Kalik v . Abacus Exchange CV-99-421-M 10/19/01 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Allen M. Kalik and Patricia G. Kalik, Plaintiffs
v. Civil N o . 99-421-M Opinion N o . 2001 DNH 192 Abacus Exchange, Inc., Defendant
O R D E R
Allen and Patricia Kalik bring this diversity action against
Abacus Exchange, Inc., seeking damages for its alleged breach of
contract and violation of New Hampshire’s Consumer Protection
Act.1 Defendant denies any wrongdoing and has itself filed
several counterclaims, claiming that it was plaintiffs who
breached the contract and, in so doing, violated the Consumer
1 Although plaintiffs’ complaint names “Abacus Exchange, Inc.” as the defendant, it appears that entity no longer exists. The record suggests that in June of 1999, it was merged with Abacus Investors, Inc. Subsequently, the assets formally owned by Abacus Exchange were transferred to Abacus Communications LC. “Because the entity Abacus Exchange, Inc. no longer exists, Abacus Communications LC is identified as the defendant in its Answer, Affirmative Defenses, and Counterclaim.” Defendant’s Answer (document n o . 24) at 1 n.1. Protection Act. Presently pending is plaintiffs’ motion for
summary judgment as to four of defendant’s five counterclaims.
Standard of Review
When ruling upon a party’s motion for summary judgment, the
court must “view the entire record in the light most hospitable
to the party opposing summary judgment, indulging all reasonable
inferences in that party’s favor.” Griggs-Ryan v . Smith, 904
F.2d 112, 115 (1st Cir. 1990). Summary judgment is appropriate
when the record reveals “no genuine issue as to any material fact
and . . . the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c). In this context, “a fact is
‘material’ if it potentially affects the outcome of the suit and
a dispute over it is ‘genuine’ if the parties’ positions on the
issue are supported by conflicting evidence.” Intern’l Ass’n of
Machinists and Aerospace Workers v . Winship Green Nursing Center,
103 F.3d 196, 199-200 (1st Cir. 1996) (citations omitted).
2 Background
On July 1 , 1998, Allen and Patricia Kalik and Abacus
Exchange, Inc. executed a “Stock Purchase Agreement,” pursuant to
which Abacus agreed to purchase from the Kaliks all of the
outstanding shares of Executive Exchange, Inc. (the “Company”).
The Agreement provided a purchase price of “a maximum of Thirteen
Million Dollars.” Exhibit A-14 to plaintiffs’ memorandum
(document n o . 2 8 ) , Stock Purchase Agreement at section 1.4.1.1.
Specifically, it provided that $10,400,000 was due at closing,
with the remaining $2,600,000 payable in installments, subject to
the Company reaching certain specified income milestones during
the first and second years of operation by the new owner. Id.,
at section 1.4.1.2. The Kaliks claim the Company met those
milestones and, therefore, say they are entitled to payment of
the full outstanding amount provided for by the Agreement. They
say that by refusing to pay the full amount required under the
Agreement, and by engaging in other allegedly wrongful conduct,
Abacus breached various provisions of the Agreement and violated
New Hampshire’s Consumer Protection Act.
3 Abacus, on the other hand, denies that the Company met the
earnings milestones that would have triggered its obligation to
pay the Kaliks the full amount specified in the Agreement and
says it paid plaintiffs all the monies to which they were
entitled, in light of the Company’s lower earnings. That dispute
is presently the subject of arbitration, as called for under the
terms of the Agreement. Additionally, however, Abacus has
brought five counterclaims, four of which are the subject of
plaintiffs’ pending motion for summary judgment.
In its first counterclaim, Abacus says the Kaliks breached
their express and implied obligations under the Agreement by
failing to disclose (or affirmatively misrepresenting) certain
material facts concerning the Company prior to closing and then
by filing suit prior to submitting their claims to arbitration.
Defendant’s second counterclaim (intentional misrepresentation)
and third counterclaim (negligent misrepresentation) are based
upon the same alleged failures to disclose, or misrepresentations
o f , material facts. In its fourth counterclaim (captioned
4 “Restitution”), Abacus seeks roughly $70,000 it had to spend to
extend the term of a software license that was critical to the
continued operation of the Company. Finally, in its fifth
counterclaim, Abacus seeks damages under the Consumer Protection
Act for plaintiffs’ alleged unfair and deceptive trade practices.
The Kaliks move for summary judgment as to all of Abacus’s
counterclaims except count four - the restitution claim. Abacus
objects.
