
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 96-1748                          JOHN C. ROCHE and MARK A. DIRICO,                               Plaintiffs, Appellants,                                          v.                THE ROYAL BANK OF CANADA and DELOITTE & TOUCHE, INC.,                                Defendants, Appellees.        No. 96-1932                THE ROYAL BANK OF CANADA and DELOITTE & TOUCHE, INC.,                            Defendants, Cross-Appellants,                                          v.                          JOHN C. ROCHE and MARK A. DIRICO,                             Plaintiffs, Cross-Appellees.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                      [Hon. Patti B. Saris, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Vincent  M. Amoroso,  with whom  John  J.  O'Connor and  Peabody &            ___________________              __________________      _________        Arnold were on brief, for plaintiffs.        ______            Mark A. Berthiaume, with whom Gary  R. Greenberg, Louis J. Scerra,            __________________            __________________  ________________        Jr.,  Jonathan D. Cohen, and Goldstein  & Manello, P.C. were on brief,        ___   _________________      __________________________        for defendants.                                 ____________________                                    April 1, 1997                                 ____________________                      LYNCH, Circuit  Judge.     The  plaintiffs, Boston-                      LYNCH, Circuit  Judge.                             ______________            area  businessmen John Roche  and Mark DiRico,  invested in a            fish  farm in  Prince  Edward Island,  Canada.   The  venture            failed, and they sued the court-appointed receiver which sold            them  the farm and the bank which had originally financed the            project.   A jury found against plaintiffs on their claims of            common law  fraud and  misrepresentation for failure  to meet            their burden of showing proximate cause.  The district court,            initially  finding  plaintiffs' allegations  actionable under            Mass. Gen. Laws  ch. 93A ("chapter  93A"), found after  trial            that  defendants  had committed  unfair  and deceptive  trade            practices,  but  that  their  offending acts  did  not  occur            "primarily and substantially"  in Massachusetts, as  required            by chapter  93A.  Plaintiffs recovered  nothing.  Defendants'            motion for  attorneys' fees was  also denied.   Both  parties            appeal  on the chapter 93A  issue, and defendants appeal from            the denial of attorneys' fees.  We affirm.                                          I.                      We recite the facts as the  jury and district court            could have found them.  Cambridge Plating Co. v. Napco, Inc.,                                    _____________________    ___________            85 F.3d 752, 756  (1st Cir. 1996).  "Where  specific findings            are lacking, we view  the record in the light  most favorable            to  the ruling, making  all reasonably supported inferences."            United States v. McCarthy, 77 F.3d 522, 525 (1st Cir. 1996).            _____________    ________                                         -2-                                          2                      The story starts  in February  1987, when  Aquacare            A.S.,  a Norwegian firm, conducted a study for its subsidiary            Seasprings Farms Ltd., on the  viability of a land-based fish            farm  in  Prince Edward  Island,  Canada  ("PEI").   Aquacare            prepared  a  prospectus  (the   Aquacare  I  report),   which            presented  general  information   about  the  biological  and            technical aspects of the  proposed operation.  The prospectus            also contained financial  projections and  asserted that  the            production capacity  of  the contemplated  facility would  be            131.8 tons  of fish in  the first year  of operation and  360            tons annually thereafter.                      The Royal  Bank of Canada financed the construction            of  the  farm, which  was operated  by  a firm  called Marine            Harvesting, Ltd. ("Marine").  Fish were first introduced into            the facility  in December  1987, but there  were construction            delays  and  the plant  was  not completed  until  June 1988.            Things went badly from the  start.  The fish did not  grow as            fast as  anticipated  and  had  unexpectedly  high  mortality            rates.  By October  1988, the fish had not yet reached market            size (4 lbs), as expected.                      In  October,  Cleve   Myers,  Marine's   President,            retained   Aquatech   Systems,   A.S.,    another   Norwegian            aquaculture  firm, to  perform  an independent  study of  the            farm's  problems.  Myers wanted to  know, among other things,            how many tons of fish the farm was capable of producing.  Dr.                                         -3-                                          3            Michael Smith, a biologist from Aquatech, came to the farm on            October   30  and  spent   three  days  making  observations,            conducting tests, and speaking with employees.  Dr. Smith was            not shown  the Aquacare I report, but  the Aquacare operating            manuals  were made  available  to him.    The result  of  Dr.            Smith's analysis  was a forty-four page  report (the Aquatech            report), dated November 18, 1988.                        The Aquatech report  criticized the  design of  the            farm.   The report stated that "until experience over a fully            operational  annual cycle  has been  gained," the  farm could            produce,  at best,  only  200 tons  of fish  per  year.   Dr.            Smith's   report  also   made  several   recommendations  for            improving production.   For  instance, it recommended  that a            higher proportion  of fresh water  be pumped into  the tanks,            for  purposes  of  both  temperature   control  and  salinity            control.  This suggestion deviated from the specifications in            the Aquacare  operating manuals.  The  200-ton projection was            premised on the assumption that the recommended changes would            be implemented.                      Meanwhile, Osler, Inc., one  of Marine's two fifty-            percent shareholders,  was in receivership, and  A.S. Bergens            Skillingsbanken,  the  other  fifty-percent shareholder,  was            refusing to inject additional capital into the venture.                      On  November 30, Myers turned the  keys to the farm            over to Lou McGinn, the Loan Officer in charge of the project                                         -4-                                          4            at  the Royal Bank, and requested  that the farm be placed in            voluntary receivership.  Myers stated that  without operating            capital he  was unable to care  for the inventory or  pay the            staff.  He also  stated that he had "received  a consultant's            report  regarding the  production capabilities  of  the plant            which  indicate [sic] that the  facility is not  viable as it                                                        ___            presently is financed."   McGinn stated  that Myers had  told            him that he received  "a consultant's report" which indicated            that "the  plant was capable of  producing only approximately            200 tons  of product per year  as opposed to the  360 tons of            product per year  upon which its financing and  viability had            been initially contemplated and established."  In a letter of            January 4, 1989, to McGinn, Myers wrote that:                      after the [Aquatech] report  indicated an                      expected tonnage, which was not viable, I                      received confirmation  from the directors                      and major shareholders to advise the bank                      and request a receiver.   Both they and I                      considered    it   wrong    to   continue                      operations with this  information in  our                      possession.            McGinn understood from Myers that the Aquatech report was one            of the  factors that led Marine  to decide not to  inject any            more  money into  the project  and to  opt  for receivership.            