BlueRadios, Inc. v. Hamilton, Brook, Smith & Reynolds, P.C.

• Court: Court of Appeals for the First Circuit
• Decided: February 2, 2026
• Docket: 24-1942
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 24-1942

BLUERADIOS, INC., a Colorado corporation,

Plaintiff, Appellant,

v.

HAMILTON, BROOK, SMITH & REYNOLDS, P.C., a Massachusetts professional corporation; DAVID J. THIBODEAU, JR., an individual; LAWRENCE P. COGSWELL, III, an individual; GERALD KAZANJIAN, an individual; STEPHEN D. BROOK, as Personal Representative of the Estate of David E. Brook; JOSHUA MATLOFF, an individual; and NELSON SCOTT PIERCE, an individual,

Defendants, Appellees.

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

[Hon. Denise J. Casper, U.S. District Judge]

Before

Gelpí, Thompson, and Montecalvo, Circuit Judges.

J. Carl Cecere, with whom Cecere PC, David B. Seserman, Seserman Law LLC, Douglas W. Salvesen, Sanford F. Rems, and Yurko Partners, P.C. were on brief, for appellants.

Carolyn J. Fairless, with whom David J. Schaller, Frederick R. Yarger, William D. Hauptman, and Wheeler Trigg O'Donnell LLP were on brief, for appellees.

Alan Mygatt-Tauber and Paladin Law Office PLLC on brief for Professor W. Keith Robinson, amicus curiae. Timothy Cornell and Cornell Dolan PC on brief for US Inventor, LLC, amicus curiae.

February 2, 2026 THOMPSON, Circuit Judge. To join the oldest bar in the

country -- one older than our Nation itself -- an aspiring

attorney for the Commonwealth of Massachusetts must swear to "delay

no man for lucre or malice" and to conduct themself "with all good

fidelity as well to the courts as" they conduct towards their

"clients."1 The assumption undergirding that sacred oath is that

lawyers are, in fact, faithful to their clients.

Today's case puts that assumption to the test. A tech

company called BlueRadios, Inc. (our appellant) brought a legal

malpractice suit against the Massachusetts law firm Hamilton,

Brook, Smith & Reynolds, P.C., and several of its attorneys

(collectively, "HBSR") (our appellees). In BlueRadios' view, HBSR

is a two-timing firm that helped another company cheat BlueRadios

out of patents -- while also representing BlueRadios. But below,

BlueRadios' quest for justice stopped at summary judgment. The

district court ended the litigation in HBSR's favor because, as a

matter of law: (1) BlueRadios' claims were untimely, (2) no

equitable tolling doctrine saved them, and (3) anyway, there was

no attorney-client relationship between it and HBSR.

Yet we see things differently on a couple of fronts, so

we reverse in part, vacate in part, and remand for more proceedings

consistent with this opinion. Read on to see why.

1 Mass. Gen. Laws c. 221, § 38.

- 3 - HOW WE GOT HERE

This case arises from a long-running intellectual

property (or "IP") dispute between two tech companies: BlueRadios

and Kopin Corporation (the "another company" from our intro).

A

The saga began in 2006.2 That year, BlueRadios (a

Colorado-based company that focuses on wireless technology like

Bluetooth) and Kopin (a "micro-display" technology company)

started collaborating to develop a unique wireless headset called

"Golden-i" that would combine their specialties.

The next year, the two entered a contract detailing their

rights and obligations for the Golden-i project. For our purposes,

three provisions of the contract are important:

• BlueRadios and Kopin would jointly own any IP that

BlueRadios developed for the Golden-i project;

• Kopin had the sole right to use BlueRadios' preexisting

IP for the Golden-i project; and

• Kopin had the sole right and responsibility to decide

whether and how to file patent protections for any IP

2 We siphon our facts from the thick appellate record that the parties provided, consisting of 17 volumes and more than 9,000 pages. Within that record, we most often draw from the parties' statements of undisputed facts filed to the district court, but where necessary, we pull directly from evidentiary source material -- a contract, patent applications, emails, deposition transcripts, and the like.

- 4 - developed during the Golden-i project. Efforts to do so

would be at its expense.

Other provisions of the contract (whose details are largely

immaterial to this appeal) include payment structures and royalty

plans.

B

Kopin soon exercised its right and responsibility to

prosecute Golden-i patents.3 It chose HBSR to handle the patent

3 Throughout today's opinion we'll use the phrase "patent prosecution" as well as variants like the above. For those new to patent law, we'll note that patent prosecution has nothing to do with criminal litigation, despite the overlapping use of "prosecution." Here's a recent, brief, and enlightening description of the patent prosecution process from one of our district courts: A person may apply and be entitled to a patent for an invention that is novel and non-obvious to a person having ordinary skill in the art. See 35 U.S.C. §§ 102-103. To apply for a patent, an applicant must submit a specification and claims to the United States Patent and Trademark Office ["USPTO" or "PTO"] in a process known as patent prosecution. Patent prosecution is an ex parte process completed without the participation of third parties. Without an adversary to challenge the applicant during patent prosecution, the applicant must abide by a duty of "candor, good faith, and honesty." . . . He must disclose to the PTO "all information known to [him] to be material to patentability." 37 C.F.R. § 1.56(a). Once the PTO decides that the invention satisfies the statutory requirements, a patent is issued that grants the owner the exclusive right to "make, use,

- 5 - applications for the project, because Kopin and HBSR had a

longstanding relationship dating back to the 1990s.4 (That isn't

the only connection; another more questionable one will come out

later.)

About two weeks after BlueRadios and Kopin signed their

contract, Kopin introduced BlueRadios to HBSR. Though HBSR did

not enter an engagement agreement with BlueRadios (nor, notably,

with Kopin), they soon began working together on Golden-i patents.

The parties have different views of what happened next.

In BlueRadios' view, a close-knit attorney-client relationship

quickly formed. After all, HBSR attorneys read the BlueRadios-

Kopin contract before working with BlueRadios, so they knew the IP

in the Golden-i patents belonged to both parties jointly.

Likewise, HBSR opened a billing file specifically for BlueRadios

matters, and BlueRadios employees gave powers of attorney to HBSR

so it could prosecute patents on BlueRadios' behalf. BlueRadios

offer to sell, or sell" the invention for a period of time. 35 U.S.C. § 271(a). United States ex rel. Sorgi v. Jazz Pharms. PLC, No. 21-cv-10891-PBS, 2025 WL 2701928, at *1 (D. Mass. Sept. 23, 2025) (cleaned up). 4HBSR is a two-office Massachusetts-based law firm that (on its website) describes itself as a "full-service intellectual property law firm" with "100% work that is IP related." Hamilton, Brook, Smith & Reynolds, https://www.hbsr.com/, [https://perma.cc/WJV9-GAGD] (last visited Jan. 2, 2026) (cleaned up).

- 6 - disclosed important trade secrets to HBSR to facilitate the

Golden-i patent prosecution process. BlueRadios sometimes

communicated with HBSR without Kopin present. Finally, as they

worked together, HBSR did not indicate to BlueRadios that it only

represented Kopin or (put differently) that BlueRadios was not its

client.

But in HBSR's view, it only represented Kopin the whole

time, based on a few key facts. Among them: Kopin introduced HBSR

to BlueRadios as solely Kopin's IP attorneys, and emails between

BlueRadios and Kopin use that specific language throughout much of

the prosecution process. Jeffrey Jacobsen, a Kopin employee who

served as the Golden-i project manager, often acted as the

middleman between BlueRadios and HBSR. Any confidential

information that BlueRadios shared with HBSR was also shared with

Kopin. BlueRadios did not have a direct engagement letter or a

fee arrangement with HBSR, nor did it pay HBSR directly for any

legal services.5 Finally, BlueRadios admits (as HBSR highlights)

that it "did not make individual requests for HBSR to perform

discreet [sic] tasks in fulfilment of its role."

5We remind the reader here that the BlueRadios-Kopin contract established that patent protection efforts would be done "at Kopin's expense," and the parties don't flag whether there were (or weren't) any payments from BlueRadios to Kopin for HBSR's services, notwithstanding the billing file for BlueRadios.

- 7 - C

Setting those differences aside, everyone agrees that

between January 2008 and January 2009, HBSR filed several Golden-i

patent applications. Its behavior in that patent application

process is largely what gave rise to this suit. But rather than

walk through the piles of paperwork and emails related to each

application dispute right now, we'll provide a broad-strokes look

at what happened. (We provide specifics later as necessary.)

BlueRadios' lamentations about HBSR's conduct fall into

three buckets. First, HBSR altered some patent applications to

the benefit of Kopin and the detriment of BlueRadios. Example:

HBSR originally listed Wilfred Tucker and John Sample (two

BlueRadios employees) on the '462 Application6 and the identical

'147 PCT Application.7 It also sought a declaration from Tucker

stating his inventorship rights on those applications.

(Importantly, BlueRadios ultimately possessed those inventorship

rights, because its employees assigned their rights to the

Just a word on the patents' names: the parties refer to the 6

patent applications primarily by the last three digits of the application number, so we do the same. 7"PCT" applications are those filed with the World Intellectual Property Organization (rather than the USPTO) under the "Patent Cooperation Treaty" (hence, "PCT"), and they preserve an applicant's ability to pursue patents internationally. See World Intellectual Property Organization, PCT -- The International Patent System, https://www.wipo.int/pct/en/ [https://perma.cc/2YLP-4JHD] (last visited Jan. 6, 2026).

- 8 - company.) But then, the firm amended the '462 Application to

excise any reference to BlueRadios and its employees. (More on

what happened to the '147 PCT Application momentarily.) A similar

chain of events took place for the '646 Application, where Kopin

was ultimately listed on the application as the sole "assignee,"

even though BlueRadios inventors had, in previous renditions, been

listed (and had assigned their rights to BlueRadios).

