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Law360 (March 25, 2021, 2:15 PM EDT ) Northeastern University students seeking refunds for the virtual spring 2020 semester told a federal judge Wednesday that a purported force majeure disclaimer buried in the school's online portal is too inconspicuous and one-sided in its terms to be enforceable.
Students in Northeastern graduate and undergraduate programs during the school's state-ordered pandemic shutdown and transition to online classes say the university can't rely on a disclaimer that protects the school in the event it is required to adapt its instruction on an emergency basis.
To get to that disclaimer, the students said they must click on an agreement to access the school's online portal for class registration and grading, then click through multiple links before they are greeted with explicit statements that the terms are not a contract.
"Northeastern's agreements were ambiguous, failed to provide reasonably conspicuous notice of the terms Northeastern now seeks to enforce, and thus plaintiffs did not unambiguously assent," the students wrote in their opposition to the school's summary judgment bid. "Each of these agreements are at best contracts of adhesion because Northeastern presented all terms on a take-it-or-leave-it basis."
The fact that the terms also highly favor Northeastern makes the purported contract less enforceable, the students say.
"That Northeastern is able to extract a (purported) contractual concession that it can both keep students' money and not provide the services is substantively unconscionable," the students said.
The ambiguity and one-sidedness of the purported contract, as well as what the students say are remaining factual disputes, are enough to sink Northeastern's bid for a quick, pretrial win in the case, according to Wednesday's filing.
The students, two undergraduates and one graduate student, sued Northeastern in May on the basis 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 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 amid the health crisis.
Northeastern lost its motion to dismiss the suit in December as U.S. District Judge Richard G. Stearns said it was an open question whether an annual financial agreement might have required the school to provide in-person education.
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 Amy Rowe.
For a reprint of this article, please contact reprints@law360.com.
