Ruiz v. Bally Total Fitness Holding Corp.

United States Court of Appeals
For the First Circuit

No. 06-2254

GISSELLE RUIZ,

Plaintiff, Appellant,

v.

BALLY TOTAL FITNESS HOLDING CORP. ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Lipez and Newman,** Circuit Judges,
and Selya, Senior Circuit Judge.

John Roddy, with whom Gary Klein, Elizabeth Ryan, Shennan
Kavanagh, and Roddy, Klein & Ryan were on brief, for appellant.
Norman T. Finkel, with whom William R. Klein, Schoenberg,
Finkel, Newman & Rosenberg, LLC, Howard M. Cooper, Juliet A.
Davison, Erica Tennyson, and Todd & Weld LLP were on brief, for
appellees.

July 30, 2007

*
Hon. Pauline Newman, of the Federal Circuit, sitting by
designation.
 SELYA, Senior Circuit Judge. This appeal requires us to

determine whether a health-club services contract conforms with

various Massachusetts consumer protection statutes. After studying

the pertinent contractual and statutory provisions, we find no

nonconformity. Accordingly, we affirm the district court's

dismissal of the action.

I. BACKGROUND

Because this appeal follows the granting of a motion to

dismiss, see Fed. R. Civ. P. 12(b)(6), we rehearse the facts as

elaborated in the operative pleading (here, the plaintiff's amended

complaint). See Palmer v. Champion Mortg., 465 F.3d 24, 25 (1st

Cir. 2006). We recognize, however, that our obligation to approach

the facts from this plaintiff-friendly vantage does not require us

to credit "bald assertions, unsupportable conclusions, and

'opprobrious epithets.'" Chongris v. Bd. of Appeals, 811 F.2d 36,

37 (1st Cir. 1987) (quoting Snowden v. Hughes, 321 U.S. 1, 10

(1944)).

In March of 2004, plaintiff-appellant Gisselle Ruiz

signed a contract for health-club services (the Contract) with

Holiday Universal, Inc., a wholly-owned subsidiary of Bally Total

Fitness Holding Corp.1 The Contract allowed the plaintiff access

to one of Bally's facilities for 36 months in exchange for payment

1
Both Bally and Holiday are named as defendants in this
litigation. Because the allegations against them are identical, we
henceforth refer to the two entities, collectively, as Bally.

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of a one-time membership fee of $1,565, followed by monthly dues of

$8. Rather than pay the membership fee up front, the plaintiff

chose to finance the sum (less a down payment of $150) over a 36-

month period at an annual percentage rate of 14.75%. Under that

arrangement, she was to pay Bally $48.88 per month (in addition to

her monthly dues).

Although the Contract contained a multiplicity of

provisions, we enumerate here only those that are directly relevant

to our analysis. Under the Contract, the plaintiff was free to

stop paying her monthly dues at any time by submitting written

notice to Bally, with the understanding that she would then forfeit

her right to use the health-club facilities. The plaintiff was not

free to discontinue the deferred payments on the membership fee;

refund of the membership fee could be triggered only by certain

identified events (e.g., long-term disability or relocation to an

area remote from any of Bally's locations). So long as the

Contract remained in full force and effect, the plaintiff had the

option, at the end of the initial 36-month period, to extend her

membership from month to month by paying increased dues of $12 or

$17 per month (depending upon the payment method that she elected).

Finally, the Contract contained a provision specifying that Bally

would not be liable for personal property that the plaintiff chose

to bring to the club.

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 Sometime later in 2004 — the exact date is obscure — the

plaintiff purported to cancel the Contract and requested that Bally

refund the balance of her membership fee. Bally refused her

request.

Undaunted, the plaintiff repaired to a Massachusetts

state court and filed a putative class action. Her complaint

contained a myriad of claims. Two of them comprise the focal point

of this appeal: (i) that the Contract violated a provision of the

Massachusetts Health Club Services Contracts Act (the HCSCA)

prohibiting the required financing of a health-club contract for

more than one month beyond the expiration of that contract, see

Mass. Gen. Laws ch. 93, § 80; and (ii) that the Contract

transgressed the HCSCA's prohibition on waiver of consumer claims,

see id. Relatedly, the plaintiff alleged that these infractions

also implicated the Commonwealth's general consumer protection

statute. See Mass. Gen. Laws ch. 93A (Chapter 93A). The plaintiff

sought damages for herself and for the putative class members,

multiplied under Chapter 93A, see id. § 9(3), and the penalty-free

opportunity for all class members to rescind their health-club

contracts.

