Walsh v. Teltech System

Filing

OPINION issued by William J. Kayatta , Jr., Appellate Judge; Norman H. Stahl, Appellate Judge and David J. Barron, Appellate Judge. Published. [15-1987]

Case: 15-1987

Document: 00116993264

Page: 1

Date Filed: 05/02/2016

Entry ID: 5996113

United States Court of Appeals
For the First Circuit
No. 15-1987
SIOBHAN WALSH,
Plaintiff, Appellant,
v.
TELTECH SYSTEMS, INC.,
Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]

Before
Kayatta, Stahl, and Barron,
Circuit Judges.

Richard B. Reiling for appellant.
Mark C. Del Bianco, with whom Law Office of Mark C. Del
Bianco, Sean T. Carnathan, Joseph P. Calandrelli, and O'Connor
Carnathan & Mack LLC were on brief, for appellee.

May 2, 2016

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BARRON, Circuit Judge.

Date Filed: 05/02/2016

Entry ID: 5996113

This case concerns a prepaid

minutes-based calling service -- named SpoofCard -- that allows
customers to disguise the phone number from which they place calls.
In 2009, a customer used that service to disguise her identity so
that

she

could

make

it

harassing the appellant.

seem

like

someone

else

was

sexually

The appellant sued the provider of that

service, TelTech Systems, Inc. ("TelTech"), under Massachusetts's
consumer protection statute.

The District Court granted summary

judgment for the company on the ground that no reasonable jury
could find that TelTech caused the appellant's injuries.

We

affirm.
I.
"On review of an order granting summary judgment, we
recite the facts in the light most favorable to the nonmoving
party."

Commodity Futures Trading Comm'n v. JBW Capital, 812 F.3d

98, 101 (1st Cir. 2016) (quotation marks and citation omitted).
As TelTech was the moving party, we recite the facts in the light
most favorable to the appellant, Siobhan Walsh.
TelTech's

SpoofCard

service

enables

customers,

when

placing phone calls, to "spoof" or disguise their caller ID by
selecting the number they would like to appear on recipients'
caller ID screens.

That service also permits customers to alter

their voices -- for example, by making a woman's voice sound like
a man's voice -- in the course of a call.

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And, finally, that

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service provides for a means to ensure that calls are recorded and
stored.
The events that gave rise to the current suit relate to
a particularly ugly -- but, the record sadly indicates, by no means
altogether unusual -- use of the SpoofCard service.

In January

2009, Walsh lived in an apartment complex in Quincy, Massachusetts.
John Luciano lived in that same complex.
at a local restaurant.

Luciano worked as a chef

He was acquainted with a man by the name

of Michael DiLorenzo, who was married to a woman by the name of
Johnienne DiLorenzo.
Johnienne had once worked at Luciano's restaurant, and
Luciano had helped her to get the job.

But Luciano testified that

he fired Johnienne because "she kept screwing it up" and "showing
up late."

Johnienne testified that, in fact, she quit the job due

to unwanted sexual advances from Luciano.
What matters for present purposes is that one night,
after Johnienne had been fired by Luciano, she was at a party when
she

overheard

her

friends

discussing

SpoofCard.

Johnienne's

friends told her about the SpoofCard website and demonstrated how
SpoofCard worked by calling each other's phones and using the
SpoofCard features.

Johnienne later told her husband, Michael,

about SpoofCard.
On January 15, 2009, one of the DiLorenzos -- it is not
clear

who

--

purchased

SpoofCard

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minutes

from

the

SpoofCard

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website.

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On January 28, 2009, Johnienne made six phone calls to

Walsh using SpoofCard to mimic a man's voice and to make it appear
as if the calls were placed using Luciano's telephone number.
In those calls, Johnienne -- posing as Luciano -- made
a series of sexually harassing comments to Walsh.

Through the use

of the SpoofCard service, the January 28 phone calls between
Johnienne

and

Walsh

were

recorded

without

Walsh's

consent,

potentially in violation of Mass. Gen. Laws ch. 272, § 99 ("Chapter
272, § 99"), which, among other things, proscribes the recording
of phone conversations without the consent of each party to the
call.
Walsh,

believing

that

Luciano

had

made

the

calls,

reported Luciano to the Quincy Police Department later that same
day.

