Roche v. Royal Bank

United States Court of Appeals
For the First Circuit

No. 96-1748
JOHN C. ROCHE and MARK A. DIRICO,
Plaintiffs, Appellants,

v.

THE ROYAL BANK OF CANADA and DELOITTE & TOUCHE, INC.,
Defendants, Appellees.

No. 96-1932
THE ROYAL BANK OF CANADA and DELOITTE & TOUCHE, INC.,
Defendants, Cross-Appellants,

v.

JOHN C. ROCHE and MARK A. DIRICO,
Plaintiffs, Cross-Appellees.

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

[Hon. Patti B. Saris, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lynch, Circuit Judge.

Vincent M. Amoroso, with whom John J. O'Connor and Peabody &

Arnold were on brief, for plaintiffs.

Mark A. Berthiaume, with whom Gary R. Greenberg, Louis J. Scerra,

Jr., Jonathan D. Cohen, and Goldstein & Manello, P.C. were on brief,

for defendants.

April 1, 1997

LYNCH, Circuit Judge. The plaintiffs, Boston-
LYNCH, Circuit Judge.

area businessmen John Roche and Mark DiRico, invested in a

fish farm in Prince Edward Island, Canada. The venture

failed, and they sued the court-appointed receiver which sold

them the farm and the bank which had originally financed the

project. A jury found against plaintiffs on their claims of

common law fraud and misrepresentation for failure to meet

their burden of showing proximate cause. The district court,

initially finding plaintiffs' allegations actionable under

Mass. Gen. Laws ch. 93A ("chapter 93A"), found after trial

that defendants had committed unfair and deceptive trade

practices, but that their offending acts did not occur

"primarily and substantially" in Massachusetts, as required

by chapter 93A. Plaintiffs recovered nothing. Defendants'

motion for attorneys' fees was also denied. Both parties

appeal on the chapter 93A issue, and defendants appeal from

the denial of attorneys' fees. We affirm.

I.

We recite the facts as the jury and district court

could have found them. Cambridge Plating Co. v. Napco, Inc.,

85 F.3d 752, 756 (1st Cir. 1996). "Where specific findings

are lacking, we view the record in the light most favorable

to the ruling, making all reasonably supported inferences."

United States v. McCarthy, 77 F.3d 522, 525 (1st Cir. 1996).

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The story starts in February 1987, when Aquacare

A.S., a Norwegian firm, conducted a study for its subsidiary

Seasprings Farms Ltd., on the viability of a land-based fish

farm in Prince Edward Island, Canada ("PEI"). Aquacare

prepared a prospectus (the Aquacare I report), which

presented general information about the biological and

technical aspects of the proposed operation. The prospectus

also contained financial projections and asserted that the

production capacity of the contemplated facility would be

131.8 tons of fish in the first year of operation and 360

tons annually thereafter.

The Royal Bank of Canada financed the construction

of the farm, which was operated by a firm called Marine

Harvesting, Ltd. ("Marine"). Fish were first introduced into

the facility in December 1987, but there were construction

delays and the plant was not completed until June 1988.

Things went badly from the start. The fish did not grow as

fast as anticipated and had unexpectedly high mortality

rates. By October 1988, the fish had not yet reached market

size (4 lbs), as expected.

In October, Cleve Myers, Marine's President,

retained Aquatech Systems, A.S., another Norwegian

aquaculture firm, to perform an independent study of the

farm's problems. Myers wanted to know, among other things,

how many tons of fish the farm was capable of producing. Dr.

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Michael Smith, a biologist from Aquatech, came to the farm on

October 30 and spent three days making observations,

conducting tests, and speaking with employees. Dr. Smith was

not shown the Aquacare I report, but the Aquacare operating

manuals were made available to him. The result of Dr.

Smith's analysis was a forty-four page report (the Aquatech

report), dated November 18, 1988.

The Aquatech report criticized the design of the

farm. The report stated that "until experience over a fully

operational annual cycle has been gained," the farm could

produce, at best, only 200 tons of fish per year. Dr.

Smith's report also made several recommendations for

improving production. For instance, it recommended that a

higher proportion of fresh water be pumped into the tanks,

for purposes of both temperature control and salinity

control. This suggestion deviated from the specifications in

the Aquacare operating manuals. The 200-ton projection was

premised on the assumption that the recommended changes would

be implemented.

Meanwhile, Osler, Inc., one of Marine's two fifty-

percent shareholders, was in receivership, and A.S. Bergens

Skillingsbanken, the other fifty-percent shareholder, was

refusing to inject additional capital into the venture.

On November 30, Myers turned the keys to the farm

over to Lou McGinn, the Loan Officer in charge of the project

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at the Royal Bank, and requested that the farm be placed in

voluntary receivership. Myers stated that without operating

capital he was unable to care for the inventory or pay the

staff. He also stated that he had "received a consultant's

report regarding the production capabilities of the plant

which indicate [sic] that the facility is not viable as it

presently is financed." McGinn stated that Myers had told

him that he received "a consultant's report" which indicated

that "the plant was capable of producing only approximately

200 tons of product per year as opposed to the 360 tons of

product per year upon which its financing and viability had

been initially contemplated and established." In a letter of

January 4, 1989, to McGinn, Myers wrote that:

after the [Aquatech] report indicated an
expected tonnage, which was not viable, I
received confirmation from the directors
and major shareholders to advise the bank
and request a receiver. Both they and I
considered it wrong to continue
operations with this information in our
possession.

