          United States Court of Appeals
                     For the First Circuit


No. 19-1624

    TRISTAN SQUERI, individually and on behalf of all others
similarly situated; MADELINE MCCLAIN, individually and on behalf
of all others similarly situated; GEORGE O'DEA, individually and
           on behalf of all others similarly situated,

                     Plaintiffs, Appellants,

                               v.

    MOUNT IDA COLLEGE; THE MOUNT IDA COLLEGE BOARD OF TRUSTEES;
  CARMIN C. REISS, individually and as a representative of Mount
 Ida College Board of Trustees; BARRY BROWN, individually and as
        a representative of Mount Ida College; JEFF CUTTING,
  individually and as a representative of Mount Ida College; RON
AKIE, individually and as a representative of Mount Ida College;
  JASON POTTS, individually and as a representative of Mount Ida
                              College,

                     Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Richard G. Stearns, U.S. District Judge]


                             Before

                   Lynch, Stahl, and Kayatta,
                         Circuit Judges.


     Joshua N. Garick, with whom Law Offices of Joshua N. Garick,
P.C., Andra Hutchins, and Kerstein, Coren & Lichtenstein LLP were
on brief, for Tristan Squeri, Madeline McClain, and George O'Dea.
     Alice W. Yao and Daniel A. Zibel on brief for the National
Student Legal Defense Network, amicus curiae.
     Katherine D. Shea and Pyle Rome Ehrenberg PC on brief for
SEIU Local 509 and SEIU Local 888, amici curiae.
     Thomas R. Murphy and Law Offices of Thomas R. Murphy, LLC on
brief for the Hildreth Institute, amicus curiae.
     Jeremy Sternberg, with whom Paul G. Lannon, Jr., John
Monaghan, Christopher M. Iaquinto, and Holland & Knight LLP were
on brief, for Mount Ida College, the Mount Ida College Board of
Trustees, Carmin C. Reiss, Jeff Cutting, and Ron Akie.
     Elizabeth E. Olien, with whom Howard M. Cooper and Todd &
Weld LLP were on brief, for Barry Brown.
     Tamsin R. Kaplan, with whom Emily P. Crowley and Davis, Malm
& D'Agostine, P.C. were on brief, for Jason Potts.
     Ben Robbins and Martin J. Newhouse on brief for the New
England Legal Foundation, amicus curiae.


                         March 25, 2020
            LYNCH, Circuit Judge.       In May 2018, Mount Ida College,

a higher education institution with its principal place of business

in     Foxborough,    Massachusetts,     and     its   campus    in   Newton,

Massachusetts, permanently closed after six weeks' notice to its

students that it was closing.        Mount Ida students in good academic

standing were offered admission to UMass Dartmouth to continue

their studies.       Some students faced obstacles transferring their

credits, finding comparable degree programs, completing their

degrees on time, and receiving adequate scholarships and financial

aid.    By the time of the notice of closing, the transfer deadlines

for many other institutions were imminent or had already passed.

            Students Tristan Squeri and George O'Dea, and expected

student Madeline McClain, brought a putative class action under

Massachusetts law against Mount Ida, its Board of Trustees, and

five Mount Ida administrators: President Barry Brown; Chairwoman

of the Board of Trustees Carmin Reiss; Vice President, CFO, and

Treasurer Jason Potts; Dean of Admissions and Vice President of

Enrollment Management Jeff Cutting; and Chief Academic Officer and

Provost Ron Akie.

            Underlying all the claims were allegations that the

defendants knew that Mount Ida was on the brink of insolvency but

concealed     this    information,     instead     assuring     current   and

prospective students that Mount Ida was financially stable.               The

suit brought seven Massachusetts state law claims: breach of


                                     - 3 -
fiduciary     duty,    violation         of     privacy,    fraud,      negligent

misrepresentation, fraud in the inducement, breach of contract,

and violation of Massachusetts General Laws ch. 93A.                  The district

court granted the defendants' motion to dismiss the complaint.

See Squeri v. Mount Ida Coll., No. 18-12438, 2019 WL 2249722, at

*6 (D. Mass. May 24, 2019).        We affirm.1

                                         I.

A.   Facts


             We   recite   the   facts    as    alleged    in   the   plaintiffs'

complaint, accepting all well-pleaded facts as true and drawing

all reasonable inferences in favor of the non-moving party. Penate

v. Hanchett, 944 F.3d 358, 362 (1st Cir. 2019).                  On a motion to

dismiss, we may also consider "documents incorporated by reference

in [the complaint], matters of public record, and other matters

susceptible to judicial notice."              Lydon v. Local 103, Int'l. Bhd.

of Elec. Workers, 770 F.3d 48, 53 (1st Cir. 2014) (alteration in

original) (quoting Giragosian v. Ryan, 547 F.3d 59, 65 (1st Cir.

2008)).

             Mount Ida was established in 1899, enrolled in 2017 about

1300 students, and granted four-year bachelor's degrees as well as




     1    We express appreciation for the amicus briefs from the
Hildreth Institute, the National Student Legal Defense Network,
SEIU Local 509 and SEIU Local 888, and the New England Legal
Foundation.


                                    - 4 -
associate degrees and master's degrees.                 As early as 2014, Mount

Ida was in "financial distress" and "teetering on insolvency."

The defendants were aware of Mount Ida's financial position but

did not give direct notice of this to current or prospective

students.

              Mount Ida filed annual audited financial statements with

the Massachusetts Attorney General's Office (AGO), as it was

required to do by Massachusetts law.                See Mass. Gen. Laws ch. 12,

§ 8F.       The financial statements filed with the AGO showed that

Mount Ida operated at a deficit of $543,511 in 2014, $6,024,258 in

2015, and $1,488,272 in 2016.2                Under Massachusetts law, these

filings      must    be    publicly    available.        See    id.   § 8M     ("[A]ll

registration statements, annual reports and all other information

required to be filed under [§§ 8 to 8M] . . . shall be public

records      . . .   and    shall     be   open    to   the    general   public      for

inspection at such time and under such conditions as the division

may prescribe.").           These returns are available online from the

Massachusetts AGO.          The audited return completed in 2017 for the

year 2016 was so filed and available online.                      Federal law also

requires nonprofits to file annual returns.                   See 26 U.S.C. § 6033.

