Shimizu Corporation v. Dow Roofing Systems, LLC

Filing 122

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered granting in part and denying in part 50 Motion for Summary Judgment,Count I for breach of the express warranties of quality, merchantability and suitability remain for resolution; granting 68 Motion for Partial Summary Judgment (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
SHIMIZU CORPORATION,
Plaintiff,
v.
DOW ROOFING SYSTEMS, LLC,
Defendant.

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CIVIL ACTION NO.
11-30085-DPW

MEMORANDUM AND ORDER
September 27, 2013
This action arises out of a failed contract to provide
roofing material.

Plaintiff Shimizu Corporation is a Japanese

general contractor.

It alleges that Defendant Dow Roofing

Systems1 sold it defective roofing material for installation on
Canon Opto factory buildings in Malaysia, which began to leak
within a few years of installation.
Plaintiff also brings claims for contractual breach of the
warranty of merchantability, contractual breach of the warranty
of fitness for a particular purpose, fraudulent or negligent
misrepresentation, fraudulent inducement, negligence, and
violation of M.G.L. 93A for unfair or deceptive business
practices.

Dow is named as Defendant in this case in its capacity as
successor in interest to JPS Elastomerics Corp. d/b/a Stevens
Roofing Systems. For consistency and clarity, I will refer to
the Defendant as “Dow” throughout this Memorandum.
1

Dow argues that it made no general warranties, that it has
satisfied the limited, material-only warranty that Canon
purchased, and that the Massachusetts statute of limitations
governing the sale of goods bars Shimizu’s contract claims.
parties have filed cross-motions for summary judgment.

The

Shimizu

seeks partial summary judgment that its General Terms and
Conditions control the contract between the parties.
summary judgment on all counts of the Complaint.

Dow seeks

While I find

Shimizu is entitled to summary judgment that its General Terms
and Conditions control the agreement, the undisputed facts
establish that Shimizu cannot sustain most of the claims it
presses.

Only the breach of the warranty of merchantability

claim survives.

I will grant Dow’s motion for summary judgment,

except with respect to Shimizu’s breach of the warranty of
merchantability claim.
I.

BACKGROUND

In 2004, Canon Opto, one of the largest manufacturers of
digital cameras and lenses in the world, hired Shimizu to
investigate leaks in the roof of a Canon Opto factory in
Malaysia.

Shimizu presented a number of options to fix the

leaks, including covering the factory’s existing metal roof with
“resin sheet,” such as the thermoplastic polyolefin (“TPO”) at
issue in this case.

In discussing the resin sheet option, the

report that Shimizu presented to Canon stated that “the renewal
2

or update cycle is about 15 to 20 years, no protective coating or
painting.”

However, Hidehiko Yoshimine, who authored the report,

has testified that he “did not know about TPO” at the time he
wrote the report.

As part of Shimizu’s presentation of various

options, a Dow independent sales representative - Tameshi Yamaki
- presented the potential benefits of Dow’s TPO roofing material.
Ultimately, Canon decided on the resin sheet option and hired
Shimizu to design and install the roof.

Shimizu hired a

subcontractor, Shin Eversendai, to perform the actual
installation.
Shimizu alleges, and Dow disputes, that Mr. Yasuhisa Ueda
and Mr. Yamaki, both acting on behalf of Dow, represented to
Shimizu’s Mr. Tanabe that Dow TPO would have “outstanding
weatherability” and would last for 15-20 years.

Shimizu further

alleges that Mr. Tanabe received various Dow catalogs including
such representations, but Dow indicates that because Mr. Tanabe
did not speak English, Dow representatives partially explained to
him what the catalogs stated.
The only express reference to a relevant warranty in the
catalogs is an explanation of the various warranty options Dow
offers for purchase ranging from “material-only” to “total
system” with three potential lengths: 5 years, 10 years, or 15

3

years.2

Dow contends, and Shimizu now disputes, that Canon

itself selected the 10 year, material-only warranty.

Throughout

the negotiations, both Shimizu and Dow regularly discussed this
10 year, material-only warranty, and Dow assured Shimizu that it
would issue the warranty to Canon upon the completion of the
project.

Shimizu does not dispute that Dow ultimately issued a

10 year, material-only warranty to Canon.
A.

Dow’s Conditions of Sale
Shimizu and Eversendai negotiated with Dow to purchase TPO

roofing material.

On October 17, 2004, during negotiations, a

Dow sales representative sent an email to Mr. Nakamura, who
worked in overseas procurement for Shimizu.

This email contained

price quotations for Dow TPO roofing material and instructions
for a letter of credit to purchase it.

The email also provided

Dow’s standard conditions of sale “for review.”

The standard

conditions state,
[DOW ROOFING] (HEREINAFTER “SELLER”) MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION, WARRANTIES OF FITNESS FOR ANY PARTICULAR
PURPOSE OR MERCHANTABILITY BEYOND THE WARRANTY THAT THE
PRODUCTS SOLD HEREUNDER ARE FREE FROM MANUFACTURING
DEFECTS. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE
FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING
FROM ANY BREACH OF WARRANTY. SELLER’S SOLE LIABILITY
AND BUYER’S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR
SELLER TO SUPPLY REPLACEMENT MATERIAL/ACCESSORIES AND
SELLER SHALL NOT BE LIABLE FOR THE LABOR OR COSTS
One of the brochures also discusses a warranty that TPO roofing
can sustain certain wind speeds, but that issue is not relevant
to this case.
2

4

INVOLVED IN THE REPLACEMENT OF ANY MATERIALS/
ACCESSORIES.
Dow’s conditions also disclaim special or consequential damages
and provide that “Buyer’s sole remedy against Seller is that
Seller, at its discretion will repair, replace or refund the
purchase price for any product sold hereunder.”

Finally, Dow’s

conditions state that
any terms offered by Buyer which are inconsistent with
the terms and conditions herein are not binding on the
sale of the material/ accessories referred to on the
first page hereof. Unless Buyer receives in writing
from Seller, Seller’s written consent to a modification
of the terms and conditions hereof, the sale by Seller
of the material/ accessories shall be conclusively
deemed to be governed by all of the terms and
conditions herein.
B.

Shimizu’s General Terms and Conditions
Three days later, on October 20, 2004, Mr. Nakamura, from

Shimizu, sent Ms. Boisvert and Mr. Yamaki, from Dow, Shimizu’s
standard purchase order, which contained different provisions.
In relevant part, Shimizu’s General Terms and Conditions
include paragraphs 4 and 6, which state,
4. WARRANTY : Seller shall warrant the quality,
merchantability and suitability of the goods. Any
claim by Buyer except for latent defects, shall be made
in writing, giving description thereof, and be posted
within 30 days of the arrival of the goods at the final
destination specified on the face hereof, or as soon as
practicable thereafter. Seller shall however be
responsible for latent defects of the goods regardless
of any failure or delay in giving such notice.
. . .

5

6. BREACH OF CONTRACT : In the event of breach by
Seller of any term, condition, and/or warranty of this
Contract, Buyer may, without prejudice to his right to
full and just damages, reject the goods . . . .
Seller’s liabilities in the event of such breach shall
include but not be limited to the loss of the profit
which Buyer would reasonably have gained from resale of
the goods, the loss incurred by Buyer due to forfeiture
of a bond or security, the liabilities of Buyer to any
person, arising from such breach by Seller, and all
expenses incurred by Buyer in relation thereto.
Shimizu’s General Terms and Conditions also provide that the
contract is made on a “principal-to-principal basis between
Seller and Buyer,” that any disputes must be settled by
arbitration in Tokyo, Japan, and that the contract will be
governed by the laws of Japan.
C.

