Case Style: William M. McDermott v. Marcus, Errico, Emmer & Brooks, P.C.
Case Number: 13-2181
Court: United States Court of Appeals for the First Circuit on appeal from the District of Massachusetts (Suffolk County)
Plaintiff's Attorney: Phil Cahalin for appellant.
Defendant's Attorney: Steve Duggan and Edmund A. Allcock, with whom Lynch & Lynch and Marcus, Errico, Emmer & Brooks, P.C. were on brief, for appellee.
Description: We are, once again, called upon
to interpret and apply the Massachusetts consumer protection
statute, Mass. Gen. Laws ch. 93A ("Chapter 93A"). This case has
humble origins: a seemingly-simple dispute over several $25 late
fees the Pondview Condominium trustees charged to one of their
residents, appellant William McDermott ("McDermott"), after he
didn't pay his condominium fees on time. Unable to resolve the
matter with McDermott, the trustees hired law firm appellee Marcus,
Errico, Emmer and Brooks, P.C. ("MEEB"), to collect from McDermott.
Soon enough, what began as a low-stakes disagreement quickly
blossomed into wide-ranging litigation in the state and federal
courts. We are concerned here with the two-count complaint
McDermott filed against MEEB in the federal district court.
McDermott alleged that MEEB's collections activities violated both
Chapter 93A and the federal Fair Debt Collection Practices Act, 15
U.S.C. § 1692 et seq. ("FDCPA").
A magistrate judge held a bench trial and initially found
in McDermott's favor on both counts. She awarded McDermott $10,400
on his Chapter 93A count, and $800 on the FDCPA claim. Both
parties filed motions for reconsideration, following which the
magistrate judge reversed in part, finding MEEB not liable under
Chapter 93A, and leaving McDermott with only the $800 recovery
under the FDCPA.
McDermott's timely appeal followed.
The magistrate judge1 issued a 203-page written decision
following a six-day bench trial. See McDermott v. Marcus, Errico,
Emmer & Brooks, P.C., 911 F. Supp. 2d 1 (D. Mass. 2012). We have
no need to fully detail the extensive factual background in order
to decide the narrow issues before us, and we commend the
magistrate judge's thorough decision to the reader seeking a full
run-down. We need only sketch a rough outline of the goings-on,
which we do based on the magistrate judge's factual findings, the
vast majority of which are unchallenged on appeal.
McDermott owned two units -- 104 and 105 -- at the
Pondview Condominiums, a 19-unit condominium in Lynn,
Massachusetts. Pondview's trustees (from now on collectively
referred to as "Pondview"), as permitted by the condominium
documents, required all unit owners to pay monthly assessments for
the upkeep of common areas and facilities, along with several other
types of monthly fees.2 Any assessments not paid on time incurred
a late payment fee, which acted as a lien against the owner's unit.
If Pondview had to turn the matter over to collections, the
condominium documents allowed for the assessment of attorney's
1 At the outset of the case, the parties mutually agreed to
the jurisdiction of a magistrate judge over all proceedings,
2 Monthly fees included a loan payback charge, which was
"either part of a special assessment or a line item in [Pondview's]
fees, late charges, and collection costs against the offending
McDermott lost his job in 2004. He fell behind on his
condominium fees for both units in July of that year, and the next
month he fell behind on the late payment fees, too. In September,
McDermott agreed to pay two months of condominium and late fees for
unit 105 (but not unit 104) by September 22. Although McDermott
ended up making payments for both units by September 22, this did
not bring the accounts current because he did not pay all of the
In the first of a series of unfortunate
misunderstandings, McDermott seems to have thought his September
payments brought him up-to-date. Compounding his troubles,
McDermott paid his October monthly assessment for unit 105 late,
triggering another late fee. He fell further behind in December.
On December 18, Pondview sent McDermott a letter
detailing how much he owed for unit 105. The letter also told
McDermott that, pursuant to the condominium documents, he was being
charged $25 late fees for payments received after the 15th of the
month during which each of the payments were due.3 According to
Pondview, by the end of 2004 McDermott owed, including late payment
fees, $346.62 on unit 105 and $380.33 for unit 104. McDermott,
3 The magistrate judge found that MEEB "was not involved in
the decision to impose a $25.00 charge for delinquent loan payback
charges or to change any policy to impose late fees."
however, let Pondview know that he disagreed with the late fee
assessments and would not pay them. By the time March 2005 rolled
around, McDermott had not paid condominium fees, loan payback
charges, or late fees for either unit for January, February, and
Having apparently decided enough was enough, Pondview
brought in MEEB to collect McDermott's debt. MEEB informed
McDermott in a March 23, 2005 letter that he owed $1,495.61 on unit
104, an amount it said encompassed collection costs and attorney's
fees. A separate letter with the same date told McDermott he owed
$1,431.61 on unit 105. McDermott, who does not appear to have
lawyered-up by this point, stood by his refusal to pay.
Over the approximately three-and-a-half years between
April 2005 and September 2008, MEEB filed nine collection actions
in Massachusetts state court against McDermott. McDermott retained
counsel somewhere along the way (the exact date is not important
here). Five of MEEB's collection suits related to unit 105, and
four related to unit 104. Only two reached trial, but MEEB won
them both and was awarded attorney's fees to boot.4
During the course of its collection activities, and while
litigation was ongoing, MEEB repeatedly contacted the mortgagees on
each of McDermott's units without his knowledge or consent,
4 In one of these cases the state court awarded $14,000 in
attorney's fees, approximately half of what MEEB had sought.
informed them of McDermott's delinquencies, and demanded payment
directly from them. When asked to do so, the mortgagees
accommodated MEEB and paid the amounts requested. They then passed
these costs on to McDermott by tacking them onto the outstanding
mortgages. Further, MEEB occasionally contacted McDermott
directly, despite knowing he was represented by counsel.