McGinn informed  his supervisor  of the development,  and the                                         -5-                                          5            supervisor  noted  in  a   memo  that  "apparently  a  recent            study . . . placessomequestion ontheviabilityof theproject."1                      At the  Royal Bank's request, the  Supreme Court of            PEI  appointed Deloitte  &  Touche2 as  receiver of  Marine's            assets.  Karen  Cramm, a partner in  Deloitte's Halifax, Nova            Scotia office, was in charge of the receivership.  Cramm took            instructions on  the handling  of the  assets from the  Royal            Bank, specifically  from  McGinn, as  well  as from  the  PEI            court.    The Royal  Bank was  the  sole secured  creditor of            Marine,  with   a  $ 2.8  million  note   outstanding.    The            expectation was  that none of Marine's  other creditors would            get anything out of the sale  of the assets; there would be a            shortfall.                                            ____________________            1.    More  than a year later,  on February 26, 1990,  McGinn            prepared  a "Bad  and Doubtful  Debt Report"  on the  loan to            Marine,  which was  somewhat  contradictory  to  his  earlier            understanding.  The report stated, in relevant part:                      While  the  funds  in  question  did  not                      materialize  as  anticipated we  were not                      aware of a  developing concern as  to the                      overall   viability  of   the  operation,                      seemingly  based  on  the findings  of  a                      study   which   indicated  growth   rates                      originally   expected  for   the  species                      involved  were  significantly  overstated                      and   maybe   by   as   much    as   50%.                      Accordingly, Skillingsbanken A/S were not                      prepared  to  participate further  in any                      manner  and requested that  a Receiver be                      appointed immediately.            2.  Deloitte  & Touche was known  as Touche Ross  Ltd. at the            time the initial events leading to this litigation occurred.                                         -6-                                          6                      Cramm  immediately  took  possession   of  Marine's            assets and  reviewed the  company's financial records.   Farm            employees were terminated as  employees of Marine and rehired            as employees  of Deloitte, as receiver for  Marine.  Deloitte            decided to  sell the farm by means of a public tender.  Cramm            immediately  began  preparing  an information  package  which            could be sent to potential investors.  Around this time Myers            showed Cramm  both  the Aquacare  I report  and the  Aquatech            report.   Cramm read both  reports.  She  included neither of            the  reports in  the  information package,  though later  she            would  offer  the  Aquacare  I report  alone  to  prospective            purchasers.                      Deloitte    placed   advertisements    in   various            newspapers, including  the Boston Globe, describing  the farm                                       ______ _____            and  inviting  interested  readers  to contact  Deloitte  for            further information.   The ads stated  that the "business  is            intended to be sold on a going-concern basis."                      In early December,  after learning that  Marine had            become insolvent, Aquacare contacted  Cramm and told her that            it  wanted access to  the plant to conduct  a review of plant            operations.   Aquacare had  heard about the  Aquatech report,            which   criticized   Aquacare's   design    and   operational            specifications.     Cramm   agreed  to   Aquacare's  request.            Aquacare then issued two unsolicited reports, the Aquacare II            report  on December 15 and  the Aquacare III follow-up report                                         -7-                                          7            on  December 20,  attempting  to rebut  the Aquatech  report.            Aquacare II reviewed plant  operations and praised the design            and operational specifications of the plant.  Aquacare II re-            asserted that  360-ton production  "can  be achieved  without            problem," provided there was  proper stocking of  fingerlings            (young fish), and recommended  a fingerling acquisition plan.            Aquacare II  also blamed Marine's management  for the plant's            failures.    Aquacare  III  explicitly refuted  the  Aquatech            report.  Aquacare did not bill Deloitte for these reports.                      Meanwhile,  John Roche, a Massachusetts real estate            developer,   had  been  seeking  a  business  opportunity  in            aquaculture. After reading the Globe ad, he called Cramm from                                           _____            his  home in  Massachusetts.  The  next day she  sent him the            information package.   Roche discussed  the farm with  two of            his business associates, Mark DiRico (the chief engineer of a            packaging   supply  business)  and   George  Call,  who  both            expressed an interest.   Roche and Call decided to  visit the            facility in Canada.  On January 3 or 4, 1989, they toured the            facility with Cramm.   During this  visit, Roche asked  Cramm            why  the previous investors  had failed.   She responded that            they had  run out  of money.   Roche and  Call also  met with            Cliff  Yorston, the Plant Manager, who told them that some of            the fish  were ready for  sale and that all  the plant needed            was an infusion of new capital.                                         -8-                                          8                      Cramm offered the visitors a copy of the Aquacare I            report.   Before receiving it,  they were required  to sign a            disclaimer, which stated, among  other things, that they were            aware that Deloitte "had not, in any way, attempted to verify            the  information contained  herein."   Cramm stated  that she            offered  the  Aquacare  I report  to  prospective  purchasers            because "it was an informative package that included a layout            of  the plant facility" and "it talked about, in general, the            aquaculture  operation."  She  explained that  the disclaimer            was intended to protect Deloitte against claims involving any            inaccuracies in the information contained in the report, such            as   the   financial    projections,   growth   charts,   and            profitability   analysis.     She  had   not  reviewed   that            information and had no opinion as to its accuracy.                      Cramm admits  she did not  offer Roche  and Call  a            copy  of the  Aquatech report,  but claims  it was  among the            financial  statements that  Roche  and Call  were invited  to            view.                      Roche and Call  next met with  McGinn at the  Royal            Bank  of Canada  to discuss  financing.   McGinn,  like Cramm            before  him, told the two  Americans that the  farm went into            receivership because  the previous  investors had run  out of            money.                      Roche  and Call  returned  to Massachusetts,  where            Roche showed the  Aquacare I  report to DiRico.   During  the                                         -9-                                          9            next  week,  Roche had  several telephone  conversations with            McGinn  about potential financing.   McGinn  recommended that            Roche retain a local Canadian  lawyer, Scott MacKenzie, and a            local Canadian accountant, Stan  MacPherson, to assist him in            dealing with various government agencies.  Roche did so.                      On   January  11,   Roche  and   Call,  this   time            accompanied by DiRico, met with McGinn and Cramm at the Royal            Bank in PEI.  DiRico asked McGinn for "sales figures"; DiRico            claims that McGinn gave him a copy of  the Aquacare I report,            telling  him that "all the figures are in here."  DiRico says            he was  not asked to  sign a  disclaimer.  