# In re: Suffolk University COVID Refund Litigation

> District Court, D. Massachusetts · July 13, 2022

URL: https://www.frixlaw.com/law-library/cases/10200360

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** July 13, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

)
IN RE: SUFFOLK UNIVERSITY COVID )
REFUND LITIGATION )
)
)
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10200360. Public record. Not legal advice.