Primarque Products Co., Inc. v. Williams W. & Witt's Prod. Co.

19-1463P

2021 | Cited 0 times | First Circuit | February 12, 2021

United States Court of Appeals For the First Circuit

Nos. 19-1463, 19-1484

PRIMARQUE PRODUCTS CO., INC.,

Plaintiff, Appellant / Cross-Appellee,

v.

WILLIAMS WEST & WITTS PRODUCTS COMPANY d/b/a INTEGRATIVE FLAVORS,

Defendant, Appellee / Cross-Appellant.

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

[Hon. Timothy S. Hillman, U.S. District Judge]

Before

Thompson and Barron, Circuit Judges.*

Andrew Lawlor, with whom Fedele and Murray, P.C. was on brief, for Appellant/Cross-Appellee. Rodney L. Lewis, with whom Polsinelli, P.C. was on brief, for Appellee/Cross-Appellant.

* Judge Torruella heard oral argument in this matter and participated in the semble, but he did not participate in the issuance of the panel's opinion in this case. The remaining two panelists therefore issued the opinion pursuant to 28 U.S.C. § 46(d).

February 12, 2021

BARRON, Circuit Judge. The appeal and cross-appeal at

issue here stem from litigation in the District of Massachusetts

that followed the termination, without advance notice, of a thirty-

nine-year business relationship between a company that

manufactured and supplied soup base products and a company that

distributed them. Following a five-day trial, the jury awarded

the distributor $255,000 in total damages for its Massachusetts-

law breach of contract and tortious interference with business

relations claims against the manufacturer, although the District

Court denied the distributor's motion for prejudgment interest on

those damages. The District Court also granted summary judgment

to the manufacturer on the distributor's claim against it under

Chapter 93A of the Massachusetts Consumer Protection Act, Mass.

Gen. Laws ch. 93A ("Chapter 93A"), and to the manufacturer on its

counterclaim for breach of contract under Massachusetts law, for

which the District Court awarded the manufacturer $97,843.22 in

damages, plus prejudgment interest. The distributor now appeals

from various of the District Court's pre- and post-verdict rulings,

while the manufacturer cross-appeals. We reverse in part and

vacate in part in the distributor's appeal, and we affirm in the

manufacturer's cross-appeal.

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I.

A.

The following facts, which were supportably found by the

District Court both at summary judgment and in its rulings on

certain post-trial motions, are undisputed on appeal. Primarque

Products Co. ("Primarque"), the appellant, is a Massachusetts-

based distributor of food products, including soup base products.

Williams West & Witts Products Co. d/b/a Integrative Flavors

("WWW"), the cross-appellant, is an Indiana-based manufacturer and

supplier of soup base products that is incorporated in Illinois.

Primarque and WWW have conducted business with each another since

1976.

Primarque and WWW briefly entered into written

distribution agreements in, respectively, 1987 and 1990, but, by

1993, each of those agreements had terminated. After the period

in which those agreements were in effect, however, the parties

continued to do a large amount of business with each other.

Their repeated transactions during this period involved

Primarque as a distributor sending a purchase order to WWW

detailing the desired soup base type, quantity, cost, method of

shipping, and delivery location; WWW as a manufacturer and supplier

filling the order and invoicing Primarque; Primarque paying WWW

for what it had been invoiced; and Primarque reselling the products

that it purchased from WWW to a variety of retail customers. The

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parties' transactions during this period also involved what the

parties referred to as the "Drop Ship Arrangement," pursuant to

which WWW shipped soup base products directly to certain retail

customers known as the "Drop Ship Customers" that had purchased

soup base products through Primarque.

The Drop Ship Arrangement relieved Primarque, as a

distributor, of the hassle of receiving, storing, and re-shipping

the soup base products; and this practice, in turn, made

Primarque's pricing for those products more competitive with its

retail customers. WWW, however, did not during this period

directly solicit business from Drop Ship Customers. Moreover, if

those customers made inquiries with WWW about directly purchasing

its soup base products, WWW referred them to Primarque. Primarque,

for its part, did not solicit business from customers buying soup

base products from WWW directly.

Primarque did sell other suppliers' soup base products

to certain of its retail customers, but it still was WWW's largest

purchaser of those products. WWW, in turn, was Primarque's largest

supplier of them. As an indication of the scale of the business

that the two parties did with each other, in 2014, Primarque

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purchased approximately $1,313,175.59 worth of soup base products

from WWW.1

The events that precipitated the dispute that gives rise

to these appeals began in May of 2014, when Primarque, without

notifying WWW, started meeting with competitors of WWW about their

supplying Primarque with "replacement" soup base products for

Primarque to sell to its retail customers. Primarque signed

memoranda of understanding with two of those competitors, Major

Foods and Eatem. As Major Foods and Eatem developed replacement

products for Primarque to distribute, Primarque began relying on

them to supply it with some of the soup base products that it had

previously relied on WWW to supply.

On March 9, 2015, WWW reviewed its sales numbers and

identified certain downward trends related to its business with

Primarque. The next day, WWW sent an e-mail to Jack Barron,

Primarque's owner and president, in which it inquired whether

Primarque's business was down generally or whether it was

transitioning some of its business away from WWW. Barron replied:

"[a] combination of both."

Two days later, on March 12, 2015, WWW notified Primarque

that it would no longer be selling its products to Primarque,

1 This was about a $60,000 increase from calendar year 2013, when Primarque purchased $1,254,674.56 worth of soup base products from WWW.

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effective that day. On the same day, WWW informed the Drop Ship

Customers that Primarque was no longer distributing WWW products

and that these customers could now obtain soup base products

directly from WWW at lower prices. WWW thereafter began selling

soup base products directly to some of the Drop Ship Customers.

B.

In response to WWW's actions, Primarque filed suit in

Massachusetts state court on March 19, 2015. WWW then removed the

case to the United States District Court for the District of

Massachusetts based on diversity jurisdiction.

Primarque's complaint asserted four claims against WWW

under Massachusetts law: breach of contract (Count I), promissory

estoppel (Count II), tortious interference with business relations

(Count III), and a violation of Chapter 93A (Count IV). Primarque

sought damages based on lost profits from sales that it alleged

that it would have made to the Drop Ship Customers in the absence

of WWW's abrupt termination of their relationship, including sales

that Primarque alleged that it would have made to those customers

after the filing of the complaint.

WWW in turn filed a counterclaim under Massachusetts law

for breach of contract. WWW based this claim for breach of

contract on Primarque's conceded withholding of payment on a final

shipment of $97,843.22 worth of goods that it had received from

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WWW, for which WWW sought the unpaid amount plus prejudgment

interest.

C.

Following discovery, WWW moved for summary judgment in

its favor as to both Primarque's claims against it and its

counterclaim. On March 29, 2018, the District Court ruled that

(1) WWW was entitled to summary judgment on its counterclaim for

breach of contract and that it was entitled to $97,843.22 in

damages plus prejudgment interest; (2) WWW was entitled to summary

judgment on Primarque's Chapter 93A claim because there was not "a

scintilla of evidence that WWW engaged in any unfair[] or deceptive

act or practice"; and (3) WWW was also entitled to summary judgment

on Primarque's promissory estoppel claim and as to substantial

aspects of Primarque's breach of contract and tortious

interference with business relations claims. See Primarque Prods.

Co. v. Williams W. & Witts Prods. Co., 303 F. Supp. 3d 188 , 191 &

n.1, 205-07, 209 (D. Mass. 2018). But, as to those lattermost

claims, the District Court stated that, even absent a written

agreement, "Massachusetts law would still require WWW to provide

Primarque with reasonable notice of its intent to terminate the

parties' distributorship arrangement," id. at 205, and it further

determined that "there is a question of fact as to whether WWW

improperly terminated the parties' relationship without reasonable

notice," id. at 208.

- 8 - The case went to trial later that year. The District

Court instructed the jury that before it could find in Primarque's

favor on the issue of whether WWW had provided it with reasonable

notice of termination, the jury would first have to determine

"whether Primarque and WWW had a contract for the sale of soup

base" "under which . . . WWW would prove periodic shipments of

goods to" Primarque -- a determination which the jury could make

in view of the "conduct [of] both parties." On June 1, 2018, the

jury unanimously found by special verdict that WWW and Primarque

did "have a contract for the continuing purchase and sale of soup

base" and that "WWW, without excuse, breach[ed] its contract with

Primarque by failing to provide reasonable notice of its

termination of that contract." The jury also found that "WWW

intentionally and improperly interfere[d] with Primarque's

advantageous business relations with its drop ship customers" and

that this interference "induce[d] such customers to stop doing

business with Primarque." The jury determined that Primarque was

entitled to damages amounting to $51,000 on the breach of contract

claim and $204,000 on the tortious interference with business

relations claim. See Primarque Prods. Co. v. Williams W. & Witts

Prod. Co., 368 F. Supp. 3d 192 , 195 (D. Mass. 2019).

WWW thereafter moved under Fed. R. Civ. P. 50(b) for the

District Court to set aside the jury's verdict on Primarque's

breach of contract and tortious interference with business

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relations claims, having earlier moved at the close of Primarque's

case-in-chief under Fed. R. Civ. P. 50(a) for the District Court

to grant WWW judgment as a matter of law on those two claims. The

District Court denied the motions but granted a separate request

by WWW under Fed. R. Civ. P. 59(e) to reduce the jury's award of

damages to Primarque on those claims by $51,000, as the District

Court agreed with WWW that the jury's $51,000 damages award on

Primarque's breach of contract claim was duplicative of its

$204,000 damages award on Primarque's tortious interference with

business relations claim. Id. at 198-99. The District Court also

entered judgment in favor of WWW on its counterclaim for breach of

contract, awarding WWW $97,843.22 in damages plus prejudgment

interest on that claim. Id. at 196 n.3, 202.

The District Court next addressed a request by Primarque

to "offset" the damages awarded to WWW on its counterclaim from

the damages that had been awarded to Primarque on its claims

against WWW. Id. at 199-200. In rejecting that request, the

District Court first determined that Primarque's $204,000 damages

award on its tortious interference with business relations claim

did not qualify for prejudgment interest and then denied

Primarque's offset request as "a blatant attempt to avoid paying"

the prejudgment interest that Primarque owed WWW on the

counterclaim. Id. at 200.

- 10 - Primarque appealed, contending that the District Court

erred in (1) finding that the jury's damages award on Primarque's

breach of contract claim against WWW was duplicative of its damages

award on Primarque's tortious interference with business relations

claim against WWW; (2) failing to award Primarque prejudgment

interest for the damages on its tortious interference with business

relations claim and, relatedly, rejecting its offset request; and

(3) granting summary judgment to WWW on Primarque's Chapter 93A

claim. WWW cross-appealed, contending that the District Court

erred by (1) denying its motion for judgment as a matter of law as

to Primarque's breach of contract claim; (2) denying its motion

for judgment as a matter of law as to Primarque's tortious

interference with business relations claim; and (3) denying its

request for alternative relief under Fed. R. Civ. P. 59(e) to

reduce Primarque's total damages award for those claims to, at

most, $39,017, on the ground that any larger award of damages would

be unduly speculative.

II.

Massachusetts law applies to the tort and contract-law

issues in this case. See Performance Trans., Inc. v. Gen. Star

Indem. Co., 983 F.3d 20 , 24 (1st Cir. 2020) (citing Dukes Bridge

LLC v. Beinhocker, 856 F.3d 186 , 189 (1st Cir. 2017)). Our review

of the District Court's rulings on the motions for summary judgment

and judgment as a matter of law is de novo. See Zabala-De Jesus

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v. Sanofi-Aventis P.R., Inc., 959 F.3d 423 , 427 (1st Cir. 2020);

Hendricks & Assocs., Inc. v. Daewoo Corp., 923 F.2d 209 , 214 (1st

Cir. 1991). We review "grants and denials of Rule 59(e)

motions . . . only for abuse of discretion," Marie v. Allied Home

Mortg. Corp., 402 F.3d 1 , 7 n.2 (1st Cir. 2005) (citing Venegas–

Hernandez v. Sonolux Recs., 370 F.3d 183 , 190 (1st Cir. 2004)),

but, in the course of that review, we review issues of law de novo,

see Crowe v. Bolduc, 365 F.3d 86 , 90 (1st Cir. 2004).

III.

We begin with WWW's cross-appeal, because it concerns,

among other things, a threshold question: whether there was a

sufficient basis for a reasonable juror to find that there was a

contract between the parties that contained a requirement to

provide reasonable notice of termination of the contract.

Specifically, WWW claims that the District Court erred in denying

its motion for judgment as a matter of law on Primarque's breach

of contract claim because, in its view, "[t]he undisputed evidence

prove[d] there was no binding distribution agreement between the

parties." We thus start with that challenge before turning to the

others that WWW brings in its cross-appeal.

A.

As we noted at the outset, the District Court granted

WWW summary judgment on Primarque's breach of contract claim to

the extent that this claim rested on a theory that the parties had

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an express contractual agreement. In doing so, the District Court

observed that it was undisputed that the parties "did not have a

written agreement" for the distribution and supply of soup base

products, Primarque, 303 F. Supp. 3d at 205 , and the District Court

also determined in ruling on WWW's motion for summary judgment on

that claim that, as a matter of law, there also was no enforceable

oral agreement in place between them , id. at 205-06.2 As we also noted at the outset, however, the District

Court did not understand itself to have granted WWW summary

judgment on Primarque's breach of contract claim in full. Indeed,

2 As the District Court explained, Primarque allege[d] that the parties had an oral non-solicitation agreement whereby WWW would indefinitely refrain from doing business directly with Primarque's customers. . . . However, . . . the terms of the alleged non- solicitation agreement are not clear: did WWW agree to only refrain from dealing with Drop Ship Customers, and if so, was it only Drop Ship Customers as to who WWW was Primarque's only soup base supplier? . . . . Primarque [also] contend[ed] that WWW orally promised to give 90 days' notice of its intent to end the parties' distributorship arrangement. . . . However, . . . Primarque itself cannot define the terms of the agreement. At times, the terms suggest that notice was required only if WWW were sold or closing. At other times, Primarque suggests that the notice was required if WWW intended to stop supplying product to it. Primarque, 303 F. Supp. 3d at 205 -06.

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in the course of denying WWW's post-trial motion for judgment as

a matter of law, the District Court expanded on its summary

judgment rationale, explaining that, "[i]n ruling on WWW's motion

for summary judgment, I found that [while] there was no binding

written or oral agreement between the parties . . . the parties'

relationship was [still] governed by Mass. Gen. L[aws] ch. 106,

§ 2-309," a provision of the Massachusetts Uniform Commercial Code

("Massachusetts UCC") under which "a contract which is terminable

at the will of either party requires reasonable termination

notice." Primarque, 368 F. Supp. 3d at 197 (quoting Cherick

Distribs., Inc. v. Polar Corp., 669 N.E.2d 219 , 220 (Mass. App.

