Case: 1:16-cv Document #: 25 Filed: 01/31/17 Page 1 of 18 PageID #:317

Case: 1:16-cv-10590 Document #: 25 Filed: 01/31/17 Page 1 of 18 PageID #:317 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION JOHN VASSAR, on behalf of himself ) and all others similarly situated, ) ) Case No. 1:16-CV-10590 Plaintiff, ) ) Judge Andrea Wood v. ) ) Magistrate Judge Michael T. Mason NATIONAL COLLEGIATE ATHLETIC ) ASSOCIATION and NORTHWESTERN ) UNIVERSITY, ) ) Defendants. ) DEFENDANT NORTHWESTERN UNIVERSITY S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS ALL OF PLAINTIFF S CLAIMS AGAINST IT

Case: 1:16-cv-10590 Document #: 25 Filed: 01/31/17 Page 2 of 18 PageID #:318 Defendant Northwestern University ( Northwestern ) respectfully submits this Memorandum in Support of its motion to dismiss all of Plaintiff John Vassar s ( Plaintiff s ) claims against it in Plaintiff s Class Action Complaint ( Complaint ). 1 INTRODUCTION Plaintiff, a current student at Northwestern, initially enrolled at Northwestern to play basketball as a student-athlete with an athletic scholarship that covered the full cost of his tuition, fees, room, board and books. Shortly after the end of his freshman basketball season, Plaintiff publicly announced that he would be transferring to another school after his freshman year. Plaintiff then began exploring other schools, and no longer was participating as a member of the Northwestern men s basketball team. Yet, as the beginning of his sophomore year approached, Plaintiff had not transferred. Nonetheless, Northwestern agreed to continue providing Plaintiff with a non-participant athletic scholarship that continued to cover the full cost of his tuition, fees, room, board and books. In exchange, Plaintiff agreed to (among other things) work for Northwestern s Athletics Department. After Plaintiff later complained about the work he was assigned and Northwestern informed him it was cancelling his athletic scholarship, Northwestern arrived at a decision that allowed Plaintiff to complete his undergraduate degree with a general scholarship covering the same costs, but without his having to work for the Athletics Department. Notwithstanding that Plaintiff continues to receive a full scholarship, Plaintiff claims in his Complaint that Northwestern breached an obligation to provide him with a four-year athletic 1 As it must under the applicable Federal Rules of Civil Procedure, Northwestern assumes, solely for purposes of its motion to dismiss Plaintiff s claims, that the allegations in Plaintiff s Complaint are true. Northwestern reserves all rights and defenses with respect to Plaintiff s allegations in the event its motion to dismiss (or any portion thereof) is not granted.

Case: 1:16-cv-10590 Document #: 25 Filed: 01/31/17 Page 3 of 18 PageID #:319 scholarship and engaged in fraud when it originally offered him a scholarship as a high-school recruit. Notably, Plaintiff never alleges in his Complaint (and cannot allege) that Northwestern ever failed to provide him a full scholarship covering his tuition, fees, room, board, and books. Instead, because Plaintiff still is receiving a full scholarship, he seeks in this action to recover damages for ancillary benefits, such as access to training and athletic facilities, early class registration, tutoring and summer school funding none of which Plaintiff has sufficiently pled that Northwestern had any contractual obligation to provide. For the reasons discussed below, all of Plaintiff s claims against Northwestern in Counts II, III and IV should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. 2 More specifically, Plaintiff s breach of contract claim in Count II fails because (1) the contract regarding his athletic scholarship that Plaintiff alleges was breached was not even in effect at the time of alleged breach, (2) the damages Plaintiff alleges he suffered were not part of any contract between Northwestern and Plaintiff, and (3) even if Plaintiff could allege a contract for the four years of benefits he seeks, it would be legally barred under Illinois law by the statute of frauds because it is not in writing. Plaintiff s promissory estoppel claim in Count III fails because it is nothing more than a faulty attempt to recast his breach of contract claim and also is barred by the statute of frauds. Finally, Plaintiff s fraud claim in Count IV also should be dismissed because it too is a transparent attempt to repackage his breach of contract claim, and, in any event, Plaintiff has failed to plead specific facts, as he is required under Fed. R. Civ. P. 9(b), to support the required elements of a fraud claim under Illinois law. 2 Count I of Plaintiff s Complaint, which purports to allege a violation of the Sherman Act, is pled solely against Defendant National Collegiate Athletic Association (the NCAA ). See Cmplt. 133-42 (focusing only on the NCAA s transfer rule and the NCAA as a defendant). In the event, however, that the Court construes Count I to be brought against Northwestern, Northwestern hereby incorporates and adopts in full the arguments set forth in the NCAA s Motion to Dismiss and its accompanying memoranda and any oral argument in support thereof. 2