Such information must be available for public inspection.                      See id.

§ 6104(b); 26 C.F.R. § 301.6104(d)-1.


        2 The 2016 operating deficit was reduced                         due    to    an
$8,114,300, one-time gift made to the school.


                                           - 5 -
            In August 2017, Mount Ida submitted an Institutional

Self-Study to the New England Association of Schools and Colleges

(NEASC), its regional accreditation agency which is recognized by

the Department of Education under federal law.             See 20 U.S.C.

§ 1099b.     The Self-Study was not provided to students at Mount

Ida, but to NEASC.   The report evaluated Mount Ida on NEASC's nine

standards for accreditation.     In the Self-Study, the defendants

reported to NEASC that Mount Ida had experienced "significant

enrollment, program and aptitude growth," that pursuant to its

multi-year    financial   strategy   Mount   Ida   would    generate   an

operating surplus in 2021, that Mount Ida was in full compliance

with its debt obligations, and that it was "confident that it will

raise sufficient funds to meet its liquidity needs."

            The financial resources section of the document further

stated that "[f]rom June 30, 2012 through June 30, 2016, operating

revenues have increased from $35.8 million to $41.7 million while

operating expenses have increased from $35.3 million to $43.2

million."    The report forecasted that Mount Ida would continue to

operate at a deficit until 2021, stating that "[b]ecause of many

years of deferral of physical maintenance, low enrollment and

failure of program expansion, the College's existing economic

model does not anticipate a surplus from core operations until FY

2021."




                                - 6 -
           On February 24, 2018, President Brown announced via

email a possible merger between Mount Ida and Lasell College to

the student body.    The email stated that the purpose of the merger

"would be to create a more robust learning experience that would

take advantage of the distinctiveness of the programs, curricula

and experiences of each institution."          The email did not mention

"that Mount Ida was in financial distress, that it was teetering

on insolvency, or that it was seriously contemplating bankruptcy."

           On March 23, 2018, President Brown emailed the Mount Ida

student body announcing that Mount Ida and Lasell College had

"ended discussions on the previously announced exploration of

merger." The email further stated that "[o]ver the past six years,

Mount Ida has undergone extraordinary growth," and specifically

highlighted the increases in Mount Ida's enrollment, scholastic

aptitude, and programmatic offerings.          The email then stated that

"[a]ll   these   gains   have   caused   the   national   ratings   of   the

institution to rise to among the top 30 in the North Region as

reported in the US News and World Report Rankings."         The email did

not mention Mount Ida's financial distress.

           On April 6, 2018, President Brown again emailed the

Mount Ida student body and announced that "Mount Ida College has

reached an agreement with the University of Massachusetts . . .

under which UMass Amherst will acquire our Newton campus."               The

email stated that "[w]hile this will mean that Mount Ida will end


                                  - 7 -
its role as an independent college, students in good academic

standing     will    be   offered      automatic      acceptance     into    UMass

Dartmouth."

             The announcement occurred without a closing plan having

been submitted earlier to the Massachusetts Department of Higher

Education    (DHE).       See    610 Mass.     Code    Regs.    § 2.07(3)(f)(2)

(requiring an institution that "knows that it may close" to submit

a closing plan to DHE "as far as possible in advance of the closure"

and to "arrange . . . to safeguard the needs of students by

organizing educational transfer opportunities, and ensuring the

preservation of student records").             In the months leading up to

the April 6, 2018, announcement, Mount Ida "had been accepting new

students, offering substantial scholarships to new students, and

outwardly proceeding as usual to the beginning of a new fall term."

             In   the   days    following    the   announcement      of   closing,

students received individualized information packages about the

process    for    enrolling     at   UMass   Dartmouth.        The   personalized

packages from UMass Dartmouth contained information about Mount

Ida   students'      majors,     estimated     credits,     transcripts,      and

financial aid packages.          Mount Ida students had not given prior

consent to the defendants to release these records to UMass

Dartmouth.




                                       - 8 -
            On April 27, 2018,3 Mount Ida provided written notice of

the sale to the AGO pursuant to Massachusetts General Laws ch. 180,

§ 8A(c),    which   requires     a   public   charity   intending     to   sell

substantially all of its property and assets to give thirty days'

notice to the AGO.      Mount Ida told the AGO that the transaction

with UMass needed to close by May 16, 2018, or it would be unable

to meet its financial obligations and would file for bankruptcy.

            The AGO responded by letter on May 15, 2018, agreeing to

waive the thirty-day prior notice requirement due to the exigency

of the circumstances. The AGO noted at the beginning of the letter

that the closing was "extremely unfair" to students as well as

"disorderly and harmful."            The AGO letter then assessed and

approved the proposed sale and concluded that Mount Ida would be

receiving    fair   value   in   the    transaction.      As   part   of    the

transaction, UMass Amherst would receive all of Mount Ida's real,

personal, and intellectual property in exchange for UMass Amherst

paying off Mount Ida's liabilities and providing Mount Ida with

funds to meet its obligations to faculty and staff.            UMass Amherst

also agreed to continue Mount Ida's veterinary technology program

until its students completed the program and to provide other

schools with the necessary space and assets to continue the dental




     3    It appears from the Massachusetts AGO's May 15, 2018,
letter that the AGO became intensely involved with Mount Ida and
its Board of Trustees following the April 6, 2018 announcement.


                                     - 9 -
hygiene, funeral services, interior architecture and design, and

fashion design programs.

            UMass Dartmouth agreed to offer admission to all Mount

Ida students in good academic standing.         All four UMass campuses

made commitments as part of the transaction: each campus agreed to

waive application and deposit fees for Mount Ida students, to

commit to ensuring that Mount Ida students understood how many

credits would transfer and count toward degree requirements, to

accept Mount Ida general education courses toward fulfilling UMass

general education requirements, to charge in-state tuition to all

Mount Ida students who were citizens or permanent U.S. residents,

and to ensure that the financial aid packages of Mount Ida students

would   not    be   adversely   affected   by   late   applications   or

enrollments.    UMass Amherst agreed to become the "institution of

record" for Mount Ida's student records.

