# Hewitt v. Pratt Institute

> District Court, E.D. New York · July 2, 2021

URL: https://www.frixlaw.com/law-library/cases/10306549

## Case

- **Court:** District Court, E.D. New York
- **Decided:** July 2, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10306549

## How later opinions describe it (automated extraction)

- holding that university advertisements are not contractually binding

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

JUNA HEWITT and KRISTEN THOMAS MEMORANDUM & ORDER
on behalf of themselves and all others
similarly situated, NOT FOR PUBLICATION

Plaintiffs, 20-cv-2007 (ERK) (SJB)

– against –

PRATT INSTITUTE,

Defendant.

KORMAN, J.:

Plaintiffs are two students at the Pratt Institute, a private university which
focuses on architecture, design, and other artistic programs. Plaintiffs were students
at Pratt during the spring 2020 semester, which began on January 21, 2020. About
two months into the semester, on March 12, 2020, Pratt ended in-person classes in
response to the coronavirus pandemic. Plaintiffs, along with other Pratt students,
continued their semester through online instruction, which was vital to ensure their
health and safety. They allege, however, that Pratt unlawfully retained tuition and
fees in violation of its promise to provide in-person instruction and services. They
assert claims for breach of contract, unjust enrichment, conversion, and money had
and received, all on behalf of a putative class of students who paid spring 2020
tuition and fees and who did not receive a refund. Pratt moves to dismiss the
Amended Complaint in its entirety.

BACKGROUND

Plaintiffs allege that Pratt promised them in-person instruction in a variety of
ways. First, they allege that the spring 2020 course catalog provided that their
courses would be held in person. Am. Compl. ¶ 5. Indeed, plaintiffs allege that the
catalog permitted students to search for classes that were “Not Online,” and thus
clearly differentiated between in-person and online instruction. Id. ¶ 6. Second,
plaintiffs allege that Pratt markets its on-campus experience on its website,

emphasizing the appeal of Pratt’s offerings “inside the studio and classroom” and in
New York City. Id. ¶ 35; see also id. ¶ 36. Plaintiffs claim that Pratt’s remote
offerings during the pandemic did not provide them the “benefit of the bargain” for

which they paid tuition. Id. ¶ 37.
Plaintiffs also allege that they paid various fees for services that could only be
provided in person. Those include fees for ceramics and printmaking courses,
student activities, health services, and similar fees that were allegedly “designed to

cover the costs of in-person experiences.” Id. ¶¶ 17, 19. None of those services
were provided, plaintiffs allege, from the middle of March 2020 through the end of
the semester. Id. ¶ 33.
For the fall 2020 to spring 2021 school year, Pratt reduced its tuition by 7.5%
and canceled several of its student fees for those studying remotely. Id. ¶¶ 38–40.

The reduction in fees alone totaled more than $2,000. Id. ¶¶ 39–40. When
announcing the fee reduction, Pratt explained that it understood “that students who
choose to study 100 percent remotely online will not have the same access to services

as the students who will be on campus,” and thus they would “not be charged the
fees typically associated with on-campus living and instruction.” Id. ¶ 40. Plaintiffs
claim that Pratt thereby admitted that it “recognizes the reduced cost and reduced
benefit of an online education compared to in-person instruction” and that they

should therefore also receive a partial refund for the spring 2020 semester. Id. ¶ 41.
The plaintiffs do not say, however, whether they continued to enroll in Pratt for the
fall 2020 to spring 2021 school year despite knowing that at least some of their

coursework might be provided remotely.
For its part, Pratt emphasizes that the course catalog reserved the right to
“update and otherwise change” any material in the catalog, including course
offerings and other policies and procedures. ECF No. 23-1 at 4.1 Pratt also

1 I may consider the course catalog, which Pratt attached to its motion to
dismiss, because plaintiffs repeatedly refer to it in the complaint and have
therefore incorporated it by reference. Chamberlain v. City of White Plains,
960 F.3d 100, 105 (2d Cir. 2020).
highlights its refund policy, which provides that students are not entitled to refunds
if they seek to withdraw after the third week of the term. ECF No. 23-2 at 1.

