By Melissa Angell

Law360 (July 21, 2021, 7:32 PM EDT) -- A New York federal judge overseeing a student's proposed class action seeking COVID-19 tuition refunds from the Manhattan School of Music has trimmed conversion and state consumer protection claims, but determined that the school must still face breach of contract and unjust enrichment claims.

In a 28-page opinion and order on Tuesday, U.S. District Judge Katherine Polk Failla ruled that the musical conservatory's decision to embrace online learning in lieu of in-person instruction at the start of the pandemic may have breached an implied contract it had with its students.

The judge wrote that plaintiff Alina Flatscher had clearly pointed out statements in the school's course catalog and other promotional materials that "plausibly allege an implied contractual right to specific in-person instructional experiences."

"The court finds defendant's statements to be sufficiently specific to give plaintiff the expectation that her payment of tuition and fees entitled her to more than just course credit towards graduation, and instead encompassed physical access to MSM facilities and certain in-person, hands-on educational experiences," the order said.

But the judge said she was not suggesting that the school was wrong to close its facilities during the pandemic since it did so to protect its staff, students and faculty.

The decision marks the latest development to the putative class action launched in June 2020, accusing the school of not delivering the services that the proposed class paid for.

The school charged each student more than $48,000 in tuition for the 2019-2020 academic year along with other fees, court documents said. In exchange for a student's payment of tuition and fees, the school agreed to provide hands-on instruction along with access to practice rooms and other facilities.

But as the COVID-19 pandemic sprawled out of control last year, the school switched to online learning at the end of March and closed its campus and limited facility access, the proposed class said. Flatscher continued her classes online and received private voice lessons through video conferences, but she said technical difficulties made the lessons "impossible."

Flatscher also said that she was charged a student health insurance fee, qualifying examination fee, graduation fee, a commuter meal fee and a general student fee but had received refunds of those fees.

The school responded to the suit in October through a pre-motion letter that sought a motion for judgment on the pleadings. After an initial pretrial conference, the proposed class amended its argument in November.

In its motion to dismiss filed in December, the school argued that the breach of contract claims must fail because the proposed class identified no specific promises of in-person learning.

The school further argued that the students' claim for unjust enrichment must be dismissed because it duplicates their breach of contract claims for tuition and fees.

Though Judge Failla dismissed the proposed class' claims of conversion and violation of New York's consumer protection statute, she ultimately determined that Flatscher had identified promotional materials that suggest an "implied contractual right" to in-person instruction.

The judge also said further clarity was needed concerning the requested fee reimbursements. For example, the judge pointed out that Flatscher seeks a refund of her graduation fee since she missed out on an in-person graduation ceremony, but said that the record does not specify what the fees offer students.

The judge also took aim at the school's attempt to compare its case to those of other universities that have persevered in similar lawsuits over COVID-19 tuition refunds, saying the education the musical conservatory offers requires hands-on instruction and other technical training.

"Defendant misses the crux of this matter: defendant is a musical conservatory, 'preparing [defendant's] students to be accomplished and passionate performers," the order said. "Indeed, many, if not all, of Defendant's courses 'require in-person/hands on instruction' because of the school's unique status as a musical conservatory. "

The judge also determined that the unjust enrichment claim is "not yet duplicative" of the breach of implied contract claim at this stage of the litigation.

Judge Failla directed the parties to submit a joint status letter along with a proposed civil case management plan no later than Aug. 10.

Counsel and representatives for the parties did not immediately respond to Law360's request for comment on Wednesday.

Flatscher is represented by Thomas J. McKenna of Gainey McKenna & Egleston.

The school is represented by Gregory B. Reilly of Bond Schoeneck & King.

The case is Alina Flatscher v. The Manhattan School of Music, case number 1:20-cv-04496, in the U.S. District Court for the Southern District of New York.

--Editing by Peter Rozovsky.

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