Second, HBSR entirely abandoned at least one patent

application that stood to benefit BlueRadios, without even telling

BlueRadios.

And third, HBSR filed a "terminal disclaimer"8 in at

least one other application, again without telling BlueRadios.

More specifically, BlueRadios' gripe is this: HBSR and Kopin filed

another patent application with Golden-i-adjacent technology, but

it was rejected for similarity to a pending patent application

8 A "terminal disclaimer" is another patent-specific term. It's a mechanism that allows an applicant to disclaim (or give up) a patent or an application in full or in part. See 37 C.F.R. § 1.321(b)-(c). Importantly, terminal disclaimers are "a way for an applicant to overcome a double-patenting rejection." Purdue Pharma L.P. v. Collegium Pharm., Inc., 335 F. Supp. 3d. 149, 156 n.3 (D. Mass. 2018) (cleaned up). And since the term "double- patenting rejection" isn't obvious either, we'll explain more: a double-patenting rejection is an outcome in the patent application process; it "precludes one person from obtaining more than one valid patent for either (a) the same invention, or (b) an obvious modification of the same invention." Boehringer Ingelheim Int'l GmbH v. Barr Lab'ys, Inc., 592 F.3d 1340, 1346 (Fed. Cir. 2010) (cleaned up). So with that all in mind, read on to see how HBSR and Kopin purportedly overcame a double-patenting rejection using a terminal disclaimer to BlueRadios' detriment.

- 9 - that BlueRadios was on (and thus would benefit from). So, to

remove the obstacle that was the already-filed patent application,

HBSR filed a terminal disclaimer that limited the scope of the

already-filed application. The point? That disclaimer

essentially ended a pending BlueRadios-Kopin joint application by

claiming that Kopin had a 100 percent interest in the patents -- a

statement that BlueRadios now disputes. And HBSR did so without

telling BlueRadios and years after BlueRadios and HBSR stopped

speaking (more on that shortly).

HBSR says that BlueRadios knew of all these shenanigans

the whole time, in large part because its employees received copies

of some of the amended applications it now complains about. (As

the reader will soon see, the district court agreed.) As HBSR

tells it, the BlueRadios team then either simply failed to act

entirely, or in one case, actually internally flagged the issue

but still failed to do something more. And HBSR also notes that

the patent applications and their file histories were publicly

available for anyone to view on the website of the United States

Patent and Trademark Office ("USPTO"), so nothing was hidden.

Everything was thus sufficiently above-board and BlueRadios should

have known about its purported harms -- or so HBSR says.

D

In the summer of 2009, BlueRadios and Kopin had a falling

out. (The parties skirt around what happened, but it seems

- 10 - unrelated to their IP spat.) So they stopped communicating and

jointly working on Golden-i in July 2009. BlueRadios' last direct

communication with HBSR was one month earlier, on June 16, 2009,

and they too stopped communicating after the BlueRadios-Kopin

split. And for years, nothing more seemed to come of the

breakup -- at least that BlueRadios was aware of.9

But some of the underhandedness that we described above

actually took place after the parties went radio silent. For

instance, the above-mentioned abandonment of the '147 PCT

Application didn't happen until 2011, and much of the chicanery

with the '646 Application, including the removal of BlueRadios'

people, didn't come to fruition until a year after that (and thus

three years from when the parties were last in touch). And while

the appellate record contains internal documents of Kopin and HBSR

stating that they "need to tell" BlueRadios about abandoning one

application and that another change "may require" BlueRadios'

approval, we see nothing in the record suggesting that someone

actually let BlueRadios know about any of it. So BlueRadios

carried on, none the wiser.

9 Still, BlueRadios says the BlueRadios-Kopin contract never officially terminated. And it claims that, since the start of the Golden-i project, HBSR has obtained more than forty patents for Kopin that contained BlueRadios' technology but did not give credit to BlueRadios' contributions.

- 11 - E

Fast forward to August 2014, about five years after the

breakup. That month, BlueRadios began assessing its patent

portfolio after Google approached it about a possible acquisition.

Mark Kramer, BlueRadios' President and CEO, reached out to Kopin's

Jeffrey Jacobsen (reminder: the project manager middleman) to ask

about the value of the Golden-i patents. Jacobsen directed Kramer

to another member of the Kopin team, who never responded to

Kramer's inquiries.

Here's where things get tricky (if the reader didn't

think they were already). Kramer then started to conduct his own

research but could not find the Golden-i patents that Kopin and

HBSR had claimed to put BlueRadios on. Here are Kramer's exact

words describing the situation:

One of the clients wanted to know what [sic] our patent portfolio. We were searching and we couldn't find our names on patents that we were claimed to be put on from Kopin and our patent attorney HBSR.

So we had our -- at the time we had a patent person in New Jersey doing some IOT stuff. I said, hey, I can't search in the USPTO. I'm not that efficient. Can you go find the history of what happened to these patents?

So, as the above suggests, Kramer instructed BlueRadios' patent

attorney, James Klobucar (outside counsel hired in 2011 to handle

contract patent work for it), to look into the patents. The

parties dispute Kramer's motivation for involving Klobucar (the

- 12 - relevance of which will soon become clear): HBSR chalks it up to

Kramer's suspicion of something awry (leaning into "we couldn't

find our names on the patents"), while BlueRadios says it was

Kramer's unsurprising deficiencies as a layperson navigating the

complex world of patent law (leaning into "I can't search in the

USPTO" and "I'm not that efficient").

And the parties also dispute what, exactly, the purpose

of Klobucar's assignment was. We do have the email from Kramer to

Klobucar. It's a longer email providing plenty of background (yet

making no mention of HBSR), but here's the exact instruction:

You will want to search for patents filled [sic] under either: John Sample, Wilfred Tucker, Mark Kramer, Christopher Parkinson, or Jeffrey Jacobsen at Kopin.

Please record your time under the Golden-i project so we can have an accurate record of time spent on this case.

Klobucar did just that. He compiled information that

fit the criteria, and on November 26, 2014, created a list of one

patent and several patent applications.10 Patent applications on

10Typically, we try not to pepper the reader with exact days, because we agree with the sentiment that "few things are duller than a paragraph stuffed with dates." Ross Guberman, Once Upon a Time: Replace Dates with Phrases that Convey a Sense of Time, BriefCatch: Blog (Mar. 31, 2023) https://www.briefcatch.com/blog /once-upon-a-time-replace-dates-with-phrases-that-convey-a- sense-of-time [https://perma.cc/3DXW-A8YH] (last visited Jan. 6, 2026). But because this appeal is mainly about a statute of limitations issue, there will be times where we must do just that, so we ask the reader's patience as we focus on exact dates more than normal.

- 13 - Klobucar's list are at least some of the same ones that BlueRadios

is now suing HBSR over. Klobucar sent BlueRadios invoices dated

December 3, reflecting his fees for the November searches.

Sometime later, BlueRadios paid the fees. And Klobucar shared the

list he compiled with BlueRadios in "mid-December" 2014, but,

notably, not earlier.

The next year, Klobucar sent two letters to HBSR

describing inaccuracies he had unearthed in Golden-i patents and

applications. HBSR first responded that Kopin "believes that the

correct inventors have been named for each of the pending patent

applications and issued patents at issue," and when pressed further

by Klobucar in a second letter, remained of that view.

F

BlueRadios disagreed, so it sued Kopin in the U.S.

District Court for the District of Colorado for breach of contract,

among other claims. (This is the first of two lawsuits relevant

to our appeal.)

In that case, HBSR entered as Kopin's counsel, but

BlueRadios quickly moved to disqualify the firm (a motion that

Kopin and HBSR opposed). See BlueRadios, Inc. v. Kopin Corp.,

No. 16-cv-2052-JLK, 2017 WL 11546716, at *1 (D. Colo. Jan. 24,

2017). The Colorado district court granted the motion over Kopin

and HBSR's objections. Id. at *4. It decided that BlueRadios and

HBSR had an attorney-client relationship during the relevant

- 14 - period, so HBSR's representation of Kopin against BlueRadios

during the litigation would be inappropriate. Id. at *2-4.

For a little while after that, the case proceeded in the

normal course. But then, BlueRadios says that through the

discovery process, it learned about HBSR's malfeasance (as

distinct from Kopin's) in 2017. It apparently became clear after

seeing internal communications between HBSR and Kopin (like the

notes we described above) that showed how HBSR had schemed to deny

BlueRadios' ownership interests and not even tell it, all to

Kopin's benefit.

HBSR's motive for the deceit? At least in BlueRadios'

view: attorney David Brook (the "B" in "HBSR") was at all relevant

times (and, as far as we can tell, unbeknownst to BlueRadios until

the Colorado litigation) also a Kopin co-founder and the secretary

of Kopin's Board of Directors. He was also the owner of a

multimillion-dollar stock position in Kopin -- a position that he

apparently liquidated almost entirely right before BlueRadios sued

HBSR.11 So (says BlueRadios) HBSR had a financial incentive to

help Kopin profit at BlueRadios' expense.

11 We say "apparently" because BlueRadios only offers the complaint as support for Brook liquidating his stock at that most convenient time. And while the complaint says that's supported by SEC filings, BlueRadios doesn't point us to them, and we aren't going to do the parties' work of looking for them.

- 15 - And those discoveries in the Colorado litigation led to

a pivotal momentary truce between HBSR and BlueRadios. They

entered a "tolling agreement" that preserved any claims that were

timely as of December 5, 2017.12

Following a jury trial in Colorado, BlueRadios secured

a multimillion-dollar verdict against Kopin for its conduct.13

Appeals in that case are (as far as we can tell) still pending in

the Federal Circuit.

