MEMORANDUM AND ORDER
The plaintiff, NPS LLC (“NPS”), an affiliate of the New England Patriots, issued bonds in 2000 to fund the construction of Gillette Stadium. NPS obtained financial guarantee insurance for the bonds through the defendant, Ambac Assurance Corporation (“Ambac”). In this diversity suit, NPS alleges that Ambac’s communications regarding its credit rating, which was lowered in January 2008, constituted intentional misrepresentation, negligent misrepresentation and violations of Mass. Gen. Laws ch. 93A and that they
I. BACKGROUND
A. Factual Background
1. The Parties’ Agreement
In 2000, NPS issued $282 million in long-term bonds to finance the construction of Gillette Stadium, the home field of the New England Patriots. NPS entered into an agreement with Ambac, a financial guaranty insurer headquartered in New York, for the provision of financial guaranty insurance on the bonds.
In 2006, NPS refinanced the 2000 bonds, issuing new 30-year bonds and again obtaining financial guaranty insurance through Ambac. Under the 2006 insurance policy, Ambac was obligated to pay NPS bondholders the regularly scheduled principal or interest payments on the 2006 bonds if NPS failed to pay them. Ambac and NPS entered into the 2006 Insurance Agreement (“Agreement”), requiring NPS to pay Ambac annual premiums of 0.20 percent of the outstanding principal amount of the 2006 bonds, including an initial premium of $519,565 (covering the annual premiums from December 2006 to December 2008).
The Agreement also contained a provision for a Guaranteed Premium, which would be payable if NPS either paid the 2006 bonds in full or otherwise terminated the policy within the first ten years of the term. Section 1.02 of the Agreement provided:
[I]f the [2006 Bonds] are paid in full or the Policy is terminated for any reason prior to January 1, 2017, [NPS] shall nevertheless pay to Ambac, upon such final payment date or termination date, the present value, using a discount rate of 7%, of each of the Annual Premiums scheduled to be paid from and including such date until January 1, 2017, pursuant to Section 1.02 hereof ....
The Agreement included a merger clause in Section 3.08, recognizing that the Agreement “constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes any and all prior agreements and understandings of the parties hereto with respect to the subject matter hereof.”
2. Ambac’s Credit Rating
Ambac receives a rating of creditworthiness from credit rating agencies, such as Standard & Poor’s, Fitch, and Moody’s; that rating is subject to periodic review. At the time of the 2006 Agreement, Ambac’s credit rating was AAA, or Aaa, the highest possible rating from credit rating agencies.
When the 2006 Agreement was executed, Ambac’s investment portfolio included derivatives and mortgage-backed derivatives. This information was disclosed in Ambac’s 2005 Annual Report, which discussed the risk factors in Ambac’s business, including the risk that its credit ratings “may be downgraded by one or more rating agencies.” By 2007, the rapid decline in housing prices and the spread of mortgage defaults, especially defaults on the subprime mortgages that made up much of the mortgage-backed securities market, resulted in a major credit crisis. In December 2007 and January 2008, Standard & Poor’s, Fitch, and Moody’s placed a negative outlook warning on Ambac’s credit rating. Within the next six months, each of the major credit rating agencies downgraded Anbac’s credit rating.
NPS’s bonds were “auction rate bonds,” traded at an auction on a weekly or month
S. NPS’s Redemption of the Bonds
On or about May 16, 2008, NPS decided to redeem the 2006 bonds in full. When Ambac informed NPS that the redemption of the 2006 bonds triggered the Guaranteed Premium clause in Section 1.02 of the Agreement, NPS responded that it would not pay the Guaranteed Premium. On July 2, 2008, Ambac sent NPS written notice that NPS was in default under the Agreement.
