Play Time, Inc. v. LDDS Metromedia Communications, Inc.

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 96-2066

PLAY TIME, INC.,

Appellee,

v.

LDDS METROMEDIA COMMUNICATIONS, INC.,
a/k/a WORLDCOM, INC. OR WORLDCOM,

Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Torruella, Chief Judge,

Cyr, Senior Circuit Judge,

and Stahl, Circuit Judge.

Joan A. Lukey, with whom Anthony A. Scibelli and Hale and Dorr,

LLP were on brief for appellant.

Kenneth L. Kimmell, with whom Erin M. O'Toole and Bernstein,

Cushner & Kimmell, P.C. were on brief for appellee.

August 12, 1997

CYR, Senior Circuit Judge. Defendant-appellant
CYR, Senior Circuit Judge

WorldCom challenges a district court judgment awarding damages

for breach of its agreement to assign plaintiff-appellee Play

Time, Inc. ("Play Time") a toll-free "800" vanity number. We

affirm the district court judgment in all respects.

I
I

BACKGROUND1
BACKGROUND

WorldCom, a corporation with its principal place of

business in Jackson, Mississippi, and an office in Revere,

Massachusetts, provides subscribers with specialized long-

distance services, including toll-free "800" numbers.2 Pursuant

to industry standards, toll-free "800" numbers are stored in a

central database known as the 800 Service Management System

("SMS/800"). All "800" numbers are reserved and assigned to

subscribers by so-called Responsible Organizations ("RESP ORGs")

through SMS/800.

In March 1994, Play Time, a Massachusetts-based,

family-owned corporation engaged in selling art supplies, was

endeavoring to expand into nationwide telephonic networking aimed

at the commercial real estate leasing market. Michael Levosky, a

Play Time shareholder and co-manager, envisioned a nationwide

referral service through which potential customers could call a

1"We recite the facts as the jury and district court could
have found them." Roche v. Royal Bank of Canada, 109 F.3d 820,

821 (1st Cir. 1997).

2At the time of the relevant events, its corporate name was
LDDS Metromedia Communications, Inc.

2

toll-free "800" number and enter information into an automated

call router which would link the caller to a real estate office

near the place the caller wanted to lease commercial real estate.

Play Time would generate income from the fees charged real estate

brokers for their advertising and usage of the toll-free "800"

number.

To that end, Play Time set out to obtain a suitable

vanity number, one whose alphabetical counterpart conveyed a

business message readily identified and remembered by targeted

customers. Levosky decided to obtain 1-800-"367-5327" ("the

Number"), which would transpose as "FOR-LEAS[E]." WorldCom

advised Levosky that the Number, though not then in use, was

expected to become available a few weeks later, on or about April

20, 1994.3

Levosky called the WorldCom office in Revere,

Massachusetts, which handled other telephone business for Play

Time, and spoke with the "800" coordinator, Martha Burton, who

confirmed that the Number would become available in mid-April.

Burton assured Levosky that she would obtain the Number through

3The SMS/800 system records the status of all "800" numbers.
Normally, "800" numbers fall into one of five main categories:
"assigned," "working," "spare," "disconnect," or "unavailable."
After a subscriber advises that it no longer needs a particular
"800" number, the number is allowed to age for approximately six
months before reverting to "spare" status. Only numbers in
"spare" status are immediately available to the next subscriber.
A number in "spare" status is not assigned to any particular RESP
ORG, but can be assigned to a subscriber by any RESP ORG simply
by reserving it with SMS/800. Once an "800" number has been
assigned to a particular RESP ORG, however, no other RESP ORG can
control its status.

3

SMS/800 and assign it to Play Time once it attained "spare"

status.

On April 20, 1994, one week after WorldCom became the

RESP ORG for the Number, and the day the Number was to revert to

"spare" status, Levosky reminded WorldCom to assign the Number to

Play Time.4 Notwithstanding that WorldCom had been designated

the RESP ORG for the Number, however, it did not do so. Levosky

called WorldCom frequently between April 20 and May 10, 1994, to

ascertain why the Number had not yet been assigned to Play Time,

only to be told essentially that WorldCom was checking into it.

On May 11, 1994, Levosky called Joseph Shannon, a

senior account executive in WorldCom's Revere office, who assured

Levosky that the Number could be assigned to Play Time once the

appropriate paperwork had been completed. Levosky promptly

executed the required documents and returned them to Shannon the

same day; Shannon faxed them to the WorldCom RESP ORG office in

San Antonio on May 12.

