Implied Student–University Contracts, Transcript Rights, and PREP Act Preemption: Commentary on Ramaekers v. Creighton University

I. Introduction

In Ramaekers v. Creighton University, 320 Neb. 478 (Dec. 12, 2025), the Nebraska Supreme Court addressed a cluster of novel legal issues arising out of a private university’s COVID‑19 vaccine mandate. A group of Creighton University students, most of whom refused to receive the COVID‑19 vaccine on religious grounds, challenged their unenrollment and related consequences. They alleged:

• breach of an implied contract between themselves and Creighton,
• violation of due process,
• conversion based on Creighton’s hold over their academic records,
• negligence in the administration of the vaccine, and
• violations of Nebraska’s Consumer Protection Act (NCPA).

The district court dismissed all claims with prejudice under Neb. Ct. R. Pldg. § 6‑1112(b)(6) and denied leave to amend. On appeal, the Supreme Court:

• held that the students plausibly alleged a breach of an implied contract and a claim for conversion,
• found the due process claim abandoned on appeal,
• held that all negligence and NCPA claims were preempted by the federal Public Readiness and Emergency Preparedness Act (PREP Act), and
• affirmed the denial of leave to amend as to those preempted claims.

Beyond its immediate context, the decision establishes important Nebraska precedent on:

• the contractual nature of the student–university relationship, even when handbooks purport to disclaim contract formation,
• the potential status of transcripts and academic credits as “property” for purposes of conversion, and
• the breadth of PREP Act immunity and preemption as applied to COVID‑19 vaccines administered by universities and similar entities.

This commentary examines the opinion’s reasoning, its reliance on prior precedent, and its likely impact on higher‑education law, pandemic‑response litigation, and Nebraska tort and consumer‑protection jurisprudence.

II. Summary of the Opinion

A. Factual Background

In May 2021, Creighton University announced that, effective July 7, 2021, all students would be required to receive a COVID‑19 vaccination, adding it to its list of mandatory vaccines (such as MMR). Students were barred from registering for classes or housing until they provided proof of vaccination.

Creighton’s policy:

• allowed medical exemptions,
• did not allow religious exemptions, and
• allowed temporary exemptions based on the vaccine’s Emergency Use Authorization (EUA) status.

To obtain an “EUA exemption,” students had to sign a form stating: “I am requesting to decline the COVID‑19 vaccination until it has full approval by the [FDA] at which time I agree to meet this requirement within 6–8 weeks.”

On August 23, 2021, the FDA granted full approval to the Pfizer COVID‑19 vaccine. Creighton then informed students that they must:

1. receive the first dose by 4:30 p.m. on September 7, 2021,
2. withdraw before that deadline, or
3. be administratively withdrawn by Creighton.

The appellants were Creighton students who held religious objections to vaccination. Most refused the vaccine and were unenrolled and barred from campus on September 9, 2021. Creighton also placed holds on some of their student accounts, preventing access to their transcripts. One student, Kristin Hultgren, did receive the vaccine, suffered alleged adverse effects, and was granted a medical exemption from the second dose. Another student voluntarily withdrew before the deadline.

B. Procedural History

Just before the September 7 deadline, several students sued and sought to enjoin Creighton from unenrolling them. The initial complaint asserted breach of contract and unjust enrichment. The district court denied injunctive relief, reasoning that:

• if a contract existed, it included the EUA agreements, and
• the students breached by failing to be vaccinated after FDA approval.

The Nebraska Supreme Court dismissed an interlocutory appeal for lack of a final, appealable order. After consolidation of related actions, the students filed an “operative complaint” alleging:

1. breach of implied contract,
2. violation of due process,
3. conversion,
4. negligence, and
5. violations of the NCPA.

Creighton moved to dismiss or, alternatively, for a more definite statement. The district court dismissed the complaint with prejudice, without explanation, and later denied the students’ motion for new trial and for leave to amend. The students appealed.

C. Mootness Challenge

In April 2022, Creighton changed its vaccine policy to allow religious exemptions, and some appellants re‑enrolled and even graduated. Creighton argued that these developments rendered the appeal moot.

