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Law360 (March 4, 2021, 12:13 PM EST ) Northeastern University wants a pretrial win in a proposed class action by students seeking tuition dollars back because COVID-19 forced classes online, telling a judge Wednesday that its agreement with students bars claims for events out of its control.
The school is one of several nationwide facing claims that money spent during the ill-fated spring 2020 semester should be refunded because students were denied in-person instruction due to the health crisis.
Northeastern lost its bid to have the charges dismissed in December, but argued in a Wednesday evening filing that the students suing agreed to abide by the student handbook. That document includes a so-called delivery of services clause that affords the school wide latitude for how it renders services to students during extraordinary situations, the filing said.
"The delivery of services provision, which is binding and enforceable, and to which the plaintiffs explicitly agreed, belies any reasonable expectation of in-person instruction during a pandemic and, in any case, bars claims due to events beyond Northeastern's reasonable control," the motion for summary judgment said.
Northeastern argued it should escape liability through two subclauses in the provision. The first is a "reservation of rights" clause, which allows the school to "make changes of any nature" and make a "substitution of alternatives" to its scheduled courses and academic activities. The second is a force majeure clause, shielding Northeastern from liability when its services are interrupted by something beyond its control.
The handbook also incorporates a refund schedule that allows students to get their money back only if they withdraw within the first five weeks of a semester, according to the motion.
In denying Northeastern's previous motion to dismiss, U.S. District Judge Richard G. Stearns looked to the annual financial responsibility agreement, or FRA, that Northeastern is alleged to have breached. The judge said he could not definitively rule out the idea that students who read the document could have interpreted it to mean they were entitled to in-person learning.
In its motion Wednesday, Northeastern acknowledged the court's finding concerning the "reasonable expectation" of in-person instruction, but stressed that Judge Stearns noted that "additional documents, on a more complete record, might foreclose any such reasonable expectation."
Those documents, the school argued, are the subclauses in the delivery of services clause.
Counsel for the students and a Northeastern representative did not immediately respond to comment requests Thursday.
Judge Stearns' December ruling allowed most of the students' suit to proceed, including a breach of contract claim tied to tuition payments, portions of the suit seeking reimbursement of a campus recreation fee and unjust enrichment claims.
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 asked a different federal judge to throw it out.
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.
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.
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 Marygrace Murphy.
For a reprint of this article, please contact reprints@law360.com.
