          United States Court of Appeals
                       For the First Circuit


No. 15-1987

                           SIOBHAN WALSH,

                       Plaintiff, Appellant,

                                 v.

                       TELTECH SYSTEMS, INC.,

                        Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Rya W. Zobel, U.S. District Judge]


                               Before

                    Kayatta, Stahl, and Barron,
                          Circuit Judges.


     Richard B. Reiling for appellant.
     Mark C. Del Bianco, with whom Law Office of Mark C. Del
Bianco, Sean T. Carnathan, Joseph P. Calandrelli, and O'Connor
Carnathan & Mack LLC were on brief, for appellee.


                            May 2, 2016
              BARRON, Circuit Judge.          This case concerns a prepaid

minutes-based calling service -- named SpoofCard -- that allows

customers to disguise the phone number from which they place calls.

In 2009, a customer used that service to disguise her identity so

that   she    could   make   it   seem    like   someone   else   was   sexually

harassing the appellant.          The appellant sued the provider of that

service, TelTech Systems, Inc. ("TelTech"), under Massachusetts's

consumer protection statute.             The District Court granted summary

judgment for the company on the ground that no reasonable jury

could find that TelTech caused the appellant's injuries.                     We

affirm.

                                         I.

              "On review of an order granting summary judgment, we

recite the facts in the light most favorable to the nonmoving

party."      Commodity Futures Trading Comm'n v. JBW Capital, 812 F.3d

98, 101 (1st Cir. 2016) (quotation marks and citation omitted).

As TelTech was the moving party, we recite the facts in the light

most favorable to the appellant, Siobhan Walsh.

              TelTech's   SpoofCard      service   enables   customers,     when

placing phone calls, to "spoof" or disguise their caller ID by

selecting the number they would like to appear on recipients'

caller ID screens.        That service also permits customers to alter

their voices -- for example, by making a woman's voice sound like

a man's voice -- in the course of a call.                  And, finally, that


                                      - 2 -
service provides for a means to ensure that calls are recorded and

stored.

              The events that gave rise to the current suit relate to

a particularly ugly -- but, the record sadly indicates, by no means

altogether unusual -- use of the SpoofCard service.                  In January

2009, Walsh lived in an apartment complex in Quincy, Massachusetts.

John Luciano lived in that same complex.           Luciano worked as a chef

at a local restaurant.          He was acquainted with a man by the name

of Michael DiLorenzo, who was married to a woman by the name of

Johnienne DiLorenzo.

              Johnienne had once worked at Luciano's restaurant, and

Luciano had helped her to get the job.           But Luciano testified that

he fired Johnienne because "she kept screwing it up" and "showing

up late."     Johnienne testified that, in fact, she quit the job due

to unwanted sexual advances from Luciano.

              What matters for present purposes is that one night,

after Johnienne had been fired by Luciano, she was at a party when

she   overheard     her   friends   discussing    SpoofCard.     Johnienne's

friends told her about the SpoofCard website and demonstrated how

SpoofCard worked by calling each other's phones and using the

SpoofCard features.        Johnienne later told her husband, Michael,

about SpoofCard.

              On January 15, 2009, one of the DiLorenzos -- it is not

clear   who    --   purchased    SpoofCard   minutes   from    the    SpoofCard


                                     - 3 -
website.     On January 28, 2009, Johnienne made six phone calls to

Walsh using SpoofCard to mimic a man's voice and to make it appear

as if the calls were placed using Luciano's telephone number.

             In those calls, Johnienne -- posing as Luciano -- made

a series of sexually harassing comments to Walsh.            Through the use

of the SpoofCard service, the January 28 phone calls between

Johnienne    and   Walsh   were   recorded   without       Walsh's    consent,

potentially in violation of Mass. Gen. Laws ch. 272, § 99 ("Chapter

272, § 99"), which, among other things, proscribes the recording

of phone conversations without the consent of each party to the

call.

             Walsh,   believing   that   Luciano     had   made   the    calls,

reported Luciano to the Quincy Police Department later that same

day.    Luciano was arrested on the evening of January 28, 2009, on

charges of criminal threatening and criminal harassment.                Luciano

spent several days in jail.

