Primarque Products Co., Inc. v. Williams W. & Witt's Prod. Co.

United States Court of Appeals
For the First Circuit
Nos. 19-1463, 19-1484
PRIMARQUE PRODUCTS CO., INC.,
Plaintiff, Appellant / Cross-Appellee,
v.
WILLIAMS WEST & WITTS PRODUCTS COMPANY
d/b/a INTEGRATIVE FLAVORS,
Defendant, Appellee / Cross-Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
Before
Thompson and Barron,
Circuit Judges.*
Andrew Lawlor, with whom Fedele and Murray, P.C. was on brief,
for Appellant/Cross-Appellee.
Rodney L. Lewis, with whom Polsinelli, P.C. was on brief, for
Appellee/Cross-Appellant.
* Judge Torruella heard oral argument in this matter and
participated in the semble, but he did not participate in the
issuance of the panel's opinion in this case. The remaining two
panelists therefore issued the opinion pursuant to 28 U.S.C.
§ 46(d).
February 12, 2021
BARRON, Circuit Judge. The appeal and cross-appeal at
issue here stem from litigation in the District of Massachusetts
that followed the termination, without advance notice, of a thirty-
nine-year business relationship between a company that
manufactured and supplied soup base products and a company that
distributed them. Following a five-day trial, the jury awarded
the distributor $255,000 in total damages for its Massachusetts-
law breach of contract and tortious interference with business
relations claims against the manufacturer, although the District
Court denied the distributor's motion for prejudgment interest on
those damages. The District Court also granted summary judgment
to the manufacturer on the distributor's claim against it under
Chapter 93A of the Massachusetts Consumer Protection Act, Mass.
Gen. Laws ch. 93A ("Chapter 93A"), and to the manufacturer on its
counterclaim for breach of contract under Massachusetts law, for
which the District Court awarded the manufacturer $97,843.22 in
damages, plus prejudgment interest. The distributor now appeals
from various of the District Court's pre- and post-verdict rulings,
while the manufacturer cross-appeals. We reverse in part and
vacate in part in the distributor's appeal, and we affirm in the
manufacturer's cross-appeal.
- 3 -
I.
A.
The following facts, which were supportably found by the
District Court both at summary judgment and in its rulings on
certain post-trial motions, are undisputed on appeal. Primarque
Products Co. ("Primarque"), the appellant, is a Massachusetts-
based distributor of food products, including soup base products.
Williams West & Witts Products Co. d/b/a Integrative Flavors
("WWW"), the cross-appellant, is an Indiana-based manufacturer and
supplier of soup base products that is incorporated in Illinois.
Primarque and WWW have conducted business with each another since
1976.
Primarque and WWW briefly entered into written
distribution agreements in, respectively, 1987 and 1990, but, by
1993, each of those agreements had terminated. After the period
in which those agreements were in effect, however, the parties
continued to do a large amount of business with each other.
Their repeated transactions during this period involved
Primarque as a distributor sending a purchase order to WWW
detailing the desired soup base type, quantity, cost, method of
shipping, and delivery location; WWW as a manufacturer and supplier
filling the order and invoicing Primarque; Primarque paying WWW
for what it had been invoiced; and Primarque reselling the products
that it purchased from WWW to a variety of retail customers. The
- 4 -
parties' transactions during this period also involved what the
parties referred to as the "Drop Ship Arrangement," pursuant to
which WWW shipped soup base products directly to certain retail
customers known as the "Drop Ship Customers" that had purchased
soup base products through Primarque.
The Drop Ship Arrangement relieved Primarque, as a
distributor, of the hassle of receiving, storing, and re-shipping
the soup base products; and this practice, in turn, made
Primarque's pricing for those products more competitive with its
retail customers. WWW, however, did not during this period
directly solicit business from Drop Ship Customers. Moreover, if
those customers made inquiries with WWW about directly purchasing
its soup base products, WWW referred them to Primarque. Primarque,
for its part, did not solicit business from customers buying soup
base products from WWW directly.
Primarque did sell other suppliers' soup base products
to certain of its retail customers, but it still was WWW's largest
purchaser of those products. WWW, in turn, was Primarque's largest
supplier of them. As an indication of the scale of the business
that the two parties did with each other, in 2014, Primarque
- 5 -
purchased approximately $1,313,175.59 worth of soup base products
from WWW.1
The events that precipitated the dispute that gives rise
to these appeals began in May of 2014, when Primarque, without
notifying WWW, started meeting with competitors of WWW about their
supplying Primarque with "replacement" soup base products for
Primarque to sell to its retail customers. Primarque signed
memoranda of understanding with two of those competitors, Major
Foods and Eatem. As Major Foods and Eatem developed replacement
products for Primarque to distribute, Primarque began relying on
them to supply it with some of the soup base products that it had
previously relied on WWW to supply.
On March 9, 2015, WWW reviewed its sales numbers and
identified certain downward trends related to its business with
Primarque. The next day, WWW sent an e-mail to Jack Barron,
Primarque's owner and president, in which it inquired whether
Primarque's business was down generally or whether it was
transitioning some of its business away from WWW. Barron replied:
"[a] combination of both."
Two days later, on March 12, 2015, WWW notified Primarque
that it would no longer be selling its products to Primarque,
1 This was about a $60,000 increase from calendar year 2013,
when Primarque purchased $1,254,674.56 worth of soup base products
from WWW.
- 6 -
effective that day. On the same day, WWW informed the Drop Ship
Customers that Primarque was no longer distributing WWW products
and that these customers could now obtain soup base products
directly from WWW at lower prices. WWW thereafter began selling
soup base products directly to some of the Drop Ship Customers.
B.
In response to WWW's actions, Primarque filed suit in
Massachusetts state court on March 19, 2015. WWW then removed the
case to the United States District Court for the District of
Massachusetts based on diversity jurisdiction.
Primarque's complaint asserted four claims against WWW
under Massachusetts law: breach of contract (Count I), promissory
estoppel (Count II), tortious interference with business relations
(Count III), and a violation of Chapter 93A (Count IV). Primarque
sought damages based on lost profits from sales that it alleged
that it would have made to the Drop Ship Customers in the absence
of WWW's abrupt termination of their relationship, including sales
that Primarque alleged that it would have made to those customers
after the filing of the complaint.
WWW in turn filed a counterclaim under Massachusetts law
for breach of contract. WWW based this claim for breach of
contract on Primarque's conceded withholding of payment on a final
shipment of $97,843.22 worth of goods that it had received from
- 7 -
WWW, for which WWW sought the unpaid amount plus prejudgment
interest.
C.
Following discovery, WWW moved for summary judgment in
its favor as to both Primarque's claims against it and its
counterclaim. On March 29, 2018, the District Court ruled that
(1) WWW was entitled to summary judgment on its counterclaim for
breach of contract and that it was entitled to $97,843.22 in
damages plus prejudgment interest; (2) WWW was entitled to summary
judgment on Primarque's Chapter 93A claim because there was not "a
scintilla of evidence that WWW engaged in any unfair[] or deceptive
act or practice"; and (3) WWW was also entitled to summary judgment
on Primarque's promissory estoppel claim and as to substantial
aspects of Primarque's breach of contract and tortious
interference with business relations claims. See Primarque Prods.