McGinn understood from Myers that the Aquatech report was one

of the factors that led Marine to decide not to inject any

more money into the project and to opt for receivership.

McGinn informed his supervisor of the development, and the

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supervisor noted in a memo that "apparently a recent

study . . . placessomequestion ontheviabilityof theproject."1

At the Royal Bank's request, the Supreme Court of

PEI appointed Deloitte & Touche2 as receiver of Marine's

assets. Karen Cramm, a partner in Deloitte's Halifax, Nova

Scotia office, was in charge of the receivership. Cramm took

instructions on the handling of the assets from the Royal

Bank, specifically from McGinn, as well as from the PEI

court. The Royal Bank was the sole secured creditor of

Marine, with a $ 2.8 million note outstanding. The

expectation was that none of Marine's other creditors would

get anything out of the sale of the assets; there would be a

shortfall.

1. More than a year later, on February 26, 1990, McGinn
prepared a "Bad and Doubtful Debt Report" on the loan to
Marine, which was somewhat contradictory to his earlier
understanding. The report stated, in relevant part:

While the funds in question did not
materialize as anticipated we were not
aware of a developing concern as to the
overall viability of the operation,
seemingly based on the findings of a
study which indicated growth rates
originally expected for the species
involved were significantly overstated
and maybe by as much as 50%.
Accordingly, Skillingsbanken A/S were not
prepared to participate further in any
manner and requested that a Receiver be
appointed immediately.

2. Deloitte & Touche was known as Touche Ross Ltd. at the
time the initial events leading to this litigation occurred.

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Cramm immediately took possession of Marine's

assets and reviewed the company's financial records. Farm

employees were terminated as employees of Marine and rehired

as employees of Deloitte, as receiver for Marine. Deloitte

decided to sell the farm by means of a public tender. Cramm

immediately began preparing an information package which

could be sent to potential investors. Around this time Myers

showed Cramm both the Aquacare I report and the Aquatech

report. Cramm read both reports. She included neither of

the reports in the information package, though later she

would offer the Aquacare I report alone to prospective

purchasers.

Deloitte placed advertisements in various

newspapers, including the Boston Globe, describing the farm

and inviting interested readers to contact Deloitte for

further information. The ads stated that the "business is

intended to be sold on a going-concern basis."

In early December, after learning that Marine had

become insolvent, Aquacare contacted Cramm and told her that

it wanted access to the plant to conduct a review of plant

operations. Aquacare had heard about the Aquatech report,

which criticized Aquacare's design and operational

specifications. Cramm agreed to Aquacare's request.

Aquacare then issued two unsolicited reports, the Aquacare II

report on December 15 and the Aquacare III follow-up report

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on December 20, attempting to rebut the Aquatech report.

Aquacare II reviewed plant operations and praised the design

and operational specifications of the plant. Aquacare II re-

asserted that 360-ton production "can be achieved without

problem," provided there was proper stocking of fingerlings

(young fish), and recommended a fingerling acquisition plan.

Aquacare II also blamed Marine's management for the plant's

failures. Aquacare III explicitly refuted the Aquatech

report. Aquacare did not bill Deloitte for these reports.

Meanwhile, John Roche, a Massachusetts real estate

developer, had been seeking a business opportunity in

aquaculture. After reading the Globe ad, he called Cramm from

his home in Massachusetts. The next day she sent him the

information package. Roche discussed the farm with two of

his business associates, Mark DiRico (the chief engineer of a

packaging supply business) and George Call, who both

expressed an interest. Roche and Call decided to visit the

facility in Canada. On January 3 or 4, 1989, they toured the

facility with Cramm. During this visit, Roche asked Cramm

why the previous investors had failed. She responded that

they had run out of money. Roche and Call also met with

Cliff Yorston, the Plant Manager, who told them that some of

the fish were ready for sale and that all the plant needed

was an infusion of new capital.

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8

Cramm offered the visitors a copy of the Aquacare I

report. Before receiving it, they were required to sign a

disclaimer, which stated, among other things, that they were

aware that Deloitte "had not, in any way, attempted to verify

the information contained herein." Cramm stated that she

offered the Aquacare I report to prospective purchasers

because "it was an informative package that included a layout

of the plant facility" and "it talked about, in general, the

aquaculture operation." She explained that the disclaimer

was intended to protect Deloitte against claims involving any

inaccuracies in the information contained in the report, such

as the financial projections, growth charts, and

profitability analysis. She had not reviewed that

information and had no opinion as to its accuracy.

Cramm admits she did not offer Roche and Call a

copy of the Aquatech report, but claims it was among the

financial statements that Roche and Call were invited to

view.

Roche and Call next met with McGinn at the Royal

Bank of Canada to discuss financing. McGinn, like Cramm

before him, told the two Americans that the farm went into

receivership because the previous investors had run out of

money.

Roche and Call returned to Massachusetts, where

Roche showed the Aquacare I report to DiRico. During the

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next week, Roche had several telephone conversations with

McGinn about potential financing. McGinn recommended that

Roche retain a local Canadian lawyer, Scott MacKenzie, and a

local Canadian accountant, Stan MacPherson, to assist him in

dealing with various government agencies. Roche did so.

