In Re TJX Companies Retail SEC. Breach Litigation ( 2009 )


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  •           United States Court of Appeals
    For the First Circuit
    Nos. 07-2828, 08-1075, 08-1076
    IN RE:   TJX COMPANIES RETAIL SECURITY BREACH LITIGATION.
    __________
    AMERIFIRST BANK and SELCO COMMUNITY CREDIT UNION,
    Plaintiffs, Appellees/Cross-Appellants,
    v.
    TJX COMPANIES, INC., FIFTH THIRD BANK and FIFTH THIRD BANCORP,
    Defendants, Appellants/Cross-Appellees.
    APPEALS FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. William G. Young, U.S. District Judge]
    Before
    Boudin, Lipez and Howard,
    Circuit Judges.
    Douglas H. Meal with whom Richard D. Batchelder, Jr. and Ropes
    & Gray LLP were on brief for TJX Companies, Inc.
    W. Breck Weigel with whom Robert N. Webner, Vorys, Sater,
    Seymour and Pease LLP, James R. Carroll, Nicholas I. Leitzes and
    Skadden, Arps, Slate, Meagher & Flom LLP were on brief for Fifth
    Third Bank and Fifth Third Bancorp.
    Joe R. Whatley, Jr. with whom Patrick J. Sheehan, Whatley
    Drake & Kallas, LLC, Archie C. Lamb, Jr., F. Inge Johnstone and The
    Lamb Firm, LLC were on brief for AmeriFirst Bank and SELCO
    Community Credit Union.
    March 30, 2009
    BOUDIN, Circuit Judge.       Before us are cross-appeals
    stemming from a well known incident: the theft from TJX computers
    of customer credit and debit card information and the subsequent
    fraudulent use of the information.       See generally In re TJX Cos.
    Retail Sec. Breach Litig., 
    493 F. Supp. 2d 1382
     (D. Mass. 2007);
    McMorris v. TJX, 
    493 F. Supp. 2d 158
     (D. Mass. 2007).         Law suits
    ensued, this case--involving banks injured in the debacle--among
    them.
    In   January   2007,   TJX    Companies,   Inc.    ("TJX"),
    headquartered in Massachusetts and a major operator of discount
    stores, revealed that its computer systems had been hacked. Credit
    or debit card data for millions of its customers had been stolen.
    Harm resulted not only to customers but, it appears, also to banks
    that had issued the cards ("issuing banks"), which were forced to
    reimburse customers for fraudulent use of the cards and incurred
    other expenses.
    In May 2007, AmeriFirst Bank, based in Alabama, filed
    suit in the federal district court in Massachusetts against TJX
    and, in addition, against an Ohio bank and its parent--Fifth Third
    Bank and Fifth Third Bancorp (collectively     "Fifth Third").1   Fifth
    1
    The suit against TJX included other named plaintiffs who have
    since settled.    A second AmeriFirst suit, with another named
    plaintiff (SELCO--a credit union in Oregon), was filed against
    Fifth Third in the district court. The two cases were consolidated
    and, as allegations against Fifth Third in the second suit mirror
    those in the first, we refer only to "the complaint."
    -2-
    Third served as "processing bank" for TJX transactions, receiving
    the data from the customer's initial charge for a purchase and,
    after high-speed verification from the issuing bank, authorizing
    the charge.     Visa and Mastercard each had a network and regime for
    such purposes.
    AmeriFirst's complaint, seeking class action status for
    issuing banks, charged that both TJX and Fifth Third were variously
    at fault: that TJX and Fifth Third failed to follow security
    protocols prescribed by Visa and MasterCard to safeguard personal
    and financial information; that the breaches occurred from July
    2005 onward but were discovered and disclosed only later; and that
    the issuing banks suffered losses from reimbursing customers for
    fraud losses, monitoring customers accounts, and cancelling and
    reissuing cards.
    The multi-count complaint charged (1) negligence, (2)
    breach of contract, (3) negligent misrepresentation, and (4) unfair
    or deceptive practices under chapter 93A, Mass. Gen. Laws ch. 93A
    (2008).    The defendants moved to dismiss for failure to state a
    claim.    Fed. R. Civ. P. 12(b)(6).        On October 12, 2007, the
    district court dismissed the negligence and breach of contract
    claims    but   refused   to   dismiss   claims   based   on   negligent
    misrepresentation and chapter 93A. (A fifth claim, for "negligence
    per se," was dismissed and is not at issue.)      In re TJX Cos. Retail
    Sec. Breach Litig., 
    524 F. Supp. 2d 83
    .
