Zhao v. CIEE, Inc.

United States Court of Appeals
For the First Circuit
No. 20-1878

ANNIE ZHAO, individually and on behalf of all others similarly
situated,

Plaintiff, Appellant,

v.

CIEE INC.; COUNCIL ON INTERNATIONAL EDUCATION EXCHANGE, INC.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Lance E. Walker, U.S. District Judge]

Before

Howard, Chief Judge,
Thompson, Circuit Judge
and Arias-Marxuach, District Judge.

Sigmund D. Schutz, with whom Gregory P. Hansel, Randall B.
Weill, Alexandra A. Harriman, Preti, Flaherty, Beliveau & Pachios,
LLP, Joshua Fields and Kirtland & Packard LLP were on brief, for
appellant.
Chad W. Higgins, with whom Robert J. Keach, Patrick I. Marass,
Zack B. Brandwein and Bernstein, Shur, Sawyer and Nelson, P.A.,
were on brief, for appellees.

June 28, 2021

 Of the District of Puerto Rico, sitting by designation.
 Arias, District Judge. Appellant Annie Zhao was

studying abroad in the Netherlands in March 2020 when the COVID-

19 pandemic upended daily life. In response to the pandemic,

Appellees CIEE, Inc. and the Council on International Educational

Exchange, Inc. (collectively, "CIEE"), Zhao's study abroad

provider, cancelled the abroad portion of her program and made

alternative arrangements for her to complete her coursework

online. On appeal, Zhao does not question the wisdom of cancelling

this portion of her study abroad program. Nor does she question

the alternative arrangements made by CIEE to allow her to complete

her course work online. Instead, she questions the district

court's decision to dismiss, for failure to state a claim, her

complaint against CIEE for breach of contract because the company

refused to provide a refund in lieu of experiences, excursions,

activities, and services she would have otherwise enjoyed abroad

absent the pandemic.1 The district court construed the contract

to give effect to all its provisions and concluded no refund was

due when the cancellation of a program occurs after it started. We

affirm.

Background

Zhao, a member of the Harvard College Class of 2021,

1 The district court also dismissed Zhao's claim for unjust
enrichment. Because she has not raised that issue on appeal, we
consider it waived. See United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990).
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paid CIEE for a Spring 2020 study abroad program at the University

of Amsterdam in the Netherlands. Prior to the program's start in

late January 2020, Zhao and other similarly situated participants

signed the CIEE Program Participant Contract and Forum Methodology

for Dispute Resolution Agreement ("Participant Contract"), which

included the CIEE Terms and Conditions ("Terms and Conditions").

On March 11, 2020, the World Health Organization declared COVID-

19 a pandemic and the United States Centers for Disease Control

issued a Level 3 travel warning for Europe and Level 2 global

travel advisory, and the United States Department of State issued

a Level 3 global travel advisory. On March 12, 2020, CIEE notified

the program participants of its plans to suspend the abroad portion

of their study abroad programs and on March 15, 2020, it acted

accordingly. To ensure that participants could still earn academic

credit, CIEE migrated its on-site programs to online and distance-

learning classes. Zhao completed her program coursework online.

Although initially equivocating about whether Zhao would receive

any refund, CIEE ultimately did not provide her with one and

instituted a no-refund policy for most students on April 1, 2020.

On June 11, 2020, on her behalf and of those similarly

situated, Zhao sued CIEE in Maine Superior Court alleging that in

cancelling their program, CIEE breached its contractual duty to

them. Zhao claimed they had a right to a refund for services not

provided by CIEE because Paragraph 14 of the Participant Contract

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states that "[i]n the unlikely event that a program is cancelled

(due to low enrollment or any other reason), CIEE will refund all

payments received but will have no further liability to

participant." On July 6, 2020, CIEE removed the case to federal

district court and filed a Motion to Dismiss, arguing that other

clauses in the Participant Contract and Terms and Conditions

exempted them from issuing refunds to participants.

