Duke v. Ohio Univ.

[Cite as Duke v. Ohio Univ., 2022-Ohio-4694.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Gila Duke, :
Plaintiff-Appellee, : No. 22AP-184
(Ct. of. Cl. No. 2021-00036JD)
v. :
(REGULAR CALENDAR)
Ohio University, :
Defendant-Appellant. :
D E C I S I O N
Rendered on December 27, 2022
On brief: Carpenter Lipps and Leland LLP, and Michael H.
Carpenter, Timothy R. Bricker, and Michael N. Beekhuizen,
for appellant. Argued: Michael N. Beekhuizen.
On brief: Dave Yost, Attorney General, and Lynch
Carpenter, LLP, and Kathleen P. Lally, for appellee.1 Argued:
Eddie Jae K. Kim.
APPEAL from the Court of Claims of Ohio
SADLER, J.
{¶ 1} Defendant-appellant, Ohio University ("OU"), appeals a decision and
judgment of the Court of Claims of Ohio granting the motion for class certification filed by
plaintiff-appellee, Gila Duke. For the following reasons, we reverse the trial court
judgment.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On January 25, 2021, Gila Duke and her mother Yana Duke filed a class
action complaint against OU on behalf of themselves and all people who paid tuition and
1On July 15, 2022, after appellate briefing was completed, this court granted, for purposes of the proceedings
before this court, Ms. Lally's motion for leave to withdraw as counsel and granted the motions for leave to
appear as counsel filed by Joshua Arisohn and Eddie Jae K. Kim.
No. 22AP-184 2
fees for the spring 2020 academic semester, "and who, because of [OU]'s response to the
[COVID-19] pandemic, lost the benefit of the education for which they paid, and/or the
services for which their fees paid, without having their tuition and fees refunded to them."
(Compl. at 1.) The complaint alleged OU did not hold any in-person classes during the
spring semester after March 10, 2020, and "[t]he online learning options offered to OU
students were subpar as compared to in-person classes in practically every aspect[.]"
(Compl. at 2.) A "vast difference" in OU's pricing structure for different modalities of
education is alleged as evidence that online and in-person classes are not equivalent.
(Compl. at 5-6.)
{¶ 3} According to the complaint, Gila, an Ohio resident, was a student in the
undergraduate business program at OU's Athens campus in the spring of 2020. Gila did
not enroll in OU's offered online program, but instead enrolled in classes she believed,
based on the course catalogue and website, would be taught in-person. The complaint
asserts Yana paid OU approximately $6,022.39 in tuition in fees for the spring semester of
2020 and did not receive any refund despite classes not being held in-person between
March 10, 2020 and the conclusion of the semester (on April 25, 2020 with finals held up
through May 1, 2020).
{¶ 4} Based on these allegations, the Dukes brought claims of breach of contract,
unjust enrichment, and conversion against OU on behalf of the class. Specific to the breach
of contract claim, the Dukes alleged, "[t]hrough the admission agreement and payment of
tuition and fees, [they] and each member of the Class entered into a binding contract with
[OU]" and that, "[a]s a part of the contract, and in exchange for the aforementioned
consideration, [OU] promised to provide certain [in-person educational] services."
(Compl. at 9.) The injuries sustained by the Dukes and members of the class "include[d]
but [are] not limited to being deprived of the education, experience, and services to which
they were promised and for which they have already paid." (Compl. at 10.) As to the unjust
enrichment claims, the complaint states that the Dukes and the members of the class
conferred a benefit upon OU in the form of tuition and fees that "entitled [them] to in-
person educational services through the end of the [s]pring [s]emester" but that OU
retained this benefit after failing to provide the in-person educational services. (Compl. at
11.)
