By Brian Dowling

Law360 (April 29, 2021, 2:06 PM EDT ) The future of Northeastern University students' putative class action seeking a partial tuition refund for the school's pandemic shift to remote classes could come down to whether a university force majeure clause wins out over the argument that its terms was buried in a document that described itself as not a contract.

In arguments Thursday morning before U.S. District Judge Richard G. Stearns over Northeastern's request for a quick, pre-trial win in the case, the judge focused his questioning on whether the school gave clear enough notice to students of the agreement's terms.

Northeastern told Judge Stearns that students should have been paying "close attention" to the agreement they clicked on during a mandatory screen that appeared before they could access the university websites for class registration and grading. The university said it had never promised in-person classes.

The school's attorney John Shope of Foley Hoag LLP cited the First Circuit's recent opinion that upheld an arbitration provision outlined in a document attached to a similar click-through screen for people looking to work as cleaners for Handy Technologies Inc.

"If people applying for jobs as house cleaner are expected to scroll through and read a document, then certainly students at a top 40, nationally ranked university should be expected to read documents that the university is telling them to read," Shope said.

The fact that the university linked to the documents through what Shope called a "lifeline" school website underscores its case that students were agreeing to the terms within the documents. 

The students told the court that the way the school buried the delivery of services terms at the back of the handbook that wasn't linked directly from the portal screen means it didn't incorporate it into the agreement.

The student's attorney Patrick F. Madden of Berger Montague PC said he wasn't aware of any Massachusetts case that backed the idea that "burying a contract term under multiple links and numerous documents reasonably communicates the contract's term."

He also pointed to the handbook's passage that said its information is "should not be regarded as contractural."

The students, two undergraduates and one graduate student, sued Northeastern in May 2020 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 Judge 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 Patrick F. Madden, E. Michelle Drake, Joseph C. Hashmall and Shanon J. Carson of Berber Montague PC; David Pastor of Pastor Law Office LLP, Frederick J. Klorczyk III; and Alec M. Leslie of Burson & Fisher PA, 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 John Shope and Rachel C. Hutchinson of Foley Hoag LLP; and Victoria L. Steinberg, Daniel J. Cloherty and Rebecca M. O'Brien of Todd & Weld 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.

--Additional reporting by Max Kutner and Chris Villani. Editing by Gemma Horowitz.

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