G

But recall above that we said "lawsuits," plural. The

case now before us began in March 2021, when BlueRadios sued HBSR

in Massachusetts' federal district court. BlueRadios brought a

set of claims -- the headliners being legal malpractice, breach of

fiduciary duty, and fraudulent concealment. Litigation proceeded

in the normal course: a partially successful motion to dismiss

that winnowed out a "civil conspiracy" claim against all the

defendants (as well as two other counts against defendant Joshua

Matloff, an HBSR attorney), an amended complaint, an answer, and

so on.

12 More simply, the agreement stopped the statute of limitations clock from running. That's why, as we'll soon explain, under a three-year limitations period, the claims must not have accrued before December 5, 2014. 13See BlueRadios, Inc. v. Kopin Corp., No. 1:16-cv-02052-JLK, 2025 WL 2886547, at *27–28 (D. Colo. Sept. 4, 2025), appeal docketed, No. 26-1067 (Fed. Cir. Oct. 17, 2025).

- 16 - Following discovery, the parties each moved for summary

judgment. BlueRadios sought partial summary judgment about

whether an attorney-client relationship existed between HBSR and

BlueRadios (as well as another issue not material to today's

appeal). HBSR, meanwhile, moved for summary judgment on all

remaining claims.

The district court granted summary judgment for HBSR and

denied it for BlueRadios. That order is what's on appeal, so we'll

walk through it in detail. The district court held first that the

statute of limitations barred all of BlueRadios' claims. It began

with the premise that in Massachusetts (whose law indisputably

applied to this action under diversity jurisdiction), a three-year

statute of limitations governed the relevant claims.14 So, for

BlueRadios' claims against HBSR to be timely, they must not have

accrued before December 5, 2014 -- three years to the day before

the tolling agreement.15 After walking through the contested

patent applications, the district court held that BlueRadios was

14 Except, possibly, for the claim BlueRadios brought under Massachusetts General Law Chapter 93A, forbidding unfair or deceptive business conduct. The district court recognized how that claim might be governed by a four-year statute of limitations, but reasoned that, even under the four-year period, the claim was untimely. 15Caselaw referencing a claim's "accrual" or a claim having "accrued" is a technical way of saying that the limitations clock has started to run. Once a claim has "accrued," the plaintiff must bring the claim within the requisite period for filing suit or it's deemed untimely.

- 17 - on "constructive notice" of its claims as early as 2008 and on

actual notice by November 2014 at the latest. Either way, its

claims ripened before the deadline and were thus untimely.

Nor, in the district court's view, did any equitable

tolling doctrines save the claims. The "continuing

representation" doctrine16 did not apply for three reasons: because

BlueRadios and HBSR did not have not an attorney-client

relationship, because BlueRadios purportedly "expressed

misgivings" about HBSR's actions as early as 2008, and because

communications between BlueRadios and HBSR stopped in 2009.17 And

the "fraudulent concealment" doctrine18 did not preserve the claims

16 In Massachusetts, the continuing representation doctrine "tolls the statute of limitations in legal malpractice actions where the attorney in question continues to represent the plaintiff's interests in the matter in question," because it isn't "realistic to say that the client's right of action accrued before he terminated the relationship with the attorney." Murphy v. Smith, 579 N.E.2d 165, 167-68 (Mass. 1991) (cleaned up). 17The "expressed misgivings" point is especially important, so we'll explain a bit more here (and unpack it fully later). Recall that we noted BlueRadios had internally flagged inconsistencies as to one application; to be specific, Kramer said in an email that it was "sort of reckless" for BlueRadios not to be on the patent application. Relying on that episode, the district court turned to Massachusetts caselaw about questioning the attorney's competence and, applying it here, held that the continuing representation doctrine is rendered a nullity once the plaintiff "had questioned and had assessed [the attorney's] representation of his interest and found it to be wanting," even if the attorney hadn't yet been fired. Cantu v. St. Paul Cos., 514 N.E.2d 666, 669 (Mass. 1987). 18In Massachusetts, the statute of limitations for cases is tolled when "a person liable to a personal action fraudulently conceals the cause of such action from the knowledge of the person

- 18 - because the patent applications were publicly available and

because HBSR did not owe BlueRadios a "duty of disclosure" related

to the patent omissions and amendments.

The statute of limitations holding would have been

enough to end the case. But "for completeness," the district court

also held that some of BlueRadios' claims failed for another more

fundamental reason: there was no attorney-client relationship

between BlueRadios and HBSR. BlueRadios failed to satisfy even

the first of three elements for the Massachusetts attorney-client

relationship test, because (in the district court's view) it did

not seek "advice or assistance" from HBSR directly.

BlueRadios timely appealed the district court's order

granting summary judgment, and here we are.19

STANDARD OF REVIEW

"We review an order granting summary judgment de novo."

Irobe v. U.S. Dep't of Agric., 890 F.3d 371, 377 (1st Cir. 2018).

The standard is a familiar one: a court can grant summary judgment

"only if the record, construed in the light most amiable to the

entitled to bring it." Mass. Gen. Laws c. 260 § 12; see also Demoulas v. Demoulas Super Markets, Inc., 677 N.E.2d 159, 174 (Mass. 1997). 19 We'll note here that two amicus curiae, IP Professor W. Keith Robinson and a nonprofit organization called US Inventor, each filed briefs supporting BlueRadios. We thank them for their helpful offerings.

- 19 - nonmovant, presents no genuine issue as to any material fact and

reflects the movant's entitlement to judgment as a matter of law."

Id. (cleaned up); see Fed. R. Civ. P. 56(a).

OUR TAKE

We now turn to BlueRadios' arguments. We'll start with

the statute of limitations issue, then turn to the attorney-client

relationship question, and conclude with some brief thoughts on

equitable tolling. (The reader will soon see why we decide to

take the issues in that order.)

A. Statute of Limitations

Recall the district court's primary holding: BlueRadios'

claims against HBSR were untimely under a three-year statute of

limitations.20 It explained that BlueRadios alleges that HBSR

"engaged in misconduct by depriving BlueRadios of inventorship,

ownership and assignment rights in several patents." So the

district court reasoned (as we explained above but think worth

reiterating) that BlueRadios was on "constructive notice" of

HBSR's actions during the 2008-09 period and actual notice by

November 2014, when Klobucar began conducting searches into the

Golden-i patent portfolio.

20 We remind the reader that the district court separately noted that, even if a four-year limit applied to the Chapter 93A claim, it would have still been untimely.

- 20 - On appeal, BlueRadios says otherwise. First, it says it

did not discover the facts necessary to trigger accrual until 2017,

when, during the Colorado litigation, it uncovered evidence of the

scheme between Kopin and HBSR. The other prior instances

identified by the district court all fail to trigger the

limitations period (at least in BlueRadios' view). That's the

case because: (1) as a matter of law, misstating inventorship in

a patent application cannot constitute the appreciable harm

necessary for accrual, and (2) as a matter of fact, nothing that

BlueRadios learned in 2008-09 or in November 2014 gave sufficient

notice of harm for the statute of limitations to start running.

In response, HBSR explains that BlueRadios must run the

table to overcome the district court's three-pronged reasoning on

the statute of limitations issue. Contends HBSR:

• First, BlueRadios knew enough to trigger the statute of

limitations in four instances between 2008 and 2009.

• Second, BlueRadios also should have known (rather than

"knew") sufficient facts about its alleged harms

beginning in 2009 because, by then, the disputed

applications were publicly available on the USPTO

website.

• Third, BlueRadios knew enough facts to trigger notice in

November 2014, once it had Klobucar start investigating

the patents.

- 21 - And HBSR says we would have to find that the district court erred

on all three holdings to revive BlueRadios' claims. Put

differently, if the district court was right about any of those

three holdings, BlueRadios' claims must be untimely.

As the reader can see, there are a few moving parts here.

So, before we dive into the record, we'll provide a brief primer

on the discovery rule, the mechanism that governs the timeliness

of a legal malpractice claim. After that, we'll take a fresh look

at the record and offer our thoughts on whether the claims were

untimely. (Spoiler: in strict adherence to Massachusetts caselaw,

we think it's a jury question all the way down.)

i

In Massachusetts,21 the statute of limitations for a

legal malpractice claim starts to run when a client "knows or

reasonably should know that he or she has sustained appreciable

harm as a result of the lawyer's conduct." Williams v. Ely, 668

N.E.2d 799, 804 (Mass. 1996). Colloquially, the "discovery rule."

As we noted, the district court applied Massachusetts law 21

because the case arose through diversity jurisdiction. No one contests the applicability of Massachusetts law on appeal, so (without getting into potentially sticky choice-of-law issues) we see no reason to use any other jurisdiction's law. See, e.g., Daigle v. Me. Med. Ctr., Inc., 14 F.3d 684, 689 (1st Cir. 1994) ("A federal court sitting in diversity jurisdiction and called upon in that role to apply state law is absolutely bound by a current interpretation of that law formulated by the state's highest tribunal.").

- 22 - Under the discovery rule, we assess knowledge from the

vantage of "a reasonable person in the plaintiff's position."

Taygeta Corp. v. Varian Assocs., Inc., 763 N.E.2d 1053, 1063 (Mass.

2002) (cleaned up). The plaintiff "need not know the extent of

the injury or know that the defendant was negligent for the cause

of action to accrue." Williams, 668 N.E.2d at 804. But they must

have sufficient information to recognize that they have an injury

that is "causally connected to" the defendant's conduct for the

clock to start. Int'l Mobile Corp. v. Curron & Black/Fairfield &

Ellis, Inc., 560 N.E.2d 122, 124 (Mass. App. Ct. 1990). And

appreciable harm "includes injury, loss or detriment that is

capable of being measured or perceived." Frankston v. Denniston,

907 N.E.2d 244, 251 (Mass. App. Ct. 2009) (cleaned up). Sometimes,

it can include "additional legal fees to ameliorate the harm caused

by" the attorney's malpractice. Levin v. Berley, 728 F.2d 551,

554 (1st Cir. 1984). (More on this line of cases later.)