B. Procedural History
NPS filed this law suit in Massachusetts state court and the case was removed to federal district court on diversity grounds. NPS alleges intentional or fraudulent misrepresentation (Count VI), negligent misrepresentation (Count VII), and violations of Mass. Gen. Laws ch. 93A (Count VIII). NPS also seeks various declaratory statements as to NPS’s defenses to a breach of contract claim, namely that the Agreement was unenforceable (Counts I and V) and that any breach by NPS was excused (Counts II, III, and IV). 1 Ambac asserts a counterclaim for breach of contract as a result of NPS’s failure to pay the Guaranteed Premium pursuant to Section 1.02 of the Agreement. Ambac moves for summary judgment as to its counterclaim, and as to all eight counts of NPS’s Complaint.
Ambac, pursuant to Fed.R.Civ.P. 26(c), moved for a stay on all discovery pending the resolution of its motion for summary judgment. A court may grant a stay of discovery for “good cause shown,” Fed. R.Civ.P. 26(c), as part of its “broad discretion in ruling on pre-trial management matters.”
Ramirez Rodriguez v. Boehringer Ingelheim Pharms., Inc.,
II. STANDARD OF REVIEW
Summary judgment is appropriate where there are no genuine issues as to material facts and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). “A dispute is ‘genuine’ if the evidence about the fact is such that a reasonable jury could resolve the point in favor of the non-moving party.”
Scottsdale Ins. Co. v. Torres,
III. ANALYSIS
Of NPS’s eight counts, five involve requests for declarations on NPS’s defenses to any purported breach of the Agreement. I will therefore initially discuss Ambac’s
A. Applicable State Law
The Agreement includes a provision specifying that the contract is governed by New York law. A federal court sitting in diversity evaluates contractual choice of law provisions according to the rules of the forum state, here Massachusetts.
Mariasch v. Gillette Co.,
1. Breach and Excuses for Breach
In Massachusetts, a contract’s choice of law provision is generally honored, provided that it does not conflict with public policy.
Feeney v. Dell Inc.,
2. Enforceability
With respect to NPS’s unenforceability claims (Counts I and V), the contractual choice of law provision is not binding. The First Circuit has held that claims about the validity of a contract’s formation, unlike claims of an alleged breach, are not governed by a choice of law provision.
Northeast Data Sys., Inc. v. McDonnell Douglas Computer Sys. Co.,
Because the Agreement’s choice of law provision does not apply to the validity of the contract’s formation, Massachusetts choice of law rules will directly determine which state’s law does apply. Massachusetts has adopted a “functional choice-of-law approach,” which focuses on “the interests of the parties, the States involved, and the interstate system as a whole.”
Bushkin Assocs., Inc. v. Raytheon Co.,
Ambac has not disputed NPS’s contention that Massachusetts law governs the common law claims. 2 And, indeed, I find that the appropriate choice of law in this context is that of Massachusetts. Although Ambac is headquartered in New York, this case involves a Massachusetts plaintiff — NPS—and financial guarantee insurance for bonds on a Massachusetts construction project undertaken by a Massachusetts corporation.
S. Common Law Claims
Choice of law provisions will govern the tort actions that arise from a breach of contract if breach is an essential element
I. Chapter 93A Claim
I conclude NPS may proceed with a Chapter 93A claim under Massachusetts law. If a contract is governed by a particular state’s law under a choice of law provision, then a party cannot bring a claim under another state’s statute if that statutory claim is “essentially duplicative” of a contract claim.
Northeast Data,
B. Breach of Contract
NPS does not directly challenge Ambac’s allegation of breach, nor could it. NPS has indisputably failed to pay the Guaranteed Premium subsequent to its redemption of the 2006 bonds. Rather, NPS challenges the enforceability of the Agreement generally and Section 1.02 in particular, and claims that its nonpayment should be excused.
1. Enforceability
As discussed in Section H.A.2., supra, I will consider the enforceability issues presented by Counts I and V in light of Massachusetts law.
a. Enforceability of the Agreement
NPS alleges that Ambac cannot enforce the 2006 Agreement because it induced NPS to enter into the Agreement through fraudulent and/or negligent misrepresentations regarding its credit rating and business practices. (Compl. ¶ 78).
