
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT        No. 96-2066                                   PLAY TIME, INC.,                                      Appellee,                                          v.                        LDDS METROMEDIA COMMUNICATIONS, INC.,                          a/k/a WORLDCOM, INC. OR WORLDCOM,                                      Appellant.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                                                                      ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                              Cyr, Senior Circuit Judge,                                   ____________________                              and Stahl, Circuit Judge.                                         _____________                                                                                      ____________________             Joan A. Lukey,  with whom Anthony A. Scibelli and  Hale and Dorr,             _____________             ___________________      ______________        LLP were on brief for appellant.        ___             Kenneth L.  Kimmell,  with whom  Erin M.  O'Toole and  Bernstein,             ___________________              ________________      __________        Cushner & Kimmell, P.C. were on brief for appellee.        _______________________                                                                                      ____________________                                   August 12, 1997                                                                                      ____________________                    CYR,   Senior  Circuit   Judge.     Defendant-appellant                    CYR,   Senior  Circuit   Judge                           _______________________          WorldCom challenges  a district  court judgment  awarding damages          for breach  of its  agreement to  assign plaintiff-appellee  Play          Time, Inc.  ("Play Time")  a toll-free "800"  vanity number.   We          affirm the district court judgment in all respects.                                          I                                          I                                     BACKGROUND1                                     BACKGROUND                                     __________                    WorldCom,  a  corporation  with its principal  place of          business  in Jackson,  Mississippi,  and  an  office  in  Revere,          Massachusetts,  provides   subscribers  with   specialized  long-          distance services, including toll-free "800"  numbers.2  Pursuant          to industry standards,  toll-free "800" numbers  are stored in  a          central  database  known  as the  800  Service  Management System          ("SMS/800").   All "800"  numbers are  reserved  and assigned  to          subscribers by so-called Responsible  Organizations ("RESP ORGs")          through SMS/800.                      In  March  1994,  Play  Time,  a   Massachusetts-based,          family-owned  corporation  engaged in  selling art  supplies, was          endeavoring to expand into nationwide telephonic networking aimed          at the commercial real estate leasing market.  Michael Levosky, a          Play Time  shareholder and  co-manager,  envisioned a  nationwide          referral service through  which potential customers could  call a                                        ____________________               1"We recite the  facts as the jury and  district court could          have found them."  Roche v.  Royal Bank of Canada, 109 F.3d  820,                             _____     ____________________          821 (1st Cir. 1997).                2At the time of the  relevant events, its corporate name was          LDDS Metromedia Communications, Inc.                                            2          toll-free  "800" number and  enter information into  an automated          call router which  would link the caller to a  real estate office          near the place the caller wanted to lease commercial real estate.          Play Time would generate income from the fees charged real estate          brokers for  their advertising and  usage of the  toll-free "800"          number.                    To that  end, Play  Time set out  to obtain  a suitable          vanity  number,  one  whose alphabetical  counterpart  conveyed a          business message  readily identified  and remembered  by targeted          customers.   Levosky  decided  to  obtain 1-800-"367-5327"  ("the          Number"),  which  would  transpose  as "FOR-LEAS[E]."    WorldCom          advised  Levosky that  the Number,  though not  then in  use, was          expected to become available a few weeks later, on or about April          20, 1994.3                    Levosky   called   the  WorldCom   office   in  Revere,          Massachusetts, which  handled other  telephone business  for Play          Time, and  spoke with the  "800" coordinator, Martha  Burton, who          confirmed  that the Number  would become available  in mid-April.          Burton assured Levosky  that she would obtain  the Number through                                        ____________________               3The SMS/800 system records the status of all "800" numbers.          Normally, "800"  numbers fall into  one of five  main categories:          "assigned," "working,"  "spare," "disconnect,"  or "unavailable."          After a subscriber  advises that it no longer  needs a particular          "800" number, the number is  allowed to age for approximately six          months  before reverting  to  "spare" status.    Only numbers  in          "spare"  status are immediately available to the next subscriber.          A number in "spare" status is not assigned to any particular RESP          ORG, but  can be assigned to a subscriber  by any RESP ORG simply          by  reserving it  with SMS/800.   Once an  "800" number  has been          assigned to a particular RESP ORG, however, no other RESP ORG can          control its status.                                           3          SMS/800  and assign  it to  Play  Time once  it attained  "spare"          status.                    On  April 20, 1994, one  week after WorldCom became the          RESP ORG for the Number, and the day  the Number was to revert to          "spare" status, Levosky reminded WorldCom to assign the Number to          Play  Time.4  Notwithstanding  that WorldCom had  been designated          the RESP ORG for the Number, however, it did not do so.   Levosky          called WorldCom frequently between April  20 and May 10, 1994, to          ascertain  why the Number had not yet been assigned to Play Time,          only to be told essentially that WorldCom was checking into it.                    On  May  11,  1994, Levosky  called  Joseph  Shannon, a          senior account executive in WorldCom's Revere office, who assured          Levosky that the  Number could be assigned to Play  Time once the          appropriate paperwork  had  been  completed.    Levosky  promptly          executed the required documents and returned  them to Shannon the          same day; Shannon faxed  them to the WorldCom RESP ORG  office in          San Antonio on May 12.                     Although  the WorldCom fax machine in the Revere office          printed a  receipt reflecting that  the fax had been  received in          San Antonio on May 12, when Shannon called the San Antonio office          on  May 13  he was  informed that  the documents  had never  been          received.  