Displeased with MEEB's collection activities, McDermott
filed suit against the firm in the federal district court for
Massachusetts on February 3, 2009. His two-count complaint alleged
a variety of violations of federal (the FDCPA) and state (Chapter
Specifically, McDermott took issue with the wording of
several collection letters, contending they "were deliberately
misleading, sporadic, inconsistent, confusing, and contained
numerous errors and double billings." He also alleged MEEB
"consistently and deliberately misleadingly, confusingly, and
deceptively conflated its legal fees with condominium assessments
in most of its communications concerning [his] debts," and made
certain "oppressive and extortive" statements to him in violation
5 McDermott's complaint grounded federal jurisdiction on 28
U.S.C. § 1331, as his was an action "arising under the
Constitution, law, or treaties of the United States." He also
invoked the federal court's supplemental jurisdiction to decide his
state-law-based Chapter 93A claims. Although in an apparent
typographical error McDermott's complaint cited the wrong statute
for supplemental jurisdiction (the non-existent "28 U.S.C. § 1328"
instead of 28 U.S.C. § 1367), MEEB has never asked the federal
courts to decline the exercise of supplemental jurisdiction.
of the FDCPA. McDermott further complained about MEEB's direct
contacts with himself and his mortgagees. McDermott wrapped up his
complaint by espousing his theory that MEEB ran up between $54,000
and $59,000 in legal fees "by its deliberate, intentional
provocation of a dispute between Pondview and [himself] over $150
in unlawful late fees and by its other, relentless, egregious,
unfair, deceptive, false, misleading, oppressive, and abusive
violations of the FDCPA."
After trial, the magistrate judge found that although
MEEB acted at all times in good faith and that none of its actions
were deceptive, it nevertheless committed numerous violations of
the FDCPA. The details of each FDCPA violation are not important
for our purposes, other than that the judge found none of them were
in bad faith.6 The magistrate judge further determined that,
pursuant to regulations issued by the Massachusetts Attorney
General, MEEB's FDCPA violations served as a basis for imposing
liability under Chapter 93A, even though MEEB had not committed any
unfair or deceptive acts. In other words, she found the FDCPA
violations constituted "per se" violations of Chapter 93A. She
also found, however, that MEEB did not commit any unfair or
deceptive acts that could give rise to Chapter 93A liability
independent of the per se violations. Ultimately, the magistrate
6 The magistrate judge also found some of McDermott's FDCPA
claims, having been brought outside of the FDCPA's one-year
limitations period, were barred as untimely.
judge awarded McDermott $800 under the FDCPA, and $10,400 for the
Chapter 93A violations.
MEEB subsequently filed a motion for reconsideration
pursuant to Fed. R. Civ. P. 59(e).7 The magistrate judge reviewed
a newly-decided case from the Massachusetts Supreme Judicial Court
("SJC") interpreting Chapter 93A, Klairmont v. Gainsboro
Restaurant, Inc., 987 N.E. 2d 1247 (Mass. 2013), determined her
finding of per se Chapter 93A violations was incorrect as a matter
of law, and vacated the judgment on that count. See McDermott v.
Marcus, Errico, Emmer & Brooks, P.C., 969 F. Supp. 2d 74 (D. Mass.
2013). She did not disturb her findings with respect to MEEB's
FDCPA violations. As a result of the magistrate judge's
reconsideration, McDermott saw his recovery slashed from $11,200 to
Unsatisfied with this outcome, McDermott appealed to us.
II. STANDARD OF REVIEW
This case comes to us after a full bench trial, so we
review the magistrate judge's factual findings for clear error.
Smith v. F.W. Morse & Co., Inc., 76 F.3d 413, 420 (1st Cir. 1996).
The clear error standard "constrains us from deciding factual
issues anew." Id. "[W]e may not disturb the [magistrate judge's]
record-rooted findings of fact unless on the whole of the evidence
7 McDermott filed one too, but we need not discuss it as
McDermott does not appeal its denial.
we reach the irresistible conclusion that a mistake has been made."
Id. We afford this deference not just to straight-up findings of
fact, but to any inferences drawn from them. Id. Similarly, we
defer to a magistrate judge's "findings regarding an actor's
motivation" where they are "plausible." Id. In sum, "we cannot
second-guess the court's credibility determination[s]" following a
bench trial. Calderón-Ortega v. United States, 753 F.3d 250, 253
n.1 (1st Cir. 2014).
In stark contrast to factual findings, we afford no
deference to the magistrate judge's legal conclusions, which we
review de novo. United States v. 15 Bosworth Street, 236 F.3d 50,
53 (1st Cir. 2001); Smith, 76 F.3d at 420. And because the
magistrate judge granted MEEB's motion for reconsideration on legal
grounds only (rather than after, say, a reevaluation of the facts),
we review the legal conclusions undergirding that decision de novo,
too. See, e.g., Santiago v. Puerto Rico, 655 F.3d 61, 67 (1st Cir.
2011) (applying de novo review where "the parties' arguments were
directed to the underlying substantive issue (the propriety vel non
of summary judgment) rather than the procedural issue (the
desirability vel non of reconsideration)").
McDermott raises several discrete arguments in this
appeal. First and foremost, he says the magistrate judge erred
when she snatched away his victory on the Chapter 93A count because
MEEB's FDCPA violations give rise to per se Chapter 93A liability,
without the need of showing that they are unfair or deceptive.
Next, he argues that the magistrate judge should have found MEEB
violated the FDCPA by charging him excessive legal fees. Last but
not least, and predicated upon the assumption that we will conclude
MEEB is liable to him under Chapter 93A on some theory, McDermott
takes the position that MEEB's violation of Chapter 93A entitles
him to an award of multiple damages. Not surprisingly, MEEB
disagrees with each of McDermott's arguments and asks us to affirm
the magistrate judge's orders.
We address these topics in turn.
A. Chapter 93A Liability
1. The Basics and the Concept of Per Se Liability
This appeal requires us to interpret and apply
Massachusetts consumer protection law as embodied in Chapter 93A.
More specifically, we are called upon to look at the concept of
"per se" Chapter 93A liability. We open with a primer on the
statute, discuss the concept of per se violations, and finally
address the parties' arguments on appeal.
Because McDermott's Chapter 93A arguments implicate
matters of state law, we apply the substantive law of
Massachusetts. See Dykes v. DePuy, Inc., 140 F.3d 31, 39 (1st Cir.
1998) ("When facing a claim that does not arise under the
Constitution or the laws of the United States, a federal court must
apply the substantive law of the forum in which it sits . . . .");
see also O'Brien v. Skinner, 414 U.S. 524, 531 (1974) (recognizing
that it is not the function of a federal court "to construe a state
statute contrary to the construction given it by the highest court
of a State"). This is so even where we are dealing with "a statelaw
claim brought under supplemental jurisdiction," such as
McDermott's Chapter 93A claim. Dykes, 104 F.3d at 39.