Ct. 1996)); see also Mass. Gen. Laws ch. 106, § 2-309(3)

(hereinafter "Mass. UCC § 2-309(3)").3 Thus, the District Court

explained, it had allowed the breach of contract claim to go the

jury to the extent that claim was predicated on a theory that WWW

had breached the reasonable notice term imputed by Mass. UCC § 2-

309(3). See Primarque, 303 F. Supp. 3d at 205 -06; Primarque, 368

F. Supp. 3d at 197 .

3The text of this statute provides: "Termination of a contract by one party except on the happening of an agreed event requires that reasonable notification be received by the other party and an agreement dispensing with notification is invalid if its operation would be unconscionable." Mass. Gen. Laws ch. 106, § 2-309(3). The parties do not dispute that the Massachusetts UCC is applicable as a general matter given that the parties' business arrangement was one "relating to the present or future sale of goods," namely, soup base products. Mass. Gen. Laws ch. 106, § 2- 106(1).

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After Primarque presented its case-in-chief, but before

the jury rendered its verdict, WWW moved for judgment as a matter

of law under Fed. R. Civ. P. 50(a) as to the portion of Primarque's

breach of contract claim that the District Court understood itself

to have held survived WWW's summary judgment motion on it. The

District Court reserved ruling on that Rule 50(a) motion pending

the jury's verdict. The jury then determined that WWW was liable

on that breach of contract claim -- finding, by special verdict,

that Primarque and WWW "ha[d] a contract for the continuing

purchase and sale of soup base" and that "WWW, without excuse,

breach[ed] its contract with Primarque by failing to provide

reasonable notice of its termination of that contract" -- and

awarded damages on that claim to Primarque of $51,000. At that

point, WWW renewed its motion for judgment as a matter of law on

that claim under Fed. R. Civ. P. 50(b).

WWW contends on cross-appeal that the District Court

erred in denying its post-trial motion for judgment as a matter of

law. In conducting our de novo review of the District Court's

denial of that motion, we must consider whether "'the evidence

could lead a reasonable person to only one conclusion,' namely,

that the moving party was entitled to judgment." Hendricks, 923

F.2d at 214 (citations omitted) (quoting Conway v. Electro Switch

Corp., 825 F.2d 593 , 598 (1st Cir. 1987)). We conclude that the

District Court did not err in denying the motion.

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1. In arguing that the District Court did err, WWW contends

as a threshold matter that the parties' course of dealing --

including what WWW calls their repeated transactions by means of

"[s]uccessive and consistent purchase orders and invoices" --

cannot on its own suffice to support the jury's finding that the

parties had a contract for the continuing purchase and sale of

soup base products, let alone that the parties had one imposing a

reasonable notice of termination requirement.4 In pressing this

contention, WWW does not dispute that, as the District Court

concluded, Massachusetts law -- specifically, Mass. UCC § 2-309(3)

-- makes clear that a reasonable notice of termination requirement

may be imputed as a term into a contract for the distribution of

goods even if the contract does not expressly include one, at least

so long as the parties do not expressly agree to dispense with

that imputed term. See Primarque, 368 F. Supp. 3d at 197 ; see

also Mass. UCC § 2-309(3). Instead, WWW contends that the statute

which provides the legal basis for imputing such a term into an

4 Although Primarque suggests that WWW waived this argument -- a version of which was made by WWW at summary judgment, in its motion for judgment as a matter of law under Fed. R. Civ. P. 50(a), and in its renewed motion for judgment as a matter of law under Fed. R. Civ. P. 50(b) -- by not adequately objecting to a particular jury instruction, we do not need to pause to address that contention because WWW's argument, in any event, "is wrong on the merits." United States v. Leavitt, 925 F.2d 516 , 517 (1st Cir. 1991).

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otherwise silent distribution agreement -- Mass. UCC § 2-309(3)

-- "is simply inapplicable" here, because "there was no legally-

binding distribution agreement between the parties."

WWW is right that Mass. UCC § 2-309(3), by its text,

presupposes the existence "of a contract" before imputing a

"reasonable notification" term. Id. (emphasis added). WWW identifies no authority, however, to support the conclusion that

a distribution "contract" under this provision cannot be an

implied-in-fact one under Massachusetts law.5 And, indeed, the

Massachusetts UCC defines a "contract" as "the total legal

obligation that results from the parties' agreement," Mass. Gen.

Laws ch. 106, § 1-201(12), and further defines "agreement" as "the

5"[T]he law of contracts in most, if not all, jurisdictions long has employed a process by which agreements . . . may be 'implied.'" Jago v. Van Curen, 454 U.S. 14 , 18 (1981) (quoting Perry v. Sindermann, 408 U.S. 593 , 601-02 (1972)). Massachusetts follows the majority rule in this regard. See, e.g., LiDonni, Inc. v. Hart, 246 N.E.2d 446 , 449 (Mass. 1969) ("In the absence of an express agreement, a contract implied in fact may be found to exist from the conduct and relations of the parties."); Popponesset Beach Ass'n v. Marchillo, 658 N.E.2d 983 , 987 (Mass. App. Ct. 1996) ("An implied-in-fact contract comes into being when, notwithstanding the absence of a written agreement or verbal agreement expressing mutual obligations, the conduct or relations of the parties imply the existence of a contract." (citing Restatement (Second) of Contracts § 4 cmt. a, illus. 1-2 (1981)); see also Gen. GMC, Inc. v. Volvo White Truck Corp., 918 F.2d 306 , 309 (1st Cir. 1990) (applying Massachusetts law) (reversing grant of summary judgment on breach of contract claim where "[t]here [wa]s sufficient evidence on the record to show that an implied contract may have been developed through the parties' course of dealing").

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bargain of the parties in fact, as found in their language or

inferred from other circumstances, including course of performance

[or] course of dealing," id. § 1-201(3) (emphasis added); see also

Restatement (Second) of Contracts § 4 cmt. a (1981) (reflecting

that this definition of "agreement" is the means by which the

Uniform Commercial Code recognizes implied-in-fact contracts).

Similarly, the Massachusetts UCC states that "[a] contract for

sale of goods may be made in any manner sufficient to show

agreement, including conduct by both parties which recognizes the

existence of such a contract." Mass. Gen. Laws ch. 106, § 2-

204(1) (emphasis added); see also id. § 2-204, Official Comment

(noting Massachusetts UCC's "basic policy of recognizing any

manner of expression of agreement, oral, written or otherwise"

(emphasis added)).

Nor are we persuaded by WWW's contention that Gettens

Electric Supply Co. v. W.R.C. Properties, Inc., 489 N.E.2d 217 (Mass. App. Ct. 1986), requires that we conclude that the District

Court erred in determining that Mass. UCC § 2-309(3) could apply

here, even though the only evidence of there being a contract at

all was the evidence of the parties' course of dealing. That case

interpreted the statutory term "written contract" in a different,

non-UCC provision. Mass. Gen. Laws ch. 254, § 4 (emphasis added);

see Gettens, 489 N.E.2d at 219 ("The written contract referred to

in th[is] portion of § 4 . . . seem[s] to us to refer to a written

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contract . . . ."). It thus has no bearing on whether Mass. UCC

§ 2-309(3)'s unqualified reference to a "contract" encompasses

implied-in-fact contracts.6

2. WWW also argues that the District Court's pre-trial

rulings effectively precluded the jury from concluding, as it did,

that the parties had a contract within the meaning of Mass. UCC

§ 2-309(3). WWW contends that, for this reason as well, the

District Court erred in declining to grant its motion for judgment

as a matter of law on Primarque's breach of contract claim. But,

again reviewing de novo, see Hendricks, 923 F.2d at 214 , we find

no error.

WWW points to the District Court's determination in

rejecting WWW's motion for summary judgment on Primarque's breach

of contract claim that there was no enforceable written or oral

agreement between the parties. See Primarque, 368 F. Supp. 3d at

196 . It further points to the District Court's decision to grant

Other cases invoked by WWW do not call this reading of § 2- 6

309(3) into question; indeed, they tend to support it. See Teitelbaum v. Hallmark Cards Inc., 520 N.E.2d 1333 , 1336 (Mass. App. Ct. 1988) (holding that the performance of an oral agreement would be "governed essentially by the [reasonable notice] provisions of [Mass. UCC] § 2-309," without suggesting that a different result would obtain for an implied-in-fact agreement); RGJ Assocs., Inc. v. Stainsafe, Inc., 300 F. Supp. 2d 250 , 251 (D. Mass. 2004) (applying Massachusetts law) (holding that claim for breach of an "unwritten requirements contract" was "governed by section 2-309").

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a motion in limine in favor of WWW, which had requested that the

District Court bar Primarque from "mention[ing], refer[ing]

to . . . or attempt[ing] to convey to the jury in any manner

regarding any alleged written or oral agreement between Primarque

and WWW" (emphasis altered). WWW contends that these rulings

"confirmed there was no agreement between the parties . . . oral,

written or otherwise," (emphasis added). WWW thus argues that

these rulings require the conclusion that no reasonable juror could

have found in Primarque's favor on the breach of contract claim.

It is true that, in ruling on WWW's summary judgment

motion, the District Court determined that there was no written or

oral agreement between the parties. See Primarque, 368 F. Supp.

3d at 196. But, it did not purport in doing so to preclude

Primarque from presenting course-of-dealing evidence of the sort

that would allow the jury to conclude that the parties had an

implied-in-fact contract within the meaning of Mass. UCC § 2-

309(3). Nor did it purport to do so in granting the motion in

limine. Indeed, the District Court's jury instructions expressly

provided that the jury could "infer[]" the existence of a

distribution contract "from the conduct of the parties." Thus,

there is no merit to this aspect of WWW's challenge.

3. Next, WWW contends that the District Court erred in

denying its motion for judgment as a matter of law on Primarque's

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breach of contract claim because the evidence before the jury

"squarely contradict[ed]" the parties having had an implied-in-

fact distribution contract based on their course of dealing. But,

again, we are not persuaded.

WWW points first to the undisputed fact that the parties

had entered into written distribution agreements that were no

longer in place as of 1993. But, WWW and Primarque continued to

do business with each other thereafter. Thus, we do not see how

the existence of those prior written agreements is preclusive of

a finding that the parties' subsequent, extensive course of dealing

created an implied-in-fact agreement.

In a related vein, WWW points to the undisputed fact

that Primarque had, in 2009 and 2010, requested that WWW enter

into an express agreement with it which would have required WWW to

give Primarque "1 year notice in the event WWW wants to discontinue

selling [certain] products . . . to Primarque" or if WWW decided

to sell its business, and that WWW resisted these overtures. But,

WWW's rejection of the proposed one-year notice term does not

demonstrate that the parties had reached "an agreement dispensing

with" the "reasonable notification" term imputed by Mass. UCC § 2-

309(3). Id. (emphasis added). Thus, this evidence, too, would

not preclude a reasonable juror from finding that the parties had

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an implied-in-fact distribution contract subject to Mass. UCC § 2-

309(3).7

WWW separately asserts, in a single sentence, that there

was an "absence of evidence of a distribution agreement in this

case." But, WWW does not attempt to grapple with the course-of-

dealing evidence that was before the jury. That evidence included

the evidence purporting to show that WWW had continuously supplied

Primarque with soup base products over the course of nearly four

decades; that Primarque was allowed to resell these products under

WWW's label "Cook's Delight"; that the parties had a close working

relationship that involved sharing potentially sensitive business

information, particularly as it concerned the Drop Ship Customers;

and that WWW had previously referred to Primarque, which

distributed the majority of the soup base products it manufactured,

as its "distributor."8 Thus, even if we were inclined to read this

7Similarly, the District Court's ruling at summary judgment that the parties had no "meeting of the minds" on the oral agreements alleged by Primarque, including the allegation that "WWW orally promised to give 90 days' notice of its intent to end the parties' distributorship arrangement," Primarque, 303 F. Supp. 3d at 205, did not purport to preclude the jury from finding, as it reasonably did, that the parties had a distribution contract, by virtue of their course of dealing, which was subject to Mass. UCC § 2-309(3), and that the parties had not reached an agreement dispensing with the imputed reasonable notice of termination term. 8WWW also developed no argument in its opening brief to us -- or, for that matter, in its motions for judgment as a matter of law to the District Court -- that the District Court improperly precluded it from putting on evidence relevant to the jury's determination about the significance of the parties' course of

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cursory assertion about the state of the evidence as a contention

that the course-of-dealing evidence presented during trial was too

thin to permit a reasonable juror to determine that the parties

had an implied-in-fact distribution contract, the argument is

insufficiently developed and so is waived. See United States v.

Zannino, 895 F.2d 1 , 17 (1st Cir. 1990) ("[T]he settled appellate

rule [is] that issues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are

deemed waived.").

4.

Finally, WWW contends that the District Court erred in

denying its motion for judgment as a matter of law on Primarque's

breach of contract claim because, even if there was an enforceable

contract between the parties with an imputed reasonable notice of

termination term, WWW is still not liable.9 WWW advances two

distinct arguments on this front.

First, WWW argues that the trial evidence indisputably

established an antecedent breach of this same term by Primarque.

Here, WWW points to undisputed evidence that Primarque was working

dealing, and WWW similarly has not identified any evidence about the course of dealing that WWW intended to but was unable to present to the jury. As before, we decline to address Primarque's suggestion that 9

WWW waived this argument, given our disposition of the merits. See Leavitt, 925 F.2d at 517 .

- 23 -

with WWW's competitors back in 2014. WWW characterizes this

conduct as Primarque "taking steps to replace WWW as its supplier

without notification." (emphasis added). WWW argues that such

"taking steps" constituted a breach by Primarque of its obligation

to provide reasonable notice to WWW -- assuming that a contract

imposing that obligation was in place by implication. On that

basis, WWW contends that it was excused from having to comply with

the reasonable notice obligation, in the event that such an

obligation existed.10

But, the District Court determined at the summary

judgment stage that the record sufficed to permit a reasonable

juror to find that the parties' course of dealing established that

"Primarque was not obligated to buy its soup base exclusively from

WWW" and that "WWW was aware that Primarque purchased soup base

from other suppliers." Primarque, 303 F. Supp. 3d at 192.