Once again Shannon  faxed the documents.  Although the                                        ____________________               4Any  RESP  ORG  may  reserve  a number  in  "spare"  status          directly through SMS/800.  The  number is then "reported to" that          RESP ORG, in  "reserve" status.   At all times  relevant to  this          appeal,  a number  could remain  in reserve status  for up  to 60          days.   Thereafter, it  automatically reverted to  "spare" status          unless it had achieved "assigned" or "working" status.                                            4          second set of documents was received in San Antonio on May 13, as          confirmed by telephone, still the Number was not assigned to Play          Time.    Shannon was  told  the delay  was  due to  difficulty in          getting  the  Number released  from SMS/800,  notwithstanding the          fact that WorldCom  was already the RESP ORG for the Number.  But                                                                        ___          see supra note 3.          ___ _____                    Meanwhile,  one Michael  Eisemann had asked  a WorldCom          office  in Indiana  to  obtain  the Number  for  his real  estate          business.   Eisemann intended to  use the Number in  a nationwide          referral system  similar to that  envisioned by Levosky.   On May          20, 1994,  approximately two months  after Levosky  first made  a          verbal request for the Number and nine days after Levosky's first          written request,  Eisemann submitted  the order  to the  WorldCom          office  in Indiana,  with  the  required  paperwork.    Levosky's          earlier requests notwithstanding, WorldCom assigned the Number to          Eisemann, because its Revere office had never entered Play Time's          request into SMS/800.                     Unaware that Eisemann had obtained  the Number, Levosky          continued to inquire into its  status.  Although Levosky was told          there  had been  some  delay due  to paperwork  problems, Shannon          advised him  that the problems  had been resolved and  the Number          would soon  be assigned to Play Time.   On May 26, Levosky dialed          the  Number to  determine whether  it would  ring at  Play Time's          office.   The  call  was answered  instead by  an  employee in  a          Detroit,  Michigan,   maintenance  office.     Whereupon  Levosky          contacted WorldCom,  only to  be informed that  there had  been a                                          5          computer "glitch."                    Although WorldCom switched  the Number to Play  Time on          May  27,  by May  31 it  was  once again  ringing at  the Detroit          maintenance office.  The Number changed hands between Levosky and          Eisemann four  more times between  May 31 and June  2, ultimately          remaining with  Eisemann.   On June 2,  Shannon tracked  down the          Indiana sales representative responsible for assigning the Number          to Eisemann, and learned for the first time that Eisemann too had          requested the  Number.   After  Shannon informed  Levosky of  the          problem,   Levosky  complained   that  WorldCom   originally  had          retrieved the Number  from SMS/800 at his request,  more than two          months earlier.   Levosky then asked  WorldCom to disconnect  the          Number pending an investigation.                    Shannon and  his supervisor,  Charles Hurd,  approached          senior WorldCom management in the Revere  office, urging that the          Number be  returned to Play  Time.  Hurd informed  Brady Buckley,          Vice President of  sales for the eastern region,  that the Number          had been taken from Play Time.  Buckley asked Hurd how much money          the  Number could be  expected to  produce.   Hurd was  unable to          answer the  question.  Buckley  finally told Hurd:   "F--- it[;]"          "leave it alone."                    Upon  learning that  the Revere  office  was unable  or          unwilling  to  assist  him  further,  Levosky  contacted  Deborah          Surrette, WorldCom Vice President for the Northeast region.  When          Levosky explained why  the Number was so important  to Play Time,          Surrette promised to investigate the  matter and get back to him.                                          6          Surrette asked  Kelle Reeves,  director of customer  provisioning          and  RESP ORG,  to  determine whether  WorldCom  policy had  been          followed in  regard to the  Number.  After speaking  with several          people,  but  without  attempting either  to  contact  the Revere          office  or to  ascertain which  customer had first  requested the                                                              _________          Number, Reeves simply  concluded that WorldCom had  complied with          industry  guidelines requiring "800" numbers to be allocated on a          "first-come, first-served"  basis, as Eisemann's request had been          the first to be entered into SMS/800.5                    Levosky continued to urge WorldCom to return the Number          to Play  Time, but was  told that industry  guidelines prohibited          its reassignment.    See  supra note  5.    Levosky  nevertheless                               ___  _____          maintained  that Play  Time had  been  the first  to request  the          Number.   WorldCom  then  altered  course,  explaining  that  its          relationship  with  Levosky  was   not  controlled  by   industry                                             ___          guidelines, which govern only the relationship between a RESP ORG          and SMS/800.                    At that point, WorldCom wrongly  represented to Levosky          that the problem had been caused by AT&T.  According to WorldCom,          AT&T had  been the RESP ORG for the Number  on the date Play Time          requested  it,  but had  released  the Number  to  "spare" status          rather than assigning it to  WorldCom.  To the contrary, however,          AT&T was never the RESP ORG  for the Number after 1993.   Rather,                                        ____________________               5Industry guidelines  provide  that:  "Specific  800  Number          requests  are honored  based on  availability,  on a  first-come,          first-served  basis, at  the  time  the  reservation  request  is          initiated by a  RESP ORG into SMS/800."   Industry Guidelines for          800 Number Administration, 2.3.1 (Issue 3.0, December 1, 1993)                                          7          as we  have noted, WorldCom  itself had been the  designated RESP          ORG since April 13, 1994.                    Finally, WorldCom informed  Levosky that the  documents          he had submitted  through Shannon, see supra  p. 4, had  not been                                             ___ _____          received  by its  San Antonio  office  until after  the May  20th          request from Eisemann,  even though  a WorldCom  employee in  San          Antonio had confirmed receipt of the Levosky paperwork on May 13.          Play  Time brought  suit against  WorldCom on  November 9,  1994,          demanding  damages  and  specific  performance.    Shortly  after          Eisemann  was named  an indispensable  party in  relation to  the          specific performance  claim     because he  still controlled  the          Number    he  changed long-distance carriers to  prevent WorldCom          from returning the Number to Play Time.                    