Lechoslaw v. Bank of America, N.A.

United States Court of Appeals
For the First Circuit

No. 09-1425

SZYMAS LECHOSLAW,

Plaintiff, Appellant,

v.

BANK OF AMERICA, N.A.,
BANK HANDLOWY W WARSZAWIE, SA,

Defendants, Appellees.

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

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Howard, Circuit Judges.

Timothy J. Burke, with whom Burke & Associates, was on brief
for appellant.
Donn A. Randall, with whom Mary Ellen Manganelli and Bulkley,
Richardson and Gelinas, LLP, were on brief for appellees.

August 30, 2010
 TORRUELLA, Circuit Judge. This is a case about a missing

bank check. Appellant Szymas Lechoslaw ("Lechoslaw") purchased a

Fleet Bank ("BoA")1 bank check in Worcester, Massachusetts and

attempted to cash it at a bank in Poland. The check was apparently

lost in transit between Poland and BoA's offices in New Jersey and

it took a few months before the money was finally in Lechoslaw's

account in Poland. Claiming that the four-and-a-half month delay

in receiving his $31,787.34 disrupted the construction of a motel

and restaurant in Poland and caused him severe emotional distress,

Lechoslaw sued to recover consequential damages for his loss.

Following some procedural maneuvering, the case comes to us on

appeal from a jury verdict as to some counts and a directed verdict

as to others, all in favor of defendants. After due consideration,

we affirm.

I. Facts2 and Procedural History

On July 28, 2000, Lechoslaw visited a BoA bank branch in

Worcester, Massachusetts. Lechoslaw testified that he wanted to

transfer $31,787.34 to Poland. Adam Glass ("Glass"), the BoA

customer representative who helped Lechoslaw with the transaction,

testified that because Lechoslaw did not have all of the

1
Fleet Bank was subsequently acquired by Bank of America ("BoA"),
one of the defendants in this case. For clarity, we will refer to
Fleet as BoA.
2
"We recite the facts in the light most favorable to the jury
verdict." Anaya-Burgos v. Lasalvia-Prisco, 607 F.3d 269, 270 n.1
(1st Cir. 2010).

-2-
information necessary to send a wire transfer to Poland, an

official bank check was his only option. Lechoslaw left the bank

with an official check in the amount of $31,787.34. There was

conflicting testimony at trial as to what transpired in the

transaction. Lechoslaw testified that he asked Glass how long it

would take to receive the funds from the check and stated that

Glass said it would take seven to eight days to receive payment.

Glass testified that he was never asked this question by Lechoslaw

and that if he had, he would not have been able to answer it.

According to Glass' testimony, had he been asked this question he

would have directed Lechoslaw to inquire with the bank at which he

intended to deposit the check.

On October 3, 2000, Lechoslaw presented the bank check

for collection at Bank Handlowy w Warszawie ("Bank Handlowy") in

Poznan, Poland. At trial, Lechoslaw testified that he intended to

use the proceeds of the check for a motel/restaurant project in

Poznan, something that was not told to BoA or any of its agents

prior to the sale of the check. While there was no testimony about

this at trial, Lechoslaw wanted to introduce evidence that Bank

Handlowy had sent the check to a BoA office in New Jersey for

collection via the Polish mail system. No evidence was ever

adduced that BoA actually received the check.

At some point in early December 2000, Bank Handlowy

contacted BoA requesting information as to why the check had not

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been paid. On December 4, 2000, a BoA representative notified Bank

Handlowy that they had no record of ever receiving the check, which

was the reason it had not been paid. After some further

communication between the banks, on December 21, 2000, Bank

Handlowy sent BoA a faxed copy of the front and back of the check

as well as an indemnity letter3 as requested by BoA. On

January 30, 2001, BoA forwarded the value of the check to Citibank

New York in favor of Bank Handlowy. The funds were eventually

deposited in Lechoslaw's account at Bank Handlowy on February 2,

2001.

