Mark Shaffer v. George Washington University

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 14, 2022 Decided March 8, 2022

No. 21-7040

MARK SHAFFER, INDIVIDUALLY AND ON BEHALF OF ALL
OTHERS SIMILARLY SITUATED, ET AL.,
APPELLANTS

v.

GEORGE WASHINGTON UNIVERSITY AND BOARD OF TRUSTEES
OF GEORGE WASHINGTON UNIVERSITY,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-01145)

Daniel J. Kurowski argued the cause for appellants Mark
Shaffer, et al. With him on the briefs were Steve W. Berman,
Glenn Ivey, and Andrew S. Levetown.

Alan Schoenfeld argued the cause for appellees. With him
on the brief were Jamie Gorelick, Bruce M. Berman, Susan
Pelletier, and Swapna Maruri.

Jessica L. Ellsworth and Nathaniel A. G. Zelinsky were on
the brief for amici curiae American Council on Education and
18 Other Higher Education Associations in support of
appellees.
 2

No. 21-7064

MAAZ QURESHI, INDIVIDUALLY AND ON BEHALF OF ALL
OTHERS SIMILARLY SITUATED, ET AL.,
APPELLANTS

v.

AMERICAN UNIVERSITY,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-01141)
(No. 1:20-cv-01454)
(No. 1:20-cv-01555)

Roy T. Willey argued the cause for appellants Maaz
Qureshi, et al. With him on the briefs was Curtis A. Boykin.

Alan Schoenfeld argued the cause for appellee. With him
on the brief were Bruce M. Berman and Susan Pelletier.

Jessica L. Ellsworth and Nathaniel A. G. Zelinsky were on
the brief for amici curiae American Council on Education and
18 Other Higher Education Associations in support of appellee.

Before: MILLETT and JACKSON, * Circuit Judges, and
EDWARDS, Senior Circuit Judge.

*
Circuit Judge Jackson was a member of the panel at the time
the case was argued but did not participate in this opinion.
 3
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.

EDWARDS, Senior Circuit Judge: The two cases that we
consider in this appeal, like many others that have been
litigated across the country, are by-products of the COVID-19
pandemic. As described by the amici higher education
institutions:

In March 2020, America faced a rapidly-evolving
crisis. For colleges and universities, the challenges
were acute. Dormitories, classrooms, research
laboratories, libraries, and arenas risked spreading
COVID-19, endangering students, faculty, staff[,] and
surrounding communities. To safeguard public health
and to comply with shelter-in-place orders, higher
education institutions pivoted in the moment. They
physically closed campuses in large part, while
searching for and inventing solutions to allow them to
continue to serve their students in unpredictable and
unprecedented times. For colleges and universities—
like so many other sectors of society—virtual
platforms were part of the answer. [Online]
[p]rograms like Citrix, Microsoft Teams, and Zoom
meant students could complete the last portion of their
spring semester courses without interruption.

Br. for Amici Curiae American Council on Education and 18
Other Higher Education Associations 8. These colleges and
universities contend that their “rapid transition [to] online
[educational services, in place of in-person educational
activities] was no small feat. . . . [And] [a]s a result of these
efforts, . . . the class of 2020 graduated on time at institutions
around the country.” Id. at 8-9.
 4
Many students and their parents see the matter very
differently. For example, the Appellants in one of the cases
here on appeal contend that:

[T]he COVID-19 global pandemic disrupted the daily
lives of nearly all Americans. . . . [Students] who paid
tens of thousands of dollars in tuition and fees to get
an in-person educational experience, including all of
the services, opportunities, and activities that come
therewith, [had] that in-person experience ripped
away. Students . . . could have enrolled in one of the
country’s many online learning institutions – at a far
cheaper cost – but opted to pay a premium for an in-
person educational experience. Many students
undertook significant debt to make these tuition and
fee payments. Nonetheless, [the universities have]
refused to refund a penny of the tuition students . . .
paid for an in-person educational experience.

Qureshi Appellants’ Br. 1.

The Appellees in the cases before the court, American
University (“American”) and George Washington University
(“GW”) (together, “Universities” or “Defendants”), responded
to the COVID-19 pandemic, just as did many other schools, by
transitioning from in-person to online learning programs and
largely shutting down campus activities. In two separate
actions, students and parents (collectively, “Plaintiffs”) filed
complaints in the District Court claiming that the Universities
violated contractual commitments to their students when they
transitioned to online educational activities and declined to
refund any portion of their students’ tuition payments and fees.
Plaintiffs also alleged, in the alternative, that the transitions to
online learning unjustly enriched the Universities. Defendants
moved to dismiss the actions for failure to state a claim, and
 5
the District Courts granted their motions. See Shaffer v. George
Washington Univ., Civ. No. 20-1145, 2021 WL 1124607, at
*2-3 (D.D.C. Mar. 24, 2021), reprinted in Shaffer Joint
Appendix (“J.A.”) 1936-39; Crawford v. Presidents & Dirs. of
Georgetown Coll., 537 F. Supp. 3d 8, 17-30 (D.D.C. 2021)
(“Qureshi”), reprinted in Qureshi Deferred Appendix (“App.”)
55-78. Plaintiffs now appeal. Applying District of Columbia
law to the novel and challenging issues that these cases present,
we affirm in part and reverse in part the judgments of the
District Courts and remand the cases for further proceedings.