Luciano was arrested on the evening of January 28, 2009, on

charges of criminal threatening and criminal harassment.

Luciano

spent several days in jail.
On February 2, 2009, Walsh received several voicemails
from

a

blocked

number.

The

voicemail

messages

threatened

retaliation if Walsh did not drop the charges against Luciano.
Walsh believed these calls, too, came from Luciano, and the
confusion about the source of the calls ultimately led authorities
to bring felony witness intimidation charges against Luciano.

As

a result of these events, Walsh moved out of her apartment and
quit a job working at the Boston Garden.

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According

to

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Walsh's

Date Filed: 05/02/2016

complaint,

the

Entry ID: 5996113

DiLorenzos,

on

December 4, 2009, admitted to Quincy police that they called Walsh
on January 28, 2009, and that they made it appear as if the call
were coming from Luciano's phone number.
Attorney,

according

to

Walsh,

The Assistant District

thereafter

dropped

the

charges

against Luciano and pursued charges against the DiLorenzos for
criminal harassment, criminal threatening, witness intimidation,
and misleading a police officer.
On December 2, 2013, Walsh filed a complaint against
TelTech in the United States District Court for the District of
Massachusetts.

Walsh alleged that TelTech engaged in a number of

"unfair and deceptive acts and practices" in violation of Mass.
Gen. Laws ch. 93A, § 2 ("Chapter 93A").

In particular, Walsh

alleged that TelTech violated Chapter 93A by violating Chapter
272,

§

99,

and

by

"offer[ing]

the

SpoofCard

service"

while

"encourag[ing] [the] use of the SpoofCard for illegal purposes"
(as evidenced by the promotional material on SpoofCard's website).1
For relief, Walsh requested compensatory damages (in the amount of
$5 million), treble damages, punitive damages, disgorgements of
profits from the sale of the SpoofCard service, and attorneys'

1

Walsh also alleged that TelTech violated a number of other
Massachusetts statutes, such as Mass. Gen. Laws ch. 266, § 37E
(prohibiting identity theft), and that these violations each
constituted a violation of Chapter 93A. But Walsh does not make
any argument on appeal regarding these other theories of liability.
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fees and costs under Chapter 93A, as well as an injunction against
the future sale and promotion of SpoofCard.
On January 30, 2015, TelTech filed a motion for summary
judgment.

Walsh filed a memorandum opposing TelTech's motion on

February 25, 2015.

On March 19, 2015, Walsh filed a motion for

leave to file a sur-reply.
On July 30, 2015, the District Court granted TelTech's
motion for summary judgment.

The District Court held that no

reasonable jury could find that TelTech's actions caused Walsh's
injuries.

The District Court found that the offering of the

service alone could not give rise to liability under Chapter 93A,
because spoofing has legitimate purposes.

And the District Court

found that the promotional material on TelTech's website could not
give rise to liability under Chapter 93A because there was no
evidence that the DiLorenzos viewed that material, much less that
the DiLorenzos were influenced by it.

Finally, the District Court

denied Walsh's motion for leave to file a sur-reply, in part
because Walsh gave the court no reason to deviate from its rule
disfavoring the filing of sur-replies.
On appeal, Walsh makes two main arguments as to how the
District Court erred.
Court

failed

to

First, Walsh contends that the District

address

Walsh's

contention

that

TelTech's

violation of Chapter 272, § 99, constituted a violation of Chapter
93A.

Second, Walsh contends that the District Court erroneously

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disposed of her remaining Chapter 93A claims on causation grounds.
We take up each of these contentions in order.2
II.
Because we are reviewing an award of summary judgment,
we may affirm "only if we, like the District Court, conclude that
'the record shows there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter of
law.'"

McCue v. Bradstreet, 807 F.3d 334, 340 (1st Cir. 2015)

(quoting McGrath v. Tavares, 757 F.3d 20, 25 (1st Cir. 2014)).

