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Harvard, Duke, Other Schools Turn to Big Law in Virus Suits

July 17, 2020, 8:51 AM

Ivy League and other schools are turning to Big Law to defend against a flood of coronavirus-fueled lawsuits that seek millions in refunds of tuition and fees, and to help rewrite the rules of campus life.

Holland & Knight, Jones Day, Bryan Cave Leighton Paisner, Quinn Emanuel Urquhart & Sullivan, Cooley, and Wilmer Cutler Pickering Hale and Dorr are among firms tapped by Harvard University Law School, Cornell University, Duke University, Arizona State University, Purdue University and dozens of others facing pandemic-related claims.

“The pandemic has accelerated the volume and frequency of our work,” said Paul Lannon, co-chair of Holland & Knight’s higher education practice. “Our work is exploding around Covid issues, which affects so many aspects of campus life.”

Colleges and universities are being confronted with potentially massive bills as hundreds of students try to recoup their room-and-board expenses from the spring semester truncated by the virus outbreak. Others are looking for a refund on at least a portion of tuition and fees, citing the absence of face-to-face instruction.

Bryan Cave Leighton Paisner says 198 cases have been filed in state and federal courts so far, which the firm keeps tabs on with a litigation tracker. More lawsuits are expected as schools try to figure out how to reopen campuses and satisfy competing interests of students, faculty, and staff.

Fallout from Covid-19 has spurred a wide range of new legal issues for colleges and universities. It has also been a boon for law firms in the areas of bankruptcy, restructuring, and capital markets.

Class Action

Part of the schools’ legal strategy is to force students to pursue lawsuits individually.

“Many of the cases have been filed as class actions, which means the burden is on the schools to show that the students’ experience and the damages they claim are not uniform so the students are not entitled to be certified as a class,” said Tracy Talbot, leader of Bryan Cave’s Higher Education Class Action Rapid Response team, which was recently formed to deal with new class actions.

Students also can sue individually, and in state courts, but the legal system generally gives deference to higher education entities, similar to other institutions such as the government.

“Courts defer to colleges and universities in academic matters such as plagiarism, qualifications for tenure and many similar issues,” said Holland & Knight’s Lannon.

Talbot said a lot of the Covid-related cases are “really about educational malpractice” and courts have been reluctant to try to decide “the value of education.”

That’s the question at the heart of a federal class action lawsuit filed by Harvard Law student Abraham Barkhordar who claims that his first year was marred when the campus closed in March.

Barkhordar said he was not able to participate in the collaborative learning that Harvard is known for because video-based Zoom instruction didn’t provide face-to-face interaction with faculty and peers, including study groups, and he was unable to use resources like the law library.

Online classes “reduced and negated” his educational experience, which costs just under $66,000 in yearly tuition, he argued. The suit seeks over $5 million for the law students affected.

Harvard spokesman Jason Newton said the university “does not have a comment on this pending litigation.” Other universities contacted by Bloomberg Law also declined to comment.

High Priced

Universities typically turn to outside counsel for litigation, investigations of high-profile matters including incidents of sex harassment or assault, and areas like race and sex discrimination—all of which require expertise not typically available in university legal counsel offices.

Schools are also seeking high-priced help to navigate Covid-19. Duke, for example, signed up Shon Morgan, chair of Quinn Emanuel’s national class action practice group.

Morgan said the firm is also representing Boston University, Brandeis University, and Johns Hopkins University, among others. The University of Southern California has law firm Cooley on its team, and Wilmer is on board for American University. Jones Day is defending Penn State University in three class actions that claim it breached its agreement with students by failing to provide in-person educational services and access to facilities.

Students have tapped plaintiffs’ firms such as Bursor & Fisher, which recently won a $267 million robocall class action verdict.

It’s early in the litigation, but students who attend public schools likely will be met with a defense that the institutions are immune from suit as state actors, attorneys and legal scholars told Bloomberg Law last month.

And while private schools can’t plead sovereign immunity, the plaintiffs in those cases, like their public school counterparts, may face difficulty in obtaining tuition reimbursement. But students, both public and private, may have a better shot at recovering for room and board.

Rewriting Rules

Even if schools wind up settling, the slew of spring semester refund cases, that won’t solve all of the legal issues stemming from the pandemic. Colleges and universities have been taking broad austerity measures since spring to gird against the economic damage they could face in the fall.

States and private schools have to decide whether to shut down campuses and offer remote learning, which will cost millions in lost room and board charges and other fees, or try to reinvent campus life by laying out strict rules that circumscribe the kind of mixing that characterizes college life.

The U.S. Centers for Disease Control and Prevention has issued recommendations for virus testing and guidance to reduce the spread of infection on campus.

The pandemic affects almost “every element of campus,” said Christopher Bayh, vice chair of Barnes & Thornburg’s higher education practice.

“There are entrance halls, hallways, classrooms, student housing and more that have to be considered. Schools have to decide if they are going to scale back and instead of four people in a room, cut that back by 50 percent,” he said.

Enrollment for the coming academic year could drop by as much as 15%, resulting in a $23 billion revenue loss, the American Council on Education, the association of college presidents, told Congress.

Higher education entities have told Congress that they expect to spend approximately $74 billion to prepare for the fall semester. Purdue President Mitch Daniels testified that the school had purchased more than a mile of plexiglass and estimated the costs to reopen the university would exceed $50 million.

With large and diverse pools of employees—from maintenance staff to professors—colleges and universities are also facing questions of how to keep them safe, Talbot said.

Student athletics, Bayh noted, are another major area for schools to examine, especially with football and other sports.

“Will athletes have to have their temperatures taken; will a decision be made to trace their contacts if someone gets infected? Athletic programs will have to figure these and many other similar things out,” Bayh asked.

The Ivy and Patriot leagues in the East are among conferences canceling fall sports.

While higher education is taking steps to push back against lawsuits, they are also looking to help from Washington to shield them from civil liability in the next stimulus legislation.

—With Peter Hayes

To contact the reporter on this story: Elizabeth Olson in Washington at egolson1@gmail.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com; Rebekah Mintzer at rmintzer@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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