First, we affirm the District Courts’ dismissals of Plaintiffs’
claims that the Universities breached express contracts
promising in-person educational instruction, activities, and
services in exchange for tuition and fees. The materials cited
by Plaintiffs do not support these claims. However, we hold
that Plaintiffs’ complaints plausibly allege that the Universities
breached implied-in-fact contracts for in-person education.
Plaintiffs’ factual allegations, combined with the reasonable
inferences drawn from them, suffice to support their claims that
the Universities promised to provide in-person instruction in
exchange for Plaintiffs’ tuition payments.

Plaintiffs also plausibly allege that the Universities
impliedly promised to provide on-campus activities and
services in exchange for some of the student fees at issue. The
Shaffer Plaintiffs state a claim for breach of contract as to the
additional course fees, but not as to the student association fee.
The Qureshi Plaintiffs state a claim for breach of contract as to
the sports center fee, but not as to the activity fee, technology
fee, or Metro U-Pass fee.

We therefore reverse the District Courts’ dismissals of
Plaintiffs’ implied-in-fact contract claims with respect to
tuition and some – but not all – of the fees at issue. We note
 6
that the Universities will likely have compelling arguments to
offer that the pandemic and resulting government shutdown
orders discharged their duties to perform these alleged
promises. However, because the Universities have not raised
any such defense before this court, we leave the issue to the
District Courts to resolve in the first instance.

Furthermore, we reverse the District Courts’ dismissals of
Plaintiffs’ unjust enrichment claims. Plaintiffs were free to
raise unjust enrichment claims in the alternative to their breach-
of-contract claims. The complaints contain sufficient plausible
factual allegations to reasonably infer that Plaintiffs provided
the benefit of tuition and certain fees under a contract that does
not cover the issue in dispute, or is invalid, subject to
avoidance, or otherwise ineffective. This inference does not
affect the plausibility of the breach-of-contract claims because
Plaintiffs are allowed to advance inconsistent and alternative
theories of recovery. The District Courts must first determine
the contours of any promises governing in-person educational
instruction and activities, the Universities’ duties to perform
any such promises, and the Universities’ rights (if any) to retain
already-paid tuition and fees even if on-campus instruction
were cancelled. After these matters have been resolved,
Plaintiffs may then be in a position to pursue their claims for
unjust enrichment.

Next, we affirm the District Court’s dismissal of the
Qureshi Plaintiffs’ conversion claim. This claim fails because
Plaintiffs do not plausibly allege a possessory interest in a
specific, identifiable fund of money.

Finally, we reverse and remand the District Court’s
dismissal of the Qureshi Plaintiffs’ D.C. Consumer Protection
Procedures Act claim, as the trial court’s analysis turned on its
mistaken conclusion that Plaintiffs failed to plausibly allege
 7
that the University promised in-person instruction and
activities in exchange for tuition and certain fees.

I. BACKGROUND

These cases are before the court on review of motions to
dismiss. Therefore, we recite the facts as Plaintiffs allege them,
with reasonable inferences drawn in their favor. See VoteVets
Action Fund v. U.S. Dep’t of Veterans Affs., 992 F.3d 1097,
1102 (D.C. Cir. 2021).

George Washington University and American University
are institutions of higher learning located in Washington, D.C.
GW offers approximately fifty on-campus doctorate programs
and ten online doctorate programs. It offers seventy-five on-
campus undergraduate programs and nine online
undergraduate programs. GW charges significantly higher
rates for its on-campus programs than for the online
counterparts.

American also offers a variety of on-campus degree
programs. It does not offer undergraduate online degrees,
although it does offer some undergraduate online courses.
American’s Online Learning programs are “listed
independently on a separate web page, where separate policies
and cost information depend[] on the individual online
program.” Qureshi Compl. ¶ 116, App. 21.

Plaintiffs paid all tuition and fees required for enrollment
in on-campus instruction and experiences for the spring 2020
semester. On March 11, 2020, the World Health Organization
declared COVID-19 a pandemic; travel and assembly
restrictions in the United States quickly followed. In response
to the pandemic, the Universities shifted all on-campus classes
to online learning in mid-March 2020 and held classes virtually
 8
for the rest of the semester. The Universities also suspended
events and activities. Neither University offered prorated
refunds of spring 2020 tuition or of the fees at issue in these
actions.