Co. v. Williams W. & Witts Prods. Co., 303 F. Supp. 3d 188, 191 &
n.1, 205-07, 209 (D. Mass. 2018). But, as to those lattermost
claims, the District Court stated that, even absent a written
agreement, "Massachusetts law would still require WWW to provide
Primarque with reasonable notice of its intent to terminate the
parties' distributorship arrangement," id. at 205, and it further
determined that "there is a question of fact as to whether WWW
improperly terminated the parties' relationship without reasonable
notice," id. at 208.
- 8 -
The case went to trial later that year. The District
Court instructed the jury that before it could find in Primarque's
favor on the issue of whether WWW had provided it with reasonable
notice of termination, the jury would first have to determine
"whether Primarque and WWW had a contract for the sale of soup
base" "under which . . . WWW would prove periodic shipments of
goods to" Primarque -- a determination which the jury could make
in view of the "conduct [of] both parties." On June 1, 2018, the
jury unanimously found by special verdict that WWW and Primarque
did "have a contract for the continuing purchase and sale of soup
base" and that "WWW, without excuse, breach[ed] its contract with
Primarque by failing to provide reasonable notice of its
termination of that contract." The jury also found that "WWW
intentionally and improperly interfere[d] with Primarque's
advantageous business relations with its drop ship customers" and
that this interference "induce[d] such customers to stop doing
business with Primarque." The jury determined that Primarque was
entitled to damages amounting to $51,000 on the breach of contract
claim and $204,000 on the tortious interference with business
relations claim. See Primarque Prods. Co. v. Williams W. & Witts
Prod. Co., 368 F. Supp. 3d 192, 195 (D. Mass. 2019).
WWW thereafter moved under Fed. R. Civ. P. 50(b) for the
District Court to set aside the jury's verdict on Primarque's
breach of contract and tortious interference with business
- 9 -
relations claims, having earlier moved at the close of Primarque's
case-in-chief under Fed. R. Civ. P. 50(a) for the District Court
to grant WWW judgment as a matter of law on those two claims. The
District Court denied the motions but granted a separate request
by WWW under Fed. R. Civ. P. 59(e) to reduce the jury's award of
damages to Primarque on those claims by $51,000, as the District
Court agreed with WWW that the jury's $51,000 damages award on
Primarque's breach of contract claim was duplicative of its
$204,000 damages award on Primarque's tortious interference with
business relations claim. Id. at 198-99. The District Court also
entered judgment in favor of WWW on its counterclaim for breach of
contract, awarding WWW $97,843.22 in damages plus prejudgment
interest on that claim. Id. at 196 n.3, 202.
The District Court next addressed a request by Primarque
to "offset" the damages awarded to WWW on its counterclaim from
the damages that had been awarded to Primarque on its claims
against WWW. Id. at 199-200. In rejecting that request, the
District Court first determined that Primarque's $204,000 damages
award on its tortious interference with business relations claim
did not qualify for prejudgment interest and then denied
Primarque's offset request as "a blatant attempt to avoid paying"
the prejudgment interest that Primarque owed WWW on the
counterclaim. Id. at 200.
- 10 -
Primarque appealed, contending that the District Court
erred in (1) finding that the jury's damages award on Primarque's
breach of contract claim against WWW was duplicative of its damages
award on Primarque's tortious interference with business relations
claim against WWW; (2) failing to award Primarque prejudgment
interest for the damages on its tortious interference with business
relations claim and, relatedly, rejecting its offset request; and
(3) granting summary judgment to WWW on Primarque's Chapter 93A
claim. WWW cross-appealed, contending that the District Court
erred by (1) denying its motion for judgment as a matter of law as
to Primarque's breach of contract claim; (2) denying its motion
for judgment as a matter of law as to Primarque's tortious
interference with business relations claim; and (3) denying its
request for alternative relief under Fed. R. Civ. P. 59(e) to
reduce Primarque's total damages award for those claims to, at
most, $39,017, on the ground that any larger award of damages would
be unduly speculative.
II.
Massachusetts law applies to the tort and contract-law
issues in this case. See Performance Trans., Inc. v. Gen. Star
Indem. Co., 983 F.3d 20, 24 (1st Cir. 2020) (citing Dukes Bridge
LLC v. Beinhocker, 856 F.3d 186, 189 (1st Cir. 2017)). Our review
of the District Court's rulings on the motions for summary judgment
and judgment as a matter of law is de novo. See Zabala-De Jesus
- 11 -
v. Sanofi-Aventis P.R., Inc., 959 F.3d 423, 427 (1st Cir. 2020);
Hendricks & Assocs., Inc. v. Daewoo Corp., 923 F.2d 209, 214 (1st
Cir. 1991). We review "grants and denials of Rule 59(e)
motions . . . only for abuse of discretion," Marie v. Allied Home
Mortg. Corp., 402 F.3d 1, 7 n.2 (1st Cir. 2005) (citing Venegas–
Hernandez v. Sonolux Recs., 370 F.3d 183, 190 (1st Cir. 2004)),
but, in the course of that review, we review issues of law de novo,
see Crowe v. Bolduc, 365 F.3d 86, 90 (1st Cir. 2004).
III.
We begin with WWW's cross-appeal, because it concerns,
among other things, a threshold question: whether there was a
sufficient basis for a reasonable juror to find that there was a
contract between the parties that contained a requirement to
provide reasonable notice of termination of the contract.
Specifically, WWW claims that the District Court erred in denying
its motion for judgment as a matter of law on Primarque's breach
of contract claim because, in its view, "[t]he undisputed evidence
prove[d] there was no binding distribution agreement between the
parties." We thus start with that challenge before turning to the
others that WWW brings in its cross-appeal.
A.
As we noted at the outset, the District Court granted
WWW summary judgment on Primarque's breach of contract claim to
the extent that this claim rested on a theory that the parties had
- 12 -
an express contractual agreement. In doing so, the District Court
observed that it was undisputed that the parties "did not have a
written agreement" for the distribution and supply of soup base
products, Primarque, 303 F. Supp. 3d at 205, and the District Court
also determined in ruling on WWW's motion for summary judgment on
that claim that, as a matter of law, there also was no enforceable
oral agreement in place between them, id. at 205-06.2
As we also noted at the outset, however, the District
Court did not understand itself to have granted WWW summary
judgment on Primarque's breach of contract claim in full. Indeed,
2 As the District Court explained,
Primarque allege[d] that the parties had an
oral non-solicitation agreement whereby WWW
would indefinitely refrain from doing business
directly with Primarque's customers. . . .
However, . . . the terms of the alleged non-
solicitation agreement are not clear: did WWW
agree to only refrain from dealing with Drop
Ship Customers, and if so, was it only Drop
Ship Customers as to who WWW was Primarque's
only soup base supplier?
. . . .
Primarque [also] contend[ed] that WWW orally
promised to give 90 days' notice of its intent
to end the parties' distributorship
arrangement. . . . However, . . . Primarque
itself cannot define the terms of the
agreement. At times, the terms suggest that
notice was required only if WWW were sold or
closing. At other times, Primarque suggests
that the notice was required if WWW intended
to stop supplying product to it.
Primarque, 303 F. Supp. 3d at 205-06.
- 13 -
in the course of denying WWW's post-trial motion for judgment as
a matter of law, the District Court expanded on its summary
judgment rationale, explaining that, "[i]n ruling on WWW's motion
for summary judgment, I found that [while] there was no binding
written or oral agreement between the parties . . . the parties'
relationship was [still] governed by Mass. Gen. L[aws] ch. 106,
§ 2-309," a provision of the Massachusetts Uniform Commercial Code
("Massachusetts UCC") under which "a contract which is terminable
at the will of either party requires reasonable termination
notice." Primarque, 368 F. Supp. 3d at 197 (quoting Cherick
Distribs., Inc. v. Polar Corp., 669 N.E.2d 219, 220 (Mass. App.
