Princeton Lawsuit the Defendant and A Private University Analysis

For your paper, please read this case

Princeton Lawsuit.pdf

and answer these questions:

What are the basic facts?

What are the causes of action?  (hint:  Counts 1-4)

For the Breach of Contract cause of action, what is the alleged breach?

In your opinion, does being a student at a university create a contractual relationship?  Why or why not?

How should the court rule on the breach of contract claim (Count 1)?

Bonus points:  What are your first impressions of this case?

Case 3:20-cv-16622-MAS-LHG Document 1 Filed 11/19/20 Page 2 of 24 PageID: 2
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
REID ZLOTKY, on behalf of himself
and all others similarly situated,
Civil No.:
CLASS ACTION COMPLAINT
Plaintiffs,
v.
DEMAND FOR JURY TRIAL
THE TRUSTEES OF PRINCETON
UNIVERSITY d/b/a PRINCETON
UNIVERSITY, and DOES 1 through 10
inclusive,
Defendants.
Plaintiff REID ZLOTKY, on behalf of himself and all others similarly
situated, by and through his attorneys, Shegerian & Associates, Inc. and McOmber
McOmber & Luber, P.C., hereby files the Class Action Complaint against
Defendant THE TRUSTEES OF PRINCETON UNIVERSITY (“Princeton” or
“Defendant”); and DOES 1 through 10 inclusive, (collectively, “Defendants”), and
states as follows:
I.
NATURE OF THE ACTION
1. This is a class action for breach of contract, breach of implied contract,
unjust enrichment, and conversion on behalf of Plaintiff and all others similarly
situated. Princeton has shut down its campus facilities, discontinued all live inclassroom instruction of all courses, and instead moved all instruction to virtual
online pre-recorded and/or live streaming video instruction. While these actions are
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attributable to the COVID-19 pandemic and Executive Orders in effect in the State
of New Jersey, Defendant Princeton has unlawfully and unjustly retained Plaintiff
and Class members’ tuition and fees, despite the fact that Defendants are unable to
provide, and are not providing, the services and facilities for which they bargained.
These fees and tuition costs easily amount to thousands of dollars per student.
2. While Princeton does not bear culpability for the campus closures or the
inability to provide any classroom instruction, neither do the enrolled students. Yet,
while Princeton has used the current COVID-19 shutdown circumstances to excuse
its duty to perform fully the obligations of its bargain with its students, Princeton
continues to demand that all students perform their contractual bargain to pay all
tuition and fees for the Spring 2020 term. This is contrary to fundamental tenets of
contract law. The indefensible breach is saddling wholly innocent students with
mounting debt as a result of having to pay tuition and fees for services they are not
receiving and facilities and services that are not being provided. In so acting,
Defendant Princeton is unjustly enriched at the expense of Plaintiff and putative
Class members he seeks to represent.
3. Princeton breached its contractual duties by ceasing all in-classroom
instruction, shutting down campus facilities, and evicting students in student
housing, while continuing to assess and collect tuition and fees from Plaintiff and
class members. Undoubtedly, however, the performance now being provided by
Princeton and its campus facilities is different from and of substantially lesser value
than what was bargained for at the time of Plaintiff’s and class members’
enrollment.
4. Plaintiff therefore brings the action on behalf of himself and all other
similarly situated students of Princeton to seek redress for its breach of contract,
breach of implied contract, unjust enrichment, and conversion.
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II.
PARTIES AND JURISDICTION
5. Plaintiff Reid Zlotky (“Zlotky”) is a resident of Dallas County, Texas.
Plaintiff Zlotky was an undergraduate student at Princeton University during the
2019-2020 academic year. Plaintiff Zlotky completed his first year in May 2020
and is currently attending Princeton as a sophomore.
6. Defendant Princeton is a private university located in the Princeton, New
Jersey. Defendant is doing business in the State of New Jersey as a non-profit
corporation incorporated under the laws of New Jersey; operating in the State of
New Jersey; and is availing itself of the privileges and obligations associated
therewith.
III.