The Massachusetts statute at issue here, Chapter 93A,
straightforwardly declares that "[u]nfair methods of competition
and unfair or deceptive acts or practices in the conduct of any
trade or commerce are . . . unlawful." Mass. Gen. Laws ch. 93A,
§ 2(a). "[T]he intent of the legislature" is that a court hearing
a Chapter 93A claim will be "guided by the interpretations given by
the Federal Trade Commission and the Federal Courts to section
5(a)(1) of the Federal Trade Commission Act (15 U.S.C.
[§] 45(a)(1)), as from time to time amended." Mass. Gen. Laws ch.
93A, § 2(b). The statute permits the Massachusetts Attorney
General to implement "rules and regulations interpreting the
provisions" of Chapter 93A, but these "shall not be inconsistent
with the rules, regulations and decisions of the Federal Trade
Commission and the Federal Courts interpreting the provisions of
the" Federal Trade Commission Act, "as from time to time amended."
Mass. Gen. Laws ch. 93A, § 2(c).
Although Chapter 93A broadly prohibits "unfair" and
"deceptive" conduct in trade or commerce, the statute does not
spell out what specific actions make the grade.8 Doing so would
not be feasible anyway because, as the SJC has observed, "[t]here
is no limit to human inventiveness in this field." Kattar v.
Demoulas, 739 N.E.2d 246, 257 (Mass. 2000) (alteration in original)
(internal quotation marks omitted). Thus, whether or not
particular conduct violates Chapter 93A is generally determined on
a case-by-case basis. See id.
Nevertheless, Massachusetts courts have recognized that
violations of a limited number of statutes automatically give rise
to liability under Chapter 93A. See, e.g., Polaroid Corp. v.
Travelers Indem. Co., 610 N.E.2d 912, 917 (Mass. 1993) (violation
of state unfair claims settlement act, Mass. Gen. Laws ch. 176D,
constitutes violation of Chapter 93A); Reddish v. Bowen, 849 N.E.2d
901, 906 (Mass. App. Ct. 2006) (same with respect to a home
improvement contractor's violation of Mass. Gen. Laws ch. 142A).
This automatic liability, which the parties refer to as per se
liability, could be thought of as a species of strict liability.
In the instances where the Massachusetts appellate courts have
found per se Chapter 93A liability based on a statutory violation,
such conclusion, as we discuss hereafter, was grounded on explicit
8 Neither does the statute define "trade or commerce."
With respect to unfair claims settlement act violations
like those addressed in Polaroid, per se Chapter 93A liability
arises directly from the consumer protection act itself. Chapter
93A provides that "[a]ny person . . . whose rights are affected by
another person violating the provisions of clause (9) of section
three of chapter one hundred and seventy-six D [i.e., the unfair
claims settlement act] may bring an action in the superior court."
Mass. Gen. Laws ch. 93A, § 9(1). In accordance with this statutory
text, the SJC has recognized that "[a] consumer asserting a claim
under [Chapter] 93A, § 9, may recover for violations of [Chapter]
176D, § 3, cl. 9, without regard to whether the violation was
unlawful under [Chapter] 93A, § 2, because of the explicit
statement to that effect in [Chapter 93A,] § 9." Polaroid, 610
N.E.2d at 917. Thus, Chapter 93A itself established that an act
that violates the unfair claims settlement act violates Chapter 93A
as well. Voilà, per se liability.
But Chapter 93A's language is not the only way to get to
per se liability: it may also arise through the text of an
independent statute, as in Reddish. The statute at issue there,
Chapter 142A, regulates home improvement contractors and provides
that "[v]iolations of any of the provisions of this chapter shall
constitute an unfair or deceptive act under the provisions of
[Chapter 93A]." Mass. Gen. Laws ch. 142A, § 17. One of the act's
provisions prohibits contractors from committing any "violation of
the building laws of the commonwealth." Mass. Gen. Laws ch. 142A,
§ 17(10). The Massachusetts Appeals Court has applied this plain
language to conclude that a home improvement contractor's violation
of the Massachusetts building code, thanks to Chapter 142A,
§ 17(10), "constituted an unfair or deceptive act under [Chapter
93A] by operation of [Chapter 142A,] § 17." Reddish, 849 N.E.2d at
908. Thus, Reddish points the way along this alternative path
(i.e., the text of an independent statute) to per se Chapter 93A
Taken together, these cases demonstrate a recognition by
the Massachusetts courts that the Commonwealth's Legislature has
decreed that a limited number of certain statutory violations
automatically violate the consumer protection act as well. Whether
the per se liability comes about through language the Legislature
incorporated directly into Chapter 93A referencing another statute
(as is the case with Chapter 176D), or whether it arises from the
text of an independent statute (keep Chapter 142A in mind), it is
a clear directive by the Legislature that a violation of that
particular statute constitutes an automatic violation of Chapter
93A, without the need of showing the act was otherwise "unfair or
deceptive" or occurred in "trade or commerce." This concept is
critical to our resolution of the arguments on appeal.
2. Per Se Chapter 93A Liability After Klairmont
We proceed to the parties' particular arguments about
MEEB's per se Chapter 93A liability. The question they have placed
before us is narrow: although Chapter 93A is a statute of broad
applicability, Kattar, 739 N.E.2d at 257, in the wake of what they
both consider to be the key case, Klairmont v. Gainsboro
Restaurant, Inc., 987 N.E.2d 1247 (Mass. 2013), do FDCPA violations
give rise to so-called per se liability under Chapter 93A, § 2?
Because the parties have relied so extensively on Klairmont, an
extended discussion of it is required in order to place the
parties' arguments in context. And, although the magistrate judge
interpreted and applied Klairmont, we consider its import de novo.
See Casavant v. Norwegian Cruise Line Ltd., 952 N.E.2d 908, 912
(Mass. 2011) (finding that "the boundaries of what may qualify for
consideration as a [Chapter 93A] violation is a question of law")
(internal quotation marks omitted).9
Klairmont involved the alleged wrongful death of a
college student who, while in the midst of a cell phone
9 Some years ago, we noted that a violation of the FDCPA is a
per se violation of Chapter 93A. French v. Corporate Receivables,
Inc., 489 F.3d 402, 403 n.1 (1st Cir. 2007). And before that, we
stated that a violation of a federal consumer protection statute
"constitutes a per se violation of Chapter 93A, § 2(a)." Barnes v.
Fleet Nat'l Bank, N.A., 370 F.3d 164, 176 (1st Cir. 2004). These
conclusory statements, devoid of substantive analysis or
explanation, are not particularly helpful to our analysis here.