            On May 16, 2018, Mount Ida and UMass Amherst finalized

the sale.     Mount Ida officially closed the following day.      About

250 Mount Ida students transferred to UMass Dartmouth out of 1389

total students.     Other students faced obstacles transferring to

new institutions given the short period of notice of Mount Ida's

closing. As said, some students faced difficulties finding similar

programs, transferring their credits, completing their chosen




                                 - 10 -
degrees      on     time,    and   receiving       comparable    financial      aid   and

scholarships.4

B.      Procedural History of the Litigation

                  The plaintiffs filed this lawsuit in federal district

court on November 26, 2018, asserting jurisdiction under the Class

Action      Fairness        Act,   28 U.S.C.      § 1332(d),     and    amended   their

complaint         on   January 5,     2019,       to   assert   the    seven    theories

described earlier.            After briefing and oral argument, on May 24,

2019,       the    district    court   in     a    sixteen-page       written   opinion

dismissed the complaint.             See Squeri, 2019 WL 2249722, at *6.

                  The amended complaint first alleged that the defendants

violated the plaintiffs' right to privacy under Massachusetts

General Laws ch. 214, § 1B by transferring the plaintiffs' private

financial and academic information to UMass Dartmouth without the

students' consent.            The district court held that as a matter of

law the plaintiffs had failed to allege that the disclosure was




        4 The AGO sent a letter to the Commissioner of the
Massachusetts DHE, but showed no copy to Mount Ida, on March 13,
2019. The letter included findings from the AGO's investigation
of Mount Ida and recommendations for the DHE on steps it could
take to protect students in the future.      The recommendations
included "[i]nforming trustees and officers of nonprofit higher
education   institutions  about   their  obligations,"   ensuring
institutions prepare necessary contingency plans, ensuring
notification to students when the risk of closing is sufficiently
imminent, monitoring institutions relying on "nontraditional or
extraordinary transactions" to address budget deficits, and
increasing the awareness of higher education consultants of the
factors placing educational institutions at risk.

                                        - 11 -
unreasonable        because      Mount       Ida     transferred      the   records      to

facilitate the plaintiffs' enrollment at UMass Dartmouth, which

was    a   "legitimate      purpose."              Further,   the     transfer   was     in

accordance        with    both    the     AGO's       May 15,       2018,   letter     and

Massachusetts regulations, 610 Mass. Code Regs. § 2.07(3)(f)(2).

                As to the fraud, negligent misrepresentation, and fraud

in the inducement claims, asserted in counts two, three, and four,

the amended complaint alleged that the defendants had held Mount

Ida out as a "viable institution" despite the fact that they knew

or    should     have    known   that    it    was     failing      financially.       The

complaint cited the facts that up until Mount Ida's closing, the

college accepted new students, sought enrollment deposits for the

fall    2018     entering     class,     advertised       and    awarded    substantial

scholarships, scheduled admitted student days, omitted information

about the Lasell merger from the 2017 Self-Study report, and failed

to inform the DHE of its financial distress.                        The complaint also

stated that the statement in the March 23, 2018, email about the

rating     of    Mount    Ida    by     US    News     and    World    Reports     was    a

misrepresentation.          The plaintiffs alleged that they relied to

their detriment on these representations.

                The district court concluded that these claims also

failed as a matter of law because the plaintiffs had not identified

"any statement that can be shown to have actually been false" and

failed to make out a claim of fraud by omission because Mount Ida's


                                         - 12 -
audited    financial   information   was   publicly   available.   Even

assuming the defendants had concealed material information, the

court held the plaintiffs failed to allege that the defendants had

an actionable duty to disclose such information as needed to

support these tort claims.

            As for the claim of breach of fiduciary duty, the amended

complaint alleged that the defendants "held a unique position of

influence and trust with [the] students" and so owed the students

a fiduciary duty and were in breach of this duty by "[f]ailing to

apprise the [plaintiffs] in a timely manner of the financial

viability of Mount Ida, . . . [e]ngaging in the sale of the Newton

campus without first providing for the needs of the students,

. . . [d]ivulging, without authorization, [their] sensitive and

private financial and academic information, . . . [r]ejecting a

merger deal with Lasell College[,] . . . and [p]lacing Mount Ida’s

needs ahead of the needs of the [plaintiffs]."

            The district court held that this claim failed as a

matter of law because "Massachusetts courts have consistently held

that no fiduciary relationship exists between a student and his or

her college."     Any fiduciary duty owed by the defendants, the

district court reasoned, "was owed to Mount Ida as a corporate

entity."

            On the breach of contract claim, the amended complaint

alleged that the plaintiffs had formed a contract with Mount Ida


                                - 13 -
(without specifying how) and that the plaintiffs "fulfilled their

contractual obligations to Mount Ida by remitting tuition payments

. . . for the purpose of receiving a degree in their selected

field."      The    amended      complaint       asserted    that    the   defendants

"breached    their     contractual        duty    by   failing      to   provide       the

education bargained for and paid for by the [p]laintiffs."

             The     district      court        concluded     that       these     "bare

allegations [did] not suffice for a breach of contract claim"

because   the      complaint     failed    to     identify    the    terms       of    the

"contract, when it was formed, and who negotiated it."                          Further,

the   amended      complaint     failed    to    plausibly    allege       an    implied

contract.

             Finally,      the    amended        complaint    alleged       that       the

defendants      violated    Massachusetts         General    Laws    ch. 93A,         § 9,

alleging that the defendants were engaged in "trade [or] commerce"

as required for a ch. 93A claim because: (1) Mount Ida competed

with other schools for the enrollment of students by offering

scholarships, advertising the school, holding admitted student

days, and selling promotional merchandise; (2) it offered for sale

a unique product to students; and (3) it received a financial

benefit from students.

             The district court concluded that this claim failed

because the defendants were not engaged in "trade or commerce."

