“Because of the requirement of reliance, a claim of negligent misrepresentation will not be successful where the plaintiff took the action which caused the damage before hearing the alleged misrepresentation . . . .”
How later courts described this case
- “Because of the requirement of reliance, a claim of negligent misrepresentation will not be successful where the plaintiff took the action which caused the damage before hearing the alleged misrepresentation . . . .”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JEANIE RHOADS, )
)
Plaintiff, )
v. ) Case No. 4:22-cv-01196-SEP
)
WEBSTER UNIVERSITY, )
)
Defendant. MEMORANDU)M AND ORDER
Before the Court are Defendant’s Motion for Summary Judgment, Doc. [72], and
Plaintiff’s Motion for Leave to File Certain Documents Under Seal, Doc. [78]. For the
reasons set forth below, Defendant’s motion is denied in part, but Plaintiff must show cause
why it should not be granted as to certain allegations made under Count I. Plaintiff’s
sealing motion is denied.
FACTS AND BACKGROUND1
Plaintiff Jeanie Rhoads brings this action against Defendant Webster University,
alleging that the University made “certain fraudulent misrepresentations and/or material
omissions to Plaintiff and others, regarding the online master’s in counseling program and
its [Council for Accreditation of Counseling and Related Educational Programs]
accreditation status.” Doc. [39-1] ¶ 27.
The University offers a Master of Arts in Counseling with an Emphasis in Clinical
Mental Health Counseling (“CMHC Program”) at the University’s main campus in Webster
Groves, Missouri, and the University’s campuses in Myrtle Beach, Charleston, and Columbia,
South Carolina (“South Carolina Campuses”). Doc. [76] ¶ 4. The CMHC Programs hold a
Id
specialty accreditation through the Council for the Accreditation of Counseling and Related
Educational Programs (“CACREP”). . ¶ 5. In 2019, the University sought to add an online
Id
Clinical Mental Health Counseling Program (“Hybrid Program”) to its already CACREP
accredited South Carolina Campuses. . ¶ 7. Dr. Muthoni Musangali, the Chair of the
1
Id
Counseling Department at that time, led the University’s efforts to secure CACREP for the
Seeid
Hybrid Program. . ¶ 8. One way for a university to get CACREP accreditation for a new
program involves submitting a “Substantive Change Report” for CACREP’s approval. .
Seeid
¶ 11. Another way to get CACREP accreditation for a new program requires undergoing a
“self-study,” a more comprehensive process takes roughly one and a half years. . ¶ 38.
Dr. Musangali engaged with CACREP’s then-Assistant Director of Accreditation,
Kevin Connell, who recommended that the University submit a “Substantive Change
Id
Report” to add the online modality to the already accredited South Carolina CMHC
Id
Program. . ¶¶ 9-10. Dr. Musangali followed Connell’s recommendation and submitted a
Substantive Change Report on June 1, 2020. . ¶ 11. On August 21, 2020, CACREP sent Dr.
Id
Musangali a letter stating that the University’s request had been “approved with
conditions.” . ¶ 12. The University was directed to submit a follow-up Substantive
Id
Change Report by November 15, 2020, addressing certain issues related to CACREP policy.
. ¶ 13.
After receiving the letter, Dr. Musangali sent an email to the Vice President of
Accreditation and Training at CACREP, Dr. Robert Urofsky, asking him to con�irm that the
University could “proceed to advertise and recruit for [the] program as CACREP-
accredited.” Docs. [79-2] at 1; [77-2] at 6. The next day, Dr. Musangali sent Director of
Graduate Admissions Sarah Nandor and Graduate Admissions Counselor Wonjee Beh the
following email:
Hello. I have some great news. I was going to share this with you both yesterday
but was waiting on con�irmation from CACREP that we can now call our program
CACREP-accredited. I have not heard back from them but am con�ident that this
letter means that. The conditions stated here are easy to satisfy and am certain we
will get this approved with out conditions. This is excellent news for us. I know
Dean Wallner is already working with our marketing of�ice to get the news out.
Thank you both for all your support.
Doc. [79-3] at 4. Dr. Musangali also sent an email to the Counseling Department faculty and
staff stating, in relevant part:
Colleagues-
I have some wonderful news!
The Substantive Change for the Hybrid Program is approved. I emailed Robert
Urofsky yesterday to con�irm that we can now describe the program as CACREP
I have not yet heard back, I do think that is what this letter means and I was just
being super cautious. The approval is conditioned on two items but these should be
fairly easy to satisfy by the deadline. I want to thank you all for your contributions
to this program.
Doc. [79-4] at 1. Dr. Musangali then sent an email to the Director of the Online Counseling
Program, Diane O’Brien, stating: “We will need to send this information to our students.
They do not need to know about the conditions as that is ours to �ix. We can let them know
about it verbally in class but not include it in any written communication to them as people
may not always understand what that means.” Doc. [79-11] at 1. Dr. O’Brien agreed and
Id
told Dr. Musangali that she would “send out an email using [the] new listserv for Hybrid
students that simply refers to the accreditation of the program by CACREP.” . Dr. Urofsky
testi�ied that had Dr. Musangali followed up on her email to him, he would have told her
that the program could not be described as CACREP accredited. Doc. [82] ¶ 16. According
to Dr. Urofsky, “approved with conditions” does not mean the program is CACREP
accredited. Doc. [77-2] at 6-7.
On November 14, 2020, Dr. Musangali submitted a follow-up Substantive Change
Report, as CACREP requested in its August 21st letter. Doc. [76] ¶ 17. The University’s
Corporate Representative testi�ied that between October 14, 2020, and January 12, 2021,
Id
the University circulated an email to prospective students who had expressed interest in
the CMHC Program. . ¶ 18. The email stated, in relevant part: “We are pleased to
Id
announce that our Online Master of Arts in Counseling/Emphasis in Clinical Mental Health
Id
Counseling is now CACREP accredited.” . Plaintiff was one of the prospective students
that received this email. . ¶ 60.
Plaintiff also received an email from Graduate Admissions Counselor Meghan
Higdon which read in part: “Hello Jeanie, Thank you for your interest in Webster
University’s Counseling/Emphasis in Clinical Mental Health Counseling (MA) Program,
accredited by CACREP.” Doc. [82] ¶ 56. A few days later, Plaintiff sent Higdon an email
asking the below question:
Since Webster’s Online Master of Arts in Counseling/Emphasis in Clinical Mental
Health Counseling is now CACREP accredited, does this mean it is also accredited by
the Higher Learning Commission and APA? I know licensure varies by state, but I
want to make sure that earning this particular degree will prepare and permit me to
Doc. [77-17] at 1. Higdon responded:
The school as a whole is accredited by the Higher Learning Commission – this is our
regional accreditation. You would want any school you attend to have a regional
accreditation. As to APA, that is only accreditation for doctorate and postdoctoral
programs within the �ields of psychology, which we do not have, and therefore, do
Id not need.