    -3-
    Plaintiffs then moved to amend their complaint, seeking
    to add a claim for conversion and also new facts to the chapter 93A
    claim.    On November 29, 2007, the district court provisionally
    denied class status; if made final, this denial would in turn
    defeat subject matter jurisdiction based on the minimal diversity
    provisions of the Class Action Fairness Act, 
    28 U.S.C. § 1332
    (2006).   The court invited briefing as to whether, if class action
    status were ultimately denied, it should transfer the case to state
    court.    In re TJX Cos. Retail Sec. Breach Litig., 
    246 F.R.D. 389
    .
    On December 18, 2007, the court denied the motion to
    amend the complaint, it made the denial of class status final, and
    it ordered the transfer of the case to the Massachusetts Superior
    Court.    Although all but two of the claims had been dismissed, the
    district court designated its pre-transfer rulings as "without
    prejudice" to reconsideration by the state court.    At defendants'
    request, this court stayed the transfer pending review on appeal.
    TJX and Fifth Third now appeal to this court, urging
    principally that all claims against them should have been dismissed
    with prejudice and that in any event transfer to the state court
    was precluded by governing precedent.    AmeriFirst and SELCO raise
    standing and finality objections to defendants' appeal and ask for
    affirmance of the transfer order; but by cross appeal, they say
    that dismissal of their other claims was error and that both class
    action status and the motion to amend should have been allowed.
    -4-
    Jurisdiction, Standing and Finality.                 Although no party
    has questioned it, we are compelled to consider first an oddity
    that     might    seem   to    imperil         subject    matter        jurisdiction.
    Jurisdiction in the district court rested on the minimum diversity
    provision available only for class actions, 
    28 U.S.C. § 1332
    , and
    ultimately the district court ruled that class certification was
    improper.    So one might ask: how do the parties now get to litigate
    on the merits whether specific counts did or did not state claims?
    The    answer     is   the   district        judge    had    provisional
    jurisdiction to decide those merits issues--because whether class
    action status was sustainable depended in part on what claims were
    on the table.      "In such cases it is both proper and necessary for
    the trial court first to resolve the merits of the claim to the
    extent necessary to allow the court to properly determine its own
    jurisdiction."      Augustine v. United States, 
    704 F.2d 1074
    , 1079
    (9th Cir. 1983).     See generally Bell v. Hood, 
    327 U.S. 678
     (1946).
    In the end, after disposing of standing and finality
    objections, our analysis of the claims--both those sustained and
    those dismissed--leads us to agree for the most part with the able
    district judge's analysis (although not with the transfer order)
    but to disagree in one respect that reopens the class action issue.
    We therefore end by remanding for further proceedings as explained
    below.
    -5-
    The standing and finality objections are directed to bar
    defendants' argument that two remaining counts of the complaint--
    negligent    misrepresentation     and   chapter   93A--should   have    been
    dismissed.      Plaintiffs   say    that   because   the   district     court
    dismissed other counts and thereafter transferred the case, the
    merits rulings against the defendants on the remaining counts
    caused no harm to them, beyond speculative collateral estoppel
    effects that might flow from the rulings in future litigation.
    Because the district court ruled that the two counts
    stated viable claims, the defendants were plainly and concretely
    disadvantaged: instead of an end to the liability claims, they now
    face further litigation of these claims (indeed, in this very case,
    because the transfer turns out to be invalid and the claims may
    still end up going forward in the district court).          They are thus
    entitled to appeal from the adverse ruling--assuming that the
    ruling is embodied in a final judgment.        
    28 U.S.C. § 1291
    .
    Ordinarily a defendant may not appeal from a denial of
    a Rule 12(b)(6) motion because the litigation in the trial court
    will not have concluded.     But here the district court brought the
    case before it to an end by the class action ruling and purported
    transfer.     Appeals from transfers between federal courts are
    sometimes immediately appealable and sometimes not; but where the
    transfer court lacks power to transfer, an order purporting to do
    so can hardly defeat review of an otherwise final judgment.
    -6-
    Plaintiffs also argue that the defendants' appeal is
    barred because the district court said that its merits rulings were
    without     prejudice     to     reconsideration     by    the    state       courts.
    Dismissals without prejudice are sometimes deemed to prevent an
    immediate appeal where they represent an invitation to a plaintiff
    to cure some technical deficiency by re-filing in the same court.
    E.g., Umbenhauer v. Woog, 
    969 F.2d 25
    , 30 (3rd Cir. 1992).                    In this
    case, no such invitation was extended by the district court.