The Shaffer Plaintiffs – GW students and parents – filed a
consolidated class action complaint in the District Court in July
2020. Their complaint alleges they “paid GW for high-quality,
in-person instruction that is no longer available to them, access
to buildings they can no longer enter, technology, programs[,]
and services that GW is no longer providing, and activities that
are no longer available,” resulting in “an enormous windfall to
GW.” Shaffer Compl. ¶ 7, J.A. 17. The complaint includes
claims for breach of express or implied contract, unjust
enrichment, and conversion. Plaintiffs seek “disgorgement and
monetary damages in the amount of prorated, unused amounts
of tuition and fees that Plaintiffs and the other Class members
paid.” Id. ¶ 8, J.A. 17.

In the District Court, GW moved to dismiss. The trial court
granted the motion, reasoning that “no plausible reading of the
university materials gives rise to an enforceable contractual
promise for in-person instruction.” Shaffer, 2021 WL 1124607,
at *2. The court also concluded that Plaintiffs’ unjust
enrichment claim was inappropriate because it required the
court to displace the terms of the alleged contract and that the
conversion claim was insufficiently distinct from the contract
claims. Id. at *3.

The Qureshi Plaintiffs – American University students –
filed a putative class action in the District Court raising similar
claims. In addition to their claims for breach of contract, unjust
enrichment, and conversion, the Qureshi Plaintiffs allege the
University violated the District of Columbia’s Consumer
Protection Procedures Act. They ask the court to require the
 9
University to “disgorge amounts wrongfully obtained for
tuition and fees,” inter alia. Qureshi Compl., App. 35.

The District Court granted American’s motion to dismiss,
concluding that the University “impliedly promised, at most, to
make a good-faith effort to provide on-campus education,
while retaining the right to deviate from the traditional model
if they reasonably deemed it necessary to do so.” Qureshi, 537
F. Supp. 3d at 22. The trial court also determined that Plaintiffs
failed to plausibly allege that the University violated promises
to provide services in exchange for the fees at issue. Id. at 27-
29. It held that Plaintiffs’ contract claims precluded their unjust
enrichment claims and that, alternatively, the students failed to
plausibly allege it was unjust under the circumstances for
American to retain their entire tuition and fee payments. Id. at
23-25, 29. The court dismissed the conversion claim because
Plaintiffs “fail[ed] to allege that they have the right to a specific
identifiable fund of money.” Id. at 25-26, 29 (internal quotation
marks and citation omitted). Finally, it dismissed the Consumer
Protection Procedures Act claim, reasoning that Plaintiffs
failed to plausibly allege the University made any false or
misleading representations or omissions regarding its tuition or
fees. Id. at 26, 29.

Before this court, the Shaffer Plaintiffs renew only their
breach-of-contract and unjust enrichment claims. The Qureshi
Plaintiffs renew their breach-of-contract, unjust enrichment,
conversion, and Consumer Protection Procedures Act claims.
The American Council on Education and eighteen other higher
education associations (collectively, “Amici”) filed amicus
briefs supporting the Universities in both actions.
 10
II. ANALYSIS

A. Standard of Review

This court reviews de novo a District Court’s grant of a
motion to dismiss for failure to state a claim. See
Khodorkovskaya v. Gay, 5 F.4th 80, 84 (D.C. Cir. 2021).

B. Breach of Contract

Plaintiffs first argue that the District Courts erred in
dismissing their breach-of-contract claims. We reject
Plaintiffs’ claims that the Universities breached express
contracts promising in-person educational activities. However,
as we explain below, Plaintiffs plausibly allege that the
Universities breached implied promises to provide in-person
education in exchange for tuition. Plaintiffs also plausibly
allege that the Universities breached implied promises to
provide on-campus services and activities in exchange for
some – but not all – of the student fees at issue.

“[T]o prevail on a claim of breach of contract, a party must
establish (1) a valid contract between the parties; (2) an
obligation or duty arising out of the contract; (3) a breach of
that duty; and (4) damages caused by breach.” Mawakana v.
Bd. of Trs. of Univ. of D.C., 926 F.3d 859, 869 (D.C. Cir. 2019)
(quoting Tsintolas Realty Co. v. Mendez, 984 A.2d 181, 187
(D.C. 2009)). “Contracts are often spoken of as express or
implied.” Restatement (Second) of Contracts § 4 cmt. a (Am.
L. Inst. 1981). “Under D.C. law, an implied-in-fact contract
contains ‘all necessary elements of a binding agreement,’
differing from other contracts ‘only in that it has not been
committed to writing’ and is instead ‘inferred from the conduct
of the parties.’” Camara v. Mastro’s Rests. LLC, 952 F.3d 372,
 11
375 (D.C. Cir. 2020) (quoting Boyd v. Kilpatrick Townsend &
Stockton, 164 A.3d 72, 81 (D.C. 2017)).

“[T]he relationship between a university and its students is
contractual in nature.” Basch v. George Washington Univ., 370
A.2d 1364, 1366 (D.C. 1977) (per curiam). “[T]he terms set
down in a university’s bulletin become a part of that contract,”
but “the mere fact that the bulletin contain[s] language” on a
topic “is not enough to support a finding that the language
amounted to a contractual obligation.” Id. at 1366-67 (citations
omitted). “Whether a given section of the bulletin also becomes
part of the contractual obligations between the students and the
university . . . depend[s] upon general principles of contract
construction.” Id. at 1367. Other university publications can
also constitute a part of the contract between a university and
its students. See, e.g., Pride v. Howard Univ., 384 A.2d 31, 34
(D.C. 1978) (accepting parties’ assumption that the Code of
Conduct printed in the student manual constituted a part of the
contract between the university and its students).