One more important point. In Massachusetts, whether "a

plaintiff knew or should have known is a question of fact that is

often unsuited for summary judgment." Khatchatourian v. Encompass

Ins. of Mass., 935 N.E.2d 777, 780 (Mass. App. Ct. 2010) (cleaned

up). Indeed, the Supreme Judicial Court of Massachusetts (or

"S.J.C.") has said that "in most instances, the question [of] when

a plaintiff knew or should have known of its cause of action is

one of fact that will be decided by the trier of fact." Taygeta

- 23 - Corp., 763 N.E.2d at 1063 (cleaned up). Only when facts about

discovery "are undisputed, the question may be decided as [a]

matter of law." Khatchatourian, 935 N.E.2d at 781 (cleaned up).

ii

The district court first decided that BlueRadios was on

"constructive notice" of its claims as early as 2008 and 2009

because it "had knowledge of the issues of which [it] has

complained of concerning inventorship and assignment rights as

early as" then.22 We aren't convinced for a few reasons.

22 While not as substantive as the discussion that follows, we note here that BlueRadios rightly took aim at the district court's occasional use of the term "constructive notice" to describe its analysis under the discovery rule. We don't think the district court's concept of "constructive notice" (which the court seemed to think was established primarily via mere receipt of copies of the patent applications) accurately reflects Massachusetts discovery rule caselaw. The relevant inquiry is (as the district court elsewhere noted) whether the plaintiff "knows or reasonably should know that he or she has been harmed by the defendant's conduct." Williams, 668 N.E.2d at 804. In Massachusetts, "constructive notice" carries specific legal import -- it's notice "arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of, such as a registered deed or a pending lawsuit; notice presumed by law to have been acquired by a person and thus imputed to that person." Bank of Am., N.A. v. Casey, 52 N.E.3d 1030, 1041 n.21 (Mass. 2016) (quoting Black's Law Dictionary 1227 (10th ed. 2014)). With that in mind, we see constructive notice as a distinct legal concept probably irrelevant to the necessary discovery rule analysis here. Perhaps the district court was using "constructive notice" as shorthand for "reasonably should know," and that would be the right inquiry. See, e.g., Williams, 668 N.E.2d at 804. But we don't see any caselaw equating the two, nor do the parties point us towards any, so we include this footnote to clarify the right terms that guide the analysis.

- 24 - For one, much of the district court's reasoning turned

on BlueRadios' receipt of copies of applications updated with the

allegedly sinister (but surreptitious) changes. We take the

district court's point to be that, because HBSR sent BlueRadios

copies of the patent applications at issue throughout this period,

BlueRadios should have known of HBSR's skullduggery. But we think

it reasonably doubtful that the district court's holding -- that,

as a matter of law, mere receipt of highly technical patent

applications triggered notice for these non-lawyers -- could be

correct.

Remember that we're at summary judgment, so we must

assess the record "in the light most favorable to the non-movant"

(BlueRadios) and draw "all reasonable inferences in [its] favor,"

affirming "only if the record reveals no genuine dispute as to any

material fact and the movant" (HBSR) "is entitled to judgment as

a matter of law." Taite v. Bridgewater State Univ. Bd. of

Trustees, 999 F.3d 86, 92-93 (1st Cir. 2021).

And reading the record in the light most favorable to

BlueRadios, we think reasonable people could disagree about

whether its non-lawyer employees should have appreciated what was

happening. After all, the issues that the district court thought

BlueRadios should have spotted largely concerned assignment, a

somewhat complex property/contracts concept, and inventorship,

long said to be "one of the muddiest concepts in the muddy

- 25 - metaphysics of the patent law." Mueller Brass Co. v. Reading

Indus., Inc., 352 F. Supp. 1357, 1372 (E.D. Pa. 1972). On this

point, we find BlueRadios' description of itself (taken from its

brief, but well-supported in the record) highly relevant:

As a small, 3-person company owned exclusively by engineers with almost no knowledge of the patent prosecution process that had never attempted to patent anything, BlueRadios employees did not know what a patent claim was, how inventorship was determined, what the designation of an "assignee" on a patent actually meant, or why it would be necessary to list it on a patent application.

We can see how a jury could reasonably reach the same conclusion,

so summary judgment against BlueRadios on the grounds that it knew

or should have known about HBSR's misconduct in 2008-09 was error.

See Cambridge Plating Co. v. Napco, Inc., 991 F.2d 21, 30 (1st

Cir. 1993) ("We think it within a factfinder's province to conclude

that, in late 1985, Cambridge Plating had no basis for suspecting

Napco's workmanship and reasonably attributed the system's

problems solely to its own deficient operation. If so, the statute

of limitations would not yet have begun to run.").

Holding in the alternative -- that receipt alone of

highly technical and legally complex documents by non-lawyers

triggers accrual as a matter of law -- would be troublesome. We

think that outcome would require clients (who believe an attorney

is representing their legal interests) to somehow double-check

their attorney's work (or hire a second attorney) any time they

- 26 - receive a document just to preserve a malpractice claim based on

that document; it would thus infuse skepticism into a relationship

that is best built on trust. As we've explained, "the

attorney . . . is an expert, and much of his work is done out of

the client's view." Rosen Constr. Ventures, Inc. v. Mintz, Levin,

Cohn, Ferris, Glovsky & Popeo, P.C., 364 F.3d 399, 410 (1st Cir.

2004) (cleaned up). But, meanwhile, "the client is not an expert;

he cannot be expected to recognize professional negligence if he

sees it, and he should not be expected to watch over the

professional or to retain a second professional to do so." Id.

(cleaned up); see also Eck v. Kellem, 748 N.E.2d 1047, 1051 (Mass.

App. Ct. 2001) (explaining that the plaintiff had the right to

"repose confidence in the professional ability and good faith" of

their attorney (cleaned up)). That result is better avoided.

Mere receipt was the throughline of the district court's

reasoning, but not the only reason it thought BlueRadios was on

"constructive notice" of its claims as early as 2008. The district

court also made another holding that we'll detail momentarily as

to one specific application, but that holding doesn't move us from

our conviction that this overarching issue, as the S.J.C has

stated, is better suited for a jury. See Taygeta Corp., 763 N.E.2d

at 1063.

As to the '090 Application specifically, the district

court held that BlueRadios was on notice of its harms additionally

- 27 - because Kramer (BlueRadios' CEO) had made an "expression of

misgiving" to Tucker (another BlueRadios employee) and that his

expression of misgiving was "compelling proof that the plaintiff

was on notice" (the district court's words). In reaching that

conclusion, the district court cited two cases: RTR Technologies,

Inc. v. Helming, 815 F. Supp. 2d 411, 421 (D. Mass. 2011), and

Lyons v. Nutt, 763 N.E.2d 1065, 1069 (Mass. 2002).

But we don't think Kramer's one email to Tucker reaches

the same level of "misgiving" as those cases the district court

cited. RTR Technologies concerned a client who "repeatedly and

openly expressed" her concern about her lawyers "to various

individuals" and was "actively investigating the disputed issue

several years before filing suit." 815 F. Supp. 2d at 421-22.

Lyons, meanwhile, is a bit more complicated. It involved

a trustee who instructed his attorneys "to take whatever action

was necessary to accept [an outstanding] offer to purchase" a

company in the possession of the trust he oversaw. 763 N.E.2d at

1067. Yet the trustee's lawyers didn't act for months, the offer

was withdrawn, and the trustee became subject to suit by the

beneficiaries of the trust as a result. Id. at 1067-68. Once the

offerors walked away, the trustee realized that his attorneys

"didn't know what they were doing" (as he later stated in a

deposition). Id. at 1069. The S.J.C. affirmed that the statute

of limitations for the trustee's malpractice claim against his

- 28 - lawyers began to run at that moment of realization, because right

then, he knew "that he sustained appreciable harm as a result of

the lawyer's conduct." Id. at 1070 (cleaned up). For statute of

limitations purposes (as well as for purposes of the continuing

representation doctrine, which we'll turn to later), it was no

matter that the trustee continued to work with those lawyers after

the failed purchase, because he had already expressed a total

repudiation of confidence in their abilities. Id. at 1070-71.

By contrast, Kramer only once said to another one of his

colleagues that it was "sort of reckless" to add Parkinson (a Kopin

employee) to a patent but not name anyone from BlueRadios. And

his statement that the "Patent Attorneys need to be aware of this"

(made in the same email) can fairly imply that he thought HBSR

wasn't in the know about the omission -- a point in BlueRadios'

favor. See Williams, 668 N.E.2d at 804 (explaining that the client

must know that he "sustained appreciable harm as a result of the

lawyer's conduct" (emphasis ours)). To boot, Tucker (the employee

to whom Kramer made the comment) later raised the issue to Jacobsen

(the Kopin middleman), who then forwarded the email to HBSR and

blind-copied Tucker. We think a factfinder could reasonably

conclude, as BlueRadios puts it, that "Tucker believed that HBSR

would use the information appropriately and did not believe there

was any more he could do to address the issues he raised." So we

- 29 - don't share the district court's certainty that the "misgivings"

line of cases controls here.

And to the extent that HBSR thinks this one kerfuffle

about one application could be a death-knell for the whole case,

our precedent forbids that outcome. See Mass. Eye & Ear Infirmary

v. QLT Phototherapeutics, Inc., 412 F.3d 215, 241 (1st Cir. 2005).

