(Breach of Contract)   (Money Had And Received)   (Unjust Enrichment)   11.    Plaintiff Daniel Zagoria is a graduate student at NYU and is enrolled in a Master’s   Degree program in Real Estate Investment and Finance.  He has been enrolled at NYU since the  2018 academic year and is scheduled to graduate with a Master of Science degree in 2020.   For  the current 2019-2020 academic year, NYU charged tuition in an amount exceeding $2,000 per  credit unit.  Given the number of years and credits required to complete NYU’s graduate degree  (or any undergraduate degree at NYU, for that matter) a student is expected to incur tens of  thousands of dollars or more in tuition and fees during their enrollment at NYU.  NYU Touted And Emphasized The Importance Of Its Schools’ Facilities And In-Person  Instruction   12.   The marketing and recruitment materials for NYU’s Schack Institute of Real Estate   within NYU’s School of Professional Studies where Plaintiff is enrolled went to great   lengths to highlight and tout the benefits of the in-classroom in-person teaching experience of its  Real Estate program.  Describing these benefits, the school’s website specifically pointed out this  benefit:  Networking  Direct engagement with industry, through the nation’s leading conferences, regular  speakers, internships, and more.  https://www.sps.nyu.edu/homepage/academics/divisions-and-departments/schack-institute-of- real-estate.html (last visited May 6, 2020) (attached hereto as Exhibit 1 to Class Action Complaint).    14.    Of course, NYU’s representations as to the benefits of its campus facilities and in-  person instruction were not limited merely to those it made in connection with Plaintiff’s  graduate program in Real Estate Investment.  Instead, NYU touted the benefits of its facilities  and campus instruction across the board to students and prospective students in all its schools  and programs.  For example, with respect to NYU’s Tandon School of Engineering, NYU’s  website informed students and prospective applicants about the state-of-the-art laboratory  facilities that students could avail themselves upon enrolling at NYU’s engineering school:  Why NYU Tandon?  Our reputation as a global education leader with a world-class faculty and state-of- the-art labs producing groundbreaking research make the School of Engineering the  perfect place to pursue your degree.  https://engineering.nyu.edu/admissions/why-nyu-tandon#chapter-id-23766 (last visited May 6,  2020) (attached hereto as Exhibit 2 to Class Action Complaint).   16.  None of these Centers or Institutes—key facilities that NYU used to market the value   of the science education afforded to students at the College of Arts and Sciences—actually is  open or available for use to the students.  Despite this, NYU continues to charge and demand  tuition as though it were actually making these facilities and instruction therein available for  students.   18.    The reality, however, is that contrary to the foregoing representation, NYU’s   Institute of Fine Arts is not offering any such instruction nor any access to the facilities or travel  opportunities that NYU marketed as key benefits of its program.  Instead, students at NYU’s  Institute of Fine Arts have seen all the Institute’s facilities closed and have been relegated to  instruction only through video remote learning.  Despite this, NYU is charging and continues to  demand full tuition and fees as though such instruction and facilities were being made available.   20.     Despite these representations about the value of its “classroom instruction,” the fact   is that no classroom instruction is being provided by NYU’s Stern School of Business.  Instead,  as with all other NYU schools, all courses have been moved to a remote learning video format.   Despite this, NYU continues to charge and demand full tuition and fees as if the promised in- classroom instruction were actually being offered.   NYU Now Recants And Implicitly Contends Online Distance Learning Without Campus  Facilities Provides The Same Learning Experience And Value As Its On-Campus  Classroom Instruction, Such That NYU Refuses To Provide Any Tuition Reimbursement.   22.     That the putative class member students are not receiving the benefit of the   bargain for which they contracted when they agreed to enroll at NYU for this academic year is  independently evidenced by an online petition started by a NYU student.   That petition entitled,  “Partial Refund on NYU Tuition” is available online at https://www.change.org/p/nyu-students- request-partial-refund-from-nyu (last visited May 7, 2020).  The petition demands a partial  tuition and fee refund for NYU students for the Spring 2020 semester, as it maintains students  are being charged fees and tuition for facilities and instruction they are not receiving.     24.       The foregoing is just an illustrative sample of students’ postings.  Countless   postings expressing similar sentiments by NYU students are online expressing the view that  neither the online instruction nor the lack of campus facilities equate with the bargained for  service and instruction that students signed up for when they enrolled at NYU.  NYU changed  the bargain but has refused to make any refund of tuition or fees to the aggrieved students.  Professors and Deans Publicly Agree That “Remote Distance Learning” Is Not Equivalent  To, And Less Valuable Than, Traditional On-Campus University Education.   26.     Other education experts are even more blunt.  Professor Jonathan Zimmerman  who specializes in the history of education at the University of Pennsylvania, was quoted in a  recent Philadelphia Inquirer op-ed: “Most online instruction isn’t as effective as the traditional  kind, which is why elite schools have consistently resisted it.”  27.     Plaintiff brings this action as a class action pursuant to Federal Rules of Civil   Procedure 23(b)(3) and 23(b)(2) on behalf of himself and all other similarly situated students  enrolled at NYU who pay or are obligated to pay any tuition or fees and any students enrolled at  NYU in any future summer session or semester in which NYU does not provide access to its  campus facilities or on-campus instruction yet continues to charge full tuition and fees without  any proration.  Excluded from the class are students who expressly registered for online courses  at NYU before the commencement of the Spring 2020 semester.  