Part 4: Making a COVID-19 Tuition Suit Last

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We recently highlighted two Boston-based COVID-19 tuition refund class action suits, against Brandeis University and Boston College, and the impact of a provision in the Commonwealth’s Fiscal Year 2024 Budget that grants retroactive immunity from claims arising out of tuition or fees paid for the Spring 2020 term. In both cases, with orders issued just days apart, the U.S. District Court for the District of Massachusetts in Boston found that provision, Section 80(b), was reasonable and narrowly tailored and therefore not unconstitutional. In the Brandeis case, the ruling ended the matter entirely, whereas the case against BC will proceed as to the non-Spring 2020 semesters.

A Refresher on the Boston-Based Cases

In Part 2 of our series, we reviewed the legal backdrop of this wave of class action litigation and explored some common pitfalls in education-based claims, building off of our initial post, which focused on suits against Suffolk University and Boston University. In

The Budget Saves Brandeis: An Update on COVID-19 Tuition Litigation

In Part 2 of our series on our Massachusetts and Boston-based COVID-19 tuition refund class action suits, we reviewed the legal backdrop of this wave of class action litigation and explored some common pitfalls in education-based claims, noting that even where cases are able to proceed based on adequate framing of the claims and underlying facts, many lose their steam when a university successfully argues for denial of plaintiffs’ attempts to pursue their cases as class actions. One example of a Boston-area case in which class certification that we discussed was the May 2023 denial in Omori v. Brandeis University, which was dismissed earlier this month for an entirely different reason. We discuss that below, along with a similar ruling in Rodrigues v. Boston College issued just days prior.

Immunity for Tuition Claims in the 2024 Budget

Despite the defeat of its attempt to certify the proposed class (as well as the First Circuit’s denial of plaintiffs’

Supreme Court Dismisses ADA Website Accessibility Class Action for Mootness, Vacates First Circuit Decision

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At the close of 2023, the Supreme Court dismissed the appeal of petitioner Acheson in Acheson Hotels, LLC v. Laufer as moot and vacated the underlying decision by the First Circuit that Laufer had constitutional standing to bring her ADA claims. The decision came as no surprise following the Justices’ sharp focus on mootness during oral argument in October. Our earlier posts provide coverage of that oral argument and the petition for appeal. At the time of oral argument, it was uncertain whether the Court would rest its decision concerning jurisdiction on mootness or standing. That question has now been resolved.

Laufer’s Unusual Controversy and Procedural History

The Court’s decision rested on the unique procedural posture of the case. Acheson filed its appeal following the First Circuit’s decision that Laufer demonstrated sufficient injury to have Article III standing to pursue her ADA claims against a hotel with alleged accessibility

District of Rhode Island Rules that Class Action Waivers are Not Enforceable Outside of Arbitration

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Earlier this month, in Elsie Metcalfe v. Grieco Hyundai, LLC, the Rhode Island Federal District Court invalidated a class action waiver in an agreement without an arbitration clause that was therefore not subject to the Federal Arbitration Act.

In Metcalfe, Plaintiff Elsie Metcalfe leased a car from Defendant Grieco Hyundai, LLC, in May 2019.  The lease agreement included an option to purchase the vehicle at a specific price at the end of the lease.  When the Defendant raised the price, Ms. Metcalfe brought a class action for breach of contract and violation of the Rhode Island Deceptive Trade Practices Act, among other claims.  The Defendant moved to dismiss based on a provision in the lease agreement that waived the lessor’s right to bring or join a class action related to the lease.

Class Action Waivers Held to Violate Rhode Island and Massachusetts Public Policy

The District Court held the waiver

Supreme Court Hears Oral Argument on Article III Standing of Testers to Bring ADA Website Accessibility Class Actions

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Earlier this week, the Supreme Court heard oral argument in Acheson Hotels, LLC v. Laufer, a case that we have summarized in prior blog posts.  Just months ago, there was doubt whether the Supreme Court would hear the case at all. While the Court granted Acheson Hotels’ petition for a writ of certiorari in March 2023, Laufer urged the Court to dismiss the case for mootness in July 2023 following the voluntary dismissal of her claims. Acheson Hotels opposed dismissal and urged the Court to hear its challenge to Laufer’s constitutional standing. The Supreme Court, in an unsigned, two-sentence order dated August 10, 2023, denied the request to dismiss the case as moot and stated it would consider mootness at oral argument in addition to the question presented. The parties and other interested non-parties briefed the matter, and the solicitor general was granted permission to participate in oral argument.