Although the WorldCom fax machine in the Revere office

printed a receipt reflecting that the fax had been received in

San Antonio on May 12, when Shannon called the San Antonio office

on May 13 he was informed that the documents had never been

received. Once again Shannon faxed the documents. Although the

4Any RESP ORG may reserve a number in "spare" status
directly through SMS/800. The number is then "reported to" that
RESP ORG, in "reserve" status. At all times relevant to this
appeal, a number could remain in reserve status for up to 60
days. Thereafter, it automatically reverted to "spare" status
unless it had achieved "assigned" or "working" status.

4

second set of documents was received in San Antonio on May 13, as

confirmed by telephone, still the Number was not assigned to Play

Time. Shannon was told the delay was due to difficulty in

getting the Number released from SMS/800, notwithstanding the

fact that WorldCom was already the RESP ORG for the Number. But

see supra note 3.

Meanwhile, one Michael Eisemann had asked a WorldCom

office in Indiana to obtain the Number for his real estate

business. Eisemann intended to use the Number in a nationwide

referral system similar to that envisioned by Levosky. On May

20, 1994, approximately two months after Levosky first made a

verbal request for the Number and nine days after Levosky's first

written request, Eisemann submitted the order to the WorldCom

office in Indiana, with the required paperwork. Levosky's

earlier requests notwithstanding, WorldCom assigned the Number to

Eisemann, because its Revere office had never entered Play Time's

request into SMS/800.

Unaware that Eisemann had obtained the Number, Levosky

continued to inquire into its status. Although Levosky was told

there had been some delay due to paperwork problems, Shannon

advised him that the problems had been resolved and the Number

would soon be assigned to Play Time. On May 26, Levosky dialed

the Number to determine whether it would ring at Play Time's

office. The call was answered instead by an employee in a

Detroit, Michigan, maintenance office. Whereupon Levosky

contacted WorldCom, only to be informed that there had been a

5

computer "glitch."

Although WorldCom switched the Number to Play Time on

May 27, by May 31 it was once again ringing at the Detroit

maintenance office. The Number changed hands between Levosky and

Eisemann four more times between May 31 and June 2, ultimately

remaining with Eisemann. On June 2, Shannon tracked down the

Indiana sales representative responsible for assigning the Number

to Eisemann, and learned for the first time that Eisemann too had

requested the Number. After Shannon informed Levosky of the

problem, Levosky complained that WorldCom originally had

retrieved the Number from SMS/800 at his request, more than two

months earlier. Levosky then asked WorldCom to disconnect the

Number pending an investigation.

Shannon and his supervisor, Charles Hurd, approached

senior WorldCom management in the Revere office, urging that the

Number be returned to Play Time. Hurd informed Brady Buckley,

Vice President of sales for the eastern region, that the Number

had been taken from Play Time. Buckley asked Hurd how much money

the Number could be expected to produce. Hurd was unable to

answer the question. Buckley finally told Hurd: "F--- it[;]"

"leave it alone."

Upon learning that the Revere office was unable or

unwilling to assist him further, Levosky contacted Deborah

Surrette, WorldCom Vice President for the Northeast region. When

Levosky explained why the Number was so important to Play Time,

Surrette promised to investigate the matter and get back to him.

6

Surrette asked Kelle Reeves, director of customer provisioning

and RESP ORG, to determine whether WorldCom policy had been

followed in regard to the Number. After speaking with several

people, but without attempting either to contact the Revere

office or to ascertain which customer had first requested the

Number, Reeves simply concluded that WorldCom had complied with

industry guidelines requiring "800" numbers to be allocated on a

"first-come, first-served" basis, as Eisemann's request had been

the first to be entered into SMS/800.5

Levosky continued to urge WorldCom to return the Number

to Play Time, but was told that industry guidelines prohibited

its reassignment. See supra note 5. Levosky nevertheless

maintained that Play Time had been the first to request the

Number. WorldCom then altered course, explaining that its

relationship with Levosky was not controlled by industry

guidelines, which govern only the relationship between a RESP ORG

and SMS/800.

At that point, WorldCom wrongly represented to Levosky

that the problem had been caused by AT&T. According to WorldCom,

AT&T had been the RESP ORG for the Number on the date Play Time

requested it, but had released the Number to "spare" status

rather than assigning it to WorldCom. To the contrary, however,

AT&T was never the RESP ORG for the Number after 1993. Rather,

5Industry guidelines provide that: "Specific 800 Number
requests are honored based on availability, on a first-come,
first-served basis, at the time the reservation request is
initiated by a RESP ORG into SMS/800." Industry Guidelines for
800 Number Administration, 2.3.1 (Issue 3.0, December 1, 1993)

7

as we have noted, WorldCom itself had been the designated RESP

ORG since April 13, 1994.

