FILED

8/12/2020 12:03 PM
1 CIT-ESERVE
CIT'ESERVE FELICIA PITRE
DISTRICT CLERK
DALLAS 00.,
CO.,TEXAS
Christi Underwood DEPUTY

DC-20-1 1 139
CAUSE N0.
NO.

LUKE HOGAN, 0n
on behalf 0f himself and IN THE DISTRICT COURT OF
other individuals similarly situated,

Plaintiff,
DALLAS COUNTY, TEXAS
WWWWWWWWWOWOW

VS.
vs. mmwwmmmmwwm

SOUTHERN METHODIST UNIVERSITY

and other affiliated entities and individuals,

Defendants 191ST JUDICIAL DISTRICT

PLAINTIFF’S ORIGINAL CLASS ACTION PETITION AND JURY DEMAND

Named Plaintiff Luke Hogan “Plaintiff’), individually

(hereinafter “Plaintiff”), and on behalf 0f all

others similarly situated, by his attorneys, alleges the following upon information and belief,

except for those allegations pertaining t0 Plaintiff, Which

which are based 0n
on personal knowledge.

EATLJRE QF THE AQTIQN

1. This class action is brought on behalf 0f Named Plaintiff Luke Hogan and those

similarly situated Who paid tuition and fees for the Spring 2020 semester at Southern Methodist

University. As of Defendants’ response t0 the Novel Coronavirus Disease 2019

a result 0f

(“COVID-19”), Plaintiffs did not receive the benefits and services that they bargained for when
When

they provided payment for tuition and fees.

2. Plaintiffs and Defendants entered into a contract where Plaintiffs would provide

payment in the form 0f

of tuition and fees and Defendants would provide in—person educational

services, experiences, opportunities, and other related services.

3. On 0r around
or March 12, 2020, Southern Methodist University canceled all in-

person education and in—person educational services, then transitioned to complete online
education.

4. Based 0n these closures, Defendants have failed to uphold their end of the contract

t0 provide in-person educational services, experiences, and opportunities.

5. Despite Defendants’ failure to provide the services and experiences as bargained

for, Defendants have not offered any refund of the tuition and fees that Plaintiff and the Class

paid.

DISCOVERY LEVEL AND RULE 47 STATEMENT

6. Plaintiffs intend t0 conduct discovery under Level 3, pursuant t0 Texas Rule of

Civil Procedure 190.4, and request that the Court enter a scheduling order in this case.

7. As required by Rule 47 of the Texas Rules 0f Civil Procedure, Plaintiffs plead for

monetary relief in an amount over $1,000,000 and judgment for all other relief t0 which they are

entitled. However, Plaintiffs believe that the amount 0f monetary relief actually awarded as

damages should and will ultimately be determined by a jury.

FA T

8. Plaintiff and Class Members are individuals that paid tuition and fees for the

Spring Semester 2020 at Southern Methodist University.

9. Defendants accepted Plaintiff’s and Class Members’ payments in exchange for

educational services, experiences, and opportunities as detailed in Defendants” marketing,

advertisements, and other public representations.

10. Based 0n the academic schedule, the Spring 2020 semester at Southern Methodist

University commenced 0n or around Jan. 17, 2020, and it was scheduled to conclude 0n 0r

around May 16, 2020.

11. Named Plaintiff Luke Hogan was a full-time graduate student in the management
program during the Spring 2020 semester. Southern Methodist University charged plaintiff

approximately $25,000 in tuition and fees during the Spring 2020 semester.

12. Plaintiffs paid tuition and fees for in-person educational services, experiences,

opportunities, commencement exercises, and other related collegiate services for the entire period

beginning in or around January 2020 through May 2020.

13. According t0 publicly available information, the average tuition cost for both in-

state and out-of—state residents is approximately $37,955.00 for the Spring 2020 semester at

Southern Methodist University.

14. On 0r around March 12, 2020, Southern Methodist University announced that

because of COVID-19, they would suspend and cancel all in-person classes and college

experiences for the remainder 0f the Spring Semester 2020 (following Spring Break recess) and

that all learning would transition to online beginning 0n or around March 26, 2020.

15. Defendants were unable to provide in-person educational experiences, services,

and opportunities for approximately 59% of the Spring 2020 semester.