In cases “raising the construction of a student-university
contract,” “‘the document itself must be viewed as a whole’
and ‘the court should view the language of the document as
would a reasonable person in the position of the parties.’” Id.
(quoting Basch, 370 A.2d at 1367). Under District of Columbia
law, “[c]ontracts are written, and are to be read, by reference to
the norms of conduct and expectations founded upon them.
This is especially true of contracts in and among a community
of scholars, which is what a university is.” Greene v. Howard
Univ., 412 F.2d 1128, 1135 (D.C. Cir. 1969). Although “the
usual practices surrounding a contractual relationship can
themselves be raised to the level of a contractual obligation,”
Pride, 384 A.2d at 35 (citation omitted), words that merely
“express[] an expectancy” regarding future conduct do not
 12
suffice to create a contractual obligation “susceptible of
enforcement,” Basch, 370 A.2d at 1368.

Here, Plaintiffs contend that a material term of their
contracts with the Universities, whether express or implied,
was that the Universities would provide on-campus education
and experiences in exchange for their tuition and fees. We
easily conclude that Plaintiffs fail to plausibly allege the parties
had express contracts with such a term, as they point to no
language indicating that the provision of in-person education
and on-campus services was an explicit term of the parties’
agreements. Whether Plaintiffs plausibly allege that the parties
had implied contracts is a more difficult question. However, as
we explain, on the record before us, Plaintiffs’ complaints are
largely sufficient to avoid motions to dismiss for failure to state
causes of action on their implied contract claims.

We will analyze Plaintiffs’ tuition claims separately from
their fee claims.

1. Tuition

Accepting the complaints’ factual allegations as true and
drawing all reasonable inferences from those allegations in
Plaintiffs’ favor, we conclude that Plaintiffs adequately allege
the Universities breached an implied-in-fact contract to provide
in-person education in exchange for tuition. At this early stage
of the litigation, Plaintiffs need only allege “sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Plaintiffs’ tuition claims clear this hurdle.

Notably, both Universities’ communications contain
numerous references to the benefits of their on-campus
 13
instruction. For example, GW’s Bulletin highlights “on-
campus presentations by leading practitioners,” “on-campus
group supervision” for practicums and clinicals, “hands-on
training” in workshops, and “hands-on laboratory experience
using laboratory facilities.” Shaffer Compl. ¶ 47, J.A. 27-28
(alterations, omission, and citations omitted). American’s
website states that the University has “a focus on experiential
learning” and describes the campus as giving students “the
advantages of a traditional college setting,” which presumably
encompasses in-person learning. Qureshi Compl. ¶¶ 83, 87,
App. 16-17.

The Universities’ alleged pricing of online education
provides additional support for the inference that the
Universities promised in-person education in exchange for
Plaintiffs’ tuition payments. For example, “during the 2019-
2020 academic year, for graduate students in GW’s School of
Engineering & Applied Science, [GW] assessed $1,965 per
credit in tuition for on-campus students, and only $975 per
credit for students in the ‘M.S. (online)’ program.” Shaffer
Compl. ¶ 43, J.A. 26. For the spring 2020 semester, “students
enrolled in GW’s Health Sciences [undergraduate] programs—
which are only offered online—were charged $615 per credit
in tuition, or $11,070 for an 18-credit semester,” while “their
colleagues in GW’s on-campus undergraduate programs paid
between $25,875 and $29,275 in tuition.” Id.; see also Qureshi
Compl. ¶ 116, App. 21 (alleging that American’s Online
Learning programs are “listed independently on a separate web
page, where separate policies and cost information depend[] on
the individual online program”).

We also draw the reasonable inference from Plaintiffs’
factual allegations that the Universities have a historic practice
of providing on-campus instruction to students who pay the
 14
tuition associated with traditional on-campus – rather than
online – education.

Drawing all reasonable inferences from these factual
allegations in Plaintiffs’ favor and “[v]iewing the pertinent
language as a whole,” we “conclude that a reasonable person
would have assumed that the Universit[ies] intended to bind”
themselves to providing in-person education in exchange for
retaining Plaintiffs’ entire tuition payments for traditional on-
campus degree programs. See Basch, 370 A.2d at 1367;
Ninivaggi v. Univ. of Del., Nos. 20-cv-1478, 20-cv-1693, 2021
WL 3709765, at *5 (D. Del. Aug. 20, 2021) (Bibas, J., sitting
by designation) (“This history, custom, and course of dealing,
along with the school’s statements, plausibly created an
implied promise of in-person classes.”). Plaintiffs also
plausibly allege the Universities breached this duty, and that
Plaintiffs suffered harm as a result. Accordingly, they state
claims for breach of contract.

