Massachusetts Law Review

Case & Statute Comments

New Standard Set for Assessing 'Primarily and Substantially' Under Massachusetts General Laws Chapter 93A, Section 11
Kuwaiti Danish Computer Co. v. Digital Equipment Corp., 438 Mass. 459 (2003)
Introduction

Chapter 93A, section 11 broadly declares unlawful the use of unfair methods of competition and unfair or deceptive acts and practices in the conduct of trade or commerce. Paragraph eight of that section, however, limits its reach to conduct that occurred "primarily and substantially" within the commonwealth.1 For the first time in almost two decades, the Supreme Judicial Court has addressed the meaning of that restriction in Kuwaiti Danish Computer Co. v. Digital Equipment Corp.2 In a critical discussion of the "primarily and substantially" requirement, the Supreme Judicial Court rejected quantitative analyses involving the mechanical application of judicially established factors, and instead adopted a case-by-case factual inquiry designed to determine whether "the center of gravity of the circumstances that give rise to [a § 11] claim is primarily and substantially within the Commonwealth."3

The Supreme Judicial Court's Early Approach to 'Primarily and Substantially'

Although Chapter 93A has contained the "primarily and substantially" restriction in some form (except for a brief period between 1983 and 1986) since the statute was first enacted in 1967, the Supreme Judicial Court had visited its meaning only twice.4 In its 1982 decision in Burnham v. Mark IV Homes, Inc., the Supreme Judicial Court declined to set forth a list of factors that would define the reach of the restriction, which was then contained in General Laws chapter 93A, section 3(1)(b)(i).5 In that case, a mobile-home manufacturer invoked the statutory defense to argue that it could not be held liable under Chapter 93A for a breach of the implied warranty of merchantability after the roofs on homes sold to Massachusetts consumers proved to be far less than watertight.6 Although the mobile homes had been built in Pennsylvania and sold by the manufacturer to a dealer in New Hampshire, the Supreme Judicial Court nevertheless concluded that the breach of warranty had occurred "primarily and substantially" in Massachusetts.7

In analyzing the purpose of the "primarily and substantially" requirement, the Supreme Judicial Court noted the legislature's use of that term suggested that it intended to make the reach of Chapter 93A narrower than the farthest reaches of the Massachusetts long-arm statute, General Laws chapter 223A, section 3.8 Despite the narrower construction to be given the statute, the court found it unnecessary to "define the outer boundaries of those transactions and actions" actionable under Chapter 93A, because "[t]he sales of the plaintiffs' units could not have been completed until delivery and installation had taken place. The transactions and actions of [the manufacturer] constituting a breach of the implied warranty of merchantability therefore occurred, not only 'primarily and substantially,' but entirely, in Massachusetts."9 While an amicus brief submitted by the Attorney General urged the court to craft a list of factors to be used in determining whether conduct occurred primarily and substantially in Massachusetts, the Supreme Judicial Court demurred, finding that "[o]ur resolution of the issue raised by the plaintiffs in this case does not require us to consider the Attorney General's suggestions in depth at this time."10

The Supreme Judicial Court similarly declined to provide any significant guidance as to the meaning of "primarily and substantially" three years later in Bushkin Associates, Inc. v. Raytheon Co.11 In that case, involving a question certified to the Supreme Judicial Court by the United States Court of Appeals for the First Circuit, a New York investment banker brought an action under Chapter 93A to recover money promised to him by a Massachusetts business in an alleged oral fee agreement relating to the acquisition of a major aviation company.12 The discussions between the investment banker and an officer of the Massachusetts business occurred exclusively by telephone in their respective offices; the investment banker alleged that during those discussions he was induced to reveal the identity of the major aviation company by a false oral promise by the officer to pay for the banker's services.13 The circuit court of appeals certified three questions to the Supreme Judicial Court: (1) whether New York or Massachusetts law should determine the validity of the alleged oral agreement; (2) whether a breach of such a promise was actionable under Chapter 93A; and (3) whether the alleged conduct had occurred primarily and substantially in Massachusetts.14

