O'Connell v. Sterling Jewelers, Inc.

Filing 116

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered granting 82 Motion for Summary Judgment; denying 85 Motion for Summary Judgment; denying 91 Motion to Strike ; denying 95 Motion to Strike ; denying 101 Motion to Strike ; grantin g 104 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document.; finding as moot 82 Motion to Strike ; granting 113 Motion to Strike ; finding as moot 115 Motion for Leave to File Document. (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

EMILIA S. FERREIRA,
individually and behalf of all
all others similarly situated,
Plaintiff,
v.
STERLING JEWELERS, INC.,
d/b/a Jared The Galleria of
Defendant.

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) CIVIL ACTION NO.
) 13-13165-DPW
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MEMORANDUM AND ORDER
September 15, 2015
In this putative class action, the remaining named
plaintiff alleges that the defendant, a jewelry company, failed
to provide gemstone treatment and special care disclosures in an
appropriate location on its consumer website relating to the
sale of treated gemstones, as required by regulations
promulgated by the Federal Trade Commission (“FTC”).

The

plaintiff seeks relief under the Massachusetts consumer
protection statute, Mass. Gen. Laws ch. 93A, § 9, for the
alleged harm caused to her – and to a putative class of
individual Internet purchasers – by this failure to disclose.
Before me are the parties’ cross-motions for summary judgment as
to the claims of the named plaintiff only.
1

A number of motions

to strike are presented regarding the summary judgment
submissions.
I. BACKGROUND
The majority of the relevant facts are undisputed.1

The

defendant, Sterling Jeweler’s, Inc., doing business as Jared The
Galleria of Jewelry (collectively, “Sterling”), sells jewelry in
brick and mortar stores and on the Internet.

Emilia Ferreira,

the remaining named plaintiff, purchased a “Precious Pet”
emerald charm necklace engraved with the name of her dog, Bella,
through Sterling’s website on January 7, 2014.2

She paid $114.99

plus sales tax of $7.19 and received the necklace by Federal
Express about a week later.

The necklace consists of a small

sterling silver charm in the shape of a dog paw with a small,

1

Ms. Ferreira seeks leave to file a belated response to
Sterling’s statement of material facts in support of its motion
for summary judgment, which Sterling does not oppose. Such
haphazard, tardy filings are characteristic of the conduct of
this litigation by plaintiff’s counsel. I will allow the motion
(Dkt. No. 104) and consider the response in the form that has
been submitted as an exhibit to the motion.
2 This action was initially brought in December 2013 by Catherine
O’Connell, individually and on behalf of a class of individuals
who made purchases in brick and mortar stores. Ms. Ferreira
joined as a plaintiff in the Second Amended Complaint filed on
April 15, 2014. Ms. O’Connell’s claims, and those of the class
she sought to represent, were thereafter dismissed with
Sterling’s consent. The case has since progressed to a Fourth
Amended Complaint naming only Ms. Ferreira as a plaintiff
pursuing claims individually and on behalf of a putative class
of Internet purchasers.
2

single emerald in the center.

On the Sterling website, the

emerald was described as a “genuine 2 millimeter round emerald.”
Ms. Ferreira asserts that Sterling misrepresented to her that
the necklace contained a “natural” emerald, based on Sterling’s
use of the term “genuine.”

However, Ms. Ferreira acknowledged

in her deposition that the word “natural” did not appear in the
description of the emerald on any of the pages she consulted on
the Sterling website.
At the time Ms. Ferreira purchased her necklace, she did
not have any knowledge about treatments for emeralds, including
oil or resin treatment.

Ms. Ferreira now believes that her

emerald was treated with “plastic” resins and polymers and
therefore was not a “genuine” gemstone.

The experts for both

parties agree that the emerald in Ms. Ferreira’s necklace was
mined from the ground, rather than being synthetized or created
in a lab.

The parties also agree that the emerald at issue was

treated with a polymer or a similar resin that is subject to
special care requirements.

They dispute, however, whether this

treatment is or is not “permanent,” whether it will require
re-treatment, and whether and how the treatment impacts the
value of the emerald.3

3

Ms. Ferreira asserts that “[a]ll known emerald treatments are
not permanent and will require retreatment including the
3

At the time of Ms. Ferreira’s purchase, the main webpage
for the necklace opened by default to the “overview” page for
personalized jewelry, which did not have an emerald treatment
disclosure.

Similarly, gemstone treatment or special care

disclosures did not appear on the description or solicitation
pages for the necklace.

Sterling did provide certain treatment

disclosures on its website that could be accessed through the
frequently asked questions (“FAQ”) section.

These FAQ included

discussion about how to care for treated gemstone jewelry, and
more particularly, color stone care, which explained to
customers the various treatments that may or may not have been
done to the gemstones, and stated that most treated gemstone
jewelry could be cleaned with mild liquid detergent mixed with
warm water.

The FAQ would not have informed Ms. Ferreira

whether the specific emerald in her charm had been treated, and
did not distinguish between permanent and non-permanent
treatments.4

In selecting her necklace and completing her

purchase, Ms. Ferreira remained on the overview page and did not
click on a link to the FAQ section of the website.

As a result,

Ferreira emerald charm.” Sterling asserts that the polymer
treatment for the emerald at issue received “may or may not be
permanent depending on a number of conditions.”
4 The gemstone treatment disclosure states that “[a]lthough most
treated gemstones are stable, some may require special care and
jewelry repair.”
4

she did not view any statements on the website concerning
gemstone treatments or special care requirements.
Ms. Ferreira contends that Sterling did not comply with
certain FTC regulations, 16 C.F.R. §§ 23.0 et seq., requiring
jewelers to disclose to consumers at the time and place of
purchase whether a natural gemstone has been subject to
treatment, and that she was misled by the use of the term
“genuine” to believe that her emerald was untreated and
therefore more valuable than it was.

Ms. Ferreira seeks to

represent a putative class of individuals who similarly
purchased natural gemstones, including diamonds, emeralds,
rubies, and sapphires, through the Internet website of Sterling
and its “doing business as” entities, and who allegedly paid an
“artificially inflated purchase price” based on Sterling’s
misrepresentations and omissions.