On August 31, 2020, the district court granted the

motion. It agreed with CIEE that other provisions of the

Participant Contract and Terms and Conditions limited CIEE's

contractual obligations to the participants, including Zhao, and

dismissed the complaint. See Zhao v. CIEE, Inc., No. 2:20-cv-

00240-LEW, 2020 WL 5171438, at *4 (D. Me. 2020).

Standard of Review

We review de novo a district court's order granting a

motion to dismiss under Fed. R. Civ. P. 12(b)(6). See Newton

Covenant Church v. Great Am. Ins. Co., 956 F.3d 32, 34 (1st Cir.

2020); see also Riggs v. Curran, 863 F.3d 6, 10 (1st Cir. 2017)

("In conducting this review, we accept the truth of all well-

pleaded facts and draw all reasonable inferences therefrom in the

pleader's favor.") (quotation omitted). As part of this review,

we consider the complaint's well-pleaded allegations and

"documents sufficiently referred to" therein. Giragosian v.

Bettencourt, 614 F.3d 25, 28 (1st Cir. 2010) (quotation omitted).

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However, we "reject unsupported conclusions or interpretations of

law." Dixon v. Shamrock Fin. Corp., 522 F.3d 76, 79 (1st Cir.

2008) (internal quotation marks omitted).

The Participant Contract Absolves CIEE of Zhao's Refund Claim

Under Maine law, the elements of a breach of contract

claim are: "(1) breach of a material contract term; (2) causation;

and (3) damages."2 Wetmore v. MacDonald, Page, Schatz, Fletcher &

Co., LLC, 476 F.3d 1, 3 (1st Cir. 2007) (quotation and emphasis

omitted). "When interpreting a contract, a court needs to look at

the whole instrument." Me. Woods Pellet Co., LLC v. W. World Ins.

Co., 401 F. Supp. 3d 194, 200 (D. Me. 2019), reconsideration

denied, 2020 WL 3404728 (D. Me. 2020) (quoting Am. Prot. Ins. Co.

v. Acadia Ins. Co., 814 A.2d 989, 993 (Me. 2013) (alteration

omitted)). The whole instrument here refers to the Participant

Contract as well as to the included Terms and Conditions, both of

which Zhao signed. See Crowe v. Bolduc, 334 F.3d 124, 137 (1st

Cir. 2003) (quoting Hilltop Cmty. Sports Ctr., Inc. v. Hoffman,

755 A.2d 1058, 1062 (Me. 2000)).3

2 The parties agree that the contract is to be interpreted
according to Maine law.

3 Neither party argues that the Participant Contract and Terms
and Conditions are separate contracts and the district court read
the Participant Contract to include the Terms and Conditions. We
pause to note that the Participant Contract (as far as the record
shows) does not explicitly incorporate the Terms and Conditions by
reference. However, the Terms and Conditions note that the
"Participant Contract . . ., inclusive of these Terms [and]
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 Further, courts will "interpret a contract according to

the plain meaning of its language, and will avoid any

interpretation that renders a provision meaningless." Me. Woods

Pellet Co., LLC, 401 F. Supp. 3d at 200 (quoting Richardson v.

Winthrop Sch. Dep't, 983 A.2d 400, 403 (Me. 2009)). The

interpretation of contractual language "is a matter of law for the

court to decide." Fowler v. Boise Cascade Corp., 948 F.2d 49, 54

(1st Cir. 1991) (citing Portland Valve, Inc. v. Rockwood Sys.

Corp., 460 A.2d 1383, 1387 (Me. 1983)). If the language is

unambiguous, then, under Maine law, the judge can interpret the

contract as a matter of law to see if a breach occurred. See Am.

Prot. Ins. Co., 814 A.2d at 993 (quoting Acadia Ins. Co. v. Buck

Constr. Co., 756 A.2d 515, 517 (Me. 2000)). Whereas if the court

finds the contractual language to be ambiguous, then "its

interpretation is a question of fact for the factfinder." Id.