Ct. 1996)); see also Mass. Gen. Laws ch. 106, § 2-309(3)
(hereinafter "Mass. UCC § 2-309(3)").3 Thus, the District Court
explained, it had allowed the breach of contract claim to go the
jury to the extent that claim was predicated on a theory that WWW
had breached the reasonable notice term imputed by Mass. UCC § 2-
309(3). See Primarque, 303 F. Supp. 3d at 205-06; Primarque, 368
F. Supp. 3d at 197.
3The text of this statute provides: "Termination of a
contract by one party except on the happening of an agreed event
requires that reasonable notification be received by the other
party and an agreement dispensing with notification is invalid if
its operation would be unconscionable." Mass. Gen. Laws ch. 106,
§ 2-309(3). The parties do not dispute that the Massachusetts UCC
is applicable as a general matter given that the parties' business
arrangement was one "relating to the present or future sale of
goods," namely, soup base products. Mass. Gen. Laws ch. 106, § 2-
106(1).
- 14 -
After Primarque presented its case-in-chief, but before
the jury rendered its verdict, WWW moved for judgment as a matter
of law under Fed. R. Civ. P. 50(a) as to the portion of Primarque's
breach of contract claim that the District Court understood itself
to have held survived WWW's summary judgment motion on it. The
District Court reserved ruling on that Rule 50(a) motion pending
the jury's verdict. The jury then determined that WWW was liable
on that breach of contract claim -- finding, by special verdict,
that Primarque and WWW "ha[d] a contract for the continuing
purchase and sale of soup base" and that "WWW, without excuse,
breach[ed] its contract with Primarque by failing to provide
reasonable notice of its termination of that contract" -- and
awarded damages on that claim to Primarque of $51,000. At that
point, WWW renewed its motion for judgment as a matter of law on
that claim under Fed. R. Civ. P. 50(b).
WWW contends on cross-appeal that the District Court
erred in denying its post-trial motion for judgment as a matter of
law. In conducting our de novo review of the District Court's
denial of that motion, we must consider whether "'the evidence
could lead a reasonable person to only one conclusion,' namely,
that the moving party was entitled to judgment." Hendricks, 923
F.2d at 214 (citations omitted) (quoting Conway v. Electro Switch
Corp., 825 F.2d 593, 598 (1st Cir. 1987)). We conclude that the
District Court did not err in denying the motion.
- 15 -
1.
In arguing that the District Court did err, WWW contends
as a threshold matter that the parties' course of dealing --
including what WWW calls their repeated transactions by means of
"[s]uccessive and consistent purchase orders and invoices" --
cannot on its own suffice to support the jury's finding that the
parties had a contract for the continuing purchase and sale of
soup base products, let alone that the parties had one imposing a
reasonable notice of termination requirement.4 In pressing this
contention, WWW does not dispute that, as the District Court
concluded, Massachusetts law -- specifically, Mass. UCC § 2-309(3)
-- makes clear that a reasonable notice of termination requirement
may be imputed as a term into a contract for the distribution of
goods even if the contract does not expressly include one, at least
so long as the parties do not expressly agree to dispense with
that imputed term. See Primarque, 368 F. Supp. 3d at 197; see
also Mass. UCC § 2-309(3). Instead, WWW contends that the statute
which provides the legal basis for imputing such a term into an
4 Although Primarque suggests that WWW waived this argument
-- a version of which was made by WWW at summary judgment, in its
motion for judgment as a matter of law under Fed. R. Civ. P. 50(a),
and in its renewed motion for judgment as a matter of law under
Fed. R. Civ. P. 50(b) -- by not adequately objecting to a
particular jury instruction, we do not need to pause to address
that contention because WWW's argument, in any event, "is wrong on
the merits." United States v. Leavitt, 925 F.2d 516, 517 (1st
Cir. 1991).
- 16 -
otherwise silent distribution agreement -- Mass. UCC § 2-309(3)
-- "is simply inapplicable" here, because "there was no legally-
binding distribution agreement between the parties."
WWW is right that Mass. UCC § 2-309(3), by its text,
presupposes the existence "of a contract" before imputing a
"reasonable notification" term. Id. (emphasis added). WWW
identifies no authority, however, to support the conclusion that
a distribution "contract" under this provision cannot be an
implied-in-fact one under Massachusetts law.5 And, indeed, the
Massachusetts UCC defines a "contract" as "the total legal
obligation that results from the parties' agreement," Mass. Gen.
Laws ch. 106, § 1-201(12), and further defines "agreement" as "the
5"[T]he law of contracts in most, if not all, jurisdictions
long has employed a process by which agreements . . . may be
'implied.'" Jago v. Van Curen, 454 U.S. 14, 18 (1981) (quoting
Perry v. Sindermann, 408 U.S. 593, 601-02 (1972)). Massachusetts
follows the majority rule in this regard. See, e.g., LiDonni,
Inc. v. Hart, 246 N.E.2d 446, 449 (Mass. 1969) ("In the absence of
an express agreement, a contract implied in fact may be found to
exist from the conduct and relations of the parties."); Popponesset
Beach Ass'n v. Marchillo, 658 N.E.2d 983, 987 (Mass. App. Ct. 1996)
("An implied-in-fact contract comes into being when,
notwithstanding the absence of a written agreement or verbal
agreement expressing mutual obligations, the conduct or relations
of the parties imply the existence of a contract." (citing
Restatement (Second) of Contracts § 4 cmt. a, illus. 1-2 (1981));
see also Gen. GMC, Inc. v. Volvo White Truck Corp., 918 F.2d 306,
309 (1st Cir. 1990) (applying Massachusetts law) (reversing grant
of summary judgment on breach of contract claim where "[t]here
[wa]s sufficient evidence on the record to show that an implied
contract may have been developed through the parties' course of
dealing").
- 17 -
bargain of the parties in fact, as found in their language or
inferred from other circumstances, including course of performance
[or] course of dealing," id. § 1-201(3) (emphasis added); see also
Restatement (Second) of Contracts § 4 cmt. a (1981) (reflecting
that this definition of "agreement" is the means by which the
Uniform Commercial Code recognizes implied-in-fact contracts).
Similarly, the Massachusetts UCC states that "[a] contract for
sale of goods may be made in any manner sufficient to show
agreement, including conduct by both parties which recognizes the
existence of such a contract." Mass. Gen. Laws ch. 106, § 2-
204(1) (emphasis added); see also id. § 2-204, Official Comment
(noting Massachusetts UCC's "basic policy of recognizing any
manner of expression of agreement, oral, written or otherwise"
(emphasis added)).
Nor are we persuaded by WWW's contention that Gettens
Electric Supply Co. v. W.R.C. Properties, Inc., 489 N.E.2d 217(Mass. App. Ct. 1986), requires that we conclude that the District
Court erred in determining that Mass. UCC § 2-309(3) could apply
here, even though the only evidence of there being a contract at
all was the evidence of the parties' course of dealing. That case
interpreted the statutory term "written contract" in a different,
non-UCC provision. Mass. Gen. Laws ch. 254, § 4 (emphasis added);
see Gettens, 489 N.E. 2d at 219 ("The written contract referred to
in th[is] portion of § 4 . . . seem[s] to us to refer to a written
- 18 -
contract . . . ."). It thus has no bearing on whether Mass. UCC
§ 2-309(3)'s unqualified reference to a "contract" encompasses
implied-in-fact contracts.6
2.