In opposition to the Plaintiffs’ complaints, the Universities
argue the “reservation of rights” provisions in their
publications undermine the plausibility of Plaintiffs’ contract
claims. The applicable provision in American’s catalog states
that the University “reserves the right to amend the policies and
information contained in the University Catalog from time to
time, with or without notice.” Qureshi, 537 F. Supp. 3d at 16.
The reservation of rights in GW’s Bulletin states: “The
University reserves the right to change courses, programs, fees,
and the academic calendar, or to make other changes deemed
necessary or desirable, giving advance notice of change when
possible.” Shaffer J.A. 54. GW makes similar statements
elsewhere in its materials. See Shaffer J.A. 90, 1918. But the
reservation language does not specifically address emergencies
or other force majeure events. In particular, it says nothing
about allocating the financial risk of those events to the
 15
students, as the Universities contend. Taking as true the
Plaintiffs’ allegations as to the course of conduct between them
and the Universities, we cannot agree with Defendants that this
language must as a matter of law be viewed by a reasonable
person as allocating the entire financial consequences of the
pandemic change to online classes to the students.

Indeed, the Universities cite nothing in their historical
courses of dealings with their students to suggest that they have
retained unfettered rights to shut down on-campus educational
activities and use online learning in its place after students have
paid tuition for traditional on-campus courses. As discussed,
Plaintiffs plausibly allege that in-person education, along with
on-campus educational activities, are the norm at both schools.

Defendants also argue that even if Plaintiffs’ have
plausibly alleged that the Universities made enforceable
promises to provide in-person education, the contract claims
nonetheless fail because Plaintiffs fail to allege cognizable
damages. Here, the Universities stress that District of Columbia
law prohibits courts from reviewing claims that test the quality
or value of the education students receive. See Allworth v.
Howard Univ., 890 A.2d 194, 202 (D.C. 2006) (“[C]oncepts of
academic freedom and academic judgment are so important
that courts generally give deference to the discretion exercised
by university officials.”). The Universities’ claims on this point
ring hollow. At bottom, Plaintiffs challenge Defendants’
failure to deliver the in-person instruction they allegedly
promised to provide and for which the students had already
paid. Determining whether the Universities in fact breached
such promises does not require this court to subjectively value
the quality of Plaintiffs’ education. And Defendants’ argument
to the contrary overlooks the fact that the Universities
themselves apparently charge different rates for online and in-
person instruction.
 16
For the foregoing reasons, we hold that Plaintiffs plausibly
allege that the Universities breached implied-in-fact contracts
to provide in-person instruction in exchange for tuition for on-
campus degree programs. It is for the District Courts to resolve
in the first instance whether the parties contracted for in-person
education as alleged. If the District Courts conclude that the
Universities made such promises – and that the legality of
providing in-person instruction was a basic assumption on
which the contracts were made – the Universities may still have
strong arguments that the pandemic and resulting government-
issued shutdown orders discharged their duties to perform. See
Restatement (Second) of Contracts § 261 (“Where, after a
contract is made, a party’s performance is made impracticable
without his fault by the occurrence of an event the non-
occurrence of which was a basic assumption on which the
contract was made, his duty to render that performance is
discharged, unless the language or the circumstances indicate
the contrary.”); id. § 264 (“If the performance of a duty is made
impracticable by having to comply with a domestic or foreign
governmental regulation or order, that regulation or order is an
event the non-occurrence of which was a basic assumption on
which the contract was made.”); Island Dev. Corp. v. District
of Columbia, 933 A.2d 340, 350 (D.C. 2007) (discussing the
elements of impossibility). The Universities did not raise this
defense before this court, and we do not reach it today.

Accordingly, we reverse the District Courts’ dismissals of
Plaintiffs’ implied-in-fact contract claims as they relate to
tuition.

2. Fees

Plaintiffs also plausibly allege that the Universities
breached promises to provide in-person activities and services
in exchange for some – but not all – of the fees at issue. The
 17
Shaffer Plaintiffs state a claim for breach of contract as to the
additional course fees, but not as to the student association fee.
The Qureshi Plaintiffs state a claim for breach of contract as to
the sports center fee, but not as to the activity fee, technology
fee, or Metro U-Pass fee.

i. George Washington University’s Fees

The Shaffer Plaintiffs aver that “[a] material term of the
bargain and contractual relationship” between the parties “was
that [GW] would provide . . . access [to] on-campus facilities
and services.” Shaffer Compl. ¶ 109, J.A. 43. They allege GW
refused to reimburse them for “the fees they paid for services
they are not being provided, events they cannot attend, and
programs and activities that have been curtailed, discontinued,
or closed.” Id. ¶ 5, J.A. 16. However, their pleading contains
few specific factual allegations about these purported fees. See,
e.g., id. ¶ 50, J.A. 28. In their briefing, Plaintiffs point to a page
of the GW Bulletin – attached as an exhibit to their complaint
– that refers to “Additional Course Fees” and a student
association fee. Id. Ex. A, J.A. 103. Because the Shaffer
Plaintiffs highlight no other specific fees, we confine our
analysis to the additional course fees and student association
fee.