             On February 2, 2009, Walsh received several voicemails

from    a   blocked   number.     The    voicemail    messages       threatened

retaliation if Walsh did not drop the charges against Luciano.

Walsh believed these calls, too, came from Luciano, and the

confusion about the source of the calls ultimately led authorities

to bring felony witness intimidation charges against Luciano.               As

a result of these events, Walsh moved out of her apartment and

quit a job working at the Boston Garden.


                                   - 4 -
                According       to   Walsh's   complaint,    the   DiLorenzos,   on

December 4, 2009, admitted to Quincy police that they called Walsh

on January 28, 2009, and that they made it appear as if the call

were coming from Luciano's phone number.                 The Assistant District

Attorney,        according      to   Walsh,    thereafter   dropped   the   charges

against Luciano and pursued charges against the DiLorenzos for

criminal harassment, criminal threatening, witness intimidation,

and misleading a police officer.

                On December 2, 2013, Walsh filed a complaint against

TelTech in the United States District Court for the District of

Massachusetts.         Walsh alleged that TelTech engaged in a number of

"unfair and deceptive acts and practices" in violation of Mass.

Gen. Laws ch. 93A, § 2 ("Chapter 93A").                     In particular, Walsh

alleged that TelTech violated Chapter 93A by violating Chapter

272,       §   99,   and   by    "offer[ing]    the   SpoofCard    service"   while

"encourag[ing] [the] use of the SpoofCard for illegal purposes"

(as evidenced by the promotional material on SpoofCard's website).1

For relief, Walsh requested compensatory damages (in the amount of

$5 million), treble damages, punitive damages, disgorgements of

profits from the sale of the SpoofCard service, and attorneys'




       1
       Walsh also alleged that TelTech violated a number of other
Massachusetts statutes, such as Mass. Gen. Laws ch. 266, § 37E
(prohibiting identity theft), and that these violations each
constituted a violation of Chapter 93A. But Walsh does not make
any argument on appeal regarding these other theories of liability.


                                          - 5 -
fees and costs under Chapter 93A, as well as an injunction against

the future sale and promotion of SpoofCard.

            On January 30, 2015, TelTech filed a motion for summary

judgment.    Walsh filed a memorandum opposing TelTech's motion on

February 25, 2015.     On March 19, 2015, Walsh filed a motion for

leave to file a sur-reply.

            On July 30, 2015, the District Court granted TelTech's

motion for summary judgment.       The District Court held that no

reasonable jury could find that TelTech's actions caused Walsh's

injuries.    The District Court found that the offering of the

service alone could not give rise to liability under Chapter 93A,

because spoofing has legitimate purposes.      And the District Court

found that the promotional material on TelTech's website could not

give rise to liability under Chapter 93A because there was no

evidence that the DiLorenzos viewed that material, much less that

the DiLorenzos were influenced by it.     Finally, the District Court

denied Walsh's motion for leave to file a sur-reply, in part

because Walsh gave the court no reason to deviate from its rule

disfavoring the filing of sur-replies.

            On appeal, Walsh makes two main arguments as to how the

District Court erred.     First, Walsh contends that the District

Court   failed   to   address   Walsh's   contention   that   TelTech's

violation of Chapter 272, § 99, constituted a violation of Chapter

93A.    Second, Walsh contends that the District Court erroneously


                                 - 6 -
disposed of her remaining Chapter 93A claims on causation grounds.

We take up each of these contentions in order.2

                               II.

          Because we are reviewing an award of summary judgment,

we may affirm "only if we, like the District Court, conclude that

'the record shows there is no genuine dispute as to any material

fact and the moving party is entitled to judgment as a matter of

law.'"   McCue v. Bradstreet, 807 F.3d 334, 340 (1st Cir. 2015)

(quoting McGrath v. Tavares, 757 F.3d 20, 25 (1st Cir. 2014)).   We

review "de novo, drawing all reasonable inferences in favor of the

nonmoving party while ignoring conclusory allegations, improbable

inferences, and unsupported speculation."   Id. (quoting Shafmaster

v. United States, 707 F.3d 130, 135 (1st Cir. 2013)).


