Dinan v. Alpha Networks, Inc. , 764 F.3d 64 ( 2014 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 13-1976
    MICHAEL DINAN,
    Plaintiff, Appellant,
    v.
    ALPHA NETWORKS, INC.
    Defendant, Appellee.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MAINE
    [Hon. John A. Woodcock, Jr., U.S. District Judge]
    Before
    Lynch, Chief Judge,
    Selya and Kayatta, Circuit Judges.
    Patrick S. Bedard, with whom Bedard & Bobrow, P.C. was on
    brief, for appellant.
    Daniel P. Schwarz, with whom Jackson Lewis, P.C. was on brief,
    for appellee.
    August 20, 2014
    KAYATTA, Circuit Judge.   Michael Dinan, a resident of
    Maine, began working for California-based Alpha Networks as a
    salesman in 2005 pursuant to a written employment agreement.     In
    2010 Dinan ceased working for Alpha because of a dispute over how
    much he was entitled to be paid in commissions.          Litigation
    followed.    A jury ultimately found that the written agreement
    included no promise to pay Dinan commissions on sales after 2008,
    but that Dinan was entitled to quasi-contract damages in the amount
    of $70,331.93 for sales made in 2009 and 2010.   The question then
    remained whether to treble those damages and award attorneys' fees
    under Maine's wage payment law, or instead to add on to the damage
    award only liquidated damages of $7,799.97 under California law.
    Finding the question to be a close one, the district court opted to
    rely on a choice-of-law provision in the written agreement calling
    for application of California law in certain disputes.     Agreeing
    that determining the correct choice of law on this unusual record
    is not straightforward, we nevertheless find that Maine's highest
    court would most likely deem Dinan entitled to the full array of
    remedies set forth in Maine's wage payment law. We therefore vacate
    the award and remand the case so that the district court can treble
    damages, calculate interest, and entertain a request for attorneys'
    fees under Maine law.
    -2-
    I. Background
    The parties do not dispute the basic facts on appeal.
    Alpha is a California-based designer and manufacturer of modems,
    routers, switches, and other computer hardware.                     Rather than market
    its    products    under     its   own    brand,       Alpha   is     a    "white-label"
    manufacturer, selling to other companies who market the devices
    under their brand names.           Dinan's job was to sell Alpha's devices
    to those brands.          When Dinan joined Alpha in 2005, he lived in
    Portland, Maine.         Though he initially thought he might have to move
    to Boston, Alpha ultimately concluded that he could work from Maine.
    Prior to commencing work for Alpha, Dinan signed a letter from Alpha
    specifying the terms of his employment ("the 2005 agreement") which
    provided that Alpha would pay him, in part, based on a specified
    commission structure.
    After he joined Alpha, Dinan spent his first week and a
    half    in    California     learning         about    Alpha    and       its   products.
    Thereafter he worked from his home in Portland except when he
    traveled     to   meet    customers      in    other    states,      including     Texas,
    Alabama, and Massachusetts.           In 2008, Alpha sent an email to Dinan
    containing a new commission structure ("the 2008 compensation
    plan").      Dinan thought that the 2008 compensation plan was likely
    to compensate him less than the commission structure in the 2005
    agreement.        He   expressed    his       unhappiness      to    his    bosses   and,
    according to his trial testimony, was promised a new compensation
    -3-
    plan for sales in 2009, though he was not promised that it would
    provide him with better terms than the 2008 compensation plan.               No
    new compensation plan was ever announced.
    Dinan   left   Alpha   in    March     2010,   having   received   no
    commissions on his sales in 2009 or 2010 aside from a $4,000 payment
    that he received in December of 2009.            Shortly thereafter, Dinan
    filed suit in Maine state court.            After Alpha removed the case to
    federal court it proceeded to trial.           At trial, the jury was asked
    to consider, among other things, Dinan's claims for breach of
    contract and, alternatively, for so-called quasi-contract damages.