Negotiations and Issuing the 10-Year Material Warranty
The next day, October 21, 2004, Mr. Yamaki emailed Ms.

Boisvert stating that,
Mr. Nakamura said he hopes that you can accept their
general terms and conditions and proceed [with]
purchasing procedures immediately. At last meeting, I
also advised that Shimizu to [sic] accept your
condition of sales, but Shimizu is not [a] small
company, it seems not to be easy for them to change
quickly their rules.
Ms. Boisvert replied, stating “[w]e have carefully reviewed
Shimizu’s Purchase Order, terms and conditions, shipping
instructions and [Letter of Credit] instructions . . . and offer
the following comments.”

Her comments suggested alterations to

the shipping terms and requested that the governing law section
be changed to provide that disputes be handled through the
6

International Dispute Resolution Centre in London.
request any changes to paragraphs 4 or 6.

She did not

She also noted that

“the warranty will be issued upon completion of the project – we
will need to receive a completed Request for Warranty (form is
enclosed),” and under the title “Re Your e-mail earlier today,”
further noted that “we will issue a 10 year material only
warranty.”
Mr. Nakamura responded on October 22, 2004 and agreed to
change the governing law provision.3

As revised, the General

Terms and Conditions provide for arbitration through the
International Dispute Resolution Centre and also state that
“[t]his contract shall be governed in all respects by laws of
LONDON UK.”

The parties continued to negotiate the particulars

of the shipping terms, but there was no further discussion of the

Although Shimizu argues that its version of the General Terms
and Conditions are the controlling contractual provisions, as
amended through negotiations, it framed this lawsuit under
Massachusetts law in spite of a choice-of-law provision requiring
arbitration under the laws of the United Kingdom. Both parties
drafted their summary judgment briefs relying upon Massachusetts
law, and neither argued that the arbitration provision precludes
this suit. At oral argument on the motion, I raised the issue of
UK law sua sponte. Dow contended that the parties had waived the
choice-of-law provision as well as the arbitration provision.
Shimizu admitted that it had waived the arbitration provision,
but represented that it had neither considered nor researched the
choice-of-law question. I directed the parties to file
supplementary briefing on the question of the applicability,
enforceability, and potential waiver of UK law. As will appear
below, I find no waiver and will apply UK law on the basis of
Massachusetts choice-of-law principles. See infra Section
(II)(B)(2).
3

7

General Terms and Conditions.

Ultimately, Ms. Boisvert sent an

email to Mr. Yamaki, internal to Dow, stating, in relevant part,
“[a]fter we received and reviewed [Shimizu’s] documents it was
noted that Shimizu’s Conditions of Sale required the use of
Incoterms . . . reflect[ing] the intended ‘C&F’ transaction . . .
.

If Shimizu can agree to the exclusion of Incoterms, we can use

the C&F terminology.”4
Incoterms.

Mr. Nakamura agreed to the exclusion of

Incoterms are the standardized terms for commercial

contracts that the International Chamber of Commerce publishes.
On November 4, 2004, Shimizu sent Dow a formal purchase
order, dated October 20, 2004, reflecting Shimizu’s General Terms
and Conditions with the governing law changed to that of the
United Kingdom, as discussed on October 21 and October 22, 2004.
Dow invoiced Shimizu and Shimizu paid with a letter of credit.
Shimizu alleges that Dow never objected to Shimizu’s General
Terms and Conditions as amended in the formal purchase order.
Dow’s Rule 30(b)(6) witness, Steven Moskowtiz, however, testified
that he believed Dow had objected to Shimizu’s warranty
provisions by means of its own terms and conditions, sent at the
outset of negotiations on October 17, 2004 stating, “any terms
offered by Buyer which are inconsistent with the terms and

“C&F” refers to cost and freight, indicating that the seller
pays the costs of getting the product to the destination port.
4

8

conditions herein are not binding . . . [u]nless Buyer receives
in writing from Seller, Seller’s written consent . . . .”
The material-only warranty that ultimately issued between
Dow and Canon, discussed in the emails cited above, disclaimed
any implied warranties, stating, “THIS WARRANTY AND THE REMEDIES
PROVIDED HEREUNDER ARE EXCLUSIVE AND ARE IN LIEU OF ANY OTHER
REMEDY OR WARRANTY.”

It also disclaimed any incidental or

consequential damages.

The remedy provided in this warranty was

that “[Dow] will be liable for, but only for, the cost of the
material at the time of the claim, prorated for service to date
of claim. [Dow] will furnish [Dow] roofing membrane to replace
affected area.”
D.

Leaks in the Canon Factory Roof and Warranty Discussions
Dow delivered the TPO roofing material around January 15 or

16, 2005.

Shimizu and Eversendai completed installation by the

end of June 2005.
Canon contacted Shimizu in April 2010 to complain of leaks
in its factory from the Dow TPO roofing.

Shimizu and Eversendai

investigated and found that cracks had developed in the TPO
material.

Chua Pek Why of Eversendai emailed Steven Moskowitz at

Dow to inform him of the cracking in the roof.

The parties

disputed the amount of the roof affected by deterioration.

Dow

offered to replace the entire TPO roofing material prorated under
the terms of the 10-year limited warranty with Canon: 57% of the
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10-year warranty term had elapsed.

Thus, Dow offered to cover

43% percent of the required material to recover the roof.
Shimizu believed that it had an obligation to Canon under
Malaysian Law to replace the roof, and did so without accepting
Dow’s offer to cover the 43%.

Shimizu hired a new subcontractor

to install a new Sika PVC roof at a cost of approximately $1.6
million.
Shimizu filed this action against Dow in the Massachusetts
Superior Court for Hampden County on December 6, 2010.

It was

removed to the Western Division of this Court and transferred
April 27, 2011 to my docket in the Eastern Division, where all
scheduling and motion practice has been conducted.
II. SUMMARY JUDGMENT
In their respective cross-motions for summary judgment,
Shimizu seeks partial summary judgment on the issue whether its
General Terms and Conditions control and are binding while Dow
seeks summary judgment to dismiss each of Shimizu’s Claims.
Shimizu does not oppose Dow’s motion with respect to Count V of
the Complaint (Negligence).

I will therefore grant summary

judgment as to Count V without further discussion, and address
each of the other claims in turn.
A.

Standard of Review
A movant is entitled to summary judgment when “there is no

genuine dispute as to any material fact and the movant is
10

entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

“A dispute is genuine if the evidence about the fact is such that
a reasonable jury could resolve the point in the favor of the
non-moving party,” and “[a] fact is material if it has the
potential of determining the outcome of the litigation.”

Farmers

Ins. Exch. v. RNK, Inc., 632 F.3d 777, 782 (1st Cir. 2011)
(citation omitted).
I “view the facts in the light most favorable to the party
opposing summary judgment.”
10 (1st Cir. 2011).

Rivera–Colón v. Mills, 635 F.3d 9,

However, “conclusory allegations, improbable

inferences, and unsupported speculation” are insufficient to
create a genuine issue of material fact to survive summary
judgment.

