Little, Inc v. Dooyang

• Court: Court of Appeals for the First Circuit
• Decided: June 25, 1998
• Docket: 98-1010
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-1010



                     ARTHUR D. LITTLE, INC., 

             ARTHUR D. LITTLE INTERNATIONAL, INC.,



                      Plaintiffs, Appellees,



                                v.



                      DOOYANG CORPORATION, 

                    DOOYANG AMERICA, INC., 

                  DOOYANG INTERNATIONAL, INC.,



                     Defendants, Appellants.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



            [Hon. Patti B. Saris, U.S. District Judge]


Before



                     Torruella, Chief Judge,

                                

                Selya and Lynch, Circuit Judges.


Robert L. Weigel, with whom Gibson, Dunn & Crutcher, John A.

Donovan, Jr., and Burns & Levinson were on brief, for appellants.

     Peter J. Macdonald, with whom Charles P. Kindregan and Hale &

Dorr were on brief, for appellees.


June 25, 1998


LYNCH, Circuit Judge.  This case demonstrates the high

costs Massachusetts imposes on businesses which engage in unfair or

deceptive trade practices prohibited by Mass. Gen. Laws ch. 93A. 

The legal question raised here, one of first impression for this

court, is whether when one business engages in unfair and deceptive

practices towards another and the harm consists of a delay in

payments owed (and the usual accompanying expenses), that is a

"loss of money or property" establishing a violation under Mass.

Gen. Laws ch. 93A,  11.  The high costs imposed are that the

damages awarded are not those attributed solely to the nonpayment

but rather may be multiples of the amount of payments originally

owed.

  Guided by the decisions of the courts of Massachusetts,

as we must be in this diversity case, we answer this question in

the affirmative and affirm the judgment of the district court.  We

resolve the "loss of money or property" issue and the other issues

against appellants Dooyang.  For Dooyang's failure to pay invoices

totaling $460,000, the jury and court awarded Arthur D. Little

$920,000 in damages, plus interest, plus over a million dollars in

attorney's fees and costs.

                               I.

     Two large international companies, each unhappy with its

dealings with the other, and each with some justification for that

unhappiness, are involved in this litigation.  We review the facts

"as the jury and district court could have found them."  Cambridge

Plating Co. v. Napco, Inc., 85 F.3d 752, 756 (1st Cir. 1996). 

"Where specific findings are lacking, we view the record in the

light most favorable to the ruling, making all reasonably supported

inferences."  Roche v. Royal Bank of Canada, 109 F.3d 820, 821 (1st

Cir. 1997) (citation and internal quotation marks omitted).

     ADL is an international consulting firm with its home

office in Cambridge, Massachusetts.  ADL has an office in Caracas,

Venezuela.  Dooyang is an industrial conglomerate with headquarters

in Seoul, South Korea.  Dooyang hired ADL from 1988 to 1991 to

assist it in a conceptualized aluminum smelter project.  Though

projects in other countries were initially considered, Dooyang soon

instructed ADL to focus on opportunities for building a new smelter

in Venezuela.

     At the outset, ADL informed Dooyang that it also worked

for the Corporacion Venezolana de Guayana ("CVG"), an arm of the

Venezuelan government responsible for awarding valuable "debt-

equity swap" subsidies, and for the Venezuelan minister responsible

for energy and metal production.  ADL was assisting CVG to attract

investment in Venezuela.  Acquisition of the debt-equity swap

subsidies awarded by CVG was thought to be the key to the success

of a smelter project in Venezuela.  Dooyang consented to this

conflict, apparently believing that ADL's insider influence would

redound to Dooyang's benefit.  In March of 1989, ADL recommended

that Dooyang invest in the construction of a new smelter rather

than join an existing project.  

     Soon after, and wearing its other hat, ADL met with CVG

to assist it in attracting international investment in the

Venezuelan aluminum industry, and contracted with CVG to evaluate

the relative merits of various aluminum smelter proposals. 