WWW also argues that the District Court's pre-trial
rulings effectively precluded the jury from concluding, as it did,
that the parties had a contract within the meaning of Mass. UCC
§ 2-309(3). WWW contends that, for this reason as well, the
District Court erred in declining to grant its motion for judgment
as a matter of law on Primarque's breach of contract claim. But,
again reviewing de novo, see Hendricks, 923 F.2d at 214, we find
no error.
WWW points to the District Court's determination in
rejecting WWW's motion for summary judgment on Primarque's breach
of contract claim that there was no enforceable written or oral
agreement between the parties. See Primarque, 368 F. Supp. 3d at
196. It further points to the District Court's decision to grant
Other cases invoked by WWW do not call this reading of § 2-
6
309(3) into question; indeed, they tend to support it. See
Teitelbaum v. Hallmark Cards Inc., 520 N.E.2d 1333, 1336 (Mass.
App. Ct. 1988) (holding that the performance of an oral agreement
would be "governed essentially by the [reasonable notice]
provisions of [Mass. UCC] § 2-309," without suggesting that a
different result would obtain for an implied-in-fact agreement);
RGJ Assocs., Inc. v. Stainsafe, Inc., 300 F. Supp. 2d 250, 251 (D.
Mass. 2004) (applying Massachusetts law) (holding that claim for
breach of an "unwritten requirements contract" was "governed by
section 2-309").
- 19 -
a motion in limine in favor of WWW, which had requested that the
District Court bar Primarque from "mention[ing], refer[ing]
to . . . or attempt[ing] to convey to the jury in any manner
regarding any alleged written or oral agreement between Primarque
and WWW" (emphasis altered). WWW contends that these rulings
"confirmed there was no agreement between the parties . . . oral,
written or otherwise," (emphasis added). WWW thus argues that
these rulings require the conclusion that no reasonable juror could
have found in Primarque's favor on the breach of contract claim.
It is true that, in ruling on WWW's summary judgment
motion, the District Court determined that there was no written or
oral agreement between the parties. See Primarque, 368 F. Supp.
3d at 196. But, it did not purport in doing so to preclude
Primarque from presenting course-of-dealing evidence of the sort
that would allow the jury to conclude that the parties had an
implied-in-fact contract within the meaning of Mass. UCC § 2-
309(3). Nor did it purport to do so in granting the motion in
limine. Indeed, the District Court's jury instructions expressly
provided that the jury could "infer[]" the existence of a
distribution contract "from the conduct of the parties." Thus,
there is no merit to this aspect of WWW's challenge.
3.
Next, WWW contends that the District Court erred in
denying its motion for judgment as a matter of law on Primarque's
- 20 -
breach of contract claim because the evidence before the jury
"squarely contradict[ed]" the parties having had an implied-in-
fact distribution contract based on their course of dealing. But,
again, we are not persuaded.
WWW points first to the undisputed fact that the parties
had entered into written distribution agreements that were no
longer in place as of 1993. But, WWW and Primarque continued to
do business with each other thereafter. Thus, we do not see how
the existence of those prior written agreements is preclusive of
a finding that the parties' subsequent, extensive course of dealing
created an implied-in-fact agreement.
In a related vein, WWW points to the undisputed fact
that Primarque had, in 2009 and 2010, requested that WWW enter
into an express agreement with it which would have required WWW to
give Primarque "1 year notice in the event WWW wants to discontinue
selling [certain] products . . . to Primarque" or if WWW decided
to sell its business, and that WWW resisted these overtures. But,
WWW's rejection of the proposed one-year notice term does not
demonstrate that the parties had reached "an agreement dispensing
with" the "reasonable notification" term imputed by Mass. UCC § 2-
309(3). Id. (emphasis added). Thus, this evidence, too, would
not preclude a reasonable juror from finding that the parties had
- 21 -
an implied-in-fact distribution contract subject to Mass. UCC § 2-
309(3).7
WWW separately asserts, in a single sentence, that there
was an "absence of evidence of a distribution agreement in this
case." But, WWW does not attempt to grapple with the course-of-
dealing evidence that was before the jury. That evidence included
the evidence purporting to show that WWW had continuously supplied
Primarque with soup base products over the course of nearly four
decades; that Primarque was allowed to resell these products under
WWW's label "Cook's Delight"; that the parties had a close working
relationship that involved sharing potentially sensitive business
information, particularly as it concerned the Drop Ship Customers;
and that WWW had previously referred to Primarque, which
distributed the majority of the soup base products it manufactured,
as its "distributor."8 Thus, even if we were inclined to read this
7Similarly, the District Court's ruling at summary judgment
that the parties had no "meeting of the minds" on the oral
agreements alleged by Primarque, including the allegation that
"WWW orally promised to give 90 days' notice of its intent to end
the parties' distributorship arrangement," Primarque, 303 F. Supp.
3d at 205, did not purport to preclude the jury from finding, as
it reasonably did, that the parties had a distribution contract,
by virtue of their course of dealing, which was subject to Mass.
UCC § 2-309(3), and that the parties had not reached an agreement
dispensing with the imputed reasonable notice of termination term.
8WWW also developed no argument in its opening brief to us
-- or, for that matter, in its motions for judgment as a matter of
law to the District Court -- that the District Court improperly
precluded it from putting on evidence relevant to the jury's
determination about the significance of the parties' course of
- 22 -
cursory assertion about the state of the evidence as a contention
that the course-of-dealing evidence presented during trial was too
thin to permit a reasonable juror to determine that the parties
had an implied-in-fact distribution contract, the argument is
insufficiently developed and so is waived. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[T]he settled appellate
rule [is] that issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived.").
4.
Finally, WWW contends that the District Court erred in
denying its motion for judgment as a matter of law on Primarque's
breach of contract claim because, even if there was an enforceable
contract between the parties with an imputed reasonable notice of
termination term, WWW is still not liable.9 WWW advances two
distinct arguments on this front.
First, WWW argues that the trial evidence indisputably
established an antecedent breach of this same term by Primarque.
Here, WWW points to undisputed evidence that Primarque was working
dealing, and WWW similarly has not identified any evidence about
the course of dealing that WWW intended to but was unable to
present to the jury.
As before, we decline to address Primarque's suggestion that
9
WWW waived this argument, given our disposition of the merits.
See Leavitt, 925 F.2d at 517.
- 23 -
with WWW's competitors back in 2014. WWW characterizes this
conduct as Primarque "taking steps to replace WWW as its supplier
without notification." (emphasis added). WWW argues that such
"taking steps" constituted a breach by Primarque of its obligation
to provide reasonable notice to WWW -- assuming that a contract
imposing that obligation was in place by implication. On that
basis, WWW contends that it was excused from having to comply with
the reasonable notice obligation, in the event that such an
obligation existed.10
But, the District Court determined at the summary
judgment stage that the record sufficed to permit a reasonable
juror to find that the parties' course of dealing established that
"Primarque was not obligated to buy its soup base exclusively from
WWW" and that "WWW was aware that Primarque purchased soup base
from other suppliers." Primarque, 303 F. Supp. 3d at 192.
