             United States Court of Appeals
                        For the First Circuit

No. 12-1569

                   THE SAINT CONSULTING GROUP, INC.,

                         Plaintiff, Appellant,

                                  v.

         ENDURANCE AMERICAN SPECIALTY INSURANCE COMPANY, INC.,

                         Defendant, Appellee.


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

          [Hon. George A. O'Toole, Jr., U.S. District Judge]


                                  Before
                           Lynch, Chief Judge,
                         Boudin, Circuit Judge,
                  and McConnell, Jr.,* District Judge.


     Robert D. Cohan with whom Cohan Rasnick Myerson LLP, Jonathan
D. Plaut and Chardon Law Offices were on brief for appellant.
     Michael F. Perlis with whom Richard R. Johnson, Rachael Shook,
Locke Lord LLP, Michael P. Roche and Murphy & Riley, P.C. were on
brief for appellee.



                           November 2, 2012




     *
         Of the District of Rhode Island, sitting by designation.
            BOUDIN, Circuit Judge.            This dispute between The Saint

Consulting    Group,    Inc.   ("Saint")        and   its   liability   insurer

Endurance American Specialty Insurance Company ("Endurance") stems

from Endurance's refusal to defend Saint in a lawsuit against Saint

in   the   Northern    District    of   Illinois,     Rubloff   Dev.    Grp.   v.

SuperValu, Inc., No. 10-cv-03917, 2012 WL 1032784 (N.D. Ill. Mar.

27, 2012) (the "Rubloff Action").              The district court dismissed

Saint's lawsuit against Endurance based on an exclusion in the

policy, and Saint now appeals.

            The Rubloff Action.         According to the complaint in that

action,1 Saint is a consulting company that advises and advocates

for its clients in land use disputes; its work includes gaining

approval for its clients' projects and opposing projects to which

its clients are opposed.          Saint has developed a niche practice:

acting on behalf of rival grocery store chains, it aims to block or

delay Wal-Mart stores from opening in a rival's territory. Calling

its operatives "Wal-Mart killers," Saint has allegedly blocked or

delayed hundreds of Wal-Mart stores by spurring litigation and

regulatory proceedings.




      1
      The alleged "facts" being recited in describing the Rubloff
Action, taken from its complaint, are relevant not because assumed
here to be true but because under insurance law the allegations
determine whether in this case the insurer is responsible to defend
the action. See, e.g., Sterilite Corp. v. Cont'l Cas. Co., 458
N.E.2d 338, 340 (Mass. App. Ct. 1983).

                                        -2-
            The Rubloff Action centers on Saint's alleged efforts to

block two Wal-Mart stores in the Chicago area on behalf of its

client SuperValu, Inc. ("SuperValu"). SuperValu, the third-largest

grocery retailer in the country, owns Jewel-Osco, a chain of

Chicago area grocery stores that competes with Wal-Mart.                   The

Rubloff Action focused on two proposed Wal-Mart stores: one was

planned for a shopping center to be built in Mundelein, Illinois;

the other, planned for a shopping center to be built in New Lenox,

Illinois.    Both are in the vicinity of Chicago.

            In Mundelein, real estate developer Rubloff Development

Group, Inc. and an associated company ("Rubloff Development")

agreed with Mundelein officials to annex land for a shopping

center; in New Lenox, McVickers Development, LLC and associated

entities ("McVickers Development") acquired and later exercised an

option to purchase land for a shopping center. Rubloff Development

and McVickers Development (collectively, the "Rubloff plaintiffs")

each had an agreement with Wal-Mart to sell it a parcel of land in

their    respective   developments    for   a     Wal-Mart   store   and   had

agreements or negotiations with other retailers to open stores

there.

            In or around 2007, SuperValu allegedly hired Saint to

lead a campaign to delay or block these two developments in order

to hinder Wal-Mart from competing with Jewel-Osco in the Chicago

area    grocery   market.    To   carry     out    this   mission,   Saint's


                                     -3-
representative (Leigh Mayo) organized local landowners to oppose

the two new developments; using a pseudonym, he told a false story

of his parents supposedly being evicted from their home to make

room for a Wal-Mart store and retained a lawyer (William Graft) to

represent them, never explaining that both Mayo and Graft were

being paid by Saint, and ultimately by SuperValu. Rubloff, 2012 WL

1032784, at *2.