Obviously, one of the proposals ADL could end up evaluating was

that of its other client, Dooyang.

     In June of 1989, ADL and Dooyang entered into the first

in a series of agreements under which ADL would assist Dooyang in

developing a new smelter.  ADL pledged to use its "best efforts" to

assist Dooyang in a wide variety of areas, including assembling the

necessary financing and technical support, and lobbying the

Venezuelan government on Dooyang's behalf.  ADL evaluated and

selected advisers and partners in the project.  At no time,

however, was ADL empowered to enter into contracts or make other

commitments on Dooyang's behalf.

     In its other capacity, ADL advised CVG in July of 1989 to

seek an investor which had the capacity to develop a smelter

without partners.  ADL advised CVG to focus on projects by ALCOA

and ALUMAX, and to consider as a third possibility either

Cisneros/Rich or Austria Metall.  Dooyang could not develop a

smelter by itself, but had to enter into partnerships with other

companies.  At this point, however, Dooyang had not decided to go

forward with a project in Venezuela, and so had no proposal then

for consideration.  But that changed: in January of 1990, Dooyang

and CVG entered into an agreement which stated Dooyang's intent to

build a smelter in Venezuela.

     The contract between ADL and Dooyang was to expire by its

terms at the end of 1989.  ADL and Dooyang agreed to extend the

contract for an additional six months in January of 1990.  During

1990, ADL also represented CVG in negotiations with other potential

investors such as ALCOA.  Dooyang was aware that ADL's work for CVG

involved contacting other competing investors.  ADL and Dooyang

agreed to a third six-month extension of the contract in July of

1990. 

     In April of 1990, ADL compared for CVG the relative

merits of three smelter project proposals by ALCOA, Dooyang, and

ALUMAX.  ADL stressed that ALCOA was the only company capable of

proceeding with a smelter on its own.  ADL recommended that CVG "be

more aggressive" with ALUMAX in order to keep its interest.  With

regard to Dooyang, ADL said that Dooyang was "serious about the

project" and that they were "spending major funds to advance their

position," and that ADL was "confident that they will continue to

move very rapidly."  ADL later reiterated to CVG that because ALCOA

had all of the needed elements "in house," great effort should be

expended to realize the ALCOA project.  In a July 1990 report, ADL

identified the ALCOA and ALUMAX projects as the "focus" projects,

and stated that Dooyang was "one of the leading projects."

     Dooyang was aware that ADL was evaluating competing

projects for CVG.  ADL provided Dooyang with partial copies of its

presentations to CVG, and assured Dooyang that ADL had convinced

CVG "that the Dooyang project is the number one project to

support."  Dooyang submitted its project proposal and bid for

subsidies from the Venezuelan government in December of 1990. 

Dooyang and its equity partners proposed building a smelter on the

Orinoco river, dubbed the "Orinoco project."  CVG rejected

Dooyang's Orinoco project application in March of 1991 in favor of

the ALCOA project.

     Dooyang met with ADL in Caracas to discuss resubmitting

the proposal.  In early 1991, ADL and Dooyang again extended the

letter agreement.  At least by April 20, 1991, as the district

judge subsequently found, Dooyang decided not to pay ADL.  Dooyang

felt that ADL should do the work on the second subsidy application

for free because Dooyang had spent millions on this project with no

result.  Dooyang did not inform ADL that it expected ADL to

continue working for no compensation, and Dooyang continued to

request ADL's services after it had decided not to pay for them.  

     The Dooyang Orinoco project proposal was resubmitted on

April 26, 1991.  In June, the Venezuelan government approved the

project, and in July it awarded subsidy rights to Dooyang as well

as to a third company.  Dooyang thanked ADL for its assistance, and

did not further extend its contract with ADL.  The smelter was

never built.  Dooyang's major partners pulled out of the project,

and the collapse of the Soviet Union triggered a plunge in aluminum

prices which rendered the project economically infeasible then. 