     2 Walsh also contends that the District Court abused its
discretion in denying Walsh's motion for leave to file a sur-
reply. But we see no basis for concluding that the District Court
abused its discretion in this regard.     When granting TelTech's
motion for summary judgment, the District Court refrained from
relying on any new arguments TelTech set forth in its reply brief
(to the extent any arguments in the brief could be construed as
"new"). See Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1164
(10th Cir. 1998) (noting that district courts do not abuse their
discretion in precluding sur-replies when they "refrain[] from
relying on any new material contained in the reply brief").
Moreover, Walsh gave the District Court no reason to overlook her
failure to make in her memorandum opposing TelTech's motion for
summary judgment the argument she intended to make in sur-reply.
And no such reason is apparent to us, as Walsh had notice and a
reasonable opportunity to make that argument by the time she filed
her opposing memorandum.     See id. at 1164-65 (noting that,
consistent with the purposes of Fed. R. Civ. P. 56(c), nonmovants
are entitled to notice and reasonable opportunity to respond to
the movant's summary judgment materials).


                              - 7 -
                                              III.

               Chapter   93A     is       a     broad,     Massachusetts          consumer

protection statute.        A plaintiff seeking relief under Chapter 93A

must prove that the defendant engaged in "unfair or deceptive acts

or practices in the conduct of any trade or commerce."                          Mass. Gen.

Laws ch. 93A, § 2.

               Under Chapter 93A, an act or practice is unfair if it

falls "within at least the penumbra of some common-law, statutory,

or     other    established     concept          of   unfairness";        "is     immoral,

unethical, oppressive, or unscrupulous"; and "causes substantial

injury to consumers."           PMP Assocs. v. Globe Newspaper Co., 321

N.E.2d 915, 917 (Mass. 1975) (quoting 29 Fed. Reg. 8325, 8355

(1964)).       To rise to the level of an "unfair" act or practice, the

defendant's      conduct   must       generally       be   of   an   egregious,       non-

negligent nature.        See Baker v. Goldman, Sachs & Co., 771 F.3d 37,

51 (1st Cir. 2014).            Under Chapter 93A, an act or practice is

deceptive "if it possesses a tendency to deceive" and "if it could

reasonably be found to have caused a person to act differently

from the way he [or she] otherwise would have acted."                         Aspinall v.

Philip Morris Cos., Inc., 813 N.E.2d 476, 486-87 (Mass. 2004)

(alteration in original) (quotation marks and citations omitted).

               The Massachusetts Supreme Judicial Court ("SJC") has

held    that    "causation     is     a   required       element     of   a     successful

[Chapter] 93A claim."           Id. at 491.            To establish causation, a


                                          - 8 -
plaintiff must "prove that the defendant's unfair or deceptive act

caused an adverse consequence or loss."           Rhodes v. A.I.G. Domestic

Claims, Inc., 961 N.E.2d 1067, 1076 (Mass. 2012).                  A plaintiff's

failure   to    establish   both      factual    causation     and     proximate

causation is fatal to her Chapter 93A claim.                 See Hershenow v.

Enterprise Rent-A-Car Co. of Bos., Inc., 840 N.E.2d 526, 535 (Mass.

2006); McCann v. Davis, Malm & D'Agostine, 669 N.E.2d 1077, 1079

(Mass. 1996).

           Walsh sets forth a number of theories as to how TelTech

violated Chapter 93A.       We first consider Walsh's contention that

TelTech is liable under Chapter 93A because TelTech violated an

independent statute, Chapter 272, § 99.               We then consider Walsh's

several contentions that TelTech is liable under Chapter 93A

because TelTech proximately caused the injuries Walsh suffered

from the harassing nature of the January 28 calls.

                                      A.

           Walsh contends that "the District Court erred by failing

to consider [Walsh's] 93A claim based on [TelTech's] purposeful

violation of [Chapter 272, § 99]," even though Walsh set forth

that   theory   of   liability   in    both     her    complaint    and   in   her

memorandum opposing TelTech's motion for summary judgment.                We may

affirm the District Court's grant of summary judgment, however, on

any ground made manifest by the record, including one not reached

by the District Court.       See Peabody Essex Museum, Inc. v. U.S.