    Finally      plaintiffs      invoke   Balcom    v.    Lynn    Ladder    &
    Scaffolding Co., 
    806 F.2d 1127
     (1st Cir. 1986), which refused to
    allow a third-party defendant, vindicated by a jury, to appeal from
    a judgment in its favor.          This defendant wanted to challenge jury
    findings,      fearing    that    they    would    prejudice      it     in    future
    litigation.     This court said that the findings were not essential
    to the judgment and thus would have no collateral estoppel effect.
    
    Id. at 1127
    .     Balcom is clearly not on point.
    Negligent misrepresentation.            We therefore turn to the
    merits    of    defendants'       appeal,      starting    with   the     negligent
    misrepresentation claim which the district court found adequately
    alleged for purposes of Rule 12(b)(6).               Review of Rule 12(b)(6)
    rulings is de novo. First Medical Health Plan, Inc. v. Vega-Ramos,
    
    479 F.3d 46
    , 51 (1st Cir. 2007).                  At the outset, one has to
    understand the nature of the claim as stated in the complaint and
    -7-
    as thereafter clarified by the plaintiffs in resisting the motion
    to dismiss.
    The complaint alleged that Fifth Third has contracts with
    MasterCard     and    Visa     that   require        compliance    with       operating
    regulations adopted by each credit card organization and that TJX
    and Fifth Third similarly have a contract that requires TJX to
    comply with such regulations.                It further alleged that TJX and
    Fifth Third ignored security measures required by the operating
    regulations--for      examples,       that    signatories    deploy       a    firewall
    configuration,       protect    stored       data,    encrypt     transmission      of
    cardholder data, and track access to cardholder data and network
    resources.
    But although TJX and Fifth Third are charged in the
    complaint     with    misrepresentations,         the    plaintiffs'          claim--as
    elaborated their district court filings and brief on appeal--
    appears to rest (with one doubtful exception as to Fifth Third2) on
    a flimsier foundation than actual misrepresentation.                           Rather,
    plaintiffs argue that by accepting credit cards and processing
    payment authorizations, defendants impliedly represented that they
    2
    The possible exception is that the complaint alleges that
    Fifth Third is a member of an organization that promotes security
    measures and is so listed on its website and that, in context, this
    amounts to an affirmative representation of compliance with various
    standards; but it is not apparent that the website contains the
    missing affirmative representations implied by the complaint, and
    plaintiffs' brief to us does not rely on this allegation in
    defending the claim but rather on the conduct theory just noted.
    -8-
    would comply with MasterCard and Visa regulations and this was the
    negligent misrepresentation.
    Massachusetts law defines negligent misrepresentation
    using the Restatement (Second) of Torts (1977), which in section
    552 requires the following elements:
    One who, in the course of his business,
    profession or employment, or in any other
    transaction in which he has a pecuniary
    interest, supplies false information for the
    guidance   of   others  in   their   business
    transactions, is subject to liability for
    pecuniary loss caused to them by their
    justifiable reliance upon the information, if
    he fails to exercise reasonable care or
    competence in obtaining or communicating the
    information.
    Nycal   Corp. V. KPMG Peat Marwick LLP, 
    426 Mass. 491
    , 495-96
    (1998)(quoting the Restatement).
    It would almost surely stretch Massachusetts law too far
    to say that merely doing credit card transactions with issuing
    banks, whether directly (Fifth Third) or indirectly (TJX), is a
    representation   implied   by   conduct   to   third   parties   that   the
    defendants were complying with detailed security specifications of
    Visa and MasterCard.   The implication is implausible and converts
    the cause of action into liability for negligence--without the
    limitations otherwise applicable to negligence claims.
    Conduct can be part of a representation, but the link
    between the conduct and the implication is typically tight.         Thus,
    in Danca v. Taunton Sav. Bank, 
    385 Mass. 1
    , 9 (1982), the court
    -9-
    upheld an implied representation claim where plaintiffs, in applying
    for a mortgage, were told by the bank that it needed to assure
    compliance with a zoning requirement; later by a combination of
    words and action, the bank led the plaintiffs to believe that the
    bank had found compliance.       More recently the SJC said of Danca:
    We emphasized the importance to our decision
    of the defendant's "conduct and words" and
    "response to the plaintiffs' inquiry," holding
    it sufficient "that the representation was
    reasonably understood as a statement that the
    bank employees had looked at the plan and
    found no problems."
    Page v. Frazier, 
    388 Mass. 55
    , 66-67 (1983) (quoting Danca, 
    385 Mass. at 9
    ).
