
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          Nos. 95-1146               95-1203                        PAUL F. AHERN, D/B/A AHERN ASSOCIATES,                                Plaintiff - Appellee,                                          v.                                DONALD THOMAS SCHOLZ,                                Defendant - Appellant.                                 ____________________          Nos. 95-1147               95-1204                        PAUL F. AHERN, D/B/A AHERN ASSOCIATES,                                Plaintiff - Appellant,                                          v.                                DONALD THOMAS SCHOLZ,                                Defendant - Appellee.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                _____________________               Donald  S. Engel, with whom  Mark D. Passin,  Engel & Engel,               ________________             ______________   _____________          Lawrence  G. Green, Susan E.  Stenger and Perkins,  Smith & Cohen          __________________  _________________     _______________________          were on brief for Donald Thomas Scholz.               David  C. Phillips, with whom David M. Given and Goldstein &               __________________            ______________     ___________          Phillips were on brief for Paul F. Ahern.          ________                                 ____________________                                     June 4, 1996                                 ____________________                                         -2-                    TORRUELLA, Chief Judge.  The parties in this breach  of                    TORRUELLA, Chief Judge.                               ___________          contract  case, a  successful  musician and  his former  manager,          dispute whether royalties from  record albums have been accounted          for and paid to each other.  The  appeal is from a final judgment          by the district court after a jury trial, disposing of all claims          in respect to all parties.                          BACKGROUND:  A BAND OUT OF BOSTON                          BACKGROUND:  A BAND OUT OF BOSTON                    In this case, the parties dispute many of the facts and          the  inferences to  be drawn  from them.   Thus  we start  with a          sketch of the basic  facts, and address the individual  issues in          more detail  below.   Appellant and cross-appellee  Donald Thomas          Scholz ("Scholz")  is a  musician, composer, and  record producer          who was, and is, a member of the musical group BOSTON ("BOSTON").          In late 1975, Scholz entered into three  agreements with appellee          and cross-appellant Paul F.  Ahern ("Ahern"), who was engaged  in          the business of promoting and managing music groups, and his then          partner,  Charles McKenzie ("McKenzie")  (collectively, the "1975          Agreements").   First,  Scholz  made a  recording agreement  (the          "Recording  Agreement")  with  Ahern  and  McKenzie  d/b/a   P.C.          Productions, to  which Bradley Delp,  the lead singer  of BOSTON,          was  also  a  party.   Second  was  a  management agreement  (the          "Management   Agreement"),   also   between   Scholz   and   P.C.          Productions,  under  which  Ahern  and  McKenzie  were  appointed          Scholz'  exclusive  personal  managers  worldwide.     The  third          agreement  was a  songwriter  agreement made  between Scholz  and                                         -3-          Ahern, under  which Scholz  was  obligated to  furnish Ahern  his          exclusive songwriting services for a period of five years.                    In   early   1976,  CBS   Records  ("CBS")   and  Ahern          Associates, a business name of Ahern and McKenzie, entered into a          recording  agreement  for  the  exclusive  recording  services of          BOSTON.  The group's first album (the "first album") was released          in 1976, and sold approximately  11 million copies -- one  of the          highest-selling debut albums ever.  Its second album (the "second          album") was  released in  August 1978,  and sold  approximately 6          million copies.                    In 1978, Scholz and the other members of BOSTON entered          into a  modification agreement  with Ahern and  P.C. Productions,          dated April 24, 1978.  Among other things, the First Modification          Agreement modified the 1975  Agreements and changed the financial          relationship between Scholz and his managers.  Ahern and McKenzie          dissolved their partnership.  A few  years later, in May of 1981,          Ahern and Scholz, individually  and under various business names,          entered  into  a  further  modification  agreement (the  "Further          Modification  Agreement" or "FMA"), which is at the heart of this          dispute.  Ahern ceased to be Scholz' manager.                    In 1982, with the third album not yet released, CBS cut          off  the payment of royalties generated from the first and second          albums.  In 1983, CBS brought suit against Scholz, Ahern, and the          members of  BOSTON for failure  to timely deliver  record albums.          Scholz'  counsel in  that action  was Donald S.  Engel ("Engel");          Ahern  had his own counsel.   While that  litigation was pending,                                         -4-          the third album  was released by MCA Records  ("MCA") in 1986 and          sold  well over 4 million copies.  At the close of trial -- seven          years  after  the CBS  litigation began  --  the jury  found that          Scholz was not in breach of contract.  Scholz incurred legal fees          of about $3.4 million dollars.                    In February 1991,  Ahern commenced this  action against          Scholz for  breach of the FMA claiming a failure to pay royalties          due under the  third album.  Scholz asserted  various affirmative          defenses and counterclaims against Ahern, including breach of the          FMA.   During trial, Engel, Scholz' lead trial counsel, was twice          called  as a witness.   At the  close of the  evidence, the court          granted Scholz' directed verdict dismissing Ahern's Count III for          fraud and IV  for breach  of implied covenant  of good faith  and          fair dealing.  The court also granted Ahern's motion for directed          verdict dismissing Scholz' First, Second, and Third Counterclaims          and his, Third, Fourth, and Fifth affirmative defenses.  Only the          parties' respective breach  of contract claims went to  the jury.          The jury found that Scholz  breached section 5.2.1 of the  FMA to          pay  Ahern royalties from the  third album, and  found that Ahern          had not breached the FMA to account for and pay  Scholz royalties          due from the  first and second albums.  It awarded Ahern $547,007          in damages.                    The  trial  court sitting  without  a  jury also  found          Scholz  had  breached the  FMA, and  heard  Ahern's Count  II for          declaratory relief and Count V for violation of Mass. Gen. L. ch.          93A and Scholz'  Fifth Counterclaim for recision of  contract for                                         -5-          failure  to obtain a license.   The court  denied the declaratory          relief Ahern sought in  Count I, and awarded him  costs, interest          and  attorney's fees pursuant to  Count V for  violation of Mass.          Gen. L. ch. 93A    2 & 11.  The court denied the relief sought by          Scholz  in his  Fifth Counterclaim  and held  that he  waived his          Counts VI and  VII at oral argument.  After  a hearing on Ahern's          bill of costs and application for  reasonable attorney's fees and          interest, the court awarded Ahern $265,000 in attorney's fees and          $135,000 in costs.                      The district court  denied, without a hearing,  Scholz'          motion  for a new trial,  motion to amend  the court's memorandum          and  order and  judgment  entered thereon,  motion  to admit  new          evidence, and motion  to amend the  court's memorandum and  order          and  the  judgment  entered   thereon  regarding  Scholz'   Sixth          Counterclaim.  This appeal followed.                                MOTION FOR A NEW TRIAL                                MOTION FOR A NEW TRIAL                    Appellant first argues that the district court erred in          denying his motion for a new trial, made pursuant to Fed. R. Civ.          P.  59(a).   We therefore  review the  record below  to determine          whether the evidence  required that the district  court grant the          motion  for a  new trial.    See Vda.  de P rez  v. Hospital  del                                       ___ ______________     _____________          Maestro, 910 F.2d 1004,  1006 (1st Cir. 1990).  In  reviewing the          _______          record of the 16-day  trial, we note that both  parties presented          extensive evidence.  The jury heard testimony regarding a history          that  spans  two  decades,  involves at  least  seven  contracts,          includes detailed numerical accounting, and references more  than                                         -6-          half a dozen other legal battles.  The parties called  a total of          fifteen witnesses,  seven of  whom, including Ahern,  Scholz, and          Engel,  Scholz' counsel,  testified  twice.   In short,  the jury          faced  a complex and sometimes conflicting set of facts in making          its decision  as  to whether  either,  neither, or  both  parties          breached the 1981 Further Modification Agreement.  Ultimately, we          find that  the jury's verdict was not against the clear weight of          the evidence, and the district court did not abuse its discretion          in so finding.                      A.   Standard of Review                    A.   Standard of Review                         __________________                    "A verdict may be set aside and new trial ordered 'when          the verdict is against  the clear weight  of the evidence, or  is          based upon evidence  which is  false, or will  result in a  clear          miscarriage of justice.'"  Phav v. Trueblood, Inc., 915 F.2d 764,                                     ____    _______________          766  (1st Cir.  1990) (quoting  Torres-Troche v.  Municipality of                                          _____________     _______________          Yauco, 873 F.2d 499 (1st Cir. 1989)); see Fed. R.  Civ. P. 59(a);          _____                                 ___          S nchez v. Puerto Rico Oil Co., 37 F.3d 712, 717 (1st Cir. 1994).          _______    ___________________          In reaching  its decision,  "the district  court has  broad legal          authority to determine whether or not a jury's verdict is against          the 'clear  weight of the evidence.'"  Vda. de P rez, 910 F.2d at                                                 _____________          1006.   Nonetheless,  "the  trial  judge's  discretion,  although          great, must be  exercised with due regard  to the rights of  both          parties to have questions which are fairly  open resolved finally          by the jury  at a  single trial."   Coffran v. Hitchcock  Clinic,                                              _______    __________________          Inc., 683  F.2d  5, 6  (1st Cir.),  cert. denied,  459 U.S.  1087          ____                                ____________          (1982); see Kearns v. Keystone Shipping Co., 863 F.2d 177, 178-79                  ___ ______    _____________________                                         -7-          (1st Cir. 1988).  Thus, the district court judge "cannot displace          a jury's verdict  merely because  he disagrees with  it or  would          have found otherwise in a bench  trial."  Milone, 847 F.2d at 37;                                                    ______          see  Coffran, 683  F.2d at  6.   "The mere  fact that  a contrary          ___  _______          verdict  may  have  been  equally  --  or  even  more  easily  --          supportable  furnishes no  cognizable ground  for granting  a new          trial."  Freeman  v. Package  Mach. Co., 865  F.2d 1331,  1333-34                   _______     __________________          (1st Cir. 1988).                    Our  review  is circumscribed:    we  will disturb  the          district  court's ruling  on appellant's motion  for a  new trial          only where there has been a clear abuse of discretion.  See Simon                                                                  ___ _____          v. Navon, 71 F.3d 9, 13 (1st Cir. 1995); Newell Puerto Rico, Ltd.             _____                                 ________________________          v. Rubbermaid Inc., 20 F.3d 15, 22 (1st Cir. 1994).             _______________                      In order  to  determine whether  such  an                      abuse occurred here,  we must review  the                      record below.  We do this not in the role                      of  "a  thirteenth juror,"  assessing the                      credibility  of  witnesses  and  weighing                      testimony,  but  rather  to  isolate  the                      factual  basis  for  the   trial  court's                      ruling and provide the foundation for our                      action today.          Kearns,  863 F.2d at 179.  "So  long as a reasonable basis exists          ______          for  the jury's verdict, we will not disturb the district court's          ruling on appeal."  Newell Puerto Rico, Ltd., 20 F.3d at 22.                              ________________________                    With  our standard  of review  established, we  turn to          Scholz' argument and the  record below.   We address each of  the          two breach of contract claims the jury decided in turn.                    B.   Did Ahern Breach the FMA?                    B.   Did Ahern Breach the FMA?                         _________________________                                         -8-                    Scholz argues that Ahern breached his obligations under          the  1981 FMA to  both account for  and pay to  Scholz, every six          months, his share of  the royalties from the compositions  on the          first and second albums:  indeed, Ahern admitted at trial that he          had failed  to make some payments  he owed Scholz under  the FMA.          The  jury and the trial court disagreed with Scholz, however, and          found that Ahern's  breach of the  FMA was not  material.1    The          question  facing us, then,  is whether the  district court abused          its  discretion  in finding  that  the  jury's decision  was  not          against the weight  of the evidence.  After careful review of the          record,  we  find no  abuse of  discretion  in the  lower court's          decision not to disturb the jury's finding.                      Scholz  argues at  some length  on appeal  that Ahern's          breach  was  by  definition  material, both  for  his  failure to          account and his failure to pay.   As for the first contention, we          note  that while  Scholz' reading  of the  FMA as  requiring that          Ahern  render Scholz  direct accountings  every  six months  is a          convincing one,  it is not the only plausible one.  Indeed, Ahern                                        ____________________          1  Regarding substantial performance, the court's instructions to          the jury stated that                      The term "performance" contains within it                      substantial  performance.   Namely,  if a                      person has substantially performed, that,                      in  the   eyes  of   the  law,   is  full                      performance  of  one's  obligations.   So                      when I've used  the term "performance" or                      "breach of the obligations," just include                      within  those  concepts  the question  of                      what  is  the   definition  of  the  term                      "substantial performance" or "substantial                      breach."                                         -9-          contends  that  the FMA  only  required him  to  send irrevocable          letters of direction to  various entities involved directing them          to send Scholz his share of the royalties when collected.  In the          end, it would not be against the clear weight of  the evidence to          find that letters of  directions would satisfy Ahern's accounting          obligations  under the  FMA,  and that  such  letters were  sent.          Therefore,  Ahern's failure to account every six months was not a          material breach.                      As  for  the  second contention,  Scholz  supports  his          position  that Ahern's  failure  to pay  constitutes a  separate,          material breach  by drawing on  both New York2  and Massachusetts          case law.  