Cramm  denies that            DiRico  was given  a  copy of  the  report at  this  meeting.            DiRico  asked  McGinn  about  the  plant's  troubles;  McGinn            responded that mismanagement was to blame.                      Roche and his associates also went to see the farm.            Cliff Yorston, the  Plant Manager, pulled  a large fish  from            one of  the tanks and  told the  two visitors that  he had  a            whole tankful of similar  "beauties" which could be sold  for            $ 3.75 a pound in  Boston.  Roche and his  associates planned            to  generate  operating capital  for  the  plant through  the            immediate sale of inventory.                       Roche  and  his partners  made  an  offer of  $ 2.9            million the next day,  subject to Royal Bank financing.   But            Cramm, after securing the  Royal Bank's support, rejected the            offer,  instead choosing  to  accept a  lower all-cash  offer                                         -10-                                          10            ($ 1.4 million) from a  group led by Hirsch Spiegleman.   The            Spiegleman group's offer, unlike the Roche group's offer, did            not require Royal Bank financing.                      On or around January 17, Cramm told Roche that  his            offer  had been rejected.  McGinn also asked Roche if Roche's            group  would  still  be  interested  in  the  event that  the            Spiegleman deal fell through.                      After his bid was accepted,  Spiegleman requested a            copy of the Aquatech report (which he referred to as the "200            ton report").   The record  does not  reveal how  Spiegleman,            unlike Roche, knew about the Aquatech report.  Cramm informed            Aquacare of Spiegleman's request  and asked for permission to            give him a copy of  the Aquacare II and Aquacare  III reports            at the same time.                      In   mid-February   1989,   the   Spiegleman   deal            collapsed.  The Roche group hoped to take over the Spiegleman            offer rather than going through  the process of submitting  a            new  bid.  Seeking financing, Roche and his partners met with            Amy Hunter, a  loan officer  at Boston Private  Bank &  Trust            Company  (Boston Private).  Roche  gave Hunter a  copy of the            Aquacare  I  report.     Hunter  understood  that  Roche  was            presenting  the  report as  his  business plan.    Roche told            Hunter that the fish farm  went into receivership because the            previous owners had run out of money.  Roche also told Hunter                                         -11-                                          11            that  he planned  to raise  operating capital  by immediately            selling fish.                      Hunter next called Cramm and McGinn to confirm what            Roche  had told  her.   Cramm  told  Hunter that  the  farm's            equipment was  state-of-the-art and  all that was  needed was            the right  management.  McGinn echoed  these thoughts, adding            that  Roche would get half  his investment back  in the first            three months without even  having to invest in any  new fish.            Hunter asked McGinn if he  knew of any downside risks to  the            farm  or whether he had any projections for the farm.  McGinn            responded  that he did not know any downside risks other than            bad management  and that Roche's  ideas sounded good  to him.            He  did not  offer any  other projections.   On  February 28,            Boston Private  approved a  loan of  $ 1.2 million  to Roche,            secured by property Roche owned in the Boston area.                      Cramm, however, decided not  to allow Roche to take            over Spiegleman's  offer.  Instead, she  re-tendered the farm            to  all  potentially   interested  buyers,  including  Roche.            Consequently, she  edited the original information packet and            sent it  out  on March  1 to  everyone who  had expressed  an            interest in the farm.3                                            ____________________            3.  The only  substantive change made  in the packet  was the            addition of an express statement,  in light of a disagreement            with the Spiegleman group, that the assets that were for sale            did not include an investment tax credit belonging to Marine.            The packet also mentioned that the Spiegleman deal had fallen            through.                                         -12-                                          12                      On March 2, Cramm received from Yorston, the farm's            Plant Manager,  a  copy of  a  recent memorandum  written  by            Aquacare (the Aquacare IV report).   This memorandum had been            prepared  by Aquacare  for  its subsidiary,  Seasprings.   It            accidentally  fell  into  Yorston's  hands  because Aquacare,            intending to send  it by fax  to Seasprings,  sent it to  the            fish farm's  fax number.   The  Aquacare IV report  contained            scathing  criticism  of Deloitte's  management  of  the farm.            Aquacare  asserted that Deloitte,  by attempting  to maintain            the status quo pending sale, was  actually reducing the value            of the farm's assets.  For instance, several tons of fish had            matured past  marketability.  Aquacare believed that Deloitte            was  wasting  money  by   feeding  these  unmarketable  fish.            Additionally,  Deloitte had  failed  in a  timely fashion  to            purchase fingerlings to restock  the farm and future harvests            would  be lower.    Aquacare believed  that under  Deloitte's            management the value of  the inventory as well as  the farm's            1989  and  1990  earning  potential  were  decreasing  daily.            Aquacare  implicitly disavowed  its  own  earlier  production            capacity  projections,  made in  the  Aquacare  I report  and            reasserted in the Aquacare II report, at least as to 1989 and            1990.4                                            ____________________            4.  McGinn explained the decision not to buy any fingerlings,            despite  Aquacare's  recommendations   that  fingerlings   be            purchased in a carefully prescribed manner at specific times,            as part of defendants' strategy of maintaining the status quo            pending  the sale  of the  assets without  investing  any new                                         -13-                                          13                      Roche and DiRico visited the farm again on March 8.            Roche told Yorston that if his bid was accepted he would need            to start  selling fish immediately to  raise working capital.            Yorston replied that he had $ 150,000 worth of fish ready for            shipment  to Boston.  Roche also believed that, once the farm            was purchased, McGinn was prepared to provide working capital            in the form  of a Royal  Bank operating line.   On March  10,            Roche and his partners offered $ 1.4 million.  This offer was            accepted on March 13.                      Roche called  Yorston on March 13  to inquire again            about  the prospects  of immediate  sales.   Yorston  faxed a            response  to Roche.   The  cover sheet  said, "Here  are some            projected  cash flows  for 1989."   The  attached projections            anticipated sales in  March of $ 154,000 and  total sales for            the year of almost $ 2.5 million.5  These projections had not            been prepared by Deloitte or by Marine, but by the Spiegleman            group.   However,  someone  had obliterated  the  identifying            heading at the top of the page so that, when the  projections            were  sent  by fax,  the source  of  the projections  was not            identified  to Roche.  Yorston had earlier told Roche that he                                            ____________________            money  in the farm.   This remained their  strategy after the            Spiegleman deal  fell through  and it  became clear  that the            assets would not be sold until late March.            5.  There is no  indication as to whether these  figures were            supposed to be in US currency or in Canadian currency.                                         -14-                                          14            was not authorized to release any information about the plant            without permission from Cramm.                      On March 17, Scott MacKenzie, the Canadian attorney            hired  by Roche  to help  buy the  farm, faxed  two newspaper            articles  to Roche, along with a brief note saying that Roche            might  find the attached articles "interesting."   One of the            articles discussed Marine's collapse, quoting Myers as saying            "[t]he Aquatech  report was  devastating and the  only option            open to Marine Harvesting  Ltd. was to request that  the bank            place a receiver  on site."   Roche filed  the articles  away            without reading them.                      On March  20, the Canadian court  approved the sale            of  the  farm.    Roche  formed  a  corporation  in   Canada,            International  Marine Fisheries,  Ltd.  (IMFL),  to make  the            purchase.    Roche  instructed  Yorston to  fill  orders  for            shipment to Boston.  Yorston was  able to fill the first  few            orders  of  2 to  4  pound  fish, but  the  buyers  in Boston            complained  that the fish were too small.  Yorston was unable            to fill the  first order  for 4  to 6  pound fish.   He  then            resigned.  Scott Taylor, formerly the farm's Chief Biologist,            took  over Yorston's position, but he was also unable to fill            these  orders.  In April,  Taylor told Roche  that the larger            fish were all unmarketable because they were too old and that            the other fish  were too  small for sale.   Taylor  predicted            that the smaller fish would be  four pounds by June and could                                         -15-                                          15            be sold then.  By June, the smaller fish still  had not grown            to four  pounds.  Taylor was  fired.  The  new Plant Manager,            Richard Gallant,  recommended, in  order to cut  expenses and            see if the fish would grow faster, that the fish be placed in            cages in the bay.  This was done in July.                      Roche and  his partners injected cash  of their own            into the enterprise to save it and also took out an operating            line of  credit from the Bank of Nova Scotia in the amount of            $ 500,000.  Roche personally guaranteed the loan.  During the            summer, Roche and DiRico bought Call's share.                      Roche  came to think  the fish farm  was a failure.            He began  negotiating with  a local veterinary  college which            was  interested in buying the farm for research purposes.  He            hired Deloitte to help him set up this deal.  Stan MacPherson            and  Cleve Myers, both recently hired  by Deloitte, worked on            the project.                      In  September 1989,  Roche  was at  the fish  farm.            Tipped  off by  a  former secretary,  he  found the  Aquatech            report  in a desk drawer.  Attached  to the report was a 1988            note from Cleve Myers,  the former president of Marine,  to a            prospective fish dealer.  The note said that the farm:                      was   placed   in   receivership   Friday                      afternoon.   The fish have not grown fast                      enough, as you know, plus I have received                      a specialist's report from Norway stating                      that we  can only grow  200 tons annually                      (just enough to lose one  million dollars                      each year).                                         -16-                                          16            After  reading  the  report   and  the  attached  note  Roche            concluded that he had been defrauded.                       In November  1989, the  Bank of Nova  Scotia called            the loan and demanded that Roche, as personal guarantor, make            payment to the bank.  He did not do so.  The fish farm closed            in December,  and went into  receivership in  February.   The            Bank  of Nova Scotia sued  Roche and DiRico  on the defaulted            loan.                      Meanwhile,    IMFL,   the    plaintiffs'   Canadian            corporation, was dissolved  in May  1990.   Roche and  DiRico            brought  this action against  Deloitte and the  Royal Bank in            November 1990.                                         II.                      Roche and  DiRico sued Deloitte and  the Royal Bank            on two theories: common  law fraud and misrepresentation, and            "unfair  or deceptive acts or practices in the conduct of any            trade or commerce," under Mass. Gen. Laws ch. 93A,   2.                      The  common law  counts were  tried before  a jury.            Since the defendants did not consent  to a jury determination            of  the  chapter 93A  claim, that  claim  was decided  by the            district  judge.  The jury  returned a verdict  for the Royal            Bank on all  the common law  counts.  As  for the common  law            claims against Deloitte, the jury found that Roche and DiRico            had proved there were negligent misrepresentations, but  that            the plaintiffs were ninety-nine percent negligent compared to                                         -17-                                          17            the one  percent negligence of Deloitte;  therefore the claim            foundered  on  proximate  cause  grounds  and  there  was  no            recovery.    The district  court  ruled  that defendants  had            engaged in  misrepresentations contrary  to  the standard  of            chapter 93A,6  but that the  actionable conduct did  not take            place "primarily  and substantially within  the commonwealth"            of  Massachusetts, as chapter 93A  requires.  Mass. Gen. Laws            ch. 93A,   11.   The court thus ruled in favor  of defendants            on the issue of chapter 93A liability.                      Plaintiffs,  while  defending the  district court's            predicate  rulings, appeal  the court's ultimate  decision on            chapter  93A  liability.    They assert  that  the  deception            occurred  primarily  and  substantially   in  Massachusetts.7            Defendants,   by   contrast,   defend   the   "primarily  and                                            ____________________            6.  Defendants argue on appeal  that this ruling violates the            Seventh  Amendment in light of the jury verdict on the common            law claims.  We need not  reach the issue since we affirm the            chapter 93A judgment for defendants on other grounds.             7.  Plaintiffs   argue  that   the  court's   "primarily  and            substantially"  decision  is  in  tension  with  its  earlier            decision to apply Massachusetts law to the dispute instead of            Canadian law.  Defendants  make essentially the same argument            in reverse -- that the latter decision was correct and should            trump the former.  These arguments miss the mark.  The choice            of  law  test and  the  "primarily  and substantially"  test,            though similar in many  respects, are not identical.   That a            judge  should reach  opposite results  in applying  these two            tests  in a  single case  is no  sign of  error.   See, e.g.,                                                               ___  ____            Bushkin Assocs., Inc. v. Raytheon  Co., 473 N.E.2d 662 (Mass.            _____________________    _____________            1985) (applying  Massachusetts  law but  concluding that  the            deception  occurred  primarily   and  substantially   outside            Massachusetts);  cf.  Burnham v.  Mark  IV  Homes, Inc.,  441                             ___  _______     _____________________            N.E.2d 1027, 1031 n.9 (Mass. 1982).                                         -18-                                          18            substantially" ruling, but challenge a number of the district            court's  predicate rulings.   Specifically,  defendants argue            that  Roche and DiRico are  not the real  parties in interest            because  the deception,  as alleged,  was perpetrated  on the            Canadian  corporation established  by  Roche  and  DiRico  to            purchase and operate  the fish farm,  not on  the two men  as            individuals.    They  also  argue  that,  under  forum  state            (Massachusetts)  conflicts  principles, Canadian  law, rather            than Massachusetts law, should have been applied to the suit.            