Bally removed the case to the federal district court

under the diversity of citizenship statute. See 28 U.S.C. §

1332(a); see also id. §§ 1441(a), 1446. Shortly thereafter, it

moved to dismiss, asserting among other things that the plaintiff

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lacked standing to pursue the action and that, in all events, the

Contract did not offend the HCSCA. The district court agreed with

these arguments and dismissed the action. See Ruiz v. Bally Total

Fitness Holding Corp., 447 F. Supp. 2d 23, 31 (D. Mass. 2006).

This timely appeal ensued.

II. ANALYSIS

We review the district court's dismissal for failure to

state a claim de novo. See Arruda v. Sears, Roebuck & Co., 310

F.3d 13, 18 (1st Cir. 2002). In that process we, like the district

court, must assume the truth of all well-plead facts and give the

plaintiff the benefit of all reasonable inferences therefrom. See

Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999). We may consider

not only the factual allegations of the amended complaint but also

any matters fairly incorporated within that pleading. See In re

Colonial Mortg. Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003).

And, finally, because this is a diversity case, we must apply the

substantive law of the forum state (here, Massachusetts). See

Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 217 F.3d 8, 10 (1st

Cir. 2000).

With this framework in place, we turn to an evaluation of

the plaintiff's claims. In so doing, we bear in mind that we are

not bound by the district court's decisional calculus but, rather,

may affirm the decision below on any ground made manifest by the

record. See United States v. Cabrera-Polo, 376 F.3d 29, 31 (1st

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Cir. 2004); InterGen N.V. v. Grina, 344 F.3d 134, 141 (1st Cir.

2003).

A. Standing.

As an initial matter, we address the contention that the

plaintiff lacks standing to sue under the relevant statutory

provisions because she has not asserted any injury resulting from

the alleged infractions. See Mass. Gen. Laws ch. 93, § 86

(providing a private right of action for any consumer who has

"suffered any injury as a result of a violation [of the HCSCA]");

Mass. Gen. Laws ch. 93A, § 9(1) (providing "[a]ny person . . . who

has been injured" by a practice declared unlawful under Chapter

93A with a private right of action). In the context of a

Massachusetts consumer protection statute, the term "injury" has

two components. In the first instance, it denotes "an invasion of

a legally protected interest." Leardi v. Brown, 474 N.E.2d 1094,

1101 (Mass. 1985); see Aspinall v. Philip Morris Cos., 813 N.E.2d

476, 490-91 (Mass. 2004). To be actionable, however, that

invasion must cause a loss (either economic or noneconomic) to the

holder of the legally protected interest. See Hershenow v. Enter.

Rent-a-Car Co., 840 N.E.2d 526, 532-35 (Mass. 2006).

The plaintiff's primary claim of injury runs along the

following lines. If, as she contends, certain provisions of the

Contract violate the HCSCA, the Contract is unenforceable. See

Mass. Gen. Laws ch. 93, § 85 ("Any contract for health club

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services which does not comply with the applicable provisions of

this chapter shall be void and unenforceable as contrary to public

policy."). Yet, Bally refused to honor her request to cancel the

Contract. Thus, the enduring obligation to make the subsequent

payments called for by the Contract constitutes a cognizable

injury.

We agree with the premise on which this rationale rests.

While the facts relating to the plaintiff's attempted cancellation

are as yet undeveloped, the plaintiff is entitled, on a Rule

12(b)(6) motion to dismiss, to all reasonable inferences from the

facts alleged in her amended complaint. See Rogan, 175 F.3d at

77. Here, it plausibly may be inferred from the factual averments

in the amended complaint that the plaintiff tried to cancel the

Contract because she believed that it did not conform to the

requirements of Massachusetts law. If that belief proves to be

well-founded — that is, if the Contract is found to violate the

plaintiff's rights under the HCSCA — that violation would

necessarily constitute an invasion of a legally protected

interest. See Leardi, 474 N.E.2d at 1101. In that event, the

plaintiff would be facing a causally related economic loss in the

form of the obligation to make future payments under the Contract.