Rather, the actions they took were in furtherance of, or at least


                                      - 14 -
incidental to, Mount Ida's core educational mission and so, under

state law, ch. 93A did not apply.

                                            II.

              "We review the grant of a motion to dismiss de novo."

See Starr Surplus Lines Ins. Co. v. Mountaire Farms Inc., 920 F.3d

111, 114 (1st Cir. 2019).             To overcome a motion to dismiss, the

plaintiffs'         complaint        "must         contain     sufficient          factual

matter . . . to state a claim to relief that is plausible on its

face."     Saldivar v. Racine, 818 F.3d 14, 18 (1st Cir. 2016)

(alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009)) (internal quotation marks omitted).                       "If the factual

allegations in the complaint are too meager, vague, or conclusory

to   remove    the    possibility      of    relief     from    the   realm     of   mere

conjecture, the complaint is open to dismissal."                      Barchock v. CVS

Health Corp., 886 F.3d 43, 48 (1st Cir. 2018) (quoting SEC v.

Tambone,      597    F.3d     436,    442    (1st     Cir.     2010)).        We     apply

Massachusetts substantive law.                Katz v. Pershing, LLC, 672 F.3d

64, 72 (1st Cir. 2012).

                                            III.

              We    dispose    of    the    preliminary      issues    first,       before

turning to the merits of the state law claims.

              The district court did not err in referring to public

records or documents referenced in the complaint, including the

Massachusetts AGO May 15, 2018, letter, Mount Ida's financial


                                           - 15 -
statements, and other NEASC reports.5                   The court may consider

"official     public       records    . . .     [and]       documents    sufficiently

referred to in the complaint."                 Freeman v. Town of Hudson, 714

F.3d 29, 36 (1st Cir. 2013).

             The amended complaint specifically referenced the August

2017 Self-Study report submitted to NEASC multiple times and cited

it in support of the fraud and misrepresentation claims.                        Further,

both the Massachusetts AGO's May 15 and March 13 letters, as well

as Mount Ida's publicly filed audited financial documents required

by state law, constitute public records.6                     The two letters were

written by the AGO itself while the financial documents were

audited and submitted to the AGO pursuant to a statutory duty and

made available to the public.

             Likewise, the plaintiffs argue that there are material

disputes    of    fact     as   to    at    least    some    claims     which    survive

dismissal.       Not so.    The district court correctly applied Iqbal's

plausibility      standard      and    took    the    facts    as     pleaded    by   the




     5    The plaintiffs are incorrect in contending that the
district court applied the wrong rule.       The district court
expressly stated that "[d]espite plaintiffs' objection, the court
may consider [the AGO] letter, along with Mount Ida's financial
statements and the NEASC reports, because they are public records
or are referenced in the Amended Complaint."
     6    We need not decide if NEASC reports are "public records"
because we reach the same conclusion without considering the NEASC
reports that were not referenced in the complaint.



                                           - 16 -
plaintiffs and found no claims were stated as a matter of law.        We

add that we see no disputes as to any material facts.

                                  IV.

A.   The Breach of Fiduciary Duty Claim Fails

             The plaintiffs' primary argument on appeal is that both

the individual defendants and Mount Ida itself owed current and

prospective Mount Ida students a fiduciary duty.        They argue the

district court erred by ending its duty analysis after concluding

that the relationship between student and college does not give

rise to a fiduciary duty to students as a matter of law.            They

assert that since the "[s]tudents pled that the relationship

between the parties was founded on faith, trust and confidence,"

those allegations alone give rise to a fiduciary duty claim.         The

argument is based on a misunderstanding of Massachusetts law. They

further argue that "this Court should hold as a matter of law that

colleges   and   universities   owe   a   fiduciary   duty   to   [their]

students."

             Massachusetts law firmly establishes that there is no

such fiduciary duty between Mount Ida's officers or trustees and

Mount Ida students on the claims here.         See Morris v. Brandeis

Univ., 804 N.E.2d 961, 961 (Mass. App. Ct. 2004) (unpublished)

(tbl.) (concluding that "[t]here was no fiduciary relationship

between a student and a university administrator/advisor" in a

case involving suspension of a student for plagiarism).           Indeed,


                                - 17 -
the fiduciary duty on the individual defendants is imposed by

statute, Mass. Gen. Laws ch. 180, § 6C, and is owed to the college.

Common law courts are not free to impose additional and likely

conflicting fiduciary duties not imposed by statute.            In ch. 180,

§ 6C, the Massachusetts legislature has imposed a fiduciary duty

on   directors   and   officers,    but     that   duty   is   owed   to   the

institution, here Mount Ida.       That duty is to act "in good faith

and in a manner [the director or officer] reasonably believes to

be in the best interests of the corporation, and with such care as

an ordinarily prudent person in a like position . . . would use

under similar circumstances."       Id.

           The duty is not owed to students.         See Estate of Moulton

v. Puopolo, 5 N.E.3d 908, 921 (Mass. 2014) ("Directors of a

corporation stand in a fiduciary relationship to that corporation

and have a duty to protect its interests 'above every other

obligation.'" (quoting Am. Disc. Corp. v. Kaitz, 206 N.E.2d 156,

160 (Mass. 1965))).    The interests of the students alleged on the

facts here are in direct conflict with those of the institution.

Early disclosure of financial distress might well have endangered

the ability of the institution to recover and made the financial

distress even worse. The Massachusetts AGO recognized in its March

13, 2019, letter that "premature notice of financial instability

can result in a 'self-fulfilling prophecy.'"              Indeed, even the

plaintiffs recognize that the trustees ran the risk of students


                                   - 18 -
deciding   not   to   enroll   if   a   gloomy   picture   of   Mount   Ida's

financials were painted.

           Further, Mount Ida itself did not owe a fiduciary duty

to the students, and we reject the plaintiffs' assertion that this

court should "expand the law" and establish a fiduciary duty

between a college and its students.          "Federal courts are not free

to extend the reach of state law," Doe v. Trs. of Bos. Coll., 942

F.3d 527, 535 (1st Cir. 2019), at least not where there are

Massachusetts law and precedent suggesting the contrary, see Mu v.