On January 11, Roche and Call, this time

accompanied by DiRico, met with McGinn and Cramm at the Royal

Bank in PEI. DiRico asked McGinn for "sales figures"; DiRico

claims that McGinn gave him a copy of the Aquacare I report,

telling him that "all the figures are in here." DiRico says

he was not asked to sign a disclaimer. Cramm denies that

DiRico was given a copy of the report at this meeting.

DiRico asked McGinn about the plant's troubles; McGinn

responded that mismanagement was to blame.

Roche and his associates also went to see the farm.

Cliff Yorston, the Plant Manager, pulled a large fish from

one of the tanks and told the two visitors that he had a

whole tankful of similar "beauties" which could be sold for

$ 3.75 a pound in Boston. Roche and his associates planned

to generate operating capital for the plant through the

immediate sale of inventory.

Roche and his partners made an offer of $ 2.9

million the next day, subject to Royal Bank financing. But

Cramm, after securing the Royal Bank's support, rejected the

offer, instead choosing to accept a lower all-cash offer

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($ 1.4 million) from a group led by Hirsch Spiegleman. The

Spiegleman group's offer, unlike the Roche group's offer, did

not require Royal Bank financing.

On or around January 17, Cramm told Roche that his

offer had been rejected. McGinn also asked Roche if Roche's

group would still be interested in the event that the

Spiegleman deal fell through.

After his bid was accepted, Spiegleman requested a

copy of the Aquatech report (which he referred to as the "200

ton report"). The record does not reveal how Spiegleman,

unlike Roche, knew about the Aquatech report. Cramm informed

Aquacare of Spiegleman's request and asked for permission to

give him a copy of the Aquacare II and Aquacare III reports

at the same time.

In mid-February 1989, the Spiegleman deal

collapsed. The Roche group hoped to take over the Spiegleman

offer rather than going through the process of submitting a

new bid. Seeking financing, Roche and his partners met with

Amy Hunter, a loan officer at Boston Private Bank & Trust

Company (Boston Private). Roche gave Hunter a copy of the

Aquacare I report. Hunter understood that Roche was

presenting the report as his business plan. Roche told

Hunter that the fish farm went into receivership because the

previous owners had run out of money. Roche also told Hunter

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that he planned to raise operating capital by immediately

selling fish.

Hunter next called Cramm and McGinn to confirm what

Roche had told her. Cramm told Hunter that the farm's

equipment was state-of-the-art and all that was needed was

the right management. McGinn echoed these thoughts, adding

that Roche would get half his investment back in the first

three months without even having to invest in any new fish.

Hunter asked McGinn if he knew of any downside risks to the

farm or whether he had any projections for the farm. McGinn

responded that he did not know any downside risks other than

bad management and that Roche's ideas sounded good to him.

He did not offer any other projections. On February 28,

Boston Private approved a loan of $ 1.2 million to Roche,

secured by property Roche owned in the Boston area.

Cramm, however, decided not to allow Roche to take

over Spiegleman's offer. Instead, she re-tendered the farm

to all potentially interested buyers, including Roche.

Consequently, she edited the original information packet and

sent it out on March 1 to everyone who had expressed an

interest in the farm.3

3. The only substantive change made in the packet was the
addition of an express statement, in light of a disagreement
with the Spiegleman group, that the assets that were for sale
did not include an investment tax credit belonging to Marine.
The packet also mentioned that the Spiegleman deal had fallen
through.

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On March 2, Cramm received from Yorston, the farm's

Plant Manager, a copy of a recent memorandum written by

Aquacare (the Aquacare IV report). This memorandum had been

prepared by Aquacare for its subsidiary, Seasprings. It

accidentally fell into Yorston's hands because Aquacare,

intending to send it by fax to Seasprings, sent it to the

fish farm's fax number. The Aquacare IV report contained

scathing criticism of Deloitte's management of the farm.

Aquacare asserted that Deloitte, by attempting to maintain

the status quo pending sale, was actually reducing the value

of the farm's assets. For instance, several tons of fish had

matured past marketability. Aquacare believed that Deloitte

was wasting money by feeding these unmarketable fish.

Additionally, Deloitte had failed in a timely fashion to

purchase fingerlings to restock the farm and future harvests

would be lower. Aquacare believed that under Deloitte's

management the value of the inventory as well as the farm's

1989 and 1990 earning potential were decreasing daily.

Aquacare implicitly disavowed its own earlier production

capacity projections, made in the Aquacare I report and

reasserted in the Aquacare II report, at least as to 1989 and

1990.4

4. McGinn explained the decision not to buy any fingerlings,
despite Aquacare's recommendations that fingerlings be
purchased in a carefully prescribed manner at specific times,
as part of defendants' strategy of maintaining the status quo
pending the sale of the assets without investing any new

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Roche and DiRico visited the farm again on March 8.

Roche told Yorston that if his bid was accepted he would need

to start selling fish immediately to raise working capital.

Yorston replied that he had $ 150,000 worth of fish ready for

shipment to Boston. Roche also believed that, once the farm

was purchased, McGinn was prepared to provide working capital

in the form of a Royal Bank operating line. On March 10,

Roche and his partners offered $ 1.4 million. This offer was

accepted on March 13.

