ALLISON CLAIRE, District Judge.
This matter comes before the court on defendant's motion for summary judgment. ECF No. 20. A hearing was held on October 3, 2018. ECF No. 34. Thomas Wheeler appeared on behalf of plaintiff Kelsey Adair, and Michael Vartain and Stacey Leask telephonically appeared on behalf of defendant Drexel University.
Plaintiff Kelsey Adair ("plaintiff") is pursuing a putative class action against defendant Drexel University ("defendant") for false and misleading advertising of its online educational program known as the Interdepartmental Medical Science ("IMS") Certificate Program.
Plaintiff is a former student of Drexel Univertsity's Interdepartmental Medical Science ("IMS") Certificate Program. She alleges that Drexel falsely advertised and misrepresented through its online advertising, to her and to other similarly situated consumers, "that its [IMS] educational program would help prepare students for medical school by having live teachers at the satellite campus, writing letters [of recommendation] for its students to aid them in obtaining medical school placement, and guaranteeing a certain number of spots" at Drexel University College of Medicine. ECF No. 11 at 2. In reliance on these representations, plaintiff purchased defendant's educational program for $50,000 on or around August 2014.
Defendant moves for summary judgment on all three claims, on the ground that plaintiff cannot establish that defendant made "any false, deceptive or misleading material statements that would likely deceive a reasonable consumer." ECF No. 21 at 6.
Unless otherwise specified, the following facts are either expressly undisputed by the parties or have been determined by the court, upon full review of the record, to be undisputed by competent evidence. The defendant's statement of undisputed facts is located at ECF No. 22. Plaintiff's responses are located at ECF No. 31. Defendant has also filed a response to plaintiff's statement of undisputed facts located at ECF No. 33-1.
Drexel University ("University") is a private, nonprofit educational institution offering over 200 degrees at 15 colleges and schools. Declaration of Jed Shumsky ("Shumsky Decl.") at ECF No. 23-1 Exh. A at ¶8; Declaration of Martha Kaplan ("Kaplan Decl.") at ECF No. 23-2 Exh. B at ¶11. Drexel University College of Medicine ("College of Medicine") is one of the 15 colleges and schools. Shumsky Decl. at ¶9; Kaplan Decl. at ¶12. The College of Medicine operates from two principal locations in Philadelphia, Pennsylvania: the Queen Lane campus which is located in East Falls section of Philadelphia; and the Center City campus which is located near the downtown/Center City Philadephia in Pennsylvania. Shumsky Decl. at ¶10; Kaplan Decl. at ¶13. The College of Medicine educates and trains individuals seeking licensure as physicians through its Doctor of Medicine degree program. Shumsky Decl. at ¶11; Kaplan Decl. at ¶14. The College of Medicine also provides 40 different doctoral, master's, and professional development graduate programs that are separate and distinct from the Doctor of Medicine degree program. Shumsky Decl. at ¶12; Kaplan Decl. at ¶15. In particular, the College of Medicine offers the Interdepartmental Medical Science ("IMS") Certificate Program. The IMS Certificate Program is a one-year post-baccalaureate program designed for college graduates intending to apply to U.S. medical schools and who wish to enhance their academic credentials in order to increase their opportunities in gaining admission to medical schools or professional health schools such as dental, optometry, podiatry, or chiropractic schools. Shumsky Decl. at ¶13-14; Kaplan Decl. at ¶16-17. In 2014-2015, the IMS Certificate Program was offered and operated in two locations: Drexel Center City Campus in downtown Philadelphia, Pennsylvania; and a satellite campus of Drexel University in Sacramento, California. Shumsky Decl. at ¶15; Kaplan Decl. at ¶19.
Prior to enrolling in the IMS Certificate Program, plaintiff read online brochures from Drexel University's website. Certified Deposition Transcript of Kelsey Adair, July 20, 2018 ("Adair 2018 Depo.") at 32:13-21. Specifically, plaintiff read materials pertaining to the IMS Certificate Program as a whole, and material for the IMS Certificate Program as administered in Sacramento. Adair 2018 Depo. at 32:22-25; 33:1-7.