Moreover, the District Court similarly determined at the summary
judgment stage that the record permitted a reasonable juror to
find that Primarque was continuing to make substantial purchases
from WWW when WWW terminated the parties' relationship. Id. at
201-02. Indeed, the District Court explained in that regard that
WWW does not argue on appeal that its obligation to comply
10
with the reasonable notice term imputed by Mass. UCC § 2-309(3)
was excused by virtue of Primarque's having breached any other
aspect of the parties' implied-in-fact distribution agreement,
aside from Primarque's purported antecedent breach of the
reasonable notice of termination term.
- 24 -
the record supportably showed that: in 2013, before Primarque
reached out to WWW's competitors, Primarque had purchased
approximately $1,254,674.56 in soup base products from WWW; in
2014, the year when Primarque began working with those competitors,
it still purchased $1,313,175.59 of soup base products from WWW (a
$60,000 increase from 2013); and then from February 6, 2015 to
March 12, 2015 -- "the last monthly period that WWW sold soup base
to Primarque" -- Primarque purchased $97,843.22 of soup base
products from WWW, an amount which, if annualized, constituted
around 89% of Primarque's total purchases from 2014. See id.
WWW makes no argument that the record fails supportably
to show as much. For that reason, we see no basis for rejecting
the conclusion that a reasonable juror could find that in early
2015 Primarque was continuing to purchase substantial amounts of
soup base products from WWW -- albeit around 11% less than it had
purchased in 2014 -- and that the parties' implied-in-fact contract
was not one that precluded Primarque from working with other
suppliers, because it was not an exclusive arrangement. Thus, we
also see no basis for concluding that the record indisputably
showed that Primarque's "taking steps" to line up alternative
suppliers in 2014 itself constituted "termination" of the parties'
implied-in-fact distribution agreement, such that Primarque was
obligated to give WWW reasonable notice before engaging with them.
See Mass. UCC § 2-309(3); Primarque, 368 F. Supp. 3d at 197-98.
- 25 -
Second, WWW contends that its provision of same-day
notice was reasonable under the circumstances. But, here, again,
we agree with the District Court that a reasonable juror could
have found on this record that WWW's provision of same-day notice
of termination was unreasonable under the circumstances. See
Primarque, 368 F. Supp. 3d at 197-98; see also, e.g., Cherick
Distribs., Inc. v. Polar Corp., 669 N.E.2d 218, 220 (Mass. App.
Ct. 1996) (affirming jury's conclusion "that four days' notice was
unreasonable" under § 2-309(3)).
In challenging that conclusion, WWW emphasizes that "the
reasonableness of the notice of termination is measured in terms
of the amount of time 'as will give the other party reasonable
time to seek a substitute arrangement.'" RGJ Assocs., Inc. v.
Stainsafe, Inc., 300 F. Supp. 2d 250, 254 (D. Mass. 2004) (emphasis
omitted) (quoting Mass. UCC § 2–309, Comment 8). But, even so, a
reasonable juror could have determined on this record -- especially
in light of the evidence of Primarque's substantial ongoing
purchases from WWW -- that Primarque did not as of March 2015 have
adequate substitute arrangements in place. And, given that WWW's
notice immediately terminated the parties' business relationship,
it cannot be said that a reasonable juror would have had to have
found that notice of that sort afforded Primarque a reasonable
amount of time to secure such alternative arrangements.
- 26 -
In contending otherwise, WWW relies on Teitelbaum v.
Hallmark Cards Inc., 520 N.E.2d 1333 (Mass. App. Ct. 1988). It
argues that precedent provides support for its contention that its
day-of-termination notice was necessarily reasonable, because it
is undisputed that Primarque had been working with other suppliers
prior to the notice being given.11 WWW points, in particular, to
Teitelbaum's statement that if a "party is able to obtain another
supplier before the performance of the party effecting termination
becomes due, then it necessarily follows that the terminating party
has furnished reasonable notice and will not be responsible for
damages." Id. at 1336.
But, the relevant question is not whether Primarque
dealt with any other suppliers and thus could have found other
suppliers post-termination. The relevant question is whether
Primarque could have obtained an alternative supplier post-
termination -- i.e., another one (or ones) that could replace WWW,
taking into account the extent of business that Primarque was doing
with it. Cf. id. at 1337 ("The evidence [wa]s uncontroverted
that, . . . [t]he plaintiffs did not incur harm for lack of a
11 To the extent Primarque contends that WWW waived this
specific point by raising it only at summary judgment and then in
its renewed motion for judgment as a matter of law under Rule
50(b), we find, as before, that we do not need to address that
contention, given that WWW's position "is wrong on the merits."
Leavitt, 925 F.2d at 517.
- 27 -
supplier," as the plaintiffs "had [already] acquired a full line
of inventory . . . ." (emphasis added)).12
Indeed, Teitelbaum itself observes that "[i]n many
cases, the issue of the adequacy of notice of termination will
present a jury question," as "the adequacy of the notice is
generally coextensive with the amount of harm that can be proved
by the party who has incurred the loss of a supplier." Id. at
1336-37. We thus agree with the District Court that this case
"present[ed] a jury question," id. at 1336, and that the jury's
determination as to the unreasonableness of WWW's day-of-
termination notice was not itself unreasonable, see Primarque, 368
F. Supp. 3d at 197-98.
B.
WWW also takes aim at the District Court's denial of its
motion for judgment as a matter of law on Primarque's tortious
interference with business relations claim. As the District Court
explained in instructing the jury, "Primarque alleged [in support
of this claim] that WWW improperly interfered with [Primarque's]
business relations with its Drop Ship Customers by abruptly
terminating the parties' distributorship agreement without
reasonable notice, which left [Primarque] no time to secure another
12 Even if Teitelbaum were susceptible to WWW's reading of it,
it is not an opinion of the Supreme Judicial Court of Massachusetts
and, in consequence, would not constitute binding authority here.
See Vt. Mut. Ins. Co. v. Zamsky, 732 F.3d 37, 42 (1st Cir. 2013).
- 28 -
supplier to fulfill its obligations to [the Drop Ship] Customers."
See also Primarque, 368 F. Supp. 3d at 199. And, in the course of
returning a verdict in Primarque's favor on that claim, the jury
found that "WWW intentionally and improperly interfere[d] with
Primarque's advantageous business relations with its drop ship
customers"; that "WWW's intentional and improper interference with
Primarque's relationship with its drop ship customers induce[d]
such customers to stop doing business with Primarque and cause[d]
Primarque to suffer damages"; and that Primarque was therefore
entitled to $204,000 in lost-profit damages.
WWW contends on appeal that the District Court erred in
denying its motion for judgment of law as to the tortious
interference with business relations claim because "WWW's
cessation of [the] business relationship was not tortious as a
matter of law."13 Our review is de novo. See Hendricks, 923 F.2d
at 214.
WWW's premises this contention, however, on its
insistence that "WWW was under no legal obligation to provide
Primarque with notice." Indeed, WWW concedes that if a reasonable
juror could have "found that WWW prematurely ended its relationship
with Primarque," then it "could find [that] WWW tortiously
Primarque suggests that WWW waived this argument, too, in
13
failing to object to a particular jury instruction, but we do not
address that suggestion given our disposition of the merits. See
Leavitt, 925 F.2d at 517.
- 29 -
interfered." Thus, this challenge fails, too, because, as we have
just explained, a reasonable juror could have found that WWW was
under a legal obligation to provide Primarque with reasonable
notice of termination. See Mass. UCC § 2-309(3).
C.