Roche called Yorston on March 13 to inquire again

about the prospects of immediate sales. Yorston faxed a

response to Roche. The cover sheet said, "Here are some

projected cash flows for 1989." The attached projections

anticipated sales in March of $ 154,000 and total sales for

the year of almost $ 2.5 million.5 These projections had not

been prepared by Deloitte or by Marine, but by the Spiegleman

group. However, someone had obliterated the identifying

heading at the top of the page so that, when the projections

were sent by fax, the source of the projections was not

identified to Roche. Yorston had earlier told Roche that he

money in the farm. This remained their strategy after the
Spiegleman deal fell through and it became clear that the
assets would not be sold until late March.

5. There is no indication as to whether these figures were
supposed to be in US currency or in Canadian currency.

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was not authorized to release any information about the plant

without permission from Cramm.

On March 17, Scott MacKenzie, the Canadian attorney

hired by Roche to help buy the farm, faxed two newspaper

articles to Roche, along with a brief note saying that Roche

might find the attached articles "interesting." One of the

articles discussed Marine's collapse, quoting Myers as saying

"[t]he Aquatech report was devastating and the only option

open to Marine Harvesting Ltd. was to request that the bank

place a receiver on site." Roche filed the articles away

without reading them.

On March 20, the Canadian court approved the sale

of the farm. Roche formed a corporation in Canada,

International Marine Fisheries, Ltd. (IMFL), to make the

purchase. Roche instructed Yorston to fill orders for

shipment to Boston. Yorston was able to fill the first few

orders of 2 to 4 pound fish, but the buyers in Boston

complained that the fish were too small. Yorston was unable

to fill the first order for 4 to 6 pound fish. He then

resigned. Scott Taylor, formerly the farm's Chief Biologist,

took over Yorston's position, but he was also unable to fill

these orders. In April, Taylor told Roche that the larger

fish were all unmarketable because they were too old and that

the other fish were too small for sale. Taylor predicted

that the smaller fish would be four pounds by June and could

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be sold then. By June, the smaller fish still had not grown

to four pounds. Taylor was fired. The new Plant Manager,

Richard Gallant, recommended, in order to cut expenses and

see if the fish would grow faster, that the fish be placed in

cages in the bay. This was done in July.

Roche and his partners injected cash of their own

into the enterprise to save it and also took out an operating

line of credit from the Bank of Nova Scotia in the amount of

$ 500,000. Roche personally guaranteed the loan. During the

summer, Roche and DiRico bought Call's share.

Roche came to think the fish farm was a failure.

He began negotiating with a local veterinary college which

was interested in buying the farm for research purposes. He

hired Deloitte to help him set up this deal. Stan MacPherson

and Cleve Myers, both recently hired by Deloitte, worked on

the project.

In September 1989, Roche was at the fish farm.

Tipped off by a former secretary, he found the Aquatech

report in a desk drawer. Attached to the report was a 1988

note from Cleve Myers, the former president of Marine, to a

prospective fish dealer. The note said that the farm:

was placed in receivership Friday
afternoon. The fish have not grown fast
enough, as you know, plus I have received
a specialist's report from Norway stating
that we can only grow 200 tons annually
(just enough to lose one million dollars
each year).

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After reading the report and the attached note Roche

concluded that he had been defrauded.

In November 1989, the Bank of Nova Scotia called

the loan and demanded that Roche, as personal guarantor, make

payment to the bank. He did not do so. The fish farm closed

in December, and went into receivership in February. The

Bank of Nova Scotia sued Roche and DiRico on the defaulted

loan.

Meanwhile, IMFL, the plaintiffs' Canadian

corporation, was dissolved in May 1990. Roche and DiRico

brought this action against Deloitte and the Royal Bank in

November 1990.

II.

Roche and DiRico sued Deloitte and the Royal Bank

on two theories: common law fraud and misrepresentation, and

"unfair or deceptive acts or practices in the conduct of any

trade or commerce," under Mass. Gen. Laws ch. 93A, 2.

The common law counts were tried before a jury.

Since the defendants did not consent to a jury determination

of the chapter 93A claim, that claim was decided by the

district judge. The jury returned a verdict for the Royal

Bank on all the common law counts. As for the common law

claims against Deloitte, the jury found that Roche and DiRico

had proved there were negligent misrepresentations, but that

the plaintiffs were ninety-nine percent negligent compared to

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the one percent negligence of Deloitte; therefore the claim

foundered on proximate cause grounds and there was no

recovery. The district court ruled that defendants had

engaged in misrepresentations contrary to the standard of

chapter 93A,6 but that the actionable conduct did not take

place "primarily and substantially within the commonwealth"

of Massachusetts, as chapter 93A requires. Mass. Gen. Laws

ch. 93A, 11. The court thus ruled in favor of defendants

on the issue of chapter 93A liability.

Plaintiffs, while defending the district court's

predicate rulings, appeal the court's ultimate decision on

chapter 93A liability. They assert that the deception

occurred primarily and substantially in Massachusetts.7

Defendants, by contrast, defend the "primarily and

6. Defendants argue on appeal that this ruling violates the
Seventh Amendment in light of the jury verdict on the common
law claims. We need not reach the issue since we affirm the
chapter 93A judgment for defendants on other grounds.