In Bushkin, the Supreme Judicial Court adopted the now-familiar "functional choice-of-law approach" to resolving conflicts of law in contracts, rejecting the traditional lex loci approach in favor of balancing "various choice-influencing considerations" to determine which forum's law should apply.15 Although the court concluded that the alleged oral agreement should be construed in accordance with Massachusetts contract law principles, the Supreme Judicial Court also concluded that the Chapter 93A claim nevertheless could not stand because the allegedly wrongful conduct had not occurred "primarily and substantially" in Massachusetts.16 The court explained that "[t]he telephone conversations were between New York and Massachusetts. The alleged unfair or deceptive acts or practices were statements made in Massachusetts but received and acted on in New York. Any loss was incurred in New York."17 Accordingly, the Supreme Judicial Court made short work of the New York-based investment banker's Chapter 93A claim.

The court further noted that "[i]f it were proper (and we need not decide the point) to engage in a broader analysis of this issue, similar to the functional approach we used to decide the choice-of-law question in this action, the result would be the same."18 Because the significant contacts at issue were "approximately in balance," the Supreme Judicial Court observed that no primary involvement with Massachusetts had been shown.19 The court hastened to add, however, that "the choice-influencing factors on which we relied to answer the first question (expectations of the parties and the presumption of a contract's validity) are not relevant to the Mass. Gen. Laws ch. 93A claim and provide no basis for resolving this third question."20 Because the alleged conduct had not occurred primarily and substantially in Massachusetts, the Supreme Judicial Court did not reach the question whether the breach of an alleged oral contract was actionable under Chapter 93A.21

The Evolution of a 'Functional Approach' to the 'Primarily and Substantially' Exemption of Chapter 93A

Left without a substantive test to apply before the Supreme Judicial Court decided Bushkin, the Appeals Court undertook the task of determining the scope of the "primarily and substantially" requirement under Chapter 93A.22 In Goldstein Oil Co. v. C.K. Smith Co., Inc., the Appeals Court interpreted the Supreme Judicial Court's holding in Burnham as requiring a "place of conduct" test to determine whether conduct occurred primarily and substantially in Massachusetts for purposes of Chapter 93A.23 In that case, the court rejected a claim under Chapter 93A for unfair trade practices made against a heating-oil wholesaler by a Massachusetts distributor.24 The distributor claimed that the wholesaler's failure to deliver heating oil in accordance with its contractual obligations, and its delivery of substandard heating oil, constituted a violation of Chapter 93A.25

In determining whether the wholesaler could successfully raise the "primarily and substantially" requirement, the Appeals Court first rejected the "place of injury" test proposed by the distributor. The court explained that looking to the place where a party asserting a Chapter 93A claim suffered injury "would effectively have eliminated the 'primarily and substantially' exemption in most situations, as practically every Massachusetts plaintiff would suffer injury within the Commonwealth."26 The Appeals Court also rejected an alternative "transactional analysis" proposed by the distributor, in which the court would "analyze all aspects of the parties' relationship to determine which State had the greatest contact with that relationship."27 Instead, the court, interpreting Burnham to require the application of a "place of conduct" test, concluded that because the wholesaler delivered over 98 percent of the heating oil to the distributor in Providence, any violations of Chapter 93A did not occur primarily and substantially in Massachusetts.28

Three years later, following the Supreme Judicial Court's decision in Bushkin and the legislature's substantial amendments to Chapter 93A, the Appeals Court in Makino, U.S.A., Inc. v. Metlife Capital Credit Corp once again addressed the scope of the "primarily and substantially" requirement.29 In that case, the Appeals Court determined that a complex scheme hatched by a local vendor and a financier to defraud an equipment manufacturer occurred "primarily and substantially" in Massachusetts for purposes of Chapter. 93A.30 In that case, the financier, located in Massachusetts, assured the equipment manufacturer, located in Chicago, that he would disburse funds to the manufacturer upon receipt of the equipment, even though the financier had already disbursed the funds to a local vendor.31