Finally, WorldCom informed Levosky that the documents

he had submitted through Shannon, see supra p. 4, had not been

received by its San Antonio office until after the May 20th

request from Eisemann, even though a WorldCom employee in San

Antonio had confirmed receipt of the Levosky paperwork on May 13.

Play Time brought suit against WorldCom on November 9, 1994,

demanding damages and specific performance. Shortly after

Eisemann was named an indispensable party in relation to the

specific performance claim because he still controlled the

Number he changed long-distance carriers to prevent WorldCom

from returning the Number to Play Time.

Play Time then offered Eisemann an immediate $5,000

non-refundable deposit and an additional $45,000 following trial,

in return for the Number. At the same time, it offered to

dismiss its action against Eisemann if he would testify to the

value of the Number. Eisemann countered with a demand for a

$10,000 non-refundable deposit and $40,000 after trial. Their

negotiations ultimately fell through because Play Time could not

come up with the additional $5,000 non-refundable deposit.

Eisemann nevertheless testified at trial that the

Number did have inherent value, explaining that "people would buy

the [vanity] number for [its] potential value." He produced a

pamphlet he had developed for marketing the Number, touting the

importance of vanity numbers in reaching potential customers.

8

Although Eisemann acknowledged that he was motivated to enter

into an agreement with Levosky in part because he wanted to get

Levosky "out of his hair," he consistently maintained that the

Number had inherent value.

The jury returned verdicts for Play Time on all counts,

awarding $50,000 in damages on each count, representing the value

of the Number under a "willing-transferor-willing-transferee"

standard. The total award was limited to $50,000, however,

because the jury determined that recovery under more than one

count would be redundant.

At a later hearing, the presiding judge found that

WorldCom had violated Mass. Gen. Laws ch. 93A, 11, which affords

civil relief from unfair or deceptive business practices. The

court determined WorldCom's conduct both unfair and deceptive,

and held that it had occurred "primarily and substantially"

within Massachusetts. Accordingly, the court trebled the $50,000

damages award made by the jury, see Mass. Gen. Laws ch. 93A, 11

(1984), and awarded attorney fees and costs under Mass. Gen. Laws

ch. 93A and the Federal Communications Act. Finally, the

equitable claim for specific performance was dismissed as moot.

WorldCom promptly appealed from the $233,334.84 judgment.

II
II

DISCUSSION
DISCUSSION

1. Jury Instructions and Verdict Form
1. Jury Instructions and Verdict Form

WorldCom claims the district court erred in instructing

the jury to apply a "willing-transferor-willing-transferee"

9

standard for measuring damages. It maintains that "800" numbers

are without inherent value as a matter of law, since it would

violate industry guidelines and public policy to allow telephone

numbers to be bought and sold on the open market.

Throughout the trial, Play Time made it very clear that

it was demanding the value of the Number. Early on, the district

court set itself to the task of articulating an appropriate

measure of damages. WorldCom voiced no objection to the district

court's proposed articulation of the measure of damages until

after the close of the evidence. At that time, its trial counsel

offered two cursory observations.

First, WorldCom stated that the measure of damages on

the negligence claim should be different from that on the

contract claim. Its second observation appears in the following

exchange:

WorldCom: Your Honor, just for the record, I

haven't made any comments on the willing-

assignor-willing-assignee theory. I just

wanted to reflect what the record so far
reflects, that by not making any comments on
it, I don't adopt it as --

The Court: Well, you'll have the opportunity

to make objection.

WorldCom: Yes.

The Court: But if you've got any alternative

way of dealing with this matter, of course I

want to hear it now.

WorldCom: Right. I don't think I do other

than simply to ask you to instruct the jury

in accordance with my requested instruction

on damages, and I expect that's what I'll
simply do after closings. (Emphasis added.)

10

The record on appeal neither contains a proposed instruction by

WorldCom nor reflects the grounds for its objection to the

instruction given by the district court.

The special verdict form included a statement of the

issues relating to the "willing-transferor-willing-transferee"

standard, as follows:

1(c). What amount of money, if any, do you
find to be fair and reasonable compensation,
of each of the following types, for . . .
breach . . . of contract? Answer in DOLLARS
or NONE.

(1) Reimbursement of losses proved by a
preponderance of the evidence to have been
out-of-pocket expenses.

(2) Fair market value (as valued by the
willing-transferor-willing-transferee stan-
dard) of a transfer, by Eisemann to Play
Time, on or about September 21, 1995, of
Eisemann's rights to use the number 800-367-
5327.

The same formula was used for the contract, negligence, and

Federal Communications Act claims.

