Northeastern seeks summary judgment in students’ COVID suit

Whether or not its students signed a binding contract, Northeastern University should prevail in the federal lawsuit seeking to disgorge the school of tuition paid for the spring 2020 semester, when the school switched to remote instruction due to the COVID-19 pandemic, an attorney for the school argued at an April 29 hearing.

The plaintiffs have the burden of proving that Northeastern promised them in-person instruction, John A. Shope of Foley Hoag reminded U.S. District Court Judge Richard G. Stearns in Boston.

Instead, he suggested the school merely laid out a plan, which then got derailed by the pandemic.

Though the plaintiffs’ attorney, Patrick F. Madden of Berger Montague in Philadelphia, said Shope was mischaracterizing his clients’ position, Shope asserted that the plaintiffs’ theory throughout the case was that there had been a contract formed in the class registration process, which guaranteed those classes would be held in the physical classrooms listed on the schedule.

The nature of that allegation had been enough to get the students past a motion to dismiss but should not suffice to escape summary judgment, especially given the additional development of the record, Shope argued.

Northeastern had adequately reserved its rights by including in both its undergraduate student handbook and graduate student course catalog a “delivery of services” provision, allowing the school to make a “substitution of alternatives” for scheduled classes and academic activities when educational services are interrupted by factors beyond Northeastern’s reasonable control, Shope added.

But Shope and Madden disagreed over whether Northeastern had adequately communicated that provision to students and gained their meaningful assent to be bound by it, given that the students had manifested their agreement by clicking a box on the myNortheastern online portal.

That brought into the discussion recent developments in Massachusetts law related to so-called “clickwrap” agreements, including the Massachusetts Supreme Judicial Court’s decision earlier this year in Kauders v. Uber Techs., Inc., and the 1st U.S. Circuit Court of Appeals’ decision in Emmanuel v. Handy Technologies, Inc.

Shope distinguished the present case from Kauders, noting that one of the main problems in that case was that the button users clicked read simply “Done,” which the SJC held did not make clear to users that they were binding themselves to a contract, whereas Northeastern had made its students expressly agree that they were agreeing to abide by the school’s policies.

However, Madden countered that the reasonable student only would have interpreted the language Northeastern had used as asking them to vouch for conforming their own conduct to those policies, and not granting the school any affirmative rights, such as the ability to substitute remote for classroom instruction.

Shope also contended that Northeastern students are at least as sophisticated as the gig workers seeking housecleaning jobs in Emmanuel and should similarly be bound by their decision to click the “Agree” button.

But Madden noted that it would have taken quite a bit of navigating the internet for students to even find the “delivery of services” provision, much less to understand its import.

“Our argument is more than just that they buried it, but yes, they buried it,” he said.