63 F.4th 71
1st Cir.2023Background
- FBT owned a parcel in Everett subject to an Option Agreement giving Encore (Wynn MA, LLC) an option to buy for $75 million; FBT had three members including appellant Anthony Gattineri (46.69%).
- Amid Commission concerns about a possible concealed owner with a criminal background, Encore and FBT entered a Ninth Amendment reducing the purchase price to $35 million and reserving $10 million for environmental remediation; the Massachusetts Gaming Commission approved the $35M price and required each FBT member to sign a notarized Certificate declaring sole ownership.
- Gattineri initially refused to sign the Certificate unless compensated for his share of the $40M price reduction; he alleges that on June 14, 2014 he made a verbal deal with Wynn representative Robert DeSalvio in San Diego (the “San Diego Agreement”) whereby Wynn would “make him whole” (≈ $18.7M) if he signed; he signed the Certificate and Wynn obtained the license, but he was never paid.
- Gattineri was later indicted on related federal and state charges but was acquitted on federal charges and the state charges were dropped; he sued Wynn Defendants alleging breach of contract, common-law fraud, and Chapter 93A claims seeking about $19M.
- The district court granted summary judgment to Wynn, holding the San Diego Agreement illegal under Mass. Gen. Laws ch. 23K and too indefinite; the First Circuit rejected some alternative grounds for summary judgment, found genuine fact disputes on contract and fraud, but certified questions about the agreement’s legality under ch. 23K and public policy to the Massachusetts SJC.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Improper ex parte communication with court clerk | The clerk emailed defendants seeking deposition transcripts; this tainted the proceedings and prejudiced Gattineri | The communication was administrative and produced no procedural, substantive, or tactical advantage; no prejudice shown | No reversible prejudice; claim fails (no demonstrated taint) |
| Enforceability / definiteness of San Diego Agreement | “Make him whole” meant his 46.69% share of the $40M reduction (≈ $18,676,000); prior negotiations made amount definite | Term was indefinite (no precise dollar) and thus unenforceable as a matter of law | Rejected summary judgment on indefiniteness; genuine disputes of material fact exist about the term’s meaning |
| Common-law fraud (reasonable reliance) | Gattineri reasonably relied on Wynn’s promise to make him whole given repeated negotiations and context | Promise too vague to support reasonable reliance as a matter of law | Reversed grant of summary judgment; reasonable reliance is a jury question given the context |
| Illegality under Mass. Gen. Laws ch. 23K / public policy | San Diego Agreement not covered by §21(b) because Gattineri was not a licensee and was not bound by Commission actions | Agreement violates §21(b)/(c) (no Commission approval) and undermines public confidence in licensing; unenforceable as against public policy | Dispositive legality questions uncertified by controlling precedent; certified two questions to the Massachusetts SJC and retained jurisdiction |
Key Cases Cited
- Thompson v. Gold Medal Bakery, Inc., 989 F.3d 135 (1st Cir. 2021) (summary-judgment standard; view facts for nonmovant)
- Law Offices of David Efron v. Matthews & Fullmer L. Firm, 782 F.3d 46 (1st Cir. 2015) (no reversal for ex parte canon violation absent demonstrated prejudice)
- Simons v. Am. Dry Ginger Ale Co., 140 N.E.2d 649 (Mass. 1957) (surrounding dealings can render terms sufficiently definite)
- Masingill v. EMC Corp., 870 N.E.2d 81 (Mass. 2007) (statement to “make you whole” may be too vague absent contextual definition)
- Cumis Ins. Soc'y, Inc. v. BJ's Wholesale Club, Inc., 918 N.E.2d 36 (Mass. 2009) (reasonable reliance ordinarily a jury question; exception when facts permit only one conclusion)
- Beacon Hill Civic Ass'n v. Ristorante Toscano, Inc., 662 N.E.2d 1015 (Mass. 1996) (public policy unenforceability depends on manifest injury to public interest)
- FBT Everett Realty, LLC v. Mass. Gaming Comm'n, 187 N.E.3d 373 (Mass. 2022) (SJC stressed unusual character of conditioning a license on renegotiation between private parties; left factual issues unresolved)
- Nisselson v. Lernout, 469 F.3d 143 (1st Cir. 2006) (in pari delicto defense requires substantially equal fault and public-interest consideration)
- Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) (state law governs substantive issues in diversity cases)