In an effort to parry this thrust, Bally counters with

a pair of Massachusetts cases. First, it laments that, under the

plaintiff's theory of injury, any consumer who has made payments

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under a contract alleged to violate the HCSCA would have standing

to sue. This result, Bally asserts, would render the statutory

injury requirement meaningless.

This lamentation relies heavily on an unpublished trial

court decision allowing a motion for summary judgment against a

plaintiff who alleged violations of the HCSCA. See Albats v. Town

Sports Int'l, Inc., No. 2002-04910, slip op. (Mass. Super. Ct. May

10, 2004).2 In that case, the only injury claimed by the plaintiff

was that she had lost certain protections under the law. Id. at

5-6, 9. In concluding that the plaintiff had not alleged an

adequate injury, the Albats court emphasized that the plaintiff

had continued to use the health-club facility after filing her

initial complaint. Id. at 7. Moreover, she had not manifested a

desire to be released from her contractual obligations. Id.

Here, however, the facts are materially different. The

plaintiff in this case, unlike the plaintiff in Albats, attempted

to cancel the Contract before filing suit. Although she no longer

covets her health-club membership, she has been required to

continue making payments because Bally refused to honor her

2
The Massachusetts Supreme Judicial Court (the SJC) affirmed
the decision in Albats by an equally divided court. This
disposition denies precedential force to the SJC's action. See
Howes Bros. Co. v. Mass. Unempl. Comp. Comm'n, 5 N.E.2d 720, 730
(Mass. 1936). Nevertheless, it "does not . . . tarnish earlier
opinions" in the case. Microsys. Software, Inc. v. Scandinavia
Online AB, 226 F.3d 35, 40 n.3 (1st Cir. 2000).

-8-
request for a full cancellation. Given these averments, Bally's

reliance on Albats is mislaid.

The second case upon which Bally relies is Hershenow, in

which consumers invoked Chapter 93A in endeavoring to recover

payments made under car-rental agreements that allegedly contained

illegal exclusions in waivers of collision damage. 840 N.E.2d at

528-30. The SJC held that a statutory violation alone could not

constitute a cognizable injury. But no plaintiff had tried to

cancel his or her car-rental agreement during the currency of a

contract; the Hershenow plaintiffs brought suit only after

bilateral performance under the car-rental agreements was

complete. Id. The plaintiff here, unlike the plaintiffs in

Hershenow, did not wait until after both parties had received the

entire benefit of the negotiated bargain. This is an important

distinction because the Hershenow court was concerned with

establishing that consumers could not argue "per se injury" based

merely on a technical violation of a consumer protection statute,

id. at 533, whereas the instant plaintiff has eschewed any such

attempt. Instead, she has alleged an actual economic loss. The

Hershenow decision is, therefore, inapposite.

That ends this aspect of the matter. The plaintiff's

standing to sue in this case is not dependent upon a claim of per

se injury, nor upon a nebulous theory of injury that would drain

the statutory requirement of all meaning. To the contrary, the

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raw factual averments in her amended complaint hold out the

prospect — if proven — of satisfying both components of the

statutory injury requirement. No more is exigible to ward off a

dismissal for lack of standing.

B. The Financing Arrangement.

This brings us to the merits. In that regard, the

plaintiff's flagship claim is that the Contract contradicts an

HCSCA provision governing the permissible length of financing

arrangements in connection with health-club services contracts.

That provision reads in relevant part:

No contract for health club services shall
require payments or financing by the buyer
over a period that extends more than one month
beyond the expiration of the contract.

Mass. Gen. Laws ch. 93, § 80. The plaintiff argues that the

Contract runs from month to month — it creates, in effect, a

series of one-month terms — and that each monthly term expires

unless the subscriber elects to pay the next month's dues. Given

this design, the plaintiff claims, the financing arrangement that

she entered into, which covered a 36-month period, violates the

HCSCA provision quoted above.

Bally demurs. Pointing to various contractual rights

that extend over the 36-month period without regard to the payment

vel non of monthly dues,3 it depicts the term of the Contract as

3
These include the right to a refund of the membership fee for
medical reasons or because of relocation, the right to pay the

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36 months. Since this span corresponds precisely with the

financing period, Bally opines that the Contract complies with the

HCSCA imperative. The district court sided with Bally on this

issue. See Ruiz, 447 F. Supp. 2d at 28.

