FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS Hon. Richard G. Stearns, U.S. District Judge.
V. Kalbian, with whom D. Michelle Douglas, Kalbian Hagerty
LLP, Martin F. Gaynor III, Nicholas D. Stellakis, and Manion
Gaynor & Manning LLP were on brief, for appellant.
John U, with whom John A. Tarantino, Brian R. Birke, Adler
Pollock & Sheehan P.C., Eugene F. Assaf, Erin C.
Johnston, Ronald K. Anguas, Jr., and Kirkland & Ellis LLP
were on brief, for appellee.
Lynch, Lipez, and Thompson, Circuit Judges.
diversity action, Arabian Support & Services Co.
("ASASCO"), a Saudi Arabian business, seeks
compensation for assisting Textron Systems Corporation in its
efforts, over a number of years, to complete a deal to sell
sensor fuzed weapons ("SFWs") to the Saudi
government. ASASCO claims that Textron failed to abide by a
promise to supplement the modest fees paid under the
parties' written consulting agreements through an
"offset" arrangement linked to the weapons
sale. The district court granted summary
judgment for Textron on all of ASASCO's claims after
allowing limited discovery and declining to provide ASASCO an
opportunity to amend its complaint.
we agree that ASASCO's contract and tort claims are not
viable, we conclude that the district court erroneously
dismissed ASASCO's Chapter 93A misrepresentation claim
based solely on the failure of the contract claim.
See Mass. Gen. Laws Ann. ch. 93A, § 11. Textron
offers no persuasive alternative rationale to support the
court's ruling. Hence, ASASCO is entitled to proceed with
its claim that Textron engaged in an unfair business practice
by procuring ASASCO's agreement to low-fee consulting
contracts with the promise of a future offset benefit and
then, after successfully signing the weapons deal,
disclaiming any additional financial obligation to the Saudi
company. Accordingly, we vacate the summary judgment in part
and remand for further proceedings on ASASCO's
not review in full the parties' lengthy relationship,
which developed largely through interactions between Mansour
Al-Tassan, ASASCO's president, and Avedis Boyamian,
Textron's Director of Middle East Business Development.
As the history is well known to both parties, we choose here
to recount only those facts pertinent to our decision.
The Consulting Agreements
three-plus years -- from March 2005 through August 2008 --
Textron and ASASCO signed successive consulting contracts
providing ASASCO with a monthly retainer of $10, 000.
Beginning September 1, 2008, the consulting contract was
extended in increments of one to three months on a no-fee
basis. That arrangement continued for a year, until a new
two-year agreement was signed that set ASASCO's monthly
retainer at $500. The $500 fee remained in place through
subsequent contract extensions until August 31, 2013, at
which point Textron terminated the consulting arrangement. In
the email sent on August 29 notifying ASASCO that Textron had
elected to end the relationship, the company spokesperson
stated that Textron was "not aware of any outstanding
obligations between the parties."
the consulting contracts between 2005 and 2011 contained a
provision stating that the parties agreed that "any and
all services rendered by CONSULTANT to the COMPANY shall be
deemed to have been given pursuant to this Agreement and no
additional payments [other than for approved travel expenses]
shall be due to or paid to CONSULTANT." However, the
2011 agreement for the first time contained an expanded
version of this no-other-payments statement, providing that
the specified compensation was "the exclusive
remuneration to be paid by the COMPANY" for "the
services provide[d] by CONSULTANT." The 2011 agreement
also featured an integration provision:
This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and
supersedes all prior agreements or understandings, written or
oral. Each party hereby waives the right to assert any claim
against the other, its employees, customers or assigns, based
on any oral representations, statement, promise or agreement
whether made before or after the date of this Agreement.
The Offset Dialogue
the years of their consulting relationship, beginning no
later than May 2006,  Textron and ASASCO regularly discussed the
opportunity for additional compensation to ASASCO through its
involvement in offset projects that were an anticipated
requirement of the Saudi weapons deal. The record also
contains internal Textron emails indicating that ASASCO's
anticipated offset activity -- and compensation -- would be
independent of the consulting agreement. This correspondence
includes a draft "Offset Services Agreement"
prepared by Textron in June 2006, an email from Boyamian to
Al-Tassan that month stating that Textron was "in the
process of getting the Offset Provider Agreement approved,
" and, on the same day, an internal Textron email asking
that "two books" be started for the company's
business with ASASCO ("one for a new offset agreement
with Asasco, and one for a renewal of the consultant
and ASASCO never entered into a written offset agreement.
Instead, in February 2008, Textron and Blenheim Capital
Partners Limited signed an Offset Services Agreement
("OSA") that permitted but did not require Blenheim
to subcontract with ASASCO -- although no other subcontractor
could be used without Textron's "prior written
consent." Six months later, in an internal email dated
September 8, Boyamian told colleagues at Textron that,
"Effective September 1st, 2008, [Textron] stopped paying
ASASCO the monthly consultancy fee because, [Textron] through
Blenheim, an offset service provider company based in UK, has
an offset service providing agreement with ASASCO for
[Textron] business offset requirements in Saudi Arabia."
The email also reported ...