Moreover, the District Court similarly determined at the summary

judgment stage that the record permitted a reasonable juror to

find that Primarque was continuing to make substantial purchases

from WWW when WWW terminated the parties' relationship. Id. at

201-02. Indeed, the District Court explained in that regard that

WWW does not argue on appeal that its obligation to comply 10

with the reasonable notice term imputed by Mass. UCC § 2-309(3) was excused by virtue of Primarque's having breached any other aspect of the parties' implied-in-fact distribution agreement, aside from Primarque's purported antecedent breach of the reasonable notice of termination term.

- 24 -

the record supportably showed that: in 2013, before Primarque

reached out to WWW's competitors, Primarque had purchased

approximately $1,254,674.56 in soup base products from WWW; in

2014, the year when Primarque began working with those competitors,

it still purchased $1,313,175.59 of soup base products from WWW (a

$60,000 increase from 2013); and then from February 6, 2015 to

March 12, 2015 -- "the last monthly period that WWW sold soup base

to Primarque" -- Primarque purchased $97,843.22 of soup base

products from WWW, an amount which, if annualized, constituted

around 89% of Primarque's total purchases from 2014. See id.

WWW makes no argument that the record fails supportably

to show as much. For that reason, we see no basis for rejecting

the conclusion that a reasonable juror could find that in early

2015 Primarque was continuing to purchase substantial amounts of

soup base products from WWW -- albeit around 11% less than it had

purchased in 2014 -- and that the parties' implied-in-fact contract

was not one that precluded Primarque from working with other

suppliers, because it was not an exclusive arrangement. Thus, we

also see no basis for concluding that the record indisputably

showed that Primarque's "taking steps" to line up alternative

suppliers in 2014 itself constituted "termination" of the parties'

implied-in-fact distribution agreement, such that Primarque was

obligated to give WWW reasonable notice before engaging with them.

See Mass. UCC § 2-309(3); Primarque, 368 F. Supp. 3d at 197 -98.

- 25 -

Second, WWW contends that its provision of same-day

notice was reasonable under the circumstances. But, here, again,

we agree with the District Court that a reasonable juror could

have found on this record that WWW's provision of same-day notice

of termination was unreasonable under the circumstances. See

Primarque, 368 F. Supp. 3d at 197 -98; see also, e.g., Cherick

Distribs., Inc. v. Polar Corp., 669 N.E.2d 218 , 220 (Mass. App.

Ct. 1996) (affirming jury's conclusion "that four days' notice was

unreasonable" under § 2-309(3)).

In challenging that conclusion, WWW emphasizes that "the

reasonableness of the notice of termination is measured in terms

of the amount of time 'as will give the other party reasonable

time to seek a substitute arrangement.'" RGJ Assocs., Inc. v.

Stainsafe, Inc., 300 F. Supp. 2d 250 , 254 (D. Mass. 2004) (emphasis

omitted) (quoting Mass. UCC § 2–309, Comment 8). But, even so, a

reasonable juror could have determined on this record -- especially

in light of the evidence of Primarque's substantial ongoing

purchases from WWW -- that Primarque did not as of March 2015 have

adequate substitute arrangements in place. And, given that WWW's

notice immediately terminated the parties' business relationship,

it cannot be said that a reasonable juror would have had to have

found that notice of that sort afforded Primarque a reasonable

amount of time to secure such alternative arrangements.

- 26 -

In contending otherwise, WWW relies on Teitelbaum v.

Hallmark Cards Inc., 520 N.E.2d 1333 (Mass. App. Ct. 1988). It

argues that precedent provides support for its contention that its

day-of-termination notice was necessarily reasonable, because it

is undisputed that Primarque had been working with other suppliers

prior to the notice being given.11 WWW points, in particular, to

Teitelbaum's statement that if a "party is able to obtain another

supplier before the performance of the party effecting termination

becomes due, then it necessarily follows that the terminating party

has furnished reasonable notice and will not be responsible for

damages." Id. at 1336. But, the relevant question is not whether Primarque

dealt with any other suppliers and thus could have found other

suppliers post-termination. The relevant question is whether

Primarque could have obtained an alternative supplier post-

termination -- i.e., another one (or ones) that could replace WWW,

taking into account the extent of business that Primarque was doing

with it. Cf. id. at 1337 ("The evidence [wa]s uncontroverted

that, . . . [t]he plaintiffs did not incur harm for lack of a

11 To the extent Primarque contends that WWW waived this specific point by raising it only at summary judgment and then in its renewed motion for judgment as a matter of law under Rule 50(b), we find, as before, that we do not need to address that contention, given that WWW's position "is wrong on the merits." Leavitt, 925 F.2d at 517 .

- 27 -

supplier," as the plaintiffs "had [already] acquired a full line

of inventory . . . ." (emphasis added)).12

Indeed, Teitelbaum itself observes that "[i]n many

cases, the issue of the adequacy of notice of termination will

present a jury question," as "the adequacy of the notice is

generally coextensive with the amount of harm that can be proved

by the party who has incurred the loss of a supplier." Id. at

1336-37. We thus agree with the District Court that this case

"present[ed] a jury question," id. at 1336, and that the jury's

determination as to the unreasonableness of WWW's day-of-

termination notice was not itself unreasonable, see Primarque, 368

F. Supp. 3d at 197 -98.

B.

WWW also takes aim at the District Court's denial of its

motion for judgment as a matter of law on Primarque's tortious

interference with business relations claim. As the District Court

explained in instructing the jury, "Primarque alleged [in support

of this claim] that WWW improperly interfered with [Primarque's]

business relations with its Drop Ship Customers by abruptly

terminating the parties' distributorship agreement without

reasonable notice, which left [Primarque] no time to secure another

12 Even if Teitelbaum were susceptible to WWW's reading of it, it is not an opinion of the Supreme Judicial Court of Massachusetts and, in consequence, would not constitute binding authority here. See Vt. Mut. Ins. Co. v. Zamsky, 732 F.3d 37 , 42 (1st Cir. 2013).

- 28 -

supplier to fulfill its obligations to [the Drop Ship] Customers."

See also Primarque, 368 F. Supp. 3d at 199. And, in the course of

returning a verdict in Primarque's favor on that claim, the jury

found that "WWW intentionally and improperly interfere[d] with

Primarque's advantageous business relations with its drop ship

customers"; that "WWW's intentional and improper interference with

Primarque's relationship with its drop ship customers induce[d]

such customers to stop doing business with Primarque and cause[d]

Primarque to suffer damages"; and that Primarque was therefore

entitled to $204,000 in lost-profit damages.

WWW contends on appeal that the District Court erred in

denying its motion for judgment of law as to the tortious

interference with business relations claim because "WWW's

cessation of [the] business relationship was not tortious as a

matter of law."13 Our review is de novo. See Hendricks, 923 F.2d

at 214 .

WWW's premises this contention, however, on its

insistence that "WWW was under no legal obligation to provide

Primarque with notice." Indeed, WWW concedes that if a reasonable

juror could have "found that WWW prematurely ended its relationship

with Primarque," then it "could find [that] WWW tortiously

Primarque suggests that WWW waived this argument, too, in 13

failing to object to a particular jury instruction, but we do not address that suggestion given our disposition of the merits. See Leavitt, 925 F.2d at 517 .

- 29 -

interfered." Thus, this challenge fails, too, because, as we have

just explained, a reasonable juror could have found that WWW was

under a legal obligation to provide Primarque with reasonable

notice of termination. See Mass. UCC § 2-309(3).

C.

WWW's last challenge in its cross-appeal is that the

District Court erred in denying its motion to alter or amend the

judgment under Fed. R. Civ. P. 59(e) to reduce Primarque's $204,000

tortious interference award to, at most, $39,000. That latter

amount represents, according to WWW, "the amount of Primarque's

lost profits over the 90-day period after March 12, 2015," which

is the date on which WWW terminated the parties' business

relationship.

In rejecting WWW's motion in this regard, the District

Court explained that it concluded that the jury intended to award

Primarque "tortious interference damages represent[ing] one year

of lost profits," Primarque, 368 F. Supp. 3d at 199, on the theory

that Primarque had suffered damages after "WWW unreasonably

terminated the parties' distributorship arrangement without

[adequate] notice and as a result . . . [Primarque] couldn't

fulfill its obligations to its" Drop Ship Customers , id. at 198. Our review is for abuse of discretion. See Marie, 402 F.3d at 7 n.2 ("[G]rants and denials of Rule 59(e) motions are reviewed only

- 30 -

for abuse of discretion." (citing Venegas–Hernandez, 370 F.3d at

190 )). We find none.

WWW argues that the District Court erred here because

the jury found that Primarque's right to reasonable notice of

termination required WWW to give notice of termination ninety days

in advance and, in consequence, any damages for profits lost after

the ninety-day notice period ended "were too speculative [for

Primarque] to recover." That is so, WWW contends, because, after

those ninety days, WWW would have been free, in any event, to stop

selling soup base products to Primarque and also to compete

directly with it for the business of the Drop Ship Customers.

Accordingly, in WWW's view, it is "pure speculation to presume

that Primarque would have retained all of the [same] customers

beyond [ninety] days and sold the same amount of soup bases to

those customers for a year."

Massachusetts law is clear, however, that "[i]n the case

of business torts, an element of uncertainty in the assessment of

damages is not a bar to their recovery." Zimmerman v. Bogoff, 524

N.E.2d 849 , 856 (Mass. 1988) (alterations omitted) (quoting

Datacomm Interface, Inc. v. Computerworld, Inc., 489 N.E.2d 185 ,

196 (Mass. 1986)). This is "especially" true, moreover, "in

circumstances in which the wrongdoer's conduct has caused the

uncertainty of the measurement." A.C. Vaccaro, Inc. v. Vaccaro,

- 31 -

955 N.E.2d 299 , 306 (Mass. App. Ct. 2011) (citing Air Tech. Corp.

v. Gen. Elec. Co., 199 N.E.2d 538 (Mass. 1964)).

Against that legal backdrop, we cannot say, as WWW

contends, that the jury's verdict as to the amount of Primarque's

lost profit attributable to WWW's abrupt termination was "entirely

without foundation," Atl. Rsch. Mktg. Sys., Inc. v. Saco Def.,

Inc., 997 F. Supp. 159 , 170 (D. Mass. 1998), let alone that the

District Court abused its discretion in failing to grant WWW's

Rule 59(e) motion on that basis. WWW is correct that it is possible

that Primarque would have lost some of the Drop Ship Customers'

business in less than a year even if WWW had given timely notice

of termination. That bare possibility, however, does not suffice

to render the jury's award speculative or even necessarily overly

favorable to Primarque. See Rombola v. Cosindas, 220 N.E.2d 919 ,

922 (Mass. 1966) ("While it is possible that no profits would have

been realized . . . that possibility is inherent in any business

venture. It is not sufficient to foreclose [the plaintiff's] right

to prove prospective profits."). That is especially so in light

of the competing possibility that Primarque could have retained

the Drop Ship Customers' business for more than one year and the

fact that, in any event, a juror could reasonably have found that

WWW's tortious conduct "caused the uncertainty of the

measurement." A.C. Vaccaro, 955 N.E.2d at 306 .

- 32 -

In addition, WWW does not argue on appeal that the

$204,000 figure is an inaccurate estimate of the profit that

Primarque would have earned over the course of a year if it had

continued making similar sales to the Drop Ship Customers for that

length of time. Indeed, WWW's own witnesses testified that this

figure -- which was based on the sales that Primarque and then WWW

had made to the Drop Ship Customers from January 1 to December 31,

2015, as well as the price that Primarque had been charging those

customers for those products prior to WWW's termination of their

business relationship -- was accurate at least to that extent.

Thus, the District Court did not abuse its discretion in denying

WWW's Rule 59(e) motion to reduce Primarque's award to $39,000.

IV.

We turn our attention, then, to Primarque's appeal. We

start with Primarque's first challenge to the District Court's

rulings below.

A.

Primarque contends that the District Court erred in

partially granting WWW's Rule 59(e) motion to strike the jury's

$51,000 award on Primarque's breach of contract claim as

duplicative of its $204,000 award on Primarque's tortious

interference with business relations claim. The District Court

reasoned as follows in striking the $51,000 award as duplicative.

The jury intended to award Primarque damages amounting to lost

- 33 -

profits on the tortious interference with business relations claim

incurred over the course of the year that followed the termination

the implied-in-fact agreement, which totaled $204,000 and is the

amount that the jury awarded on that claim. The jury also intended

to award Primarque lost profits for the first ninety days of that

same year on the breach of contract claim, as its award here was

$51,000 and happens to be one-quarter of $204,000 (and thus, in

the District Court's understanding of the jury's intent, one

quarter of the profits lost over the course of the year). See

Primarque, 368 F. Supp. 3d at 199.

But, the District Court reasoned, that being so,

Primarque was necessarily being compensated twice by the jury's

damages award for the profits that it had lost during the first

ninety days of the one-year period that followed WWW's termination

of the parties' agreement. See id. The District Court then

separately determined that the most damages to which Primarque

could have been entitled to on its breach of contract claim was

$39,017. See id. at 198 & n.4. In doing so, it concluded that a

reasonable juror could have found, at most, that this was the

amount of Primarque's lost profit during the ninety-day reasonable

notice period following March 12, 2015. See id. at 198. It then

proceeded to vacate the entirety of the breach of contract award

given that, in its view, even this smaller amount remained

duplicative. See id. at 198 -200, 200 n.5.

- 34 -

We review the District Court's partial grant of WWW's

Rule 59(e) motion for abuse of discretion. See Marie, 402 F.3d at

7 n.2 (citing Venegas–Hernandez, 370 F.3d at 190 ). But, this

"abuse of discretion review is superimposed on the standard of

review the Rule 59(e) judge exercises over the original judgment,"

Venegas-Hernandez, 370 F.3d at 190 , pursuant to which "a district

court may set aside a jury's verdict . . . only if the verdict is

against the demonstrable weight of the credible evidence or results

in a blatant miscarriage of justice," Sanchez v. P.R. Oil Co., 37

F.3d 712 , 717 (1st Cir. 1994). And, to the extent that the District

Court's decision was predicated on the resolution of legal

questions, we review its resolution of those questions de novo.

See Rio Mar Assocs., LP, SE v. UHS of P.R., Inc., 522 F.3d 159 ,

163 (1st Cir. 2008).