JURISDICTION AND VENUE
7. The Court has jurisdiction over the subject matter presented by the
Complaint because it is a class action arising under the Class Action Fairness Act
of 2005 (“CAFA”), which confers original jurisdiction on federal courts over a
class action with at least 100 putative class members, minimal diversity in which
any member of the putative class is a citizen of a state different from any
defendant, and in which the amount in controversy exceeds in the aggregate sum
of $5,000,000.00, exclusive of interest and costs.
8. Plaintiff alleges that there are at least 100 putative class members with
student enrollment in the thousands at Defendant Princeton.
9. Plaintiff alleges that the amount in controversy exceeds $5,000,000.00,
pursuant 28 U.S.C. § 1332(d)(2) and (6).
10.
Plaintiff alleges that minimal diversity exists with members of the
proposed class residents of states other than New Jersey and further that less than
two-thirds of the proposed class are residents of New Jersey.
11. Venue within this District is proper because Defendant Princeton is located
at 1 Nassau Hall, Princeton, New Jersey 08544, which is within this District, is
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operating a university at its campus, and the acts complained of occurred within the
District.
IV.
A.
FACTUAL ALLEGATIONS
Princeton University
12. Defendant Princeton University is a private university with an enrollment
of approximately 8,483 students during the 2019-2020 academic year, which
includes approximately 5,328 undergraduate students and 2,997 graduate students,
and 158 special students.1
13. The rate of annual tuition paid by undergraduate students during the 20192020 academic year was $51,870 or $25,935 for the semester.2 The standard tuition
rate for all graduate students during the 2019-2020 academic year was $51,870.3
Defendant raised its tuition rates for 2020-2021 to $53,890.4 Defendant, however,
announced on August 7, 2020 that its Fall 2020 semester would be “fully remote.”5
Classes were scheduled to begin just weeks later on August 31, 2020 for the Fall
1
https://tableaupublic.princeton.edu/t/OfficeoftheRegistrarStatistics/views/Registrar
_OpeningEnrollment/Story1?:isGuestRedirectFromVizportal=y&:embed=y (last
visited Nov. 12, 2020).
2
http://web.archive.org/web/20190819210153/https://admission.princeton.edu/costaid/fees-payment-options (last visited Nov. 12, 2020).
3
https://web.archive.org/web/20191215213150/https://gradschool.princeton.edu/co
sts-funding/tuition-and-costs (last visited Nov. 12, 2020).
4
https://admission.princeton.edu/cost-aid/fees-payment-options (last visited Nov.
16, 2020).
5
https://www.princeton.edu/news/2020/08/07/fall-2020-update-undergraduateeducation-be-fully-remote (last visited Nov. 16, 2020).
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2020 term.6
14. Additionally, Defendant assessed a variety of fees to its students for the
2019-2020 academic term.
These fees are assessed to students for services
rendered, including student center fees and other resources available to students on
campus. By way of example, Plaintiff Zlotky and others were assessed and paid the
following fees that were not refunded for the 2019-2020 academic term:
 A “College Fee” in the amount of $203.00 per semester.
 An “Activity Fee” in the amount of $42.50 per semester.
 A “Class Dues” fee in the amount of $31.00 per semester.
 An “Athletic Dues” fee in the amount of $7.25 per semester.
15. Plaintiff and Class members paid all that they owed for tuition and
fees. Plaintiff registered and paid for in-person classes for the Spring semester
based on Defendants’ representations made in admissions brochures and materials
online. It was the reasonable expectation of Plaintiff and putative Class members
that Defendant would provide in-person instruction for the entire term, and they
enrolled for the term and paid all fees and tuition based on such expectations and
representations.
16. According to its promotion materials, Princeton has represented that
students will get to work closely with faculty in and outside of the classroom:
Nearly 75% of our classes have fewer than 20 students,
which means our faculty of world-class scholars are
engaged with and accessible to undergraduates. Professors
care about the well-being of their students, and students
often form meaningful relationships with their professors.
You will get the chance to work closely with faculty inside
and outside the classroom.7
6
https://ua.princeton.edu/contents/academic-calendars (last visited Nov. 18, 2020).