Case: 1:16-cv-10590 Document #: 25 Filed: 01/31/17 Page 4 of 18 PageID #:320 RELEVANT FACTUAL ALLEGATIONS I. Background regarding Northwestern and Plaintiff s Big Ten Tender of Financial Aid for a four-year athletic scholarship. Northwestern is a nationally acclaimed university that provides an outstanding academic program, while simultaneously offering its student-athletes (including men s basketball players) the opportunity to compete at the highest levels of collegiate athletics as a Division I member of the NCAA. See Cmplt. 10, 16. In April 2014, Plaintiff accepted Northwestern s offer to enroll at Northwestern as a freshman student-athlete with its men s basketball program. Cmplt. 10. Plaintiff and his mother signed a written Big Ten Tender of Financial Aid (the Big Ten Tender ) 3 along with a National Letter of Intent. See id. 23-26. The Big Ten Tender expressly stated the financial aid package that Plaintiff was eligible to receive for the 2014-2015 through 2017-2018 academic years, and the conditions of receiving the financial aid. Exh. A; Cmplt. 144. The Big Ten Tender provided a Full Grant of financial aid, meaning that Northwestern would pay for Plaintiff s tuition, fees, room, board and books for four years. Exh. A at 1, 3. Plaintiff s Big Ten Tender did not contain (or even mention) access to training facilities or staff, early class registration, summer school funding, medical services or other benefits that Northwestern may make available to its student-athletes. See Exh. A; Cmplt. 144. II. After earning little playing time his freshman season, Plaintiff announced his decision to transfer to another school. Plaintiff did not earn much playing time in his freshman season, scoring only 15 points in 18 games. Cmplt. 29. After the end of the 2014-2015 season, Plaintiff and the Northwestern men s basketball coaching staff began discussing whether Plaintiff should consider transferring 3 The Big Ten Tender of Financial Aid is attached hereto as Exhibit A. For reasons discussed below, the Court may consider Exhibit A as part of this motion without converting it to a motion for summary judgment. 3

Case: 1:16-cv-10590 Document #: 25 Filed: 01/31/17 Page 5 of 18 PageID #:321 to another school if he wanted to have more playing time. Id. 29, 31, 33. On March 30, 2015, Plaintiff announced via his Twitter account that he would be transferring to another school: I ve loved my time at Northwestern University but have arrived at the very difficult point of transferring.... I know this transition is best for me as I look forward to attending a school where I can play a more integral role on the court while I continue to excel in my studies.... Id. 54 n.10. In order to allow discussions about Plaintiff s transfer to another school to play basketball, Northwestern granted other academic institutions (except for other Big Ten Conference institutions) permission to contact Plaintiff. Id. 35, 43. Thereafter, in the spring of 2015, Plaintiff was in contact with representatives from several other NCAA Division I schools about transferring to those academic institutions. Id. 41. III. Plaintiff agrees to a written Non-Participant Agreement with Northwestern in which he retains his scholarship, despite not continuing as a member of the men s basketball team and having previously announced he was transferring. Despite his earlier March 2015 announcement that he would be transferring from Northwestern and potential interest from other schools, by July 2015, Plaintiff still had not transferred. Id. 41, 43. With the start of the 2015-2016 academic year approaching, on July 1, 2015, Northwestern, Plaintiff and his mother signed a new written Non-Participant Scholarship Status agreement, so that Plaintiff could continue receiving his athletic scholarship even though he was not continuing as a member of the Northwestern men s basketball team. Id. 43; Exh. B at 1 (the Non-Participant Agreement ). 4 Under the terms of the Non-Participant Agreement, Plaintiff would continue to receive a full scholarship from Northwestern for his tuition, fees, room, board and books, as well as academic advising support, for the remaining 4 The Non-Participant Agreement is attached hereto as Exhibit B. For reasons discussed below, the Court may consider Exhibit B as part of this motion without converting it to a motion for summary judgment. 4