A. Procedural History

Lechoslaw filed an action in Worcester Superior Court

against BoA, Citibank, and Bank Handlowy on October 3, 2003.4 The

Superior Court issued a tracking order on October 8, 2003, in which

it established March 1, 2004 as the final date for parties to

respond to Lechoslaw's complaint and to file motions under

Massachusetts Rules of Civil Procedure 12, 15, 19, and 20. On

November 23, 2003, Bank Handlowy answered Lechoslaw's complaint,

asserting, among others, a defense of lack of personal

jurisdiction. Nevertheless, Bank Handlowy became involved in

3
The indemnity letter assured that BoA was covered by Bank
Handlowy in case it had to pay twice on the check.
4
At the time of events, Bank Handlowy was doing business as
Citibank Poland. Citibank, N.A. was dismissed from the case and
that ruling is not at issue here.

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discovery, specifically by: (1) filing its first set of

interrogatories and First Request for the Production of Documents

to Lechoslaw, (2) negotiating an extension of time to respond to

Lechoslaw's discovery requests, and (3) requesting a

confidentiality agreement from Lechoslaw. On May 28, 2004,

Lechoslaw filed an unopposed motion to amend his complaint. In his

amended complaint, Lechoslaw added a chapter 93A count against Bank

Handlowy. See Mass. Gen. Laws ch. 93A. On July 20, 2004, Bank

Handlowy sought leave from the Superior Court to file a motion to

dismiss for lack of personal jurisdiction, citing Lechoslaw's

amended complaint. The Superior Court denied Bank Handlowy's

motion on August 23, 2004, but after reconsideration, allowed it.

Bank Handlowy was dismissed from the case for lack of personal

jurisdiction on December 2, 2004.

After continued discovery, on January 18, 2007, BoA

removed the case to the United States District Court for the

District of Massachusetts, pursuant to 28 U.S.C. §§ 1441 and 1446

and 12 U.S.C. § 632. On January 31, 2007, Lechoslaw filed a motion

for entry of separate judgment under Federal Rule of Civil

Procedure 54(b) against Bank Handlowy and in the alternative,

requesting that the District Court reverse the dismissal of Bank

Handlowy from the case for lack of personal jurisdiction. The

District Court denied the motion on July 23, 2007.

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 Lechoslaw and BoA filed cross motions for summary

judgment in the District Court, which treated BOA's motion as a

motion for reconsideration on the issues previously decided by the

Superior Court, and as a motion for summary judgment otherwise.

After consideration of both motions, the District Court denied

Lechoslaw's motion and allowed BoA's motion as to some of the

claims, eventually letting proceed against BoA Lechoslaw's claim

for negligence grounded on § 4-202 of the Uniform Commercial Code,

a claim for negligent misrepresentation, and the chapter 93A claim.

In November 2008, Lechoslaw filed a motion for issuance

of a trial subpoena to Bank Handlowy seeking to invoke the

provisions of the Hague Convention on Taking of Evidence Abroad in

Civil or Commercial Matters ("Hague Convention"). 23 U.S.T. 2555,

1972 WL 122493 (1968). The District Court denied the motion on

December 18, 2008.

On January 12, 2009, after a request by Lechoslaw, the

District Court granted leave for Lechoslaw to file an amended

complaint. On February 21, 2009, Lechoslaw filed his amended

complaint alleging seven counts against BoA: (1) negligence in the

handling of the check; (2) breach of contract in the sale of the

check; (3) breach of contract generally; (4) breach of the implied

covenant of good faith and fair dealing; (5) deceit/intentional

misrepresentation; (6) negligent misrepresentation, and (7)

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violation of chapter 93A.5,6 In his amended complaint, Lechoslaw

essentially added an intentional misrepresentation claim against

BoA.

On February 5, 2009, Lechoslaw served and filed his final

witness list, identifying BoA's counsel, Donn Randall and Mary

Ellen Manganelli, as witnesses.7 BoA filed a motion in limine to

strike BoA's counsel from the witness list. After oral argument,

the District Court granted BoA's motion in limine on February 13,

2009.