Dooyang had incurred over $9 million in costs connected to the

Orinoco project.  ADL had been paid over $2.2 million for its work.

     ADL had worked from March through June of 1991, and

billed Dooyang approximately $460,000 for these services.  It is

the invoices for this work which were not paid and became the

subject of a breach of contract claim.  It is how Dooyang behaved

in not paying the bills which became the basis for the unfair and

deceptive trade practices claim. 

     Dooyang repeatedly promised to pay the outstanding ADL

invoices, though it had no intent to do so.  Dooyang falsely blamed

the hold-up in payment on bureaucratic delays and supposed problems

with currency regulations.  After ADL inquired about the unpaid

invoices, Dooyang provided ADL with a letter stating that Dooyang

was "sorry for your inconvenience caused by the delay of payment,

and . . . appreciate[d] . . . your kind understanding of the time

consuming procedure."  The letter stated that the outstanding

balance would be settled by the end of October 1991 at the latest.

     In late October 1991, ADL again insisted on payment and

Dooyang replied that the invoices would be settled by "December

1991/January 1992."  In a November 1991 meeting in ADL's Cambridge

offices, Dooyang agreed to pay the outstanding invoices by January

1, 1992.  Dooyang missed that deadline, and ADL again made repeated

inquiries about payment.  

     Finally, Dooyang sent a letter to ADL's Cambridge office

in March of 1992 stating that Dooyang had "no intention to delay or

discard the payment" and promised to pay starting in January of

1993.   The letter assured ADL that "[a]ll outstanding payment will

be cleared up no later than June 30, 1993 at the latest."  Dooyang

missed that deadline, and an ADL executive contacted the President

of Dooyang directly, who professed to be unaware of the problem. 

Dooyang again promised to pay ADL by June of 1993.  Once again,

Dooyang missed the deadline.

     Even while Dooyang was falsely promising to pay ADL and

its other creditors, it continued to exploit the benefits of their

unpaid work.  Dooyang continued to pursue the smelter project, and

as late as August of 1994, Dooyang was dealing directly with CVG

and expressing "keen interest" in pursuing the project.  It still

did not pay ADL.

     Dooyang's dissembling was part of its deliberate strategy

on the Orinoco project.  Dooyang's strategy was to force its

creditors to accept deeply discounted payments by forcing them to

litigate to collect on their bills.  This was not a matter of

inference.  Dooyang said as much in its business documents.  In its

internal 1992 Business Report, Dooyang stated that it had been

"delaying accounts payable associated with the Orinoco project by

all possible means."  The Business Report included a chart listing

each of Dooyang's advisors on the Orinoco project, followed by a

column titled "ACCOUNT PAYABLE" listing the amounts Dooyang owed

them, and another, blank column titled "Settlement" for listing the

amounts to which Dooyang was able to reduce the fee through its

delaying tactics.  Other advisors on the project also had to resort

to litigation to recover their unpaid fees after receiving similar

empty promises about the payment of outstanding bills.  Not one of

Dooyang's five largest creditors was paid anything without first

resorting to litigation.

     The district court found that Dooyang made repeated

written intentional representations to ADL concerning its intent to

pay the invoices, and found that from at least April 20, 1991,

Dooyang had no intent to pay ADL.  The district court found that,

once the project began to founder, "Dooyang abandoned any intent to

pay any consultants, including ADL, made false representations

about intent to pay, never had any good faith basis for delaying

payment, and intended to force ADL to litigate as leverage to force

a favorable settlement."  ADL II, 979 F. Supp. at 924.

                              II.