The financier (actually the lender for whom the financier had been acting as an agent) argued that this conduct had not occurred primarily and substantially in Massachusetts, comparing the telephone calls in which he misrepresented the status of the equipment sale to the equipment manufacturer in Chicago with the telephone call at issue in Bushkin.32 The Appeals Court rejected this analysis, noting that the financier had embarked on a "concerted course of conduct" in Massachusetts, including the falsification of financing papers, meetings with the vendor to coordinate the deception, and arranging the delivery of the machinery in Massachusetts with the knowledge that the funds allocated to pay for the equipment had already been disbursed.33 The court concluded that "the preponderance of the wrongful conduct occurred in Massachusetts and that the essential elements of the transaction - the sales, the financing deal, and the delivery of the machine - took place in Massachusetts."34

The Appeals Court conceded that "[p]erhaps this is a 'functional approach' in that it responds to the statutory concern with commercial conduct in Massachusetts."35 The court distinguished Bushkin, noting that "the paucity of Massachusetts conduct was unmistakeable" in that case, whereas the factors presented in Makino were "more complex, and the process of measuring and weighing, which flows from the words 'primarily and substantially,' is more identifiable . . . ."36 Nevertheless, the Appeals Court was at pains to note that its analysis was "not fundamentally different from the analysis the courts were required to perform in Bushkin and Goldstein."37

In Clinton Hospital Association v. Corson Group, Inc., the United States Court of Appeals for the First Circuit, seizing on the "functional approach" of the Appeals Court, distilled from Bushkin three factors to be applied in determining whether conduct occurred primarily and substantially in Massachusetts: (1) where the defendant committed the unfair or deceptive act or practice; (2) where the plaintiff received or acted on the wrongful conduct; and (3) where the plaintiff sustained losses caused by the wrongful conduct.38 In that case, the federal court applied these three factors to a Chapter 93A claim brought by a rural Massachusetts hospital against a New York physician search firm that suppressed pertinent information about recruiting candidates.39

First, the court observed that although the search firm had acted in New York, its deceptive statements were directed toward Massachusetts.40 Second, the Massachusetts hospital had relied heavily on those statements in making employment decisions.41 Indeed, the court found that "[t]he location of the dissembler at the time he makes a deceptive statement is not the linchpin of the deception for the purpose of the consumer protection law . . . . Rather, the critical factor is the locus of the recipient of the deception at the time of the reliance."42 Third, the hospital incurred its losses when the candidates it hired at the recommendation of the search firm quickly proved unsuitable in Massachusetts.43

The circuit court of appeals in Clinton Hospital acknowledged "Bushkin and Burnham do not provide a bright line test to determine when actions or transactions violating ch. 93A occur primarily and substantially in Massachusetts."44 Nevertheless, the court inferred an intent on the part of the Supreme Judicial Court "to adopt, when and if necessary, a pragmatic, functional analysis of the significant factors that provide illumination on when actions or transactions occur primarily and substantially within Massachusetts."45 Under this approach, the court explained, "no one factor can determine the approach to the issue;" instead "[t]he functional and pragmatic analysis . . . require[s] a process of 'measuring and weighing,' particularly where the factors are more complex."46 Weighing all of these factors, the court concluded that the wrongful conduct of the search firm occurred primarily and substantially in Massachusetts.47

In subsequent decisions, the federal district court in Massachusetts made efforts at refining and expanding the factors to be considered in determining whether conduct occurred primarily and substantially in Massachusetts for purposes of Chapter 93A. For example, in Boston Hides & Furs, Ltd. v. Sumitomo Bank, Ltd.,48 the federal district court listed eight factors it discerned from state and federal precedent in determining whether conduct involving contracts had occurred primarily and substantially in Massachusetts: (1) the place of contracting; (2) the place of negotiating the contract; (3) the place of performance; (4) the location of the subject matter of the contract; (5) the domicile, residence, nationality, place of incorporation and place of business of the parties; (6) where the defendant committed the alleged deceptive or unfair acts or practices; (7) the location of the plaintiff when the plaintiff acted upon the alleged deceptive or unfair statements; and (8) the situs of the plaintiff's loss.49 As the Appeals Court observed in 1999, however, these "attempts . . . to single out particular factors that might control the functional inquiry and then to place these factors in some order of importance, are necessarily not fully satisfactory."50

