The five private universities that have yet to settle with students over the alleged fixing of financial aid offerings are asking an Illinois federal court for permission to immediately appeal a ruling that sets the case up for trial.

The University of Pennsylvania, Georgetown University, Cornell University, the University of Notre Dame, and the Massachusetts Institute of Technology filed a motion on Tuesday asking to certify the court's summary judgment ruling from earlier this month for an interlocutory appeal to the Seventh Circuit.

The schools said they wanted to challenge the court's refusal to bar recovery for claims based on tuition payments made before January 2018, four years before the suit was filed, saying a reversal on the statute of limitations would eliminate claims from 80% of the proposed class period.

They also plan to challenge the court's finding that the students have standing to bring their claims, even though a number of the proposed class members had their college expenses paid for by their parents or others.

"Because it is undisputed that six of the eight named plaintiffs did not actually pay their tuition, resolution of this issue in defendants' favor would resolve almost all the named plaintiffs' claims," the motion said. "Favorable resolution of this issue would also likely defeat class certification and facilitate settlement of the few remaining claims, thereby eliminating the need for a costly trial."

The students have already reached more than $300 million in settlements over claims that more than a dozen elite private universities agreed to limit the student aid they provided through the 568 Presidents Group. The group is named for Section 568 of the Improving America's Schools Act, which allowed universities to collaborate on financial aid opportunities as long as they admitted students on a "need-blind basis," or without considering their financial standing.

The group was dissolved in 2022 after Congress refused to extend an exemption from antitrust laws for the collaboration.

The University of Chicago was the first to settle the claims with the students, in a $13.5 million deal, followed by deals with Yale, Emory, Brown, Columbia, and Duke universities totaling $104.5 million. The court most recently approved an $18.5 million settlement between the students and Johns Hopkins University and a $16 million deal with the California Institute of Technology.

U.S. District Judge Matthew F. Kennelly denied a summary judgment motion from the remaining schools earlier this month after accepting the students' view of the market, along with evidence suggesting they paid inflated costs.

On the statute of limitations, the judge found that while the schools contend all the facts underlying the claims could have been known years before the students filed the case, a "reasonably diligent" person would be unlikely to detect they had been injured by their financial award.

The motion on Tuesday said there is no reasonable basis to dispute that information explaining the 568 Group's common principles and best practices for financial aid was in the public record for decades, often published or provided by the members themselves.

The lower court rejected those contentions by relying on a "discovery rule" that the motion said only the Seventh Circuit has found applies to the Clayton Act.

"Other courts that have considered the question have rejected applying the discovery rule to civil antitrust cases," the motion said. "A circuit split alone is reason to find substantial ground for difference of opinion."

Even if a rule about discovering the injury applied to the Clayton Act, the motion said there is still room for disagreement as to whether the rule applies differently when the "injury is hard to detect," since the court found the students never had a reason to investigate the supposed harm.

"The court's application of the discovery rule has the effect of indefinitely tolling the statute of limitations in this case," the motion said. "Plaintiffs are not imputed knowledge of publicly available information suggesting potential antitrust conduct and harm, no matter how ubiquitous or damning it might be."

Judge Kennelly rejected arguments that the students lack standing because a number of them had their college expenses paid for by others after finding that the students are the ones who incurred the legal obligation to pay tuition when they were admitted to the universities.

But the motion on Tuesday said there is substantial grounds for a difference of opinion about whether an injury could be established when an overcharge is paid by a third party. The schools pointed to a California federal court's ruling last year in an antitrust case targeting Apple's App Store policies.

The judge there decertified a class expected to include 185 million consumers because an expert was unable to match all the Apple accounts at issue to relevant class members. The motion said the court relied on a child using their parent's credit card to make a purchase in the App Store as an example of the problem.

"Other antitrust cases agree that a plaintiff who has not actually purchased the at-issue product from a defendant cannot establish injury," the motion said.

An attorney for the students, Robert D. Gilbert of Gilbert Litigators & Counselors PC, told Law360 on Wednesday that the schools "need to face the reality that well-settled law favors the plaintiffs."

Edward J. Normand of Freedman Normand Friedland LLP, another attorney for the students, said the lower court got the summary judgment ruling right.

"The district court correctly ruled on the merits, and that ruling falls far outside the narrow issues for interlocutory appeal," Normand said.

A representative for the schools declined to comment Wednesday.

The students are represented by Velvel Freedman, Edward J. Normand, Ivy Ngo, Joseph Delich, Peter Bach-y-Rita, and Richard Cipolla of Freedman Normand Friedland LLP, Robert D. Gilbert, Elpidio Villarreal, Robert S. Raymar, David Copeland, and Natasha Zaslove of Gilbert Litigators & Counselors PC, and Eric L. Cramer, David Langer, Jeremy Gradwohl, Daniel J. Walker, Robert E. Litan, and Richard D. Schwartz of Berger Montague.

The University of Pennsylvania is represented by WilmerHale and Miller Shakman Levine & Feldman LLP.

Cornell University is represented by Kirkland & Ellis LLP.

Georgetown University is represented by Mayer Brown LLP.

The Massachusetts Institute of Technology is represented by Freshfields LLP and Goldman Ismail Tomaselli Brennan & Baum LLP.

The University of Notre Dame is represented by Williams & Connolly LLP and Michael Best & Friedrich LLP.

The case is Henry et al. v. Brown University et al., case number 1:22-cv-00125, in the U.S. District Court for the Northern District of Illinois.