No. 22AP-184 3
{¶ 5} OU filed an answer and affirmative defenses on March 8, 2021. In it, OU
denied the action is maintainable as a class action, denied students paid more for in-person
classes compared to online classes, and, while admitting it entered into a contractual
relationship with Gila, denied the Dukes' framing of the terms of the contract and that it
entered a contractual relationship with her mother. On July 21, 2021, Yana filed a notice
of voluntary dismissal of all claims against OU pursuant to Civ.R. 41(A)(1)(a).2
{¶ 6} On September 30, 2021, Gila filed a motion for class certification. In her
memorandum in support of her motion for class certification, Gila argued that OU had a
contractual obligation to her and the class to provide access to campus and in-person
campus activities, as well as the ability to choose classes by specific campuses and in-person
methodology. Gila asserted this obligation would be established by examining the conduct
of the parties and the students' expectations as well as representations made in documents
like OU's handbooks, catalogues, policies, and brochures. Gila contented OU breached this
contractual obligation when it failed to provide access to campus and in-person educational
services in spring 2020, and that her experts, Colin Weir and Steven Gaskin, "have provided
a method to measure damages on a class-wide basis[.]" (Memo. in Support of Class
Certification at 14.) Specifically, Gaskin "designed a survey in the form of a conjoint
analysis that will allow him to 'assess the extent of any reduction in market value resulting
from the closure of the OU campus[,]' " and "[o]nce [Gaskin] has performed the survey and
reached his findings * * * Weir will calculate the tuition overpayment[.]" (Memo. in Support
of Class Certification at 14, citing Gaskin Declaration at ¶ 10.) Gila additionally contended
it would be unjust to allow OU to retain tuition and fees considering the service OU
provided versus what it promised its students. In her memorandum in support of her
motion for class certification, Gila argued both that certification is appropriate under Civ.R.
23(B)(1), because separate adjudication of these claims would create inconsistent
obligations for OU, and under Civ.R. 23(B)(3), because common issues predominate over
any individual issues.
{¶ 7} The motion for class certification was supported by: declarations made by
Gila, her counsel, Weir, and Gaskin; the OU undergraduate catalogue including academic
2The trial court granted a motion to consolidate Duke et al. v. OU, 2021-00036JD with Zahn v. OU, 2020-
00371JD. However, in September 2021, Zahn also voluntary dismissed her claims.
No. 22AP-184 4
policies and procedures and student services; OU website pages, admissions brochures,
course offerings and majors, enrollment and tuition data, and information about virtual
involvement and OHIO online; National Center for Education Statistics information on
OU; Covid-19 related cancelation and closure notices and syllabus changes; and excerpts
from the deposition of OU student affairs employee Jenny Hall-Jones.
{¶ 8} OU opposed Gila's motion for class certification on November 8, 2021. OU
contended that a rigorous analysis of the requirements of Civ.R. 23 demonstrates a class
should not be certified. Specifically, OU argued Gila is not a suitable representative of the
class, a class is not identifiable, individualized issues predominate over any purported
common issues under Civ.R. 23(B)(3), that a class cannot be certified under Civ.R. 23(B)(1),
and that non-tuition fees are not appropriate for class certification. According to OU, Gila
failed to inform the court she signed a financial obligation agreement that required her to
pay all tuition, fees, and other associated costs upon registering for classes. OU also
emphasized that Gila generally ignored the COVID-19 pandemic in seeking class
certification.
{¶ 9} Regarding injury and damages, OU contended Gila failed to prove through
common evidence that all class members were in fact injured by OU's actions. OU asserted
the conjoint analysis methodology proposed by Duke's expert is scientifically invalid and
unreliable as set forth by OU's expert, Professor Greg M. Allenby, since, among other flaws,
it fails to account for the pandemic: the experts "pretended as if COVID-19 never
happened." (Memo. in Opp. to Class Certification at 14.) Even more, while Gaskin agreed
that some students may be willing to pay a higher price to attend classes online to avoid the
risk of infection from the COVID-19 virus, he admitted the proposed conjoint analysis
would not incorporate student preferences based on the real-life conditions present when
OU shifted to online classes. Finally, OU also contended that Gila failed to present any
evidence to support her assertion in her complaint that online classes were subpar to in-
person classes, that Civ.R. 23(B)(1) had no application to this case, and that a class cannot
be certified regarding non-tuition fees since OU already gave students pro-rated refunds of
housing, dining, and certain class fees.
{¶ 10} Gila filed a reply on December 6, 2021. The reply included additional
declarations from Weir and Gaskin responding to Allenby.
No. 22AP-184 5
{¶ 11} A hearing on class certification took place remotely on January 18, 2022. Gila
testified as class representative, Weir and Gaskin testified on behalf of Gila, and Sherry
Rossiter, Bradley Cohen, Jenny Hall-Jones, and Allenby testified on behalf of OU. Under
Gila's theory of the case, common evidence will be used to show an implied contract exists,
that OU breached the contract when it switched from in-person to remote classes and
restricted or closed down buildings and services, that Gila and the class suffered the same
injury—"sign[ing] up for in-person classes" with an "expect[ation] [of] access to campus"
and not being "able to get that for a portion of the spring 2020 semester"—and that she has
a proposed method to measure damages that would be common to the class. (Tr. at 10-13.)
