Save These Dates

With the oral arguments for the PSV/MLS Motion to Dismiss in the rear-view mirror now, we can look forward as the Modell lawsuit continues on its track towards a potential trial in March, 2019 (although that is not a firm date as of yet). However, there are number of upcoming dates which could impact this case, directly (through the lawsuit) or indirectly (through goings-on in Austin).

At this point, it’s probably a good idea to note the important dates/deadlines so that everyone knows what to look out for. I’ll attempt to keep these chronological where possible, but also note that some of these dates are informed estimates, and in the case of the Modell lawsuit and Judge Brown, HIGHLY subject to change based on the whims of the Judge, or motions filed by one of the parties. Also, these dates are based on counting days in my date calculator, so give them a +/- of a day or two.

Settlement Status Report: Due ~September 13 (and every 14 days thereafter).

On July 31, Judge Brown ordered the parties submit status reports on settlement negotiations every 14 days until he deemed it no longer necessary. So far as I’ve heard, the parties have been submitting those reports as required, though I don’t know if they are submitting them jointly as the Court “suggested.” My feeling is they haven’t; MLS is dealing directly with the Columbus Business Partnership and not the plaintiffs per se. I’ll assume the plaintiffs are discussing the progress (such that it is) between CBP and MLS to verify MLS is negotiating with CBP in good faith. That’s important because…

Order extending the 90-toll: Expires September 19.

Recall that on May 8, Judge Brown tolled the six-month waiting period for 90 days. When PSV/MLS appealed that decision, 44 days elapsed before the 10th Circuit Court denied their appeal, during which time, not much of anything happened. Based on that, Judge Brown extended the toll for 44 days to make up for the lost time. That extension ends on September 19, at which point the toll will theoretically expire, and whatever time remains in the six-month notice period will start to run again. One important note: It has NOT been determined at which point PSV/MLS gave notice, as that May 8 order points out.


Also note that last sentence. The Court is within its rights to extend the toll further (Judge Brown could also shorten it, but as the deadline is up shortly, that would be pretty pointless). Extending the toll likely depends on how nicely PSV/MLS have been playing; if it looks like their negotiations have been in bad faith, Judge Brown will likely extend the toll further. Assuming they’ve being doing as they’ve been told, PSV/MLS will argue there is no further need for a toll, and that it is time for the Court to make a determination on the notice issue. Which leads nicely into…

Six-month notice expiration: April 17, 2018; May 15, 2018; September 14, 2018; ???, 2018/2019.

I was told there wouldn’t be any math when I went to law school. Anyway, the above four dates represent (in order) the following: October 16, when PSV announced they were exploring Austin; November 15, when PSV/MLS met with the Mayor and the CBP; March 16, when PSV/MLS wrote that letter; and some as-yet undetermined date, when/if the Court decides notice has been given.

My guess, using the Court’s “alarm clock battery” analogy, is that on the 19th of September, the batteries get put back in, and those deadlines will creep ever closer, if there is any time remaining at all. If notice was determined to have been given back on 10/16/17, there’d be about a week remaining (from September 19) of the six-month notice period; for 11/15/17, about five weeks; for 3/16/18, there would be around five months. This all assumes Judge Brown also excludes the period between when the plaintiffs filed their motion to toll on 4/2/18, and the 5/8/18 ruling. Otherwise, slice off another month, which means the six month notice period for October ’17 and November ’17 are up. This ALSO assumes that the Judge will find that PSV/MLS have given notice at all. I’ve previously expressed my doubts about that, and I’m fairly certain Judge Brown is as skeptical as I am. So, it is possible Judge Brown determines PSV/MLS haven’t given notice at all, in which case, there is a fresh six-month time clock just waiting to get punched.

Deadline for ruling from Judge Brown on Motion to Dismiss: December 3, 2018.

Local rules require Judge Brown to make a decision within 90 days of the oral argument. While there is no indication he will take that long, he certainly could. The reason I don’t think he will is because of some of the exigent circumstances in this case, as well as the fact that if he is going to deny the motion, the plaintiffs will be itching to start the discovery process (or appeal if the motion to dismiss is granted), and there is a trial tentatively set for March, AND the 2019 MLS season also begins in March. Not that the latter is necessarily the concern of the Court, but I’d still expect him to take that into account. We may get some clue into his thinking as we approach the end of the toll a week from today.

Let’s briefly check in with the folks down in Austin.

Deadline to formalize the Term Sheet into a Lease: October 9, 2018.

Per the Term Sheet, either party may terminate the term sheet and get out of the agreement, if the Term Sheet is not reduced to a lease agreement by October 9, 2018. HOWEVER, PSV may extend the deadline by two, two-month periods so long as they are working with the City in good faith.

Screen Shot 2018-09-12 at 9.30.37 AM

That would move the deadline to around February 6, 2019. I have no idea how that would affect the ability for PSV to get a team down to Austin for the start of the 2019 season, since they need MLS approval of the stadium deal before they could move (ignoring the legal issues for the moment). PSV/MLS lobbyist Richard Suttle seems to think they’ll have a draft by September 18, 2018 (interesting date, that) they’ll be able to work off of to wrap it up by October.

The lawyer who represented the City of Austin in the negotiations says that timeline is “optimistic.” Either way, with a 120-day buffer that extends into 2019 if necessary, it’s unlikely that is a huge barrier. And it’s equally unlikely that the Council that voted to get the stadium deal moving will vote to terminate it over some uncrossed “t’s.” Whether the deal that they eventually strike is subject to a legal challenge is another issue, of course.

So those are the dates that get us through the end of the year. As I noted, these are HIGHLY subject to change depending on how conditions on the ground change. There are also other deadlines related to discovery and motions which I didn’t address here, but those are dependent on the outcome of the motion to dismiss. Once we get an answer to that, I’ll be sure to update the timelines.


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