Duane Morris Class Action Review - 2023 - Report - Page 349
Ohio
In another school-related COVID class action, class certification was denied in Ohio
where plaintiff did not sufficiently develop his case for damages associated with the
campus shut down.
In Smith, et al. v. Ohio State University, 2022 Ohio App. LEXIS 3879 (Ohio App. Nov.
17, 2022), the plaintiff, a former college student, filed a lawsuit alleging that the
defendant university breached its contract and received unjust enrichment in 2020 by
failing to partially refund students their tuition and fees after transitioning from their
robust, in-person education to “subpar” online education during COVID-19. Id. at *6.
The plaintiff moved for class certification and the trial court granted the plaintiff’s motion
certifying a class consisting of all undergraduate students enrolled in classes at the
defendant’s Columbus campus during the Spring 2020 semester. Id. at *18. Notably, the
trial court found that the class suffered the same injury, i.e., losing the benefit of inperson classes and access to the campus. In appealing the trial court’s decision, the
defendant raised several arguments for why the trial court’s decision was incorrect.
Significantly, the defendant’s main, and ultimately successful, arguments focused on the
trial court’s failure to conduct the “rigorous analysis” required by Ohio Civil Rule 23 (like
Federal Rule 23) in determining whether the plaintiff had satisfied the prerequisites for
class certification. The Ohio court of appeals agreed with the defendant and reversed
the trial court’s order granting class certification for three reasons. First, the court of
appeals found that the plaintiff failed to present sufficient evidence of an economic
injury. Instead, the trial court simply assumed that a “benefit” was lost based only on the
fact the defendant closed its campus and switched to remote classes and services in
response to the pandemic. Id. at *33. Second, the court of appeals found that the trial
court failed to consider the defendant’s arguments and evidence contesting proof of
injury. Id. at *35. The defendant submitted an expert report that included evidence that
students paid the same for in-person and online learning and that the in-person
teaching modality carried the possibility of substantial remote instruction even in a
normal semester. Meanwhile, the plaintiff submitted no expert testimony regarding how
and or whether other students were injured in this case. Third, the court of appeals
found that the trial court’s analysis of the plaintiff’s unjust enrichment claim was merely
folded into the same generalized injury analysis without any individualized
consideration. Id. at *36. In holding that the trial abused its discretion, the court of
appeals reasoned that, “the trial court, in assuming an injury from the fact of closure and
termination of in-person classes, did not assess these complicated and difficult
considerations, particularly as they relate to whether [the plaintiff] presented any
common evidence — or even a method to possibly determine — that class members
suffered an economic injury considering the effect of the pandemic.” Id.
In Ohio, especially where a proposed class consists of a relatively small number of
individuals, courts may determine that joinder is not impractical, particularly where the
class members are readily ascertainable.
The plaintiffs in Shipp, et al. v. Norton Outdoor Advertisements, Inc. 2022 Ohio App.
LEXIS 207 (Ohio App. Jan. 28, 2022), appealed the trial court’s order denying class
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Duane Morris Class Action Review – 2023