No class has yet been

certified; thus only Ms. Ferreira’s individual claims under
chapter 93A and for unjust enrichment are the subject of the
pending summary judgment motions.
II. DISCUSSION
Summary judgment is appropriate when, based on the
pleadings, discovery, and disclosure materials in the record,
“there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law.”
5

Fed.

R. Civ. P. 56(a), (c); see Adria Int’l Grp., Inc. v. Ferré Dev.,
Inc., 241 F.3d 103, 107 (1st Cir. 2001).

A disputed fact will

preclude summary judgment only if it has “the potential to
affect the outcome of the suit under the applicable law,” that
is, it is material to the resolution of the case.

Sanchez v.

Alvarado, 101 F.3d 223, 227 (1st Cir. 1996) (citations and
quotation marks omitted).

Cross-motions for summary judgment

will be evaluated separately under this protocol.

Bienkowski v.

Northeastern Univ., 285 F.3d 138, 140 (1st Cir. 2002); see
Mandel v. Bos. Phoenix, Inc., 456 F.3d 198, 205 (1st Cir. 2006).
A.

Chapter 93A Claim
1.

Unfair or Deceptive Act

The Massachusetts Consumer Protection Act, Mass. Gen. Laws
ch. 93A, §§ 2, 9(1), provides a private right of action to
individual consumers who have been injured by “unfair or
deceptive acts or practices in the conduct of any trade or
commerce.”

Such acts or practices include those that would be

considered unfair or deceptive under § 5(a)(1) of the Federal
Trade Commission Act (“FTCA”), codified at 15 U.S.C. § 45(a)(1).5
See Mass. Gen. Laws ch. 93A, § 2(b); McDermott v. Marcus,

5

There is no private right of action under 15 U.S.C. § 45. See
Holloway v. Bristol-Myers Corp., 485 F.2d 986, 987, 998, 1002
(D.C. Cir. 1973).
6

Errico, Emmer & Brooks, P.C., 775 F.3d 109, 122 (1st Cir. 2014)
(citing Slaney v. Westwood Auto, Inc., 322 N.E.2d 768, 773 n.8
(Mass. 1975); Purity Supreme, Inc. v. Att’y Gen., 407 N.E.2d
297, 301 (Mass. 1980)); VMark Software v. EMC Corp., 642 N.E.2d
587, 595 (Mass. App. Ct. 1994).
Ms. Ferreira principally asserts that Sterling violated FTC
regulations promulgated pursuant to the FTCA by failing to
provide gemstone treatment and special care disclosures on its
website as directed by the regulations.6

See Guides for the

Jewelry, Precious Metals, and Pewter Industries (“Jewelry
Guides”), 16 C.F.R. §§ 23.0, 23.1, 23.22, 23.23 (2015).

Under

16 C.F.R. § 23.22, “[i]t is unfair or deceptive to fail to
disclose that a gemstone has been treated” if the treatment is
not permanent, the treatment creates special care requirements
for the gemstone, or the treatment has a significant effect on
the stone’s value.

See 16 C.F.R. § 23.1 (“It is unfair or

deceptive to misrepresent the . . . treatment . . . of an
industry product.”).

When a gemstone is sold on the Internet,

“disclosure should be made in the solicitation for or

6

Ms. Ferreira also asserts that Sterling’s conduct violates
similar Massachusetts regulations. See 940 Mass. Code Regs.
3.05, 3.16(4). For the reasons discussed in this Memorandum, I
need not resolve whether Sterling’s conduct did in fact violate
these regulations.
7

description of the product” and “should be sufficiently clear
and prominent.”

16 C.F.R. § 23.1 (note 2), § 23.22 (note).7

It is undisputed that the treatment Ms. Ferreira’s emerald
received created special care requirements for the gemstone.
Therefore, disclosure of the treatment was required under 16
C.F.R. § 23.22(b) in conformity with the direction of note 2 to
§ 23.1 and the note to § 23.22.8

It is also undisputed that a

treatment or special care disclosure was not provided on the
particular webpages that Ms. Ferreira visited, including the
description and solicitation webpages, when she purchased the
emerald.
For the purposes of the summary judgment motions pending
before me, Sterling is willing to assume – without conceding –
that it engaged in an unfair or deceptive act giving rise to a
claim under chapter 93A on this basis.

7

Although on these facts,

Although Ms. Ferreira takes issue with Sterling’s use of the
word “genuine” in the product description for her emerald, she
does not appear to argue that this in itself violated 16 C.F.R.
§ 23.24, which states that it is unfair or deceptive to use the
word “genuine” or similar terms “to describe any industry
product that is manufactured or produced artificially.” In any
event, the record would not support such a claim.
8 Whether a treatment disclosure was required because the
treatment was “not permanent,” 16 C.F.R. § 23.22(a), cannot be
resolved on summary judgment because the permanence of the
treatment is disputed. However, the imposition of special care
requirements is sufficient to have required disclosure here.
See 16 C.F.R. § 23.22(b).
8

it seems likely that Sterling’s website was not in compliance
with FTC regulations, I need not interpret the meaning of the
conditional terminology of the disclosure requirements (i.e.,
“should be”) to resolve this issue with certainty, because I
conclude that other elements of a chapter 93A claim are not
satisfied here.

Indeed, the question remains whether a judge

should make such a decision in the first instance.

See Mass.

Eye & Ear Infirmary v. QLT Phototherapeutics, Inc., 552 F.3d 47,
69 (1st Cir. 2009) (“Massachusetts leaves the determination of
what constitutes an unfair trade practice to the finder of fact,
subject to the court’s performance of a legal gate-keeping
function.”), decision clarified, 559 F.3d 1 (1st Cir. 2009);
Iannacchino v. Ford Motor Co., 888 N.E.2d 879, 888 & n.17 (Mass.
2008) (“when the injury alleged is purely economic, and there is
a regulatory agency with relevant technical expertise and
jurisdiction to provide relief for a problem that may affect
many consumers, principles of primary jurisdiction may dictate
that the agency ‘should have an opportunity to consider the
claim prior to a judicial hearing’” (citation omitted)).
Rather, I turn to the question of injury, assuming for present
purposes that the defendant engaged in unfair and deceptive
acts.