The presiding judge explained the "willing-transferor-

willing-transferee" standard to the jury as follows:

The willing transferor and willing
transferee are hypothetical persons created
by the law to help us decide questions of
valuation in circumstances in which no real
persons have arrived at an exact value for
the property or property rights at issue.
You, as decisionmakers on this question of
value, are directed to envision not the usual
arm's-length transactions between real-life
bargainers, but instead a transaction of the
hypothetical variety - indeed of a contrary
to fact variety. If the reality is that in
human experience a property interest exactly
like that transferred in this case has not
been transferred in an arm's-length

11

transaction between real people, you must
imagine a transaction not exactly like any
transaction described in the evidence before
you.

These hypothetical persons, the willing
transferor and willing transferee, always
come to an agreement. They never end their
negotiations in failure. They always arrive
at a value they both agree upon.

The aim of factfinding by using this
willing-transferor-willing-transferee
standard is to help you evaluate the parties'
evidence, and their arguments about evidence
and about formulas and figures, and about
other factors in evidence that bear upon the
issue of value. You are to do your
evaluation in the way you find the willing
transferor and willing transferee would
evaluate the same factors and arguments.

To these persons different formulas
suggested by opposing parties are not
binding. They are only tools. The willing
transferor and willing transferee do not
overlook relevant evidence. They weigh every
relevant factor. They are not experts, but
they are attentive to expert advice. But in
the end they make a pragmatic decision that
enables them to come to a common value after
evaluating all of the evidence and arguments
before them.

After the jury charge had been delivered, the presiding

judge invited objections to the charge and the special verdict

form. At that point, WorldCom simply registered its objection to

the "instruction on the measure of damages" relating to the

"willing-transferor-willing-transferee" standard. The district

court overruled the objection.

Objections to jury instructions are governed by Fed. R.

Civ. P. 51, which provides in relevant part that "[n]o party may

assign as error the giving or the failure to give an instruction

12

unless that party objects thereto before the jury retires to

consider its verdict, stating distinctly the matter objected to

and the grounds of the objection." Fed. R. Civ. P. 51 (emphasis

added). We have "consistently held that the strictures of Rule

51 must be followed without deviation." Smith v. Massachusetts

Inst. of Tech., 877 F.2d 1106, 1109 (1st Cir. 1989). See also

Kerr-Selgas v. American Airlines, Inc., 69 F.3d 1205, 1213 (1st

Cir. 1995).6

Assignments of error duly preserved pursuant to Rule 51

are subject to the "harmless error" regime set out in Rule 61,

which requires the reviewing court to "disregard any error or

defect in the proceeding which does not affect the substantial

rights of the parties." Fed. R. Civ. P. 61.7 Absent strict

compliance with Rule 51, however, appellate challenges to a jury

charge or verdict form cannot succeed unless the assigned error

"caused a miscarriage of justice or . . . undermined the

integrity of the judicial process." Scarfo v. Cabletron Systems,

6The Rule 51 standard applies to the jury charge and any
special verdict form. See Transamerica Premier Ins.Co. v. Ober,

107 F.3d 925, 933 (1st Cir. 1997); Clausen v. Sea-3, Inc., 21

F.3d 1181, 1195-96 (1st Cir. 1994).

7WorldCom insists that the jury instruction must be reviewed
de novo. Although we exercise "independent judgment in

evaluating the legal correctness of the district court's jury
instructions," Data General v. Grumman Systems Support, 36 F.3d

1147, 1159 (1st Cir. 1994), and may review the special verdict
form for abuse of discretion, see Transamerica Premier Ins. Co.

v. Ober, 107 F.3d 925, 933 (1st Cir. 1997), a party which has

complied with Rule 51 nonetheless must show that the assigned
error affected "substantial rights," see Fed. R. Civ. P. 61,

whereas a party which has not complied with Rule 51 must
demonstrate a "miscarriage of justice." See Scarfo v. Cabletron

Systems, Inc., 54 F.3d 931, 940 (1st cir. 1995).

13

Inc., 54 F.3d 931, 940 (1st Cir. 1995); see also Lash v. Cutts,

943 F.2d 147, 152 (1st Cir. 1991) ("Absent timely objection, an

erroneous jury instruction warrants a new trial only in the

exceptional case where the error seriously affected the fairness,

integrity or public reputation of judicial proceedings."

(internal quotation marks omitted)); Elwood v. Pina, 815 F.2d

173, 176 (1st Cir. 1987). The latter standard "plain error"

see Transamerica Premier Ins. Co. v. Ober, 107 F.3d 925, 933

(1st Cir. 1997); Kerr-Selgas, 69 F.3d at 1213; Elgabri v. Lekas,

964 F.2d 1255, 1259 (1st Cir. 1992); Elwood, 815 F.2d at 176,

"'is near its zenith in the Rule 51 milieu.'" Clausen v. Sea-3,

Inc., 21 F.3d 1181, 1196 (1st Cir. 1994) (quoting Toscano v.