    The jury concluded that Dinan had not "established that Alpha . . .
    and he entered into an employment agreement in which Alpha . . .
    promised to pay him commissions for 2009 and 2010." It nevertheless
    also found that Dinan had "established that he [was] entitled to
    damages under quasi-contract," that the amount of those damages was
    $70,331.93, and that he had "established that Alpha . . . failed to
    pay [him] his wages, including commissions."
    After trial the parties disagreed about which state's law
    governed whether and to what extent the jury's award of damages
    should be augmented with additional remedies. Under California law,
    the parties agree, Dinan would be entitled to 30 days' wages (which
    the jury valued at $7,799.97) as liquidated damages in addition to
    the $70,331.93 in compensatory quasi-contract damages awarded by the
    jury. See 
    Cal. Lab. Code § 203
    . The parties also agree that, under
    -4-
    Maine law, Dinan would be entitled to a liquidated damages award of
    double his compensatory damages, equaling an additional $140,663.86,
    as well as attorneys' fees and costs.     See Me. Rev. Stat. tit. 26,
    § 626. The district court found that California law applied. Dinan
    also argued unsuccessfully below that he was entitled to pre-
    judgment interest on any liquidated damages he was awarded.      Id.
    II.    Standard of Review
    This appeal presents exclusively questions of law, not
    fact or discretion, hence our review is de novo.          See, e.g.,
    Robidoux v. Muholland, 
    642 F.3d 20
    , 22 (1st Cir. 2011).          With
    jurisdiction in the District of Maine resting solely on diversity
    of citizenship, we answer these substantive questions of law as we
    expect Maine's highest court, its Law Court, would answer them.
    See, e.g., Samaan v. St. Joseph Hosp., 
    670 F.3d 21
    , 29 (1st Cir.
    2012).
    III.   Discussion
    A. The Choice of Law Question
    Resolving the choice-of-law issue central to this appeal
    begins with considering the parties' 2005 agreement specifying the
    original terms of Dinan's employment.     That agreement included the
    following clause:
    The terms of this letter shall be governed by and
    construed and enforced in accordance with the laws of the
    State of California, without giving effect to any choice
    or conflict of law provision or rule (whether of the
    State of California or any other jurisdiction) that would
    -5-
    cause the application of the laws of any jurisdiction
    other than the State of California.        Any term or
    provision of this letter agreement that is invalid or
    unenforceable in any situation in any jurisdiction shall
    not affect the validity or enforceability of the
    remaining terms and provisions hereof or the validity or
    enforceability of the offending term or provision in any
    other situation or in any other jurisdiction.
    See Dinan v. Alpha Networks Inc., 
    957 F. Supp. 2d 44
    , 54 (D. Me.
    2013).   Under Maine law, this choice of law provision would govern
    a claim for breach of the 2005 agreement unless (1) California had
    no substantial relationship to the parties or the transaction or (2)
    applying California law would be contrary to "a fundamental policy
    of a state which has a materially greater interest" than California
    as to the "determination" of this particular issue.                   Schroeder v.
    Rynel, Ltd., 
    720 A.2d 1164
    , 1166 (Me. 1998); Restatement (Second)
    of Conflict of Laws § 187 (1971).
    Alpha in fact sought to build its defense at trial on the
    foundation   of    the   2005       agreement.      It    argued    that    the   2008
    compensation      plan   was    a    modification    of    the     2005    employment
    agreement, that Dinan accepted the modification by continuing to
    work for Alpha, and that the 2005 agreement, as modified by the 2008
    compensation plan, set forth the terms of Alpha's promise to pay
    commissions for 2009 and 2010. Consistent with this approach, Alpha
    agreed to a jury instruction as follows:
    The   parties  have   presented   evidence   of  a   2005
    compensation plan and a 2008 compensation plan. If you
    determine that an agreement was in force in 2009 and
    2010, you must determine the terms of that agreement.
    Alpha contends that a 2008 compensation plan modified the
    -6-
    2005 employment agreement. An employee who continues to
    work for his employer after the employer has given notice
    of changed terms and conditions of employment has
    accepted the changed terms and conditions. If you find
    the 2008 plan was in place during 2009 and 2010, you may
    find that Mr. Dinan is entitled to compensation under
    that plan.