Play Time  then offered  Eisemann  an immediate  $5,000          non-refundable deposit and an additional $45,000 following trial,          in  return for  the Number.    At the  same time,  it  offered to          dismiss its  action against Eisemann  if he would testify  to the          value of  the Number.   Eisemann  countered with  a demand for  a          $10,000  non-refundable deposit and  $40,000 after trial.   Their          negotiations  ultimately fell through because Play Time could not          come up with the additional $5,000 non-refundable deposit.                    Eisemann  nevertheless  testified  at  trial  that  the          Number did have inherent value, explaining that "people would buy          the [vanity]  number for [its]  potential value."  He  produced a          pamphlet he had  developed for marketing the Number,  touting the          importance of  vanity  numbers in  reaching potential  customers.                                          8          Although Eisemann  acknowledged that  he was  motivated to  enter          into an agreement  with Levosky in part because he  wanted to get          Levosky "out of  his hair," he  consistently maintained that  the          Number had inherent value.                    The jury returned verdicts for Play Time on all counts,          awarding $50,000 in damages on each count, representing the value          of  the  Number under  a  "willing-transferor-willing-transferee"          standard.   The  total  award was  limited  to $50,000,  however,          because  the jury  determined that recovery  under more  than one          count would be redundant.                     At  a later  hearing, the  presiding  judge found  that          WorldCom had violated Mass. Gen. Laws ch. 93A,  11, which affords          civil  relief from unfair  or deceptive business  practices.  The          court  determined WorldCom's  conduct both unfair  and deceptive,          and  held  that  it had  occurred  "primarily  and substantially"          within Massachusetts.  Accordingly, the court trebled the $50,000          damages award made by the jury, see Mass. Gen. Laws ch. 93A,   11                                          ___          (1984), and awarded attorney fees and costs under Mass. Gen. Laws          ch.  93A  and  the  Federal Communications  Act.    Finally,  the          equitable claim for  specific performance was dismissed  as moot.          WorldCom promptly appealed from the $233,334.84 judgment.                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          1.   Jury Instructions and Verdict Form          1.   Jury Instructions and Verdict Form               __________________________________                    WorldCom claims the district court erred in instructing          the  jury  to   apply  a  "willing-transferor-willing-transferee"                                          9          standard for measuring damages.   It maintains that "800" numbers          are without  inherent value as  a matter  of law, since  it would          violate  industry guidelines and public policy to allow telephone          numbers to be bought and sold on the open market.                      Throughout the trial, Play Time made it very clear that          it was demanding the value of the Number.  Early on, the district          court set  itself  to the  task  of articulating  an  appropriate          measure of damages.  WorldCom voiced no objection to the district          court's proposed  articulation of  the measure  of damages  until          after the close of the evidence.  At that time, its trial counsel          offered two cursory observations.                     First, WorldCom stated  that the measure of  damages on          the  negligence  claim  should  be  different  from that  on  the          contract claim.   Its second observation appears in the following          exchange:                     WorldCom:  Your Honor, just for the record, I                    ________   ____ _____       ___ ___ ______  _                    haven't  made  any comments  on  the willing-                    _______  ____  ___ ________  __  ___ ________                    assignor-willing-assignee  theory.    I  just                    _________________________  ______                    wanted  to  reflect what  the  record so  far                    reflects, that by not making  any comments on                    it, I don't adopt it as --                    The Court:  Well, you'll have the opportunity                    _________                    to make objection.                    WorldCom:  Yes.                    ________                    The Court:  But if you've got any alternative                    _________   ___ __ ______ ___ ___ ___________                    way  of dealing with this matter, of course I                    ___  __ _______ ____ ____ ______            _                    want to hear it now.                    ____ __ ____ __ ___                    WorldCom:  Right.   I don't think I  do other                    ________            _ _____ _____ _  __ _____                    than simply to  ask you to instruct  the jury                    ____        __  ___ ___ __ ________                    in accordance  with my  requested instruction                    __ __________  ____ __  _________ ___________                    on  damages, and  I expect  that's  what I'll                    simply do after closings.  (Emphasis added.)                                          10          The record on  appeal neither contains a  proposed instruction by          WorldCom nor  reflects  the  grounds  for its  objection  to  the          instruction given by the district court.                      The  special verdict form  included a statement  of the          issues  relating  to  the "willing-transferor-willing-transferee"          standard, as follows:                    1(c).  What  amount of money, if any,  do you                    find to be fair  and reasonable compensation,                    of each  of the  following types,  for .  . .                    breach . . . of contract?   Answer in DOLLARS                    or NONE.                    (1)   Reimbursement  of  losses  proved by  a                    preponderance of  the evidence  to have  been                    out-of-pocket expenses.                    (2)   Fair  market value  (as  valued by  the                    willing-transferor-willing-transferee   stan-                    dard)  of a  transfer,  by Eisemann  to  Play                    Time,  on or  about  September  21, 1995,  of                    Eisemann's rights to use the number  800-367-                    5327.          The  same formula  was  used for  the  contract, negligence,  and          Federal Communications Act claims.                    The presiding judge  explained the "willing-transferor-          willing-transferee" standard to the jury as follows:                           The  willing   transferor  and   willing                    transferee are  hypothetical persons  created                    by the  law to  help us  decide questions  of                    valuation in circumstances  in which no  real                    persons have arrived  at an  exact value  for                    the  property or  property  rights at  issue.                    