Trial began on February 23, 2009 and continued through

February 27. During the trial, the District Court entered directed

verdicts for BoA on amended counts 1, 2, 3, and 4, to the extent

that summary judgment was not already granted. The District Court

let the claims on negligent and intentional misrepresentation

(claims 5 and 6) go to the jury, which returned a verdict for BoA

on both claims. The District Court then directed a verdict in

favor of BoA on the 93A claim (claim 7). Lechoslaw now appeals the

5
The Amended Complaint incorrectly assigned the number 8 to the
claim alleging a violation of Mass. Gen. Laws ch. 93A. As there
was no seventh claim stated, we have assumed that the 93A claim was
the seventh.
6
Although the District Court had denied Lechoslaw's attempts to
bring Bank Handlowy back into the case, the amended complaint also
alleged four claims against Bank Handlowy: (1) negligence; (2)
breach of contract; (3) infliction of emotional distress; and (4)
a 93A claim.
7
BoA's counsel had also represented Bank Handlowy when it was
part of the case.

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dismissal of Bank Handlowy as a party to the litigation as well as

various evidentiary and procedural rulings by the District Court

which Lechoslaw claims precluded him from making his case.

II. Discussion

A. Lechoslaw's Claims Against Bank Handlowy

Lechoslaw appeals the dismissal of Bank Handlowy from the

case for lack of personal jurisdiction claiming that the trial

court had both general and specific jurisdiction over Bank

Handlowy, and in the alternative, that Bank Handlowy waived

objections to any lack of personal jurisdiction over it.

1. Personal Jurisdiction

We begin with Lechoslaw's argument that Bank Handlowy's

contacts with Massachusetts are sufficient for personal

jurisdiction under its long arm statute. Mass. Gen. Laws ch. 223A

§§ 3(a) and (d). "When a court's personal jurisdiction over a

defendant is contested, the plaintiff has the ultimate burden of

showing by a preponderance of the evidence that jurisdiction

exists." Adams v. Adams, 601 F.3d 1, 4 (1st Cir. 2010); Conn.

Nat'l Bank v. Hoover Treated Wood Prods., Inc., 638 N.E.2d 942, 944

(Mass. App. Ct. 1994). As there was no hearing on the

jurisdictional question, we normally assume that the court used the

prima facie method in deciding the jurisdictional question. Adams,

601 F.3d at 4. This inquiry asks "whether the plaintiff has

proffered evidence which, if credited, is sufficient to support

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findings of all facts essential to personal jurisdiction."

Phillips v. Prairie Eye Ctr., 530 F.3d 22, 26 (1st Cir. 2008). "We

proceed directly to the constitutional analysis, because the

Supreme Judicial Court of Massachusetts has interpreted the state's

long-arm statute as an assertion of jurisdiction over the person to

the limits allowed by the Constitution of the United States." Id.

(internal quotation marks and citations omitted). "We review the

court's factual findings for clear error, but our review of the

court's legal conclusions as to whether its findings support the

existence of personal jurisdiction is always non-deferential and

plenary." Adams, 601 F.3d at 4-5.

The due process clause imposes several
requirements on the exercise of personal
jurisdiction over out-of-state defendants.
First, the defendant must have sufficient
"minimum contacts" with the state. For
specific jurisdiction, the plaintiff's claim
must be related to the defendant's contacts.
For general jurisdiction, in which the cause
of action may be unrelated to the defendant's
contacts, the defendant must have continuous
and systematic contacts with the state.
Second, for either type of jurisdiction, the
defendant's contacts with the state must be
purposeful. And third, the exercise of
jurisdiction must be reasonable under the
circumstances.

Harlow v. Children's Hosp., 432 F.3d 50, 57 (1st Cir. 2005).

