Case: 1:16-cv-10590 Document #: 47 Filed: 09/30/17 Page 1 of 4 PageID #:581

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOHN VASSAR, on behalf of himself and all )

others similarly situated, )
)
Plaintiff, )
) No. 16-cv-10590
v. )
) Judge Andrea R. Wood
NATIONAL COLLEGIATE ATHLETIC )
ASSOCIATION and NORTHWESTERN )
UNIVERSITY, )
)
Defendants. )

ORDER

Defendant Northwestern Universitys Motion to Strike [27] is denied. See the

accompanying Statement for details.

STATEMENT

Plaintiff John Vassar, an undergraduate student at Defendant Northwestern University

(Northwestern) and a former member of its basketball team, has brought class action antitrust
claims against Northwestern and Defendant National Collegiate Athletic Association (NCAA),
as well as individual breach of contract, promissory estoppel, and common law fraud claims
against Northwestern. Before the Court is Northwesterns Motion to Strike Allegations Regarding
Settlement from Plaintiffs Complaint. (Dkt. No. 27.)

I. Background

Vassar alleges that a NCAA Division I Bylaw providing that a student-athlete who
transfers from a four-year institution to a Division I school is not eligible to participate in
intercollegiate athletic competition during the students first year in residence at the new school
constitutes an agreement in restraint of trade in violation of Section 1 of the Sherman Act, 15
U.S.C. 1. In addition, Vassar alleges breach of contract, promissory estoppel, and common law
fraud claims against Northwestern in connection with a contract between Vassar and
Northwestern that provided him with a four-year, full athletics scholarship. Both Defendants have
moved to dismiss the claims against them. Contemporaneously with its motion to dismiss,
Northwestern also moved to strike particular allegations in the complaint that Northwestern
claims disclose confidential settlement discussions between Vassar and Northwestern.


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II. Discussion

The Federal Rules of Civil Procedure authorize a court to strike from a complaint any
redundant, immaterial, impertinent, or scandalous matter. Fed. R. Civ. P. 12(f). This Court has
discretion to determine whether to strike material under Federal Rule of Civil Procedure 12(f). See
Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 664 (7th Cir. 1992). A movant bears the
burden of demonstrating that the challenged allegations are so unrelated to the plaintiffs claim as
to be devoid of merit, unworthy of consideration, and unduly prejudicial. Id. Generally, motions
to strike are disfavored because they are considered drastic remedies. Vakharia v. Little Co. of
Mary Hosp. & Health Care Ctrs., 2 F. Supp. 2d 1028, 1033 (N.D. Ill. 1998).

Northwestern argues that the Complaint contains allegations regarding settlement

discussions between Vassar and Northwestern, and that those allegations should be stricken
because allowing them to stand would undermine the purpose of Federal Rule of Evidence 408 to
encourage settlement. The Court disagrees. Federal Rule of Evidence 408 is an evidentiary rule,
not a rule of pleading. See Fed. R. Evid. 408(a) (Evidence of the following is not admissible . . .
.). Even assuming that the substance of the allegations are in fact settlement communications that
would otherwise fall within the scope of Rule 408a conclusion of which the Court is not
convinced, as discussed belowthe Rule does not apply to allegations in a complaint. PTR, Inc.
v. Forsythe Racing, Inc., No. 08-cv-5517, 2009 WL 1606970, at *4 (N.D. Ill. June 9, 2009)
(denying defendants motion to strike allegations from pleadings under Rule 408 because Rule
408 is an evidentiary rule, which is best addressed in context of admissibility of evidence at
trial); see also BPI Energy, Inc. v. IEC (Montgomery), LLC, No. 07-186-DRH, 2007 WL
3355363, at *1 (S.D. Ill. Nov.13, 2007) (The Second Amended Complaint is not evidence;
rather, it sets forth allegations. Therefore, on its face, Rule 408 is not applicable at this juncture.).

Moreover, Rule 408 only prohibits the admission of settlement communications to prove
or disprove the validity or amount of a disputed claim. Fed. R. Evid. 408(a). Rule 408 is
inapplicable when compromise evidence is offered for a purpose other than to prove the validity,
invalidity, or amount of a disputed claim. Fed. R. Evid. 408 advisory committees note to 2006
amendment; see also Zurch Am. Ins. Co. v. Watts Indus., 417 F.3d 682, 689 (7th Cir. 2005)
(Evidence coming out of settlement negotiations . . . . has [] been admitted by courts for []
purposes other than establishing liability . . . . ); Trading Techs. Intl, Inc. v. BCG Partners, Inc.,
No. 10-cv-00715, 2011 WL 3946581, at *1 (N.D. Ill. Sept. 2, 2011) (similar). In particular, Rule
408 is inapplicable when evidence of settlement negotiations is used to show bad faith or a
wrong committed during settlement negotiations. Fed. R. Evid. 408 2006 advisory committee note
(citing Uforma/Shelby Bus. Forms, Inc. v. NLRB, 111 F.3d 1284, 1293 (6th Cir. 1997) (discussing
inapplicability of Rule 408 to suits seeking to vindicate wrongs committed during settlement
discussions); Athey v. Farmers Ins. Exchange, 234 F.3d 357 (8th Cir. 2000) (evidence of
settlement negotiation admissible to show bad faith)).