You, as  decisionmakers on  this question  of                    value, are directed to envision not the usual                    arm's-length  transactions between  real-life                    bargainers, but instead a  transaction of the                    hypothetical variety  - indeed of  a contrary                    to fact variety.   If the reality is  that in                    human experience a  property interest exactly                    like  that transferred in  this case  has not                    been   transferred    in   an    arm's-length                                          11                    transaction  between  real people,  you  must                    imagine a  transaction not  exactly like  any                    transaction described in  the evidence before                    you.                         These hypothetical persons,  the willing                    transferor  and  willing  transferee,  always                    come to an  agreement.  They never  end their                    negotiations in failure.  They always  arrive                    at a value they both agree upon.                         The  aim of  factfinding  by using  this                    willing-transferor-willing-transferee                    standard is to help you evaluate the parties'                    evidence, and their  arguments about evidence                    and  about formulas  and  figures, and  about                    other factors in evidence  that bear upon the                    issue  of  value.     You  are  to   do  your                    evaluation in  the way  you find  the willing                    transferor  and   willing  transferee   would                    evaluate the same factors and arguments.                         To  these  persons   different  formulas                    suggested   by  opposing   parties  are   not                    binding.  They  are only tools.   The willing                    transferor  and  willing  transferee  do  not                    overlook relevant evidence.  They weigh every                    relevant factor.   They are not experts,  but                    they  are attentive to expert advice.  But in                    the  end they make  a pragmatic decision that                    enables  them to come to a common value after                    evaluating all of the  evidence and arguments                    before them.                    After the jury charge had been delivered, the presiding          judge invited  objections to the  charge and the  special verdict          form.  At that point, WorldCom simply registered its objection to          the  "instruction  on the  measure  of damages"  relating  to the          "willing-transferor-willing-transferee" standard.   The  district          court overruled the objection.                     Objections to jury instructions are governed by Fed. R.          Civ. P. 51, which provides in relevant part that "[n]o  party may          assign as error  the giving or the failure to give an instruction                                          12          unless  that party  objects thereto  before the  jury retires  to          consider its verdict,  stating distinctly the matter  objected to                                 _______ __________ ___ ______  ________ __          and the grounds of the objection."   Fed. R. Civ. P. 51 (emphasis          ___ ___ _______ __ ___ _________          added).  We  have "consistently held that the  strictures of Rule          51 must be followed  without deviation."  Smith v.  Massachusetts                                                    _____     _____________          Inst. of Tech.,  877 F.2d 1106, 1109  (1st Cir. 1989).   See also          ______________                                           ___ ____          Kerr-Selgas v. American  Airlines, Inc., 69 F.3d 1205,  1213 (1st          ___________    ________________________          Cir. 1995).6                     Assignments of error duly preserved pursuant to Rule 51                                                                         __          are subject  to the "harmless error"  regime set out in  Rule 61,                                                                        __          which requires  the reviewing court  to "disregard  any error  or                ________          defect in the  proceeding which does  not affect the  substantial          rights of  the parties."   Fed. R.  Civ. P.  61.7   Absent strict          compliance with  Rule 51, however, appellate challenges to a jury          charge or verdict form  cannot succeed unless the  assigned error          "caused  a  miscarriage  of  justice  or .  .  .  undermined  the          integrity of the judicial process."  Scarfo v. Cabletron Systems,                                               ______    __________________                                        ____________________               6The Rule  51 standard  applies to the  jury charge  and any          special verdict form.  See  Transamerica Premier Ins.Co. v. Ober,                                 ___  ____________________________    ____          107 F.3d 925,  933 (1st Cir.  1997); Clausen v.  Sea-3, Inc.,  21                                               _______     ___________          F.3d 1181, 1195-96 (1st Cir. 1994).               7WorldCom insists that the jury instruction must be reviewed          de  novo.     Although  we  exercise  "independent   judgment  in          __  ____          evaluating the  legal correctness  of the  district court's  jury          instructions," Data General  v. Grumman Systems Support,  36 F.3d                         ____________     _______________________          1147, 1159  (1st Cir. 1994),  and may review the  special verdict          form for abuse of discretion,  see  Transamerica Premier Ins. Co.                                         ___  _____________________________          v. Ober, 107  F.3d 925, 933  (1st Cir. 1997),  a party which  has             ____          complied with  Rule 51 nonetheless  must show  that the  assigned          error  affected "substantial  rights," see  Fed.  R. Civ.  P. 61,                                                 ___          whereas  a  party  which  has  not complied  with  Rule  51  must          demonstrate a "miscarriage of justice."   See Scarfo v. Cabletron                                                    ___ ______    _________          Systems, Inc., 54 F.3d 931, 940 (1st cir. 1995).          _____________                                          13          Inc., 54  F.3d 931, 940 (1st Cir. 1995);  see also Lash v. Cutts,          ____                                      ___ ____ ____    _____          943 F.2d 147,  152 (1st Cir. 1991) ("Absent  timely objection, an          erroneous  jury  instruction warrants  a  new trial  only  in the          exceptional case where the error seriously affected the fairness,          integrity  or   public  reputation   of  judicial   proceedings."          (internal quotation  marks omitted));  Elwood v.  Pina, 815  F.2d                                                 ______     ____          173,  176 (1st Cir. 1987).  The  latter standard    "plain error"             see Transamerica Premier Ins.  Co. v. Ober, 107 F.3d 925,  933             ___ ______________________________    ____          (1st Cir. 1997); Kerr-Selgas, 69  F.3d at 1213; Elgabri v. Lekas,                           ___________                    _______    _____          964 F.2d  1255, 1259 (1st  Cir. 1992);  Elwood, 815 F.2d  at 176,                                                  ______          "'is near its  zenith in the Rule 51 milieu.'"  