{¶ 12} Gila testified that during the spring of 2020 she was a junior undergraduate
enrolled at OU's Athens campus with a major in marketing and entrepreneurship. She
elected to receive grades for the spring 2020 semester, received credit for those courses,
reenrolled at OU for her senior year in the fall of 2020 despite OU being entirely online,
graduated on-time in the spring of 2021, and secured employment consistent with her
major. She could not say whether she would have preferred OU continue holding classes
in the midst of the pandemic but did want OU to protect her health and safety. Gila agreed
that, had she not been able to complete her spring 2020 classes, she would not have been
able to graduate on time.
{¶ 13} Weir and Gaskin testified to a proposed methodology to ascertain and
calculate damages using conjoint analysis which they described, in simple terms, as a
market research survey-based analysis that would allow them to calculate the difference in
market value between an education at OU that offered a choice of in-person or online
courses and full access to campus facilities versus the value of an education that offered
online courses only and no access to campus facilities. Such analysis would rely on
comparing the real world with a "but-for" world where everything is the same except for the
allegedly harmful conduct, which Weir and Gaskin considered to be OU's switch to online
classes without access to campus. (Tr. at 97-98.) Weir and Gaskin testified the survey used
to gage consumer preferences would not include or account for the COVID-19 pandemic
even though, in Gaskin's view, some students may pay higher prices for online classes as
opposed to in-person classes to minimize risk of an infection. Instead, the respondents in
the proposed survey are to consider in-person and online classes as being equally safe. The
No. 22AP-184 6
experts could not point to another case or litigation where conjoint analysis had been used
to establish damages in the higher education context.
{¶ 14} Professor Allenby, an expert in research and quantitative analysis of
marketing data including the conjoint analysis methodology, who helped "set modern
conjoint analysis" methodology which is widely-used today, testified on OU's behalf.
According to Allenby, "the proposed conjoint analysis is deficient on a number of grounds,
primarily its lack of reference to COVID [and] the risk of infection" in the proposed
questionnaire and analysis. (Tr. at 246-47.) In Allenby's opinion, the survey should
compare online instruction with lower risk of infection to in-person experience with a
higher health or safety risk. Allenby also took issue with the field of respondents, not
including parent opinions, too narrow of a choice set, a damages calculation ignores other
universities conduct and will not lead to a uniform damage model, and lack of account that
while students have preferences, colleges hold the admission decision.
{¶ 15} The chief strategy and innovation officer for OU also testified. In the officer's
opinion, "the differential impact of remote learning on students is going to be
individualized" and "the financial implications for students is very, very different":
"modality does not determine price." (Tr. at 212-13.) The OU officer also testified that the
price point for OU's existing (pre-COVID-19) E-campus is not comparable to the pandemic
switch to online for every program. While the E-campus was set at a lower price than OU's
in-person option, that was possible because the E-campus offered a small number of
programs that were able to be delivered at a lower price point. (Tr. at 214.) According to
the OU officer, OU's goal in transitioning classes to online and closing buildings during the
pandemic was safety and educational continuity to prevent kids from dropping out and to
keep them on track to graduate with their degrees, and, in his recollection, OU may have
lost millions of dollars in the transition. (Tr. at 210.)
{¶ 16} During the hearing, the trial court indicated multiple times that review of the
merits of the underlying claims would not occur during decision making on class
certification. Specifically, in asking Weir how long the proposed survey would take to
conduct should the class be certified, the trial court commented, "if we get to the point that
we're going to proceed with the merits of the case[,]" Wier would have weeks, not months
to complete the survey and analysis. (Tr. at 108-09.) The trial court also, in questioning
No. 22AP-184 7
the relevancy of testimony by OU's chief strategy and innovation officer as to the
individualized impact of modality of education on each student, stated, "[a]ren't we getting
to the merits of the case rather than the issue that's before me today[:] whether there should
be a class certified?" (Tr. at 202.) The trial court then rejected OU's attorney's position that
the trial court had "an obligation to delve into the merits" to see if any of the contested
issues "were in fact individualized" for purposes of class certification, responding, "[n]o, it's
not my duty to see if any of these particular things are individualized. It's my duty to balance
the criteria in Rule 23 and make my analysis of whether this is the case that's appropriate
for a class. * * * Now, let's get to the merits of the Rule 23 issues and not the merits of the
[underlying] claim." (Tr. at 204-05.)
