“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
CHELSEA GAARDER, )
)
Plaintiff, )
v. ) Case No. 4:23-cv-00191-SEP
)
WEBSTER UNIVERSITY, )
)
Defendant. MEMORANDU)M AND ORDER
Before the Court are Defendant’s Motion for Summary Judgment, Doc. [80], and
Plaintiff’s Motion for Leave to File Certain Documents Under Seal, Doc. [86]. For the
reasons set forth below, summary judgment is denied in part, but Plaintiff must show cause
why it should not be granted as to some allegations supporting Count I. The sealing motion
is denied.
FACTS AND BACKGROUND1
Plaintiff Chelsea Gaarder 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. [41-1] ¶ 29.
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. [84] ¶ 4. The CMHC Programs hold a
Id
specialty accreditation through the Council for the Accreditation of Counseling and Related
Educational Programs (“CACREP”). . ¶¶ 4-5. In 2019, the University sought to add an
Id
online Clinical Mental Health Counseling Program (“Hybrid Program”) to its already
CACREP accredited South Carolina Campuses. . ¶ 7. Dr. Muthoni Musangali, the Chair of
1
Unless otherwise noted, the facts in this section are not disputed.
Id
the Counseling Department at that time, led the University’s efforts to secure CACREP
accreditation for the Hybrid Program. . ¶ 8. One way for a university to get CACREP
Seeid
accreditation for a new program involves submitting a “Substantive Change Report” for
CACREP’s approval. . ¶ 9. Another way to get CACREP accreditation for a new
Seeid
program requires undergoing a “self-study,” a more comprehensive process which takes
roughly one and a half years to complete. . ¶ 39.
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 seek to add an 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. [87-2] at 1; [85-2] 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. [87-3] 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
accredited and was waiting on his response before I sent this email to you all. While
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. [87-4] 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. [87-12] 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. [90] ¶ 17. According
to Dr. Urofsky, “approved with conditions” does not mean the program is CACREP
accredited. Doc. [85-2] 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. [84] ¶ 17. Several months
Id
later, on March 4, 2021, CACREP sent a letter stating that the Board “disapproved the
change.” . ¶ 18. The letter explained 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 support needs.” Doc. [82-12]
Id.
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.” at 2.
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. [82-5] at 15.
On May 7, 2021, Dr. Musangali sent a Petition for Review of the Board’s decision.
Doc. [84] ¶ 20. A few weeks later, on May 27, 2021, Dr. Musangali met with Graduate
Id
Admissions Counselors Meghan Higdon and Emily Winslow to notify them of CACREP’s
Id
disapproval letter. . ¶ 21. Prior to this meeting, Winslow believed that the Hybrid
Program was accredited. . ¶ 22. The admissions department used Slate—a system used
by admissions staff to track communications with 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 students who
Id
were enrolled.” Doc. [90] ¶¶ 34, 35. This information was provided to the Counseling
Department. . ¶ 37. The admissions department was not instructed to send out any
corrected information to prospective stude Id nts who may have viewed information that the
Hybrid Program was CACREP accredited. . ¶ 33.
On June 1, 2021, Dr. Molly Stehn took over as the Chair of the Counseling
Department. Doc. [84] ¶ 27. 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.” . ¶ 28. 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. [90] ¶ 39. 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.” . ¶ 41.
Plaintiff testi�ied that she sought out information on the University’s website and
saw that the Hybrid Program was CACREP accredited. Doc. [85-9] at 3. Plaintiff could not
recall the speci�ic date that she saw this information on the website, but she did recall
Id
“researching that particular question prior to enrolling or seeking information about the
university as that was a fundamental criteria [sic] in [her] school selection process.” . at
3-4. According to Slate records, Plaintiff �irst accessed the University’s website on May 25,
2021, for 42 seconds, and submitted a “Request for More Information: Graduate” on June 8,
Id
2021. Doc. [87-9] at 3. Plaintiff went on to visit the University’s website multiple times
throughout June and July of 2021. . at 1-2. The University’s Corporate Representative
removed from the University website on June 2, 2021. Doc. [82-9] at 9. 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 program ASAP a little more than halfway down this
page: https://www.webster.edu/arts and-sciences/academics/professional-
counseling/counseling.php[.]” Doc. [87-6]. Defendant notes that, according to the Slate
records, Plaintiff never visited the particular URL referenced in the email. Doc. [87-9].
In addition to viewing the website, Plaintiff also testi�ied that she spoke with
Admissions Counselor Winslow over the phone. While Winslow testi�ied that after she was
informed of the CACREP’s disapproval letter, she started referring questions about the
online CACREP accreditation to the Counseling Department, Doc. [82-14] at 21, Plaintiff
testi�ied that Winslow assured her over the phone that the Hybrid Program was CACREP
accredited. Doc. [85-9] at 3, 22. Plaintiff could not recall the speci�ic date of the phone call,
but emails show that Winslow sent Plaintiff an email on June 16, 2021, stating, “Hey, I will
Id
try and give you a call around 1:45 Central. What is the best number to reach you at?” Doc.