Thus, even assuming that Vassars allegations involving communications from

Northwesterns Office of General Counsel are otherwise allegations of settlement negotiations, it
appears that the purpose of the allegations is not to show liability for the claims at issue. Rather,
the allegationswhich describe various efforts by Northwesterns Office of General Counsel to
make Johnnie leave the university or revoke or replace his athletic scholarshipappear to

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allege a series of bad acts by Northwestern. (See Compl. 5, 5056, 60.) For example, paragraph
56 of the Complaint mentions a settlement agreement to resolve the scholarship issue, but the
allegation is about how Northwesterns Deputy Director of Athletics tried to get Vassar to sign the
agreement by misrepresenting that Vassars counsel had approved it. (Compl. 56.) Clearly, the
purpose of this allegation is not to show liability by referencing a settlement agreement but rather
to allege Northwesterns bad act in making a misrepresentation to Vassar.1 Rule 408 is therefore
inapplicable. Fed. R. Evid. 408(a); see also Aamco Transmissions, Inc. v. Trovato, No.
11CV1386-WQH-POR, 2011 WL 4549135, at *5 (S.D. Cal. Sept. 28, 2011) (denying motion to
strike because [t]he Complaint alleges that the receipts submitted with the [settlement letter]
were bogus, and this allegation forms part of the basis of the fraud cause of action (internal
citation omitted)).

Relatedly, Rule 408 applies only to settlement communications regarding the claim at
issue in the litigation. It does not prohibit evidence of communications regarding settlement of a
claim different than the one being litigated. Zurich Am. Ins. Co. v. Watts Indus., Inc., 417 F.3d
682, 689 (7th Cir. 2005) (evidence of settlement communications is admissible where the
settlement communications at issue arise out of a dispute distinct from the one for which the
evidence is being offered); Uforma/Shelby Bus. Forms, Inc. v. N.L.R.B., 111 F.3d 1284, 1294
(6th Cir. 1997) (Evidence of the compromise of a claim different than the claim currently in
dispute [] is admissible . . . .). Thus, Rule 408 does not apply here because Vassars allegations
that arguably reference settlement communications do not involve settlement discussions
regarding the claims that are the subject of the Complaint. (See Compl. 42 n.8, 51, 5356, 60.)
Rather, the allegations detail attempts by Northwestern to resolve issues with Vassars athletic
scholarship, all of which Vassar claims played a role in the contract breach and related claims that
are the subject of this litigation.

Finally, it is not at all clear how many of the allegations identified in Northwesterns
motion could even be considered settlement or compromise discussions. Some allegations
identified in the motion do not describe offers or promises, discussions of concessions or
compromise, discussions of potential claims, or negotiations of any kind. For example,
Northwestern seeks to strike the entirety of paragraph 5 of the Complaint, which alleges, among
other things, that Northwestern [b]erated [Vassar], telling him, via the teams head coach . . . that
he sucked at basketball and had no future at the team . . . . [and] [c]alled [Vassar] in to the
athletics offices under the guise that he was to pick up a request to contact form . . . but instead

1
At the very least, it is unclear for what purpose Vassar intends to use the allegations. And given that Rule
408 is not a pleading rule, it would be premature for the Court to strike them now. See Halbrucker v. Waste
Mgmt. of Wis., No. 07-C-0011, 2007 WL 3125276, at *2 (E.D. Wis. Oct. 24, 2007) (denying motion to
strike complaint allegations because [i]t is too early in the proceedings to anticipate how [plaintiff]
intends to use the challenged allegations of settlement negotiations); PTR, Inc. v. Forsythe Racing, Inc.,
No. 08-cv-5517, 2009 WL 1606970, *4 (N.D. Ill. June 9, 2009) (Defendants motion to strike is denied at
this time. We will revisit this issue if and when this case is presented to a jury. Defendants may refile this
motion as a motion in limine at that time.). Northwestern suggests that if the allegations are not stricken
now, Plaintiffs will seek discovery on these issues, which will lead to discovery disputes requiring motion
practice and intervention by the Court. But Federal Rule of Evidence 408 is also not a discovery rule and is
not intended as a discovery privilege. See, e.g., Comput. Assocs. Intl, Inc. v. Am. Fundware, Inc., 831 F.
Supp. 1516, 1531 (D. Colo. 1993).

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pressured him to sign a blank Roster Deletion form. (Compl. 5.) Because those allegations do
not involve settlement discussions in any conceivable way, Rule 408 is inapplicable. See, e.g.,
Rodriguez-Garcia v. Mun. of Caguas, 495 F.3d 1, 12 (1st Cir. 2007) (correspondence that did not
include any concessions or offers to compromise was outside the scope of Rule 408); Venegas v.
Aerotek, Inc., 171 F. Supp. 3d 765, 769 n.3 (N.D. Ill. 2016) (Because these statements by
plaintiffs attorney were made to [defendant] to communicate plaintiffs unwillingness to return to
work, rather than in connection with a potential settlement, Rule 408 does not apply.).

For the foregoing reasons, the Court finds that Vassars allegations are not prohibited or
discouraged by Federal Rule of Evidence 408, and they do not otherwise qualify as redundant,
immaterial, impertinent, or scandalous matter within the meaning of Rule 12(f). Northwesterns
motion to strike is denied.

Dated: September 29, 2017 __________________________

Andrea R. Wood
United States District Judge