          In     Mundelein,    Graft      allegedly     initiated   several

administrative    complaints    and    lawsuits   against     the   Rubloff

development starting in 2007; the lawsuits dragged on for years and

were ultimately settled in 2011 for $200,000, but the Mundelein

development still has not been built and (due to the extreme delay)

may never be built.    Rubloff, 2012 WL 1032784, at *2.       With the New

Lenox   development,    obstacles      in   obtaining     various   permits

(allegedly caused by Saint's obstructive activities) delayed the

development by two years, causing significant losses to McVickers

Development.

          After Mayo left Saint's employment, he contacted Rubloff

Development and, in exchange for payment, turned over thousands of

Saint documents detailing Saint's scheme to block the developments.

Rubloff, 2012 WL 1032784, at *2.             In June 2010, the Rubloff

plaintiffs sued Saint and SuperValu in federal district court in

Illinois--the Rubloff Action--where the case was assigned to Judge

Leinenweber.     The initial complaint, as slightly amended a day


                                    -4-
later, focused on the documents Mayo had turned over and which

Saint had demanded back.

              Claiming that the documents were needed for a lawsuit it

intended to bring against Saint and SuperValu, Rubloff Development

sought    a    declaratory   judgment   that    the   documents    were    not

privileged and that it need not return them; made a claim for

negligent spoliation of evidence alleging that Saint and SuperValu

had   destroyed    documents   needed     for   the   lawsuit;    and   sought

injunctive relief to foreclose further destruction of documents.

In September 2010, Judge Leinenweber dismissed most of the claims

but retained the declaratory relief claim against Saint alone.

              The Rubloff plaintiffs then moved in October 2010 for

leave to file a proposed Second Amended Complaint and before acting

upon it, Judge Leinenweber resolved the retained declaratory relief

claim, holding that most of Saint's documents were not privileged.

Thereafter, in July 2011, Judge Leinenweber allowed the Second

Amended Complaint.2 This complaint, in which McVickers Development

joined as co-plaintiff, greatly expanded the suit.               In this new

complaint, Rubloff Development and McVickers Development centrally

charged Saint and SuperValu with the following:




      2
      The original proposed Second Amended Complaint tendered in
October 2010--which is the one Saint tendered to Endurance in
requesting coverage, and is therefore the one relevant to this
appeal--differed in slight, and here irrelevant, ways from the one
Rubloff Development ultimately filed in July 2011.

                                    -5-
            -violations of the Racketeer Influenced and
            Corrupt Organizations Act ("RICO"), 18 U.S.C.
            § 1962(c) (2006), by engaging in a pattern of
            mail or wire fraud, 18 U.S.C. §§ 1341, 1343,
            involving deceptions (the Mayo pseudonym and
            misrepresentations) to hide their involvement
            in   the    opposition   to    the   Wal-Mart
            supermarkets, and conspiracy to violate RICO,
            18 U.S.C. § 1962(d);

            -conspiracy in restraint of trade under the
            Sherman Act, 15 U.S.C. § 1, and the Illinois
            Antitrust Act, 740 Ill. Comp. Stat. 10/1
            (2010), to prevent Wal-Mart from opening
            stores; and

            -tortious   interference   with   prospective
            economic   advantage    by   disrupting   the
            developers' expected business relationships
            with Wal-Mart and other tenants or purchasers
            of space in the shopping centers; common law
            fraud by the aforementioned deceptive means,
            and conspiracy to commit the torts listed
            above.

            Two other claims were part of the case: first, Rubloff

Development alone made a separate claim alleging abuse of process

on the ground that Saint and SuperValu initiated litigation to

delay and impose costs on Rubloff Development related to the

Mundelein    development;     and   second,    the      Rubloff    plaintiffs

reiterated their document-related claims for declaratory relief.

            Finally, on top of the original and the newly proposed

claims made by the plaintiffs, Saint itself filed counterclaims in

the Rubloff Action against Rubloff Development; these claims were

directed to the documents that Mayo had turned over to it, and

included    inducement   of   breach   of   fiduciary    duty,    conversion,

replevin, tortious interference with contractual relations, and

                                    -6-
misappropriation pursuant to the Illinois Trade Secrets Act, 765

Ill. Comp. Stat. 1065/1.