The jury was instructed that it could not award damages

for lost profits on the breach of contract claim that were incurred

beyond the reasonable notice period, not to exceed ninety days,

following the termination. But, significantly, it was not

instructed that there was any set temporal bound for the period

for which damages for lost profits could be awarded on the tortious

interference with business relations claim. Moreover, Primarque

notes, correctly, that courts generally "presume[]" that

"jurors . . . follow the trial court's instructions," id. at 163, and that the District Court had instructed the jury at length that

- 35 -

it could not award Primarque "duplicative damages" during the

reasonable notice period on both the tortious interference with

business relations and breach of contract claims.14

Thus, we find persuasive Primarque's contention that the

jury could be understood to have intended for the $51,000 damages

award to cover profits lost during the first ninety days following

WWW's breach of the contract and the $204,000 damages award to

cover the profits lost in the one-year period that followed the

end of those ninety days and that were attributable to WWW's

tortious interference with business relations. Indeed,

Primarque's counsel during closing argument asked the jury for as

much as three years and two months' worth of lost-profit damages

14 The relevant instruction read in full: A plaintiff, such as Primarque, may seek recovery under multiple counts, but may not recover duplicative damages that arise out of the same act or conduct . . . . Thus, in this case, Primarque may not recover twice for the same injury in both contract and tort. Accordingly, if you find that Primarque is entitled to a verdict on both, the breach of contract claim sounding in contract law based on WWW's same day notice of termination, you may not also compensate Primarque on its tortious interference with advantageous business relations claim based on that same underlying . . . conduct. However, if you find that Primarque suffered damages under its tortious interference with advantageous business relations for some period beyond the reasonable notice period, then you may compensate it for lost profit damages if proved and if sustained for a period which exceeds the reasonable notice period. - 36 -

on that latter claim -- stressing evidence which indicated that

Primarque had continued to lose sales to the Drop Ship Customers

from March 2015 through May 2018 at a rate of about $204,000 a

year -- and then called for the jurors to "use your collective

judgment" to determine "how long into the future [Primarque]

reasonably would have kept [its lost] customers" had it been given

reasonable notice of termination.

Given that "[o]n this record, there is no way to

determine what the jury [actually] did," Ramos v. Davis & Geck,

Inc., 224 F.3d 30 , 32 (1st Cir. 2000), we cannot agree with the

District Court that it is "evident" that the jury ran afoul of its

well-crafted instructions on avoiding duplicative damages,

Primarque, 368 F. Supp. 3d at 199.15 Instead, "[a]pplying the

instruction[s] to the facts of this case, [we conclude that] the

15 It is true that the District Court also observed -- and Primarque does not dispute on appeal -- that the jury erroneously awarded Primarque $51,000 in damages on its breach of contract claim rather than $39,017, despite trial evidence establishing that the latter amount was the actual amount of Primarque's lost profits during the ninety-day period following WWW's breach. See Primarque, 368 F. Supp. 3d at 199. But, even accepting the District Court's unchallenged determination that the jury erred in the computation of Primarque's breach of contract damages, that error does not in itself provide a reason to think that, in separately awarding Primarque $204,000 on its tortious interference with business relations claim -- an amount which the parties agree represents the profit that Primarque would have earned had it continued to sell to the Drop Ship Customers over a period of one year -- the jury thereby concluded that Primarque would have continued to transact with the Drop Ship Customers for only nine months after the end of the reasonable notice period rather than twelve.

- 37 -

verdict must be presumed to have" accounted for them. Rio Mar

Assocs., 522 F.3d at 163 . And, with that presumption in place,

the $51,000 award of damages to Primarque on its breach of contract

claim was not duplicative of the damages awarded to it on its

tortious interference with business relations claim. However,

because Primarque does not dispute that it was entitled to at most

$39,017 in breach of contract damages, see Primarque, 368 F. Supp.

3d at 198 & n.4, we direct the District Court to reinstate the

jury's verdict only to that extent.

B.

Primarque next challenges the District Court's decision

to deny its Rule 59(e) motion to alter or amend the judgment and

thus to award Primarque prejudgment interest on its $204,000

damages award on its tortious interference with business relations

claim.16 We review "the district court's determination regarding

the award of prejudgment interest . . . for abuse of discretion,

'but legal issues relating to the prejudgment interest award are

reviewed de novo.'" Companion Health Servs. v. Kurtz, 675 F.3d

16 The District Court concluded that Primarque would be entitled to prejudgment interest on its breach of contract claim to the extent that any damages on that claim were not duplicative of those awarded on the tortious interference with business relations claim. See Primarque, 368 F. Supp. 3d at 200 & n.5. We do not address that ruling here, as neither party asks us to revisit it on appeal.

- 38 -

75, 87 (1st Cir. 2012) (quoting Analysis Grp., Inc. v. Cent. Fla.

Inv., Inc., 629 F.3d 18 , 24 (1st Cir. 2010)).

"When a plaintiff obtains a jury verdict in a diversity

case in which the substantive law of the forum state supplies the

rules of decision, that state's law governs the plaintiff's

entitlement to prejudgment interest." Crowe, 365 F.3d at 90 .

Under Massachusetts law, the "fruits of [a] state-law

victory" generally "include[] prejudgment interest, to be added

ministerially after the verdict, not factored into the jury

calculus." Foley v. City of Lowell, 948 F.2d 10 , 17 (1st Cir.

1991) (citing Mass. Gen. Laws ch. 231, § 6B).

Here, the District Court, applying Mass. Gen.

Laws ch. 231, § 6B (hereinafter "§ 6B"),17 determined that

Primarque's $204,000 tortious interference award did not qualify

for prejudgment interest because "substantially all of the damages

on this claim occurred after the suit was filed," and § 6B did not

17 This statute provides: In any action in which a verdict is rendered . . . for pecuniary damages for personal injuries to the plaintiff or for consequential damages, or for damage to property, there shall be added by the clerk of court to the amount of damages interest thereon at the rate of twelve per cent per annum from the date of commencement of the action even though such interest brings the amount of the verdict or finding beyond the maximum liability imposed by law. Mass. Gen. Laws ch. 231, § 6B. - 39 -

allow a court to award prejudgment interest as "compensat[ion] for

future losses." Primarque, 368 F. Supp. 3d at 200 (quoting Casual

Male Retail Grp., Inc. v. Yarbrough, 527 F. Supp. 2d 172 , 181 (D.

Mass. 2007)); see also Casual Male Retail, 527 F. Supp. 2d at 181 ("[§ 6B] was not intended to award interest on damages accruing

after the filing of the action," i.e., "when damages are awarded

to compensate for future losses." (citing Conway v. Electro Switch

Corp., 523 N.E.2d 255 (1988))).

In particular, the District Court explained, WWW's

termination of the parties' distribution contract "occurred on or

about March 12, 2015," and "Primarque commenced this action 7 days

later, on March 19, 2015," Primarque, 368 F. Supp. 3d at 200 --

which meant that almost the entirety of the $204,000 award

concerned profits lost after Primarque commenced its suit

(although before the District Court entered judgment), see id.

Primarque contends, however, that the District Court's

decision rests on a misconception of what constitutes

nonrecoverable "future losses" under § 6B. The District Court's

decision was based on Conway v. Electro Switch Corp., a 1988

decision in which the Massachusetts Supreme Judicial Court

explained that a litigant could not receive prejudgment interest

under § 6B on damages awarded for harms that would occur after

"the date of judgment." 523 N.E.2d at 259 (emphasis added); see

also id. at 258-59 (explaining that it would be improper to add

- 40 -

prejudgment interest to a jury's award of "front pay" in an

employment discrimination case, because such "damages . . ., by

definition, are for losses to be incurred in the future," and § 6B

"cannot reasonably be said to apply to an award of damages based

upon lost earnings and benefits occurring after the date of

judgment"). Conway, however, did not suggest that "future losses"

for which prejudgment interest could not be awarded also included

losses incurred after a complaint was filed but prior to judgment.

Indeed, such an understanding of § 6B -- pursuant to which a

litigant would be unable to recover interest on damages sustained

prior to judgment but after the filing of suit -- cannot be squared

with what Conway called "the fundamental proposition that interest

is awarded to compensate a damaged party for the loss of use or

the unlawful detention of money," id. at 258, as such monies, in

the normal course, continue to be withheld from the party damaged

until the entry of judgment. The District Court's position,

moreover, would risk incentivizing needless delay on the part of

a plaintiff in the filing of otherwise meritorious claims, or

protraction of litigation once filed on the part of a defendant,

and we do not read § 6B or Conway to support such a result. See

also Charles D. Bonanno Linen Serv., Inc. v. McCarthy, 550 F. Supp.

231 , 246-47 (D. Mass. 1982) (rejecting argument that "§ 6B does

not apply to damages for losses accruing after commencement of the

action," as "it is more reasonable to read the legislative

- 41 -

prescription as one applying to all tort damages, whether for

losses accruing before or for losses accruing after the date of

commencement of the action"), aff'd in relevant part, 708 F.2d 1 ,

12 (1st Cir. 1983) ("We think the district court correctly

applied [§ 6B].").

Here, judgment did not enter until June 1, 2018, meaning

that the $204,000 award intended to compensate Primarque for

profits lost between 2015 and 2016 was not a nonrecoverable "future

loss" under the reasoning of Conway. Thus, we conclude that the

District Court committed legal error in holding that Primarque was

not entitled to prejudgment interest on its tortious interference

with business relations claim, and so we reverse to that extent

its denial of Primarque's Rule 59(e) motion. Because this same

error may have affected the District Court's evaluation of

Primarque's "offset" request, see Primarque, 368 F. Supp. 3d at

199-200, we also vacate its decision denying that request.

C.

Primarque's final argument on appeal is that the

District Court erroneously granted summary judgment to WWW on

Primarque's Chapter 93A claim. We review the District Court's

grant of summary judgment de novo, McCue v. Bradstreet, 807 F.3d

334 , 340 (1st Cir. 2015), keeping in mind that "[s]ummary judgment

is appropriately granted where there is no genuine issue of

material fact, and the moving party is entitled to judgment as a

- 42 -

matter of law," Vives v. Fajardo, 472 F.3d 19 , 21 (1st Cir. 2007)

(citing Fed. R. Civ. P. 56(c)).

As the District Court noted, Chapter 93A proscribes

"unfair methods of competition and unfair or deceptive acts or

practices in the conduct of any trade or commerce," Primarque, 303

F. Supp. 3d at 208 (alteration omitted) (quoting Mass. Gen. Laws

ch. 93A, § 2)), and "[a] practice is unfair if it falls 'within

the penumbra of some common-law, statutory, or other established

concept of unfairness; is immoral, unethical, oppressive, or

unscrupulous; and causes substantial injury to other

businessmen,'" id. (quoting Linkage Corp. v. Trs. of Bos. Univ.,

679 N.E.2d 191 , 209 (Mass. 1997)). And, as the District Court

recognized, whether "an act or practice is 'immoral, unethical,

oppressive or unscrupulous' is the kind of fact-specific

determination generally left for a jury." Id. at 208-09 (citing

First Choice Armor & Equip., Inc. v. Toyobo Am., Inc., 839 F. Supp.

2d 407, 415 (D. Mass. 2012)); see In re Pharm. Indus. Average

Wholesale Price Litig., 582 F.3d 156 , 184 (1st Cir. 2009)

("Massachusetts courts 'evaluate unfair and deceptive trade

practice claims based on the circumstances of each case,' leaving

'the determination of what constitutes an unfair trade practice to

the finder of fact.'" (quoting Mass. Eye & Ear Infirmary v. QLT

Phototherapeutics, Inc., 552 F.3d 47 , 69 (1st Cir. 2009))). But,

in awarding summary judgment to WWW, the District Court concluded

- 43 -

-- in summary fashion -- that "Primarque has not come forward with

a scintilla of evidence that WWW engaged in any unfair, or

deceptive act or practice." Primarque, 303 F. Supp. 3d at 209.

We agree with Primarque, however, that the District

Court's decision was an erroneous one, as Primarque did in fact

put forward sufficient evidence to create a jury question on the

issue of whether WWW's conduct was "unfair" within the meaning of

Chapter 93A. In particular, we find, the evidence precluding

summary judgment on this claim was the same evidence that Primarque

had put forward in support of submitting its breach of contract

and tortious interference with business relations claims to the

jury, as Massachusetts law is clear that an unreasonably abrupt

termination of a distribution contract can constitute an "unfair"

act under Chapter 93A no less than it can ground a breach of

contract or tortious interference with business relations claim.

See Cherick Distribs., 669 N.E.2d at 220-21 ("The same evidence

that supported the jury's findings of a breach of the covenant of

good faith and fair dealing" -- namely, the defendant's "abrupt

termination of the distributorship agreement" -- "also supported

the jury's finding that [the defendant's] conduct amounted to an

unfair or deceptive act under G.L. c. 93A."); see also, e.g.,

Anthony's Pier Four v. HBC Assocs., 583 N.E.2d 806 , 821 (Mass.

1991) ("We have said that conduct 'in disregard of known

contractual arrangements' and intended to secure benefits for the

- 44 -

breaching party constitutes an unfair act or practice for c. 93A

purposes." (quoting Wang Lab'ys, Inc. v. Bus. Incentives, Inc.,

501 N.E.2d 1163 , 1165 (Mass. 1986))); Linkage Corp. v. Trs. of

Bos. Univ., 679 N.E.2d 191 , 209 (Mass. 1997) (explaining that

defendant's "repudiat[ion of] binding agreements and usurp[ation

of plaintiff's] business" could be deemed "unfair" under Chapter

93A). WWW's attempt to distinguish these precedents is

unconvincing,18 and the District Court offered no other rationale

to support its summary judgment decision. We are accordingly

constrained to reverse the District Court's award of summary

judgment to WWW on Primarque's Chapter 93A claim.

V.

We affirm the District Court's entry of amended judgment

in the amount of $204,000 on Primarque's tortious interference

with business relations claim. We reverse the District Court's

grant of summary judgment to WWW on Primarque's Chapter 93A claim;

reverse its order striking as duplicative the jury's damages award

WWW suggests that a different understanding of what counts 18

as an "unfair or deceptive act" should apply where, as here, there was no "express distribution contract," but, in so contending, it neglects the Supreme Judicial Court's holding that a "violation of [an] implied" contractual term can "establish[] as a matter of both fact and law that . . . actions were unfair or deceptive," Anthony's Pier Four, 583 N.E.2d at 822 (emphasis added). Similarly, WWW's contention that Primarque "worked in the shadows" and that its actions amounted to "secretly . . . transitioning business from [WWW] to [WWW's] competitors" fails to establish that a reasonable juror could not have viewed WWW's conduct as "unfair or deceptive."

- 45 -

on Primarque's breach of contract claim, and further direct the

District Court to reinstate an award of $39,017 in damages as to

that claim; reverse its order denying Primarque prejudgment

interest on the $204,000 damages award that Primarque received on

the tortious interference with business relations claim; vacate

its order denying Primarque's offset request; and remand for

further proceedings consistent with this opinion. Costs are

awarded to the appellant.