WWW's last challenge in its cross-appeal is that the
District Court erred in denying its motion to alter or amend the
judgment under Fed. R. Civ. P. 59(e) to reduce Primarque's $204,000
tortious interference award to, at most, $39,000. That latter
amount represents, according to WWW, "the amount of Primarque's
lost profits over the 90-day period after March 12, 2015," which
is the date on which WWW terminated the parties' business
relationship.
In rejecting WWW's motion in this regard, the District
Court explained that it concluded that the jury intended to award
Primarque "tortious interference damages represent[ing] one year
of lost profits," Primarque, 368 F. Supp. 3d at 199, on the theory
that Primarque had suffered damages after "WWW unreasonably
terminated the parties' distributorship arrangement without
[adequate] notice and as a result . . . [Primarque] couldn't
fulfill its obligations to its" Drop Ship Customers, id. at 198.
Our review is for abuse of discretion. See Marie, 402 F.3d at 7
n.2 ("[G]rants and denials of Rule 59(e) motions are reviewed only
- 30 -
for abuse of discretion." (citing Venegas–Hernandez, 370 F.3d at
190)). We find none.
WWW argues that the District Court erred here because
the jury found that Primarque's right to reasonable notice of
termination required WWW to give notice of termination ninety days
in advance and, in consequence, any damages for profits lost after
the ninety-day notice period ended "were too speculative [for
Primarque] to recover." That is so, WWW contends, because, after
those ninety days, WWW would have been free, in any event, to stop
selling soup base products to Primarque and also to compete
directly with it for the business of the Drop Ship Customers.
Accordingly, in WWW's view, it is "pure speculation to presume
that Primarque would have retained all of the [same] customers
beyond [ninety] days and sold the same amount of soup bases to
those customers for a year."
Massachusetts law is clear, however, that "[i]n the case
of business torts, an element of uncertainty in the assessment of
damages is not a bar to their recovery." Zimmerman v. Bogoff, 524
N.E.2d 849, 856 (Mass. 1988) (alterations omitted) (quoting
Datacomm Interface, Inc. v. Computerworld, Inc., 489 N.E.2d 185,
196 (Mass. 1986)). This is "especially" true, moreover, "in
circumstances in which the wrongdoer's conduct has caused the
uncertainty of the measurement." A.C. Vaccaro, Inc. v. Vaccaro,
- 31 -
955 N.E.2d 299, 306 (Mass. App. Ct. 2011) (citing Air Tech. Corp.
v. Gen. Elec. Co., 199 N.E.2d 538 (Mass. 1964)).
Against that legal backdrop, we cannot say, as WWW
contends, that the jury's verdict as to the amount of Primarque's
lost profit attributable to WWW's abrupt termination was "entirely
without foundation," Atl. Rsch. Mktg. Sys., Inc. v. Saco Def.,
Inc., 997 F. Supp. 159, 170 (D. Mass. 1998), let alone that the
District Court abused its discretion in failing to grant WWW's
Rule 59(e) motion on that basis. WWW is correct that it is possible
that Primarque would have lost some of the Drop Ship Customers'
business in less than a year even if WWW had given timely notice
of termination. That bare possibility, however, does not suffice
to render the jury's award speculative or even necessarily overly
favorable to Primarque. See Rombola v. Cosindas, 220 N.E.2d 919,
922 (Mass. 1966) ("While it is possible that no profits would have
been realized . . . that possibility is inherent in any business
venture. It is not sufficient to foreclose [the plaintiff's] right
to prove prospective profits."). That is especially so in light
of the competing possibility that Primarque could have retained
the Drop Ship Customers' business for more than one year and the
fact that, in any event, a juror could reasonably have found that
WWW's tortious conduct "caused the uncertainty of the
measurement." A.C. Vaccaro, 955 N.E.2d at 306.
- 32 -
In addition, WWW does not argue on appeal that the
$204,000 figure is an inaccurate estimate of the profit that
Primarque would have earned over the course of a year if it had
continued making similar sales to the Drop Ship Customers for that
length of time. Indeed, WWW's own witnesses testified that this
figure -- which was based on the sales that Primarque and then WWW
had made to the Drop Ship Customers from January 1 to December 31,
2015, as well as the price that Primarque had been charging those
customers for those products prior to WWW's termination of their
business relationship -- was accurate at least to that extent.
Thus, the District Court did not abuse its discretion in denying
WWW's Rule 59(e) motion to reduce Primarque's award to $39,000.
IV.
We turn our attention, then, to Primarque's appeal. We
start with Primarque's first challenge to the District Court's
rulings below.
A.
Primarque contends that the District Court erred in
partially granting WWW's Rule 59(e) motion to strike the jury's
$51,000 award on Primarque's breach of contract claim as
duplicative of its $204,000 award on Primarque's tortious
interference with business relations claim. The District Court
reasoned as follows in striking the $51,000 award as duplicative.
The jury intended to award Primarque damages amounting to lost
- 33 -
profits on the tortious interference with business relations claim
incurred over the course of the year that followed the termination
the implied-in-fact agreement, which totaled $204,000 and is the
amount that the jury awarded on that claim. The jury also intended
to award Primarque lost profits for the first ninety days of that
same year on the breach of contract claim, as its award here was
$51,000 and happens to be one-quarter of $204,000 (and thus, in
the District Court's understanding of the jury's intent, one
quarter of the profits lost over the course of the year). See
Primarque, 368 F. Supp. 3d at 199.
But, the District Court reasoned, that being so,
Primarque was necessarily being compensated twice by the jury's
damages award for the profits that it had lost during the first
ninety days of the one-year period that followed WWW's termination
of the parties' agreement. See id. The District Court then
separately determined that the most damages to which Primarque
could have been entitled to on its breach of contract claim was
$39,017. See id. at 198 & n.4. In doing so, it concluded that a
reasonable juror could have found, at most, that this was the
amount of Primarque's lost profit during the ninety-day reasonable
notice period following March 12, 2015. See id. at 198. It then
proceeded to vacate the entirety of the breach of contract award
given that, in its view, even this smaller amount remained
duplicative. See id. at 198-200, 200 n.5.
- 34 -
We review the District Court's partial grant of WWW's
Rule 59(e) motion for abuse of discretion. See Marie, 402 F.3d at7 n.2 (citing Venegas–Hernandez, 370 F.3d at 190). But, this
"abuse of discretion review is superimposed on the standard of
review the Rule 59(e) judge exercises over the original judgment,"
Venegas-Hernandez, 370 F.3d at 190, pursuant to which "a district
court may set aside a jury's verdict . . . only if the verdict is
against the demonstrable weight of the credible evidence or results
in a blatant miscarriage of justice," Sanchez v. P.R. Oil Co., 37
F.3d 712, 717 (1st Cir. 1994). And, to the extent that the District
Court's decision was predicated on the resolution of legal
questions, we review its resolution of those questions de novo.
See Rio Mar Assocs., LP, SE v. UHS of P.R., Inc., 522 F.3d 159,
163 (1st Cir. 2008).