     ADL sued Dooyang in Massachusetts state court in August

1994 on theories of breach of contract, fraud, and unfair and

deceptive trade practices in violation of Chapter 93A.  Dooyang

removed the case to federal court in September 1994.  Dooyang

counterclaimed, arguing that it did not have to pay ADL.  Dooyang

alleged that ADL fraudulently induced it to enter into the

consulting agreements and made continuous fraudulent and negligent

misrepresentations, that ADL failed to provide Dooyang with

"accurate and complete information" about the smelter project in

Venezuela, that ADL breached its contract because it failed to use

its "best efforts," and that ADL violated Chapter 93A through

unfair or deceptive business practices.  Dooyang's counterclaims

were based on ADL's work for the Venezuelan government and

Dooyang's perception that ADL was duplicitous.

     The district court granted ADL's motion for summary

judgment on Dooyang's Chapter 93A claim.  ADL voluntarily dismissed

its fraud claims on the eve of trial.  After a jury trial on the

remaining claims and counterclaims, except ADL's Chapter 93A claim,

the jury found, after two days of deliberation, in favor of ADL on

its breach of contract claim and awarded it $460,000 in damages

(the full amount of its bills for services rendered from March to

June 1991).

     As to the Chapter 93A claim (triable to the court under

Massachusetts law), the district court concluded that ADL had

proved that Dooyang engaged in "unfair or deceptive acts or

practices."  These acts or practices were: Dooyang's ordering

consulting services without intending to pay for them, Dooyang's

expressing intent to pay ADL when it had no intent to do so, and

Dooyang's strategy of "commercial extortion" by which it attempted

to force favorable price concessions through the threat of

litigation.  See ADL II, 979 F. Supp. at 925.  Under Chapter 93A,

the unfair or deceptive conduct must "occur primarily and

substantially within Massachusetts" to be actionable.  The court

ruled that only Dooyang's conduct in misleading ADL about paying

its bills was a 93A violation, because this conduct occurred in

Massachusetts.  See id.  Because the violation was willful, the

court doubled ADL's damages to $920,000 plus statutory interest. 

See id. at 927-28.

                              III.

     Dooyang raises two issues on this appeal.  Dooyang first

contends that the special verdict form improperly precluded

consideration of Dooyang's counterclaims.  Second, Dooyang argues

that the district court misapplied the law in holding that

Dooyang's false promises to pay ADL constituted a Chapter 93A

violation.

A.  The Special Verdict Form

     Dooyang argues that the district court improperly

precluded consideration of its counterclaims by instructing the

jury to consider Dooyang's counterclaims only if it found that ADL

had failed to prove that Dooyang "materially breached its contract

to pay for services provided by ADL without legal excuse" (emphasis

added).  According to Dooyang, the district court improperly

collapsed the whole of Dooyang's counterclaims into the phrase

"without legal excuse."

     The parties dispute whether Dooyang properly objected to

the verdict form.  Where there has been a proper objection to a

claimed error in a special verdict form, our review is for an abuse

of discretion.  See Transamerica Premier Ins. Co. v. Ober, 107 F.3d

925, 933 (1st Cir. 1997).  But where there is no objection, our

review is for plain error only.  See Cambridge Plating Co., 85 F.3d

at 767.  Because even under the less deferential abuse of

discretion standard there was no error, we do not decide whether

Dooyang's somewhat vague objection was adequate to preserve the

claim.

     Under the abuse of discretion standard, we examine the

jury instructions as a whole to determine whether they confused or

misled the jury on the applicable law.  See Tatro v. Kervin, 41

F.3d 9, 14 (1st Cir. 1994).  We assume the jury listens to and

follows the judge's entire charge.  See United States v. Gonzalez-

Gonzalez, 136 F.3d 6, 9 (1st Cir. 1998).  Nonconstitutional errors

in a civil suit are harmless if it is probable that the error did

not affect the outcome of the case.  See Moulton v. Rival Co., 116

F.3d 22, 26 (1st Cir. 1997); see also Putnam Resources v. Pateman,

958 F.2d 448, 456 (1st Cir. 1992) ("[A] district court has wide

discretion in constructing and utilizing verdict forms." (citations

omitted)).