7
https://admission.princeton.edu/sites/default/files/508_Viewbook_full_2019.pdf
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17. Defendant has also promoted a “vibrant campus life” and these in-person
experiences “can be as important and inspiring as your education in the classroom.”8
Defendant also promotes that “[t]hrough [‘meaningful service on campus’ and other
‘civic engagement’] students often view service as central to their education and to
their lives beyond Princeton.”9
18. Plaintiff brings this action on behalf of himself and similarly situated
students who enrolled in Princeton during the Spring 2020 academic term and
thereafter, including without limitation the Summer 2020 or Fall 2020 academic
terms.
B.
Coronavirus Disease 2019 (COVID-19)
19. In December 2019, the Chinese government identified a novel coronavirus
found in the Wuhan province called sever acute respiratory syndrome coronavirus
2 (SARS-CoV-2). This strain of coronavirus caused Coronavirus disease 2019
(“COVID-19”), an easily spread and unusually lethal disease in certain population
groups.10
20. This disease quickly and explosively spread due to its ability to survive in
small respiratory droplets and the World Health Organization characterized
COVID-19 as a “public health emergency of international concern” in late January
and as a pandemic on March 11, 2020.11
at 12 (last visited Nov. 18, 2020).
8
Id. at 28.
9
Id. at 38.
10
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7128332/. (last visited Nov. 12,
2020).
11
https://www.who.int/dg/speeches/detail/who-director-general-s-opening-6-
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21. On March 9, 2020, New Jersey Governor Phil Murphy declared a State of
Emergency and a Public Health Emergency, effective immediately, to ramp up New
Jersey’s efforts to contain the spread of COVID-19.12
22. On March 16, 2020 Governor Murphy announced aggressive social
distancing measures to mitigate further spread of COVID-19 in New Jersey. To
this end, Governor Murphy ordered that all gatherings be limited to 50 persons or
fewer and closed the premises of all public, private, and parochial elementary and
secondary schools. Additionally, all institutions of higher education were ordered
to cease in-person instruction beginning March 18, 2020.13
23. On March 21, Governor Murphy entered an Executive Order requiring all
individuals living in New Jersey to stay home or at their place of residence, with
few exceptions for essential services.14
24. As of November 12, 2020, New Jersey has reported 266,986 total cases,
14,694 total confirmed deaths and another 1,801 probable deaths caused by
COVID-19.15
C.
Defendant Charges Millions of Dollars for
Tuition and Fees Despite Providing Virtual
Classes During the Pandemic.
remarks-at-the-media-briefing-on-covid-19—11-march-2020 (last visited Nov. 12,
2020).
12
https://nj.gov/governor/news/news/562020/approved/20200309b.shtml (last
visited Nov. 12, 2020).
13
https://nj.gov/infobank/eo/056murphy/pdf/EO-104.pdf (last visited Nov. 12,
2020).
14
https://nj.gov/infobank/eo/056murphy/pdf/EO-107.pdf (last visited Nov. 12,
2020).
15
https://covid19.nj.gov/ (last visited Nov. 12, 2020).
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25. The spread of the 2019 coronavirus (COVID-19) has radically changed life
in this country with profound impacts on nearly every segment of American life. In
response to the pandemic, colleges and universities have taken aggressive measures,
which include eliminating in-person classroom instruction and replacing it with
online instruction, which is in the form of a combination of pre-recorded or livestreamed video instruction.
26. In particular, for the remainder of the Spring 2020 term, Defendants
instituted mandatory “virtual” classes and ceased to provide its typical on-campus
resources to students—including access to laboratories, libraries, dining halls,
fitness centers, and various student learning services.
27. On or about March 9, 2020, Defendant directed all faculty to move all
lectures, precepts and seminars to online methods by March 23, 2020 for a period
of at least two weeks.16
28. On or about March 11, 2020, Defendant announced that “all courses,
graduate and undergraduate, must be taught entirely online by March 23 rd, if not
before” and that, with few exceptions, all students “must leave campus and stay
home for the rest of the semester.” 17, 18
29. Defendant ended all in-person classroom instruction and drastically
changed the educational opportunities available to students, severely crippling
Plaintiff and Class members from receiving the education for which they paid.
30. Defendant attracts students to its world-renowned programs by
emphasizing its campus life, with a “600-acre campus located in a cosmopolitan
16
https://emergency.princeton.edu/node/592 (last visited Nov. 12, 2020).
17
https://www.princeton.edu/news/2020/03/11/university-issues-further-covid-19guidance-accommodations-and-criteria-remaining (last visited Nov. 12, 2020).