                                   - 9 -
Fire Ins. Co., 802 F.3d 39, 43 (1st Cir. 2015).   And we do so here

on the ground that Walsh has failed to identify an injury arising

from any alleged violation of Chapter 272, § 99, that is distinct

from the alleged violation itself.3

          Walsh, relying on Leardi v. Brown, 474 N.E.2d 1094 (Mass.

1985), contends that she is entitled to recover at least nominal

damages under Mass. Gen. Laws ch. 93A, § 9(3), by virtue of

TelTech's violation of Chapter 272, § 99. Walsh appears to contend

that TelTech violated Chapter 272 in two respects, as she refers

to both Mass. Gen. Laws ch. 272, § 99(C), which prohibits secret

recordings of phone calls without the consent of all the recorded

parties, and Mass. Gen. Laws ch. 272, § 99(3)(A), which prohibits

the use of information obtained via such secret recordings.

          The problem for Walsh is that the SJC has recently made

clear that the violation of an independent statute such as Chapter

272, § 99, does not itself "satisf[y] the injury requirement of c.


     3 We assume without deciding that a claim premised on a
violation of Chapter 272, § 99 is actionable under Chapter 93A,
notwithstanding that that provision has its own civil action and
civil remedies provision, see id. § 99(Q), and is part of a complex
regulatory scheme.   See Reiter Oldsmobile, Inc. v. Gen. Motors
Corp., 393 N.E.2d 376, 378 (Mass. 1979); Cabot Corp. v. Baddour,
477 N.E.2d 399, 402 (Mass. 1985). But see 940 Mass. Code. Regs.
§ 3.16(3); MacGillivary v. W. Dana Bartlett Ins. Agency of
Lexington, Inc., 436 N.E.2d 964, 969 (Mass. App. Ct. 1982). We
also assume without deciding that TelTech violated Chapter 272,
§ 99, either as a principal or as an aider and abettor, and that
TelTech's conduct otherwise satisfies the requirements of Chapter
93A, § 2. See McDermott v. Marcus, Errico, Emmer & Brooks, P.C.,
775 F.3d 109, 120 (1st Cir. 2014).


                              - 10 -
93A, § 9," and thus does not "automatically entitle[] the plaintiff

to at least nominal damages (and attorney's fees)" under Chapter

93A.   Tyler v. Michael Stores, Inc., 984 N.E.2d 737, 744-45 (Mass.

2013) (clarifying the scope of Leardi).              Rather, "a plaintiff

bringing an action . . . under c. 93A, § 9, must allege and

ultimately prove that she has, as a result [of the statutory

violation], suffered a distinct injury or harm that arises from

the claimed unfair or deceptive act." Id. at 745 (emphasis added).

            In    Tyler,     the   plaintiff   accused   the   defendant   of

violating a statute, Mass. Gen. Laws ch. 93, § 105 ("§ 105"), that

prohibits        companies     from     writing    customers'     "personal

identification information" on credit card transaction forms when

the credit card issuer does not require the company to provide

such information.          Tyler, 984 N.E.2d at 738 & n.1.          The SJC

explained that if the company, as a result of a violation of § 105,

"use[d] the [personal identification] information for its own

business purposes," such as "by sending the customer unwanted

marketing materials or by selling the information for a profit,"

the company would "ha[ve] caused the consumer an injury that [wa]s

distinct from the statutory violation itself and [thus] cognizable

under G.L. c. 93A, § 9."           Id. at 746.    But the SJC went on to

explain that if, by contrast, the company had placed the personal

information in a file "and never used the information for any

purpose thereafter, a consumer would not have a cause of action


                                      - 11 -
for damages" under Mass. Gen. Laws ch. 93A, § 9(3), even though

the employer may have violated § 105 and thereby infringed on the

customer's privacy.   Id. at 746 n.17.