Case: 1:16-cv-10590 Document #: 25 Filed: 01/31/17 Page 6 of 18 PageID #:322 2015-2016 to 2017-2018 academic years. Id. 43; Exh. B. In exchange, Plaintiff agreed to work eight hours per week in the Athletics Department and to continue to abide by NCAA, Big Ten Conference and Northwestern rules and regulations. Id. 43; Exh. B. Plaintiff also expressly agreed in the Non-Participant Agreement that he was not continuing as a member of the Northwestern men s basketball team (consistent with his March 2015 announcement of his intent to transfer schools), that he would not be eligible for priority class registration, and that any summer school courses he might choose to take would not be funded through the Athletics Department. Id. 43; Exh. B. The Non-Participant Agreement does not provide Plaintiff with access to any training facilities or services, medical services or tutoring that Northwestern may make available to its student-athletes. See Exh. B. IV. Plaintiff s complains about his work assignment in the Athletics Department. To fulfill his weekly work requirement under the Non-Participant Agreement, Plaintiff was assigned to the Northwestern Athletics Facilities department, which is responsible for (among other things) maintenance of Northwestern s athletic facilities. Unhappy with his assignment, Plaintiff repeatedly sought assistance (i.e., complained) to various individuals at Northwestern, seeking to be reassigned. Id. 48, 49. Dissatisfied with Northwestern s response, in January 2016, Plaintiff s attorney contacted Northwestern s Office of General Counsel about Plaintiff s work assignment and his athletic scholarship. Id. 11, 50-56. 5 5 Northwestern has moved this Court pursuant to Fed. R. Civ. P. 12(f) to strike the allegations in Plaintiff s Complaint that improperly disclose settlement discussions between Plaintiff and Northwestern. As explained in Northwestern s motion to strike, Plaintiff s Complaint contains numerous allegations regarding alleged settlement proposals, agreements and related discussions between attorneys for Plaintiff and Northwestern in a transparent attempt to potentially prejudice Northwestern and to undermine the longstanding policy of promoting settlement discussions between parties in a dispute. 5

Case: 1:16-cv-10590 Document #: 25 Filed: 01/31/17 Page 7 of 18 PageID #:323 V. Northwestern continues to provide Plaintiff with a full academic scholarship even after the cancellation of his athletic scholarship. On April 20, 2016, Northwestern formally notified Plaintiff that it was cancelling his athletic scholarship because he had failed to comply with the terms of the Non-Participant Agreement. Id. at 57-58. Plaintiff appealed the decision to cancel his athletic scholarship. Id. 61. This resulted in a review of that decision at a hearing conducted by Northwestern s Athletic Aid Appeals Committee (the Appeals Committee ), which is independent from Northwestern s Athletics Department. Id. 61; Exh. A at 3 (providing that Northwestern shall not delegate the responsibility for conducting the hearing to the university s athletics department or its faculty athletics committee ). On May 4, 2016, the Appeals Committee decided to give Plaintiff a full scholarship from Northwestern s general scholarship fund in the same amount that Plaintiff had received as a student athlete. Id. 65. In arriving at this decision, the Appeals Committee recognized that Plaintiff was unhappy performing the work he was required to perform under the Non- Participant Agreement. Id. 65; see also id. 47-49. As a result of the decision, Plaintiff could continue to pursue (and currently is pursuing) his Northwestern undergraduate degree without having to pay for his tuition, fees, room, board or books, and without having to perform work for the Athletics Department about which he previously had complained. Id. 65; see also id. 47-49. ARGUMENT I. ALL OF PLAINTIFF S CLAIMS AGAINST NORTHWESTERN SHOULD BE DISMISSED UNDER FED. R. CIV. P. 12(B)(6) FOR FAILURE TO STATE A CLAIM. Under Fed. R. Civ. P. 12(b)(6), a complaint that fails to plead facts sufficient to state a claim to relief that is plausible on its face should be dismissed. Ashcroft v. Iqbal, 556 U.S. 662, 6