Further, these cases were decided prior to Klairmont, which
controls our interpretation of state law.
conversation, fell down a flight of steps at a bar. 987 N.E.2d at
1251. The stairway, it turned out, was a bad stairway. Not only
was the very "presence of the stairs . . . obscured with hanging
vinyl strips," id., the stairs themselves violated the
Massachusetts building code in multiple respects. For example, the
stairway was not equipped with a self-closing "fire-rated" door and
landing at the top, there were no hand rails, and the riser and
tread dimensions did not meet the building code's dimensional
requirements. Id. at 1253. Furthermore, the defendants10 had
rebuilt the stairs years before the decedent's fall, yet when they
did so they "failed to acquire a building permit or to comply with
the building code." Id. at 1253-54. Moreover, "the defendants
knew that building permits and a change in use permit were
required, as evidenced by the fact that the defendants filed, and
then abandoned, multiple building permit and change in use permit
applications." Id. at 1254.
The plaintiffs (decedent's parents) brought a Chapter 93A
count premised solely on the defendant's noncompliance with the
Massachusetts building code.11 See id. at 1252. They grounded
their Chapter 93A theory on the interplay between Chapter 93A, § 2
and 940 C.M.R. § 3.16(3) -- an Attorney General regulation
10 The bar itself and trustees of the legal entity that owned
the real estate on which it was located.
11 They also brought general negligence claims, but those are
not germane here.
declaring that a violation of a state statute providing for public
health, safety, or welfare is itself a Chapter 93A violation.12 See
id. In essence, the plaintiffs claimed the defendants were liable
under Chapter 93A because they knew about the building code
violations but failed to do anything about them.
The defendants took a different tack. They argued that
940 C.M.R. § 3.16(3) should not be construed in such a way as to
transform every act that violates a statute concerned with public
health, safety, or welfare into a Chapter 93A violation because
doing so would enshrine Chapter 93A as the "preeminent law of the
Commonwealth." Id. at 1254 (internal quotation marks omitted).
The defendants sought to convince the SJC that it was not enough
for the plaintiffs to simply show a building code violation.
Instead, the defendants urged, they must prove the defendants'
complained-of acts were "unfair or deceptive" before the defendants
could run afoul of Chapter 93A. Id.
12 The regulation provides that
an act or practice is a violation of [Chapter 93A], § 2
. . .
(3) It fails to comply with existing statutes, rules,
regulations or laws, meant for the protection of the
public's health, safety, or welfare promulgated by the
Commonwealth or any political subdivision thereof
intended to provide the consumers of this Commonwealth
protection . . . .
940 C.M.R. § 3.16(3).
Taking on these arguments, the SJC first noted that the
"building code may qualify as a regulation meant for the protection
of the public's health, safety, or welfare" that is of concern to
940 C.M.R. § 3.16(3). Id. at 1254-55 (internal quotation marks
omitted). Thus, in light of the Attorney General regulation, a
violation of the building code opens a defendant up to the
possibility of Chapter 93A liability. See id. at 1255 ("[T]o the
extent the defendants contend that as a matter of law, [Chapter
93A] does not apply to claims premised on violations of the
building code, we reject the argument.").
Yet, that the building code is embraced by the
"unquestionably broad" ambit of 940 C.M.R. § 3.16(3) does not by
itself render its violation a per se violation of Chapter 93A.13
Id. The reach of the regulation -- emanating as it does from the
Attorney General rather than the Legislature -- is "bound by the
scope of [Chapter] 93A, § 2(a)." Id. This means that "under 940
[C.M.R.] § 3.16(3) a violation of a law or regulation . . . will be
a violation of [Chapter] 93A, § 2(a), only if the conduct leading
to the violation is both unfair or deceptive and occurs in trade or
commerce." Id. By making this pronouncement, the SJC sharply
limited the occasions on which an unlawful act will lead to
13 Indeed, the SJC noted in no uncertain terms that the trial
judge "misstated the law when she said that 'the defendants'
[b]uilding [c]ode violations were per se deceptive and unfair acts
or practices.'" Id. at 1255 n.16 (emphasis added).
liability under Chapter 93A through operation of the Attorney
The SJC, reiterating that "whether the particular
violation or violations qualify as unfair or deceptive conduct is
best discerned from the circumstances of each case," id. (internal
quotation marks omitted), proceeded to review the evidence in the
record relevant to the plaintiffs' Chapter 93A claim. First, it
concluded the defendants' conduct was unfair and deceptive within
the meaning of Chapter 93A because the defendants "consciously
violated the building code for more than twenty years, thereby
creating hazardous conditions in a place of public assembly where
alcohol is served to commercial patrons." Id. Next, the SJC
concluded the unfair and deceptive conduct occurred in trade or
commerce because the victim was the bar's patron at the time of his
accident, and because "the defendants knowingly failed to acquire
the required permits in order to avoid the expense of building code
compliance to their restaurant and bar business." Id. at 1256.
Accordingly, the SJC found the defendants' conduct met both prongs
of Chapter 93A.
The course of the SJC's analysis in Klairmont
demonstrates exactly what it meant when it said that 940 C.M.R.
§ 3.16(3) is "bound" by the scope of Chapter 93A: despite the
regulation's broad wording purporting to do so, the Attorney
General is not empowered to issue regulations rendering certain
statutory violations "per se" Chapter 93A violations. Indeed, the
SJC went out of its way to say that the trial judge got it wrong
when she said the defendants' building code violations were per se
violative of Chapter 93A.
The lesson of Klairmont may be summed up as so: the
Massachusetts Attorney General's regulatory authority to "make
rules and regulations interpreting" Chapter 93A, § 2(a), Mass. Gen.
Laws ch. 93A, § 2(c), does not extend so far as to permit her to
allow a plaintiff to show that a defendant has violated an
independent statute in lieu of satisfying Chapter 93A's substantive
requirements of showing the complained-of act was both unfair and
deceptive and that it occurred in trade or commerce.
3. Per Se Chapter 93A Liability and the FDCPA
We come now to McDermott's arguments that MEEB's FDCPA
violations result in per se Chapter 93A liability. He advances two
separate, but related, grounds.
