United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

____________ FILED July 20, 2023 No. 22-10433 Lyle W. Cayce ____________ Clerk

Luke Hogan, on behalf of himself and other individuals similarly situated,

Plaintiff—Appellant,

versus

Southern Methodist University, and other affiliated entities and individuals,

Defendant—Appellee. ______________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:20-CV-2899 ______________________________

Before Wiener, Southwick, and Duncan, Circuit Judges. Stuart Kyle Duncan, Circuit Judge: Luke Hogan, on behalf of a putative class of students, sued Southern Methodist University (“SMU”) for refusing to refund tuition and fees after the university switched to remote instruction during the COVID-19 pandemic. The district court dismissed Hogan’s complaint for failure to state a claim. We REVERSE that decision in light of King v. Baylor University, 46 F.4th 344 (5th Cir. 2022), which was issued after the district court’s ruling and which teaches that Hogan adequately pled a breach-of-contract claim. Alternatively, the district court held that Texas’s Pandemic Liability Case: 22-10433 Document: 00516827499 Page: 2 Date Filed: 07/20/2023

No. 22-10433

Protection Act (“PLPA”) retroactively bars Hogan’s claim for monetary relief and is not unconstitutionally retroactive under the Texas Constitution. That latter ruling raises a determinative-but-unsettled question of state constitutional law, which we CERTIFY to the Texas Supreme Court. I. Hogan paid about $25,000 in tuition and $3,180 in mandatory fees to enroll in SMU for the Spring 2020 semester. He registered for on-campus, in-person classes. But due to the COVID-19 pandemic, SMU—like other Texas schools—suspended in-person classes in March 2020 and shifted to online instruction. As a result, students were able to continue their coursework, and Hogan himself successfully graduated at the end of the Spring 2020 semester. Even so, Hogan contends he did not receive the full benefit of his bargain. He claims that SMU’s shift to remote learning breached the University’s promise of “in person educational experiences, with all the appurtenant benefits offered by a first-rate university.” Because SMU did not refund students any tuition or fees, Hogan sued, asserting claims for breach of contract, conversion, and unjust enrichment. Hogan’s amended complaint alleges SMU promised to provide students with on-campus services as reflected in numerous representations. He points to the University’s website, marketing and orientation materials, admission application, acceptance letter, registration documents, course catalog, student handbook, and other documents. These materials, he claims, contain vivid descriptions of students on campus, benefiting from a unique community, and receiving a one-of-a-kind experience through in-person collaboration and instruction. Hogan posits these materials conveyed that “in person educational opportunities . . . were intrinsic aspects