Case: 1:16-cv-10590 Document #: 25 Filed: 01/31/17 Page 8 of 18 PageID #:324 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). Moreover, even though the Court must accept the Plaintiff s allegations as true at the pleading stage, allegations in the form of legal conclusions are insufficient to survive a Rule 12(b)(6) motion. Iqbal, 556 U.S. at 678. [T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Shield Tech. Corp. v. Paradigm Positioning, LLC, 908 F. Supp. 2d 915, 917 (N.D. Ill. 2002). As further explained below, Plaintiff has failed to state a claim with respect to each of his breach of contract, promissory estoppel and fraud claims in Counts II, III and IV of Plaintiff s Complaint. A. Plaintiff s Breach of Contract Claim in Count II Should Be Dismissed Because It Is Based on the Big Ten Tender That No Longer Was The Contract In Effect At the Time of Northwestern s Alleged Breach, and Plaintiff Has Failed to Adequately Allege Any Recoverable Damages. 1. The Big Ten Tender That Is the Subject of Count II Was Not a Valid Contract in Effect at the Time Plaintiff Alleges Northwestern Breached It. In Count II of his Complaint, Plaintiff purports to allege that Northwestern breached the Big Ten Tender in May 2016. Specifically, he alleges that he had a valid and enforceable contract with Defendant Northwestern for a full athletic grant-in-aid during the period 2014-2015 through 2017-2018 academic years (including tuition, fees, room board and books), and cites to (but fails to attach) the Big Tender of Financial Aid from Northwestern University and [sic] Plaintiff. Cmplt. 144. He further alleges that he performed his obligations under the contract, reciting only conditions from the Big Ten Tender. Compare Cmplt. 145 with Exh. A. He then alleges that Northwestern breached the contract by cancelling Defendant s athletics grant-in-aid on or about May 4, 2016 when it awarded Plaintiff a full cost-of-attendance scholarship as a general scholarship rather than as an athletic scholarship. Cmplt. 146, 65. To properly plead a breach of contract claim under Illinois law, Plaintiff must allege (1) the existence of a valid contract, (2) that he performed all of his contractual conditions, (3) that 7

Case: 1:16-cv-10590 Document #: 25 Filed: 01/31/17 Page 9 of 18 PageID #:325 Northwestern breached the contract, and (4) the existence of damages resulting from that breach. OnTap Premium Quality Waters, Inc. v. Bank of N. Ill., 634 N.E.2d 425, 429 (Ill. App. Ct. 1994). Plaintiff s breach of contract claim fails at the outset because Count II is based solely on the Big Ten Tender, which Plaintiff concedes in Paragraph 43 of his Complaint was not the contract in effect on or about May 4, 2016, when he claims a breach occurred. See Cmplt. 144, 146, 147, 43; Exh. B. Specifically, Plaintiff alleges in Paragraph 43 that on July 1, 2015, he signed the Non-Participant Agreement, which set[s] forth various obligations for [Plaintiff] to maintain his athletics scholarship while not continuing as a member of the basketball team, including an eight-hour-per-week service requirement in the athletics department. Cmplt. 43. However, Plaintiff does not even mention in Count II the July 1, 2015 Non-Participant Agreement, to which Plaintiff, his mother and Northwestern had agreed ten months prior to the alleged May 2016 breach. See Cmplt. 144-47. A straightforward review of the terms of the Big Ten Tender and the Non-Participant Agreement, together with Plaintiff s claim in Count II, plainly establishes that Plaintiff has failed to state (and cannot state) a plausible breach of contract claim against Northwestern based on the Big Ten Tender. In light of the existence of the Non-Participant Agreement in July 2015 concerning Plaintiff s scholarship, the earlier Big Ten Tender cannot serve as a basis for Plaintiff s breach of contract claim because the Big Ten Tender plainly was not the contract in effect at the time of the alleged breach in May 2016. See, e.g., Barrett v. Lawrence, 442 N.E.2d 599, 601 (Ill. App. Ct. 1982) ( An agreement when changed by mutual consent of the parties becomes a new agreement which takes the place of the old. ); Donovan v. Cnty. of Lake, 951 N.E.2d 1256, 1267 (Ill. App. Ct. 2011) ( [I]t is clear that any lawsuit brought on a contract that has been modified... must be brought on the modified contract. ). Since Plaintiff cannot 8