Discussion
I. Breach of Contract and Misrepresentation Claims.
Abacus’s first breach of contract claim alleges that the
Kaliks “breached their contractual obligations by commencing this
lawsuit rather than pursuing arbitration as contemplated by the
Agreement.” Defendant’s Answer, Affirmative Defenses, and
Counterclaims at para. 3 1 . Its remaining breach of contract
claims, as well as its intentional misrepresentation and
negligent misrepresentation claims, all focus on the Kaliks’
5 alleged pre-closing misrepresentations concerning: (1) the state
of the local labor market; (2) the nature of the Company’s rights
with respect to certain software licenses; and (3) promises made
to an employee of the Company concerning the possible payment,
following the successful sale of the Company, of a “bonus” or
“reward” of approximately $100,000. In its memorandum in
opposition to summary judgment, Abacus summarizes those claims as
follows:
In reaching its decision to pay up to $13 million for a company owned by the Kaliks, Abacus justifiably relied on representations made by the Kaliks. The most critical representations made by Allen Kalik to Abacus involved the ability of [the Company] to staff its business. Contrary to these express representations, the [Company] had experienced hiring difficulties only months earlier. If Abacus had been aware of these problems, it would not have paid the high price which it paid for the [Company]. Moreover, the Kaliks failed to disclose a promise to pay a former employee a substantial amount of compensation and failed to disclose that [the Company] was not the owner of certain software. These failures are contrary to express representations in the Agreement.
Defendant’s memorandum (document n o . 29) at 7 .
6 A. Governing Law.
New Hampshire law provides that, “the procuring of a
contract or conveyance by means of fraud or negligent
misrepresentation is an actionable tort.” Nashua Trust C o . v .
Weisman, 122 N.H. 397, 400 (1982). To prevail on its negligence
claim, Abacus must point to “a negligent misrepresentation by the
[Kaliks] of a material fact and justifiable reliance” upon that
misrepresentation by Abacus. Ingaharro v . Blanchette, 122 N.H.
5 4 , 57 (1982). See also Hydraform Products Corp. v . American
Steel & Aluminum Corp., 127 N.H. 187, 200 (1985). As to the
intentional misrepresentation claim, it “must be proved by
showing that the representation was made with knowledge of its
falsity or with conscious indifference to its truth and with the
intention of causing [defendant] to rely on the representation.”
Patch v . Arsenault, 139 N.H. 313, 319 (1995). See also Walker v .
Percy, 142 N.H. 345, 351 (1997). And, finally, a breach of
contract occurs when “there is a failure without legal excuse, to
perform any promise which forms the whole or part of a contract.”
7 Bronstein v . GZA GeoEnvironmental, Inc., 140 N.H. 253, 255 (1995)
(citation and internal quotation marks omitted).
B. Failure to Arbitrate.
The Agreement contemplates that the final series of post-
closing payments to the Kaliks would be calculated based upon the
Company’s earnings during the first and second years following
closing. It provides that at certain specified times, Abacus
would engage the accounting firm of KPMG Peat Marwick to
calculate the Company’s earnings (the “EBITDA Computation”) and
provide copies of earnings statements to the Kaliks. If the
parties cannot agree that the EBITDA Computation performed by the
accounting firm is accurate, the Agreement provides that they
will arbitrate their dispute(s). Agreement, section 1.4.1.4. As
to all other disputes related to the sale of the Company,
however, the Agreement contemplates that the parties may pursue
available legal remedies in an appropriate judicial forum. See
Agreement, sections 10.2 and 11.5.
8 In November of 1999, Abacus filed a motion seeking a stay of
these proceedings pending arbitration of some of the parties’
disputes. See Document n o . 6. The court held a hearing on the
matter, following which it stayed the case. On September 2 5 ,
2000, Abacus submitted an assented-to motion seeking an extension
of the stay, in which it represented that “[t]he parties would
like to have the opportunity to engage in the dispute resolution
process contemplated by the Stock Purchase Agreement before
undertaking the effort to prepare for trial.” Document n o . 2 6 .
The court granted that motion and, presumably, the parties are
engaged in arbitration with respect to their dispute over the
amounts due under the Agreement.
Abacus’s sole remedy for the Kaliks’ failure to arbitrate
claims properly subject to the Agreement’s arbitration provision
is to seek a stay of these proceedings and an order compelling
the Kaliks to arbitrate. See Demers Nursing Home, Inc. v . R.C.