Finally,  they  argue  that,  even  under  Massachusetts law,            plaintiffs  had  not  successfully  shown  actionable conduct            under 93A.  Because we affirm the ruling below  on the ground            that  the  conduct was  not  primarily  and substantially  in            Massachusetts,  there is  no  reason  to address  defendants'            other arguments in any detail.                       The  question of  whether  the  deception  occurred            primarily and  substantially in Massachusetts is  one of law,            which we review de  novo.  Compagnie de Reassurance  d'Ile de                            __  ____   __________________________________            France  v. New England Reinsurance Corp., 57 F.3d 56, 90 (1st            ______     _____________________________            Cir.  1995); Clinton Hosp.  Ass'n v. Corson  Group, Inc., 907                         ____________________    ___________________            F.2d  1260, 1264  (1st  Cir. 1990).    This review,  however,            cannot  be conducted in a vacuum.  We first determine exactly            what constituted the unfair or deceptive acts.            ____                      The district court found that six acts or omissions            constituted  actionable deception on the plaintiffs.  Whether                                         -19-                                          19            a certain act or  omission (or cluster of acts  or omissions)            is  actionable  under chapter  93A  is  a  question of  fact.            Brennan v. Carvel Corp.,  929 F.2d 801, 813 (1st  Cir. 1991);            _______    ____________            USM Corp. v. Arthur D. Little Sys., Inc., 546 N.E.2d 888, 897            _________    ___________________________            (Mass. App.  Ct. 1989).   Review is  for clear error.   After            defining the deception, the  district court then employed the            pragmatic, functional  analysis spelled out by  this court in            Clinton  Hospital, 907 F.2d  at 1266,  in order  to ascertain            _________________            whether the deception occurred primarily and substantially in            Massachusetts.8      Neither  party  challenges  the district            court's   methodology  in  determining   the  "primarily  and            substantially" question by examining  only the specific  acts            (or omissions)  of misconduct, instead of,  say, by examining            the larger  context of the  parties' dealings.   We therefore            use  the same  methodology.   See also  Gilleran, The  Law of                                          ___ ____            ___________            Chapter  93A     3:15, at  32  &  n.59.1  (1995 Supp.)  ("The            ____________            relevant wrongful  conduct to  be considered for  purposes of            personal   jurisdiction  under  93A  is  that  conduct  which            violated 93A.") (citing cases).                                            ____________________            8.  As a procedural  matter, courts of appeals may review the            "primarily and substantially" issue  at various stages of the            litigation:   e.g.,  after trial,  see Clinton  Hospital, 907                          ____                 ___ _________________            F.2d at 1261; Makino, U.S.A., Inc. v. Metlife Capital  Credit                          ____________________    _______________________            Corp., 518 N.E.2d  519 (Mass.  App. Ct. 1988);  or on  appeal            _____            from summary  judgment, see Goldstein  Oil Co. v.  C.K. Smith                                    ___ __________________     __________            Co.,  479 N.E.2d 728  (Mass. App. Ct. 1985).   Here, the case            ___            comes to  us after trial,  with specific factual  findings by            thedistrictjudgeon whatexactlyconstitutedtheacts ofdeception.                                         -20-                                          20                      The  district  court found  that the  following six            acts/omissions constituted the deception:                      i.  Cramm's response on January 4,  1989,                      to  a question from  plaintiffs about the                      problems  of  the  fish farm,  indicating                      that the  previous operators had  run out                      of money, but omitting that the investors                      withdrew   after  reading   the  Aquatech                      report;                      ii.    McGinn's  statement  to  the  same                      effect;                      iii.  Cramm's failure to offer plaintiffs                      a  copy of the  Aquatech report  when she                      offered  them a  copy of  the Aquacare  I                      report;                      iv.    Cramm's  failure,  after  March 1,                      1989,  to  disclose  to   plaintiffs  the                      Aquacare  IV  report,  which showed  that                      Aquacare   no   longer   stood   by   the                      projections  it had  made in  the earlier                      Aquacare I report;                      v.   McGinn's statement that buyers would                      be  able  to  sell  fish  immediately  to                      generate operating capital; and                      vi.    McGinn's  failure to  tell  Hunter                      about the Aquatech report, after offering                      his opinion  as to  the viability  of the                      farm, when  she asked if he  had any more                      information.9                      Both   parties   challenge  the   district  court's            findings on what constituted  the deception.  Plaintiffs urge                                            ____________________            9.  The   district  court  excluded  from  consideration  the            deceptive oral  statements made by Yorston  to the plaintiffs            and  the deceptive fax sent  by Yorston to  Roche because the            plaintiffs had failed to plead Yorston's allegedly fraudulent            conduct with  the requisite specificity.   Plaintiffs protest            this ruling.  We need not reach the issue as it is immaterial            to the outcome.                                         -21-                                          21            us to give a  broader construction, while defendants complain            that the district  court saw deception where there  was none.            We have reviewed  the record  and are mindful  that there  is            conflicting testimony  on many  points.   The  judge saw  the            witnesses on the stand and had the opportunity to weigh their            credibility.  See Fed. R. Civ. P. 52(a).                          ___                      Defendants argue  that the district court  erred in            finding that defendants  deceptively failed  to disclose  the            Aquatech  report.  Defendants  assert that the non-disclosure            claim  is  an  impossibility  here  because  plaintiffs   had            knowledge  prior to buying  the farm about  the very document            the  defendants  are  accused  of failing  to  disclose,  the            Aquatech report.  This  knowledge, the defendants essentially            argue,  is based on either of two alternate theories.  First,            defendants assert that  plaintiffs had  imputed knowledge  of            the  report: their  agent MacKenzie  knew about  the Aquatech            report through  a newspaper article and  that knowledge could            be imputed  to the  plaintiffs.10  Second,  defendants assert            that the plaintiffs had constructive knowledge: MacKenzie had            faxed   a  copy  of  the  article  to  Roche  (a  week  after            plaintiffs' offer was accepted),  and Roche's knowledge could            be  assumed, without  relying on  an agency  theory (although                                            ____________________            10.  Defendants  rely on  DeVaux v.  American Home  Assurance                                      ______     ________________________            Co.,  444 N.E.2d  355, 358  (Mass.  1983), and  several other            ___            cases for this agency theory.                                         -22-                                          22            Roche did not  read the  article until long  after).11   Even            assuming these  theories  are valid,  defendants  have  still            failed  to  demonstrate  reversible  error.    