As to the additional course fees, the GW Bulletin states
that “[s]ome courses carry additional fees, such as a laboratory
or material fee, charged by semester as indicated in course
descriptions.” Id. We draw the reasonable inference from this
description that at least some of these course fees were
associated with access to on-campus facilities or services. The
scope of this fee is a factual issue for the District Court to
resolve. Therefore, the Shaffer Plaintiffs state a claim for
breach of contract with respect to the additional course fees.
 18
The Bulletin provides the following description of the
student association fee: “The student association fee is fixed,
in keeping with the fixed-rate tuition plan. Undergraduate
students entering in the fall 2019 semester and all graduate
students are assessed a nonrefundable student association fee
of $3.00 per credit to a maximum of $45.00 per semester.” Id.
These express terms do not tie the Student Association Fee to
the provision of on-campus services, activities, and programs,
and Plaintiffs’ pleading is devoid of any specific factual
allegations to the contrary. Accordingly, the District Court did
not err by dismissing the breach-of-contract claim with respect
to the student association fee.

ii. American University’s Fees

The Qureshi Plaintiffs allege American promised to
“provide or make available the services, access, benefits[,]
and/or programs” associated with the fees Plaintiffs paid for the
spring 2020 semester. Qureshi Compl. ¶ 164, App. 28.
Specifically, Plaintiffs point to four mandatory fees: a sports
center fee, an activity fee, a technology fee, and a Metro U-
Pass fee.

The sports center fee “is charged to all registered students,
and is used to help pay for building maintenance and service
costs associated with the sports center complex.” Id. ¶ 161,
App. 27. “Any registered student can use the entire sports
complex facilities, including the fitness center.” Id. Although
the University states that the fee is “not a membership fee” for
the fitness center, id., we draw the reasonable inference from
Plaintiffs’ allegations that students paid the sports center fee in
exchange for access to the sports complex facilities. Because
they plausibly allege the University denied them access to these
facilities, they state a claim for breach of contract with respect
to the sports center fee.
 19
The activity fee finances “student-sponsored programs that
contribute significantly to the intellectual and social
development of the student body, serve the university academic
goals, encourage student participation and leadership, and
enhance the general campus environment.” Id. ¶ 160, App. 27.
Because we see no indication that this fee encompasses only
in-person organizations and does not support student groups
operating online, Plaintiffs fail to plausibly allege American
breached a duty to support student-run activities and programs.

The technology fee “helps to fund technology priorities,
ranging from classroom instruction, faculty research, expanded
computer labs, student portals, wireless connectivity, on-line
registrations, faster internet connectivity, server upgrades,
computer security, and administrative systems.” Id. ¶ 162, App.
27. The University’s technology services are available
“[w]hether a student lives on-campus, off-campus, or abroad.”
Id. This indicates the University charges the same fee
regardless of a student’s physical location. As such, Plaintiffs
fail to plausibly allege that the University breached the terms
of this fee during its transition to online education.

The Metro U-Pass fee is “charged to full time students
enrolled in an on-campus program” and “is valid for unlimited
Metrorail and Metrobus transportation for the duration of the
semester.” Id. ¶ 163, App. 27. These services are provided by
the Washington Metropolitan Area Transit Authority. See
Qureshi, 537 F. Supp. 3d at 29 n.12. Here, although “students
were ‘strongly encouraged’ to ‘depart campus as soon as
possible’” and “to return to their permanent homes,” Qureshi
Compl. ¶¶ 48-49, App. 8 (citation omitted), Plaintiffs do not
allege that the University prohibited students from remaining
in the Washington, D.C., metro area or revoked their access to
public transportation. Accordingly, Plaintiffs fail to state a
claim for breach of contract as to the Metro U-Pass fee.
 20
For the foregoing reasons, we reverse the District Courts’
dismissals of the implied-in-fact contract claims as to the
additional course fees in Shaffer and the sports center fee in
Qureshi. We affirm the District Courts’ dismissals of the
remaining fee claims.

C. Unjust Enrichment

Next, Plaintiffs argue that the District Courts erred by
dismissing their unjust enrichment claims. We agree.
Plaintiffs’ unjust enrichment claims have been raised as
alternative claims to their breach-of-contract claims. Plaintiffs
plausibly allege they provided the benefit of tuition and certain
fees under a contract that does not cover the issue in dispute, or
is invalid, subject to avoidance, or otherwise ineffective. As
noted above, the District Courts must first determine the
contours of any promises governing in-person education, the
retention of tuition and fees in the absence of in-person
education, and the Universities’ duty to perform any such
promises.