Chandris, S.A., 934 F.2d 383, 385 (1st Cir. 1991)).

Rule 51 requires a punctual objection identifying

"distinctly the matter objected to and the grounds of the objec-

tion." Fed. R. Civ. P. 51 (emphasis added). Here, however,

WorldCom interposed no record objection to the special verdict

form, as distinguished from the jury charge defining "the measure

of damages." Moreover, WorldCom articulated no grounds

whatsoever for its objection to the special verdict form or the

jury charge. Failure to object with the requisite

particularity forfeits review under the "harmless error" rule.

See Scarfo, 54 F.3d at 944; Linn v. Andover Newton Theological

School, Inc., 874 F.2d 1, 5 (1st Cir. 1989); Elwood, 815 F.2d at

175-76; New York, N.H. & H.R. Co. v. Zermani, 200 F.2d 240, 245

(1st Cir. 1952). Consequently, appellate review is limited to

14

determining whether a miscarriage of justice would occur were the

asserted error not corrected. See Scarfo, 54 F.3d at 940.

WorldCom can demonstrate no miscarriage of justice.

First, the "fair market value" standard defined by the

district court, see supra pp. 11-12, provided the jury with a

just and reasonable measure of damages under Massachusetts law in

these circumstances. See Mechanics Nat'l. Bank of Worcester v.

Killeen, 384 N.E.2d 1231, 1239 (Mass. 1979) (holding, in action

for breach of contract caused by wrongful foreclosure and sale of

shares of stock, plaintiff was "entitled to recover the fair

market value of the stock at the time of its sale"); Hall v.

Paine, 112 N.E. 153, 155 (Mass. 1916) (holding that "fair market

value" was proper measure of damages for stock broker's breach of

margin agreement caused by sale of plaintiff's shares without

authorization; noting that, generally speaking, fair market value

is proper measure of damages for breach of contract relating to

sale of goods which have an ascertainable value on the market).

Thus, at the very least, the "fair market value" standard

articulated by the district court effectively foreclosed

WorldCom's claim of error under the "plain error" ("miscarriage

of justice.") standard.8 The failure [to] instruct the jury on a

8Under the harmless error rubric, trial court error affects
"substantial rights" only if it results in substantial prejudice
or has a substantial effect on the outcome of the case. See

Lataille v. Ponte, 754 F.2d 33, 37 (1st Cir. 1985) (defining

harmless error, in context of challenge to admission of evidence,
as "whether we can say 'with fair assurance ... that the judgment
was not substantially swayed by the error'" (quoting United

States v. Pisari 636 F.2d 855, 859 (1st Cir. 1981)) (alteration

in original)). See also 12 JAMES WM. MOORE ET AL., MOORE'S

15

measure of damages other than the fair market value cannot meet

either standard, however, especially since the challenged

instruction outlined a fair and reasonable measure of damages,

and no other standard was proposed below.

WorldCom misses the mark with its argument that the

Number had no market value because its sale, brokering, barter,

or release for a consideration was prohibited.9 Quite the

FEDERAL PRACTICE 61.02[2] (3d ed. 1997). In order to satisfy
the "plain error" standard of review ("miscarriage of justice"),
however, an appellant must show "more than the simple
individualized harm which occurs whenever a litigant's failure to
object . . . alters the outcome of a trial." 9 MOORE'S FEDERAL
PRACTICE 51.21[2]. Among the factors to be considered are:
whether the failure to raise the claim below deprived the
reviewing court of helpful factfinding; whether the issue is one
of constitutional magnitude; whether the omitted argument is
highly persuasive; whether the opponent would suffer any special
prejudice; whether the omission was inadvertent or deliberate;
and, perhaps most importantly, whether the issue is of great
importance to the public. See National Ass'n of Social Workers

v. Harwood; 69 F.3d 622, 627-28 (1st Cir. 1995) ("legislative

immunity" defense considered on appeal despite failure to raise
it below). See also 9 MOORE'S FEDERAL PRACTICE 51.21[2]. Our

case, which implicates only the question of damages for breach of
a private agreement between the litigants, presents no issue of
great public importance or constitutional magnitude; the Harwood

factors, therefore, weigh in favor of Play Time. Nor does the
present case implicate the integrity of the judicial process, as
the proceedings below were conducted with meticulous attention to
the rights of both parties. See Scarfo, 54 F.3d at 940.