9

2. Injury and Causation
From the vantage of the federal courts, the jurisprudence
on cognizable injuries under chapter 93A leaves much to be
desired by way of clarity.

See, e.g., Shaulis v. Nordstrom,

Inc., Civ. Action No. 15-10326-FDS, 2015 WL 4886080, at *6-8 (D.
Mass. Aug. 14, 2015); Rule v. Fort Dodge Animal Health, Inc.
(Rule I), 604 F. Supp. 2d 288, 298 (D. Mass. 2009), aff’d, 607
F.3d 250 (1st Cir. 2010) (Rule II).

Since Rule, however, there

has been some helpful clarification by the Supreme Judicial
Court in Tyler v. Michaels Stores, Inc., 984 N.E.2d 737, 745
(Mass. 2013), and a handful of other cases, Auto Flat Car
Crushers, Inc. v. Hanover Insurance Co., 17 N.E.3d 1066, 1076-77
& n.12 (Mass. 2014); Rhodes v. AIG Domestic Claims, Inc., 961
N.E.2d 1067, 1076-77 (Mass. 2012); Casavant v. Norwegian Cruise
Line Ltd., 952 N.E.2d 908, 912 (Mass. 2011).
To succeed on a claim under chapter 93A, a plaintiff must
demonstrate that she suffered a “separate, identifiable harm
arising from the violation itself” that bears a causal
connection to the unfair or deceptive act.
N.E.2d at 745.

See Tyler, 984

A per se violation alone – simply proving that

Sterling violated the FTC regulations – is not enough to
prevail.

See Tyler, 984 N.E.2d at 745; see also Bezdek v.

Vibram USA Inc., Civ. Action No. 12-10513-DPW, 2013 WL 639145,
10

at *5 (D. Mass. Feb. 20, 2013) (observing that the Supreme
Judicial Court has “disavowed the notion that deceptive
advertising constitutes per se injury on consumers who purchase
the product”).

The injury must be “distinct from the statutory

violation itself and cognizable under G.L. c. 93A, § 9.”

Tyler,

984 N.E.2d at 746.
Chapter 93A, § 9, encompasses primarily economic injuries,
as well as those non-economic injuries that cause some harm to
the consumer.9

See Tyler, 984 N.E.2d at 744-46; Casavant, 952

N.E.2d at 912; see also Rule II, 607 F.3d at 255.

The types of

injuries recognized by chapter 93A are “a readily quantifiable
loss of money or property,” “measurable emotional distress,” or
“an invasion of the consumer’s personal privacy causing injury
or harm worth more than a penny.”

Tyler, 984 N.E.2d at 746

n.20; see Hershenow v. Enter. Rent-a-Car Co. of Bos., Inc., 840
N.E.2d 526, 533-34 (Mass. 2006) (injury encompasses “loss of
money, loss of property, or personal injury,” and “the invasion
of any legally protected interest of another”) (internal
quotation marks and citation omitted).

For injuries falling

within the third category, the plaintiff must demonstrate some

9

Where the injury is not quantifiable, a plaintiff can be
awarded statutory damages of $25. Mass. Gen. Laws ch. 93A,
§ 9(3).
11

harm; the mere invasion of an established right is insufficient.
See Tyler, 984 N.E.2d at 744-46 & n.12.
To prove causation of one of these cognizable injuries, a
plaintiff “need not show proof of actual reliance on a
misrepresentation in order to recover damages”; instead, the
plaintiff must show “a causal connection between the deception
and the loss and that the loss was foreseeable as a result of
the deception.”

Iannacchino, 888 N.E.2d at 886 n.12 (internal

quotation marks and citation omitted); see Rhodes, 961 N.E.2d at
1076 (“plaintiff is required to prove that the defendant’s
unfair or deceptive act caused an adverse consequence or loss”
(citing Hershenow, 840 N.E.2d at 800)).
Ms. Ferreira identifies three types of injuries she claims
to have suffered from Sterling’s omission or misrepresentation:
(a) a loss of bargain (a “price premium” injury), (b)
unanticipated re-treatment costs, and (c) unanticipated special
care requirements.

Sterling contends that none of these

constitute a cognizable injury, separate and distinct from the
occurrence of the unfair or deceptive act itself.
a. Loss of Bargain/Price Premium
Ms. Ferreira argues primarily that Sterling’s failure to
disclose that her emerald had been treated caused her to pay a
price premium for the charm, because she believed she was
12

purchasing a natural, untreated emerald.

As a result, Ms.

Ferreira asserts, she is owed the difference between the price
she paid for the charm necklace and the true value of the
misrepresented charm.
Overpayment can constitute an economic loss that is
cognizable under chapter 93A where the consumer continues to own
the misrepresented product “whose value was artificially
inflated by a deceptive act or practice at the time of
purchase.”

Bezdek, 2013 WL 639145, at *6; see Rule II, 607 F.3d

at 255; Iannacchino, 888 N.E.2d at 886.

Unlike in cases in

which a plaintiff’s use of the product has ended and she has
suffered no harm, Ms. Ferreira continues to have possession of
the emerald and may continue to suffer the loss of the bargain
of her purchase.

Compare Rule II, 607 F.3d at 251, 253-55 (no

cognizable injury because plaintiff received benefit of
medication without suffering its purported deficiencies, even
though risks had not been disclosed to her at time of purchase
or use), and Hershenow, 840 N.E.2d at 528, 532, 535

(no

cognizable injury because plaintiffs had already returned rental
car and had not been involved in collision during rental period,
so illegal provisions in collision damage waiver in rental
agreement were never enforced and did not cause any injury),
with Shaulis, 2015 WL 4886080, at *9-10 (unlike in Rule and
13

Hershenow, where “transactions could not be unwound” and
plaintiffs had already received “full value of the product or
service for which the money was exchanged,” plaintiff’s injury,
if she suffered one, was ongoing because she continued to
possess and use product), and Iannacchino, 888 N.E.2d at 624-25,
630-31 (plaintiffs could have cognizable injury because they
“continue[d] to own the allegedly noncompliant vehicles,” and
therefore “purchase price paid by the plaintiffs for their
vehicles would entitle them to receive vehicles that complied
with [federal] safety standards or that would be recalled if
they did not comply”).10
This type of “benefit of the bargain” injury is cognizable
if it can be “proved with reasonable certainty.”