Recall that Paragraph 14 of the Participant Contract

states that "[i]n the unlikely event that a program is cancelled

(due to low enrollment or any other reason), CIEE will refund all

payments received but will have no further liability to

Conditions," is the controlling document for interpreting program
policies. See Crowe, 334 F.3d at 137 ("[I]n the absence of
anything to indicate a contrary intention, instruments executed at
the same time, by the same contracting parties, for the same
purposes, and in the course of the same transaction will be
considered and construed together.") (quoting Hilltop Cmty. Sports
Ctr., Inc., 755 A.2d at 1062).
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participant." While Paragraph 14 explains when a refund may be

issued due to program cancellation, the Terms and Conditions also

contain a section addressing program cancellation. The first

paragraph of the "Program Cancellation" section of the Terms and

Conditions provides for refunds in the event a program is canceled

prior to its start:

CIEE reserves the right to cancel a CIEE Study
Abroad program due to insufficient enrollment
or other factors beyond its control. . . . In
the unlikely event that a program is canceled
prior to the start of the program, due to low
enrollment or any other reason, CIEE will
refund all payments received but will have no
further liability to participant.

(Emphasis added.)

The second paragraph of that same section sets out CIEE's

obligations when an emergency requires cancellation of a program

after its start and prior to the end of an academic term:

If an emergency requires that a program be
canceled following the program start date and
prior to the end of an academic term, CIEE
will make reasonable efforts to make
alternative arrangements in order to allow
students to complete their academic work, but
cannot guarantee that full or partial credit
will be obtained. If alternative arrangements
cannot be made, CIEE will make reasonable
efforts to collect documentation of student
work completed to date. CIEE will share this
information with the home institutions of
students enrolled in the program so they will
be able to evaluate, per home institution
policies, whether to grant their students any,
full, or partial credit for work completed.

(Emphasis added.)
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 Lastly, the Terms and Conditions provide that "in the

case of conflict among . . . [CIEE's] policies," the Participant

Contract, "inclusive of these Terms & Conditions, first applies.

It is the sole responsibility of the student to become familiar

with all CIEE and host institution policies."

Zhao bases her breach of contract claim on the fact that

CIEE failed to fulfill its obligation to offer a study abroad

experience to participants and, instead, migrated its programs

into an online platform of lesser quality and without the true

abroad experience including activities and excursions. She claims

that under Paragraph 14 she and similarly situated students have

an unambiguous right to receive compensation, in the form of a

refund, for the difference in value between the services CIEE

agreed to deliver and those she and the other students received

after the program moved online.4

CIEE contends the district court correctly applied basic

rules of contract interpretation to find the Participant Contract

unambiguous. Hence, it properly looked to the Participant

4 Zhao also quibbles with some language from the district court
opinion saying that her claim for refunds "rises and falls" upon
the interpretation of Paragraph 14. She points out that even
absent that provision she could have plead breach of contract for
CIEE's failure to provide educational services as it promised.
True or not, the district court was merely saying that Zhao's claim
depends on how the court reads Paragraph 14, not that Zhao needed
a refund provision to state a claim. We move on.

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Contract's whole context and structure rather than reading

Paragraph 14 in isolation. CIEE also claims that by signing the

Participant Contract, inclusive of the Program Cancellation

section of the Terms and Conditions, Zhao and other participants

agreed to the modification of the study abroad program after its

start date without any refund provision. To CIEE, the absence of

a refund provision in the Program Cancellation section's second

paragraph "unambiguously demonstrates that the parties did not

intend for CIEE to provide a refund if a program is cancelled after

its start date." After a de novo review of the district court

decision and record, we agree.5

We start, as we always do, with the contract's plain

language, which, remember, we interpret as a question of law. See

Crowe, 334 F.3d at 136. A contractual provision in Maine is

"considered ambiguous if it is reasonably possible" that the

"provision [has] at least two different meanings." Id. at 135

(quoting Villas by the Sea Owners Ass'n v. Garrity, 748 A.2d 457,

461 (Me. 2000)). We conduct this review for ambiguity from the

"perspective of 'an ordinary or average person.'" Id. (quoting

5 In CIEE's brief and at oral argument, the company explained the
practicalities of the no-refund provision. CIEE called itself a
"pass through organization," which had prearranged payments to
independent contractors for providing housing, transportation,
food, and entertainment services to the students. CIEE could
not recoup a refund on some of those services and therefore it did
not pocket all of the money the company declined to refund.
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Alternative Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267

F.3d 30, 34 (1st Cir. 2001) (applying Maine law)). But even from

that perspective, the contract unambiguously provides that Zhao

could only expect a refund if the program were cancelled prior to

the start of her study abroad experience.

