Proposal for Omissions as Borrower Defense to Repayment

§668.75 Omission of fact

An omission of fact includes the concealment, suppression, or absence of relevant information 

or statements, in connection with the nature of the institution’s educational programs, financial 

charges, or the employability of the institution’s graduates that has the capacity or tendency or 

effect of deceiving students or prospective students in any material respect. An omission of fact 

includes, but is not limited to, the knowing concealment, suppression, or absence of relevant

information or statement concerning—

(a) The entity that is actually providing the educational instruction;

(b) The availability of slots, or requirements for obtaining admission, in a program where the 

institution places students in a pre-program at the time of enrollment;

(c) Factors that would prevent a prospective student, for reasons such as prior criminal records 

or preexisting medical conditions, from qualifying to meet requirements that are generally 

needed to be employed in the field for which the training is provided;

(d) Whether the program the prospective student is enrolling in meets state licensure 

requirements to be employed in the field for which the training is provided in the state the 

prospective student resides in; and

(e) An eligible institution’s failure to disclose that the academic, professional, or occupational 

degree that the institution will confer upon completion of the course of study has not been 

authorized by the appropriate State educational agency, or requires specialized accreditation; 

or,

(f) The nature of the institution’s educational programs, the institution’s financial charges, or 

the employability of the institution’s graduates.

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Deleted: with likelihood that others rely upon such 

concealment, suppression, or absence

Commented [A1]: There is a significant body of caselaw 

in Massachusetts that determines whether an omission is 

deceptive:

"Advertising need not be totally false in order to be deemed 

deceptive in the context of G.L. c. 93A." Aspinall v. Phillip 

Morris Cos., 442 Mass. 381, 394 (2004). "The criticized 

advertising may consist of a half truth, or even may be true 

as a literal matter, but still create an over-all misleading 

impression through failure to disclose material information.” 

Id. at 395; Underwood v. Risman, 414 Mass. 96, 99-100 ( 

1993) ("A duty exists under c. 93A to disclose material facts 

known to a party at the time of a transaction."). In essence, 

"an advertisement is deceptive when it has the capacity to 

mislead consumers, acting reasonably under the 

circumstances, to act differently from the way they otherwise 

would have acted" (i.e., to entice a reasonable consumer to 

purchase the product)." Aspinall, 442 Mass. at 396. Notably, 

“a successful G.L. c. 93A action based on deceptive acts or 

practices does not require proof that a plaintiff relied on the 

representation, or that the defendant intended to deceive the 

plaintiff, or even knowledge on the part of the defendant that 

the representation was false." Aspinall, 442 Mass. at 394 

(citations omitted).

Deleted: material

Commented [A2]: These changes are drawn from 

Massachusetts‘s UDAP law. See 940 CMR 3.05 promulgated 

under M.G.L. c. 93A.

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