove the losses at issue or alternatively to show how losses are unique and

unmeasurable.

This action will present no difficulties which would impede its management by 93.

this Court as a class action, and a class action is the best available means by which Plaintiff and

the Members of the proposed Class can seek redress for the harms caused to them by the 12th

Man Foundation.

VII. CLASSWIDE CAUSES OF ACTION

Breach of Contract Plaintiff and each member of the proposed Class entered into an oral contract 94.

(subsequently memorialized) or a written form endowment contract with Defendant prior to

Defendant’s creation and application of the Priority Point Program and before Defendant

conceived of and began executing its Reseating Plan. Plaintiff’s agreement was oral, but was

memorialized in the fall of 1991 by the Foundation’s letter to all Permanently Endowed Donors

acknowledging the existence of the contract. A copy of the letter directed to Permanently




Endowed Donor Jane Doe is attached as Exhibit F, to Exhibit 1. Sometime around 1992, the

Foundation began using written form agreements when creating new endowments. A copy of

the written agreement between Mr. Tullos and the Foundation is attached hereto as Exhibit 27.

The Foundation’s contract provides that Plaintiff and members of the proposed 95.

Class would make large payments ($20,000, $30,000 or $40,000) to Defendant and that

Defendant would provide Plaintiff and Class benefits that included (1) tickets (either free or at

face value) to all Texas A&M home football games in the “best available” seating locations, (2)

tickets (either free or at face value) for all away Texas A&M football games, (3) game day

parking in the “best available” locations for home games, and (4) other football game-related

benefits, all at no further cost. These benefits were promised, until about 1992, to be for the

lifetimes of the endowed donor and the joint holders of the endowment (usually a spouse or

children) or, starting in about 1992, for 30 years. The seating benefits also were to be

continually upgradeable, at no cost, to the “best available” seat location as better seat locations

became available through death or attrition. No provision in the contract allows Defendant to

unilaterally change these rights of Plaintiff and of other established Permanently Endowed

Donors. Plaintiff and Class members have performed their obligations under the contract.

Defendant, however, has not performed some of its contractual obligations and now threatens

further non-performance.

Specifically, Defendant has not allowed Plaintiff and Class members to keep or 96.

upgrade their established seat locations, maintain their best available parking and other benefits

without making additional and continuing payments, and Defendant continues to do so. The

seating and parking rights of the Permanently Endowed donors are location-specific and unique,

like real estate and other unique assets. Defendant’s non-performance is a breach of the parties’




contract.

As a result, Plaintiff is entitled to relief in the form of specific performance and to 97.

incidental damages, as well as payment of her litigation expenses including attorney fees. §

57.041, Fla. Stat. Ann.; Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8).

Alternatively, Defendant’s breach of contract entitles Plaintiff and the Class to an 98.

award of damages including restitution of all amounts collected from them by Defendant in

excess of endowment payments, as well as payment of her litigation expenses including attorney

fees. § 57.041, Fla. Stat. Ann.; Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8).

Promissory Estoppel

Plaintiff realleges the allegations contained in previous paragraphs as if fully set 99.

forth herein.

Plaintiff detrimentally relied on Defendant’s promises that her endowment rights 100.

would remain the same for her lifetime at no extra cost and that she could upgrade her

endowment rights at no extra cost during her lifetime. Specifically, Plaintiff and the Class relied

on Defendant’s promises by making substantial payments to Defendant in various amounts of

$15,000, $20,000, $30,000 and $40,000 or more.

Defendant reasonably should have expected its promises to Plaintiff to induce her 101.

to rely on them.

Injustice can be avoided only by enforcement of the promises against Defendant. 102.

Declaratory Judgment




Plaintiff realleges the allegations contained in previous paragraphs as if fully set 103.

forth herein.

Notwithstanding the lifetime or 30 year term of Plaintiff’s and Class members’ 104.

rights under their Permanently Endowed Scholarship Program agreements and that the

agreements have no provision under which Defendant may redefine those rights unilaterally,

Defendant applied its Reseating Plan and Priority Point Program in a manner so as to redistribute

the established seat locations, best available parking and game-related benefits of the

Permanently Endowed Donors, requiring substantial additional payments from Plaintiff and the

Class to acquire re-assigned seating of similar quality. Defendant also acted to diminish certain

other benefits of endowed donors. Defendant refuses to provide Plaintiff and Class Members

their established benefits unless and until these Permanently Endowed Donors make additional

payments and continue to do so annually.

Plaintiff and Class members contend that, pursuant to their Permanently Endowed 105.

Scholarship Program contracts, they are legally entitled to keep and to upgrade their seat

locations, and to retain their priority parking and other benefits they had established prior to the

advent and application of Defendant’s Priority Points Program, and prior to other of Defendant’s

actions, such as the Reseating Plan and ongoing seat selection process, through the end of the

term of their contracts.

Plaintiff and Class members contend that Defendant’s application of its Priority 106.

Points Program to the benefits that they purchased, and Defendants other actions, such as the

Reseating Plan and ongoing seat selection process, deprives them of their Permanently Endowed

Scholarship Program benefits that they bargained for.

Because Defendant continues to mischaracterize the rights of the Permanently 107.




Endowed Donors under their endowment contracts and continues to claim that it has the right to

alter the contracts unilaterally, an actual dispute exists between Plaintiff and the 12th Man

Foundation, which parties have genuine and opposing interests, which interests are direct and

substantial, and of which a judicial determination will be final and conclusive.

Plaintiff, on behalf of herself and proposed Class members, seeks a judgment 108.

declaring that (1) Plaintiff is entitled to Defendant’s specific performance of its contractual

obligations through the end of her lifetime (or for thirty years, in the case of those Class

members having thirty year agreements) with the seat locations, best available parking, and other

benefits that she had established and enjoyed prior to Defendant’s application of the Priority

Points Program and prior to Defendant’s other actions, such as the Reseating Plan and ongoing

seat selection process, that diminished their benefits; (2) Defendant has failed to perform its

obligations to Plaintiff and the Class of Endowed Donors; (3) Plaintiff and Class members are

entitled to the return of any and all additional payments that Plaintiff and Class members paid to

keep, replace or upgrade their established endowment rights; and (4) Plaintiff is the prevailing

party entitled to payment of her litigation expenses including attorney fees. § 57.041, Fla. Stat.

Ann.; Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8).

VIII. DEMAND FOR JURY

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff demands 109.

a jury trial in the above-entitled action.

IX. CLASSWIDE PRAYER FOR RELIEF

Plaintiff asks for judgment against Defendant, as follows: 110.

a. Judgment for specific performance under breach of contract or promissory estoppel and incidental damages or, alternatively, for damages, including restitution of all amounts paid in excess of the contract price.




b. Declaratory relief.

c. That the Court certify one or more classes and appoint Plaintiff as class representative and her counsel as class counsel.

d. That the Court award Plaintiff an incentive award for bringing this action.

e. Attorney fees and expenses.

f. All other relief the Court deems appropriate.

Dated: March 19, 2015 PODHURST ORSECK, P.A

s/ Peter Prieto___________________

Peter Prieto Florida Bar No.: 501492 John Gravante III Florida Bar No.: 617113 25 West Flagler Street, Suite 800 Miami, Florida 33130 (305) 358-2800 [email protected] [email protected] THE HAYES LAW FIRM, PC

DEBRA BREWER HAYES CHARLES CLINTON HUNTER 700 Rockmead, Suite 210 Houston, TX 77339-2111 Telephone: (281)-815-4963 Facsimile: (832) 575-4759 [email protected] [email protected]


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