     The district court's jury instructions made clear the

burden ADL had to meet to prove that Dooyang breached the contract

"without legal excuse."  The court instructed the jury at length

that ADL had to prove the elements of its breach of contract

claim.            In addition, the court made it clear that it was ADL's

                    burden to show that Dooyang did not have any "legal excuse" for its

          non-payment.          

                         In fact, Dooyang was the beneficiary of this instruction. 

                    The effect of the "without legal excuse" language was to shift the

                    burden of proof on Dooyang's claims from Dooyang to ADL.  ADL was

                    required to disprove Dooyang's counterclaims to prevail on its

                    breach of contract claim.  Because Dooyang presented its

                    counterclaims as defenses to ADL's breach of contract claim, it was

                    relieved of the burden of proving its assertions.  See ADL I, 928

                    F. Supp. at 1205.  Instead, ADL had the burden to prove that

                    Dooyang's failure to pay the 1991 bills was "without legal excuse." 

                    The instructions on "legal excuse" make it clear that Dooyang did

                    not have to pay ADL if Dooyang's counterclaims had merit.  

                         Because the case involved a single contract, the jury

          could not have found both in ADL's and Dooyang's favor.            Because

                    the jury found in ADL's favor, it necessarily rejected Dooyang's

                    counterclaims.  There was no abuse of discretion in the format of

                    the verdict form.

                              B.  The Chapter 93A Violation

                                   Dooyang's second claim of error is that the district

                    court misapplied the law of Chapter 93A.  Dooyang's argument has

                    two components: first, that its actions were not "unfair or

                    deceptive," and second, that those actions did not, in any event,

                    cause a "loss of money or property."  We review the district

                    court's findings of fact for clear error and its conclusions of law

                    de novo.  See Cambridge Plating Co., 85 F.3d at 769.  "Although

                    whether a particular set of acts, in their factual setting, is

                    unfair or deceptive is a question of fact, the boundaries of what

                    may qualify for consideration as a [Chapter] 93A violation is a

                    question of law."  Ahern v. Scholz, 85 F.3d 774, 797 (1st Cir.

                    1996) (citation and internal quotation marks omitted).

                         Our review is of the district court's finding that the

                    "second act of deception," Dooyang's continual promises to pay ADL

                    when it had no intent to do so as part of a strategy to force its

                    creditors to accept discounted settlements, constituted a violation

                    of Chapter 93A.  Under Chapter 93A, the act or practice must be

                    "unfair or deceptive," must occur "primarily and substantially" in

                    Massachusetts, and must cause a loss of "money or property."  Based

                    on our review of the evidence, we find that the district court's

                    findings of fact are not clearly erroneous and we will not disturb

                    them.  We agree with the district court that Dooyang's "second act

                    of deception" qualifies as a Chapter 93A violation.

                         1.  Unfair or Deceptive

                         Under  2 and 11 of Chapter 93A, it is unlawful for

                    those engaged in trade or commerce to employ "unfair methods of

                    competition and unfair or deceptive acts or practices" in business

                    transactions with others engaged in trade or commerce.  Chapter 93A

                    "was designed to encourage more equitable behavior in the

                    marketplace and impose liability on persons seeking to profit from

                    unfair practices."  Linkage Corp. v. Trustees of Boston Univ., 679

                    N.E.2d 191, 208 (Mass. 1997) (citation, internal quotation marks

                    and alterations omitted).  The statute does not specifically define

                    "unfair" or "deceptive."  See Ahern, 85 F.3d at 798 ("[T]he statute

                    does not contemplate an overly precise standard of ethical or moral

                    behavior.  It is the standard of the commercial marketplace."

                    (citation and internal quotation marks omitted)); Linkage Corp.,

                    679 N.E.2d at 209 ("A practice is unfair if it is within the

                    penumbra of some common-law, statutory, or other established

                    concept of unfairness; is immoral, unethical, oppressive, or

                    unscrupulous; and causes substantial injury to other businessmen."

