My Superlative Case

It was a case that had it all.  A university closure, 176 individual clients, multiple class actions, fraud claims, breach of contract claims, consumer protection claims, shifting venues, a mass litigation panel with three dispute judges and three resolution judges, a declaratory judgment action for insurance, association with local counsel, a loose confederation of plaintiffs’ counsel to work with, 13 days of mediation over three years, a limited fund class action settlement, and a lot of trips to West Virginia in exceedingly bad weather. In early 2011, a few nursing students from a private University in West Virginia made the trip from West Virginia in a snow storm to meet with us.  They had heard of our firm because of the protracted and ongoing litigation against the Commonwealth of Virginia on behalf of 75 individual nursing students of the Virginia Western Community College (VWCC) nursing program.  We were heading toward our first trial in that case on claims of fraud and breach of contract against the school based on its failure to maintain nursing program national accreditation and advise the students of the loss of national accreditation.  The students from West Virginia had similar issues and felt like their hard-fought-for education and each student’s plan of becoming a BSN prepared registered nurse were in jeopardy.  They were right.  We eventually settled on behalf of a class similarly situated to our 176 plaintiffs as part of a limited fund class action settlement.  Our firm acted as individual and class counsel, and we were heavily involved in developing the settlement terms.  The heavy majority of all available assets were transferred to a fund, which was then shared out among the claimants based on a claim process we assisted in developing.

The VWCC case had involved fraud and breach of contract claims on behalf of 75 nursing students, and we brought it under the Multi-Party Litigation Act, which allowed us to join all the VWCC Plaintiffs in one action.  Both the VWCC case and the private University case had a lot of moving parts.  We took over 20 depositions in the former case and defended over 60 depositions.  Based on a pre-trial ruling, our case was divided into multiple trial groups. Our first trial consisted of 16 plaintiffs’ cases.  We tried it in Roanoke County Circuit Court over two weeks in June 2011.  The jury found for each of the plaintiffs on both the contract and fraud claims.  Ultimately, our clients universally settled for a total of $2.4 million. 

Between these two cases, we litigated on behalf of higher education students against their schools for eight years.  What we have found is that these cases require creativity, tenacity, focus, diplomacy and backbone—all in substantial amounts.

When you take on one of these cases, you quickly realize that there is no map out there for you to follow.  Defining the value of a voluntary accreditation, like the national accreditation for a nursing program, required us to research and pin down the effects of what it means to graduate from a program that does not have the accreditation.  There were multiple variables that affected this valuation piece, and we worked with two independent experts to build this valuation.  In both cases we had to use existing law and economics to develop a model for damages that provided a stream-lined pathway for seeing and quantifying the damage each student suffered.  In the West Virginia case, we had multiple competing classes consolidated under a mass litigation panel.  As in the VWCC case, we had to develop a formula for valuing the damages suffered by each individual client, but, because we were dealing with a limited fund class action settlement, we had to further define a formula for how to share out the proceeds among claimants.  There was no template or case precedent; creative problem solving was required.   

Taking 75 or 176 clients through years of litigation requires high-test tenacity.  In the VWCC case, we scheduled, prepared our clients for, and attended depositions for over 60 of our clients.  We answered written discovery on behalf of all our clients, including individual and group document productions.  In the West Virginia case, we toured the state to meet with clients in groups, did individual discovery submissions through the mass litigation panel, and completed the claims process for each individual client.  Our clients were consumed with life beyond the litigation—working full-time, caring for children, caring for parents, trying to keep a roof over their heads, trying to keep a car working so they could get to work, and trying to keep bill collectors at bay.  The last thing many wanted to do, was spend time revisiting the circumstances which had led them to the mountain of student loan debt many had and could not pay.  We had a systematic process for reaching out to clients by email, phone call, text message, and letter.  There were times when we had to find clients who had dropped off the grid or changed their contact information without letting us know.  Every single employee of the firm was involved in client outreach.  With multi-party client cases such as these, consistent outreach is paramount.

A focused approach is also necessary, but may seem counter-intuitive.  With a case burgeoning with diffuse elements—multiple defendants, multiple claimants, multiple classes, numerous counsel, and hundreds of variables—focus is not always the first thing that comes to mind.  However, being able to strip distraction away and focus in on the priority was the pathway to success.  For example, in the West Virginia mass litigation, our firm and two others realized after the first three days of unsuccessful mediation, that the priority was forcing the insurer to the table—a task no one else was pursuing.  So, in our litigation on behalf of nursing students against their school, we took a targeted detour and filed a declaratory judgment action into the coverage issue.  We filed the action, conducted discovery including numerous depositions, and successfully staved off summary judgment, which brought us into a position with the insurer where it was willing to tender proceeds to the settlement fund.  This focused action was the key to unlocking the future successful settlement negotiations. 

Also, with these cases, focusing on the common denominator became a touchstone.  To develop a damages theory, to execute a discovery strategy, to develop the formulae for compensating claimants and creating the claims process, we had to pare down to a baseline from which we could work.  Finding the baseline allowed us to build a framework that would support us through the process.  In the West Virginia case, we had to develop a basic measurement for awarding claimants as there was not enough money in the fund to make the claimants whole.  Would you do it by number of years, amount of tuition, number of semesters?  Ultimately, we decided the rock-bottom baseline measurement would be attempted credit hour.  From this measurement, we could build the claims award process.

Diplomacy was involved daily.  We had strategies for developing strategies.  Literally.  Our firm worked with two other firms representing their own groups of nursing students, and our three firms had to work with other attorneys working with non-nursing students.  And that was just the plaintiffs’ side.  Also, we had six judges to work with and defense counsel for the defendant school, plus counsel for the school that had entered into a teach-out agreement with the defendant school, and counsel for the insurer.  Being able to tag-team within the firm our interactions with various other lawyers and judges became crucial.  Sometimes a different voice carrying the same message can gain more ground.  Learning when to defer and when to push for ground was integral to success. 

Finally, backbone.  All litigation requires strength.  However, it is really difficult to be the only impediment in a room full of strong-willed, intelligent individuals all vying for what they believe is best for their clients.  Nevertheless, we found ourselves in that position on more than one occasion, because our gut was telling us this direction or that strategy was not the right path for our clients.  Bluster or standing on principle alone was ineffectual—when we took a stand, it had to be strong, well-supported, and appropriate considering the backdrop of dwindling assets and mounting claimant numbers. 

Working for higher education students was incredibly rewarding.  Our clients in both cases were strong, caring individuals who were willing to fight for justice.  Their cases involved unique factors that we had to recognize and solve to be successful.  These cases challenged us in ways we could not have imagined when we sat down to meet with our first nursing student from Virginia Western in 2007, but after litigating these two cases for eight years, the path is now a little clearer for each of our clients, and for that, we are thankful.

Monica Mroz, Esq. practices with Fishwick & Associates.