The Supreme Court rejected this argument, reaffirming that:

• a suit seeking damages for harm caused by past practices is not mooted by cessation of the challenged conduct, and
• voluntary cessation of allegedly unlawful conduct does not ordinarily moot a case.

Thus, the appeal proceeded on the merits.

D. Holdings on the Merits

1. Breach of implied contract. The Court held that the students plausibly alleged an implied contract with Creighton created by:
   • Creighton’s offer to educate in exchange for tuition and enrollment, and
   • the students’ matriculation and payment.
   Allegations that Creighton unilaterally added a COVID‑19 vaccine requirement, refused to allow completion of the semester, and barred access to transcripts—allegedly in violation of Creighton policies—were sufficient to state a claim at the pleading stage.
2. Due process. Although the complaint alleged due process violations (primarily the lack of grievance procedures to contest the mandate), the students did not specifically brief this claim on appeal. The Court deemed it abandoned and did not address its merits.
3. Conversion. The Court recognized conversion as “any unauthorized or wrongful act of dominion” over another’s property depriving the owner of it permanently or indefinitely. The students alleged:
   • they had paid for and earned academic credits,
   • Creighton placed holds preventing access to transcripts and use of their credits, despite their being paid up through the prior term, and
   • this wrongful control caused them harm (e.g., inability to transfer or re‑enroll).
   Although courts in other jurisdictions are split on whether transcripts are “property,” the Nebraska Supreme Court held that these allegations plausibly stated a claim for conversion sufficient to survive a motion to dismiss.
4. Negligence. The students alleged Creighton negligently administered the vaccine (e.g., by failing to provide required disclosures or obtain informed consent under CDC guidelines) and that this duty existed for all students, vaccinated or not. The Court held that:
   • Creighton was a “covered person” administering a “covered countermeasure” under the PREP Act, and
   • all state‑law tort claims for “loss” arising out of such administration were preempted and replaced by the PREP Act’s remedies (the Covered Countermeasure Process Fund and, in narrow cases, a federal willful misconduct action).
   Thus, the negligence claims were barred.
5. Nebraska Consumer Protection Act (NCPA). The students alleged that Creighton’s failure to disclose vaccine risks and obtain informed consent amounted to “unfair or deceptive acts or practices” in the conduct of trade or commerce. Because these alleged violations arose from Creighton’s administration of a covered countermeasure, the Court held that the PREP Act also preempted the NCPA claims.
6. Denial of leave to amend. The Court held that, as to negligence and NCPA claims, amendment would be futile given PREP Act preemption; thus, the district court did not abuse its discretion in denying leave to amend them.

The Court ultimately:

• reversed and remanded for further proceedings on the implied contract and conversion claims, and
• affirmed dismissal (with prejudice) of the due process, negligence, and NCPA claims and the denial of leave to amend as to those claims.

III. Analysis

A. Procedural Framework and Standards

The Court began by clarifying a procedural irregularity: the parties had submitted extrinsic evidence at the hearing on Creighton’s motion to dismiss. Under Nebraska pleading rules, evidence outside the pleadings ordinarily is not considered on a § 6‑1112(b)(6) motion to dismiss; consideration of such materials can convert the motion into one for summary judgment.

The Court refused to treat the motion as one for summary judgment because:

• the district court’s order consistently described and captioned it as a motion to dismiss, and
• the parties had framed and briefed it as such.

Relying on DMK Biodiesel v. McCoy, 285 Neb. 974, 830 N.W.2d 490 (2013), and Trausch v. Hagemeier, 313 Neb. 538, 985 N.W.2d 402 (2023), the Court adhered to the rule that a motion to dismiss tests legal sufficiency—not evidentiary weight—and that courts typically may look only at the complaint and materials embraced by it.

The Court reiterated Nebraska’s liberal notice‑pleading standard:

• a plaintiff need only provide a short and plain statement of the claim showing entitlement to relief,
• legal theories and statute citations are not required if the defendant has fair notice of the claim (Edwards v. Estate of Clark, 313 Neb. 94, 982 N.W.2d 788 (2022)), and
• a motion to dismiss should be granted only in the “unusual case” where the complaint itself shows an “insuperable bar to relief.”