16. Prior t0 the suspension of in-person classes for the Spring 2020 semester,

Plaintiff Luke Hogan attended campus events and was involved in student activities and/or clubs.

17. As a result 0f Defendants’ closure, Defendants have not complied With their

obligation to provide in-person educational services along With other experiences, opportunities,

and services Plaintiff and the Class paid for.

18. Plaintiff and the Class did not enter into an agreement With Defendants for online

education, but rather sought t0 receive in-person education from Defendants’ institution.

19. Therefore, Plaintiff and Class Members are entitled to a pro-rata refund of the

tuition and fees they paid to Defendants for in-person educational services as well as other
marketed collegiate experiences and services that were not provided.

JURISDICTION AND VENUE

20. This Court has subject matter jurisdiction because Plaintiffs seek damages Within

the jurisdictional limits 0f this Court.

21. This Court has personal jurisdiction over Defendants because Southern Methodist

University is a Texas entity and maintains its principal place 0f business in Dallas County, Texas.

22. Venue is proper in Dallas County pursuant to Tex. CiV. Prac. & Rem. Code Ann. §

15.002 because all or a substantial part of the events 0r omissions giving rise to the claim occurred in

this County, and because Defendants operate their primary campus in this County.

PARTIES

23. Named Plaintiff Luke Hogan is a resident of Keller, Texas. Plaintiff was enrolled

as a full-time graduate student at Southern Methodist University during the Spring 2020

semester. Plaintiff graduated at the conclusion 0f the semester. Plaintiff has not received any

refund for tuition and fees paid to Defendants, despite the fact that the University has been shut

down since on or about March 12, 2020.

24. Defendant Southern Methodist Universitl (“Southern Methodist” 0r “SMU”) is a

private university and a Texas corporation whose principal place 0f business is located in Dallas,

Texas. This Defendant may be served through its registered agent as follows: Paul J. Ward,

Perkins Admin. Building, 6425 Boaz Lane, Room 130, Dallas, TX 75205.

QLASS ALLES iATIg 213 S

25. Plaintiff brings this matter on behalf 0f himself and those similarly situated. As

detailed in this Petition, Defendants failed t0 provide the in-person education services the

Plaintiffs paid tuition and fees t0 receive during the Spring Semester 2020.

26. Plaintiffs were impacted by and damaged by this misconduct.

4
 27. Accordingly, this action is ideally situated for class-Wide resolution.

28. The Class is defined as all individuals who paid tuition and fees t0 Southern

Methodist University t0 receive in—person educational services, experiences, and

opportunities during the Spring Semester 2020. (“Class”).

29. The Class is properly brought and should be maintained as a class action

under Texas Rule 0f Civil Procedure 42 satisfying the class action prerequisites 0f

numerosity, commonality, typicality, and adequacy because:

30. Numerosity: Class Members are so numerous that joinder 0f all members is

impracticable. Plaintiff believes that there are thousands 0f individuals Who are Class

Members described above Who have been damaged by Defendants breach of contract.

31. Commonalig: The questions 0f law and fact common t0 the Class Members

Which predominate over any questions Which may affect individual Class Members include,

but are not limited to:

a. Whether Defendants accepted money from Plaintiff and Class Members

inexchange for a promise t0 provide services;
b. Whether Defendants provided those services as bargained for;
c. Whether Plaintiff and the Class Members are entitled t0 a pro-rata portion
of the tuition and fees paid for services that were not provided;
. Whether Defendants were unjustly enriched;
e. Whether Defendants converted money from the Plaintiff and Class
Members.

32. Typicality: Plaintiff is a member 0f the Class. Plaintiff’s claims are typical 0f the

claims of each Class Member in that every member of the Class was subject to Defendants

breach of contract, unjust enrichment and conversion. Plaintiff is entitled t0 relief under the same

causes 0f action as the other Class Members.

33. Adequacy: Plaintiff is an adequate Class representative because his interests d0

not conflict with the interests of the Class Members he seeks t0 represent; his claims are common
to all members of the Class, and he has a strong interest in Vindicating his rights; he has retained

counsel competent and experienced in complex class action litigation and they intend t0

vigorously prosecute this action. Plaintiff has n0 interests Which conflict With those of the Class.

