Philibotte v. Nisource Corporate Services Co. , 793 F.3d 159 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 15-1059
KIM PHILIBOTTE,
Plaintiff, Appellant,
v.
NISOURCE CORPORATE SERVICES COMPANY, d/b/a Nisource Services
Inc., d/b/a Bay State Gas Company, d/b/a Northern Utilities,
Inc., d/b/a Columbia Gas of Massachusetts; AGL RESOURCES INC.,
d/b/a Nicor Energy Services Company, d/b/a Columbia Home
Solutions,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark G. Mastroianni, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Lynch, Circuit Judges.
Valeriano Diviacchi, with whom Diviacchi Law Office was on
brief, for appellant.
J. Christopher Allen, Jr., with whom Troy K. Lieberman and
Nixon Peabody LLP were on brief, for appellee.
July 16, 2015
LYNCH, Circuit Judge. This suit, about a water heater,
concerns the appropriate standard for determining when consumer
transactions styled as "leases" are in fact disguised "credit
sales" or "retail installment sales." If so, they are subject to
disclosure requirements under federal and Massachusetts' consumer
protection laws. See Truth in Lending Act ("TILA"), 15 U.S.C.
§ 1601 et seq.; Massachusetts Consumer Credit Cost Disclosure Act
("CCCDA"), Mass. Gen. Laws ch. 140D, § 1 et seq.; Massachusetts
Retail Installment Sales and Services Act ("RISSA"), Mass. Gen.
Laws ch. 255D, § 1 et seq.
Plaintiff Kim Philibotte alleges that the defendants,
Nisource Corporate Services Company and AGL Resources, Inc.
(collectively "Nisource"), engaged in deceptive business practices
by disguising credit sales of hot water heaters as leases to avoid
making the required disclosures. The district court found that
Philibotte did not qualify for protection in light of the state-
law standards governing these transactions, and dismissed her
suit. The district court reasoned that the decision of the
Massachusetts Supreme Judicial Court ("SJC") in Silva v. Rent-a-
Center, Inc., 912 N.E.2d 945 (Mass. 2009), which controls
Philibotte's RISSA claim, also controls both her federal and state
TILA claims in light of the similarity of the RISSA and the CCCDA
(Massachusetts' TILA), which governs the applicable standard for
both Philibotte's state and federal TILA claims under an exemption
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granted to Massachusetts. See Belini v. Wash. Mut. Bank, FA, 412
F.3d 17, 20 (1st Cir. 2005) (explaining that Massachusetts has
been granted an exemption that displaces "federal [TILA] law in
favor of state [TILA] law"); see also 15 U.S.C. § 1633; 12 C.F.R.
§ 226.29(b)(2).
We affirm on alternate grounds. Philibotte's federal
claim under TILA, 15 U.S.C. § 1640, is barred by the statute of
limitations.1 As to the pendent state law claims, which are timely,
we affirm dismissal for failure to state a claim. We agree that
Silva controls Philibotte's RISSA claim, but apply the plain
statutory language to resolve her CCCDA claim on narrower grounds.
I.
"Because [Philibotte] challenge[s] the district court's
dismissal of [her] claims under Fed. R. Civ. P. 12(b)(6), we
[briefly] recite the facts and reasonable inferences raised by the
facts in [her] favor." Salois v. Dime Sav. Bank of N.Y., FSB, 128
F.3d 20, 22 (1st Cir. 1997).2
1
The district court reached the merits, but also held, in
the alternative, that Philibotte's federal claim was barred by the
statute of limitations. Unlike the district court, we do not reach
the merits of this claim.
2 These facts are taken from the redacted amended complaint,
the sealed portions being irrelevant to our resolution of this
case.
Philibotte also appealed the district court's order from
December 22, 2014, denying her motion to unseal the complaint and
the amended complaint.
We review the district court's order for abuse of discretion.
See Siedle v. Putnam Invs., Inc., 147 F.3d 7, 10 (1st Cir. 1998)
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In January 2011, Philibotte's hot water heater at her
home in Chicopee, Massachusetts, stopped working. She contacted
Columbia Gas, allegedly a Nisource entity,3 whose agents evaluated
her water heater and told her that the "best and cheapest way to
proceed" would be to "lease" a new Ruud water heater for $204,
made in twelve monthly payments of $17. They gave her such a
lease, which she signed. Philibotte alleges that the agents never
explained the terms of the lease, provided her with any TILA
disclosures, or informed her that the full retail market value of
the heater (including installation) was only $400 to $500.
