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

FILED October 11, 2022 No. 21-30681 Lyle W. Cayce Clerk

Sylvia Jones, on behalf of herself and all others similarly situated,

Plaintiff—Appellant,

versus

Administrators of the Tulane Educational Fund, doing business as Tulane University of Louisiana, also known as Tulane University,

Defendant—Appellee, ______________________________

John Ellis, on behalf of himself and all other individuals similarly situated,

Plaintiff—Appellant,

versus

Tulane University,

Defendant—Appellee.

Appeals from the United States District Court for the Eastern District of Louisiana USDC Nos. 2:20-cv-2505, 2:20-cv-2518 Case: 21-30681 Document: 00516504495 Page: 2 Date Filed: 10/11/2022

No. 21-30681

Before Smith, Clement, and Haynes, Circuit Judges. Edith Brown Clement, Circuit Judge: Two former students of Tulane University, on behalf of a putative class of current and former students, sued the University for failing to provide a partial refund of tuition and fees after Tulane switched from in- person instruction with access to on-campus services to online, off-campus instruction during the COVID-19 pandemic. The district court agreed with Tulane that the students’ complaint should be dismissed for failure to state a claim. For the following reasons, we REVERSE and REMAND for further proceedings consistent with this opinion. I. BACKGROUND A. FACTUAL ALLEGATIONS We recite the well-pleaded facts as alleged in the Consolidated Complaint, viewing them in the light most favorable to the plaintiffs.1 Tulane University is a private university in New Orleans, founded over 170 years ago. In its advertising materials, the University touted the benefits of living on and studying at its campus location: “[W]hen you choose to study here, you’re not just choosing a campus. You’re choosing a place to live and work. . . . That means your education is inextricably tied to the world around you.” Among its advertised facilities and services were Tulane’s “on-campus gym,” a state-of-the-art recreational facility; the physical facilities that are “a focal point for campus life”; the “theatrical performances, concerts and speakers on campus throughout the year”; the “on-campus clinic, pharmacy and counseling staff”; the “many ways to get involved on campus”; and the campus’s “convenient[] locat[ion] across the

1 Petrobras Am., Inc. v. Samsung Heavy Indus. Co., 9 F.4th 247, 253 (5th Cir. 2021) (per curiam).

2 Case: 21-30681 Document: 00516504495 Page: 3 Date Filed: 10/11/2022

No. 21-30681

street from” Audubon Park. The University advertised an in-person, on- campus life associated with its offer of educational instruction. In the 2019–2020 academic year, Tulane offered instruction to over 14,00