- 46 -

United States Court of Appeals For the First Circuit

Nos. 19-1463, 19-1484

PRIMARQUE PRODUCTS CO., INC.,

Plaintiff, Appellant / Cross-Appellee,

v.

WILLIAMS WEST & WITTS PRODUCTS COMPANY d/b/a INTEGRATIVE FLAVORS,

Defendant, Appellee / Cross-Appellant.

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

[Hon. Timothy S. Hillman, U.S. District Judge]

Before

Thompson and Barron, Circuit Judges.*

Andrew Lawlor, with whom Fedele and Murray, P.C. was on brief, for Appellant/Cross-Appellee. Rodney L. Lewis, with whom Polsinelli, P.C. was on brief, for Appellee/Cross-Appellant.

* Judge Torruella heard oral argument in this matter and participated in the semble, but he did not participate in the issuance of the panel's opinion in this case. The remaining two panelists therefore issued the opinion pursuant to 28 U.S.C. § 46(d).

February 12, 2021

BARRON, Circuit Judge. The appeal and cross-appeal at

issue here stem from litigation in the District of Massachusetts

that followed the termination, without advance notice, of a thirty-

nine-year business relationship between a company that

manufactured and supplied soup base products and a company that

distributed them. Following a five-day trial, the jury awarded

the distributor $255,000 in total damages for its Massachusetts-

law breach of contract and tortious interference with business

relations claims against the manufacturer, although the District

Court denied the distributor's motion for prejudgment interest on

those damages. The District Court also granted summary judgment

to the manufacturer on the distributor's claim against it under

Chapter 93A of the Massachusetts Consumer Protection Act, Mass.

Gen. Laws ch. 93A ("Chapter 93A"), and to the manufacturer on its

counterclaim for breach of contract under Massachusetts law, for

which the District Court awarded the manufacturer $97,843.22 in

damages, plus prejudgment interest. The distributor now appeals

from various of the District Court's pre- and post-verdict rulings,

while the manufacturer cross-appeals. We reverse in part and

vacate in part in the distributor's appeal, and we affirm in the

manufacturer's cross-appeal.

- 3 -

I.

A.

The following facts, which were supportably found by the

District Court both at summary judgment and in its rulings on

certain post-trial motions, are undisputed on appeal. Primarque

Products Co. ("Primarque"), the appellant, is a Massachusetts-

based distributor of food products, including soup base products.

Williams West & Witts Products Co. d/b/a Integrative Flavors

("WWW"), the cross-appellant, is an Indiana-based manufacturer and

supplier of soup base products that is incorporated in Illinois.

Primarque and WWW have conducted business with each another since

1976.

Primarque and WWW briefly entered into written

distribution agreements in, respectively, 1987 and 1990, but, by

1993, each of those agreements had terminated. After the period

in which those agreements were in effect, however, the parties

continued to do a large amount of business with each other.

Their repeated transactions during this period involved

Primarque as a distributor sending a purchase order to WWW

detailing the desired soup base type, quantity, cost, method of

shipping, and delivery location; WWW as a manufacturer and supplier

filling the order and invoicing Primarque; Primarque paying WWW

for what it had been invoiced; and Primarque reselling the products

that it purchased from WWW to a variety of retail customers. The

- 4 -

parties' transactions during this period also involved what the

parties referred to as the "Drop Ship Arrangement," pursuant to

which WWW shipped soup base products directly to certain retail

customers known as the "Drop Ship Customers" that had purchased

soup base products through Primarque.

The Drop Ship Arrangement relieved Primarque, as a

distributor, of the hassle of receiving, storing, and re-shipping

the soup base products; and this practice, in turn, made

Primarque's pricing for those products more competitive with its

retail customers. WWW, however, did not during this period

directly solicit business from Drop Ship Customers. Moreover, if

those customers made inquiries with WWW about directly purchasing

its soup base products, WWW referred them to Primarque. Primarque,

for its part, did not solicit business from customers buying soup

base products from WWW directly.

Primarque did sell other suppliers' soup base products

to certain of its retail customers, but it still was WWW's largest

purchaser of those products. WWW, in turn, was Primarque's largest

supplier of them. As an indication of the scale of the business

that the two parties did with each other, in 2014, Primarque

- 5 -

purchased approximately $1,313,175.59 worth of soup base products

from WWW.1

The events that precipitated the dispute that gives rise

to these appeals began in May of 2014, when Primarque, without

notifying WWW, started meeting with competitors of WWW about their

supplying Primarque with "replacement" soup base products for

Primarque to sell to its retail customers. Primarque signed

memoranda of understanding with two of those competitors, Major

Foods and Eatem. As Major Foods and Eatem developed replacement

products for Primarque to distribute, Primarque began relying on

them to supply it with some of the soup base products that it had

previously relied on WWW to supply.

On March 9, 2015, WWW reviewed its sales numbers and

identified certain downward trends related to its business with

Primarque. The next day, WWW sent an e-mail to Jack Barron,

Primarque's owner and president, in which it inquired whether

Primarque's business was down generally or whether it was

transitioning some of its business away from WWW. Barron replied:

"[a] combination of both."

Two days later, on March 12, 2015, WWW notified Primarque

that it would no longer be selling its products to Primarque,

1 This was about a $60,000 increase from calendar year 2013, when Primarque purchased $1,254,674.56 worth of soup base products from WWW.

- 6 -

effective that day. On the same day, WWW informed the Drop Ship

Customers that Primarque was no longer distributing WWW products

and that these customers could now obtain soup base products

directly from WWW at lower prices. WWW thereafter began selling

soup base products directly to some of the Drop Ship Customers.

B.

In response to WWW's actions, Primarque filed suit in

Massachusetts state court on March 19, 2015. WWW then removed the

case to the United States District Court for the District of

Massachusetts based on diversity jurisdiction.

Primarque's complaint asserted four claims against WWW

under Massachusetts law: breach of contract (Count I), promissory

estoppel (Count II), tortious interference with business relations

(Count III), and a violation of Chapter 93A (Count IV). Primarque

sought damages based on lost profits from sales that it alleged

that it would have made to the Drop Ship Customers in the absence

of WWW's abrupt termination of their relationship, including sales

that Primarque alleged that it would have made to those customers

after the filing of the complaint.

WWW in turn filed a counterclaim under Massachusetts law

for breach of contract. WWW based this claim for breach of

contract on Primarque's conceded withholding of payment on a final

shipment of $97,843.22 worth of goods that it had received from

- 7 -

WWW, for which WWW sought the unpaid amount plus prejudgment

interest.

C.

Following discovery, WWW moved for summary judgment in

its favor as to both Primarque's claims against it and its

counterclaim. On March 29, 2018, the District Court ruled that

(1) WWW was entitled to summary judgment on its counterclaim for

breach of contract and that it was entitled to $97,843.22 in

damages plus prejudgment interest; (2) WWW was entitled to summary

judgment on Primarque's Chapter 93A claim because there was not "a

scintilla of evidence that WWW engaged in any unfair[] or deceptive

act or practice"; and (3) WWW was also entitled to summary judgment

on Primarque's promissory estoppel claim and as to substantial

aspects of Primarque's breach of contract and tortious

interference with business relations claims. See Primarque Prods.

Co. v. Williams W. & Witts Prods. Co., 303 F. Supp. 3d 188 , 191 &

n.1, 205-07, 209 (D. Mass. 2018). But, as to those lattermost

claims, the District Court stated that, even absent a written

agreement, "Massachusetts law would still require WWW to provide

Primarque with reasonable notice of its intent to terminate the

parties' distributorship arrangement," id. at 205, and it further

determined that "there is a question of fact as to whether WWW

improperly terminated the parties' relationship without reasonable

notice," id. at 208.

- 8 - The case went to trial later that year. The District

Court instructed the jury that before it could find in Primarque's

favor on the issue of whether WWW had provided it with reasonable

notice of termination, the jury would first have to determine

"whether Primarque and WWW had a contract for the sale of soup

base" "under which . . . WWW would prove periodic shipments of

goods to" Primarque -- a determination which the jury could make

in view of the "conduct [of] both parties." On June 1, 2018, the

jury unanimously found by special verdict that WWW and Primarque

did "have a contract for the continuing purchase and sale of soup

base" and that "WWW, without excuse, breach[ed] its contract with

Primarque by failing to provide reasonable notice of its

termination of that contract." The jury also found that "WWW

intentionally and improperly interfere[d] with Primarque's

advantageous business relations with its drop ship customers" and

that this interference "induce[d] such customers to stop doing

business with Primarque." The jury determined that Primarque was

entitled to damages amounting to $51,000 on the breach of contract

claim and $204,000 on the tortious interference with business

relations claim. See Primarque Prods. Co. v. Williams W. & Witts

Prod. Co., 368 F. Supp. 3d 192 , 195 (D. Mass. 2019).

WWW thereafter moved under Fed. R. Civ. P. 50(b) for the

District Court to set aside the jury's verdict on Primarque's

breach of contract and tortious interference with business

- 9 -

relations claims, having earlier moved at the close of Primarque's

case-in-chief under Fed. R. Civ. P. 50(a) for the District Court

to grant WWW judgment as a matter of law on those two claims. The

District Court denied the motions but granted a separate request

by WWW under Fed. R. Civ. P. 59(e) to reduce the jury's award of

damages to Primarque on those claims by $51,000, as the District

Court agreed with WWW that the jury's $51,000 damages award on

Primarque's breach of contract claim was duplicative of its

$204,000 damages award on Primarque's tortious interference with

business relations claim. Id. at 198-99. The District Court also

entered judgment in favor of WWW on its counterclaim for breach of

contract, awarding WWW $97,843.22 in damages plus prejudgment

interest on that claim. Id. at 196 n.3, 202.

The District Court next addressed a request by Primarque

to "offset" the damages awarded to WWW on its counterclaim from

the damages that had been awarded to Primarque on its claims

against WWW. Id. at 199-200. In rejecting that request, the

District Court first determined that Primarque's $204,000 damages

award on its tortious interference with business relations claim

did not qualify for prejudgment interest and then denied

Primarque's offset request as "a blatant attempt to avoid paying"

the prejudgment interest that Primarque owed WWW on the

counterclaim. Id. at 200.

- 10 - Primarque appealed, contending that the District Court

erred in (1) finding that the jury's damages award on Primarque's

breach of contract claim against WWW was duplicative of its damages

award on Primarque's tortious interference with business relations

claim against WWW; (2) failing to award Primarque prejudgment

interest for the damages on its tortious interference with business

relations claim and, relatedly, rejecting its offset request; and

(3) granting summary judgment to WWW on Primarque's Chapter 93A

claim. WWW cross-appealed, contending that the District Court

erred by (1) denying its motion for judgment as a matter of law as

to Primarque's breach of contract claim; (2) denying its motion

for judgment as a matter of law as to Primarque's tortious

interference with business relations claim; and (3) denying its

request for alternative relief under Fed. R. Civ. P. 59(e) to

reduce Primarque's total damages award for those claims to, at

most, $39,017, on the ground that any larger award of damages would

be unduly speculative.

II.

Massachusetts law applies to the tort and contract-law

issues in this case. See Performance Trans., Inc. v. Gen. Star

Indem. Co., 983 F.3d 20 , 24 (1st Cir. 2020) (citing Dukes Bridge

LLC v. Beinhocker, 856 F.3d 186 , 189 (1st Cir. 2017)). Our review

of the District Court's rulings on the motions for summary judgment

and judgment as a matter of law is de novo. See Zabala-De Jesus

- 11 -

v. Sanofi-Aventis P.R., Inc., 959 F.3d 423 , 427 (1st Cir. 2020);

Hendricks & Assocs., Inc. v. Daewoo Corp., 923 F.2d 209 , 214 (1st

Cir. 1991). We review "grants and denials of Rule 59(e)

motions . . . only for abuse of discretion," Marie v. Allied Home

Mortg. Corp., 402 F.3d 1 , 7 n.2 (1st Cir. 2005) (citing Venegas–

Hernandez v. Sonolux Recs., 370 F.3d 183 , 190 (1st Cir. 2004)),

but, in the course of that review, we review issues of law de novo,

see Crowe v. Bolduc, 365 F.3d 86 , 90 (1st Cir. 2004).

III.

We begin with WWW's cross-appeal, because it concerns,

among other things, a threshold question: whether there was a

sufficient basis for a reasonable juror to find that there was a

contract between the parties that contained a requirement to

provide reasonable notice of termination of the contract.

Specifically, WWW claims that the District Court erred in denying

its motion for judgment as a matter of law on Primarque's breach

of contract claim because, in its view, "[t]he undisputed evidence

prove[d] there was no binding distribution agreement between the

parties." We thus start with that challenge before turning to the

others that WWW brings in its cross-appeal.

A.

As we noted at the outset, the District Court granted

WWW summary judgment on Primarque's breach of contract claim to

the extent that this claim rested on a theory that the parties had

- 12 -

an express contractual agreement. In doing so, the District Court

observed that it was undisputed that the parties "did not have a

written agreement" for the distribution and supply of soup base

products, Primarque, 303 F. Supp. 3d at 205 , and the District Court

also determined in ruling on WWW's motion for summary judgment on

that claim that, as a matter of law, there also was no enforceable

oral agreement in place between them , id. at 205-06.2 As we also noted at the outset, however, the District

Court did not understand itself to have granted WWW summary

judgment on Primarque's breach of contract claim in full. Indeed,

2 As the District Court explained, Primarque allege[d] that the parties had an oral non-solicitation agreement whereby WWW would indefinitely refrain from doing business directly with Primarque's customers. . . . However, . . . the terms of the alleged non- solicitation agreement are not clear: did WWW agree to only refrain from dealing with Drop Ship Customers, and if so, was it only Drop Ship Customers as to who WWW was Primarque's only soup base supplier? . . . . Primarque [also] contend[ed] that WWW orally promised to give 90 days' notice of its intent to end the parties' distributorship arrangement. . . . However, . . . Primarque itself cannot define the terms of the agreement. At times, the terms suggest that notice was required only if WWW were sold or closing. At other times, Primarque suggests that the notice was required if WWW intended to stop supplying product to it. Primarque, 303 F. Supp. 3d at 205 -06.

- 13 -

in the course of denying WWW's post-trial motion for judgment as

a matter of law, the District Court expanded on its summary

judgment rationale, explaining that, "[i]n ruling on WWW's motion

for summary judgment, I found that [while] there was no binding

written or oral agreement between the parties . . . the parties'

relationship was [still] governed by Mass. Gen. L[aws] ch. 106,

§ 2-309," a provision of the Massachusetts Uniform Commercial Code

("Massachusetts UCC") under which "a contract which is terminable

at the will of either party requires reasonable termination

notice." Primarque, 368 F. Supp. 3d at 197 (quoting Cherick

Distribs., Inc. v. Polar Corp., 669 N.E.2d 219 , 220 (Mass. App.