He points to the Second Circuit's refusal to  overturn          summary  judgment  in ARP  Films,  Inc.  v. Marvel  Entertainment                                _________________     _____________________          Group,  Inc., 952 F.2d  643, 649 (2d  Cir. 1991).   In that case,          ____________          where plaintiffs failed to account and pay royalties in excess of          $400,000, the court stated that                          the   district    court   correctly                         concluded   that   the  breach   by                         plaintiffs in failing  to make  the                         payments  and  provide the  reports                         required .  . . was  material as  a                         matter  of  law,  thus  authorizing                         Marvel  to terminate  the contract.                         [The parties' agreement] explicitly                                        ____________________          2   The FMA provides that it  shall be "governed by and construed          and enforced in accordance with the laws of the State of New York          applicable to agreements made and to be performed entirely in New          York."    "In  the  absence  of  a  conflict  of  public  policy,          Massachusetts honors choice-of-law  provisions in contracts, and,          in this diversity  case, so must we."  Northeast  Data Sys., Inc.                                                 __________________________          v. McDonnell Douglass Computer Sys., Inc., 986 F.2d 607, 610 (1st             ______________________________________          Cir. 1993) (citation omitted).  As we find no public policy issue          is  implicated by this  private dispute, we  respect the parties'          choice-of-law provision.  See id.                                      ___ ___                                         -10-                         singled out plaintiffs'  obligation                         to provide  "prompt accounting" for                         distributions   as   a   term   and                         condition  of  the  agreement,  the                         substantial    breach   of    which                         authorized Marvel  to terminate the                         license provided  by the agreement.                         In  addition,   failure  to  tender                         payment   is  generally   deemed  a                         material   breach   of    contract.                         Finally,  as   the  district  court                         found,    and     the    subsequent                         accounting  confirmed,  the amounts                         withheld from  Marvel by plaintiffs                         were very substantial.          Id. (citations  omitted).  Scholz also points  to a New York case          ___          holding that a licensee's failure to pay franchise fees totalling          $40,129  over  four  months  constituted a  breach  of  contract,          McDonald's  Corp. v. Robert Makin, Inc., 653 F. Supp. 401, 402-04          _________________    __________________          (W.D.N.Y. 1986),  as well  as  Massachusetts language  indicating          that "[a] material breach of an agreement occurs  when there is a          breach of 'an essential  and inducing feature of the  contract.'"          Lease-it, Inc. v. Massachusetts  Port Auth., 600 N.E.2d  599, 602          ______________    _________________________          (Mass.  App. Ct.  1992) (holding  that  six-month refusal  to pay          concession  and  rental  fees  was a  material  breach)  (quoting          Bulcholz v. Green Bros. Co., 172  N.E. 101 (Mass. 1930)).  Scholz          ________    _______________          argues  that Ahern's  breach,  spanning thirteen  years, is  more          egregious  than  these  cases  of  a  six-month  failure  to  pay          concession and rental fees, four-month failure to pay license and          lease  fees,  and  seven-month  failure to  pay  (and  five-month          failure  to  account).3    Therefore, Scholz  concludes,  Ahern's                                        ____________________          3   Scholz states  that  this is  especially true  here, where  a          transfer of copyrights are  involved, and notes Ahern's admission          that this  imposed on  him a heightened  duty to account  and pay                                         -11-          failure  to pay Scholz at least $459,000 is clearly a substantial          breach.                    We  are not convinced.  We  remind appellant that under          our  standard of  review, we  do not sit  as a  juror, evaluating          credibility and weighing  evidence, as he seems to ask  us to do.          Rather, we  simply weigh whether  the district court  committed a          clear  abuse  of  its discretion  in  determining  that the  jury          verdict was not against the clear weight of the evidence.  Newell                                                                     ______          Puerto Rico, 20 F.3d at 22; Kearns, 863 F.2d at 179.   Our review          ___________                 ______          of the  record reveals  that Ahern's counsel  presented testimony          questioning, to  varying degrees, nine  of the thirteen  items of          the estimate  Scholz' accounting expert  made of  how much  Ahern          owed  Scholz.     Phillip  Ames  ("Ames"),   a  certified  public          accountant who  served  as business  manager for  both Ahern  and          BOSTON from 1976 through  sometime in 1981 or 1982,  made several          estimates  of how much Ahern owed Scholz, which he labelled "ball          park  figures."   While  we note  that  Ames' final  estimate was          $277,000, for a total of $459,000 with interest, we cannot assume          that the jury  accepted this figure as gospel.   Given that Ahern          sought  over a  million dollars  in principal  and interest  from          Scholz, the jury may  reasonably have found that the  Ames figure          was  not a substantial breach  in the particular  context of this          case.   It may  have determined that  the amount  of money  Ahern          owed,  taken   in  the  perspective  of   the  contract,  Ahern's          obligations, and the total amounts of money concerned, was not so                                        ____________________          royalties.                                         -12-          significant  a breach  as to violate  "an essential  and inducing          feature of the contract."  Lease-it, 600 N.E.2d at 602.  Finally,                                     ________          addressing the case  law Scholz  relies on for  support, we  note          that here, unlike in those cases, the amount of money owed was in          question.                    Ultimately,  examining the record in full, the evidence          clearly  provides the  jury  and trial  court  with a  basis  for          finding that Ahern did not substantially breach the FMA.  As this          Circuit stated on another occasion,                         We  can understand how a jury might                         have decided for [defendant] on the                         basis  of this  evidence.   But the                         jury  did not  do this;  it decided                         for [plaintiff].  We do not see how                         one could say that the jury clearly                         made a mistake.   We do not see how                         one  could  say  that the  evidence                         overwhelmingly      favored     the                         [defendant].   Rather, the evidence                         simply was mixed and contradictory.          Vda. de  P rez, 910 F.2d at  1008.  Therefore we  cannot say that          ______________          the  district court committed a clear breach of its discretion on          this point.                    C.   Did Scholz Breach the FMA?                    C.   Did Scholz Breach the FMA?                         __________________________                    Ahern claimed below that Scholz breached his obligation          under section  5.2.1 of the  FMA to  pay Ahern his  share of  the          royalties due from the  third album.4  The evidence  presented at                                        ____________________          4  That provision provided, in pertinent part,                         With   respect    to   the   future                         commercial  release  of any  albums                         embodying  the musical  performance                         of the group "Boston" . . . , Ahern                                         -13-          trial centered on a  document entitled "Artist Royalty Statement"          ("the  Scholz  Statement"),  which Scholz  presented  to  Ahern.5                                        ____________________                         shall   be   entitled  to   receive                         eighteen  percent  (18%)  of  gross                         royalties   after   deduction   and                         payment  of  only (i)  a producer's                         royalty    to   Scholz    (computed                         according   to    the   terms   and                         provisions of the agreement between                         CBS   and   Ahern  Associates,   as                         amended, at  a  basic rate  of  six                         percent   (6%)  of   the  wholesale                         royalty  base  price) and  (ii) all                         commercially  reasonable  recording                         expenses,  including  Tom   Scholz'                         recording       services      (i.e.                         commercially reasonable engineering                         and  other recording  services), or                         recording expenses  incurred by CBS                         or such other company  and deducted                         from royalties payable . . . .          Because McKenzie was entitled to  a percentage of the  royalties,          Ahern's actual rate was 12 percent.          5   In fact, Scholz  sent Ahern two  "Artist Royalty Statements,"          the first dated from inception to  June 30, 1990, the second from          inception through December 31, 1993.  We address the second here,          as being more recent.  It listed the following figures:          Total Gross Royalties Reported by MCA Records     $6,604,048.14          Gross Royalties - Audit Settlement                   170,000.00          Less Producer Share                               (2,257,862.05)                                                            ______________                    Gross Artist Royalties                   4,516,186.09          less MCA Costs Deducted                              508.566.22          less MCA Costs - Audit Settlement                   (210,000.00)          less Artist Costs (Schedule 1)                     4,360,447.00                                                             ____________                    Net Artist Royalties                      (142,827.13)          Of this  final "Net Artist Royalties"  figure, Ahern's percentage          share was  12 percent,  so that  his share of  the royalties  was          minus  $17,139.26.   "Artist Costs"  included charges  for 11,971          hours  of  studio  time  in  Scholz'  studio  at  $125  an  hour;          engineering  and equipment for  the studio, at a  total of $60 an          hour; and $1.7 million in legal  fees to Engel's law firm for the          CBS litigation and negotiation of the agreement with MCA.                                         -14-          That statement listed over $6 million in gross royalties reported          by MCA prior  to December  31, 1993, but  reduced that figure  by          deducting, among other things, a producer share and artist costs,          so that the net artist royalties fell to below zero  -- and Ahern          was not  entitled to any money.   Scholz argued at  trial that he          did not  breach  the  FMA,  but the  jury  and  the  trial  court          disagreed.                    On  appeal,  Scholz  contends  that  their  finding  is          against  the  weight  of  the  evidence,  because  Ahern's  prior          material breaches excused  Scholz' performance under the  Further          Modification Agreement.   Scholz points  out that paragraph  2 of          the FMA states that                          Scholz  wishes  to  guarantee  that                         Ahern  shall  receive at  a minimum                         certain   amounts   of  monies   in                         connection  with  future recordings                         embodying  the performances  of the                         group "BOSTON" . . . .  in exchange                         for the agreement  of Ahern as  set                         forth herein.          Scholz shapes his argument  on appeal as follows:   Since Ahern's          only  agreement of substance was his agreement to account for and          pay royalties to Scholz  for prior BOSTON albums, Ahern's  breach          of his  commitment excused  Scholz' performance.   Indeed, Scholz          notes, the parties' mutual commitments to account to and pay each          other  are expressly stated to be in consideration of each other.          In  such   "bilateral  contracts   for  an  agreed   exchange  of          performances, even though the promises  are in form absolute, the          law regards them as constructively conditioned in order  to avoid          an  unjust  result."   Industrial  Mercantile Fac.  Co.  v. Daisy                                 ________________________________     _____                                         -15-          Sportswear,  288 N.Y.S.2d  209, 211 (N.Y.  Civ. Ct.  1967), order          __________                                                  _____          aff'd, 289  N.Y.S.2d 332  (N.Y. Sup.  Ct. 1968);  see Restatement          _____                                             ___          (Second) of  Contracts,   237  cmt. a (1979).   Moreover,  Scholz          continues, the non-occurrence  of a condition  of a party's  duty          excuses  the non-breaching  party's  obligation to  perform  even          though that party does not know of its non-occurrence, id.,   237                                                                 ___          cmt. c,  and the intention or  scienter of a  breaching party are          not considered in the elements of  breach of contract.  See Agron                                                                  ___ _____          v.  The Trustees  of Columbia  Univ., 1993  WL 118495  (S.D.N.Y.,              ________________________________          April 12, 1993).                    Considering this,  Scholz  points out  that  his  first          royalty  statement regarding the third album  was rendered by MCA          on April 1, 1987.  Thus the  earliest he could have owed money to          Ahern  under the FMA was August 15,  1987 -- and by that date, he          argues,  Ahern had already failed to account to Scholz or pay him          royalties  with respect  to the  first two  albums for  over five          years.   Therefore,  Scholz maintains  he  was excused,  at least          until  Ahern tendered  payment, from  rendering an  accounting or          paying royalties  to Ahern  from the  third album.   At  the very          least,  Scholz argues,  he  could have  withheld  payment of  the          $459,000 admittedly owed him  as a set-off against any  amount he          owed  Ahern.    See Record  Club  of  America  v. United  Artists                          ___ _________________________     _______________          Records, Inc., 80 B.R. 271, 276 (S.D.N.Y. 1987), vacated on other          _____________                                    ________________          grounds, 890 F.2d 1264 (1989).          _______                    In  so arguing, Scholz does not contend that he did not          in fact  breach the FMA:   he simply maintains that  Ahern did so                                         -16-          first.  Since Scholz does not revisit the merits of the  evidence          presented  at trial  regarding  his breach,  we  will not  do  so          here.6  However,  since we  have already found  that the  verdict          that Ahern did not  substantially breach the FMA was  not against          the clear  weight  of the  evidence, Scholz'  argument here  must          fail.  Clearly, it  would be inconsistent with our  acceptance of          the  verdict that Ahern did  not substantially breach  the FMA to          find  that Scholz'  performance was  excused by  Ahern's material          breach.  Accordingly, we affirm  the district court's decision to          refuse the motion for a new trial on this issue.7                     D.   Sufficiency of the Evidence                    D.   