American University, GWU See Covid Tuition Lawsuits Revived

American University and George Washington University must once again face potential class action lawsuits accusing them of overcharging students and parents when they suspended in-person classes and other activities in the early days of the Covid-19 pandemic, the D.C. Circuit said Tuesday.

U.S. Supreme Court nominee Judge Ketanji Brown Jackson was a member of the panel that heard the case, but she didn’t participate in the ruling.

In two separate lawsuits the plaintiffs alleged that the universities violated contractual commitments when they transitioned to online educational activities and declined to refund any portion of their tuition payments or fees. Each set of plaintiffs sought to have their case certified as a class action.

The U.S. Court of Appeals for the D.C. Circuit partially reversed the dismissal of the lawsuits.

The plaintiffs failed to show the schools breached any express contractual promises, the court said. “However, we hold that Plaintiffs’ complaints plausibly allege that the Universities breached implied-in-fact contracts” for in-person education and some on-campus activities and services, such as access to American University’s sports center, it said.

The universities “will likely have compelling arguments to offer that the pandemic and resulting government shutdown orders discharged their duties to perform these alleged promises,” but that’s an issue for the district courts, the appeals court said.

The court also revived the plaintiffs’ claims for unjust enrichment and a claim against AU under the D.C. Consumer Protection Procedures Act.

The opinion was written by Judge Harry T. Edwards and joined by Judge Patricia A. Millett.

Douglas & Boykin PLLC, Migliaccio & Rathod LLP, and Anastopoulo Law Firm represent the AU plaintiffs. Hagens Berman Sobol Shapiro LLP, Venable LLP, and Ivey & Levetown LLP represent the GWU plaintiffs. Wilmer Cutler Pickering Hale & Dorr LLP represents both schools.

The cases are Shaffer v. George Wash. Univ., D.C. Cir., No. 21-07040, 3/8/22 and Qureshi v. Am. Univ., D.C. Cir., No. 21-07064, 3/8/22.