Clausen v. Sea-3,                                                          _______    ______          Inc.,  21 F.3d  1181, 1196  (1st Cir.  1994) (quoting  Toscano v.          ____                                                   _______          Chandris, S.A., 934 F.2d 383, 385 (1st Cir. 1991)).          ______________                    Rule  51  requires  a  punctual  objection  identifying          "distinctly the matter objected to  and the grounds of the objec-                                                  ___ _______ __ ___ ______          tion."  Fed.  R. Civ.  P. 51  (emphasis added).   Here,  however,          ____          WorldCom  interposed no record  objection to the  special verdict          form, as distinguished from the jury charge defining "the measure          of   damages."    Moreover,   WorldCom  articulated   no  grounds                                                                    _______          whatsoever for its  objection to the special verdict  form or the          jury charge.        Failure   to   object  with   the   requisite          particularity forfeits  review under  the "harmless error"  rule.                                         _____  ___  ________ _____   ____          See Scarfo,  54 F.3d at  944; Linn v. Andover  Newton Theological          ___ ______                    ____    ___________________________          School, Inc., 874 F.2d 1, 5 (1st  Cir. 1989); Elwood, 815 F.2d at          ____________                                  ______          175-76; New  York, N.H. & H.R. Co. v.  Zermani, 200 F.2d 240, 245                  __________________________     _______          (1st Cir.  1952).  Consequently,  appellate review is  limited to                                          14          determining whether a miscarriage of justice would occur were the          asserted  error not  corrected.    See Scarfo,  54  F.3d at  940.                                             ___ ______          WorldCom can demonstrate no miscarriage of justice.                      First,  the "fair market value" standard defined by the          district court,  see supra  pp. 11-12, provided  the jury  with a                           ___ _____          just and reasonable measure of damages under Massachusetts law in          these circumstances.   See Mechanics Nat'l. Bank of  Worcester v.                                 ___ ___________________________________          Killeen, 384 N.E.2d  1231, 1239 (Mass. 1979)  (holding, in action          _______          for breach of contract caused by wrongful foreclosure and sale of          shares  of stock,  plaintiff was  "entitled to  recover the  fair          market  value of  the stock at  the time  of its sale");  Hall v.                                                                    ____          Paine, 112 N.E. 153, 155  (Mass. 1916) (holding that "fair market          _____          value" was proper measure of damages for stock broker's breach of          margin agreement  caused by  sale of  plaintiff's shares  without          authorization; noting that, generally speaking, fair market value          is proper measure  of damages for breach of  contract relating to          sale of goods  which have an ascertainable value  on the market).          Thus,  at  the  very  least,  the  "fair  market  value" standard          articulated   by  the   district  court   effectively  foreclosed          WorldCom's claim of  error under the "plain  error" ("miscarriage          of justice.") standard.8  The failure [to] instruct the jury on a                                        ____________________               8Under  the harmless error rubric, trial court error affects          "substantial  rights" only if it results in substantial prejudice          or has  a substantial  effect on the  outcome of  the case.   See                                                                        ___          Lataille  v. Ponte,  754 F.2d  33, 37  (1st Cir.  1985) (defining          ________     _____          harmless error, in context of challenge to admission of evidence,          as "whether we can say 'with fair assurance ... that the judgment          was  not  substantially  swayed by  the  error'"  (quoting United                                                                     ______          States v. Pisari  636 F.2d 855, 859 (1st  Cir. 1981)) (alteration          ______    ______          in  original)).   See also  12 JAMES  WM. MOORE  ET AL.,  MOORE'S                            ___ ____                                          15          measure of damages  other than the fair market  value cannot meet          either  standard,   however,  especially  since   the  challenged          instruction  outlined a fair  and reasonable measure  of damages,          and no other standard was proposed below.                      WorldCom misses  the mark  with its  argument that  the          Number had no market  value because its sale,  brokering, barter,          or  release  for a  consideration  was  prohibited.9   Quite  the                                        ____________________          FEDERAL PRACTICE    61.02[2] (3d ed. 1997).   In order to satisfy          the  "plain error" standard of review ("miscarriage of justice"),          however,  an   appellant  must   show  "more   than  the   simple          individualized harm which occurs whenever a litigant's failure to          object . . . alters  the outcome of a trial."   9 MOORE'S FEDERAL          PRACTICE    51.21[2].   Among the factors  to be  considered are:          whether the  failure  to  raise  the  claim  below  deprived  the          reviewing court of  helpful factfinding; whether the issue is one          of  constitutional magnitude;  whether  the  omitted argument  is          highly  persuasive; whether the opponent would suffer any special          prejudice; whether  the omission  was inadvertent  or deliberate;          and, perhaps  most importantly,  whether the  issue  is of  great          importance to the  public.  See National Ass'n  of Social Workers                                      ___ _________________________________          v. Harwood; 69  F.3d 622,  627-28 (1st  Cir. 1995)  ("legislative             _______          immunity" defense considered  on appeal despite failure  to raise          it below).  See also 9 MOORE'S FEDERAL PRACTICE   51.21[2].   Our                      ___ ____          case, which implicates only the question of damages for breach of          a private agreement  between the litigants, presents  no issue of          great  public importance or constitutional magnitude; the Harwood                                                                    _______          factors, therefore, weigh in  favor of Play Time.   Nor does  the          present case  implicate the integrity of the judicial process, as          the proceedings below were conducted with meticulous attention to          the rights of both parties.  See Scarfo, 54 F.3d at 940.                                       ___ ______               9The relevant industry guideline provides:                          800  numbers  are not  to be  treated as                    commodities which can be  bought or sold  and                    no  individual   or  entity   is  granted   a                    proprietary  interest   in  any   800  number                    assigned.     