555 F.Supp.3d 44
D. Del.2021Background
- In spring 2020 U. Delaware moved in-person classes online because of COVID; it issued partial refunds for housing/dining/parking but not tuition or most student fees.
- Plaintiffs are students (Russo and Ninivaggi) and some parents who paid tuition/fees; they sued seeking partial refunds for tuition and fees and pleaded breach of contract, unjust enrichment, and (Ninivaggi) conversion.
- No single, fully integrated written contract was signed; plaintiffs allege an implied-in-fact contract based on course catalogs, pricing differences between in‑person and online programs, advertising touting on‑campus experience, and the university’s historical practice.
- University moved to dismiss, arguing no express promise of in‑person instruction, that reservations/changes were permitted, that performance was excused by the pandemic, and that parents lack standing.
- The court consolidated the cases for decision and denied most dismissal arguments: contract and unjust‑enrichment claims survive; the conversion claim (and related punitive‑damages request) is dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Parents' standing | Parents paid tuition/fees and suffered financial loss | Parents had no contract and were not deprived of educational benefits | Parents have standing; financial loss is a cognizable injury |
| Express promise of in‑person instruction | Catalogs, ads, price differentials show university promised in‑person delivery | Catalogs and materials were tentative; no express commitment | No plausible express promise alleged; express‑contract claim fails |
| Implied promise of in‑person classes & services | Course of dealing, separate pricing, advertising, and practice created an implied‑in‑fact contract for in‑person instruction and campus services | General reservation clauses and ability to change policies permit shifting online; claim is educational malpractice | Plaintiffs plausibly pleaded implied terms; contract claims survive to discovery |
| Impossibility & restitution / unjust enrichment | Even if performance excused by pandemic, university must disgorge any savings from switching online | Pandemic and governor's orders made performance impossible so no breach | Impossibility may excuse performance, but restitution/unjust‑enrichment claims survive pending discovery on whether university was enriched |
| Conversion (Ninivaggi) | Tuition/fees were wrongfully retained and thus converted | Money cannot be the subject of conversion for recovery of payment | Conversion claim dismissed; punitive damages stricken |
Key Cases Cited
- Cottrell v. Alcon Lab'ys, 874 F.3d 154 (3d Cir. 2017) (financial outlay can constitute Article III injury)
- Kuroda v. SPJS Holdings, LLC, 971 A.2d 872 (Del. Ch. 2009) (unjust enrichment appropriate where contract formation is uncertain)
- Swanson v. Wesley Coll., Inc., 402 A.2d 401 (Del. Super. Ct. 1979) (school publications can inform terms of education contract)
- Furek v. Univ. of Del., 594 A.2d 506 (Del. 1991) (certain services are part of the core educational bargain)
- Norton v. K‑Sea Transp. Partners L.P., 67 A.3d 354 (Del. 2013) (ambiguities construed against the drafter)
- Kashmiri v. Regents of Univ. of Cal., 67 Cal. Rptr. 3d 635 (Cal. Ct. App. 2007) (recognizing implied contractual terms in higher‑education contexts)