407 F.Supp.3d 59
D. Mass.2019Background
- Plaintiffs (five medical practices) purchased Cynosure’s SculpSure body‑contouring device (≈$165,000 each) after in‑person meetings, calls, texts and emails with Cynosure sales representatives located outside Massachusetts.
- Plaintiffs allege Cynosure misrepresented SculpSure as a one‑time, painless, hands‑free treatment and seek class treatment under Mass. Gen. L. c. 93A and related common law claims.
- Cynosure developed and marketed SculpSure from Massachusetts, changed clinical protocols and marketing messages over time (including a shift to a multi‑treatment “Treat to Complete” protocol in Feb. 2016), and sold >1,400 units nationwide via many local sales reps.
- Purchase agreements signed by plaintiffs incorporated a two‑page contract containing a conspicuous warranty disclaimer (disclaiming implied merchantability) and a Massachusetts choice‑of‑law clause; some plaintiffs lacked the second page in their possession but signed the first page which referenced additional terms.
- The district court held a motion hearing; it denied class certification and granted summary judgment for Cynosure on all claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Class certification under Rule 23(c)(4) for Chapter 93A liability issues | Issue‑class over Cynosure’s uniform representations (one‑time, painless, hands‑free) can be decided classwide and materially advance litigation | Oral representations varied by rep, timing, and region; individual causation/damages issues defeat commonality, typicality, predominance and manageability | Denied — individualized proof of who heard what and causation predominates; issue class would not materially advance the case |
| Chapter 93A (§11) applicability (geographic situs) | Choice‑of‑law clause (Mass.) and company conduct in MA make Chapter 93A applicable; the deceptive campaign’s “totality” centers in MA | Misrepresentations were received and acted upon outside Massachusetts; the center of gravity and injuries occurred outside MA, so §11 does not apply | Granted summary judgment for Cynosure — wrongful conduct did not occur primarily and substantially in Massachusetts |
| Breach of implied warranty of merchantability | Plaintiffs argue contracts may be invalid or they did not receive/discover the disclaimer pages | Cynosure points to conspicuous disclaimer in contracts and plaintiffs’ signatures; buyers were sophisticated and should have asked for full terms | Granted summary judgment for Cynosure — disclaimer was conspicuous and contracts enforceable, barring warranty claim |
| Unjust enrichment (alternative equitable claim) | Plaintiffs assert unjust enrichment if contract remedies fail or contract invalid | Cynosure contends valid contracts govern the relationship, barring unjust enrichment | Granted summary judgment for Cynosure — valid contracts preclude unjust enrichment relief |
Key Cases Cited
- Amchem Prods. v. Windsor, 521 U.S. 591 (1997) (class certification standards and need to establish Rule 23 prerequisites)
- Fishman Transducers, Inc. v. Paul, 684 F.3d 187 (1st Cir.) (Chapter 93A §11 requires misconduct to occur primarily and substantially within Massachusetts)
- Kuwaiti Danish Computer Co. v. Digital Equip. Corp., 438 Mass. 459 (2003) (center‑of‑gravity test for geographic scope under Chapter 93A)
- Aspinall v. Philip Morris Cos., 442 Mass. 381 (2004) (deceptiveness under Chapter 93A is an objective question of fact but may support class treatment only when representations are uniform)
- Sonoran Scanners, Inc. v. PerkinElmer, Inc., 585 F.3d 535 (1st Cir.) (plaintiff received and relied on representations outside Massachusetts; losses incurred outside MA weigh against §11)