Paragraph 14 certainly seems expansive at first glance.

It calls for refunds "due to low enrollment or any other reason,"

but contractual interpretation does not start and end on reading

one phrase in isolation. See id. at 137. The rest of Paragraph

14 provides support for the view that the provision is limited to

events before a program begins. Aside from the "any other reason"

descriptor, Paragraph 14 focuses on there being a "minimum number

of participants" so that the program can move forward.

This interpretation gains support when we look to the

more specific contractual provisions of the Program Cancellation

section of the Terms and Conditions. See Buck Constr. Co., 756

A.2d at 517-18 (noting that more specific contractual provisions

inform the meaning of more general language); Dow v. Billing, 224

A.3d 244, 250–51 (Me. 2020) ("[S]pecific terms and exact terms are

given greater weight than general language." (quoting Restatement

(Second) of Contracts § 203(c) (Am. Law Inst. 1981))). The first

paragraph of the Program Cancellation section contains language

mirroring Paragraph 14's "due to low enrollment or any other

reason" clause. The Program Cancellation section's first

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paragraph then adds the more specific limitation that refunds are

available when "a program is canceled prior to the start of the

program, due to low enrollment or any other reason." (Emphasis

added.) The second paragraph of the Program Cancellation section

discusses what occurs if a program is "cancelled following the

program start date." (Emphasis added.) As quoted above, the

paragraph does not provide for a refund in that instance, instead

listing out how "CIEE will make reasonable efforts to make

alternative arrangements" so that students can complete their

coursework. This paragraph's silence regarding refunds when read

in connection with the first paragraph's express limitation about

refunds only permits a single interpretation; CIEE had no

contractual duty to provide refunds to students, like Zhao, when,

as here, the program cancellation occurred after the program's

start date. Cf. Stone v. U. S. Envelope Co., 111 A. 536, 537 (Me.

1920) (agreeing to certain stock security rights implied that the

contract did not provide for other stock participation); NLRB v.

SW Gen., Inc., 137 S. Ct. 929, 940 (2017) (holding that "[t]he

force of any negative implication . . . depends on

context.")(quotation omitted).

In transitioning its programs to an online platform so

that Zhao and other participants could complete their academic

work, CIEE complied with the second paragraph of the Program

Cancellation section and with Paragraph 14. CIEE acted accordingly

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because the paragraph "did not create any binding terms [regarding

refunds] that [CIEE] could have breached." Hirschfeld v. Athena

Point Lookout, LLC, No. 1:18-cv-00203-GZS, 2018 WL 5848968, at *3

(D. Me. 2018) (citing Me. Mun. Emps. Health Tr. v. Maloney, 846

A.2d 336, 338 (Me. 2004) (dismissing a breach of contract claim

because the contract did not create the duty to reimburse which

defendant had allegedly breached)).6

The district court thus did not err when it held that

Paragraph 14 was limited by other provisions of the Participant

Contract, namely the unambiguous language in the Terms and

Conditions' Program Cancellation section. More so considering that

the Participant Contract and its addendums must be read together.

See Crowe, 334 F.3d at 137. Therefore, CIEE did not breach the

Participant Contract when it migrated Zhao and other participants'

coursework online but did not issue refunds for undelivered

services.