We recognize the closeness of the question anent the

duration of the Contract term. We conclude, however, that there

is no need to answer that question. Here, the plaintiff's claim

is foreclosed regardless of the length of the term. We explain

briefly.

By its plain and unvarnished language, the HCSCA

provision only proscribes health-club services contracts that

require payments or financing running more than one month beyond

the expiration of the contract's term. The Contract at issue here

did not require any such extended payment plan or financing

arrangement. Rather, it afforded the plaintiff a choice; she had

the option of paying her membership fee in a lump sum when joining

the health club or paying the fee in installments by means of a

financing arrangement. Even after making an initial choice in

favor of financing, she retained the right to prepay her

membership fee in full at any time with no prepayment penalty.4

membership fee in full and thereby obtain a refund of unearned
finance charges, and the right to fixed monthly dues throughout the
36-month period.
4
Had she elected to do so, Bally would have been contractually
obligated to refund the unearned portion of the finance charges.

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 Seen in this light, it is transparently clear that the

Contract does not require (or even encourage) long-term financing

of the membership fee. Unless the statute means something other

than what it says, the absence of any such requirement is fatal to

the plaintiff's claim.

The plaintiff strives to convince us that the statute

should be read with just such a rhetorical flourish. Cf. Lewis

Carroll, Through the Looking-Glass (1871) ("'When I use a word,'

Humpty Dumpty said, . . . 'it means just what I choose it to mean,

neither more nor less.'"). She acknowledges that the word

"require" typically means to demand, to compel, or to impose an

obligation. See, e.g., Merriam-Webster's Collegiate Dictionary

1058 (11th ed. 2003) (defining "require" as "to claim or ask for

by right and authority" or "to demand as necessary or essential").

Nevertheless, she exhorts us not to read the word literally;

essentially, she asks us to equate it with "permit." In her view,

the Contract, in combination with Bally's marketing practices,

transgresses the spirit — if not the letter — of the HCSCA through

the "artifice of the literal monthly renewal language."

Appellant's Reply Br. at 4.

In support of this argument, the plaintiff cites a

report published six years before the enactment of the HCSCA. See

Federal Trade Commission, Report of the Presiding Officer on

Proposed Trade Regulation Rule Concerning Health Spas, Public

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Record 215-50 (1979) (FTC Report). The FTC Report referenced

concerns that health clubs had been luring customers into long-

term contracts that obligated them to pay for services not yet

received. See id. at 29. The difficulty with the plaintiff's

attempt to mix and match a federal report and a state statute is

that she has provided us with no evidence that the Massachusetts

legislature was aware of the FTC Report when it enacted the HCSCA

— let alone any evidence that the legislature relied on that

document. On these facts, the plaintiff's effort to characterize

the FTC Report as persuasive evidence of legislative intent is

unavailing. Speculation and surmise cannot take the place of

proof. See Franklin v. Albert, 411 N.E.2d 458, 462 (Mass. 1980).

The plaintiff also adverts to the hoary principle that

remedial statues should be interpreted broadly to effectuate their

evident purposes, see, e.g., Roberts v. Enter. Rent-A-Car Co., 779

N.E.2d 623, 627 (Mass. 2002), and on the corollary principle that

a statute should not be read literally if a literal reading would

contravene the legislature's discernible intent, see, e.g.,

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982).

Here, however, those principles yield to the specific

wording of the HCSCA. After all, it is settled beyond hope of

contradiction that "courts must presume that a legislature says in

a statute what it means and means in a statute what it says."

Barnhart v. Sigmon Coal Co., 534 U.S. 438, 461-62 (2002).

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Statutory interpretation begins with the language of the statute.

Where, as here, that language is clear and unambiguous, the

inquiry is at an end. See United States v. Ron Pair Enters.,

Inc., 489 U.S. 235, 241 (1989); López-Soto v. Hawayek, 175 F.3d

170, 172 (1st Cir. 1999). Courts are not free to disregard the

plain language of a statute and, instead, conjure up legislative

purposes and intent out of thin air.5

To be sure, courts do make an occasional exception to

the "plain language" rule in order to avoid obvious injustice or

absurd results. See Griffin, 458 U.S. at 571. But no such

exception is applicable here. There is no internal ambiguity in

the statutory provision, the overall statute suggests no other

outcome, and the result reached by a literal application of its

text is perfectly sensible.

Next, the plaintiff suggests that reading "require" to

mean "require" will empty the statutory provision of all meaning.