    This was a seemingly solid argument, but the jury rejected
    it. The jury found that Alpha and Dinan had no agreement that Alpha
    would pay commissions for 2009 and 2010. In one respect, this meant
    that Alpha won the breach of contract claim.    In another respect,
    though, the jury's verdict is more clearly read as a finding that
    the 2005 agreement simply did not govern the terms of the parties'
    relationship in 2009 and 2010 (i.e., in the words of the district
    court's instruction, it was not "in force in 2009 and 2010").
    The verdict form, accordingly, required the jury to
    proceed   further    and   consider   an   alternative   claim   of
    "quasi-contract" if it found that there was no promise in an
    employment agreement to pay commissions for 2009 and 2010. The jury
    verdict for Dinan thus rested entirely upon a claim for "breach of
    a quasi-contract."   The jury instructions, to which Alpha did not
    object, stated as follows:
    Mr. Dinan claims that even if he did not have a valid
    contract with Alpha that entitled him to bonuses, he is
    entitled to payment for the services he rendered. This
    amounts to a claim that he and Alpha had a quasi
    contract.
    To prove a claim of breach -- for breach of a quasi
    contract, Mr. Dinan must prove by a preponderance of the
    evidence that: One, he rendered services to Alpha; two,
    the services were rendered with Alpha's knowledge and
    -7-
    consent; and, three, the services were rendered under
    circumstances that make it reasonable for the plaintiff
    to expect payment.
    In finding Alpha liable on this theory alone, the jury found Alpha
    independently liable not by force of promise, but by virtue of
    knowingly having accepted services "under circumstances that make
    it reasonable for [Dinan] to expect payment."
    This brings us back to the choice-of-law clause in Alpha's
    letter to Dinan that constituted the 2005 agreement.            While Alpha
    claims    that   the   clause   governs    "disputes   about   the   parties'
    employment relationship," it is in fact narrower than that.                It
    states only that "[t]he terms of this letter" are to be "governed
    by and construed and enforced" under California law.           The question
    of what fair compensation is due Dinan under a quasi-contract theory
    calls for no construction or enforcement of the terms of that
    letter.    Rather, instead of telling the jury to calculate damages
    based on a reading of the 2005 agreement, the court (again without
    challenge) told the jury to determine "the reasonable value of the
    services."
    Alpha also argues that what really happened here is that
    the jury came up with a missing term of the 2005 agreement (i.e.,
    a compensation plan for 2009 and 2010).        Such an approach certainly
    would have made much sense in the abstract. The problem is that the
    jury clearly found no breach of any promise of any type, whether
    express or implied, under the 2005 agreement, instead effectively
    -8-
    finding that the agreement simply did not deal with 2009 and 2010
    commissions. And the 2005 agreement on its face disavows having any
    unexpressed    terms,   stating   that    it   "form[s]   the   complete   and
    exclusive statement of [Dinan's] employment with [Alpha]."            In any
    event, since Alpha agreed that the jury could consider a claim for
    breach of quasi-contract even where the parties had an actual
    contract, and since the jury found no breach of any promise in the
    2005 agreement, it cannot now say that the jury should only have
    been allowed to hold it liable for a breach of a term of the 2005
    agreement, whether express or "missing."
    In sum, the parties' 2005 choice-of-law agreement about
    the law to be applied in construing and enforcing the 2005 agreement
    does not apply to a duty that, the jury found, arose outside of that
    agreement.     And while Alpha argues that the jury's verdict seems
    hard to reconcile with the facts, Alpha has filed no cross-appeal
    challenging either the jury instructions or the jury's finding on
    the quasi-contract claim, and so we must accept that finding of
    liability as a given.
    Anticipating that we might find that the choice-of-law
    provision in the 2005 agreement does not directly apply to Dinan's
    quasi-contract claim, Alpha advances two arguments for applying the
    choice-of-law agreement indirectly.        First, it argues that because
    quasi-contract claims are a type of contract claim, we should apply
    to the quasi-contract claim the same choice of law that the parties
    -9-
    agreed would apply to a claim for breach of the 2005 agreement.