    Yet we stop short of holding that the district court had
    to dismiss the misrepresentation claim in this case on the face of
    a complaint that explicitly alleged misrepresentation.            Recently
    the Massachusetts trial court refused to dismiss virtually the same
    claim brought by credit unions against Fifth Third and another
    defendant for credit card losses resulting from a security breach.
    CUMIS Ins. Soc., Inc. v. BJ's Wholesale Club, Inc., 23 Mass. L. Rep.
    550   (Mass.   Super.   2005).    Plaintiffs   naturally   rely   on   this
    decision, as did the district court.
    Then, on summary judgment in CUMIS, it became crystal
    clear that the charge of "misrepresentation" rested simply on the
    doing of credit card business--the same implication from conduct
    argument that plaintiffs offer in this case.       The CUMIS court then
    -10-
    granted summary judgment for defendants because inter alia such
    conduct was not a misrepresentation under Massachusetts law.         CUMIS
    Ins. Soc., Inc. v. BJ's Wholesale Club, Inc., 24 Mass. L. Rep. 117,
    *11-12 (Mass. Super. 2008).      The ultimate disposition is therefore
    far more helpful to defendants.
    Ordinarily a district court does not have to look behind
    the complaint and grant a motion to dismiss because later statements
    by the plaintiff offer a narrower picture of what plaintiff expects
    to prove at trial.      Had the second CUMIS decision been available,
    the district court might well have granted the motion,       but summary
    judgment is the more common method of disposing of claims that are
    facially valid but prove (usually after discovery) to be unsupported
    by evidence.    The present claim thus survives, but on life support.
    Chapter 93A. The provisions of chapter 93A invoked by
    plaintiffs, M.G.L. ch. 93A §§ 2, 11, pertinently provide for a claim
    for "unfair" or "deceptive" trade practices as between businesses--
    the unfairness label in these provisions being a cross-reference to
    more specific standards borrowed from an appropriate source of law.
    Ciardi v. F. Hoffmann-La Roche, Ltd., 
    436 Mass. 53
    , 70-72 (2002).
    Plaintiffs    offered   three   different   theories   invoking   specific
    standards:
    •negligent misrepresentation (already alleged
    as a separate tort) under Massachusetts law,
    -11-
    •violation of section 5 of the Federal Trade
    Commission Act, 
    15 U.S.C. § 45
    (a)(1) (2006),
    which chapter 93A cross-references,3 and
    •violation of a federal statute that protects
    information   that   customers   confide   to
    financial institutions, Gramm-Leach-Bliley
    Act, 
    15 U.S.C. § 6801
     (2006).
    The district court sustained only the first of these theories and
    it rejected the other two.
    The negligent misrepresentation claim is likely to have
    no future in this case for reasons just explained and, if it falls,
    so too does its use under chapter 93A.         Townsends, Inc. v. Beaupre,
    
    47 Mass. App. Ct. 747
    , 755 (1999).            Further, the district court
    found--and    we   below   uphold     its     ruling--that   the    negligent
    misrepresentation claim, whether standing alone or under chapter
    93A, is not certifiable under the class action rubric.             This brings
    us to the second theory (plaintiffs have abandoned the third).
    Plaintiffs    contend     that     their second theory--that
    defendants' lack of security measures was "unfair" under the Federal
    Trade Commission Act--provides an alternative basis for its chapter
    93A claim. The district court disagreed, saying that the unfairness
    characterization rested on consent decrees of the Federal Trade
    3
    M.G.L. ch. 93A § 2 ("It is the intent of the legislature that
    in construing paragraph (a) of this section . . . courts will be
    guided by the interpretations given by the [FTC] and the Federal
    Courts to section 5(a)(1) of the [FTCA]."), as well as case law,
    see PMP Associates, Inc. v. Globe Newspaper Co., 
    366 Mass. 593
    , 595
    (1975) (Chapter 93A "directs us to consider the interpretations of
    unfair acts and practices under s.5 of the Federal Trade Commission
    Act . . . .").
    -12-
    Commission and (the court said) a consent decree is not under
    Massachusetts law an authoritative determination for purposes of
    chapter 93A. Whitinsville Plaza, Inc. v. Kotseas, 
    378 Mass. 85
    , 101
    (1979).   Plaintiffs read the case more narrowly.