Sixth Circuit Rejects Traditional Certification Process in FLSA Collective Actions, Deepening Circuit Court Divide

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In Clark v. A&L Homecare & Training Ctr., LLC, 68 F.4th 1003 (6th Cir. 2023), the Sixth Circuit Court of Appeals recently created a new standard for its district courts to employ when determining whether to authorize notice in Fair Labor Standards Act (FLSA) cases, or what other Circuits typically refer to as the “conditional certification” phase of a FLSA collective action.  In fact, the Sixth Circuit altogether rejects characterization of this notice stage as “certification” of anything, conditional or otherwise, noting that the term is borrowed from Rule 23’s governance of class actions, which are “fundamentally different” from FLSA collective actions.

Sixth Circuit’s New Standard

Rather than adopt the widely applied “two step” conditional certification process first set forth in Lusardi v. Xerox Corp., 118 F.R.D. 351, 361 (D.N.J. 1987), and subsequently adopted and followed by district courts in the majority of Circuits, including the First, the Clark

New England Cybersecurity and Data Privacy Class Action Filings Soar in 2023

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Earlier in 2023, we launched our New England and First Circuit Class Action Tracker, as a tool to analyze class action litigation trends in Massachusetts, Maine, New Hampshire, and Rhode Island. In July, we updated our tracker to include data through the second quarter of 2023. A review of new filings submitted during that latest quarter reinforces the trends that we recently observed in our client alert on the enforcement of U.S. Consumer Data Privacy laws through private litigation. Namely, we are seeing record-high levels of data privacy and cybersecurity class action filings, particularly in Massachusetts courts, in the first half of 2023.

Data privacy and cybersecurity class action suits continue to represent the largest share of annual class action filings in New England to date. Although the healthcare sector continues to represent the largest share of defendants, other sectors, such as tech, retail and manufacturing, and financial and professional services industries are also experiencing high rates of cybersecurity and data

SJC Amends Notice Requirements Under Mass. R. Civ. P. 23

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Earlier this year, the SJC approved several amendments to the Massachusetts Rules of Civil Procedure, which are to take effect on September 1, 2023.  One such amendment applies to Mass. R. Civ. P. 23, and specifically to the section concerning notice to the Massachusetts IOLTA Committee prior to the disposition of residual or “cy pres” funds. That section, 23(e)(3), currently provides: “Where residual funds may remain, no judgment may enter or compromise be approved unless the plaintiff has given notice to the Massachusetts IOLTA Committee for the limited purpose of allowing the committee to be heard on whether it ought to be a recipient of any or all residual funds.”

That section, 23(e)(3), has been amended to include the following two sentences:

The plaintiff shall provide such notice no later than 30 days prior to the entry of judgment or any hearing approving any compromise that creates residual funds. If no later than 10 days prior to the entry

First Circuit Revives Data Breach Class Action Claims in Webb v. Injured Workers Pharmacy, LLC

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Courts and class action counsel have been considering what kinds of injuries can confer standing to pursue federal claims following the Supreme Court’s 2021 decision in TransUnion LLC v. Ramirez, which held that the defendants’ alleged actions that “deprived [plaintiffs] of their right to receive information in the format required by statute” was not sufficient to establish a concrete injury necessary to bring a claim. Ever since the TransUnion decision, the question of what is sufficient injury has been reverberating throughout the lower courts and reaching federal courts of appeal.

The First Circuit has now confronted that question on multiple occasions, including its 2022 decision in Laufer v. Acheson (now on appeal to the Supreme Court) that held “dignitary harm” from discrimination was sufficient, along with allegations of “frustration and humiliation” to confer standing on a serial plaintiff who is a website accessibility tester. For more on Laufer,

Staying Put: Supreme Court Holds that District Courts Must Stay Proceedings Pending Arbitration Appeals

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On June 23, 2023, in Coinbase, Inc. v. Bielski, the Supreme Court resolved a deeply divided circuit court split and ruled that a district court must stay its proceedings while an interlocutory appeal on the question of arbitrability is ongoing. Justice Kavanaugh delivered the opinion of the Court, with Justices Roberts, Alito, Gorsuch, and Barrett joining the majority. Justice Jackson filed a dissenting opinion, in which Justices Sotomayor and Kagan joined in full, and in which Justice Thomas joined in part. The 5-4 decision has far-reaching implications for class action strategy and practice when arbitration provisions are at issue.

The Underlying Dispute Concerning Whether Proceedings Must Be Stayed Pending Arbitration Appeals

In the underlying case, Coinbase filed a motion to compel arbitration based on its user agreement following the filing of a putative class action on behalf of Coinbase users who alleged the company failed to replace funds fraudulently taken from user accounts. The district court