    While we agree with Alpha that a quasi-contract claim shares much
    in common with a breach of contract claim, see Paffhausen v. Balano,
    
    708 A.2d 269
    , 271 n.3 (Me. 1998), it does not follow that a choice-
    of-law clause in the 2005 agreement must therefore apply to any
    issues arising under the quasi-contract claim.                For example, even
    if parties have two actual contracts, only one of which has a
    choice-of-law clause concerning its enforcement, there is no reason
    simply to assume that the choice-of-law clause also applies to the
    second contract.     Instead, we would likely infer that the parties
    left out such a clause in the second contract because they did not
    want it.   Here, similarly, given the fact that the parties did not
    agree to a broad choice-of-law clause covering all dealings they
    might have, it makes sense to infer just the opposite of what Alpha
    would have us infer.
    Second,   Alpha      also    points   to    decisions     that       apply
    contractual choice-of-law provisions to non-contract claims that are
    related to a contract brought by one party to the contract against
    the other.    See Ne. Data Sys., Inc. v. McDonnell Douglas Computer
    Sys. Co., 
    986 F.2d 607
    , 610 (1st Cir. 1993) ("[W]hen parties agree
    that 'contract related' claims will be tried under, say, the law of
    California,   they   do   not    mean    that    a    claim   of   'serious'         or
    'rascal-like'   breach    of    contract      will    be   tried   under    .    .   .
    Massachusetts [General Laws Chapter 93A]."); Stonyfield Farm, Inc.
    -10-
    v. Agro-Farma, Inc., 08-CV-488, 
    2009 WL 3255218
     at *6 (D.N.H. Oct.
    7, 2009) (applying contractual choice-of-law provision to tort
    claims predicated on breach of contract).          It is precisely this
    argument that tipped the balance (albeit with "some hesitation") for
    the able district court judge.      Dinan v. Alpha Networks Inc., 
    957 F. Supp. 2d 44
    , 55 (D. Me. 2013).          If Dinan's claim called for
    enforcing obligations arising from the terms of the 2005 agreement
    (even using non-contract theories), this argument would get to first
    base.      Here, though, the obligation being enforced would have
    existed even had there never been a contract. In other words, while
    the concept of quasi-contract liability is certainly related to the
    concept of liability for breach of contract, the specific implied
    agreement found to exist here does not rest on the 2005 agreement
    between the parties that is the sole subject of the choice-of-law
    clause. It is, in short, not a "breach-of-the-2005-agreement-plus"
    claim; it is an "even-though-no-breach-of-the-2005-agreement" claim.
    Having thus rejected the argument that the 2005 agreement
    resolves    the   choice-of-law   issue,   we   must   look   elsewhere   to
    determine what law applies to enforcing the free-standing, implied
    obligation upon which the jury rested its verdict.               Maine law
    provides no certain answer.       While we might therefore certify the
    question to Maine's Law Court pursuant to Maine Revised Statutes
    title 4, section 57, neither party so requests, the case has already
    -11-
    once taken such a detour to resolve a question of state law,1 and
    our analysis, described below, leaves us sufficiently confident that
    our own answer accurately predicts how the Law Court would resolve
    this question.
    To determine what state's law applies to enforcing the so-
    called   quasi-contract,   Dinan    points   to   section   196   of   the
    Restatement (Second) of Conflict of Laws (1971), which states:
    The validity of a contract for the rendition of services
    and the rights created thereby are determined, in the
    absence of an effective choice of law by the parties, by
    the local law of the state where the contract requires
    that the services, or a major portion of the services, be
    rendered, unless, with respect to the particular issue,
    some other state has a more significant relationship
    under the principles stated in § 6 to the transaction and
    the parties, in which the event the local law of the
    other state will be applied.