    However Whitinsville may be read, plaintiffs' claim here
    rests on far more than consent decrees, which sometimes do go beyond
    legal obligations.   Specifically, they invoke (1) an FTC complaint
    against TJX based on the very security lapse charged here and (2)
    at least two other cases in which the FTC ruled that similar conduct
    violated the Federal Trade Commission Act.4      The FTC complaint
    against TJX states (in paragraph 12):
    [R]espondent's failure to employ reasonable
    and appropriate security measures to protect
    personal information caused or is likely to
    cause substantial injury to consumers that is
    not offset by countervailing benefits to
    consumers or competition and is not reasonably
    avoidable by consumers. This practice was and
    is an unfair act or practice.
    Use of FTC precedent--certainly as to decided cases like
    DSW and BJ's--is directly supported by chapter 93A itself. Further,
    Massachusetts case law treats FTC complaints as an expression of the
    4
    FTC Complaint, In the Matter of The TJX Companies, File No.
    072-3055; Press Release, Fed. Trade Comm'n, Agency Announces
    Settlement of Separate Actions Against Retailer TJX, and Data
    Brokers Reed Elsevier and Seisint for Failing to Provide Adequate
    Security for Consumers' Data (Mar. 27, 2008) (the release says that
    over twenty FTC complaints have been brought against similar
    conduct by other companies); In re DSW Inc., Docket C-4157, 
    2006 WL 752215
     (F.T.C. Mar. 7, 2006); In re BJ's Wholesale Club, Inc.,
    Docket C-4148, 
    2005 WL 2395788
     (F.T.C. Sept. 20, 2005).
    -13-
    FTC's views, Schubach v. Household Fin. Corp., 
    375 Mass. 133
    , 135
    (1978) (relying in part on “several complaints” issued by the FTC),
    and adjudicated FTC complaints are even more potent. So the chapter
    93A claim can go forward on this second theory unless derailed by
    two TJX counter-arguments--to which we now turn.
    The first--that chapter 93A requires a closer association
    than its indirect connection with AmeriFirst--was answered by the
    district court.        Case law does require a business relationship,
    e.g., Imprimis Investors, LLC v. KPMG Peat Marwick LLP, 
    69 Mass. App. Ct. 218
    , 230-31 (2007), but here a jury might say that TJX was
    regularly    seeking      payment     from     the    issuing    banks    through   an
    intermediary       (Fifth    Third)     and    that    this    is   a   close   enough
    connection.    At least at the complaint stage, this seems enough.
    TJX next argues correctly that chapter 93A is intended
    exclusively for egregious conduct, see Ahern v. Scholz, 
    85 F.3d 774
    ,
    797-98 (1st Cir. 1996), and--it contends--that either deliberate
    wrongdoing or personal benefit is present in virtually all of the
    sound case law. Perhaps policy might make this a desirable stopping
    point,   given      the     vagueness     of    the    unfairness       standard    and
    availability     of   a     private   damages        remedy   unchecked    by   agency
    prudence.
    But Massachusetts decisions do not say that deliberate
    wrongdoing    or    self-benefit        are    required;      seemingly    systematic
    -14-
    recklessness may suffice.5   Knowing so little about the extent of
    TJX's or Fifth Third's fault at the complaint stage, we think that
    at best TJX's argument is one that would have to await discovery and
    perhaps a summary judgment motion.    The procedural caution shown in
    CUMIS is easily justified on this issue.
    Finally, Fifth Third argues that the chapter 93A claim
    must fail against it because none of its acts occurred “primarily”
    or “substantially” within Massachusetts.    See M.G.L. ch. 93A, § 11.
    But again, the allegations are sufficient at this stage.       Fifth
    Third is alleged to have an office or offices in Massachusetts,
    which under CUMIS is arguably sufficient, 23 Mass. L. Rep. 550, at
    *16-17; and presumably Fifth Third's communicating to and from TJX's
    servers in Massachusetts is part of the causal chain.
    One final point as to the unfairness-based claim under
    chapter 93A.   The district court indicated, in its decision on
    October 12, 2007, that federal subject matter jurisdiction might
    independently attach to such a claim--regardless of class action
    status--because a federal issue might be deemed embedded in the
    5
    See Briggs v. Carol Cars, Inc., 
    407 Mass. 391
    , 396-97 (1990)
    ("We also reject the argument that the judge erred in concluding
    that the defendant's representation was recklessly made. It is
    enough that the judge found on adequate evidence that the defects
    in the vehicle were readily ascertainable by the defendant. If a
    statement of fact which is susceptible of knowledge is made as of
    one's knowledge and is false, it may be the basis of an action for
    deceit); Pietrazak v. McDermott, 
    341 Mass. 107
    , 109-10 (1960). See
    also Kozdras v. Land/Vest Properties, Inc., 
    382 Mass. 34
    , 43
    (1980); Glickman v. Brown, 
    21 Mass. App. Ct. 229
    , 235 (1985).