The jury was instructed that it could not award damages
for lost profits on the breach of contract claim that were incurred
beyond the reasonable notice period, not to exceed ninety days,
following the termination. But, significantly, it was not
instructed that there was any set temporal bound for the period
for which damages for lost profits could be awarded on the tortious
interference with business relations claim. Moreover, Primarque
notes, correctly, that courts generally "presume[]" that
"jurors . . . follow the trial court's instructions," id. at 163,
and that the District Court had instructed the jury at length that
- 35 -
it could not award Primarque "duplicative damages" during the
reasonable notice period on both the tortious interference with
business relations and breach of contract claims.14
Thus, we find persuasive Primarque's contention that the
jury could be understood to have intended for the $51,000 damages
award to cover profits lost during the first ninety days following
WWW's breach of the contract and the $204,000 damages award to
cover the profits lost in the one-year period that followed the
end of those ninety days and that were attributable to WWW's
tortious interference with business relations. Indeed,
Primarque's counsel during closing argument asked the jury for as
much as three years and two months' worth of lost-profit damages
14 The relevant instruction read in full:
A plaintiff, such as Primarque, may seek
recovery under multiple counts, but may not
recover duplicative damages that arise out of
the same act or conduct . . . . Thus, in this
case, Primarque may not recover twice for the
same injury in both contract and tort.
Accordingly, if you find that Primarque is
entitled to a verdict on both, the breach of
contract claim sounding in contract law based
on WWW's same day notice of termination, you
may not also compensate Primarque on its
tortious interference with advantageous
business relations claim based on that same
underlying . . . conduct. However, if you
find that Primarque suffered damages under its
tortious interference with advantageous
business relations for some period beyond the
reasonable notice period, then you may
compensate it for lost profit damages if
proved and if sustained for a period which
exceeds the reasonable notice period.
- 36 -
on that latter claim -- stressing evidence which indicated that
Primarque had continued to lose sales to the Drop Ship Customers
from March 2015 through May 2018 at a rate of about $204,000 a
year -- and then called for the jurors to "use your collective
judgment" to determine "how long into the future [Primarque]
reasonably would have kept [its lost] customers" had it been given
reasonable notice of termination.
Given that "[o]n this record, there is no way to
determine what the jury [actually] did," Ramos v. Davis & Geck,
Inc., 224 F.3d 30, 32 (1st Cir. 2000), we cannot agree with the
District Court that it is "evident" that the jury ran afoul of its
well-crafted instructions on avoiding duplicative damages,
Primarque, 368 F. Supp. 3d at 199.15 Instead, "[a]pplying the
instruction[s] to the facts of this case, [we conclude that] the
15 It is true that the District Court also observed -- and
Primarque does not dispute on appeal -- that the jury erroneously
awarded Primarque $51,000 in damages on its breach of contract
claim rather than $39,017, despite trial evidence establishing
that the latter amount was the actual amount of Primarque's lost
profits during the ninety-day period following WWW's breach. See
Primarque, 368 F. Supp. 3d at 199. But, even accepting the
District Court's unchallenged determination that the jury erred in
the computation of Primarque's breach of contract damages, that
error does not in itself provide a reason to think that, in
separately awarding Primarque $204,000 on its tortious
interference with business relations claim -- an amount which the
parties agree represents the profit that Primarque would have
earned had it continued to sell to the Drop Ship Customers over a
period of one year -- the jury thereby concluded that Primarque
would have continued to transact with the Drop Ship Customers for
only nine months after the end of the reasonable notice period
rather than twelve.
- 37 -
verdict must be presumed to have" accounted for them. Rio Mar
Assocs., 522 F.3d at 163. And, with that presumption in place,
the $51,000 award of damages to Primarque on its breach of contract
claim was not duplicative of the damages awarded to it on its
tortious interference with business relations claim. However,
because Primarque does not dispute that it was entitled to at most
$39,017 in breach of contract damages, see Primarque, 368 F. Supp.
3d at 198 & n.4, we direct the District Court to reinstate the
jury's verdict only to that extent.
B.
Primarque next challenges the District Court's decision
to deny its Rule 59(e) motion to alter or amend the judgment and
thus to award Primarque prejudgment interest on its $204,000
damages award on its tortious interference with business relations
claim.16 We review "the district court's determination regarding
the award of prejudgment interest . . . for abuse of discretion,
'but legal issues relating to the prejudgment interest award are
reviewed de novo.'" Companion Health Servs. v. Kurtz, 675 F.3d
16 The District Court concluded that Primarque would be
entitled to prejudgment interest on its breach of contract claim
to the extent that any damages on that claim were not duplicative
of those awarded on the tortious interference with business
relations claim. See Primarque, 368 F. Supp. 3d at 200 & n.5. We
do not address that ruling here, as neither party asks us to
revisit it on appeal.
- 38 -
75, 87 (1st Cir. 2012) (quoting Analysis Grp., Inc. v. Cent. Fla.
Inv., Inc., 629 F.3d 18, 24 (1st Cir. 2010)).
"When a plaintiff obtains a jury verdict in a diversity
case in which the substantive law of the forum state supplies the
rules of decision, that state's law governs the plaintiff's
entitlement to prejudgment interest." Crowe, 365 F.3d at 90.
Under Massachusetts law, the "fruits of [a] state-law
victory" generally "include[] prejudgment interest, to be added
ministerially after the verdict, not factored into the jury
calculus." Foley v. City of Lowell, 948 F.2d 10, 17 (1st Cir.
1991) (citing Mass. Gen. Laws ch. 231, § 6B).
Here, the District Court, applying Mass. Gen.
Laws ch. 231, § 6B (hereinafter "§ 6B"),17 determined that
Primarque's $204,000 tortious interference award did not qualify
for prejudgment interest because "substantially all of the damages
on this claim occurred after the suit was filed," and § 6B did not
17 This statute provides:
In any action in which a verdict is
rendered . . . for pecuniary damages for
personal injuries to the plaintiff or for
consequential damages, or for damage to
property, there shall be added by the clerk of
court to the amount of damages interest
thereon at the rate of twelve per cent per
annum from the date of commencement of the
action even though such interest brings the
amount of the verdict or finding beyond the
maximum liability imposed by law.
Mass. Gen. Laws ch. 231, § 6B.
- 39 -
allow a court to award prejudgment interest as "compensat[ion] for
future losses." Primarque, 368 F. Supp. 3d at 200 (quoting Casual
Male Retail Grp., Inc. v. Yarbrough, 527 F. Supp. 2d 172, 181 (D.
Mass. 2007)); see also Casual Male Retail, 527 F. Supp. 2d at 181
("[§ 6B] was not intended to award interest on damages accruing
after the filing of the action," i.e., "when damages are awarded
to compensate for future losses." (citing Conway v. Electro Switch
Corp., 523 N.E.2d 255 (1988))).
In particular, the District Court explained, WWW's
termination of the parties' distribution contract "occurred on or
about March 12, 2015," and "Primarque commenced this action 7 days
later, on March 19, 2015," Primarque, 368 F. Supp. 3d at 200 --
which meant that almost the entirety of the $204,000 award
concerned profits lost after Primarque commenced its suit
(although before the District Court entered judgment), see id.
Primarque contends, however, that the District Court's
decision rests on a misconception of what constitutes
nonrecoverable "future losses" under § 6B. The District Court's
decision was based on Conway v. Electro Switch Corp., a 1988
decision in which the Massachusetts Supreme Judicial Court
explained that a litigant could not receive prejudgment interest
under § 6B on damages awarded for harms that would occur after
"the date of judgment." 523 N.E.2d at 259 (emphasis added); see
also id. at 258-59 (explaining that it would be improper to add
- 40 -
prejudgment interest to a jury's award of "front pay" in an
employment discrimination case, because such "damages . . ., by
definition, are for losses to be incurred in the future," and § 6B
"cannot reasonably be said to apply to an award of damages based
upon lost earnings and benefits occurring after the date of
judgment"). Conway, however, did not suggest that "future losses"
for which prejudgment interest could not be awarded also included
losses incurred after a complaint was filed but prior to judgment.