Sufficiency of the Evidence                         ___________________________                    In a  footnote, Scholz adds  that he  is appealing  the          verdict not only in  terms of the denial of his  motion for a new          trial, as discussed above, but  also that he appeals each of  the          jury's  findings -- i.e. that Scholz breached the FMA, that Ahern          did  not breach  the Agreement,  and that  Ahern was  entitled to          damages --  on  the grounds  of  insufficiency of  the  evidence.                                        ____________________          6    We note, however, that our review of the record convinces us          that the verdict is not against the clear weight of the evidence,          and  so  the district  court's  ruling was  not  an abuse  of its          discretion.          7  Scholz argues, in a footnote, that the jury's verdict violates          the premise that a  party cannot recover more than he  would have          obtained  had no breach occurred.   However, we  need not address          his  contention.    Scholz provides  no  more  than  a couple  of          citations to flesh out his position:  he does not explain how the          jury verdict places Ahern in a better position than he would have          been if Scholz had not  breached the FMA.  It is by now axiomatic          that "issues  adverted to in a  perfunctory manner, unaccompanied          by some  effort at  developed argumentation, are  deemed waived."          United  States v.  Zannino,  895 F.2d  1,  17 (1st  Cir.),  cert.          ______________     _______                                  _____          denied, 494 U.S. 1082 (1990).          ______                                         -17-          Scholz relies on Engine Specialties, Inc. v. Bombadier Ltd.,  605                           ________________________    ______________          F.2d  1,  9  (1st  Cir.  1979),  cert.  denied  sub  nom.  Durham                                           ________________________  ______          Distribs.,  Inc. v. Bombadier Ltd., 449 U.S. 983 (1983), to claim          ________________   _______________          that  our review of his alternative argument is limited to asking          whether  there is sufficient support in the record for the jury's          finding.                      Engine Specialties outlines the  standard of review  as                    __________________          follows:                         If we can  reach but one conclusion                         after  reviewing  the evidence  and                         all    inferences    drawn   fairly                         therefrom   in   the   light   most                         favorable  to  the  plaintiff  (the                         prevailing   party)  and   if  that                         conclusion differs from the jury's,                         only  then can  the finding  be set                         aside.  Even  if contrary  evidence                         was   presented   and   conflicting                         inferences  could  be drawn,  it is                         for the jury  to draw the  ultimate                         conclusion, and  such determination                         will  not  be disturbed  unless the                         condition described above is met.          Id.;  see Fleet Nat'l Bank  v. Anchor Media  Television, Inc., 45          ___   ___ ________________     ______________________________          F.3d  546,  552-53  (1st  Cir. 1995)  (outlining  application  of          standard).  We note that, in fact, this is the standard of review          applicable  to  motions for  judgment as  a  matter of  law under          Federal Rule of  Civil Procedure 50.  While it is a circumscribed          review, it is  nonetheless not as  limited as  our review of  the          district  court's disposition of the  motion for new  trial.  See                                                                        ___          S nchez,  37  F.3d  at 716-17  (comparing  the  two  standards of          _______          review).    We  find nothing  in  the  record  to establish  that          appellant Scholz made a  motion for judgment as a  matter of law,                                         -18-          so that he would be entitled to this less deferential standard of          review.  Rather,  he argues  sufficiency of the  evidence in  his          motion  for a new  trial.  Our  review of  the record, therefore,          must be under  the abuse of  discretion standard outlined  above.          See MacQuarrie v. Howard Johnson Co., 877 F.2d 126, 131 (1st Cir.          ___ __________    __________________          1989) (noting  that the strict "abuse of discretion" standard "is          especially appropriate  if the motion for a new trial is based on          a claim that the verdict is against the weight of the evidence");          Freeman,  865  F.2d at  1341-43  (evaluating  the weight  of  the          _______          evidence as part of a motion for a new trial, separately from its          review of the  denial of the motion  for judgment notwithstanding          the verdict).                    Irrespective  of  which standard  of  review we  apply,          however, Scholz' alternative argument fails.  First, the evidence          was overwhelming that he breached the FMA by failing to pay Ahern          his share of the  royalties from the third album;  indeed, Scholz          does  not attempt to argue otherwise.  Second, although the issue          of  the  materiality  of  Ahern's  breach  is  fairly  close,  as          discussed above, there was sufficient evidence in the record  for          the  jury to determine that  Ahern did not  materially breach the          Further Modification  Agreement.  Finally, having  made these two          determinations, the award of damages was appropriate.  Therefore,          given the scope of  the evidence as  described, we find that  the          district court's denial of appellant's motion for a new trial was          amply supported and not an abuse of discretion.                    E.   The Length of the Jury Deliberations                    E.   The Length of the Jury Deliberations                         ____________________________________                                         -19-                    Scholz next contends that the jury failed to follow its          instructions.8    The district  court  instructed  the jury  that          damages could only be awarded if it found  one party breached the          FMA and the other did not.  If it found that both parties were in          breach, no damages could  be awarded.  In making  his contention,          Scholz  reiterates   his   argument   that   the   evidence   was          insufficient, emphasizing that Ahern  admitted he did not perform          his  obligations  under the  FMA,  and  maintaining that  Ahern's          accountant  admitted that he both failed to pay at least $459,000          to  Scholz and  mischaracterized an advance  from a  foreign sub-          publisher as a loan.  Under the jury instructions, Scholz argues,                                        ____________________          8  The jury was instructed, in pertinent part, that:                      A   party   which   has   performed   its                      obligations under a contract  is entitled                      to  have the  other  party  do the  same.                      Conversely,   a   party  which   has  not                      performed   its   obligations   under   a                      contract is not  entitled to  performance                      from  the  other  party.    So  once  you                      understand the terms of the contract, you                      should  determine  whether any  party has                      failed to perform any of the terms of the                      contract.                                         ***                         If your determination  should be  that                      the    defendant    or    defendant    in                      counterclaim  breached  the contract  and                      that  the  plaintiff   or  plaintiff   in                      counterclaim did not,  at that point  you                      would consider the issue of damages.                                         ***                         If you find that both parties breached                      their   obligations  under   the  Further                      Modification  Agreement, then  no damages                      should  be accorded to either party under                      the contract.          (Day 15, pages 90-92).                                         -20-          these factors preclude the jury from finding that Scholz breached          the FMA, or at  least from awarding Ahern  any royalties.   These          contentions have been dismissed in our discussion above.                      However, Scholz raises  a new factor:   he argues  that          the   jury's  verdict   and   the  extremely   short  period   of          deliberations  -- one and a half hours9 following fifteen days of          testimony   --  reveal   that  the   jury  ignored   the  court's          instructions and rendered an  erroneous and inconsistent verdict.          He cites  the fact  that one  of the  jurors planned  to go  on a          cruise  two days after the date of  the verdict as proof that the          jury was in  a hurry  to finish  its deliberations.   The  jury's          questions,10  Scholz adds,  demonstrates  that it  was determined          to award Ahern $547,000 regardless of who was in breach.  Between                                        ____________________          9    For  the purposes  of  this  discussion,  we accept  Scholz'          calculation of the time the jury spent deliberating its verdict.          10   The  jury's  questions, and  the  court's answers,  were  as          follows:                         Question No. 1,  if neither  breached,                      are damages awarded?                         [Answer:]  No.                         [Question No. 2:]  Verdict sheet  uses                      the words, quote,  "only if," unquote, in                      question three.  I assume  this precludes                      us from awarding damages or from awarding                      damage, one, if both breach.                         [Answer:]  If both breach, no damages.                      If neither breach, no damages.                         [Question No.  3:]  If one  did, do we                      only take account from one side?                         [Answer:]  As  I said, you  would only                      consider the claim  of the  non-breaching                      party,  but your  judgment on  that claim                      has to be based  on all the evidence that                      has been introduced.          (Day 15, page 104).                                         -21-          the  insufficient evidence  and  the  perfunctory  deliberations,          Scholz concludes, the  district court had an  affirmative duty to          grant a new  trial.  He seeks support for  his argument in Kearns                                                                     ______          v. Keystone Shipping Co., 863 F.2d 177 (1988), where this Circuit             _____________________          held  that a  brief jury  deliberation --  one hour  and eighteen          minutes, following  a three-day trial  -- coupled with  a verdict          contrary  to the great weight of the evidence created a situation          where the district court had an affirmative duty to set aside the          verdict.  Id. at 182.                    ___                    We  remain unswayed.    Scholz' reliance  on Kearns  is                                                                 ______          misplaced.  There,  the court explicitly required  that the brief          deliberation be paired with  a verdict contrary to the  weight of          the evidence, noting  that "'[i]f the  evidence is sufficient  to          support the verdict, the  length of time the jury  deliberates is          immaterial.'"   Kearns, 863 F.2d at 182 (quoting Marx v. Hartford                          ______                           ____    ________          Accident and Indemnity Co., 321 F.2d 70, 71 (5th Cir. 1963)).  We          __________________________          have already determined that, here, there was evidence sufficient          to support  the verdict.  Therefore, Scholz is merely left with a          complaint that  the jury  should  have deliberated  longer.   His          complaint  is easily  defeated, as  "no rule  requires a  jury to          deliberate  for  any  set length  of  time."    United States  v.                                                          _____________          Pe agar cano-Soler,  911 F.2d 833, 846  n.15 (1st Cir. 1990); see          __________________                                            ___          United States v. Brotherton, 427 F.2d 1286, 1289 (8th Cir. 1970).          _____________    __________          Indeed, we  have previously upheld a verdict on thirty-two counts          which  was reached in four  hours, following a  trial that lasted          five weeks, incorporating more  than fifty witnesses and hundreds                                         -22-          of  exhibits.   Pe agar cano-Soler,  911  F.2d at  846;  see also                          __________________                       ________          United  States  v.  Anderson,  561 F.2d  1301,  1303  (9th  Cir.)          ______________      ________          (holding that jury's brief deliberation does not indicate  it did          not give full and impartial consideration to the evidence), cert.                                                                      _____          denied,  434  U.S.  943  (1977);  Brotherton,  427 F.2d  at  1289          ______                            __________          (finding  that jury deliberation of five to seven minutes did not          demonstrate  that jury  did  not  consider  court's  instructions          before reaching verdict).                      We also refuse to read a determination to award Ahern a          set  amount  of money  from  the jury's  questions,  which simply          clarified where  it could  award damages,  and whose  evidence it          should consider.   Cf. Clark v. Moran, 942 F.2d  24, 32 (1st Cir.                             ___ _____    _____          1991)  (refusing  to impute  reasonable  doubt  of  guilt  or  of          witnesses'  credibility from  fact  that  jury  deliberation  was          lengthy  or from  questions asked).   Finally,  we note  that the          jury's task was  relatively simple.   Although  it heard  complex          testimony  and was asked to weigh detailed evidence, the district          court  had already  dismissed as a  matter of law  all the claims          except  for the respective contract claims, and the sums at issue          had been clearly defined in the evidence and closing arguments.                              ENGEL'S TESTIMONY AT TRIAL                              ENGEL'S TESTIMONY AT TRIAL                    As noted above, Engel, Scholz' lead counsel, was called          by  both parties  as a  witness.   Maintaining that  Ahern called          Engel as  an expert  witness, instead  of  a percipient  witness,          Scholz now  argues that the district  court committed prejudicial          error  by, first,  permitting  Ahern to  do  so, and  second,  by                                         -23-          refusing to  allow follow-up  questioning by  Engel's co-counsel,          Passin.11                      Our examination of each of  Scholz' contentions follows          the same legal framework.   In each analysis, two  questions face          us:   first,  whether the  district court  erred in  admitting or          refusing the  testimony or motion; and second, whether that error          was  harmful.  See Doty v. Sewall,  908 F.2d 1053, 1057 (1st Cir.                         ___ ____    ______          1990).  Only if  we answer  both questions  in the  positive will          Scholz' argument on appeal prevail.                    A  trial court's  error in  an evidentiary  ruling only          rises  to the  level of  harmful error  if a  party's substantial          right is affected.   See 28 U.S.C.   2111;  Fed. R. Evid. 103(a);                               ___          Lubanski v. Coleco Indus., Inc., 929 F.2d 42, 46 (1st Cir. 1991).          ________    ___________________          "In determining  whether an error affected  a party's substantial          right, '[t]he central question is whether this court can say with          fair  assurance .  . .  that the  judgment was  not substantially          swayed by the  error.'"   Espeaignnette v. Gene  Tierney Co.,  43                                    _____________    _________________          F.3d  1, 9  (1st Cir.  1994) (quoting  Lubanski,  929 F.2d  at 46                                                 ________          (internal  quotations omitted)).    