Sullivan v. City of Springfield, 561 F.3d 7, 14 (1st

Cir. 2009) (quotation and citation omitted).

In dealing with

cross-motions for summary judgment, I “must view each motion,
separately, through this prism.”

Estate of Hevia v. Portrio

Corp., 602 F.3d 34, 40 (1st Cir. 2010).
B.

Discussion
1.

Controlling Terms and Conditions

It is clear from the progress of the parties’ negotiations
that Shimizu’s General Terms and Conditions govern the contract.
Plaintiff asserts that its General Terms and Conditions,
including a choice-of-law provision specifying the law of the UK
governs the parties’ agreement.

Defendant asserts that its
11

Conditions of Sale govern the parties’ agreement under
Massachusetts law.

As a preliminary matter, I apply

Massachusetts law to determine the validity of the competing
contracts.

See N.E. Data Sys. v. McDonnell Douglas Comp. Sys.,

986 F.2d 607, 611 (“Because this claim concerns the validity of
the formation of the contract . . . the claim falls outside the
contract’s choice-of-law provision.” (emphasis in original)).
Dow sent its Conditions of Sale to Shimizu on October 17,
2004 as part of a price quotation, which, as a long-settled
matter of law, does not constitute an offer, but rather an
invitation to make an offer.

See Cannavino & Shea, Inc. v. Water

Works Supply Corp., 280 N.E.2d 147, 149 (Mass. 1972) (“The
defendant’s letter . . . was not an offer but a quotation of
prices, a request or suggestion that an offer be made to the
defendant.”)

Shimizu made its ultimate offer to Dow in this

case, when it sent its purchase order on November 4, 2004, as
amended through negotiation by the parties.

Dow accepted the

offer and the attached General Terms and Conditions by invoicing
Shimizu based on the purchase order and by shipping the TPO
material.
Even assuming that Dow’s price quotation constituted an
offer, Shimizu’s General Terms and Conditions would still
control.

Dow’s General Terms specify that “any terms offered by

Buyer which are inconsistent with the terms and conditions herein
12

are not binding . . . [u]nless Buyer receives . . . Seller’s
written consent to a modification . . . .”

However, Dow did

consent to Shimizu’s General Terms and Conditions in writing.
On October 21, 2004, Shimizu sent its General Terms and
Conditions to Dow, and asked Dow to agree to this new “draft.”
Dow’s Mr. Yamaki explained the reason for the change, clarifying
that he had requested that Shimizu agree to Dow’s terms instead
of its own, but that “Shimizu is not [a] small company, it seems
not to be easy for them to change quickly their rules,” implying
that it might therefore be easier to modify or accept Shimizu’s
terms rather than attempt to revise Dow’s.

Ms. Boisvert

responded, accepting Shimizu’s General Terms and Conditions on
behalf of Dow, stating that “[w]e have carefully reviewed
Shimizu’s Purchase Order, terms and conditions, shipping
instructions and [Letter of Credit] instructions” and requesting
to change only certain shipping language and the governing law.
(emphasis added).

She again confirmed that Dow had accepted

Shimizu’s terms, when she emailed the next day to say, “[a]fter
we received and reviewed [Shimizu’s] documents it was noted that
Shimizu’s Conditions of Sale required the use of Incoterms . . .
reflect[ing] the intended ‘C&F’ transaction . . . .

If Shimizu

can agree to the exclusion of Incoterms, we can use the C&F
terminology.”

Ms. Boisvert’s email confirmed that Dow’s only

remaining objection to the Terms and Conditions related to the
13

use of Incoterms.

Once that was resolved, Shimizu sent Dow a

purchase order including the shipping terms as modified, and the
General Terms and Conditions as modified for governing law.

Dow

invoiced Shimizu based on that purchase order and shipped the
roofing material without further objection.

By agreeing in

writing to the terms and conditions with the sole exception of
the governing law clause, it necessarily accepted Shimizu’s
warranty and breach of contract clauses which are the foundation
for Shimizu’s claims.
Dow argues that even if Shimizu’s General Terms and
Conditions would otherwise control, it rejected Shimizu’s
warranty and breach of contract clauses by issuing the 10 year,
material-only warranty to Canon.

Dow reasons that because Canon

made the ultimate decisions regarding the roofing material for
its factory, Shimizu acted as Canon’s agent and is therefore
bound by the terms of Dow’s agreement with Canon that the only
warranty for the TPO material and the only remedy for failure of
the TPO material is covered by the 10 year, material-only
warranty.

However, this misconstrues both the contract between

the parties and the nature of agency law.
Shimizu’s terms accepted by Dow expressly state that the
parties enter into their contract on a “principal-to-principal”
basis.

All of Dow’s invoices and shipping information also list

Shimizu rather than Canon as the buyer and recipient of the TPO
14

material, indicating that Dow’s general contractual relationship
is with Shimizu, not Canon.

In order for Dow to impliedly reject

the warranty terms of its contract with Shimizu by entering into
a contract with a third party (Canon) such that Shimizu would be
bound as an agent of Canon, Dow would have to reject expressly
the provision of its contract with Shimizu stating that Shimizu
acted as a principal in entering into its contract with Dow.

See

United States v. Callahan, 149 F. App’x 4, 6 (1st Cir. 2005)
(“[C]ontracts are not normally binding on third parties.”).
did not.

It

Dow has presented no evidence that it ever rejected the

principal-to-principal clause in Shimizu’s General Terms and
Conditions or otherwise indicated any belief that Shimizu did not
act as its own principal.
Furthermore, even if Shimizu acted as Canon’s agent, it
would not be bound by the terms of any separate contract between
Canon and Dow because an agent is not a party to a contract
between the disclosed principal and a third party.

RESTATEMENT

(THIRD) OF AGENCY § 6.01 (“When an agent acting with actual or
apparent authority makes a contract on behalf of a disclosed
principal . . . the agent is not a party to the contract unless
the agent and third party agree otherwise.”).

Dow argues that it

rejected the warranty terms that Shimizu proposed by entering
into a separate warranty contract with Canon.

Although this may

limit Canon to the remedies in the 10 year material-only
15

warranty, it does not similarly limit Shimizu’s remedies under
its own, separate contract with Dow.
Thus, I find that Shimizu’s General Terms and Conditions, as
modified through the parties’ negotiations, control the contract.
These terms include a warranty provision stating, “Seller shall
warrant the quality, merchantability and suitability of the
goods,” and a breach of contract provision stating, “Seller’s
liabilities in the event of . . . breach shall include but not be
limited to the loss of the profit . . . , the liabilities of
Buyer to any person, arising from such breach by Seller, and all
expenses incurred by Buyer in relation thereto.”
2. Choice of Law
The parties initially briefed summary judgment based
exclusively on Massachusetts law despite the presence of a clause
in Shimizu’s General Terms and Conditions mandating that the
parties resolve any contractual disputes though the International
Dispute Resolution Centre in London under the laws of the United
Kingdom.

However, after I raised the question of foreign law at

the motion hearing, the parties briefed the applicability,
enforceability, and potential waiver of UK law at my suggestion.
A federal court sitting in diversity applies the choice-oflaw rules of the forum state.
Co., 313 U.S. 487, 496 (1941).