The Court accordingly viewed each claim through a plaintiff‑friendly lens, drawing all reasonable inferences in the students’ favor and asking only whether each cause of action was “plausible on its face.”

B. Precedents and Authorities Cited

1. Implied contracts in the student–university relationship

The Court’s contract analysis rests heavily on Armstrong v. Clarkson College, 297 Neb. 595, 901 N.W.2d 1 (2017). In Armstrong, a student alleged that Clarkson College breached an implied contract by failing to provide a promised clinical site. The college’s handbook:

• disclaimed creating any contract, and
• reserved the right to unilaterally change policies.

Nevertheless, the Court held that an implied contract arose from:

• the college’s offer of admission to a program that necessarily included clinical placements, and
• the student’s acceptance and payment of tuition.

The contract was formed at enrollment and was independent of the handbook’s disclaimers. The handbook and other documents were relevant to the contract’s terms, but not to its existence.

The Court also cited the California decision Kashmiri v. Regents of University of California, 156 Cal. App. 4th 809, 67 Cal. Rptr. 3d 635 (2007), in which the University of California was held to an implied contractual promise not to raise professional school fees during a student’s enrollment. The Kashmiri court held that:

• the act of matriculation plus payment of required fees formed an implied contract, and
• catalogs and web statements describing fee schedules formed part of the contract’s terms.

Together, Armstrong and Kashmiri support the proposition that the student–university relationship is fundamentally contractual and that the core contract forms at matriculation, not through the student handbook alone.

2. Conversion and property interests in academic records

On conversion, the Court relied on its own precedents Peterson v. Homesite Indemnity Co., 287 Neb. 48, 840 N.W.2d 885 (2013), and Prososki v. Commercial Nat. Bank, 219 Neb. 607, 365 N.W.2d 427 (1985), which define conversion and require plaintiffs to allege:

• a right to immediate possession of the property, and
• that the defendant wrongfully exercised dominion over it.

Acknowledging that Nebraska had not yet addressed whether students have a property right in transcripts, the Court surveyed out‑of‑state authority:

• Against a property right:
  • Juras v. Aman Collection Service, Inc., 829 F.2d 739 (9th Cir. 1987) – the university is the owner of the transcript; the student has only a right of access.
  • McKee v. Southfield School, 613 So.2d 659 (La. App. 1993) – no entitlement to a transcript absent payment of tuition.
• Recognizing a student interest:
  • Doe v. University of Michigan, 78 F.4th 929 (6th Cir. 2023) – a transcript hold can cause a cognizable injury for standing purposes.
  • In re Kuehn, 563 F.3d 289 (7th Cir. 2009) – recognizing a state‑law right to receive transcripts based on custom.

The Court did not definitively choose a side, but held that the students’ allegations sufficed to plead a conversion claim.

3. PREP Act preemption

The most significant statutory authority is the federal PREP Act, 42 U.S.C. § 247d‑6d et seq. The Court parsed its key provisions:

• “Covered person” includes, among others, a “qualified person who prescribed, administered, or dispensed” a covered countermeasure.
• “Covered countermeasure” includes:
  • “qualified pandemic or epidemic products” (e.g., drugs, biological products, or devices to prevent or treat a pandemic), and
  • drugs, biological products, or devices authorized for emergency use.
• “Loss” includes:
  • death,
  • physical, mental, or emotional injury, illness, disability, or condition,
  • fear of such injury (including need for medical monitoring), and
  • property damage, including business interruption.

The Court drew on two particularly persuasive state‑court precedents:

• Happel v. Guilford County Board of Education, 387 N.C. 186, 913 S.E.2d 174 (2025).
  • Held that the PREP Act preempts state tort claims (e.g., battery) that fall within its scope because such claims are “claims for loss” under the statute.
  • Noted that the PREP Act does not preempt state constitutional claims, as that would remove any effective remedy for unconstitutional behavior.
• Parker v. County Public Health Dept., 102 A.D.3d 140, 954 N.Y.S.2d 259 (2012).
  • Held that claims based on lack of consent to vaccination are “claims for loss” within the scope of PREP Act immunity.
  • Emphasized that the Covered Countermeasure Process Fund is designed to provide monetary redress for such harms.

