
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1820                          ROY R. DAMON AND ELEANOR M. DAMON,                               Plaintiffs - Appellants,                                          v.                                  SUN COMPANY, INC.,                                Defendant - Appellee.                                 ____________________          No. 95-1821                          ROY R. DAMON AND ELEANOR M. DAMON,                               Plaintiffs - Appellees,                                          v.                                  SUN COMPANY, INC.,                                Defendant - Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS              [Hon. W. Arthur Garrity, Jr., Senior U.S. District Judge]                                            __________________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Selya, Circuit Judge.                                         _____________                                _____________________               Brian R. Corey, with whom Law Offices of Brian R. Corey  was               ______________            _____________________________          on brief for Roy R. Damon and Eleanor M. Damon.               Michael A. Fitzhugh, with  whom Michael John Miguel, Cynthia               ___________________             ___________________  _______          S.  Phelan  and  Fitzhugh &  Associates  were  on  brief for  Sun          __________       ______________________          Company, Inc.                                 ____________________                                     July 5, 1996                                 ____________________                                         -2-                    TORRUELLA,  Chief Judge.   Plaintiffs  brought suit  in                    TORRUELLA,  Chief Judge.                                ___________          this case claiming misrepresentation  and violation of Mass. Gen.          L.  ch. 93A,   11.  For the  reasons stated herein, we affirm the          decision of the district court.                                      BACKGROUND                                      BACKGROUND                    The   parties  stipulated   to  the   following  facts:          Defendant  Sun Oil Company, Inc.  (R & M)  ("Sun") owned property          located  at  225  Brockton Ave.,  Abington,  Massachusetts,  (the          "property") from 1971  to 1979.   In 1972, Sun  built a  gasoline          station  with  underground  storage  tanks on  the  property  and          operated a  retail  gasoline station  thereafter  until  November          1977.  On or about December 19, 1974, a leaking underground  pipe          leading from the  underground storage tanks to the pumps released          approximately 2,000 gallons of  gasoline.  Sun's regional manager          of  operations,  Robert  Laubinger   ("Laubinger"),  was  on  the          property  after the leak was  discovered.  On  November 21, 1979,          the plaintiffs, Roy Damon  ("Damon") and Eleanor Damon (together,          the  "Damons"), purchased the property from Sun for $90,000.  The          plaintiffs had  a right to examine  the property by terms  of the          Agreement of Sale.   The Damons  owned the property from  1979 to          March  25,  1992 and  operated a  retail  service station  at the          property from June 12, 1980 to January 31, 1991.                    On January 31, 1991, the plaintiffs leased the property          to K. Rooney, Inc. ("Rooney").  Since then, Rooney has operated a          retail service station on the property.  In November 1991, Rooney          began  upgrading the station by installing new pumps and Stage II                                         -3-          of a vapor recovery  system.  As digging commenced,  the Abington          Fire Department observed petroleum product pooling in the surface          excavations,  shut  down   the  construction  and  notified   the          Massachusetts Department of Environmental Protection ("DEP").  On          December 19, 1991, the DEP sent a Notice of Responsibility to the          plaintiffs and  Rooney, requiring  that a  Phase  I Limited  Site          Investigation  Report  and   Preliminary  Assessment  Report   be          completed.  A company hired by Rooney performed the investigation          and issued a report  dated October 1992.  As part  of the Phase I          investigation,  monitoring  wells were  installed and  samples of          groundwater  were taken  and  analyzed.    As  a  result  of  the          discovery  of the  pollution,  Rooney refused  to  pay rent  from          November  1991  to March  1992.    The  lease  agreement  between          plaintiffs  and Rooney granted  Rooney an option  to purchase the          property for $600,000.  Rooney did not exercise its lease option.          On  March 25, 1992, Rooney purchased the property from the Damons          by assuming  a first mortgage  in the  amount of  $275,000 and  a          second  mortgage in  the amount of  $50,000.  Rooney  also made a          cash payment of $20,000 to plaintiffs.                    The  district  court's  additional  findings   of  fact          included the following.  A rupture  of an elbow joint in the pipe          which connects the  tanks and  the pumps caused  the 1974  spill,          which closed the station for approximately six weeks.  In June or          July 1979, Damon attempted  to reach Richard Bunzell ("Bunzell"),          whose name  was  given on  the "For  Sale" sign  at the  station.          After  some  unsuccessful  attempts   to  reach  Bunzell,  a  Sun                                         -4-          telephone operator  referred Damon  to Laubinger,  Sun's regional          manager  for service  station maintenance.   The  questions Damon          asked Laubinger about the property included an inquiry concerning          the  age of  the building,  and whether  Sun had  experienced any          problems  with the  station,  particularly with  the  underground          tanks.  Laubinger knew of the  1974 spill, but did not reveal it.          Rather,  he  answered that  it was  a  "good station"  which just          needed to be run by a good operator to  be successful.  After his          phone conversation  with Laubinger, Damon contacted  Bunzell and,          after some negotiation, accepted  his offer of $90,000.   In late          August 1979, Damon  and Bunzell met at  the property to view  the          property.    Damon asked  about a  depression  he noticed  in the          blacktop  near the pumps and  Bunzell explained it  was caused by          the installation of the  first stage of a vapor  recovery system.          In  response to  Damon's  question of  whether  Sun had  had  any          problems with the underground storage tanks, Bunzell stated, "No,          we've had no problems with it.  It's all good."                    In 1980  Damon had  the three 6,000  gallon underground          gasoline  tanks tested for tightness by Getty Oil, Co., his first          gasoline supplier: they tested tight, as they did in May 1984 and          again in January 1991.  In 1992, no holes were observed in any of          the underground gasoline tanks  or oil tanks.   The  southern end          of  the pit  dug  around the  three  gasoline tanks  yielded  the          highest level  of contamination; 101 cubic  yards of contaminated          soil were  eventually removed  for off-site treatment.   Finally,          samples  of  contaminated water  collected  and  examined by  the                                         -5-          company  conducting  the 1992  Phase  I study  indicate  that the          contamination  contained  the  gasoline  additive  MTBE ("MTBE"),          which was not added to Sunoco gasoline until 1984.                    The  Damons brought suit  against Sun,  alleging common          law  misrepresentation and violation of  chapter 93A,    11.  The          district  court,  after a  four day  bench  trial, found  for the          Damons on both the misrepresentation and  the chapter 93A counts,          awarding them $245,000 plus reasonable attorney's fees and costs.          In  its appeal,  Sun  now challenges  the  three rulings  of  the          district  court  --  its denial  of  Sun's  motion  for entry  of          judgment at the close  of plaintiffs' case in chief, see  Fed. R.                                                               ___          Civ.  P.  52(c);  the  district  court's  judgment  and  findings          pursuant  to trial; and its denial of Sun's post-trial motions to          alter  and amend the  judgment and findings and  for a new trial,          see Fed. R. Civ. P. 59.          ___                                CAUSATION AND DAMAGES                                CAUSATION AND DAMAGES                               A.  The Legal Framework                               A.  The Legal Framework                                   ___________________                    The    Damons   charged   Sun    with   the   tort   of          misrepresentation, also referred to as fraud or deceit.  See Bond                                                                   ___ ____          Leather Co.  v. Q.T. Shoe Mfg.  Co., 764 F.2d 928,  935 (1st Cir.          ___________     ___________________          1985).   The elements of misrepresentation  are well established:          in order to recover, plaintiff                      must allege and prove that  the defendant                      made a false representation of a material                      fact  with knowledge  of its  falsity for                      the purpose of inducing the  plaintiff to                      act  thereon,  and  that   the  plaintiff                      relied  upon  the representation  as true                      and acted upon it to his [or her] damage.                                         -6-          Barret  Assocs., Inc.  v. Aronson,  190 N.E.2d  867,   868 (Mass.          _____________________     _______          1963)  (quoting  Kilroy v.  Barron,  95  N.E.2d 190,  191  (Mass.                           ______     ______          1950)); see Metropolitan Life Ins. Co. v. Ditmore,  729 F.2d 1, 4                  ______________________________    _______          (1st Cir. 1984).   "The party making the representation  need not          know  that  the statement  is false  if  the fact  represented is          susceptible of  actual knowledge."   VMark Software, Inc.  v. EMC                                               ____________________     ___          Corp., 642 N.E.2d 587, 593 n.9 (Mass. App. Ct. 1994).   Here, the          _____          alleged false  representations are  the statements made  by Sun's          representatives that  it was a  "good" station, upon  which Damon          relied in his purchasing decision.  The alleged harm suffered was          that the Damons bought a gas station in 1979 that would have been          worth more in 1992 if what the defendant's representatives stated          had in  fact  been  true.    The damages  were  measured  by  the          difference  between  the value  of the  property  if it  had been          uncontaminated,  as the  defendant  represented,  and the  actual          value of the property as contaminated.                    Appellant  questions  the  district   court's  findings          related to  two of these elements:   causation and  damages.  The          causation  element  requires  that  the  misrepresentation  be  a          substantial  factor  in the  plaintiff's  actions,  such that  it          "tend[s]  along with  other  factors to  produce the  plaintiff's          [harm]."  O'Connor v.  Raymark Indus., Inc., 518 N.E.2d  510, 513                    ________     ____________________          (Mass. 1988).  The defendant's conduct need not be the sole cause          of  the  injury:   "'It  is  enough  that  [plaintiffs] introduce          evidence from which reasonable men [and  women] may conclude that          it  is more probable that  the event was  caused by the defendant                                         -7-          than  that it  was not.'"    Mullins v.  Pine Manor  College, 449                                       _______     ___________________          N.E.2d 331,  339 (Mass.  1983) (quoting  Carey v.  General Motors                                                   _____     ______________          Corp.,  387 N.E.2d 583,  585 (1979)).  Damages,  in turn, must be          _____          proven  "with  a fair  degree of  certainty."   Pearl  v. William                                                          _____     _______          Filene's Sons Co., 58 N.E.2d 825, 827 (Mass. 1945); see Squeri v.          _________________                                   ___ ______          McCarrick,  588 N.E.2d 22, 26 (Mass. App. Ct. 1992) ("While proof          _________          of damages does  not require mathematical  precision, it must  be          based on more than mere speculation.").                    "Following a bench trial,  the court of appeals reviews          the trier's  factual determinations for clear  error, but affords          plenary  review to  the trier's  formulation of  applicable legal          rules."   Smith v. F.W. Morse  & Co., 76 F.3d  413, 420 (1st Cir.                    _____    _________________          1996)  (citations omitted);  see Fed.  R. Civ.  P.  52(a); Dedham                                       ___                           ______          Water Co. v. Cumberland Farms Dairy, Inc., 972 F.2d 453, 457 (1st          _________    ____________________________          Cir. 1992).  Of course, "to  the extent that findings of fact can          be shown to  have been predicated upon, or induced  by, errors of          law,  they will be accorded  diminished respect on  appeal."  Id.                                                                        ___          However, as we have noted in regards to causation,                      [a]pplication of the legal cause standard                      to the circumstances of a particular case                      is  a  function ordinarily  performed by,                      and peculiarly within the  competence of,                      the factfinder.  The SJC has consistently                      held questions of causation to be for the                      factfinder.          Swift v. United States,  866 F.2d 507,  510 (1st Cir. 1988);  see          _____    _____________                                        ___          Dedham Water Co., 972  F.2d at 457 ("As a general rule, causation          ________________          questions are  grist for  the factfinder's mill.");  Mullins, 449                                                               _______          N.E.2d at 338; see, e.g., Smith, 76 F.3d at 420, 422-24 (applying                         ___  ____  _____                                         -8-          the  clearly erroneous  standard to  district court's  finding of          causation in Title VII context).                                        B.  Causation                                    B.  Causation                                        _________                    The  district court  found  that the  Damons met  their          burden  of proving "by a  preponderance of the  evidence that the          2,000 gallon spill was  a substantial factor in the  DEP decision          that a gasoline contamination sufficient to trigger 21E liability          existed at the [property]."  (District Court Findings of Fact and          Conclusions  of  Law, at  8).   Sun  argues  on  appeal that  the          evidence  that the district court  relied on in  finding that Sun          more  probably   than  not  was   a  substantial  cause   of  the          contamination found in 1991  is insufficient as a matter  of law,          for  three reasons.  Upon review of  the record, however, we find          that the Damons met their burden of proof, such that the district          court did not clearly  err in finding that the  causation element          of misrepresentation has been met.  We address, and dismiss, each          of Sun's arguments in turn.                      First, Sun notes that  the district court conceded that          "it is unclear how much of the 2,000 gallons [of  the 1974 spill]          was recovered," (District Court  Findings of Fact and Conclusions          of Law, at 9), and concludes  from that statement that there  was          no evidence of what (if any) contamination found in 1991 actually          dated to  1974.  The fact that there was a release, without more,          Sun argues, is insufficient to impose liability.                      There is more, however:   the district court  found not          only that there was a release, but also that the clean-up efforts                                         -9-          at the time of the release were limited, at best.                      Defendant's remedial efforts in 1974 were                      not  conducted for the purpose of ridding                      the  property  of contamination;  rather,                      the goal was to make the [property] safe.                      To  this end, the  focus was  on stopping                      the flow of gasoline onto the neighboring                      property --  no effort was  made to clean                      or  remove  contaminated   soil  on   the                      [property]  itself.    From the  Abington                      Fire Department records it is unclear how                      much  of the 2,000 gallons was recovered.                      Presumably, the  company hired by  Sun to                      pump  the trenches was  pumping a mixture                      of gas  and water,  but no one  knows the                      relative proportions or the  total amount                      of mixture pumped.          (District Court Findings of  Fact and Conclusions of Law,  at 9).          To  suggest  that  the district  court's  statement  that "it  is          unclear how  much of the 2,000 gallons was recovered" can be read          to imply that  it was all recovered is to  misread the context of          the statement.                    Additional evidence the lower court found determinative          in its finding of  causation included the sheer size of  the 1974          spill (2,000 gallons); the  fact that Robert Cataldo ("Cataldo"),          plaintiffs' expert, testified that the underground pipe which ran          from  the pumps to  the tanks created  a channel  along which the          gasoline  could flow from the rupture and settle under the tanks;          and  that no gasoline spills  larger than 10  gallons occurred at          the property between 1974 and 1992, during which time the Damons'          tanks periodically  tested tight.  Finally, the  court also noted          that "Cataldo testified, albeit hesitatingly, that in his opinion          the  1974 spill  was  a substantial  factor  contributing to  the          contamination found at  the [property] in 1992."  (District Court                                         -10-          Findings  of Fact and Conclusions of Law,  at 10).   Clearly, the          evidence the district  court relied on in  finding causation goes          beyond the  simple fact that  there was a  release in 1974.   Sun          does not challenge  any of these  specific findings; indeed,  our          review of the record finds support for each.                      In  making its  argument,  Sun relies  on Providence  &                                                              _____________          Worcester R.R. Co. v. Chevron U.S.A., Inc., 622 N.E.2d 262 (Mass.          __________________    ____________________          1993).  In  that case,  contamination was discovered  in 1988  on          property  owned by  the plaintiff  railroad.   The railroad  sued          defendant  Chevron,  claiming  that  the 1988  contamination  was          caused  by  a 1972  leak of  12,000 gallons  of  fuel oil  from a          storage  facility defendant had maintained on  the property.  The          court found no causal link between the spills, where there was no          evidence  that the soil  was significantly saturated  by the 1972          surface  spill, which  had been  pumped out  the same  day, where          sixteen  years had passed, and where the question whether the oil          would remain  in some form  was left  unanswered in  the face  of          conflicting  evidence.   The  court specifically  noted that  the          railroad's  expert was not asked  to give an  opinion whether the          1988 contamination was caused at least in part by the 1972 spill.          Id. at 264.            ___                    Sun draws  on Providence  & Worcester  as demonstrating                                  _______________________          that  evidence  of  the   1974  spill,  in  and  of   itself,  is          insufficient to impose liability.  That may be true, as far as it          goes.   The  evidence in  the present  case, however,  shows much          more.   As in Providence  & Worcester, many  years passed between                        _______________________                                         -11-          the  spills in the present case.   However,  the evidence is that          the 1974 spill was not cleaned up immediately, as in Providence &                                                               ____________          Worcester.    Rather,  the  fire department  logs  indicate  that          _________          pumping  did not start until two days after discovery of the leak          on December  19, 1974:  as late as  February 4, 1975, more than a          month after  the leak  was first  reported,  gasoline fumes  were          still being detected  in the  basement of  an adjacent  property.          Thus,  there  was  evidence  in  this  case  that  the  soil  was          contaminated by the 1974 spill.  What is more, plaintiffs' expert          here  did  state that  the 1974  spill  was a  substantial factor          contributing to the 1991 contamination, as we discuss below.                    Sun's second attack on  the sufficiency of the evidence          focuses on  the soil.  In  the face of the  uncontested fact that          the 1974  spillage  was subsurface,  due to  a leaky  underground          pump, Sun contends that  no evidence was presented that  the soil          was contaminated  by Sun, or  that Sun's  failure to clean  up or          remove soil was wrongful.  In support of its  position, Sun lists          four  pieces of  evidence regarding  soil testing.   Firstly,  it          notes  that  soil  samples  taken  in  1992  by  consultants were          spoiled,  and never analyzed.   While it is  unfortunate that the          samples were not  analyzed, that fact simply shows we do not have          all possible information:  it does not shed any light, one way or          the  other, on whether  the 1974 spillage  contaminated the soil.          Secondly, Sun points out  that in 1979, Getty Oil  commissioned a          company to dig around the fill area above  the storage tanks, and          that  the company never said anything to Damon about contaminated                                         -12-          soil, but rather stated  that the area  was clean.  However,  Sun          points  to  no  evidence that  the  company  was asked  to  do an          examination  of the soil for  contamination:  it  was testing the          tanks for  tightness.   Thus, the  third  fact Sun  looks to  for          support, that Cataldo's environmental company found contamination          in 1992 around  the same fill pipes that Getty  Oil, in 1980, had          told Damon  were clean, is not  as conclusive as  Sun would like.          Set against  the Getty  results is Cataldo's  testimony that  the          1974 release was a contributing factor in the 1991 contamination.          Finally, Sun notes that Cataldo testified that there was not much          thickness of soil, such that "flushing" of the soil by rising and          falling subsurface  groundwater elevations would  tend to  reduce          any residual contamination.  However, Cataldo also testified that          the on-site testing he conducted  in four monitoring wells  found          volatile  organic compounds  ("VOCs") which  are constituents  of          gasoline  in the groundwater.  The constituents found in 1991, he          stated, were  similar to those of the 1974 release.  As he stated          in his testimony:                         Q.  .   .  .  .  And   based  on  your                      examination of the underground conditions                      at that [property] and the geology of the                      [property],    and    based   upon    the                      information of this 2,000 gallon spill in                      1974,  would you expect  to find  VOCs in                      the  areas where  you  did  find them  in                      1992?                         A.  Yes, I would.                         Q.  Is the presence of VOCs consistent                      with the  topography and geology  of that                      [property] and a spill in 1974?                         A.  Yes, it is.          (Day 2, page 76).  On this  record, we find that the evidence was                                         -13-          sufficient to find causation.   The evidence to which  Sun points          does not convince us otherwise, let alone that the district court          clearly erred in making its finding.                      