See Klaxon v. Stentor Elec. Mfg.
The parties agree that the

choice-of-law clause does not govern Shimizu’s tort and 93A
16

claims because Massachusetts choice-of-law rules dictate that a
contractual choice-of-law clause only governs tort claims when
breach of the contract is an essential element of the alleged
tort, which is not the case in this action.

See NPS LLC v. Ambac

Assurance Corp., 706 F. Supp. 2d 162, 168-69 (D. Mass. 2010).

I

will therefore apply Massachusetts law to the tort claims5 and
the 93A claim.
The parties also agree that they have waived the arbitration
provision of the contract.

At oral argument on the motion, in

response to the question “[T]he plaintiff’s view is that they
have waived arbitration[?],” Plaintiff’s counsel responded, “Yes,
your Honor, that’s correct.”

Similarly, in response to the

question “If I find [Shimizu’s General Terms and Conditions]
applicable, you’ve waived them, against arbitration?

Yes or no,”

Defendant’s counsel responded “I believe the answer is a clear
‘yes.’”

I therefore find that the parties have waived

arbitration and may look to this court directly for resolution of
their dispute.
However, the parties dispute whether the choice-of-law
clause applies to Shimizu’s breach of contract claims, and more
specifically, whether it applies to the UK statute of
limitations.

This is a question of potentially great

I note, however, that Shimizu has not opposed Dow’s motion for
summary judgment as it relates to one tort claim, Count V
(Negligence).
5

17

significance to the case.

Shimizu filed this case nearly six

years after its claim accrued - the date Dow delivered the roof.
Absent tolling - which the parties dispute - the four year
Massachusetts statute of limitations for sale-of-goods contracts
would bar Shimizu’s claim.

See M.G.L. 106 § 2-725(1).

By

contrast, its claim is timely under th esix-year UK statute of
limitaitons.

See infra Section II(B)(3).

a. Applicability and Enforceability
The choice-of-law clause here is enforceable under
Massachusetts choice-of-law rules.

Massachusetts has adopted the

enforceability rule from the Restatement (Second) of Conflict of
Laws, and will “uphold the parties’ choice as long as the result
is not contrary to public policy and as long as the designated
State has some substantial relation to the contract.”

Steranko

v. Inforex, Inc., 362 N.E.2d 222, 228 (Mass. App. 1977) (citing
RESTATEMENT (SECOND) OF CONFLICTS OF LAWS § 187)).

The

Restatement further specifies that
The law of the state chosen by the parties to govern
their contractual rights and duties will be applied . .
. unless . . . the chosen state has no substantial
relationship to the parties or the transaction and
there is no other reasonable basis for the parties’
choice.
RESTATEMENT (SECOND) OF CONFLICTS OF LAWS § 187 (emphasis added).
The parties agree - as they must in this case - that the UK has
“no substantial relationship to the parties or the transaction.”
Neither party is based in the UK or has its principle place of
18

business there.

Shimizu is a Japanese company.

American company based in Massachusetts.

Dow is an

Canon Opto is based in

Malaysia and its parent, Canon, is a Japanese Company.

The

parties did not negotiate their contract in the UK, nor did the
goods begin in, arrive in, or move through the UK.

However, the

clause is nevertheless enforceable because the parties have a
“reasonable basis” for the choice of UK law.
The comments to the Restatement provide examples of
reasonable bases to choose foreign law as well as examples of
unreasonable bases.

For instance, Massachusetts need not “apply

a foreign law which has been chosen by the parties in the spirit
of adventure or to provide mental exercise for the judge.”
cmt. f.

Id.

By contrast, “when contracting in countries whose legal

systems are strange to [the contracting parties] as well as
relatively immature, the parties should be able to choose a law
on the ground that they know it well and that it is sufficiently
developed.”

Id.

In this case, the parties’ choice of UK law

much more closely resembles the Restatement’s example of a
reasonable basis for the choice than its example of an
unreasonable basis.

The laws of Japan (as Shimizu’s original

General Terms and Conditions specified) were “strange” to Dow,
and Massachusetts law may have been “strange” to Shimizu.
Therefore, the parties chose the neutral, but familiar and well

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developed law of the United Kingdom.

Massachusetts choice-of-law

rules and the Restatement permit them to do so.
Dow also argues that the choice-of-law clause is
unenforceable because applying the UK statute of limitations
would violate fundamental Massachusetts public policy.

See id. §

187(2)(b) (“The law of the state chosen by the parties to govern
their contractual rights and duties will be applied . . . unless
. . . application of the law of the chosen state would be
contrary to fundamental public policy of a state which has a
materially greater interest [in the case] than the chosen
state.”)

Dow substantially overreads the “fundamental public

policy” doctrine; a statute of limitations is not the kind of
fundamental public policy that must trump foreign choice-of-law.
The fundamental public policy doctrine does not mean that
Massachusetts law controls wherever it is in conflict with the
chosen foreign law.

That would fundamentally defeat the purpose

of any choice-of-law rule because the exception would swallow the
rule.

Rather, as the Restatement states, “[t]he forum will not

refrain from applying the chosen law merely because this would
lead to a different result than would be obtained under the local
law of the state . . . .”

Id. § 187 cmt. g.

Massachusetts courts have held that foreign choice-of-law
clauses implicating different statutes of limitations do not
violate public policy.

See Newburyport Five Cents Sav. Bank v.
20

MacDonald, 718 N.E.2d 404, 407 (Mass. App. Ct. 1999)(“The choice
to apply New Hampshire’s statute of limitations . . . is not
contrary to Massachusetts public policy, and New Hampshire, as
the State designated by the parties for choice of law purposes,
has a more substantial relation to the mortgage notes than
Massachusetts . . . .” (emphasis added)(internal quotation marks
omitted)); see also Formato v. Protonex Techs. Corp., 2006 WL
4114292, *4 (Mass. Super. Dec. 20, 2006).
Finally, Dow argues that even if the choice-of-law clause is
enforceable, the court should apply the Massachusetts statute of
limitations.
present case.

The cases it cites have no application to the
In each, the court applied the functional approach

- under the Restatement (Second) of Conflicts of Laws § 142 - to
determine the applicable law because the choice of law in the
contracts at issue was not clear.

See Shamrock Realty Co. v.

O’Brien, 890 N.E.2d 863, 865 (Mass. App. Ct. 2008)(“The guarantee
[at issue in this case] did not contain a choice of law
provision.”); In re Fraden, 317 B.R. 24, 33 (Bankr. D. Mass.
2004)(“The Security Agreement fails to specify the law that shall
govern, inter alia, its validity or interpretation.” (italics in
original)); New England Tel. & Tel. Co. v. Gourdeau Constr. Co.,
647 N.E.2d 42, 44-45 (Mass. 1995)(“[T]he construction contract
provided that ‘[t]he Contract shall be governed by the law of the
place where the Project is located.’
21

Gordeau repeats these

points but does not argue that the quoted contract language
dictates that New Hampshire’s statute of limitations must be
used.” (alterations in original)).

By contrast, the operative

contract in this case - Shimizu’s General Terms and Conditions as
modified through negotiation - includes an express choice-of-law
clause, stating “[t]his contract shall be governed in all
respects by laws of LONDON UK.”