            On March 27, 2012, Judge Leinenweber issued a decision,

dismissing in full all of the Rubloff plaintiffs' claims on a

variety of grounds.       Rubloff, 2012 WL 1032784, at     *1.     The

antitrust, RICO, and tortious interference claims were dismissed as

governed by the Noerr-Pennington doctrine hereafter discussed. See

note 4, below.     The declaratory judgment claim was dismissed as

moot, and the other claims were also dismissed without prejudice to

further    amendment,   id.   at   *10-13.    In   addition,   Saint's

counterclaims relating to the Mayo documents were greatly narrowed.

Id. at *13-17.

            On June 7, 2012, Rubloff Development filed a Third

Amended Complaint reasserting many of the claims with more detailed

allegations of fact, aiming to cure deficiencies identified by the

court.    The litigation remains pending, although the Third Amended

Complaint was filed after the expiration of Saint's policy with

Endurance and does not figure in this lawsuit.

            Saint's Suit Against Endurance.   This history now brings

us to the insurance coverage dispute that arises out of the Rubloff

Action, depends upon its allegations, and is the subject of the

separate litigation now before us on appeal.          In 2008, Saint

obtained from Endurance a liability insurance policy running from

November 1, 2008, through November 1, 2009. This policy, which was


                                   -7-
later renewed for another year, was in force when the original and

First Amended complaints were filed in the Rubloff Action and when

the Second Amended Complaint was initially proposed in October

2010.

            The      policy    is   labeled       as    a    "Premier     Professional

Liability Insurance Policy." It is a type of policy often referred

to as an "errors and omissions" policy or a "malpractice" policy,

which insures firms or individuals against liability from errors

and omissions committed in the performance of their professional

services.      4 Thomas & Abramovsky, New Appleman on Insurance Law §

25.01[1], at 25-6 (library ed. 2012).                   Such insurance is common

among     skilled     professionals        such    as       physicians,     attorneys,

architects, engineers, and accountants.                  Id. § 25.01[2], at 25-9 -

25-10.

            These policies typically cover claims based on performing

or   failing    to    perform   professional           services--claims      that    are

themselves      often    expressly     excluded         from    commercial      general

liability policies.           Med. Records Assocs. v. Am. Empire Surplus

Lines Ins. Co., 142 F.3d 512, 513 & n.1 (1st Cir. 1998).                     However,

Saint's    policy     contains      many    exclusions         that   are   common   in

malpractice policies, such as for bodily injury and property

damage, fraud,        pollution     liability,         securities     claims,    patent

claims, and most pertinently, antitrust claims.                       See 4 Thomas &

Abramovsky, supra, § 25.06[1], at 25-57.


                                           -8-
           Subject to exclusions and a timely demand, the policy in

question   required     Endurance     to    defend        Saint,     and     provide

indemnification   of    liability   found,      as   to    any     claim    for   any

"Wrongful Act" committed within the policy period.                 "Wrongful Act"

was defined as "any actual or alleged act, error or omission

committed or attempted solely in the performance of or failure to

perform    Professional     Services       by   an    Insured."              Saint's

"Professional   Services"    were   listed      as   "[a]dvocacy       consulting

services   including:     analysis,    strategic          planning,        research,

recommendations, recruiting, organizing, support management and

media communication."

           Shortly after the Rubloff plaintiffs brought the Rubloff

Action, Saint forwarded copies of the complaint and First Amended

Complaint to Endurance and requested defense and indemnification;

Endurance refused.      The same sequence occurred after the Rubloff

plaintiffs sought to file the Second Amended Complaint and again

the request was refused by Endurance.            Thereafter, Saint sent a

demand letter under chapter 93A,3 which Endurance again refused,

expressly invoking Exclusion N in the policy.                      That exclusion

provides that the policy does not apply




     3
      Chapter 93A prohibits "[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, and provides
businesses wronged by an unfair trade practice with a cause of
action, id. § 11.

                                    -9-
          to any Claim based upon or arising out of any
          actual or alleged price fixing, restraint of
          trade,    monopolization   or   unfair   trade
          practices    including   actual   or   alleged
          violations of the Sherman Anti-Trust Act, the
          Clayton Act, or any similar provision [of] any
          state, federal or local statutory law or
          common law anywhere in the world.

          On June 6, 2011, Saint filed the complaint in the present

case against Endurance in Massachusetts state court, alleging that

Endurance had breached the contract embodied in the written policy

by refusing to defend Saint in the Rubloff Action; based on the

same conduct, the complaint also charged breach of contract by

estoppel and of the implied covenant of good faith and fair

dealing, negligence, fraud, negligent misrepresentation, and unfair

and deceptive business practices under chapter 93A, § 2. Two other

claims--breach of implied-in-fact contract and unjust enrichment--

were included but were abandoned on appeal.