(i) Fraud in the Inducement
Massachusetts law follows the Restatement’s model for fraud in the inducement: “If a party’s manifestation of assent is induced by either a fraudulent or a material misrepresentation by the other party upon which the recipient is justified in relying, the contract is voidable by the recipient.”
Nash v. Trustees of Boston Univ.,
Intentional misrepresentation requires showing a false representation of a material fact, with knowledge of its falsity, made to induce the plaintiff to act on the representation, and reasonably relied upon as true.
3
Twin Fires Inv., LLC v. Morgan
(ii) The Alleged Misrepresentation
Although it is unclear at times from the parties’ submissions which particular representations are challenged by the plaintiff, 4 NPS in its Opposition memorandum argues that its allegation is “that Ambac claimed — falsely—that it had not deviated from, and would maintain, the past underwriting practices that had enabled Ambac to uphold its AAA credit rating for so many years.” NPS refers to this as the “core” of the misrepresentations.
While a variety of statements are discussed at times by both parties, 5 the following statements are those that conceivably bear some relation to Ambac’s alleged representation that it would not deviate from its past underwriting standards:
1. A 2006 Corporate Profile identified “The Financial Resources Backing Ambac’s Guarantee,” listing Ambac’s features: Triple-A ratings; over $11 billion in claims-paying resources; a “high quality investment portfolio”; a “strong and diversified portfolio of guaranteed obligations”;
2. The Annual Report of Ambac Financial Group, Inc., Ambac’s parent company, stated that its “[underwriting guidelines, policies and procedures have been developed by Ambac Assurance’s management with the intent that Ambac Assurance guarantees only those obligations which, in the opinion of Ambac Assurance underwriting officers, are of investment grade quality with a remote risk of loss.” (Compl. ¶ 32; Spinelli Aff. Ex. 4 at 10).
3. Ambac executives allegedly stated that Ambac’s business model was conservative compared to other bond insurers. (Compl. ¶ 55; Casey Aff. ¶ 36 & Supp. Casey Aff. ¶ 3).
4. Ambac executives allegedly represented to NPS that Ambac was following its time-tested business model of stringent underwriting practices, the same model that had secured Ambac a AAA rating since 1979. 6 (Compl. ¶¶ 54, 73; Casey Aff. ¶¶ 35-36 & Supp. Casey Aff. ¶ 3).
(in) Analysis
As a general proposition, in Massachusetts “only statements of fact are actionable; statements of opinion cannot give rise to a deceit action.”
Cummings v. HPG Int'l Inc.,
Some company representations are “normal commercial puffing” and thus inactionable statements of opinion.
Cummings,
NPS maintains that Ambac represented to NPS that it would not depart from its traditional underwriting practices. The falsity of these statements lies in the fact that, according to NPS, Ambac departed drastically from its traditional underwriting practices. In particular, Ambac had begun to provide financial guarantee insurance on investments such as collateralized debt obligations whose underlying assets were residential mortgage-backed securities. (Compl. ¶ 6). NPS and Ambac dispute whether these alleged statements are sufficiently specific and factual in nature to constitute misrepresentations. Ambac asserts that they are mere corporate puffing. NPS claims that its allegation of misrepresentation “goes far beyond” the individual statements identified in the Complaint, and reaches representations regarding “particular underwriting standards.”