{¶ 17} During closing comments OU argued that Gila could not rely on the
complaint allegations or a theory put forward but rather had to have an evidentiary burden
at the class action certification stage. The trial court did not address this argument, and
asked OU to differentiate this case from the other cases he already certified. As to OU's
further argument that all Gila set forth was a proposed model of a "fake, make-believe world
where COVID never existed and where online means no services were provided," the trial
court commented that, "[t]he idea of using a conjoint analysis in an implied contract case
and putting COVID into that makes no sense." (Tr. at 277, 279.)
{¶ 18} On February 25, 2022, the trial court filed a decision and judgment entry
granting Gila's motion for class certification. First, after disagreeing with OU's argument
regarding university records lacking information about who actually paid tuition and fees
(student, parent or guardian, or other family member), the trial court found the class to be
identifiable and unambiguous. Under similar reasoning, the trial court determined the
typicality requirement to be met. Next, pertaining to the requirement that the named
representative be a member of the class, the trial court rejected OU's argument about Gila's
mother paying her tuition and fees to conclude Gila shares the same interests and suffered
the same injury shared by all members of the class. The trial court determined Gila was an
adequate class representative and that OU did not challenge the adequacy of class counsel.
The trial court also noted OU did not dispute the numerosity requirement, and found the
requirement met after noting that OU had approximately 14,976 undergraduate students
enrolled during the period.
No. 22AP-184 8
{¶ 19} As to the commonality requirement, the trial court found Gila's asserted
common questions—(1) the existence of an implied or express contract for access to campus
and in-person educational services, opportunities, and classes; (2) whether OU breached
that contract; and (3) the economic difference between what was contracted for and what
was provided—to be "well suited for classwide determination" without further discussion.
OU's arguments to the contrary would be addressed under the predominance standard.
(Feb. 25, 2022 Decision at 9.)
{¶ 20} Finally, the trial court concluded the action is appropriate for class
certification under Civ.R. 23(B)(3) and, therefore, did not assess Civ.R. 23(B)(1). In doing
so, the trial court disagreed with OU's agreement that whether an implied contract for in-
person classes exists required an individualized inquiry for each student, and similarly
found that whether a benefit was conferred upon OU by the students and whether retention
of the benefit would be unjust could also be determined by external conduct. The trial court
was further unpersuaded by OU's contention that individual issues predominate regarding
whether online classes were materially deficient compared to in-person classes. According
to the trial court:
The crux of [Gila's] claims is not that the quality of the
education she received was poorer than what she contracted
for; it is that the education she received should have cost less.
The injury is not a diminished quality of education; the injury
is that she contracted for in-person classes and did not receive
in-person classes for part of the semester.
(Id. at 15.) Likewise, the trial court disagreed with OU about the inadequacy of Gila's
proposed class-wide damages model. Specifically, "because the alleged implied contract
was entered into before the arrival of COVID-19 to the United States, the survey and
conjoint analysis should not take COVID-19 into account." (Id. at 16.) In the trial court's
view, Gila's model for determining damages is consistent with its liability case.
{¶ 21} Therefore, the trial court found that under Civ.R. 23(B)(3) questions of law
or fact common to the members of the class predominate over any questions affecting only
individual members. Addressing the second prong of Civ.R. 23(B)(3), the trial court
determined that a class action is superior to other available methods for fairly and
efficiently adjudicating the controversy, particularly considering the desirability of
litigating the claims in the Court of Claims of Ohio and in order to achieve economies or
No. 22AP-184 9
time, expense, and effort while promoting uniformity of decisions relative to similarly
situated people.
{¶ 22} Concerning the particulars of the class definition, the trial court found that
based on the evidence presented at the hearing, only tuition and the general fee remained
at issue. Accordingly, the trial court defined the class as "all undergraduate students
enrolled in classes at the Athens campus of Ohio University during the Spring 2020
semester who paid tuition and/or the general fee." (Id. at 5.)
{¶ 23} Therefore, per the decision and judgment entry, the trial court held that Gila's
proposed class, as defined in the decision, satisfied the requirements for class certification
by a preponderance of the evidence. The trial court requested that Gila inform the court
concerning her preferences for the appointment of class counsel and provide supporting
evidence as to the adequacy of the proposed class counsel. On March 9, 2022, the trial
court filed an entry appointing class counsel and certifying the class, as defined above.
{¶ 24} OU filed a timely notice of appeal.