That construction should be avoided at all costs, she adds,

because a court should not lightly presume that a legislature

would enact a stillborn provision. See Ins. Rating Bd. v. Comm'r

of Ins., 248 N.E.2d 500, 504 (Mass. 1969).

We do not denigrate either the wisdom or the utility of

the legal construct that this argument embodies. But that

5
This is not a case where either the structure of the statute
or another of its provisions informs the meaning of the disputed
term.

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construct usually is applied when a particular interpretation of

a statute would leave it bereft of any practical effect. See,

e.g., Champigny v. Commonwealth, 661 N.E.2d 931, 933 (Mass. 1996).

The provision of the HCSCA that the plaintiff invokes

does not fall within this taxonomy. Even when given the more

circumspect reading that its text appears to demand, the provision

forestalls several potential evils by prohibiting health-club

services contracts that "require payments or financing [extending]

more than one month beyond the expiration of the contract." So

construed, the provision encourages health clubs to disclose the

full cost of their contracts by giving consumers the right to pay

those costs up front. Further, it ensures that customers cannot

be forced into unwanted financing of health-club membership fees.

If more were needed — and we doubt that it is — we note

that the Massachusetts legislature has used the words "require"

and "permit" countless times in its enactments, typically

attaching the conventional meaning to the word. Compare, e.g.,

Mass. Gen. Laws ch. 6, § 173, with, e.g., Mass. Gen. Laws ch. 12,

§ 5D(6). This is fairly convincing evidence that the legislature

understands the difference between the two terms. See Roberts, 779

N.E.2d at 627 (presuming the legislature's familiarity with

language that previously had been used in other Massachusetts

statutes). Given this pattern of semantic usage, we see no reason

to suspect that the legislature somehow confused the two familiar

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words when enacting the HCSCA. Cf. Beeler v. Downey, 442 N.E.2d

19, 23 (Mass. 1982) (declining to insert language legislature

omitted when the language was used elsewhere in the General Laws).

To say more on this point would be supererogatory. For

the reasons elucidated above, we conclude that the Contract's

financing component does not violate the HCSCA.

C. Waiver of Liability.

The plaintiff also objects to a separate provision of

the Contract. That provision, which concerns personal property

that health-club members may choose to bring onto the premises,

reads:

We urge you not to bring valuables into the
Club. You agree that we will not be liable
for the loss or theft of, or damage to, the
personal property of members or guests.

The plaintiff argues that this language constitutes a

waiver and, as such, violates an HCSCA provision that reads:

[N]o contract for health club services may
contain any provisions whereby the buyer
agrees not to assert against the seller . . .
any claim or defense arising out of the health
club services contract or the buyer's
activities at the health club.

Mass. Gen. Laws ch. 93, § 80. The plaintiff also suggests that

the same contractual language violates a separately codified

statutory prohibition against waivers of consumer rights. See id.

§ 101.

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 The plaintiff's claim, under either statute, depends

upon the notion that the contractual provision actually effects a

waiver. It does not.

Waiver is famously defined as "an intentional

relinquishment or abandonment of a known right or privilege."

Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Waivers come in

various shapes and sizes. Some are express; others are inferable

from conduct or language "consistent with and indicative of an

intent to relinquish voluntarily a particular right [such] that no

other reasonable explanation . . . is possible." Att'y Gen. v.

Indus. Nat'l Bank, 404 N.E.2d 1215, 1218 n.4 (Mass. 1980)

(quoting Buffum v. Chase Nat'l Bank, 192 F.2d 58, 60-61 (7th Cir.

1951)).

In the context of the right to seek legal recourse,

waivers ordinarily must be explicit. See Blanchette v. Sch. Comm.

of Westwood, 692 N.E.2d 21, 27 (Mass. 1998); see also Willett v.

Herrick, 155 N.E. 589, 593 (Mass. 1927) (finding release of all

claims when release terms were "plain and distinct" and "disposed

of all causes of action"). The contractual language identified by

the plaintiff does not fit this mold. On its face, the provision

does not purport to prohibit a contracting consumer from seeking

legal redress against Bally.

The plaintiff argues that a violation of the HCSCA's

prohibition on waivers can occur even in the absence of explicit

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language barring access to a judicial forum. However, the

disposition that she cites, Holiday Universal, Inc. v. Haber, 1990

Mass. App. Div. 69 (Mass. Dist. Ct.), is not helpful to her cause.

