An Update on the ACC’S Lawsuit in North Carolina

admin April 6, 2024

By Ben Byrd from The Bull City Coordinators Podcast

“Y’all jokers must be crazy.”
Deadshot, Suicide Squad (2016).

Some of you may be wondering why I’m quoting Will Smith’s Deadshot in a post that is supposed to be about the litigation between FSU and The ACC in North Carolina. Well, it makes sense if you think about it. If the presiding judge were Deadshot, that’s what he would’ve said when ruling on the outstanding motions filed by FSU. Frankly, I wish he had just said that as it would’ve saved me a lot of time reading his well-reasoned opinion. In brief summary, the court denied most all of FSU’s motions and, most important, denied the motions to dismiss and to stay the case. That’s a significant loss for FSU. But what does it mean going forward?

For me, the main takeaway from the court’s ruling is that FSU didn’t get the case dismissed. This means that the litigation will proceed in North Carolina. That’s a big win for FSU as it won’t be able to try and rely on favoritism in Florida courts or from Florida’s activist legislature. The court in North Carolina is also pushing the parties to engage in discovery (which is a process by which parties get evidence from one another) and to generally move the case forward. This means that The ACC will get to press FSU on some of the allegations it has made and ask for the evidence supporting its defenses. This could be problematic for FSU because, as I’ve previously noted, its pleadings in Florida aren’t very good.

It also becomes more likely that the cases in Florida and in South Carolina (my home state!) will be stayed or otherwise transferred to North Carolina for resolution there. Under basic principles of judicial economy, courts are generally unwilling to let multiple cases involving the same basic issues proceed in different venues. This is because doing so could result in different outcomes. Judges also like to take an opportunity to take a case off their docket and the North Carolina court’s opinion provides just that opportunity.

As of right now, this seems like a total victory for The ACC. Generally, it is. However, it is important to keep in mind that litigation can change things. FSU could get some helpful information in discovery and find a way around the Grant of Rights (“GOR”) and a way out of The ACC. And, to quote Michael Scott, it’s important to remember that anything’s possible. But while it might be possible, I don’t think it’s likely. FSU’s pleadings are, as I’ve noted previously, very, very weak. If FSU had good evidence to defeat the GOR, the pleadings it filed contesting the GOR would look different. I can’t imagine that FSU will learn anything which will provide it with the necessary silver bullet to defeat what is an ironclad GOR. My prediction for FSU? Pain.

Now, I would like to add that my analysis is hopefully somewhat more informed than that of the average person looking at this issue. I have a law degree and am a practicing trial attorney in Virginia. I am not, however, an IP law specialist and I’m not licensed in North Carolina. For those of you who want a more detailed and more knowledgeable analysis, check out David McKenzie on Twitter. He is providing the best analysis on the lawsuits that I’ve seen. He’s also from the 864 area code like me and I never miss a chance to rep the 864.