7. Plaintiffs argue that the court's "primarily and
substantially" decision is in tension with its earlier
decision to apply Massachusetts law to the dispute instead of
Canadian law. Defendants make essentially the same argument
in reverse -- that the latter decision was correct and should
trump the former. These arguments miss the mark. The choice
of law test and the "primarily and substantially" test,
though similar in many respects, are not identical. That a
judge should reach opposite results in applying these two
tests in a single case is no sign of error. See, e.g.,

Bushkin Assocs., Inc. v. Raytheon Co., 473 N.E.2d 662 (Mass.

1985) (applying Massachusetts law but concluding that the
deception occurred primarily and substantially outside
Massachusetts); cf. Burnham v. Mark IV Homes, Inc., 441

N.E.2d 1027, 1031 n.9 (Mass. 1982).

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substantially" ruling, but challenge a number of the district

court's predicate rulings. Specifically, defendants argue

that Roche and DiRico are not the real parties in interest

because the deception, as alleged, was perpetrated on the

Canadian corporation established by Roche and DiRico to

purchase and operate the fish farm, not on the two men as

individuals. They also argue that, under forum state

(Massachusetts) conflicts principles, Canadian law, rather

than Massachusetts law, should have been applied to the suit.

Finally, they argue that, even under Massachusetts law,

plaintiffs had not successfully shown actionable conduct

under 93A. Because we affirm the ruling below on the ground

that the conduct was not primarily and substantially in

Massachusetts, there is no reason to address defendants'

other arguments in any detail.

The question of whether the deception occurred

primarily and substantially in Massachusetts is one of law,

which we review de novo. Compagnie de Reassurance d'Ile de

France v. New England Reinsurance Corp., 57 F.3d 56, 90 (1st

Cir. 1995); Clinton Hosp. Ass'n v. Corson Group, Inc., 907

F.2d 1260, 1264 (1st Cir. 1990). This review, however,

cannot be conducted in a vacuum. We first determine exactly

what constituted the unfair or deceptive acts.

The district court found that six acts or omissions

constituted actionable deception on the plaintiffs. Whether

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a certain act or omission (or cluster of acts or omissions)

is actionable under chapter 93A is a question of fact.

Brennan v. Carvel Corp., 929 F.2d 801, 813 (1st Cir. 1991);

USM Corp. v. Arthur D. Little Sys., Inc., 546 N.E.2d 888, 897

(Mass. App. Ct. 1989). Review is for clear error. After

defining the deception, the district court then employed the

pragmatic, functional analysis spelled out by this court in

Clinton Hospital, 907 F.2d at 1266, in order to ascertain

whether the deception occurred primarily and substantially in

Massachusetts.8 Neither party challenges the district

court's methodology in determining the "primarily and

substantially" question by examining only the specific acts

(or omissions) of misconduct, instead of, say, by examining

the larger context of the parties' dealings. We therefore

use the same methodology. See also Gilleran, The Law of

Chapter 93A 3:15, at 32 & n.59.1 (1995 Supp.) ("The

relevant wrongful conduct to be considered for purposes of

personal jurisdiction under 93A is that conduct which

violated 93A.") (citing cases).

8. As a procedural matter, courts of appeals may review the
"primarily and substantially" issue at various stages of the
litigation: e.g., after trial, see Clinton Hospital, 907

F.2d at 1261; Makino, U.S.A., Inc. v. Metlife Capital Credit

Corp., 518 N.E.2d 519 (Mass. App. Ct. 1988); or on appeal

from summary judgment, see Goldstein Oil Co. v. C.K. Smith

Co., 479 N.E.2d 728 (Mass. App. Ct. 1985). Here, the case

comes to us after trial, with specific factual findings by
thedistrictjudgeon whatexactlyconstitutedtheacts ofdeception.

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The district court found that the following six

acts/omissions constituted the deception:

i. Cramm's response on January 4, 1989,
to a question from plaintiffs about the
problems of the fish farm, indicating
that the previous operators had run out
of money, but omitting that the investors
withdrew after reading the Aquatech
report;

ii. McGinn's statement to the same
effect;

iii. Cramm's failure to offer plaintiffs
a copy of the Aquatech report when she
offered them a copy of the Aquacare I
report;

iv. Cramm's failure, after March 1,
1989, to disclose to plaintiffs the
Aquacare IV report, which showed that
Aquacare no longer stood by the
projections it had made in the earlier
Aquacare I report;

v. McGinn's statement that buyers would
be able to sell fish immediately to
generate operating capital; and

vi. McGinn's failure to tell Hunter
about the Aquatech report, after offering
his opinion as to the viability of the
farm, when she asked if he had any more
information.9

Both parties challenge the district court's

findings on what constituted the deception. Plaintiffs urge

9. The district court excluded from consideration the
deceptive oral statements made by Yorston to the plaintiffs
and the deceptive fax sent by Yorston to Roche because the
plaintiffs had failed to plead Yorston's allegedly fraudulent
conduct with the requisite specificity. Plaintiffs protest
this ruling. We need not reach the issue as it is immaterial
to the outcome.

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us to give a broader construction, while defendants complain

that the district court saw deception where there was none.

We have reviewed the record and are mindful that there is

conflicting testimony on many points. The judge saw the

witnesses on the stand and had the opportunity to weigh their

credibility. See Fed. R. Civ. P. 52(a).