. at 2. Plaintiff went on to submit her application to the Hybrid Program on January 10,
2021. Doc. [82] ¶ 60.
On March 4, 2021, CACREP sent a letter to the University stating that the Board
“disapproved the change.” Doc. [76] ¶ 19. The letter explains that the University sought a
“signi�icant expansion” from South Carolina to a “nearly national” online program that
would require “signi�icantly increased scope and scale as well as additional resource and
Id.
support needs.” Doc. [74-15] at 1-2. Because of the nature of the change, CACREP wrote
“the program will need to submit a full self-study report addressing all standards.”
Dr. Musangali testi�ied that she was “shocked” by the letter: “Th[e] letter seem[ed]
to be a reversal of approval already granted in the August 2020 letter. And we had
provided information as requested by CACREP by November 15 which I felt was suf�icient
to address the . . . conditions that had been contained in the . . . August 21st, 2020 letter. I
was con�ident that we had addressed those suf�iciently from my perspective as a program,
and I was therefore shocked to receive the March 4th letter.” Doc. [74-5] at 15.
Plaintiff was accepted into the Hybrid Program on April 24, 2021. Doc. [82] ¶ 61.
On May 7, 2021, Dr. Musangali sent a Petition for Review of the Board’s decision. Doc. [76]
¶ 21. A few weeks later, on May 27, 2021, Dr. Musangali met with Graduate Admissions
Id
Counselors Meghan Higdon and Emily Winslow, to notify them of CACREP’s disapproval
letter. . ¶ 22. The admissions department also used Slate—a system used by admissions
staff to track communications with and inquiries by students—to formulate a list of
students who were in the “‘pipeline’ or ‘funnel,’ meaning students who had submitted
inquiries, students who had submitted applications, students who were accepted, and
Id
students who were enrolled.” Doc. [82] ¶¶ 32, 33. This information was provided to the
Counseling Department. . ¶ 35. The admissions department was not instructed to send
Id
out any corrected information to prospective students who may have viewed information
On June 1, 2021, Dr. Molly Stehn took over as the Chair of the Counseling
Department. Doc. [76] ¶ 24. Dr. Stehn “immediately” began working with her colleagues to
“draft messaging to prospective, incoming, and current students regarding the Hybrid
Id
Program’s CACREP accreditation status as the University waited for CACREP’s response to
its Petition for Review.” . ¶ 25. Dr. Stehn testi�ied that she wanted the communication to
be in writing so that “students would have a chance to read it and then ask any questions
they might have.” Doc. [82] ¶ 37. But the President of the University, Julian Schuster,
Id
“decided that nothing regarding accreditation would be put in writing, and no meetings
would be recorded.” . ¶ 39.
The University’s Corporate Representative testi�ied that any references to the
Hybrid Program being CACREP accredited were removed from the University website on
June 2, 2021. Doc. [76] ¶ 26. But emails show that on June 28, 2021, Counseling
Department Chair Dr. Stehn asked Digital Content Developer Mitch Scheperle to make an
“urgent edit” and “remove references to CACREP accreditation for the hybrid/online
Id.
program ASAP a little more than halfway down this page: https://www.webster.edu/arts
and-sciences/academics/professional-counseling/counseling.php[.]” ; Doc. [79-6].
On July 8, 2021, the University held a Hybrid Summit for current and incoming
Hybrid Program students. Doc. [76] ¶ 27. When Dr. Stehn was asked what she told the
students in that meeting, she responded:
This is where we informed them that we were not CACREP accredited for the hybrid
program. We did walk them through some of the history as to why we believed we
were, and that we had then received communication that they – whatever their
wording was – were disapproving the substantive change after giving us reason to
believe that it was going to be approved. And I also shared just the plan for moving
forward, that we had already at this point started a new self-study and that we had
also appealed their decision. That Dr. Musangali had submitted an appeal. And that
we were waiting to hear from a response from CACREP that they would be meeting.
Their board meets every July and every January. And that we would – they were
going to be discussing our appeal letter at the July meeting and that we would
expect to hear back about their decision likely in August.
We also shared that this – or I shared that this was not a question of, you know, us –
like, any – like, it wasn’t a question of poor quality in the program. That we – the
program meets all of the same standards as the South Carolina program, but that
CACREP had requested additional evidence. And I compared it to the students when
you write a research paper you need to cite your sources, you need to show your
work that – so just because you know something to be true you also need to provide
the documentation of those facts like you do in a research paper.
So with the program we believed that we already are running, you know, a high-
quality program that meets all the standards, and the evidence that we submitted
that we had believed to be suf�icient was not – did not satisfy CACREP on all of the
standards.
Doc. [74-8] at 24. In her deposition, Dr. Musangali con�irmed that the University relayed
the status of the Hybrid Program’s accreditation status at the Hybrid Summit.
Q: Do you recall that you – do you recall what was relayed to students during that
hybrid summit?
A: I was at the hybrid summit and we shared – hybrid summit was – we were
sharing the information we had received where CACREP had essentially overturned
the approval that they had previously granted us. And that’s what we shared with
the students. And also to let them know the things that we were working on to
address the – what CACREP had given us as options what we were working on as a
department at that time.
Q: So did you tell the students that you all were appealing the decision, the
disapproval decision?
A: Yes, I – we shared that with students because we had then submitted the re-
review request at that point and we were waiting on a result – on an outcome on a
CACREP decision on the re-review request.
Q: During the summit did you also share with the students that you were pursuing a
self-study?
A: Yes, we did.
Doc. [74-6] at 13-14.
Plaintiff attended the Hybrid Summit, but her recollection of the meeting is different.
Q: And what was discussed regarding CACREP accreditation at the July 2021
summit meeting?
A: They had let us know that they needed to do some paperwork with CACREP.
Q: Is that the verbiage that they used during the meeting.
A: Yes.
Q: Was there any explanation about what the paperwork was for?
A: No.
. . .
Q: During the summit were you told that the hybrid CACREP program was not
accredited?
Doc. [74-3] at 7. When Plaintiff was asked in her deposition to provide the “words that
were said to her during the summit meeting that [she] now contend[s] was a lie,” Plaintiff
Id
responded: “I don’t remember the speci�ic words used, but they had spoken to it as some
type of bureaucratic paperwork �iling proceedings.” . at 9. Plaintiff testi�ied that
“[n]othing felt out of line. It seemed like they were just clueing us in that they had some
Id
due diligence to do and they wanted us to know that they were on it, that it was just part of
the order process with accreditation upkeep.” . at 26. During the Hybrid Summit,
Plaintiff wrote the following in her notebook:
CACREP Accreditation under review again.
-self study submitted to board (2-8 year valid)
Doc. [77-13].
On July 29, 2021, the University held a mandatory orientation led by Dr. Stehn. Doc.
[76] ¶¶ 30-31. Dr. Stehn testi�ied that she showed a slide stating, in relevant part: “The
hybrid program is awaiting an accreditation decision.” Doc. [74-8] at 35. She added:
Q: In addition to what is listed there in writing in that PowerPoint slide, what other
additional information did you provide students in attendance at orientation
regarding the hybrid program’s accreditation status?