We

review "de novo, drawing all reasonable inferences in favor of the
nonmoving party while ignoring conclusory allegations, improbable
inferences, and unsupported speculation."

Id. (quoting Shafmaster

v. United States, 707 F.3d 130, 135 (1st Cir. 2013)).

2

Walsh also contends that the District Court abused its
discretion in denying Walsh's motion for leave to file a surreply. But we see no basis for concluding that the District Court
abused its discretion in this regard.
When granting TelTech's
motion for summary judgment, the District Court refrained from
relying on any new arguments TelTech set forth in its reply brief
(to the extent any arguments in the brief could be construed as
"new"). See Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1164
(10th Cir. 1998) (noting that district courts do not abuse their
discretion in precluding sur-replies when they "refrain[] from
relying on any new material contained in the reply brief").
Moreover, Walsh gave the District Court no reason to overlook her
failure to make in her memorandum opposing TelTech's motion for
summary judgment the argument she intended to make in sur-reply.
And no such reason is apparent to us, as Walsh had notice and a
reasonable opportunity to make that argument by the time she filed
her opposing memorandum.
See id. at 1164-65 (noting that,
consistent with the purposes of Fed. R. Civ. P. 56(c), nonmovants
are entitled to notice and reasonable opportunity to respond to
the movant's summary judgment materials).
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III.
Chapter

93A

protection statute.

is

a

broad,

Massachusetts

consumer

A plaintiff seeking relief under Chapter 93A

must prove that the defendant engaged in "unfair or deceptive acts
or practices in the conduct of any trade or commerce."

Mass. Gen.

Laws ch. 93A, § 2.
Under Chapter 93A, an act or practice is unfair if it
falls "within at least the penumbra of some common-law, statutory,
or

other

established

concept

of

unfairness";

"is

immoral,

unethical, oppressive, or unscrupulous"; and "causes substantial
injury to consumers."

PMP Assocs. v. Globe Newspaper Co., 321

N.E.2d 915, 917 (Mass. 1975) (quoting 29 Fed. Reg. 8325, 8355
(1964)).

To rise to the level of an "unfair" act or practice, the

defendant's

conduct

negligent nature.

must

generally

be

of

an

egregious,

non-

See Baker v. Goldman, Sachs & Co., 771 F.3d 37,

51 (1st Cir. 2014).

Under Chapter 93A, an act or practice is

deceptive "if it possesses a tendency to deceive" and "if it could
reasonably be found to have caused a person to act differently
from the way he [or she] otherwise would have acted."

Aspinall v.

Philip Morris Cos., Inc., 813 N.E.2d 476, 486-87 (Mass. 2004)
(alteration in original) (quotation marks and citations omitted).
The Massachusetts Supreme Judicial Court ("SJC") has
held

that

"causation

[Chapter] 93A claim."

is

a

required

Id. at 491.

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element

of

a

successful

To establish causation, a

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plaintiff must "prove that the defendant's unfair or deceptive act
caused an adverse consequence or loss."

Rhodes v. A.I.G. Domestic

Claims, Inc., 961 N.E.2d 1067, 1076 (Mass. 2012).
failure

to

establish

both

factual

causation

causation is fatal to her Chapter 93A claim.

A plaintiff's
and

proximate

See Hershenow v.

Enterprise Rent-A-Car Co. of Bos., Inc., 840 N.E.2d 526, 535 (Mass.
2006); McCann v. Davis, Malm & D'Agostine, 669 N.E.2d 1077, 1079
(Mass. 1996).
Walsh sets forth a number of theories as to how TelTech
violated Chapter 93A.

We first consider Walsh's contention that

TelTech is liable under Chapter 93A because TelTech violated an
independent statute, Chapter 272, § 99.

We then consider Walsh's

several contentions that TelTech is liable under Chapter 93A
because TelTech proximately caused the injuries Walsh suffered
from the harassing nature of the January 28 calls.
A.
Walsh contends that "the District Court erred by failing
to consider [Walsh's] 93A claim based on [TelTech's] purposeful
violation of [Chapter 272, § 99]," even though Walsh set forth
that

theory

of

liability

in

both

her

complaint

and

memorandum opposing TelTech's motion for summary judgment.

in

her

We may

affirm the District Court's grant of summary judgment, however, on
any ground made manifest by the record, including one not reached
by the District Court.