First, using the federal statute as his starting point,
McDermott observes the FDCPA states any act that violates its
provisions also violates the Federal Trade Commission Act ("FTC
Act"). According to McDermott, the FTC Act is Chapter 93A's
federal equivalent. By enacting Chapter 93A, he argues, the
Massachusetts Legislature grafted federal consumer protection law,
including the FDCPA, onto state law. In his view, this means that
a violation of the FDCPA violates the FTC Act and, by extension,
Second, McDermott focuses on a regulation promulgated by
the Massachusetts Attorney General which is similar to the one
addressed in Klairmont, and which explicitly provides that
violations of federal consumer protection law count as Chapter 93A
violations. See 940 C.M.R. § 3.16(4). The FDCPA, he maintains,
is just such a consumer protection law. In McDermott's view, and
thanks to this regulation, one who violates the FDCPA necessarily
violates Chapter 93A at the same time.
Not so fast, says MEEB. First, it does not contest the
magistrate judge's finding that it committed FDCPA violations.
But, in its eyes, the SJC's Klairmont opinion was explicit that
even per se Chapter 93A violations are subject to a "trade or
commerce" requirement. In other words, a so-called per se
violation is not truly per se, as per se findings satisfy Chapter
93A's first prong only (i.e., that the conduct at issue is unfair
or deceptive). A plaintiff (here, McDermott) still has the burden
of proving the conduct occurred in the course of trade or commerce.
Because all of its interactions with McDermott were related to its
representation of Pondview in a private dispute, MEEB did not act
in a "business context" with respect to McDermott and, therefore,
did not act in "trade or commerce" when it violated the FDCPA. It
follows, according to MEEB, that it may not be held liable under
Notably, MEEB misunderstands McDermott's arguments as
being limited solely to a claim that per se liability arises
through the Attorney General regulation, 940 C.M.R. § 3.16(4). As
such, MEEB does not respond to McDermott's first argument that per
se liability can also come from Chapter 93A's federal equivalent,
the FTC Act. Therefore, we will first turn our attention to
McDermott's argument that per se liability arises under the
Attorney General regulation, 940 C.M.R. § 3.16(4).
i. Attorney General Regulation
In light of our discussion of Klairmont, McDermott's
argument that per se Chapter 93A liability may be imposed by 940
C.M.R. § 3.16(4) is easily disposed of. Although Klairmont
involved a different Attorney General regulation, 940 C.M.R.
§ 3.16(3), the two are substantially similar:
Without limiting the scope of any other rule,
regulation or statute, an act or practice is a
violation of [Chapter 93A], § 2 if:
. . .
(3) It fails to comply with existing statutes,
rules, regulations or laws, meant for the
protection of the public's health, safety or
welfare promulgated by the Commonwealth or any
political subdivision thereof intended to
provide the consumers of this Commonwealth
(4) It violates the Federal Trade Commission
Act, the Federal Consumer Credit Protection
Act or other Federal consumer protection
statutes within the purview of [Chapter 93A],
940 C.M.R. § 3.16.
The regulation McDermott relies upon states that conduct
which violates a federal consumer protection statute, like the
FDCPA, also violates Chapter 93A.14 For our purposes, the only
relevant substantive difference between Klairmont's regulation, 940
C.M.R. § 3.16(3), and McDermott's, 940 C.M.R. § 3.16(4), is the
source of law: § 3.16(3) looks to state consumer protection law,
while § 3.16(4) refers to federal consumer protection law. Compare
940 C.M.R. § 3.16(3) (referring to Massachusetts statutes "intended
to provide the consumers of this Commonwealth protection") with 940
C.M.R. § 3.16(4) (referring to "Federal consumer protection
statutes within the purview of [Chapter 93A], § 2").
The logic underpinning Klairmont is clearly applicable
here. We can conceive of no plausible rationale, and none has been
suggested to us, for treating these two provisions differently
14 The parties take it for granted that the FDCPA is a "Federal
consumer protection statute within the purview of" Chapter 93A,
§ 2, as required by the Attorney General regulation. 940 C.M.R.
§ 3.16(4). The district courts that have considered the issue have
concluded that it is. See In re Pharm. Indus. Average Wholesale
Price Litig., 491 F. Supp. 2d 20, 84 (D. Mass. 2007); Dean v.
Compass Receivables Mgmt. Corp., 148 F. Supp. 2d 116, 119 (D. Mass.
2001). The correctness of these holdings is confirmed by the text
of the FDCPA itself, which sets forth one of its purposes as "to
protect consumers against debt collection abuses." 15 U.S.C.
§ 1692(e). Thus, we agree the FDCPA is a consumer protection
statute for the purposes of Chapter 93A.
based solely on the origin of the specific consumer protection law
with which each is concerned. Indeed, finding Klairmont's
reasoning inapplicable to § 3.16(4) would enshrine a distinction
without a difference as a matter of Massachusetts law. This we
refuse to do.
We, therefore, conclude that just as the scope of
§ 3.16(3) is bound by the strictures of Chapter 93A, including the
requirements of showing unfair and deceptive conduct occurring in
trade or commerce, so too is § 3.16(4) limited by those same
requirements. Because the Attorney General is not permitted to
regulate away these two requirements with respect to Chapter 93A
claims based on violations of state consumer protection law, the
Attorney General may not do likewise when the claimed violation
arises out of federal consumer protection law. Applying
Klairmont's reasoning, we reject McDermott's argument that 940
C.M.R. § 3.16(4) renders MEEB's violations of the FDCPA per se
violative of Chapter 93A.
ii. Per Se Liability Through Federal Consumer
Reaching this conclusion does not settle the entire
matter. Although MEEB seeks to characterize McDermott's liability
arguments as premised solely on the Attorney General regulation,
McDermott has in fact also argued per se liability arises through
Chapter 93A's incorporation of federal consumer protection law into
state law. His position is premised on the notion that
Massachusetts incorporated federal unfair competition law into
state law when it enacted Chapter 93A.
As it turns out, the FTC Act is quite similar to Chapter
93A. Like Chapter 93A, it provides that "unfair or deceptive acts
or practices in or affecting commerce are . . . unlawful." 15
U.S.C. § 45(a)(1); see also Mass. Gen. Laws ch. 93A, § 2(a)
("[U]nfair or deceptive acts or practices in the conduct of any
trade or commerce are hereby declared unlawful."). Chapter 93A's
echo of the FTC Act's language, along with the legislative
directive that courts interpreting Chapter 93A are to be guided by
the federal courts' interpretation of this statute, see Mass. Gen.
Laws ch. 93A, § 2(b), are important indications that McDermott is
on the right track.