A: Let’s see. After reviewing the current accreditations for the other two locations I
would have clari�ied that the hybrid program is not currently accredited but we’re
awaiting a decision and we’re in the process of submitting additional
documentation.
Doc. [74-8] at 35-36. Plaintiff disputes that Dr. Stehn announced to the students that the
Hybrid Program was not CACREP accredited. Plaintiff testi�ied that, had the University
announced that the Hybrid Program was not CACREP accredited, she “would have
remembered that.” Doc. [77-9] at 16. Plaintiff recalls the following about the orientation:
Q: What do you recall the conversation being about CACREP accreditation at the
mandatory orientation?
A: The faculty were assuring us that everything was �ine with CACREP and they
needed to complete additional information paperwork requests.
Q: Were those the exact words used regarding CACREP accreditation?
A: I am paraphrasing.
Q: Did they say or give you any information about the status of the CACREP
accreditation, whether it was not approved, awaiting approval, or approved?
Q: Okay. So is your answer that they didn’t or are you saying that you don’t
remember?
A: They didn’t, as far as I can remember, talk about status. I was paraphrasing
before. But they did – I can quote them verbatim in that they said that there’s
nothing to worry about. They assured us that they had every phase – everything
would be in line, and their body language all showed that they were guaranteeing,
Id
you know, assuring us. Don’t worry about anything. We’ve got this.
. at 14. Chelsea Gaarder, another prospective student at the orientation, testi�ied about
her recollection of the orientation.
A: . . . I spoke to earlier that I remember CACREP being discussed, and I do
remember them speaking to a logistical issue that it was nothing to worry about.
Q: Do you recall whether or not they expressed that due to that logistical issue that
that the hybrid program was awaiting an accreditation decision?
A: I do not remember them saying that because that would have sent as a red �lag.
They did not say that.
Doc. [74-4] at 65.
On August 6, 2021, Dr. Stehn received a letter from CACREP stating that the
Executive Committee had upheld the Board’s “disapproval” decision. Doc. [76] ¶ 33. The
letter further stated that the Board “was actively reviewing digital delivery (i.e., online) in
Id
relation to counselor education programs” and would be “developing speci�ic guidelines,
templates, and timelines for programs to report on digital delivery modi�ications.” . ¶ 34.
The letter concluded by stating that the University’s previously submitted substantive
change report materials had been provided “to the Board committee for potential inclusion
in a pilot review program to determine whether: (1) the changes proposed by Webster
[could] be considered within this pilot program, (2) whether the review need[ed] to be
Id
suspended until full reporting guidelines and timelines [were] released, or (3) whether the
original guidance to submit a full self-study [would] stand.” . ¶ 35.
On the �irst day of classes, August 16, 2021, Plaintiff received an email from Dr.
Id
Stehn with the subject line, “Update for hybrid clinical mental health counseling students.”
. ¶ 36. The letter stated:
We have received CACREP’s response to our appeal letter, and their decision was to
uphold their request for a new self-study. The department continues to work on
this, and will notify students once the program is granted CACREP accreditation.
Please speak with your advisor if you have any questions or concerns.
Doc. [74-22]. At her deposition, Plaintiff testi�ied, “[t]his email is just as confusing to me
today as it was when we received it.” Doc. [74-3] at 36. She elaborated:
“We have received CACREP’s response to our appeal letter.” I don’t know what an
appeal letter is. I don’t know what CACREP could be responding to. I didn’t know
that they were awaiting responses and their decision. I didn’t know that there was
decisions being made.
Was to uphold their request. I don’t know what upholding their request means. I
don’t know what request they’re speaking of so how can something I don’t know
what it is be upheld. I don’t understand that.
For a new self study. I don’t know what a self study is and I don’t know what a self
Id study entails.
Id
. at 37. The same day Dr. Stehn sent the email, Plaintiff asked for clari�ication from her
Id
professor, Dr. Smith. . at 27. Plaintiff testi�ied that she commented to Dr. Smith, “[i]t’s not
Id
that the program lost accreditation, it’s just that it needs to maintain it.” . According to
Plaintiff, Dr. Smith “nodded her head up and down signaling yes.” .
In October 2021, CACREP sent the University instructions for submitting a Digital
Delivery Substantive Change Request, another method to seek accreditation for the hybrid
program. Doc. [76] ¶ 39. CACREP’s Assistant Director of Accreditation Kevin Connell
Id
encouraged Dr. Stehn to submit a Digital Delivery Substantive Change Report because it
Id
could “waive the necessity for a self-study.” . ¶ 41. Dr. Stehn submitted the report on
November 30, 2021. . ¶ 43. The day before the report was submitted, Plaintiff sentthe
Director of the Online Counseling Program, Diane O’Brien, an email about relocating back
back
to St. Louis.
The opportunity for me to relocate to St. Louis, MO from Durham, NC has come
up and I wonder if you would you advise that I take the opportunity to move back,
considering the Hybrid program’s pending CACREP review?
Speci�ically, I am thinking about continuing my classes in St. Louis, if possible, to
secure graduating with the CACREP accreditation. Can you clarify, if/when
Webster’s Hybrid program’s CACREP accreditation is restored, will my cohort/class
of 2023 still not be recognized as CACREP accredited by that time? I’m unclear
about the timing.
Because of the pandemic, I chose the Hybrid program at Webster since it too had
CACREP accreditation while allowing for �lexibility and convenience during so many
other unknown factors, but if transferring to St. Louis or another campus would
guarantee accreditation (and staying on track for graduation in 2023, relocating
Please let me know if you have any thoughts on the possibility. I appreciate any
insight you could share with me!
Doc. [77-14] at 2. In her deposition, Plaintiff was asked, “you also acknowledge [in the
email] that the CACREP review of the hybrid program is pending, correct?” Doc. [74-3] at
39. Plaintiff responded: “I do not. I do not know what program pending review means. As
Id
I typed and sent the email, I did not know what I was talking about. I did not [sic] what
pending CACREP review entailed.” .
Dr. O’Brien emailed Plaintiff back, providing the following information about the
Hybrid Program’s accreditation status:
The Hybrid program is in the process of submitting self-study documents to
CACREP. However, I cannot give a timeline as to when or what the decision of the
CACREP board will be. That being said, your cohort would certainly be
grand fathered in as having graduated from an accredited program.
Doc. [77-14]at 1. Plaintiff responded, in part: “It’s good to know about the grandfathering
Id
will occur! I thought I had heard that grandfathering would only apply to students who had
graduated within 18 months of the program receiving CACREP accreditation.” .
Plaintiff testi�ied that, at this point, “lots of discussion around CACREP ha[d]
occurred” and she could not “remember what triggered [her] to write [the] email [to Dr.