                    (citation, internal quotation marks and alterations omitted)).

                         The courts of Massachusetts have consistently held that

                    "conduct in disregard of known contractual arrangements and

                    intended to secure benefits for the breaching party constitutes an

                    unfair act or practice for c. 93A purposes."  Anthony's Pier Four,

                    Inc. v. HBC Assocs., 583 N.E.2d 806, 821 (Mass. 1991) (citation and

                    internal quotation marks omitted).  See Pepsi-Cola Metro. Bottling

                    Co. v. Checkers, Inc., 754 F.2d 10, 17-19 (1st Cir. 1985) (Chapter

                    93A violation found where payment withheld as a "wedge" to enhance

                    bargaining power); Wang Labs., Inc. v. Business Incentives, Inc.,

                    501 N.E.2d 1163 (Mass. 1986).  Where one party to an agreement

                    employs a breach of contract to gain an unfair advantage over the

                    other, the breach "has an extortionate quality that gives it the

                    rancid flavor of unfairness."  Atkinson v. Rosenthal, 598 N.E.2d

                    666, 670 (Mass. App. Ct. 1992) (citation omitted).  Indeed, conduct

                    largely equivalent to Dooyang's second act of deception has

                    recently been held to violate Chapter 93A.  See Community Builders,

                    Inc. v. Indian Motocycle Assocs., Inc., 692 N.E.2d 964, 978 (Mass.

                    App. Ct. 1998) (defendants "withheld payment unconscionably,

                    stringing [plaintiff] along . . . with a purpose of coercing

                    [plaintiff] to settle for substantially less compensation than the

                    parties had agreed to before the services were performed").

                         The district court's factual finding of unfair practices

                    is clearly supported by the evidence.  The court based its Chapter

                    93A ruling both on testimony that Dooyang did not intend to pay ADL

                    for the work it performed and on documents which stated that

                    Dooyang was avoiding paying its creditors "by all possible means"

                    and which created a mechanism for measuring the success of its

                    strategy by listing the reductions that resulted from Dooyang's

                    deceptive tactics.  As the district court found, Dooyang intended

                    to force ADL into an unfavorable settlement by threatening

                    litigation.  There was no error in the court's finding that the

                    "second act of deception" amounted to an "unfair or deceptive act

                    or practice" under Chapter 93A.

                         Chapter 93A liability is decided case-by-case, and

                    Massachusetts courts have consistently emphasized the "fact-

                    specific nature of the inquiry."  Linkage Corp., 679 N.E.2d at 209.

                    We emphasize that this case did not involve a good faith dispute

                    over billing or a simple breach of contract, each of which is an

                    insufficient basis for 93A liability.  See, e.g., Pepsi-Cola Metro.

                    Bottling Co., 754 F.2d at 18 (stating that "mere breaches of

                    contract, without more, do not violate [C]hapter 93A");

                    Whitinsville Plaza, Inc. v. Kotseas, 390 N.E.2d 243, 251 (Mass.

                    1979).  This case is not like Quaker State Oil Ref. Corp. v.

                    Garrity Oil Co., 884 F.2d 1510, 1513-14 (1st Cir. 1989), which held

                    that refusal to pay an invoice without "more" was not enough to

                    constitute a 93A violation.  Here, Dooyang's wrongful purpose was

                    to extract a favorable settlement from ADL for less than the amount

                    Dooyang knew that it owed by repeatedly promising to pay, not doing

                    so, stringing out the process, and forcing ADL to sue.