On or around May 19, 2014, plaintiff applied to the IMS Certificate Program in Sacramento, California. Adair 2018 Depo at 13:15-17. After gaining admission into the program, plaintiff sent a $500 tuition deposit on or around June 4, 2014. Adair 2018 Depo. at 13:18-25, 14:1-3, Exh. 1. Classes were scheduled to begin in August 2014. Adair 2018 Depo at Exh. 1. Prior to the commencement of classes, plaintiff attended a mandatory one-day orientation for the IMS Certificate program in Sacramento, California. Adair 2018 Depo at 10:4-22, ECF No. 23-6 at 6 (Exh. F). Before attending the orientation, plaintiff read the online orientation materials to which she was directed in her admission letter from the IMS Certificate Program. Adair 2018 Depo at 12:10-14, Exh. 1.
The orientation materials provided an overview of the academic year. Adair 2018 Depo. at Exh. 4. At her deposition, plaintiff confirmed that these orientation materials were displayed during the orientation she attended. Adair 2018 Depo. at 37:5-9, 43:4-7, 44:5-8. The orientation materials included a breakdown of the course by Fall and Spring semesters with a denotation of whether each course was to be conducted as a "small group conference," "virtual lab," and/or in "small and large groups." Adair 2018 Depo at Exh. 4. Cellular Biology & Microanatomy I, Cellular Biology & Microanatomy II, and Medical Neuroscience were all denoted as "virtual labs."
Orientation materials also included a section relating to the return of exams, which provided that "official exam reviews for IMS/DPMS students are scheduled throughout the year. Official exam reviews will be the
Withdrawal and refund policies were also provided in the Health Sciences Student Handbook for the Drexel University Office of Professional Studies.
Classes commenced the Monday following orientation. Adair 2018 Depo. at 103:10-17. Plaintiff attended classes beginning on the first day.
The University website did not state that the University would provide "letters of recommendation" to IMS students for their use in seeking medical school admission. ECF No. 23-5 at 5 (Exh. E); Kaplan Decl. at ¶72; Shumsky Decl. at ¶68. The University's online materials stated that faculty advisors would write a "letter of evaluation," and stated as follows: "Students in the Interdepartmental Medical Science program are assigned a faculty advisor who will meet with the student regularly and eventually write a letter of evaluation for application to health professional schools." ECF No. 23-5 at 5 (Exh. E); Shumsky Decl. at ¶62; Kaplan Decl. at ¶72. Plaintiff testified at her deposition that she was assigned Sacramento faculty advisors. Adair 2018 Depo. at 21:3-7; 27:5-7. In January or February 2015, plaintiff testified that she had requested her faculty advisor to write a letter of evaluation in support of her medical school applications. Adair 2018 Depo. at 166:25; 167:1-4. However, because plaintiff was on academic probation, she and her faculty advisor, Dr. Giordano, jointly decided not to send the letter to potential schools until the academic probation had been resolved. Adair 2018 Depo. at 168:4-16, 171:10-25, 172:13-24. Plaintiff never went back to Dr. Giordano to follow up on her request. Adair 2018 Depo. at 173:14-22. In February 2015, plaintiff had requested a letter of evaluation from Dr. Shumsky. Adair 2018 Depo. at 174:10-15.
Drexel's online materials did not state that the University would provide IMS students with "placement assistance" for medical school. Shumsky Decl. at ¶¶33, 70; Kaplan Decl. at ¶¶37, 74. The website section entitled "Placement Information" specified that successful completion of the IMS Certificate Program does not guarantee admission to any medical or professional health school.:
ECF No. 23-6 (Exh. F). Shumsky Decl. at ¶33; Kaplan Decl. at ¶37.
