Part 2 – Slowing the Spread of Litigation: An Update on First Circuit COVID-19 Tuition Refund Class Actions
Part 2: The Legal Backdrop
In Part 1 of this series, we provided a brief overview and introduction of the Boston-based COVID-19 tuition refund class action cases, noting generally that most similar suits haven’t made it very far, as courts tend to rule early and often for the educational institution. Below is a brief discussion of some common pitfalls that have repeatedly plagued this type of litigation.
Framing the Case
One threshold hurdle is that COVID-19 tuition reimbursement cases against public colleges and universities are often dismissed in the earliest stages of litigation under sovereign immunity, leaving cases against private institutions with the most possibility for advancement. Even in those cases, however, courts often find that plaintiffs’ claims are not properly framed. For example, although some states permit claims for educational malpractice, plaintiffs often run into problems in attempting to establish a basis on which to evaluate the quality of services provided by the educational institution. To avoid this pitfall, some plaintiffs instead assert claims for breach of contract (and often unjust enrichment). However, courts are skeptical of cases relying on an alleged diminished quality of instruction inherent in online learning as the basis for the breach of contract. In these instances, courts find for the educational institution and dismiss the case outright unless plaintiffs can establish at least one of two theories: (1) that the university “failed in some fundamental respect, as by not offering any of the courses necessary to obtain certification in a particular field” or (2) where it is clear that the institution “failed to fulfill a specific contractual promise distinct from any overall obligation to offer a reasonable program.” Gupta v. New Britain Gen. Hosp. (Conn. 1996).
Demonstrating the first theory is often much more straightforward – for example, where a student enrolls in and pays for a university course but the promised set of instructional hours were not provided, or where an institution stops offering courses necessary to obtain certification or degree in a particular field. In these cases, the issue is not about the quality of education, but whether the education promised was offered at all. See e.g., Wickstrom v. N. Idaho Coll. (Idaho 1986); Ross v. Creighton U. (7th Cir. 1992).
For the second theory, making the case for the existence of a specific contractual promise, particularly one regarding in-person instruction, is more of a challenge. “In Massachusetts, statements in ‘handbooks, policy manuals, brochures, catalogs, advertisements, and other promotional materials can form the basis of a valid contract.’” Rinsky v. Trs. of Bos. Univ. (D. Mass. 2010). In turn, COVID-19 tuition refund cases based on breach of a specific contractual promise hinge on the precise language and representations made by the institution regarding in-person instruction and access to facilities and the reasonable expectations of what the university should expect the student to understand from it.
Even where such cases do proceed, many lose their muster when a university successfully argues for denial of plaintiffs’ attempts to pursue their cases as class actions. In some instances, universities argue that state passage of COVID-specific legislation precludes relief on behalf of a putative class due to contractual loss or damages arising from COVID-19. In other cases, denial of class certification is based on a finding that the plaintiff had not demonstrated sufficient commonality with the proposed class, that the claims were not typical of the average class member, and that individualized issues predominated.
In October 2022, the U.S. District Court denied plaintiffs’ motion for class certification in the case against Suffolk University. The court found that the two plaintiffs were typical and adequate representatives and that common issues as to liability would predominate over individualized issues, noting specifically that “individualized issues such as what programs individuals are enrolled in are also of no consequence, since the general question is whether the contract for in-person education exists and was breached; that question exists and is the same for every student regardless of program.” However, the court determined that class adjudication “is simply not superior to individual or aggregate litigation as a practical matter,” even gaming out a number of available alternative paths for the litigation, eventually concluding that class action treatment is neither “superior or more just than the available alternatives.”
And just last week on May 17, the U.S. District Court in Omori v. Brandeis Univ. denied a request to certify the case as a class action. The University had argued that there were too many variables to establish a class, one of which was that there was no way to determine financial loss. U.S. District Judge Nathaniel Gorton found that the damages model proposed by the plaintiff-students left too many questions, writing that “[b]ecause the actual value of online, post-COVID education in spring 2020 is indeterminable and there is no damages model applicable class-wide, individual issues prevent a finding of superiority” such that a class “would not be a more fair and efficient method of adjudicating this controversy.”
In Part 3, we will review the BU and Suffolk cases in more detail, including the specific arguments made by the parties in their fee and tuition-based claims, and discuss key takeaways for these types of cases going forward.