Foss & Son, Inc., 122 N.H. 757 (1982). See also N.H. Rev. Stat.
Ann. (“RSA”) 542:2 and 3 (providing that the remedy when a party
9 has refused to arbitrate under a binding arbitration clause is to
stay any pending judicial proceedings and compel arbitration); 9
U.S.C. §§ 3 & 4 (same). Abacus has not pointed to any statute or
precedent that even remotely suggests it is entitled to damages
or attorneys’ fees incurred as a result of the Kaliks’ apparently
premature efforts to sue.
Having successfully obtained a stay of litigation pertaining
to the Kaliks’ arbitrable claims in this court, and an order
compelling them to arbitrate disputes related to the Company’s
post-closing earnings, Abacus has received all the relief to
which it is entitled regarding its right to arbitration under the
Agreement. Accordingly, its claim based on the Kaliks’ alleged
breach of the arbitration provision is moot.
C. The Software Issue.
Defendant summarizes it claim concerning the software
licensing issue as follows:
10 In the Agreement, the Kaliks specifically represented and warranted that the company had “all right, title and interest to or valid licenses of all Intangible Property used in the conduct of the business as presently operated . . . [and that] the company owns or possess adequate licenses or other rights to use all programs . . . used to operate the business.” Agreement § 2.22. At the time of closing, Professional Inbound, Inc., which was owned or controlled by Allen Kalik, owned certain software licensed to [the Company]. The Agreement contains no restriction on the use o f , or the length o f , the license for that software.
Defendant’s memorandum (document n o . 29) at para. 16 (emphasis
supplied). While it is true that the Agreement does not address
any limitation on the duration of the software license at issue,
Abacus fails to acknowledge that, prior to closing, the Kaliks
provided it with a copy of that software license, which was made
a part of the closing binder. That license plainly and
unequivocally discloses its limited duration - two years. See
Exhibit A-4 to plaintiff’s memorandum, Software License Agreement
at § 5 . Accordingly, as represented in section 2.22 of the
Agreement, the record reveals that the Company did in fact own or
possess “adequate licenses . . . to use all programs . . . used
to operate the business,” and defendant’s claim that the Kaliks
11 breached that section of the Agreement is wholly without merit.
Defendant’s breach of contract claim necessarily fails, as do its
misrepresentation claims relating to the software licensing
issue.
D. The Employee Compensation Issue.
In support of its breach of contract and misrepresentation
claims relating to the employee compensation issue, Abacus
asserts that, “The Kaliks promised to pay Holzberg, an employee
of the company, approximately $100,000 in the event of a sale of
the [Company’s] stock.” Defendant’s memorandum at 1 0 . Allen
Kalik describes that promise and the circumstances under which it
was extended as follows:
Michael Holzberg had been a valuable employee of [the Company] who had helped my wife and me expand the business. In recognition of these contributions, I discussed with Michael the possibility that I might personally reward him with a sum of money if [the Company] were sold. I did not, however, make any promises to Mr. Holzberg. My conversation with Mr. Holzberg is best described as casual. I never promised Mr. Holzberg that [the Company] would pay him anything beyond his normal compensation. It was clear that if I decided to pay Holzberg, this payment would come from
12 my wife and me out of the proceeds of the sale, not as compensation from [the Company] or [defendant].
Kalik Affidavit at paras. 11-12. No affidavit from Holzberg
himself has been submitted and the affidavits upon which Abacus
relies do not characterize Kalik’s “promise” differently than
Kalik does in his own affidavit. That is to say, defendant has
not submitted any evidence suggesting that Kalik obligated or
even purported to obligate the Company to give Holzberg any
additional salary, wages, commissions, or bonuses; instead,
defendant implicitly concedes that Kalik’s statements to Holzberg
amounted, at most, to a unilateral offer (of questionable
enforceability) to reward Holzberg from Kalik’s personal
resources, for his past years of loyal service to Kalik and the
Company.
Importantly, however, the Agreement does not address such
personal payments of rewards (from Kalik’s own funds) to current
or former employees. Section 2.20.7 of the Agreement,
particularly when read in conjunction with the Agreement’s
13 integration provision (section 1 1 . 5 ) , clearly and unambiguously
addresses only agreements made by the Company and/or the Kaliks,
on behalf of the Company, to pay current or former employees
wages, commissions, salaries, or other benefits (e.g., sick
leave, pay in lieu of leave, e t c . ) , other than current wages,
salaries, and other benefits that are disclosed in Schedule 2.20.