Thus, the analysis that the

courts applied in Gourdeau, In re Fraden, and Shamrock Realty to
determine which jurisdiction’s substantive law should control in
the absence of an express choice-of-law clause is not relevant to
this case.
The Massachusetts Appeals Court made this distinction clear
in Shamrock Realty, when it distinguished a previous case on the
basis that it included an express choice-of-law clause whereas
the context in Shamrock Realty did not.
N.E.2d at 868 & n.9.

See Shamrock Realty, 890

The court found that “Newburyport Five

Cents Sav. Bank v. MacDonald, 718 N.E.2d 404, 407 (Mass. App. Ct.
1999) focused on the parties’ choice of law” but that such a
choice did not control the outcome of the questions in Shamrock
Realty, in part because “the guarantee agreement did not
expressly contain a choice of law provision.

Rather, it

contained a clause accepting personal jurisdiction in Rhode
Island.”

Id. at 868 n.9.

22

b. Waiver
Shimizu has not waived the choice-of-law issue.

To be sure,

both parties proceeded from the filing of this action through
briefing

the motions for summary judgment under the assumption

that Massachusetts law would apply.

As Dow contends, this may be

sufficient to find waiver in certain cases.

In re Newport Plaza

Assoc., L.P., 985 F.2d 640, 644 (1st Cir. 1993)(“When opposing
parties agree to the source of the substantive law that controls
their rights and obligations, and no jurisdictional concerns are
present, a court is at liberty to accept such an agreement
without independent inquiry.”); In re Fraden, 317 B.R. at 35 n.25
(“Other jurisdictions have similarly concluded that a party’s
failure to raise choice-of-law issues in a timely manner . . .
results in the waiver of any subsequently-raised choice of law
argument.”).

However, in this case, the opposing parties do not

agree as to the source of the substantive law.
therefore inapposite.

In re Newport is

Furthermore, while a court may find waiver

for failure to timely raise choice-of-law issues or when opposing
parties agree to the source of the substantive law, courts are
not required to find such waiver.
When presented with the question of the choice of law at
oral argument and asked whether Massachusetts law and UK law may
contain relevant differences, Shimizu’s counsel stated “we can’t
take that position knowledgeably because I don’t know whether
23

there’s a difference in that body of law . . . [a]nd I would like
the opportunity to take a look at it and submit something after
the hearing.”

Dow’s counsel for his part stated that “if the

Court finds that the Shimizu general conditions . . . are
controlling, then the UK law . . . , as a matter of substance,
not procedural law, could be invoked.”

Dow also maintained at

oral argument that “the statute of limitations is procedural [and
so] . . . the statute of limitations that governs . . . would be
Massachusetts law.”

Dow continues to maintain that only

Massachusetts law applies to the statute of limitations, but,
given Massachusetts case law, no longer contends that the
procedural/substantive distinction is the relevant consideration,
presumably because the Massachusetts Supreme Judicial Court has
specifically repudiated that test.

See Gourdeau, 647 N.E.2d at

46 (“We state for the future that this court’s treatment of the
application of statutes of limitations as procedural will no
longer be continued.”).
Although Shimizu could have been more prompt in its
recognition of the choice-of-law issue, when queried, it declined
to waive the issue and requested time to argue it.

I cannot say

that Shimizu knowingly or intentionally waived the application of
UK law.
*

*

*

24

Because I find that the choice-of-law clause in Shimizu’s
amended General Terms and Conditions is enforceable under
Massachusetts choice-of-law rules, that it applies to this case,
and that Shimizu has not waived its right to assert UK law, I
conclude that UK law governs Shimizu’s contract claims and
Massachusetts law governs its 93A and tort claims.
3.

Statute of Limitations

The parties agree that, under the law of the United Kingdom,
which I have determined applies to the breach of contract claims,
the relevant statute of limitations is Limitation Act 1980 § 5
for “a simple contract.”

Section 5 of the Limitation Act

provides that a party may bring a claim for breach contract
within six years of the date the claim accrued.

In this case,

the parties agree that the claim accrued on the date Dow
delivered the goods to Shimizu.
Dow delivered the roofing material to Shimizu on January 15
or 16, 2005 and Shimizu eventually brought this action on
December 8, 2010.

Because Shimizu filed this action within six

years of the date the claim accrued, Shimizu timely filed its
breach of contract claims pursuant to UK law.
4.

Warranty

Counts I and II allege breach of contract through breach of
warranty.

In Count I, the Complaint alleges breach of the

25

“warranty of merchantability” in Count II, the Complaint alleges
breach of the “warranty of fitness for a particular purpose.”
Under Massachusetts choice-of-law rules, breach of warranty
claims seeking recovery for economic loss, including loss of
profits, are treated as contract-based claims.

Bay State–Spray &

Provincetown S.S. v. Caterpillar Tractor Co., 533 N.E.2d 1350,
1351–55 (Mass. 1989).

This is not a case where the alleged

breach of warranty resulted in personal injury such that it might
be treated as a tort claim.

See Greenray Indus., Inc. v.

Charleswater Prods., Inc., No. 88-cv-2566, 1990 WL 26887, *1 (D.
Mass. Feb. 23, 1990)(quoting Cohen v. McDonnell Douglas Corp.,
450 N.E.2d 581, 584 (Mass. 1983)).

Because Shimizu’s breach of

warranty claims sound in contract, UK law governs.

Cf. id.

(noting that where the parties have expressed a specific intent
as to the governing law in their contract, Massachusetts courts
will apply that choice to breach of warranty claims).
Shimizu argues that Dow warranted that its TPO roofing
material would have “outstanding weatherability” and a lifespan
of 15-20 years through statements in its catalogs and through
oral representations to Shimizu representatives. The catalogs
that Shimizu claims warranted particular lifespan and outstanding
weatherability actually disclaim any such warranties, stating
that “[a]ll statements herein are expressions of opinion, which
by performance and testing are believed to be accurate and
26

reliable, but are presented without guarantee or responsibility
on our part. . . . No warranty, expressed or implied, other than
that described in this brochure, is made or intended.”
The parties originally briefed this claim according to the
law of Massachusetts which precludes a party from generally
disclaiming warranties, stating that a clause in a contract which
“generally disclaim[s] ‘all warranties, express or implied’
cannot reduce the seller’s obligation . . .”
cmt. 4.

M.G.L. 106 § 2-313,

However, under the controlling law of the UK, parties to

a non-consumer contract may disclaim any warranty as long as the
disclaimer meets a “reasonableness” test.

See Unfair Contract

Terms Act, 1977, c. 50 § 6(3).

The agreement between Shimizu and

Dow is not a consumer contract.

Under UK law, “[i]t was clearly

a contract made in the course of business” and therefore not a
consumer contract.

Patrick Christopher Ormsby t/a Bte Auto

Repairs v. H & H Factors Ltd., [1990]1990 WL 10631352 (Court of
Appeal (Civil Division))(appeal taken from Evesham County Court).
Thus, the parties may reasonably disclaim warranties.
The UK Unfair Contract Terms Act states that “implied
undertakings as to conformity of goods with description or
sample,” as Shimizu alleges here, “can be excluded or restricted
by reference to a contract term, but only in so far as the term
satisfies the requirement of reasonableness.”

27

Unfair Contract

Terms Act, 1977, c. 50 § 6(2)-(3).