Aspinall v.

Philip Morris Cos., 813 N.E.2d 476, 490 (Mass. 2004).

To

succeed, Ms. Ferreira must prove that Sterling’s omission or
affirmative misrepresentation caused her to pay more for the
emerald charm than she otherwise would have paid, but for the
omission or misrepresentation.

Bezdek, 2013 WL 639145, at *6.

The critical inquiries here are whether Ms. Ferreira has offered

10

As I observed in Rule v. Fort Dodge Animal Health, Inc. (Rule
I), 604 F. Supp. 2d 288, 304 (D. Mass. 2009), aff’d, 607 F.3d
250 (1st Cir. 2010), the injury in Iannacchino was cognizable
because of “the plaintiffs’ continued possession of a defective
product that had not yet fulfilled its expected life of
service.”
14

sufficient evidence that she was led to believe she was
purchasing something other than what was sold to her, and
whether what she received was actually worth less – even if not
quantifiably so – than what she thought she was buying.

See

Bezdek, 2013 WL 639145, at *4 n.7 (statutory damages can
substitute for quantifying loss).
Ms. Ferreira first contends that she thought she was buying
an emerald that was natural and therefore untreated.
assertion is belied by the record.

This

The word “natural” did not

appear on Sterling’s website at the time.

Even if it did, the

emerald is natural, in that it was not created in a lab.

Mr.

Smith, Ms. Ferreira’s expert, opines that a consumer would make
an inference from the use of the word “natural” and the absence
of a treatment disclosure that the stone “[w]as all natural and
not treated” (emphasis supplied).

This opinion is beside the

point when “natural” did not appear on Sterling’s website at the
time of purchase.
Instead, the emerald was described by Sterling at the time
of purchase as a “genuine” emerald.

It is plausible that a

consumer could interpret “genuine” to mean “natural”; indeed,
Ms. Ferreira has offered belated testimony to this effect from

15

herself and Mr. Smith.11

But that testimony falls short of

connecting the representation that the emerald was “genuine” to
a misperception that the emerald was “untreated,” and therefore
falls short of demonstrating that the emerald Ms. Ferreira
purchased was meaningfully different from what she believed she
was purchasing.12
Ms. Ferreira next contends that the treated emerald she
received is less valuable than the untreated emerald she
anticipated seeing in her charm.

As a result, she contends, she

paid an artificially inflated purchase price that she would not
have paid had the treatment been disclosed.

This argument is

also unsupported by the evidence and cannot serve to demonstrate

11

I note also that the FTC regulations themselves suggest the
terms “natural” and “genuine” are capable of misleading a
consumer, although only when used “to describe any industry
product that is manufactured or produced artificially.” See 16
C.F.R. § 23.24.
12 I am not persuaded by Sterling’s additional argument that
because Ms. Ferreira admitted that she was unaware at the time
of her purchase that gemstones could be treated at all, she
could not have believed that she was purchasing an untreated
gemstone. Were the consumer’s independent, individual knowledge
to be a determinative consideration, liability under chapter 93A
would hinge not on the defendant’s conduct, but on the
plaintiff’s subjective knowledge, thereby defeating the concept
of a consumer disclosure as rebutting or confirming certain
reasonable assumptions a consumer may have about a product. Cf.
Iannacchino v. Ford Motor Co., 888 N.E.2d 879, 886 n.12 (Mass.
2008) (for purposes of causation, whether plaintiffs knew of
federal safety requirements defendant violated was irrelevant,
“because certified compliance with the requirements is necessary
for vehicles to enter the market”).
16

that Ms. Ferreira suffered a loss that is causally connected to
Sterling’s omission or misrepresentation.
Ms. Ferreira hangs this argument on a conclusory phrase
appearing in the Federal Register in a summary of revisions by
the FTC to the Jewelry Guides in 2000 (hereinafter “FTC
commentary”).

That phrase states that “the treated gemstone is

not as valuable as a similar untreated stone.”

Federal Trade

Commission, Guides for the Jewelry, Precious Metals and Pewter
Industries, 65 Fed. Reg. 78,738, 78,738 (Dec. 15, 2000).

Mr.

Smith’s corresponding opinion – that Ms. Ferreira overpaid for
her charm because a treated gemstone is not as valuable as a
similar untreated stone – is based exclusively on this phrase.
Ms. Ferreira takes this phrase significantly out of
context.13

13

The full sentence in which it appears in the FTC

In an apparent attempt to keep this phrase in its isolated
state, Ms. Ferreira moves (Dkt. No. 101) to strike references to
and discussion of nearby portions of the FTC commentary in
Sterling’s opposition to her motion for summary judgment,
allegedly because they pertain to permanent, as opposed to nonpermanent, gemstone treatments. It is for the court to assess
the relevance and weight of sources cited for the legal
propositions they offer and to determine the applicable law.
See Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 99 (1st Cir.
1997) (“[P]urely legal questions and instructions to the jury on
the law to be applied to the resolution of the dispute before
them is exclusively the domain of the judge.”); see also Kelly
v. Keystone Shipping Co., 281 F. Supp. 2d 313, 324 (D. Mass.
2003) (legislative history “includes the agency’s responses to
public comments published in the Federal Register”). Ms.
Ferreira’s motion amounts to a counterargument to Sterling’s
17

commentary reads as follows:

“Other gemstone treatments are

permanent and do not create special care requirements, but the
treated gemstone is not as valuable as a similar untreated
gemstone.”

65 Fed. Reg. at 78,738.

The sentence appears in a

paragraph describing different types of treatments.

Id.

The

paragraph also indicates that “[s]ome treatments are not
permanent because their effects fade over time,” and makes no
mention of value in relation to such non-permanent treatments.
Id.

The same FTC commentary includes a comment from the

American Gem Trade Association (AGTA) stating that “[a]ll
treatments, permanent or otherwise, are performed to increase
the value of untreated material.”

65 Fed. Reg. at 78,741.

In

summarizing other comments received in response to the proposed
changes, the FTC commentary states that “treatments have two
effects on value—first, the stone is more valuable than it was
before it was treated; second, the stone may be less valuable
than a similar untreated stone.”

