By Nathan Hale

Law360 (October 19, 2020, 5:07 PM EDT) -- Two Florida universities have shot back at proposed class actions over their decisions not to issue partial tuition and fee refunds after classes were moved online due to the COVID-19 pandemic, saying the suits are rooted in students' subjective disappointment that does not hold up in court.

In their respective motions, filed Friday, Nova Southeastern University sought dismissal of recent graduate Leo Ferretti's proposed class action, while Lynn University, which already filed a motion to dismiss, added a motion to strike undergraduate student Raymond Gibson's class allegations.

"Plaintiff's amended complaint articulates a shared tale of disappointment," NSU said in its motion. "While NSU empathizes with plaintiff's disappointment, it does not establish a cognizable claim."

The Fort Lauderdale-based private university said Ferretti, a Miami resident who graduated from NSU's College of Osteopathic Medicine in May, failed to identify an agreement promising the school would provide exclusively in-person education or would deliver specific services in exchange for a fee.

"The 'contract' underlying this lawsuit does not exist," NSU said. "The court has no authority to add to or alter the contractual relationship between the parties to create new terms and should dismiss this claim."

In his amended complaint, Ferretti dropped his allegations of breach of implied contract and conversion but is proceeding on claims of breach of contract and unjust enrichment, according to the motion.

But his contract claims are based on "cutting and pasting phrases and ideas" from various university marketing materials, not on the terms of NSU's student enrollment agreement, which states that tuition and fees are charged in exchange for enrollment, not for how education services are delivered or for actual facility usage, the university argued.

Ferretti also admits in his own allegations that NSU advises students that classes may be offered remotely or online, directly contradicting his claims, the motion said. And he also admitted that he personally benefited from the university's shift to online-learning when COVID-19 struck, as he received class credits and successfully graduated as a doctor.

"In light of this clear policy and representation by NSU that classes could be delivered online, which all students accepted upon enrollment, plaintiff's claim that students were promised exclusively in-person instruction is objectively frivolous and arguably in bad faith," NSU's motion said.

Lynn University, a private university located in Boca Raton, raised similar arguments in its previously filed motion to dismiss. The university disputed that there was any agreement for exclusively in-person education and pointed to provisions in the cited agreements that stated there would be no refunds in the event operations were suspended for reasons beyond the control of the university, according to its latest motion.

Lynn now is contending that even if the court ends up finding merit in Gibson's claims, they are not suitable for class treatment because they depend on several subjective, individualized issues and call for similarly subjective and speculative "loss of experience' damages.

Gibson's breach of contract claim is based on his own assumption and understanding that classes would be provided exclusively in-person, so the court would have to "evaluate the minds" of each person who registered for the spring 2020 term to determine if they held the same expectations, the university argued.

Gibson's claim for unjust enrichment also fails because the Eleventh Circuit has ruled that such a claim cannot be assessed on a class basis, the motion said.

And his description of a class that would include not just students but anyone who paid tuition on behalf of a student fails because nonstudents would lack standing to seek relief without having entered into an agreement with Lynn and also could not have suffered damages based on the kind of "experiential loss" that the complaint describes, the university said.

Both universities suspended spring classes in mid-March, and Lynn held its summer term completely online, according to the complaints. Lynn offered a fractional refund of room and board, after first deducting certain fees, but it has not offered a credit or refund of tuition or fees, according to Gibson's complaint.

"Essentially, plaintiff and the class have paid defendant for access to buildings they can no longer enter, technology the university no longer provides, and activities and services that are no longer available," Gibson alleged in a statement that is closely echoed in Ferretti's suit.

Gibson and Ferretti, who are both represented by Levin Papantonio Thomas Mitchell Rafferty & Proctor PA and Berger Montague, both pointed in their complaints to statements in their schools' marketing materials that boast of the rich on-campus experience they offer, which they say goes beyond credit hours and diplomas.

Gibson, who says he is studying criminal justice and lives off campus in Boca Raton, is seeking to represent a class comprising all Florida residents who paid tuition for themselves or another person for in-person education at Lynn for the spring 2020 term.

Ferretti is seeking to represent a class consisting of all persons who paid tuition or other costs for themselves or another person to NSU for in-person classes for the 2020 spring terms as well as a subclass of all class members who are Florida residents.

Both students dropped parts of their claims covering the schools' summer 2020 terms, for which they did not register, according to case documents.

Mendy Halberstam of Jackson Lewis PC, who is representing both universities, said Monday that they do not comment on pending litigation. Counsel for the students did not immediately respond to requests for comment Monday.

Ferretti is represented by Matthew D. Schultz, Rebecca K. Timmons and Brenton J. Goodman of Levin Papantonio Thomas Mitchell Rafferty & Proctor PA and Patrick Madden of Berger Montague.

Gibson is represented by Schultz, Timmons and Goodman of Levin Papantonio Thomas Mitchell Rafferty & Proctor PA and E. Michelle Drake of Berger Montague.

Lynn is represented by Mendy Halberstam, Stephanie L. Adler-Paindiris, Allison Gluvna Folk and Leslie Lagomasino Baum of Jackson Lewis PC.

NSU is represented by Halberstam, Adler-Paindiris, Folk and Shayla N. Waldon of Jackson Lewis and Richard A. Beauchamp of Panza Maurer & Maynard PA.

The cases are Ferretti v. Nova Southeastern University Inc., case number 0:20-cv-61431, and Gibson v. Lynn University Inc., case number 9:20-cv-81173, both in the U.S. District Court for the Southern District of Florida.

--Editing by Haylee Pearl.

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