9The relevant industry guideline provides:

800 numbers are not to be treated as
commodities which can be bought or sold and
no individual or entity is granted a
proprietary interest in any 800 number
assigned. RESP ORGs and 800 Service
Providers are prohibited from selling,
brokering, bartering, or releasing for a fee
(or other consideration) any 800 number.
Reserving, Assigning, or activating
(Working) 800 Numbers by RESP ORGs, 800

Service Providers, or Customers for the

16

contrary, the pertinent Industry Guideline explicitly

acknowledges the ultimate right of "800 Service End-User

Subscriber[s] . . . to control their 800 Service, and their

reserved, active, or assigned 800 Service Numbers." Industry

Guidelines for 800 Number Administration 2.2.1, 3 (Issue 3.0,

December 1, 1993).10 Instead, industry guidelines prohibit only

RESP ORGs and "800" Service Providers from trading "800" numbers

for valuable consideration. Id. 2.2.1, 1. Subscribers, on the

other hand, are prohibited only from obtaining "800" numbers for

the primary purpose of trading in them. Id. 2.2.1, 2.

Thus, industry guidelines did not impede, let alone

foreclose, a jury finding that the right to control the Number

had inherent value in the marketplace. Consequently, WorldCom

failed to establish that any right to use the Number was

valueless as a matter of law, let alone that any "error seriously

affected the fairness, integrity or public reputation of judicial

primary purpose of selling, brokering,
bartering, or releasing for a fee (or other
consideration) that 800 Number is prohibited.

However, the 800 Service End-User Sub-
scriber has the ultimate right to control
their 800 Service, and their reserved,
active, or assigned 800 Service Numbers.

Industry Guidelines for 800 Number Administration 2.2.1 (Issue
3.0, December 1, 1993).

10Similarly, the WorldCom tariff provided that subscribers
have "no ownership interest or proprietary right in any
particular 800 number," but explicitly stated also that "upon
placing a number actually and substantially in use . . .
[WorldCom] 800 Service Customers do have a controlling interest
in this [sic] 800 number(s)." Tariff F.C.C. No. 2, C.3.3.3
(February 7, 1994).

17

proceedings." Lash, 943 F.2d at 152 (internal quotation marks

omitted).

2. Judgment as a Matter of Law11
2. Judgment as a Matter of Law

WorldCom also challenges the district court ruling

denying its motion for judgment as a matter of law. See Fed. R.

Civ. P. 50. It assigns two errors: (i) Play Time failed to

establish recoverable damages, and (ii) sustained no damages from

any WorldCom negligence. As WorldCom maintains that Play Time

failed to prove to a reasonable certainty that it sustained any

damages as a result of its failure to assign the Number to Play

Time, we must inquire whether Play Time presented enough evidence

to enable a reasonable jury to determine, to the requisite degree

of certainty, the value of the Number.12

Our inquiry is guided by Massachusetts law:

The fundamental principle of law upon which
damages for breach of contract are assessed

11Appellate challenges under Rule 50 face a formidable
hurdle:

Review of [a] denial of a motion for judgment
as a matter of law is plenary. . . . [W]e
review the record in the light most favorable
to the non-moving party. We will reverse the
denial of such a motion only if reasonable
persons could not have reached the conclusion
that the jury embraced.

Ansin v. River Oaks Furniture, Inc., 105 F.3d 745, 753 (1st Cir.

1997) (internal quotation marks omitted), petition for cert.

filed, 65 U.S.L.W. 3839 (U.S. June 10, 1997) (No. 96-1969).

12WorldCom resurfaces its jury instruction challenge that
the Number had no inherent value, see supra p. 9; hence, Play

Time established no recoverable damages. As the Number was not
valueless as a matter of law, see supra pp. 16-17, its claim must

be rejected in the present context as well.

18

is that the injured party shall be placed in
the same position he would have been in, if
the contract had been performed, so far as
loss can be ascertained to have followed as a
natural consequence and to have been within
the contemplation of the parties as
reasonable men as a probable result of the
breach, and so far as compensation therefor
in money can be computed by rational methods
upon a firm basis of facts . . . .

John Hetherington & Sons, Ltd. v. William Firth, Co., 95 N.E.

961, 964 (Mass. 1911). See also Hendricks & Assocs., Inc. v.

Daewoo Corp., 923 F.2d 209, 213 (1st Cir. 1991) (applying

Hetherington). Thus, it was incumbent upon Play Time to

establish a firm evidentiary foundation for the damages claimed,

leaving no essential element to "'conjecture, surmise or

hypothesis." Snelling & Snelling of Mass. Inc. v. Wall, 189

N.E.2d 231, 232 (Mass. 1963) (quoting Hetherington, 95 N.E. at

964). See also Air Safety, Inc. v. Roman Catholic Archbishop of

Boston, 94 F.3d 1, 4 (1st Cir. 1996); Hendricks, 923 F.2d at 217.