Omni Hotels Mgmt. Corp., 882 F.3d 1, 9 (1st Cir.), review denied,

885 F.3d 52 (1st Cir. 2018).7

           The Massachusetts legislature just after these events

occurred addressed the issue of how to improve the financial

stability of higher education institutions going forward.                The

legislature decided yet again in the new legislation not to impose

the duty that the plaintiffs now advocate should be imposed on the

college itself. See An Act to Support Improved Financial Stability

in Higher Education, 2019 Mass. Acts ch. 113.         Rather, the statute




     7    We also deny the plaintiffs' motion to certify this
question to the Supreme Judicial Court (SJC). The plaintiffs chose
to be in federal court. They did not ask the district court to
certify any question. Nor did they develop this request in their
appellate briefs. The motion was first made after briefing and
shortly before oral argument. In addition, we see no question to
certify.   Massachusetts law is clear that no fiduciary duty to
plaintiffs exists in these circumstances.



                                    - 19 -
mandates that every higher education institution post financial

information         on     its   website   and   "immediately    notify    the

[Massachusetts Board of Higher Education (BHE)8] of any known

financial liabilities or risks that are reasonably likely to result

in the imminent closure of the institution or otherwise negatively

affect the institution’s ability to fulfill its obligations to

current and admitted students."            Id.

                 Massachusetts courts have repeatedly stated that the

relationship between an institution of higher education and its

students is generally not a fiduciary one.               See Williamson v.

Bernstein, No. 951471, 1996 WL 1185104, at *3 (Mass. Super. Ct.

Feb.       20,     1996)    ("The   relationship    between     students   and

universities is generally contractual rather than fiduciary.");

see also Morris, 804 N.E.2d at 961 (stating that plaintiff had

failed "to assert any particular facts in this case that would




       8  The old and new laws imposed new duties on the BHE. The
new statute requires the BHE to annually assess the finances of
such institutions and to determine if an institution "may be at
risk of imminent closure." 2019 Mass. Acts ch. 113. Only such a
determination by the BHE triggers the obligation of the institution
to "prepare a contingency plan for closure, which shall include a
process for the institution or the board, or both, as determined
by the board, to provide appropriate notification to relevant
stakeholders, as determined by the board, including, but not
limited to, enrolled students, candidates who have submitted
applications,   recent   graduates,   faculty,   staff   and   host
communities." Id.



                                      - 20 -
warrant   the     imposition   of     a   heightened   duty   upon   [his

university]").9

          There is another reason the plaintiff students fail to

state a breach of fiduciary duty claim.        Whether viewed under the

rubric of standing or some related doctrine, Massachusetts law

restricts to the AGO the ability to pursue claims of mismanagement

of charitable organizations. See Mass. Gen. Laws ch. 12, § 8 ("The

attorney general shall enforce the due application of funds given

or appropriated to public charities within the commonwealth and

prevent breaches of trust in the administration thereof.").          The

SJC has said:

          The law has provided a suitable officer to
          represent those entitled to the beneficial
          interests in a public charity.     It has not
          left it to individuals to assume this duty, or
          even to the court to select a person for its
          performance. Nor can it be doubted that such
          a duty can be more satisfactorily performed by
          one acting under official responsibility than
          by individuals, however honorable their
          character and motives may be.




     9    While the SJC has recently recognized duties in the
context of particular individuals at colleges who fail to act
reasonably to alleviate risk where they have knowledge of a
student's high risk of suicide, no such facts are presented here.
See Nguyen v. Mass. Inst. of Tech., 96 N.E.3d 128, 142 (Mass.
2018). In Nguyen, the SJC recognized that a college has a special
relationship with a student and a corresponding duty to take
reasonable measures to prevent suicide in narrow circumstances.
Id.   Nguyen does not address the presence of a fiduciary duty
between a college and its entire student body nor does it say
anything about whether this special relationship could "give rise
to a fiduciary duty," as the plaintiffs argue.


                                    - 21 -
Weaver v. Wood, 680 N.E.2d 918, 922 (Mass. 1997) (quoting Burbank

v. Burbank, 25 N.E. 427, 428 (Mass. 1890)).              And there is no

plausible argument that the claims advanced here fall within any

special    standing     exception   articulated    by   the   Massachusetts

Appeals Court in Harvard Climate Justice Coalition v. President

and Fellows of Harvard College.       60 N.E.3d 380, 382-83 (Mass. App.

Ct. 2016) (concluding that student plaintiffs lacked standing to

pursue claims that charitable organization had been mismanaged

because they "fail[ed] to show that they [had] been accorded a

personal   right   in    the   management    or   administration   of   [the

school's] endowment that is individual to them or distinct from

the student body or public at large").10

B.   No Claim of Violation of Privacy Was Stated

            Next, the plaintiffs argue that the district court erred

in dismissing their violation of privacy claim under ch. 214, § 1B.

They argue that the issue of whether the records transfer was

"reasonable" because it had a "legitimate purpose" is a question

of fact that should have gone to a jury. They rely on a distinction

between UMass Amherst and UMass Dartmouth and argue that UMass

Dartmouth could not have received the records pursuant to a

"closing plan" or at the AGO's direction because it received the



     10   We reject any argument that the plaintiffs lack Article
III standing. It is clear that the plaintiffs have sufficiently
alleged injury to have Article III standing.



                                    - 22 -
records before the AGO coordinated a plan for Mount Ida's closing.

Further,   UMass     Dartmouth       was   not      the    eventual      successor

"institution of record" for Mount Ida; rather, UMass Amherst

fulfilled this role.       Neither argument has merit.

           "To sustain a claim for invasion of privacy [under

G.L. c. 214, § 1B], the invasion must be both unreasonable and

substantial or serious."         Ortiz v. Examworks, Inc., 26 N.E.3d 165,

173 (Mass. 2015) (alteration in original) (quoting Nelson v. Salem

State   Coll.,     845    N.E.2d    338,    348     (Mass.    2006)).       While

"[g]enerally, whether an intrusion qualifies as unreasonable, as

well as either substantial or serious, presents a question of

fact," Polay v. McMahon, 10 N.E.3d 1122, 1126 (Mass. 2014), the

SJC has made clear that such claims may be dismissed if they fail

to allege an actionable interference with privacy, see Ortiz, 26

N.E.3d at 173.