6 Zhao also contends we should interpret the contract favorably
towards her because it is an adhesion contract. See Barrett v.
McDonald Invs., Inc., 870 A.2d 146, 150–51 (Me. 2005); Dairy Farm
Leasing Co. v. Hartley, 395 A.2d 1135, 1139–40 n.3 (Me. 1978).
However, where contractual language has an indisputable plain
meaning, we need not adopt the reasonable expectations of the less
powerful contracting party because both parties would have the
same interpretation of unambiguous language. See Gove v. Career
Sys. Dev. Corp., 689 F.3d 1, 7-8 (1st Cir. 2012) (quoting Barrett,
870 A.2d at 150–51); see also Gamma–10 Plastics, Inc. v. Am.
President Lines, Ltd., 32 F.3d 1244, 1253 (8th Cir. 1994) (noting
that "[a]lthough a bill of lading is a contract of adhesion, the
language . . . is clear and we can only interpret it to mean what
it says"); Crowe, 334 F.3d at 137.
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 Other Arguments Related to Liability Limitation Clauses

In its Motion to Dismiss, CIEE argued that certain

paragraphs in the Participation Contract that limit CIEE's

liability for injuries or losses resulting from pandemics, among

other events outside of CIEE's control, supported its position

that the contract unambiguously does not require CIEE to provide

refunds after the start date of a study abroad program.7 In

7 Paragraph 18 of the Participant Contract provides that CIEE is
not responsible for injury, losses, or damages due to causes beyond
its direct control such as "epidemics":

Without limitation, CIEE is not responsible for any
injury, loss, or damage to person or property, death,
delay, or inconvenience in connection with the provision
of any goods or services occasioned by or resulting from,
but not limited to, acts of God, force majeure, acts of
government . . . epidemics or the threat thereof,
disease, lack of access to or quality of medical care,
difficulty in evacuation in case of a medical or other
emergency, or for any other cause beyond the direct
control of CIEE.

(Emphasis added.)

Likewise, Paragraph 19 provides that a participant "understand[s]
that perceived or actual epidemic . . . can delay, disrupt,
interrupt or cancel programs" and they "agree to assume all risk
of any such problems which could result from any such occurrences."

Lastly, Paragraph 23 explains that a participant will hold CIEE
harmless for events outside its control, including "pandemics,"
which disrupt or result in the cancelation of study abroad
programs:

[U]understand[s] that perceived or actual events (such
as, but not limited to, political turmoil / unrest,
economic collapse, environmental issues, natural
disasters, pandemics, epidemics, university strikes,
terrorist events, governmental travel warnings, and many
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response, Zhao posited that these liability limitations, if read

to prohibit refunds, "creat[ed] an ambiguity . . . for the fact

finder to resolve "when compared with Paragraph 14's broad refund

language. The district court agreed with CIEE.

We can once more rely on basic principles of contract

law to demonstrate why these liability limitation paragraphs do

not affect our interpretation of Paragraph 14 and the Program

Cancellation section paragraphs. As noted, in Maine law the more

specific contractual language controls the more general. See

Billing, 224 A.3d at 250–51. The liability limitation paragraphs

discuss "loss," "assum[ing] all risk," and "hold[ing] harmless";

they say nothing about refunds. Paragraph 14 and the Program

Cancellation section, on the other hand, focus on refunds (as

discussed above). We therefore needed only to rely on those

provisions and not the liability limitation paragraphs to have

concluded that the Participant Contract and its Terms and

Conditions unambiguously do not require CIEE to provide Zhao with

a refund when her program was cancelled following the start date.

Continuing on, Zhao also avers that if these liability

limitation paragraphs can be interpreted to permit CIEE not to

other events outside CIEE’s control, such as those
described in paragraphs 18-19, 21-22) can delay,
disrupt, interrupt or cancel programs. I agree to hold
harmless CIEE from any such actual or perceived events.

(Emphasis added.)
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refund her (as the district court concluded), they would constitute

unenforceable liquidated damages provisions. Her opening brief

suggested that we remand to grant her leave to amend her complaint

so that she can seek declaratory judgment to that effect. However,

in her reply brief and at oral argument, Zhao pivoted and

disclaimed any independent assertion that the paragraphs were

unenforceable liquidated damages clauses. Rather, she argued that

the district court's interpretation of CIEE's refund

responsibilities would lead to unreasonable results because those

paragraphs would prevent aggrieved students from recovering in a

whole host of situations not present here. In other words, she

used the unreasonable result as a way to argue for her preferred

interpretation of Paragraph 14. In any event, even if we permitted

remand, Zhao would lose because the paragraphs cannot be liquidated

damages clauses.