Case: 1:16-cv-10590 Document #: 25 Filed: 01/31/17 Page 10 of 18 PageID #:326 plausibly allege the first required element of his breach of contract claim based on the Big Ten Tender, Count II must be dismissed. 2. It Is Proper For the Court to Consider the Actual Big Ten Tender and Non- Participant Agreement, Which Demonstrate That Plaintiff Has Failed to Plead A Breach of Contact Claim, Even Though Plaintiff Did Not Attach Them to His Complaint. To the extent Plaintiff may argue that this Court cannot consider the actual terms of the Big Ten Tender and the Non-Participant Agreement, this Court should reject that contention. It is well settled that it is proper under Fed. R. Civ. P. 12(d) for this Court to consider the Big Ten Tender and the Non-Participant Agreement documentation when deciding Northwestern s motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), even though Plaintiff inexplicably failed to attach them to this Complaint. There is no question that the Big Ten Tender and the Non- Participant Agreement are central to Plaintiff s claims in this action. Plaintiff s Complaint cites or otherwise refers to each of those contracts. See, e.g., Cmplt. 144 ( Plaintiff had a valid and enforceable contract with Defendant Northwestern for a full athletics grant-in-aid during the period 2014-15 through the 2017-18 academic years.... See Ex. 1 (Big Ten Tender of Financial Aid from Northwestern University and [sic] Plaintiff). ); 43. Moreover, both the Big Ten Tender and the Non-Participant Agreement as attached hereto are authentic, signed by Plaintiff and his mother. Cmplt. 43. A court may consider, without converting a motion to dismiss to a motion for summary judgment, documents that (1) are referred to within the complaint, (2) are concededly authentic, and (3) are central to the plaintiff s claim. Tierney v. Vahle, 304 F.3d 734, 738 (7th Cir. 2002) (collecting cases and noting that the usual example [of such a document] is a contract, in a suit for breach of contract ); see also Hecker v. Deere, 556 F.3d 575, 582 (7th Cir. 2009). Accordingly, it is appropriate for this Court to review and consider both the Big Ten 9

Case: 1:16-cv-10590 Document #: 25 Filed: 01/31/17 Page 11 of 18 PageID #:327 Tender and the Non-Participant Agreement attached hereto as exhibits when deciding this motion. 3. Plaintiff s Failure to Plead Damages Recoverable from Any Alleged Breach of the Big Ten Tender Also Requires Dismissal of His Claim. Even if Plaintiff somehow could plead that the Big Ten Tender was a valid contact in effect as of May 2016 (which he cannot), Plaintiff s breach of contract claim still must be dismissed because he has failed to allege that he has suffered any damages that flow from Northwestern s alleged breach of the Big Ten Tender. Illinois law is clear that Plaintiff is required to plead damages as an essential element of a breach of contract claim. In re Illinois Bell Tel. Link-Up II, 994 N.E.2d 553, 558 (Ill. App. Ct. 2013). As described above, Plaintiff has not alleged and cannot allege that Northwestern is not providing him with a full tuition scholarship or paying for his fees, books, room and board provided in the Big Ten Tender. As such, Plaintiff has failed to allege any damages that he could recover based on any alleged breach of the terms of the Big Ten Tender. Recognizing this fatal flaw in his claim, Plaintiff instead generally alleges losses with respect to items that Northwestern had no contractual obligation to provide under the Big Ten Tender, such as access to athletic facilities, training, medical care, academic advising, tutoring, early registration for classes, and summer school. Cmplt. 12, 65, 67, 68, 144, 147; Exh. A at 1. His only specific allegation is that he spent money that he would not have had to spend if he remained on the team and an athletics grant-in-aid (Cmplt. 147), for gym time and personal trainers/therapists. Cmplt. 68. It is well settled that any [c]ompensation awarded in a breach of contract action should not provide plaintiff with a windfall. Walker v. Ridgeview Constr. Co., Inc., 736 N.E.2d 1184, 1187 (Ill. App. Ct. 2000) (entering a directed finding for the defendant as a matter of law because 10