Meanwhile, the United States Court of Appeals for the First Circuit continued to emphasize its holding that the location of the conduct was the "least weighty of the three factors" identified in Clinton Hospital.51 Indeed, in 1995 that court concluded in Compagnie De Reassurance D'Ile de France v. New England Reinsurance Corp. that the relative lack of weight placed on this first factor suggested that Chapter 93A was "a statute designed to protect against in-state frauds," and inferred that Chapter 93A was not intended to protect "non-Massachusetts residents [who] are here attempting to recover for the allegedly unfair trade practices of a corporation in Massachusetts."52 By 1997, in Roche v. Royal Bank of Canada, the circuit court of appeals had developed a quantitative analysis in which it balanced each of the three Clinton Hospital factors to determine whether those factors weighed in favor of the plaintiff or defendants in order to determine whether the alleged conduct had occurred primarily and substantially in Massachusetts for the purposes of Chapter 93A.53

Kuwaiti Danish and the 'Center of Gravity'

The Supreme Judicial Court recently settled the matter in Kuwaiti Danish, specifically rejecting "a test identified by any particular factor or factors," and preferring instead an approach "in which a judge should, after making findings of fact, and after considering those findings in the context of the entire § 11 claim, determine whether the center of gravity of the circumstances that give rise to the claim is primarily and substantially within the Commonwealth."54 The court cautioned against checklist analyses that determine the question on a "quantitative, rather than a case-impact, basis." Such tests, the court said, pay "no consideration . . . to the weight or significance of a particular incident in the context of the case."55 This improperly "shift[s] the focus of inquiry away from the purpose and scope of c. 93A."56 The court concluded that the weight to be accorded instances of misconduct and their effects should be determined by consideration of their significance to the Section 11 claim as a whole.57

In Kuwaiti Danish, a computer manufacturer had agreed to sell computer equipment to a foreign university, but later balked when managers at the corporate headquarters in Massachusetts realized that the salesperson in Washington, D.C., had, in violation of corporate policy, given the university a significant educational discount reserved for domestic schools.58 The managers, based in Massachusetts, demanded an additional $150,000 over the agreed price, and when the university would not pay, the manufacturer refused to go ahead with the deal.59 The trial judge found that the manufacturer had engaged in a "deceptive and unfair stringing along" of the university through a pretextual application of internal business policies. Because those policies were "created, issued and imposed" from the manufacturer's Massachusetts corporate headquarters, the trial judge concluded, the conduct had occurred primarily and substantially in Massachusetts.60

In its opinion, the Supreme Judicial Court stated that it was "satisfied that the judge made an appropriate analysis based on the facts that he found."61 Although it ultimately overturned the factual findings of the trial judge because the corporate policies themselves (as opposed to their pretextual application) were not unfair or deceptive, the court endorsed a "primarily and substantially" analysis that would permit a claim against a Massachusetts entity even where the impact of its conduct was felt entirely outside Massachusetts. The court implicitly acknowledged that, if there had been impropriety in the creation or issuance of the policy at the Massachusetts headquarters of the defendant corporation, the "center of gravity" would have existed in Massachusetts.62

The Impact of Kuwaiti Danish and the 'Center of Gravity' Test

At a minimum, because the "center of gravity" analysis is necessarily fact-intensive, pre-trial options for determining whether conduct has occurred primarily and substantially in Massachusetts may now be more limited, and a motion to dismiss more difficult to pursue. The Business Litigation Session of the Superior Court recently recognized as much in Fleet National Bank v. Certain Underwriters at Lloyd's, London.63 In that case, the court denied a motion to dismiss a Chapter 93A claim, stating that "[t]he Court finds itself between the mandate of the S.J.C. to decide the 'primarily and substantially' issue 'after making findings of fact' and the very liberal requirements for notice pleadings at the motion to dismiss stage. It can do nothing but DENY, without prejudice, the defendants' motion to dismiss . . . ."64