Factors we  must consider  in          determining whether  substantial  rights are  implicated  include          both the centrality of the evidence and the prejudicial effect of                                        ____________________          11   Scholz also argues that, since Engel's testimony was "highly          prejudicial" to  Scholz, its improper admission is  grounds for a          new trial, citing Conway v. Chemical Leaman Tank Lines, Inc., 687                            ______    ________________________________          F.2d 108  (5th Cir.  1982) (upholding  district court's  grant of          motion  for  new  trial on  grounds  of  unfair  surprise due  to          testimony  from surprise expert witness).  Since we find that the          testimony  was not  in fact  highly  prejudicial to  Scholz, this          sparsely drawn alternative argument fails.                                         -24-          its exclusion or inclusion.  Lubanski, 929 F.2d at 46.   We weigh                                       ________          these factors in "'the  context of the case  as gleaned from  the          record as a  whole.'"  Id. (quoting Vincent v.  Louis Marx & Co.,                                 ___          _______     ________________          874 F.2d 36, 41 (1st Cir. 1989)).  We have  repeatedly noted that          "no substantial right of the party is affected where the evidence          omitted was cumulative as to other admitted evidence."  Doty, 908                                                                  ____          F.2d at 1057.  Should a reviewing court be in "grave doubt" as to          the likely  effect an error had on the verdict, the error must be          treated as  if it had  in fact affected  the verdict.   O'Neal v.                                                                  ______          McAninch, -- U.S. --, 115 S. Ct. 992, 994 (1995) (noting that "by          ________          'grave doubt' we mean that, in the judge's mind, the matter is so          evenly  balanced as he feels  himself in virtual  equipoise as to          the harmlessness of the error.").                      We note that under Federal Rule of  Evidence 103(a), we          review the decision not  only to determine whether a  substantial          right of the party is affected, but also to see  whether a timely          objection  "appears of  record,  stating the  specific ground  of          objection,  if the  specific  ground was  not  apparent from  the          context."  Fed.  R. Evid.  103(2); see Bonilla  v. Yamaha  Motors                                             ___ _______     ______________          Corp., 955 F.2d 150, 153 (1st Cir. 1992).  Here,  Scholz' counsel          ____          objected  at the time of the challenged rulings.  Therefore, this          element of our analysis is not at issue.                    Having established the legal framework, we examine each          of Scholz' contentions in turn.                    A.   The Contested Testimony                    A.   The Contested Testimony                         _______________________                                         -25-                    Phillips, Ahern's  counsel, put  Engel on the  stand on          the  seventh  day  of trial.    The  objected-to  portion of  his          questioning  sought  testimony  regarding the  Scholz  Statement,          which  purported to account to  Ahern for the  royalties from the          third  album.  In the Statement, Scholz deducted $1.7 million for          legal  fees charged  by  Engel's law  firm,  which the  Statement          listed as equivalent to half  of the fees charged in  relation to          the negotiation of the agreement with MCA and the CBS litigation.          The  immediate issue  at  trial was  whether  this deduction  was          permissible  as a  "commercially  reasonable  recording  expense"          deductible from  the royalties  under section  5.2.1 of  the FMA.          Because the record is determinative of this issue, we quote it at          length:                         Q. Now, as far as legal fees as recording                      costs  are  concerned,  you've  had  some                      experience over the  years, have you not,                      in reviewing the contracts  of performing                      artists  and groups in the musical field;                      is that right?                      A.  Yes.                      Q.  And could  you give the Court and the                      jury  some  estimate  of  the  number  of                      contracts that you believe is an estimate                      that you reviewed over the period of time                      that  you've been  doing such  matters in                      the entertainment field?                      A. Hundreds and hundreds and hundreds and                      more.                      Q. Okay.                         Have  you ever  seen legal  fees as  a                      recording cost  in any of  those hundreds                      and hundreds of contracts?                         MR. PASSIN:  Your Honor, I object.  He                      hasn't been called as an expert witness.                         THE COURT:  Overruled.                         Do  you mean, are  you saying  that he                      can't answer that question?                         THE WITNESS:  No, your Honor, I  would                      --                                         -26-                         THE COURT:   Overruled.  If  you can't                      answer it, say you can't answer it.                         THE  WITNESS:   I can  answer it,  but                      it's  a little  awkward to  call me  as a                      witness,  as  an  expert in  my  client's                      case.                         THE  COURT:    Overruled.    You  were                      advised that you were going to be called,                      and you  said that you wished  to stay in                      this case and your client was so advised.                      The objection has been made.  Overruled.                         MR. ENGEL:   At  one point we  said we                      wished to be out of the case.  I think it                      should be  clear.   At one point  we said                      out.                         THE COURT:  Overruled.                         BY MR. PHILLIPS:                      Q. Do  you have the question in mind, Mr.                      Engel?  In  the hundreds and hundreds  of                      contracts   that   you've  reviewed   for                      performing artists such as Mr. Scholz and                      other groups in the music field, have you                      ever seen legal fees as a recording  cost                      or expense?                      A.  I have never  seen legal fees  -- You                      mean designated in a contract?                      Q.  Yes, as a recording cost or expense.                      A. No,  I  have  never  seen  legal  fees                      designated in a contract as anything, and                      certainly not as recording costs.          (Day 7, pages 71-73).                      Scholz claims the district court erred in admitting the          testimony over  his counsel's objection, because  Ahern's counsel          was  using Engel  as an  expert witness  against his  own client.          First, he points out  that Engel was not designated  as an expert          under  Federal  Rule  of Civil  Procedure  26.    See Prentiss  &                                                            ___ ___________          Carlisle Co.  v. Koehring-Waterous Div. of  Timberjack, Inc., 972          ____________     ___________________________________________          F.2d 6 (1st Cir.  1992) (upholding trial court's refusal  to hear          expert  testimony  from witness  not  designated  as an  expert).          Next,   he  maintains   that  under   the  applicable   Rules  of          Professional  Conduct, Engel  should  not have  been required  to                                         -27-          testify against his  client on an  important and disputed  point.          See Model  Code of Professional  Responsibility DR 5-102(B).   In          ___          turn, Ahern  contends that the  questions asked were  not seeking          Engel's  expert opinion  under  Federal Rule  of Evidence  701,12          or,  in the alternative, that the district court acted within its          discretion  in admitting  the testimony.   See  Espeaignnette, 43                                                     ___  _____________          F.3d  at   10-11  ("Determinations   of  whether  a   witness  is          sufficiently qualified to testify as an expert on a given subject          and whether such expert  testimony would be helpful to  the trier          of  fact are  committed  to the  sound  discretion of  the  trial          court."); United  States v.  Sep lveda, 15  F.3d 1161,  1183 (1st                    ______________     _________          Cir. 1993) (stating that manifest error standard applies to trial          judge's  rulings regarding  expert testimony), cert.  denied, ___                                                         _____________          U.S. ___, 114 S. Ct.  2714 (1994).  His final contention  is that          Scholz' complaint  should be  deemed waived because  Scholz first                                        ____________________          12   We note  in passing  that we are  skeptical both  of Ahern's          claim  that Engel  was  not called  as an  expert and  of Scholz'          position  that  Engel was  surprised  at being  questioned  as an          expert, in  light of  the following discussion,  held immediately          before Engel took the stand:                         MR. ENGEL: ... The other thing is this                      delicate  situation.     I'm  an   expert                      witness, right?                         MR. PHILLIPS:  Yes.                         MR. ENGEL:  So  I'm being called as an                      expert?                         THE COURT:  Which you were on notice.                         MR ENGEL:  I understand.          (Day 7, pages 53-54).  Despite Scholz' protestations in his brief          that  the reference to Engel as an  expert must be a misstatement          by Engel, an  error by the court reporter, or  based on something          outside the reporter's hearing, it seems apparent to us that both          parties  foresaw  the  possibility   of  expert  testimony  being          elicited.  Indeed,  the court's statement above suggests  that it          based its later ruling on the same premise.                                         -28-          injected  Engel's opinion  testimony  into the  case through  his          affidavits.                      We need  not consider these arguments,  however, for we          find that, even assuming  the trial court erred in  admitting the          challenged  section  of Engel's  testimony,  it  was not  harmful          error.   Essentially, the  challenged evidence  was  that in  the          "hundreds and hundreds and  hundreds and more" contracts  that he          has reviewed,  Engel  never  saw  "legal  fees  designated  in  a          contract  as anything,  and  certainly not  as recording  costs."          (Day  7, page  73).   Having examined  the record  as a  whole to          determine if admitting this evidence affected Scholz' substantial          rights,  in accordance with our legal framework, we find that any          court error did not amount to  harmful error.                     First, although  the issue  of whether Scholz  breached          the  FMA was  certainly a  major focus of  the case,  and Engel's          testimony related to the single largest  deduction taken from the          royalties  on  the Scholz  Statement,  we  disagree with  Scholz'          contention that it  was probably determinative for  the jury, for          several  reasons.   Ames and  Stewart L.  Levy ("Levy"),  who has          served as  Ahern's counsel in the past  and who was designated an          expert on  the subject of  the reasonableness  of the  attorney's          fees,  both  testified that  attorney's  fees  are not  recording          expenses or recording costs.   Ahern testified that they  are not          artist costs or  expenses for  recording purposes.   We found  no          testimony,   besides  Engel's,  contesting   this  point.    Levy          challenged the fees' inclusion on the Scholz Statement on another                                         -29-          front as well,  stating that Ahern was asked  to pay for services          that at times were working  against his best interests, including          time billed on motions to preclude a stipulation which would have          had Sony  or CBS dropping Ahern  from the lawsuit.   In short, he          stated,                          We start off  with the  proposition                         that here is  Mr. Ahern who is  not                         directing   Mr. Scholz   to    jump                         labels,  not instructing  Mr. Engel                         to do anything.  Because Mr. Scholz                         decides to do what he is doing, not                         only  does Mr.  Ahern  get sued  by                         CBS, not only is Mr. Ahern's income                         from  CBS cut  off, now  Mr. Scholz                         and his attorney, Mr. Engel, expect                         Mr.  Ahern not only  to accept that                         but to  defray part of the  cost of                         Mr. Engel doing this.  I find  that                         outrageous.          (Day 7, page 95).  Engel testified that the attempt to keep Ahern          in the case was not  directed solely at him,  but was part of  an          attempt to keep CBS from making deals with potential witnesses.                    The fees were not  disputed solely on the basis  of the          appropriateness  of their  deduction.   Levy testified  at length          that the fees themselves were unreasonable.  He testified that he          felt that Engel's firm                         did  the work without any regard to                         any kind of budget, without any cap                         on  their work.   Then  they turned                         around  and  said, he  said  we had                         carte blanche. .  . . Suddenly when                         the case  is over  in 1990,  we are                         told it is $3  million. . . . There                         were no parameters.   Mr. Engel did                         what he  wanted to do.   No one was                         checking what he did to say  it was                         too expensive, don't do it.                                         -30-          (Day 7, pages 104-05).   In turn,  Engel testified that the  fees          were higher  than originally  estimated because  the head  of CBS          personally pursued  the litigation  to the "bitter  end," despite          repeated attempts  to settle.  Ultimately,  he maintained, Scholz          prevailed and won moneys for the entire band -- and Ahern.                     In  fact,  the  attorney's   fees  were  not  the  only          challenged deduction on the Scholz Statement.   There was lengthy          testimony questioning and defending many of the other deductions,          most notably the producer's fee and the more than 11,000 hours of          studio time Scholz charged for.  Therefore, even if the jury felt          the deduction of the attorney's fees -- or of some of them -- was          appropriate, they  could still have reasonably  found that Scholz          materially breached the FMA.  Between the additional evidence, on          both  sides, as to whether  the legal fees  could be commercially          reasonable recording expenses, whether the amount of fees charged          were reasonable,  and whether  other deductions on  the Statement          were reasonable,  we find  that Engel's challenged  testimony was          not central to the case.                    Second, the  evidence admitted  did not have  an unduly          prejudicial  effect.  When called to the stand by his co-counsel,          Engel was able to clarify that,  while he felt he was asked about          "recording   costs,"  the   FMA  actually   addresses  "recording          expenses":                      Q.  Does the  -- The first question, does                      the  further  modification  use the  term                      "recording costs"?                      A.    My  recollection  is,  the  [F]irst                      Modification  Agreement   uses  the  term                                         -31-                      "recording  expenses."  I was asked about                      recording costs.                                         ***                      Q.  