Indeed, such an understanding of § 6B -- pursuant to which a
litigant would be unable to recover interest on damages sustained
prior to judgment but after the filing of suit -- cannot be squared
with what Conway called "the fundamental proposition that interest
is awarded to compensate a damaged party for the loss of use or
the unlawful detention of money," id. at 258, as such monies, in
the normal course, continue to be withheld from the party damaged
until the entry of judgment. The District Court's position,
moreover, would risk incentivizing needless delay on the part of
a plaintiff in the filing of otherwise meritorious claims, or
protraction of litigation once filed on the part of a defendant,
and we do not read § 6B or Conway to support such a result. See
also Charles D. Bonanno Linen Serv., Inc. v. McCarthy, 550 F. Supp.
231, 246-47 (D. Mass. 1982) (rejecting argument that "§ 6B does
not apply to damages for losses accruing after commencement of the
action," as "it is more reasonable to read the legislative
- 41 -
prescription as one applying to all tort damages, whether for
losses accruing before or for losses accruing after the date of
commencement of the action"), aff'd in relevant part, 708 F.2d 1,
12 (1st Cir. 1983) ("We think the district court correctly
applied [§ 6B].").
Here, judgment did not enter until June 1, 2018, meaning
that the $204,000 award intended to compensate Primarque for
profits lost between 2015 and 2016 was not a nonrecoverable "future
loss" under the reasoning of Conway. Thus, we conclude that the
District Court committed legal error in holding that Primarque was
not entitled to prejudgment interest on its tortious interference
with business relations claim, and so we reverse to that extent
its denial of Primarque's Rule 59(e) motion. Because this same
error may have affected the District Court's evaluation of
Primarque's "offset" request, see Primarque, 368 F. Supp. 3d at
199-200, we also vacate its decision denying that request.
C.
Primarque's final argument on appeal is that the
District Court erroneously granted summary judgment to WWW on
Primarque's Chapter 93A claim. We review the District Court's
grant of summary judgment de novo, McCue v. Bradstreet, 807 F.3d
334, 340 (1st Cir. 2015), keeping in mind that "[s]ummary judgment
is appropriately granted where there is no genuine issue of
material fact, and the moving party is entitled to judgment as a
- 42 -
matter of law," Vives v. Fajardo, 472 F.3d 19, 21 (1st Cir. 2007)
(citing Fed. R. Civ. P. 56(c)).
As the District Court noted, Chapter 93A proscribes
"unfair methods of competition and unfair or deceptive acts or
practices in the conduct of any trade or commerce," Primarque, 303
F. Supp. 3d at 208 (alteration omitted) (quoting Mass. Gen. Laws
ch. 93A, § 2)), and "[a] practice is unfair if it falls 'within
the penumbra of some common-law, statutory, or other established
concept of unfairness; is immoral, unethical, oppressive, or
unscrupulous; and causes substantial injury to other
businessmen,'" id. (quoting Linkage Corp. v. Trs. of Bos. Univ.,
679 N.E.2d 191, 209 (Mass. 1997)). And, as the District Court
recognized, whether "an act or practice is 'immoral, unethical,
oppressive or unscrupulous' is the kind of fact-specific
determination generally left for a jury." Id. at 208-09 (citing
First Choice Armor & Equip., Inc. v. Toyobo Am., Inc., 839 F. Supp.
2d 407, 415 (D. Mass. 2012)); see In re Pharm. Indus. Average
Wholesale Price Litig., 582 F.3d 156, 184 (1st Cir. 2009)
("Massachusetts courts 'evaluate unfair and deceptive trade
practice claims based on the circumstances of each case,' leaving
'the determination of what constitutes an unfair trade practice to
the finder of fact.'" (quoting Mass. Eye & Ear Infirmary v. QLT
Phototherapeutics, Inc., 552 F.3d 47, 69 (1st Cir. 2009))). But,
in awarding summary judgment to WWW, the District Court concluded
- 43 -
-- in summary fashion -- that "Primarque has not come forward with
a scintilla of evidence that WWW engaged in any unfair, or
deceptive act or practice." Primarque, 303 F. Supp. 3d at 209.
We agree with Primarque, however, that the District
Court's decision was an erroneous one, as Primarque did in fact
put forward sufficient evidence to create a jury question on the
issue of whether WWW's conduct was "unfair" within the meaning of
Chapter 93A. In particular, we find, the evidence precluding
summary judgment on this claim was the same evidence that Primarque
had put forward in support of submitting its breach of contract
and tortious interference with business relations claims to the
jury, as Massachusetts law is clear that an unreasonably abrupt
termination of a distribution contract can constitute an "unfair"
act under Chapter 93A no less than it can ground a breach of
contract or tortious interference with business relations claim.
See Cherick Distribs., 669 N.E.2d at 220-21 ("The same evidence
that supported the jury's findings of a breach of the covenant of
good faith and fair dealing" -- namely, the defendant's "abrupt
termination of the distributorship agreement" -- "also supported
the jury's finding that [the defendant's] conduct amounted to an
unfair or deceptive act under G.L. c. 93A."); see also, e.g.,
Anthony's Pier Four v. HBC Assocs., 583 N.E.2d 806, 821 (Mass.
1991) ("We have said that conduct 'in disregard of known
contractual arrangements' and intended to secure benefits for the
- 44 -
breaching party constitutes an unfair act or practice for c. 93A
purposes." (quoting Wang Lab'ys, Inc. v. Bus. Incentives, Inc.,
501 N.E.2d 1163, 1165 (Mass. 1986))); Linkage Corp. v. Trs. of
Bos. Univ., 679 N.E.2d 191, 209 (Mass. 1997) (explaining that
defendant's "repudiat[ion of] binding agreements and usurp[ation
of plaintiff's] business" could be deemed "unfair" under Chapter
93A). WWW's attempt to distinguish these precedents is
unconvincing,18 and the District Court offered no other rationale
to support its summary judgment decision. We are accordingly
constrained to reverse the District Court's award of summary
judgment to WWW on Primarque's Chapter 93A claim.
V.
We affirm the District Court's entry of amended judgment
in the amount of $204,000 on Primarque's tortious interference
with business relations claim. We reverse the District Court's
grant of summary judgment to WWW on Primarque's Chapter 93A claim;
reverse its order striking as duplicative the jury's damages award
WWW suggests that a different understanding of what counts
18
as an "unfair or deceptive act" should apply where, as here, there
was no "express distribution contract," but, in so contending, it
neglects the Supreme Judicial Court's holding that a "violation of
[an] implied" contractual term can "establish[] as a matter of
both fact and law that . . . actions were unfair or deceptive,"
Anthony's Pier Four, 583 N.E.2d at 822 (emphasis added).
Similarly, WWW's contention that Primarque "worked in the shadows"
and that its actions amounted to "secretly . . . transitioning
business from [WWW] to [WWW's] competitors" fails to establish
that a reasonable juror could not have viewed WWW's conduct as
"unfair or deceptive."
- 45 -
on Primarque's breach of contract claim, and further direct the
District Court to reinstate an award of $39,017 in damages as to
that claim; reverse its order denying Primarque prejudgment
interest on the $204,000 damages award that Primarque received on
the tortious interference with business relations claim; vacate
its order denying Primarque's offset request; and remand for
further proceedings consistent with this opinion. Costs are
awarded to the appellant.
- 46 -