          Walsh does not address Tyler and thus makes no developed

argument that she suffered a distinct injury within the meaning of

that case.   The closest she comes to making such an argument is

when she asserts that TelTech "presumably" utilized the January 28

recordings as part of its "prank calls app."      TelTech's "prank

calls app" feature permitted users to listen to randomly selected

recorded calls made by SpoofCard customers.   But Walsh provided no

evidence to support her bare assertion that TelTech used the

recordings in connection with this feature.      Because Walsh has

failed to create a genuine issue of material fact as to whether

she suffered a "distinct injury," Tyler, 984 N.E.2d at 746, we

affirm the District Court's award of summary judgment on the

Chapter 93A claim to the extent that claim is premised on TelTech's

alleged violation of Chapter 272, § 99.4

                                B.

          Walsh next contends that the District Court erred by

ruling that TelTech was not liable under Chapter 93A for the




     4 Walsh argues for the first time in her reply brief that she
suffered emotional distress damages as a result of TelTech's
alleged violation of Chapter 272, § 99, and thus any argument along
those lines is waived. See N. Am. Specialty Ins. Co. v. Lapalme,
258 F.3d 35, 45 (1st Cir. 2001).


                              - 12 -
injuries Walsh suffered due to the harassing nature of the calls

that Johnienne made using the SpoofCard service.        Here, too, we

affirm.

          Walsh initially contends there is a genuine issue of

material fact as to whether Johnienne viewed certain promotional

material on the SpoofCard website.         Walsh contends that such

material encouraged customers to engage in illegitimate uses of

the SpoofCard service.    Walsh bases her contention regarding what

the record shows about what material Johnienne saw on the fact

that Johnienne testified that she could not recall what, if

anything, she saw on the SpoofCard website.       Walsh then contends

that if a reasonable jury could find that Johnienne viewed the

offending promotional material, then a reasonable jury could also

find that TelTech caused Walsh's injuries.

          The District Court supportably found, however, that

there was insufficient evidence to permit a reasonable jury to

find   that   the   DiLorenzos   viewed   the   offending   promotional

material -- that is, there was insufficient evidence that, in the

course of purchasing the SpoofCard service, the DiLorenzos would

have been exposed to the webpages on which such promotional

material appeared.    These findings are in no way contradicted by

the testimony Johnienne gave about her limited recollection of

what, if anything, she saw on the SpoofCard website.          For that

reason, we agree with the District Court that Walsh has failed "to


                                 - 13 -
present definite, competent evidence" from which a jury could

reasonably infer that Johnienne viewed the offending material.

Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir.

1992). We thus affirm the District Court's summary judgment ruling

with respect to this theory of liability.

           Walsh also contends that TelTech ought to be held liable

under Chapter 93A, apparently on a "deceptive" practices theory,

for failing to disclose the legal risks of using the SpoofCard

service as Johnienne did.        See 940 Mass. Code Regs. § 3.16(2)

(stating that a person may be held liable under Chapter 93A for

failing to disclose to a buyer "any fact, the disclosure of which

may have influenced the buyer . . . not to enter into the

transaction").    In that connection, Walsh asserts that Johnienne

would not have made the January 28 calls to Walsh if TelTech had

disclosed the risks of engaging in the conduct at issue here.

           The District Court did not expressly address Walsh's

"failure to disclose" theory.         But Walsh has failed to develop an

argument to support such a theory.          For example, Walsh does not

address whether TelTech was under an obligation to disclose the

risks to Johnienne, whom the record shows may not have even

purchased the SpoofCard service. Similarly, Walsh does not address

whether reliance on the absence of a disclosure of this sort would

have been reasonable.    See Edlow v. RBW, LLC, 688 F.3d 26, 39 (1st

Cir.   2012).    Nor   does   Walsh    address   how   TelTech's   terms   of


                                  - 14 -
service    --   which   contained   legal    disclaimers    and   which   the

uncontroverted evidence in the record shows were accepted by the

purchaser of the SpoofCard service -- bears on the matter.            Walsh

merely asserts that disclosure to Johnienne would have prevented

the injurious conduct from occurring.         We thus affirm the District

Court's award of summary judgment with respect to that theory as

well.   See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)

("[I]ssues adverted to in a perfunctory manner, unaccompanied by

some effort at developed argumentation, are deemed waived.").