In Workgroup Technology Corp. v. MGM Grand Hotel, LLC, the United States District Court for Massachusetts first noted that the three-factor test previously applied in the United States Court of Appeals for the First Circuit "may no longer be good law."65 It then concluded that, because a determination of the "center of gravity" must be made on the basis of factual findings, "a motion to dismiss is no longer an appropriate vehicle for raising the issue."66 The federal district court observed that the issue may be assessed by way of a summary judgment motion at the close of discovery or special evidentiary hearing prior to trial.67

The few cases decided since Kuwaiti Danish reinforce the notion that an analysis of the "primarily and substantially" requirement of General Laws chapter 93A, section 11, is highly fact-intensive and can be conducted only on a case-by-case basis.68 The qualitative analysis that Kuwaiti Danish requires the trial court to carry out necessitates such a particularized assessment of the relevant facts and their bearing on the specifics of the Chapter 93A claim at hand. At the same time, however, Kuwaiti Danish's rejection of the quantitative analyses previously utilized by some courts does not appear to prohibit consideration of the various factors that had been considered in those analyses; the same factors may still be helpful, but instead of serving as hard-and-fast criteria for a score-keeping exercise, they may now merely guide the court's consideration of the facts surrounding the specific Chapter 93A claim being addressed.

Kuwaiti Danish provides well-needed clarification of the standard to be used to address claims under General Laws chapter 93A, section 11. Although the decision might be understood to limit the procedural means by which the courts fulfill their role, it clearly reaffirms the broad authority of trial judges to determine whether conduct occurs "primarily and substantially" in Massachusetts. Donald J. Savery Brandon L. Bigelow

1. General Laws chapter 93A, section 11, paragraph 8, as amended by St. 1986, c. 363, § 4, states: "No action shall be brought or maintained under this section unless the actions and transactions constituting the alleged unfair method of competition or the unfair or deceptive act or practice occurred primarily and substantially within the commonwealth. For the purposes of this paragraph, the burden of proof shall be upon the person claiming that such transactions and actions did not occur primarily and substantially within the commonwealth."[back]

2. 438 Mass. 459, 470-75 (2003).[back]

3. Id. at 473.[back]

4. See Bushkin Assocs., Inc. v. Raytheon Co., 393 Mass. 622, 637-39 (1985); Burnham v. Mark IV Homes, Inc., 387 Mass. 575, 579-82 (1982). Even then, these cases did not address the meaning of "primarily and substantially" under General Laws chapter 93A, section 11, paragraph 8, but rather, the antecedent to that statute located at General Laws chapter 93A, section 3(1)(b)(i).[back]

5. Burnham, 387 Mass. at 580-82 & n.9. The "primarily and substantially" limitation was actually in the form of an exception to a general exemption from chapter 93A liability for those engaged in interstate commerce: "Nothing in this chapter shall apply to . . . (b) trade or commerce of any person of whose gross revenue at least twenty per cent is derived from transactions in interstate commerce, excepting however transactions and actions which (i) occur primarily and substantially within the commonwealth, and (ii) as to which the Federal Trade Commission or its designated representative has failed to assert in writing within fourteen days of notice to it and to said person by the attorney general its objection to action proposed by him and set forth in said notice." Mass. Gen. Laws ch. 93A, § 3(1)(b) (amended by St.1983, c. 242) (emphasis added).[back]

6. Burnham, 387 Mass. at 578-79.[back]

7. Id. at 581-82.[back]

8. Id. at 580.[back]

9. Id. at 582.[back]

10. Id. at 580 n.9.[back]

11. 393 Mass. at 638-39.[back]