Courts vary in their conclusions of just where the line between misrepresentation and puffery lies, and often the determination is highly fact-specific. Several courts have found company statements about business practices and corporate health to be statements of opinion. For example, the Second Circuit recently found that under New York law, statements that a company’s risk management was “highly disciplined” and “designed to preserve the integrity of the risk management process” were “no more than ‘puffery.’ ”
ECA, Local 134 IBEW Joint Pension Trust of Chicago v. JP Morgan Chase Co.,
Other courts, however, have found somewhat similar representations to be action
Here, of the statements that are alleged in the Complaint, some are simply not false (such as the statement that Ambac had over $11 billion in claims-paying resources). Others are general statements of opinion about the quality of services that Ambac would provide
8
: that Ambac maintained a “high quality investment portfolio,” and a “strong and diversified portfolio of guaranteed obligations”; that Ambac had a “focus on comprehensive risk management”; and that Ambac’s business model was conservative. These are representations of opinion because they either express only “the belief of the maker, without certainty, as to the existence of fact,” or “his judgment as to quality, value, authenticity, or other matters of judgment.”
Cummings,
The only statements that approach the line separating fact and opinion are that Ambac guaranteed only those obligations that “are of investment grade quality with a remote risk of loss,” and that Ambac was using its time-tested business model of stringent underwriting practices. The remoteness or immediacy of risk, or the stringency of a business practice, might be considered in some circumstances to be
The facts of both
Casella
and
Bergeron
are helpful in illustrating this point. In
Casella,
Similarly, in
Bergeron,
Here, Ambac’s alleged assertions about its “time-tested business model of stringent underwriting practices” and the “remote risk of loss” are not coupled with any specific statements of fact. While NPS argues that the statements are “specific and express representations about maintaining particular underwriting policies,” they do not refer to any specific practices or guidelines. NPS does not identify the policies, upon which NPS relied, that Ambac allegedly promised it would not change. The alleged representations lack both the specificity and the tie to factual falsehoods that form the basis of liability in other cases.
See, e.g., In re Moody’s Corp.,
NPS cannot, as a matter of law, show that Ambac induced NPS to enter the Agreement through intentional misrepresentation that would render the Agreement unenforceable. Consequently, I will grant summary judgment to Ambac as to NPS’s Count I.
b. Section 1.02 as a Penalty Clause
The next enforceability question is whether the Guaranteed Premium clause in Section 1.02 of the Agreement is an unenforceable penalty clause. The provision, according to NPS, is a liquidated damages clause that bears no reasonable relation to the amount of Ambac’s probable loss in the event of a breach, and is therefore unenforceable.
The threshold question here is whether the Guaranteed Premium provision is indeed a liquidated damages provision. Liquidated damages provisions specify, at the time of contract formation, a fixed sum as the parties’ estimate of the extent of the injury that a breach of contract would cause.
Factory Realty Corp. v. Corbin-Holmes Shoe Co.,
This case is very similar to Factory Realty. Nothing in the Agreement prevents NPS from terminating the Agreement at any time; the Agreement merely establishes the terms of termination. It is a reasonable means to adjust the relation of the parties when NPS chooses to pretermit provision of a predictable income stream to Ambac. Because NPS’s redemption of its bonds and subsequent termination of the Agreement have nothing to do with a breach, Section 1.02 cannot be characterized as a liquidated damages provision.
Even if Section 1.02 were somehow to be characterized a liquidated damages provision, it would not be unenforceable as a penalty. “Whether a liquidated damages provision in a contract is an unenforceable penalty is a question of law.”
NPS, LLC v. Minihane,
Both inquires would be satisfied in this case. First, the actual damages from a breach (assuming that termination of the Agreement could be characterized as constituting a breach) would have been difficult to ascertain at the time of contract formation. It would have been unclear at what point NPS would terminate the Agreement, leaving it uncertain as to how many years of annual premiums would be unpaid at the time of termination. Second, the estimate of damages is a reasonable forecast of the unknown damages. Given that NPS could have terminated the Agreement any time between the first year and the thirtieth year of the thirty-year term of the 2006 Bonds, it was reasonable for the Agreement to require payment of annual premiums for the first third — or first ten years — of the term. This benefitted not only Ambac, but also NPS. If NPS terminated the Agreement any time prior to January 1, 2017, then its obligations under Section 1.02 would be less than the cost of paying premiums for the remainder of the policy term for the bonds. And of course, if NPS terminated the Agreement any time on or after January 1, 2017, then it would owe Ambac nothing.