Defendants argue that the district court erred in

finding that defendants deceptively failed to disclose the

Aquatech report. Defendants assert that the non-disclosure

claim is an impossibility here because plaintiffs had

knowledge prior to buying the farm about the very document

the defendants are accused of failing to disclose, the

Aquatech report. This knowledge, the defendants essentially

argue, is based on either of two alternate theories. First,

defendants assert that plaintiffs had imputed knowledge of

the report: their agent MacKenzie knew about the Aquatech

report through a newspaper article and that knowledge could

be imputed to the plaintiffs.10 Second, defendants assert

that the plaintiffs had constructive knowledge: MacKenzie had

faxed a copy of the article to Roche (a week after

plaintiffs' offer was accepted), and Roche's knowledge could

be assumed, without relying on an agency theory (although

10. Defendants rely on DeVaux v. American Home Assurance

Co., 444 N.E.2d 355, 358 (Mass. 1983), and several other

cases for this agency theory.

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Roche did not read the article until long after).11 Even

assuming these theories are valid, defendants have still

failed to demonstrate reversible error. Prior to the

closing, plaintiffs at most knew of the existence of the

Aquatech report. Defendants' deception here was in not

providing plaintiffs with a copy of the report given that

plaintiffs had been provided with a copy of the rival

Aquacare I report. Under these facts the district court did

not err in finding that defendants deceptively failed to

disclose the Aquatech report.

Defendants also argue it was clear error for the

district court to conclude that the farm's original investors

pulled out because of the Aquatech report, a conclusion upon

which the non-disclosure claim rests. Defendants are correct

that the record does not reveal that the investors pulled out

solely because of the unfavorable Aquatech report. However,

the report clearly played a major role in the investors'

decision to place the plant in receivership. At the very

least, Cramm and McGinn knew that the previous investors

pulled out just after receiving the Aquatech report, and that

the report played a large role in this decision. Myers wrote

McGinn on January 4, 1989, saying that both the directors and

11. Defendants cite Chandler v. Atlas Gen. Indus., 215 F.

Supp. 617, 618-19 (D. Mass. 1963), for the proposition that a
plaintiff "cannot close his eyes to the obvious and then
claim to be deceived."

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the major shareholders thought it was wrong to continue

operations after receiving the information in the Aquatech

report as to the expected tonnage. There is no clear error.

Plaintiffs, in turn, challenge certain findings of

non-deception as clearly erroneous. They argue that the

advertisement placed by Cramm was deceptive because it

described the farm as a "going concern." A "going concern"

is "[a]n enterprise which is being carried on as a whole and

with some particular object in view" or "an existing solvent

business, which is being conducted in the usual and ordinary

way for which it was organized." Black's Law Dictionary 691

(6th ed. 1990). The district court determined that the use

of the term "going concern" here was not deceptive.

Plaintiffs rely entirely on Dr. Smith's findings in the

Aquatech report in asserting on appeal that the farm was not

a "going concern." In Dr. Smith's opinion, say plaintiffs,

the farm's pumping system was incapable of operating properly

at optimum levels and the farm was, as a general matter, not

state-of-the-art.

Plaintiffs' charge of error fails on two grounds.

First, Dr. Smith is one aquaculture expert among several

whose conflicting views about the farm became known in this

case. Indeed, this is the very reason his report should have

been available to the plaintiffs: the plaintiffs had been

given a different report by a competing aquaculture firm

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which expressed a far rosier view of the farm's operations

and production capacity. While the plaintiffs' non-

disclosure claim is rooted in the variety of opinions

available about the viability of the farm, their "going

concern" argument presents Dr. Smith's opinion as the single

truth. But most damaging to plaintiffs, Dr. Smith's report

never suggested, let alone stated, that the farm was not a

"going concern." His report indicates only his belief that

the farm was more poorly designed, and consequently a riskier

investment, than its designers thought.12

Finally, that the farm ultimately failed (and thus,

presumably could not properly have been described as a "going

concern" at some point during its decline) is not proof that

it was doomed to failure at the time the ad was placed, at

the start of the receivership. Indeed, implicit in the

plaintiffs' overall case is a claim that their venture might

not have failed if the receiver had managed the farm better

during the term of the receivership and if the selling price

better reflected the actual value of the assets. Precisely

because the value and production capacity of the farm were so

hotly disputed at trial, the judge did not commit clear error

in finding that the farm was a "going concern" at the time

12. Plaintiffs also claim that the farm was not a "going
concern" because it fell short of Amy Hunter's definition of
"going concern." Amy Hunter's definition of "going concern"
need not have been adopted by the court.

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25

the Globe ad was placed. The farm's ultimate failure does

not change this.13

These factual findings lead to the question whether

the deception occurred primarily and substantially in

Massachusetts. Contrary to the standard burden of proof on

jurisdictional questions, here the burden is on defendants to

show that their misconduct occurred primarily and

substantially outside Massachusetts. Mass. Gen. Laws ch.

93A, 11; Compagnie de Reassurance d'Ile de France, 57 F.3d

at 90; see Gilleran, supra, 3:16, at 65. This is because

" 11 provides an exemption from 93A liability, available as

a defense, rather than a jurisdictional prerequisite to

suit." Kansallis Fin. Ltd. v. Fern, 40 F.3d 476, 481 (1st

Cir. 1994). The district court's conclusion that defendants

satisfied this statutory burden is one of law, reviewed de

novo. Compagnie de Reassurance d'Ile de France, 57 F.3d at

90; Clinton Hospital, 907 F.2d at 1264.