[87-20]. Plaintiff responded “[s]ounds great,” and provided her phone number. .
Winslow could not recall whether she spoke with Plaintiff on June 16, 2021, but con�irmed
that it was dif�icult to recall speci�ic conversations after talking with 15 to 20 students a
day. Doc. [82-14] at 28. There is no record of the phone call in Slate, and when asked if
there was ever a time that she missed logging a phone call, Winslow answered, “[n]ot that I
recall.” Docs. [87-9]; [82-14] at 13; [84] ¶ 67.
Plaintiff completed her application for the Hybrid Program on July 6, 2021, and
interviewed for the program on July 21, 2021. Doc. [84] ¶¶ 62, 64. Dr. Stehn testi�ied that,
after July 8, 2021, prospective students were informed during a welcome session as part of
their interview that the Hybrid Program was not CACREP accredited, but the University
See
was seeking accreditation status. Doc. [82-8] at 21. Plaintiff claims she was not told the
Hybrid Program was not CACREP accredited until March 2022. Doc. [82-4] at 44.
Id
Plaintiff was accepted into the Hybrid Program on July 22, 2021. Doc. [84] ¶ 66. On
July 29, 2021, the University held a mandatory orientation led by Dr. Stehn. . ¶¶ 31-32.
Dr. Stehn testi�ied that she showed a slide stating, in relevant part: “The hybrid program is
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. [82-8] at 35-36. Plaintiff does not recall ever being shown the slide about the Hybrid
Program’s accreditation status. Doc. [85-9] at 13, 24. She did remember the following
about 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.
Id
They did not say that.
. at 24. Jeanie Rhoads, another prospective student at the orientation, testi�ied about her
recollection of 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?
A: They did not. Not that I can remember.
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,
you know, assuring us. Don’t worry about anything. We’ve got this.
Doc. [85-12] at 14.
On August 6, 2021, Dr. Stehn received a letter from CACREP stating that the
i.e.
letter further stated that the Board “was actively reviewing digital delivery ( , online) in
Id
relation to counselor education programs” and was “developing speci�ic guidelines,
templates, and timelines for programs to report on digital delivery modi�ications.” . ¶ 35.
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.” . ¶ 36.
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.”
. ¶ 37. 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. [82-19]. After receiving the email, Jeanie Rhoads, another student in the Hybrid
Program, sought clari�ication from her professor, Dr. Smith. Doc. [82-3] at 27. According to
Id
Rhoads, when she stated “it’s not that the program lost accreditation. It’s just that it needs
to maintain it,” 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. [84] ¶ 40. Assistant Director of Accreditation Connell encouraged Dr. Stehn
Id
to submit a Digital Delivery Substantive Change Report because it could “waive the
Id
necessity for a self-study.” . ¶ 42. Dr. Stehn submitted the report on November 30, 2021.
. ¶ 44.
The day before the report was submitted, Rhoads sent the Director of the Online
back
Counseling Program, Diane O’Brien, an email about relocating 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
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
would be a real option for me.
Please let me know if you have any thoughts on the possibility. I appreciate any
insight you could share with me!
Doc. [85-15] at 2. In her deposition, Rhoads was asked, “you also acknowledge [in the
email] that the CACREP review of the hybrid program is pending, correct?” Doc. [82-3] at
39. Rhoads 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 Rhoads 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. [85-15]at 1. Rhoads 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.” .
Rhoads 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. [82-3] at 39. She notes that 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 diagtheer Learning
Commission). Hence, to continue to pursue your graduate mental health career,
Doc. [85-15] 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 Jiusl yn o1t 2025. I
also understand that the Webster University Professional Counseling Program, MA
in counseling taught at Florida campuses and in which I am enrolled
Id
accredited by CACREP[.]’
. (emphasis original).
Id
On February 28, 2022, Dr. Stehn received a letter from Plaintiff sent on behalf of the
Hybrid Program students. . ¶ 45. 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. [82-23] at 2. Plaintiff testi�ied that the email was a “collaborative effort” with her
Id
fellow students. Doc. [85-9] at 16. She testi�ied that they used a “Google doc that everyone
had access to,” and could not speak to the part she was responsible for drafting. .
After receiving the letter, Dr. Stehn scheduled a town hall with the Hybrid Program
students. Doc. [84] ¶ 47. Dr. Stehn testi�ied that she told the students that the department
was in the process of writing the self-study and that she had just submitted the Digital
Delivery Substantive Change. Doc. [82-8] at 31. Rhoads testi�ied that Dr. Stehn started the
meeting with the statement, “Please spare me the CACREP questions.” Doc. [85-12] at 36.
