In response to governmental recommendations, stay-at-home orders, and shelter-in-place orders, colleges and universities transitioned to distance learning to keep their students, staff, visitors, and communities safe and healthy.  Nonetheless, the plaintiffs’ bar has viewed this as an opportunity to pounce and even advertise to sue colleges and universities nationwide.  Indeed, plaintiffs’ attorneys have filed over 60 class action lawsuits against higher education institutions and many, many more are likely to come.

A review of many of these class actions provides a roadmap to the strategy and what is likely to be asserted against your institution if it has not already been sued.

Summary of Filed Class Actions:  Many of these actions seek refunds for tuition, room and board, on-campus dining, and other fees (e.g., recreation fees).  Plaintiffs, seeking refunds, assert that on-line learning has deprived them of the rich on-campus experience for which they had paid.  Although these class actions have asserted a variety of damages theories, they all seek some variation of the delta between the cost and value of on-campus and distance learning.  These class actions also normally assert the same core cause of action: (1) breach of contract; (2) unjust enrichment; and (3) conversion.

Fortunately, colleges and universities have a toolkit to fight this attack:

Motion to Dismiss/Strike Class Allegations:  At the outset of the litigation, colleges and universities will likely want to challenge the sufficiency of the complaint.  In federal court, a claim must be facially plausible to survive a motion to dismiss.  A targeted motion to dismiss in these cases could argue, for example:

  • Plaintiffs failed to plead sufficient facts, such as identifying what specific provision of the contract defendants allegedly breached, to support their allegation that defendants did not comply with its contractual obligations;
  • Plaintiffs’ claim for unjust enrichment is legally invalid because such claim is unavailable where a contract exists; and/or
  • Plaintiffs have failed to plead any facts that prove defendants committed the intentional tort of conversion nor do plaintiffs allege a possessory interest in the property.

Similarly, a motion to strike class allegations allows an early opportunity for the Court to find that plaintiffs’ proposed class cannot be certified.  For example, defendants can argue that plaintiffs’ case should be barred by force majeure or impossibility of performance defenses, and that the class definition is improper because it requires an individualized inquiry on who actually paid the tuition and fees at issue.

Motion for Summary Judgment:  Prior to a certification ruling, a motion for summary judgment can be used to defeat the claims of the named plaintiffs.  In this motion, defendants can use the discovery that has been performed to argue that plaintiffs’ claims for recovery are not supported by undisputed factual evidence.  For example, defendants could argue that plaintiffs did not suffer any damages because someone else paid for the tuition and/or plaintiffs rarely went to in-person classes.

Opposition to Class Certification: At this stage, defendants’ main objective will be to attack plaintiffs’ class allegations through various individualized issues that would usurp plaintiffs’ ability to show adequacy of representation, questions of law or fact common to class members predominate, and a class action is the superior method of adjudicating the controversy.

For example, the following individualized issues developed in discovery could support this opposition:

  • Differences among majors;
  • Differences among class settings;
  • Differences among in-person attendance;
  • Differences among payment and financial circumstances;
  • Differences among remote learning abilities;
  • Differences among remote learning attendance;
  • Differences among utilization of other on-campus services (such as gyms);
  • Differences among class years; and
  • Many other differences.

Moving Forward:  As always, every case and every state’s laws present different challenges.  Factual and legal differences can be vitally important and should be analyzed thoroughly.  For example, a university that has published numerous statements or writings expressing a negative view of distance learning has a different strategy from a university that offers both in-person and distance learning degrees for comparable prices.

McGuireWoods is monitoring these developments and willing to assist with any questions or concerns that you may have.  McGuireWoods’ COVID-19 Response Team helps clients navigate urgent and evolving legal and business issues arising from the novel coronavirus pandemic.

For assistance, contact the authors, a Response Team Member or send an email to