See Peabody Essex Museum, Inc. v. U.S.

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Fire Ins. Co., 802 F.3d 39, 43 (1st Cir. 2015).

Entry ID: 5996113

And we do so here

on the ground that Walsh has failed to identify an injury arising
from any alleged violation of Chapter 272, § 99, that is distinct
from the alleged violation itself.3
Walsh, relying on Leardi v. Brown, 474 N.E.2d 1094 (Mass.
1985), contends that she is entitled to recover at least nominal
damages under Mass. Gen. Laws ch. 93A, § 9(3), by virtue of
TelTech's violation of Chapter 272, § 99. Walsh appears to contend
that TelTech violated Chapter 272 in two respects, as she refers
to both Mass. Gen. Laws ch. 272, § 99(C), which prohibits secret
recordings of phone calls without the consent of all the recorded
parties, and Mass. Gen. Laws ch. 272, § 99(3)(A), which prohibits
the use of information obtained via such secret recordings.
The problem for Walsh is that the SJC has recently made
clear that the violation of an independent statute such as Chapter
272, § 99, does not itself "satisf[y] the injury requirement of c.

3

We assume without deciding that a claim premised on a
violation of Chapter 272, § 99 is actionable under Chapter 93A,
notwithstanding that that provision has its own civil action and
civil remedies provision, see id. § 99(Q), and is part of a complex
regulatory scheme.
See Reiter Oldsmobile, Inc. v. Gen. Motors
Corp., 393 N.E.2d 376, 378 (Mass. 1979); Cabot Corp. v. Baddour,
477 N.E.2d 399, 402 (Mass. 1985). But see 940 Mass. Code. Regs.
§ 3.16(3); MacGillivary v. W. Dana Bartlett Ins. Agency of
Lexington, Inc., 436 N.E.2d 964, 969 (Mass. App. Ct. 1982). We
also assume without deciding that TelTech violated Chapter 272,
§ 99, either as a principal or as an aider and abettor, and that
TelTech's conduct otherwise satisfies the requirements of Chapter
93A, § 2. See McDermott v. Marcus, Errico, Emmer & Brooks, P.C.,
775 F.3d 109, 120 (1st Cir. 2014).
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93A, § 9," and thus does not "automatically entitle[] the plaintiff
to at least nominal damages (and attorney's fees)" under Chapter
93A.

Tyler v. Michael Stores, Inc., 984 N.E.2d 737, 744-45 (Mass.

2013) (clarifying the scope of Leardi).

Rather, "a plaintiff

bringing an action . . . under c. 93A, § 9, must allege and
ultimately prove that she has, as a result [of the statutory
violation], suffered a distinct injury or harm that arises from
the claimed unfair or deceptive act." Id. at 745 (emphasis added).
In

Tyler,

the

plaintiff

accused

the

defendant

of

violating a statute, Mass. Gen. Laws ch. 93, § 105 ("§ 105"), that
prohibits

companies

from

writing

customers'

"personal

identification information" on credit card transaction forms when
the credit card issuer does not require the company to provide
such information.

Tyler, 984 N.E.2d at 738 & n.1.

The SJC

explained that if the company, as a result of a violation of § 105,
"use[d] the [personal identification] information for its own
business purposes," such as "by sending the customer unwanted
marketing materials or by selling the information for a profit,"
the company would "ha[ve] caused the consumer an injury that [wa]s
distinct from the statutory violation itself and [thus] cognizable
under G.L. c. 93A, § 9."

Id. at 746.

But the SJC went on to

explain that if, by contrast, the company had placed the personal
information in a file "and never used the information for any
purpose thereafter, a consumer would not have a cause of action

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for damages" under Mass. Gen. Laws ch. 93A, § 9(3), even though
the employer may have violated § 105 and thereby infringed on the
customer's privacy.

Id. at 746 n.17.

Walsh does not address Tyler and thus makes no developed
argument that she suffered a distinct injury within the meaning of
that case.