Id
O’Brien].” Doc. [74-3]at 39. She notes she sent the email after she mistakenly received an
email regarding the University’s counseling program in Florida. . The email informed the
students of the following: persons
graduating from a masters level counseling program on or after July 1, 2025,
Twhilisl bsuem remqeuri r2e0d2 1to, t ghrea Fdluoraitdea f Srtoamte aB CoaArCdR oEfP H aecacltrhe adnitneodu pnrceodg rtahmat .
IS NOT CACREP
The Webster
University counseling program taught in Florida accredited (it you
hmouldsst grergaidounaatl ea nfrdo nma toiounra pl raoccgrreadmit abtyio Mnsa fyr o2m02 C5H gErAa danuda ttihoen H diagthee.r Learning
Commission). Hence, to continue to pursue your graduate mental health career,
Doc. [77-14] at 3 (emphasis original). Students were directed to respond to the email by
cutting and pasting the following:
‘I understand the contents of this email and the new Florida requirement regarding
having to graduate from a CACREP accredited program on and after July 1[,] 2025. I
also understand that the Webster University Professional Counseling Program, MA
in counseling taught at Florida campuses and in which I am enrolled is not
Id
. (emphasis original).
On February 28, 2022, Dr. Stehn received a letter from Gaarder sent on behalf of the
Hybrid Program students. Doc. [76] ¶ 44. The letter stated, in relevant part:
As a community, we harbor feelings of dismay, uncertainty, and frustration pointed
towards the repetitive nature of miscommunication or lack of communication on
important topics that inherently add stress to our plates and burdens to our
shoulders. Speci�ically, the availability of advisors on general inquiries and the dark
veil that covers the pending CACREP accreditation package are speci�ic areas where
we believe that communication needs to be addressed to ensure the success and
wellbeing of students of the Hybrid cohort—in the present tense and for the future
cohorts to come.
Doc. [74-26] at 2.
After receiving the letter, Dr. Stehn scheduled a town hall with the Hybrid Program
students. Doc. [76] ¶ 47. Dr. Stehn testi�ied that she told the students at the town hall that
the department was in the process of writing the self-study and that she had just submitted
the Digital Delivery Substantive Change. Doc. [74-8] at 31. Plaintiff testi�ied that Dr. Stehn
started the meeting with the statement, “Please spare me the CACREP questions.” Doc. [74-
3] at 51. Plaintiff recalled: “I have something in my memory about trying to give her grace
and be like, okay, we won’t bother you with any more CACREP questions, but can you at
least tell us what it is that you’re needing to give CACREP so we can understand what’s
Id
lacking, what’s the paperwork all about, what’s actually going on so we can weigh how big
is this problem.” . Gaarder did not remember much from the meeting, but she recalled
being told that they would hear back from CACREP about the self-study on March 15, 2022.
Doc. [74-4] at 46. Dr. Stehn testi�ied that she believed the students at the town hall
demonstrated an understanding that the Hybrid Program was not CACREP accredited. Doc.
[74-8] at 40. Plaintiff testi�ied that she did not understand that the Hybrid Program was
not accredited, stating:
Because approved – we didn’t know what a review was or what a self study was. So
if a review was approved, I don’t know if that – was that the �irst and only step? If a
self study is being reviewed, is that the �irst or last step? Is this an extension of
approval? Was it lost? Was it never accredited? We had no idea. We didn’t know if
this was a maintenance thing and it was to extend its accreditation or if this was
they needed extra paperwork to maintain the accreditation or they basically were
accredited but for it to be of�icial, the hybrid had to go through a self study just like
We really had no idea how the system worked, how the process worked. No one
was giving us answers. We could not make contact with our advisers. So this town
hall was a chance to look at the chair head in the eye and say this has been our
experience thus far.
Doc. [74-3] at 52.
On March 15, 2022, CACREP sent Dr. Stehn a letter stating, in relevant part:
The Board indicated that its review and its comments on the program’s digital
delivery pilot report do not constitute an approval or accreditation decision for the
expanded, nationwide online delivery method. Rather, the Board determined that,
for this delivery method to be recognized as an accredited offering, the program
should submit a full self-study for review.
Id
Doc. [74-28] at 2. The letter also directed the University to notify the students currently
enrolled in the Hybrid Program that the program was not CACREP accredited. . On
March 23, 2022, Dr. Stehn issued the following notice to students in the Hybrid Program:
The Department of Professional Counseling has received CACREP’s response
regarding the digital delivery substantive change report that we submitted last fall.
After the board met this past January, they have determined that they do not
approve our nationwide online program as part of our existing accredited program
based in South Carolina at this time. They stated that in order for the hybrid
program to become accredited, the department must submit a full self-study for
CACREP to review.
The self-study is a large document that describes and documents how our program
meets all of the 2016 CACREP standards. We will need to compile updated
documentation and data, and we expect to submit this within the next year.
While we wish the outcome were different, we are con�ident in the quality of our
program and are up to the task of completing the self-study.
Sincerely,
Molly Stehn
Doc. [74-29]. According to Plaintiff, this was the �irst time she was informed that the
Hybrid Program was not CACREP accredited or approved as a part of the South Carolina
accredited program. Doc. [74-3] at 17.
Shortly after receiving the email from Dr. Stehn, Gaarder sent an email to Dr. Stehn
stating, in relevant part:
Further documented issues that I could expand upon if necessary:
-Lack of proper syllabus provided on Canvas two days before class starts, much of
what was provided was severely lacking in speci�ic expectations or any sort of
grading rubric for the assignments. There are no due dates or modules used. You
speci�ically spoke about CACREP accreditation being withheld last time surrounding
issues with the full realm of services being offered in a digital, online platform. I
would imagine this is one of the many issues that I recognize as being in line with
their concerns around the issue of equal quality.
. . .
-The following passage is included in the “syllabus” we received, which I would
consider the peak of my concerns, as it is either completely unexplainably included
in the same way curse words would be inappropriately included, or we are being
completely lied to by you in regards to CACREP accreditation even being something
that is being sought after for this program. Either is not acceptable, the �irst is
clearly preferable, and I would like clarity on what the truth is.
“While the program is neither accredited nor currently actively preparing for
accreditation at other campuses, students at other campuses and/or enrolled in
other tracks are still held to these standards as these represent best practices in the
�ield of counselor education.”
Doc. [79-8]. Gaarder testi�ied that other students assisted her with drafting the email. Doc.
[76] ¶ 44.
A day after receiving the email from Dr. Stehn that the Hybrid Program was not
CACREP accredited, Plaintiff sent Dr. Stehn an email stating in relevant part:
Simply put, going into signi�icant student loan debt to me was a worthwhile
investment when the Hybrid program was CACREP accredited, but I would not have
pursued Webster’s Counseling Hybrid Program without it. Since orientation, I
trusted and believed in the Hybrid Program with assurances from you and Dr.
O’Brien. Now, how can I continue to gamble on what would be �inancial ruin, when
no one will tell us what criteria the program doesn’t meet and specify what changes
are being made to become accredited?