18
https://emergency.princeton.edu/node/600 (last visited Nov. 12, 2020).
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town,” where “Princeton guarantees students on-campus housing for all four
years.”19
31. By and large, the commitments promised to students were and are left
unfulfilled with Defendant barring students from campus and imposing mandatory
virtual classes. In short, the plethora of resources bargained and paid for by students
have been denied.
32. As a result of the transition to virtual learning online, the educational
services Plaintiff and Class members were supposed to receive—in-person
instruction—were not provided at all.
33. Despite closing its campus and failing to offer in-person classes, Defendant
continues to charge millions in tuition and fees. While students enrolled and paid
for a comprehensive educational experience at Defendant’s campus, Defendant has,
instead, provided a limited online experience, lacking invaluable in-person learning
opportunities.
34. Defendant is profiting from the pandemic while further burdening students
and families, many of whom have been financially and/or physically impacted by
COVID-19.
35. Consequently, Plaintiff and Class members have suffered harm by losing
the education, services, and other experiences Defendant promised to its students.
Plaintiff and similarly situated students seek disgorgement of their payments for
unused services and refund of the tuition for the promised services that were not
delivered.
V.
CLASS ACTION ALLEGATIONS
Class Definition
36. Plaintiff brings this action pursuant to 28 U.S.C. § 1332(d) on behalf of a
19
https://admission.princeton.edu/campus-life (last visited Nov. 12, 2020).
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proposed class of persons (the “Class”) pursuant to Federal Rules of Civil Procedure
23(b)(2), (3), defined as:
All persons enrolled at Princeton who paid tuition and fees for
the Spring 2020 term and thereafter for classes scheduled for inperson instruction who were denied that instruction for any part
of the Spring 2020 term and thereafter.
37. Excluded from the Class are Defendant, any of its past or present officers,
directors, agents, and affiliates, any judge who presides over the action, and all
counsel of record.
38. Plaintiff reserves the right to expand, limit, modify, or amend the
definitions of the class as may be desirable or appropriate during the course of the
litigation.
39. Class certification is proper because the question raised by the Complaint
is one of a common or general interest affecting numerous persons so that it is
impracticable to bring them all before the Court.
Numerosity and Ascertainability
40. The class is sufficiently numerous, as Defendant boasts an enrollment of
approximately 8,483 students. Class members may be identified through objective
means, such as Defendant’s records, and notified of the action by recognized
methods of notice, such as mail or e-mail, or publication in print or on the Internet.
Furthermore, Defendant maintains records and/or rosters of all of its attending
students and their financial obligations and payments.
Adequacy
41. Plaintiff and his counsel are adequate representatives of the interests of the
putative Class. Plaintiff is a student at Princeton who is being charged tuition and
fees as part of his enrollment.
He contends that Princeton has breached its
agreement with students by continuing to charge and demand full or nearly full
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tuition and fees, even though Princeton is not providing any in-person classroom
instruction at its campus and not making campus facilities available for students.
42. Plaintiff has retained counsel experienced in class action litigation to
litigate and represent the interests of Plaintiff, the Class Representative, and the
Class.
Typicality
43. Plaintiff’s claims are typical of the claims being raised on behalf of the
absent Class members. Like all absent Class members, Plaintiff seeks redress for
Defendant’s failure to provide any in-person campus instruction or campus facility,
while continuing to charge full tuition and fees. The claims Plaintiff asserts are the
same as and co-extensive with the claims raised on behalf of Class members.
Superiority
44. A class action is superior to other available methods for the fair and
efficient adjudication of the controversy. Here, classwide litigation is superior to
individually litigating and adjudicating the dispute, because the cost of litigating an
individual claim for partial refund of tuition or fees makes such individual litigation
unfeasible, given the costs of bringing such an action relative to the amount of
damages recoverable in an individual action.
45. A class action is also superior to other available methods for the fair and
efficient adjudication of the controversy because it eliminates the prospect of
inconsistent rulings that would unsettle the legal obligations or expectations of
Defendant, Plaintiff, and Class members.