In deciding a motion to dismiss under Rule 12(b)(6), the complaint is
construed liberally, all factual allegations are accepted as true, and all reasonable
inferences are drawn in the plaintiffs’ favor. Elias v. Rolling Stone LLC, 872 F.3d

97, 104 (2d Cir. 2017). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
I have jurisdiction over this putative class action under 28 U.S.C. § 1332(d)

because plaintiffs allege that there are at least 100 members of the putative class, the
amount in controversy exceeds $5 million, and at least one putative class member is
a citizen of a different state than defendant.2

DISCUSSION
I. Plaintiffs May Pursue Their Claim for Breach of Contract Solely As
to Fees
The relationship between a student and a university is a matter of contract, the
terms of which are “contained in the university’s bulletins, circulars and regulations

2 Plaintiffs do not allege the non-New York citizenship of any particular class
member, but they do claim that class members are “geographically dispersed
throughout the United States.” Am. Compl. ¶ 48. That suffices for now to
demonstrate minimal diversity. Blockbuster, Inc. v. Galeno, 472 F.3d 53, 59
(2d Cir. 2006).
made available to the student.” Papelino v. Albany Coll. of Pharm. of Union Univ.,
633 F.3d 81, 93 (2d Cir. 2011) (internal quotation omitted). “In general, to sustain a

contract claim against a university, a student must point to a provision that
guarantees certain specified services, not merely to a general statement[] of policy
or to statements of opinion or puffery.” In re Columbia Tuition Refund Action, --- F.

Supp. 3d ---, 2021 WL 790638, at *3 (S.D.N.Y. Feb. 26, 2021) (internal quotations
omitted).
Pratt argues that plaintiffs’ suit is barred at the outset because New York law
prohibits claims of “educational malpractice” or because adjudicating the claims

would otherwise intrude on Pratt’s academic freedom. The doctrine of educational
malpractice bars claims “that the school breached its agreement by failing to provide
an effective education,” on the theory that “courts are an inappropriate forum to test

the efficacy of educational programs and pedagogical methods.” Paladino v.
Adelphi Univ., 89 A.D.2d 85, 89–90 (2d Dep’t 1982).
I agree, however, with the “majority of district courts around the country that
have declined to hold, at least on a motion to dismiss . . . that claims arising from

universities’ adoption of online instruction in response to the Covid-19 pandemic are
barred under the educational malpractice doctrine.” In re Columbia Tuition Refund,
2021 WL 790638, at *6 & n.5 (collecting cases). The core of plaintiffs’ claims is

not that their online education was subpar, but rather that they contracted for a
different form of instruction than they received. See, e.g., Am. Compl. ¶¶ 11–14, 34,
42. To the extent that plaintiffs seek to enforce specific promises made by Pratt,

those claims “are based on provisions of universities’ publications that courts are
well-equipped to interpret according to established contractual interpretation
principles.” In re Columbia Tuition Refund, 2021 WL 790638, at *7. Moreover,

Pratt’s argument that plaintiffs’ claims impinge on its academic freedom rings
particularly hollow with respect to fees paid for student activities or for access to
certain technological or health services.
Plaintiffs have nonetheless failed to demonstrate that Pratt breached a promise

to provide in-person instruction, and they are therefore unable to recoup tuition for
the period of remote instruction. Plaintiffs point to promises that are either too
general or too caveated to sustain a claim for breach of contract. Plaintiffs allege,

for example, that the spring 2020 course catalog said that their courses would be
provided on campus, and indeed that the catalog allowed students to search for
courses that were “Not Online.” Am. Compl. ¶¶ 5–6. But Pratt’s catalog caveated
that statement with a reservation of “the right to periodically update and otherwise

change any material, including faculty listings, course offerings, policies, and
procedures[.]” ECF No. 23-1 at 4.3 In light of “the broad scope of this disclaimer,”
plaintiffs cannot plausibly allege that Pratt breached its contract in violation of the

catalog’s statement that certain classes would be held in person. Romankow v. N.Y.
Univ., 2021 WL 1565616, at *4 (S.D.N.Y. Apr. 21, 2021); see also Prusack v. State,
117 A.D.2d 729, 730 (2d Dep’t 1986).4

