On April 22, 2020, Dechert hosted a Webinar titled, "COVID-19 Tuition Refund Class Actions Against Colleges and Universities." At that time, approximately 10 putative class actions had been filed, and in less than 10 days, the number of lawsuits has quadrupled to over 40 as of last evening. A tracking chart of the lawsuits of which we are currently aware can be found at the link at the bottom of this email. As this situation continues to evolve, we wanted to share five key takeaways that we hope will be helpful to you and your team:
- The actions are geographically widespread, but concentrated in key jurisdictions. Class action lawsuits have been filed against universities in at least 15 states, reflecting the reach of plaintiffs’ counsel in locating interested plaintiffs and local partner law firms. However, the largest number of actions has been filed in the Southern District of New York, which may signal an intent by plaintiffs’ firms to propose centralization of the litigation in an MDL in that district.
- Five law firms have filed 90% of the actions. The Anastopoulo Law Firm, which runs advertising at CollegeRefund2020.com, has filed 15 actions, Bursor & Fisher has filed 11 actions, DiCello Levitt has filed 5 actions, and Milberg has filed 3 actions. In addition, this week saw Hagens Berman, a nationwide plaintiffs’ class-action and complex litigation firm, begin filing lawsuits and conducting attorney advertising. Based on our experience litigating against Hagens Berman in complex and pharmaceutical, antitrust, and other matters, we believe their joinder of this litigation is evidence that the plaintiffs’ bar sees this litigation as a significant opportunity and will pursue it aggressively.
- Several schools have been sued in multiple actions. There are now two actions against Arizona State University, Drexel University, University of Miami, Columbia, Cornell, Boston University, The Pennsylvania State University, and the University of California system. These double-filings likely illustrate competition between plaintiffs’ firms to be appointed lead class counsel against each school and thereby earn a larger portion of fees from any settlement or judgment.
- State universities have received public records requests for tuition refund communications. A website called the Fourth View has launched an initiative titled Return My Semester, which reports that public records requests have been served for communications among university leadership from February and March containing the phrases “tuition reimbursement” or “tuition refund.” These communications could be used to build the case against state universities before they ever get discovery and illustrate the need for universities to retain counsel for privilege protection and to consult on tuition refund policy in advance of litigation.
- Coordination is still key. Unlike many consumer class litigations, here, there will be far more defendants than plaintiffs’ firms, illustrating the need for defendants to communicate and coordinate defense strategy in this fast-evolving litigation. In particular, joint representations have the ability to avoid a divided front, save costs on shared litigation tasks, and develop an efficient process for the strategic defense of this litigation.
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These putative class actions present significant challenges for colleges and universities.