Like that panel, we "do not believe that in a complex case of this

nature -- where . . . secrets of varying importance are alleged to

have been divulged over a period of years -- that notice of one

misappropriation can constitute sufficient notice to begin tolling

the statute for all misappropriations." Id.

And, anyway, "a wronged party should not be prejudiced

with regards to later [acts] committed against it, simply because

a defendant started the clock running by committing similar acts

at an earlier time." Id. That language is especially pertinent

here, because (as we've highlighted) some of HBSR's chicanery took

place years after the patent applications were submitted and after

the parties were out of touch (i.e., post-June 16, 2009).23 A

factfinder is better positioned to resolve this issue to the extent

some harms -- like the abandonment of the '147 PCT Application in

2011 or the amendments to the '646 Application in 2012 -- were

23 Remember too that the BlueRadios-Kopin contract had not formally terminated at this point, so it was at least an open question whether their contractual obligations remained in place (as far as we can tell from the parties' filings).

- 30 - years from happening and, by our lights, not discernable from the

state of the papers in 2008-09.

Put differently, we don't think it's so clear-cut, as a

matter of law, that BlueRadios could have anticipated from the

receipt of paperwork in 2008-09 that HBSR would hang them out to

dry in 2011-12. Although the district court acknowledged that

such important facts happened later on, it did not, in our view,

adequately reckon with how that influenced the analysis. Under

our caselaw, that's a problem: while "statutes of limitations

provide necessary closure and fairness for potential defendants,"

it's also clear that "no defendant should be able to immunize

itself from later, potentially graver claims, by openly engaging

in prior, similar offenses that the future plaintiff does not

believe warrant bringing suit." Id. And given that we think

reasonable people could disagree about whether HBSR was even

"openly engaging" in the conduct that BlueRadios is suing it over,

that concern is even more prevalent here. Id.

So we hold that whether BlueRadios knew or should have

known about HBSR's purported sins back in the 2008-09 period is a

question best left for the jury. See Cambridge Plating Co., 991

F.2d at 30; Mass. Eye & Ear, 412 F.3d at 241.

iii

The district court separately held that the

applications' publication on the USPTO website in the 2008-09

- 31 - period put BlueRadios on sufficient notice to get the clock

running. But we disagree on this point, too.

For starters, we read the cases that the district court

cited a bit differently. Wise v. Hubbard held that the harm

(there, a conversion) "became knowable when the patent was issued

and recorded," not just when the patent application was filed.

769 F.2d 1, 3 (1st Cir. 1985) (emphasis added). There is, as

amicus Professor Robinson makes clear, a notable difference

between a patent application and an issued patent.24 See, e.g.,

Marsh v. Nichols, Shepherd & Co., 128 U.S. 605, 612 (1888) ("Until

the patent is issued, there is no property right in it; that is,

no such right as the inventor can enforce."). So we don't think

Wise mandated accrual back in 2008-09.

And the other case the district court relied on for this

point is not to the contrary. See Geo. Knight & Co. v. Watson

Wyatt & Co., 170 F.3d 210 (1st Cir. 1999). For one, it is factually

different -- involving not an attorney-client relationship but the

relationship between an actuarial firm and a company. 170 F.3d at

24 We'll note that some of BlueRadios' and Kopin's patent applications were provisional patent applications. As we understand it, provisional applications are "quick and inexpensive" filings that only serve "as a placeholder" with the USPTO and give the applicants "the benefit of priority" for an invention but don't, themselves, confer rights. United States v. Camick, 796 F.3d 1206, 1218 (10th Cir. 2015) (cleaned up) (quoting U.S. Patent & Trademark Office, Manual of Patent Examining Procedure § 201.04 (9th ed. 2014) (hyperlink omitted)).

- 32 - 211-12. The firm identified a problem in the company's funding of

its retirement contribution plans for its employees, and the firm

then made several suggestions to remedy that problem. Id. The

company adopted one of those proposals, but that proposal, years

later, actually exposed the company to liability; the company then

sued the actuarial firm for the harms suffered due to the poor

proposal. Id. at 212. Yet we held that the company "had sufficient

information -- indeed, all of the information -- it needed to

know" about the liability at the time it first adopted the firm's

plan. Id. at 214 (emphasis omitted).

But here, HBSR (as far as we can tell) never explicitly

told BlueRadios of its omissions or amendments to the patent

applications, despite later contemplating the need to do so. Yes,

HBSR sometimes provided BlueRadios copies of applications with

those omissions or amendments on them, but (again, as far as we

can tell from the record), it did so without flagging the changes.

Given the importance of the learned legal professional in this

relationship, the difference matters. See Rosen Constr., 364 F.3d

at 410 ("The client is not an expert; he cannot be expected to

recognize professional negligence if he sees it, and he should not

be expected to watch over the professional or to retain a second

professional to do so." (cleaned up)). And the malpractice at

issue in Geo. Knight required the expertise of the company's

internal accountant -- which, importantly, it had -- to uncover.

- 33 - 170 F.3d at 215 (explaining how the problem "was brought to the

attention of [the company] by its accountant"). By contrast,

BlueRadios lacked an in-house patent attorney (to repeat, it

believed HBSR was protecting its joint patent interest with Kopin).

That's precisely why it was at the mercy of HBSR in the first place

and why it took a second patent attorney (Klobucar) to start to

figure things out years later. So we don't think Geo. Knight

disfavors BlueRadios.

And as to the merits of the district court's

holding -- that publication of patent applications on the USPTO

website in 2009 meant that BlueRadios' non-lawyers "should have

known" about the errors -- that question is one better left for

the jury for the same reasons we've provided in the previous

section. See Cambridge Plating Co., 991 F.2d at 30; Mass. Eye &

Ear, 412 F.3d at 241. In short, we see a difference between

knowledge that BlueRadios could have attained (via the USPTO

website) and knowledge it reasonably should have attained. HBSR

wants to collapse the distinction, but a jury (not a judge) should

decide whether that's appropriate in these circumstances. See

Taygeta Corp., 763 N.E.2d at 1063.

iv

Next, the district court held that BlueRadios was on

notice of its claims in November 2014 at the latest. It reached

- 34 - that conclusion for two big reasons, but in taking a fresh look at

the record ourselves, neither persuades.

First, the district court explained how the fact "that

BlueRadios conducted their own inquiry and then hired an attorney

to look into the patent history because they were not finding their

names on patents was sufficient to provide notice of harm and

accrual of the statute of limitations." But Kramer's exact words

describing the situation that led him to ask Klobucar read a bit

differently to us. Again, here's what he said:

One of the clients wanted to know what [sic] our patent portfolio. We were searching and we couldn't find our names on patents that we were claimed to be put on from Kopin and our patent attorney HBSR.

So we had our -- at the time we had a patent person in New Jersey doing some IOT stuff. I said, hey, I can't search in the USPTO. I'm not that efficient. Can you go find the history of what happened to these patents?

Reading that passage in the light most favorable to BlueRadios (as

we must), we don't think it was appropriate grounds for summary

judgment. Here, as above, we think the district court didn't

adhere to its important duties to examine the record "in the light

most favorable to the non-movant" and to draw "all reasonable

inferences in [its] favor." Taite, 999 F.3d at 92 (cleaned up).

More specifically, the district court cast aside the

version of the events more amenable to BlueRadios -- that, as

Kramer suggests with his remark that he wasn't "that efficient,"

- 35 - he wasn't able to find the patents and applications on the USPTO

website because he wasn't a patent attorney -- for a version that

was not firmly rooted in the record -- that Kramer knew he wasn't

finding names because of HBSR's underhandedness. Given (again)

that "in most instances, the question [of] when a plaintiff knew

or should have known of its cause of action is one of fact that

will be decided by the trier of fact," we don't think this

testimony (that could reasonably be interpreted at least two ways)

is such a smoking gun that it takes the case out of the jury's

hands. Taygeta Corp., 763 N.E.2d at 1063 (cleaned up); see also

Rosen Constr., 364 F.3d at 410-11 (declining to hold that a claim

accrued as a matter of law based on a note because "the language

[the firm] cite[d] [wa]s ambiguous" as to whether the plaintiff

had actual knowledge of the firm's alleged negligence).

Second, the district court held that BlueRadios knew of

its injury around November 2014 because "of the facts that Klobucar

discovered during the course of his patent search, including that

Kopin was the sole assignee for certain patents, [that] BlueRadios

was deleted as inventors on certain patents," and that HBSR was

"prosecuting the patents." And nested within that holding, the

district court offered two reasons why Klobucar's actions put

BlueRadios on the hook.

It first pointed to the incurrence of legal fees before

December 5, 2014, citing caselaw showing how that was a

- 36 - sufficiently appreciable harm for purposes of accrual under the

discovery rule. But the legal expenses incurred before December 5,

2014 weren't the type of "litigation-related expenses in defending

against, or advancing, an issue that is central to the alleged

legal malpractice" that would trigger accrual. Frankston, 907

N.E.2d at 251; see, e.g., Eck, 748 N.E.2d at 1050 (a case that

"does not fall within that rule"). For one, Klobucar had been

BlueRadios' contract attorney for patents since 2011, and a

reasonable jury could (as we just discussed) find that BlueRadios

asked him to look into the Golden-i patents for non-HBSR

malpractice reasons (that is, to assess its patent inventory), so

it's fair to say that BlueRadios "engaged another attorney" for

"reasons unrelated to any dissatisfaction with [HBSR]." Rosen

Constr., 364 F.3d at 407. And it wasn't yet clear that BlueRadios

"was being represented by independent counsel who knew of the cause

of action" that BlueRadios had, because prior to "mid-

December 2014," Klobucar hadn't communicated his findings with

anyone at BlueRadios who could have connected the dots. Levin,

728 F.2d at 554 (emphasis added). Under those circumstances,

attorney's fees aren't an appreciable harm that would start the

clock. Rosen Constr., 364 F.3d at 407.