    Comment b to section 196 explains further that:
    The importance in the choice-of-law process of the place
    where the services, or a major portion of the services,
    are to be rendered . . . enjoys greatest significance
    when the work is to be more or less stationary and is to
    extend over a considerable period of time. This is true
    of a contract for employment on the ordinary labor force
    of a particular factory. By way of contrast, the place
    where the services are to be rendered is of lesser
    importance when the services are to be of relatively
    brief duration, such as when a workman is employed to do
    a minor repair job in a given state, or when the
    employee's duties will require him to travel with fair
    frequency between two or more states.
    1
    The district court certified to the Law Court the question
    of whether Maine's wage payment statute, Me. Rev. Stat. tit. 26, §
    626, is applicable to quasi-contract damages. See Dinan v. Alpha
    Inc., 
    60 A.3d 792
     (Me. 2013).
    -12-
    Maine has not expressly adopted section 196, but there is
    no reason to think it would not look to section 196 in the absence
    of any Maine precedent to the contrary.            See Schroeder v. Rynel,
    Ltd., 
    720 A.2d 1164
    , 1166 (Me. 1998) (collecting "past [Maine]
    decisions favoring the use of the Restatement to resolve choice of
    law disputes").
    Alpha does not directly respond to Dinan's reliance on
    section 196.     Indeed, it does not even mention section 196 in its
    brief.   It does argue in a footnote, however, that although Dinan
    made   his   calls   from   his   home    in   Maine,   Alpha   performed   its
    obligations from California.        Section 196, though, looks primarily
    to where the party rendering services renders those services, not
    to where the party paying for the services operates.
    We recognize that section 196 applies to contracts, making
    no mention of quasi-contracts.            However, Maine law (pursuant to
    which we undertake this conflict-of-law inquiry, see, e.g., Butler
    v. Balolia, 
    736 F.3d 609
    , 612 (1st Cir. 2013)) recognizes that
    quasi-contract claims "involve[] recovery for services or materials
    provided under an implied contract." Paffhausen v. Balano, 
    708 A.2d 269
    , 271 (Me. 1998).        While a quasi-contract involves no actual
    agreement, the parties here bear the same relationships to Maine and
    California, and have behaved toward each other, for the most part,
    as they would have if they had a contract governing payment of
    commissions for 2009 and 2010.           Nor is there any other section of
    -13-
    the Restatement more applicable to a quasi-contract claim than
    section 196.     In short, the logic underlying section 196 supports
    the application of the same principles to quasi-contract clams.
    We have also reviewed the record as a whole, noting that
    Dinan's customers were mostly or entirely located outside of Maine.
    There is no indication, though, that services were rendered more
    frequently in any of those states than they were from Dinan's home
    base in Maine.    Indeed, Dinan presented uncontested testimony that
    "most of [his] work and time was spent in Maine."          To the extent
    that the applicability of section 196 is nevertheless unclear in
    this oddly posed case, the very nature of Maine substantive law
    aligns with section 196's focus on the place where services are
    rendered by the employee.      Maine's wage payment law, Me. Rev. Stat.
    tit. 26, § 626, manifests on its face a legislative intent to
    protect employees from employers who fail to pay wages.         We doubt
    that Maine's highest court would find that a company procuring
    services from a Maine resident performed mostly in Maine can avoid
    compliance with Maine's fair wage laws merely because the company
    procuring the services conducts its own operations outside of Maine.
    For all of the foregoing reasons, we find that Maine
    substantive    law   governs   enforcement   of   the   quasi-contractual
    relationship found to exist between the parties in 2009 and 2010.
    B.        Pre-Judgment Interest on Liquidated Damages
    -14-
    Dinan has preserved for review his argument, rejected by
    the district court, that prejudgment interest should be calculated
    on the basis of his entire judgment for unpaid wages and liquidated
    damages, rather than just on the basis of the unpaid wages.      The
    wage payment statute itself states that:
    An employer found in violation of this section is liable
    for the amount of unpaid wages and, in addition, the
    judgment rendered in favor of the employee or employees
    must include a reasonable rate of interest, an additional
    amount equal to twice the amount of those wages as
    liquidated damages and costs of suit, including a
    reasonable attorney's fee.
