Two students who were enrolled as full-time undergraduate at the Brandeis University in the Spring 2020 – like many others in the USA – filed suit against their university (a private educational institution) challenging its decision to retain the full tuition and fees collected from students from the Spring 2020 semester despite closing its on-campus facilities and transitioning from in-person to online learning.

Namely, they alleged that the University’s failure to reimburse students for a purported tuition differential between in-person and online education, as well as for certain fees, constituted breach of contract, at least implied, and unjust enrichment. Indeed, prior to the pandemic, Brandeis provided its students with such an on-campus, in-person educational experience and offered a few online courses only for graduate students.

The University filed a motion for summary judgment, asking the District Court to dismiss all plaintiffs’ complaints. By judgment of 18 October 2022, the Court upheld in part and denied in part such motion. More precisely, it concluded that the case presented a genuine dispute of material fact for a jury to resolve with respect to the breach of implied contract complaint in relation to tuition and a particular kind of fees (so-called studio fees). Indeed, it found that the contract entered to between plaintiffs (the students) and defendant (the university) did not expressly regulate an occurrence such as the pandemic and its wording did not preclude an implied right to in-person education; this was all the more so considering that the university offered both in-person and online graduate programs, but only in-person undergraduate programs: this “could allow a jury to infer that Brandeis reasonably expected plaintiffs (both undergraduates) had paid tuition in exchange for in-person instruction”, the Court held.

In reply to the defendant’s contention that, in any case, the plaintiffs would have been unable to prove damages for the breach of contract they alleged, the Court highlighted that there were many ways plaintiffs could manage to show damages; “plaintiffs may be able to calculate a difference in value [between courses offered by Brandeis in-person versus online] based upon the relative cost of those graduate degrees that were offered both in-person and online. . . . [and] apply that differential to the undergraduate program in which they participated”. In any event, the Court cautioned plaintiffs that “any purported difference in value between the performance allegedly promised and the performance actually rendered must be supported by objective evidence”.

Following the judgment of the District Court, plaintiffs filed a motion for class certification within the same Court. However, by judgment of 16 May 2023, the Court denied this motion. Preliminary, it recalled that in order for a class to get certification, it is required “that common questions of law or fact "predominate" over those affecting individual class members and that a class action be the "superior" method for fair and efficient adjudication”. It further held that plaintiffs had been unable to determine an actual value of the education the University provided during the Spring 2020 semester to be applied class wide. In the Court’s view, such failure “would lead to countless questions about individual class members, the particular courses in which they were enrolled, the conduct of those courses post-Covid and which, if any, online courses offered pre-Covid were suitable comparisons. Such issues would predominate over common ones”. Since plaintiffs’ proposed class failed to satisfy the predominance requirement, the Court could not allow certification.

Reference: Omori v. Brandeis Univ., District Court of Massachusetts, 16 May 2023.

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