Do  recording contracts use  the term                      "recording   expenses"    or   "recording                      costs"?                      A.   I,  in all  the recording  contracts                      I've  seen,  in  many of  them,  I  don't                      remember  the  term "recording  expenses"                      ever used, it's always  "recording costs"                      that I've seen in the clause.          (Day  13, pages 110-112).  He followed  up on this in his closing          argument, stating  that "[q]uestions  were asked  about recording          costs, but recording  costs is not  the word used [in  the FMA]."          (Day 15,  page 18).   We find  that this additional  testimony by          Engel counters the potential prejudicial effect of his challenged          statement.   Scholz argues on appeal  that the prejudicial effect          of  the  testimony was  compounded  by the  statement  of Ahern's          counsel in his closing argument that                          there is no  testimony before  you,                         ladies  and  gentlemen, that  legal                         costs in litigation that Mr. Scholz                         was in  is a  recording  cost.   In                         fact,  to  the  contrary, the  only                         testimony here has been  that legal                         costs -- legal fees and legal costs                         are not recording costs.                         You    may    recall   Mr.    Engel                         uncomfortably on the witness stand,                         after  I  qualified   him  on   his                         expertise in matters of  this sort,                         acknowledging  that  this  was  the                         case.            (Day 15, page 45).  However, between the totality of the evidence          at trial  and the additional statements Engel  himself made, both          as witness  and as counsel, we do not feel that this reference to          Engel  in the hour spent  in closing argument  by Ahern's counsel                                         -32-          could  be found  to sway the  jury's decision,  prompting harmful          error.  See Espeaignnette, 43 F.3d at 9.                  ___ _____________                    B.   The Omitted Testimony                    B.   The Omitted Testimony                         _____________________                    Scholz contends that the district court made a separate          harmful error in upholding the  objections made by Ahern's  trial          counsel  when Engel's co-counsel called Engel to the stand on the          thirteenth day of trial and tried to have him address his earlier          testimony.  After stating  that the FMA used the  term "recording          expenses," not  "recording costs," and reading  out the pertinent          section of the FMA, Engel's testimony continued as follows:                      Q. Have  you  seen  contracts using  only                      [the]   words  "recording   costs"  where                      artists were paid for legal fees?                      A. Yes.                      Q. As  an  expert, how  do  you interpret                      recording  expenses as  it's used  in the                      Further Modification Agreement?                         MR. PHILLIPS:  Objection.                         THE COURT:  Sustained.                         THE WITNESS:  Your Honor, I was  asked                      --                         THE COURT:  Sustained.                      Q. Does  the  language  in   the  Further                      Modification Agreement --                         THE  COURT:  He  asked you a question,                      did you ever see  it before?  Your answer                      was  no.   Now you're  saying --  I won't                      allow any  questions as to where  you saw                      it.                         THE WITNESS:  He asked me, your Honor,                      I remember the  exact question, because I                      answered   it,   he   asked    me   about                      interpreting recording costs.  Now, if he                      can ask me to interpret --                         MR PHILLIPS:  Objection, your Honor.                         THE  COURT:     Sustained,  sustained.                      Sustained.                         THE WITNESS:  Well --                         BY MR. PASSIN:                      Q. Does the  -- Does the language  of the                      Further  Modification   Agreement  affect                                         -33-                      other  deductions  you mentioned  in [the                      Scholz Statements]?                         MR. PHILLIPS:  Objection.  He's simply                      interpreting the agreement.                         THE COURT:  I'm going to sustain it.                         THE WITNESS: Your Honor, could we have                      a side bar, because I think --                         THE COURT:  No. No.                         Let's get going.          (Day 13, pages 112-14).                      On  appeal, Scholz  argues that  the  court "apparently          believed  that it  would be  too prejudicial  to Ahern  to permit          Engel to explain his apparently adverse expert testimony but that          it was not too prejudicial to  Scholz to permit Engel to  testify          adversely to Scholz in the first place, a horrendous conclusion."          (Appellant's Brief, page 34).  We disagree.  The first time Engel          testified, he  was asked  about "contracts of  performing artists          and  groups in the musical field."   (Day 7, page 71).  He stated          in  the disputed  testimony that  he had  "never seen  legal fees          designated  in  a  contract as  anything,  and  certainly not  as                                      ____________          recording costs."  (Day 7, page 73 (emphasis added)).   When next          called to the  stand, Engel  agreed that he  had seen  "contracts                                                       ___          using only [the] words 'recording costs' where artists were  paid          for legal  fees."  (Day 13,  page 112).  The  court's decision to          sustain  the objection  made  by Ahern's  counsel in  the ensuing          dialogue was not a refusal to allow Engel to explain his evidence          on  the basis of  its prejudicial effect  against Ahern:   it was          evidently a reaction to  the apparent inconsistency between these          statements.                                         -34-                    Essentially,  on appeal  Scholz maintains  that Engel's          co-counsel was not allowed to  "cross-examine" him on the subject          of his  direct testimony for  Ahern, thereby precluding  him from          presenting clarifying  evidence or diminishing the  "sting" of an          attorney  testifying   against  his  own  client.     This  error          compounded the  error  of  admitting  Engel's  expert  testimony,          Scholz  contends.    He complains  that  because  of the  court's          ruling,  the jury never  got to hear  Engel's testimony regarding          other types  of contracts, such as  agreements between performers          and  managers, or  the difference  between "recording  costs" and          "recording expenses."  Nor did they hear his explanation that his          answer  might  differ  if  asked  about  "commercially reasonable          recording expenses," not  "recording costs," he  notes.  We  view          this  final protest with  some skepticism,  however, in  light of          Engel's  testimony on the stand that he had never seen legal fees          designated   "as  anything,"  which  would,  presumably,  include          commercially reasonable recording expenses.                      Assuming, arguendo,  that  Engel would  have  made  the                              ________          above testimony and  that the district  court erred in  excluding          the  line  of  questioning,  any resulting  error  was  harmless.          First, for the same reasons outlined above, the  testimony, while          related to a  central issue, was  not central  in and of  itself.          Ames  and  Levy  stated  that  they  saw  no  difference  between          "recording costs" and "recording expenses."  Additional testimony          debated  the total amount  of fees charged as  well as many other          aspects  of  the   Scholz  Statement.    As  for   the  potential                                         -35-          prejudicial effect, the testimony Engel was able to give,  quoted          above, made it clear  that his earlier statement was  directed to          "recording  costs,"  not  "recording  expenses," an  argument  he          reiterated in his closing, mitigating the potential effect of the          apparent inconsistency.   Additionally,  during his first  day on          the stand  Engel stated,  in response  to  questioning about  the          actual charging  of recording costs or  expenses by a  group or a          performing artist, that although he reviews accountings after the          fact, he has never  reviewed an accounting like that  provided in          the Scholz Statement.   He  testified that "[t]his  is a  special          case.  I  don't remember  any accounting that  really falls  into          this category.   This is not a standard contract."   (Day 7, page          81).   While this  testimony does  not go  directly to his  prior          statements,  it does  emphasize that  the FMA  is not  a standard          contract, implying  that his  and others' statements  about other          contracts may not be pertinent.   Weighing the above in the light          of the record as a  whole, see Doty, 908 F.2d at  1057, we cannot                                     ___ ____          say that  the court's  evidentiary ruling excluded  evidence that          was  either central  or prejudicial  in its  effect such  that it          could have swayed the  factfinders' decision.  Thus, even  if the          court erred, it did not rise to the level  of harmful error.  See                                                                        ___          Lubanski, 929 F.2d at 46.          ________                    C.  The Overall Impact of Engel's Testimony                    C.  The Overall Impact of Engel's Testimony                        _______________________________________                    Of course, it is not just the impact of the information          elicited  from  Engel that  we must  evaluate under  the harmless          error standard.   We must also address the  potential prejudicial                                         -36-          effect on the  jury of  seeing Engel, Scholz'  counsel, take  the          stand,  dispute with  the  court and  opposing  counsel over  his          testimony, and finally make a  statement, apparently unwillingly,          against his client's  interest -- a  statement against which,  he          argues, he had to take an apparently inconsistent position in his          closing argument.   There is no  doubt in our mind  that this had          some  prejudicial effect on the jury.  Nonetheless, we cannot say          with   "'fair  assurance  .  .   .  that  the   judgment  was  []          substantially swayed by the error.'"  Espeaignnette, 43 F.3d at 9                                                _____________          (quoting Lubanski, 929 F.2d at 46).  The jury sat through fifteen                   ________          days   of  trial,  received   substantial  and  often  cumulative          testimony  on  all  points,13  and  heard  an  hour   of  closing          argument from each party's  counsel.  We find it  highly unlikely          that  the  verdict  could  have   been  the  result  of   Engel's          questioning and the attendant  commentary.  Cf. United States  v.                                                      ___ _____________          Rosales,  19  F.3d  763,  768  (1st   Cir.  1994)  (holding  that          _______          prosecutor's inappropriate argument  in closing  did not  warrant          new trial under harmless error standard).                                        ____________________          13   Indeed, the  evidence was  so redundant  that the  court was          prompted to exclaim that                         in all  my years, I have never seen                         a  case in  which the  same matters                         have come  up so  many times.   The                         accumulation  of  evidence in  this                         case  is really  burdensome. .  . .                         I'm telling you, I've told you many                         times, I don't know how much longer                         I can take cumulative evidence.          (Day 13, pages 89-90).                                         -37-                    There are significant reasons  why trial counsel should          not  be  able to  testify at  trial,  no matter  for  which party          counsel testifies.                          The        principal        ethical                         considerations    to    a    lawyer                         testifying on behalf of  his client                         regarding contested issues are that                         the   client's    case   will   "be                         presented through  the testimony of                         an obviously interested witness who                         is subject to  impeachment on  that                         account; and that the  advocate is,                         in  effect,  put  in  the  unseemly                         position   of   arguing   his   own                         credibility."          Siguel v. Allstate  Life Ins. Co., 141 F.R.D. 393,  396 (D. Mass.          ______    _______________________          1992)   (quoting   ABA   Comm.   on   Ethics   and   Professional          Responsibility,  Formal Op. 339 (1975)).  "Combining the roles of          advocate and  witness can  prejudice the  opposing party  and can          involve a conflict of interest between lawyer and client."  Model          Rules of Professional Conduct Rule 3.7 cmt. 1.  When the attorney          is called to the stand by his client's opponent, the concerns are          just as substantial, if not more.  See Siguel, 141  F.R.D. at 396                                             ___ ______          ("Although there are degrees of adverse testimony, there are few,          if  any,   situations  that   justify  acceptance   or  continued          employment in  this circumstance.").  Accordingly,  Model Rule of          Professional  Conduct 3.7 states that  a lawyer shall  not act as          advocate  at a trial where he or she  is likely to be a necessary          witness, except, among other  things, where the testimony relates          to an uncontested issue or disqualification of the attorney would          work  substantial hardship on the client.  Finally, there is also          the danger that  the performance of the dual roles of counsel and                                         -38-          witness will create  confusion on the jury's part  as to when the          attorney is  speaking as a  witness, "raising the  possibility of          the  trier  according  testimonial  credit  to  the  prosecutor's          closing  argument," United States v.  Johnston, 690 F.2d 638, 643                              _____________     ________          (7th Cir. 1982) --  or, conversely, weighing the testimony  as if          it were argument.                     All these concerns  clearly come  into play  at a  more          heightened  level when trial counsel acts as an expert.  However,          when counsel  is asked to  play that role  for the length  of one          question in a fifteen-day trial, even acknowledging the impact of          the attendant discussion with the  court, attempts to examine him          on the testimony and  references to it in the  closing arguments,          we  cannot  hold that  it rises  to  the level  of  harmful error          affecting  a party's  substantial  right where  the testimony  is          cumulative and  not a central  part of the  case.  Any  prejudice          that resulted from the  objected-to portions of Engel's testimony          did not rise to the level of harmful error.                      D.   Denial of Pre-Trial Motion for Continuance                    D.   Denial of Pre-Trial Motion for Continuance                         __________________________________________                    Prior  to trial,  Ahern  filed two  motions seeking  to          disqualify Engel as Scholz' counsel on the grounds that Engel was          a  percipient witness  who  ought to  testify on  Scholz' behalf.          Scholz  opposed, and  the district  court refused,  both motions.          When  the  parties  presented  their lists  of  witnesses,  Engel          appeared on  both parties' lists.  