                         These developments in Massachusetts law will require the

                    Massachusetts courts to give greater definition and clarity to the

                    parameters of  11 liability for those who do business in

                    Massachusetts.  Mere failure to pay a bill, standing alone, does

                    not, it appears, give rise to such liability.  See id.  Where there

                    is a good faith dispute over whether payment is actually owed, and

                    that dispute is clearly articulated, it also appears there is no

                    Chapter 93A liability.  See id.; Levings v. Forbes & Wallace, Inc.,

                    396 N.E.2d 149, 153 (Mass. App. Ct. 1979).  Of course, due to the

                    fact-specific nature of the Chapter 93A inquiry, generalizations

                    are always somewhat indeterminate.  See Cambridge Plating Co., 85

                    F.3d at 769 ("Perhaps by design, the dimensions of Chapter 93A

                    liability are difficult to discern with precision.").  This case

                    does not involve a mere failure to pay a bill, and the facts are

                    sufficiently strong that we easily conclude they are actionable as

                    "unfair or deceptive" under Chapter 93A.  We leave to the

                    development of state law where the lines will be drawn in these

                    "the check is in the mail" type cases.

                         2.  Loss of Money or Property

                         ADL had the burden of showing not only that the acts were

                    unfair or deceptive, but also that it suffered a "loss of money or

                    property" under Mass. Gen. Laws ch. 93A,  11.  "'[M]oney' means

                    money, not time, and . . . 'property' means the kind of property

                    that is purchased or leased, not such intangibles as a right to a

                    sense of security, to peace of mind, or to personal liberty." 

                    Baldassari v. Public Fin. Trust, 337 N.E.2d 701, 709 (Mass. 1975). 

                    And that loss of money or property must stem from Dooyang's

                    misrepresentations regarding payment.  See Lyle Richards Int'l,

                    Ltd. v. Ashworth, 132 F.3d 111, 114-15 (1st Cir. 1997) (loss of

                    money or property required under  11 must stem from deceptive

                    act).  It is the misrepresentations about payment which must have

                    caused the loss because those misrepresentations, not the formation

                    of the contract extension itself, took place in Massachusetts and

                    so are subject to Chapter 93A.  "[W]hether the requisite causal

                    connection has been proven is one of fact" that will not be set

                    aside unless clearly erroneous.  DiMarzo v. American Mut. Ins. Co.,

                    449 N.E.2d 1189, 1199 (Mass. 1983) (citation omitted).

                         This requirement is satisfied by the combination of ADL's

                    loss of the use of the money owed by Dooyang together with ADL's

                    expenses incurred attempting to collect Dooyang's debt.  While we

                    have found no  11 cases directly on point, a number of cases under

                     9 are helpful in the analysis.  The closest  11 case is

                    Community Builders, in which false promises to pay and delay caused

                    a loss of use of money, attendant expenses, and caused plaintiff to

                    continue to do work.  Here plaintiff did not continue to do work

                    and so the Appeals Court did not face the precise issue that we

                    face.

                         Massachusetts courts have held in  9 cases against

                    insurers under Chapter 93A and Mass. Gen. Laws ch. 176D that the

                    loss of the use of money owed to a plaintiff, once liability is

                    "reasonably clear," is a form of damage compensable by Chapter 93A. 

                    See Clegg v. Butler, 676 N.E.2d 1134, 1139 (Mass. 1997) (stating

                    that "when an insurer wrongfully withholds funds from a claimant,

                    it is depriving the claimant of the use of those funds" and so

                    constitutes injury cognizable under Chapter 93A though the insurer

                    eventually pays).  Clegg reiterated the rule announced in Schwartzv. Rose, 643 N.E.2d 105, 109 (Mass. 1994), that the loss of the use

                    of money "is precisely the type of damage we have described as

                    appropriately being subject to multiplication . . . under c. 93A." 

                    Schwartz was not a claim against an insurer under Chapter 176D, and

                    so we take it that the Schwartz rule has general application, at

                    least under  9.