Ct. 1996)); see also Mass. Gen. Laws ch. 106, § 2-309(3)

(hereinafter "Mass. UCC § 2-309(3)").3 Thus, the District Court

explained, it had allowed the breach of contract claim to go the

jury to the extent that claim was predicated on a theory that WWW

had breached the reasonable notice term imputed by Mass. UCC § 2-

309(3). See Primarque, 303 F. Supp. 3d at 205 -06; Primarque, 368

F. Supp. 3d at 197 .

3The text of this statute provides: "Termination of a contract by one party except on the happening of an agreed event requires that reasonable notification be received by the other party and an agreement dispensing with notification is invalid if its operation would be unconscionable." Mass. Gen. Laws ch. 106, § 2-309(3). The parties do not dispute that the Massachusetts UCC is applicable as a general matter given that the parties' business arrangement was one "relating to the present or future sale of goods," namely, soup base products. Mass. Gen. Laws ch. 106, § 2- 106(1).

- 14 -

After Primarque presented its case-in-chief, but before

the jury rendered its verdict, WWW moved for judgment as a matter

of law under Fed. R. Civ. P. 50(a) as to the portion of Primarque's

breach of contract claim that the District Court understood itself

to have held survived WWW's summary judgment motion on it. The

District Court reserved ruling on that Rule 50(a) motion pending

the jury's verdict. The jury then determined that WWW was liable

on that breach of contract claim -- finding, by special verdict,

that Primarque and WWW "ha[d] a contract for the continuing

purchase and sale of soup base" and that "WWW, without excuse,

breach[ed] its contract with Primarque by failing to provide

reasonable notice of its termination of that contract" -- and

awarded damages on that claim to Primarque of $51,000. At that

point, WWW renewed its motion for judgment as a matter of law on

that claim under Fed. R. Civ. P. 50(b).

WWW contends on cross-appeal that the District Court

erred in denying its post-trial motion for judgment as a matter of

law. In conducting our de novo review of the District Court's

denial of that motion, we must consider whether "'the evidence

could lead a reasonable person to only one conclusion,' namely,

that the moving party was entitled to judgment." Hendricks, 923

F.2d at 214 (citations omitted) (quoting Conway v. Electro Switch

Corp., 825 F.2d 593 , 598 (1st Cir. 1987)). We conclude that the

District Court did not err in denying the motion.

- 15 -

1. In arguing that the District Court did err, WWW contends

as a threshold matter that the parties' course of dealing --

including what WWW calls their repeated transactions by means of

"[s]uccessive and consistent purchase orders and invoices" --

cannot on its own suffice to support the jury's finding that the

parties had a contract for the continuing purchase and sale of

soup base products, let alone that the parties had one imposing a

reasonable notice of termination requirement.4 In pressing this

contention, WWW does not dispute that, as the District Court

concluded, Massachusetts law -- specifically, Mass. UCC § 2-309(3)

-- makes clear that a reasonable notice of termination requirement

may be imputed as a term into a contract for the distribution of

goods even if the contract does not expressly include one, at least

so long as the parties do not expressly agree to dispense with

that imputed term. See Primarque, 368 F. Supp. 3d at 197 ; see

also Mass. UCC § 2-309(3). Instead, WWW contends that the statute

which provides the legal basis for imputing such a term into an

4 Although Primarque suggests that WWW waived this argument -- a version of which was made by WWW at summary judgment, in its motion for judgment as a matter of law under Fed. R. Civ. P. 50(a), and in its renewed motion for judgment as a matter of law under Fed. R. Civ. P. 50(b) -- by not adequately objecting to a particular jury instruction, we do not need to pause to address that contention because WWW's argument, in any event, "is wrong on the merits." United States v. Leavitt, 925 F.2d 516 , 517 (1st Cir. 1991).

- 16 -

otherwise silent distribution agreement -- Mass. UCC § 2-309(3)

-- "is simply inapplicable" here, because "there was no legally-

binding distribution agreement between the parties."

WWW is right that Mass. UCC § 2-309(3), by its text,

presupposes the existence "of a contract" before imputing a

"reasonable notification" term. Id. (emphasis added). WWW identifies no authority, however, to support the conclusion that

a distribution "contract" under this provision cannot be an

implied-in-fact one under Massachusetts law.5 And, indeed, the

Massachusetts UCC defines a "contract" as "the total legal

obligation that results from the parties' agreement," Mass. Gen.

Laws ch. 106, § 1-201(12), and further defines "agreement" as "the

5"[T]he law of contracts in most, if not all, jurisdictions long has employed a process by which agreements . . . may be 'implied.'" Jago v. Van Curen, 454 U.S. 14 , 18 (1981) (quoting Perry v. Sindermann, 408 U.S. 593 , 601-02 (1972)). Massachusetts follows the majority rule in this regard. See, e.g., LiDonni, Inc. v. Hart, 246 N.E.2d 446 , 449 (Mass. 1969) ("In the absence of an express agreement, a contract implied in fact may be found to exist from the conduct and relations of the parties."); Popponesset Beach Ass'n v. Marchillo, 658 N.E.2d 983 , 987 (Mass. App. Ct. 1996) ("An implied-in-fact contract comes into being when, notwithstanding the absence of a written agreement or verbal agreement expressing mutual obligations, the conduct or relations of the parties imply the existence of a contract." (citing Restatement (Second) of Contracts § 4 cmt. a, illus. 1-2 (1981)); see also Gen. GMC, Inc. v. Volvo White Truck Corp., 918 F.2d 306 , 309 (1st Cir. 1990) (applying Massachusetts law) (reversing grant of summary judgment on breach of contract claim where "[t]here [wa]s sufficient evidence on the record to show that an implied contract may have been developed through the parties' course of dealing").

- 17 -

bargain of the parties in fact, as found in their language or

inferred from other circumstances, including course of performance

[or] course of dealing," id. § 1-201(3) (emphasis added); see also

Restatement (Second) of Contracts § 4 cmt. a (1981) (reflecting

that this definition of "agreement" is the means by which the

Uniform Commercial Code recognizes implied-in-fact contracts).

Similarly, the Massachusetts UCC states that "[a] contract for

sale of goods may be made in any manner sufficient to show

agreement, including conduct by both parties which recognizes the

existence of such a contract." Mass. Gen. Laws ch. 106, § 2-

204(1) (emphasis added); see also id. § 2-204, Official Comment

(noting Massachusetts UCC's "basic policy of recognizing any

manner of expression of agreement, oral, written or otherwise"

(emphasis added)).

Nor are we persuaded by WWW's contention that Gettens

Electric Supply Co. v. W.R.C. Properties, Inc., 489 N.E.2d 217 (Mass. App. Ct. 1986), requires that we conclude that the District

Court erred in determining that Mass. UCC § 2-309(3) could apply

here, even though the only evidence of there being a contract at

all was the evidence of the parties' course of dealing. That case

interpreted the statutory term "written contract" in a different,

non-UCC provision. Mass. Gen. Laws ch. 254, § 4 (emphasis added);

see Gettens, 489 N.E.2d at 219 ("The written contract referred to

in th[is] portion of § 4 . . . seem[s] to us to refer to a written

- 18 -

contract . . . ."). It thus has no bearing on whether Mass. UCC

§ 2-309(3)'s unqualified reference to a "contract" encompasses

implied-in-fact contracts.6

2. WWW also argues that the District Court's pre-trial

rulings effectively precluded the jury from concluding, as it did,

that the parties had a contract within the meaning of Mass. UCC

§ 2-309(3). WWW contends that, for this reason as well, the

District Court erred in declining to grant its motion for judgment

as a matter of law on Primarque's breach of contract claim. But,

again reviewing de novo, see Hendricks, 923 F.2d at 214 , we find

no error.

WWW points to the District Court's determination in

rejecting WWW's motion for summary judgment on Primarque's breach

of contract claim that there was no enforceable written or oral

agreement between the parties. See Primarque, 368 F. Supp. 3d at

196 . It further points to the District Court's decision to grant

Other cases invoked by WWW do not call this reading of § 2- 6

309(3) into question; indeed, they tend to support it. See Teitelbaum v. Hallmark Cards Inc., 520 N.E.2d 1333 , 1336 (Mass. App. Ct. 1988) (holding that the performance of an oral agreement would be "governed essentially by the [reasonable notice] provisions of [Mass. UCC] § 2-309," without suggesting that a different result would obtain for an implied-in-fact agreement); RGJ Assocs., Inc. v. Stainsafe, Inc., 300 F. Supp. 2d 250 , 251 (D. Mass. 2004) (applying Massachusetts law) (holding that claim for breach of an "unwritten requirements contract" was "governed by section 2-309").

- 19 -

a motion in limine in favor of WWW, which had requested that the

District Court bar Primarque from "mention[ing], refer[ing]

to . . . or attempt[ing] to convey to the jury in any manner

regarding any alleged written or oral agreement between Primarque

and WWW" (emphasis altered). WWW contends that these rulings

"confirmed there was no agreement between the parties . . . oral,

written or otherwise," (emphasis added). WWW thus argues that

these rulings require the conclusion that no reasonable juror could

have found in Primarque's favor on the breach of contract claim.

It is true that, in ruling on WWW's summary judgment

motion, the District Court determined that there was no written or

oral agreement between the parties. See Primarque, 368 F. Supp.

3d at 196. But, it did not purport in doing so to preclude

Primarque from presenting course-of-dealing evidence of the sort

that would allow the jury to conclude that the parties had an

implied-in-fact contract within the meaning of Mass. UCC § 2-

309(3). Nor did it purport to do so in granting the motion in

limine. Indeed, the District Court's jury instructions expressly

provided that the jury could "infer[]" the existence of a

distribution contract "from the conduct of the parties." Thus,

there is no merit to this aspect of WWW's challenge.

3. Next, WWW contends that the District Court erred in

denying its motion for judgment as a matter of law on Primarque's

- 20 -

breach of contract claim because the evidence before the jury

"squarely contradict[ed]" the parties having had an implied-in-

fact distribution contract based on their course of dealing. But,

again, we are not persuaded.

WWW points first to the undisputed fact that the parties

had entered into written distribution agreements that were no

longer in place as of 1993. But, WWW and Primarque continued to

do business with each other thereafter. Thus, we do not see how

the existence of those prior written agreements is preclusive of

a finding that the parties' subsequent, extensive course of dealing

created an implied-in-fact agreement.

In a related vein, WWW points to the undisputed fact

that Primarque had, in 2009 and 2010, requested that WWW enter

into an express agreement with it which would have required WWW to

give Primarque "1 year notice in the event WWW wants to discontinue

selling [certain] products . . . to Primarque" or if WWW decided

to sell its business, and that WWW resisted these overtures. But,

WWW's rejection of the proposed one-year notice term does not

demonstrate that the parties had reached "an agreement dispensing

with" the "reasonable notification" term imputed by Mass. UCC § 2-

309(3). Id. (emphasis added). Thus, this evidence, too, would

not preclude a reasonable juror from finding that the parties had

- 21 -

an implied-in-fact distribution contract subject to Mass. UCC § 2-

309(3).7

WWW separately asserts, in a single sentence, that there

was an "absence of evidence of a distribution agreement in this

case." But, WWW does not attempt to grapple with the course-of-

dealing evidence that was before the jury. That evidence included

the evidence purporting to show that WWW had continuously supplied

Primarque with soup base products over the course of nearly four

decades; that Primarque was allowed to resell these products under

WWW's label "Cook's Delight"; that the parties had a close working

relationship that involved sharing potentially sensitive business

information, particularly as it concerned the Drop Ship Customers;

and that WWW had previously referred to Primarque, which

distributed the majority of the soup base products it manufactured,

as its "distributor."8 Thus, even if we were inclined to read this

7Similarly, the District Court's ruling at summary judgment that the parties had no "meeting of the minds" on the oral agreements alleged by Primarque, including the allegation that "WWW orally promised to give 90 days' notice of its intent to end the parties' distributorship arrangement," Primarque, 303 F. Supp. 3d at 205, did not purport to preclude the jury from finding, as it reasonably did, that the parties had a distribution contract, by virtue of their course of dealing, which was subject to Mass. UCC § 2-309(3), and that the parties had not reached an agreement dispensing with the imputed reasonable notice of termination term. 8WWW also developed no argument in its opening brief to us -- or, for that matter, in its motions for judgment as a matter of law to the District Court -- that the District Court improperly precluded it from putting on evidence relevant to the jury's determination about the significance of the parties' course of

- 22 -

cursory assertion about the state of the evidence as a contention

that the course-of-dealing evidence presented during trial was too

thin to permit a reasonable juror to determine that the parties

had an implied-in-fact distribution contract, the argument is

insufficiently developed and so is waived. See United States v.

Zannino, 895 F.2d 1 , 17 (1st Cir. 1990) ("[T]he settled appellate

rule [is] that issues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are

deemed waived.").

4.

Finally, WWW contends that the District Court erred in

denying its motion for judgment as a matter of law on Primarque's

breach of contract claim because, even if there was an enforceable

contract between the parties with an imputed reasonable notice of

termination term, WWW is still not liable.9 WWW advances two

distinct arguments on this front.

First, WWW argues that the trial evidence indisputably

established an antecedent breach of this same term by Primarque.

Here, WWW points to undisputed evidence that Primarque was working

dealing, and WWW similarly has not identified any evidence about the course of dealing that WWW intended to but was unable to present to the jury. As before, we decline to address Primarque's suggestion that 9

WWW waived this argument, given our disposition of the merits. See Leavitt, 925 F.2d at 517 .

- 23 -

with WWW's competitors back in 2014. WWW characterizes this

conduct as Primarque "taking steps to replace WWW as its supplier

without notification." (emphasis added). WWW argues that such

"taking steps" constituted a breach by Primarque of its obligation

to provide reasonable notice to WWW -- assuming that a contract

imposing that obligation was in place by implication. On that

basis, WWW contends that it was excused from having to comply with

the reasonable notice obligation, in the event that such an

obligation existed.10

But, the District Court determined at the summary

judgment stage that the record sufficed to permit a reasonable

juror to find that the parties' course of dealing established that

"Primarque was not obligated to buy its soup base exclusively from

WWW" and that "WWW was aware that Primarque purchased soup base

from other suppliers." Primarque, 303 F. Supp. 3d at 192.

