Former students urged an Illinois federal judge to bar Cornell, Georgetown, Notre Dame, MIT and UPenn from going straight to the Seventh Circuit on a ruling that teed up trial against the five schools yet to settle the proposed class action over the alleged fixing of financial aid offerings.

The University of Pennsylvania, Georgetown University, Cornell University, the University of Notre Dame and the Massachusetts Institute of Technology must instead face trial first because nothing about the January decision denying the schools summary judgment warrants interlocutory appeal, the students said in an opposition brief Tuesday.

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, and the judge's conclusion 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. The schools sought permission late last month to appeal those findings right away, before facing trial.

The students argued Tuesday, however, that none of those issues warrant breaking from the normal presumption against the disruption caused by midcase appeals.

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. But the students countered that there's no dispute over the rule where different courts could come to a different conclusion.

"In ruling on summary judgment, as defendants acknowledge ... this court followed the controlling precedent dictating the application of the discovery rule," they said. "Any application of a different rule in other circuits would be no basis for certification. Such decisions are not binding on this court and provide no grounds for thinking the Seventh Circuit might disagree with this court's decision to apply the controlling Seventh Circuit law."

The students argued the schools are wrong to contend the U.S. Supreme Court has upended the Seventh Circuit's interpretation. Instead, they said the circuit has continued to interpret the rule the same way in antitrust cases since the high court issued its 2013 decision in Gabelli v. Securities and Exchange Commission and its 2019 ruling in Rotkiske v. Klemm.

In addition, the students said the discovery rule is at least partially a factual dispute, not a controlling matter of law appropriate for appeal. And they argued that even if the schools cut down the class period that runs from 2003 to 2022, their damages just from 2018 on "are substantial — at least $150 million," meaning there would be plenty left to litigate.

"Defendants' timeliness argument thus applies only to a portion of the class and of the damages they suffered," the students said.

Nor does it matter that some of the students' parents paid for their education, according to the brief, asserting that the schools raised those same issues in contesting the plaintiffs' pending bid for class certification. That means the schools could raise that standing issue if class were certified, according to the brief, which also argued that there's no substantial ground for a legal dispute that they were in fact direct purchasers able to bring damages claims under federal antitrust law. Any assertions to the contrary, they said, are factual disputes inappropriate for interlocutory appeal.

"Defendants' argument fails even if the court were to regard the application of law to fact here as a 'question of law.' Defendants do not cite any cases reflecting any disagreement with this court's resolution of the mixed question at issue here," they said. "Defendants do not cite any decision holding that a plaintiff who has the legal obligation to pay the defendant, but who had the payment made by a third party, lacks antitrust standing."

Counsel for the plaintiffs continued to assail the bid in statements provided to Law360.

"The five of seventeen non-settling defendant universities passed up chances to settle, and then proceeded to lose their attempt to exclude our experts, and then failed to win summary judgment," said Eric L. Cramer of Berger Montague. "As a result, they are now in desperation mode, attempting to prevent their case from being heard by a Chicago jury by any means possible, no matter how unmeritorious. We expect defendants' most recent efforts to fail."

Counsel for Penn and Notre Dame declined to comment. Counsel for the remaining schools did not immediately respond Wednesday to requests for comment.

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. According to the students, however, the schools did, in fact, 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, 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 last month after accepting the students' view of the market, along with evidence suggesting they paid inflated costs. Importantly, Judge Kennelly also rejected the schools' assertion that they are immune from the claims based on the antitrust exemption provided for the 568 Group. That part of the ruling prompted a separate notice of appeal the schools filed Tuesday, going straight to the Seventh Circuit on arguments that questions of immunity can be immediately appealed.

"Defendants also appeal from the district court's conclusion that a jury could reasonably find that the agreement element of the Sherman Act is satisfied. Jurisdiction for appeal of that issue is proper under the Seventh Circuit's pendent appellate jurisdiction," the schools said in their notice, arguing the questions of immunity and agreement are intertwined.

The students are represented by Devin "Vel" 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.