In re: Suffolk University COVID Refund Litigation

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

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IN RE: SUFFOLK UNIVERSITY COVID )

REFUND LITIGATION )

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THIS DOCUMENT RELATES TO: ALL )

ACTIONS ) CIVIL ACTION

) NO. 20-10985-WGY

YOUNG, D.J. July 13, 2022

ORDER

In two putative class actions, Julia Durbeck (“Durbeck”),

Anna Francesca Foti, and Mary Anne Foti (the “Fotis”)

(collectively, the “Plaintiffs”) sued Suffolk University

(“Suffolk”) claiming breach of an implied contract and unjust

enrichment due to Suffolk’s transition to a fully online program

in light of the COVID-19 Pandemic. Pl.’s Am. Class Action

Compl. & Demand Jury Trial (“Durbeck’s Am. Compl.”) ¶¶ 69-171,

ECF No. 20 (Civil Action No. 20-10985-WGY); First Am. Class

Action Compl. & Demand Jury Trial (“Fotis’ Am. Compl.”) ¶¶ 62-

84, ECF No. 6 (Civil Action No. 20-11581-WGY). The Plaintiffs’

claims can be grouped into two general categories: (1) claims

based on students’ payment of tuition (“tuition-based claims”);

and (2) claims based on the students’ payment of academic fees

(“fee-based claims”). See generally Durbeck’s Am. Compl.;

Fotis’ Am. Compl. In the fall of 2020, Suffolk moved to dismiss

these class actions for failure to state a claim pursuant to

Federal Rule of Civil Procedure 12(b)(6); this Court denied both

motions. See Def. Suffolk’s Mot. Dismiss, ECF No. 25 (Civil

Action No. 20-10985-WGY); Def. Suffolk’s Mot. Dismiss First Am.

Compl., ECF No. 16 (Civil Action No. 20-11581-WGY); Durbeck v.

Suffolk Univ., 547 F. Supp. 3d 133, 139 (D. Mass. 2021). These

cases were consolidated on August 24, 2021. See Electronic

Order, ECF No. 83 (Civil Action No. 20-10985-WGY).1

Currently before the Court is Suffolk’s motion for summary

judgment. See Def. Suffolk Mot. Summ. J., ECF No. 119. At a

hearing held on June 29, 2022, this Court GRANTED in part

Suffolk’s motion for summary judgment and took the remainder of

the motion under advisement. See Electronic Clerk’s Notes, ECF

No. 143.

This Court granted Suffolk’s motion only as to the fee-

based claims (counts III and IV of Durbeck’s Complaint and the

fee-based portions of counts I and II of the Fotis’ Complaint),

see Durbeck’s Am. Compl. ¶¶ 144-171; Fotis’ Am. Compl. ¶¶ 64,

68, 70, 73-75, 79, 83. The Court concluded that there was no

genuine dispute of material fact that these fees did not mention

1 All references to the record hereinafter cite to Civil

Action No. 20-10985-WGY, the lead case.

-- in general or specific terms -– any connection to an in-

person educational experience.

This Court took under advisement the portion of the motion

for summary judgment targeting the Plaintiffs’ tuition-based

claims. At the hearing, counsel for Suffolk argued that two new

pieces of the record demonstrated the need for summary judgment:

(1) the Acknowledgment of Debt Terms and Conditions

(“Acknowledgment”) and the Tuition Refund Schedule, which

counsel claimed prevent the existence of an implied contract;

and (2) the fact that online courses and in-person courses in

Suffolk’s in-person undergraduate program are priced the same

per credit, which counsel purported precludes Plaintiffs from

establishing damages. This Court considers each briefly.

First, the Acknowledgement, which undergraduate students

sign, states that students have an obligation to pay “tuition,

room and board (if applicable), and other applicable fees by the

due date” and that the student will be required to pay “all or a

portion of the tuition and fees” even if they drop out or

withdraw from Suffolk, in accordance with the Tuition Refund

Schedule. Statement Undisputed Material Facts Supp. Def.