Bank Handlowy is a Polish bank with all of its branches

in Poland. All customers of Bank Handlowy are required to open

their accounts at a bank branch in Poland. Bank Handlowy does not

allow bank accounts to be opened by mail or online. It is

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undisputed that Bank Handlowy does not advertise its financial

services in Massachusetts nor own any real property or pay taxes in

Massachusetts. The only fact that Lechoslaw asserts to support

general jurisdiction is that fourteen individual customers and

twenty-five corporate customers have provided Bank Handlowy with

their Massachusetts addresses. But Lechoslaw has failed to adduce

evidence that Bank Handlowy purposely sought out these customers,

such that the bank could reasonably foresee the need to invoke the

protections and benefits of the forum, or that these constitute

continuous or systematic contacts. Haddad v. Taylor, 588 N.E.2d

1375, 1377 (Mass. App. Ct. 1992).8 More specifically, the

transaction at issue took place in Poland and the check, assuming

it was mailed, was mailed to a New Jersey address and not one in

Massachusetts.

Even if we assume that these contacts "were minimally

sufficient for either specific or general jurisdiction," Harlow,

8
Lechoslaw also argues that because at the time the transaction
took place Bank Handlowy was doing business as Citibank Poland, the
court should have taken judicial notice that "Citibank is a large,
multinational financial institution which solicits business
throughout the world." App. Br. at 23-24. Although not explained
by Lechoslaw, we assume that Citibank Poland is a subsidiary of, or
otherwise connected to, Citibank, N.A. Just like when it made this
argument before the Superior Court and the District Court,
Lechoslaw has failed to explain why this court should attribute the
actions of Citibank, N.A. to Citibank Poland. See Nisselson v.
Lernout, 469 F.3d 143, 154 (1st Cir. 2006)(finding that under
Massachusetts law, a parent corporation and its wholly-owned
subsidiary are generally regarded as separate and distinct
entities); My Bread Baking Co. v. Cumberland Farms, Inc., 233
N.E.2d 748, 751 (Mass. 1968) (same).

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432 F.3d at 66, there is no evidence that these contacts were

purposeful. Finally, it would be unreasonable in this case to

subject Bank Handlowy to the jurisdiction of the Massachusetts

courts as it is a foreign bank with no agents in Massachusetts and

which does not conduct any business in Massachusetts.

Lechoslaw has failed to meet his burden of proving that

Bank Handlowy met the requirements for the exercise of personal

jurisdiction.

2. Waiver

"Because the requirement of personal jurisdiction

represents first of all an individual right, it can, like other

such rights, be waived." Insurance Corp. of Ireland Ltd. v.

Compagnie des Bauxites de Guinee, 456 U.S. 694, 703 (1982). It is

clear that "a defense of lack of jurisdiction over the person is

waived if not timely raised in the answer or a responsive

pleading." Id. (quoting Fed. R. Civ. P. 12(h)) (internal

quotations and marks omitted); see also Mass. R. Civ. P. 12(h)

(same). However, even if the issue of personal jurisdiction is

raised in its answer or other responsive pleading, a party may

nevertheless waive jurisdiction if it makes voluntary appearances

and contests the case at all stages until judgment is rendered.

Ingersoll v. Ingersoll, 202 N.E.2d 820, 821 (Mass. 1964). Those

are the two extremes; in between lies a wide gray gulf. Lechoslaw

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argues that in this case we should find that Bank Handlowy's

conduct lies on the side of waiver.

Lechoslaw contends that even though Bank Handlowy

included lack of personal jurisdiction as a defense in its answer,

it nevertheless consented to jurisdiction and admitted to doing so

when it filed its motion for leave to file a Rule 12 motion late in

the Superior Court. In that motion, Bank Handlowy stated:

Based on the small dollar value of this case
and the expense involved in researching,
preparing, filing and arguing complex Motions
such as a Motion to Dismiss for Lack of
Personal Jurisdiction, Bank Handlowy decided
to have an Answer filed on its behalf instead
of challenging this court's ability to
exercise jurisdiction over it.

Lechoslaw also argues that Bank Handlowy is anyway precluded by its

actions and by laches from raising the issue of personal

jurisdiction because it propounded discovery requests, negotiated

extensions to the time required to respond to the discovery

requests, solicited a confidentiality agreement, and because it

filed an assented-to motion to expand the tracking order before

filing its Rule 12 motion. Like both trial courts that had

occasion to rule on this issue, we find these arguments to be

without merit.