Section 11 of the Act states

that a disclaimer is enforceable if it is “fair and reasonable
. . . having regard to the circumstances which were, or ought
reasonably to have been, known to or in the contemplation of the
parties when the contract was made.”

Id. § 11(1).

The Act also

provides a non-exclusive list of factors for courts to consider
in making their determination.

These include:

(a) the strength of the bargaining positions of
the parties relative to each other, taking into account
(among other things) alternative means by which the
customer’s requirements could have been met;
(b) whether the customer received an inducement to
agree to the term, or in accepting it had an
opportunity of entering into a similar contract with
other persons, but without having to accept a similar
term;
(c) whether the customer knew or ought reasonably
to have known of the existence and extent of the term
(having regard, among other things, to any custom of
the trade and any previous course of dealing between
the parties);
(d) where the term excludes or restricts any
relevant liability if some condition is not complied
with, whether it was reasonable at the time of the
contract to expect that compliance with that condition
would be practicable;
(e) whether the goods were manufactured, processed
or adapted to the special order of the customer.
Id., Schedule 2.
The parties had relatively equal bargaining power under
paragraph (a) because Shimizu could have purchased the roofing
material from other sources and both parties are large
sophisticated corporate players.

28

See Messer UK Ltd & Anr. v.

Britvic Soft Drinks Ltd., [2002]EWCA Civ. 548, 2002 WL 498947
(Court of Appeal (Civil Division)) at ¶ 21.
The customer (Shimizu) negotiated the particular terms of
the agreement, including instituting its own General Terms and
Conditions along with its own warranty provisions and therefore
presumably had the opportunity to propose or include the warranty
language it preferred.

Thus, paragraph (b) also cuts in favor of

reasonableness.
As discussed below, see infra Section II(B)(5), the only
Shimizu employee who read the brochures at the time of the
contract testified in his deposition that they did not contain
the warranty statements Shimizu now alleges.

Thus, his awareness

of the disclaimer is immaterial because he was also not aware of
the alleged warranties themselves.

Shimizu’s only awareness of

any statement in Dow brochures came from oral representations
that Mr. Yamaki made to Mr. Tanabe in explaining the brochures.
See infra Section II(B)(5).

There is scant evidence that Mr.

Tanabe understood the statements alleged to be warranties.
is no evidence that he was aware of the disclaimer.

There

Thus,

paragraph (c) cuts against finding the disclaimer reasonable, but
not strongly as there is little evidence anyone at Shimizu was
aware of the contents of the brochures at all.
The disclaimer is not based on any condition.
paragraph (d) is not applicable.
29

Therefore,

Finally, the parties have not adduced any evidence whether
Dow “manufactured, processed or adapted to the special order of
[Shimizu].”
11(1)(e).

See Unfair Contract Terms Act, 1977, c. 50 §

Thus, paragraph (e) is neutral on the current record.

The five Schedule 2 factors weigh in favor of the
reasonableness of the disclaimer.

Moreover, where sophisticated

parties - such as those litigating this case - are familiar with
the subject matter and operation of such agreements, concern for
unreasonable disclaimers is diminished.

See Granville Oil v.

Davis Turner, [2003] 2 CLC 418, 430 (“The 1977 Act obviously
plays a very important role in protecting vulnerable consumers
from the effects of draconian contract terms.

But I am less

enthusiastic about its intrusion into contracts between parties
of equal bargaining strength, who would generally be considered
capable of being able to make contracts of their choosing and
expect to be bound by their terms.”).
At the time of the contract, Dow’s brochure disclaimers were
reasonable because Dow expressly warranted the quality of its
goods according to Shimizu’s General Terms and Conditions.

Where

an agreement provides express warranties, it is commercially
reasonable to disclaim other, implied warranties.

See, e.g.,

Patrick Chistopher Ormsby, 1990 WL 10631352 (upholding a warranty
disclaimer where the alleged warrantor expressly afforded the
customer the benefit of a manufacturers warranty instead); see
30

also Balmoral Grp. Ltd. v. Borealis (UK) Ltd., [2006] EWHC 1900,
[2006] CLC. 220, ¶¶ 398-404 (Queen’s Bench Division (Commercial
Court)).

Where, as here, Dow has agreed to the warranties in the

General Terms and Conditions, I find that its disclaimer of other
warranties in its brochures was reasonable and enforceable.

I

will therefore dismiss Shimizu’s claim for breach of express
warranties of a particular lifespan and “outstanding
weatherability.”
I turn then to whether Shimizu may have a viable claim on
the express contractual warranty in the controlling General Terms
and Conditions.

The controlling warranty provision provides, in

relevant part, that “Seller shall warrant the quality,
merchantability and suitability of the goods. . . . Seller shall
. . . be responsible for latent defects of the goods . . . .”6
Although the express contractual warranty at issue here is
framed as one for “quality, merchantability and suitability,” the
Complaint styles its claim only in the name of merchantability.
Any distinctions between the three terms are, however uncertain
and have gone unexplained by the parties. According to the UK
Sale of Goods Act of 1979, contents for the sale of goods contain
an implied term that the goods are of “satisfactory quality,”
meaning “they meet the standard that a reasonable person would
regard as satisfactory, taking account of any description of the
goods, the price (if relevant) and all the other relevant
circumstances.” Sale of Goods Act of 1979 § 14(2A). This Act
sets out a similar definition for “merchantable goods” which
applies to contracts before 1973 and contracts after 1973 but
before the date appointed by the Secretary of State, May 19,
1985. Schedule 1 (Modification of Act for Certain Contracts)
§ 14. The Act contains no definition of suitability, but UK
courts appear to treat it much the same as the warranty of
quality or merchantability. See generally Henry Kendall & Sons
v. William Lillico & Sons, [1968] 3 W.L.R. 110 (H.L.).
6

31

This provision, however, does not warrant any particular
lifespan, nor does it warrant suitability for a particular
purpose which might arguably incorporate previous statements by
reference.

The only warranties are for quality, merchantability,

and the absence of latent defects.

As a procedural matter,

breaches of the warranties for merchantability, quality, and
suitability for ordinary purpose are normally a fact issues for
the jury, BASF Corp. v. Sublime Restorations, Inc., 880 F. Supp.
2d 205, 218 (D. Mass. 2012) (citing Teragram Corp. v.
Marketwatch.com, Inc., 444 F.3d 1, 11 (1st Cir. 2006)).
In this case, although Dow did not make any warranty that
“explicitly extends to future performance,” and Shimizu’s
contract claims would therefore be untimely under Massachusetts
law, I must deny Dow’s motion for summary judgment because the
contract warranty claims for merchantability and quality in Count
I are timely under the applicable UK law.
IV(B)(3).

See supra Section

By contrast, there is no express warranty of fitness

for a particular purpose and consequently I will grant Dow’s
summary judgment as to Count II.
5.

Misrepresentation

Counts III and IV of the Complaint charge Dow with
fraudulent or negligent misrepresentation and fraudulent
inducement.

As claims sounding in tort, Massachusetts law

32

applies.

See supra Section II(B)(2).

To support its claim for

negligent misrepresentation, Shimizu must show that Dow,
(1) in the course of its business, (2) supplied false
information for the guidance of others (3) in their
business transactions, (4) causing and resulting in
pecuniary loss to those others (5) by their justifiable
reliance upon the information, and (6) that it failed
to exercise reasonable care or competence in obtaining
or communicating the information.
Cummings v. HPG Int’l, Inc., 244 F.3d 16, 24 (1st Cir. 2001).