The pertinent portion of the Agreement provides:
Schedule 2.20 lists the names and job titles of all employees of the Company as of May 3 1 , 1998, the current salary, compensation, pay rate or hourly rate for each, per diem and other allowances and vacation, sick days for each (or paid days off in lieu thereof) assuming no vacation has been taken and the actual days off taken by each employee through May 3 1 , 1998 and all anticipated increases in any of the foregoing. Each employee’s length of service, employment commencement date and all relevant terms of their employment, including, without limitation, whether the employee is full or part time, salaried or hourly paid and the benefits received by such employee is set forth on Schedule 2.20. Except as listed and described on Schedule 2.20, neither the Company nor Sellers has any obligation or agreement to pay any current or former employee of the Company any amount after the date of this Agreement, except for current wages and commissions.
Agreement, section 2.20.7.
14 Defendant suggests that the phrase “any obligation or
agreement to pay” an employee includes the gratuitous offer by
Allen Kalik to personally reward Holzberg with a $100,000
payment, for past loyal services, out of Kalik’s own proceeds
from the sale. Such a broad reading of section 2.20.7 i s ,
however, inconsistent with its plain meaning. That section of
the Agreement addresses all forms of wages, salary, commissions,
and other compensation owed by the Company to current or former
employees. Schedule 2.20 details those obligations. Thus, when
read in context, and in light of the provisions set forth in the
Agreement’s integration clause, it is plain that the words “any
obligation or agreement to pay any current or former employee of
the Company any amount” refers to wages, salary, and commissions.
The phrase does not include within its scope gratuitous promises
made by the Kaliks to bestow personal gifts upon former
employees, at their own expense, with no obligation of any sort
attaching to the Company.
15 Plainly, what the Agreement addresses (and what Abacus was
legitimately concerned about identifying) are any and all
obligations that the Company might have (or that the Kaliks, as
its agents, might have assumed on behalf of the Company) to pay
wages, salaries, and/or commissions to current or former
employees beyond those disclosed in the pertinent schedules.
That Allen Kalik might have gratuitously offered, from his
personal resources, a cash gift to Holzberg (or a trip to Hawaii
or a gold watch) for his years of loyal service was not an event
that needed to be disclosed under section 2.20.7 of the
Agreement. Consequently, the Kaliks’ failure to disclose it does
not constitute a breach. And, because that promise had no effect
whatsoever on the Company or defendant, the Kaliks’ failure to
disclose it (even if disclosure had been required) cannot be
deemed to have been material. Abacus’s misrepresentation claims
also necessarily fail.2
2 Defendant vaguely suggests it deemed it necessary to purchase a release of claims from Holzberg relating to the “reward” referenced by Kalik. Nevertheless, nothing in the record suggests that defendant or the Company was in any way legally obligated to pay Holzberg the money allegedly offered by
16 E. The Labor Market Issue.
Defendant’s final claim relates to allegedly false
statements made by the Kaliks concerning the pre-closing labor
conditions in the City of Manchester. In support of that claim,
defendant says:
The Kaliks breached the contractual obligation under § 2.28 [of the Agreement] by making false representations concerning staffing and by failing to disclose staffing problems. These false representations and failures to disclose were critical to Abacus. Abacus was led to believe the business was growing and that staffing was not a problem. In fact, staffing had historically been a problem for the business, especially during its busiest time frame. The Kaliks had an express contractual duty to make Abacus aware of those problems. Failing to do so violated both the letter and spirit of the Agreement.
Defendant’s memorandum at 1 0 . The court disagrees.
Kalik as wages, commissions, benefits, etc. Moreover, defendant’s apparent decision to obtain what seems to have been an unnecessary release is not evidence that Kalik even arguably obligated the Company to pay Holzberg, or that Kalik failed to disclose a material matter that should have been revealed pursuant to section 2.20.7 of the Agreement. In other words, defendant cannot manufacture a material misstatement of fact - by buying an unnecessary release - where none truly exists.
17 In support of its claim that Allen Kalik made actionable,
materially false statements (or omissions) concerning the local
labor market, defendant relies on the affidavits of Rick Clay
(“Nor did Allen Kalik disclose that the business had encountered
staffing problems during its peak period in the fourth quarter of
1997, even though these problems had occurred only months [prior
to the closing].”), Stephen Burke (“Allen Kalik assured Rick Clay
that there was a plentiful supply of workers, that there were
colleges in the area, and that finding labor was not a problem
for [the Company].”), and Barbara Lawler (“[D]uring the five year
period that I have worked for the business, the fourth quarter of
the year always has been the busiest period for the business
based on holiday buying activity. During the five year period
that I have worked for the business, staffing has been a problem
at various times throughout the year, especially in the fourth
quarter.”).