The Court contrasted these with federal cases like Saldana v. Glenhaven Healthcare LLC, 27 F.4th 679 (9th Cir. 2022), and similar decisions, which dealt with whether the PREP Act is a “complete preemption” statute for removal/jurisdiction purposes, not whether it substantively preempts state tort claims. The Nebraska Supreme Court found Saldana unpersuasive for that reason.

The Court also cited M.T. v. Walmart Stores, Inc., 63 Kan. App. 2d 401, 528 P.3d 1067 (2023), reinforcing the view that state‑law claims relating to covered COVID‑19 countermeasures are preempted.

4. Nebraska Consumer Protection Act (NCPA)

The Court reaffirmed its prior characterizations of the NCPA:

• In Salem Grain Co. v. Consolidated Grain & Barge Co., 297 Neb. 682, 900 N.W.2d 909 (2017), the NCPA was described as primarily an antitrust measure aimed at monopolies and price‑fixing.
• In Arthur v. Microsoft Corp., 267 Neb. 586, 676 N.W.2d 29 (2004), the Court emphasized its purpose as protecting consumers from unlawful practices in trade or commerce.

Here, the Court did not ultimately need to define the precise reach of “trade and commerce” in the educational context because it resolved the NCPA claim on PREP Act preemption grounds.

5. Pleading amendments and futility

In addressing leave to amend, the Court relied on Sinu v. Concordia University, 313 Neb. 218, 983 N.W.2d 511 (2023), and Trausch v. Hagemeier, supra, which hold:

• before discovery is complete and before summary judgment, leave to amend should ordinarily be freely given,
• but may be denied as futile if the proposed amendment could not survive a motion to dismiss, and
• amendment is inappropriate where the defect in the claim cannot be cured as a matter of law.

The Court found that PREP Act preemption was such an incurable defect for negligence and NCPA claims.

C. The Court’s Legal Reasoning by Issue

1. Mootness and voluntary cessation

Creighton’s change in vaccine policy and the re‑enrollment/graduation of some students did not moot the appeal because:

• the plaintiffs sought damages for past harms, which persist even if the allegedly unlawful policy is discontinued (Rath v. City of Sutton, 267 Neb. 265, 673 N.W.2d 869 (2004)), and
• under the doctrine of voluntary cessation, a defendant’s decision to halt its challenged conduct does not automatically moot the case (Stewart v. Heineman, 296 Neb. 262, 892 N.W.2d 542 (2017); Nesbitt v. Frakes, 300 Neb. 1, 911 N.W.2d 598 (2018); see also City of Hastings v. Sheets, 317 Neb. 88, 8 N.W.3d 771 (2024)).

This confirms that Nebraska litigants seeking damages for past institutional policies cannot be cut off simply because the policies change mid‑litigation.

2. Implied contract between students and Creighton

The Court framed the contract question as one of implied contract, not express written contract. The students alleged:

• Creighton offered to provide in‑person education and confer academic credit in exchange for tuition and completion of enrollment paperwork.
• They accepted that offer by enrolling and paying tuition.
• Creighton then:
  • unilaterally imposed a new condition (COVID‑19 vaccination),
  • refused to let them complete an already‑begun semester, and
  • withheld their transcripts and credits.
• These acts allegedly violated Creighton’s own policies, referencing “CU policy 2.1.25” and the anti‑discrimination section of the student handbook.

Creighton countered that:

• its student handbook disclaims creating any contract, and
• it explicitly reserved the right to impose vaccination requirements.

But the Court, following Armstrong and Kashmiri, drew a critical distinction:

• Contract formation arises from the objective manifestations of offer and acceptance—here, admission and enrollment with tuition payment.
• Contract terms may be informed by the handbook and policies, but those policies do not necessarily control whether a contract exists at all, especially where handbooks claim unilateral modification rights and disclaimer language.

At the pleading stage, the Court held, the students need not spell out the full catalog of contractual terms. It is enough that:

• they plausibly allege a mutual intent to contract (Creighton offers education; students enroll and pay), and
• they allege conduct that, if proven, could amount to a breach (mid‑stream addition of vaccine mandate, denial of completion of term, transcript withholding allegedly inconsistent with policy).

