18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 483 for the other sex ( e.g ., women’s ice hockey) if: (i) opportunities for members of the excluded sex have historically been limited; and (ii) there is sufficient interest and ability among the members of the excluded sex to sustain a viable team and a reasonable expectation of intercollegiate competition for that team. As such, the Eighth Circuit held that by disregarding the plain text of the 1979 interpretation’s “Contact Sports Clause,” the District Court erred in its analysis. Further, the Eighth Circuit held the District Court erred when applying the 1979 interpretation because it improperly relied on the three-part compliance test as the only way to analyze a claim under the separate, unrelated Selection of Sports provision. For these reasons, the Eight Circuit reversed the judgment of the District Court dismissing Plaintiffs’ complaint. Buschauer, et al. v. Columbia College, 2021 U.S. Dist. LEXIS 67157 (N.D. Ill. April 6, 2021). Plaintiff, a university student, filed a class action alleging breach of contract and unjust enrichment in connection with moving classes to online instruction without providing reduced tuition in the wake of the COVID-19 pandemic. Defendant filed a motion to dismiss, which the Court granted. At the start of each semester, students signed a Financial Responsibility Agreement (the "FRA"), in which they accepted “full responsibility to pay all tuition, fees, housing charges, meal plan charges, and other associated costs assessed as a result of registration and/or receipt of services." Id . at *4. In the "Changes to Curriculum," students agreed that changes made to the curriculum do not absolve them of their financial responsibility to pay the correct amount of tuition, fees, and other associated financial obligations assessed as a result of their registration and/or services received. Id . Students were not able to select classes for the semester until they accepted the electronic FRA. Plaintiff asserted that he “specifically contracted with Defendant for courses that would be delivered 100% on-campus and in-person, in addition to contracting for a full 15-week Spring 2020 semester worth of access to on-campus facilities, resources, events, and services,” as set forth in "Columbia’s catalogs, circulars, bulletins, and regulations, in addition to industry standards and customary dealings between students and universities." Id . at *13. Defendant argued that Plaintiff failed to identify any specific promise it made to provide on-campus, in- person instruction and services. The Court agreed with Defendant. The Court noted that the FRA did not include any reference to on-campus, in-person instruction and services, and specifically stated that any curriculum changes would not relieve students of the payment responsibilities. The Court also reasoned that none of Defendant’s marketing materials created a specific promise because they did not speak to the locations of any courses. The Court held that the fact that some course descriptions may have included specific building and room numbers did not guarantee on-campus, in-person instruction, particularly given the course catalog’s disclaimers and reservation of rights. Id. at *15. The Court thus dismissed Plaintiff’s breach of contract claim. The Court also ruled that because Plaintiff acknowledged the existence of a contract with Defendant, it was also appropriate to dismiss Plaintiff’s unjust enrichment claim. Cates, et al. v. The Board Of Trustees Of Columbia University, Case No. 16-CV-6524 (S.D.N.Y. April 1, 2021). Plaintiffs, a group of employees or former employees of Columbia University and participants in two defined contribution retirement plans sponsored by Columbia – including (i) the Retirement Plan for Officers of Columbia University ("Officers Plan") and (ii) the Columbia University Voluntary Retirement Savings Plan ("VRSP") (together, the "Plans") – sued Defendant alleging a breach of its fiduciary duties under the ERISA. The Court certified a class of nearly 28,000 participants and scheduled the matter for trial. Defendants argued that its witnesses should not be required to appear in Court in person due to the COVID-19 pandemic, and should be permitted to attend the trial telephonically. Plaintiffs opposed the request, and suggested to the Court that it require all witnesses who wanted to remotely attend the trial to submit their vaccination status to the Court, after which the Court could determine whether the remote attendance was for good cause. The Court opined that “The COVID-19 pandemic itself does not alone constitute ‘good cause’ or ‘compelling circumstances’ to allow witnesses to testify remotely rather than personally in Court.” Id . at 1. The Court ordered all designated trial witnesses to testify in person unless the parties agreed otherwise, or unless there was “compelling circumstances to permit a particular witness to testify by contemporaneous transmission from a different location.” Id . Chong, et al. v. Northeastern University, 2021 U.S. Dist. LEXIS 89597 (D. Mass. May 10, 2021). Plaintiffs, a group of university students, filed a class action alleging that Defendant breached an in-person teaching contract with its students or, alternatively, unjustly enriched itself at its students’ expense when it retained the full amount of tuition and fees collected for the Spring semester of 2020, despite ceasing in-person instruction and closing