Drexel University's online materials did not state that IMS Certificate Program students in Sacramento would receive "live lectures." ECF Nos. 22 at 2, 31 at 2, Adair 2018 Depo. at 157:10-12. The website stated that lectures given by Drexel University's College of Medicine faculty to the first-year medical students at the medical school's Queen Lane campus would be recorded and transmitted via video for the IMS Certificate Program students in Sacramento. ECF Nos. 22 at 2; 31 at 2; Shumsky Decl. at ¶¶63-64; Kaplan Decl. at ¶¶67-68. The website stated "Classes will be taught by members of faculty of the Drexel University College of Medicine . . . in Philadelphia, using the state-of-the art, high-definition videoconferencing system and streaming video at Drexel's high-tech Graduate Center in Sacramento. Students will also have conference sessions with College of Medicine faculty using the same technology." ECF Nos. 22 at 2-3; 31 at 2; 23-5 at 4 (Exh. E). "The College of Medicine lectures are simulcast . . . from the Queen Lane Campus. The lectures are also available via streaming video in the evening of the day they are presented to the class. This allows for repetition and reinforcement of the lecture material." ECF Nos. 22 at 2-3; 31 at 2; 23-6 at 5 (Exh. F).
Drexel University's online materials specified that not all IMS Certificate Program students were guaranteed an interview with Drexel University's College of Medicine. Students were required to meet a certain set of requirements. The materials stated that an interview was guaranteed "for students earning grades of B or better in all fall courses and an incoming MCAT score of 27 (9's in each section) or a 30 with no score less than a 7 (US Citizens or permanent residents only)[.]" ECF No. 23-5 at 2 (Exh. E), 23-6 at 5 (Exh. F).
On or around May or June 2014, plaintiff filed a primary application to Drexel University College of Medicine. Adair 2018 Depo. at 89 at 7-11. At the time, plaintiff was not enrolled in the IMS Certificate program. Adair 2018 Depo. at 87:15-20. Plaintiff was never automatically "prompted" to submit a secondary application for the College of Medicine after her initial submission, due to a "hiccup" in the application process. Adair 2018 Depo. at 90:14-23. On or around January or February 2015, plaintiff contacted Drexel University to ask about filing a secondary application. The University indicated that it was too late in the process for plaintiff to submit a secondary application, but that plaintiff "could still technically fill out one[.]" Adair 2018 Depo. at 93:9-18. Plaintiff did not fill out a secondary application because she "thought" that it would be "throwing away additional application funds" due to a lot of classes being already full. Adair 2018 Depo. at 93:18-25, 94:4. By the end of the fall semester, however, plaintiff had received a C in Medical Biochemistry, C+ in Medical Physiology, and a C+ in Medical Immunology I, and had been placed on academic probation due to having a GPA of 2.53. Adair 2018 Depo. at Exh. 4.
The program materials stated that the IMS Certificate Program was presented "[u]sing symptom-based modules, basic science and clinical faculty present information from the biomedical and clinical sciences in a lecture-based and hands-on format." ECF No. 23-6 at 4 (Exh. F). Specifically, "course conferences and laboratory components for Interdepartmental Medical Science students are conducted at the Center City Campus by the medical school faculty." ECF No. 23-4 at 4 (Exh. D);
The online materials stated:
ECF No. 23-6 at 5 (Exh. F). The website is silent as to whether students are able to review their exams. However, the University had a policy of "not permitting review of the examination questions after the test had been taken by the students" "so as to avoid unfair advantage to students who complete the IMS Certificate Program and then go on to matriculate in the University's College of Medicine medical degree program." Shumsky Decl. at ¶¶50, 53;
Defendant moves for summary judgment on grounds that plaintiff cannot establish that defendant made "false, deceptive or misleading material statements that would likely deceive a reasonable consumer" through its online advertising of its educational program. ECF No. 21 at 6. The court agrees that judgment must be entered for defendant as a matter of law.
Summary judgment is appropriate when the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A party may move for summary judgment, identifying each claim . . . or the part of each claim . . . on which summary judgment is sought.
"Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case."
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist.
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "`the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.'"
To establish a genuine dispute of material fact, a plaintiff must present affirmative evidence; "[b]ald assertions that genuine issues of material fact exist are insufficient."
Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts."
The California False Advertising Law makes it "unlawful for any person, firm, corporation, or association, or any employee" to "induce the public to enter into any obligation" based on a statement that is "untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading." Cal. Bus. & Prof. Code § 17500.
The Unfair Competition Law provides "any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising." Cal. Bus. & Prof. Code § 17200. The statue is violated where "a defendant's act or practice is (1) unlawful, (2) unfair, (3) fraudulent, or (4) in violation of [FAL]."