Nearly halfway to graduation, I am and [sic] sick to my stomach trying to decide
before tomorrow’s deadline to drop my classes without charge, or continue in blind
faith with a program that cannot be relied on to accurately inform us of what
textbook is needed for class . . . We have been paying for tuition for a program which
was accredited, so I must ask, can we expect a refund for utterly losing this academic
year? It is wrong to require that students pay the tuition rate of a program which is
not adjusted for having lost its accreditation, and the University should make this
right to students.
Whether I stay or leave, I must seek justice for the lost tuition, time, and credits that
cannot be transferred, even if I were to restart my process with a different program.
counsel in support of rectify this incredibly hurtful and disappointing experience
within a program whose leaders know better. You must realize and be able to
appreciate how important and damaging this has been. Students, I included, are in
crisis over this.
Please, tell me what support and corrections we can expect from the University.
Id
Doc. [74-39] at 3-4. Dr. Stehn responded with information on how Plaintiff could withdraw
Id
and transfer her credits. . at 2-3. In a later email to Plaintiff, Dr. Stehn con�irmed that the
Id
deadline to withdraw was March 25, 2022, at 11:59 pm. . at 1. Plaintiff withdrew from
the Hybrid Program on March 25, 2022. .
Between April 1, 2022, and April 8, 2022, Plaintiff and Gaarder exchanged the
followin
• g relevant text messages:
Gaarder responding to a voice memo sent by Plaintiff: “Are you saying that the
Hybor id program has never even applied for CACREP?!
Plaintiff: “I don’t know about applied, but sounds like Hybrid never had
o
it”
Gaarder: “If that is the case, we for SURE will win that lawsuit because we
have direct communication from the school speaking to the exact
opposite . . . . I think we should try to �ind out whether they ever applied.
Do we have written documentation where they claim that the hybrid
•
program lost accreditation?”
Gaarder: “Do we have any documentation of them saying that they lost status
•
rather than their only trying to primarily gain it?”
Plaintiff: “The student handbook that was given to us in August, says that only
the St. Louis and South Carolina campus locations are accredited. And one of the
slides from a new student package email from Dr. Smith also says that the
Hybrid program is under review (dated August). To make me feel more solid in
our evidence, I really want to �ind the Zoom email invite to orientation for
•
language they used when �irst announcing CACREP loss.”
Plaintiff: “I’m curious to recall how they worded inviting us to learn about the
•
news around Hybrid CACREP [during the orientation in July 2021].”
Gaarder: “. . . They literally didnt [sic] tell us they weren’t accredited until the
�irst day of class. So they already had our money. I thought is [sic] was a few
days before. Nope. You are absolutely right. Ya, I don’t know how they argue
•
that.”
Plaintiff: “no one saying that they didn’t tell us they weren’t [CACREP]
accredited, we’re saying that they told us way too late and here and here is all
the evidence proving what way too late means; plus, they manipulated us into
thinking that they had it under control and all would be accredited soon. And
they kept assuring that, until we lost trust.”
Doc. [74-42].
Dr. Stehn resigned as Counseling Department Chair on May 31, 2022, and Dr.
Musangali took over as Chair. Doc. [76] ¶ 53. The University worked to “secure CACREP
accreditation by having an on-going conversation with CACREP, continuing its work on the
Id
full self-study, and submitting a second Substantive Report with additional reporting
details pursuant to CACREP’s digital pathway procedures in September 2022.” . ¶ 54.
And on May 4, 2023, the University received a letter from CACREP stating that the “the
Board has approved the inclusion of the fully digital pathway in the accreditation for the
Clinical Mental Health Counseling specialty area at Webster University, South Carolina, but
Id
will initiate additional reporting requirements on necessary adjustment to the digital
pathway.” . ¶¶ 55-57. CACREP issued another letter on Jgurnaed 1u3a,t e2s0 2o3f ,t wheh ifcuhl l“yo duitgliinteadl
tphaet hadwdaiyti ofrnoaml r eMpaorrctihn g2 0re2q0u fiorermweanrtds ”w aenrde “ccolanrsi�iideedr tehda tg raduates of the CACREP
accredited program. Id
“ . ¶ 58 (emphasis original).
Plaintiff �iled suit against the University on November 3, 2022, alleging fraudulent
misrepresentation, fraud by concealment and omission, and violation of the Missouri
Merchandising Practices Act. DefendaLnEtG mALo vSeTAs NfoDrA RsuDm mary judgment on all claims.
A court must grant a motion for summary judgment if it �inds, based on the factual
Celotex Corp. v. Catrett
record, that “there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” , 477 U.S. 317, 322 (1986);
Fed. R. Civ. P. 56. Material facts are those that “might affect the outcome of the suit under
Anderson v. Liberty Lobby, Inc.
the governing law,” and there is a genuine dispute where “a reasonable jury could return a
verdict for the nonmoving party.” , 477 U.S. 242, 248 (1986).
The moving party bears the initial burden of “informing the district court of the
basis for its motion, and identifying those portions of the pleadings, depositions, answers to
Celotex Corp.
interrogatories, and admissions on �ile, together with the af�idavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact.” , 477 U.S. at 323
Farver v. McCarthy
Wingate v. Gage Cnty. Sch. Dist., No. 34
‘mere denials or allegations [that] . . . raise a genuine issue for trial.’” ,
931 F.3d 808, 811 (8th Cir. 2019) (quoting , 528 F.3d
1074, 1078-79 (8th Cir. 2008)). “A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by: (A) citing to particular parts of materials in the
record . . .; or (B) showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible evidence to
Carmody v.
support the fact.” Fed. R. Civ. P. 56(c)(1). The evidence must be viewed “in the light most
Kansas City Bd. of Police Comm’rs
favorable to, and making all reasonable inferences for, the nonmoving party.”
, 713 F.3d 401, 404 (8th Cir. 2013). “Credibility
Torgerson v. City of Rochester
determinations, the weighing of the evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge.” , 643
Quick v. Donaldson Co.
F.3d 1031, 1042 (8th Cir. 2011). “‘If reasonable minds could differ as to the import of the
Anderson v. Liberty Lobby Inc.
evidence,’ summary judgment is inappropriate.” , 90 F.3d 1372, 1377
(8th Cir. 1996) (quoting DISCUSSION , 477 U.S. 242, 256 (1986)).
As set forth below, Defendant has not met the standard for summary judgment on
Count I as to statements (a) through (c), nor has it earned summary judgment on Count II
or Count III. Plaintiff will have an opportunity to show cause why summary judgment
2
should not be granted to Defendant on Count I as to statements (d) through (g).
2
Defendant spends several pages arguing that the Complaint fails to meet the heightened pleading
requirements of Rule 9(b). “To satisfy the particularity requirement of FRCP 9(b), the complaint
must plead such facts as the time, place, and content oUf tnhitee dd eSfteantdesa next’ sr efla. lJsoes hrei pv.r Sets.e Lnutkaeti’os nHso, saps. ,
Iwnecl.l as the details of the defendant’s fraudulent acts, including when the acts occurred, who
engaged in them, and what was obtained as aI dresult.”