The Court explicitly left the specific terms and scope of the implied contract for the fact‑finder. Thus, Creighton’s arguments that its policies reserved unilateral power to impose vaccine mandates, or that EUA agreements altered the contract, go to the merits and cannot be resolved on a motion to dismiss.

This is a significant reaffirmation that in Nebraska:

• private universities’ disclaimers in handbooks do not automatically preclude implied contracts with students, and
• students may test whether mid‑course changes to essential conditions of enrollment violate implied contractual commitments.

3. Due process claim abandoned

The Court did not reach substantive questions about private university due process obligations. Instead, it relied on a standard appellate rule: alleged errors must be both specifically assigned and argued in the appellant’s brief to be considered (State v. Goynes, 318 Neb. 413, 16 N.W.3d 373 (2025)).

Because the students neither distinctly argued their due process claim in their main brief nor replied to Creighton’s assertion that the claim was abandoned, the Court deemed it waived. This preserves for a future case the more complex questions of:

• whether, and under what theories, a private university might owe “due process”‑type obligations (e.g., via contract, quasi‑public functions, or state constitutional doctrines), and
• whether vaccine‑mandate procedural mechanisms are legally required in such settings.

4. Conversion: transcript and credit holds as wrongful dominion

The students alleged conversion on the theory that:

• they had earned credits and paid all tuition and fees for prior terms,
• Creighton placed holds on their accounts preventing access to transcripts and use of those credits, even though the students did not owe money for those prior terms, and
• this was “unauthorized and wrongful dominion” over their property resulting in loss (e.g., inability to transfer, inability to continue education elsewhere).

The key analytical step was whether transcripts and academic credits can count as “property” in which students have a right to immediate possession. Without definitively resolving the question, the Court held the complaint sufficiently alleged:

• that the students had a personal interest in their transcripts and credits (they had earned and paid for them), and
• that Creighton wrongfully interfered with their ability to possess and use those records.

By allowing the claim to proceed past the pleading stage, the Court:

• rejected the notion that transcript holds are, as a matter of law, outside the realm of property‑based torts, and
• opened the door to treating certain transcript and credit restrictions as potential conversion, at least where:
  • the student is fully paid up as to the relevant credits, and
  • the hold is not contractually or regulatory authorized.

This has substantial practical significance for educational institutions that rely on transcript holds to enforce conduct or financial policies.

5. PREP Act preemption of negligence claims

The negligence claims—primarily that Creighton failed to provide required disclosures and to secure informed consent before vaccination—presented the Court with a novel question in Nebraska: the scope of PREP Act immunity.

The Court’s analysis followed a structured path:

1. Was Creighton a “covered person” administering a “covered countermeasure”?
   The students themselves alleged that Creighton:
   • employed physicians who supervised and administered the vaccines on campus, and
   • did so under conditions contemplated by the PREP Act.
   The Court also relied on statutory text:
   • the COVID‑19 vaccines clearly qualify as “covered countermeasures,” both as:
     • “qualified pandemic or epidemic products,” and
     • drugs/biologics authorized for emergency use.
   • Creighton, by employing physicians to administer the vaccine in its program, became a “qualified person” and therefore a “covered person.”
   A federal HHS declaration covering COVID‑19 vaccines was in effect at the time.
2. Do the students’ claims fall within “claims for loss” under the PREP Act?
   The students alleged:
   • physical injury to Hultgren from vaccination,
   • emotional and other harms connected with the vaccine mandate and its administration, and
   • property‑type harms (e.g., loss of tuition, educational opportunities) tied to the vaccine policy.
   The Court, drawing on Happel and Parker, concluded that:
   • these are exactly the kinds of losses—physical, emotional, and property‑based—for which the PREP Act grants immunity and provides an alternative remedy, and
   • a negligence claim premised on failure to obtain informed consent (or to follow CDC guidance) still “arises out of” or “relates to” the administration of the vaccine.
3. Does the PREP Act preempt state negligence claims?
   The Court adopted the reasoning that:
   • the PREP Act is not a “complete preemption” statute for federal jurisdiction (per Saldana), but
   • it does “ordinarily” preempt substantive state tort claims falling within its scope, leaving:
     • the Covered Countermeasure Process Fund, and
     • a narrow cause of action for willful misconduct, as exclusive remedies.
   Since the students asserted only state‑law negligence (not willful misconduct) connected with vaccine administration, those claims were necessarily barred.