          Endurance removed the case to federal district court on

diversity grounds, where it was assigned to Judge O'Toole.   Three

days after the Second Amended Complaint of the Rubloff Action was

dismissed in Illinois, Judge O'Toole granted Endurance's motion to

dismiss Saint's lawsuit for failure to state a claim.        Saint

Consulting Grp., Inc. v. Endurance Am. Specialty Ins. Co., 2012 WL

1098429 (D. Mass. Mar. 30, 2012).     He held that the antitrust

claims in the Rubloff Action were expressly excluded by Exclusion

N and that policy coverage was precluded as to the other claims



                               -10-
because they arose out of Saint's alleged restraint of trade.

Id. at *3.

            Saint had asserted theories of recovery against Endurance

that rested on theories other than breach of contract embodied in

the insurance policy.      The district court held that they were

doomed either by the failure of the breach of contract claim or

because Saint had not sufficiently alleged additional facts to make

out a claim.   Saint, 2012 WL 1098429, at *4-6.   The disposition of

these theories we defer for later discussion.         Saint's appeal

followed.

            This appeal.   Although factual assertions in Saint's

complaint are assumed to be true for purposes of evaluating the

grant of the motion to dismiss, Lichoulas v. City of Lowell, 555

F.3d 10, 12 n.1 (1st Cir. 2009), the issues before us are virtually

all legal issues on which our review would in any event be de novo.

In particular, save where extrinsic evidence is relevant, the

comparison of a complaint (allegedly triggering a duty to defend)

with an insurance policy is ordinarily treated as a matter of law.

See Stop & Shop Cos. v. Fed. Ins. Co., 136 F.3d 71, 73 (1st Cir.

1998).

            Judge O'Toole assumed that Massachusetts law governs the

insurance policy--neither side contests this--and Massachusetts

courts in contract cases look to the law of the state with "the

most significant relationship to the transaction and the parties .


                                 -11-
. . ."    Bushkin Assocs., Inc. v. Raytheon Co., 473 N.E.2d 662, 669

(Mass. 1985) (quoting Restatement (Second) of Conflict of Laws §

188(1) (1971)).        Saint is a Massachusetts corporation with a

principal place of business in Massachusetts; Endurance, a Delaware

Corporation, does business in Massachusetts.

            In a coverage case, Massachusetts requires that the

insured show coverage, and then the burden shifts to the insurer to

show that coverage is limited by a separate exception or exclusion.

Highlands Ins. Co. v. Aerovox Inc., 676 N.E.2d 801, 804 (Mass.

1997).    The duty to defend arises if the complaint is "reasonably

susceptible of [an] interpretation" that would fall within the

policy,    and    exclusions   "are   to     be   strictly    construed,"     with

ambiguities resolved against the insurer.              Vappi & Co. v. Aetna

Cas. & Sur. Co., 204 N.E.2d 273, 275-76 (Mass. 1965).

            The    relevant    complaints     here   are     the   First   Amended

Complaint and the proposed Second Amended Complaint, because both

were tendered to Endurance. See Open Software Found., Inc. v. U.S.

Fid. & Guar. Co., 307 F.3d 11, 14 (1st Cir. 2002).                 If even one of

the counts in either of the complaints falls within the coverage

provisions but outside any exclusion, Endurance would have a duty

to defend the entire lawsuit.         Norfolk & Dedham Mut. Fire Ins. Co.

v. Cleary Consultants, Inc., 958 N.E.2d 853, 862 (Mass. App. Ct.

2011).




                                      -12-
          Although Saint's own complaint proffers various theories

of recovery, the place to begin is with its claim that Endurance

violated the contract, represented by the insurance policy, in

failing to defend the Rubloff Action.       Under the policy that duty

could be triggered by either one of the main complaints in that

lawsuit but the charges in the Second Amended Complaint are the

place to start, partly because Saint's own brief aims primarily at

that complaint.

          The underpinning of that complaint is the set of factual

allegations   already   recited   at     length   above--and   thereafter

expressed through various stated theories of recovery in common law

tort, antitrust, and otherwise--that Saint and SuperValu engaged in

a campaign designed to frustrate feared competition from Wal-Mart.