("The trial court enjoys considerable leeway in making decisions
of this sort."). The crux of Philibotte's argument is that
Nisource did not present, and the district court did not consider,
"any independent basis other tha[n] the state court impoundment."
"[A]lthough the scales tilt decidedly toward transparency," we
cannot say the district court abused its discretion to keep under
seal portions of the complaint that were filed in direct
contravention of a state court order. See Nat'l Org. for Marriage
v. McKee, 649 F.3d 34, 70 (1st Cir. 2011). The "presumptive right
of access attaches to those materials 'which properly come before
the court,'" and we will not permit litigants to abuse this right
to circumvent state court procedures aimed at curbing discovery
abuse. See In re Providence Journal Co., 293 F.3d 1, 9 (1st Cir.
2002) (emphasis added) (quoting F.T.C. v. Standard Fin. Mgmt.
Corp., 830 F.2d 404, 412-13 (1st Cir. 1987)); cf. Nixon v. Warner
Commc'ns, Inc., 435 U.S. 589, 598 (1978) ("Every court has
supervisory power over its own records and files, and access has
been denied where court files might have become a vehicle for
improper purposes.").
3 We need not resolve a dispute over the relationship between
these entities in light of our holding. See Philibotte v. Nisource
Corp. Servs. Co., No. 14-11300, 2014 WL 6968441, at *1 n.1 (D.
Mass. Dec. 9, 2014).
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The lease, which was attached to the complaint, carried
a minimum term of twelve months, after which either party could
terminate the lease without penalty on 30 days written notice. It
also included a buyout option that could be exercised at any time.
The buyout price varied depending on how many monthly payments had
been made to date, decreasing over time to a minimum of $75. The
lease did not require Philibotte to return the heater upon
termination, unless demanded, and the parties dispute whether the
transaction contemplates such a return.
Neither Philibotte nor Columbia Gas terminated the lease
upon completion of the minimum term in January 2012. Philibotte
continued to lease the heater for two more years, until February
2014, when she contacted Columbia Gas to exercise her option to
purchase. She alleges that Columbia Gas's response to her request
"ma[de] all sorts of misrepresentations and waivers" to disguise
the fact that this was the culmination of a disguised credit sale.
Despite these, she signed the required "appliance sales
agreement," under which she paid an amount roughly equivalent to
the lease's buyout price.
Philibotte filed this putative class action against
Nisource in March 2014. She alleged three disclosure violations
under both federal and state law: (1) a federal claim under TILA,
15 U.S.C. § 1601 et seq.; (2) a state law claim under the RISSA,
Mass. Gen. Laws ch. 255D, § 1 et seq.; and (3) a state law claim
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under the CCCDA, Mass. Gen. Laws ch. 140D, § 1 et seq. She also
brought an unjust enrichment claim and a Massachusetts 93A claim
based on the alleged mischaracterization of the transaction as a
"lease." The complaint sought, inter alia, class certification,
compensatory and statutory damages, and equitable relief including
rescission.
The district court found that the transaction did not
qualify for protection under the standard for identifying consumer
leases subject to RISSA protection that was articulated by the SJC
in Silva v. Rent-a-Center, Inc., 912 N.E.2d 945 (Mass. 2009). See
Philibotte v. Nisource Corp. Servs. Co., No. 14-11300, 2014 WL
6968441, at *3-6 (D. Mass. Dec. 9, 2014). The district court also
found that the same standard applied, and so precluded,
Philibotte's federal TILA and Massachusetts CCCDA claims. Id.Accordingly, the court granted Nisource's motion to dismiss. Id.
at *6.
II.
The district court had jurisdiction over Philibotte's
federal TILA claim pursuant to 28 U.S.C. § 1331, and supplemental
jurisdiction under 28 U.S.C. § 1367 over the state law claims.4
See Belini, 412 F.3d at 19-20. We have jurisdiction under 28
U.S.C. § 1291.
4
It is not clear whether there is also diversity jurisdiction
over the state law claims in addition to supplemental jurisdiction,
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III.