Decades ago, the SJC addressed the connection between
federal consumer protection law and Chapter 93A. The SJC
announced with striking clarity that Massachusetts has "wholly
incorporated" the FTC Act, 15 U.S.C. § 45(a)(1), into Chapter 93A.
Slaney v. Westwood Auto, Inc., 322 N.E.2d 768, 773 n.8 (Mass.
1975). Chapter 93A, it explained on another occasion, "was enacted
in 1967, partly in response to [a Federal Trade Commission] policy
to stop unfair practices on a State level before they become
interstate problems." Purity Supreme, Inc. v. Attorney General,
407 N.E.2d 297, 301 (Mass. 1980). To effectuate this underlying
motivation, Chapter 93A "incorporates the extensive body of Federal
administrative and decisional law under the FTC Act, at least in so
far as it relates to definitions of 'unfair' and 'deceptive.'" Id.
(internal citation omitted). Lest there be any doubt that the SJC
has changed its thinking over the years, it recently stated that
Chapter 93A "defines unfair acts or practices by reference to
interpretations of those terms in the Federal Trade Commission Act,
15 U.S.C. § 45(a)(1) (2006), in which [Chapter] 93A has its roots."
Kraft Power Corp. v. Merrill, 981 N.E.2d 671, 683 (Mass. 2013). It
follows that, because Massachusetts has folded the FTC Act into
Chapter 93A, unfair or deceptive conduct that violates the FTC Act
also violates Chapter 93A.
Having come this far, we turn to the next part of
McDermott's argument, which is that per se liability arises through
operation of the FDCPA. The FDCPA explicitly provides that a
violation of its provisions "shall be deemed an unfair or deceptive
act or practice in violation of" the FTC Act. 15 U.S.C.
At this point, it is helpful to recall our previous
discussion of the alternative paths to per se Chapter 93A
liability: the text of Chapter 93A itself, or the text of an
independent statute. The FDCPA's language we just quoted is
substantially similar to Mass. Gen. Laws ch. 142A's provision
imposing per se Chapter 93A liability on home contractors for
violations of Chapter 142A. In other words, just as Chapter 142A
does with respect to Chapter 93A, the FDCPA establishes that an
unfair debt collection act in violation of the FDCPA is a per se
violation of the FTC Act. And because Massachusetts has "wholly
incorporated" the FTC Act and its interpretation into state
consumer protection law, a violation of the FDCPA not only per se
violates the FTC Act, it also constitutes a per se Chapter 93A
To drive the point home, we will make one more comparison
to state law. Although not cited by either party, Massachusetts
has its own unfair debt collection statute, Mass. Gen. Laws ch. 93,
§ 49, which is entitled "Debt collection in an unfair, deceptive or
unreasonable manner." The statute reads as follows:
[n]o one who is a creditor or an attorney for
a creditor, or an assignee of a creditor, of a
natural person present or residing in
Massachusetts who has incurred a debt
primarily for personal, family or household
purposes shall collect or attempt to collect
such debt in an unfair, deceptive or
Mass. Gen. Laws ch. 93, § 49. It goes on to list various actions
that shall be "deemed unfair, deceptive or unreasonable." Id.
Included is a prohibition against a debt collector "communicat[ing]
directly with the alleged debtor after notification from an
attorney representing such debtor that all further communications
relative to the debt should be addressed to [that attorney]."
Mass. Gen. Laws ch. 93, § 49(b). Finally, violations of the
statute lead to Chapter 93A liability, as "[f]ailure to comply with
the provisions of this section shall constitute an unfair or
deceptive act or practice under the provisions of chapter ninetythree
A." Mass. Gen. Laws ch. 93, § 49, cl. 7.
Here, the magistrate judge found that MEEB violated the
FDCPA by, among other things, contacting McDermott despite its
awareness that he was represented by counsel. Although McDermott
has not advanced any claims under the state debt collection
statute, it is clear that this particular FDCPA violation would
have violated state debt collection law as well. And, by virtue of
Chapter 93's clear language, it would have constituted an "unfair
or deceptive act or practice" for Chapter 93A purposes.15 That
MEEB's direct contact of McDermott would have led to per se Chapter
93A liability under the state debt collection statute provides yet
another reason for interpreting the similar language in the FTC Act
and the FDCPA in the same way.
Summing up, and although our analysis differs markedly
from the magistrate judge's, we conclude MEEB's violations of the
FDCPA constitute per se Chapter 93A violations by virtue of the
unambiguous statutory language in the FDCPA and the FTC Act. The
15 At first blush, Chapter 93 may not appear to provide for per
se Chapter 93A liability because it does not address the trade or
commerce requirement. Yet, Chapter 93 applies specifically to debt
collectors. And a debt collector's business is, by definition,
collecting debts. Although we need not decide the issue here, we
would be hard-pressed to imagine why a debt collector who violates
Chapter 93 would not be acting in trade or commerce with respect to
the particular debtor.
SJC's Klairmont opinion does nothing to alter this reasoning, as
Klairmont determined only that Attorney General regulations are
bound by the scope of Chapter 93A. Klairmont simply did not
address per se Chapter 93A liability arising through an independent
statute. The magistrate judge, therefore, committed an error of
law when she concluded that Klairmont required a separate "trade or
commerce" finding in these circumstances. Accordingly, to the
extent that the magistrate judge vacated the judgment in favor of
McDermott on his Chapter 93A claim, we reverse.16
B. Excessive, Redundant, or Otherwise Unnecessary Attorney's Fees
in Violation of the FDCPA
McDermott next argues that the magistrate judge should
have found that MEEB violated the FDCPA by charging and attempting
to collect from him "excessive, redundant, or otherwise unnecessary
attorney fees." Appellant Br. at 23. To get to this conclusion,
16 Before moving on, we note MEEB's contention that because
certain FDCPA violations found by the magistrate judge occurred
outside of the FDCPA's one-year limitations period, these
"untimely" claims can not serve as the basis for Chapter 93A
liability. The Massachusetts appellate courts have unambiguously
held that a Chapter 93A claim is subject to Chapter 93A's four-year
limitations period. See Fine v. Huygens, DiMella, Shaffer &
Assocs., 783 N.E.2d 842, 849 (Mass. App. Ct. 2003) (A Chapter 93A
claim "need only be dismissed if, under [Chapter] 93A's four-year
limitations period and the accrual date applicable to the
particular [Chapter] 93A claim, it was not timely filed."). We,
too, recognized this more than twenty years ago. See Tagliente v.