Case: 1:16-cv-10590 Document #: 25 Filed: 01/31/17 Page 12 of 18 PageID #:328 the plaintiff failed to prove damages from the breach); see also In re Illinois Bell Telephone Link-Up II, 994 N.E.2d at 558; Roboserve, Inc. v. Kato Kagaku Co., Ltd., 78 F.3d 266, 278 (7th Cir. 1996) (citing Illinois authority and noting that a general rule of contract damages is to not place the non-breaching party in a better position than he would have been in had the breach not occurred). Yet a windfall is precisely what Plaintiff seeks here. By alleging only windfall damages with respect to matters that were not contractually provided for in the Big Ten Tender, Plaintiff has failed to allege damages resulting from a breach of the Big Ten Tender as he is required to do under Illinois law. Accordingly, Count II must be dismissed. 4. Had He Attempted, Plaintiff Still Could Not State A Plausible Breach of Contract Claim Based on the Non-Participant Agreement. Even if Plaintiff had attempted to plead a breach of contract claim based upon the Non- Participant Agreement, it still would fail. Under the Non-Participant Agreement, Plaintiff still would receive a scholarship for his tuition, fees, books, room and board, just as he had under the Big Ten Tender. Cmplt. 43; Exh. B. As discussed above, Plaintiff has not alleged (and cannot allege) that he is not receiving these scholarship funds from Northwestern. Plaintiff therefore could not state a breach of contract claim based upon the Non-Participant Agreement. Any claims for alleged damages related to access to athletic facilities, training, medical care, tutoring, early registration for classes, or summer school arising out of the Non-Participant Agreement are similarly flawed. Just as with the Big Ten Tender, the Non-Participant Agreement does not contain any terms concerning these extra-contractual benefits. See Exh. B. Indeed, the Non-Participant Agreement expressly states that Plaintiff would not receive access to priority registration or summer classes funded by the Athletics Department. Exh. B at 1. For these reasons, Plaintiff would not be able to plead a plausible breach of contract claim based upon the Non-Participant Agreement, were he ever to attempt to do so. 11

Case: 1:16-cv-10590 Document #: 25 Filed: 01/31/17 Page 13 of 18 PageID #:329 5. Any Contract Plaintiff Alleges with Respect to Benefits Not Contained in the Big Ten Tender (or the Non-Participant Agreement) Is Barred By the Statute of Frauds. Even if Plaintiff s Complaint could be construed to allege a contract between him and Northwestern regarding access to athletic facilities, training, medical care, academic advising, tutoring, early registration for classes and summer school benefits for four academic years, such a contract would be barred under Illinois law by the statute of frauds because it is not in writing. Under the Illinois statute of frauds, any contract that cannot be performed within one year is unenforceable unless the contract is in writing. See 740 ILCS 80/1; Silvestros v. Silvestros, 563 N.E.2d 1084, 1086 (Ill. App. Ct. 1990) (affirming dismissal of plaintiff s contract claim based upon the statute of frauds). When considering Plaintiff s claim in light of the Big Ten Tender and Non-Participant Agreement documents that he should have attached to his Complaint, it is clear that Plaintiff has not plausibly alleged that there is any written contract providing for the additional benefits described above. Since Plaintiff claims that he is contractually entitled to those additional benefits for a four-year period (see Cmplt. 144), by definition, any purported unwritten contract cannot be fully performed within one year. As such, it is barred by the Illinois statute of frauds and cannot serve as the basis for Plaintiff s breach of contract claim in Count II. Cmplt. 67; Silvestros, 563 N.E.2d at 1086. B. Plaintiff s Promissory Estoppel Claim in Count III Also Must Be Dismissed For Failure to State A Claim. Plaintiff s promissory estoppel claim is nothing more than a breach of contract claim masquerading as one for promissory estoppel, which requires that is be dismissed. A properly pled claim for promissory estoppel in Illinois requires that a plaintiff allege that (1) defendant made an unambiguous promise to plaintiff, (2) plaintiff relied on such promise, (3) plaintiff s reliance was expected and foreseeable by defendants, and (4) plaintiff relied on the promise to 12