    -15-
    state law claim.       It did not pursue the issue because it rejected
    the theory; but we are now reinstating that theory and class action
    status is at best uncertain.
    The embedded issue theory, associated with Smith v.
    Kansas City, 
    255 U.S. 180
     (1921), raises a complicated and much
    mooted problem as to the proper construction of the "federal
    question" statute.          
    28 U.S.C. § 1331
    .    The answer may not matter in
    this case: the district court's class-action analysis suggested that
    because individual bank recoveries may be small, the plaintiffs may
    have       no   practical     interest    in    pursuing   this   case   unless
    certification is granted.
    But if the Smith theory becomes critical, jurisdiction
    should not be assumed merely because the state claim resorts to
    federal precedent; nor is it perfectly clear that Massachusetts
    regards the section 5 standard as binding (as opposed to merely
    informative precedent to be considered)--which would arguably not
    suffice even under Smith.            It is enough to warn that there is
    precedent and commentary that would have to be consulted and briefed
    if and when necessary.6
    6
    See Erwin Chemerinsky, Federal Jurisdiction § 5.2, at 289-95
    (5th ed. 2007); Grable & Sons Metal Prod., Inc. v. Darue
    Engineering & Mfg., 
    545 U.S. 308
    , 315 (2005); Cambridge Literary
    Prop., Ltd. v. W. Goebel Porzellanfabrik G.m.b., 
    510 F.3d 77
    , 95-96
    (1st Cir. 2007); PCS 2000 LP v. Romulus Telecomm., Inc., 
    148 F.3d 32
    , 35 (1st Cir. 1998).
    -16-
    Negligence. Plaintiffs say that the district court erred
    in dismissing their simple negligence claim, a ruling that it based
    upon the so called economic loss doctrine.            Massachusetts, which is
    not alone, holds that “purely economic losses are unrecoverable in
    tort and strict liability actions in the absence of personal injury
    or property damage."       Aldrich v. ADD Inc., 
    437 Mass. 213
    , 222
    (2002). Like "duty" and "proximate cause," the doctrine cabins what
    could   otherwise   be   open-ended       negligence    liability    to   anyone
    affected by a negligent act.
    AmeriFirst    says     that    it   did   suffer   property    damage
    because it had a property interest in the payment card information,
    which the security breach rendered worthless.              Electronic data can
    have value and the value can be lost, but the loss here is not a
    result of physical destruction of property.            Indeed, a reduction in
    real property value, by dumping of contaminants in the neighborhood
    but not on plaintiff's property was held to be economic loss. Lewis
    v. General Electric, 
    37 F.Supp.2d 55
     (D. Mass. 1999).
    Plaintiffs     offer    policy      arguments    for   limiting   the
    economic loss doctrine, but the physical injury requirement reflects
    existing precedent, Lewis; Am. Tel. & Tel. Co. v. IMR Capital Corp.,
    
    888 F. Supp. 221
    , 247 (D. Mass. 1995).               CUMIS itself invoked the
    economic loss doctrine to bar a negligence claim on the same facts.
    
    23 Mass. L. Rptr. 550
    , at *8-9.          Accord, Pa. State Employees Credit
    Union v. Fifth Third Bank, 398 F. Supp. 2d. 317, 326 (M.D. Pa.
    -17-
    2005).   Nor will we certify an issue where state law is clear.
    Cantwell v. Univ. of Mass., 
    551 F.2d 879
    , 880 (1st Cir. 1977).
    Breach of contract.     Plaintiffs also do not persuade us
    that the district court erred in dismissing their contract claims.
    Here, Visa and Mastercard bound participating banks like Fifth Third
    to certain security procedures and approving banks like Fifth Third
    bound sellers like TJX for whom they processed payments; but the
    issuing banks were not parties to either of these contracts and can
    therefore bring claims only if they were third-party beneficiaries.
    Massachusetts law follows the third-party beneficiary
    test of the Restatement (Second) of Contracts § 302 (1981), see Rae
    v. Air-Speed, Inc., 
    386 Mass. 187
    , 195 (1982), which is relatively
    hospitable    to   claims    by   those   purporting   to   be   third-party
    beneficiaries--except where the direct parties to the contract have
    "otherwise agreed."     Section 302(1) states:
    Unless otherwise agreed between promisor and
    promisee, a beneficiary of a promise is an
    intended beneficiary if recognition of a right
    to   performance   in   the   beneficiary   is
    appropriate to effectuate the intention of the
    parties and . . . the circumstances indicate
    that the promisee intends to give the
    beneficiary the benefit of the promised
    performance.