46. Because the damages suffered by each individual class member may be
relatively small, the expense and burden of individual litigation would make it very
difficult or impossible for individual class members to redress the wrongs done to
each of them individually, so that the prosecution of specific actions and the burden
imposed on the judicial system by individual litigation by the Class would be
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significant, making class adjudication the superior option.
47. The conduct of the action as a class action presents far fewer management
difficulties, far better conserves judicial resources and the parties’ resources, and
far more effectively protects the rights of each class member than would piecemeal
litigation.
Compared to the expense, burdens, inconsistencies, economic
infeasibility, and inefficiencies of individualized litigation, any challenge of
managing the action as a class action is substantially outweighed by the benefits to
the legitimate interests of the parties, the Court, and the public of class treatment,
making class adjudication superior to other alternatives.
Commonality and Predominance
48. Plaintiff’s Complaint raises questions of fact or law common to the class
that predominate over questions affecting only individual class members. Among
these predominating common questions are:
a. Whether the relationship between Defendant and Plaintiff and
members of the Class is contractual;
b. What tuition and mandatory fees Plaintiff and Class members paid to
Defendant;
c. What tuition and mandatory fee refunds, if any, Defendant issued to
Plaintiff and Class members;
d. Whether Defendant breached its agreements with Plaintiff and Class
members when Defendants failed to deliver to Plaintiff and Class members inperson instruction and the services for which they paid tuition and fees and
subsequently refused to refund;
e. Whether the refunds, if any, Defendant issued to Plaintiff and Class
members were adequate to account for the cessation in in-person classroom
instruction and services and the closure of campus facilities;
f. Whether Defendant ceased providing in-person classroom instruction
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to Plaintiff and Class members;
g. Whether Defendant deprived Plaintiff and Class members of the use
and enjoyment of campus services and facilities;
h. Whether the value of online instruction is not equivalent to the value
of the in-person classroom instruction that Plaintiff and Class members bargained
for and for which they were and are continuing to be charged;
i. Whether the value of campus facilities that Plaintiff and Class
members were charged has been lessened as a result of Defendant’s closing campus
facilities;
j. Whether Defendant’s action in continuing to charge and demand full
tuition and fees has harmed Plaintiff and Class members;
k. Whether a method of computing classwide damages or restitution
exists;
l. Whether Defendant was unjustly enriched by retaining tuition and
mandatory fee payments when Plaintiff and Class members did not receive the
services for which they paid tuition and mandatory fees;
m. Whether Plaintiff and Class members are entitled to declaratory or
injunctive relief against Defendant; and
n. Whether Defendant was unjustly enriched at the expense of Plaintiff
and Class members.
49. In the event that the Court were to find the proposed class definition
inadequate in any way, Plaintiff respectfully prays for certification of any other
alternative, narrower class definition or for the certification of subclasses, as
appropriate.
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VI.
COUNT I
Breach of Contract
(On Behalf of Plaintiff and the Class Against All Defendants)
50. Plaintiff re-alleges and incorporates by reference all previous allegations
as though set forth in full herein.
51. By the act of matriculation, together with payment of required fees, a
contract between Plaintiff and Class members, on the one hand, and Defendant, on
the other hand, was created, in addition to any enrollment contract that may have
existed between Defendant and the Plaintiff.
52. By ceasing all in-person classroom instruction, relegating Plaintiff and
Class members to online instruction only and shutting off campus facilities to
Plaintiff and Class members, Defendant failed to provide the services that Plaintiff
bargained for in entering his contractual relationship with Defendant.
53. Although Defendants may not bear culpability for the campus closures or
the inability to provide any classroom instruction, neither do the enrolled students.
Yet, while Defendant has used the current COVID-19 shutdown circumstances to
excuse its obligation to fully perform the obligations of their bargain with its
students, Defendant continues to demand that all students fully perform their
contractual obligations to pay in full all tuition and fees, without any reduction for
Defendant’s failure to fully perform its contractual obligations. This is contrary to
the tenets of contract law.
54. The nature of the instruction provided by Defendant at the time Plaintiff
and Class members enrolled (i.e., in-person classroom instruction), as well as the
campus facilities Defendant offers, were and are material terms of the bargain and
contractual relationship between students and Defendant.
55. Defendant’s failure to provide any in-person classroom instruction and its
shutdown of campus facilities amounts to a material breach of the contract.