Case: 1:16-cv-10590 Document #: 25 Filed: 01/31/17 Page 14 of 18 PageID #:330 [his] detriment. Dumas v. Infinity Broadcasting Corp., 416 F.3d 671, 677 (7th Cir. 2005) (quoting Quake Constr., Inc. v. Am. Airlines, Inc., 565 N.E.2d 990, 1004 (Ill. 1990)). Under Illinois law, a claim for promissory estoppel will only succeed where all the other elements of a contract exist, but consideration is lacking. Dumas, 416 F.3d at 677 citing Bank of Marion v. Robert Chick Fritz, Inc., 311 N.E.2d 138 (Ill. 1974) (emphasis added). However, when there is an express contract governing the relationship out of which the [alleged] promise emerged,... there is no gap in the remedial system for promissory estoppel to fill. All-Tech Telecom, Inc. v. Amway Corp., 174 F.3d 862, 869 (7th Cir. 1999). Indeed, [p]romissory estoppel is not a doctrine designed to give a party... a second bite at the apple in the event that it fails to prove a breach of contract. Dumas, 416 F.3d at 677 (internal citation and quotation omitted). Plaintiff alleges in Count III that Northwestern promised not to reduce or cancel his athletic scholarship for the 2014-2015 through 2017-2018 academic years (1) on the basis of his athletic ability, performance or contribution to the team s success, (2) because of injury, illness or physical or mental condition... or (3) or for any other athletics reason. Cmplt. 149. Those conditions come directly from a contract the Big Ten Tender. Thus, because he alleges that his scholarship is governed by an express contract, Plaintiff has pled himself out of a promissory estoppel claim. See Dumas, 416 F.3d at 677. Furthermore, Plaintiff s only allegation that he detrimentally relied on Northwestern s promise is that he spent money that he would not have had to spend if he remained on the team with an athletics grant-in-aid. Cmplt. 152. According to Plaintiff, specifically, he paid for gym time and personal trainers/therapists... which would not have been needed if he was on an athletic scholarship. Cmplt. 67. As explained in above (supra, pp. 10-11), Plaintiff does not allege (and cannot allege) that there is any writing in which Northwestern promised to provide 13

Case: 1:16-cv-10590 Document #: 25 Filed: 01/31/17 Page 15 of 18 PageID #:331 Plaintiff with gym time or personal trainers/therapists for four academic years or otherwise. Under Illinois law, the statute of frauds is applicable to a promise claimed to be enforceable by virtue of the doctrine of promissory estoppel. Fischer v. First Chicago Capital Mkts., Inc., 195 F.3d 279, 284 (7th Cir. 1999); Dumas, 416 F.3d at 679. Applying these principles, Plaintiff s promissory estoppel claim is barred by the statute of frauds for the same reason that his breach of contract claim is barred. 6 C. Plaintiff Has Failed to State A Claim for Fraud in Count IV. As an initial matter, Plaintiff s fraud claim in Count IV should be dismissed because it is a thinly veiled attempt to recast his breach of contract claim as a fraud claim. In sum, Plaintiff recites various provisions of the Big Ten Tender in Count IV as statements by Northwestern and then alleges such statements were untrue. Compare Cmplt. 154, 156 with Exh. A at 3. Under Illinois law, a party cannot premise a fraud claim on another party's breach of contract. See Gen. Elec. Railcar Leasing Servs. Corp. v. Carlson Mktg. Grp., Inc., No. 91 C 5345, 1992 WL 70319 (N.D. Ill. Mar. 31, 1992) (internal citation omitted). Since this is precisely what Plaintiff has done in Count IV, it must be dismissed. Count IV also should be dismissed because Plaintiff has failed to plead it with the heightened level of specificity required for pleading fraud under Fed. R. Civ. P. 9(b). In alleging a fraud claim, a plaintiff must state with particularity the circumstances constituting fraud, and allege sufficient underlying facts from which a court may reasonably infer that [the defendant] acted with the requisite state of mind. Fed. R. Civ. P. 9(b); United States ex rel. John v. 6 Plaintiff alleges in passing that he relied on the fact that he would receive a fair hearing when he appealed his scholarship cancellation. Cmplt. 150. This allegation fails to identify an unambiguous promise by Northwestern, nor has he alleged any facts to support his threadbare, conclusory allegation that he relied to his detriment on any such promise. Therefore, Plaintiff s fair hearing allegation cannot serve as the basis for any promissory estoppel claim. 14