, 441 F.3d 552, 556 (8th Cir. 2006). In essence, “the complaint must identify the who, what,
where, when, and how of the alleged fraud.” . (quotation marks and citation omitted). On review
of Plaintiff’s Complaint, the Court �inds that it meets the heightened pleading requirements of Rule
I. Summary judgment is not warranted on Count I as to statements (a), (b), and
(c); Plaintiff must show cause why summary judgment should not be granted
as to statements (d), (e), (f), and (g).
In Count I, Plaintiff alleges that Defendant made the following misrepresentations
regarding the Hybrid Program’s accreditation status:
(a)“The Online Master of Arts in Counseling/Emphasis in Clinical Mental Health
Counseling is now CACREP accredited” (Listed on website);
(b) The online master’s in counseling is CACREP accredited;
(c) There was a “logistical” issue with Defendant’s CACREP accreditation that would
be easily resolved;
(d)The CACREP accreditors were requiring a new self-study from Defendant, and
then they would receive the accreditation;
(e)Plaintiff’s cohort would be “grandfathered in” as graduating from a CACREP
accredited program;
(f) The required self-study had been submitted to CACREP in November of 2021,
and Defendant would have an answer from CACREP’s review by February;
3
(g)Plaintiff would receive a full refund if she withdrew by March 25, 2021.
Id
Doc. [39-1] ¶ 31. Plaintiff claims that she relied on those misrepresentations in her
decision to enroll in the Hybrid Program. . ¶¶ 36-38.
“The elements of fraudulent misrepresentation are: (1) a representation; (2) its
falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or ignorance of its truth;
(5) the speaker’s intent that it should be acted on by the person in the manner reasonably
contemplated; (6) the hearer’s ignorance of the falsity of the representation; (7) the
Renaissance Leasing, LLC
hearer’s reliance on the representation being true; (8) the hearer’s right to rely thereon;
v. Vermeer Mfg. Co.
and (9) the hearer’s consequent and proximately caused injury.”
, 322 S.W.3d 112, 131-132 (Mo. 2010) (en banc). Defendant moves for
summary judgment, arguing that Plaintiff has failed to establish a prima facie case of
fraudulent misrepresentation.
The Court is sympathetic with Defendant’s argument that statements (d) through
(g) cannot support Plaintiff’s fraudulent misrepresentation claim because they were made
3
The Court assumes that Plaintiff meant 2022 and grants her leave to amend the Complaint
after
SeeWilliams v. HSBC Bank USA, N.A.
Plaintiff had already enrolled in the Hybrid Program, and so she cannot have relied on
them in deciding to enroll. , 467 S.W.3d 836, 845 (Mo.
App. Ct. 2015) (“Because of the requirement of reliance, a claim of negligent
misrepresentation will not be successful where the plaintiff took the action which caused
the damage before hearing the alleged misrepresentation . . . .”); Docs. [74-22] (statement
(d) – August 16, 2021); [77-14] (statement (e) – November 30, 2021); [39-1] ¶¶ 15-16
4 see
(statement (f) – between November 2021 and February 2022); [74-39] (statement (g) –
March 24, 2022). Because this argument was raised in Defendant’s reply, Doc. [81] at 5-
10, Plaintiff may have 14 days to show cause why summary judgment should not be
granted on Count I as to the alleged misrepresentations (d) through (g).
As to statements (a), (b), and (c), Defendant argues that the record shows that
5
Plaintiff relied on truthful statements in her decision to enroll in the hybrid program.
Defendant points to Dr. Stehn’s testimony that prospective students were told at the Hybrid
See
Summit and the mandatory orientation that the Hybrid Program was not CACREP
accredited. Doc. [74-8] at 23-24; Doc. [82-8] at 35-36. Defendant also claims the text
messages between Plaintiff and Gaarder suggest Plaintiff knew the Hybrid Program was
not CACREP accredited. Doc. [74-42].
The record is replete with con�licting evidence as to what information Defendant
communicated regarding the Hybrid Program’s accreditation status. Viewing that evidence
in the light most favorable to Plaintiff, a reasonable jury could �ind that Defendant failed to
tell Plaintiff prior to her enrollment that the Hybrid Program was not CACREP accredited or
falsely represented the Hybrid Program’s accreditation status on four separate occasions:
First, when the University circulated an email to prospective students announcing that the
Online Master of Arts in Counseling/Emphasis in Clinical Mental Health Counseling was
“now CACREP accredited”; second, when Graduate Admissions Counselor Meghan Higdon
sent Plaintiff an email thanki ng her for her “interest in Webster University’s
4
The Court relies on the dates in the Complaint for statement (f).
5
Defendant also argues that statement (c) is not actionable as a matter of law because it is a
statement of opinion, expectation, or prediction of future actions of a third party. The Court
disagrees. A reasonable juror could understand statement (c) as a factual claim about a
Counseling/Emphasis in Clinical Mental Health Counseling (MA) Program, accredited by
CACREP”; third, when Plaintiff read on the University’s website that the Hybrid Program
6
was CACREP accredited; and fourth, when Plaintiff was told at the mandatory orientation
that there was a “logistical issue” with the accreditation but that it was “nothing to worry
about.” Docs. [74-4] at 24; [76] ¶¶ 17, 18, 26, 60; [77-9] at 14, 16; [82] ¶ 56; [82-1].
Because “reasonable minds could differ as to the import of the evidence,” Defendant’s
mII.o tionD foerf esnudmamnat riys njuodtg emnetnittl eodn tCoo usunmt Im asa troy sjtuadtegmmeenntts o(an) C, (obu)n, atn IdI. ( c ) is denied. 7
In Count II, Plaintiff alleges that Defendant had a duty to disclose to Plaintiff the
following i nformation:
(a)Webster University’s online master’s in counseling program was not CACREP
accredited;
(b)Webster University’s online master’s in counseling program had never been
CACREP accredited;
(c) Webster University had never applied for CACREP accreditation for their online
master’s in counseling program;
(d)The class of students Plaintiff would be graduating with would not be
“grandfathered in” because the program had never been CACREP accredited;
(e)A self-study was never turned in to the CACREP accreditation institution.
Id
Doc. [39-1] ¶ 43. Plaintiff claims that, but for the fraudulent omissions, she would not have
enrolled in the Hybrid Program. . ¶ 51.
Richards v. ABN AMRO Mortg. Grp., Inc.
“Missouri courts have not recognized a separate tort of fraudulent nondisclosure.”
, 261 S.W.3d 603, 607 (Mo. Ct. App. 2008) (citing
6
On the Court’s review of the record, Plaintiff never testi�ied that she saw on the University’s
website that the Hybrid Program was CACREP accredited. But Slate records show that she visited
the website multiple times between October 20s2e0e and January 2020. Doc. [82-1]. Because Plaintiff
visited the website before the date upon which Defendant claims to have removed any references to
the Hybrid Program being CACREP accredited, Doc. [76] ¶ 26, the Court �inds a genuine issue of
material fact as to whether Plaintiff relied on the representation in paragraph (a).