The Court thus held that the district court correctly dismissed the negligence claims under § 6‑1112(b)(6), as those claims are legally foreclosed by federal statute.

6. PREP Act preemption of NCPA claims

The NCPA claim alleged that Creighton’s failure to fully disclose vaccine risks and obtain informed consent constituted unfair or deceptive acts in “trade or commerce” (defined as the sale of assets or services affecting Nebraskans).

The Court sidestepped any definitive ruling on whether the student–university relationship falls within “trade or commerce” by holding that, in this context, the NCPA claim:

• was “causally related to Creighton’s administration of a covered countermeasure,” and
• therefore also fell within the PREP Act’s preemptive scope for “claims for loss.”

In effect, the Court treated the NCPA claim as another tort‑like claim seeking damages for harms arising from covered countermeasure administration. As such, it is subject to the same federal immunity and remedial scheme as the negligence claims. This is an important extension: it recognizes PREP Act preemption not only of classic tort claims, but also of state consumer‑protection actions grounded in the same alleged conduct.

7. Denial of leave to amend: futility

Because the students sought leave to amend before discovery and before summary judgment, the district court should have freely allowed amendment unless it would be futile. The Supreme Court found futility as to negligence and NCPA claims because:

• no matter how artfully the students amended their allegations,
• their claims remained tied to Creighton’s role as a covered person administering a covered countermeasure, and
• thus remained preempted as a matter of law.

Under Trausch and Sinu, amendment is properly denied where the defect is incurable; PREP Act preemption is such an incurable defect for these particular claims. The Court therefore affirmed the denial of leave to amend with respect to negligence and NCPA.

By contrast, the Court’s revival of the implied contract and conversion claims implicitly recognizes that those claims are not preempted and are sufficiently pled as they stand; no amendment was required for them to proceed.

D. Impact and Future Significance

1. Higher education: contractual obligations and policy changes

Ramaekers reinforces and extends the view that the student–university relationship in Nebraska is contractual, even for private institutions with heavily lawyered handbooks. Key takeaways for universities include:

• Implied contracts are robust. Enrollment plus tuition payment can form an enforceable contract, even when handbooks disclaim contractual intent.
• Unilateral mid‑stream policy changes are legally risky. Significant new requirements imposed mid‑term (e.g., vaccine mandates, changes in modality, new financial obligations) may open the institution to breach‑of‑contract claims if they materially alter the understood terms of the educational bargain.
• Handbooks still matter—but as evidence of terms, not existence. Institutional boilerplate disclaimers cannot entirely insulate universities from contractual liability. Handbooks and policies will be treated as evidence of what the implied contract’s terms might be, but courts will look also to the totality of communications and conduct.

This analysis is not limited to COVID‑19. It can apply to:

• changes to clinical or internship requirements,
• abrupt shifts in instructional modality (e.g., in‑person to online),
• new mandatory fees or financial terms, and
• disciplinary or eligibility criteria imposed after enrollment.

Institutions in Nebraska should expect increased scrutiny of whether such changes are consistent with the implied terms formed at matriculation, and may wish to:

• more clearly set baseline expectations at admission,
• reserve specific, clearly delineated rights to change health, safety, or academic standards, and
• ensure changes are implemented in ways that minimize impairment of already‑earned credits or mid‑term expectations.

2. Transcript holds and conversion: tools and limits

The recognition that a conversion claim based on transcript/credit holds is at least plausible has several implications:

• Transcript holds are no longer litigation‑proof. Where a student has fully paid for earned credits, and where policies do not clearly authorize holds for the specific reason at issue (e.g., vaccine refusal as opposed to unpaid tuition), a hold may be characterized as wrongful dominion over the student’s property.
• Distinctions will matter. The outcome may differ where:
  • a student owes outstanding tuition or fees,
  • regulations or contracts expressly authorize transcript holds in particular circumstances, or
  • the institution’s relationship with the student is more akin to a debtor–creditor relationship than a simple service contract.
• Remedies may include damages. If conversion is ultimately proven, students may recover the value of lost educational or professional opportunities linked to being unable to access their transcripts.