Case: 1:16-cv-10590 Document #: 25 Filed: 01/31/17 Page 16 of 18 PageID #:332 Hastert, No. 13 C 5014, 2014 WL 4652662, at *4 (N.D. Ill. Sept. 18, 2014) (internal quotations and citation omitted). To allege a claim for fraud under Illinois law, a Plaintiff must allege: (1) a false statement of material fact, which is made (2) with knowledge or belief of its falsity and (3) intent to induce action by another in reliance on the statement; (4) action by the other in reliance on the truthfulness of the statement; and (5) injury resulting from that reliance. See, e.g., State Sec. Ins. Co. v. Frank B. Hall & Co., 630 N.E.2d 940, 943 (Ill. App. Ct. 1994); Robinson v. Midlane Club, Inc., No. 94 C 1459, 1994 WL 577219, at * 5 (N.D. Ill. October 18, 1994) (stating the elements of fraud under Illinois law). Plaintiff has failed to allege facts sufficient to support of his conclusory fraud allegation that Northwestern knew that its statements that it would provide Plaintiff with a multi-year athletic scholarship... were untrue or were made recklessly as to the statement s truth or falsity. Cmplt. 157. More notably, Plaintiff has not alleged that Northwestern knew in April 2014, at the time it offered Plaintiff a four-year athletic scholarship prior to his enrolling at Northwestern, that it did not intend to provide him with that scholarship. Cmplt. 154-55. Instead, he relies on allegations concerning his athletic scholarship cancellation in April 2016 more than two years later. This simply is not sufficient to state a claim for fraud. 7 CONCLUSION For the foregoing reasons, Defendant Northwestern University respectfully requests that this Court dismiss all of Plaintiff John Vassar s claims against Northwestern in Plaintiff s Class Action Complaint. 7 Plaintiff s fraud claim cannot survive based on his cursory allegation that [Northwestern] represented that should the school attempt to revoke Plaintiff s athletic scholarship for any reason, he would be entitled to an appeal. Cmplt. 154. That statement was not false Plaintiff did receive an appeal of the cancellation. Cmplt. 61-65. 15

Case: 1:16-cv-10590 Document #: 25 Filed: 01/31/17 Page 17 of 18 PageID #:333 Respectfully submitted, DEFENDANT NORTHWESTERN UNIVERSITY s/ Ami N. Wynne One of Its Attorneys Ami N. Wynne awynne@sidley.com Jason G. Marsico jmarsico@sidley.com SIDLEY AUSTIN LLP One South Dearborn Street Chicago, Illinois 60603 (312) 853-7000 16

Case: 1:16-cv-10590 Document #: 25 Filed: 01/31/17 Page 18 of 18 PageID #:334 CERTIFICATE OF SERVICE I hereby certify that on January 31, 2017, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following counsel of record for the parties: Steve W. Berman HAGENS BERMAN SOBOL SHAPIRO LLP 1918 Eighth Avenue, Suite 3300 Seattle, WA 98101 steve@hbsslaw.com Elizabeth A. Fegan Daniel J. Kurowski HAGENS BERMAN SOBOL SHAPIRO LLP 455 N. Cityfront Plaza Drive, Suite 2410 Chicago, IL 60611 beth@hbsslaw.com dank@hbsslaw.com Catherine Masters SCHIFF HARDIN LLP 233 S. Wacker Drive Chicago, Illinois 60606 cmasters@schiffhardin.com Gregory L. Curtner Robert J.Wierenga Suzanne L. Wahl SCHIFF HARDIN LLP 350 S. Main Street, Suite 210 Ann Arbor, Michigan 48104 gcurtner@schiffhardin.com rwierenga@schiffhardin.com swahl@schiffhardin.com /s/ami N. Wynne 17