Our review is de novo. Palmer v. Champion Mortg., 465
F.3d 24, 27 (1st Cir. 2006). We are not bound to the reasoning of
the district court, but "may affirm on any basis apparent in the
record." Debnam v. FedEx Home Delivery, 766 F.3d 93, 96 (1st Cir.
2014) (quoting Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 237
n.11 (1st Cir. 2013)). In so doing, we must draw all reasonable
factual inferences in Philibotte's favor, but "refrain from
crediting her 'bald assertions, unsupportable conclusions, and
opprobrious epithets.'" Palmer, 465 F.3d at 28 (quoting Chongris
v. Bd. of Appeals, 811 F.2d 36, 37 (1st Cir. 1987)). We begin
with the federal claim.
Philibotte's federal TILA claim is time-barred unless
brought within the one-year statute of limitations. 15 U.S.C.
§ 1640(e); McKenna v. Wells Fargo Bank, N.A., 693 F.3d 207, 211
(1st Cir. 2012) (noting that the federal statute of limitations
applies to the federal claim, even where a state exemption
applies); see also Belini, 412 F.3d at 26. This period runs "from
the date of the occurrence of the violation," 15 U.S.C. § 1640(e),
and the district court did not address the issue. Even assuming
there is not diversity jurisdiction, the facts fail to give rise
to a claim under state law without implicating substantive
questions of state law. Accordingly, we cannot say the district
court would have abused its discretion had it exercised
supplemental jurisdiction for the convenience of the parties after
dismissal of the federal claim. Cf. Desjardins v. Willard, 777
F.3d 43, 45 (1st Cir. 2015).
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which for disclosure violations in credit sales is the date the
transaction was consummated. See, e.g., King v. California, 784
F.2d 910, 915 (9th Cir. 1986); Evans v. Rudy-Luther Toyota, Inc.,
39 F. Supp. 2d 1177, 1184 (D. Minn. 1999) (citing Dryden v. Lou
Budke's Arrow Fin. Co., 630 F.2d 641, 646 (8th Cir. 1980)). Absent
equitable tolling, the statute of limitations ran in January 2012,
one year after Philibotte entered into the lease agreement. Suit
was not brought until March 2014.
Philibotte argues that equitable tolling applies because
Nisource misrepresented the agreement to be a "lease" and engaged
in active deception to hide the true nature of the lease as a
credit sale.5 But "[i]n this case, the inquiry is over before it
begins." Salois, 128 F.3d at 26.
To warrant equitable tolling under the doctrine of
fraudulent concealment, a plaintiff must "exercise reasonable
diligence in discovering that [she] ha[s] been the victim[] of
fraud." Id. ("[A]lthough . . . reasonable diligence is factually
based, it may be determined as a matter of law where the underlying
5
Although the district court ruled, in the alternative, that
the statute of limitations barred Philibotte's federal claim, the
district court did not expressly address equitable tolling in its
decision. Cf. Jardín de las Catalinas Ltd. P'ship v. Joyner, 766
F.3d 127, 135 (1st Cir. 2014) (noting that rejection of equitable
tolling is reviewed for abuse of discretion against the "background
precepts that [it] is available only in exceptional circumstances"
(quoting Neverson v. Farquharson, 366 F.3d 32, 40 (1st Cir. 2004))
(internal quotation marks omitted)).
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facts are admitted or established without dispute."). Even
accepting all facts as alleged, Philibotte failed to exercise this
diligence as a matter of law, and so does not warrant relief. See
id. The lease here "contained all of the information necessary to
determine" that it might be a disguised credit sale. Id.Accordingly, "sufficient facts -- indeed, all the facts -- were
available to place [Philibotte] on inquiry notice of fraudulent
conduct" from the time she entered into the agreement. Id.; cf.
Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1045-46
(9th Cir. 2011). And there were no other impediments to
Philibotte's discovery of the alleged fraud: the lease itself is
short and simple to understand, and she does not allege that
Nisource took any further action to hide the true nature of the
transaction.6 Cf. Palmer, 465 F.3d at 28 ("This methodology [of
refraining from crediting bald assertions on motions to dismiss]
is particularly appropriate in the TILA context where we . . .
focus[] . . . on the text of the disclosures themselves rather
than on plaintiffs' descriptions of their subjective
6
Philibotte alleges that Nisource engaged in active deception
when she exercised her option to purchase, but this was not until
February 2014, long after the period had already run. Cf. Hubbard
v. Fidelity Fed. Bank, 91 F.3d 75, 79 (9th Cir. 1996) (declining
to toll the statute of limitations for TILA claims that had run
before defendant's subsequent attempts to conceal violations);
accord Evans, 39 F. Supp. 2d at 1185 ("[A]t the time of those
purported acts, there was no limitations period to toll.").