RESP   ORGs  and   800  Service                    Providers   are   prohibited   from  selling,                    brokering, bartering, or releasing for a  fee                    (or other consideration) any 800 number.                         Reserving,   Assigning,   or  activating                    (Working)  800  Numbers  by  RESP  ORGs,  800                                    _______                    Service  Providers,  or   Customers  for  the                                          16          contrary,   the    pertinent   Industry    Guideline   explicitly          acknowledges  the   ultimate  right  of  "800   Service  End-User          Subscriber[s]  . .  . to  control  their 800  Service, and  their          reserved, active,  or assigned  800 Service  Numbers."   Industry          Guidelines  for 800 Number  Administration 2.2.1,  3  (Issue 3.0,          December  1, 1993).10  Instead, industry guidelines prohibit only          RESP  ORGs and "800" Service Providers from trading "800" numbers          for valuable consideration.  Id.  2.2.1,  1.  Subscribers, on the                                       ___          other hand, are prohibited only from obtaining "800" numbers  for          the primary purpose of trading in them.  Id. 2.2.1,  2.              _______ _______                      ___                    Thus,  industry  guidelines did  not impede,  let alone          foreclose, a  jury finding that  the right to control  the Number          had  inherent value in  the marketplace.   Consequently, WorldCom          failed  to  establish  that  any  right to  use  the  Number  was          valueless as a matter of law, let alone that any "error seriously          affected the fairness, integrity or public reputation of judicial                                        ____________________                    primary   purpose   of   selling,  brokering,                    bartering, or releasing for  a fee (or  other                    consideration) that 800 Number is prohibited.                                            ______                         However, the  800 Service  End-User Sub-                    scriber  has the  ultimate  right to  control                    their  800   Service,  and   their  reserved,                    active, or assigned 800 Service Numbers.          Industry Guidelines  for 800  Number Administration 2.2.1  (Issue          3.0, December 1, 1993).                10Similarly, the  WorldCom tariff provided  that subscribers          have  "no  ownership   interest  or  proprietary  right   in  any          particular 800  number," but  explicitly stated  also that  "upon          placing  a  number  actually  and  substantially in  use  .  .  .          [WorldCom] 800 Service  Customers do have a  controlling interest          in  this [sic]  800 number(s)."    Tariff F.C.C.  No. 2,  C.3.3.3          (February 7, 1994).                                            17          proceedings."   Lash, 943 F.2d  at 152 (internal  quotation marks                          ____          omitted).          2.   Judgment as a Matter of Law11          2.   Judgment as a Matter of Law               ___________________________                    WorldCom  also  challenges  the district  court  ruling          denying its motion for judgment  as a matter of law.  See Fed. R.                                                                ___          Civ. P.  50.  It  assigns two  errors:  (i)  Play Time  failed to          establish recoverable damages, and (ii) sustained no damages from          any WorldCom  negligence.  As  WorldCom maintains that  Play Time                                                            failed to prove  to a reasonable certainty that  it sustained any          damages as  a result of its failure to  assign the Number to Play          Time, we must inquire whether Play Time presented enough evidence          to enable a reasonable jury to determine, to the requisite degree          of certainty, the value of the Number.12                    Our inquiry is guided by Massachusetts law:                    The fundamental principle  of law upon  which                    damages for  breach of contract  are assessed                                        ____________________               11Appellate  challenges  under  Rule 50  face  a  formidable          hurdle:                    Review of [a] denial of a motion for judgment                    as a  matter of  law is plenary.  . .  . [W]e                    review the record in the light most favorable                    to the non-moving party.  We will reverse the                    denial of  such a  motion only  if reasonable                    persons could not have reached the conclusion                    that the jury embraced.          Ansin v. River Oaks Furniture, Inc., 105 F.3d 745, 753 (1st  Cir.          _____    __________________________          1997)  (internal quotation  marks  omitted),  petition for  cert.                                                        ________ ___  _____          filed, 65 U.S.L.W. 3839 (U.S. June 10, 1997) (No. 96-1969).          _____               12WorldCom resurfaces its jury instruction challenge    that          the Number had  no inherent value,  see supra p.  9; hence,  Play                                              ___ _____          Time established no  recoverable damages.  As the  Number was not          valueless as a matter of law, see supra pp. 16-17, its claim must                                        ___ _____          be rejected in the present context as well.                                          18                    is  that the injured party shall be placed in                    the same position  he would have been  in, if                    the contract  had been  performed, so  far as                    loss can be ascertained to have followed as a                    natural consequence and  to have been  within                    the   contemplation   of   the   parties   as                    reasonable men as  a probable  result of  the                    breach, and so  far as compensation  therefor                    in money can be computed by  rational methods                    upon a firm basis of facts . . . .          John Hetherington  & Sons,  Ltd. v. William  Firth, Co.,  95 N.E.          ________________________________    ___________________          961, 964  (Mass. 1911).   See also  Hendricks & Assocs.,  Inc. v.                                    ___ ____  __________________________          Daewoo  Corp.,  923  F.2d  209,  213  (1st Cir.  1991)  (applying          _____________          Hetherington).    Thus,  it  was  incumbent  upon  Play  Time  to          ____________          establish  a firm evidentiary foundation for the damages claimed,          leaving  no  essential  element   to  "'conjecture,  surmise   or          hypothesis."   Snelling  & Snelling  of Mass.  Inc. v.  Wall, 189                         ____________________________________     ____          N.E.2d 231, 232  (Mass. 1963) (quoting  Hetherington, 95 N.E.  at                                                  ____________          964).   See also Air Safety, Inc. v. Roman Catholic Archbishop of                  ___ ____ ________________    ____________________________          Boston, 94 F.3d 1, 4 (1st Cir. 1996); Hendricks, 923 F.2d at 217.          ______                                _________                    Ample record evidence supported  the $50,000 valuation.          