Cornell, Georgetown, Notre Dame, MIT, and UPenn say that students fighting their bid to go straight to the Seventh Circuit on a ruling that teed up a trial over allegations that the schools fixed financial aid offerings "mischaracterize the questions presented and downplay Supreme Court precedent," insisting a prompt appeal would hasten the resolution of the case.

The universities are asking an Illinois federal judge to certify his summary judgment ruling from last month for an interlocutory appeal to the Seventh Circuit. His ruling for the students allows their claims to head to a jury. The students allege that a number of private schools agreed to limit the student aid they provide through the 568 Presidents Group.

At issue is the court's refusal to bar recovery for claims based on tuition payments made before January 2018, four years before the suit was filed, as well as the judge's conclusion that the students have standing to bring their claims, even though a number of the proposed class members' college expenses were paid for by their parents or others.

Despite the students' argument in opposition that resolution on the statute-of-limitations question wouldn't materially advance the litigation, the schools argued in a brief Tuesday that a Seventh Circuit ruling in their favor would "end 80% of the proposed class's claims, eliminate defendants' need to present evidence on timeliness at trial, and reduce the alleged damages to less than half what plaintiffs have already recovered through settlement."

"All of these facts show that certification would hasten resolution of this case of major significance for the remaining defendants and their current and future students and make more efficient use of the court's resources," the schools said.

The statute-of-limitations arguments are based on the "discovery rule," with the schools arguing that there's no reasonable basis on which the students can't have known about how schools were handling financial aid. The students countered that there's no dispute over the rule where different courts could come to a different conclusion, and that the district court followed controlling precedent over its application.

The Seventh Circuit should weigh in on whether a recent U.S. Supreme Court ruling bars reading a discovery rule into the Clayton Act's statute of limitations, and if the Clayton Act does include a discovery rule, the court should discuss whether the rule's reasonably diligent plaintiff standard does not apply if the antitrust claim is sufficiently "complex" to relieve plaintiffs of any responsibility to investigate, according to the schools' brief.

"Plaintiffs do not contest that there are substantial grounds for difference of opinion as to whether the discovery rule applies differently, at the threshold, to 'complex' cases — an unresolved question that even plaintiffs seem to recognize no other court has answered the way this court did," the universities said.

And allowing an appeal on whether a plaintiff can establish antitrust injury based on an alleged overcharge paid by a third party will also promote resolution of the case, they said.

"Six of the eight named plaintiffs in this case concededly did not make any payments to the school they attended and thus resolution of the question in defendants' favor would require dismissal of their claims — and likely defeat class certification and eliminate the need for a trial," the universities said.

"Even after being squarely presented with the issue, plaintiffs are still unable to muster any material factual dispute that would impede appellate review," they added.

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 students, however, say the schools did consider financial status during the admissions process, such as by favoring the children of wealthy donors.

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 University, Emory University, Brown University, Columbia University, and Duke University 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 last month after accepting the students' view of the market, along with evidence suggesting they paid inflated costs. Judge Kennelly also rejected the schools' assertion that they are immune from the claims based on the antitrust exemption that was provided for the 568 Group.

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.