II. ASSIGNMENTS OF ERROR
{¶ 25} OU sets forth six assignments of error for review:
1. The trial court erred in concluding there is an identifiable
class and that Plaintiff’s claims are typical of the class.
2. The trial court erred in concluding individualized issues do
not predominate over any purported common questions
regarding the existence of an implied contract for in-person
classes during a pandemic.
3. The trial court erred in concluding individualized issues do
not predominate over any purported common questions
regarding whether online classes provided during the Spring
2020 semester were materially deficient.
4. The trial court erred in concluding individualized issues do
not predominate over any purported common questions with
respect to Plaintiff’s claim for unjust enrichment.
5. The trial court erred in concluding Plaintiff can establish
class-wide damages.
6. The trial court erred in concluding that Plaintiff is an
adequate class representative.
No. 22AP-184 10
III. STANDARD OF REVIEW
{¶ 26} A trial court has broad discretion in deciding whether a class action may be
maintained, and that conclusion will not be disturbed absent a showing of an abuse of
discretion. Egbert v. Shamrock Towing, Inc., 10th Dist. No. 20AP-266, 2022-Ohio-474,
¶ 14, citing Marks v. C.P. Chem. Co., Inc., 31 Ohio St.3d 200 (1987), syllabus. However, "a
trial court's discretion in deciding whether to certify a class action is not without limits and
must be exercised within the framework of Civ.R. 23." Egbert at ¶ 15, citing Hamilton v.
Ohio Sav. Bank, 82 Ohio St.3d 67, 70 (1998). Moreover, as a trial court "does not have
discretion to apply the law incorrectly[,] * * * courts apply a de novo standard when
reviewing issues of law." Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, ¶ 38.
IV. ANALYSIS
{¶ 27} OU challenges several aspects of the trial court's certification of the class in
this case. For the following reasons, we find OU has demonstrated the trial court abused
its discretion in failing to conduct a rigorous analysis on class certification, particularly as
to whether Gila met her burden of proving through common evidence that all class
members were in fact injured by OU's actions and whether the proposed model is capable
of determining damages on a class-wide basis.
1. Legal standard for class certification
{¶ 28} Ohio courts find seven prerequisites for certification of a class action
pursuant to Civ.R. 23: (1) an identifiable class must exist and the definition of the class must
be unambiguous, (2) the named plaintiff representatives must be members of the class,
(3) the class must be so numerous that joinder of all the members is impracticable
("numerosity"), (4) there must be questions of law or fact common to the class
("commonality"), (5) the claims or defenses of the representatives must be typical of the
claims or defenses of the class ("typicality"), (6) the representative parties must fairly and
adequately protect the interests of the class, and (7) one of the three requirements for
certification set forth in Civ.R. 23(B) must be met. Egbert at ¶ 16, citing Hamilton at 71
(1998), citing Warner v. Waste Mgmt., 36 Ohio St.3d 91, 96 (1988); Civ.R. 23.
{¶ 29} In this case, the trial court certified a class under Civ.R. 23(B)(3), which sets
forth the "predominance" and "superiority" requirement. Specifically, Civ.R. 23(B)(3)
states that "[a] class action may be maintained if * * * :
No. 22AP-184 11
(3) the court finds that the questions of law or fact common to
class members predominate over any questions affecting only
individual members, and that a class action is superior to other
available methods for fairly and efficiently adjudicating the
controversy. The matters pertinent to these findings include:
(a) the class members' interests in individually controlling the
prosecution or defense of separate actions;
(b) the extent and nature of any litigation concerning the
controversy already begun by or against class members;
(c) the desirability or undesirability of concentrating the
litigation of the claims in the particular forum; and
(d) the likely difficulties in managing a class action.
Civ.R. 23(B)(3).
{¶ 30} "[C]lass-action suits are the exception to the usual rule that litigation is
conducted by and on behalf of only the individually named parties. Felix v. Ganley
Chevrolet, Inc., 145 Ohio St.3d 329, 2015-Ohio-3430, ¶ 25. "To fall within that exception,
the party bringing the class action must affirmatively demonstrate compliance with the
procedural rules governing class actions." Id. Specifically, "[t]he party seeking class action
certification pursuant to Civ.R. 23 must prove, by a preponderance of the evidence, that the
proposed class meets each of the requirements set forth in the rule." See Egbert at ¶ 17. See
State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, ¶ 54 ("A preponderance
of the evidence is defined as that measure of proof that convinces the judge or jury that the
existence of the fact sought to be proved is more likely than its nonexistence.").
Correspondingly, "[t]he trial court must carefully apply the requirements of Civ.R. 23 and
conduct a rigorous analysis into whether those requirements have been satisfied." Egbert
at ¶ 15, citing Hamilton at 70, Felix at ¶ 26, and Cullen v. State Farm Mut. Auto. Inc. Co.,
137 Ohio St.3d 373, 2013-Ohio-4733, ¶ 17.
2. Precedent involving a trial court's failure to conduct a rigorous
analysis at the class certification stage
{¶ 31} The Supreme Court of Ohio has emphasized that Civ.R. 23 is not "a mere
pleading standard." Felix at ¶ 26, quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,
350 (2011). It is not sufficient for class certification purposes that the plaintiff's allegations
merely raise " 'a colorable claim.' " Madyda v. Ohio Dept. of Pub. Safety, 10th Dist. No.
20AP-217, 2021-Ohio-956, ¶ 15, quoting Cullen at ¶ 34. Rather, the court must determine
No. 22AP-184 12
whether the party seeking class certification "affirmatively demonstrat[ed] compliance with
the rules for certification and [is] prepared to prove 'that there are in fact sufficiently
numerous parties, common questions of law and fact, etc.' " Felix at ¶ 26, quoting Dukes at
350.
{¶ 32} To this point, "a trial court's rigorous analysis of the evidence often requires
looking into enmeshed legal and factual issues that are part of the merits of the plaintiff's
underlying claims[,]" but review of the merits may "only [be conducted] for the purpose of
determining that the plaintiff has satisfied Civ.R. 23." Felix at ¶ 26, citing Stammco, L.L.C.
v. United Tel. Co. of Ohio, 136 Ohio St.3d 231, 2013-Ohio-3019, ¶ 40. This "analysis
requires the court to resolve factual disputes relative to each requirement and to find, based
upon those determinations, other relevant facts, and the applicable legal standard, that the
requirement is met." Cullen at ¶ 16 (determining the trial court abused its discretion in
granting class certification since a rigorous analysis of the evidence presented by the parties
demonstrated that, under Civ.R. 23(B)(3), individual questions predominated over issues
common to the class).
{¶ 33} This court recently applied the Cullen and Felix standard in similar cases.
First, in Cross v. Univ. of Toledo, 10th Dist. No. 21AP-279, 2022-Ohio-3825, we reversed
the judgment of the trial court certifying a class of undergraduate students who paid tuition
and fees at the University of Toledo during the spring 2020 pandemic. In doing so, while
we were mindful of the high bar for reversal in an appeal of a class certification ruling, we
nevertheless found the trial court's "perfunctory, conclusionary" decision and "fail[ure] to
grapple with the relevant law and the parties' arguments" to constitute an abuse of
discretion considering the novel and complex issues of the case and, particularly, the
plaintiff's theory of common injury as viewed under the Civ.R. 23(B)(3) predominance
requirement. Id. at ¶ 39. Therefore, we found the trial court failed to conduct a rigorous
analysis necessary for class certification and remanded the matter for further proceedings.
{¶ 34} We likewise reversed and remanded the trial court decision in Smith v. Ohio
State Univ., 10th Dist. No. 22AP-125, 2022-Ohio-4101. Smith, like the present case,
involved a class action alleging an implied contract exists between the class members and
OSU arising from marketing materials and course descriptions and with a proposed
damages model based on a conjoint analysis designed by Weir and Gaskin that did not
No. 22AP-184 13
account for the COVID-19 pandemic. Following precedent concerning the level of analysis
required at the class certification stage, we determined "[t]he 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 Smith
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. at ¶ 46.
We further noted that the trial court's statements during the oral hearing showed it did not
believe that issues of merit should be considered at the class certification stage and sought
to expediate defining a class in order to examine those merits issues at the next stage of
litigation. Thus, we concluded the trial court failed to analyze the class certification
requirements with the requisite rigor, constituting an abuse of discretion, and found the
remaining assignments of error to be moot.
{¶ 35} Our consideration of a COVID-19 university closure class action, Weiman v.
Miami Univ., 10th Dist. No. 22AP-36, 2022-Ohio-4294, involves a case similarly based on
a theory of damages predicated on the alleged difference in market value between in-person
classes with access to Miami's campus and online classes without access to the campus. As
in Smith, we found the plaintiff's market-based damages theory and their experts' proposed
analysis to raise "significant questions" with respect to the commonality and predominance
requirements for class certification, and that the trial court's statements showed it that it
did not want to consider the contested and difficult damages issue at the class certification
stage, generally would not look into the "enmeshed legal and factual issues" part of the
merits of the underlying claims, and aimed to rule the same on the various class certification
cases it had already certified. Id. at ¶ 18, 23. Therefore, we determined the trial court failed
to conduct a rigorous analysis of the Civ.R. 23(A)(2) and (B)(3) factors for class certification
and remanded the matter to the trial court to do so in the first instance.
{¶ 36} In Keba v. Bowling Green State University, 10th Dist. No. 22AP-226,
__Ohio St.3d.__ we likewise concluded the trial court needed to rigorously analyze difficult
issues of damages to determine if the commonality and predominance requirements were
met under the theory of liability presented, but had failed to do so. Therefore, we reversed
and remanded the cause to the trial court.
No. 22AP-184 14
3. The trial court failed to conduct a rigorous analysis prior to
class certification in this case
{¶ 37} OU's fifth assignment of error, which contends the trial court erred in
concluding Gila can establish class-wide damages, implicates similar, problematic issues in
the trial court's analysis of the Civ.R. 23 commonality and predominance factors as we
found in Cross, Smith, Keba, and Weiman. OU raises familiar themes of the plaintiff's
burden to provide evidence in support of the class certification requirements, the showing
of injury required under Civ.R. 23(B)(3), and the use of a conjoint analysis (devoid of
COVID-19 concerns) to measure a difference in market value.
{¶ 38} Specifically, OU asserts that under Cullen, Civ.R. 23 demands more than a
pleading standard or presentation of a colorable claim, and that under Felix at ¶ 33, the
plaintiff bears the burden of proving "through common evidence, that all class members
were in fact injured by the defendant's action." OU contends the trial court failed to conduct
a rigorous analysis as to the damages model proposed by Gila as required during the class
certification stage and committed legal error by finding the survey and conjoint analysis
should not take COVID-19 into account because the alleged implied contact was entered
into before the pandemic.
{¶ 39} In OU's view, the proposed conjoint analysis survey is "unreliable,
inadmissible and cannot measure class-wide damages" since the survey and analysis
"pretends" as if the COVID-19 pandemic never happened and, therefore, the respondents'
preferences will rest, not on real world conditions, but on in-person and online classes
being equally safe. (Appellant's Brief at 43.) OU asserts damages should be measured at
the time of the alleged breach—when classes were moved online due to the pandemic—
which would show no damages occurred. OU notes that Gaskin admitted some students
might pay a higher price for online classes if that meant minimizing the risk of COVID-19
infection and highlights that Gila could not say that she would have preferred to continue
with in-person classes during the pandemic. OU additionally contends that the conjoint
analysis is foundationally flawed since it is based on the assumption that OU ceased
providing services to students once classes transitioned online. Moreover, OU argues the
conjoint analysis is scientifically invalid, as established by Allenby, but that the trial court
failed to consider Allenby's testimony other than making the passing comment,
"[p]laintiff's experts addressed those concerns to the Court's satisfaction" without any
No. 22AP-184 15
analysis—let alone the "rigorous analysis" required under precedent. (Appellant's Brief at
52-53 citing Feb. 25, 2022 Decision at 15.) Overall, OU suggests the trial court had
essentially already made up its mind to grant class certification in this case since it had
certified classes in other cases involving COVID-19 related closures at universities.
{¶ 40} In response, Gila argues the record of this case and the decision filed here
show the trial court did conduct a rigorous analysis of the Civ.R. 23 factors and properly
certified a class. In her understanding of the Civ.R. 23 standard, "plaintiffs need only
present a colorable claim at class certification." (Appellee's Brief at 21.) She contends the
injury suffered by the plaintiff and class in this case is "not receiving what they paid for."
(Appellee's Brief at 27.) Gila cites Weir's declaration that, "[i]f the market tuition rate for
OU would have been lower as a result of the switch to online classes and no access to the
OU campus, then all students will have overpaid" to mean "[i]n short, all members of the
class were injured because they overpaid" in this case. (Appellee's Brief at 29.) Further, in
Gila's view, under the Civ.R. 23 standard, all she needs to provide at this stage is a method
for calculating damages matching her theory of liability, and that the conjoint analysis
proposed is a well-recognized statistical method capable of measuring damages on a class-
wide basis here that meets this burden. Gila notes that methodological flaws in a survey
bear on weight not admissibility, and argues the survey is not flawed by excluding COVID-
19 considerations since its purpose is to compare what OU promised and what it delivered.