Moreover, the District Court similarly determined at the summary

judgment stage that the record permitted a reasonable juror to

find that Primarque was continuing to make substantial purchases

from WWW when WWW terminated the parties' relationship. Id. at

201-02. Indeed, the District Court explained in that regard that

WWW does not argue on appeal that its obligation to comply 10

with the reasonable notice term imputed by Mass. UCC § 2-309(3) was excused by virtue of Primarque's having breached any other aspect of the parties' implied-in-fact distribution agreement, aside from Primarque's purported antecedent breach of the reasonable notice of termination term.

- 24 -

the record supportably showed that: in 2013, before Primarque

reached out to WWW's competitors, Primarque had purchased

approximately $1,254,674.56 in soup base products from WWW; in

2014, the year when Primarque began working with those competitors,

it still purchased $1,313,175.59 of soup base products from WWW (a

$60,000 increase from 2013); and then from February 6, 2015 to

March 12, 2015 -- "the last monthly period that WWW sold soup base

to Primarque" -- Primarque purchased $97,843.22 of soup base

products from WWW, an amount which, if annualized, constituted

around 89% of Primarque's total purchases from 2014. See id.

WWW makes no argument that the record fails supportably

to show as much. For that reason, we see no basis for rejecting

the conclusion that a reasonable juror could find that in early

2015 Primarque was continuing to purchase substantial amounts of

soup base products from WWW -- albeit around 11% less than it had

purchased in 2014 -- and that the parties' implied-in-fact contract

was not one that precluded Primarque from working with other

suppliers, because it was not an exclusive arrangement. Thus, we

also see no basis for concluding that the record indisputably

showed that Primarque's "taking steps" to line up alternative

suppliers in 2014 itself constituted "termination" of the parties'

implied-in-fact distribution agreement, such that Primarque was

obligated to give WWW reasonable notice before engaging with them.

See Mass. UCC § 2-309(3); Primarque, 368 F. Supp. 3d at 197 -98.

- 25 -

Second, WWW contends that its provision of same-day

notice was reasonable under the circumstances. But, here, again,

we agree with the District Court that a reasonable juror could

have found on this record that WWW's provision of same-day notice

of termination was unreasonable under the circumstances. See

Primarque, 368 F. Supp. 3d at 197 -98; see also, e.g., Cherick

Distribs., Inc. v. Polar Corp., 669 N.E.2d 218 , 220 (Mass. App.

Ct. 1996) (affirming jury's conclusion "that four days' notice was

unreasonable" under § 2-309(3)).

In challenging that conclusion, WWW emphasizes that "the

reasonableness of the notice of termination is measured in terms

of the amount of time 'as will give the other party reasonable

time to seek a substitute arrangement.'" RGJ Assocs., Inc. v.

Stainsafe, Inc., 300 F. Supp. 2d 250 , 254 (D. Mass. 2004) (emphasis

omitted) (quoting Mass. UCC § 2–309, Comment 8). But, even so, a

reasonable juror could have determined on this record -- especially

in light of the evidence of Primarque's substantial ongoing

purchases from WWW -- that Primarque did not as of March 2015 have

adequate substitute arrangements in place. And, given that WWW's

notice immediately terminated the parties' business relationship,

it cannot be said that a reasonable juror would have had to have

found that notice of that sort afforded Primarque a reasonable

amount of time to secure such alternative arrangements.

- 26 -

In contending otherwise, WWW relies on Teitelbaum v.

Hallmark Cards Inc., 520 N.E.2d 1333 (Mass. App. Ct. 1988). It

argues that precedent provides support for its contention that its

day-of-termination notice was necessarily reasonable, because it

is undisputed that Primarque had been working with other suppliers

prior to the notice being given.11 WWW points, in particular, to

Teitelbaum's statement that if a "party is able to obtain another

supplier before the performance of the party effecting termination

becomes due, then it necessarily follows that the terminating party

has furnished reasonable notice and will not be responsible for

damages." Id. at 1336. But, the relevant question is not whether Primarque

dealt with any other suppliers and thus could have found other

suppliers post-termination. The relevant question is whether

Primarque could have obtained an alternative supplier post-

termination -- i.e., another one (or ones) that could replace WWW,

taking into account the extent of business that Primarque was doing

with it. Cf. id. at 1337 ("The evidence [wa]s uncontroverted

that, . . . [t]he plaintiffs did not incur harm for lack of a

11 To the extent Primarque contends that WWW waived this specific point by raising it only at summary judgment and then in its renewed motion for judgment as a matter of law under Rule 50(b), we find, as before, that we do not need to address that contention, given that WWW's position "is wrong on the merits." Leavitt, 925 F.2d at 517 .

- 27 -

supplier," as the plaintiffs "had [already] acquired a full line

of inventory . . . ." (emphasis added)).12

Indeed, Teitelbaum itself observes that "[i]n many

cases, the issue of the adequacy of notice of termination will

present a jury question," as "the adequacy of the notice is

generally coextensive with the amount of harm that can be proved

by the party who has incurred the loss of a supplier." Id. at

1336-37. We thus agree with the District Court that this case

"present[ed] a jury question," id. at 1336, and that the jury's

determination as to the unreasonableness of WWW's day-of-

termination notice was not itself unreasonable, see Primarque, 368

F. Supp. 3d at 197 -98.

B.

WWW also takes aim at the District Court's denial of its

motion for judgment as a matter of law on Primarque's tortious

interference with business relations claim. As the District Court

explained in instructing the jury, "Primarque alleged [in support

of this claim] that WWW improperly interfered with [Primarque's]

business relations with its Drop Ship Customers by abruptly

terminating the parties' distributorship agreement without

reasonable notice, which left [Primarque] no time to secure another

12 Even if Teitelbaum were susceptible to WWW's reading of it, it is not an opinion of the Supreme Judicial Court of Massachusetts and, in consequence, would not constitute binding authority here. See Vt. Mut. Ins. Co. v. Zamsky, 732 F.3d 37 , 42 (1st Cir. 2013).

- 28 -

supplier to fulfill its obligations to [the Drop Ship] Customers."

See also Primarque, 368 F. Supp. 3d at 199. And, in the course of

returning a verdict in Primarque's favor on that claim, the jury

found that "WWW intentionally and improperly interfere[d] with

Primarque's advantageous business relations with its drop ship

customers"; that "WWW's intentional and improper interference with

Primarque's relationship with its drop ship customers induce[d]

such customers to stop doing business with Primarque and cause[d]

Primarque to suffer damages"; and that Primarque was therefore

entitled to $204,000 in lost-profit damages.

WWW contends on appeal that the District Court erred in

denying its motion for judgment of law as to the tortious

interference with business relations claim because "WWW's

cessation of [the] business relationship was not tortious as a

matter of law."13 Our review is de novo. See Hendricks, 923 F.2d

at 214 .

WWW's premises this contention, however, on its

insistence that "WWW was under no legal obligation to provide

Primarque with notice." Indeed, WWW concedes that if a reasonable

juror could have "found that WWW prematurely ended its relationship

with Primarque," then it "could find [that] WWW tortiously

Primarque suggests that WWW waived this argument, too, in 13

failing to object to a particular jury instruction, but we do not address that suggestion given our disposition of the merits. See Leavitt, 925 F.2d at 517 .

- 29 -

interfered." Thus, this challenge fails, too, because, as we have

just explained, a reasonable juror could have found that WWW was

under a legal obligation to provide Primarque with reasonable

notice of termination. See Mass. UCC § 2-309(3).

C.

WWW's last challenge in its cross-appeal is that the

District Court erred in denying its motion to alter or amend the

judgment under Fed. R. Civ. P. 59(e) to reduce Primarque's $204,000

tortious interference award to, at most, $39,000. That latter

amount represents, according to WWW, "the amount of Primarque's

lost profits over the 90-day period after March 12, 2015," which

is the date on which WWW terminated the parties' business

relationship.

In rejecting WWW's motion in this regard, the District

Court explained that it concluded that the jury intended to award

Primarque "tortious interference damages represent[ing] one year

of lost profits," Primarque, 368 F. Supp. 3d at 199, on the theory

that Primarque had suffered damages after "WWW unreasonably

terminated the parties' distributorship arrangement without

[adequate] notice and as a result . . . [Primarque] couldn't

fulfill its obligations to its" Drop Ship Customers , id. at 198. Our review is for abuse of discretion. See Marie, 402 F.3d at 7 n.2 ("[G]rants and denials of Rule 59(e) motions are reviewed only

- 30 -

for abuse of discretion." (citing Venegas–Hernandez, 370 F.3d at

190 )). We find none.

WWW argues that the District Court erred here because

the jury found that Primarque's right to reasonable notice of

termination required WWW to give notice of termination ninety days

in advance and, in consequence, any damages for profits lost after

the ninety-day notice period ended "were too speculative [for

Primarque] to recover." That is so, WWW contends, because, after

those ninety days, WWW would have been free, in any event, to stop

selling soup base products to Primarque and also to compete

directly with it for the business of the Drop Ship Customers.

Accordingly, in WWW's view, it is "pure speculation to presume

that Primarque would have retained all of the [same] customers

beyond [ninety] days and sold the same amount of soup bases to

those customers for a year."

Massachusetts law is clear, however, that "[i]n the case

of business torts, an element of uncertainty in the assessment of

damages is not a bar to their recovery." Zimmerman v. Bogoff, 524

N.E.2d 849 , 856 (Mass. 1988) (alterations omitted) (quoting

Datacomm Interface, Inc. v. Computerworld, Inc., 489 N.E.2d 185 ,

196 (Mass. 1986)). This is "especially" true, moreover, "in

circumstances in which the wrongdoer's conduct has caused the

uncertainty of the measurement." A.C. Vaccaro, Inc. v. Vaccaro,

- 31 -

955 N.E.2d 299 , 306 (Mass. App. Ct. 2011) (citing Air Tech. Corp.

v. Gen. Elec. Co., 199 N.E.2d 538 (Mass. 1964)).

Against that legal backdrop, we cannot say, as WWW

contends, that the jury's verdict as to the amount of Primarque's

lost profit attributable to WWW's abrupt termination was "entirely

without foundation," Atl. Rsch. Mktg. Sys., Inc. v. Saco Def.,

Inc., 997 F. Supp. 159 , 170 (D. Mass. 1998), let alone that the

District Court abused its discretion in failing to grant WWW's

Rule 59(e) motion on that basis. WWW is correct that it is possible

that Primarque would have lost some of the Drop Ship Customers'

business in less than a year even if WWW had given timely notice

of termination. That bare possibility, however, does not suffice

to render the jury's award speculative or even necessarily overly

favorable to Primarque. See Rombola v. Cosindas, 220 N.E.2d 919 ,

922 (Mass. 1966) ("While it is possible that no profits would have

been realized . . . that possibility is inherent in any business

venture. It is not sufficient to foreclose [the plaintiff's] right

to prove prospective profits."). That is especially so in light

of the competing possibility that Primarque could have retained

the Drop Ship Customers' business for more than one year and the

fact that, in any event, a juror could reasonably have found that

WWW's tortious conduct "caused the uncertainty of the

measurement." A.C. Vaccaro, 955 N.E.2d at 306 .

- 32 -

In addition, WWW does not argue on appeal that the

$204,000 figure is an inaccurate estimate of the profit that

Primarque would have earned over the course of a year if it had

continued making similar sales to the Drop Ship Customers for that

length of time. Indeed, WWW's own witnesses testified that this

figure -- which was based on the sales that Primarque and then WWW

had made to the Drop Ship Customers from January 1 to December 31,

2015, as well as the price that Primarque had been charging those

customers for those products prior to WWW's termination of their

business relationship -- was accurate at least to that extent.

Thus, the District Court did not abuse its discretion in denying

WWW's Rule 59(e) motion to reduce Primarque's award to $39,000.

IV.

We turn our attention, then, to Primarque's appeal. We

start with Primarque's first challenge to the District Court's

rulings below.

A.

Primarque contends that the District Court erred in

partially granting WWW's Rule 59(e) motion to strike the jury's

$51,000 award on Primarque's breach of contract claim as

duplicative of its $204,000 award on Primarque's tortious

interference with business relations claim. The District Court

reasoned as follows in striking the $51,000 award as duplicative.

The jury intended to award Primarque damages amounting to lost

- 33 -

profits on the tortious interference with business relations claim

incurred over the course of the year that followed the termination

the implied-in-fact agreement, which totaled $204,000 and is the

amount that the jury awarded on that claim. The jury also intended

to award Primarque lost profits for the first ninety days of that

same year on the breach of contract claim, as its award here was

$51,000 and happens to be one-quarter of $204,000 (and thus, in

the District Court's understanding of the jury's intent, one

quarter of the profits lost over the course of the year). See

Primarque, 368 F. Supp. 3d at 199.

But, the District Court reasoned, that being so,

Primarque was necessarily being compensated twice by the jury's

damages award for the profits that it had lost during the first

ninety days of the one-year period that followed WWW's termination

of the parties' agreement. See id. The District Court then

separately determined that the most damages to which Primarque

could have been entitled to on its breach of contract claim was

$39,017. See id. at 198 & n.4. In doing so, it concluded that a

reasonable juror could have found, at most, that this was the

amount of Primarque's lost profit during the ninety-day reasonable

notice period following March 12, 2015. See id. at 198. It then

proceeded to vacate the entirety of the breach of contract award

given that, in its view, even this smaller amount remained

duplicative. See id. at 198 -200, 200 n.5.

- 34 -

We review the District Court's partial grant of WWW's

Rule 59(e) motion for abuse of discretion. See Marie, 402 F.3d at

7 n.2 (citing Venegas–Hernandez, 370 F.3d at 190 ). But, this

"abuse of discretion review is superimposed on the standard of

review the Rule 59(e) judge exercises over the original judgment,"

Venegas-Hernandez, 370 F.3d at 190 , pursuant to which "a district

court may set aside a jury's verdict . . . only if the verdict is

against the demonstrable weight of the credible evidence or results

in a blatant miscarriage of justice," Sanchez v. P.R. Oil Co., 37

F.3d 712 , 717 (1st Cir. 1994). And, to the extent that the District

Court's decision was predicated on the resolution of legal

questions, we review its resolution of those questions de novo.

See Rio Mar Assocs., LP, SE v. UHS of P.R., Inc., 522 F.3d 159 ,

163 (1st Cir. 2008).