The Class Members’ interests will be fairly and adequately protected by Plaintiff and his

counsel. Defendants have acted in a manner generally applicable t0 the Class, making relief

appropriate With respect to Plaintiff and the Class Members. The prosecution 0f separate actions

by individual Class Members would create a risk of inconsistent and varying adjudications.

34. The Class is properly brought and should be maintained as a class action under

Texas Rule 0f Civil Procedure 42 because a class action is superior t0 traditional litigation 0f this

controversy. Common issues of law and fact predominate over any other questions affecting only

individual members 0f the Class. The Class issues fully predominate over any individual issue

because n0 inquiry into individual conduct is necessary; all that is required is a narrow focus on

Defendants’ conduct.

35. Superiorigy: In addition, a class action is superior t0 the other available

methods for the fair and efficient adjudication 0f this controversy because:

a. The joinder 0f thousands of individual Class Members is impracticable,

cumbersome, unduly burdensome, and a waste ofjudicial and/or
litigation resources;

b. The individual claims of the Class Members may be relatively modest

compared With the expense 0f litigating the claim, thereby making it
impracticable, unduly burdensome, and expensive-if not totally impossible-to
justify individual actions;

c. When Defendants’ liability has been adjudicated, all Class Members' claims can
be determined by the Class and administered efficiently in a manner far less
burdensome and expensive than if it were attempted through filing, discovery,
and trial of all individual cases;

d. This class action will promote orderly, efficient, expeditious, and

appropriate adjudication and administration of Class claims;
 e. Plaintiff knows of no difficulty t0 be encountered in the management of
this action that would preclude its maintenance as a class action;

f. This class action will assure uniformity 0f decisions among Class Members;

g. The Class is readily definable and prosecution of this action as a class action
will eliminate the possibility of repetitious litigation;

h. Class Members’ interests in individually controlling the prosecution 0f

separate actions are outweighed by their interest in efficient resolution by
single class action; and

i. It would be desirable to concentrate in this single venue the litigation of all

plaintiffs who were harmed by Defendants’ conduct.

36. Accordingly, this Class is properly brought and should be maintained as a class

action under Texas Rule of Civil Procedure 42 because questions of law or fact common to

Class Members predominate over any questions affecting only individual members, and

because a class action is superior to other available methods for fairly and efficiently

adjudicating this controversy.

37. Plaintiff and the Class can maintain this action as a class action under Texas

Rule 0f Civil Procedure 42(b)(1), (2), and (3).

FIRST glAflSE QF AQTIQIS

BREA H F TRA T
(On Behalf 0f Plaintiff and All Class Members)

38. Plaintiffs incorporate by reference all 0f the allegations made above here into this

cause of action.

39. Plaintiff, on behalf of himself and other members of the class, brings a common

law claim for Breach 0f Contract.

40. By accepting payment, Defendants entered into contractual arrangements with

Plaintiff and Class Members t0 provide educational services, experiences, opportunities, and
related services for the Spring Semester 2020.

41. Plaintiff and Class Members’ payment of tuition and fees were intended t0 cover

in—person education, experiences, and services from January through May 2020.

42. Defendants received and retained the benefits Without providing those benefits to

Plaintiff and Class Members.

43. As a direct and proximate result 0f Defendants’ breach 0f contract, Plaintiff and

Class Members have been harmed by not receiving the educational experiences, opportunities,

and services they paid for during the Spring Semester 2020.

44. Defendants are required t0 perform under the contract and COVID-19 does not

excuse such performance. Therefore, Defendants should be required to return pro-rata shares of

the tuition and fees paid by Plaintiff and Class Members that related to services that were not

provided for after Southern Methodist University shut down 0n or around March 12, 2020.

SEQQISD S2AIJSE QF AQTIQIS

QQEYERSIQE
(On Behalf 0f Plaintiff and All Class Members)

45. Plaintiffs incorporate by reference all 0f the allegations made above here into this

cause of action.

46. Plaintiff, on behalf of himself and other members 0f the Class, brings a common

law claim for Conversion.

47. Plaintiff and Class Members have an ownership right to the in-person educational

services based on their payment 0f tuition and fees for the Spring Semester 2020.