            Finally, Walsh contends that TelTech ought to be held

liable under Chapter 93A, apparently on an "unfair" practices

theory, for designing SpoofCard and promoting it "in the exact

manner for which" Johnienne used the service.              In pressing this

theory of liability, Walsh appears to contend that TelTech's

liability under Chapter 93A does not depend on the DiLorenzos'

having seen the promotional material on TelTech's website.

            In so contending, Walsh may mean to argue that SpoofCard

can only be used illegitimately and thus that Walsh's injuries

were necessarily proximately caused by the mere offering of the

SpoofCard service, without regard to how TelTech promoted the

service.    To the extent that is Walsh's contention, we agree with

the District Court's finding that the record does not support the

factual predicate about the nature of the service on which that

contention would depend.       See Teltech Sys., Inc. v. Bryant, 702


                                    - 15 -
F.3d   232,      238    (5th     Cir.   2012)    (describing         a    Senate     Report

accompanying the federal "Truth in Caller ID Act," which "noted

spoofing's legitimate importance for domestic-violence victims, or

for consumers who wish to provide a temporary call-back number

that   differs      from       their    actual   telephone         number"     and   which

characterized the "federal effort to curtail spoofing" as focused

more narrowly "on persons intending to cause harm through fraud or

criminal mischief").

              Alternatively, Walsh may mean to argue that TelTech's

promotion     of    SpoofCard's         illegitimate      uses     demonstrates        that

TelTech proximately caused Walsh's injuries by not only offering

the service but also by promoting the service as it did, regardless

of whether Johnienne saw the promotional material that TelTech set

forth.      In     other       words,   Walsh    appears      to    contend     that    the

promotional        material       shows     that       Johnienne's        actions      were

reasonably foreseeable to TelTech even if that material did not

cause Johnienne to take action.

              To the extent that is Walsh's contention, we agree with

the    District        Court    that    Walsh    has    not    met       her   burden    of

establishing proximate causation.                  The promotional material to

which Walsh alludes involved references to both illegitimate and

legitimate uses of the SpoofCard service, and TelTech did set forth

the following terms of service to purchasers:




                                          - 16 -
     You agree to use the SpoofCard.com services only for
     purposes that are lawful in the jurisdictions where you
     are calling from and calling to. You shall not transmit
     any unlawful, harmful, threatening, abusive, harassing,
     defamatory, vulgar, obscene, sexually explicit, . . . or
     otherwise objectionable material of any kind, including
     but not limited to any material that . . . violates any
     applicable local, state, national, or international law.

Against that background, Walsh points to no state law authority to

support   the    novel    proposition     that   Chapter    93A's      proximate

causation requirement may be satisfied even absent any connection

between Johnienne's actions and TelTech's promotional material,

which was of a limited nature.        See Velleca, Jr. v. Uniroyal Tire

Co., Inc., 630 N.E.2d 297, 299 (Mass. App. Ct. 1994) (holding that

the defendant was not liable for plaintiff's injuries under Chapter

93A because it was the plaintiff's misuse of defendant's product

that was "the sole cause" of plaintiff's injuries). We thus reject

this ground for reversal as well.          See S. Commons Condo. Ass'n v.

Charlie Arment Trucking, Inc., 775 F.3d 82, 91 (1st Cir. 2014)

(noting that plaintiffs, "having chosen a federal forum to seek

relief that depends at least in part on the meaning of state law,

should not 'expect the federal court to steer state law into

unprecedented     configurations'"        (quoting     Santiago   v.    Sherwin

Williams Co., 3 F.3d 546, 549 (1st Cir. 1993))); Baker, 771 F.3d

at   52   ("If   the     standard   for    ch.   93A     liability      requires

clarification, the SJC can provide it in an appropriate case."

(citing Gill v. Gulfstream Park Racing Ass'n, Inc., 399 F.3d 391,



                                    - 17 -
402 (1st Cir. 2005) ("A federal court sitting in diversity cannot

be expected to create new doctrines expanding state law."))).

                               IV.

            Walsh was the victim of something far worse than a

prank, and she was victimized by use of a service that facilitated

such awful conduct.   But the District Court properly ruled that,

on this record, the provider of that service was entitled to

summary judgment on her state law claim.

          Accordingly, we affirm.




                             - 18 -