Himmer, 949 F.2d 1, 6 (1st Cir. 1991) (distinguishing between
statute of limitations applicable to claim of fraudulent
concealment and Chapter 93A claim based upon the same underlying
conduct). MEEB does not argue that any of its FDCPA violations are
untimely under Chapter 93A. Accordingly, its statute of
limitations defense is without merit.
McDermott first cites several Massachusetts cases for the
proposition that charging excessive fees violates Massachusetts
law. Working from this premise, he directs our attention to
language in the FDCPA which includes in its definition of unfair
debt collection practices the "collection of any amount (including
any interest, fee, charge, or expense incidental to the principal
obligation) unless such amount is expressly authorized by the
agreement creating the debt or permitted by law." 15 U.S.C.
After setting forth this basic position, McDermott argues
MEEB was obligated to prove at trial that its fees were reasonable.
McDermott says MEEB is unable to do so because it violated Mass.
Gen. Laws ch. 183A, which McDermott contends required it to send
pre-suit notices to McDermott's mortgagees. According to
McDermott, these notices were intended to allow the mortgagee to
make up the mortgagor's deficiency, and therefore avoid a lawsuit.
Per McDermott, had MEEB sent out the notices as required, then his
mortgagees would have paid the debt in order to avoid suit.
Therefore, he urges us to find that MEEB's failure to send out pre-
17 McDermott also argues that collection of excessive,
redundant, and unnecessary fees "wrongfully cause[s] [a] debtor to
incur avoidable costs" in violation of 15 U.S.C. § 1692f(5).
Appellant Br. at 24. That section, however, renders it unlawful
for a debt collector to "[c]aus[e] charges to be made to any person
for communications by concealment of the true purpose of the
communication." 15 U.S.C. § 1692f(5). McDermott makes no attempt
to explain how this section applies to his avoidable costs theory.
Accordingly, we do not consider it further.
suit notices resulted in MEEB filing unnecessary lawsuits and, by
extension, charging him unnecessary fees.
MEEB makes several responses to these arguments. The
only one with which we need concern ourselves is MEEB's position
that McDermott is attempting to raise a new legal theory on appeal.
MEEB says that McDermott's theory at trial was consistent with the
allegations in his Verified Complaint that MEEB was responsible for
causing an "unreasonable, unfair, unlawful, unexplained, and
retroactive change in Pondview's policy for the specific purpose of
precipitating a dispute with McDermott in order to generate legal
fees for MEEB." Appellee Br. at 25. Having failed to make those
allegations stick, MEEB says McDermott is now impermissibly
"attempt[ing] to 'recast' his theory of liability solely under 15
U.S.C. § 1692f, previously having asserted that the alleged
underlying conduct violated various other provisions of the FDCPA."
Id. at 27.
Having reviewed the record, we agree with MEEB that
McDermott's 15 U.S.C. § 1692f(1) excessive fees theory has been
advanced for the first time on appeal. Following the six-day bench
trial, the magistrate judge ordered each side to submit a posttrial
brief of no more than 25 pages detailing their legal
positions and requests for findings of fact and rulings of law.
McDermott filed a 37-page brief, which included a footnote seeking
to incorporate by reference all other legal arguments it raised
throughout the history of this case. See Pl's Post-Trial Brief,
Dist. Ct. Docket Entry 60 at 2. In a docket order, the magistrate
judge allowed the oversized brief, with the exception of that
footnote. See Dist. Ct. Docket Entry 62. McDermott has not
appealed this particular ruling, so we will concentrate only on the
theories McDermott espoused in his post-trial brief.
From his opening line, McDermott took the position that
he proved at trial that MEEB's "main objective" in its activities
"was to run up its attorneys fees to Pondview, which Pondview then
assessed to McDermott, and which MEEB then collected from
McDermott's mortgagees in part." Pl.'s Post-Trial Br. at 1. He
went on to reference 15 U.S.C. § 1692f(1), but that reference is in
concert with 15 U.S.C. § 1692d, which prohibits debt collectors
from "engag[ing] in any conduct the natural consequence of which is
to harass, oppress, or abuse any person in connection with the
collection of a debt." He then told the magistrate judge that MEEB
violated these two statutes when
it engaged in a convoluted collection
procedure which inevitably caused
miscommunication, lack of communication,
confusion, and acrimony that escalated
litigation costs and served as a pretext for
MEEB to evade its obligation under 15 U.S.C.
§ 1692h to apply payments of McDermott's debt
as he directed and not to debts he disputed .
. . and for MEEB to provide McDermott with
communications which were illegible,
deceptive, and incomprehensible in violation
of 15 U.S.C. §§ 1692d, 1692e, and 1692f.
Id. These arguments smack of Chapter 93A claims of unfair and
deceptive conduct. Indeed, the title of each and every subsection
in McDermott's post-trial brief referred to MEEB's "bad faith."
15 U.S.C. § 1692f(1), however, is aimed at something else
entirely. The statute prohibits attempts to collect any amount
"unless such amount is expressly authorized by the agreement
creating the debt or permitted by law." 15 U.S.C. § 1692f(1).
Although McDermott successfully asserted claims that MEEB violated
other provisions of the FDCPA, nowhere in his post-trial brief does
he take the position that the amount of his debts were not
authorized by the condominium agreement.18 Further, he did not even
hint at the multi-step pathway to a § 1692f(1) violation that he
advances in this appeal. Instead, following trial McDermott
focused his arguments on MEEB's alleged bad faith and intentional
violations of federal and state law.
In this Circuit, "it is a virtually ironclad rule that a
party may not advance for the first time on appeal either a new
argument or an old argument that depends on a new factual
predicate." Cochran v. Quest Software, Inc., 328 F.3d 1, 11 (1st
Cir. 2003); see also United States v. Slade, 980 F.2d 27, 30 (1st
Cir. 1992) ("It is a bedrock rule that when a party has not
18 As the magistrate judge noted in addressing one of
McDermott's other arguments, "[i]t is not abusive to collect or
charge the costs of an ordinary collection action where, as here,
the condominium documents gave Pondview the ability to charge those
costs to [McDermott]." McDermott, 911 F. Supp. 2d at 77.
presented an argument to the district court, she may not unveil it
in the court of appeals."). Our review of the record leaves us
with no doubt that McDermott's 15 U.S.C. § 1692f(1) liability
theory in this appeal was never raised to the magistrate judge.