The language of the agreement at issue there is much stronger than

the language of the Contract. The plaintiff in Haber had agreed

"to assume the risk of [any] injury" and "to indemnify [the

defendant] from any and all liability" arising out of use of the

facilities. Id. at 70. Nothing in the Haber decision, fairly

read, compels a finding of waiver here.

In all events, the plaintiff's attempt to bring the

Contract under the statutory proscription of waivers suffers from

an even more obvious infirmity. If a waiver is, as we have said,

an intentional relinquishment or abandonment of a known right or

privilege, the waiving party must have a right or privilege to

waive. Under Massachusetts law, customers — in the absence of an

agreement to the contrary6 — do not have a vested right of recovery

against business owners for the loss of personal property brought

onto business premises. See, e.g., D. A. Schulte, Inc. v. N.

Terminal Garage Co., 197 N.E. 16, 19-20 (Mass. 1935) (holding

garage owner not responsible for contents of stored truck).

The plaintiff has pointed to no statutory provision

creating such a right of recovery in the health-club context. It

6
There is no allegation here that the parties specifically
agreed to the imposition of such liability.

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therefore stretches the definition of waiver well past the

breaking point to read the language of the Contract as a waiver.

On that reading, the plaintiff would be relinquishing a phantom

right.

To sum up, the clause in the Contract upon which the

plaintiff relies does not effect a waiver. That clause is nothing

more than a notice provision, outlining the parties' baseline

rights and obligations under the law. As such, it does not

violate either of the statutory prohibitions on waiver noted by

the plaintiff.

D. Chapter 93A.

Our conclusion that the Contract does not transgress the

HCSCA makes quick work of the plaintiff's Chapter 93A claims.7

Establishing a violation of Chapter 93A requires some heavy

lifting. See Boyle v. Int'l Truck & Engine Corp., 369 F.3d 9, 15

(1st Cir. 2004). A chapter 93A claimant must show that the

defendant's actions fell "within at least the penumbra of some

common-law, statutory, or other established concept of

unfairness," or were "immoral, unethical, oppressive, or

unscrupulous," and resulted in "substantial injury." PMP Assocs.,

Inc. v. Globe Newspaper Co., 321 N.E.2d 915, 917 (Mass. 1975); see

Quaker State Oil Ref. Corp. v. Garrity Oil Co., 884 F.2d 1510,

7
These claims are procedurally in order. To pave the way for
them, the plaintiff issued a pre-suit demand as required by the
statute. See Mass. Gen. Laws ch. 93A, § 9(3).

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1513 (1st Cir. 1989). Contractual provisions that fall within the

compass of, but do not violate, specific consumer protection

statutes hardly can trigger liability under Chapter 93A. See

Michael C. Gilleran, The Law of Chapter 93A § 10.5 (Supp. 2006)

("Where conduct is lawful, such as conduct in accord with the

provisions of a statute, and such conduct is not undertaken

maliciously, and is apparently justified, such conduct will not

violate c. 93A."); see also Schubach v. Household Fin. Corp., 376

N.E.2d 140, 142 (Mass. 1978) (explaining that lawfulness of

conduct under other statutes, while not conclusive on the subject

of Chapter 93A liability, should be taken into consideration); cf.

Atlantic Cement Co., Inc. v. S. Shore Bank, 730 F.2d 831, 834 (1st

Cir. 1984) (suggesting that Chapter 93A could not be violated by

conduct in full compliance with the U.C.C.).

Here, then, the contractual provisions previously

discussed cannot ground a cause of action under Chapter 93A.

There is nothing more to be said; the plaintiff has made no

developed argument that the Contract offends Chapter 93A in any

way distinct from her HCSCA claims. Consequently, her Chapter 93A

claims fail.

III. CONCLUSION

We need go no further. We find, as a threshold matter,

that the plaintiff has made the minimal showing of injury

contemplated by the HCSCA and by Chapter 93A (and, thus, has

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standing to sue). On the merits, however, we hold that the

Contract does not violate either the HCSCA's extended financing

provision or the statutory prohibitions against waivers of

consumer rights. And finally, Bally's conduct has not been shown

to offend the provisions of Chapter 93A. It follows inexorably

that the district court appropriately dismissed the plaintiff's

amended complaint.

Affirmed.

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