           In    Ortiz,    the     SJC   affirmed    the     dismissal    of   the

plaintiff's § 1B claim against the defendant-physician because

another Massachusetts statute had authorized the defendant to

perform the medical examination that the plaintiff had claimed

violated his privacy.       Id. at 173-74.        The SJC cited Schlesinger

v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 567 N.E.2d 912,

915 (Mass. 1991), for the proposition that an "action [is] not [a]

'serious' or 'substantial' interference with privacy if, among

other things, it had a legitimate business purpose."                    Ortiz, 26


                                     - 23 -
N.E.3d   at    173-74.      The   SJC   concluded   that   "[b]ecause   the

examination was authorized under [the statute] the invasions of

privacy associated with its taking place were 'justified.'"             Id.

at 174 (quoting Schlesinger, 567 N.E.2d at 914-15).

              Here, the plaintiffs' own allegations establish there

was a legitimate business purpose.          As in Ortiz, the transfer of

financial and academic information was "justified" because it was

authorized under Massachusetts law.           See 610 Mass. Code Regs.

§ 2.07(3)(f)(2).         Massachusetts regulations require a closing

institution "to safeguard the needs of students by organizing

educational transfer opportunities, and ensuring the preservation

of student records."        Id.   That purpose did not depend on there

being a final closing plan in place.          The transfer's purpose was

to enable Mount Ida students to continue their educations at UMass

and to preserve their student records.

              We also reject the plaintiffs' argument that only UMass

Amherst, not UMass Dartmouth, could receive their records.              The

University of Massachusetts is a state system with five campuses,

and not a set of independent colleges. See Mass. Gen. Laws ch. 75,

§ 1 ("There shall be a University of Massachusetts, consisting of

campuses to be maintained at Amherst, Boston, Dartmouth, Lowell,

and Worcester, which shall continue as a public institution of

higher learning . . . .").




                                   - 24 -
C.   No Claims Were Stated for Fraud, Negligent Misrepresentation,
     or Fraud in the Inducement

          The plaintiffs challenge the dismissal of their fraud

and misrepresentation claims, arguing that the defendants made

"false and misleading statements" and committed fraud by omission

by failing to disclose Mount Ida's financial distress.11

          For   a   claim   of   fraud,   a   plaintiff,   among   other

requirements, "must establish that the defendant 'made a false

representation of a material fact with knowledge of its falsity.'"

Russell v. Cooley Dickinson Hosp., Inc., 772 N.E.2d 1054, 1066

(Mass. 2002) (quoting Danca v. Taunton Sav. Bank, 429 N.E.2d 1129,

1133 (Mass. 1982)).   Negligent misrepresentation does not require

that the defendant have "an intent to deceive or actual knowledge

that a statement is false;" instead, it only requires that the

defendant fail to exercise "reasonable care or competence in

obtaining or communicating the information."        Cumis Ins. Soc'y,

Inc. v. BJ's Wholesale Club, Inc., 918 N.E.2d 36, 47-48 (Mass.

2009) (quoting Nycal Corp. v. KPMG Peat Marwick LLP., 688 N.E.2d

1368, 1371 (Mass. 1998)).

          The plaintiffs have failed to plead any false statement

made by any of the defendants.       They assert that the March 23,

2018, email announcing the end of the Lasell merger talks was false


     11   Like the district court, we do not reach the issue of
whether the plaintiffs' fraud claims were subject to and met the
requirements of Federal Rule of Civil Procedure 9(b).


                                 - 25 -
because President Brown "announced that Mount Ida would remain a

top   30    regional    school."        But    contrary        to    the    plaintiffs'

characterization, President Brown's email actually stated that

Mount Ida's gains over the past six years in enrollment and

programmatic offerings had "caused the national ratings of the

institution to rise to among the top 30 in the North Region as

reported in the US News and World Report Rankings." This statement

was   not    false.        The    statement      was    about       a   past     rating.

Additionally,      none    of     the   plaintiffs      allege       they    relied    on

statements made by Brown between the March 23, 2018, email and the

closing announcement two weeks later.                   Further, the plaintiffs

point to no other statements by any of the defendants that were

allegedly false.

             The    plaintiffs'         argument        that        their      negligent

misrepresentation claim does not fail lacks merit.                             Negligent

misrepresentation         still    requires      a   false      statement       by    the

defendants.     Id. at 48.

             The plaintiffs have also failed to plausibly allege

fraud by omission.          The plaintiffs allege that despite "facing

imminent     failure,     the     defendants     were    variably          touting    the

college's viability to current and prospective students."                         "Fraud

by omission requires both concealment of material information and

a duty requiring disclosure."            Sahin v. Sahin, 758 N.E.2d 132, 138

n.9 (Mass. 2001).         Further, "[f]ragmentary information may be as


                                        - 26 -
misleading as active misrepresentation, and half-truths may be as

actionable as whole lies."         Kannavos v. Annino, 247 N.E.2d 708,

711-12 (Mass. 1969).

            But here there were no half-truths, nor was there a duty

to disclose.       The plaintiffs have not identified any statements by

the defendants about Mount Ida's financial situation that could be

construed     as   half-truths.     In   Mount   Ida's   audited   financial

information, the defendants accurately reported that Mount Ida had

operated at a deficit in 2014, 2015, and 2016.           Further, President

Brown's statement about Mount Ida's ranking was not forward-

looking, and only reported a fact about Mount Ida's current

standing.12

            Further, the plaintiffs have failed to plausibly allege

that any of the defendants had a duty to disclose this information.