Accordingly, we will not consider it further.
C. Multiple Damages for Willful or Intentional Conduct
McDermott next says the magistrate judge should have
multiplied the damages award thanks to MEEB's knowing violations of
Chapter 93A. Chapter 93A, § 9(3) requires a court to double or
treble a plaintiff's damages if that court finds a defendant's
violation of Chapter 93A was "a willing or knowing violation" of
Chapter 93A, § 2.
To get here, McDermott argues that the magistrate judge
committed an error of law when she found MEEB was not obligated
under Mass. Gen. Laws ch. 183A to send pre-suit notices to
McDermott's mortgagees. According to McDermott, had the magistrate
judge gotten this legal ruling right, it would have provided a
basis for finding that MEEB willfully or intentionally violated
Chapter 93A since it was aware of his mortgagees' names and
addresses, thereby bringing the damages multiplier into play.
Separately, McDermott argues that the magistrate judge clearly
erred when she considered the evidence and found MEEB's FDCPA
violations (which resulted in per se Chapter 93A liability) were
not in bad faith. The judge, he says, should have found MEEB
willfully violated Chapter 93A and awarded multiple damages for
MEEB urges us to affirm the magistrate judge's
determination that it did not act in bad faith. MEEB first says
the magistrate judge was correct when she determined that MEEB
didn't have to send any pre-suit notices under Chapter 183A. Thus,
Chapter 183A provides no basis for imposing multiple damages in
MEEB's view. With respect to its purported bad faith, MEEB points
out that the magistrate judge, in her initial decision, imposed per
se Chapter 93A liability only, explicitly finding MEEB had not
acted in bad faith or intentionally violated the law. This
conclusion, MEEB asserts, was based on the evidence at trial and
should not be uprooted on appeal.
We see no basis for reversal on this record.
1. Chapter 183A
The interpretation of Chapter 183A's requirements
presents a legal question, which we review de novo. The specific
provision upon which McDermott relies, Chapter 183A, § 6(c)
contains the following relevant language:
When any portion of the unit owner's share of
the common expenses has been delinquent for at
least sixty days . . . the organization of
unit owners shall send a notice stating the
amount of the delinquency to the unit owner by
certified and first class mail. The
organization of unit owners shall also send a
notice stating the amount of the delinquency
to the fist mortgagee by certified and first
class mail, provided, that the first mortgagee
has informed the organization of unit owners
of its name and mailing address.
Mass. Gen. Laws ch. 183A, § 6(c).
The key language in this passage is the clear statement
establishing that the notice requirement is triggered only if "the
first mortgagee has informed the organization of unit owners of its
name and mailing address." Id. Per the unambiguous statutory
language, such notice by the mortgagee essentially allows a
mortgagee to "opt in" to the receipt of deficiency notices. While
McDermott argues that the evidence shows MEEB was aware of his
mortgagee's identity and address, there is no evidence in the
record that any mortgagee ever "informed" MEEB of this information,
which is required to bring the statute into play.
McDermott, without providing any convincing reason to do
so, asks us to simply ignore this requirement and pick and choose
to apply only that statutory language which benefits him. But
where, as here, a Massachusetts "statute is unambiguous, our
function is to enforce the statute according to its terms."
Reading Co-Op. Bank v. Suffolk Constr. Co., Inc., 984 N.E.2d 776,
780 (Mass. 2013). We therefore decline McDermott's invitation to
rewrite the statute to facilitate the outcome he desires.
Accordingly, we conclude from the plain language of the
statute that the magistrate judge did not commit an error of law in
finding that MEEB was not required to send pre-suit notices to any
mortgagee that had not informed MEEB of its name and address.
McDermott may not rely on Chapter 183A in an attempt to demonstrate
that MEEB acted in bad faith.
2. MEEB's alleged bad faith
McDermott is now left with his argument that the
magistrate judge clearly erred when she found that MEEB did not
intentionally violate Chapter 93A and that its actions were not
motivated by bad faith, and again when she declined to award
multiple damages. "Ultimately, [Chapter] 93A ties liability for
multiple damages to the degree of the defendant's culpability."
Kattar, 739 N.E.2d at 259. A reviewing court will only overturn a
trial judge's finding in this regard if it was "clearly erroneous."
Id. (citing Clegg v. Butler, 676 N.E.2d 1134, 1139 (Mass. 1997);
see also Smith, 76 F.3d at 420 (Where a trial judge's finding as to
"an actor's motivation" following a bench trial is "plausible,
appellate review is at an end."). McDermott faces an uphill climb
on this claim, and he is unable to reach the summit.
The magistrate judge had a front-row seat to each
witness's testimony on direct and cross-examination over the course
of the six-day bench trial. Her 203-page written decision
summarized the testimony and set forth her credibility
determinations.19 She concluded MEEB did not conduct itself in such
19 The magistrate judge made multiple findings in this regard.
For example, she found McDermott's testimony about why he refused
to pay certain assessments was "self serving" and "not credible,"
and that his testimony that he did not receive a letter MEEB sent
to him by certified and first-class mail was "not credible" too.
a manner as to intentionally pump up its legal fees, and that it
was instead motivated by its desire to zealously represent
Pondview's interests. The magistrate judge further noted that in
at least one instance, MEEB's incorrect statement about the amount
owed by McDermott went in McDermott's favor (i.e., MEEB said he
owed less than he really did), which supports her finding that MEEB
was not simply trying to increase its legal fees.
At the end of the day, the magistrate judge found that
MEEB acted in good faith, that it did not willfully or knowingly
violate Chapter 93A, and that its "conduct was neither unfair nor
deceptive." On this record, we are unable to say the magistrate
judge's findings were clearly erroneous. And in the absence of
intentional or bad faith violations of Chapter 93A, MEEB is not
liable for double or treble damages.
* * *
The magistrate judge later commented that McDermott's "demeanor
. . . markedly changed on cross examination."
Outcome: In light of the foregoing, the magistrate judge's order
with respect to MEEB's Rule 59(e) motion to reconsider and/or alter
and amend the judgment is hereby reversed to the extent the
magistrate judge determined MEEB is not liable under Chapter 93A.
We therefore remand this matter to the magistrate judge with
instructions to reinstate the original judgment in McDermott's
favor on his Chapter 93A count. The magistrate judge's resolution
of the parties' Rule 59(e) motions is affirmed in all other
respects. The parties shall bear their own costs.