In

order to establish fraud in the inducement, Shimizu must prove
the elements of common law deceit: “[1] misrepresentation of a
material fact, [2] made to induce action, and [3] reasonable
reliance on the false statement to the detriment of the person
relying.”

Commerce Bank & Trust Co. v. Hayeck, 709 N.E.2d 1122,

1126 (Mass. App. Ct. 1999).

Dow argues that both claims fail for

the same reasons: (a) the catalogs did not contain any false
statements, and (b) there is no evidence that any person at
Shimizu ever read or relied on Dow’s catalogs, even if they did
contain false statements, and that reliance on oral
representations is not commercially reasonable.7
Dow briefly argues that these claims should be dismissed
because there is no evidence in the record of Dow’s knowledge
that any representations were false. See Superior Kitchen
Designs, Inc. v. Valspar Indus., Inc., 263 F. Supp. 2d 140, 149
(D. Mass. 2003) (granting summary judgment where there was no
evidence of knowledge in the record). However, the issue of
knowledge has been the subject of the parties’ discovery motion
practice. Because discovery on this topic is not fully resolved,
the issue of knowledge remains open and is inappropriate for
determination at this time through these summary judgment
motions.
7

33

a. False Statements
As discussed above, see supra Section IV(B)(4), the
brochures do not contain any actionable warranties under UK law.
The brochures also contain any warranties or false statements
that the TPO roofing material would have “outstanding
weatherability” and a lifespan of 15-20 years according to
Massachusetts law.
Shimizu argues that statements in Dow’s catalogs that its
TPO material has “outstanding weatherability” were false, but I
find such statements to be inactionable puffery.

There is no way

easily to verify whether TPO has “outstanding weatherability” and
as such, it cannot sustain a misrepresentation claim.

See

Marantz Co. v. Clarendon Indus. Inc., 670 F. Supp. 1068, 1073-74
(D. Mass. 1987) (“Statements which constitute mere ‘puffing’
rather than affirmations of fact generally relate to the value or
quality of that which the seller is offering.

These statements

tend to be subjective and not easily verifiable.”).

This kind of

statement is a subjective superlative intended to advertize and
market the product, but not intended to guarantee a particular
measurable or verifiable level of performance.

Statements such

as “outstanding weatherability” are the heartland of puffery
along with other vague affirmations of quality such as
“wonderful,” “popular,” “good,” or “flawless.”

See Hannon, 434

N.E.2d at 617 (collecting cases); Rossman v. Herb Chambers Comm.
34

Ave., Inc., No. 09-P-954, 2011 WL 5604052, *3 n.3 (Mass. App.
Nov. 18, 2011) (“flawless” constitutes puffery).
Shimizu also argues that statements in Dow’s brochures and
oral representations by Dow representatives to Shimizu
representatives that Dow’s TPO roofing would have a 15-20 year
lifespan were false.

However, none of the brochures in the

record contain any such representation.

One states that “[w]hen

compared to a black or dark roof, a white [Dow] roofing membrane
can save you thousands of dollars in energy costs over a 10-year
period,” but this relates primarily to the utility of color
choice, and the brochure goes on to clarify that these 10-year
cost savings do not include maintenance costs and that such costs
may vary from roof to roof based on “labor rates, differences in
roof design and other variables.”

The brochures also describe

different warranties available for purchase ranging from a 5 year
warranty to a 20 year warranty.

However, the availability of

different warranty plans does not create a guaranty of
performance for a period of time without them.

See Trans-Spec

Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 323-24 (1st Cir.
2008) (“The warrantor has not guaranteed that the goods will not
malfunction in the future, but rather that the warrantor will
remedy any problems that arise in a particular way for a limited
period of time.”).

35

The only brochure that contains a representation that might
be construed as a description - let alone a warranty or guarantee
- of the longevity of TPO is the TPO Book of Knowledge, which
states that Dow TPO “has also passed 4 million Langleys of
EMMAQUA testing.
Miami, Fla.”

That’s the equivalent of 25 years exposure in

However, as discussed more fully below, see infra

Section IV(B)(5)(b), Shimizu offers no evidence that any
representative of Shimizu ever saw, read, received, or discussed
this document with anyone.
misrepresentation.

It cannot alone be the basis of any

Any misrepresentation, therefore, must have

been oral.
Shimizu alleges Dow’s Mr. Yamaki gave Shimizu’s Mr. Tanabe
the catalogs and explained that Dow TPO roofing material would
last for 15-20 years.

It also offers evidence to support this

point in the form of Mr. Tanabe’s deposition testimony.

However,

these oral representations cannot and do not survive the written
agreement.

“Business people understand that much of what is said

during the negotiation of a business agreement never becomes part
of the final bargain.”

McCartin v. Westlake, 630 N.E.2d 283, 290

(Mass. App. Ct. 1994).

Shimizu and Dow reduced their contract to

writing, governed by Shimizu’s own General Terms and Conditions
including an express warranty provision.

This document

supercedes any oral representations Dow may have made.

See Logan

Equipment Corp. v. Simon Aerials, Inc., 736 F. Supp. 1188, 1198
36

(D. Mass. 1990) (“[A]ny express warranty which may have been
formed . . . was necessarily superseded by the specifications
negotiated by the parties . . . and expressly set out in both the
purchase order and the acknowledgments.”).
The controlling warranty provision provides, in relevant
part, that “Seller shall warrant the quality, merchantability and
suitability of the goods. . . . Seller shall . . . be responsible
for latent defects of the goods . . . .”

It does not warrant any

particular lifespan, nor does it warrant suitability for a
particular purpose which might arguably incorporate previous
statements by reference.

The only warranties are for quality,

merchantability, and the absence of latent defects.

It does not

reference a particular lifespan, and reliance on an oral
representation after memorializing the agreement in a written
contract would be unreasonable.
Dow also argues that the negligent misrepresentation claim
fails for the additional reason that Dow complied with its
express warranty, see Sound Techniques, Inc. v. Hoffman, 737
N.E.2d 920, 927 (Mass. App. 2000), but as discussed above, see
supra Section II(B)(1), the express 10 year material-only
warranty is an agreement between Dow and Canon, not one between
Dow and Shimizu, and it therefore cannot extinguish Dow’s
obligations under its separate contract with Shimizu.

37

b. Reliance On Alleged False Statements
Shimizu’s remaining argument is that it reasonably relied on
either Dow’s oral representations or the TPO Book of Knowledge.
Neither can sustain Shimizu’s claim because Shimizu cannot show
that there was reliance or that, if there were, it could have
been reasonable.

Dow argues that Shimizu’s claim fails because

no Shimizu representative other than Mr. Moo received or read the
brochures and that Mr. Moo testified that they did not contain
the purported misrepresentations.

Cf. Guckenberger v. Boston

University, 974 F. Supp. 106, 150-51 (D. Mass. 1997) (“None of
the other plaintiffs have testified that they relied on these
brochures’ general representations . . . . There being no proof
of . . . detrimental reliance, these other plaintiffs have failed
to prove a breach of contract . . . arising out of statements
that the university may have made in its materials promoting th e
disability services program.”).