S o , viewing the evidence in the light most favorable to
Abacus, its claim would seem to be that Allen Kalik represented
18 that, by relying upon local college students and temporary
employment agencies, the Company was able to adequately staff its
workforce. Defendant says Kalik’s representation was both
“false” and “material” and claims that, in fact, staffing had
been a “problem.” Importantly, however, defendant has submitted
no affidavits or other evidence suggesting that the Company (or
Kalik) was unable to adequately staff its workforce during any
time period. It simply claims that finding an adequate number of
employees was “difficult” and “problematic” - something it says
it never anticipated since it blindly relied on Kalik’s allegedly
material misstatements to the contrary.
Defendant’s counterclaims based on Kalik’s alleged
misrepresentations concerning the local labor market fail, as a
matter of law, for several reasons. First, Abacus suggests that
it was misled into purchasing a business it “believed was
growing,” but which was not (at least according its version of
the facts). It i s , however, clear from the record that Abacus
was provided with ample documentation (and was free to request
19 more) demonstrating exactly the rate at which the business was
growing.3
This transaction was one between supposedly sophisticated
parties, who were represented by able counsel. The closing
binder alone contains several hundred pages of documentation
memorializing the exact nature and scope of the purchase and sale
of the Company and includes, among other things, financial
statements for the Company for the years 1995, 1996, 1997, and
the five month period ending on May 3 1 , 1998. See Agreement,
Schedule 2.8.1. It is somewhat disingenuous of defendant to
claim that it was ignorant of the Company’s historical revenues,
performance, operation, or rate of growth when the purchase and
3 Additionally, the Agreement makes plain that the parties actually contemplated that the Company might not continue to grow in the two years following closing. In the event that earnings did not meet or exceed certain specified levels, Abacus was obligated to pay the Kaliks less than the full $2.4 Million in post-closing payments. See Agreement, section 1.4.1.4 (detailing the post-closing “Earn Out Amount”). Consequently, while Abacus might have “believed [the Company] was growing,” the Agreement provided specific protection against the possibility that it was not.
20 sale was consummated and, in closing the deal, blindly relied on
Kalik’s statements that generally suggested that things were
going well.
Second, taking defendant at its word and assuming that the
then-current state of the labor market in greater Manchester was
a “critical” factor in its decision to purchase the Company, it
could quite easily have obtained publically available information
on that subject. See, e.g., Messer v . Smyth, 59 N.H. 4 1 , 42
(1879) (“Whether a false representation made by the vendor . . .
is actionable, depends upon whether it relates to a matter
concerning which both parties have not equal means of knowledge,
and whether it is an expression of opinion or an affirmation of a
fact. If it relates to a matter concerning which both the vendor
and purchaser have equal means of knowledge, the maxim caveat
emptor applies, and the purchaser is without remedy if he
neglects to give attention to the means of knowledge accessible
to him.”). Defendant had equal access to local labor market
data, had specific information concerning the Company’s employees
21 and labor assets, and certainly could not expect the Kaliks to
predict or warrant future labor market conditions.
Alternatively, defendant could have sought to memorialize
Kalik’s alleged material representations on that subject in the
Agreement. See generally Agreement, Article 2 (setting forth
over 13 pages of warranties and representations made by the
Kaliks to defendant, including such matters as assets owned by
the Company, accuracy of financial statements provided to
defendants, outstanding tax obligations of the Company, the
Company’s compliance with local, state, and federal environmental
laws, its compliance with ERISA, and its assurance that the
financial condition of the Company had not suffered any
“materially adverse” changes between the Interim Balance Sheet
Date and the date of closing). Defendant did not seek such
assurances.
Finally, and perhaps most critically, the alleged statements
identified by defendant as having been made by Kalik constitute
22 statements of opinion. They are not actionable statements of
fact. It has long been the law of New Hampshire that only
material misstatements of fact, upon which the complaining party
justifiably relied, are actionable. Statements of opinion,
particularly when they relate to matters as to which both parties
have equal access to relevant information, are not actionable.