Approximately six weeks before          trial  was  scheduled to  begin, Ahern  filed  a third  motion to          disqualify.   This  time Scholz  agreed  to withdraw  his counsel                                         -39-          provided that he was given time to find new lead counsel.  In his          memorandum in support of  his motion, Scholz stated that  he "now          [felt] he must retain new trial counsel in  this matter, to avoid          the risk of a  disqualification of his counsel just  prior to the          trial, and for other reasons."  (Scholz' Memorandum in Support of          His  Motion  to Continue  Trial, page  3).   The  district court,          however,  denied both  Ahern's Renewed  Motion to  Disqualify and          Scholz' Motion to Continue Trial.                      As discussed  above, Scholz  maintains in his  brief on          appeal that the  trial court erred by allowing Ahern to use Engel          as his own expert against Scholz.  One of the four contentions he          uses to support this position is that                          the   trial  court   itself  placed                         Scholz     in    his     precarious                         predicament  when   it  refused  to                         grant the last  motion by Ahern  to                         disqualify  Engel  .   .  .  .  The                         failure  to  grant the  continuance                         under  these  circumstances,  which                         resulted  in  severe  prejudice  to                         Scholz,   is,  itself,   reversible                         error.          (Appellant's Brief,  page  34).   In  support of  his  statement,          Scholz cites  several cases weighing district  court decisions on          motions  for continuances.  See Lowe v. City of East Chicago, 897                                      ___ ____    ____________________          F.2d 272, 274-75 (7th Cir. 1990) (concluding that it was an abuse          of discretion to deny motion  for continuance where plaintiff was          faced with choice between voluntary dismissal and going to  trial          although  his attorney was not ready for trial); United States v.                                                           _____________          Flynt,  756 F.2d 1352, 1358-59 (9th  Cir.) (finding that district          _____          court  abused its  discretion in  denying motion  for continuance                                         -40-          where doing so effectively foreclosed defendant from presenting a          defense), amended, 764  F.2d 675  (9th Cir. 1985).   We need  not                    _______          prolong our discussion.  Simply put, we do  not feel the district          court  abused  its   discretion  in  denying  the  motion  for  a          continuance.  Even if it did, the error was harmless.                    Finally, we note that while we ultimately hold that the          court  did  not commit  harmful error  in making  its evidentiary          ruling, we find  it very disturbing that trial  counsel testified          in  this case.   In  making his  appeal, Scholz  directs us  to a          series of cases, several of which are referenced above, which lay          out the real and serious  concerns implicated by allowing counsel          to testify at trial.  See,  e.g., United States v. Dack, 747 F.2d                                ___   ____  _____________    ____          1172,  1172  n.5 (7th  Cir.  1984)  ("Where  evidence  is  easily          available   from   other   sources   and   absent  'extraordinary          circumstances'   or  'compelling   reasons,'   an  attorney   who          participates  in the case should  not be called  as a witness.").          We ask whether  Scholz and  his counsel read  these cases  before          opposing Ahern's first  two motions to disqualify.   The concerns          the cases voice are implicated whether counsel testifies for  his          or her own client or for the opposing party.  What is  more, even          if Engel  testified solely as  to ministerial  matters, we  still          doubt  the wisdom of allowing him on  the stand, as the matter of          his firm's  legal fees -- not only whether, as a whole, they were          commercially reasonable recording expenses but  also whether they          were reasonable  at all -- was  a matter of testimony.   The jury          heard  deposition testimony  from  Ahern's expert  Levy that  the                                         -41-          legal fees  from the  CBS  litigation were,  among other  things,          "excessive and  totally inappropriate" (Day 7,  page 86); whether          Engel  was called to  the stand by Scholz  or Ahern, indeed, even          had he  never testified,  his integrity  and judgment could  have          been questioned by the factfinders.                COUNTERCLAIM FOR FRAUD AND DECEIT AND AFFIRMATIVE DEFENSES              COUNTERCLAIM FOR FRAUD AND DECEIT AND AFFIRMATIVE DEFENSES                    The  Further Modification Agreement provided that Ahern          was entitled to  a share of the royalties of  any album completed          before  October  24,  1984.   Had  the  parties  adhered to  this          provision, Ahern would  not be  entitled to any  moneys from  the          third  album,  as it  was completed  after  that date.   Instead,          Scholz  waived   the  deadline,  conveying   his  waiver  through          communications between the parties' attorneys in May of 1984.  In          this  action, Scholz drew  on his waiver  of the  deadline in his          third  counterclaim and  several of  his affirmative  defenses to          argue  for rescission of the  waiver agreement on  the grounds of          fraud and deceit and, alternatively, its invalidation.  On appeal          before  us,  he appeals  the  district  court's directed  verdict          against him on these claims.                    Our standard of review is a familiar one.  A motion for          judgment  as a  matter of  law "should  be granted only  when the          evidence, and the inferences to be drawn therefrom, viewed in the          light most favorable to the nonmovant . . . could lead reasonable          persons  to but  one conclusion."   MacQuarrie,  877 F.2d  at 128                                              __________          (quoting  Dopico-Fern ndez v. Grand  Union Supermarket,  841 F.2d                    ________________    ________________________          11, 12 (1st Cir.), cert. denied, 488 U.S. 864 (1988)).  We review                             ____________                                         -42-          the district court's directed  verdict de novo.  See  Fleet Nat'l                                                 _______   ___  ___________          Bank,  45 F.3d at 552.  Accordingly,  "'we use the same stringent          ____          decisional   standards  that   control   the  district   court.'"          Gallagher v. Wilton  Enter., Inc.,  962 F.2d 120,  125 (1st  Cir.          _________    ____________________          1992)  (quoting Hendricks &  Assocs., Inc.  v. Daewoo  Corp., 923                          __________________________     _____________          F.2d 209, 215 (1st Cir. 1991)).                      A.   Rescission                    A.   Rescission                         __________                    In   his   Third   Affirmative   Defense    and   Third          Counterclaim, Scholz  sought recision of the  waiver agreement on          the grounds that Ahern fraudulently induced him to enter into the          agreement by not disclosing that he had neither accounted for nor          paid, since at least 1981, the royalties he owed Scholz under the          FMA.  Under New York law, applied here pursuant to the FMA choice          of law provision, a party seeking to prove  common law fraud must          show that:                         (1)  the  [cross-]defendant made  a                         material false  representation, (2)                         the [cross-]  defendant intended to                         defraud   the   [cross-]  plaintiff                         thereby, (3) the [cross-] plaintiff                         reasonably    relied    upon    the                         representation, and (4) the [cross-                         ]plaintiff  suffered  damage  as  a                         result of such reliance.          Banque Arabe et Internationale D'Investissement v. Maryland Nat'l          _______________________________________________    ______________          Bank,  57 F.3d  146, 153  (2d Cir.  1995) (analyzing  elements in          ____          context of claim for rescission based on fraud); see also Keywell                                                           ________ _______          Corp. v. Weinstein,  33 F.3d 159, 163 (2d Cir.  1994).  The first          _____    _________          element may be met by demonstrating not only a misrepresentation,          but  also a concealment or nondisclosure of a material fact.  See                                                                        ___                                         -43-          Allen v.  Westpoint-Pepperell, Inc.,  945  F.2d 40,  44 (2d  Cir.          _____     _________________________          1991);  Bickhardt v.  Ratner,  871 F.  Supp.  613, 618  (S.D.N.Y.                  _________     ______          1994).   In addition,  the party claiming  fraudulent concealment          must demonstrate that the  opposing party had a duty  to disclose          the material information in question and demonstrate each element          of the claim by clear and convincing evidence.   See Banque Arabe                                                           ___ ____________          et Internationale,  57 F.3d  at 153.   We begin  our analysis  by          _________________          weighing  what duty  Ahern  owed Scholz,  and  then turn  to  the          elements listed  above, ultimately  concluding that  the district          court erred in directing a verdict.                    In  the instant  case,  Scholz argues  that Ahern  owed          Scholz a duty to disclose because  he was a fiduciary.  See Brass                                                                  ___ _____          v. American Film Techs., 987 F.2d 142, 150 (2d Cir. 1993).  Ahern             ____________________          contests that at the time  the waiver was given in May  1984, the          Management Agreement had terminated and so there was no fiduciary          duty  and, thus,  no duty to  disclose.   "Under New  York law, a          fiduciary   relationship   includes  'both   technical  fiduciary          relations and  those informal relations which  exist whenever one          [person] trusts  in, and relies upon, another.'"  Allen, 945 F.2d                                                            _____          at 45 (quoting Penato  v. George, 383 N.Y.S.2d 900,  904-05 (N.Y.                         ______     ______          App. Div.  1976)); see Apple  Records, Inc.  v. Capitol  Records,                             ___ ____________________     _________________          Inc.,  529 N.Y.S.2d 279, 283  (N.Y. App. Div.  1988) (noting that          ____          fiduciary  relationship can  be  found between  close friends  or          where confidence  is based upon  prior business dealings).   "New          York courts typically  focus on  whether one  person has  reposed          trust  or confidence  in another  who  thereby gains  a resulting                                         -44-          superiority  or influence over the first."  Litton Inds., Inc. v.                                                      __________________          Lehman  Bros. Kuhn Loeb Inc.,  767 F. Supp.  1220, 1231 (S.D.N.Y.          ____________________________          1991), rev'd on other grounds, 967 F.2d 742 (2d Cir. 1992).                  ______________________                    Scholz points us to the decision in Apple Records, Inc.                                                        ___________________          v. Capitol Records, Inc., where the court  found that plaintiffs,             _____________________          the New  York corporation of  the Beatles, stated a  claim that a          fiduciary relationship existed.                          The   business   dealings   between                         Capitol  Records  and  the  Beatles                         date back  to 1962, when  the still                         unacclaimed Beatles entrusted their                         musical   talents   to    defendant                         Capitol  records.    It is  alleged                         that  this  relationship proved  so                         profitable to defendant that at one                         point the Beatles constituted 25 to                         30  percent of its  business.  Even                         after  the  Beatles attained  their                         remarkable degree of popularity and                         success,  they  still continued  to                         rely  on  Capitol  Records for  the                         manufacture  and   distributing  of                         their  recordings.  It  can be said                         that  from  such  a  long  enduring                         relationship  was  borne a  special                         relationship    of     trust    and                         confidence,   one   which   existed                         independent   of  the   contractual                         duties,  and  one which  plaintiffs                         argue was betrayed by fraud . . . .          529 N.Y.S.2d at 283.   Like the parties in Apple Records,  at the                                                     _____________          time of the waiver in 1984 Ahern and Scholz had a long history of          business  dealings,   marked  by  a  series   of  agreements  and          modification agreements.  Also as in that  case, the relationship          between  the  parties  here  was  a  profitable  one  for  Ahern.          However, unlike that case,  Ahern no longer, as of  several years          previously, was  Scholz' manager.  Indeed,  Scholz testified that                                         -45-          in 1978, when he first started the process that culminated in the          FMA,  he was no longer on speaking terms with Ahern.  While we do          not doubt  -- and  Ahern admitted  at trial --  that Ahern  had a          fiduciary duty to Scholz until 1981, the question remains whether          there  was such a  special relationship  of trust  and confidence          between the  parties at the  time of the waiver  that a fiduciary          relationship, at least  as regards  Ahern's duty  to pay  Scholz'          share  of  the  royalties  from  the  first  and  second  albums,          remained.    Since a  reasonable juror  could  find that  it did,          however, a  directed verdict is inappropriate on  the question of          whether  Ahern  owed Scholz  a  fiduciary  duty.   Therefore,  we          continue our analysis and  turn to the evidence presented  on the          elements listed above.                    First, as for the  material false misrepresentation  or          nondisclosure, it is undisputed  that Ahern did not disclose  his          failure to pay, a fact which a reasonable juror could easily find          material.    On the  other hand,  both  Ahern and  Barbara Sherry          ("Sherry"),  who provided business  management services for Ahern          and BOSTON while Ames served as their business manager and served          as  Ahern's business  manager from  1982 up  through the  time of          trial,  testified that they were  not aware money  was owed until          after the waiver  was made, and Scholz  points to no evidence  of          concealment.   Second,  Scholz would  have us  read an  intent to          deceive into Sherry's  testimony agreeing with Engel's  statement          that  today,  looking at  a  royalty statement  from  the company          charged with  administrating  the publishing,  "it's  immediately                                         -46-          plain to anyone who knows this business, that [the administration          company] was not paying"  the proper percentage to Scholz.   (Day          6, pages 61-62).  Scholz cannot rely on this as an admission that          Sherry knew  Scholz was  not receiving  all his moneys,  however,          since  her actual  testimony was  that she  did not  know of  the          failure at the time.  Instead, he seeks to build on her admission          that one could have known from the face of the royalty statements          that there was an error,  as well as the  fact that there was  no          evidence that letters of direction  were prepared for the foreign          sub-publishers, to support his contention that Ahern "had to have          known" he was  not making all his  payments.  