Prior  to  the            closing, plaintiffs  at most  knew  of the  existence of  the                                                   _________________            Aquatech  report.   Defendants'  deception  here  was in  not            providing plaintiffs  with a copy  of the  report given  that                                       __________            plaintiffs  had  been provided  with  a  copy  of  the  rival                                                  ___________            Aquacare  I report.  Under these facts the district court did            not  err in  finding  that defendants  deceptively failed  to            disclose the Aquatech report.                      Defendants also  argue it  was clear error  for the            district court to conclude that the farm's original investors            pulled out because of the Aquatech report, a conclusion  upon            which the non-disclosure claim rests.  Defendants are correct            that the record does not reveal that the investors pulled out            solely because of the  unfavorable Aquatech report.  However,            ______            the report  clearly  played a  major role  in the  investors'            decision to place  the plant  in receivership.   At the  very            least,  Cramm and  McGinn  knew that  the previous  investors            pulled out just after receiving the Aquatech report, and that            the report played a large role in this decision.  Myers wrote            McGinn on January 4, 1989, saying that both the directors and                                            ____________________            11.  Defendants cite  Chandler v.  Atlas Gen. Indus.,  215 F.                                  ________     _________________            Supp. 617, 618-19 (D. Mass. 1963), for the proposition that a            plaintiff  "cannot close  his eyes  to  the obvious  and then            claim to be deceived."                                         -23-                                          23            the  major  shareholders thought  it  was  wrong to  continue            operations  after receiving the  information in  the Aquatech            report as to the expected tonnage.  There is no clear error.                      Plaintiffs,  in turn, challenge certain findings of            non-deception  as clearly  erroneous.   They  argue that  the            ___            advertisement  placed  by  Cramm  was  deceptive  because  it            described the farm as  a "going concern."  A  "going concern"            is "[a]n enterprise which  is being carried on as a whole and            with some  particular object in view" or "an existing solvent            business, which is being conducted in  the usual and ordinary            way  for which it was organized."  Black's Law Dictionary 691                                               ______________________            (6th ed. 1990).   The district court determined that  the use            of  the   term  "going  concern"  here   was  not  deceptive.            Plaintiffs  rely  entirely on  Dr.  Smith's  findings in  the            Aquatech  report in asserting on appeal that the farm was not            a  "going concern."  In  Dr. Smith's opinion, say plaintiffs,            the farm's pumping system was incapable of operating properly            at optimum levels and the farm was, as a general matter,  not            state-of-the-art.                      Plaintiffs' charge  of error fails on  two grounds.            First,  Dr. Smith  is  one aquaculture  expert among  several            whose conflicting  views about the farm became  known in this            case.  Indeed, this is the very reason his report should have            been available  to the plaintiffs:   the plaintiffs  had been            given  a different  report  by a  competing aquaculture  firm                                         -24-                                          24            which expressed a  far rosier view  of the farm's  operations            and   production  capacity.     While  the  plaintiffs'  non-            disclosure  claim  is  rooted  in  the  variety  of  opinions            available  about  the viability  of  the  farm, their  "going            concern" argument presents Dr.  Smith's opinion as the single            truth.   But most damaging to  plaintiffs, Dr. Smith's report            never  suggested, let alone stated,  that the farm  was not a            "going concern."  His report  indicates only his belief  that            the farm was more poorly designed, and consequently a riskier            investment, than its designers thought.12                      Finally, that the farm ultimately failed (and thus,            presumably could not properly have been described as a "going            concern"  at some point during its decline) is not proof that            it was  doomed to failure at  the time the ad  was placed, at            the  start of  the  receivership.   Indeed,  implicit in  the            plaintiffs' overall case  is a claim that their venture might            not have failed if  the receiver had managed the  farm better            during  the term of the receivership and if the selling price            better reflected the actual  value of the assets.   Precisely            because the value and production capacity of the farm were so            hotly disputed at trial, the judge did not commit clear error            in finding  that the farm was  a "going concern" at  the time                                            ____________________            12.  Plaintiffs also claim  that the  farm was  not a  "going            concern" because it fell short of Amy Hunter's  definition of            "going concern."  Amy  Hunter's definition of "going concern"            need not have been adopted by the court.                                         -25-                                          25            the  Globe ad was placed.   The farm's  ultimate failure does                 _____            not change this.13                      These factual findings lead to the question whether            the  deception  occurred   primarily  and  substantially   in            Massachusetts.  Contrary  to the standard burden  of proof on            jurisdictional questions, here the burden is on defendants to                                                            __________            show   that   their   misconduct   occurred   primarily   and            substantially outside  Massachusetts.    Mass. Gen.  Laws ch.                          _______            93A,    11; Compagnie de Reassurance d'Ile de France, 57 F.3d                        ________________________________________            at  90; see Gilleran, supra,   3:16,  at 65.  This is because                    ___           _____            "   11 provides an exemption from 93A liability, available as            a  defense, rather  than  a  jurisdictional  prerequisite  to            suit."   Kansallis Fin. Ltd. v.  Fern, 40 F.3d  476, 481 (1st                     ___________________     ____            Cir. 1994).  The  district court's conclusion that defendants            satisfied this  statutory burden is  one of law,  reviewed de                                                                       __            novo.  Compagnie de  Reassurance d'Ile de France, 57  F.3d at            ____   _________________________________________            90; Clinton Hospital, 907 F.2d at 1264.                ________________                      In Clinton  Hospital, this  court  read the  sparse                         _________________            body of  Massachusetts precedent as support  for a pragmatic,            functional  approach  for   determining  whether   actionable            misconduct    occurs    primarily   and    substantially   in            Massachusetts.    The Clinton  Hospital  court  distilled the                                  _________________                                            ____________________            13.  Similarly,   plaintiffs'   assertions   that   the   two            information packets were deceptive also fail. These arguments            bootstrap on  the argument about  the ad, since  the packets,            say plaintiffs, are deceptive  because they describe the farm            as a "going concern."                                         -26-                                          26            approach  down to  three basic  factors: (1)  where defendant            committed the deception; (2) where plaintiff was deceived and            acted upon  the deception; and  (3) the situs  of plaintiff's            losses due  to the deception.  