Anticipatory suit doctrine is not applied in a uniform fashion by every court. Facts that support the application of the doctrine would include the moronic "we are going to sue you on Friday" statement. Facts that hurt their argument include the evidence that the "forum" clause was struck out of the agreement (thus UM's suit is not based solely on some effort to circumvent the bounds of the agreement).
If I were representing UM, I would emphasize the connection between all of ASU's negative statements about UM and our efforts to prepare for the hurricane, and our subsequent desire to gain clarity over the contract, particularly force majeure. I would also emphasize that the date given by ASU was not something contractual (i.e., we were not required to announce a rescheduling by that particular date) and that we viewed their "deadline" as something theatrical, and not as an absolute date by which ASU had to (or was actually going to) file a lawsuit, particularly if their threats were verbal and were never committed to a formal demand letter. Finally, I would point out that UM did not take advantage of any negotiating efforts or any other delay in order to file our lawsuit in bad faith (i.e., while the other side was "playing nice", we took advantage to file our lawsuit first).
There is enough space between their CONTRACTUAL claims (i.e., we should have to reschedule them in the next year or two) and OUR contractual claims (we should be excused under force majeure) that it is entirely possible that ASU loses on that point alone. There are legit reasons why you would bring a "hurricane allows escape under force majeure" case in Dade County, and not in Shawshank, Arkansas.
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