Another pandemic university fees claim fails

Yodice v. Touro College, 2021 WL 5140058, No. 21cv2026 (DLC) (S.D.N.Y. Nov. 4, 2021)

It’s now been long enough that there are a couple of cases finding potentially valid claims based on Covid closures, but this is not one of them. Touro allegedly promoted its campus facilities and campus experience as part of the benefits of its non-online-only degree programs, including “New York Medical College research facilities, an anatomy lab, a simulation training center, classrooms and auditoriums, as well many amenities including a cafeteria and café, a bookstore, a Health Sciences Library, sports facilities, and many common spaces”; it promoted “Suburban Living with Easy Access to New York City”; etc. The mandatory fees that Yodice paid included, among others, a “Campus Fee,” “Tech Fee,” and “Materials Fee.” Touro’s online program was allegedly marketed and priced as a “separate and distinct product[ ]” and bore no fees for in-person services.

Because of the NY governor’s orders closing schools, Yodice was “forced from campus” and did not have access to “facilities such as libraries, laboratories, computer labs, and student rooms,” “the myriad of activities offered by campus life,” and “networking for future careers.”

Breach of contract: The complaint failed to allege specific promises sufficient to form an implied contract to provide on-campus services. It didn’t identify any specific promise to provide live, in-person instruction.  Past practice of providing in-person instruction wasn’t a promise to continue to do so, nor was listing classes with meeting times and locations. Likewise, “[t]hat an online program had been offered by Touro with its own format and with a lower tuition before the pandemic does not constitute an implicit promise that TCDM would provide exclusively in-person instruction in a separate program it offered prospective students.”

So too with claims based on fees; the complaint didn’t explain which services were connected to specific fees or whether related academic or extracurricular services were subsequently unavailable to Yodice.

Unjust enrichment: Unlike some treatments of this type of claim, the opinion here dismissed unjust enrichment as duplicative of the breach of contract claim. “Yodice cannot fill this gap [in pleading relevant contractual provisions] through pleading an unjust enrichment claim as an alternative route of recovery.” With an actual contract to interpret, quasi-contract theories were inappropriate.

N.Y. General Business Law §§ 349, 350: No materially misleading act or omission was pled. “No reasonable consumer would be misled into believing that, in the event of a global pandemic and under government shutdown orders, TCDM would remain open to deliver in-person instruction to students.”