One more point on this issue. Recall that even after

Klobucar's inquiry letters to HBSR, HBSR stated that the "correct

inventors have been named in each of the pending applications" and

- 37 - that "changes would not be appropriate." In cases where past

counsel gave no reason to think otherwise, both the First Circuit

and a Massachusetts appellate court have found accrual at the first

moment of new attorneys' fees inapt. See Rosen Constr., 364 F.3d

at 407 ("[The law firm] continued to assure [the client] that it

would prevail in its action against [a third-party] and that the

Fill Agreement protected [the client's] rights. Furthermore, [the

client] engaged another attorney . . . for reasons unrelated to

any dissatisfaction with [the firm]."); Eck, 748 N.E.2d at 1051-

52 (holding that the statute of limitations began to run from the

time of judgment, not the first payment to the new attorney). We

recognize that the assurances in those cases were clearer cut than

what BlueRadios says was an assurance here, but we think the

behavior was similar enough to warrant a cautious approach to

accrual at the summary judgment stage.25 See Taygeta Corp., 763

N.E.2d at 1064 ("Such a disputed issue of fact should be resolved

by a jury.").

And that leads to the second reason the district court

said that BlueRadios acquired sufficient knowledge based on

Klobucar's search: the line of cases about how the "client is

charged with the knowledge of his attorney" for purposes of

The district court stated that "there is no evidence that 25

Defendants provided any such assurances to BlueRadios," but again, we aren't so certain that the character of HBSR's responses to Klobucar's letter couldn't be read as assurances.

- 38 - accrual. Levin, 728 F.2d at 553. That may be a correct statement

of law, but again, we don't see how it's decisive here.

By now, we've stated over and over that it's a jury

question whether BlueRadios knew enough to trigger accrual by this

moment. We've held that reasonable people could disagree about

the import of all those facts as they relate to BlueRadios'

knowledge; put differently, it is a debatable question whether

BlueRadios knew enough to have the clock start ticking. So we

don't think it makes much sense to hold that Klobucar -- operating

with, at most, the same knowledge of those facts -- had in

November 2014 such a materially superior grasp of the

circumstances for the clock to start as a matter of law.

For another, the district court stated in a footnote

that it was "undisputed that Klobucar understood the material

relationship" between Kopin and BlueRadios (insofar as he read the

contract) and that he "understood that the Law Firm submitted the

patent applications." But the district court (in our view) gave

those facts too much weight for summary judgment purposes. That

Klobucar knew some background and that he found the patents and

applications (as reflected in his list) is not to say that he knew,

with the kind of certainty necessary for summary judgment to be

appropriate, that some semblance of foul play was afoot. See Rosen

Constr., 364 F.3d at 405-06; Levin, 728 F.2d at 554; see also

Williams, 668 N.E.2d at 804 (explaining how the clock does not

- 39 - start "until the plaintiff knows or reasonably should know that he

or she has been harmed by the defendant's conduct").

Again, we've got to look at this in the light most

favorable to BlueRadios. And from that perspective, Klobucar's

mission was quite narrow; he described his task as only a "basic

review to determine if, indeed, there was an assignment and if

there was an assignment, to whom the assignment pertained." But

(at least in BlueRadios' plausible presentation of the record) at

no point before December 5, 2014 (again, the drop-dead date) had

any meeting of the minds occurred between Klobucar and BlueRadios,

nor had Kramer asked Klobucar to evaluate, critique, or attempt to

correct anything HBSR had done or failed to do.

Yet it seems that HBSR wants to charge BlueRadios with

complete knowledge just because Klobucar and BlueRadios each had

incomplete knowledge that could eventually add up to complete

knowledge. We don't see anything in the caselaw requiring us to

undertake the complicated metacognitive arithmetic (some knowledge

in client + other knowledge in attorney = enough knowledge in

client) that's necessary to accept that argument. Instead, we

only read the law to say that if Klobucar knew everything, the

statute of limitations would start running and BlueRadios' claims

would be untimely. See, e.g., Levin, 728 F.2d at 553 (holding

that a client is on notice of their past attorney's conduct when

- 40 - the client's current attorney sends a letter to the past attorney

accusing him of "alleged errors").

All that's to say: reasonable people could disagree

about the import of the facts in the November-December 2014

timeline, so this question is (like the others) better left for

the jury.

v

So, if not prior to December 5, 2014, when could the

legal malpractice claim have accrued?26

BlueRadios submits that accrual didn't happen until

spring 2017, because then -- and only then -- things came out

during discovery in the Colorado-based BlueRadios-Kopin litigation

to alert everyone at BlueRadios of HBSR's unscrupulousness (as

distinct from Kopin's). To support that proposition, BlueRadios

offers a declaration from Kramer stating that BlueRadios "obtained

discovery about Kopin's communications with HBSR, and certain

portions of HBSR's file." We assume based on context clues -- but

BlueRadios does not tell us outright -- that the discovery

included the specific internal documents between Kopin and HBSR

that we referenced earlier. Those documents stated that Kopin and

26 The question matters because, "if a defendant pleads the statute of limitations and demonstrates that the action was commenced more than three years after the date of the plaintiff's injury, the plaintiff has the burden of proving that the facts take the case outside of the statute of limitations." Williams, 668 N.E.2d at 804 (cleaned up).

- 41 - HBSR "need to tell" BlueRadios about abandoning one application

and that another change "may require" BlueRadios' approval (though

approval was never sought and notice was never given). They may

also have included information about the possibly improper

financial intertwinement between HBSR and Kopin.

We think that theory's plausible. Put differently,

"viewing all of the facts and their reasonable inferences in the

light most favorable" to BlueRadios, "we find that a reasonable

factfinder could conclude that the earliest" BlueRadios "knew, or

should have known," that HBSR had schemed with Kopin to deprive

BlueRadios of its rights was spring 2017. That was "well after

the operative date" of December 5, 2014, "set forth in the

standstill agreement." Rosen Constr., 364 F.3d at 413. So this

accrual question, like others, is better left for the jury.

vi

Absent so far from our discussion is BlueRadios'

argument (supported by amicus Professor Robinson) that misstating

inventorship in a patent application cannot constitute the harm

necessary for limitations to accrue. But, as the past pages

indicate, we don't need to reach this issue of first impression to

find in BlueRadios' favor, so we decline to wrestle with it today.

Or, more simply, we don't touch it because "we need go no further."

United States v. Gray, 814 F.2d 49, 52 (1st Cir. 1987) (cleaned

up) (first recorded instance of this classic Selya-ism).

- 42 - * * * *

That concludes our discussion of the discovery rule for

the accrual of legal malpractice claims. We'll note here that the

district court seemed to assume that the discovery rule operated

the same way for all of BlueRadios' claims. Below, BlueRadios

argued that subtly different accrual rules applied to each claim,

but the district court didn't (by our lights) address that

argument. And on appeal, it seems that everyone assumed the

discovery rule operated the same way across all the claims.

We're unwilling to enshrine that assumption into law

today. Our holdings are thus limited to the legal malpractice

claim. We aren't well-positioned to take the first stab at the

question of whether the accrual rules for other claims operated in

the same way. So we see the most natural disposition of the case

as this: we reverse the district court's holding that the legal

malpractice claim was untimely as a matter of law, but only vacate

the district court's determinations of untimeliness as to the other

claims (such as the breach of fiduciary duty, fraudulent

nondisclosure, and Chapter 93A claims) and remand for further

consideration based on the analysis we've provided above.

B. Attorney-Client Relationship

Having settled the timeliness issue, we next turn to

whether an attorney-client relationship existed between BlueRadios

and HBSR. We remind the reader that here, we're actually dealing

- 43 - with cross-motions for summary judgment, as each party sought it

in their favor below on this issue; that, however, does "not change

the standard." Latin Am. Music Co. v. Archdiocese of San Juan of

Roman Cath. & Apostolic Church, 499 F.3d 32, 38 (1st Cir. 2007).

BlueRadios rails against the district court's holding

that it never formed an attorney-client relationship with HBSR.

In its view, HBSR had to be BlueRadios' attorney to represent the

company throughout the Golden-i patent prosecution process; that

settles the issue as a matter of law (at least in BlueRadios'

view). And even if that alone doesn't seal the deal, BlueRadios

offers that, in totality, it and the other circumstances at play

here do establish the relationship as a matter of law; in the

alternative, BlueRadios offers that reasonable minds could differ

as to whether there was an implied attorney-client relationship,

so summary judgment for HBSR was inappropriate.

HBSR counters by first arguing that BlueRadios never

made a concrete communication requesting representation or

individualized legal advice. The patent prosecution was

insufficient (says HBSR) in large part because HBSR did it at

Kopin's request, not BlueRadios'. And either way, HBSR says that

it never provided any individualized legal advice in response to

a request from BlueRadios. It sees each of those points as

dispositive in its favor.

- 44 - i

Before we dive into our analysis, we offer another quick

primer, this one on attorney-client relationships under

Massachusetts law. For starters, there are two main types of

relationships: those that "rest on an express contract" and those

that are "implied as a matter of law." Cesso v. Todd, 82 N.E.3d

1074, 1078 (Mass. App. Ct. 2017) (cleaned up). The district court

and the parties agree that there was no written or express

agreement establishing an attorney-client relationship between

BlueRadios and HBSR.

So we ask whether there was an implied attorney-client

relationship. In DeVaux v. American Home Assurance Co., 444 N.E.2d

355, 357 (Mass. 1983), which the parties and the district court

agree controls here, the S.J.C. set out three necessary elements

for an implied attorney-client relationship:

1. A person seeks advice or assistance from an attorney;

2. The advice or assistance sought pertains to matters

within the attorney's professional competence; and

3. The attorney expressly or impliedly agrees to give or

actually gives the desired advice or assistance.