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56. As a result of Defendant’s material breach—regardless of whether
Defendant’s performance may be excused—Plaintiff and Class members are not to
be held liable for continuing to perform their contractual obligations. That is,
regardless of whether Defendant’s failure to offer in-person classroom instruction
or to provide campus facilities is to be excused as a result of the COVID-19
pandemic, Defendant cannot continue to demand full or nearly full payment of
tuition and fees from Plaintiff and Class members for services and facilities that
Defendant is indisputably failing to provide.
57.
Defendant’s breach of express or implied contract, and its inequitable
retention of the benefit of the payment of tuition and fees, are the proximate causes
of Plaintiff’s and Class members’ injuries.
58. Plaintiff and Class members have all been harmed as a direct, foreseeable,
and proximate result of Defendant’s actions because Plaintiff and Class members
are being charged tuition and fees for services that Defendant is not providing.
59. Plaintiff and Class members are entitled to an award of money damages or
partial restitution in an amount to be determined at trial as redress for Defendant’s
breach.
Plaintiff prays for the establishment of a Court-ordered and Court-
supervised common fund from which the claims of affected Class members may be
paid and the attorneys’ fees and costs of suit expended by class counsel, as approved
by the Court, may be awarded and reimbursed.
60. Defendant continues to insist that full tuition and fees are due from plaintiff
and the students, despite Defendant’s failure to fully perform its contractual
obligations. Unless restrained by way of injunctive relief, Defendant’s conduct is
reasonably likely to lead to irreparable harm. Plaintiff and Class members are
entitled to and hereby pray for injunctive relief to enjoin Defendant’s continued
conduct.
61. Defendant continues to represent falsely on its web site that it offers
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campus facilities with significant benefit and value to students and continues to
represent falsely the value of its in-person on-campus classes. Unless restrained by
way of injunctive relief, Defendant’s conduct is reasonably likely to lead to
irreparable harm. Plaintiff and Class members are entitled to and hereby pray for
injunctive relief to enjoin Defendants’ continued conduct.
62. Given the dispute and the contractual relationship between the parties,
Plaintiff and Class members are entitled to and hereby pray for declaratory relief to
have the Court declare the parties’ respective obligations.
VII.
COUNT II
Breach of Implied Contract
(On Behalf of Plaintiff and the Class Against All Defendants)
63. Plaintiff re-alleges and incorporates by reference all previous allegations
as though set forth in full herein.
64. Plaintiff and Defendant entered into a contractual relationship where
Plaintiff paid Defendant in the form of tuition and fees in exchange for in-person
educational services and opportunities, including access to Defendant’s facilities.
Thus, in addition to any enrollment contract that may exist between Defendant and
Plaintiff and Class members, an implied contract independently exists between the
parties as a matter of New Jersey law.
65. By ceasing all in-person classroom instruction, relegating Plaintiff and
Class members to online instruction only and shutting off campus facilities to
Plaintiff and Class members, Defendant failed to provide the services that Plaintiff
bargained for in entering his contractual relationship with Defendant.
66. Although Defendant may not bear culpability for the campus closures or
the inability to provide any classroom instruction, neither do the enrolled students.
Yet, while Defendant has used the current COVID-19 shutdown circumstances to
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excuse its obligation to fully perform the obligations of their bargain with their
students, Defendant continues to demand that all students fully perform their
contractual obligations to pay in full all tuition and fees, without any reduction for
Defendants’ failure to fully perform their contractual obligations. The is contrary
to the tenets of contract law.
67. The nature of the instruction provided by Defendant at the time Plaintiff
and Class members enrolled (i.e., in-person classroom instruction), as well as the
campus facilities Defendant offers, were and are material terms of the bargain and
contractual relationship between students and Defendants.
68. Defendant’s failure to provide any in-person classroom instruction and its
shutdown of campus facilities amount to a material breach of the contract.
69. As a result of Defendant’s material breach—regardless of whether
Defendant’s performance may be excused—Plaintiff and Class members are not to
be held liable for continuing to perform their contractual obligations. That is,
regardless of whether Defendant’s failure to offer in-person classroom instruction
or to provide campus facilities is to be excused as a result of the COVID-19
pandemic, Defendant cannot continue to demand full payment of tuition and fees
from Plaintiff and Class members for services and facilities that Defendant is
indisputably failing to provide.