Id.

The regulations themselves capture the possibility that a
treatment could impact the value of a gemstone by requiring
disclosure of treatments that have “a significant effect on the
stone’s value.”

See 16 C.F.R. § 23.22.

If all treatments

opposition to her memorandum and is an improper use of a motion
to strike, and I will deny it.
18

inevitably diminished the value of the gemstone, however, the
regulations would presumably require such disclosure to be made
as to all treatments.

Instead, the FTC indicated that it

included this caveat because “failure to disclose a gemstone
treatment is deceptive only if absent disclosure consumers would
falsely believe that the treated gemstone is as valuable as a
similar untreated stone.”

65 Fed. Reg. at 78,741.14

Clearly, the FTC commentary and the resulting regulations
do not establish that any given untreated emerald, in general,
is more valuable than any particular treated emerald, let alone
that Ms. Ferreira’s emerald is less valuable than a similar
untreated emerald.

The FTC commentary – which in any event is

not binding on the courts, see McMillan v. Collection
Professionals Inc., 455 F.3d 754, 764 (7th Cir. 2006); see also
Heintz v. Jenkins, 514 U.S. 291, 298 (1995); McDermott v.
Marcus, Errico, Emmer & Brooks, P.C., 911 F. Supp. 2d 1, 64 (D.

14

The FTC further observed in its commentary: “If, in fact, all
treatments have such an effect on the value of gemstones, then
all treatments will need to be disclosed. There may, however,
be some exceptions, such as the treatments to very small
gemstones in jewelry pieces . . . .” Federal Trade Commission,
Guides for the Jewelry, Precious Metals and Pewter Industries,
65 Fed. Reg. 78,738, 78,741 n.34 (Dec. 15, 2000). I need not
reach the question whether a 2 millimeter round emerald set in a
“Precious Pet” charm necklace of the type Ms. Ferreira purchased
is a “very small gemstone[ ] in [a] jewelry piece[ ],” the
treatment of which is subject to an exception from FTC
disclosure rules.
19

Mass. 2012), aff’d in part, rev’d in part, 775 F.3d 109 (1st
Cir. 2014) - offers only generalized speculation as to value
differentials between treated and untreated gemstones.15
The experts’ opinions on value are altogether speculative
and therefore of limited evidentiary significance.

Mr. Fuller,

Sterling’s expert, opines that the emerald Ms. Ferreira received
is common “for the price which she paid for it,” but
acknowledges that it would be difficult – if not impossible – to
determine what the emerald’s value would have been had it not
been treated, and therefore to compare its value treated to its
value if it were untreated.

Mr. Smith opines that Ms. Ferreira

overpaid for the charm, but this opinion is rooted in a snippet
of FTC commentary that, as Ms. Ferreira employs it, is vastly
misleading.

See 65 Fed. Reg. at 78,738.

We are left with a record that tells us nothing of the
value of Ms. Ferreira’s emerald charm compared to some
identified untreated counterpart.

Ms. Ferreira has not offered

any non-speculative, non-conclusory evidence that what she

15

Even in its most generous reading, the FTC commentary excerpt
on which Ms. Ferreira relies indicates only that permanent
treatments render a gemstone “not as valuable as a similar
untreated stone.” 65 Fed. Reg. at 78,738. Yet much of the rest
of Ms. Ferreira’s argument focuses on her contention – and her
own expert’s opinion – that the treatment her emerald received
was not permanent, and therefore required disclosure.
20

received was of any lesser value than what she paid for.16

The

record supports nothing more than the conclusion that Ms.
Ferreira now thinks she was somehow getting less of a bargain
than she did.
This is akin to the speculative injury that Judge Saylor
recently rejected as non-cognizable under chapter 93A in
Shaulis, 2015 WL 4886080, at *9-10.

In Shaulis, the plaintiff

purchased a sweater for $49.97 at Nordstrom Rack, believing based on information on the price tag - that she was saving 77%
on her purchase from the former market price of the sweater,
when the listed former price was, she alleged, actually
fabricated.

Id. at *1-2, *9.

The plaintiff did not allege that

the sweater was worth less than the selling price or was
otherwise defective; she alleged only “that she would not have
purchased the sweater in the absence of Nordstrom’s

16

This evidentiary deficiency as to her injury also compromises
her ability to prove causation. If what Ms. Ferreira received
is not demonstrably of less value than what she would have
purchased but for the omission or misrepresentation, then she
cannot prove that it was Sterling’s failure to disclose the
treatment that caused her loss. Cf. Bellermann v. Fitchburg Gas
& Elec. Light Co., 18 N.E.3d 1050, 1061-62 (Mass. 2014) (“if
customers did not suffer a longer outage than otherwise would
have occurred, their claims must fail for lack of causation”);
Hershenow v. Enter. Rent-a-Car Co. of Bos., Inc., 840 N.E.2d
526, 534-35 (Mass. 2006) (plaintiffs did not establish that
contract’s statutory noncompliance made them worse off than they
would have been with compliant contract).
21

misrepresentation” that she was saving so much.

Id. at *9.

Judge Saylor concluded that
the fact that the plaintiff may have been manipulated
into purchasing the sweater because she believed she was
getting a bargain does not necessarily mean she suffered
economic harm: she arguably got exactly what she paid
for, no more and no less.
Id.
Similarly, here, Ms. Ferreira has not presented any
evidence demonstrating that she did not receive what she paid
for.

Although she alleges that she “bargain[ed] for an

additional benefit ex ante” that she did not receive, she offers
no evidence to support this.
n.9.

See Bezdek, 2013 WL 639145, at *5

As Judge Saylor observed, “no Massachusetts case has ever

found an injury under Chapter 93A . . . where the alleged injury
was based entirely on the plaintiff’s subjective belief as to
the nature of the value she received.”