Maine law provides that liquidated damages compensate

injured parties for damages suffered when a contract is breached.

See Denutte v. U.S. Bank, N.A., 213 A.3d 619, 627 (Me. 2019). They

are meant to indemnify the non-breaching party for the breaching

party's actions. See id. at 628. The Participant Contract's

liability limitation paragraphs hold CIEE harmless for a range of

injuries associated with events outside of CIEE's control. They

are not intended to make CIEE whole for breaches by participants.

They do not compensate or indemnify CIEE if a participant breaches

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the agreement or withdraws from a program. They are liability

limitations, not liquidated damages clauses. The cases cited by

Zhao are inapposite.

Zhao's opening brief also argued the district court's

interpretation of the liability limitation paragraphs would make

the contract unconscionable and thus unenforceable in a set of

factual circumstances not present here (namely, if CIEE cancelled

the program after day one). As with her claim regarding liquidated

damages, Zhao's reply brief and her statements at oral appear to

have waived any argument that the contract is unconscionable. But

even if Zhao has not waived her claim, we see no reason to remand

to permit Zhao to amend her complaint. For one, we once more note

that these liability limitation provisions say nothing about

refunds. For another, Zhao's contentions would fail as a matter

of law.

There are two types of unconscionable

provisions: procedural and substantive. The party alleging

unconscionability bears the burden of establishing either type.

See Blanchard v. Blanchard, 148 A.3d 277, 282 (Me. 2016). In

Maine, "[p]rocedural unconscionability is broadly conceived to

encompass not only the employment of sharp practices and the use

of fine print and convoluted language, but a lack of understanding

and an inequality of bargaining power." Id. at 283 (quoting Am.

Airlines, Inc. v. Wolens, 513 U.S. 219, 249 (1995)). There is no

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evidence at the time they signed the contract that Zhao or any

other program participant were subjected to "sharp practices" by

CIEE or that they could not understand the contract. The relevant

contractual language was not hidden in fine print. Nowhere is

this clearer, as CIEE posits in its brief, than the top of the

very first page of the Participant Contract, which includes the

following language in bold: "This form is important. It includes

terms and conditions and releases CIEE from liability. All

participants MUST sign this form." Furthermore, the parties'

relative bargaining powers are insufficient standing alone to show

procedural unconscionability because the record does not

demonstrate that Zhao (the weaker party) signed the contract as a

result of any "exploitation" or "undue influence" from CIEE.

Kourembanas v. InterCoast Colls, 373 F. Supp. 3d 303, 321 (D. Me.

2019) (applying Maine law) (citing Restatement (Second) of

Contracts § 208, cmt. d (unequal bargaining power not alone enough

to set aside unfavorable contract terms)).

As to substantive unconscionability, Zhao claims it is

unconscionable that the Participant Contract does not require

refunds after the program start date because that interpretation

would create a windfall for CIEE by retaining all payments made by

participants. Yet Zhao fails to evince how the Participant

Contract is an agreement which is "so one-sided as to shock the

conscience." Blanchard, 148 A.3d at 283 (first quoting Barrett,

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870 A.2d at 156 (Alexander, J., concurring) and then citing Bither

v. Packard, 98 A. 929, 932 (Me. 1916) (noting that to void the

contract as "unconscionable . . . shocking the conscience must be

apparent.")). The allocation of risk in the liability limitation

provisions and in the refund provisions does not rise to the level

of unconscionability. See id.; see also Lloyd v. Sugarloaf

Mountain. Corp., 833 A.2d 1, 4 (Me. 2003) (upholding liability

release when the language "expressly spell[ed] out with the

greatest particularity the intention of the parties contractually

to extinguish negligence liability." (quoting Doyle v. Bowdoin

Coll., 403 A.2d 1206, 1208 (Me. 1979))).

We see no reason that these liability limitation

provisions affect whether Zhao can receive a refund under Paragraph

14 and we also see no reason to remand for her to seek declaratory

judgment about liquidated damages clauses or unconscionability

claims.

CONCLUSION

For the foregoing reasons, we affirm the district

court's dismissal of Zhao's complaint. Each party to bear its own

costs.

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