70. Plaintiff and Class members have all been harmed as a direct, foreseeable,
and proximate result of Defendant’s actions because Plaintiff and Class members
are being charged tuition and fees for services that Defendant did not and/or are not
providing.
71. Plaintiff and Class members are entitled to an award of money damages or
partial restitution in an amount to be determined at trial as redress for Defendant’s
breach.
Plaintiff prays for the establishment of a Court-ordered and Court-
supervised common fund from which the claims of affected Class members may be
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paid and the attorneys’ fees and costs of suit expended by class counsel, as approved
by the Court, may be awarded and reimbursed.
72. Defendant continues to insist that tuition and fees are due from Plaintiff
and the students, despite Defendant’s failure to fully perform its contractual
obligations. Unless restrained by way of injunctive relief, Defendant’s conduct is
reasonably likely to lead to irreparable harm. Plaintiff and Class members are
entitled to and hereby pray for injunctive relief to enjoin Defendant’s continued
conduct.
73. Defendant continues to represent falsely on its web site that it offers
campus facilities with significant benefit and value to students and continues to
represent falsely the value of its in-person on-campus classes. Unless restrained by
way of injunctive relief, Defendant’s conduct is reasonably likely to lead to
irreparable harm. Plaintiff and Class members are entitled to and hereby pray for
injunctive relief to enjoin Defendant’s continued conduct.
74. Defendant disputes its obligation to refund tuition and fees to Plaintiff and
Class members. Given the dispute and the contractual relationship between the
parties, Plaintiff and Class members are entitled to and hereby pray for declaratory
relief to have the Court declare the parties’ respective obligations.
VIII.
COUNT III
Unjust Enrichment
(On Behalf of Plaintiff and the Class Against All Defendants)
75. Plaintiff re-alleges and incorporates by reference all previous allegations
as though set forth in full herein.
76. Plaintiff and Class members conveyed money to Defendant in the forms
of tuition and fees for on-campus instruction and facilities that Defendant did not
provide and is not providing. Defendant has continued to retain these monies,
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despite not providing the full benefit of on-campus classroom instruction and
campus services and facilities.
77. Through the conduct, Defendant have been unjustly enriched at the
expense of Plaintiff and Class members.
78. It would be inequitable to permit Defendants to retain all of the benefits
Plaintiff and Class members conferred on Defendants the form of tuition and fees
paid.
79. Plaintiff and Class members are entitled to and hereby pray for an order of
partial restitution as redress for Defendant’s unjust enrichment. Plaintiff prays for
the establishment of a Court-ordered and supervised common fund from which the
claims of affected Class members may be paid and the attorneys’ fees and costs of
suit expended by class counsel, as approved by the Court, may be awarded and
reimbursed.
80. Defendant continues to falsely represent on its web site that it offers
campus facilities with significant benefit and value to students and continue to
falsely represent the value of their in-person on-campus classroom instruction. This
is false in that such on-campus instruction is not being offered. Defendant also
continues to defy and deny requests for partial tuition or fee reimbursement,
claiming that it is offering the same services for which Plaintiff and Class members
bargained. Unless restrained by way of injunctive relief, Defendant’s conduct is
reasonably likely to lead to irreparable harm. Plaintiff and Class members are
entitled to and hereby pray for injunctive relief to enjoin Defendant’s continued
conduct.
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IX.
COUNT FOUR
Conversion
(On Behalf of Plaintiff and the Class Against All Defendants)
81. Plaintiff re-alleges and incorporates by reference all previous allegations
as though set forth in full herein.
82. Defendant received money from Plaintiff and Class members in the form
of tuition and fee payments.
83. The money Plaintiff and Class members paid to Defendant was supposed
to be used for the benefit of Plaintiff and Class members for Defendants’ provision
of on-campus university classroom instruction and to make available to Plaintiff
and Class members campus services and facilities.
