By Matthew Santoni

Law360 (June 2, 2021, 2:00 PM EDT ) Students at Carnegie Mellon University told a Pittsburgh federal court that more than a handful of written agreements governed the school's alleged obligations to provide in-person instruction, as they sought to avoid dismissal of a proposed class action over a switch to online classes during the coronavirus pandemic.

The proposed class led by Abigale Pfingsten and Anokhy Desai said in a brief that prior federal court decisions tossing similar suits against Temple University, the University of Pennsylvania and the University of Pittsburgh were wrong to discount the implied promises made about the benefits of on-campus classes, which students allegedly paid for but did not get when schools moved online halfway through the spring semester of 2020 due to COVID-19.

"The Pitt, Temple and Penn opinions all presume, directly or indirectly, that any enforceable promise by the universities must be express and in writing. But, as plaintiffs show here, there are substantial allegations from which the court can reasonably infer a promise by defendant to provide in-person, on-campus instruction and services," the students said in a brief filed Friday and made public Tuesday. "When faced with an array of choices for shaping their education, plaintiffs specifically chose in-person education at a specific campus, and they paid defendant to get those benefits."

The students were seeking to avoid dismissal under arguments that had scuttled the suits against the other universities. Some of the same attorneys are also representing students at Point Park University, another Pittsburgh institution, in their effort to argue that the schools had violated an implied contract for in-person instruction.

Carnegie Mellon pointed to the "statement of financial obligation" that students sign at the start of a semester as one of the few written contracts that applied, and the federal courts looked to equivalent agreements at the other universities when finding they contained no explicit promises of in-person instruction.

But the CMU students countered by saying the statement of financial obligation was not a valid "contract" because it only constrained the students and didn't lay out any of what the university was providing in return, what the exact price would be and what each party's rights and remedies would be in a dispute.

"While the document purports to bind the student to pay charges 'incurred by you or on your behalf while at Carnegie Mellon,' it does not actually require defendant to provide any benefits or services in exchange for such payment," the brief said. "Here, the [statement of financial obligation] contains no material terms at all. The document fails to address what (if any) services defendant will provide or the duration that such services will be provided. ... For these reasons, the [statement of financial obligation] is not contractual, it is, at most, a mere agreement to agree."

The brief also attacked other documents Carnegie Mellon said were part of its express contract with students, arguing that none contemplated the kind of dramatic shift in education that the school implemented, or keeping tuition and fees for on-campus classes and services the students didn't get.

An emergency closure policy was intended for "temporary" closures of a week at most, not an entire semester; a tuition adjustment policy was not a contract because it only dealt with when students could get refunds for withdrawing and breaching their end of the educational bargain — not when the university broke its word, the brief said. And a warning that the schedule of classes could be subject to frequent changes and updates was not sufficient because the "schedule" the university cited was more of a course catalog that the typical student would not read through beyond searching for the classes pertaining to his or her interests and major.

The students also sought to preserve other claims as alternatives to their breach of contract claim, such as unjust enrichment on the university's part, or the students' claim for "money had and received" for goods and services the university never delivered.

"Plaintiffs allege that they paid tuition and mandatory fees for an in-person educational experience and did not receive one. Thus, the goods contracted for were not actually delivered, defendant's consideration provided was insufficient and plaintiffs have stated an adequate claim for relief," the brief said. "Equity and good conscience require disgorgement not because defendant switched classes to a virtual format, but because defendant did so while retaining the tuition and fee monies plaintiffs paid for an in-person education, experience and services."

The students rejected Carnegie Mellon's argument that the suit was "second-guessing" the university's educational decisions and was really making an "educational malpractice" claim.

"The complaint does not allege a cause of action for educational malpractice," the brief said.

"Plaintiffs allege that defendant failed to provide specifically identified contracted-for services — a standard commercial business decision and one that is not academic in nature."

Counsel for the students and Carnegie Mellon University did not immediately respond to requests for comment Wednesday.

The proposed student class is represented by Gary F. Lynch, Edward W. Ciolko and Kelly K. Iverson of Carlson Lynch LLP and Philip L. Fraietta, Frederick J. Klorczyk III and Sarah N. Westcot of Bursor & Fisher PA.

Carnegie Mellon is represented by Jeffrey Weimer, Catherine S. Ryan and Daniel I. Booker of Reed Smith LLP.

The case is Pfingsten et al. v. Carnegie Mellon University, case number 2:20-cv-00716, in the U.S. District Court for the Western District of Pennsylvania.

--Editing by Stephen Berg.

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