Id.  at 1265-66.  The district                                           ___            court, applying  the Clinton  Hospital factors to  this case,                                 _________________            reasoned  that  the  deception here  occurred  primarily  and            substantially in Canada.                      This court has previously recognized that the first            factor  is the least weighty of the three factors.  Compagnie                                                                _________            de  Reassurance  d'Ile  de France,  57  F.3d  at 90;  Clinton            _________________________________                     _______            Hospital,  907 F.2d at 1265-66.  The district court was aware            ________            of this and ruled  that the first factor weighed  against the            plaintiffs because most of the defendants' misrepresentations            and deceptive acts were committed in Canada.  This is plainly            correct.   Indeed, the district court  understated the point:            all the misrepresentations occurred in Canada.  Nevertheless,            ___            plaintiffs argue on appeal  that the "clear preponderance" of            defendants'  deceptive  conduct  occurred  in  Massachusetts.            This  argument, however, is premised on a certain set of acts            which the  district  court  did  not  consider  part  of  the            deception.   Specifically, plaintiffs assert that  the Boston                                                                   ______            Globe  ad and  the  two information  packets were  deceptions            _____            which  defendants  committed  in  Massachusetts.     But  the            district  court did  not err in  finding that the  ad and the            packets were not misleading.                                         -27-                                          27                      As to the non-disclosure of the Aquatech report and            the  Aquacare IV report,  there is a  metaphysical dilemma in            ascertaining where this  occurred.  The very  problem is that            disclosure did not  occur.  The  district court read  Clinton                           ___                                    _______            Hospital as support for  the proposition that  non-disclosure            ________            occurs where the defendant who fails to disclose  is located.            This was  obviously Canada.   But  Clinton Hospital does  not                                               ________________            answer this  question.   Where the defendants'  obligation to            disclose  certain  documents  arose  out  of their  voluntary            disclosure  of  other  documents,  and  where  the   parties'            dealings were fairly  evenly split between two places,  it is            most  reasonable to  say  that  the  non-disclosure  occurred            equally  in both  places.    However,  since all  the  actual            misrepresentations,  as  detailed  above, were  made  by  the            defendants in Canada, the first Clinton Hospital factor still                                            ________________            weighs  in  favor  of   defendants.14    The  district  court            concluded,  and we agree,  that the  bulk of  the defendants'            unfair and deceptive acts and omissions were in Canada.                      The  second Clinton  Hospital  factor  requires  an                                  _________________            analysis  of where the plaintiffs received and acted upon the            deceptive or unfair acts or practices.  As the district court            properly  recognized,  this  factor,  though  framed  by  the                                            ____________________            14.  That  some  of  the  misrepresentations,  while made  in            Canada, were  received in  Massachusetts, will  be considered            with  respect to the  second Clinton Hospital  factor, but is                                         ________________            not relevant here.                                         -28-                                          28            Clinton Hospital  court as  a single factor,  really requires            ________________            two distinct inquiries.                      As to where the plaintiffs received the  deception,            the district  court concluded that it was  primarily Canada.             In coming  to this decision,  the court declined  to consider            the  misleading statements  made by  McGinn to  Hunter during            their  telephone  conversation  because  the  district  court            believed Hunter "was not acting as an agent of the plaintiffs            when  she received  the  misrepresentation, and  there is  no            evidence  she relayed  any of  the misrepresentations  to the            plaintiffs."   Plaintiffs  complain  the court  erred in  not            including this  telephone conversation as a  deception.  This            is an  arguable issue, but we resolve  it against plaintiffs.            In terms of strict  agency law, Hunter was acting  for Boston            Private, not for plaintiffs,  when she made the call.   There            is no evidence  that Hunter told McGinn or Cramm that she was            calling on  Roche's  behalf or  that she  would transmit  the            information to Roche.   Thus, while there was a  deception of            Hunter, it was not of plaintiffs.  As to the district court's            second rationale -- that  no misrepresentations were conveyed            by Hunter to plaintiffs -- it is inapplicable on these facts.            McGinn  concealed  from Hunter  the  very  information which,            Hunter testified, she  would have relayed to  Roche if McGinn                                   _____ ____            had been more forthcoming.                                         -29-                                          29                      The  only  other   misrepresentation  received   in            Massachusetts was the Yorston  fax, which, under the district            court's own  evidentiary rulings,  may be considered  in this            analysis.   On  the other hand,  there were  three misleading            statements  made  by  the  defendants  and  received  by  the            plaintiffs in  Canada during  the plaintiffs'  initial visits            there.   And, as discussed  above, the defendants' failure to            disclose was, for these  purposes, received by the plaintiffs            equally in Massachusetts and  Canada, as the parties' overall            dealings  were  evenly  divided  between  those  two  places.            Therefore, while  the plaintiffs  received  the deception  in            both places, we  agree with the district  court that slightly            more of it was received in Canada.15                      The second Clinton Hospital factor also requires us                                 ________________            to  examine  where  plaintiffs  acted   upon  the  deception.            Indeed, in Clinton Hospital,  this court recognized that "the                       ________________            critical  factor  is  the  locus  of  the  recipient  of  the            deception at  the time of  reliance."  Clinton  Hospital, 907                                                   _________________            F.2d at 1265-66; see  also Compagnie de Reassurance  d'Ile de                             ___  ____ __________________________________            France,  57 F.3d at 90.  Under varying circumstances this may            ______            or may not be the same place as the place where the plaintiff                                            ____________________            15.  As with the  first Clinton  Hospital factor,  plaintiffs                                    _________________            urge us  to frame the  deception broadly enough  to encompass            the  description  of the  farm as  a  "going concern"  in the            Boston  Globe ad and in  the two information  packets, all of            ______  _____            which plaintiffs  obviously received in  Massachusetts.   For            reasons expressed above, we will not do so.                                         -30-                                          30            received the  deception.  