Part 1: Introduction and Overview
Earlier this month, Boston University prevailed in one of the few surviving Boston-based COVID-19 tuition refund class action suits. The U.S. District Court in Boston granted BU’s Motion for Summary Judgment finding that BU “did not make an open-ended promise to provide an ‘on-campus experience’ in exchange for a ‘semester cost.’” Unlike student-plaintiffs in other, largely unsuccessful COVID tuition refund litigation, the plaintiffs in this case made arguments based not on the difference in quality of in-person versus online education but rather based on their contracts with the university, which plaintiffs said constituted a “binding promise to provide students in-person instruction (or tuition refunds should in-person classes become unavailable), a promise on which students relied in prospectively paying their tuition.” Although the Court disagreed, Judge Richard Stearns, citing a still-live COVID tuition litigation case against Brandeis University, found that “BU must still provide restitution for the difference in value between what they were promised and what they received.”
During the early phases of the COVID-19 pandemic we saw a proliferation of class action lawsuits related to the coronavirus across industries, jurisdictions, and areas of law. In particular, we noted an overwhelming number of class action lawsuits filed against colleges and universities as campuses closed down and pivoted to remote learning. While the facts of these suits vary, almost all assert claims for breach of contract and unjust enrichment. As we noted previously, the complexities of these COVID-related fact patterns are often over-simplified by plaintiffs’ lawyers to increase the likelihood that a court will certify it as a class action. To date, most of the COVID-19 tuition class action suits haven’t made it very far – most have reached the end of the road as early as a motion to dismiss.
The Boston Cases
Despite the common impediments of these cases, until early April, there were two Boston-based COVID-19 tuition cases still alive in Massachusetts federal court – the case against Boston University and one against Suffolk University, both private universities that switched to fully remote learning during the Spring 2020 semester.
In both cases, plaintiffs asserted breach of contract and unjust enrichment claims for two types of claims: tuition-based claims and fee-based claims, with fees being monies paid for use of or access to university facilities. In the Suffolk case, plaintiffs argued that the terms of the contract at issue are “as implied or set forth by [Suffolk] through its website, academic catalogs, student handbooks, marketing materials and other circulars, bulletins, and publications.” Durbeck v. Suffolk Univ. In the BU case, plaintiffs identified a contractual right to provide in-person instruction (or tuition refunds should in-person classes become available) “in certain representations made in BU’s course registration materials.” In re Boston U. COVID-19 Refund Litig.
In the Brandeis case mentioned above, Omori v. Brandeis Univ., the U.S. District Court has allowed similar contractual arguments against the university to proceed, and in early February the plaintiffs moved for class certification.
In Part 2, in this series we will review the legal backdrop of COVID-19 tuition refund class action litigation and explore the common pitfalls in education-based claims.
Part 3 will review the BU and Suffolk cases in more detail, including the specific arguments made by the parties in their fee and tuition-based claims.
 This stands in contrast, for example, to a case brought against Harvard University, in which plaintiffs failed to allege facts suggesting that Harvard would “reasonably expect students to understand from such material that Harvard had promised to provide in-person instruction, even where, during a global pandemic, the Governor and public health officials dictated otherwise.” Barkhordar v. Pres. and Fellows of Harvard Coll. The plaintiffs amended their suit in July 2021 to rectify these errors; however, the parties settled in January 2023 prior to any determination on class certification.