Ample record evidence supported the $50,000 valuation.

Eisemann testified, based on his considerable experience in the

real estate leasing field, that the Number, like other vanity

numbers, had inherent value for which would-be users were willing

to pay. In addition, Eisemann and Levosky testified to their

efforts to close the deal whereby Levosky was to acquire from

Eisemann the right to use the Number at the agreed $50,000 price.

Although their deal could not be consummated, it was not due to

their inability to agree on value: Levosky offered $50,000 for

the Number; Eisemann was amenable to accepting $50,000, but

wanted a larger downpayment, which Play Time was unable to

19

manage.

WorldCom focuses on an admission by Eisemann that he

was motivated, in part, to release his rights to the Number in

order to get Levosky, who had named him as a party defendant in

the lawsuit, "out of his hair." WorldCom relies also on a letter

from Play Time's counsel to Eisemann, which provided in relevant

part:

My client, Play-Time, offers to enter into an
option agreement whereby Play-Time pays you
(or the entity that controls the Number, if
different from you), $5000.00 for the option
to purchase the right to use the Number for a
total of $50,000.00 (i.e., $45,000.00 plus
the $5000.00 down payment). In addition,

Play-Time would waive its claims against you

for specific performance, in exchange for

your full cooperation in providing credible

testimony as to the fair market value of the

Number, the details of which can be worked

out later.

(Emphasis added.) WorldCom argues that this letter makes it

clear that at least a portion of the $50,000 agreed upon by

Eisemann and Levosky represented the value of Play Time's

agreement to drop its lawsuit against Eisemann.

Although WorldCom proposes an entirely reasonable

interpretation, another is that the letter memorializes two

distinct offers: the first to pay a total of $50,000 for

Eisemann's rights in the Number; the second to drop the claims

against Eisemann in exchange for Eisemann's trial testimony as to

the value of the Number. Thus, the WorldCom contention that the

$50,000 figure had not been based entirely on the value of the

Number did not preclude a reasonable jury finding to the

20

contrary. Accordingly, we conclude that the evidence on damages

was adequate to withstand the WorldCom motion for summary

judgment, and that the district court committed no error in

submitting the case to the jury.13

3. Mass. Gen. Laws ch. 93A, 11
3. Mass. Gen. Laws ch. 93A, 11

Finally, WorldCom contends that the district court

erred in awarding Play Time treble damages under Mass. Gen. Laws

ch. 93A, 11. Chapter 93A generally proscribes "[u]nfair

methods of competition and unfair or deceptive acts or practices

in the conduct of any trade or commerce." Mass. Gen. Laws ch.

93A, 2 (1984). An unfair or deceptive practice between

businesspeople is not actionable under section 11 unless "the

actions and transactions constituting the alleged unfair method

of competition or the unfair act or practice occurred primarily

and substantially within the commonwealth." Mass. Gen. Laws ch.

93A, 11 (West Supp. 1996). WorldCom contends that any unfair

action in this case did not occur "primarily and substantially"

within Massachusetts.

The trial court findings on the "nature, extent, and

place of performance" of WorldCom's actions are reviewed for

clear error only. Clinton Hosp. Ass'n. v. Corson Group, Inc.,

907 F.2d 1260, 1264 (1st Cir. 1990). On the other hand, the

13Alternatively, WorldCom homes in on the Play Time
negligence claim, arguing that there can be no recovery for
negligence unless Play Time sustained injury to its "person" or
property. We need not discuss this argument, however, as the
$50,000 damages award is sustainable simply on the breach of
contract claim. See, e.g., Hubbard v. Faros Fisheries, Inc., 626

F.2d 196, 201 n.3 (1st Cir. 1980); see also supra pp. 8-9.

21

district court's ruling that WorldCom failed to carry its burden

of proving that its conduct "primarily and substantially"

occurred outside Massachusetts, see Mass. Gen. Laws ch. 93A, 11,

raises a question of law for de novo review. Roche v. Royal Bank

of Canada, 109 F.3d 820, 829 (1st Cir. 1997); see also Clinton

Hosp., 907 F.2d at 1264.

In determining that WorldCom's actions were unfair and

deceptive, the district court focused especially on the conduct

of Joseph Shannon, which it considered entirely appropriate but

for WorldCom's extant agreement with Levosky. The court also

relied on the testimony of Charles Hurd, Shannon's supervisor,

who expressed the view that WorldCom management had mistreated

Play Time. Finally, the court identified the off-color remark by

Brady Buckley, see supra p. 6, as "perhaps the most dramatic

demonstration of [WorldCom]'s thumb-their-nose attitude." As the

district court determined, all these actions took place entirely

within Massachusetts. The district court further found that the

investigation conducted by Deborah Surrette and Kelle Reeves

amounted to mere "window dressing," thereby enhancing the

deceptiveness and unfairness to Play Time.

