COVID-19 university shutdown claim is revived on appeal

When the COVID-19 pandemic came upon us, I imagined there would be some lawsuits growing out of the shutdowns and even the vaccine mandates. But I did not anticipate that people would sue colleges and universities for charging full admission for remote classroom instruction. This case survives the appellate process and returns to the district court.

The case is Yodice v. Touro College and University System, a summary order issued on 19. Plaintiff and a potential class of plaintiffs sued Touro's College of Dental Medicine. It all started when Touro switched to remote learning in March 2020 when COVID-19 shut down the world. Plaintiff sues for breach of contract "for certain fees for services and activities that students could no longer access after Touro switched to remote instruction." They also claim that Touro is liable for false advertising and deceptive practives over its marketing practices relating to in-person instruction. Finally, on the unjust enrichment theory, they seek tuition reimbursement arising from Touro's switch to remote instruction.

The tuition reimbursement claim is reinstated (the district court dismissed that claim) because the Second Circuit previously held that such claims arising from the pandemic shutdown are viable. That case was Rynasco v. New York University, 63 F.4th 186 (2d Cir. 2023). The breach of implied contract case/tuition reimbursement claim is back on the docket. While Touro points to a disclaimer in its course catalogue as a defense to this case, the Court of Appeals (Raggi, Lohier and Wesley) says the disclaimer is too broad to defeat the implied contract claims. The Court notes that in a similar case against Pace University, the disclaimer was enough to fight off the lawsuit because it said students would face the risk that an unforeseen or emergency event outside the college's control might force an emergency closing. No such language for Touro, says the Court. The consumer fraud claim (under the General Business Law) also survives appeal and returns to the district court for resolution.

The case returns to the district court to take on other issues that Touro raises on appeal, but which the district court did not resolve: an "impossibility" defense and the claim that plaintiff lacks standing to assert claims on behalf of the potential class action plaintiffs. A remaining claim -- that Touro took money in student fees without providing any services -- is dismissed, as plaintiff does not identify which services are in issue. The unjust enrichment claim is also dismissed, as it is duplicative of the breach of contract claim, which was also dismissed in the district court.