Shaulis, 2015 WL

4886080, at *10; see Rule I, 604 F. Supp. 2d at 302 (Hershenow
“expressly rejected the proposition . . . that a
misrepresentation can qualify as an ‘injury’ to consumers who
are influenced by it simply because it is ‘deceptive’” (citing
Hershenow, 840 N.E.2d at 533-34)).
There is no evidence to support the proposition that the
value of the emerald Ms. Ferreira received is less than what she
believed she was receiving, or less than what she would have
22

received had she received what she claims she had bargained for.
Ms. Ferreira has offered nothing more than “conclusory
allegations, improbable inferences, and unsupported
speculations” stemming from FTC commentary excerpts wrenched
from their context, an expert opinion based solely on that
misleading exercise, and Ms. Ferreira’s own subjective view.
See Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8
(1st Cir. 1990).

Ms. Ferreira has not carried her burden in

opposing Sterling’s motion for summary judgment of demonstrating
by reference to specific, provable facts “that a reasonable jury
could return a verdict” in her favor.
Lobby, Inc., 477 U.S. 242, 248 (1986).

See Anderson v. Liberty
Considering Sterling’s

motion “on an individual and separate basis,” I conclude that
Sterling is entitled to summary judgment on this claimed price
premium injury.

See Bienkowski, 285 F.3d at 140.17

b. Unanticipated Re-treatment Costs
Before turning to the substance of this claim, Sterling
contends that Ms. Ferreira has waived her claim of injury based
on unanticipated re-treatment costs, because she explicitly

17

By the same token, Ms. Ferreira has not carried her burden of
proving in support of her own motion for summary judgment that
she is entitled to judgment as a matter of law. See Adria Int’l
Grp., Inc. v. Ferré Dev., Inc., 241 F.3d 103, 107 (1st Cir.
2001).
23

stated in her deposition that the only damages she seeks are for
a price premium injury and statutory damages.18

Although Ms.

Ferreira had not explicitly identified re-treatment costs as a
basis for damages prior to her motion for summary judgment, the
concept was raised in the complaint and in expert witness
testimony, and the language of Ms. Ferreira’s interrogatory
response does not necessarily preclude it.

Accordingly, I will

consider the evidence on this claimed injury.19

18

Ms. Ferreira filed a supplemental affidavit following her
deposition indicating that she “did not intentionally waive any
theory of damages or the amount of damages . . . as set out in
the interrogatory answers.” In her interrogatory answers, Ms.
Ferreira stated that she had “sustained ascertainable financial
loss including but not limited to overpaying for class jewelry”
(a price premium injury), and that in the alternative she sought
minimum statutory damages.
19 Based on its waiver argument, Sterling moves to strike Ms.
Ferreira’s attestation in her affidavit that “[a]fter the
emerald charm was cleaned in a commercial cleaning solution, the
color of the emerald seemed to have faded,” arguing that it is
contradictory to her earlier responses to interrogatories and
deposition testimony because it asserts a claim for re-treatment
costs. An affidavit executed after a witness’ deposition
“suggest[s] that the [affidavit] was made solely to create an
issue of fact for the purpose of surviving summary judgment” and
warrants careful scrutiny prior to inclusion in the summary
judgment record. Orta-Castro v. Merck, Sharp & Dohme Quimica
P.R., Inc., 447 F.3d 105, 110 (1st Cir. 2006). A party may not
use a subsequent affidavit to offer testimony contradictory to
prior sworn statements without “a satisfactory explanation of
why the testimony is changed.” Colantuoni v. Alfred Calcagni &
Sons, 44 F.3d 1, 4-5 (1st Cir. 1994). Although Ms. Ferreira’s
affidavit raises suspicion, the statement that Sterling seeks to
strike is not in direct conflict with Ms. Ferreira’s prior
testimony. Contrast Orta-Castro, 447 F.3d at 110 (affidavit
disregarded because in conflict with earlier deposition answers
24

The imposition of future maintenance costs can be a
cognizable economic injury.

For example, in Donovan v. Philip

Morris USA, Inc., 914 N.E.2d 891, 901-02 & n.13 (Mass. 2009),
the Supreme Judicial Court concluded that expenses for medical
monitoring that would detect “an injury likely to occur,”
necessitated by the plaintiffs’ substantial exposure to a toxic
substance rendering them at a substantially increased risk of
contracting a serious illness or disease, could form the basis
for a cognizable injury and damages in a chapter 93A claim.

The

plaintiffs in Donovan faced an ongoing risk that imposed
economic costs – medical monitoring – “to cope with the
consequences of the risk.”

Rule II, 607 F.3d at 254 (citing

Donovan, 914 N.E.2d at 900-03).

Here, Ms. Ferreira has not

presented evidence on which a reasonable fact finder could
conclude that she faces a risk of incurring re-treatment costs
that are attributable to the undisclosed treatment her emerald
received.

and no credible explanation was proffered). Ms. Ferreira only
states an observation: that the color “seemed to have faded,”
and then only after her own cleaning. Sterling has not
identified any prior testimony in which Ms. Ferreira stated that
the color of the emerald did not change at all following
cleaning; as Ms. Ferreira observes, she was never asked by
either counsel about a change in color. Although the value of
this particular statement is limited for the reasons discussed
below, I will nonetheless deny the motion (Dkt. No. 95) to
strike it.
25

Ms. Ferreira has offered some anecdotal evidence supporting
the proposition that the treatment of her emerald could degrade
and require re-treatment in the future.

Her expert, Mr. Smith,

opines that Ms. Ferreira’s emerald received a non-permanent
treatment, that non-permanent treatments are subject to eventual
degradation, and therefore that Ms. Ferreira “faces future costs
for gemstone retreatment.”

In contrast, Sterling’s expert, Mr.

Fuller, opines that the precise nature of the treatment – and
accordingly its permanence – cannot be determined without
further expert analysis.

Mr. Fuller additionally opines that

“if the emerald . . . is used under normal conditions and
subject to special care requirements, then the condition of the
polymer filler will not necessarily experience any degradation
or observable change in clarity appearance.”

The FTC

commentary, which both parties cite for other propositions,
suggests that gemstone treatments with colorless oils are nonpermanent.

65 Fed. Reg. at 78,738.

In this setting, it is not

possible to do anything other than speculate regarding what, if
any, degradation is inevitable due to the nature of the
treatment Ms. Ferreira’s emerald might have received.
More significantly, the evidence in the record defeats Ms.
Ferreira’s claim for re-treatment costs on causation grounds.
Chapter 93A requires proof of “but for” causation and proximate
26

causation.