                         In 1979 the Massachusetts legislature amended Chapter 93A

                    to eliminate the requirement of pleading a loss of money or

                    property under  9.  See Smith v. Caggiano, 421 N.E.2d 473, 475

                    (Mass. App. Ct. 1981).  Now, under  9, a plaintiff must prove that

                    he or she has "been injured" by the defendant's unfair or deceptive

                    practices.  Mass Gen. Laws. ch. 93A,  9.  One question is whether

                    the cases under  9, which requires only a showing that plaintiff

                    has "been injured," provide guidance on what is meant by "loss of

                    money or property" under  11.  The two phrases are not

                    coextensive.  "Injury" is a broader term, and includes, for

                    example, emotional distress.  See Leardi v. Brown, 474 N.E.2d 1094,

                    1101 (Mass. 1985) (interpreting "injury" under  9 to include "an

                    invasion of a legally protected interest, but no harm for which

                    actual damages can be awarded").  But loss of money or property is

                    certainly one form of injury.  

                         We think the  9 cases provide guidance.  In these  9

                    cases, the court rejected arguments that the plaintiff suffered no

                    injury because he suffered only a delay in payment rather than an

                    absolute loss.  Certainly, the loss of use of money, along with

                    attendant collection and other expenses would seem to be both an

                    "injury" under  9 and a "loss of money or property" under  11. 

                    Cf. Caggiano, 421 N.E.2d at 476 ("'Money' means . . . 'money,' but

                    its loss may occur short of physical transfer of legal tender.").

                         In addition to the loss of the use of the money,

                    Dooyang's unfair withholding of payment caused ADL to make

                    expenditures to recover the money owed: long-distance phone calls

                    and faxes to South Korea, and meetings with Dooyang executives. 

                    Such expenditures have been found to satisfy the "loss of money or

                    property" requirement.  See Alcan Aluminum Corp. v. Carlton

                    Aluminum of New England, 617 N.E.2d 1005, 1013 (Mass. App. Ct.

                    1993) ("Carlton did suffer an actual loss of money or property --

                    by responding to customer complaints and lawsuits about the

                    defective siding . . . ."); Bump v. Robbins, 509 N.E.2d 12, 22

                    (Mass. App. Ct. 1987) ("There is evidence of out-of-pocket

                    expenditures for travel and long-distance telephone calls, time

                    spent at meetings and in other related activities, and the usual

                    charges Bump made for his time."); see also Baldassari, 337 N.E.2d

                    at 709 (when plaintiffs suffered only emotional distress, no loss

                    of money or property, but a different question would have been

          presented had plaintiffs suffered expenses).            This combination of

                    expenses and loss of use of money meant that ADL suffered a "loss

                    of money or property" caused by Dooyang's second act of deception.

                         A question remains about the proper measure of damages in

                    this case.  The district court doubled the breach of contract

                    damages, but also ruled that Dooyang's initial act of deception was

                    not covered by Chapter 93A.  This theoretically could raise the

                    issue of whether damages should be limited to only those damages

                    caused by the second act of deception or whether  11 precludes

                    such a measure of damages.  Dooyang does not argue in its brief

                    that the court's doubling of the entire amount of the underlying

                    contract damages was error, but maintains only that there was no

                    loss of money or property caused by the second deceptive act as

                    required by  11.  Dooyang's brief perfunctorily challenges the

                    district court's decision to award double damages, but does not

                    address the proper amount to be doubled.  Dooyang has thus conceded

                    the issue of the amount to be doubled, and we do not reach the

                    theoretical issue.  See King v. Town of Hanover, 116 F.3d 965, 970

                    (1st Cir. 1997) (claims not argued on appeal are deemed waived).

                         The district court awarded ADL double damages on the

                    ground that Dooyang's misconduct was "willful and knowing."  The

                    district court clearly articulated its reasons for levying multiple

                    damages, and we agree.  See ADL II, 979 F. Supp. at 926-28.  For

                    the reasons stated in the opinion of the district court, we do not

                    find the award of double damages based on Dooyang's willful

                    deceptive acts to be excessive in this case.

                         The judgment of the district court is affirmed.  Costs

                    are awarded to ADL.