A representation which merely amounts to a statement of opinion, judgment, probability, or expectation, or is vague and indefinite in its terms, or is merely a loose, conjectural, or exaggerated statement, goes for nothing. Unless the plaintiffs were willing to accept the statement for what it was worth as a promise, ordinary prudence would seem to require them not to rely upon i t , but to call for the facts upon which the opinion or expectation was founded.
Syracuse Knitting C o . v . Blanchard, 69 N.H. 447, 449 (1899)
(citation and internal quotation marks omitted). See also
Cummings v . HPG International, Inc., 244 F.3d 1 6 , 21 (1st Cir.
2001) (“There is an important threshold determination for any
misrepresentation claim, be it for deceit or for negligent
misrepresentation: only statements of fact are actionable;
statements of opinion cannot give rise to a deceit action, or to
23 a negligent misrepresentation action.”) (citing Massachusetts
cases).
In this case, Kalik’s alleged representation that staffing
was “not a problem” i s , at most, so vague a statement of opinion
as to render it non-actionable. Critically, it does not amount
to a warranty that the Company had always been able to run at
full employment. Nor could it reasonably be interpreted as a
guarantee that filling future vacant positions could be done
without even a modest effort. Instead, it is merely a statement
of Kalik’s opinion that he had been able to find adequate
employees in the local market (occasionally calling upon local
college students and temporary employment agencies) to run the
business at levels that generated the income and profits that had
been represented to defendants.4
4 Parenthetically, the court notes that Abacus cannot (reasonably) be claiming that it was unaware of the Company’s so- called staffing “problems” prior to closing. Schedule 2.20.8 to the Agreement specifically identifies the six temporary employment agencies upon which the Company periodically relied for additional staffing. That schedule also provides details concerning the dates and terms and conditions under which each of
24 In light of the foregoing, Allen Kalik’s alleged statements
(or omissions) concerning the local labor market are not, as a
matter of law, actionable as either negligent or intentional
misrepresentations, nor do they constitute a breach of his
obligations under the Agreement.
II. The Consumer Protection Act Claim.
Having concluded that the Kaliks are entitled to judgment as
a matter of law on defendant’s breach of contract, negligent
misrepresentation, and intentional misrepresentation claims, the
court concludes that they are also necessarily entitled to
summary judgment on defendant’s Consumer Protection Act claim,
which is based upon the very same conduct that forms the basis of
the tort and contract claims.
those agencies provided employees to the Company. Consequently, Abacus was certainly aware that, during peak seasonal periods, the Company turned to outside sources, including temporary employment agencies and local colleges, to adequately staff its offices.
25 New Hampshire’s Consumer Protection Act prohibits the use of
“any unfair or deceptive act or practice in the conduct of any
trade or commerce,” and provides a non-exhaustive list of
prohibited practices. RSA 358-A:2. Even assuming the Act
applies to the purchase and sale of the Company, see generally
Milford Lumber C o . v . RCB Realty, Inc., __ N.H. __, 2001 WL
1141414 (Sept. 2 8 , 2001), none of the conduct in which the Kaliks
are alleged to have engaged falls within the Act’s scope. As the
Court of Appeals for the First Circuit has observed, conduct is
“unfair” within the meaning of the Act if:
(1) it is within at least the penumbra of some common- law, statutory, or other established concept of unfairness, (2) it is immoral, unethical, oppressive, or unscrupulous, or (3) it causes substantial injury to consumers.
Chroniak v . Golden Inv. Corp., 983 F.2d 1140, 1146 (1st Cir.
1993) (citations and internal quotation marks omitted). Because,
as a matter of law, the Kaliks neither breached the terms of the
contract nor did they make negligent or intentional
misrepresentations (or omissions) of material fact, they cannot
26 be said to have engaged in actionable “unfair” or “deceptive”
trade practices. Consequently, defendant’s claims under the
Consumer Protection Act necessarily fail as well.
Conclusion
For the foregoing reasons, plaintiffs are entitled to
judgment as a matter of law as to the following counterclaims
advanced by defendant: count 1 (breach of contract); count 2
(intentional misrepresentations); count 3 (negligent
misrepresentations); and count 5 (violation of New Hampshire’s
Consumer Protection A c t ) . Plaintiffs’ motion for summary
judgment (document no. 28) i s , therefore, granted.
The parties shall notify the court once they have completed
arbitration and, if appropriate, the court will lift the stay and
set a scheduling conference.
27 SO ORDERED.
Steven J. McAuliffe United States District Judge
October 1 9 , 2001
cc: Steven E . Grill, Esq. William S . Hewitt, Jr., Esq. John C . Kissinger, Esq.