12. Id. at 624-27. [back]

13. Id. at 624-25, 638.[back]

14. Id. at 623.[back]

15. Id. at 631-32. [back]

16. Bushkin, 393 Mass. at 636-38.[back]

17. Id. at 638.[back]

18. Id. at 638-39 (citing Burnham, 387 Mass. at 580 n.9).[back]

19. Id. at 639.[back]

20. Id.[back]

21. Bushkin, 393 Mass. at 639.[back]

22. See, e.g., Makino, U.S.A., Inc. v. Metlife Capital Credit Corp., 25 Mass. App. Ct. 302, 311 (1988); Goldstein Oil Co. v. C.K. Smith Co. Inc., 20 Mass. App. Ct. 243, 248-50 (1985); see also Sonesta Int'l Hotels Corp. v. Central Fla. Investments, Inc., 47 Mass. App. Ct. 154, 158-60 (1999) (discussing developments in Massachusetts and federal law regarding the interpretation of "primarily and substantially" defense under chapter 93A).[back]

23. 20 Mass. App. Ct. at 248-49.[back]

24. Id. at 244, 249-50.[back]

25. Id. at 249.[back]

26. Id. at 249 & n.7.[back]

27. Id. at 250 n.8.[back]

28. See Goldstein Oil Co., 20 Mass. App. Ct. at 249-50 & n.8 (rejecting the "transactional analysis" test because "we believe the 'place of conduct' test to be the only sound method of analysis in this type of case.").[back]

29. 25 Mass. App. Ct. at 308-311. In the intervening three years, the legislature amended Chapter 93A to add the so-called "business consumer protection actions" available through chapter 93A, section 11, substantially narrowing that provision by providing that no action could be brought under section 11 "unless the parties to such action have a place of business in the commonwealth . . . ." Id. at 308 n.4 citing St. 1985, c. 278, § 3. Chapter 93A, section 11 was amended again a year later to its present-day formulation, providing that "[n]o action shall be brought or maintained under this section unless the actions and transactions constituting the alleged unfair method of competition or the unfair or deceptive act or practice occur primarily and substantially within the commonwealth." Id. at 308 n.4 (citing St. 1986, chapter 363, section 4). [back]

30. Makino U.S.A., Inc., 25 Mass. App. Ct. at 310-11.[back]

31. Id.[back]

32. Id. at 309.[back]

33. Id. at 310-11.[back]

34. Id. at 311.[back]

35. Makino U.S.A., Inc., 25 Mass. App. Ct. at 311 (citing Bushkin, 393 Mass. at 630-36, 638-39).[back]

36. Id.[back]

37. Id.[back]

38. 907 F.2d 1260, 1265-66 (1st Cir. 1990); see also Play Time, Inc. v. LDDS Metromedia Communications, Inc., 123 F.3d 23, 33 (1st Cir. 1997) (listing and discussing Clinton Hospital factors).[back]

39. Clinton Hosp. Ass'n, 907 F.2d at 1261-62, 1265-67.[back]

40. Id. at 1265.[back]

41. Id. at 1265-66.[back]

42. Id. But see Goldstein Oil, 20 Mass. App. Ct. at 248-49 (rejecting "place of injury" test).[back]

43. Clinton Hosp. Ass'n, 907 F.2d. at 1266.[back]

44. Id.[back]

45. Id.[back]

46. Id. at 1266-67.[back]

47. Id. at 1267.[back]

48 870 F. Supp. 1153 (D. Mass. 1994).[back]

49. Id. at 1166-67 & nn.20-22, cited in Citicorp North Am., Inc. v. Ogden Martin Sys. of Haverhill, Inc., 8 F. Supp. 2d 72, 81 (D. Mass. 1998) ("To this comprehensive list I would add two factors: whether the underlying contract is to be governed by and interpreted in accordance with Massachusetts law, and whether the parties to the underlying contract agreed to submit all contract disputes to Massachusetts (state and federal) courts.").[back]