WorldCom mounts no serious challenge to these district

court findings. Instead, it argues that most of the allegedly

unfair and deceptive conduct took place outside Massachusetts.

In particular, it accurately points out that the Number was

assigned to Eisemann by a salesperson in Indiana and that the

ultimate decision to allow Eisemann to retain the Number was made

22

in New Jersey.

The Supreme Judicial Court has outlined a "pragmatic,

functional approach," Roche, 109 F.3d at 829; see also Makino,

U.S.A., Inc. v. Metlife Capital Credit Corp., 518 N.E.2d 519,

523-24 (Mass.App.Ct. 1987), further app. rev. denied, 521 N.E. 2d

398 (Mass. 1988), for determining whether alleged misconduct

occurred "primarily and substantially" in Massachusetts. See

Bushkin Assocs., Inc. v. Raytheon Co., 473 N.E.2d 662, 672 (Mass.

1985).14 Its approach has been distilled into three principal

inquiries: "(1) where the defendant committed the deception; (2)

where plaintiff was deceived and acted on the deception; and (3)

the situs of plaintiff's losses due to the deception." Roche,

109 F.3d at 829; see also Clinton Hosp., 907 F.2d at 1265-66;

Bushkin, 473 N.E.2d at 672. As we noted in Clinton Hospital,

however, in approaching the second Bushkin inquiry the location

of the person to whom the deceptive statements are made is of

special significance, as distinguished from the location of the

person who uttered the deceptive statements, since "[t]he

victim's ingestion of a deceptive statement and the subsequent

effects from reliance on it are what give the deceptive statement

its venomous sting." Clinton Hosp., 907 F.2d at 1265-66.

The district court analyzed only the first Bushkin

14Although Bushkin construed the operative language

"primarily and substantially" in the context of Mass. Gen.
Laws ch. 93A, 3(1)(b)(i), as appearing in St.1967, c. 813, see

Clinton Hosp., 907 F.2d at 1264, ch. 93A, 11 uses the identical

language. See id. Accordingly, we have applied the Bushkin

factors to 11 as well. See id.; see also Roche, 109 F.3d at

829-31 (referring to "Clinton Hospital factors").

23

factor, finding that the conduct on which it focused in

particular, the actions of Joseph Shannon and Brady Buckley, see

supra pp. 4-6 all took place in Massachusetts. We have

explained, however, that the first Bushkin factor is the least

weighty. Roche, 109 F.3d at 829; see also Compagnie Reassurance

d'Ile de France v. New England Reinsurance Corp., 57 F.3d 56, 90

(1st Cir.), cert. denied, 116 S. Ct. 564 (1995); Clinton Hosp.,

907 F.2d at 1265-66. Although we agree with the district court,

other weightier factors cut against WorldCom as well. All the

unfair or deceptive statements made by WorldCom's agents were

visited upon Play Time in Massachusetts. It was there that

Levosky dealt with Joseph Shannon; learned that WorldCom's Revere

office would not try to retain the Number for Play Time because

Buckley believed any potential revenues were inconsequential;

learned the results of Surrette's superficial investigation; and

was provided with the numerous pretexts by WorldCom for not

obtaining the Number for Play Time.

WorldCom, on the other hand, misplaces primary reliance

on the location of the WorldCom agents who made the ultimate

adverse decision (Surrette and Reeves in New Jersey), and the

WorldCom sales office (Indiana) which obtained the Number for

Eisemann. But the district court did not find the actions of the

Indiana sales agent part and parcel of WorldCom's unfair or

deceptive conduct.15 Moreover, as we have noted, the first

15Similarly, WorldCom's Indiana agent would not have been
able to assign the Number to Eisemann had WorldCom's
Massachusetts employees followed through on the commitment to

24

Bushkin factor is the least weighty. Finally, the location of

Surrette and Reeves is insufficient to overcome the competing

evidence which must be weighed under the other Bushkin factors

including Levosky's receipt of the results of the Surrette and

Reeves "investigation" in Massachusetts all of which indicates

that the unfair and deceptive behavior took place primarily and

substantially within Massachusetts. Thus, WorldCom failed to

carry its burden of proving that the Chapter 93A claim was not

actionable.

III
III

CONCLUSION
CONCLUSION

As we conclude that all contentions raised by WorldCom

on appeal were waived or meritless, the district court judgment

is affirmed. Costs are awarded to Play Time.

SO ORDERED.
SO ORDERED.

Play Time. See supra p. 5 (Indiana agent able to obtain the

Number only because Revere agents failed to enter Play Time's
order in computer).

25