We begin with the issue of the standard of review. A

determination as to "waiver [of personal jurisdiction is] within

the discretion of the trial court, consistent with its broad duties

in managing the conduct of cases pending before it." United States

-12-
v. Ziegler Bolt & Parts Co., 111 F.3d 878, 882 (Fed. Cir. 1997).

Thus, "[o]n appeal, this court defers to the judgment of the trial

court on such matters closely associated with the standard

functions of the adjudicative process, so long as that judgment is

not an abuse of the trial court's discretion. Accordingly, [we

review] the trial court's decision on the waiver issue for an abuse

of discretion." Id. (internal citations omitted); see also Hamilton

v. Atlas Turner, Inc., 197 F.3d 58, 60 (2d Cir. 1999). Both trial

courts held that these actions did not constitute waiver and we do

not find that they abused their discretion in doing so.

Bank Handlowy's answer to Lechoslaw's complaint included

the affirmative defense of lack of personal jurisdiction. The

language quoted above, from Bank Handlowy's motion, does not imply

that Bank Handlowy had assented to jurisdiction. The quote makes

clear that Bank Handlowy contested personal jurisdiction in its

answer. It only clarifies the reason why Bank Handlowy chose to

file an answer, its first responsive pleading in this case, before

it filed a Rule 12 motion. There is nothing the matter with Bank

Handlowy's chosen order of filings given that its answer included

the personal jurisdiction defense. In addition, the fact that Bank

Handlowy assented to a motion to extend the tracking order before

it filed its Rule 12 motion is also not reason to find waiver, and

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the cases Lechoslaw cites are not to the contrary.9 The trial

court did not abuse its discretion in finding Bank Handlowy did not

waive its defense of lack of personal jurisdiction.

B. Claims against BoA

Lechoslaw's brief-in-chief and reply brief ask us to

review three issues regarding its claims against BoA: whether the

District Court erred in (1) excluding admissions of Bank Handlowy's

counsel that the check was mailed, (2) denying Lechoslaw's motions

to be allowed to serve process and conduct discovery in accordance

with the Hague Convention, and (3) dismissing Lechoslaw's 93A

claims.10 We address each in turn.

9
See Farm Credit Bank of Baltimore v. Ferrera-Goitía, 316 F.3d
62, 68 (1st Cir. 2003) ("The Civil Rules incorporate the principle
of implied waiver. They provide that a defense based on personal
jurisdiction will be deemed waived if not made by a party's first-
filed motion or included in her initial responsive pleading.");
Manchester Knitted Fashions, Inc. v. Amalgamated Cotton Garment &
Allied Indus. Fund, 967 F.2d 688, 691-92 (1st Cir. 1992) (same,
referring to venue). Lechoslaw's brief and the cases he cites seem
to ignore the fact that Bank Handlowy did raise the personal
jurisdiction defense in its "initial responsive pleading," to wit,
its answer to the complaint.
10
Lechoslaw alleges that he is challenging the District Court's
dismissal of his "claims against BoA which arose from its loss of
the check," App. Br. at i. However, Lechoslaw fails to specify
which claims he is challenging, and instead makes arguments about
what he terms the "embedded evidentiary issues underlying the
erroneous judgment." Given our resolution of these "embedded"
issues, we find that the District Court did not err in dismissing
any claims against BoA.

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 1. Exclusion of Admissions by Bank Handlowy's Counsel

During the course of one its filings when it was a party

to this litigation, Bank Handlowy, through its counsel, made

certain admissions regarding the mailing of the check to BoA.

After Bank Handlowy was dismissed from the case, Lechoslaw

attempted to bring these statements in as nonhearsay because,

Lechoslaw claims, they were admissions by a party opponent since

Bank Handlowy had the same counsel as BoA. See Fed. R. Evid.