    The parties to the contracts in this case appear to have
    "otherwise agreed."         The agreement between Fifth Third and TJX
    provides: "This Agreement is for the benefit of, and may be enforced
    only by, Bank and Merchant . . . and is not for the benefit of, and
    -18-
    may not be enforced by any third party." Plaintiffs argue that this
    express language is superceded by provisions in the Mastercard and
    Visa Operating Regulations.          The regulations do say that they
    prevail   where   they    conflict   with   provisions    in    the    merchant
    agreements, but here the regulations do not conflict.
    Instead, the MasterCard Operating Regulations state that
    MasterCard "shall have the sole right to interpret and enforce" its
    regulations, and the Visa Operating Regulations say that they "do
    not constitute a third-party beneficiary contract as to any entity
    or person . . . or confer any rights, privileges, or claims of any
    kind as to any third parties."        CUMIS is in accord.           
    23 Mass. L. Rptr. 550
    , at *5-6.      See also Pa. State Employees Credit Union, 398
    F. Supp.2d at 323-26.
    Conversion.     Plaintiffs     did   not   plead   a     claim   for
    conversion in their original or amended complaint but sought to add
    it on October 25, 2007, a month after submitting the amended
    complaint.    The district court denied the motion on the ground that
    the claim was not viable, saying that conversion related only to
    interference with tangible property, and that plaintiffs claim
    concerned intangible property.        We review this denial for abuse of
    discretion.    Aponte-Torres v. Univ. of P.R., 
    445 F.3d 50
    , 58 (1st
    Cir. 2006).
    -19-
    Whether or not Massachusetts limits conversion claims to
    tangible property is debatable,7 but even if it does not, such a
    claim is less than a neat fit.    Conversion implies appropriation,
    which is hardly the first word that comes to mind--to describe the
    store's behavior--when a customer gives a store a credit card and
    the data is then filched from the store by a third party.     Still,
    the conversion concept is loosely defined, under Massachusetts law
    as elsewhere, e.g., Kelley v. LaForce, 
    288 F.3d 1
    , 11-12 (1st Cir.
    2002); so perhaps this too is a debatable issue.
    In all events, the claim is not straightforward, could
    have been presented in the original complaint, and does not depend
    on newly discovered facts.   The district court's decision not to
    entertain a belated claim on top of numerous ones already pled and
    under consideration, was not an abuse of discretion.     Nor did the
    court have to allow belated amendment of the chapter 93A claim to
    add facts that could have been asserted earlier.
    Class certification.      After determining which claims
    survived, the district court then applied the customary tests to
    decide whether class action status could be sustained for the case,
    see Fed. R. Civ. P. 23(a), (b), and provisionally concluded that
    certification was not justified.        This judgment was explicitly
    limited to the two claims that survived.     Ultimately, the district
    7
    Compare John G. Danielson, Inc. v. Winchester-Conant Props.,
    Inc., 
    186 F. Supp. 2d 1
    , 28 (D. Mass. 2002), with Discover Realty
    Corp. v. David, 
    2003 Mass. App. Div. 172
    , 175 (2003).
    -20-
    court denied the request to amend and made final its denial of class
    status.
    Plaintiffs expressly decline to appeal from the denial of
    class certification of the two claims in question--the negligent
    representation claim and the chapter 93A claim resting on the same
    theory.    But arguing that some of the district court's discussion
    is mistaken, or overcome by proffered amendments to the class
    definition, they express concern that some of the discussion might
    imperil certification on remand of any other claim that we might
    reinstate on appeal--which is just what we are doing.
    Conversely, TJX (although for intricate reasons not Fifth
    Third)    appears   to   agree   that   the   district   court's   denial   of
    certification is mooted by plaintiffs' failure to appeal it; but
    defendants themselves urge that--should we reinstate any of the
    dismissed claims--we "affirm"           the   denial of certification and
    "conclude that it precluded class certification of any revived
    claims(s)."    In other words, both sides suggest that we resolve,
    although in opposite ways, a question not reached by the district
    court.
    The district court's resolution of the certification
    issue before it--not to certify the negligent misrepresentation
    claim--turned primarily on its conclusion that that claim required
    proof of individual reliance on the misrepresentation--directly so
    for the tort claim and at least indirectly so for the chapter 93A
    -21-
    claim.     On this basis, the district court found that class issues
    would not predominate over individual-party issues, defeating the
    only Rule 23(b) precondition that the court deemed viable.