Because NPS cannot show either that Section 1.02 is a liquidated damages provision or, if characterized as one, unenforceable as a penalty, I will grant Ambac’s motion for summary judgment as to NPS’s Count V.
2. NPS’s Excuses from Performance
It is not disputed that if the Agreement is enforceable, NPS is in breach for failing to pay the Guaranteed Premium. But NPS identifies three excuses for its breach: frustration of purpose; impossibility or impracticability of performance; and that a necessary condition of the Agreement was not fulfilled by Ambac. The validity of these excuses is governed by New York law.
a. Frustration of Purpose
NPS contends that the sole purpose of the Agreement was to procure Ambac’s AAA rating for the 2006 Bonds, thereby assuring their marketability and reducing the interest costs borne by NPS. (Compl. ¶ 81). Frustration of purpose requires the showing of three elements: first, the frustrated purpose must have been a “principal purpose” of that party in entering the contract; second, the frustration must be “substantial”; and third, “the non-occurrence of the frustrating event must have been a basic assumption on which the contract was made.”
Metro. Life Ins. Co. v. RJR Nabisco, Inc.,
Applying these principles to the case before me, NPS must show that obtaining the benefits of a AAA credit rating was NPS’s “principal purpose” in entering the Agreement, and that the nonoccurrence of a reduction of Ambac’s credit rating was a “basic assumption” on which the contract was made.
NPS responds that the insurance itself was meaningless because NPS had the resources to pay its bondholders. To be sure, obtaining the credit enhancement that came with Ambac’s financial guaranty was an advantage of entering the Agreement with this particular insurance company; references to Ambac’s AAA credit rating are found in materials distributed to NPS before the contract formation. But characterizing the receipt of these benefits as a “principal” purpose of the Agreement runs counter to the contractual document itself as well as to the nature of the contractual relationship between the parties. The rules for frustration of purpose “do not permit a party to abrogate a contract, unilaterally, merely upon a showing that it would be financially disadvantageous to perform it.”
Bank of Am. Nat’l Trust,
With respect to the second inquiry, NPS cannot show that the non-occurrence of a reduction in Ambac’s credit rating was a basic assumption on which the contract was based. A credit rating is determined by external institutions, not the rated agency. The rating itself is subject to periodic review. NPS was aware that these institutions could at some point alter their evaluation of the risks involved in Ambac’s business model. Indeed, NPS itself notified prospective bondholders that a reduction in Ambac’s credit rating was possible, stating: “There is no assurance that such ratings will continue for any given period of time or that they will not be revised downward or withdrawn entirely by such rating agencies if, in the judgment of such rating agencies, circumstances so warrant.” While NPS may have selected Ambac as an insurer because of its strong credit rating history, and while NPS may have had reason to expect that the strong credit rating would continue, there is no indication that NPS’s decision to enter the Agreement was or could reasonably have been premised on the basic assumption that Ambac’s credit rating would not be reduced.
b. Impossibility or Impracticability of Performance
The defense of impossibility has been severely circumscribed in New York law. “Generally ... the excuse of impossibility of performance is limited to the destruction of the means of performance by an act of God,
Vis major,
or by law.”
407 East 61st Garage, Inc. v. Savoy Fifth Ave. Corp.,
The defense of impossibility is unavailable here. NPS is seeking an excuse from paying Ambac the premiums that are due. It is not impossible for NPS to make these payments. Where nothing but disinclination is preventing the non-performing par
c. Condition Not Fulfilled
NPS maintains that Ambac was obligated to maintain a stable AAA credit rating as a condition of NPS’s obligation to perform under the Agreement. (Compl. ¶ 96). But the Agreement here contains no express condition that Ambac maintain its AAA credit rating for the duration of the Agreement. NPS’s position is that this condition was an implied or constructive provision of the Agreement.
