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Friday, April 10, 2020

University of Miami sued in South Carolina

A putative class action has been filed on behalf of all students against University of Miami, alleging breach of contract and unjust enrichment for sending students home and for teaching them remotely. A lot of people (especially Michael Abramowicz at Volokh) were anticipating such lawsuits and writing about whether schools will have a force majeure defense.

I find the case interesting because the action was filed in South Carolina (where the lead plaintiff lives), raising some jurisdiction and forum-selection problems. Too bad I wrote my exam, because this is a beauty.

Paragraph 8 lists a bunch of minimum contacts, including:

has solicited students residing in South Carolina to attend their institution;
has accepted money, including application and other fees, from students residing in South
Carolina; has participated in college sports competitions and/or academic competitions in
South Carolina; have websites accessible to students in South Carolina; have entered into
contracts with South Carolina residents; and generally have minimum contacts in South
Carolina . . .

A few potential problems.

Sports and academic competitions and an accessible web site are contacts with the state, but those contacts do not seem to "give rise or relate to" the breach of contract claim. That UM's women's basketball team plays Clemson once a year has no connection to whether the school breached its contract by teaching students on-line.

Entering a contract with a South Carolinian gives rise to the claim. But the claims of non-SC class members are not based on contracts entered into  in South Carolina; those contracts were entered into elsewhere. A claim should "relate to" contacts where the defendant engages in identical conduct in the forum state and outside the forum (this is the point in Ford, which was to have been argued at the end of the month). But Bristol Meyers rejected (although not in a federal class action) jurisdiction over claims by out-of-state plaintiffs over out-of-state conduct, even where that conduct is identical to the in-state conduct over which in-state plaintiffs sued. This is Bristol Meyers--identical contracts with SC and non-SC plaintiffs, all plaintiffs together in SC.

There was communication and engagement with South Carolina--soliciting, sending materials, accepting money. But the contract was "about Florida," in that this is where performance was to occur and the things for which plaintiffs paid--dorm space, campus spaces, parking--were in Florida.

If there is jurisdiction, there could be a strong transfer-venue argument, since Miami is the locus of performance of the contract and it is obviously not inconvenient for the plaintiff to travel there, even if she is home in her chosen venue.

One last point on the merits: What do the plaintiffs want and what do they believe the school should have done? They want room-and-board and other campus fees reimbursed, which makes some sense. But what about with respect to tuition? Full tuition reimbursement, even though the students are receiving some (if inferior) instruction? Reimbursement of the difference in value between on-line and in-person education (either for the entire semester or the pro rata portion that went online), however that can be determined? Suspend the semester with full reimbursement and a requirement that the students return for (and pay for) an extra semester at the tail end, thereby delaying graduation by 4-6 months? Or do they want reimbursement and a pass for the semester, so they graduate with only 7 1/2 semesters of course work. Paragraph 24 complains that "the value of any degree issued on the basis of online or pass/fail classes will be diminished for the rest of Plaintiff’s life." Would that be as true if the school awarded a degree with one less semester of work?

Posted by Howard Wasserman on April 10, 2020 at 02:00 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink



The article states that students “want room-and-board and other campus fees reimbursed, which makes some sense.”

Indeed, I laid out the legal arguments for such recovery, and predicted law suits for these damages.

Subsequently a number of schools which had previously denied such requests, or had not announced a decision, decided to authorize reimbursement. See, e.g.,

Coronavirus-Related Dorm Evictions Likely to Spur Class-action Lawsuits, Law Professor Warns

Law Prof: Campus Dorm Closures Will Lead to Class Action Lawsuits

To see the legal analysis, which may have caused others to change their position, see:

Colleges Could Be Sued Over Coronavirus Dormitory Evictions;
Settling Law Suits Might Be Better Than Risking Class Action Verdicts

Such suits have now been filed against three universities in Arizona.

Also, here’s another followup complication.

After Sudden Coronavirus Evictions, Universities Demand Students Pay to Get Their Stuff Back

The arguments seeking legal relief because some teaching was switched from in-class to on-line are different and weaker.

In part this is because there’s no clear and simple way for judges to measure the value and importance of one mode of teaching against the other.

Also, courts have tended to accord a great deal of deference to universities and their faculties in making determination regarding academic matters.

Posted by: LawProf John Banzhaf | Apr 11, 2020 7:47:53 PM

I wonder how COVID-19 will affect the balance of private factors in § 1404 transfer and forum non conveniens cases. With travel becoming more difficult and in-person discovery becoming all but impossible, even as video proceedings become the norm, I could see the equities shifting. For example, we might think the plaintiff here has an especially good reason to sue in her home forum. At the same time, we might think the burdens on either plaintiff or the University associated with litigating in a foreign forum to be at a minimum under present circumstances, given that most courts have moved to telephonic or video conferences.

Posted by: Tommy Bennett | Apr 11, 2020 9:29:58 AM

No informed thoughts on the jurisdictional issues here. (Although Howard's observations strike me as eminently sensible).

On the merits, I hope U Miami defends on the merits the claim that serious commitment to remote/online teaching is a reasonably response to COVID-19 emergency. This will be important not only in this lawsuit, but to the community of students and others who might be concerned that schools (law schools and others) are taking their obligations to provide instruction at a high level seriously. Because, in my experience, they are.

Posted by: dan rodriguez | Apr 10, 2020 6:22:37 PM

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