Rhoads 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 lacking,
Id
what’s the paperwork all about, what’s actually going on so we can weigh how big is this
problem.” . Plaintiff 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.
[85-9] at 19. 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.
[82-8] at 40.
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. [82-25] 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. [82-26]. According to Plaintiff, this was the �irst time she was informed that the
Hybrid Program was not CACREP accredited. Doc. [85-9] at 20. Plaintiff also could not
Id
remember hearing the words, “digital delivery substantive change report” before the
March 23, 2022, letter. .
Shortly after receiving the email from Dr. Stehn, Plaintiff 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
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. [82-34] at 1. Plaintiff testi�ied that other students assisted her with drafting the email,
and she could not recall what portion she was responsible for drafting. Doc. [84] ¶ 77.
The next day, Plaintiff sent an email to Dr. Stehn stating: “I would like to withdraw
from classes and the program. How do I ensure that everything is done properly by
tomorrow, given the deadline for a full refund for this coming term?” Doc. [82-35]. Dr.
Stehn responded, in relevant part: “If you wish to withdraw from the program entirely,
please drop your current classes before 11:59 p.m. If you use �inancial aid, I recommend
Id
contacting the �inancial aid of�ice after dropping your classes to �ind out if there is anything
else that they need.” . Sometime thereafter, Plaintiff formally withdrew from the Hybrid
Program. Doc. [82-4] at 18, 56.
Between April 1st and April 8th, 2022, Plaintiff and Rhoads exchanged the following
relevan • t text messages:
Plaintiff responding to a voice memo sent by Rhoads: “Are you saying that the
Hybor id program has never even applied for CACREP?!
Rhoads: “I don’t know about applied, but sounds like Hybrid never had
o
it”
Plaintiff: “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?”
Plaintiff: “Do we have any documentation of them saying that they lost status
•
rather than their only trying to primarily gain it?”
Rhoads: “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.”
Rhoads: “I’m curious to recall how they worded inviting us to learn about the
•
news around Hybrid CACREP [during the orientation in July 2021].”
Plaintiff: “. . . 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.”
Rhoads: “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 [sic] 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. [82-38] at 3, 5, 9-10, 27-28.
Dr. Stehn resigned as Counseling Department Chair on May 31, 2022, and Dr.
Musangali took over as Chair. Doc. [84] ¶ 54. 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.” . ¶ 55.
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.” . ¶¶ 56-58. CACREP issued another letter on Jgurnaed 1u3a,t 2es0 2o3f ,t wheh ficuhll y“o duitgliintaeld
tphaet hawddaiyti ofrnoaml r Mepaorrcthin 2g0 r2eq0u fiorrewmaerndt sw” earned c“ocnlasriid�ieerde tdh gatr aduates of the CACREP
accredited program Id
.” . ¶ 59 (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
(quotation marks omitted). The non-movant must then “present speci�ic evidence, beyond
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 , 477 U.S. 242, 256 (1986)).
DISCUSSION
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
Is.h ould Snuomt bme agrryan juteddg tmo eDnetf eins dnaontt w onar Croaunntet dI aosn t oC ostuantet mI aesn ttso ( sdt)a tthermouegnhts ( g(a).)2, (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. [41-1] ¶ 33. Plaintiff claims that she relied on those misrepresentations in her
decision to enroll in the Hybrid Program. . ¶¶ 39-40.
2
Defendant argues 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 coUnnteitnetd o Sft tahtee sd. eefxe rnedl.a Jnots’hs if va.l sSet. rLeupkree’sse Hnotaspti.o, Innsc, .as well as the details of the
defendant’s fraudulent acts, including when the acts occurred, who engaged in them, and what was
obtaineIdd as a result.” , 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 the Complaint, the Court �inds that
it meets the heightened pleading requirements of Rule 9(b).
3
“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
after
(g) cannot support Plaintiff’s fraudulent misrepresentation claim, because they were made
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. [82-19] (statement
(d) – August 16, 2021); [85-15] at 2 (statement (e) – November 30, 2021); [41-1] ¶¶ 18,
4 see
19 (statement (f) – between November 2021 and February 2022); [82-35] (statement (g)
– March 24, 2022). Because the argument was raised in Defendant’s reply, Doc. [89] at
5-10, Plaintiff may have 14 days to show cause why summary judgment should not be
granted on Count I as to 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 during their
See
interviews and at the mandatory orientation that the Hybrid Program was not CACREP
accredited. Doc. [82-8] a t 21, 35-36. Defendant also claims the text messages between
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
Plaintiff and Rhoads suggest Plaintiff “(1) had knowledge of [the University’s] prior
attempts to secure CACREP accreditation for the Hybrid Program, (2) had knowledge that
[the University] was actively seeking CACREP accreditation status for the Hybrid Program,
see also
and (3) was aware that CACREP was reviewing information related to [the University’s]
attempts to secure CACREP accreditation.” Doc. [81] at 11; Doc. [82-38] (text
messages).