The Consumer Legal Remedies Act prohibits "unfair methods of competition and unfair or deceptive acts or practices." Cal. Civ. Code § 1770. Specifically, in relevant part, the CRLA prohibits against "[r]epresenting that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another[,]" "[a]dvertising goods or services with intent not to sell them as advertised[,]" "[r]epresenting that a transaction confers or involves rights, remedies, or obligations that it does not have or involve, or that are prohibited by law[,]" and "[r]epresenting that the subject of a transaction has been supplied in accordance with a previous representation when it has not." Cal. Civ. Code §1770(a)(7), (9), (14), (16). "An omission is actionable under the CLRA if the omitted fact is (1) contrary to a material representation actually made by the defendant or (2) is a fact the defendant was obliged to disclose."
All three California statutes are governed by the "reasonable consumer" test.
Plaintiff conceded in her briefing and at oral argument that her allegations regarding letters of evaluation (or letters of recommendation), placement assistance, assignment of advisors, live lectures, and guaranteed interview, do not present any triable issues of material fact under the FAL, UCL and CLRA.
Plaintiff contends that defendant made an "affirmative representation that labs would be presented at both the Philadelphia and Sacramento campuses" in the same way, and that by failing to disclose the distinction between "virtual labs" at the Sacramento Campus and "live labs" at the Philadelphia Campus, defendant misled plaintiff regarding the nature and quality of the IMS program. ECF No. 30 at 11-12, 14-16. Plaintiff proffers the following statements as evidence: "[c]ourse conference and laboratory components for the students are held in-person within small groups at the Center City Campus[;]"
Even if defendant's online description could fairly be characterized as ambiguous as to the form of labs offered at the Sacramento campus, any such ambiguity falls short of creating a triable issue of fact regarding the false or misleading nature of the purported statements. First, the IMS program materials specified that labs were conducted at the Center City Campus by medical school faculty. ECF No. 23-4 at 4 (Exh. D);
Second, plaintiff was expressly informed at orientation that labs for the Sacramento campus would be "virtual labs." Orientation materials indicate that the classes for the program that involved labs were designated with an "L" symbol, denoting that it was a "virtual lab." Adair 2018 Depo. at Exh. 4. There was a portion in the orientation materials strictly dedicated to "microscopic anatomy" that broke down access to various digital resources, identified the faculty that would be conducting the labs, the "virtual microscope," and the necessary computer requirements.
Any ambiguity regarding the form of labs for Sacramento students was cured at orientation. By the end of orientation, plaintiff was expressly and fully informed as to the nature of the labs in which she would participate. At that point, if live labs were crucial to her decision to enroll, she could have requested a full refund and withdrawn from the program. Plaintiff made no such request. Accordingly, she cannot demonstrate that she detrimentally relied on her belief that she would be participating in live labs, and she cannot show that she suffered an injury.
Lastly, plaintiff contends that defendant falsely represented that students in the IMS program would be afforded the same advantages and opportunities as Drexel's first-year medical students, including the ability to review past exams. ECF No. 30 at 12-13. Plaintiff contends that by advertising that students were "taking medical school courses" which would permit "medical school admissions committees to directly evaluate the student's competence compared to those already in medical school," defendant effectively represented that IMS students, like medical students, would have access to prior exams in order to improve future test performance.
Plaintiff does not dispute the nature and quality of the exams administered, or their identity with medical school examinations, but only challenges her limited access to past exams. Orientation materials clearly indicated that students would only be allowed to view exam questions during the official exam reviews scheduled throughout the year. Adair 2018 Depo. at Exh. 4;
To defeat summary judgment, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict — `whether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.'"
Because plaintiff's individual claims fail as a matter of law, the putative class action does not survive. Fed. R. Civ. Pro. 23(a). Plaintiff agrees. ECF No. 30 at 6 n.2 ("Plaintiff agrees with Defendant that should Defendant succeed on its Motion for Summary Judgment as a whole, the putative Class claims would be dismissed without prejudice for lack of standing.")
For the reasons set forth above, IT IS HEREBY ORDERED that:
