Seventh Circuit Emphasizes “Rigorous Analysis” to Certify Class against University for Its Decision to Cancel Classes during the Pandemic

In Eddlemon v. Bradley University, 65 F.4th 335 (7th Cir. 2023), the Seventh Circuit underscored that evidence, not allegations, control the court’s class certification analysis.

At issue in Eddlemon were claims stemming from Bradley University’s decision to cancel a week of classes in the early days of the COVID-19 pandemic without providing a prorated refund of tuition or fees. Consistent with Foley’s litigation predictions and early-pandemic guidance, colleges and universities across the country have faced mounting class action suits based on similar theories of liability.

In this case, a Bradley student sued the school for breach of contract and unjust enrichment on the theory that the school promised him 15 weeks of instruction in exchange for the payment of tuition and a student activity fee but delivered only 14 after it did not reschedule a week of classes cancelled at the beginning of the pandemic. The student sought to represent several classes of peers that he alleged were also shortchanged by Bradley’s retention of their full tuition and fees. The district court ultimately certified two classes — one for those who paid tuition and another for those who paid the activity fee.

On appeal, Bradley successfully attacked the district court’s decision to certify the classes, with the Seventh Circuit agreeing the lower court’s analysis fell short of assuring that Rule 23’s commonality and predominance requirements were met. There are several key takeaways:

Plaintiffs need to offer evidence, not just allegations, to support class certification. A class cannot be certified based simply on a plaintiff’s say-so. It is the plaintiff’s burden, as the party seeking certification, to prove the elements of Rule 23 have been met. Courts analyzing whether certification is appropriate cannot merely rely on the plaintiff’s allegations. The Seventh Circuit faulted the district court for simply accepting the plaintiff’s allegations that the putative class suffered a common injury and common questions existed, concluding the trial court’s reliance on pleadings without examination of the evidence constituted an abuse of discretion. Id. at 338–39.

The parties (and the court) need to identify elements for each claim as a threshold matter. The Seventh Circuit also criticized the district court for failing to follow its explicit instruction to “begin the class certification analysis by identifying the elements of the plaintiff’s various claims.” Id. at 339. This requirement is essential to Rule 23(b)(3)’s predominance analysis because by identifying the individual elements of the claims at issue, a district court can identify what questions are common versus individual, the relationship between those questions, and their relative importance to the claims. By skipping over an analysis of elements and simply listing a common question for a class (as the district court did in Eddlemon), courts fall short of the Supreme Court’s command to give “careful scrutiny to the relation between common and individual questions in a case.” Id. (quoting Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016)).

Courts must evaluate, not weigh, evidence to determine if common questions exist. While the Court of Appeals reversed the class certification order, it agreed with the district court that the adequacy of a plaintiff’s proffered evidence goes to the merits of the claims at issue, rather than whether the class should be certified. Bradley had challenged the plaintiff’s proffer of various documents, including the university’s academic catalog, which it argued was evidence of a contract. Bradley countered that these documents could not prove the University had an enforceable contract with the plaintiff, but the Seventh Circuit concluded Bradley’s challenge to the sufficiency of the student’s proof had no bearing on whether common questions existed or predominated. It therefore affirmed the district court’s rejection of the defendant’s sufficiency arguments. Id. at 341. The Seventh Circuit reminded lower courts that when ruling on class certification, “the court ‘must walk a balance between evaluating evidence to determine whether a common question exists and predominates, without weighing that evidence to determine whether the plaintiff class will ultimately prevail on the merits.” Id. (quoting Ross v. Gossett, 33 F.4th 433, 442 (7th Cir. 2022)).

The Seventh Circuit’s guideposts are instructive for plaintiff and defense counsel alike. Plaintiff’s counsel cannot punt on addressing the elements of their claims, and the evidence needed to prove those claims, until a motion for summary judgment. Instead, counsel must account for these considerations when arguing for certification. The decision also highlights several tools available to defense counsel when opposing class certification.

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