The closest she comes to making such an argument is

when she asserts that TelTech "presumably" utilized the January 28
recordings as part of its "prank calls app."

TelTech's "prank

calls app" feature permitted users to listen to randomly selected
recorded calls made by SpoofCard customers.

But Walsh provided no

evidence to support her bare assertion that TelTech used the
recordings in connection with this feature.

Because Walsh has

failed to create a genuine issue of material fact as to whether
she suffered a "distinct injury," Tyler, 984 N.E.2d at 746, we
affirm the District Court's award of summary judgment on the
Chapter 93A claim to the extent that claim is premised on TelTech's
alleged violation of Chapter 272, § 99.4
B.
Walsh next contends that the District Court erred by
ruling that TelTech was not liable under Chapter 93A for the

4

Walsh argues for the first time in her reply brief that she
suffered emotional distress damages as a result of TelTech's
alleged violation of Chapter 272, § 99, and thus any argument along
those lines is waived. See N. Am. Specialty Ins. Co. v. Lapalme,
258 F.3d 35, 45 (1st Cir. 2001).
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injuries Walsh suffered due to the harassing nature of the calls
that Johnienne made using the SpoofCard service.

Here, too, we

affirm.
Walsh initially contends there is a genuine issue of
material fact as to whether Johnienne viewed certain promotional
material on the SpoofCard website.

Walsh contends that such

material encouraged customers to engage in illegitimate uses of
the SpoofCard service.

Walsh bases her contention regarding what

the record shows about what material Johnienne saw on the fact
that Johnienne testified that she could not recall what, if
anything, she saw on the SpoofCard website.

Walsh then contends

that if a reasonable jury could find that Johnienne viewed the
offending promotional material, then a reasonable jury could also
find that TelTech caused Walsh's injuries.
The District Court supportably found, however, that
there was insufficient evidence to permit a reasonable jury to
find

that

the

DiLorenzos

viewed

the

offending

promotional

material -- that is, there was insufficient evidence that, in the
course of purchasing the SpoofCard service, the DiLorenzos would
have been exposed to the webpages on which such promotional
material appeared.

These findings are in no way contradicted by

the testimony Johnienne gave about her limited recollection of
what, if anything, she saw on the SpoofCard website.

For that

reason, we agree with the District Court that Walsh has failed "to

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present definite, competent evidence" from which a jury could
reasonably infer that Johnienne viewed the offending material.
Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir.
1992). We thus affirm the District Court's summary judgment ruling
with respect to this theory of liability.
Walsh also contends that TelTech ought to be held liable
under Chapter 93A, apparently on a "deceptive" practices theory,
for failing to disclose the legal risks of using the SpoofCard
service as Johnienne did.

See 940 Mass. Code Regs. § 3.16(2)

(stating that a person may be held liable under Chapter 93A for
failing to disclose to a buyer "any fact, the disclosure of which
may have influenced the buyer . . . not to enter into the
transaction").

In that connection, Walsh asserts that Johnienne

would not have made the January 28 calls to Walsh if TelTech had
disclosed the risks of engaging in the conduct at issue here.
The District Court did not expressly address Walsh's
"failure to disclose" theory.

But Walsh has failed to develop an

argument to support such a theory.

For example, Walsh does not

address whether TelTech was under an obligation to disclose the
risks to Johnienne, whom the record shows may not have even
purchased the SpoofCard service. Similarly, Walsh does not address
whether reliance on the absence of a disclosure of this sort would
have been reasonable.
Cir.

2012).

Nor

See Edlow v. RBW, LLC, 688 F.3d 26, 39 (1st

does

Walsh

address

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how

TelTech's

terms

of

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service

--

which

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contained

legal

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disclaimers

and

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which

the

uncontroverted evidence in the record shows were accepted by the
purchaser of the SpoofCard service -- bears on the matter.

Walsh

merely asserts that disclosure to Johnienne would have prevented
the injurious conduct from occurring.

We thus affirm the District

Court's award of summary judgment with respect to that theory as
well.

See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)

("[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.").
Finally, Walsh contends that TelTech ought to be held
liable under Chapter 93A, apparently on an "unfair" practices
theory, for designing SpoofCard and promoting it "in the exact
manner for which" Johnienne used the service.