Suffolk’s Mot. Summ. J. (“Def.’s Facts”) ¶¶ 21-23, ECF No. 121;

Pls.’ Resp. Def.’s Statement Undisputed Material Facts &

Counter-Statement Facts (“Pls.’ Facts”) ¶¶ 21-23, ECF No. 127.

This agreement does not defeat the Plaintiffs’ tuition-based

claims. The Acknowledgment does not constitute a fully

integrated contract covering the same subject matter as the

purported implied contract –- what students are entitled to in

the event of an unforeseen campus closure. See Starr v.

Fordham, 420 Mass. 178, 188 n.8 (1995) (“A fully integrated

agreement is a statement which the parties have adopted as a

complete and exclusive expression of their agreement.”); Latham

v. Homecomings Fin. LLC, 27 Mass. L. Rep. 3, 12 (2009) (“Where a

writing shows on its face that it contains all the essential

terms that are necessary to constitute a contract, it is

presumed that the parties intended it to be a complete and final

statement of the whole transaction.”). Suffolk’s reliance on

Zhao v. CIEE Inc. is misplaced; there, the First Circuit dealt

with an agreement that explicitly contemplated “factors beyond

[the School’s] control,” unlike the Acknowledgment in the case

at bar. 3 F.4th 1, 5 (1st Cir. 2021).

Second, it is undisputed that Suffolk charges the same

price for its online courses as it does for its in-person

courses in its in-person undergraduate program. Def.’s Facts ¶

38; Pls.’ Facts ¶ 38. Students who attend online courses in

Suffolk’s in-person undergraduate program, however, still have

access to in-person facilities and experiences because, as

counsel emphasized at hearing, Suffolk does not have an online

undergraduate program; therefore, presumably the cost of these

in-person services is included in the course price regardless

whether it is delivered online or in-person.

This fact raises concerns that calculating damages for

these claims would run afoul of the educational malpractice bar.

See Durbeck, 547 F. Supp. 3d 133, 139 (D. Mass. 2021) (defining

educational malpractice claims as requiring the judiciary to

define the sufficiency or quality of an educational program).

Therefore, the Plaintiffs’ tuition-based claims are only allowed

to proceed to damages calculation insofar as the Plaintiffs can

demonstrate at trial either: (1) that Suffolk has a particular

method for calculating the cost difference between its online

and in-person programs and apply that method of calculation to

the in-person undergraduate program; or (2) that a consistent

cost differential –- either across school years or across

programs –- exists between the online and in-person versions of

Suffolk’s other educational programs (such as the MBA) and apply

that differential to the in-person undergraduate program. After

all, there is only one Suffolk University in downtown Boston.

For example, the Plaintiffs allege, and Suffolk does not

rebut, that there was a twenty-three percent cost difference

between Suffolk’s online and in-person MBA programs during the

2019-2020 school year. See Pls.’ Facts ¶ 73 (the in-person MBA

costed $1,519 per credit and the online MBA costed $1,171 per

credit). One possible method of calculation -- should the

Plaintiffs be able to demonstrate its appropriateness -- would

be to use a twenty-three percent reduction in value for the

portion of Suffolk’s undergraduate program that was conducted

online. Importantly, Plaintiffs will not be permitted to

utilize market-value data of sister programs at other

institutions to demonstrate this cost difference.

In its summary judgment briefing, Suffolk also raises

several other objections to the Plaintiffs’ implied contract and

unjust enrichment claims -- including the issue of disclaimers,

the doctrine of impossibility, and the viability of unjust

enrichment claims at the class action stage. See Def. Suffolk’s

Mem. Law Supp. Mot. Summ. J. 8-20, ECF No. 120. These, and

other objections raised by Suffolk in briefing, are unpersuasive

on the summary judgment record.

Accordingly, this Court DENIES the remainder of Suffolk’s

motion for summary judgment as to Plaintiffs’ tuition-based

implied contract and unjust enrichment claims (counts I & II of

Durbeck’s Complaint and portions of counts I & II of the Fotis’

Complaint).

SO ORDERED.

/s/ William G. Young

WILLIAM G. YOUNG

DISTRICT JUDGE