    It is not clear to us whether a chapter 93A claim based
    on an unfairness theory would necessarily raise the same problem or
    be barred on the same basis.     The unfairness theory appears to look
    to what the defendants did (or failed to do) rather than on the
    banks' reliance on supposed misrepresentations; but the district
    court's discussion of proof of causation of loss as a separate
    individual-party issue may (or may not) apply to unfairness claims
    as well.    Neither side has briefed this issue and obviously the
    district court has not decided it.
    The district court also expressed concern about whether
    the putative class was properly defined by plaintiffs and about
    whether plaintiffs could provide fair and adequate representation,
    also a precondition for class status. Fed R. Civ. P. 23(a)(4). But
    the   former   concern   might   perhaps   be   cured   by   the   proffered
    amendments; and the latter directly related to the claims against
    Fifth Third and the conflicting economic interests of banks that are
    both issuers and acquirers; claims against TJX might be unaffected.
    The district court showed an enviable mastery of class
    action law and analysis, and the wisest course is to let it decide
    in the first instance whether the chapter 93A unfairness theory
    merits class status.      To pick apart an integrated analysis and
    -22-
    comment on specific reasons, as plaintiffs urge, would be unsound;
    it would be even more unsound to decide, as defendants urge, the
    class status of the revived claim unless and until the district
    court considers the issue and it is properly briefed to us.
    Transfer.   Having denied certification, the district
    court concluded that the case could not proceed in federal court,
    partly because too little was at stake for the individual plaintiffs
    but primarily because ordinary diversity is lacking once the minimal
    diversity provided for a qualified class action fails.   Defendants
    attack, and plaintiffs defend, the transfer order--authority to
    transfer being "a legal question we review de novo."       Mills v.
    Maine, 
    118 F.3d 37
    , 51 (1st Cir. 1997) (citation omitted).
    Mills squarely decided "that, in the absence of any
    specialized state statute, 'it is the duty of the trial court, if
    it finds that jurisdiction does not exist, to proceed no further but
    to dismiss the suit.'" 
    Id. at 52
     (emphasis in original) (quoting Joy
    v. Hague, 
    175 F.2d 395
    , 396 (1st Cir. 1949)).       Most of Mills'
    reasoning would apply even if there were a Massachusetts statute
    authorizing such a transfer, compare Weaver v. Marine Bank, 
    683 F.2d 744
     (3rd Cir. 1982); anyway, no such statute is invoked.
    Mills' ruling on transfers to state courts was not, as
    has been suggested, merely dictum. In Mills, the district court had
    refused to transfer to state court a suit that fell outside its own
    subject matter jurisdiction and on appeal appellants insisted that
    -23-
    the district court should have transferred the case to state court.
    This court then considered the claim and decided that the district
    court had no authority to make such a transfer.   This holding binds
    district courts and, indeed, this panel.   Muskat v. United States,
    
    554 F.3d 183
    , 189 (1st Cir. 2009).
    In ordering transfer, the district court said that its
    prior merits rulings were "'without prejudice' to reexamination in
    the courts of the Commonwealth."   TJX says that this too was error.
    The "without prejudice" label has different meanings in different
    contexts, e.g., In re Sonus Networks, Inc., 
    499 F.3d 47
    , 60 n.6 (1st
    Cir. 2007); perhaps the district judge meant only that a transferee
    court can revisit its prior rulings in the same case.       Rio Mar
    Assocs., LP v. UHS of P.R., Inc., 
    522 F.3d 159
    , 167 (1st Cir. 2008).
    It would be quite another matter to decide a merits issue
    but then purport to deprive the decision of res judicata effect in
    future cases--a matter governed by established rules. E.g., Ramallo
    Bros. Printing, Inc. v. El Dia, Inc., 
    490 F.3d 86
     (1st Cir. 2007).
    But the "without prejudice" gloss here was commentary incident to
    the transfer order and, as we are vacating that order and remanding
    the case, we treat the characterization as falling with the order.
    Accordingly, we affirm (1) the district court's dismissal
    of the negligence and breach of contract claims, (2) its denial of
    the motion to amend the complaint, and (3) its sustaining of the
    negligent misrepresentation claim (and use as a theory under chapter
    -24-
    93A, but without prejudice to a motion by defendants for summary
    judgment), but we vacate (4) its dismissal of the chapter 93A claim
    based on the unfairness theory and (5) its transfer order and no-
    prejudice ruling, and we remand for further proceedings consistent
    with this decision.   Each party will bear its own costs on the
    appeal.
    It is so ordered.
    -25-