See Markarian v. Conn. Mut. Life Ins. Co., 202

F.R.D. 60, 68-69 (D. Mass. 2001).

For example, in In re TJX

Companies Retail Security Breach Litigation, 246 F.R.D. 389, 397
(D. Mass. 2007), it was not enough for the plaintiff banks to
show “that the data breach is the but-for cause of their loss or
that [the defendants] failed to remedy shortcomings in its data
security systems,” because the relevant unfair or deceptive
practice was the negligent misrepresentation of security
compliance, rather than the security compromises.

As a

consequence, the plaintiffs had to “show that, had [the
defendants] been candid about their data security compliance,
[the plaintiffs’] losses would not have occurred.”

Id.

Ms.

Ferreira similarly must demonstrate that Sterling’s omission or
misrepresentation was or will be the but-for and proximate cause
of any existing or future degradation.

See Rhodes, 961 N.E.2d

at 1076; Iannacchino, 888 N.E.2d at 886 n.12.

She cannot do so

on this record.
First, there is no evidence that Ms. Ferreira’s emerald has
any existing degradation attributable to the treatment it
initially received, or that Ms. Ferreira has incurred any cost
to re-treat the emerald as of yet.

Her expert, Mr. Smith,

suggests – without stating explicitly – that he observed some
degradation in the gemstone (or was relying on Ms. Ferreira’s
27

own observation of degradation), but he could not establish the
cause of the degradation, and therefore could not attribute it
to treatment degradation as opposed to the use of cleaning
methods that were not recommended or some other cause.

This is

consistent with the observation of Sterling’s expert, Mr.
Fuller, that if there is any degradation in the emerald, there
is no baseline on which to assess that degradation (i.e., any
indication of how the emerald appeared when Ms. Ferreira first
purchased it), and therefore the cause of such degradation is
not identifiable.

Mr. Fuller further opines that “[t]here is no

evidence that the polymer treatment applied to the [emerald] has
degraded or failed.”
More importantly, Ms. Ferreira indicates in a self-serving
affidavit that she observed that the color of the emerald seemed
to have faded only after she cleaned her emerald with sterling
silver cleaner.

There is no evidence that this cleaning method

was recommended by Sterling; instead, the record indicates that
Sterling suggested cleaning gemstones with warm water and mild
soap.

Ms. Ferreira’s tentative observation of a color change

following home cleaning with an unauthorized agent does not
support the inference that the treatment failed or that the
emerald required re-treatment.

To the contrary, the cleaning

constitutes an intervening event that compromises the claim of
28

causation.

Even assuming that the resin treatment the emerald

initially received could degrade over time, causing the color of
the emerald to fade, Ms. Ferreira cannot establish on this
record that any degradation her emerald experienced – and any
resulting re-treatment costs she incurred – may be attributed to
the treatment that Sterling did not properly disclose, rather
than to actions Ms. Ferreira took on her own accord in her use
of the emerald charm, including daily wear and tear and her own
improper treatment of it.20

Cf. Peckham v. Cont’l Cas. Ins. Co.,

895 F.2d 830, 833 (1st Cir. 1990) (“where an independent,
intervening event contributes in some unexpected and significant
manner to the harm which eventuates, a defendant’s conduct
cannot be the legal cause of the injury”); Wallace v. Ludwig,
198 N.E. 159, 161 (Mass. 1935) (character of intervening event
or agent, and “natural and probable connection between the wrong
done and the injurious consequence” are determinative of whether
intervening act breaks causal link).

20

In fact, the very same paragraph in the FTC commentary on
which Ms. Ferreira relies for her claim of a price premium
injury includes a sentence that states: “For example, a stone
that is fracture-filled (i.e., injected with plastic or glass to
hide cracks and improve its appearance) cannot be cleaned with
certain types of jewelry cleaners, because the cleaner could
adversely affect the treatment.” 65 Fed. Reg. at 78,738.
29

The evidence is insufficient to show that the alleged loss
– the need to incur re-treatment costs – would not have occurred
but for Sterling’s failure to disclose the treatment and special
care conditions for the emerald.

Without causation, Ms.

Ferreira cannot succeed on a chapter 93A claim based on this
alleged injury.

Aspinall, 813 N.E.2d at 491.

c. Special Care Requirements
Finally, Ms. Ferreira contends that she suffered an injury
in the form of special care requirements that “increase the cost
of ownership” and that were not disclosed to her or anticipated
by her at the time of purchase.

The parties do not dispute that

the emerald requires special care.

Ms. Falen testified, and at

the time of Ms. Ferreira’s purchase the FAQ section of the
Sterling website indicated, that this special care involves
cleaning the emerald with a mild liquid detergent mixed with
warm water, or solely with warm water.
Ms. Ferreira has not described this as an economic injury
in any comprehensible way, but instead implies that it imposes
an additional burden on her that she did not anticipate when she
made her purchase.

A cognizable injury under chapter 93A need

not necessarily be an unforeseen expenditure.

In Tyler, 984

N.E.2d at 746, the Supreme Judicial Court recognized that a
consumer could suffer two potential types of cognizable injuries
30

attributable to the defendant’s deceptive practice of collecting
consumer zip codes in relation to credit card transactions: “the
actual receipt by a customer of unwanted marketing materials,”
or the merchant’s sale of that information (or data obtained
therefrom) to a third party.

Each of these injuries, the court

reasoned, is “distinct from the statutory violation itself” and
cognizable under chapter 93A, § 9, as “an invasion of the
consumer’s personal privacy causing injury or harm worth more
than a penny.”

Id. at 746 n.20.

But it is hard to see how the need to clean jewelry in
warm, soapy water would constitute an invasion of personal
privacy akin to those identified in Tyler, or how this would
constitute an economic loss for a consumer.

Ms. Ferreira has

not identified any other special care requirements that would
impose a greater burden.

Accordingly, the record lacks any

evidence to establish that she was injured by Sterling’s failure
to disclose in a way that is cognizable under chapter 93A.