“Under D.C. law, ‘[u]njust enrichment occurs when: (1) the
plaintiff conferred a benefit on the defendant; (2) the defendant
retains the benefit; and (3) under the circumstances, the
defendant’s retention of the benefit is unjust.’ ‘In such a case,
the recipient of the benefit has a duty to make restitution to the
other person.’” In re APA Assessment Fee Litig., 766 F.3d 39,
45-46 (D.C. Cir. 2014) (alteration in original) (first quoting
News World Commc’ns, Inc. v. Thompsen, 878 A.2d 1218,
1222 (D.C. 2005); and then quoting 4934, Inc. v. D.C. Dep’t of
Emp’t Servs., 605 A.2d 50, 55 (D.C. 1992)) (citing Peart v.
D.C. Hous. Auth., 972 A.2d 810, 813-14 (D.C. 2009)).

“Unjust enrichment will not lie when ‘the parties have a
contract governing an aspect of [their] relation,’ because ‘a
 21
court will not displace the terms of that contract and impose
some other duties not chosen by the parties.’” Id. at 46
(alteration in original) (quoting Emerine v. Yancey, 680 A.2d
1380, 1384 (D.C. 1996)). But “[this] rule does not apply . . . if
the contract is invalid or does not cover the issue in dispute.”
Id. (citing Armenian Assembly of Am., Inc. v. Cafesjian, 597 F.
Supp. 2d 128, 135 (D.D.C. 2009)). Indeed, “[r]estitution claims
of great practical significance arise in a contractual context . . .
when a valuable performance has been rendered under a
contract that is invalid, or subject to avoidance, or otherwise
ineffective to regulate the parties’ obligations.” Restatement
(Third) of Restitution and Unjust Enrichment § 2 cmt. c. (Am.
L. Inst. 2011).

Accordingly, “[i]nsofar as the terms of the contracts
govern[]” the provision and displacement of in-person
education and services, as well as the Universities’ retention of
tuition and fees, the contracts between Plaintiffs and the
Universities may “preclude[] an unjust enrichment claim.” In
re APA Assessment Fee Litig., 766 F.3d at 47 (citing
Restatement (Third) of Restitution and Unjust Enrichment
§ 2(2)); see also Falconi-Sachs v. LPF Senate Square, LLC,
142 A.3d 550, 556 (D.C. 2016) (per curiam) (explaining that
“[t]he viability, and ultimately the success, of [a plaintiff’s]
unjust enrichment claim” depends on whether the contractual
provision at issue “is legitimate and enforceable”);
Restatement (Third) of Restitution and Unjust Enrichment
§ 2(2) (“A valid contract defines the obligations of the parties
as to matters within its scope, displacing to that extent any
inquiry into unjust enrichment.” (emphasis added)).

Here, Plaintiffs bring their unjust enrichment claims as an
alternative ground of liability in the event the District Courts
conclude that no viable contract governs the provision of in-
person education and services. See Shaffer Compl. ¶ 124, J.A.
 22
46 (“To the extent Defendants contend that the Bulletin permits
them to unilaterally and without notice change the terms under
which Plaintiffs and Class members were to receive
instruction, from on-campus to online, the promises made by
Defendants to Plaintiffs and Class members to provide on-
campus instruction were illusory and no contract exists
between the parties.”); Qureshi Compl. ¶ 173, App. 29
(pleading the unjust enrichment claim “to the extent it is
determined a contract does not exist or otherwise apply”).

In these cases, where the nature and enforceability of any
promises the Universities made remain unresolved, Plaintiffs’
alternative claims for unjust enrichment may proceed past the
pleadings stage. The Federal Rules of Civil Procedure
expressly allow parties to advance inconsistent and alternative
theories of recovery at the pleadings stage. See Fed. R. Civ. P.
8(a)(3) (“A pleading that states a claim for relief must contain
. . . a demand for the relief sought, which may include relief in
the alternative or different types of relief.”); id. 8(d)(3) (“A
party may state as many separate claims or defenses as it has,
regardless of consistency.”). Therefore, the District Courts
must address these claims.

On remand, the District Courts may well conclude that the
contracts between Plaintiffs and the Universities “do[] not
cover the issue in dispute,” In re APA Assessment Fee Litig.,
766 F.3d at 46 (citation omitted), or are “invalid, or subject to
avoidance, or otherwise ineffective to regulate the parties’
obligations,” Restatement (Third) of Restitution and Unjust
Enrichment § 2 cmt. c. For example, as previously discussed,
the trial courts may find that the Universities promised to
provide in-person education and services, but the need to
comply with government shutdown orders discharged their
duty to perform. See Section II.B.1, supra. In such a case,
claims for unjust enrichment may lie. See Restatement (Third)
 23
of Restitution and Unjust Enrichment § 34(1) (“A person who
renders performance under a contract that is subject to
avoidance by reason of mistake or supervening change of
circumstances has a claim in restitution to recover the
performance or its value, as necessary to prevent unjust
enrichment.”); Restatement (Second) of Contracts § 272 cmt. b
(discussing the availability of restitution where a party whose
duty was “discharged because of impracticability of
performance” already “received some of the other party’s
performance”); Ninivaggi, 2021 WL 3709765, at *6 (“[I]f the
students prove that [a university] promised in-person classes,
but the school shows that the promise was impossible to keep,
the students might be able to recover restitution.”). We leave it
to the District Courts to address these considerations in future
proceedings after the issues are fully briefed.