New York law permits courts to identify implied conditions in a contract where “the realities of the arrangement made between the parties” indicate the presence of such a condition.
April Prods., Inc. v. G. Schirmer, Inc.,
The Agreement here is not only clear and unambiguous, but it also includes an integration clause specifying that the Agreement “constitutes the entire agreement between the parties.” I find no grounds here to depart from the express and negotiated terms of the 2006 Agreement. Even if I were to permit the reading of implied conditions into this Agreement, NPS cannot show that the maintenance of a particular credit rating was part of the contract. While Ambac’s strong credit rating no doubt played a role in NPS’s ultimate decision to secure Ambac’s particular financial guaranty, such attractions and benefits do not amount to conditions of the Agreement. I will therefore grant the Ambac’s motion for summary judgment as to NPS’s Count IV.
3. Ambac’s Counterclaim
Because the Agreement, including Section 1.02, was enforceable, and because NPS’s excuses for its non-performance have no legal merit, Ambac has established as a matter of law that NPS is in breach of the Agreement for failing to pay the amount due under the Guaranteed Premium clause. I will therefore grant summary judgment as to Ambac’s counterclaim for breach of contract.
C. Intentional Misrepresentation
The relevant evidence regarding the NPS claim for intentional misrepresentation has been discussed in the context of NPS’s challenge to the Agreement’s enforceability, Part III.B.1., supra. 9 NPS cannot show as a matter of law that Ambac has engaged in intentional misrepresentation because none of Ambac’s alleged statements are actionable false representations. I will therefore grant Ambac’s motion as to NPS’s Count VI.
D. Negligent Misrepresentation
A negligent misrepresentation claim requires showing that the defendant
(1) in the course of his business, (2) supplied false information for the guidance of others (3) in their business transactions; (4) causing and resulting in pecuniary loss to those others; (5) bytheir justifiable reliance upon the information; and that he (6) failed to exercise reasonable care or competence in obtaining or communicating the information.
Golber v. BayBank Valley Trust Co.,
The NPS claim of negligent misrepresentation fails as a matter of law for at least two reasons. First, NPS cannot show that Ambae supplied false information. For the reasons discussed in Part III.B.l., the evidence of record does not create a genuine issue regarding whether Ambae communicated false information regarding its credit rating and its underwriting practices. The alleged statements were too general and vague to be considered anything more than mere puffery about the quality of services that Ambae could provide.
Second, NPS cannot establish that it justifiably relied on Ambac’s communications regarding its credit rating. These communications were generalizations about Ambac’s business, and NPS had reason to know that the rating institutions could lower Ambac’s credit rating at any time. This is buttressed by the Agreement’s inclusion of an integration clause, which does not permit “judicial intrusion upon contractual relationships” in cases of mere negligent misrepresentation.
Sound Techniques, Inc. v. Hoffman,
I will grant the Ambac’s motion for summary judgment as to the NPS’s Count VII.
E. Chapter 93A
The NPS claim under Chapter 93A is that Ambac’s alleged fraudulent inducement and intentional and negligent misrepresentations constitute unfair and deceptive trade practices under Chapter 93A. Section 11 of Chapter 93A protects persons engaged in business from the use or employment of an “unfair method of competition or an unfair or deceptive act or practice.” Mass. Gen. Laws ch. 93A § 11. “The statute does not define unfairness, recognizing that there is no limit to human inventiveness in this field.”
Commonwealth v. Fremont Inv. & Loan,
Here, however, NPS has alleged that the unfairness in Ambac’s conduct lies in the misrepresentations that Ambae allegedly made to NPS in the discussions prior to the execution of the 2006 Agreement. I have already determined that NPS cannot show that Ambae made any actionable misrepresentations to NPS. I will therefore
IV. CONCLUSION
For the foregoing reasons, I GRANT Ambac’s motion for summary judgment as to NPS’s Counts I through VIII, and as to the Ambac’s counterclaim for breach of contract. (Docket No. 34). The parties shall submit a joint statement on or before March 12, 2010 as to the outstanding balance due Ambac under Section 1.02 of the agreement and such prejudgment interest as would be appropriate in the circumstances. After consideration of that statement, the Court will enter an appropriate judgment for Ambac.