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understandings."). Even so, Philibotte did not sue for three
years.
Under our "narrow view of equitable exceptions" to the
statute of limitations, we decline to find that tolling is needed
on the facts of this case "to prevent unjust results or to maintain
the integrity of [the] statute." Salois, 128 F.3d at 25 (quoting
King, 784 F.2d at 915). The limitations period ran in January
2012. Because Philibotte did not file until March 2014, her
federal TILA claim is barred, and so was properly dismissed. See
15 U.S.C. § 1640(e); cf. McKenna, 693 F.3d at 211.
IV.
The federal claim having been properly dismissed, there
remain only the state law claims for alleged violations of RISSA,
for alleged violations of Massachusetts CCCDA, for unjust
enrichment, and for violations of Massachusetts 93A, over which we
exercise supplemental jurisdiction.7
7
We emphasize that where a court "dismisses the foundational
federal claims, it must reassess its jurisdiction." Desjardins,
777 F.3d at 45 (quoting Camelio v. Am. Fed'n, 137 F.3d 666, 672
(1st Cir. 1998)) (internal quotation marks omitted). Although the
"balance of competing factors ordinarily will weigh strongly in
favor of declining jurisdiction over state law claims where[, as
here,] the foundational federal claims have been dismissed at an
early stage in the litigation," the parties do not challenge the
district court's decision to exercise this discretionary
jurisdiction (assuming diversity jurisdiction was unavailable),
and this case can be narrowly decided to avoid concerns of comity.
Camelio, 137 F.3d at 672 ("Comity is a particularly important
concern in these cases."); see also Desjardins, 777 F.3d at 45
(noting that other factors to be balanced include fairness,
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In "exercising supplemental jurisdiction over a state
law claim," we apply "state substantive law" as that law has been
applied by the state's highest court. Barton v. Clancy, 632 F.3d
9, 17 (1st Cir. 2011). "If the highest court has not spoken
directly on the question at issue, we predict 'how that court
likely would decide the issue.'" Id. (quoting González Figueroa
v. J.C. Penney P.R., Inc., 568 F.3d 313, 318-19 (1st Cir. 2009)).
In so doing, we are mindful that "[n]eedless decisions of state
law should be avoided both as a matter of comity and to promote
justice between the parties," Camelio v. Am. Fed'n, 137 F.3d 666,
672 (1st Cir. 1998) (quoting United Mine Workers of Am. v. Gibbs,
383 U.S. 715, 726 (1966)), and so affirm on the narrowest grounds
made apparent by the record, see Debnam, 766 F.3d at 96.
A. Philibotte's Claim under RISSA
The district court correctly held that Philibotte's
RISSA claim is precluded under Massachusetts SJC precedent in Silva
v. Rent-A-Center, Inc., 912 N.E.2d 945 (Mass. 2009). This is
because RISSA's disclosure requirements only apply to consumer
leases meeting "specific [statutory] requirements" that, as Silva
makes clear, Philibotte's lease cannot meet. Silva, 912 N.E.2d at
judicial economy, and convenience). Accordingly, we continue to
the merits, and affirm on narrower grounds than the district court.
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949-53 (discussing the standard for identifying "retail
installment sale agreement[s]").
