Kleiner v. Cengage Learning Holdings II, Inc., 66 F.4th 28

In 2005 Kleiner, a Boston University emeritus professor, signed a publishing agreement with Wadsworth (later acquired by Cengage) that set royalty rates, two "escalator" royalty tiers, a semiannual reporting requirement, and a choice-of-law clause selecting New York law for construing and governing the Agreement.
Cengage acquired Wadsworth and, after a bankruptcy restructuring, moved to a subscription model (Cengage Unlimited) that allocated subscription fees to multiple "revenue pools" and changed how author royalties were calculated.
Kleiner alleges Cengage supplied misleading or confusing royalty reports, refused straightforward explanations, underpaid royalties under the new calculation scheme, and used authors' confusion to extract pro-publisher contract terms.
Kleiner filed a putative class action under Massachusetts General Laws Chapter 93A seeking disclosures, injunctive/declaratory relief, treble damages, and attorneys’ fees.
The district court dismissed, holding the contract’s New York choice-of-law clause barred a Massachusetts Chapter 93A claim as essentially duplicative of contract claims.
The First Circuit reversed, holding the clause was too narrowly framed to preclude Kleiner’s statutory Chapter 93A claim and remanded; the court declined to decide the merits of the Chapter 93A claim.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the contract's choice-of-law clause bars Kleiner's Massachusetts Chapter 93A claim	Kleiner: clause only says the Agreement "shall be construed and governed" by New York law, so it governs contract interpretation but does not preclude statutory claims under Massachusetts law	Cengage: the New York choice-of-law clause should control and thus foreclose a Massachusetts statutory claim tied to the contractual relationship	Held: Clause is narrow and does not bar a Chapter 93A claim; it governs contract construction but does not purport to govern statutory rights created by Massachusetts law
Whether the appellate court should resolve the Chapter 93A merits	Kleiner: wants the claim to proceed; did not press merits on appeal	Cengage: alternatively argued the complaint also fails on the merits under Chapter 93A	Held: Court declined to decide the merits and remanded for further proceedings to allow the district court to consider them

Jacobson v. Mailboxes Etc. U.S.A., Inc., 646 N.E.2d 741 (Mass. 1995) (narrow choice-of-law language that an agreement "is to be construed under and governed by" a state's law does not bar application of Mass. G.L. c. 93A)
Northeast Data Sys. v. McDonnell Douglas Computer Sys. Co., 986 F.2d 607 (1st Cir. 1993) (broader clause governing the agreement and the parties' rights can preclude certain Chapter 93A claims tied to contract breach)
Vertex Surgical, Inc. v. Paradigm Biodevices, Inc., [citation="390 F. App'x 1"] (1st Cir. 2010) (narrow choice-of-law clause did not bar a noncontractual statutory claim)
Valley Juice Ltd. v. Evian Waters of France, Inc., 87 F.3d 604 (2d Cir. 1996) (interpreting similar clause not to require Massachusetts claim to proceed under New York law)
First Marblehead Corp. v. House, 473 F.3d 1 (1st Cir. 2006) (applied choice-of-law to contract claims but allowed Massachusetts law on a separate tort/negligent misrepresentation claim)
Dinan v. Alpha Networks, Inc., 764 F.3d 64 (1st Cir. 2014) (choice-of-law clause about interpreting an agreement does not necessarily apply to duties arising outside the agreement)
Singleton v. Wulff, 428 U.S. 106 (U.S. 1976) (appellate courts generally should not decide issues not passed on below)