50. Sonesta Int'l Hotels, 47 Mass. App. Ct. at 160 (citing Boston Hides, 870 F. Supp. at 1166-67). As the Appeals Court noted, "[p]erhaps the draftsmen (or the Legislature) had in mind, by means of the disincentive of c. 93A, to improve the moral tone of business in the Commonwealth, but were not interested in trying to impose our normative standards on other communities . . . . But there may have been a legislative purpose to protect local businesses from predacious activity elsewhere that reached into the Commonwealth by causing loss here, a thought that could turn interpretation in another direction." Id. at 159.[back]

51. See, e.g., Roche v. Royal Bank of Canada, 109 F.3d 820, 829 (1st Cir. 1997); Compagnie De Reassurance D'Ile de France v. New England Reinsurance Corp., 57 F.3d 56, 90 (1st Cir. 1995).[back]

52. 57 F.3d at 90.[back]

53. 109 F.3d at 831. The court noted:[back]

The district court balanced the three factors and found that defendants - in whose favor the first two factors weighed - had met their burden of proving that the deception has occurred primarily and substantially outside Massachusetts. Although the pragmatic, functional analysis is not necessarily limited to the three factors, it is significant that two of the three identified factors weigh in favor of the defendants here.[back]

Id. [back]

54. 438 Mass. at 473.[back]

55. Id. at 473 n.14. The court also observed inconsistencies between the approaches of the Appeals Court and federal courts, with the Appeals Court considering the "place of conduct" to be the determinative factor in at least one case, while federal courts considered the "place of conduct" to be the "least weighty" of the three factors. Id. at 472 n.13. Compare Goldstein Oil, 20 Mass. App. Ct. at 250 & n.8, with Roche, 109 F.3d at 829. The Supreme Judicial Court found that both the Appeals Court and federal courts also placed little weight on the "place of injury" factor, despite the fact that the Supreme Judicial Court had considered the situs of loss in its own determination that conduct did not occur "primarily and substantially" in Massachusetts. Kuwaiti Danish, 438 Mass. at 472 n.13 (citing Bushkin, 393 Mass. at 638).[back] 56. Kuwaiti Danish, 438 Mass. at 473. 57. Id. As the court noted, [o]n the one hand, a single instance of misconduct in one jurisdiction may have greater significance for a case as a whole than a multiplicity of instances of misconduct in another jurisdiction. On the other hand, the sheer number of instances of misconduct in one jurisdiction may produce the heft needed to resolve the question. The same observations may be made about the nature and number of instances of misconduct received, and misconduct acted on. Id. 58. Id. at 463-64. 59. Id. 60. Kuwaiti Danish, 438 Mass. at 471. 61. Id. at 473-74. 62. Id. at 474-75. 63. 16 Mass. L. Rptr. No. 9, 212 (May 14, 2003) (van Gestel, J.). 64. Id. 65. 246 F. Supp. 2d 102, 117 (D. Mass. 2003). 66. Id. at 118. 67. Id. 68. In Auto Shine Car Wash Systems, Inc. v. Nice 'N Clean Car Wash, Inc., 58 Mass. App. Ct. 685, 688-89 (2003), the Appeals Court held that a trial court properly concluded that conduct had occurred primarily and substantially in Massachusetts, even though the trial court had conducted its analysis without the benefit of the Kuwaiti Danish opinion. In that case, in which a Massachusetts car wash company misrepresented its reasons for canceling a purchase agreement with a New Hampshire equipment supplier, the Appeals Court observed that, in determining whether the underlying conduct occurred primarily and substantially in Massachusetts, "[c]rucial to the judge's decision . . . [were] his findings that the deception and resulting harm that form the basis of the § 11 claim both occurred in Massachusetts." Id. at 689. Compare Compagnie De Reassurance, 57 F.3d at 90 (casting doubt on the validity of claims by non-Massachusetts plaintiffs attempting to recover for conduct largely carried out by defendant in Massachusetts "under a statute designed to protect against in-state frauds"); see also Kenda Corp., Inc. v. Pot O'Gold Money Leagues, Inc., 329 F.3d 216, 236 (1st Cir. 2003) (holding "virtually all the conduct that can be said to be unfair or deceptive" occurred outside Massachusetts; citing Kuwaiti Danish).

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