7
Defendant argues that the record shows that any loss suffered by Plaintiff was due to her own
conduct because “had Rhoads remained in, and graduated from, the Hybrid Program, she would
have a CACREP accredited degree.” Doc. [73] at 14. But at the time Plaintiff withdrew, the Hybrid
Program was not CACREP accredited. Because Defendant does not argue that Plaintiff knew or
should have known that accreditation would be received in the future, and in time to affect her
Hess v. Chase Manhattan Bank, USA, N.A.
, 220 S.W.3d 758, 765 (Mo. 2007)). “Instead, in
Hess
such cases, a party’s silence in the face of a legal duty to speak replaces the �irst element [of
a fraudulent misrepresentation claim]: the existence of a representation.” , 220 S.W.3d
Id Ringstreet Northcrest, Inc. v. Bisanz,
at 765. “Whether or not a duty to disclose exists . . . must be determined on the facts of the
particular case.” . (quoting 890 S.W.2d 713, 720 (Mo.
Id
Ct. App. 1995)). “A duty to speak arises where one party has superior knowledge or
information that is not reasonably available to the other.” . “Even with superior
Id
knowledge, a duty to disclose will be imposed only if the material facts would not be
discovered through the exercise of ordinary diligence.” .
Defendant moves for summary judgment, arguing that the Hybrid Program’s
accreditation status was “reasonably available to Rhoads because Webster voluntarily
disclosed the information.” Doc. [73] at 15. As noted in Section I, there is considerable
factual dispute as to what information was communicated about the Hybrid Program’s
aIIcIc. rediDtaetfioenn dstaanttu sis. nSuomt emnatirtyl ejudd tgom seunmt mis athreyr jeufodrgem deennti eodn. C ount III.
Finally, in Count III, Plaintiff alleges that Defendant violated the Missouri
Merchandising Practices Act. Plaintiff’s MMPA claim is based on the misrepresentations
and omissions set forth in Counts I and II. The MMPA declares unlawful the use of “any
deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the
concealment, suppression, or omission of any material fact in connection with the sale or
advertisement of any merchandise . . . .” Mo. Rev. Stat. § 407.020.1. “To establish a claim
under the MMPA, a plaintiff must show that she (1) leased or purchased a product or
service from defendant; (2) primarily for personal, family, or household purposes; and (3)
Schulte v. Conopco, Inc.
suffered an ascertainable loss of money or property; (4) as a result of an act declared
Toben v. Bridgestone Retail Ops., LLC
unlawful by § 407.020 RSMo.” , 997 F.3d 823, 825-26 (8th Cir. 2021)
(quoting , 751 F.3d 888, 897 (8th Cir. 2014)).
Defendant moves for summary judgment on Plaintiff’s MMPA claim, making four separate
arguments :
(1)Webster did not engage in any deceptive conduct.
(2)Plaintiff’s MMPA claim fails as a matter of law because Plaintiff’s purchase was
(3)Plaintiff has not alleged that Defendant possessed the requisite state of mind for
her MMPA omission-based claim because the University “disclosed and
delivered truthful information to [Plaintiff] regarding the Hybrid Program’s
CACREP accreditation status.”
(4)Plaintiff’s MMPA claim fails as a matter of law because any loss suffered by
Plaintiff was due to her own conduct and not due to any conduct of Defendant.
Doc. [73]. Defendant’s third and fourth arguments are rejected for the reasons articulated
in SectiAon. sA I raenads IoI.n Dabefleen jduarnotr’ sc o�iursltd a �nindd s etchoant dW aergbusmteern etns gaalsgoe fda iiln, adse sceetp fotirvteh cboenlodwu.c t .
Defendant �irst argues that Plaintiff has failed to “point to any competent evidence
Id
to demonstrate that Webster engaged in a practice declared unlawful under section
407.020.1.” . at 17. That argument fails as to statements (a), (b), and (c) under Count I
and the omissions outlined in Count II for the reasons already stated in Sections I and II.
i.e.,
Defendant’s stronger argument for summary judgment on Count I with respect to
statements (d), (e), (f), and (g)— that Plaintiff has not shown reliance—has no purchase
reliance. Schuchmann v. Air Services
on Count III because “the MMPA supplements the de�inition of common law fraud,
Heating & Air Conditioning, Inc.
eliminating the need to prove an intent to defraud or ”
, 199 S.W.3d 228, 233 (Mo. Ct. App. 2006) (emphasis added).
Conway v.
“The use of an unlawful practice is a violation of the MMPA ‘whether committed before,
CitiMortgage, Inc.
during or after the sale,’ so long as it was made ‘in connection with’ the sale.”
, 438 S.W.3d 410, 414 (Mo. 2014) (citing § 407.020(1)). Defendant does
not argue that the statements were not made in “connection with the sale.”
Defendant argues that statements (d) through (f) refer to statements of opinion,
expectation, or prediction of future actions of a third party, which cannot support Plaintiff’s
at the present time the statement was made
MMPA claim. Plaintiff counters that “incorrect and false statements about the accreditation
status , not promises or representations about
the future or statements about what a third party might do.” Doc. [75] at 14. The Court
agrees with Plaintiff that a reasonable juror could understand statements (c) through (f) as
factual claims about contemporaneous states of affairs. Whether those statements were
made; what their implications were in context; and their veracity are all disputed questions
of material fact for a jury to decide.
Defendant also argues that the statements (f) and (g) cannot form the basis for
Plaintiff’s MMPA claim because the statements were not made to Plaintiff. According to
Defendant, “[s]tatements made to others are hearsay which are inadmissible and cannot
See
support Rhoads’ claim.” Doc. [73] at 15. Of course, not all out-of-court statements are
hearsay, including statements of an opposing party. Doc. [75] at 15; Fed. R. Evid.
801(d)(2). And while the Court is not prepared to make a �inal determination of the
could
admissibility of statement (e) for any particular purpose at trial, that is not necessary at the
Gannon Int'l, Ltd.
summary judgment stage, when all that matters is “whether it be presented at trial in
v. Blocker
an admissible form”—a standard that Defendant does not even mention.
, 684 F.3d 785, 793 (8th Cir. 2012) (citing Fed. R. Civ. P. 56(c)(2)) (upholding a
district court’s overruling of a hearsay objection at summary judgment where the party did
“not even attempt to argue that the information . . . could not have been presented in an
admissible form at trial”). Defendant’s objection to Plaintiff’s reliance on statement (e) at
the summary judgment phase is therefore overruled.
Finally, Defendant argues there is no evidence that anyone at the University made
statement (g)—that Plaintiff would receive a full refund if she withdrew by March 25, 2022.
But Dr. Stehn testi�ied as follows:
Q: Okay. When you sent out the March 2022 email did you have students asking to
withdraw?