See id. Reasonable but detrimental reliance on an attorney's

advice also satisfies the third prong. Id. And "where reasonable

persons could differ as to the existence of an attorney-client

- 45 - relationship, this issue must be resolved by the trier of fact."

Id. (cleaned up).

Recall how the district court held that BlueRadios

failed on the first prong. It reasoned that BlueRadios' contract

with Kopin and its communications with HBSR did not pass muster.

And the district court ended the analysis there, not reaching the

second or third prongs. We see things differently, keeping in

mind that we must undertake our inquiry "under the totality of the

circumstances." Sheinkopf v. Stone, 927 F.2d 1259, 1265 (1st Cir.

1991).

It's true that Prong One of the DeVaux test requires

"concrete communication by the plaintiff requesting that the

attorney represent him, or explicitly seeking individualized legal

advisement." Int'l Strategies Grp., Ltd. v. Greenberg Traurig,

LLP, 482 F.3d 1, 8 (1st Cir. 2007). But, contra the district

court, we see just that in the record.

We'll start with the contract between BlueRadios and

Kopin, as the district court did. To rule against BlueRadios on

Prong One, the district court seemed to lean heavily on the fact

that "BlueRadios contracted its ability to determine what patents

would be prosecuted to Kopin under the [c]ontract."

But that isn't dispositive. As the Colorado district

court explained, Kopin's decision to bring HBSR aboard must be

- 46 - read considering the BlueRadios-Kopin agreement. See Sheinkopf,

927 F.2d at 1265. And under their contract, it was Kopin's

responsibility to select counsel for the Golden-i project, but

"the selection and retention of HBSR was for the common undertaking

of the parties." BlueRadios, Inc., 2017 WL 11546716, at *3.27 And

this responsibility was no surprise to HBSR, who reviewed the

contract before signing on, specifically billing that it studied

"assignment of rights and licensing provisions" in the contract.

Through that, it would have read (and thus understood) that

BlueRadios and Kopin jointly owned the IP for Golden-i. It then

opened BlueRadios billing files and helped them get the patent

application process going.28 As the Colorado court put it, "HBSR

was completely aware that it was acting as [the] attorney for both

parties in so far as the preparation, filing, and perfecting of

rights in the patent applications was concerned." Id. at *2

(cleaned up). So the initial request came through Kopin, but it

came for BlueRadios, too; put differently, the request came with

the knowledge that Kopin and BlueRadios were a package deal.

27Kopin suggests that we should discount the Colorado court's order because its factual findings were limited to disqualification and because it happened early in the litigation. To be clear: we know the order doesn't bind us, but we see no reason to discount its persuasive and highly relevant reasoning. 28As we previously noted, we don't see any evidence of direct billing to BlueRadios, despite the billing files bearing its name. That fact, however, doesn't prove dispositive against the great weight of the record.

- 47 - To embrace the alternative -- that BlueRadios waived any

and all rights of representation in this joint endeavor just

because Kopin had the responsibility to take the lead on attorney

engagement for the both of them -- is to conflict with commonsense

principles of joint representation. See, e.g., Merck Eprova AG v.

ProThera, Inc., 670 F. Supp. 2d 201, 211 (S.D.N.Y. 2009) ("Where

counsel is engaged by two or more clients to represent them jointly

in a matter, it is unrealistic to expect that each client will

necessarily execute a separate retainer agreement, communicate

with counsel independently, or provide individual payment for

services rendered.").

The district court next explained that BlueRadios'

communications with HBSR "do not establish individualized requests

for legal advice." We disagree. We think that error comes, in

part, from the district court's misapprehensions about the

underlying contract. But anyway, once Kopin had selected HBSR for

the Golden-i project, the record shows that BlueRadios sought and

received specific "assistance." DeVaux, 444 N.E.2d at 357 (cleaned

up). Some examples of this back-and-forth:

• BlueRadios met with HBSR to discuss Golden-i without

Kopin present;

• BlueRadios shared confidential information and trade

secrets with HBSR to aid the prosecution of patents on

its behalf (as well as Kopin's);

- 48 - • BlueRadios executed a power of attorney for HBSR;

• HBSR filed a patent listing only BlueRadios' employees

(the '177 Application);

• HBSR filed more patents listing both BlueRadios and

Kopin folks; and

• BlueRadios requested that HBSR broaden the scope of a

claim of a patent about WiFi technology.

Read together and in the context of the BlueRadios-Kopin contract,

all this conduct clearly reflects how concrete requests for

assistance were made -- and, as relevant to Prong Three, were often

followed through on. See, e.g., Page v. Frazier, 445 N.E.2d 148,

152 (Mass. 1983) (noting how "the relationship can be implied from

the conduct of the parties" (citing DeVaux, 444 N.E.2d at 357));

see also Restatement (Third) of the Law Governing Lawyers § 14

cmt. c (2000) ("The client's intent may be manifest from

surrounding facts and circumstances, as when the client discusses

the possibility of representation with the lawyer and then sends

the lawyer relevant papers or a retainer requested by the

lawyer.").

We'll detail a couple specific points insofar as the

parties disagree about them. As to prosecuting patents, we've

previously held that an attorney-client relationship arises from

that act. See Mass. Eye & Ear, 412 F.3d at 225-26 (affirming the

district court's order that an attorney-client relationship formed

- 49 - during patent prosecution process, at least for privilege

purposes). Though that case arose in a slightly different context,

we think it puzzling that the district court reached the opposite

conclusion, particularly given that there seems to be a consensus

of district courts that have largely held along the same lines as

we did. See, e.g., Naturalock Sols., LLC v. Baxter Healthcare

Corp., No. 14-cv-10113, 2016 WL 2958374, at *2 (N.D. Ill. May 22,

2016) ("Courts have long held that an attorney-client relationship

exists among clients and attorneys allied in a common legal cause,

such as the prosecution of a patent." (collecting cases)). Indeed,

we think the facts undergirding the joint patent prosecution

process are especially helpful in determining that HBSR was

BlueRadios' attorney in 2008-09.29

As to filing a power of attorney (a discrete part of the

patent prosecution process), we have previously suggested it is

relevant (but not dispositive) in the analysis and favors an

implied attorney-client relationship. See Int'l Strategies Grp.,

482 F.3d at 8 (explaining how "the power of attorney may have some

impact on our analysis of whether an implied attorney-client

29 That the patent applications listed BlueRadios employees rather than BlueRadios is of no moment to us, given (1) that those employees had all assigned their rights to BlueRadios and (2) that the contract HBSR read shows that HBSR knew it was working on BlueRadios' behalf.

- 50 - relationship was formed"). So it's not a "smoking gun" fact, but

surely another point in BlueRadios' favor.

To reach the opposite conclusion, the district court

relied on Sun Studs, Inc. v. Applied Theory Associates, Inc., 772

F.2d 1557, 1568 (Fed. Cir. 1985), for the proposition that "a power

of attorney does not ipso facto create an attorney-client

relationship." Sun Studs dealt with a company, Applied Theory

Associates, Inc. ("ATA"), that tried to claim it was a firm's

client in large part because ATA's owner granted the firm a power

of attorney during patent prosecution. Id. at 1567. We'll set

aside some important differences we see, such as the fact that the

underlying contract there (between ATA and Sun Studs, the firm's

undisputed client) stated that "all rights in inventions arising

from ATA's consulting work were to be assigned to Sun Studs" -- a

stark contrast to the Golden-i contract establishing that

BlueRadios and Kopin jointly owned Golden-i IP. Id. at 1569. And

we'll also set aside that Sun Studs is out-of-circuit caselaw that

doesn't bind us. See, e.g., United States v. Mitchell, 432 F.2d

354, 356 (1st Cir. 1970) (explaining how "the decision of another

circuit is not controlling here"). Here's the critical reason Sun

Studs is distinguishable: the power of attorney there, as we read

it, was really the only affirmative hook between ATA and the law

firm. Id. at 1568 (noting ATA's argument that "prior

representation is established by [the owner's] power of attorney

- 51 - to the [law] firm for prosecuting the application which resulted

in the '579 patent"). As we've made clear by now, plenty more

connects BlueRadios directly to HBSR.

We also think the BlueRadios-Kopin-HBSR arrangement

contrasts with the arrangements found in other cases that the

district court cited, where we found that no proper request for

assistance was made. In Sheinkopf, we rejected an attorney-client

relationship when the appellant's "assertion that such a

relationship came into being rest[ed] on little more than his

subjective belief, bolstered only by his recollection of a general

conversation, unanchored in time or place, concerning his desire

to avoid personal liability." 927 F.2d at 1266. And in

International Strategies Group, the appellant at least twice

"acknowledged that it was not [the attorney's] client." 482 F.3d

at 9. And those acknowledgments "were consistent with [the

attorney]'s advisement to [the appellant] on at least two occasions

that [the attorney] represented [the other joint venture member]

alone." Id.

Given the facts we identified above, we see the active

engagement and collaboration between HBSR and BlueRadios in the

joint endeavor of the Golden-i project as worlds away from these

cases. After all, we've explained that the concrete communications

rule has a straightforward purpose: to ensure that a lawyer-client

relationship is founded on "more than an individual's subjective,

- 52 - unspoken belief that the person with whom he is dealing, who

happens to be a lawyer, has become his lawyer." Sheinkopf, 927

F.3d at 1265. That isn't this case.

So too with Robertson v. Gaston Snow & Ely Bartlett, 536

N.E.2d 344 (Mass. 1989), another case that HBSR points to. The

court there boiled the plaintiff's claim down to the fact "that he

thought that Gaston Snow represented him but that he failed to

communicate this thought to anyone." Id. at 523. And the law

firm there never indicated to the plaintiff that it "was

representing his interests." Id. at 522. Not so here, given that

HBSR (1) read the contract and knew that IP filings were on behalf

of Kopin and BlueRadios and then (2) filed patent applications on

BlueRadios' behalf.