In particular, a consumer lease must satisfy two
statutory requirements to trigger RISSA's disclosure protections:
(1) the lessee "contracts to pay as compensation for use a sum
substantially equivalent to or in excess of the value of goods
involved"; and (2) "it is agreed that the . . . lessee will become,
or for no other or for a nominal consideration has the option to
become the owner of the goods upon full compliance with his
obligations under the contract." RISSA, Mass. Gen. Laws ch. 255D,
§ 1;8 see also Silva, 912 N.E.2d at 950 n.11 (emphasizing that,
8 The relevant definition under RISSA states in full:
"Retail installment sale agreement", [is] an agreement,
other than a revolving credit agreement or agreement
reflecting a sale made pursuant thereto, signed by the
buyer in this commonwealth, involving a finance charge
and providing for the sale of goods or the rendering of
services or both, or for the issuance of merchandise
certificates, for a specified amount which the buyer
undertakes to pay in more than one payment subsequent to
the making of the agreement, or not involving a finance
charge and providing for the sale of goods or the
rendering of services or both, or for the issuance of
merchandise certificates, for a specific amount which
the buyer undertakes to pay in five or more installments
subsequent to the making of the agreement. A retail
installment sales agreement shall not include an
agreement signed by a nonresident buyer in the
commonwealth if such buyer has agreed that the law of
his state shall apply. “Retail installment sale
agreement” shall also include any contract in the form
of a bailment or lease if the bailee or lessee contracts
to pay as compensation for use a sum substantially
equivalent to or in excess of the value of goods involved
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under RISSA, both definitional requirements must be met). In
applying at least the first of these requirements, the SJC directs
us to "look . . . to the nature of the contract at the time it was
formed." Silva, 912 N.E.2d at 951 (emphasizing that we are to
evaluate "parties' contractual rights and obligations at that
point").9
Under this standard, leases will not satisfy the first
requirement if they do not "require payments substantially
equivalent to or in excess of the value of the goods" under their
original term. Id. at 951-52 (citation omitted). Because of this
emphasis on the lease's original term, this RISSA requirement is
not satisfied by a consumer who renews "multiple times" and so
eventually makes payments "exceed[ing] the value of the item."
Id.
and it is agreed that the bailee or lessee will become,
or for no other or for a nominal consideration has the
option to become the owner of the goods upon full
compliance with his obligations under the contract. A
retail installment sale agreement shall not include an
agreement which provides (a) for the payment of the total
sale price in no more than three monthly installments
and (b) a finance charge not in excess of one dollar and
(c) no collateral security for the seller.
Mass. Gen. Laws ch. 255D, § 1.
9 Some doubt has been cast on how this standard applies to
the second statutory requirement. See, e.g., Saia v. Bay State Gas
Co., 965 N.E.2d 224, 2012 WL 1145913, at *2 (Mass. App. Ct. Apr.
6, 2012) (unpublished disposition). Because we can resolve this
case on the first prong, we do not reach this issue.
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Philibotte's lease cannot meet this requirement because
the original term of her "agreement [does] not require [her] . . .
to pay a 'sum substantially equivalent to or in excess of the value
of the goods involved.'" Id. at 950 (quoting Mass. Gen. Laws ch.
255D, § 1). That agreement only obligated her to pay $204, which
she concedes is less than half the alleged value of the water
heater involved. This "absence of any obligation on the part of
[Philibotte] to pay a sum substantially equivalent to the value of
the leased [water heater] is decisive" under the standard applied
by the SJC. Id. at 951.
B. Massachusetts CCCDA Claim
Like Philibotte's claim under RISSA, Philibotte's claim
under Massachusetts CCCDA will only succeed if the lease meets the
statutory definition of a "credit sale." Mass. Gen. Laws ch. 140D,
§ 1. Unlike for RISSA, the SJC has yet to speak directly on the
appropriate construction, and so we must predict how the SJC would
likely rule in this case. Barton, 632 F.3d at 17.
The statutory definition of "credit sale" includes
leases "if the . . . lessee contracts to pay as compensation for
use a sum substantially equivalent to or in excess of the aggregate
value of the property and services involved." Mass. Gen. Laws ch.
140D, § 1.10 Philibotte's lease clearly does not meet this
10 The relevant definition reads in full:
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standard. She only "contract[ed] to pay" $204, a sum concededly
less than half the "value of the property . . . involved," and so
far, far less than the value of the property and services -- which
included installation. See id. For this reason, we need not reach
Philibotte's argument that the original term effectively
constituted a "down payment," because even if the SJC declined to
strictly apply the statutory definition, Philibotte's lease does
not meet it. Cf. Saia v. Bay State Gas Co., 965 N.E.2d 224, 2012
WL 1145913, at *1-4 (Mass. App. Ct. Apr. 6, 2012) (unpublished
disposition) (finding a water-heater lease may be a disguised
credit sale where original three-year term required payment far
exceeding value of heater).