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
and
tell Plaintiff prior to her enrollment that the Hybrid Program was not CACREP accredited
falsely represented the Hybrid Program’s accreditation status on three separate
occasions: First, when Plaintiff read on the University’s website that the Hybrid Program
was CACREP accredited; second, when Admissions Counselor Winslow assured her over
the phone that the program was CACREP accredited; and third, when Plaintiff was told at
See
the mandatory orientation that there was a “logistical issue” with the accreditation but that
it was “nothing to worry about.” Docs. [85-9] at 3-4, 13, 22, 24, 27; [87-9]; [87-20].
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. 6
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 counse ling program;
6
Defendant also asserts that any loss suffered by Plaintiff was due to her own conduct because, “had
Gaarder remained in, and graduated from, the Hybrid Program, she would have a CACREP
accredited degree.” Doc. [81] at 13. But at the time Plaintiff withdrew, the Hybrid Program was not
accredited. Because Defendant does not argue that Plaintiff knew or should have known that
(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. [41-1] ¶ 45. Plaintiff claims that, but for the fraudulent omissions, she would not have
enrolled in the Hybrid Program. . ¶ 53.
Richards v. ABN AMRO Mortg. Grp., Inc.
“Missouri courts have not recognized a separate tort of fraudulent nondisclosure.”
Hess v. Chase Manhattan Bank, USA, N.A.
, 261 S.W.3d 603, 607 (Mo. Ct. App. 2008) (citing
, 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 Gaarder because Webster voluntarily
disclosed the information.” Doc. [81] 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
Schulte v. Conopco, Inc.
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
for business, career, and professional purposes.
(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. [81]. 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 16. 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
eliminating the need to prove reliance Schuchmann v. Air Servs.
on Count III because “the MMPA supplements the de�inition of common law fraud,
Heating & Air Conditioning, Inc.
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
MMPA claim. Plaintiff counters that they are “incorrect and false statements about the
accreditation status at the present time the statement was made, not promises or
representations about the future or statements about what a third party might do.” Doc.
[83] 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 statement (e) cannot form the basis for Plaintiff’s MMPA
claim because it was made to Rhoads, not Plaintiff. According to Defendant, “[s]tatements
made to others are hearsay which are inadmissible and cannot support Plaintiff’s claim.”
See
Doc. [81] at 13. Of course, not all out-of-court statements are hearsay, including statements
of an opposing party. Doc. [83] at 15; Fed. R. Evid. 801(d)(2). And while the Court is
not prepared to make a �inal determination of the admissibility of statement (e) for any
could
particular purpose at trial, that is not necessary at the summary judgment stage, when all
Gannon Int'l, Ltd. v. Blocker
that matters is “whether it be presented at trial in 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
the statement in paragraph (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?
Q: So you just testi�ied you let them know what that withdrawal window was, right,
in March of 2022?
A: Yes.
Doc. [82-8] at 39. Dr. Stehn’s testimony is consistent with the email she sent to Plaintiff on
March 24, 2022, after Plaintiff asked how to go about withdrawing from the program:
Plaintiff’s email: “I would like to withdraw from classes and the program. How do I
ensure that everything is done properly by tomorrow, given the deadline for a full
refund for this coming term?”
Dr. Stehn’s response: “If you wish to withdraw from the program entirely, please
drop your current classes before 11:59 p.m. If you use �inancial aid, I recommend
contacting the �inancial aid of�ice after dropping your classes to �ind out if there is
anything else that they need.”
Doc. [82-35]. Viewing the evidence in the light most favorable to Plaintiff, there is a
genuine issue 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. [82-
id
4] at 16-17. When asked if there was “any particular reason why [she] wanted to pursue
counseling,” . at 15, Plaintiff responded: “My particular reasons would be having gone to
a counselor, and feeling the impact, the positive impact that that profession makes
available for clients. . . . I wanted a different method of being able to empower young
also am a very big social justice activist, and I felt like that was a way that I could both
Id
support myself and my family while doing work that I �ind very meaningful and important.”
. 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. [87].
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
con�identiality 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.
[87] and its attachments.
Accordingly,
IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment, Doc.
[80], 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. [80], 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. [87] 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 must be filed no later than October 6, 2025. Failure to timely file such a
motion will result in the unsealing of Doc. [87] 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 14 n.3.
Dated this 22nd day of September, 2025.
Chuak LV teh,
SARAH E. PITLYK
UNITED STATES DISTRICT JUDGE
22