A: Yes.
Q: Were they only give [sic] a 24-hour window to withdraw for a full refund to your
knowledge?
A: I informed them that the drop/add deadline was that – you know, that Friday, at
the end of day Friday.
Q: Do you think that would have been about 24-hours notice?
A: Possibly.
Q: So you just testi�ied you let them know what that withdrawal window was, right,
in March of 2022?
A: Yes.
Doc. [74-8] at 39. Dr. Stehn’s testimony is consistent with the email she sent to Plaintiff on
March 24 and 25, 2022, after Plaintiff emailed her about withdrawing from the program:
in blind faith with a program that cannot be relied on to accurately inform us of
what textbook is needed for class…We have been paying for tuition for a program
which was accredited, so I must ask, can we expect a refund for utterly losing it this
academic year? It is wrong to require that students pay the tuition rate of a program
which is not adjusted for having lots its accreditation, and the University should
make this right to students.”
Dr. Stehn’s response: “If you wish to withdraw, please drop your classes before the
deadline and let me know of your decision .”
Plaintiff’s response the following day: “Can you con�irm when the deadline is to
withdraw? At midnight tonight as in 3/25 Thursday, 00:00 EDT or 3/26 Friday,
00:00?
Dr. Stehn’s response: “The deadline is tomorrow at the end of the day, and if you
submit a request prior to 11:59 tomorrow night it will be honored even if no one
responds to your message.”
Doc. [74-39]. Viewing the evidence in the light most favorable to Plaintiff, there is a
genuine dispute of material fact as to whether Defendant represented to Plaintiff that she
would rBe.c Aei rveea as founlla rbelfeu njudr iof rs hcoe uwldit h�idnrdew th bayt MPlaaricnht i2ff5 p, 2u0r2ch2.a s ed her education
primarily for personal use.
As to Defendant’s second argument—that Plaintiff’s MMPA claim fails as a matter of
Kerr v. Vatterott Educational Centers, Inc.
law because Plaintiff’s purchase was for business, career and professional purposes—the
Court �inds , 439 S.W.3d 802 (Mo. Ct. App. 2014),
instructive. There, the Missouri Court of Appeals rejected a similar argument where,
alongside evidence of a professional purpose, there was also suf�icient evidence in the
Id. MacDonald v. Thomas M. Cooley Law School
record for a reasonable jury to infer that the education was purchased primarily for a
personal purpose. at 809-11 (distinguishing ,
Kerr
724 F.3d 654, 661 (6th Cir. 2013).
Here, like the plaintiff in , Plaintiff has provided other reasons besides
professional ambitions for purchasing her education. Speci�ically, Plaintiff testi�ied to her
understanding that she needed a master’s degree to become a licensed counselor Doc. [74-
3] at 9. When asked if there was any particular reason she chose to pursue counseling,
Plaintiff responded:
By that time, the pandemic was weighing on everyone, and I started doing side work
for the company organizing mental health – mental health trainings for managers,
leading virtual yoga classes for the company and I was good at it. My clients joked
that I was their business therapist, and I decided it was time to pursue my true
calling and �inally become a real therapist and do all of that kind of free passion
project side work as my main career.
Doc. [74-3] at 12-13. Thus, viewing the evidence in the light most favorable to Plaintiff, a
reasonable jury could �ind that Plaintiff purchased her education primarily for personal
use.
Because Defendant has not demonstrated that “there is no genuine issue as to any
Celotex Corp.
material fact and that [Defendant] is entitled to a judgment as a matter of law,” Defendant’s
motion for summary judgment on CoMuOnTt IIOINI iFsO dRe SnEiAedLI.N G , 477 U.S. at 322.
IDT Corp. v. eBay
There is a “common-law right of access to judicial records.” , 709
F.3d 1220, 1222 (8th Cir. 2013). “The presumption of public access to judicial records may
Flynt v. Lombardi In re
be overcome if the party seeking to keep the records under seal provides compelling
Neal
reasons for doing so.” , 885 F.3d 508, 511 (8th Cir. 2018) (citing
, 461 F.3d 1048, 1053 (8th Cir. 2006)). “[T]he weight to be given the presumption of
access must be governed by the role of the material at issue in the exercise of Article III
IDT Corp. United States v. Amodeo
judicial power and [the] resultant value of such information to those monitoring the federal
courts.” , 709 F.3d at 1224 (quoting , 71 F.3d 1044, 1049
(2d Cir. 1995)). “[J]udicial records and documents generally will ‘fall somewhere on a
Id Amodeo
continuum from matters that directly affect an adjudication to matters that come within a
court’s purview solely to insure their irrelevance.’” . at 1223 (quoting , 71 F.3d at
See Ball-Bey v. Chandler
1049). When documents are �iled with dispositive motions, the presumption of public
access is harder to overcome. , 2024 WL 888396, at *4 (E.D. Mo.
Feb. 13, 2024) (collecting cases).
See
Plaintiff moves to �ile under seal certain exhibits �iled in conjunction with her
memorandum in opposition to Defendant’s motion for summary judgment. Doc. [78].
Id
Plaintiff’s sole stated justi�ication for sealing the information is that such documents have
been designated as con�idential pursuant to the Protective Order in effect in this matter. .
See
at 2. The fact that information was disclosed pursuant to the parties’ protective order is
not, on its own, a suf�icient legal justi�ication for sealing. E.D. Mo. L.R. 13.05(A)(3).
Therefore, on the record before the Court, the parties’ interest in maintaining
confidentiality is outweighed by the public’s interest in viewing the Court record.
If any party does not want the materials unsealed, it must meet the legal standard
for sealing. Unless a meritorious sealing motion is filed in compliance with Local Rule
13.05, within 14 days of the date of this Order the Court will order the clerk to unseal Doc.
[79] and its attachments.
Accordingly,
IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment, Doc.
[72], is DENIED as to Count I (statements (a), (b), and (c)), Count II, and Count III.
IT IS FURTHER ORDERED that, no later than October 6, 2025, Plaintiff shall show
cause why summary judgment should not be granted on Count I as to statements (d)
through (g).
IT IS FURTHER ORDERED that Plaintiff's Motion for Sealing, Doc. [78], is DENIED.
IT IS FURTHER ORDERED that this Order is stayed for fourteen (14) days to allow
for appeal of the denial of sealing Doc. [78] or filing of a meritorious motion for leave to file
under seal in conformity with Local Rule 13.05. See E.D. Mo. L.R. 13.05(A)(4)(g). Any
motion for sealing that complies with Local Rule 13.05 must be filed no later than October
6, 2025. Failure to timely file such a motion will result in the unsealing of Doc. [79] and its
attachments without further notice.
IT IS FINALLY ORDERED that Plaintiff is granted leave to file an amended
complaint as set forth herein. See supra page 17 n.3.
Dated this 22nd day of September, 2025.
hawk Lite.
SARAH E. PITLYK
UNITED STATES DISTRICT JUDGE
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