Also excluded from the class  definition are all judicial officers assigned to this case and their staff.     28.      Class certification is proper because the question raised by this complaint is one of   a common or general interest affecting numerous persons, such that it is impracticable to bring  them all before the court.   30.     Plaintiff and his counsel are adequate representatives of the interests of the putative   class.  Plaintiff is a student at NYU who is being charged tuition or fees as part of his enrollment.   He did not sign up for online instruction.  He contends that NYU has breached its agreement  with students by continuing to charge and demand full tuition and fees despite NYU not  providing any in-person classroom instruction at any of its campuses and not making campus  facilities available for students.     31.      Plaintiff has retained counsel experienced in class action litigation to litigate and   represent the interests of the class.   32.      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 NYU’s failure to  provide any in-person campus instruction or campus facilities while continuing to charge full  tuition and fees.  The claims Plaintiff asserts are the same and co-extensive as the claims raised  on behalf of the absent class members.   37.     Plaintiff realleges and incorporates by reference all previous allegations, as though   set forth in full herein.   38.      By the act of matriculation, together with payment of required fees, a contract   between Plaintiff and the absent class members on the one hand and, on the other hand, NYU  was created.  Thus, in addition to any enrollment contract that may exist between NYU and the  Plaintiff and class members, an implied-in-fact contract independently exists between the parties  as a matter of New York law.   40.    By ceasing all in-person classroom instruction, relegating Plaintiff and the class   members to online instruction only, and shutting off campus facilities to Plaintiff and the class  members, NYU has failed to provide the services that Plaintiff bargained for in entering his  contractual relationship with NYU.     41.     Although NYU may not bear culpability for the campus closures or the inability to   provide any classroom instruction, neither do the enrolled students.  Yet, while NYU has used  the current COVID 19 shutdown circumstances to excuse its obligation to fully perform the  obligations of its bargain with its students, NYU continues to demand that all students fully  perform their contractual bargain to pay in full all tuition and fees without any reduction for  NYU’s lack of full performance.  This is contrary to ordinary tenets of contract law.   42.     The nature of the instruction provided by NYU at the time Plaintiff and the class   members enrolled (i.e., in-person classroom instruction) as well as the campus facilities offered by  NYU across its schools and campuses were and are material terms of the bargain and contractual  relationship between students and NYU.     43.      NYU’s failure to provide any in-person classroom instruction and its shutdown of   campus facilities amount to a material breach of the contract.   45.      NYU’s breach and continued demand for full payment from Plaintiff and the   absent class members are the proximate causes of Plaintiff’s and the class members’ injury.     46.      Plaintiff and the class members have all been harmed as a direct, foreseeable, and   proximate result of NYU’s actions because Plaintiff and the class members are being charged  full tuition and fees for services that NYU is not providing.     47.     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 NYU’s breach.  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.     48.     NYU continues to insist that full tuition and fees are due from Plaintiff and the   students despite NYU’s failure to fully perform their contractual obligations.  Unless restrained  by way of injunctive relief, NYU’s conduct is reasonably likely to lead to irreparable harm.   Plaintiff and the class members are entitled to and do hereby pray for injunctive relief to enjoin  NYU’s continued conduct.   49.     NYU continues to falsely represent on its website that it offers campus facilities   with significant benefit and value to students and continues to falsely represent the value of its  in-person on-campus classes.  Unless restrained by way of injunctive relief, NYU’s conduct is  reasonably likely to lead to irreparable harm.  Plaintiff and the class members are entitled to and  do hereby pray for injunctive relief to enjoin NYU’s continued conduct.   51.      Plaintiff realleges and incorporates by reference the allegations of paragraphs 1-36   as though set forth in full herein.   52.    Plaintiff and the class members conveyed money to NYU in the form of tuition and   fees for on-campus instruction and facilities that NYU did not provide and is not providing.   NYU has continued to retain these monies, despite not providing the on-campus instruction or  facilities    53.    Through this conduct, NYU has been unjustly enriched at the expense of Plaintiff   and the class members.   54.    As between the two parties (NYU and the class members), it would be inequitable   to permit NYU to fully retain all the benefits conferred upon it by Plaintiff and the class  members in the form of tuition and fees paid.   55.      Plaintiff and the class members are entitled to and do hereby pray for an order of   partial restitution as redress for NYU’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.   57.      Plaintiff realleges and incorporates by reference the allegations of paragraphs 1-36  as though set forth in full herein.   58.     NYU received money from Plaintiff and the class members in the form of tuition   and fee payments.   59.     This money received by NYU from Plaintiff and the class members was supposed   to be used by NYU for the benefit of the Plaintiff and class members; namely, it was supposed to  be used for NYU’s provision of on-campus university instruction and campus facilities to  Plaintiff and the class members.   60.      NYU received and pocketed the money provided by Plaintiff and the class   members in the form of tuition and fee payments but has not provided any campus facilities or  on-campus instruction.  NYU, therefore, is indebted to Plaintiff and the class members for this  failure to provide on-campus instruction and campus facilities.  