Tuesday, December 22, 2020

Another pandemic education case: false advertising fails, contract claim survives

Bergeron v. Rochester Inst. of Technology, No. 20-CV-6283 (CJS), 2020 WL 7486682 (W.D.N.Y. Dec. 18, 2020)

Different district, same result as this case involving Rensselaer Polytechnic. Contract/unjust enrichment claims survive based on allegations that RIT promised in-person learning, but conversion and false advertising claims go. Also: Parents of adult students lack Article III standing; paying the fees isn’t enough to make them the injured parties.


[N]o reasonable prospective student could consider him- or herself “deceived” or “misled” where the school’s normal course of on-campus instruction was altered mid-semester by an unforeseen global pandemic that prompted the Governor of New York to issue an unprecedented executive order prohibiting on-campus, in-person instruction. Whatever the merit of Plaintiffs’ breach of contract or unjust enrichment claims, there is nothing in the complaint that plausibly alleges that RIT’s publications would lead a reasonable prospective student to believe that the institution would so risk student safety and defy the Governor’s orders.

The pandemic may give us a new line of cases holding that “reasonable consumers” understand something like the contract doctrine of impossibility. If that’s true, are there other exceptions that reasonable consumers understand must apply?

Of note: plaintiffs argued that RIT’s online degree program was relevant to the plausibility of the claims/ascertainability of damages, since the programs are marketed separately, and tuition for the online program is “significantly less.” Given this, they argued that no subjective evaluation of the quality of in-person versus online instruction would be required: Expert testimony could establish the price premium for an in-person education, based on the hundreds or thousands of universities that offer online and in-person programs.


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