84. Defendant wrongfully exercised control over and/or intentionally
interfered with the rights of Plaintiff and Class members by effectively closing its
campus to in-person classroom instruction and switching to a virtual online-only
format, discontinuing paid-for services, and evicting students from campus
housing.20
85. Defendant received and wrongfully kept the money Plaintiff and Class
members paid for tuition and fee payments, because Defendant has not provided
campus facilities or on-campus instruction for the Winter/Spring term. More
specifically, Defendant failed to provide to Plaintiff and Class members the
benefits—such as in-person classroom instruction and related academic activities,
access to campus services, facilities, and in-person extracurricular, athletic, and
other student activities—that Plaintiff and Class members paid the tuition and
mandatory campus and student services fees to secure.
20
https://www.dailyprincetonian.com/article/2020/04/anything-to-not-go-homecovid19-evictions-desperation-and-mutual-aid (last visited Nov. 16, 2020).
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Case 3:20-cv-16622-MAS-LHG Document 1 Filed 11/19/20 Page 22 of 24 PageID: 22
86. Plaintiff and/or Class members have requested that Defendant issue
refunds.
87. Defendant refused to return, and has thus wrongfully retained, a portion of
tuition and mandatory campus and student services fees for the Spring 2020
semester. Defendant, therefore, is indebted to Plaintiff and Class members for the
failure to provide on-campus classroom instruction and campus facilities.
88. Defendant’s actions have damaged Plaintiff and Class members in the
amounts of the tuition and mandatory campus and student services fees that
Defendant improperly withheld.
89. Plaintiff and Class members hereby pray for the full panoply of remedies
available as redress for conversion, including a constructive trust over such monies
had and received for which the benefit was not provided, restitution or
disgorgement, as appropriate, and declaratory and injunctive relief.
X.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff, on behalf of himself and all others similarly situated,
respectfully requests that the Court finds against Defendant as follows:
1. An order certifying the action as a class action as defined herein,
appointing Plaintiff as Class representative, his counsel as Class counsel, and
directing that notice be disseminated to the absent Class members;
2. For judgment in favor of Plaintiff and Class members and against
Defendants on all counts and claims for relief;
3. For compensatory, consequential, general, and special damages and/or
restitution in an amount to be determined at trial;
4. For statutory damages, treble damages, and special or exemplary damages
to the extent permitted by law;
5. Pre-judgment and post-judgment interest at the maximum legal rates; and
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Case 3:20-cv-16622-MAS-LHG Document 1 Filed 11/19/20 Page 23 of 24 PageID: 23
6. For the establishment of a Court-ordered and -supervised common fund to
be funded by Defendant and from which claims of all eligible class members will
be paid, attorneys’ fees awarded to class counsel will be paid, costs of suit approved
by the Court and incurred by Class counsel will be reimbursed, and any award of
interest will be disbursed;
7. For interest as permitted by law;
8. For an award of attorneys’ fees;
9. For costs of suit;
10. For declaratory relief, to have the Court declare the obligations of the
parties;
11. For injunctive relief to enjoin Defendant’s ongoing conduct; and
12. For all such other relief as the Court deems just and proper.
XI.
DEMAND FOR JURY TRIAL
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff REID
ZLOTKY, on behalf of himself and all others similarly situated, hereby demands a
jury trial with respect to all issues triable of right by jury.
I.
CERTIFICATION
It is hereby certified that, pursuant to L.Civ.R. 11.2, the matter in controversy
is not presently the subject of any other action pending in any court or of an
arbitration proceeding to date.
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Dated: November 19, 2020
By:
McOMBER McOMBER & LUBER, P.C.
/s/ Charles J. Kocher
Matthew A. Luber, Esq. (NJID 017302010)
Charles J. Kocher, Esq. (NJ ID 016952004)
McOmber McOmber & Luber, P.C.
39 E. Main Street
Marlton, NJ 08053
(856) 985-9800 Phone
(856) 263-2450 Fax
Attorney for Plaintiff and Putative Class
SHEGERIAN & ASSOCIATES, INC.
By: /s/ Carney Shegerian
Carney R. Shegerian21
Anthony Nguyen
Cheryl A. Kenner
SHEGERIAN & ASSOCIATES, INC.
145 South Spring Street, Suite 400
Los Angeles, California 90012
Telephone: (310) 860 0770
Facsimile: (310) 860 0771
Attorneys for Plaintiff REID
ZLOTKY, on behalf of himself
and all others similarly situated
21
Pro Hac Vice applications forthcoming.
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