Sun's  third and  final argument  that the  evidence is          insufficient to  find causation focuses  on Cataldo's  testimony.          It is  fundamental that "[e]xpert testimony must be predicated on          facts  legally  sufficient to  provide a  basis for  the expert's          opinion.  "  In  re Salvatore,  46 B.R. 247,  253 (D.R.I.  1984).                       ________________          Thus, "[a]n expert  should not  be permitted to  give an  opinion          that is  based on conjecture or speculation  from an insufficient          evidentiary foundation."   Van  Brode Group,  Inc. v.  Bowditch &                                     _______________________     __________          Dewey,  633 N.E.2d  424, 430  (Mass. App.  Ct. 1994).   Cataldo's          _____          testimony, Sun contends,  did not meet  this criteria.   Although          Cataldo testified that the 1974 spill was  a "substantial factor"          in the 1991 contamination,  Sun argues that its cross-examination          of  Cataldo  revealed  that he  had  no  factual  basis for  that          conclusion:  indeed, he testified at one point that  he could not          say that the 1974 spill was "more probably than not" the cause of          the 1991 contamination.                      Sun points to a series  of perceived flaws in Cataldo's          testimony.   First, Cataldo attested that  although methods exist          which would  quantify the  amount of  contaminants found in  1992          which  were  representative  of   the  1974  release,  none  were          performed here.  He agreed that he did not know how much gas  was          left on the property after the 1974 release, and that none of the          work  performed by his  firm had to  do with aging  or dating the                                         -14-          petroleum product found on  the property.   Nor did they test  to          determine what percentage of  the gas found in 1991 was 1974 gas.          After admitting that the ratios of the BTEX chemical constituents          were indicative of a more recent -- post-1980 -- release, Cataldo          testified that he could not  say "one way or the other"  that the          gasoline constituents encountered in 1992 were more probably than          not  the result  of the 1974  release.  Thus,  Sun maintains, the          best Cataldo could testify to at  trial was that the property was          insufficiently investigated to allow him  to come to any ultimate          conclusions concerning the  contaminate sources;  that since  the          1974  release was the only  known release, it  at least partially          caused  the  1991 contamination;  and that  there  was no  way of          apportioning what amounts, if any, of the 1991 contamination were          attributable to  Sun  based on  the  work  done to  date.    This          opinion, Sun concludes, is insufficient as a matter of law.                      We  disagree.   The  issue is  not whether  Cataldo was          right:  but, rather, whether he had sufficient factual grounds on          which to draw conclusions.  See Van Brode Group, Inc., 633 N.E.2d                                      ___ _____________________          at 430.   On the basis  of our review of the  record, we conclude          that Cataldo's  expert testimony was predicated  on facts legally          sufficient to provide a basis for  his conclusions.  There is  no          doubt that more  testing could  have been done  on the  property,          which  would  have  been  helpful to  the  factfinder.   However,          Cataldo  noted that  although  there are  methods  to attempt  to          quantify  the amount of contaminants dating back to 1974, he does          not know "if there's anything that really can say, yes or no, how                                         -15-          much  there is."  (Day 2, page  133).  He drew his conclusions on          the basis of his "experience with dealing with gasoline stations,          residual  contamination,  [and]  the  knowledge   that  the  only          significant or large release at the [property] was reportedly the          2,000 gallons in 1974."   (Day 2, page 71).  He and his personnel          visited the  property, investigated its history,  and made tests,          from which he drew  his conclusions.  His testimony  reflects his          research:  asked  how gas spilled in 1974 could  still be present          in 1992, he stated,                         A.   Because  the  gasoline  tends  to                      absorb and holds in  to some of the soil.                      It  also fills up  the pores  between the                      soil  and   clings  in  to  that.     The                      [property]  was paved,  so  that all  the                      rain  that  falls  in it  doesn't  get  a                      chance to percolate through, so you don't                      have that complete  flushing action  that                      you would in an open field.   Most of the                      rainwater  probably  channeled  off,  and                      that's one  of the purposes  of blacktop.                      So it's my opinion that there would still                      be   some   remnants   of  the   gasoline                      remaining.          (Day 2, page 87).  He later noted that biodegradation alone would          not have removed contamination of the scale of 2,000 gallons over          18  years, and that  there had  been a  reported release  of four          gallons subsequent to 1980, which would  be sufficient to account          for the levels of MTBE  found.  As the district court  noted, his          attribution of the contamination,  at least in part, to  the 1974          contamination,  "has an  additional  earmark  of  trustworthiness          because it was prepared for a third-party, Rooney, pursuant to an          order of  the DEP,  and not  in any way  in anticipation  of this          litigation."  (District Court Findings of Fact and Conclusions of                                         -16-          Law, at 11).   Cf. Venturelli v. Cincinnati,  Inc., 850 F.2d 825,                         ___ __________    _________________          832  (1st Cir.  1988)  ("The decision  of  whether an  expert  is          adequately  qualified  is a  matter  primarily  for the  district          court.").                    In   arguing   that   Cataldo's    testimony   provides          insufficient basis, Sun also relies on Providence & Worcester for                                                 ______________________          the  proposition that the Damons were "required to bring forth an          expert  opinion that the on-site activity on the subject property          during Sun's  operation of gasoline station  (1972-1977) was more          probably   than  not   a  substantial   factor  in   causing  the          contamination  found  on  the  property  in  1992."    (Brief  of          Appellant,  at 19).  We disregard this argument, for two reasons.          First,  in  Providence &  Worcester,  although the  SJC  found it                      _______________________          significant that  the  railroad's expert  did not  testify as  to          causation, the  court specifically noted  that it "[did]  not say          that expert testimony is required to establish causation in every          soil contamination case."   622  N.E.2d at 264  (noting that  the          subject "is not one  that jurors would be expected  to understand          in many circumstances without guidance from an expert").  We will          not  create  such  a requirement  here.    Second,  even if  that          requirement  existed, plaintiff  met it.  Cataldo  explicitly, if          reluctantly,  testified that  the 1974  spill was  "a substantial          factor"  in  the  contamination  detected  in  1991, a  fact  the          district court noted twice  in its finding of causation.  In sum,          then,  we find that  the district  court did  not clearly  err in          finding  that  Sun's acts  were a  substantial  cause of  the DEP                                         -17-          decision that  contamination sufficient to trigger  21E liability          existed at the property.                      We note  that the district court's  task of determining          causation  on  this record  was not  an  easy one.   Nonetheless,          "[w]hen   the  evidence  supports   conflicting  inferences,  the          district court's choice from  among the several inferences cannot          be clearly erroneous."  Dedham Water Co., 972 F.2d at  462.  Thus                                  ________________          we  uphold the district court, and reject Sun's argument that the          evidence upon which the district court relied is insufficient.                           C.  Damages and the Burden of Proof                         C.  Damages and the Burden of Proof                             _______________________________                    The  parties  dispute  who  bore the  burden  of  proof          regarding  whether the harm was divisible.  The backdrop to their          dialogue is the fact that the evidence indicates that Sun was not          the only  owner or operator of the property whose acts led to the          1991 contamination.  As  the district court stated, the  presence          of  MTBE  "compel(s)  the  conclusion  that   there  had  been  a          widespread release of gasoline at the [property] after 1984, when          MTBE  became  common."   (District  Court  Findings of  Fact  and          Conclusions of Law, at 10).  Thus, there was at least one release          of  gasoline  when the  property was  operated  by Rooney  or the          plaintiffs.   The Damons concede  that the evidence  and findings          indicate that there was a post-1980 release  of gasoline.  At the          same  time, there  was no  evidence  of a  spill greater  than 10          gallons, and  the district  court specifically found  that during                                         -18-          the time  the Damons  owned  the property,  no significant  leaks          occurred.1                    The  Damons bear  the burden  of proving  that tortious          conduct by Sun caused  them harm.  See Restatement  (2d) of Torts                                             ___            433B(1).  They  were required  to produce evidence  that it  is          more  likely than not that Sun's conduct was a substantial factor          in bringing  about the  harm they  suffered.  See  id. comment  a                                                        ___  ___          (noting that  "[a]  mere possibility  of  such causation  is  not          enough").   Sun argues that the Damons  did not meet their burden          of showing that Sun's conduct substantially caused the harm  they          suffered.   Accordingly, it maintains, the  burden of identifying          what  other  actors were  also responsible  for  the harm  and of          allocating the harm (or showing that it was indivisible) remained          with the plaintiffs, who did not fulfill that  task.  However, we          have already  established above that  the district court  did not          err in finding that  Sun's conduct substantially caused  the harm          the  Damons suffered.  Therefore,  the burden shifted  to Sun, as          did the cost of not  meeting it.  See Restatement (2d) of Torts                                              ___          433B(2)  ("Where the tortious conduct  of two or  more actors has          combined to bring about harm to the plaintiff, and one or more of          the actors seeks  to limit his liability  on the ground  that the                                        ____________________          1   Sun  argues that  the district  court's factual  findings are          inconsistent.  We disagree:  the evidence at trial indicated that          a spill as small as four  gallons could account for the amount of          MTBE  present, and that Cataldo's research found no record of any          spills over ten  gallons.   The evidence leads  to the  inference          that a  spill made  up of  less than ten  gallons, but  which was          nonetheless spread  out (or  several such spills),  could account          for the MTBE found.                                          -19-          harm  is capable of apportionment among them, the burden of proof          as  to the  apportionment is  upon each  such actor.");  see also                                                                   ________          O'Neil v. Picillo, 883 F.2d 176, 178 (1st  Cir. 1989) (noting, in          ______    _______          CERCLA action, that rule  based on the Restatement (2d)  of Torts          requires that damages be apportioned only if defendant shows that          the harm is divisible),  cert. denied sub nom. American  Cyanamid                                   _____________________ __________________          Co.  v. O'Neil,  493 U.S. 1071  (1990).  