801(d)(2). BoA filed a motion in limine to exclude the statements

and the District Court granted it. Lechoslaw objects. BoA

counters that these statements are not admissible against it

regardless of its common counsel with Bank Handlowy. We agree.

The Federal Rules of Evidence make clear that a statement

is not hearsay if "the statement is offered against a party and is

. . . a statement by the party's agent or servant concerning a

matter within the scope of the agency or employment, made during

the existence of the relationship." Fed. R. Evid. 801(d)(2)(D);

Gómez v. Rivera Rodríguez, 344 F.3d 103, 116 (1st Cir. 2003).

Lechoslaw attempts to confuse the issue by citing cases holding

that attorneys serve as agents of their clients. See, e.g., Blake

v. Henrickson, 666 N.E.2d 164, 166 (Mass. App. Ct. 1996). There is

no question that Bank Handlowy's counsel was its agent, and that

BoA's counsel was also its agent. But the fact that both banks

shared counsel does not change the application of the rules of

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evidence. Here, Bank Handlowy's attorney made certain statements

during its representation of Bank Handlowy. Those statements may

have been admissible against Bank Handlowy if it were a party to

this litigation, but it was dismissed. There was no abuse of

discretion on the facts here in the court's exclusion of the

statement as offered against BoA.

2. Denial of Discovery According to the Hague Convention

Next, Lechoslaw argues that the Superior Court and the

District Court both erred in preventing him from taking depositions

of Bank Handlowy's agents in accordance with the Hague Convention.

The Federal Rules of Civil Procedure provide that depositions may

be taken in a foreign country pursuant to any applicable treaty or

convention. Fed. R. Civ. P. 28(b). Both trial courts denied

Lechoslaw's various motions seeking to extend the discovery

deadline and to take depositions abroad. Given the lateness of the

request to take depositions and the potential for delay, this call

was well within the court's discretion as to trial management.

Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 91 (1st Cir.

1996).

Bank Handlowy was dismissed from the case for lack of

personal jurisdiction on December 2, 2004. After three extensions

to the tracking order, the discovery deadline for this case was

extended to February 28, 2005. On March 6, 2006, over one year

after the deadline for the end of discovery had passed, after cross

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motions for summary judgment had been filed by both remaining

parties, and after the Superior Court had ruled on some of those

motions, Lechoslaw filed his first motion to reopen discovery,

extend the discovery deadline, amend the tracking order, and to

depose Bank Handlowy under the Hague Convention. Lechoslaw filed

essentially this same motion multiple times with the Superior Court

and once with the District Court. While the information that

Lechoslaw sought in these motions might have been crucial to his

case,11 the Superior Court and later the District Court did not

abuse their discretion in failing to reopen discovery over one year

after it had closed and after summary judgment motions had been

filed in the case. The procedures of the Hague Convention do not

come without a significant time cost. "In many situations the

Letter of Request procedure authorized by the Convention would be

unduly time consuming and expensive, as well as less certain to

produce needed evidence than direct use of the Federal Rules."

Societé Nationale Industrielle Aérospatiale v. U.S. Dist. Court for

the S. Dist. of Iowa, 482 U.S. 522, 542 (1987); see also Int'l

Soc'y for Krishna Consciousness, Inc. v. Lee, 105 F.R.D. 435, 450

(S.D.N.Y. 1984) ("[A] number of courts have observed that the Hague

Convention is quite slow and costly even when the foreign

11
Lechoslaw sought to obtain an admission from Bank Handlowy or
its agents that the check had been mailed through the Polish mail
system to BoA. In doing so, he sought to rely upon the presumption
of delivery that arises upon the mailing of a letter. See
Prudential Trust Co. v. Hayes, 142 N.E. 73, 73 (Mass. 1924).

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government agrees to cooperate"); In Re Bedford Computer Corp., 114

B.R. 2, 6 (Bankr. D.N.H. 1990) (opining that "the only effect of

using the Hague Convention rules would be to further delay [this]

adversary proceeding").