In pressing this

theory of liability, Walsh appears to contend that TelTech's
liability under Chapter 93A does not depend on the DiLorenzos'
having seen the promotional material on TelTech's website.
In so contending, Walsh may mean to argue that SpoofCard
can only be used illegitimately and thus that Walsh's injuries
were necessarily proximately caused by the mere offering of the
SpoofCard service, without regard to how TelTech promoted the
service.

To the extent that is Walsh's contention, we agree with

the District Court's finding that the record does not support the
factual predicate about the nature of the service on which that
contention would depend.

See Teltech Sys., Inc. v. Bryant, 702

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F.3d

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232,

238

(5th

Cir.

Page: 16

2012)

Date Filed: 05/02/2016

(describing

a

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Senate

Report

accompanying the federal "Truth in Caller ID Act," which "noted
spoofing's legitimate importance for domestic-violence victims, or
for consumers who wish to provide a temporary call-back number
that

differs

from

their

actual

telephone

number"

and

which

characterized the "federal effort to curtail spoofing" as focused
more narrowly "on persons intending to cause harm through fraud or
criminal mischief").
Alternatively, Walsh may mean to argue that TelTech's
promotion

of

SpoofCard's

illegitimate

uses

demonstrates

that

TelTech proximately caused Walsh's injuries by not only offering
the service but also by promoting the service as it did, regardless
of whether Johnienne saw the promotional material that TelTech set
forth.

In

promotional

other

words,

material

Walsh

shows

appears

that

to

contend

Johnienne's

that

actions

the
were

reasonably foreseeable to TelTech even if that material did not
cause Johnienne to take action.
To the extent that is Walsh's contention, we agree with
the

District

Court

that

Walsh

has

establishing proximate causation.

not

met

her

burden

of

The promotional material to

which Walsh alludes involved references to both illegitimate and
legitimate uses of the SpoofCard service, and TelTech did set forth
the following terms of service to purchasers:

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You agree to use the SpoofCard.com services only for
purposes that are lawful in the jurisdictions where you
are calling from and calling to. You shall not transmit
any unlawful, harmful, threatening, abusive, harassing,
defamatory, vulgar, obscene, sexually explicit, . . . or
otherwise objectionable material of any kind, including
but not limited to any material that . . . violates any
applicable local, state, national, or international law.
Against that background, Walsh points to no state law authority to
support

the

novel

proposition

that

Chapter

93A's

proximate

causation requirement may be satisfied even absent any connection
between Johnienne's actions and TelTech's promotional material,
which was of a limited nature.

See Velleca, Jr. v. Uniroyal Tire

Co., Inc., 630 N.E.2d 297, 299 (Mass. App. Ct. 1994) (holding that
the defendant was not liable for plaintiff's injuries under Chapter
93A because it was the plaintiff's misuse of defendant's product
that was "the sole cause" of plaintiff's injuries). We thus reject
this ground for reversal as well.

See S. Commons Condo. Ass'n v.

Charlie Arment Trucking, Inc., 775 F.3d 82, 91 (1st Cir. 2014)
(noting that plaintiffs, "having chosen a federal forum to seek
relief that depends at least in part on the meaning of state law,
should not 'expect the federal court to steer state law into
unprecedented

configurations'"

(quoting

Santiago

v.

Sherwin

Williams Co., 3 F.3d 546, 549 (1st Cir. 1993))); Baker, 771 F.3d
at

52

("If

the

standard

for

ch.

93A

liability

requires

clarification, the SJC can provide it in an appropriate case."
(citing Gill v. Gulfstream Park Racing Ass'n, Inc., 399 F.3d 391,

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402 (1st Cir. 2005) ("A federal court sitting in diversity cannot
be expected to create new doctrines expanding state law."))).
IV.
Walsh was the victim of something far worse than a
prank, and she was victimized by use of a service that facilitated
such awful conduct.

But the District Court properly ruled that,

on this record, the provider of that service was entitled to
summary judgment on her state law claim.
Accordingly, we affirm.

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