They rely on Knapp v. Neptune Tower Associates, 892 N.E.2d 820

(Mass. App. Ct. 2008), which stated that a duty to disclose arises

where "(i) there is a fiduciary or other similar relation of trust

and confidence, (ii) there are matters known to the speaker that

he knows to be necessary to prevent his partial or ambiguous

statement     of   the   facts   from   being   misleading,   or   (iii)   the

nondisclosed fact is basic to, or goes to the essence of, the


     12   Further, the 2017 Self-Study, which was directed at
NEASC and was not a statement to students, stated that Mount Ida
had been operating at a deficit and would continue to do so until
2021.


                                    - 27 -
transaction."         Id. at 824.        As said, there was no fiduciary duty

here.         Further,   none      of   the    defendants       made   a    "partial    or

ambiguous" statement about Mount Ida's finances.                        Finally, Mount

Ida's        financial   distress       did    not   go   to    the    essence    of   the

transaction.          Here, the essence of the transaction with the

students       was    that   the   students      would    receive       a   semester    of

education in exchange for a semester of tuition.                            Mount Ida's

financial distress did not impact this transaction, as the students

did receive a semester of education before the school closed.

D.      No Breach of Contract Claim Was Pleaded

                The plaintiffs assert that the district court erred

because they plausibly "pled a breach of either the implied or

express        contractual    agreements        between    the    students       and   the

college."13

                Under Massachusetts law, the elements of a breach of

contract claim are that "there was an agreement between the

parties;        the   agreement     was       supported    by    consideration;        the

plaintiff was ready, willing, and able to perform his or her part

of the contract; the defendant committed a breach of the contract;

and the plaintiff suffered harm as a result."                          Bulwer v. Mount


        13We reject the plaintiffs' assertion that the district
court applied the wrong pleading standard by stating that the
plaintiffs' contract claim failed for "lack of specificity." The
district court correctly laid out the plausibility standard at the
beginning of its decision and was simply stating that the amended
complaint failed to allege any specific details about the claim.


                                          - 28 -
Auburn Hosp., 46 N.E.3d 24, 39 (Mass. 2016).                  Further, "[i]n the

absence of an express agreement, a contract implied in fact may be

found to exist from the conduct and relations of the parties."

Sullivan v. O'Connor, 961 N.E.2d 143, 153 (Mass. App. Ct. 2012)

(quoting LiDonni, Inc. v. Hart, 246 N.E.2d 446, 449 (Mass. 1969)).

"[I]t is essential to state with 'substantial certainty' the facts

showing   the     existence    of    the    contract    and   the   legal   effect

thereof."    Tel. Answering Serv. of Bos., Inc. v. New Eng. Tel. &

Tel. Co., 267 N.E.2d 918, 919 (Mass. 1971) (quoting Pollock v. New

Eng. Tel. & Tel. Co., 194 N.E. 133, 136 (Mass. 1935)).

            The    plaintiffs'       contract    pleadings       were   that     they

"applied for admission to Mount Ida," they were each accepted, and

that "a contract was formed."             It does not allege the terms of any

such contract or that specific terms required earlier disclosure

of the closing. The amended complaint also makes passing reference

to enrollment deposits and the fact that students gave up the

chance to enroll at other schools by choosing Mount Ida but fails

to explain how these actions formed an express or implied contract

which   obliged     Mount     Ida    to    provide     earlier   notice     of   its

difficulties to its students than it did.               We agree that there was

insufficient specificity.           And there is no dispute that Mount Ida

delivered a semester of education before it closed, if those were

the terms of any contract.            These allegations do not plausibly

allege a breach of implied contract, let alone an express contract,


                                      - 29 -
that the college contracted to give earlier notice than it did or

that there was a contract for four years of education in exchange

for only one semester of tuition.14

E.    The Chapter 93A Violation Claim Was Properly Dismissed

           Finally, the plaintiffs argue that the district court

erred in concluding that the allegedly deceptive actions the

defendants took were in service of Mount Ida's core educational

mission and so were not in "trade or commerce," as required by

ch. 93A, § 2(a).   They assert that a "factual inquiry" is required

to resolve such a claim and that the district court "cannot conduct

such a detailed factual inquiry during the . . . motion to dismiss

stage."

           Chapter 93A   makes     unlawful     "[u]nfair   methods    of

competition and unfair or deceptive acts or practices in the

conduct of any trade or commerce."            Mass. Gen. Laws ch. 93A,

§ 2(a).    It is well established law that while "[a]n entity's

'status as a charitable corporation is not . . . dispositive of

the    issue   whether   ch. 93A    applies[,]'     . . .   [i]n      most


      14  The plaintiffs also assert that the defendants breached
the implied duty of good faith and fair dealing. The plaintiffs'
conclusory allegations also fail to state such a claim. See A.L.
Prime Energy Consultant, Inc. v. Mass. Bay Transp. Auth., 95 N.E.3d
547, 561 (Mass. 2018) ("Simply put, 'the implied covenant of good
faith and fair dealing cannot create rights and duties that are
not already present in the contractual relationship.'" (quoting
Eigerman v. Putnam Invs., Inc., 877 N.E.2d 1258, 1265 (Mass.
2007))).



                                 - 30 -
circumstances, a charitable institution will not be engaged in

trade or commerce when it undertakes activities in furtherance of

its core mission." Linkage Corp. v. Trs. of Bos. Univ., 679 N.E.2d

191, 207-09 (Mass. 1997) (quoting Planned Parenthood Fed'n of Am.

v. Problem Pregnancy of Worcester, Inc., 498 N.E.2d 1044, 1051

(Mass. 1986)).    Such claims may properly be dismissed for failing

plausibly to allege that the defendant is engaged in trade or

commerce.    See Poznik v. Mass. Med. Prof. Ins. Ass'n, 628 N.E.2d

1, 3-4 (Mass. 1994).

            Indeed, the Linkage court stressed the broad meaning of

the term education, as distinguished from "trade or commerce" in

footnote thirty-six:

            We have given broad meaning to the term
            "education" in order to implement legislative
            goals and to allow education reasonable
            freedom to develop, and we have held that
            vocational and technical teaching and courses
            constitute education. See, e.g., Assessors of
            Bos. v. Garland Sch. of Home Making, 6 N.E.2d
            374,   386   (Mass.   1937)   (instruction   in
            homemaking skills is educational); Mount
            Hermon Boys' Sch. v. Gill, 13 N.E. 354, 358
            (Mass.   1887)   (for   purposes   of   statute
            exempting educational property from taxation,
            education    includes     teaching    practical
            skills).    As Justice Knowlton phrased the
            concept of education, "according to one of
            Webster's definitions," in the Mount Hermon
            decision, "[t]o educate . . . is to prepare
            and fit for any calling or business, or for
            activity and usefulness in life." Id. at 357.