Educational institutions should carefully:

• review their transcript and record‑hold policies,
• ensure holds are tethered to clear contractual or regulatory authority, and
• avoid using holds in novel ways not clearly disclosed or agreed to at the outset of the relationship.

3. PREP Act: strong shield for pandemic‑related torts

The Court’s robust reading of the PREP Act has far‑reaching consequences beyond this dispute:

• Broad immunity for covered entities. Universities, employers, pharmacies, and healthcare providers in Nebraska who administered COVID‑19 vaccines (or other covered countermeasures) within the scope of an HHS declaration can invoke PREP Act immunity against:
  • state negligence claims,
  • state battery or informed‑consent claims, and
  • state consumer‑protection or similar “loss”‑based claims tied to the administration or use of the countermeasure.
• Limited remaining routes for plaintiffs. Affected individuals will need to:
  • pursue compensation through the federal Covered Countermeasure Process Fund, and/or
  • if the facts support it, bring the highly specialized federal willful misconduct claim allowed by the PREP Act (subject to strict procedural and substantive requirements).
• Potential carve‑outs for constitutional claims. By embracing Happel, the Court signaled that state constitutional claims might not be preempted, although none were before the Court in Ramaekers. Future litigants may test whether, for example, certain pandemic‑response measures by state actors violate state constitutional rights not extinguished by the PREP Act.

Going forward, Nebraska courts are likely to treat PREP Act immunity as:

• a threshold, dispositive question for COVID‑19 vaccine and countermeasure litigation, and
• a strong basis for dismissing state tort and consumer‑protection claims at the pleading stage where the statutory criteria are met.

4. Consumer protection litigation and health‑related disclosures

The application of PREP preemption to NCPA claims means that:

• NCPA is not a bypass around PREP immunity. Plaintiffs cannot circumvent PREP preemption simply by recharacterizing informed‑consent or safety allegations as “unfair or deceptive trade practices.”
• Health‑related misrepresentation claims are constrained. At least in the context of covered countermeasures, misrepresentation or omission claims seeking damages are largely redirected into the federal administrative and willful‑misconduct framework.

Outside the PREP Act context, the NCPA remains fully available. But health‑related consumer claims that intersect with federally covered countermeasures will face this additional preemptive barrier.

5. Litigation strategy and appellate practice

Ramaekers also underscores several practical points for litigants:

• Plead all viable non‑preempted theories. Plaintiffs should consider:
  • contract theories (as here),
  • property and conversion theories where appropriate, and
  • constitutional claims (where a state actor is involved),
  because pure tort and consumer‑protection theories tied to covered countermeasures may be barred.
• Brief every claim. Failure to specifically argue a claim on appeal will result in abandonment, as happened with the due process claim.
• Recognize the distinct roles of federal preemption doctrines. Federal cases addressing “complete preemption” for removal are not necessarily controlling on the substantive preemptive effect of a statute in state court, a distinction the Court carefully drew regarding Saldana.

IV. Complex Concepts Simplified

1. Motion to dismiss vs. summary judgment

• Motion to dismiss (Rule 12(b)(6)). Tests whether the complaint, on its face, states a legally cognizable claim. The court assumes the facts alleged are true and asks only whether there is a plausible legal claim.
• Summary judgment. Comes later, after evidence is developed. The court looks at admissible evidence (documents, depositions, affidavits) to decide whether any genuine factual dispute exists requiring a trial.

In Ramaekers, the Supreme Court treated Creighton’s filing as a motion to dismiss, ignoring extraneous evidence, and focused solely on the sufficiency of the pleadings.

2. Implied contract

An implied contract exists when:

• the parties’ actions show a mutual intent to form a binding agreement,
• even if they never formally reduce it to writing or call it a “contract.”

In the student–university context:

• the university’s offer to admit and educate the student, and
• the student’s acceptance, matriculation, and payment of tuition,

together can create an implied contract governing such matters as:

• the nature of the educational program,
• graduation requirements, and
• basic conditions of enrollment.