Eisemann testified, based  on his considerable experience  in the          real  estate leasing  field, that  the Number, like  other vanity          numbers, had inherent value for which would-be users were willing          to pay.   In  addition, Eisemann and  Levosky testified  to their          efforts to  close the  deal whereby Levosky  was to  acquire from          Eisemann the right to use the Number at the agreed $50,000 price.          Although  their deal could not be consummated,  it was not due to          their inability to  agree on value:  Levosky  offered $50,000 for          the  Number;  Eisemann  was amenable  to  accepting  $50,000, but          wanted  a  larger  downpayment,  which Play  Time  was  unable to                                          19          manage.                    WorldCom  focuses on an  admission by Eisemann  that he          was motivated, in  part, to release  his rights to the  Number in          order to  get Levosky, who had named him  as a party defendant in          the lawsuit, "out of his hair."  WorldCom relies also on a letter          from Play Time's counsel to Eisemann,  which provided in relevant          part:                     My client, Play-Time, offers to enter into an                    option agreement  whereby Play-Time  pays you                    (or the  entity that controls the  Number, if                    different from you), $5000.00 for the  option                    to purchase the right to use the Number for a                    total  of $50,000.00  (i.e., $45,000.00  plus                    the  $5000.00 down  payment).   In  addition,                                                    __  ________                    Play-Time would waive  its claims against you                    _________ _____ _____  ___ ______ _______ ___                    for  specific  performance, in  exchange  for                    ___  ________  ___________  __  ________  ___                    your full  cooperation in  providing credible                    ____ ____  ___________ __  _________ ________                    testimony  as to the fair market value of the                    _________  __ __ ___ ____ ______ _____ __ ___                    Number, the  details of  which can  be worked                    ______                    out later.          (Emphasis  added.)   WorldCom  argues that  this letter  makes it          clear  that  at least  a portion  of the  $50,000 agreed  upon by          Eisemann  and  Levosky  represented  the  value  of  Play  Time's          agreement to drop its lawsuit against Eisemann.                    Although  WorldCom  proposes   an  entirely  reasonable          interpretation,  another  is  that  the  letter  memorializes two          distinct  offers:  the  first  to  pay a  total  of  $50,000  for          Eisemann's rights  in the Number;  the second to drop  the claims          against Eisemann in exchange for Eisemann's trial testimony as to          the value of the Number.   Thus, the WorldCom contention that the          $50,000 figure had  not been based  entirely on the value  of the          Number  did  not  preclude  a  reasonable  jury  finding  to  the                                          20          contrary.  Accordingly, we conclude  that the evidence on damages          was  adequate  to  withstand  the  WorldCom  motion  for  summary          judgment,  and  that the  district  court committed  no  error in          submitting the case to the jury.13          3.   Mass. Gen. Laws ch. 93A,  11          3.   Mass. Gen. Laws ch. 93A,  11               ____________________________                    Finally,  WorldCom  contends  that  the district  court          erred in awarding Play Time  treble damages under Mass. Gen. Laws          ch.  93A,    11.    Chapter  93A generally  proscribes  "[u]nfair          methods of competition and unfair or deceptive acts or  practices          in the conduct  of any trade or  commerce."  Mass. Gen.  Laws ch.          93A,   2  (1984).    An  unfair  or  deceptive  practice  between          businesspeople is  not actionable  under section  11 unless  "the          actions and  transactions constituting the  alleged unfair method          of competition or the  unfair act or practice occurred  primarily          and substantially within the commonwealth."   Mass. Gen. Laws ch.          93A,   11 (West  Supp. 1996).  WorldCom contends that  any unfair          action in this  case did not occur  "primarily and substantially"          within Massachusetts.                    The  trial court findings  on the "nature,  extent, and          place  of performance"  of WorldCom's  actions  are reviewed  for          clear error  only.  Clinton  Hosp. Ass'n. v. Corson  Group, Inc.,                              _____________________    ___________________          907 F.2d  1260, 1264  (1st Cir. 1990).   On  the other  hand, the                                        ____________________               13Alternatively,  WorldCom   homes  in  on   the  Play  Time          negligence  claim,  arguing that  there  can be  no  recovery for          negligence  unless Play Time sustained injury  to its "person" or          property.   We need  not discuss this  argument, however,  as the          $50,000  damages award  is sustainable  simply on  the  breach of          contract claim.  See, e.g., Hubbard v. Faros Fisheries, Inc., 626                           ___  ____  _______    _____________________          F.2d 196, 201 n.3 (1st Cir. 1980); see also supra pp. 8-9.                                             ___ ____ _____                                          21          district court's ruling that WorldCom  failed to carry its burden          of  proving  that  its   conduct  "primarily  and  substantially"          occurred outside Massachusetts, see Mass. Gen. Laws ch. 93A,  11,                                          ___          raises a question of law for de novo review.  Roche v. Royal Bank                                       __ ____          _____    __________          of Canada, 109  F.3d 820, 829 (1st  Cir. 1997); see also  Clinton          _________                                       ___ ____  _______          Hosp., 907 F.2d at 1264.          _____                    In  determining that WorldCom's actions were unfair and          deceptive, the district  court focused especially on  the conduct          of Joseph Shannon,  which it considered entirely  appropriate but                                                                        ___          for WorldCom's  extant agreement  with Levosky.   The  court also          ___          relied  on the testimony  of Charles Hurd,  Shannon's supervisor,          who  expressed the view  that WorldCom management  had mistreated          Play Time.  Finally, the court identified the off-color remark by          Brady  Buckley, see  supra p.  6, as  "perhaps the  most dramatic                          ___  _____          demonstration of [WorldCom]'s thumb-their-nose attitude."  As the          district  court determined, all these actions took place entirely          within Massachusetts.  The district  court further found that the          investigation  conducted  by Deborah  Surrette  and  Kelle Reeves          amounted  to  mere  "window  dressing,"  thereby   enhancing  the          deceptiveness and unfairness to Play Time.                     WorldCom  mounts no serious challenge to these district          court findings.   