Notes
. NPS requests the following declaratory statements: that the Agreement is unenforceable (Count I); that any breach by NPS is excused under the doctrine of frustration of purpose (Count II); that any breach by NPS is excused under the doctrine of impracticability and impossibility (Count III); that any breach by NPS is excused because a condition of performance was not fulfilled (Count IV); and that Section 1.02 of the Agreement is an unenforceable penalty clause (Count V).
. Ambac has not specifically objected to the application of Massachusetts law here, but instead argues that Massachusetts law and New York law are essentially alike on the relevant points at issue. Ambac purports to reserve its right to argue for the application of New York law if necessary, but given that the issues are presented on summary judgment and involve questions of state law, I will proceed with a choice of law analysis, notwithstanding Ambac's purported reservations.
. Ambac devotes some attention to the lack of a "special relationship” between Ambac and NPS. This argument is not relevant here. First of all, the "special relationship” criterion applies only to negligent misrepresentation claims in New York, not Massachusetts.
Golber v. Baybank Valley Trust Co.,
. Several statements by Ambac are identified in (lie Complaint, such as Ambac’s statement that it had a "Triple-A Guarantee" and that Ambac’s AAA credit rating would remain secure together with statements about Ambac’s approach to underwriting and about its claims-paying resources. (Compl. ¶¶ 28-30, 33, 55). NPS highlights some of these statements in its briefs as relevant to the misrepresentation.
One commonly discussed statement is an Ambac executives’ alleged statement that a lowering of Ambac's AAA rating was "never going to happen." (Compl. ¶ 55). NPS, however, asserts in its Opposition Memorandum that this mischaracterizes NFS's misrepresentation claim, and that "this case is not about whether Ambac knew that the rating agencies would downgrade its credit rating.” This assertion, of course, is in some tension with NPS's statement that "[hjere, the issue is not general 'reputation,.' but specifically identifiable credit ratings.” In any event, I address the core claims of misrepresentation as identified by NPS through its briefing.
. After I raised questions at the hearing in this matter regarding the admissibility of the evidence provided in the Affidavit of Eileen M. Casey concerning alleged misrepresentations, NPS sought leave to append the supplemental affidavit of Ms. Casey. The supplemental affidavit undertakes to remedy shortcomings in the asserted personal knowledge regarding misrepresentations as to which I, but not Ambac, raised issues. Rule 6(b) of the Federal Rules of Civil Procedure allows the court to extend a filing deadline "on motion ... if the party [has] failed to act because of excusable neglect.” The decision "[w]hether to grant an extension rests largely in the discretion of the district court.”
Local Union No. 12004, United Steelworkers Of America v. Massachusetts,
. NPS does not quote Ambac directly, and cites no particular statement by Ambac as the source of this description.
. NPS cites case law observing that dismissals on the grounds of puffery are increasingly rare.
See Brumbaugh v. Wave Sys. Corp.,
. The parties also discuss in their briefing Ambac’s alleged statement that the AAA credit rating would never be reduced, and whether this statement amounted to a non-actionable statement of "prophecy,” or of future events that could not be proven false at the time. Although I am inclined to view any prediction about future credit ratings as non-actionable, I need not definitively resolve this issue because NPS has made clear that the prediction regarding Ambac’s future credit rating is not what this case is about. See Note 4, supra.
. The affirmative claim of intentional misrepresentation, like the plaintiff's challenge to the Agreement's enforceability on grounds of fraud in the inducement, is governed by Massachusetts law. My analysis of the misrepresentation allegation therefore applies equally to both claims.