The remaining statements upon which plaintiffs rely do not advance their
cause. First, plaintiffs allege that Pratt’s policies require “[a]ttendance of all class
meetings,” but that policy does not mandate in-person attendance. Am. Compl. ¶ 7
(emphasis in original). “Regular class attendance is possible during both in-person

and virtual instruction.” Goldberg v. Pace Univ., --- F. Supp. 3d ---, 2021 WL
1565352, at *8 (S.D.N.Y. Apr. 21, 2021) (internal quotation and alteration omitted).
Plaintiffs also allege that Pratt’s website “markets” its on-campus experience

to prospective students. Am. Compl. ¶ 35. That website trumpets that Pratt students
work “inside the studio and classroom, and out in the world,” emphasizing its

3 In its memorandum of law, Pratt misquotes this language as reserving the right
to update “faculty listings of course locations.” ECF No. 23 at 4, 18 (emphasis
added).
4 Pratt is wrong to argue, however, that its course withdrawal policy defeats
plaintiffs’ claims. That policy provides that tuition may not be refunded if a
student seeks to withdraw after the twenty-second day of the term. ECF No.
23-2 at 1. The crux of plaintiffs’ argument is not that they should have been
able to withdraw from Pratt when the pandemic arrived, but rather that they
no longer received the same form of instruction for which they had contracted.
location in New York and that its campus provides “a full array of services, programs
and activities right here.” Id. Likewise, plaintiffs point to another Pratt webpage

highlighting its school of design and its renovated buildings, along with a quotation
from the building’s benefactor that the renovations will “promote the adaptability
and resourcefulness that Pratt’s students will need in a world in which the lines

between disciplines are quickly fading.” Id. ¶ 36. These statements are largely
“‘opinion or puffery’ that [are] ‘too vague to be enforced as a contract.’” In re
Columbia Tuition Refund, 2021 WL 790638, at *4 (quoting Bader v. Siegel, 238
A.D.2d 272, 272 (1st Dep’t 1997)); see also Morales v. N.Y. Univ., 2021 WL

1026165, at *1 n.1 (S.D.N.Y. Mar. 17, 2021). They speak in such glowing terms that
students could not reasonably rely upon them as promises of in-person instruction.
They are best understood as advertisements “intended to inform potential students

of available amenities” but not as a “contractually-enforceable promise to provide
them irrespective of changing or unanticipated circumstances.” Espejo v. Cornell
Univ., --- F. Supp. 3d ---, 2021 WL 810159, at *4 (N.D.N.Y. Mar. 3, 2021) (emphasis
in original) (internal quotation omitted); see also Vought v. Teachers Coll., 127

A.D.2d 654, 654–55 (2d Dep’t 1987) (holding that university advertisements are not
contractually binding).
While plaintiffs have not adequately alleged a claim for breach of contract as

to in-person instruction, their pleadings are sufficient with respect to the fees they
paid for in-person services. Those include fees for participation in ceramics,
sculpture, and printmaking courses, along with “other technical arts programs.” Am.

Compl. ¶ 30. They also include fees that students paid for use of campus facilities,
health services, technology, and student activities. Id. ¶ 39.5 Indeed, plaintiffs allege
that Pratt has admitted that these fees were paid for in-person services. For the fall

2020 to spring 2021 academic year, Pratt did not charge these fees to students who
were taking courses remotely. Id. ¶¶ 38–40. When making that announcement, Pratt
told the student body:
Whether a student chooses to take classes 100 percent remotely, face-to-face,
or a combination, plenty of opportunities to engage with faculty and fellow
students will be provided.

We recognize, however, that students who choose to study 100 percent
remotely online will not have the same access to services as the students who
will be on campus. Therefore, in addition to the tuition, room, and board
freeze, students who study 100 percent remotely will not be charged the
fees typically associated with on-campus living and instruction.