HBSR makes a few more arguments to the contrary, but

none persuade us. For one, it makes a mountain out of a molehill

insofar as it argues that BlueRadios admitted (in summary judgment

papers) that it, in HBSR's words, "never requested individualized

legal advice or representation." That BlueRadios admitted that

the requests were not "individualized" is semantical. In the

paragraph preceding the admission, BlueRadios states that it

"requested advice and assistance from HBSR on numerous occasions,"

and in the paragraph following the admission in question,

BlueRadios further explains how it sought legal advice on a host

of things. So when held against the "totality of the

- 53 - circumstances" here (as is necessary), that admission does not

move the needle. Sheinkopf, 927 F.2d at 1265.

Next, HBSR takes aim at the sharing of confidential

information, saying that it can't be a basis for the relationship

because BlueRadios shared that information with Kopin, too. "But

that is hardly the point." BlueRadios, Inc., 2017 WL 11546716, at

*2. As the Colorado court put it, any "confidentiality was not

impugned because it was obtained in connection with the underlying

collaborative agreement and HBSR's obligations extended to both

parties that it was indubitably representing." Id. And anyway,

this sharing alone wasn't what triggered the relationship -- it's

one of many facts favoring BlueRadios in this "totality of the

circumstances" analysis. Sheinkopf, 927 F.2d at 1265.

Third, HBSR fusses that BlueRadios is co-opting Kopin's

requests for legal advice as its own. But we think the record

belies that assertion. After all, "the Patent Applications and

Golden-i technology were jointly owned by BlueRadios and Kopin and

HBSR was completely aware that it was acting as attorney for both

parties in so far as the preparation, filing, and perfecting of

rights in the patent applications was concerned." BlueRadios,

Inc., 2017 WL 11546716, at *2 (cleaned up).

Fourth, HBSR gripes that actual requests for legal

advice cannot be implied, and all of BlueRadios' requests were

implied. But again, the record provides otherwise; the facts above

- 54 - that we've identified show how the interactions between BlueRadios

and HBSR were neither implied nor subtle. Like we said, there is

far "more than an individual's subjective, unspoken belief that

the person with whom he is dealing, who happens to be a lawyer,

has become his lawyer" to support our holding here. Sheinkopf,

927 F.3d at 1265.

Fifth and finally, HBSR insists that the WiFi technology

request (one of our bullet points from above) can't count as an

individualized request just because of the "individualized"

admission about which we previously discussed. Yet we see no

reason that HBSR's semantics about the word "individualized" in

that admission (overemphasizing similar language in a past opinion

of ours) should carry the day against the totality of the record.

See Nat'l Pork Producers Council v. Ross, 598 U.S. 356, 373 (2023)

("The language of an opinion is not always to be parsed as though

we were dealing with language of a statute." (cleaned up)).

So we hold that BlueRadios has satisfied Prong One of

the DeVaux test as a matter of law.

Because no one disputes Prong Two of the test (that "the

advice or assistance sought pertains to matters within the

attorney's professional competence"), we'll move straight into the

third. DeVaux, 444 N.E.2d at 357 (cleaned up).

- 55 - And under Prong Three, the inquiry is whether HBSR

"expressly or impliedly agree[d] to give or actually g[ave] the

desired advice or assistance," or (in the alternative) if

BlueRadios "reasonably relie[d] on" HBSR "to provide" legal

services, and HBSR, "aware of such reliance, [did] nothing to

negate it." Id.

The district court did not reach this prong, but

BlueRadios satisfies it rather easily under either approach. As

to giving the "desired advice or assistance," the record's teeming

with evidence of that (as our bullet point list from above

suggested). Id. (cleaned up). HBSR filed several patents on

behalf of both BlueRadios and Kopin, and at least in one instance

just on behalf of BlueRadios, and other times met solely with

BlueRadios. That's sufficient. See Mass. Eye & Ear, 412 F.3d at

225-26; Naturalock Sols., 2016 WL 2958374, at *2; see also

BlueRadios, Inc., 2017 WL 11546716, at *2 ("HBSR was completely

aware that it was acting as attorney for both parties in so far as

the preparation, filing, and perfecting of rights in the patent

applications was concerned." (cleaned up)).30

HBSR laments that these cases (and others that BlueRadios 30

relies on) didn't arise in the DeVaux context. To be clear: we think BlueRadios satisfies the DeVaux test on its own terms, but we also think it laid out a persuasive response during oral argument. As counsel for BlueRadios explained, "You can't say I'm your attorney as to discovery of documents or when it comes to disqualification but not when it comes to an actual malpractice claim." While BlueRadios must, of course, satisfy each test

- 56 - HBSR attempts to cast BlueRadios as an "incidental"

beneficiary "from HBSR's provision of legal services to Kopin."

But we think that claim is baffling considering the record before

us: the contractual provisions giving BlueRadios joint rights to

the IP, the communications between BlueRadios and HBSR, and the

applications filed jointly for Kopin and BlueRadios. BlueRadios

was far from the putative client whose case hinged merely on the

"expectation" that they "would be an eventual financial

beneficiary" of the lawyer's actions. Int'l Strategies Grp., 482

F.3d at 10.

And in the alternative, as to whether there was

reasonable reliance, we think the Colorado district court put it

best:

In this case the contract between Kopin and BlueRadios shows the parties' clear understanding that Kopin would undertake the necessary steps to obtain patents on jointly developed technologies for the benefit of both itself and BlueRadios. BlueRadios had every reason to believe, and none to disbelieve, that HBSR was retained to pursue that common endeavor. That BlueRadios was in direct contact with HBSR regarding the prosecution of patents for its benefit and gave directions to HBSR on the patentability and substance of the applications as well as relying on the legal advice of HBSR demonstrates the foundation of the trust that is the essence of the attorney/client relationship.

separately, it would be strange indeed to have such disparate outcomes.

- 57 - BlueRadios, Inc., 2017 WL 11546716, at *3 (cleaned up). We need

not belabor the point further.

To cut against a reasonable reliance position, HBSR

primarily relies on how BlueRadios still occasionally referred to

HBSR as "Kopin's patent attorney" and "Kopin lawyers" during the

patent prosecution process. True, but when held against the

"totality of the circumstances" (including, in filing applications

on BlueRadios' behalf, a representation that HBSR "is authorized

to represent the particular party on whose behalf he or she acts,"

37 C.F.R. § 1.34), that one fact cannot save HBSR. Sheinkopf, 927

F.2d at 1265.

Because BlueRadios has satisfied Prongs One and Three

and we see no contest about Prong Two, we hold that HBSR had an

attorney-client relationship with BlueRadios under DeVaux as a

matter of law.

We reach this conclusion mindful of the posture of this

issue -- cross-motions for summary judgment -- and our

corresponding obligation to evaluate BlueRadios' motion for

summary judgment (as distinct from HBSR's parallel motion) de novo,

and thus to view the facts in the light most favorable to HBSR and

to draw all reasonable inferences in its favor. See Gibson Found.,

Inc. v. Norris, 88 F.4th 1, 5-6 (1st Cir. 2023). Even still, we

don't find HBSR's arguments persuasive, and we believe no

reasonable jury could reach the conclusion that HBSR seeks, so

- 58 - summary judgment in BlueRadios' favor on this issue was warranted.

Cf. Mesnick v. Gen. Elec. Co., 950 F.2d 816, 829 (1st Cir. 1991)

("Because we do not believe a reasonable jury could find in the

plaintiff's favor . . . summary judgment was proper."). The

upshot of all that is that BlueRadios' partial motion for summary

judgment should have been granted on this issue and HBSR's should

have been denied.31 We thus reverse the district court's decision

to grant HBSR's and deny BlueRadios' respective motions.

C. Equitable Tolling

So far, we've held that questions about timeliness are

better suited for the jury and that BlueRadios and HBSR had an

attorney-client relationship as a matter of law. One last point

remains. BlueRadios argues that, on the chance its claims aren't

timely, two equitable tolling doctrines -- the "continuous

representation" doctrine and the "fraudulent concealment"

doctrine -- still save the claims. The district court disagreed

31Two more points on this issue. First, in just a footnote in the attorney-client section of its brief, BlueRadios contests the district court's separate holding that summary judgment was appropriate against one of the partners, Lawrence Cogswell, because he "never communicated with BlueRadios" and was not a partner at the firm at the time. "We have repeatedly held that arguments raised only in a footnote . . . are waived." Tax-Free Fixed Income Fund for P.R. Residents, Inc. v. Ocean Cap. LLC, 137 F.4th 6, 24 (1st Cir. 2025) (cleaned up). The same goes for this one. Second, because we find for BlueRadios on the attorney-client relationship question, we don't need to get into the other agency arguments it makes.

- 59 - and declined to apply either, and that decision is part of what

BlueRadios appeals.

But by now, we've already held that many of the factual

disputes that application of these doctrines hinges on are

questions better left for the factfinder. That's good enough for

BlueRadios at this stage of the litigation, because it means that

its claims don't need equitable tolling to get to the jury.32 So

we need not entertain the applicability of the tolling doctrines

at the summary judgment stage.

PARTING THOUGHTS

The district court's decision is thus reversed in part

(as to the legal malpractice claim's timeliness and the

attorney-client relationship question) and vacated in part (as to

the other claims' timeliness). We remand for more litigation

consistent with this opinion. Appellees shall bear costs.

Whether equitable tolling would be appropriate if (1) the 32

case made it to trial and (2) the jury found the claims untimely is possibly a question for another panel on another day.

- 60 -