However Shimizu does present

evidence that it considered the brochures and Dow’s oral
representations.

Shimizu’s representative, Mr. Tanabe, does not

speak English, so rather than reading the brochures himself, he
looked to Dow’s Mr. Yamaki to explain their contents to him.
This, Shimizu argues, is the source of Dow’s misrepresentation
regarding the 15-20 year lifespan.

However, it was not

commercially reasonable for Shimizu to rely on oral
representations after reducing the agreement to writing.

“It was

unreasonable for the plaintiff to rely on the alleged oral
38

representations because of the express written word.”
Ridefilm Corp., 212 F.3d 657, 665 (1st Cir. 2000).

Sands v.

Although

nothing in the written agreement directly contradicts the alleged
oral representations regarding the lifespan of Dow’s TPO roofing
material, Shimizu as a sophisticated party should have known that
its written agreement superceded any oral representations.

If it

relied on such representations, that reliance was not reasonable
and cannot support a claim for misrepresentation.

Furthermore,

Mr. Tanabe himself testified that Shimizu would not normally rely
on statements by sales representatives.
Shimizu also points to the TPO Book of Knowledge as the
source of its reliance on the representation regarding a
particular lifespan.

The Book of knowledge states that Dow TPO

“has also passed 4 million Langleys of EMMAQUA testing.
the equivalent of 25 years exposure in Miami, Fla.”

That’s

However,

Shimizu presents no evidence that any representative of Shimizu
ever received, read, or discussed the Book of Knowlege.

Rather,

it argues that Dow representatives themselves got their
information from the Book of Knowledge.
reasonable reliance by Shimizu.

This cannot demonstrate

Shimizu also argues that the

court should draw the reasonable inference that Shimizu
representatives may have received the Book of Knowledge, but that
is not a question of inference.

It is a question of fact for

which Shimizu has provided no evidence.

Therefore, I cannot

find, even drawing all reasonable inferences from the evidence
39

provided, that Shimizu could reasonably have relied on the Book
of Knowledge.
6.

Unfair and Deceptive Trade Practices (M.G.L. 93A)

Shimizu’s 93A claim fails as a matter of law.

M.G.L. 93A §

11 requires that the “unfair or deceptive act or practice
occurred primarily and substantially within the commonwealth.”
The Massachusetts Supreme Judicial Court recently clarified that
this inquiry “cannot be reduced to any precise formula.”

Kuwaiti

Danish Comp. Co. v. Digital Equip. Corp., 781 N.E.2d 787, 798
(Mass. 2003).

Rather, a court must consider the entire context

of the claim and determine whether the “center of gravity” of the
acts comprising the claim primarily took place in Massachusetts.
Id. at 799.

If the contacts of various jurisdictions are

“approximately in balance,” the acts did not occur “primarily and
substantially” in Massachusetts, as required by 93A.

Uncle

Henry’s Inc. v. Plaut Consulting Co., 399 F.3d 33, 45 (1st Cir.
2005).
In this case, the center of gravity of the allegedly unfair
and deceptive acts falls outside Massachusetts.

In Bushkin

Assoc., Inc. v. Raytheon Co., the Supreme Judicial Court held
that the alleged unfair or deceptive practices did not occur
“primarily and substantially” in Massachusetts where the
Defendant made allegedly false statements in Massachusetts, but
the plaintiff received and acted on those statements in New York.
See 473 N.E.2d 662, 638 (Mass. 1985).
40

The current case has even

fewer contacts with Massachusetts than Bushkin.

In Bushkin, the

Defendant unquestionably made its representations from
Massachusetts.

Id.

By contrast, in this case, a substantial

amount of the negotiations and representations regarding Dow’s
TPO took place at Canon’s facility in Malaysia.
with Massachusetts is that Dow is based here.

The only contact

Shimizu received

and relied on Dow’s representations outside of Massachusetts, and
the injury occurred outside Massachusetts.

Thus, the “center of

gravity” of the interaction falls outside the Commonwealth.
Although the Supreme Judicial Court decided Bushkin long
before Kuwaiti changed the articulation of the standard, Kuwaiti
did not “suggest that [the Supreme Judicial Court’s] prior
decisions regarding how particular fact patterns are to be
interpreted for purposes of Chapter 93A’s situs requirement . . .
have been overrated or superceded.”
45.

Uncle Henry’s, 399 F.3d at

In fact, the First Circuit has relied on Bushkin regularly,

even after the Supreme Judicial Court’s decision in Kuwaiti.
See, e.g., id.; Sonoran Scanners, Inc. v. Perkinelmer, Inc., 585
F.3d 535, 546 (1st Cir. 2009).
Shimizu argues that Dow has waived its right to assert that
the allegedly unfair or deceptive practices did not take place
“primarily and substantially” in Massachusetts because it is an
affirmative defense that Dow did not raise in its Answer.
Shimizu cites Amcel Corp. v. Int’l Exec. Sales, Inc., for the
proposition that this is an affirmative defense.
41

170 F.3d 32, 25

(1st Cir. 1999).

There, the First Circuit held that “[u]nder

Massachusetts law, the burden is upon the defendant to disprove
the ‘primarily and substantially’ condition, making it
effectively an affirmative defense.”

Id.

However, while it may

effectively operate like an affirmative defense in terms of the
burden, it is not actually an affirmative defense.

As the

District of Arizona recently explained, in interpreting
Massachusetts law, the “primarily and substantially” requirement
is not like a traditional affirmative defense because
it neither admits the allegations of the complaint but
suggests some other reason why there is no right of
recovery, nor does it concern allegations outside of
the plaintiff’s prima facie case that the defendant
therefore cannot raise by a simple denial in the
answer.
W.L. Gore & Assoc., Inc. v. GI Dynamics, 872 F. Supp. 2d 883, 897
(D. Ariz. 2012).

As in W.L. Gore, Dow’s denials were sufficient

to deny liability for the 93A claim, and Shimizu was not
prejudiced in developing the issue of the center of gravity of
the conduct at issue.

In fact, in Amcel Corp., the First Circuit

goes on to say, in the very next sentence, that “we are not
concerned with the niceties of pleading.”

170 F.3d at 25.

The

First Circuit specifically did not find that the defendant waived
its right to argue the “primarily and substantially” requirement
because it failed to raise it in its answer, but rather because
“it was not mentioned in their pretrial brief or their post-trial
brief in the district court, and if it was mentioned at any point
42

during the trial, [the parties] have neglected to tell us where.”
Id.
Dow appropriately raised this argument in its motion for
summary judgment, and did not waive it by failing to mention it
specifically in its Answer.

Because I find that the “center of

gravity” of the circumstances underlying Shimizu’s 93A claim
occurred outside Massachusetts, I will dismiss Count VI of the
Complaint.
III.

CONCLUSION

For the foregoing reasons,
I GRANT Plaintiff’s Motion for Partial Summary Judgment as
to the controlling terms of the contract (Dkt. 68),
I GRANT Defendant’s Motion for Summary Judgment (Dkt. 50)
with respect to the claim for breach of warranty of fitness for a
particular purpose (Count II), the misrepresentation claim (Count
III), the fraudulent inducement claim (Count IV), the Negligence
Claim (Count V), and the 93A claims (Count VI), but DENY it with
respect to the claim for breach of the express warranties of
quality, merchantability, and suitability (Count I).

/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

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