Ahern presented  no          evidence  indicating that he could  not have known  of the error,          just that he did not.  In essence, therefore, determining whether          Ahern intended to deceive Scholz becomes an issue of credibility,          one which of necessity is a question for the jury.                    As  for whether  Scholz  reasonably  relied on  Ahern's          nondisclosure,  his case is damaged by the fact that the evidence          is undisputed  that Ahern  did not  actually solicit  the waiver.          Scholz'  attorney contacted  his counsel and  offered it  to him.          Scholz explained his motivation at trial:                      A.   Well, I figured if  I, if I finished                      the record six months later and  I missed                      that date that Paul Ahern was entitled to                      his  12  percent  of the  royalties,  you                      know,  I missed  that date  and then  six                      months  later delivered the record, I was                      sure he would  be upset  about that  and,                      and  want his  12 percent  anyway,  and I                      didn't want to fight with him.                      Q.   And  was it  your intention  at that                      time --                      A.  I had enough trouble at that point.                                         -47-                      Q.    And did  you  ask  for anything  in                      return for that waiver?                      A.  No.          (Day 10, pages 38-39).   However, Scholz points to  his testimony          at  trial that he "obviously" would not have agreed to the waiver          had he known of  Ahern's failure to pay him  publishing royalties          as evidence  of his reliance.   Giving Scholz the  benefit of all          the  inferences,  a  reasonable  juror  could  find  under  these          circumstances  that   Ahern  sought  to  induce   Scholz  into  a          fraudulent agreement,  once it had  been offered to  him, through          nondisclosure of his  failure to pay.  The presence of the fourth          element, damages, Scholz contends, is  witnessed by the fact that          he now owes  Ahern money:  had he not  waived the deadline, Ahern          would not have been  entitled to royalties from the  third album.          Given  all of  the  above,  we  find  that  Scholz  has  mustered          sufficient evidence for the issue to go to the jury.                      B.   Invalidation of the Waiver                    B.   Invalidation of the Waiver                         __________________________                    In his Fourth  and Fifth  Affirmative Defenses,  Scholz          argues that the waiver  should be invalidated because he  did not          knowingly give his  consent.  He maintains here that  in order to          prevail, all  he must prove is  that he would not  have agreed to          the waiver if  he had known of Ahern's failure  to account to and          pay him royalties.  Since he testified to that effect, he argues,          the  district court  erred in  granting a  directed verdict.   We          disagree.  First, we note that  none of the cases Scholz looks to          for support discuss invalidation  as an affirmative defense under          Federal  Rule of  Civil Procedure  8(c).   Although the  case law                                         -48-          indicates  that  there  is  precedent  for  such  an  affirmative          defense, see, e.g., Unites  States v. Krieger, 773 F.  Supp. 580,                   ___  ____  ______________    _______          583  (S.D.N.Y. 1991)  (denying summary  judgment on,  inter alia,                                                                _____ ____          claim for invalidity of guarantees despite failure to claim it as          an affirmative defense), we have found, and  the parties present,          no  comprehensive discussion  of its  nature.   See 2A  James Wm.                                                          ___          Moore  et al.,  Moore's Federal  Practice    8.27[4] n.6  (2d ed.                          _________________________          1995)  (listing  most  common  affirmative   defenses,  excluding          invalidity).                      We find no  other support for  Scholz' position in  the          cases he cites.   Allen, which  he looks  to for the  proposition                            _____          that all he  has to prove is that he would not have agreed to the          waiver,  does  not address  invalidity  of a  waiver  or release.          Rather,  it notes that  a court may rescind  a release "'where it                                              _______          finds  either mutual  mistake or  one party's  unilateral mistake          coupled  with some fraud . . . of  the other party.'"  Allen, 945                                                                 _____          F.2d  at 44 (quoting National Union  Fire Ins. Co. v. Walton Ins.                               _____________________________    ___________          Ltd.,  696 F.  Supp. 897, 902  (S.D.N.Y. 1988)).   Scholz did not          ____          plead  mutual mistake, and his rescission claim based on fraud is          addressed above.                      Scholz  states that he does not have to show Ahern owed          him a fiduciary duty in order to  state a claim for invalidation.          Indeed,  the  court  in Allen  notes  that  where  one party  has                                  _____          superior  knowledge not available to  the other party,  a duty to          disclose may arise, apparently exclusive of a fiduciary duty, id.                                                                        ___          at 45,  but Scholz does not  point to any evidence  that he could                                         -49-          not have  discovered that  Ahern had not  been paying  him.   His          reliance  on Gishen v. Dura Corp., 362  Mass. 177, 285 N.E.2d 117                       ______    __________          (Mass.  1972), apparently  for  the proposition  that "[a]  party          cannot waive information  with respect to an error in calculation          whose  existence  is  unknown  to  him,  particularly  where  his          ignorance  is caused by the  very lack of  disclosure in question          and where the parties are not fully at arm's length," id. at 122,                                                                ___          is misplaced.   First and most importantly, under  the choice-of-          law provision of the FMA, the parties here are applying New York,          not Massachusetts,  law.  Second, the Gishen  opinion addressed a                                                ______          request  for  a jury  instruction  on  waiver, which  was  denied          because  the party had not previously  presented the argument; it          does not involve an affirmative defense.  Id. at 121.  The quoted                                                    ___          language  is dicta --  and seems to  undercut Scholz' proposition          that a fiduciary relationship is not necessary.                    Scholz' citation to Werking v. Amity Estates, Inc., 137                                        _______    ___________________          N.E.2d 321 (N.Y. 1956), also proves unfruitful.  There, the court          defines a waiver  as "'the intentional relinquishment  of a known          right  with both knowledge of  its existence and  an intention to          relinquish  it.'"  Id. at  327 (quoting Whitney  on Contracts 273                             ___          (4th  ed. 1946)).   The  court found  the waiver in  question, of          jurisdictional defects in a tax sale of plaintiff's farm, invalid          because  plaintiff "had no knowledge  of the right  he is charged          with  having  knowingly  and  intentionally relinquished."    Id.                                                                        ___          Here,   however,  Scholz   knew   exactly  what   right  he   was                                         -50-          relinquishing:   the right  not to pay  Ahern 12  percent of  the          royalties from the third album.                                 MASSACHUSETTS LAW CLAIMS                               MASSACHUSETTS LAW CLAIMS                    We  next turn  to  Ahern's claim  against Scholz  under          Massachusetts  General  Law  Chapter   93A,  sections  2  and  11          ("Chapter 93A").  The  district court found that Scholz'  failure          to pay royalties  as provided  in the FMA  violated Chapter  93A.          More specifically,  it held  that the Scholz  Statement regarding          the  royalties  on the  third  album  constituted an  unfair  and          deceptive business practice,  and that it  was a "deliberate  and          blatant attempt  to deprive Plaintiff Ahern  of moneys rightfully          due and owing  to him."   (District Court  Memorandum and  Order,          page 3).   The  court awarded  Ahern $547,000  as well as  costs,          interest, and reasonable attorney's fees.                      Scholz now contends that his actions do not rise to the          level of unfair or  deceptive trade practices within  the meaning          of Chapter  93A.  Section 11  of Chapter 93A provides  a cause of          action to                          [a]ny  person  who  engages in  the                         conduct  of  any trade  or commerce                         and  who suffers any  loss of money                         or property, real or personal, as a                         result of the  use or employment of                         another person who  engages in  any                         trade  or  commerce  of .  .  .  an                         unfair or deceptive act or practice                         . . . .          Mass. Gen.  L. ch. 93A,    11.14   We begin with  our standard of                                        ____________________          14  Section  2, which is also referred to  in the current action,          establishes that  "[u]nfair methods of competition  and unfair or          deceptive  acts or  practices  in the  conduct  of any  trade  or                                         -51-          review;  once it is established, we address Scholz' attack on the          sufficiency of the district  court's findings, and his contention          that  his acts did  not rise to  the level  of "rascality" courts          require of Chapter  93A violations.   See Quaker  State Oil  Ref.                                                ___ _______________________          Corp. v.  Garrity Oil Co., 884  F.2d 1510, 1513 (1st  Cir. 1989).          _____     _______________          Because we ultimately  find that  the district court  erred as  a          matter of law  in finding  that Scholz violated  Chapter 93A,  we          need not address the defenses Scholz raises to the application of          that Chapter.                    A.  Standard of Review                    A.  Standard of Review                        __________________                    We review the district court's findings of law de novo,                                                                   _______          and only set aside  its findings of fact if  "clearly erroneous."          See  Industrial Gen. Corp. v. Sequoia Pacific Sys. Corp., 44 F.3d          __________________________    __________________________          40, 43 (1st Cir. 1995); see, e.g., Pepsi-Cola Metro. Bottling Co.                                  ___  ____  ______________________________          v. Checkers, Inc.,  754 F.2d 10, 17 (1st Cir.  1985).  "A finding             ______________          of fact is '"clearly  erroneous" when although there  is evidence          to support it, the reviewing court on the entire evidence is left          with the definite  and firm  conviction that a  mistake has  been          committed.'"  Industrial Gen., 44 F.3d at 43 (quoting Anderson v.                        _______________                         ________          City  of  Bessemer  City,  470 U.S.  564,  573  (1985)  (citation          ________________________          omitted)).   "Although whether a particular set of acts, in their          factual  setting, is unfair or  deceptive is a  question of fact,          the  boundaries  of  what  may  qualify  for consideration  as  a          [Chapter] 93A violation  is a  question of law."   Schwanbeck  v.                                                             __________                                        ____________________          commerce" are unlawful.  Mass. Gen. L. ch. 93A,   2.                                         -52-          Federal-Mogul Corp.,  578 N.E.2d 789, 803 (Mass.  1991), rev'd on          ___________________                                      ________          other grounds, 592 N.E.2d 1289 (Mass. 1992).          _____________                    B.  The District Court's Findings                    B.  The District Court's Findings                        _____________________________                    The district court determined that Scholz  had violated          sections 2 and 11 through his failure to pay Ahern royalties from          the  third   album,  and  made  the  following  findings  in  its          Memorandum and  Order.  First, it found that Scholz agreed to pay          Ahern  royalties after deduction of only a producer's royalty and          all  commercially reasonable  recording  expenses.   Second,  the          court held that  the Scholz Statement  constituted an unfair  and          deceptive business  practice.   More specifically, it  found that          the  deductions taken for legal fees,  payment to Jeff Dorenfeld,          time  spent in the studio, and the resulting recording costs were          all not commercially reasonable  recording expenses.  Rather, the          court   stated,  $500,000   in   recording   expenses  would   be          commercially reasonable.   It  next found that  Scholz' Statement          was                         a deliberate and blatant attempt to                         deprive  the   Plaintiff  Ahern  of                         monies rightfully due and  owing to                         him as royalties  from the sales of                         the  third  Boston  album.     Such                         egregious conduct . . . is patently                         an  unfair and  deceptive practice.                         The   submission  of   [the  Scholz                         Statement]  as   an  accounting  by                         Scholz  to  Ahern  is   a  shocking                         display  of  arrogant  disdain  for                         Ahern's contractual  rights and was                         rendered in obvious bad faith.            (District Court Memorandum and Order, page 3).                                           -53-                    Scholz  challenges the  sufficiency of  these findings.          Federal Rule of Civil Procedure  52(a) mandates that courts "find          the facts  specially and state separately  [their] conclusions of          law  thereon" when  trying  facts without  a  jury.   See,  e.g.,                                                                ___   ____          Monta ez  v.  Bagg, 510  N.E.2d 298,  300  (Mass. App.  Ct. 1987)          ________      ____          (noting  that judge  did  not  make  detailed  findings  of  fact          regarding  Chapter 93A  claims under  Mass. R.  Civ. P.  52(a)).           Scholz notes that  the court  did not state  that the  deductions          were actually deceptive, and reminds us that the Scholz Statement          set forth in some detail what each of the deductions were.  Since          the court did  not make more  specific findings  as to unfair  or          deceptive practices, he maintains,  we should reverse the Chapter          93A finding against  him.15   See Schwanbeck, 578  N.E.2d at  803                                        ___ __________          (holding  that district  court finding  of Chapter  93A violation          lacked foundation in the court's subsidiary findings).                    However, we  remind Scholz  that under Rule  52(a) "the          judge  need  only make  brief,  definite  pertinent findings  and          conclusions on the  contested matters."  Makuc  v. American Honda                                                   _____     ______________          Motor Co., 835 F.2d 389, 394 (1st Cir. 1987).  Here, the district          _________          court  found that  Scholz  breached the  FMA,  that four  of  his          deductions were commercially unreasonable, while a figure of $0.5          million would be reasonable; and that the Scholz Statement was "a                                        ____________________          15  We  note that, contrary to Scholz' position,  were we to find          that  the district court did  not lay out  sufficient findings of          fact, we would likely remand  so that the lower court could  make          subsidiary findings of fact and enter a new judgment on the basis          of its findings.  