In Clinton Hospital, this court read the sparse

body of Massachusetts precedent as support for a pragmatic,

functional approach for determining whether actionable

misconduct occurs primarily and substantially in

Massachusetts. The Clinton Hospital court distilled the

13. Similarly, plaintiffs' assertions that the two
information packets were deceptive also fail. These arguments
bootstrap on the argument about the ad, since the packets,
say plaintiffs, are deceptive because they describe the farm
as a "going concern."

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26

approach down to three basic factors: (1) where defendant

committed the deception; (2) where plaintiff was deceived and

acted upon the deception; and (3) the situs of plaintiff's

losses due to the deception. Id. at 1265-66. The district

court, applying the Clinton Hospital factors to this case,

reasoned that the deception here occurred primarily and

substantially in Canada.

This court has previously recognized that the first

factor is the least weighty of the three factors. Compagnie

de Reassurance d'Ile de France, 57 F.3d at 90; Clinton

Hospital, 907 F.2d at 1265-66. The district court was aware

of this and ruled that the first factor weighed against the

plaintiffs because most of the defendants' misrepresentations

and deceptive acts were committed in Canada. This is plainly

correct. Indeed, the district court understated the point:

all the misrepresentations occurred in Canada. Nevertheless,

plaintiffs argue on appeal that the "clear preponderance" of

defendants' deceptive conduct occurred in Massachusetts.

This argument, however, is premised on a certain set of acts

which the district court did not consider part of the

deception. Specifically, plaintiffs assert that the Boston

Globe ad and the two information packets were deceptions

which defendants committed in Massachusetts. But the

district court did not err in finding that the ad and the

packets were not misleading.

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27

As to the non-disclosure of the Aquatech report and

the Aquacare IV report, there is a metaphysical dilemma in

ascertaining where this occurred. The very problem is that

disclosure did not occur. The district court read Clinton

Hospital as support for the proposition that non-disclosure

occurs where the defendant who fails to disclose is located.

This was obviously Canada. But Clinton Hospital does not

answer this question. Where the defendants' obligation to

disclose certain documents arose out of their voluntary

disclosure of other documents, and where the parties'

dealings were fairly evenly split between two places, it is

most reasonable to say that the non-disclosure occurred

equally in both places. However, since all the actual

misrepresentations, as detailed above, were made by the

defendants in Canada, the first Clinton Hospital factor still

weighs in favor of defendants.14 The district court

concluded, and we agree, that the bulk of the defendants'

unfair and deceptive acts and omissions were in Canada.

The second Clinton Hospital factor requires an

analysis of where the plaintiffs received and acted upon the

deceptive or unfair acts or practices. As the district court

properly recognized, this factor, though framed by the

14. That some of the misrepresentations, while made in
Canada, were received in Massachusetts, will be considered
with respect to the second Clinton Hospital factor, but is

not relevant here.

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28

Clinton Hospital court as a single factor, really requires

two distinct inquiries.

As to where the plaintiffs received the deception,

the district court concluded that it was primarily Canada.

In coming to this decision, the court declined to consider

the misleading statements made by McGinn to Hunter during

their telephone conversation because the district court

believed Hunter "was not acting as an agent of the plaintiffs

when she received the misrepresentation, and there is no

evidence she relayed any of the misrepresentations to the

plaintiffs." Plaintiffs complain the court erred in not

including this telephone conversation as a deception. This

is an arguable issue, but we resolve it against plaintiffs.

In terms of strict agency law, Hunter was acting for Boston

Private, not for plaintiffs, when she made the call. There

is no evidence that Hunter told McGinn or Cramm that she was

calling on Roche's behalf or that she would transmit the

information to Roche. Thus, while there was a deception of

Hunter, it was not of plaintiffs. As to the district court's

second rationale -- that no misrepresentations were conveyed

by Hunter to plaintiffs -- it is inapplicable on these facts.

McGinn concealed from Hunter the very information which,

Hunter testified, she would have relayed to Roche if McGinn

had been more forthcoming.

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29

The only other misrepresentation received in

Massachusetts was the Yorston fax, which, under the district

court's own evidentiary rulings, may be considered in this

analysis. On the other hand, there were three misleading

statements made by the defendants and received by the

plaintiffs in Canada during the plaintiffs' initial visits

there. And, as discussed above, the defendants' failure to

disclose was, for these purposes, received by the plaintiffs

equally in Massachusetts and Canada, as the parties' overall

dealings were evenly divided between those two places.

Therefore, while the plaintiffs received the deception in

both places, we agree with the district court that slightly

more of it was received in Canada.15

The second Clinton Hospital factor also requires us

to examine where plaintiffs acted upon the deception.

Indeed, in Clinton Hospital, this court recognized that "the

critical factor is the locus of the recipient of the

deception at the time of reliance." Clinton Hospital, 907

F.2d at 1265-66; see also Compagnie de Reassurance d'Ile de

France, 57 F.3d at 90. Under varying circumstances this may

or may not be the same place as the place where the plaintiff

15. As with the first Clinton Hospital factor, plaintiffs

urge us to frame the deception broadly enough to encompass
the description of the farm as a "going concern" in the
Boston Globe ad and in the two information packets, all of

which plaintiffs obviously received in Massachusetts. For
reasons expressed above, we will not do so.