Lechoslaw waited until almost two years after Bank

Handlowy was dismissed from the case to request information from

it. Not only that, but at the time Lechoslaw made his first

request, discovery had been completed for over a year and cross

summary judgment motions had been filed and adjudicated. Lechoslaw

should have known that he needed this information from Bank

Handlowy much earlier than 2006. Under these circumstances, it was

not an abuse of discretion for the courts not to reopen discovery.

3. Dismissal of 93A Claims

Lechoslaw's last claim of error is that the District

Court should not have directed a verdict against him on his 93A

claim because BoA failed to disclose facts which would have led

Lechoslaw not to purchase the official check.12 Chapter 93A

12
We note that on this issue, Lechoslaw's brief-in-chief comes
dangerously close to violating our procedural rules by failing to
note the appropriate standard of review, Fed. R. App. P.
28(a)(9)(B), and by providing such minimal arguments that we might
almost consider them to be waiver of the issue. See United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)("[I]ssues adverted to in
a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived."). In his reply brief, Lechoslaw
cures some of these defects, although his attempts are less than
successful because he simply quotes the allegations in his own
complaint rather than pointing to evidence in the record to support
those allegations. See also Ríos-Jiménez v. Principi, 520 F.3d 31,
39 n.5 (1st Cir. 2008)(stating that an appellant's argument must

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punishes "unfair methods of competition and unfair or deceptive

acts or practices in the conduct of any trade or commerce." Mass.

Gen. Laws ch. 93A § 2(a). As relevant to Lechoslaw's appeal, a

business violates 93A if it "fails to disclose to a buyer or

prospective buyer any fact, the disclosure of which may have

influenced the buyer or prospective buyer not to enter into the

transaction." 940 C.M.R. § 3.16; V.S.H. Realty, Inc. v. Texaco,

Inc., 757 F.2d 411, 416 (1st Cir. 1985) (applying regulation to

businesses). "Our review of the directed verdict is de novo."

Chamberlin v. Town of Stoughton, 601 F.3d 25, 30 (1st Cir. 2010).

"A ruling that conduct violates Chapter 93A is a legal, not a

factual determination." Incase Inc. v. Timex Corp., 488 F.3d 46,

56 (1st Cir. 2007)(internal quotation marks omitted).

Lechoslaw's contentions center around his argument that

BoA's agents should have apprised him of before selling him the

official check. According to Lechoslaw, BoA should have not

induced him to purchase an official check, and he would not have

been so induced had BoA explained the risks associated with its

purchase. The risk that Lechoslaw wanted to be apprised of -- and

which he contends supports a violation of 93A for BoA's failure to

disclose -- was that the official check could be lost in transit

contain "[the] appellant's contentions and the reasons for them,
with citations to the authorities and parts of the record on which
the appellant relies") (internal quotation marks omitted).
Nevertheless, Lechoslaw has attempted to make some arguments and we
address them in our discretion.

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from one bank to another, and that its payment would therefore be

delayed. The evidence at trial was that Lechoslaw came to a BoA

branch wanting to send money to Poland but he lacked the necessary

information to do so via a wire transfer. Lechoslaw claims that

this method was superior to the official check and that therefore

BoA should have allowed him to use a wire transfer. BoA's witness

explained that BoA could not initiate a wire transfer if the client

did not bring with him a bank account number at the receiving bank

-- in this case, a Polish bank -- and a routing identification

number for that bank. Since Lechoslaw did not have a bank account

in a Polish bank that could accept wire transfers from the United

States, the BoA agent told Lechoslaw that his best option was an

official check, which Lechoslaw obtained. Lechoslaw's arguments

that BoA had an obligation to advise him of the possibility that

the check could get lost in the mail and that this would delay the

payment is simply unavailing. The risk that letters may be lost in

the mail is commonly known; BoA did not need to state the obvious.

There was no evidence that BoA violated chapter 93A in any of its

dealings with Lechoslaw, and the District Court properly entered

judgment in its favor.

III. Conclusion

For the foregoing reasons, we affirm in all respects.

Affirmed.

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