Here, the  district court concluded            that the plaintiffs' actions  in reliance were evenly divided            between Massachusetts,  where they negotiated  a loan secured            by Massachusetts  properties, and Canada, where  they hired a            lawyer and  accountant and  formed a Canadian  corporation to            purchase  the farm,  and  that this  sub-factor thus  favored            neither party.                      The  district  court thus  concluded that  the two-            faceted  second factor,  like  the first  factor, weighed  in            favor of Canada, and consequently in favor of the defendants.            We agree.                      The third Clinton Hospital  factor is the  location                                ________________            of  the  loss.    The  parties  advance  radically  different            conceptions of  the loss  here.   Plaintiffs assert  that the            loss was the loss of the Massachusetts property  that secured            the Boston Private loan and that was ultimately foreclosed on            when  the  plaintiffs  defaulted  on the  loan.    Defendants            conceive  of the  loss as  the  loss of  the money  which was            invested in the farm in Canada.                      The   district   court   adopted  the   plaintiffs'            definition.   The court's  reasoning was  heavily influenced,            perhaps  even mandated, by its earlier ruling on the scope of            the damages which plaintiffs would be allowed to seek in this            action.     In  that  earlier  ruling,   the  court  rejected            defendants'  argument that the plaintiffs as individuals were                                         -31-                                          31            not the real parties in interest in this case by defining the            alleged losses narrowly, allowing plaintiffs to seek recovery            only of  losses they incurred personally  in capitalizing the            corporation and not those  losses suffered by the corporation            in Canada.  The  district court felt obligated, for  the sake            of consistency, to  use the  same conception of  the loss  in            this  context.   The  court  thus concluded  that  this third            factor favored the plaintiffs.  We agree.                      The  district court balanced  the three factors and            found that defendants -- in whose favor the first two factors            weighed -- had met their burden of proving that the deception            had    occurred    primarily   and    substantially   outside            Massachusetts.  Although  the pragmatic, functional  analysis            is  not  necessarily limited  to  the  three factors,  it  is            significant that two of the three identified factors weigh in            favor of the  defendants here.  Cf. Central Mass. Television,                                            ___ _________________________            Inc. v. Amplicon, Inc.,  930 F. Supp. 16, 27 (D.  Mass. 1996)            ____    ______________            ("[W]hen  'place of  injury' is  the only factor  weighing in            favor of  a claimant, the admonition  of Massachusetts courts            that liability under chapter 93A is not to be imposed lightly            is particularly relevant.").                                         III.                      Defendants moved, after trial, for  attorneys' fees            in the  sum of $ 865,000.   The district court,  in a written            memorandum, denied this motion.  Defendants appeal.                                         -32-                                          32                      The district court first noted  the dispute between            the parties over whether United States or Canadian law should            apply  to the  fee-shifting claim.   Then,  assuming arguendo                                                                 ________            that  Canadian law  applied, as  defendants urged,  the court            interpreted  Canadian  law  to  grant  judges  "absolute  and            unfettered" discretion in attorneys' fees claims.  Exercising            this discretion, the district  court determined that an award            of  fees  would  be  "inequitable"   because  of  defendants'            intentional misconduct, and it denied the motion.                      Defendants base their argument -- one wholly  based            on Canadian substantive law -- on the underlying premise that            Canadian  substantive  law  applies  to  the  entire  dispute            between the parties.   They  make no argument  that they  are            entitled  to  fees under  Massachusetts  law.   The  district            court,  however,  rejected  the  defendants'  choice  of  law            position,  applying  Massachusetts  law  to  the  plaintiffs'            chapter 93A  claim.   The  court  consulted Canadian  law  in            considering, and  disposing of,  the claim  for  the sake  of            argument  only.  It is  unnecessary to resolve  the choice of            law  issue,  as the  denial  of  attorneys'  fees was,  under            Canadian law, well within  the trial court's discretion given            the circumstances of this case.                      Defendants unsuccessfully argue  that the  district            court  overestimated  the  degree  of  discretion  enjoyed by            Canadian courts in the  fee-shifting context.  Under Canadian                                         -33-                                          33            law,  "[a] successful litigant has by law no right to costs."            Orkin, The  Law of  Costs    202.1, at 2-3  (2d ed.  1993).16                   __________________            "Although  [the successful  litigant]  may have  a reasonable            expectation  of receiving  [costs], this  is subject  to what            some cases  have termed  the court's absolute  and unfettered            discretion to award or withhold costs."  Id.  This discretion                                                     ___            is "to be  exercised according to  the circumstances of  each            particular case."  Id.                                ___                      Defendants also  argue  that the  court abused  its            discretion by basing its  denial of fees on its  finding that            defendants'  conduct was  violative of  chapter  93A.    They            claim  that  Massachusetts  law  is  irrelevant  to  Canadian            attorney fee determinations and  thus that the district judge            erred   in  considering   conduct  that   was  violative   of            Massachusetts  law.    Defendants misapprehend  the  district            court's  reasoning.   The  point  is that  their  conduct was            wrongful, not  that  it violated  a particular  statute.   In            ________            denying the  motion, the  court noted that  "defendants acted            intentionally   to   withhold   material   information   from            plaintiffs."  Chapter  93A was merely the lens  through which            the court examined defendants' conduct.  Certainly, under the            broad discretion Canadian law  accords judges in attorney fee                                            ____________________            16.  The term  "costs," as used in  Canadian law, encompasses            attorneys' fees.  See id.   201, at 2-1.                              ___ ___                                         -34-                                          34            determinations, the district  judge was entitled to  consider            this misconduct.                      Defendants  prevailed  on  plaintiffs' chapter  93A            claim  because they successfully asserted that the misconduct            occurred primarily and  substantially outside  Massachusetts.            Their  motion  for attorneys'  fees  was  denied because  the            district court, exercising its  discretion, believed it would            be  inequitable  to  award  fees to  parties  whose  wrongful            conduct  had been  established  at trial.    It was  entirely            proper, in this context,  for the district judge  to consider            defendants'   intentional   misconduct   in   deceiving   the            plaintiffs as  a circumstance militating against  an award of            fees.                                         IV.                      For the reasons  expressed above,  the judgment  of            the district court in  favor of defendants and the  denial of            defendants' post-trial  motion for attorneys'  fees are  both            affirmed.  Parties to bear their own costs.            ________                                         -35-                                          35