    Me. Rev. Stat. tit. 26, § 626.2        Section 626-A, which governs
    generally penalties for violating a number of statutory rules
    governing the payment of wages, including section 626, contains
    almost identical language.3   This formulation implies, but by no
    means dictates, that interest is assessed first, before adding
    2
    In answering the district court's certified question, the
    Law Court held that section 626 is applicable to quasi-contract
    damages if "the services rendered . . . are of the type for which
    an employee would have been due wages." Dinan, 
    60 A.3d at 797
    .
    Alpha does not dispute on appeal that the district court was
    correct to conclude that section 626 therefore applies to Dinan's
    quasi-contract damages.
    3
    Specifically it reads in relevant part:
    Upon a judgment being rendered in favor of any employee
    or employees, in any action brought to recover unpaid
    wages or health benefits under this subchapter, such
    judgment includes, in addition to the unpaid wages or
    health benefits adjudged to be due, a reasonable rate of
    interest, costs of suit including a reasonable attorney's
    fee, and an additional amount equal to twice the amount
    of unpaid wages as liquidated damages.
    -15-
    liquidated damages.         On the other hand, Maine's general prejudgment
    interest statute, Me. Rev. Stat. tit. 14, § 1602-B(1)-(3), provides
    broadly,    with        limited    exceptions    not   here   applicable,     for
    prejudgment interest in civil actions, and refers to interest on the
    judgment, not a portion of the recovery making up the judgment.
    The issue thus posed is whether the general rule of
    section 1602-B is trumped by the implied limitation one might, but
    need not, infer from the language of sections 626 and 626-A.                  The
    district court found that sections 626 and 626-A did indeed limit
    an award of prejudgment interest to the actual damages portion of
    the judgment, and that this implied limitation, rather than the
    general    rule    of    section    1602-B,    controlled.    On   balance,    we
    disagree.
    Chronology guides our analysis. Section 1602-B (formerly
    section 1602) contains the background rule that predated the current
    -16-
    version    of   626    and   entirely   predated     section   626-A.4      It    is
    structured as a general rule that applies to all actions other than
    certain actions expressly excepted.                It applies as well to all
    damages, even punitive damages.            See Haworth v. Feigan, 
    623 A.2d 150
    , 159 (Me. 1993). Sections 626 and 626-A, as thereafter enacted,
    contain no language expressly indicating any intention to create a
    new   exception       to   the   general   rule.      Furthermore,       when    the
    legislature later amended section 1602-B to add, in section 1602-
    B(1), a new exception to the general rule (for small claims actions)
    4
    Prior to 1975, section 626 read simply:
    Any employee, leaving his or her employment, shall be
    paid in full within a reasonable time after demand at the
    office of the employer where payrolls are kept and wages
    are paid. Whoever violates any of the provisions of this
    section shall be punished by a fine of not less than $25
    nor more than $50.
    
    1975 Me. Laws 724
    . In 1975 section 626 was revised to add the
    language about prejudgment interest that it contains today. Also
    in 1975, section 626-A was first enacted containing the same
    language about prejudgment interest that it contains today. At
    that time section 1602 read:
    In all civil actions, except those actions involving a
    contract or note which contract or note contains a
    provision relating to interest, interest shall be
    assessed from the date on which the complaint is filed in
    court, provided that if the prevailing party at any time
    requests and obtains a continuance for a period in excess
    of 30 days and the losing party at no time requests and
    obtains a continuance, interest will be assessed from the
    time of entry of judgment. From and after date of
    judgment, interest shall be allowed at the rate of 10%
    per year.
    
    Me. Rev. Stat. Ann. tit. 14, § 1602
     (West 1972).