See, e.g., Sidney Binder, Inc. v. Jewelers Mut.                            ___  ____  ___________________    _____________          Ins. Co., 552 N.E.2d 568, 572 (Mass. App. Ct. 1990).          ________                                         -54-          deliberate and  blatant attempt to deprive" Ahern  of moneys owed          him.   It is  a question of  law whether this  attempt to deprive          Ahern rises  to the level of  a violation of Chapter  93A, as the          lower  court held, and we believe the decision includes enough of          a basis  for the Chapter  93A finding  to save the  decision from          remand.   The district court has  provided us with more than mere          conclusions.  See Sidney Binder, Inc., 552 N.E.2d at 572 (holding                        ___ ___________________          that  explanatory  findings  were necessary  where  court  merely          recited the  evidence without making findings  and concluded that          "neither party ha[d] sustained its burden of proof" that  Chapter          93A had been  violated).  We note,  however, that our task  would          have been much simpler in this and other issues had the  district          court seen fit to explicate more of its decision-making on paper.          There is a gap between  finding that deductions are  commercially          unreasonable  and finding that the Scholz Statement as a whole is          an attempt to deprive  Ahern deserving of the  modifiers "unfair"          and "deceptive":  while we are willing to follow  the lower court          across the distance between  them, a bridge would have  been more          than welcome.                    C.  Scholz' Challenge to the Chapter 93A Findings                    C.  Scholz' Challenge to the Chapter 93A Findings                        _____________________________________________                    Having  set  forth  our  standard  of  review  and  the          findings of the district  court, we turn to the heart  of Scholz'          challenge to the  Chapter 93A award.  As  noted above, whether an          act was unfair and/or deceptive is  a question of fact.  Based on          our  review of the evidence, we do  not hesitate to find that the          district  court's findings of fact are not clearly erroneous, and                                         -55-          we will  not disturb  them.16  See  United Truck  Leasing Co.  v.                                         ___  _________________________          Geltman,  533 N.E.2d 647, 653  (Mass. App. Ct.  1989), aff'd, 551          _______                                                _____          N.E.2d 20 (Mass. 1990).  Thus, we assess  the lower court's award          under  Chapter  93A  in  the  light  of  its  finding  that  four          deductions -- which totalled $4.2 million -- were not reasonable,          but $0.5  million  would  be  commercially  reasonable  recording          costs,  and that the Scholz Statement was a deliberate attempt to          deprive Ahern of his  percentage of the royalties from  the third          album.   We ask now  whether these facts rise  to the level  of a          violation of Chapter 93A, section 11.                    There  is   no   clear  definition   of  what   conduct          constitutes an "unfair or deceptive" act.  Mass. Gen. L. ch. 93A,            11.  The Massachusetts courts "have noted, however, that '[t]he          statute  "does  not contemplate  an  overly  precise standard  of          ethical  or moral behavior.  It is the standard of the commercial          marketplace."'"  Shepard's  Pharmacy, Inc. v.  Stop & Shop  Cos.,                           _________________________     _________________          640 N.E.2d 1112, 1115 (Mass. App. Ct. 1994) (quoting USM Corp. v.                                                               _________          Arthur  D.  Little Sys.,  Inc., 546  N.E.2d  888 (Mass.  App. Ct.          ______________________________          1989)),  review granted, 644 N.E.2d 226 (1994).  In the extensive                   ______________          case law  on Chapter 93A, "a common  refrain has developed.  'The          objectionable conduct must attain a level of rascality that would          raise an eyebrow of someone inured to the rough and tumble of the          world of commerce.'"   Quaker  State, 884 F.2d  at 1513  (quoting                                 _____________                                        ____________________          16  Scholz argues at length in  his breach that the facts do  not          support a finding  that his acts  were unfair or  deceptive.   We          decline,  however, to enter into the record yet again to point to          testimony and evidence refuting his contentions.                                         -56-          Levings v. Forbes & Wallace Inc., 396 N.E.2d 149, 153 (Mass. App.          _______    _____________________          Ct. 1979)).  In short,                          a  chapter  93A claimant  must show                         that  the defendant's  actions fell                         "within  at  least the  penumbra of                         some   common-law,  statutory,   or                         other   established    concept   of                         unfairness,"   or   were  "immoral,                         unethical,       oppressive      or                         unscrupulous,"   and  resulted   in                         "substantial   injury   . . .    to                         competitors or other businessmen."          Id. (quoting PMP Assocs., Inc. v. Globe Newspaper Co., 321 N.E.2d          ___          _________________    ___________________          915, 917 (Mass. 1975)).  In evaluating whether an act or practice          is  unfair,  we  assess   "the  equities  between  the  parties,"          including what both parties  knew or should have known.   Swanson                                                                    _______          v. Bankers Life Co., 450 N.E.2d 577, 580 (Mass. 1983).             ________________                    It is  well established that  breach of a  contract can          lead to a  violation of Chapter  93A.  See, e.g.,  Anthony's Pier                                                 ___  ____   ______________          Four, Inc. v. HBC Assocs., 583 N.E.2d 806, 821 (Mass. 1991).  The          __________    ___________          simple fact that a  party knowingly breached a contract  does not          raise  the  breach  to the  level  of  a  Chapter 93A  violation,          however.   Cf.  Pepsi-Cola Metro.  Bottling Co.,  754 F.2d  at 18                     ___  _______________________________          (stating that  "mere breaches of  contract, without more,  do not          violate [C]hapter 93A.").  In the breach of contract context, the          Massachusetts Supreme  Judicial Court has "said  that conduct 'in          disregard  of known  contractual  arrangements' and  intended  to          secure benefits for the breaching party constitutes an unfair act          or practice  for [Chapter] 93A  purposes."  Anthony's  Pier Four,                                                      ____________________          583 N.E.2d at 821;  see Wang Labs., Inc. v.  Business Incentives,                              ___ ________________     ____________________          Inc., 501 N.E.2d 1163, 1165 (Mass. 1986).  Relying on the Appeals          ____                                         -57-          Court of  Massachusetts' decision  in Atkinson v.  Rosenthal, 598                                                ________     _________          N.E.2d  666 (Mass.  App. Ct.  1992), Scholz  seeks to  limit this          test.  There, the court  examined a series of breach of  contract          cases and concluded that                         [t]here   is   in  those   cases  a                         constant  pattern of  the use  of a                         breach  of contract  as a  lever to                         obtain  advantage   for  the  party                         committing  the breach  in relation                         to  the  other  party;   i.e.,  the                         breach    of   contract    has   an                         extortionate quality  that gives it                         the  rancid  flavor of  unfairness.                         In  the  absence of  conduct having                         that quality, a failure  to perform                         obligations under  a written lease,                         even  though   deliberate  and  for                         reasons of  self-interest, does not                         present an  occasion for invocation                         of [Chapter] 93A remedies.          Id. at 670-71  (citation omitted).   We have  not addressed,  and          ___          find no Massachusetts case  law addressing, whether this language          from Atkinson extends beyond its immediate context to limit award               ________          of Chapter 93A damages in breach of  contract cases to cases with          an "extortionate quality."   See NASCO,  Inc. v. Public  Storage,                                       ___ ____________    ________________          Inc.,  29 F.3d  28,  33 (1st  Cir.  1994) (quoting  Atkinson  and          ____                                                ________          accepting,  arguendo, that  "in a  breach of  contract situation,                      ________          liability does not attach under [Chapter]  93A, section 11 unless          a defendant  knowingly  breached a  contact  in order  to  secure          additional benefits to itself to the detriment of a plaintiff.").                    We need not do so today,  however.  First, if we accept          the test for Chapter 93A violation Scholz claims Atkinson frames,                                                           ________          the  district court's award here will not stand because there has                                         -58-          not been an extortionate element to the breach:  Scholz tried  to          hold  on to Ahern's  money, but he  was not using  the breach "to          force  [Ahern] to  do what  otherwise [he]  would not  be legally          required to do."17   Pepsi-Cola Metro. Bottling Co., 754  F.2d at                               ______________________________          18 (affirming Chapter 93A  award where defendant withheld payment          as  a "wedge" to force  plaintiff to supply  more products); see,                                                                       ___          e.g.,  Anthony's  Pier  Four, 583  N.E.2d  at  822 (holding  that          ____   _____________________          withholding  approval as a  pretext to force  party into changing          price of underlying contract violated Chapter 93A).                    Second, if we were to find that Atkinson does not limit                                                    ________          Chapter 93A liability to cases  with an extortionate element, but          rather address Scholz' acts under the test as stated in Anthony's                                                                  _________          Pier Four, we still  find that Chapter 93A has not been violated.          _________          That test asks whether  there has been conduct "'in  disregard of          known contractual  arrangements' and intended to  secure benefits          for the breaching  party."   Anthony's Pier Four,  583 N.E.2d  at                                       ___________________          821;  see Wang Labs., 501 N.E.2d at 1165 (finding liability under                ___ __________          Chapter  93A  where  interference  with  contract "constituted  a                                        ____________________          17   Ahern tries to argue that not only the Scholz Statement, but          also  Scholz' defense of this  case, in which  he raised numerous          defenses and counterclaims, fulfill  the requirement of finding a          "wedge" used by Scholz to force Ahern to abandon his share of the          royalties from the  third album.   However, the district  court's          findings  do  not  discuss  Scholz'  conduct  in  defending  this          lawsuit, either by reference  or as a basis for  its conclusions.          We  refuse  to  move as  far  afield  from  the district  court's          findings in order to find extortionate conduct as Ahern requests.          His  reliance  on  the  court's  discussion  of  the  defendant's          litigation practices in Quaker  State is misplaced, because there                                  _____________          the defendant's  prosecution of  the counterclaims was  raised in          the complaint,  and was  addressed by the  district court  below.          884 F.2d at 1513-14.                                         -59-          willful act calculated to obtain the benefits of [the] contract .          .  .  without   cost  and  in  disregard   of  known  contractual          arrangements").   Here,  the  court found  that Scholz  knowingly          breached the contract in order to gain a benefit -- Ahern's share          of the royalties.  But  that would be true of any  knowing breach          of  a contract.    The question,  then, is  whether the  level of          "rascality" is  sufficient to rise to the level of a violation of          Chapter  93A.  We  find it is  not.  First,  while the deductions          that the court deemed commercially  unreasonable ate up more than          half of the  royalties reported, we note that Scholz did not seek          to conceal the nature of the deductions:  he laid them out on the          Scholz Statement in varying levels of detail.  Next, while Scholz          has an extensive degree of control over the moneys from the third          album, there has been no allegation that he did not report all of          the royalties from  MCA on  the Scholz Statement.   Evidence  was          presented  that  the  number of  hours  spent  on  the album  was          reconstructed after the fact, but the district court did not find          that the figures given  were inaccurate, just that they  were not          deductible.   Scholz' breach amounted to more than a dispute over          the commercial reasonableness of  certain deductions, as he would          have us believe.  Nonetheless, his acts did not rise to the level          of rascality  required for Chapter 93A  liability.18  Ultimately,                                        ____________________          18  Both parties devote sections of their briefs to six "factors"          related  to Scholz'  "rascality" which  Scholz raises,  and Ahern          disputes.  We note that, for the most part, they prove irrelevant          because  we focus here on  Scholz' actions in  breaching the FMA,          not  the nature of the  relationship between the  parties for the          last twenty years.                                         -60-          therefore,  we conclude that the district court erred as a matter          of law in finding  Scholz violated Chapter 93A, and  reverse that          holding.                        PREJUDGMENT INTEREST AND ATTORNEY'S FEES                       PREJUDGMENT INTEREST AND ATTORNEY'S FEES                    As  we have found  that Scholz did  not violate Chapter          93A,  we need  not address  the parties' arguments  regarding the          award  of attorney's  fees under that  statute.  Nor  do we weigh          Ahern's  cross-appeal of  the district  court's refusal  to award          prejudgment  interest, since  that is  based on  his Chapter  93A          contention.   See Mass. Gen. L. ch.  231   6C ("interest shall be                        ___          added . . .  to the amount of damages,  at the contract rate,  if          established, or at the rate of twelve percent per annum from  the          date of the breach or demand.").  It does not apply to his breach          of contract claim, as that  was brought under New York law.   See                                                                        ___          Aubin v. Fudala, 782  F.2d 287, 289 (1st Cir.  1986) (noting that          _____    ______          "[w]hen  a Plaintiff secures a  jury verdict based  on state law,          the  law  of   that  state  governs  the  award   of  prejudgment          interest.").                    No costs on appeal to either party.                                      CONCLUSION                                      CONCLUSION                    For  the reasons  stated  above, we  reverse the  lower                                                         _______          court's  decision regarding  Chapter 93A  violations, affirm  its                                                                ______          other  holdings except on rescission, and remand for trial on the                                                    ______          issue of rescission.                                         -61-