Accordingly,  we find no          ___     ______          error in the  district court's apparent allocation of  the burden          of proof,  and need not enter into  the parties' dispute over who          bore what burden, and whether divisibility was indeed shown.                               SUFFICIENCY OF THE EVIDENCE                             SUFFICIENCY OF THE EVIDENCE                    Sun  challenges   the  sufficiency  of   the  evidence,          contending  that  the  district  court's  findings  were  clearly          erroneous  and   highly  prejudicial  to  Sun's   case  in  three          instances.  We examine  such challenges  to the  district court's          factual findings for clear error.   See O'Brien v. Papa Gino's of                                              ___ _______    ______________          America,  Inc.,  780  F.2d  1067,  1076  (1st  Cir.  1986).    To          ______________          demonstrate  that the Damons did not meet their burden of proving          misrepresentation by a preponderance of the evidence, Sun   "must          show  that  the  verdict was  against  the  great  weight of  the          evidence,  viewed in the light most favorable to [the Damons], or          would work a  clear miscarriage of  justice."  Cambridge  Plating                                                         __________________          Co. v. Napco, Inc., No. 95-1781, slip op. at 26 (1st Cir. June 3,          ___    ___________          1996).  We address each of Sun's contentions in turn.                           A.  The Alleged Representations                           A.  The Alleged Representations                               ___________________________                    Sun first alleges that the alleged representations were                                         -20-          opinions  and not  statements  of fact.    The distinction  is  a          crucial  one, as  it  is well  established  that the  latter  can          ordinarily be  the  basis of  a claim  of fraud,  but the  former          cannot.  See, e.g.,  Briggs v. Carol Cars, Inc.,  553 N.E.2d 930,                   ___  ____   ______    ________________          (Mass. 1990) (noting that a statement which is an opinion in form          "in  some  circumstances may  reasonably  be  interpreted by  the          recipient  to imply that the  maker of the  statement knows facts          that justify the opinion"); Coe v. Ware, 171 N.E. 732, 734 (Mass.                                      ___    ____          1930).  The determination of whether a statement is of opinion or          fact is a factual one, see  id., and so we review only for  clear                                 ___  ___          error.                      The district court held that                      It  should have  been clear  from Damon's                      questions [to  Sun's agents] that  he was                      concerned  about  the  past   and  future                      integrity of the  entire underground  gas                      delivery  system;  as Damon  testified at                      trial, "the  only thing you've  got in  a                      gas station  is tanks  and pumps  and the                      lines.  I mean, what else is there?"          (District Court Findings  of Fact  and Conclusions of  Law, at  7          n.1). Sun contends that  there is no evidentiary basis for such a          finding.   Seeking support,  it points  to  the district  court's          statement during closing arguments that                      the testimony that [Damon] had, that they                      told him  it was  a good station,  is not                      significant  in  my  view because  that's                      absolutely  an  opinion  rather   than  a                      statement of fact.          (Day 4,  page 15), and contends  that by making this  comment the          district court essentially conceded that there was no evidentiary          basis  to  find that  the statements  by  the Sun  employees were                                         -21-          opinion.  To the contrary, all this statement reveals is that the          district court changed  its mind  as to the  significance of  the          statements,  which  is  certainly  within  its  province  to  do.          Indeed,  that is  the  very mission  of  closing arguments:    to          convince  the  factfinder that  a party's  view  of the  facts is          correct.                     Similarly,   that   Damon's    testimony   about    the          conversations could be viewed as inconsistent, as Sun notes, is a          question  that addresses  Damon's credibility,  not the  district          court's finding.   Credibility, of  course, is an  issue for  the          factfinder, and Sun has  shown us no clear error in  the district          court's judgment on the  matter.  See  O'Brien, 780 F.2d at  1076                                            ___  _______          ("No subject matter is more clearly within the exclusive province          of the fact-finder than this.").                    Our  review of  the  record  leads  us  to  affirm  the          district  court's finding  that  the statements  were factual  in          nature.   First, we note that the evidence supports the findings.          The  court found  that Damon  asked Bunzell  if  Sun had  had any          problems  with the  underground storage  tanks, to  which Bunzell          responded that Sun had had "no problems with it.  It's all good."          (District Court Findings of  Fact and Conclusions of Law,  at 5).          This is consistent  with Damon's testimony  at trial.   Bunzell's          testimony  did  not  contradict  him,  since  he  stated  in  his          affidavit, entered  at trial, that he neither remembered the sale          of the property nor recalled any discussion of it or the terms of          the  sale.  The district court also found that although Laubinger                                         -22-          knew about the  1974 spill -- indeed, he  visited the property at          the time -- he did not reveal the information to Damon.  Instead,          he  responded to  Damon's  questions about  whether  Sun had  any          problems with  the  station, particularly  with  the  underground          tanks, by stating "that it was a 'good station' which just needed          to be run by a good  operator to be successful."  (District Court          Findings  of Fact  and  Conclusions  of Law,  at  5).   This  was          consistent with Damon's testimony  at trial.  Laubinger testified          that he did not recall having a telephone conversation with Damon          or  ever not telling anyone  about the release  in discussing the          property, and the  trial court  was free to  credit Damon's  more          specific recollection.                      Next, in discussing  whether the Bunzell  and Laubinger          statements were opinions or fact,  the district court noted  that          Damon's questions were not  just about the current conditions  on          the  property.  If they had been,  their statements that it was a          good station  would presumably  have been opinion.   Rather,  the          district court specified that the  questions also went to whether          there had been problems in the station in the past of which Damon          should be  aware, with  the underground  tanks specifically.   In          that context, reading the  record in the light most  favorable to          the  Damons,  we do  not find  that the  district court  erred in          finding  that the Sun  representatives' statements that  it was a          "good station" were factual.  Indeed, we are hard put to see how,          where there has been a spill of 2,000 gallons in  1974, which Sun          knew of, statements five years later that it was a "good station"                                         -23-          and that Sun had had "no problems with it" in reply to a question          regarding  the underground  tanks are  not misrepresentations  of          fact.                        B.  Evidence of the Elements of Fraud                        B.  Evidence of the Elements of Fraud                            _________________________________                    Sun's second contention is  that the record contains no          evidence  of the key elements needed  to prove fraud.  First, Sun          asserts that the  statements by  Bunzell and  Laubinger were  not          misrepresentations of material facts,  and thus the first element          of the  tort has not been  shown.  See Barret  Assocs., Inc., 190                                             ___ _____________________          N.E.2d at 868 (noting  that the first element is  that "defendant          made a false representation of a material fact").  We   disagree.          There can be no doubt that the statements were misrepresentations          in terms of the past history of the property:  stating that it is          a "good station" ignores the  fact that there was a 2,000  gallon          spill.   It may have  been a "good  station" in 1979,  from Sun's          perspective:   the spill had  been cleaned up  in accordance with          the  requirements of the time, and  there is no evidence of other          problems.  Nonetheless, there had been a problem in the past, and          to omit that  was to  misrepresent the situation.   The  district          court found that  the fact was  material, as it gave  credence to          Damon's  testimony that  his  affiliation with  a car  dealership          which sold gasoline gave  him a general awareness of  the growing          importance  of environmental issues,  and that he  would not have          bought the  station had he  been aware of  the spill.   Thus, the          statements by the Sun representatives were certainly "'one of the          principal grounds,  though not necessarily the  sole ground, that                                         -24-          caused the  plaintiff[s] "to take the particular  action that the          wrongdoer  intended   he  would   take  as   a  result   of  such          representations."'"   Bond Leather Co., 764  F.2d at 936 (quoting                                ________________          National  Car Rental Sys., Inc. v. Mills Transfer Co., 384 N.E.2d          _______________________________    __________________          1263 (Mass.  App.  Ct. 1979)  (quoting National  Shawmut Bank  v.                                                 ______________________          Johnson, 58 N.E.2d 849  (Mass. 1945))).  While this  testimony is          _______          undoubtedly in Damon's interest, the district court's credence in          that testimony has not been  shown to be in error.   See O'Brien,                                                               ___ _______          780  F.2d at  1076.   Finally, we  have already  established that          these  were  factual  statements.    Thus,  the  statements  were          misrepresentations of material facts.                    Sun  tries to fend off this  conclusion by pointing out          that  "[s]ellers .  . . are  not liable  in fraud  for failing to          disclose  every  latent  defect   known  to  them  which  reduces          materially  the value of the  property and of  which the buyer is          ignorant."   Nei  v. Burley,  446 N.E.2d  674, 676  (Mass. 1983).                       ___     ______          However, it  is well established  that "in Massachusetts .  . . a          party who  discloses partial  information that may  be misleading          has a  duty to reveal all the material facts he [or she] knows to          avoid deceiving the other party."  V.S.H. Realty, Inc. v. Texaco,                                             ___________________    _______          Inc., 757 F.2d  411, 415 (1st Cir. 1985); cf.  Nei, 446 N.E.2d at          ____                                      ___  ___          676 (finding  no misrepresentation  where seller "did  not convey          half truths  . . .  [or] make  a partial disclosure  of the  kind          which  so   often  requires  a  full   acknowledgement  to  avoid          deception").   Accordingly,  we  find Maxwell  v. Ratcliffe,  254                                                _______     _________          N.E.2d  250, 252 (Mass. 1969), analogous to the Damons' position.                                         -25-          In  that  case, potential  buyers of  a  house asked  whether the          cellar was dry,  and the  brokers represented that  it was,  when          they had, or should  have had, knowledge that there  was periodic          water seepage.  The Court found that "because the question of the          dryness  of  the  cellar  had been  raised  expressly,  there was          special obligation on  the brokers  to avoid half  truths and  to          make  disclosure at  least of  any facts  known  to them  or with          respect to  which they had been  put on notice."   Id. at 252-53;                                                             ___          see Greenery Rehabilitation Group, Inc. v. Antaramian, 628 N.E.2d          ___ ___________________________________    __________          1291, 1294 (Mass. App. Ct. 1994) (noting, inter alia, that buyers                                                    __________          did not request financial information about tenant from seller in          finding that situation was not a case of partial disclosure).                      Sun also seeks  support from the fact that Damon signed          an agreement representing that he had inspected  the property and          would indemnify Sun from  and against liability for violation  of          environmental   laws.      However,   "Massachusetts   case   law          unequivocally  rejects  assertion of  an  'as  is'  clause as  an          automatic defense against allegations  of fraud."  V.S.H. Realty,                                                             ______________          Inc., 757 F.2d at 418 (noting also that Uniform Commercial Code            ____          2-316,  which allows  disclaimers in  the sale  of goods  between          merchants,  does not preclude claims based  on fraud); see Turner                                                                 ___ ______          v.  Johnson &  Johnson,  809  F.2d  90,  95-98  (1st  Cir.  1986)              __________________          (discussing basis  and limits of Massachusetts  rule that parties          may not contract out of fraud).   Nei v. Burley, which Sun cites,                                            ___    ______          offers it no support.  There, the court relied on  the absence of          a duty  to disclose  the latent  defect,  not the  fact that  the                                         -26-          sellers provided  the buyers with test results,  in finding there          had been no tort of fraud.  446 N.E.2d at 676-77.                    Sun  challenges  the  evidentiary  basis for  a  second          element, that the party  making the representation have knowledge          of its  falsity.  See  Barret Assocs.,  Inc., 190 N.E.2d  at 868.                            ___  _____________________          Clearly Laubinger knew of the 1974 spillage -- he had been on the          property during the  clean-up, and  was able to  testify in  some          detail about the  event.  It stretches credence to  posit that he          would not have knowledge of the  falsity of stating that it was a          good  station  when  asked about  past  problems.    There is  no          evidence  that  Bunzell had  actual  knowledge.   However,  under          Massachusetts law, the party making a misrepresentation "need not          know  that  the statement  is false  if  the fact  represented is          susceptible  of actual  knowledge."   VMark  Software, Inc.,  642                                                _____________________          N.E.2d at 593 n.9;  see Snyder v. Sperry and  Hutchinson Co., 333                              ___ ______    __________________________          N.E.2d 421, 428 (Mass.  1975); Zimmerman v. Kent, 575  N.E.2d 70,                                         _________    ____          74 (Mass.  App. Ct. 1991).   The district court  found that while          inspecting the station Damon asked  Bunzell about a depression in          the  blacktop, and whether there  had been any  problems with the          underground storage  tanks, to  which Bunzell replied  "No, we've          had  no problems with  it.   It's all good."   This is  clearly a          misstatement  of  facts  "susceptible  of  actual  knowledge"  --          indeed, Bunzell's name  was listed on the "For  Sale" sign at the          station:    presumably,  it would  be  his  responsibility  to be          informed  about  the history  of  the particular  station  he was          selling.                                         -27-                    Relying on  an Odometer Act case  applying Georgia law,          see Huycke v.  Greenway, 876  F.2d 94, 95  (11th Cir. 1989),  Sun          ___ ______     ________          next argues that the Damons did not meet  their burden of proving          intent to defraud.  In fact, however, "Massachusetts law does not          .  .  . require  an intent  to deceive,  let  alone an  intent to          deprive  the  plaintiff of  money,  to prove  misrepresentation."          Bond Leather Co., 764 F.2d at 937 (citation omitted).          ________________                      "[A] long line  of [Massachusetts]  cases                      [establishes]   that   'the   charge   of                      fraudulent  intent,  in  an   action  for                      deceit, may be  maintained by proof  of a                      statement  made as  of  the  party's  own                      knowledge, which is  false; provided  the                      thing  stated is not  merely a  matter of                      opinion,  estimate  or judgement,  but is                      susceptible of actual  knowledge; and  in                      such a  case it is not  necessary to make                      any  further proof of an actual intent to                      deceive.'"          Sperry,  333  N.E.2d at  428  (quoting Powell  v.  Rasmussen, 243          ______                                 ______      _________          N.E.2d 167, 168 (1969) (quoting Chatham Furnace Co. v. Moffat, 18                                          ___________________    ______          N.E.  168, 169  (Mass.  1888))); see  Roadmaster Indus.,  Inc. v.                                           ___  ________________________          Columbia  Mfg.  Co., 893  F. Supp.  1162,  1176 (D.  Mass. 1995);          ___________________          Zimmerman, 575 N.E.2d at  74.2  The Damons  have met this  burden          _________          of showing that the  Sun representatives made a misrepresentation          of  facts susceptible of actual  knowledge, and so  they have met                                        ____________________          2   While the  decision Bond  Leather Co. v.  Q.T. Shoe  Mfg. Co.                                  _________________     ___________________          notes  that, contrary to  Sun's contention, an  intent to deceive          need not  be proven, it also reads Sperry as requiring an "intent                                             ______          that the plaintiff rely on the challenged false statements."  764          F.2d  at  937.    We  have found  no  case  law  supporting  that          contention.    Nonetheless,  we  note  that it  is  a  reasonable          inference that the representations  made by Sun's representatives          to a  known potential buyer  were made with  the intent that  the          Damons rely on the statements.                                         -28-          their burden as to intent.                    Sun maintains  that the  district court failed  to find          that   Sun    intended   the   plaintiffs   to    rely   on   the          misrepresentations.3    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)).     However, "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,  while it  did not explicitly  discuss intent,  the          district  court   set   out  the   elements   of  the   tort   of          misrepresentation, and found that  Sun's representatives made the          statements, that they  were not opinions,  and that Laubinger  at          least knew about the spill when he made his statement.  In short,          although the  district court  did not  spell out  every pertinent          point, it  is clear that it  has provided us with  more than mere                                        ____________________          3   Sun  contests that  the district  court's statement  that "it          should have  been  clear  from  Damon's  questions  that  he  was          concerned  about  the past  and  future integrity  of  the entire          underground gas delivery system" (District Court Findings of Fact          and Conclusions  of Law, at 7  n.1), implies that Sun  did not in          fact  know  what  Damon   asked  about,  and  so  no   intent  is          demonstrated on this record.  However, we refuse Sun's invitation          to  read this  implication into  the district  court's statement,          especially  as,  in  its findings  of  fact,  the district  court          specifically   found   that  Damon   had   asked   each  of   the          representatives about past conditions, particularly regarding the          underground tanks.                                          -29-          conclusions.                                C.  Reasonable Reliance                               C.  Reasonable Reliance                                   ___________________                    Sun's  final  attack on  the  evidence  centers on  the          element  of reasonable reliance.   See Elias Bros. Restaurants v.                                             ___ _______________________          Acorn Enters., 831 F. Supp. 920, 922 (D. Mass. 1993) (noting that          _____________          the  reliance element of the  tort has been  defined as requiring          that it be reasonable).  First, it states that the district court          was  silent on reasonable reliance.  To the contrary, although it          did not address the reasonableness  of the reliance, the district          court  found that Damon "would not have purchased the station for          $90,000 if he had been aware of the 1974 spill."  (District Court          Findings of Fact and Conclusions of Law, at 8).                      Sun points to the fact that the Damons had the right to          inspect the property prior to sale and did not do so as vitiating          any  argument of  reasonable reliance,  especially given  Damon's          acknowledged awareness  of environmental issues.   However, it is          well  established  under  Massachusetts  law   that  "failure  to          investigate the veracity of  statements does not, as a  matter of          law, bar recovery for misrepresentation."  Bond Leather Co.,  764                                                     ________________          F.2d at 936.   To find  that the Damons'  failure to  investigate          effectively bars their claim, as Sun requests, would  run counter          to the established  case law on  that point.   "Only reliance  on          'preposterous  or  palpably  false'  representations  vitiates  a          misrepresentation claim."  Roadmaster  Indus., Inc., 893 F. Supp.                                     ________________________          at     1179  (quoting  Zimmerman,  575  N.E.2d  at  76).    Sun's                                 _________          representations cannot be so characterized.                                         -30-                    Sun's reliance on Maloney  v. Sargisson, 465 N.E.2d 296                                      _______     _________          (Mass.  App. Ct. 1984), is misplaced.  There, the Maloneys bought          property,  and subsequently  discovered that  because of  a drain          line  to a local reservoir, it could  not be built on.  Sargisson          was the attorney  with whom  they entered the  purchase and  sale          agreement.    That  agreement was  made  contingent  on  the land          passing a  percolation test and deep  hole test to  qualify for a          building  permit,  with  the tests  to  be  done  at the  buyers'          expense.   The tests were  done, indicated positive  results, and          the sale went  through.  Later, however,  it turned out  that the          tests were done at the wrong time of year, and the results of the          second  deep hole test were adverse.  The Maloneys sued Sargisson          alleging, among  other things,  misrepresentation.   The  Appeals          Court  found  that  the  Maloneys   could  not  have  relied   on          Sargisson's  statements that "he knew all there was to know about          the property," that they did not need to hire a  lawyer, and that          "the lot was a good building lot":                       Whatever those alleged statements  may be                      taken to  mean,  the Maloneys  would  not                      have  relied upon them to their detriment                      so far  as they  might have borne  on the                      capacity of the lot  to pass soil tests .                      .  .  .  Concerning  that aspect  of  the                      land's    character,   their    affidavit                      discloses,  the  Maloneys made  their own                      examination.          Id. at 301.          ___                    Clearly,  Maloney is  distinguishable from  the present                              _______          case.  There, the buyer specified in the  agreement that it would          make the  tests, and did  so.   A district court  had found  that                                         -31-          there was no evidence Sargisson knew or should have known of  the          existence of the problem, a finding which carried weight as prima          facie  evidence in the superior  court and was  not questioned by          the  Appeals Court.   Id. at  300.   There is  no indication that                                ___          Sargisson made a  representation as  to the status  of the  soil:          rather, it is clear that the Maloneys relied on  their own tests.          Here, the questions went to the past history of the property, not          just the present condition.   In short, the reasoning  in Maloney                                                                    _______          is based on a sufficiently different set of facts such that Sun's          reliance  on  it fails.4   See  Roadmaster  Indus., Inc.,  893 F.                                     ___  ________________________          Supp.  at    1179  (holding that  plaintiff  buyer's  failure  to          investigate contamination  of soil  at manufacturing plant  as to          matters of  public record  did not vitiate  its misrepresentation          claim).                               D.  Factual Conclusions                               D.  Factual Conclusions                                   ___________________                    Sun  makes the  additional argument  that the  district          court made  factual findings, where the  facts were controverted,          without  explaining the  reasoning for  its determination.5   See                                                                        ___                                        ____________________          4   Sun's reliance  on  Rhode Island  Hosp. Trust  Nat'l Bank  v.                                  _____________________________________          Varadian,  647 N.E.2d  1174 (Mass.  1995), a  promissory estoppel          ________          case,  is similarly misplaced.  There, the court found that since          the evidence  did not  warrant a  finding that  a promise  in the          contractual  sense   was  made,   reliance  by   the  experienced          businessmen plaintiffs would be unreasonable  as a matter of law.          Id. at 1179. We fail to see  how that case sheds any light on the          ___          misrepresentation charge  here, where the court has  found that a          misrepresentation was indeed made.           5    Sun  also contends  that  several  of  the district  court's          findings were  irreconcilable and  contradictory.  As  we address          those allegations  elsewhere in  the opinion, we  do not  discuss          them here.                                         -32-          Fed.  R.  Civ. P.  52(a) (mandating  that  court "find  the facts          specially and  state separately  its conclusions of  law thereon"          when  trying facts without  a jury).  "To  satisfy the demands of          Rule 52(a), a trial  court must do more than  announce statements          of ultimate fact.  The court must support its rulings by spelling          out the subordinate facts on which  it relies."  U.S. for the Use                                                           ________________          of Belcon,  Inc. v. Sherman Constr. Co., 800 F.2d 1321, 1324 (4th          ________________    ___________________          Cir. 1986) (vacating decision  and remanding where district court          made no  finding on extent of  plaintiff's responsibilities where          the conflict "turn[ed]  upon [the parties'] respective  duties").          Our  examination of the findings Sun questions reveal no error by          the district court.6                    First,  Sun questions  the credence the  district court          placed  in Damon's testimony.   Specifically,  it argues  that it          should  be   provided  with  an  explanation  of  why  the  court          "disregarded the  uncontroverted testimony of Mr.  Damon that the          station,  the underground tanks, and the soil was '100% clean' in          1980  when Getty  examined the  station." (Appellant's  Brief, at          40).   Sun's phrasing twists the testimony:  Damon testified that          Getty told  him the  soil was clean,  not that  he knew it  to be          true.    As we  have  already  noted, Sun  has  not provided  any          evidence that Getty was  in fact testing the soil:   the district          court  specifically found that  Getty was  testing the  tanks for                                        ____________________          6  Two of  Sun's contentions, that the district  court's findings          are insufficient as to intent  and reliance, and that it did  not          adequately address the factual  basis for Cataldo's exert opinion          on the property's condition, have been addressed elsewhere in the          opinion.                                         -33-          tightness.   The district  court stated during  closing arguments          that it also did  not consider that Damon  had made an  admission          that the property was clean.                      Sun  also argues that the  court had to  explain why it          chose the "version" of his story  Damon told at trial, instead of          what it  deems "varying" earlier versions  under oath, especially          as regards what questions he put to the Sun representatives.  Our          review  of the record does not indicate that Damon's testimony at          trial  was  so inconsistent  with  his  earlier testimony  as  to          constitute "'unsupported self-serving testimony that flies in the          teeth  of  unimpeachable  contradicting  evidence  and  universal          experience.'"  Venturelli, 850 F.2d at 833 (quoting Insurance Co.                         __________                           _____________          of North  Am. v.  Musa, 785  F.2d 370,  374-75 (1st Cir.  1986)).          _____________     ____          Indeed, the district court stated that it did not "look upon them          as  being that  different.   There  are  differences, there's  no          question,  but  the  extent of  the  differences  is a  difficult          question, it strikes me."  (Day 4, page 17).                      Lastly, Sun contends that the  court did not provide an          evidentiary basis for  its conclusion, made  in a footnote,  that          "it  should  have been  clear"  to Sun  what  Damon meant  in his          questioning.   The  findings  here,  however, are  not  like  the          inconsistent  and  contradictory  findings  in  Lyles  v.  United                                                          _____      ______          States,  759 F.2d 941,  944 (1st Cir.  1985), cited by  Sun.  The          ______          court here specifically stated in its findings of fact that Damon          asked  both  Laubinger  and  Bunzell  about past  problems.    In          connection  with its  comment  that Sun's  representatives should                                         -34-          have  understood the  scope  of Damon's  questions, the  district          court cited his testimony  that "the only thing  you've got in  a          gas station is tanks and pumps and the lines.  I  mean, what else          is there?"  (District  Court Findings of Fact and  Conclusions of          Law,  at  7 n.1).    A  "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).  The district court met its burden here.                                  CALCULATION OF DAMAGES                                CALCULATION OF DAMAGES                    The district court calculated  the damages for the tort          claim as $245,000, the difference between the actual value of the          Damon's property if it  was uncontaminated -- $600,000 --  as the          defendant's representatives  stated and  the actual value  of the          property as  contaminated  -- $325,000  -- as  measured when  the          plaintiffs  sold the property to  Rooney in 1992.7   Sun does not          contest the  district court's basic measurement,  but argues that          it should  have  set off  specific  monies against  the  purchase          price, and  should have accounted  for the Damons'  obligation to          mitigate damages.  We disagree, for the following reasons.                      First, Sun  contends the value of  the indemnity Rooney          gave  the Damons  from and  against all  environmental liability,          which it suggests is approximately $104,000, should have been set                                        ____________________          7    Adopting  the  sale  price  suggested  by  Rooney's gasoline          supplier, the district court  found the fair market value  of the          property if it had been not been contaminated to be $600,000.  It          took the actual  sale price as  the measure of  the value of  the          property as  contaminated:  Rooney  assumed the  $325,000 of  the          Damons'  first and second mortgages, $10,000 in arrears, and made          a $20,000 cash payment, for a total of $355,000.                                         -35-          off against the  purchase price.   However, as  the Damons  point          out,  if Sun had not made the misrepresentation, the Damons would          not be responsible to clean up  the mess.  Had the Damons cleaned          up   the  property   themselves,  they   would  be   entitled  to          reimbursement, and,  presumably, the  sale price of  the property          would have been higher:  reducing the damages by the value of the          indemnity  would virtually  reverse  this process.   Second,  Sun          argues that $40,000 should be taken off the damage figure, as the          Damons did not give Rooney $40,000, as they were required  to per          their  agreement, to  defray costs of  contamination.   Again, if          Sun's  representatives  had  not  misrepresented  the  property's          condition, the Damons would  not have owed that money  to Rooney;          if they had paid  it to Rooney, it would have  been added to, not          offset against, the damages (and presumably would be reflected in          the actual sale price).   Third, Sun argues that  $29,000 in back          rent  from  Rooney should  have been  offset  as well,  since the          Damons  did not  seek  it from  him.   However,  once again,  the          plaintiffs   would  not   have  lost   that  money   without  the          misrepresentation.    Also,  according  to  paragraph  9  of  the          Agreement and Lease, Rooney was entitled to opt out of  his lease          if a governmental authority prevented him from occupying or using          the property as  a gasoline station.   Thus,  it is unclear  that          Rooney did, in fact, owe the past rent.                    Sun  also argues  that  the Damons  failed to  mitigate          their  losses by not seeking back rent  from Rooney.  In light of          the  terms  of the  Agreement and  Lease  between Rooney  and the                                         -36-          Damons, the fact  that the  Damons were obligated  to pay  Rooney          $40,000,  which  they did  not, and  the  subsequent sale  of the          property, we are hard put to accept their reasoning.                    For   the   above   reasons,   the   district   court's          determination of damages is affirmed.                                  CHAPTER 93A CLAIMS                                  CHAPTER 93A CLAIMS                    The  district  court  found  that  Sun's  actions  were          "unfair  or deceptive"  and thus  violated Massachusetts  General          Laws chapter 93A, section 11.   At the same time, the lower court          refused  to award multiple damages under section 11, on the basis          that  "the evidence  of bad  faith or  willful intent  to deceive          [was]  insufficient to merit a punitive  award."  (District Court          Findings of Fact and Conclusions of Law, at 12).   See Mass. Gen.                                                             ___          L. ch.  93A,    11  (allowing  multiple damages  if "the  use  or          employment  of the . .  . act  or practice was  . .  . willful or          knowing").  Sun argues on appeal  that the court erred in finding          it  violated chapter 93A, while the Damons contend that the court          erred in  refusing multiple damages.   For the  reasons discussed          below, we affirm the district court's finding that Sun was liable          under chapter 93A, as well as its refusal of multiple damages.                        A.  Sun's Liability Under Chapter 93A                        A.  Sun's Liability Under Chapter 93A                            _________________________________                                1.  Standard of Review                                1.  Standard of Review                                    __________________                    We  begin  our analysis  by  reciting  our standard  of          review.   The  district  court's findings  of  law face  de  novo                                                                   ________          review, and its  findings of  fact engender  clear error  review.          See  Industrial Gen. Corp. v. Sequoia Pacific Sys. Corp., 44 F.3d          ___  _____________________    __________________________                                         -37-          40, 43 (1st Cir. 1995).  We deem a finding of fact to  be 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.'"  Id. at                                                                     ___          43 (quoting Anderson v. City of  Bessemer City, 470 U.S. 564, 573                      ________    ______________________          (1985) (citation omitted)).                                           -38-                               2.  The Legal Framework                               2.  The Legal Framework                                   ___________________                    The  district  court  found  that  Sun's  actions  were          "unfair or deceptive" within  the scope of chapter 93A.   Section          11 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; see  Mass. Gen.  L. ch. 93A,    2                                          ___          (establishing that  "unfair or deceptive acts or practices in the          conduct  of any  trade or  commerce" are  unlawful).   Common law          misrepresentation  claims provide  a  basis  for liability  under          section 11.  See, e.g., Sheehy v. Lipton Indus., Inc., 507 N.E.2d                       ___  ____  ______    ___________________          781, 785 (Mass. App. Ct. 1987).                     Section 11  does not define  what conduct rises  to the          level of an  "unfair or  deceptive" act.   See Cambridge  Plating                                                     ___ __________________          Co.,  slip op.  at  38-39.   In  weighing whether  a  defendant's          ___          conduct meets  the statute's requirements, "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.'"8   Quaker State Oil                                                           ________________                                        ____________________          8  The Damons argue that in Massachusetts Employers Ins. Exch. v.                                      __________________________________          Propac-Mass, Inc., 648 N.E.2d 435 (Mass. 1995), the SJC abandoned          _________________          the "rascality test" in stating that it "view[s] as uninstructive          phrases  such  as 'level  of  rascality'  and 'rancid  flavor  of          unfairness'."      Id.  at   438.     Contrary  to   the  Damons'                             ___          interpretation, the SJC was simply recognizing that the mentioned          phrases  do  not,  despite  their frequent  citation,  lend  much          guidance in  the fact-specific  context of  a chapter 93A  claim.                                         -39-          Ref. Corp.  v. Garrity  Oil Co., 884  F.2d 1510,  1513 (1st  Cir.          __________     ________________          1989)  (quoting Levings v. Forbes & Wallace Inc., 396 N.E.2d 149,                          _______    _____________________          153 (Mass. App. Ct. 1979)).  In other words,                       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"                      . . . .                     Id. (quoting PMP Assocs., Inc. v. Globe Newspaper Co., 321 N.E.2d          ___          _________________    ___________________          915, 917 (Mass.  1975)); see Tagliente  v. Himmer, 949 F.2d  1, 7                                   ___ _________     ______          (1st  Cir. 1991).   As  the SJC  recently stated, in  weighing an          act's fairness, the  focus is  "on the nature  of the  challenged          conduct and  on the  purpose and effect  of that  conduct as  the          crucial factors."  Massachusetts Employers Ins. Exch., 648 N.E.2d                             __________________________________          at 438.                          3.  Sun's Violation of Chapter 93A                          3.  Sun's Violation of Chapter 93A                              ______________________________                    In its  challenge to the district  court's finding that          Sun  is liable under section  11, Sun maintains  that its conduct          was not "unfair  or deceptive."   However, its  argument on  that          basis is conclusory  at best:  Sun points to  neither evidence in          the record nor case law which would cast into doubt  the district          court's factual  determination on that  point.9   As neither  Sun                                        ____________________          See Cambridge Plating Co., slip op. at 39.            ___ _____________________          9  Sun does cite to evidence that Damon was a businessmen who had          sold gasoline  and used underground storage tanks for some thirty          years prior to buying the property, but only to maintain that the          court must apply a "heightened standard of an unfair or deceptive          act  or practice."  We  remind Sun that  "[s]ophistication of the          parties  is not  mentioned in  chapter 93A  and the  amendment of          chapter  93A  to  cover  business  entities  did  not  limit  the                                         -40-          nor our review of the record provides us with grounds to find the          district court erred, we affirm  the lower court's application of          section 11.   See Schwanbeck  v. Federal-Mogul Corp.,  578 N.E.2d                        ___ __________     ___________________          789, 803 (Mass. 1991)  (noting that "whether a particular  set of          acts,  in  their factual  setting, is  unfair  or deceptive  is a          question  of fact"),  rev'd  on other  grounds,  592 N.E.2d  1289                                ________________________          (Mass. 1992).                    Sun  does  look  to  Winter Panel  Corp.  v.  Reichhold                                         ___________________      _________          Chems.,  Inc.,  823 F.  Supp. 963  (D.  Mass 1993),  for support.          _____________          There,  plaintiff  alleged that  the defendant  chemical supplier          made false statements  about its ability to  supply the plaintiff          with chemicals.   Sun acknowledges  that the  Winter Panel  court                                                        ____________          noted  that "[k]nowing non-disclosure of information necessary to          make affirmative  statements complete or non-misleading will give          rise  to an  action  for misrepresentation,  including an  action          under  chapter 93A."  Id. at 975.   Sun nonetheless seeks to save                                ___          itself  from  liability by  reliance  on  the court's  additional          statement  that  "[s]imply  neglecting  to  discuss  [defendant's          representatives'] lack  of practical experience  with the precise          methods of production pursued by  Winter Panel, however, does not          at present seem  to be the kind of knowing omission that achieves                                        ____________________          statute's  protection  to  small,   unsophisticated  businesses."          V.S.H. Realty,  Inc. v. Texaco, Inc., 757 F.2d 411, 418 (1st Cir.          ____________________    ____________          1985).  Regardless of  the level of the parties'  sophistication,          we  apply  the well-developed  standard  for  section 11  actions          between  two  persons  engaged in  business.    Of course,  their          relative levels  of sophistication may enter  into the fact-based          analysis  the court carries out in weighing whether a party's act          was unfair or deceptive.                                         -41-          the level of rascality  necessary to find a violation  of chapter          93A."   Id.   As we  have already  affirmed the district  court's                  ___          finding of misrepresentation, it is manifest that Sun's acts sink          below the  level  of  "simply neglecting  to  discuss"  the  1974          contamination.  Winter Panel offers Sun no relief.                          ____________                    Sun's  primary argument  against  the district  court's          holding blurs the line between section  11 liability and multiple          damages.10   Specifically,  it contends  that since  the district          court apparently found Sun's conduct was not willful and knowing,          Sun cannot have engaged in common law fraud.  Since  it could not          have engaged in fraud, it concludes, its  conduct did not rise to          the level  of intentional  misconduct, beyond mere  negligence or          inadvertence, that section 11 demands.                      We  disagree.    As  noted above,  the  district  court          refused to award multiple damages here on the basis that                       [m]ultiple damages are not  mandated when                      misrepresentation occurs.   Only "callous                      and   intentional   violations"   deserve                      multiple  damages  treatment.    In  this                      instance, we believe  the evidence of bad                      faith or  willful  intent to  deceive  is                      insufficient to merit a punitive award of                      multiple damages.                                        ____________________          10   Sun also  makes the  circular argument  that if  its conduct          amounts  to  negligence,  it  has  not  met  the  requirement  of          rascality needed for  section 11, since negligence  cannot be the          basis  for a section 11  violation.  To  the contrary, negligence          can provide the basis for chapter 93A liability, so long as it is          paired with an unfair  or deceptive act or  practice -- in  other          words, negligence  plus rascality equals liability.   See Squeri,                                                                ___ ______          588 N.E.2d at 24; Glickman  v. Brown, 486 N.E.2d 737, 741  (Mass.                            ________     _____          App. Ct. 1985); see, e.g., Briggs v. Carol Cars, Inc., 553 N.E.2d                          ___  ____  ______    ________________          930  (Mass. 1990)  (upholding application  of sections  2 &  9 of          chapter 93A where defendant made reckless misrepresentation).                                          -42-          (District  Court Findings of Fact  and Conclusions of  Law, at 12          (citations  omitted)).   As  Sun  itself  indicates, reading  the          district court opinion as finding that Sun was not at all knowing          or  willful is inconsistent with the first element of the tort of          misrepresentation, i.e. that a  party make a false representation          with the knowledge of its falsity.  See Barret Assocs., Inc., 190                                              ___ ____________________          N.E.2d  at  868.   We understand  the  district court  opinion as          indicating that  there  was evidence  of  bad faith  and  willful          intent  to deceive, but that  some quantum of  knowing or willful          violation  must be  met before  a party  is entitled  to punitive          damages  under chapter  93A. Indeed,  "shades of  culpability are          supposed to matter in applying the punitive damages  provision in          the  statute."   Cambridge  Plating Co.,  slip  op. at  42.   Our                           ______________________          reading is consistent with  the district court's specific finding          that  when  Damon  asked Laubinger  if  Sun  had  experienced any          problems  with  the  station  and  underground  tanks,  Laubinger          replied  that it was a  "good station," despite  his knowledge of          the  1974 contamination.  