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received the deception. Here, the district court concluded

that the plaintiffs' actions in reliance were evenly divided

between Massachusetts, where they negotiated a loan secured

by Massachusetts properties, and Canada, where they hired a

lawyer and accountant and formed a Canadian corporation to

purchase the farm, and that this sub-factor thus favored

neither party.

The district court thus concluded that the two-

faceted second factor, like the first factor, weighed in

favor of Canada, and consequently in favor of the defendants.

We agree.

The third Clinton Hospital factor is the location

of the loss. The parties advance radically different

conceptions of the loss here. Plaintiffs assert that the

loss was the loss of the Massachusetts property that secured

the Boston Private loan and that was ultimately foreclosed on

when the plaintiffs defaulted on the loan. Defendants

conceive of the loss as the loss of the money which was

invested in the farm in Canada.

The district court adopted the plaintiffs'

definition. The court's reasoning was heavily influenced,

perhaps even mandated, by its earlier ruling on the scope of

the damages which plaintiffs would be allowed to seek in this

action. In that earlier ruling, the court rejected

defendants' argument that the plaintiffs as individuals were

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not the real parties in interest in this case by defining the

alleged losses narrowly, allowing plaintiffs to seek recovery

only of losses they incurred personally in capitalizing the

corporation and not those losses suffered by the corporation

in Canada. The district court felt obligated, for the sake

of consistency, to use the same conception of the loss in

this context. The court thus concluded that this third

factor favored the plaintiffs. We agree.

The district court balanced the three factors and

found that defendants -- in whose favor the first two factors

weighed -- had met their burden of proving that the deception

had occurred primarily and substantially outside

Massachusetts. Although the pragmatic, functional analysis

is not necessarily limited to the three factors, it is

significant that two of the three identified factors weigh in

favor of the defendants here. Cf. Central Mass. Television,

Inc. v. Amplicon, Inc., 930 F. Supp. 16, 27 (D. Mass. 1996)

("[W]hen 'place of injury' is the only factor weighing in

favor of a claimant, the admonition of Massachusetts courts

that liability under chapter 93A is not to be imposed lightly

is particularly relevant.").

III.

Defendants moved, after trial, for attorneys' fees

in the sum of $ 865,000. The district court, in a written

memorandum, denied this motion. Defendants appeal.

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The district court first noted the dispute between

the parties over whether United States or Canadian law should

apply to the fee-shifting claim. Then, assuming arguendo

that Canadian law applied, as defendants urged, the court

interpreted Canadian law to grant judges "absolute and

unfettered" discretion in attorneys' fees claims. Exercising

this discretion, the district court determined that an award

of fees would be "inequitable" because of defendants'

intentional misconduct, and it denied the motion.

Defendants base their argument -- one wholly based

on Canadian substantive law -- on the underlying premise that

Canadian substantive law applies to the entire dispute

between the parties. They make no argument that they are

entitled to fees under Massachusetts law. The district

court, however, rejected the defendants' choice of law

position, applying Massachusetts law to the plaintiffs'

chapter 93A claim. The court consulted Canadian law in

considering, and disposing of, the claim for the sake of

argument only. It is unnecessary to resolve the choice of

law issue, as the denial of attorneys' fees was, under

Canadian law, well within the trial court's discretion given

the circumstances of this case.

Defendants unsuccessfully argue that the district

court overestimated the degree of discretion enjoyed by

Canadian courts in the fee-shifting context. Under Canadian

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33

law, "[a] successful litigant has by law no right to costs."

Orkin, The Law of Costs 202.1, at 2-3 (2d ed. 1993).16

"Although [the successful litigant] may have a reasonable

expectation of receiving [costs], this is subject to what

some cases have termed the court's absolute and unfettered

discretion to award or withhold costs." Id. This discretion

is "to be exercised according to the circumstances of each

particular case." Id.

Defendants also argue that the court abused its

discretion by basing its denial of fees on its finding that

defendants' conduct was violative of chapter 93A. They

claim that Massachusetts law is irrelevant to Canadian

attorney fee determinations and thus that the district judge

erred in considering conduct that was violative of

Massachusetts law. Defendants misapprehend the district

court's reasoning. The point is that their conduct was

wrongful, not that it violated a particular statute. In

denying the motion, the court noted that "defendants acted

intentionally to withhold material information from

plaintiffs." Chapter 93A was merely the lens through which

the court examined defendants' conduct. Certainly, under the

broad discretion Canadian law accords judges in attorney fee

16. The term "costs," as used in Canadian law, encompasses
attorneys' fees. See id. 201, at 2-1.

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34

determinations, the district judge was entitled to consider

this misconduct.

Defendants prevailed on plaintiffs' chapter 93A

claim because they successfully asserted that the misconduct

occurred primarily and substantially outside Massachusetts.

Their motion for attorneys' fees was denied because the

district court, exercising its discretion, believed it would

be inequitable to award fees to parties whose wrongful

conduct had been established at trial. It was entirely

proper, in this context, for the district judge to consider

defendants' intentional misconduct in deceiving the

plaintiffs as a circumstance militating against an award of

fees.

IV.

For the reasons expressed above, the judgment of

the district court in favor of defendants and the denial of

defendants' post-trial motion for attorneys' fees are both

affirmed. Parties to bear their own costs.

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