    -17-
    and, in section 1602-B(5), a provision that allows a trial court to
    waive prejudgment interest for good cause, it did not add an
    exception covering wage payment claims or liquidated damages.                  Of
    course, an alternative reading of this chronology is possible.                One
    could argue that the legislature, in amending section 1602-B, did
    exempt   liquidated       damages   in   wage   payment   actions   because    it
    regarded section 626 as already creating such an exemption.                  Such
    an argument, though, places a great deal of weight on the notion
    that, merely by listing interest second in the litany of remedies,
    section 626 created such a new--and unusual--exemption from a long-
    standing general rule.          It seems unlikely, too, that merely by
    adding interest to the list of remedies available in wage payment
    actions the legislature intended to subtract from the scope of the
    remedies independently available under section 1602-B.              We think it
    more likely that in enacting section 626-A, the legislature focused
    on section 626-A, and wanted to be sure interest was available.
    Our conclusion finds more support, albeit indirectly, in
    Avery v. Kennebec Millwork, Inc., 
    861 A.2d 634
     (Me. 2004).               Avery
    addressed an analogous issue: Might one infer from section 626's
    grant    of    interest    at   a   "reasonable    rate"    an   exception    to
    section 1602-B(3)'s general rule providing for a particular (and
    relatively high) rate ("the one-year United States Treasury bill
    rate plus 3%")?      The Law Court answered "no," finding the general
    rule of section 1602-B controlling.                
    Id. at 636
    .       Even more
    -18-
    significantly,    in     so   ruling    the    Law    Court     stressed   that
    section 1602-B "applies to all civil actions except [the listed
    exceptions]," and that an action under section 626 is a "civil
    action."    
    Id. at 636
     (emphasis in original).            And while the Law
    Court did not expressly address the question posed here, it did
    expressly and without qualification order that "the clerk . . .
    should calculate the interest on the judgment . . . in accordance
    with 14 M.R.S.A. § 1602-B."            Id.    The judgment included both
    compensatory   and     liquidated   damages.     In    short,    even   without
    prompting by the parties, or the trial court (which itself appeared
    to have assessed interest on only the actual wages, id. at 636 n.2),
    the Law Court in Avery nevertheless appears to have presumed that
    in a wage payment action interest is calculated under § 1602-B based
    on the entire judgment, including all damages.
    More generally, Maine recognizes that one purpose of
    prejudgment interest is to "encourage[] the defendant to conclude
    a pretrial settlement of [a] clearly meritorious suit[]."               Jasch v.
    Anchorage Inn, 
    799 A.2d 1216
    , 1219 (Me. 2002) (internal quotation
    marks omitted).        Prejudgment interest furthers this purpose by
    reducing the benefit of delay to a defendant (and simultaneously
    preserves the real economic value of the entire claim).                    This
    purpose is undercut if prejudgment interest runs only on part of the
    judgment.
    -19-
    Finally, even if section 1602-B controls, the trial court
    still retains the discretion to waive prejudgment interest on all
    or part of the judgment.    See § 1602-B(5) ("On petition of the
    nonprevailing party and on a showing of good cause, the trial court
    may order that interest awarded by this section be fully or
    partially waived.").   Familiar with how and why a case went to
    trial, the respective positions of the parties, and the size of the
    liquidated damages, a trial judge can exercise this discretion to
    eliminate any actual unfairness from the availability of prejudgment
    interest on liquidated damages in any particular case.
    Confident enough in the foregoing analysis to reverse the
    contrary ruling of the district court, we nevertheless make no claim
    that the correct answer is clear.     To the contrary, we considered
    certifying the issue to the Law Court, deciding not to do so because
    no party so requested, the case has already traveled that route
    once, and we do not want the tail to wag the dog as the plaintiff
    still awaits receipt of even his wages.     Certainly nothing in our
    decision can prevent Maine's courts from settling on a different
    answer in the many wage payment claims that come before them. Until
    and unless Maine's courts so conclude, however, our best judgment
    is that prejudgment interest applies, as in Avery, to the judgment.
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    IV. Conclusion
    For the foregoing reasons we vacate the judgment of the
    district   court   and   remand   the   case   for   further   proceedings
    consistent with this opinion.      Costs are awarded to Dinan.
    So ordered.
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