By Chris Villani

Law360 (December 14, 2020, 12:18 PM EST ) Northeastern University will have to face most of a proposed class action suit by students seeking tuition refunds for classes that were forced online by the COVID-19 pandemic, a federal judge ruled Monday.

An undergraduate and a graduate student sued the Boston school after it failed to give back tuition money spent on the Spring 2020 semester — which was upended as the pandemic first surged in Massachusetts — claiming Northeastern breached the Annual Financial Responsibility Agreement, or FRA. The school has argued there is nothing in the FRA that guarantees in-classroom learning under any circumstances.

U.S. District Judge Richard G. Stearns said Monday it's possible students could have read the document differently, denying Northeastern's motion to dismiss a breach of contract claim tied to tuition payments.

"Drawing all inferences in plaintiffs' favor, the court cannot, as a matter of law, say that no student who read these statements could have reasonably expected that executing the FRA and registering for on-campus courses would entitle them to in-person instruction," Judge Stearns wrote.

The judge also allowed portions of the suit seeking reimbursement of a campus recreation fee to go forward. That payment allows students to attend the Huskies' home athletic events and use several fitness centers and pools on campus.

"Plaintiffs have stated a plausible claim for breach of contract with respect to the campus recreation fee," Judge Stearns wrote.

Judge Stearns ruled that it is too early to toss the students' unjust enrichment claims as well, but he did nix part of the suit that sought money back on a student activity fee, finding that those dollars go to "support" certain on-campus facilities, rather than to gain admission to them.

Counsel for the students, Cliff Holmes, said Monday, "We're pleased that after a careful review of the pleadings and arguments presented, Judge Stearns denied Northeastern's motion to dismiss as pertains to our clients' claims for partial tuition reimbursement."

A Northeastern representative did not immediately respond to a comment request Monday.

The case is one of many filed by college students nationwide seeking tuition refunds after the pandemic largely shifted courses online. Harvard University is facing a similar suit and has moved to dismiss the claims.

The Northeastern students said in their suit, first filed in May, that they lost out on valuable in-person instruction and the use of the school's facilities when the pandemic forced everything online and that they should be entitled to some money back.

As a range for how much the proposed class members are entitled to recover, the students have cited Princeton University, The George Washington University and Georgetown University, each of which lowered tuition by 10% for the fall semester after sending students home in the spring, as well as some frustrated Northeastern students who said they hoped for a 50% discount.

During a hearing earlier this month, the school argued that the FRA was never meant to incorporate every single aspect of registration and attending classes. Interpreting the agreement that way could leave the door open for students suing if they did not like their professor or if the time or location of a class were changed, the school said.

The students are represented by Gary M. Klinger and Gary E. Mason of Mason Lietz & Klinger LLP, W. Clifton Holmes of The Holmes Law Group Ltd. and Douglas F. Hartman of Hartman Law PC.

Northeastern University is represented by Daniel J. Cloherty, Rebecca M. O'Brien and Victoria L. Steinberg of Todd & Weld LLP and John A. Shope and Rachel C. Hutchinson of Foley Hoag LLP.

The case is Chong et al. v. Northeastern University, case number 1:20-cv-10844, in the U.S. District Court for the District of Massachusetts.

--Editing by Alyssa Miller.

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