Linkage, 679 N.E.2d at 208 n.36 (alterations in original) (internal

quotation marks omitted).


                                - 31 -
             This case does not fall within the exception to the

normal rule recognized in Linkage.    Linkage was a suit not brought

by students at BU complaining about their education, and that fact

alone makes Linkage distinguishable.      Id. at 195.   Rather the suit

was brought by a private commercial company that had a contract to

run an offsite training program at a conference center with BU,

which was alleged to have been wrongfully terminated by BU.        Id.

at 195-96.    The SJC held the jury had adequate evidence to find a

breach of contract and that BU had benefitted from transactions

done on its behalf by Linkage and could not therefore repudiate

the contract.     Id. at 202-05.   It also upheld the trial judge's

conclusion that ch. 93A, § 11 applied because the two parties'

transaction was "of a commercial nature" and the parties were

acting in a business context and BU was engaged in "trade or

commerce" in its operation of the conference center.       Id. at 207-

08.

             The SJC was careful to distinguish the BU facts from

situations in which the defendant is, as here, a "statutorily

mandated nonprofit" whose actions were "motivated by legislative

mandate [and] not [for] business or personal reasons."       Id. at 208

(quoting Poznik, 628 N.E.2d at 4).       The factors considered by the

SJC as to business context are as follows:

             The question whether a transaction occurs in
             a business context must be determined by the
             facts of each case. Begelfer v. Najarian, 409


                                - 32 -
                  N.E.2d 167, 176 (Mass. 1980). The factors we
                  consider   include   "the   nature   of   the
                  transaction, the character of the parties and
                  their activities, and whether the transaction
                  was   motivated   by  business  or   personal
                  reasons." All Seasons Servs., Inc. v. Comm'r
                  of Health & Hosps. of Bos., 620 N.E.2d 778,
                  779 (Mass. 1993).

Poznik, 628 N.E.2d at 3.              None of these factors permit a finding

of business context here.

                  Certainly, the words "trade" and "commerce" in ch. 93A,

§ 1(b) do not traditionally mean the provision of education to

students at a not-for-profit college.                 See Planned Parenthood, 498

N.E.2d at 1052.

                  The   plaintiffs    argue    that    the   defendants   violated

ch. 93A by failing to follow through on the Lasell merger, failing

to disclose Mount Ida's financial distress, and by transferring

their financial and academic information to UMass Dartmouth.                    But

what the plaintiffs allege to be actionable were all activities

taken        in   furtherance    of    Mount   Ida's     charitable   mission    of

education.15            Unlike in Linkage where BU possessed a "business

motivation[]" to create a new revenue stream with a business

partner, 679 N.E.2d at 209, Mount Ida's allegedly actionable

activities involved directly encouraging students to attend Mount



        15The fact that Mount Ida may sell a small amount of
merchandise with the school's name is distinct from the question
here of whether statements directly related to attracting students
are actionable under ch. 93A.



                                        - 33 -
Ida so that they could receive an education and ensuring that Mount

Ida students could continue their educations after Mount Ida's

closing.

            The plaintiffs' argument that the phrase "advertising

. . . of any services" in the text of ch. 93A, § 1(b) means that

they state a ch. 93A claim as to services provided by a not-for-

profit   has   been   squarely    rejected    by   the       SJC.   See   Planned

Parenthood, 498 N.E.2d at 1050-51 (determining that a charitable

corporation, which had engaged in advertising of its services, was

not engaged in trade or commerce).

            It is true that the BHE regulations, 610 Mass. Code Regs.

§ 2.07(3)(g)(2), state that "[t]he educational institution shall

not engage in untrue and misleading advertisements which are

otherwise prohibited by [ch. 93A]."          But the plaintiffs do not and

could not argue this regulation adds to the requirements of ch. 93A

as set forth by the legislature and the courts.

            And there is even stronger reason to conclude that

Massachusetts has not authorized a private right of action under

ch.   93A   for   these   types   of   actions     by    a    nonprofit   school.

Regulation of not-for-profit colleges as to such matters as timing

of notice of closing has been assigned to the Massachusetts BHE.

See Mass. Gen. Laws ch. 69, § 30A; see also 610 Mass. Code Regs.

§§ 2.01-2.14.




                                   - 34 -
                                  V.

          Since our decision disposes of the claims against all of

the defendants, including the individual defendants and the Board of

Trustees, we do not reach the other defenses that they have raised.16

          We also reject the plaintiffs' request for leave to amend.

The "plaintiffs were put on notice of the deficiencies in the

complaint by the motion to dismiss.     If they had something relevant

to add, they should have moved to add it then." Fire & Police Pension

Ass'n of Colo. v. Abiomed, Inc., 778 F.3d 228, 247 (1st Cir. 2015).

They failed to do so.   Instead, they stated only that they requested

leave to amend if the court found their complaint lacking.     This was

insufficient.   See Gray v. Evercore Restructuring L.L.C., 544 F.3d

320, 327 (1st Cir. 2008) (concluding that a similar statement "[did]

not constitute a motion to amend a complaint" and "the district court

cannot be faulted for failing to grant such leave sua sponte").17

          Affirmed.




     16   To the extent that certain defendants argue that they
are volunteers serving a not-for-profit organization entitled to
the protections of the Volunteer Protection Act, 42 U.S.C.
§ 14503(a), we note the recent holding by the SJC that the
Volunteer Protection Act provides immunity from suit, not merely
immunity from liability. Lynch v. Crawford, 135 N.E.3d 1037, 1041
(Mass. 2019).
     17   The defendants'     request    for   sanctions   against   the
plaintiffs is denied.



                               - 35 -