{¶ 41} We agree with OU. As set forth in Felix, Cullen and our decisions on previous
class actions concerning COVID-19 closures at universities, a court should not review a
motion for class certification under a pleading standard or grant the motion for simply
raising a colorable claim. Rather, the court must review whether the plaintiff met his or her
to burden to affirmatively demonstrate compliance with rules for class certification and
proved by a preponderance of evidence that the proposed class meets each requirement.
Felix at 26; Egbert at ¶ 1. See also Cullen at ¶ 15 (stating that, as a part of a proper rigorous
analysis, the trial court must determine whether the party satisfied "through evidentiary
proof at least one of the provisions of Rule 23(b)"). (Emphasis added.)
{¶ 42} Moreover, " '[p]erhaps the most basic requirement to bringing a lawsuit is
that the plaintiff suffer some injury.' " Felix at ¶ 36, quoting Schwartz & Silverman,
Common Sense Construction of Consumer Protection Acts, 54 U.KanL.Rev. 1, 50 (2005).
No. 22AP-184 16
"Although plaintiffs at the class-certification stage need not demonstrate through common
evidence the precise amount of damages incurred by each class member, * * * they must
adduce common evidence that shows all class members suffered some injury." Felix at ¶ 33.
"If the class plaintiff fails to establish that all of the class members were damaged
(notwithstanding questions regarding the individual damages calculations for each class
members), there is no showing of predominance under Civ.R. 23(b)(3)." Felix at ¶ 35.
{¶ 43} The trial court in this case found that each student in the class had been
injured by not receiving in-person classes for part of the semester that they had contracted
for. However, as we stated in Smith, the trial court essentially assumed an economic injury
occurred based on the fact of closure of campus and the switch to online classes (the alleged
breach) without considering whether Gila presented sufficient evidence of the economic
injury she claimed to have occurred. The trial court additionally did not consider evidence
that Gila's methodology to determine and then calculate damages (the conjoint analysis)
had not been performed to evidence a difference in market value under the point-of-sale
theory and gave little attention to whether the conjoint analysis as designed could ever serve
as evidence of relevant market preferences without incorporating COVID-19
considerations. The trial court thus, under Smith at ¶ 44, abused its discretion by either
accepting Gila's allegations as true, as would occur under a pleading standard, or accepting
the asserted breach in this case—"failing to provide access to campus and in-person classes
and services"—as evidence of economic injury. (Appellee's Brief at 26.)
{¶ 44} Moreover, the transcript of the hearing shows the trial court did not believe
it was proper to consider contested issues on the merits of the claim at this stage of the
proceeding and specially rejected the notion that it had an obligation to delve into the
merits to see if any of the issues contested by the parties were "individualized" for purposes
of class certification. (Tr. at 204-05.) Thus, while OU challenged the utility of the proposed
conjoint analysis with support from an expert and raised concerns that it was
fundamentally flawed as a means to ascertain class-wide damages in this case, the trial
court proceeded without rigorously considering this contested and difficult issue. Rather,
it is clear the trial court preferred to certify the class prior to considering contested issues
of merit, even as those issues relate to the Civ.R. 23 requirements. In doing so, the trial
court appeared to place the burden on OU to identify what is different about this case from
No. 22AP-184 17
the other cases the court certified, rather than evaluating whether Gila proved by a
preponderance of the evidence each requirement for certification was met.
{¶ 45} Considering all the above, we find the trial court did not undertake a rigorous
analysis with respect to the number and nature of individualized inquires that might be
necessary to establish liability. Weiman at ¶ 22-24; Smith at ¶ 46; Cross at ¶ 39; Keba at ¶
25. Therefore, we conclude OU's fifth assignment of error challenging the trial court's
determination of injury and damages to have merit. We further find that the error renders
the remaining assignments of error moot at this juncture. App.R. 12(A)(c); Smith at ¶ 48.
{¶ 46} Accordingly, assignment of error five is sustained.
V. CONCLUSION
{¶ 47} Having sustained assignment of error five, and determined assignments of
error one, two, three, four, and six to be moot, we reverse the judgment of the Court of
Claims of Ohio. The cause is remanded for further proceedings consistent with this
decision.
Judgment reversed and cause remanded.
BEATTY BLUNT and McGRATH, JJ., concur.
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