Cf.  VMark Software, 642  N.E.2d at 596                                    ___  ______________          n.15  ("We put great stock in the  findings of the trial judge on          issues such as intent and motivation, since he was in  a superior          position  to assess the weight and  credibility of the witnesses,          and   there  is  no  showing   that  his  findings  were  clearly          erroneous.").                    The case law supports this reading.  In VMark Software,                                                            _______________          Inc. v. EMC Corp., cited  by the district court, the trial  court          ____    _________          found  VMark guilty of  misrepresentation, but did  not grant EMC                                         -43-          multiple damages under section 11.  EMC claimed that the scienter          requirement  for  the  tort  of  misrepresentation  automatically          triggered  section  11's  mandatory  doubling of  damages  for  a          knowing  violation of chapter 93A.   The court disagreed, finding          that  although VMArk's  misstatements  were made  with sufficient          awareness of the facts for it to be liable  under the traditional          tort  formula, "they were not  made so 'knowingly'  as to warrant          the punitive sanctions  of double damages under c. 93A."   Id. at                                                                     ___          595.  We recently reaffirmed  that "[l]iability under Chapter 93A          for conduct amounting  to intentional misrepresentation does  not          automatically trigger punitive damages.   There must be something          more."  Cambridge Plating Co., slip op. at 42.  Accordingly,  the                  _____________________          district court's  conclusion that Sun's actions  were not knowing          and   willful  enough   to  require   punitive  damages   is  not          inconsistent with intentional misrepresentation.                        4.  Multiple Damages Under Chapter 93A                        4.  Multiple Damages Under Chapter 93A                            __________________________________                    Paragraph 5 of section 11 provides for multiple damages          where  "the court finds that  the use or employment  of the . . .          act or practice was a willful or knowing violation."  The  Damons          argue that they should have been granted multiple damages, but do          not  contend that  the  district court  should  have found  Sun's          violation   sufficiently  willful  or knowing  to require  double          damages.11   Instead,  they base  their position  on the  premise                                        ____________________          11  In  their statement of conclusions, the Damons  do posit that          we should conclude that the district  court's indication that Sun          was  guilty  of some  level  of bad  faith  or willful  intent to          deceive suffices  to require  multiple damages under  section 11,          para. 5.   However, as they offer no support for this contention,                                         -44-          that  we should essentially read into section 11 the provision of          section 9  which awards  multiple damages  for a  defendant's bad          faith  refusal  to  make  a  reasonable  settlement  offer  after          demand.12   Their  argument relies  on the  fact that  sections 9                                        ____________________          we deem  it waived.  See United States v. Zannino, 895 F.2d 1, 17                               ___ _____________    _______          (1st  Cir.) ("[W]e see no reason to abandon the settled appellate          rule   that  issues   adverted  to   in  a   perfunctory  manner,          unaccompanied by  some  effort at  developed  argumentation,  are          deemed waived."), cert. denied, 494 U.S. 1082 (1990).                            ____________          12  That section provides, in pertinent part:                      Any person receiving  . . . a demand  for                      relief who  . . . makes  a written tender                      of  settlement which  is rejected  by the                      claimant may, in  any subsequent  action,                      file the written  tender and an affidavit                      concerning  its   rejection  and  thereby                      limit any recovery to the relief tendered                      if  the  court   finds  that  the  relief                      tendered  was  reasonable in  relation to                      the  injury  actually  suffered   by  the                      petitioner.   In all other cases,  if the                      court finds for the  petitioner, recovery                      shall be . .  . up to three but  not less                      than  two times  [actual damages]  if the                      court  finds  that . .  . the  refusal to                      grant relief  upon demand was made in bad                      faith  with  knowledge  or reason to know                      that  the act  or practice  complained of                      violated  said section two.           Mass. Gen. L. ch. 93A,   9(3).  By comparison, section 11 states,          in pertinent part:                      The respondent may tender with his answer                      . .  . a written offer  of settlement for                      single  damages.     If  such  tender  or                      settlement is rejected by the petitioner,                      and  if the  court finds that  the relief                      tendered  was  reasonable in  relation to                      the  injury  actually  suffered   by  the                      petitioner,  then  the  court  shall  not                      award more than single damages.          Mass. Gen. L. ch. 93A,   11.                                         -45-          and 11 share the goal of promoting reasonable settlement  offers.          See International Fidelity  Ins. Co. v. Wilson,  443 N.E.2d 1308,          ___ ________________________________    ______          1318  (Mass.  1983).   According to  this  logic, to  further the          statute's goals we  should punish defendants who are liable under          section 11 and who do not  offer single damages with their Answer          by inflicting multiple damages  on them, and reward those  who do          with single damages.                      We have previously noted  that "[i]t is unclear whether          section  11 permits  recovery of  multiple damages  under such  a          theory where bad faith is proved."  Southworth Mach. v. F/V Corey                                              ________________    _________          Pride, 994 F.2d 37, 40  (1st Cir. 1993).  Nonetheless, we  do not          _____          hesitate in refusing the Damons' argument.   First, we note  that          section 9 is  by its terms  inapplicable to transactions  between          persons engaged in business, and section 11 quite simply does not          include  language   acting  as  a  counterpart   to  section  9's          requirement of multiple  damages where  a party does  not make  a          written tender  of settlement.   See id.   Second, we  note that,                                           ___ ___          although it shares  specific goals with section  9, "[s]ection 11          provides a different procedure  for achieving the same objectives          of facilitating settlement and fixing damages."  Nader v. Citron,                                                           _____    ______          360  N.E.2d 870, 874 (Mass. 1977).  Indeed, the Massachusetts and          federal  courts have  consistently respected  the differences  in          procedures  between the two sections.   See, e.g.,  Fickes v. Sun                                                  ___  ____   ______    ___          Expert,  Inc.,  762 F.  Supp. 998,  1001  (D. Mass.  1991); Aetna          _____________                                               _____          Casualty  and Surety  Co. v.  State Park  Ins. Agency,  Inc., 428          _________________________     ______________________________          N.E.2d 376, 377  (Mass. App.  Ct. 1981); see  also Glickman,  486                                                   _________ ________                                         -46-          N.E.2d at 742 &  n.7 (refusing to  analyze section 11 damages  in          terms  of defendants'  response  to  plaintiffs' demand  letter).          "Whatever the merits of implying the demand letter  scheme of   9          into    11, as urged by  defendants, we find no  support for such          implication in the  language and structure of   11."   Nader, 360                                                                 _____          N.E.2d at 874.  Finally, we  note that the district court did not          find  that Sun's  failure to  tender an  offer of  settlement was          "made in  bad faith with knowledge or reason to know that the act          or  practice complained of violated said section 2," as section 9          demands, and the Damons have not demonstrated any evidence to the          contrary.  Thus, even if we were to weigh Sun's failure to tender          an  offer into our analysis, the Damons' challenge to the court's          damage award would fail.                    Our  decision  today  does  not clash  with  the  SJC's          decision in International Fidelity  Ins. Co., despite the Damons'                      ________________________________          reliance on  it.  There,  the SJC  weighed the goal  of promoting          reasonable  settlements in both sections 9 and 11, and found that          it would  be appropriate to impose  independent liability against          the multiple defendants  in that case, as to do  so would promote          settlements.  443 N.E.2d at 1318.  At the same time, however, the          Court  noted that  "the procedures  set out  in the  two sections          differ,"  despite  their common  goal.   Id.  (citing  Nader, 360                                                   ___           _____          N.E.2d  at 870).  Thus,  we read International  Fidelity Ins. Co.                                           ________________________________          not as suggesting we read the damage provisions of section 9 into          section 11, but as recognizing that their goals are similar while          their  methods are not.   See Levings v.  Forbes & Wallace, Inc.,                                    ___ _______     ______________________                                         -47-          396  N.E.2d 149,  153 (Mass.  App. Ct.  1979) ("The  remedies and          procedures in     9 and 11 are related, but not parallel, and the          conditions  of one section should not be read by implication into          the  other."); Nader, 360 N.E.2d  at 874 (noting that "analogies,                         _____          whatever  their utility,  do not  form a  basis for  the judicial          rewriting  of statutes"  in refusing  to read section  9's demand          letter procedure into section 11).                                   ATTORNEY'S FEES                                   ATTORNEY'S FEES                    The  district court  awarded the  Damons $40,620.40  in          attorney's fees and costs.  See Mass. Gen. L. ch. 93A,   11 para.                                      ___          6  (mandating reasonable  attorney's  fees and  costs be  awarded          where the court finds a violation of    2).  Sun argues that  the          award  was not  reasonable, on  the basis  that the  hourly rates          granted  (specifically,  the  rate  of  $235  an hour  for  court          appearances  and depositions)  were exorbitant  and unreasonable,          and  the  contingency nature  of the  engagement.   Based  on our          review   of  the  record,  we  do  not  find  the  court's  award          unreasonable.                                      CONCLUSION                                      CONCLUSION                    For  the  reasons discussed  above,  we  find that  the          district court's  refusal of Sun's  motion for entry  or judgment          and motions to alter and amend the  judgment and findings and for          a  new  trial were  not  an  abuse  of its  discretion.    Having          considered all the parties' arguments, we find both appeals to be          lacking  in merit.  Consequently,  we affirm the  decision of the                                                ______          district court on all points.                                          -48-                    No costs on appeal to either party.                                         -49-