Instead, it  argues that most of  the allegedly          unfair and  deceptive conduct  took place  outside Massachusetts.          In  particular,  it accurately  points  out that  the  Number was          assigned to  Eisemann by  a salesperson in  Indiana and  that the          ultimate decision to allow Eisemann to retain the Number was made                                          22          in New Jersey.                    The Supreme  Judicial Court has outlined  a "pragmatic,          functional approach," Roche,  109 F.3d at  829; see also  Makino,                                _____                     ___ ____  _______          U.S.A.,  Inc. v. Metlife  Capital Credit  Corp., 518  N.E.2d 519,          _____________    ______________________________          523-24 (Mass.App.Ct. 1987), further app. rev. denied, 521 N.E. 2d                                      _______ ____ ____ ______          398  (Mass. 1988),  for  determining whether  alleged  misconduct          occurred "primarily  and substantially"  in  Massachusetts.   See                                                                        ___          Bushkin Assocs., Inc. v. Raytheon Co., 473 N.E.2d 662, 672 (Mass.          _____________________    ____________          1985).14  Its  approach has been  distilled into three  principal          inquiries:  "(1) where the defendant committed the deception; (2)          where plaintiff was deceived and  acted on the deception; and (3)          the situs  of plaintiff's losses  due to the deception."   Roche,                                                                     _____          109 F.3d  at 829; see  also Clinton  Hosp., 907 F.2d  at 1265-66;                            ___  ____ ______________          Bushkin, 473 N.E.2d  at 672.   As we noted  in Clinton  Hospital,          _______                                        _________________          however, in approaching  the second Bushkin inquiry  the location                                              _______          of the person  to whom the  deceptive statements  are made is  of                         __ ____          special significance, as  distinguished from the location  of the          person  who  uttered  the  deceptive   statements,  since  "[t]he                  ___  _______          victim's  ingestion of a  deceptive statement and  the subsequent          effects from reliance on it are what give the deceptive statement          its venomous sting."  Clinton Hosp., 907 F.2d at 1265-66.                                _____________                    The  district  court  analyzed only  the  first Bushkin                                                                    _______                                        ____________________               14Although  Bushkin  construed  the  operative  language                               _______          "primarily and substantially"     in  the context  of Mass.  Gen.          Laws ch. 93A,   3(1)(b)(i), as appearing in  St.1967, c. 813, see                                                                        ___          Clinton Hosp., 907 F.2d at 1264, ch. 93A,   11 uses the identical          _____________          language.   See  id.   Accordingly, we  have applied  the Bushkin                      ___  ___                                      _______          factors to    11 as well.   See id.; see also Roche,  109 F.3d at                                      ___ ___  ___ ____ _____          829-31 (referring to "Clinton Hospital factors").                                ________________                                          23          factor,  finding that  the  conduct  on which  it  focused     in          particular, the actions of Joseph Shannon and Brady  Buckley, see                                                                        ___          supra  pp.  4-6     all  took place  in  Massachusetts.   We have          _____          explained,  however, that the  first Bushkin factor  is the least                                               _______          weighty.  Roche, 109 F.3d  at 829; see also Compagnie Reassurance                    _____                    ___ ____ _____________________          d'Ile de France v. New England Reinsurance Corp., 57 F.3d 56,  90          _______________    _____________________________          (1st Cir.), cert.  denied, 116 S. Ct. 564  (1995); Clinton Hosp.,                      _____  ______                          _____________          907 F.2d at 1265-66.  Although we agree  with the district court,          other weightier  factors cut against  WorldCom as well.   All the          unfair or  deceptive statements  made by  WorldCom's agents  were          visited  upon Play  Time in  Massachusetts.   It  was there  that          Levosky dealt with Joseph Shannon; learned that WorldCom's Revere          office would not  try to retain the Number for  Play Time because          Buckley  believed any  potential  revenues were  inconsequential;          learned the  results of Surrette's superficial investigation; and          was provided  with  the numerous  pretexts  by WorldCom  for  not          obtaining the Number for Play Time.                    WorldCom, on the other hand, misplaces primary reliance          on  the location  of the  WorldCom agents  who made  the ultimate          adverse decision  (Surrette and Reeves  in New  Jersey), and  the          WorldCom sales  office (Indiana)  which obtained  the Number  for          Eisemann.  But the district court did not find the actions of the                                                ___          Indiana  sales agent  part  and parcel  of  WorldCom's unfair  or          deceptive  conduct.15   Moreover,  as  we have  noted,  the first                                        ____________________               15Similarly, WorldCom's  Indiana agent  would not have  been          able   to  assign   the  Number   to   Eisemann  had   WorldCom's          Massachusetts  employees followed  through on  the commitment  to                                          24          Bushkin factor  is the least  weighty.  Finally, the  location of          _______          Surrette and  Reeves is  insufficient to  overcome the  competing          evidence which must be weighed under the other Bushkin factors                                                            _______          including  Levosky's receipt of  the results of  the Surrette and          Reeves "investigation" in Massachusetts    all of which indicates          that the unfair and  deceptive behavior took place  primarily and          substantially within  Massachusetts.   Thus,  WorldCom failed  to          carry  its burden of  proving that the Chapter  93A claim was not          actionable.                                          III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    As  we conclude that all contentions raised by WorldCom          on appeal were waived or  meritless, the district court  judgment          is affirmed.  Costs are awarded to Play Time.               ________                    SO ORDERED.                    SO ORDERED.                    __________                                        ____________________          Play Time.   See supra  p. 5  (Indiana agent able  to obtain  the                       ___ _____          Number only  because Revere  agents failed  to enter  Play Time's          order in computer).                                          25