3. Conversion

Conversion is a civil wrong that occurs when:

• someone exercises control or “dominion” over property belonging to another,
• in a way that is inconsistent with the owner’s rights,
• and deprives the owner of possession permanently or for an indefinite time.

Classic examples include:

• taking and keeping someone’s car without permission,
• refusing to return goods held for repair after full payment, or
• wrongfully transferring funds from another’s bank account.

Ramaekers applies this concept to the less tangible setting of:

• academic transcripts and credits—if recognized as property interests—which can be “controlled” by a university through holds and restrictions.

4. Mootness and voluntary cessation

A case is “moot” when:

• there is no longer a live dispute between the parties, and
• the court cannot grant effective relief.

Voluntary cessation is a doctrine that prevents defendants from making a case moot simply by temporarily stopping the challenged behavior after being sued. Otherwise, a defendant could:

• engage in wrongful conduct,
• stop when challenged, claim mootness, and
• then quietly resume the conduct later.

Thus, stopping the challenged conduct usually does not moot claims for damages for past harm.

5. PREP Act immunity and preemption

The PREP Act is a federal law designed to:

• encourage rapid deployment of medical countermeasures (like vaccines) during public health emergencies, by
• granting broad immunity from lawsuits to those who create, distribute, or administer such countermeasures under federal declarations.

Key points:

• Covered countermeasure. Includes vaccines, drugs, and devices used to diagnose, prevent, or treat a designated pandemic disease (like COVID‑19), including those under Emergency Use Authorization.
• Covered person. Includes manufacturers, distributors, program planners, and qualified persons (such as physicians or other authorized vaccinators) who prescribe, dispense, or administer the countermeasure.
• Claims for loss. Broadly includes injury, death, emotional harm, and property damage caused by or related to the administration or use of the countermeasure.

For such claims, the PREP Act:

• generally preempts state tort and consumer‑protection claims, and
• replaces them with:
  • an administrative compensation program (the Covered Countermeasure Process Fund), and
  • a narrow, specialized federal cause of action for willful misconduct (which has rigorous procedural and substantive thresholds).

6. Nebraska Consumer Protection Act (NCPA)

The NCPA is Nebraska’s principal statute for:

• preventing monopolies and price fixing, and
• regulating “unfair or deceptive acts or practices” in “trade or commerce” (sale of assets or services affecting Nebraska consumers).

Typically, it can be used to challenge:

• false or misleading advertising,
• fraudulent business practices, or
• anticompetitive conduct.

In Ramaekers, however, because the alleged unfair practices were tied to the administration of a PREP‑covered vaccine, the Court held that the PREP Act preempted the NCPA claim.

V. Conclusion

Ramaekers v. Creighton University is a precedent‑setting decision in several respects:

• It confirms that a contractual relationship between a student and a private university in Nebraska can arise by implication from enrollment and payment of tuition, notwithstanding handbook disclaimers—and that substantial mid‑course policy changes may be scrutinized under contract law.
• It recognizes that students can plausibly assert conversion based on university holds over transcripts and academic credits, at least where they have paid for and earned those credits and where holds may be unauthorized. This opens a new avenue of challenge to certain institutional practices involving academic records.
• It adopts a robust view of PREP Act immunity and preemption, holding that state‑law negligence and NCPA claims arising from the administration of COVID‑19 vaccines are barred and must instead be pursued, if at all, through federal remedies such as the Covered Countermeasure Process Fund or the federal willful‑misconduct action.
• It underscores standard but critical procedural principles: a damages case is not mooted by the defendant’s voluntary cessation of challenged policies, claims not briefed on appeal are deemed abandoned, and leave to amend may be denied where claims are preempted as a matter of law.

On remand, the litigation will test the contours of the implied contract and conversion claims in the specific context of Creighton’s COVID‑19 policies and transcript holds. More broadly, the Court’s reasoning will guide Nebraska courts and institutions in future disputes over university policies, pandemic responses, and the interaction between state remedies and federal immunity statutes.

As COVID‑19‑related litigation continues to unfold, Ramaekers will likely serve as a foundational Nebraska case for:

• the scope of student contractual and property rights, and
• the reach of federal preemption in the public health emergency context.