See

Tyler, 984 N.E.2d at 746 n.20; Hershenow, 840 N.E.2d at 533-34.
d. Minimum Statutory Damages for a Non-Economic Injury
Ms. Ferreira’s claim for minimum statutory damages is based
solely on her claim of a per se chapter 93A violation.

But the

Supreme Judicial Court has made clear that statutory damages
cannot substitute for the requirement that a plaintiff prove
31

injury and causation in a chapter 93A claim.
N.E.2d at 533 n.18.

Hershenow, 840

Statutory damages substitute only for

quantifying the loss.

Id.; see Bezdek, 2013 WL 639145, at *4

n.7; Rule I, 604 F. Supp. 2d at 302 (misrepresentation cannot
qualify as “injury” simply because it is “deceptive” and some
customers are influenced by it; rather, plaintiff must
demonstrate “that even a per se deception caused a loss”
(quoting Hershenow, 840 N.E.2d at 533)); Tyler, 984 N.E.2d at
745 & nn. 15-16.
This is a case in which there is no evidence in the record
that the harm the plaintiff has suffered is inherently
unquantifiable.

Rather, I have been presented with a record

that suffers from a failure of proof regarding quantification of
an asserted loss.

That there is no evidence in the record

establishing a value differential between what Ms. Ferreira
received and what she paid for does not mean that the
differential cannot be calculated.

Jewelry appraisal is a well

established valuation technique, but it was not provided in the
summary judgment record before me.

The statutory damages

provision of chapter 93A, however, does not relieve Ms. Ferreira
of her evidentiary burdens.

See Mass. Gen. Laws ch. 93A,

32

§ 9(3).

She may not fall back on her failure of proof as a

grounds for statutory damages.21
e. Conclusion
In sum, Ms. Ferreira cannot prove a cognizable injury on
this record.

I will accordingly grant summary judgment for the

defendant on count I.
B.

Unjust Enrichment Claim
Ms. Ferreira offers no argument on her unjust enrichment

claim in her submissions regarding the summary judgment motions.
She has consequently waived this claim.
Cty., 627 F.3d 22, 28 (1st Cir. 2010).

Cf. Harriman v. Hancock
Regardless of Ms.

Ferreira’s intentions regarding pursuit of an unjust enrichment
claim, the case law makes clear that “[a] claim of unjust

21

Following the hearing on this matter, I afforded the plaintiff
the opportunity to file a memorandum identifying where in the
record she has offered evidence quantifying any loss. In her
filing, Ms. Ferreira did not identify any such evidence, despite
continuing conclusorily to assert that she sustained an
ascertainable but unquantified financial loss. In response, the
defendant submitted additional pages of the deposition
transcript of Mr. Smith, Ms. Ferreira’s expert, to provide
further support for the fact that Mr. Smith did not conduct an
appraisal, and therefore could not offer an opinion that Ms.
Ferreira paid more for the necklace than what it was worth. I
will grant Ms. Ferreira’s motion (Dkt. No. 113) to strike
materials that were not already in the record. I consequently
will treat as moot Ms. Ferreira’s further motion (Dkt. No. 115)
to file additional papers of her own in response. I did not
invite the parties to expand the record and the parties’
submissions would add nothing meaningful to the record as it
stands.
33

enrichment . . . is ‘not available to a party with an adequate
remedy at law.”

Fernandes v. Havkin, 731 F. Supp. 2d 103, 114

(D. Mass. 2010) (quoting Ben Elfman & Son, Inc. v. Criterion
Mills, Inc., 774 F. Supp. 683, 687 (D. Mass. 1991)); see Perry
v. Equity Res. Mgmt., L.L.C., Civ. Action No. 12-10779-RWZ, 2014
WL 4198850, at *5 (D. Mass. Aug. 26, 2014).

The availability –

regardless of the likelihood of success – of a claim under
chapter 93A precludes a claim for unjust enrichment.

Fernandes,

731 F. Supp. 2d at 114; see Reed v. Zipcar, Inc., 883 F. Supp.
2d 329, 334 (D. Mass. 2012).

Accordingly, I will grant summary

judgment for the defendant on count II.
C.

Sterling’s Request for Alternative Relief to Strike
Ms. Ferreira as a Class Representative
Sterling moves in the alternative to strike Ms. Ferreira as

an adequate class representative under Fed. R. Civ. P. 23(a)(4).
I need not rule on this request, because I will grant Sterling’s
motion for summary judgment on Ms. Ferreira’s claims.

I will

also deny Ms. Ferreira’s motion (Dkt. No. 91) to strike this
portion of Sterling’s motion for summary judgment and
accompanying evidentiary materials as moot.
III. CONCLUSION
Although Ms. Ferreira cannot proceed with her case
individually, nor from all appearances would a class action be
34

feasible in this setting, consumers are not entirely without
recourse against those engaged in the type of misconduct alleged
here.

A remedy for such unfair or deceptive practices is an

enforcement action by the FTC or by the Massachusetts Attorney
General.

See Rule II, 607 F.3d at 255; Shaulis, 2015 WL

4886080, at *10.

In addition, there may be other consumers who,

unlike Ms. Ferreira, are able to prove a cognizable loss.

Those

individuals are not precluded from proceeding on a chapter 93A
claim against Sterling by this judgment.

But Ms. Ferreira has

insufficient evidence to support such a claim.
For the reasons set forth more fully above, I:
- GRANT the defendant’s motion for summary judgment, Dkt. No.
82, and treat as moot the alternative request to strike the
plaintiff as a class representative;
- DENY the plaintiff’s motion for summary judgment, Dkt. No.
85;
- DENY the plaintiff’s motion to strike portions of the
defendant’s motion for summary judgment, Dkt. No. 91;
- DENY the defendant’s motion to strike a portion of the
plaintiff’s affidavit, Dkt. No. 95;
- DENY the plaintiff’s motion to strike portions of the
defendant’s opposition to her motion for summary judgment,
Dkt. No. 101; and
35

- GRANT the plaintiff’s motion for leave to file a response
to the defendant’s statement of material facts, Dkt. No.
104; and
- GRANT the plaintiff’s motion to strike the additional pages
of deposition testimony submitted by the defendant, Dkt.
No. 113.
- Treat as MOOT the plaintiff’s motion to file additional
papers, Dkt. No. 115.

-

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

-

36