Id. ¶ 40 (emphasis added). Taken together, plaintiffs have plausibly alleged that they
paid fees in spring 2020 for services that could only be provided in person. As courts
in this circuit have explained, those allegations suffice to state a claim for breach of
contract when the school no longer provided those services come March 2020. In
re Columbia Tuition Refund, 2021 WL 790638, at *6, 8; Goldberg, 2021 WL

5 See also https://catalog.pratt.edu/undergraduate/tuition-fees/#feestext.
1565352, at *10–11; Hassan v. Fordham Univ., 2021 WL 1263136, at *3 (S.D.N.Y.
Apr. 6, 2021); Espejo, 2021 WL 810159, at *7; Bergerson v. Rochester Inst. of Tech.,

2020 WL 7486682, at *8 (W.D.N.Y. 18, 2020).
II. Plaintiffs’ Non-Contractual Claims Fail
Plaintiffs’ remaining claims lack merit. Their unjust enrichment claim
requires a showing that “equity and good conscience require restitution.” Kaye v.

Grossman, 202 F.3d 611, 616 (2d Cir. 2000) (internal quotation omitted). It is quite
implausible to view Pratt’s suspension of in-person instruction as inequitable. “On
the contrary, on the facts alleged, there were compelling—indeed, compulsory—

reasons for [Pratt’s] abrupt move to online learning.” Goldberg, 2021 WL 1565352,
at *12. As plaintiffs acknowledge, Pratt suspended in-person classes “because of the
global Covid-19 pandemic.” Am. Compl. ¶ 9 (emphasis added). That was
undoubtedly the right thing to do, and plaintiffs do not plausibly allege that Pratt was

enriched as a result. See Hassan v. Fordham Univ., 2021 WL 293255, at *10–11
(S.D.N.Y. Jan. 28, 2021). To the contrary, it seems likely that Pratt incurred
additional costs to transform its educational offerings so swiftly to an online format,

in addition to all its other fixed costs. Plaintiffs, who had already enjoyed half their
semester in person, continued to receive an education and credits toward their
degrees. “On the facts pled, this is not close to a case in which ‘equity and good
conscience’ require restitution.” Goldberg, 2021 WL 1565352, at *12.
The unjust enrichment claim fails for the additional reason that under New
York law, “a party may not recover in . . . unjust enrichment where the parties have

entered into a contract that governs the subject matter.” Cox v. NAP Constr. Co.,
Inc., 10 N.Y.3d 592, 607 (2008); accord Rabin v. Mony Life Ins. Co., 387 F. App’x
36, 42 (2d Cir. 2010). Plaintiffs’ relationship with Pratt—and the alleged harm

plaintiffs faced—is governed by a contract, and the unjust enrichment claim is
therefore dismissed. See In re Columbia Tuition Refund, 2021 WL 790638, at *9
(collecting cases). The same is true of plaintiffs’ claim for money had and received,
which “lies only in the absence of an agreement.” Galopy Corp. Int’l N.V. v.

Deutsche Bank, A.G., 150 A.D.3d 416, 417 (1st Dep’t 2017).
Finally, plaintiffs’ conversion claim fails for multiple reasons. Plaintiffs did
not respond to Pratt’s arguments for dismissal of this claim, and they have therefore

abandoned it. Malik v. City of N.Y., 841 F. App’x 281, 284 (2d Cir. 2021); see also
Yu v. U.S. Dep’t of Transp., 440 F. Supp. 3d 183, 196 (E.D.N.Y. 2020) (collecting
cases). In any event, plaintiffs’ conversion claim is “predicated on a mere breach of
contract” and therefore fails as duplicative. In re Columbia Tuition Refund Action,

2021 WL 790638, at *9 (quoting Jeffers v. Am. Univ. of Antigua, 125 A.D.3d 440,
443 (1st Dep’t 2015)).
CONCLUSION
The motion to dismiss is granted in part and denied in part. Pratt shall answer

the Amended Complaint within fourteen days. Fed. R. Civ. P. 12(a)(4)(A).

SO ORDERED.

Brooklyn, New York Edward R. Korman
July 2, 2021 United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10306549. Public record. Not legal advice.