Antitrust Law Daily Wrap Up, ANTITRUST—N.D. Ill.: Elite universities fail to have four questions certified for interlocutory appeal, (Jun 26, 2026)

By Justin Marcus Smith, J.D.

None of the questions presented a substantial ground for a difference of opinion, and, in any event, an interlocutory appeal would not have advanced termination of the case.

Elite universities defending the antitrust class action brought by need-based financial aid recipients did not have strong grounds for seeking interlocutory appeal on four questions about the discovery rule in antitrust cases, the plaintiffs’ injury, and interpretation of the now-defunct “568 exemption” to antitrust liability in need-blind admissions, ruled the federal district court in Chicago. First, the court noted the applicability of the discovery rule in antitrust cases is settled law. Second, the court also did not find a substantial ground for a difference of opinion about whether parents were injured rather than the students. Third, the plain text of the “568 exemption” meant that all institutions participating in an agreement must be need-blind for the exemption to apply to any of them. Again, there was no substantial ground for a difference of opinion, and the court also found the third question very untimely because plaintiffs did not question an identical ruling at the dismissal stage. Fourth, the definition of “need-blind” was plain. There was no substantial ground for a difference of opinion. All of that aside, the court found a favorable ruling for the defendants would have delayed termination of this 5-year-old case and completely disrupted the trial schedule set nearly a year ago. In sum, the court declined to certify any of the four questions for interlocutory appeal under 28 U.S.C. § 1292(b) (Corzo v. Brown University, No. 1:22-cv-00125 (N.D. Ill. Jun. 25, 2026)).

Background. Current and former students who sued 17 universities complained that the schools’ common financial-aid methodology, developed through the 568 Presidents Group, constituted a horizontal price-fixing conspiracy under Section 1 of the Sherman Act. Twelve of the 17 schools settled for a court-approved total of $319.5 million, while claims against the remaining schools continued after the court denied competing motions for summary judgment.

On June 1, 2026, the court certified a class after finding that newly proposed lead counsel had cured earlier adequacy concerns. Meanwhile, in January and April, the schools filed two motions asking the court to certify questions for interlocutory appeal under 28 U.S.C. § 1292(b). The first motion asked the court to certify two questions from the court’s January 12, 2026 denial of the schools’ motion for summary judgment: (1) whether the discovery rule applied to the limitations period of the plaintiffs’ antitrust claim; and (2) whether the plaintiffs had shown antitrust injury.

The second motion asked to certify two more questions about the same January 12 summary judgment ruling, both involving the “need-blind” terms of the “section 568 exemption,” enacted in 1994, now defunct. See Improving America's Schools Act of 1994, Pub. L. No. 103-382, § 568(a), 108 Stat. 3518, 4060 (1994). In the context of students admitted on a need-blind basis, the exemption provided a temporary exemption to (1) agree or attempt to agree on the award of financial aid only on the basis of demonstrated financial need; (2) to use common principles of analysis for determining need; (3) to use a common aid application form as long as the agreement to do so did not restrict institutions from asking for additional data; or (4) to exchange information about financial need through an independent third party before awarding need-based aid.

The first “section 568 exemption” question submitted for interlocutory certification was whether all participating institutions must be need blind. The second involved the definition of “need-blind” for purposes of the exemption. On these latter two questions, the court of appeals rebuffed the defendants attempt to take an interlocutory appeal without a section 1292(b) certification. The court had previously tabled the section 1292(b) motions while addressing the plaintiffs’ motion for class certification, but it turned to them now.

Discovery rule. The defendants sought interlocutory review of the applicability of the discovery rule in antitrust cases, and, apparently, the way the court applied it here, but the court declined to certify for review.

In their motion for summary judgment, the defendants had contended, among other things, that the plaintiffs had not filed suit within the four-year limitations period for federal antitrust claims. The court concluded at that juncture that the “discovery rule” might apply, but it could not resolve questions of fact about what reasonable plaintiffs knew or should have known.

The court reasoned that the applicability of the discovery rule in antitrust cases is settled law in the Seventh Circuit. There is no substantial difference of opinion about it within the meaning of section 1292(b). All of the cases the court cited earlier confirm that the discovery rule applies in antitrust cases.