In so doing, we do not follow the district court's
reasoning that, because CCCDA and RISSA share similar statutory
definitions for the type of consumer transactions covered,11 the
"Credit sale", [is] any sale in which the seller is a
creditor. The term includes any contract in the form of
a bailment or lease if the bailee or lessee contracts to
pay as compensation for use a sum substantially
equivalent to or in excess of the aggregate value of the
property and services involved and it is agreed that the
bailee or lessee will become, or for no other or a
nominal consideration has the option to become, the
owner of the property upon full compliance with his
obligations under the contract.
Mass. Gen. Laws ch. 140D, § 1.
11 The only difference between the CCCDA definition and the
RISSA definition is that CCCDA substitutes the "aggregate value of
the property and services involved" for "the value of goods
involved," and "owner of the property" for "owner of the goods."
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standard articulated in Silva also applies to Philibotte's claim
under the CCCDA. See Philibotte, 2014 WL 6968441, at *4 & n.4.
We need not, and so should not, reach that issue because
Philibotte's claim plainly fails to meet the first prong of the
CCCDA definition. Accordingly, we need not, and so should not,
decide whether Silva controls the appropriate construction of the
CCCDA. Cf. Camelio, 137 F.3d at 672 (quoting United Mine Workers,
383 U.S. at 726) (counseling avoidance of "[n]eedless decisions of
state law").12
C. Unjust Enrichment & Massachusetts 93A
Finally, we affirm dismissal of Philibotte's remaining
claims for unjust enrichment and violations of Massachusetts 93A.
A claim for unjust enrichment generally cannot stand
where there is an existing, express contract, unless the contract
See CCCDA, Mass. Gen. Laws ch. 140D, § 1; RISSA, Mass. Gen. Laws
ch. 255D, § 1.
12
This is particularly true where, as here, existing state
precedent governing RISSA may complicate the interaction between
the Massachusetts exemption for the CCCDA and the scope of federal
TILA coverage for this type of transaction. Cf. McKenna, 693 F.3d
at 211 (noting the existence of "unsettled questions as to what
federal rights are displaced and what others remain where, as is
the case with Massachusetts, the Federal Reserve has exempted a
state from various TILA's provisions on the grounds that state law
establishes 'substantially similar' requirements"); McKenna v.
First Horizon Home Loan Corp., 475 F.3d 418, 422 (1st Cir. 2007)
(noting that CCCDA is to be construed similarly to TILA); Silva,
912 N.E.2d at 951 (interpreting analogous definition under RISSA);
Saia, 2012 WL 1145913, at *2 (determining whether lease of hot
water heater was a "credit sale" under CCCDA without
straightforwardly applying standard articulated in Silva).
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is not valid. See Okmyansky v. Herbalife Int'l of Am., Inc., 415
F.3d 154, 162 (1st Cir. 2005) (collecting cases); see also Zarum
v. Brass Mill Materials Corp., 134 N.E.2d 141, 143 (Mass. 1956).
Philibotte contends that the contract's existence does not bar her
claim because Nisource procured the contract by fraud.
Specifically, she argues that Nisource mischaracterized the
transaction as a lease when the transaction was, in fact, a
disguised credit sale or retail installment sale to which
disclosure requirements apply. But we have already rejected her
contention that the lease was, in fact, a credit sale or retail
installment sale agreement within the meaning of the relevant
statutes. Because Philibotte does not allege any other fraud that
might render the lease invalid, the existing lease agreement bars
her claim for unjust enrichment.13 See Okmyansky, 415 F.3d at 162.
Philibotte's 93A claim fails for a similar reason: the
only basis she offers for her 93A claim is that "[a] violation of
CCCDA or the RISSA is as a matter of law a violation of [93A]."
See Mass. Gen. Laws ch. 140D, § 34. We have already rejected her
contention that the lease violated either the CCCDA or RISSA, and
so affirm dismissal of her 93A claim.
13
Philibotte does not develop -- and so has waived -- any
argument that the lease was a disguised conditional sale even if
it does not meet the statutory definitions for (disguised) credit
or retail installment sales under CCCDA and RISSA. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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Affirmed. Costs are assessed against Philibotte.
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