48. Defendants intentionally interfered With Plaintiff and the Class Members’

ownership right When they canceled in-person instructions for the remainder of the Spring

Semester 2020.
 49. Plaintiff and the Class Members were damaged by Defendants’ interference as

they paid for educational, experience, and services for the entirety 0f the Spring Semester 2020

which were not provided.

50. Plaintiff and the Class Members are entitled to a pro-rata share of the tuition and

fees they paid for but were not provided resulting from Defendants’ interference.

THIRD QAQSE QF AQTIQIS

MM LA T E RI HME T
(On Behalf 0f Plaintiff and All Class Members in the Alternative)

5 1. Plaintiffs incorporate by reference all of the allegations made above here into this

cause 0f action.

52. Plaintiff, on behalf of himself and other members of the class, brings a common

law claim for unjust enrichment.

53. Plaintiff and Class Members conferred financial benefits and paid substantial

tuition and fees to Defendants for educational and related services for the Spring Semester 2020.

As bargained for these tuition and fee payments were intended t0 cover in-person education

throughout the entire Spring Semester 2020 0f January through May 2020.

54. Defendants accepted the obligation to provide such services when they accepted

payment.

55. Defendants retained these payments, despite Defendants’ failing t0 provide the

bargained for educational experiences and services for which the tuition and fees were collected

t0 cover. Defendants should be required to return a pro-rata share 0f any Spring Semester 2020

tuition and fees, 0f Which services were not provided as bargained for, since Southern Methodist

University shut down on or around March 12, 2020.

56. Under common law principles 0f unjust enrichment, it is inequitable for

Defendants to retain the benefits conferred by Plaintiff s and Class Members’ overpayments.

57. Plaintiff and Class Members seek disgorgement of all profits resulting from such

overpayments and establishment of a constructive trust from which Plaintiff and Class Members

may seek restitution.

,l [JRY DEMAND
58. Plaintiff demands a trial by jury and has paid the jury fee.

PRAYER F R RELIEF

WHEREFORE, Plaintiff, on behalf of himself and the Class, prays for judgment as follows:

(a) Declaring this action t0 be a proper class action and certifying

Plaintiff as the representative 0f the Class under Texas Rule of Civil

Procedure 42;

(b) Awarding monetary damages as set forth above;

(c) Awarding punitive damages;

(d) Awarding Plaintiff and Class Members their costs and expenses incurred in this

action, and also awarding reasonable attorney’s fees incurred in connection

with the prosecution of this action; and

(e) Granting all other relief to which Plaintiff and the Class Members may be

entitled.

RE E TF R DI L RE

Under Texas Rule 0f Civil Procedure 194, Plaintiff requests that the Defendant disclose,

within 50 days of the service of this Petition, the information or material described in Tex. R.

Civ. P. 194.2(a)—(1) and in Tex. R. Civ. P. 190.2(b)(6).

10
 Respectfully submitted,

THE EDWARDS LAW GROUP

THE HAEHNEL BUILDING
11TH STREET
1101 E.
AUSTIN, TX 78702
Tel. 512-623-7727
Fax. 512-623-7729

By /s/ Jeff Edwards

JEFF EDWARDS
Bar N0. 24014406
State
jeff@edwards—1aw.com
MICHAEL SINGLEY
State Bar N0. 00794642
mike@edwards—law.com
DAVID JAMES
State Bar N0. 24092572
david@edwards—1aw.com

AND
THE SULTZER LAW GROUP, P.C.
Jason P. Sultzer, Esq.*
Jeremy Francis, Esq.*
sultzerj @thesultzerlawgroup.com
francisj @thesultzerlawgroup.com
85 Civic Center Plaza, Suite 104
Poughkeepsie, New York 12601
Telephone: (854) 705-9460

AND
LEEDS BROWN LAW, P.C.
Jeffrey K. Brown, Esq.*
Michael A. Tompkins, Esq.*
Brett R. Cohen, Esq.*
One Old Country Road, Suite 347
Carle Place, NY 115 14
(5 1 6) 873-9550
jbrownl@leedsbrownlaw.com
mtompkins@leedsbr0wnlaw.com
bcohen@leedsbrownlaw.com

* Admission Pro Hac Vice t0 be requested

Counselfor Plaintifland the Putative Class

11