Neither of the two Supreme Court decisions the defendants cited involved the antitrust statute of limitations. One involved the Fair Debt Collection Practices Act. The other was likewise not an antitrust case. It addressed whether the government can invoke the discovery rule in enforcement actions by the Securities and Exchange Commission, an entirely different question than the one here. Moreover, the Seventh Circuit applied the discovery rule in a civil antitrust case after those two decisions. The court reasoned further there was no chance that the Seventh Circuit would “jettison” its established precedent.

As for how the court applied the discovery rule, and whether that ought to be certified for interlocutory appeal, the defendants contended the court created a special application of the discovery rule for complex antitrust cases. The court responded, “That’s false.” The court said it certainly considered the complexity of what a reasonable plaintiff would have to assess in ascertaining injury and the cause of it, but that did not amount to a special rule for complex cases. In any event, the assessment of the facts at summary judgment was highly “fact-bound,” not a question of law subject to section 1292(b) certification. This question also did not meet the standard for certification.

The court also noted there was no need to resort to the discovery rule to avoid the statute of limitations for the significant part of the class that alleged injury within four years of the complaint filing date. The ruling the defendants wanted would not have prevented a trial, so allowing an interlocutory appeal on the limitations issues would not materially advance the termination of the litigation, as required under section 1292(b).

Antitrust injury. The court did not find a substantial ground for a difference of opinion about who was allegedly injured. The court previously overruled the defendants’ contention that the plaintiffs could not show antitrust injury because their parents paid their tuition. The court reasoned, then, that the students were the ones legally obligated to pay the schools. The ultimate source of the payment money was immaterial. The defendants did not cite to any case law to the contrary. The court said mere disagreement with a ruling is not a ground for interlocutory appeal under section 1292(b).

“568 exemption” questions. The court ruled the first “568 exemption” question, whether all institutions must admit need-blind to perfect the exemption for any one of them, was both untimely and did not present any substantial ground for a difference of opinion.

The court explained that it already answered this question in the affirmative at summary judgment: all institutions must admit need-blind for any participating institution to benefit from the exemption. This was the same ruling the court made more than three years earlier at the dismissal stage. It involved statutory interpretation, and nothing changed at summary judgment, yet the defendants did not seek section 1292(b) certification in 2022.

Timeliness aside, the court said it could see the plain language of the statute: the exemption only protects an agreement between 2 or more institutions, all of which admit need-blind. The defendants’ interpretation that an institution is protected as long as it admits need-blind demanded a re-write, but in the antitrust context, the courts must construe exemptions strictly.

The second “568 exemption” question involved the statutory definition of “need blind.” The defendants proposed that a court must determine whether engaging in “wealth favoritism,” by considering the capacity of the student’s family to donate, means that the institution is not “need-blind.” In arguing for summary judgment, the defendants construed “need-blind” to mean merely that the school does not disadvantage applicants for seeking financial aid or information in their financial aid application. The court concluded, then, that this reading was contrary to the statutory text. The definition of “need-blind” was express. It meant “without regard to the financial circumstances of the student involved or the student’s family.” § 568(c)(1) (emphasis added). The court concluded that providing preferential treatment to an applicant with a wealthy background was not “need-blind” because it was not admitting without regard to financial circumstances. The defendants relied on the legislative history, but the court said that same history expressly stated it was “not elaborating.”

In their motion for certification, the defendants repeated their summary judgment arguments with some elaboration, but they cited no contrary authority. Interpretation of the now-defunct exemption might involve a question of first impression, but in a separate matter, the court opined that would not be enough to make section 1292(b) certification appropriate. The need for a re-write of the statute to satisfy the defendants did not involve a “substantial ground for difference of opinion” warranting certification.

Advancement of termination. The court added that a favorable ruling on the defendants’ questions would not have materially advanced the ultimate termination of the litigation because it would not have avoided trial. The more significant point was that certification and a resulting interlocutory appeal would have disrupted the trial schedule for many months or longer. The November 2, 2026 trial date was set almost a year ago in July 2025, and the case was already pending for over 5 years. The court noted the trial will deal with at least some of the questions presented, and all questions would have a more complete factual context at and after trial. An interlocutory appeal would only delay appeal of a final judgment.

The Case is No. 1:22-cv-00125.

Judge: Kennelly, M.

Attorneys: Devin [Velvel] Freedman (Freedman Normand Friedland LLP) for Andrew Corzo. Kenneth Michael Kliebard (Morgan Lewis & Bockius LLP) for Brown University.

Companies: Brown University

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