Because Plaintiffs plausibly allege they conferred a benefit
– i.e., their tuition and certain fee payments – to the
Universities and that the Universities unjustly retained those
benefits, Plaintiffs state claims for unjust enrichment.

The Universities argue that Plaintiffs fail to plausibly allege
that it was inequitable for the Universities to retain students’
entire tuition and fee payments. The Universities emphasize
that Plaintiffs do not allege that the Universities used these
payments “for any purpose other than advancing the
educational goals of the Universit[ies],” and that students
continued to receive instruction and credits toward their
degrees. Shaffer Br. for Defs.-Appellees 45; Qureshi Br. for
Def.-Appellee 45-46.

Amici also highlight the financial toll the pandemic has
taken on colleges and universities across the country. They
assert that, as a result of the transition to online learning,
“higher education institutions incurred tremendous and
 24
unexpected costs” while “revenue streams that are critical
support for institutional operations—such as income from
conferences, hospitals, dining halls, parking, athletic events,
concessions, and summer programs—dried up.” Br. for Amici
Curiae American Council on Education and 18 Other Higher
Education Associations 9.

We are sympathetic to these realities and have no doubt that
unexpected costs and declining revenues placed significant
financial strain on many colleges and universities. No one is
claiming that the Universities acted with a purpose to cheat
their students. And there is much in the record to suggest that
the Universities did the best they could to protect and advance
their students’ educational interests. But determining whether
the transition to online learning resulted in a net enrichment to
GW and American is a fact-intensive question inappropriate for
resolution at the motion-to-dismiss stage. See Ninivaggi, 2021
WL 3709765, at *6 (“If the school saved money by substituting
online for in-person classes, it might have to give those savings
back to the students.”).

For the foregoing reasons, we reverse the District Courts’
dismissals of Plaintiffs’ unjust enrichment claims.

D. Conversion and D.C. Consumer Protection
Procedures Act Claims

Finally, the Qureshi Plaintiffs ask this court to reverse the
District Court’s dismissal of their conversion and D.C.
Consumer Protection Procedures Act (“CPPA”) claims.

The conversion claim fails because Plaintiffs do not
plausibly allege a possessory interest in “a specific identifiable
fund of money.” Papageorge v. Zucker, 169 A.3d 861, 864
 25
(D.C. 2017) (citation omitted). Accordingly, we affirm the
District Court’s dismissal of the conversion claim.

The District Court’s analysis and rejection of Plaintiffs’
CPPA claim rested on its conclusion that Plaintiffs failed to
allege that the University was bound by any implied-in-fact
agreements relating to any commitments made to provide
campus-based programs and facilities throughout the semester.
See Qureshi, 537 F. Supp. 3d at 26, 29. For the reasons
discussed in our analysis of Plaintiffs’ breach-of-contract
claims, we reject that conclusion. See Section II.B, supra. We
therefore reverse the District Court’s dismissal of the CPPA
claim and remand for the trial court to reconsider American’s
motion to dismiss the CPPA claim in light of our analysis of
Plaintiffs’ breach-of-contract claims.

In addition, the District Court on remand may be required
to consider American’s alternative argument that the
University is not subject to the CPPA, a theory the District
Court declined to reach. See Qureshi, 537 F. Supp. 3d at 26
n.11. Although the D.C. Court of Appeals has held that “clearly
a nonprofit educational institution is not a ‘merchant’ within
the context of the [CPPA],” Save Immaculata/Dunblane, Inc.
v. Immaculata Preparatory Sch., Inc., 514 A.2d 1152, 1159
(D.C. 1986) (citation omitted), the D.C. Council subsequently
revised the statute “to expose nonprofits otherwise acting as
‘merchants’ to the same level of liability as for-profit
corporations,” In re APA Assessment Fee Litig., 766 F.3d at 53
(citing Nonprofit Organizations Oversight Improvement
Amendment Act of 2007, 2007 D.C. Legis. Serv. (West)). The
statute now bars a CPPA claim against a nonprofit if the claim
is “based on membership services” or “training or credentialing
activities,” inter alia. D.C. Code § 28-3905(k)(5) (2022). The
University attempts to invoke those exceptions and also argues
that the instruction it provides is not a consumer good or
 26
service within the meaning of the statute. See id. § 28-
3901(a)(2)(B)(i), (a)(7). As necessary, the District Court
should reach these arguments in the first instance on remand.
We express no opinion as to whether the CPPA claim
ultimately should survive the University’s motion to dismiss.

Accordingly, we reverse the District Court’s dismissal of
the Qureshi Plaintiffs’ CPPA claim and remand for further
proceedings.

III. CONCLUSION

For the foregoing reasons, we affirm in part and reverse in
part the District Courts’ judgments and remand for further
proceedings consistent with this opinion.