The jury was instructed that it could not award damages

for lost profits on the breach of contract claim that were incurred

beyond the reasonable notice period, not to exceed ninety days,

following the termination. But, significantly, it was not

instructed that there was any set temporal bound for the period

for which damages for lost profits could be awarded on the tortious

interference with business relations claim. Moreover, Primarque

notes, correctly, that courts generally "presume[]" that

"jurors . . . follow the trial court's instructions," id. at 163, and that the District Court had instructed the jury at length that

- 35 -

it could not award Primarque "duplicative damages" during the

reasonable notice period on both the tortious interference with

business relations and breach of contract claims.14

Thus, we find persuasive Primarque's contention that the

jury could be understood to have intended for the $51,000 damages

award to cover profits lost during the first ninety days following

WWW's breach of the contract and the $204,000 damages award to

cover the profits lost in the one-year period that followed the

end of those ninety days and that were attributable to WWW's

tortious interference with business relations. Indeed,

Primarque's counsel during closing argument asked the jury for as

much as three years and two months' worth of lost-profit damages

14 The relevant instruction read in full: A plaintiff, such as Primarque, may seek recovery under multiple counts, but may not recover duplicative damages that arise out of the same act or conduct . . . . Thus, in this case, Primarque may not recover twice for the same injury in both contract and tort. Accordingly, if you find that Primarque is entitled to a verdict on both, the breach of contract claim sounding in contract law based on WWW's same day notice of termination, you may not also compensate Primarque on its tortious interference with advantageous business relations claim based on that same underlying . . . conduct. However, if you find that Primarque suffered damages under its tortious interference with advantageous business relations for some period beyond the reasonable notice period, then you may compensate it for lost profit damages if proved and if sustained for a period which exceeds the reasonable notice period. - 36 -

on that latter claim -- stressing evidence which indicated that

Primarque had continued to lose sales to the Drop Ship Customers

from March 2015 through May 2018 at a rate of about $204,000 a

year -- and then called for the jurors to "use your collective

judgment" to determine "how long into the future [Primarque]

reasonably would have kept [its lost] customers" had it been given

reasonable notice of termination.

Given that "[o]n this record, there is no way to

determine what the jury [actually] did," Ramos v. Davis & Geck,

Inc., 224 F.3d 30 , 32 (1st Cir. 2000), we cannot agree with the

District Court that it is "evident" that the jury ran afoul of its

well-crafted instructions on avoiding duplicative damages,

Primarque, 368 F. Supp. 3d at 199.15 Instead, "[a]pplying the

instruction[s] to the facts of this case, [we conclude that] the

15 It is true that the District Court also observed -- and Primarque does not dispute on appeal -- that the jury erroneously awarded Primarque $51,000 in damages on its breach of contract claim rather than $39,017, despite trial evidence establishing that the latter amount was the actual amount of Primarque's lost profits during the ninety-day period following WWW's breach. See Primarque, 368 F. Supp. 3d at 199. But, even accepting the District Court's unchallenged determination that the jury erred in the computation of Primarque's breach of contract damages, that error does not in itself provide a reason to think that, in separately awarding Primarque $204,000 on its tortious interference with business relations claim -- an amount which the parties agree represents the profit that Primarque would have earned had it continued to sell to the Drop Ship Customers over a period of one year -- the jury thereby concluded that Primarque would have continued to transact with the Drop Ship Customers for only nine months after the end of the reasonable notice period rather than twelve.

- 37 -

verdict must be presumed to have" accounted for them. Rio Mar

Assocs., 522 F.3d at 163 . And, with that presumption in place,

the $51,000 award of damages to Primarque on its breach of contract

claim was not duplicative of the damages awarded to it on its

tortious interference with business relations claim. However,

because Primarque does not dispute that it was entitled to at most

$39,017 in breach of contract damages, see Primarque, 368 F. Supp.

3d at 198 & n.4, we direct the District Court to reinstate the

jury's verdict only to that extent.

B.

Primarque next challenges the District Court's decision

to deny its Rule 59(e) motion to alter or amend the judgment and

thus to award Primarque prejudgment interest on its $204,000

damages award on its tortious interference with business relations

claim.16 We review "the district court's determination regarding

the award of prejudgment interest . . . for abuse of discretion,

'but legal issues relating to the prejudgment interest award are

reviewed de novo.'" Companion Health Servs. v. Kurtz, 675 F.3d

16 The District Court concluded that Primarque would be entitled to prejudgment interest on its breach of contract claim to the extent that any damages on that claim were not duplicative of those awarded on the tortious interference with business relations claim. See Primarque, 368 F. Supp. 3d at 200 & n.5. We do not address that ruling here, as neither party asks us to revisit it on appeal.

- 38 -

75, 87 (1st Cir. 2012) (quoting Analysis Grp., Inc. v. Cent. Fla.

Inv., Inc., 629 F.3d 18 , 24 (1st Cir. 2010)).

"When a plaintiff obtains a jury verdict in a diversity

case in which the substantive law of the forum state supplies the

rules of decision, that state's law governs the plaintiff's

entitlement to prejudgment interest." Crowe, 365 F.3d at 90 .

Under Massachusetts law, the "fruits of [a] state-law

victory" generally "include[] prejudgment interest, to be added

ministerially after the verdict, not factored into the jury

calculus." Foley v. City of Lowell, 948 F.2d 10 , 17 (1st Cir.

1991) (citing Mass. Gen. Laws ch. 231, § 6B).

Here, the District Court, applying Mass. Gen.

Laws ch. 231, § 6B (hereinafter "§ 6B"),17 determined that

Primarque's $204,000 tortious interference award did not qualify

for prejudgment interest because "substantially all of the damages

on this claim occurred after the suit was filed," and § 6B did not

17 This statute provides: In any action in which a verdict is rendered . . . for pecuniary damages for personal injuries to the plaintiff or for consequential damages, or for damage to property, there shall be added by the clerk of court to the amount of damages interest thereon at the rate of twelve per cent per annum from the date of commencement of the action even though such interest brings the amount of the verdict or finding beyond the maximum liability imposed by law. Mass. Gen. Laws ch. 231, § 6B. - 39 -

allow a court to award prejudgment interest as "compensat[ion] for

future losses." Primarque, 368 F. Supp. 3d at 200 (quoting Casual

Male Retail Grp., Inc. v. Yarbrough, 527 F. Supp. 2d 172 , 181 (D.

Mass. 2007)); see also Casual Male Retail, 527 F. Supp. 2d at 181 ("[§ 6B] was not intended to award interest on damages accruing

after the filing of the action," i.e., "when damages are awarded

to compensate for future losses." (citing Conway v. Electro Switch

Corp., 523 N.E.2d 255 (1988))).

In particular, the District Court explained, WWW's

termination of the parties' distribution contract "occurred on or

about March 12, 2015," and "Primarque commenced this action 7 days

later, on March 19, 2015," Primarque, 368 F. Supp. 3d at 200 --

which meant that almost the entirety of the $204,000 award

concerned profits lost after Primarque commenced its suit

(although before the District Court entered judgment), see id.

Primarque contends, however, that the District Court's

decision rests on a misconception of what constitutes

nonrecoverable "future losses" under § 6B. The District Court's

decision was based on Conway v. Electro Switch Corp., a 1988

decision in which the Massachusetts Supreme Judicial Court

explained that a litigant could not receive prejudgment interest

under § 6B on damages awarded for harms that would occur after

"the date of judgment." 523 N.E.2d at 259 (emphasis added); see

also id. at 258-59 (explaining that it would be improper to add

- 40 -

prejudgment interest to a jury's award of "front pay" in an

employment discrimination case, because such "damages . . ., by

definition, are for losses to be incurred in the future," and § 6B

"cannot reasonably be said to apply to an award of damages based

upon lost earnings and benefits occurring after the date of

judgment"). Conway, however, did not suggest that "future losses"

for which prejudgment interest could not be awarded also included

losses incurred after a complaint was filed but prior to judgment.

Indeed, such an understanding of § 6B -- pursuant to which a

litigant would be unable to recover interest on damages sustained

prior to judgment but after the filing of suit -- cannot be squared

with what Conway called "the fundamental proposition that interest

is awarded to compensate a damaged party for the loss of use or

the unlawful detention of money," id. at 258, as such monies, in

the normal course, continue to be withheld from the party damaged

until the entry of judgment. The District Court's position,

moreover, would risk incentivizing needless delay on the part of

a plaintiff in the filing of otherwise meritorious claims, or

protraction of litigation once filed on the part of a defendant,

and we do not read § 6B or Conway to support such a result. See

also Charles D. Bonanno Linen Serv., Inc. v. McCarthy, 550 F. Supp.

231 , 246-47 (D. Mass. 1982) (rejecting argument that "§ 6B does

not apply to damages for losses accruing after commencement of the

action," as "it is more reasonable to read the legislative

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prescription as one applying to all tort damages, whether for

losses accruing before or for losses accruing after the date of

commencement of the action"), aff'd in relevant part, 708 F.2d 1 ,

12 (1st Cir. 1983) ("We think the district court correctly

applied [§ 6B].").

Here, judgment did not enter until June 1, 2018, meaning

that the $204,000 award intended to compensate Primarque for

profits lost between 2015 and 2016 was not a nonrecoverable "future

loss" under the reasoning of Conway. Thus, we conclude that the

District Court committed legal error in holding that Primarque was

not entitled to prejudgment interest on its tortious interference

with business relations claim, and so we reverse to that extent

its denial of Primarque's Rule 59(e) motion. Because this same

error may have affected the District Court's evaluation of

Primarque's "offset" request, see Primarque, 368 F. Supp. 3d at

199-200, we also vacate its decision denying that request.

C.

Primarque's final argument on appeal is that the

District Court erroneously granted summary judgment to WWW on

Primarque's Chapter 93A claim. We review the District Court's

grant of summary judgment de novo, McCue v. Bradstreet, 807 F.3d

334 , 340 (1st Cir. 2015), keeping in mind that "[s]ummary judgment

is appropriately granted where there is no genuine issue of

material fact, and the moving party is entitled to judgment as a

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matter of law," Vives v. Fajardo, 472 F.3d 19 , 21 (1st Cir. 2007)

(citing Fed. R. Civ. P. 56(c)).

As the District Court noted, Chapter 93A proscribes

"unfair methods of competition and unfair or deceptive acts or

practices in the conduct of any trade or commerce," Primarque, 303

F. Supp. 3d at 208 (alteration omitted) (quoting Mass. Gen. Laws

ch. 93A, § 2)), and "[a] practice is unfair if it falls 'within

the penumbra of some common-law, statutory, or other established

concept of unfairness; is immoral, unethical, oppressive, or

unscrupulous; and causes substantial injury to other

businessmen,'" id. (quoting Linkage Corp. v. Trs. of Bos. Univ.,

679 N.E.2d 191 , 209 (Mass. 1997)). And, as the District Court

recognized, whether "an act or practice is 'immoral, unethical,

oppressive or unscrupulous' is the kind of fact-specific

determination generally left for a jury." Id. at 208-09 (citing

First Choice Armor & Equip., Inc. v. Toyobo Am., Inc., 839 F. Supp.

2d 407, 415 (D. Mass. 2012)); see In re Pharm. Indus. Average

Wholesale Price Litig., 582 F.3d 156 , 184 (1st Cir. 2009)

("Massachusetts courts 'evaluate unfair and deceptive trade

practice claims based on the circumstances of each case,' leaving

'the determination of what constitutes an unfair trade practice to

the finder of fact.'" (quoting Mass. Eye & Ear Infirmary v. QLT

Phototherapeutics, Inc., 552 F.3d 47 , 69 (1st Cir. 2009))). But,

in awarding summary judgment to WWW, the District Court concluded

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-- in summary fashion -- that "Primarque has not come forward with

a scintilla of evidence that WWW engaged in any unfair, or

deceptive act or practice." Primarque, 303 F. Supp. 3d at 209.

We agree with Primarque, however, that the District

Court's decision was an erroneous one, as Primarque did in fact

put forward sufficient evidence to create a jury question on the

issue of whether WWW's conduct was "unfair" within the meaning of

Chapter 93A. In particular, we find, the evidence precluding

summary judgment on this claim was the same evidence that Primarque

had put forward in support of submitting its breach of contract

and tortious interference with business relations claims to the

jury, as Massachusetts law is clear that an unreasonably abrupt

termination of a distribution contract can constitute an "unfair"

act under Chapter 93A no less than it can ground a breach of

contract or tortious interference with business relations claim.

See Cherick Distribs., 669 N.E.2d at 220-21 ("The same evidence

that supported the jury's findings of a breach of the covenant of

good faith and fair dealing" -- namely, the defendant's "abrupt

termination of the distributorship agreement" -- "also supported

the jury's finding that [the defendant's] conduct amounted to an

unfair or deceptive act under G.L. c. 93A."); see also, e.g.,

Anthony's Pier Four v. HBC Assocs., 583 N.E.2d 806 , 821 (Mass.

1991) ("We have said that conduct 'in disregard of known

contractual arrangements' and intended to secure benefits for the

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breaching party constitutes an unfair act or practice for c. 93A

purposes." (quoting Wang Lab'ys, Inc. v. Bus. Incentives, Inc.,

501 N.E.2d 1163 , 1165 (Mass. 1986))); Linkage Corp. v. Trs. of

Bos. Univ., 679 N.E.2d 191 , 209 (Mass. 1997) (explaining that

defendant's "repudiat[ion of] binding agreements and usurp[ation

of plaintiff's] business" could be deemed "unfair" under Chapter

93A). WWW's attempt to distinguish these precedents is

unconvincing,18 and the District Court offered no other rationale

to support its summary judgment decision. We are accordingly

constrained to reverse the District Court's award of summary

judgment to WWW on Primarque's Chapter 93A claim.

V.

We affirm the District Court's entry of amended judgment

in the amount of $204,000 on Primarque's tortious interference

with business relations claim. We reverse the District Court's

grant of summary judgment to WWW on Primarque's Chapter 93A claim;

reverse its order striking as duplicative the jury's damages award

WWW suggests that a different understanding of what counts 18

as an "unfair or deceptive act" should apply where, as here, there was no "express distribution contract," but, in so contending, it neglects the Supreme Judicial Court's holding that a "violation of [an] implied" contractual term can "establish[] as a matter of both fact and law that . . . actions were unfair or deceptive," Anthony's Pier Four, 583 N.E.2d at 822 (emphasis added). Similarly, WWW's contention that Primarque "worked in the shadows" and that its actions amounted to "secretly . . . transitioning business from [WWW] to [WWW's] competitors" fails to establish that a reasonable juror could not have viewed WWW's conduct as "unfair or deceptive."

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on Primarque's breach of contract claim, and further direct the

District Court to reinstate an award of $39,017 in damages as to

that claim; reverse its order denying Primarque prejudgment

interest on the $204,000 damages award that Primarque received on

the tortious interference with business relations claim; vacate

its order denying Primarque's offset request; and remand for

further proceedings consistent with this opinion. Costs are

awarded to the appellant.

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