The acts, also recited above, included recruiting local residents

to oppose the two shopping centers (in part through the use of

deception) and, in the event, substantially delaying both and

possibly derailing the construction of one of the two.

          Judge O'Toole assumed that the alleged conduct was within

the professional services coverage of the policy save as it might

be excluded by Exclusion N and then ruled that Exclusion N applied

to all of the counts of the Second Amended Complaint.          Exclusion N

explicitly says that the policy

          shall not apply . . . to any Claim based upon
          or arising out of any . . . actual or alleged
          violations of the Sherman Anti-Trust Act . . .


                                  -13-
            or any similar provision [of] any state . . .
            law . . . .

Thus, the Rubloff Action counts based on the Sherman Act and the

counterpart Illinois statute cannot trigger coverage.

            The far more interesting question is whether Exclusion N

also reaches counts of the Second Amended Complaint that rely upon

the same facts but charge violations of statutes (e.g., RICO) or

common law theories (e.g., fraud, interference with prospective

economic advantage) that are not limited to and do not expressly

identify their target as restraints of trade.       If Exclusion N

applied only where the count set forth an antitrust or similarly

named claim, a count charging a RICO violation or fraud based on

the same facts would not fall within the exclusion and foreclose

coverage.

            However, Exclusion N, in addition to "including" counts

denominated as violations of the Sherman Act and like statutes,

extends by its terms to any claim "based upon or arising out of any

actual or alleged . . . restraint of trade."      And Massachusetts

case law construes "arising out of" as looking at the character of

the behavior alleged in the count and, if it fits the terms of the

exclusion, that exclusion governs even though the statute or tort

is denominated in different or broader terms.        See Bagley v.

Monticello Ins. Co., 720 N.E.2d 813, 817 (Mass. 1999).

            For example, in Fuller v. First Financial Insurance Co.,

858 N.E.2d 288 (Mass. 2006), a property owner carried a liability

                                -14-
insurance policy excluding claims "arising out of assault or

battery," and the court held that the exclusion barred coverage of

a judgment against the property owner for negligence for failing to

protect the victim from being attacked and kidnapped by a third

party while on the property, and eventually raped.           Id. at 289-90.

The court reasoned that even though the claim was for negligence,

the facts alleged showed that the claim arose out of assault and

battery--absent which there would have been no injury due to

negligence.   Id. at 293.

           Fuller cited a "general rule that the phrase 'arising out

of' is to be read broadly" in liability insurance exclusions, 858

N.E.2d at 293 n.9, and it does not stand alone.             Thus, in Bagley,

720 N.E.2d at 816, the court stressed that "[t]he phrase 'arising

out of' must be read expansively, incorporating a greater range of

causation than that encompassed by proximate cause under tort law."

Accord Brazas Sporting Arms, Inc. v. Am. Empire Surplus Lines Ins.

Co., 220 F.3d 1, 7 (1st Cir. 2000).

           It can hardly be disputed that the factual allegations of

the Second Amended Complaint allege a conspiracy to forestall

competition   through   misuse    of   legal     proceedings    and   through

deception.    And every count in the Rubloff Action that is not

itself described as an antitrust claim depends centrally on the

alleged   existence   of   such   a    scheme.      Thus,    judged   by   the

allegations of the complaint,


                                  -15-
                   -the deceptions that form the basis of
            the RICO and common law fraud counts were
            undertaken in order to stop the shopping
            centers and prevent Wal-Mart from competing;

                   -the interference with prospective
            economic advantage counts were for interfering
            with prospective contracts to fill the
            shopping centers, including the contracts with
            Wal-Mart;

                   -the abuse of process count was for
            misusing legal proceedings for the purpose of
            delaying or blocking the shopping centers so
            Wal-Mart could not operate from them; and

                    -the conspiracy   counts  were  for
            agreement between Saint and SuperValu to do
            precisely these allegedly anti-competitive
            things.

            Both the facts stated in the Rubloff complaint and the

connection between them and the counts are merely allegations, but

Exclusion N is triggered where a claim is based upon or arises out

of   any   actual   or    "alleged"   conduct    of    the   anti-competitive

character limned in the exclusion. See Sterilite Corp., 458 N.E.2d

at 340.    And insurance policies covering litigation require the

insurer to take responsibility based not on what actually happened-

-which will be known only at the end of litigation--but what is

charged in the complaint.

            Saint's      brief   scarcely    engages   with    this   line   of

reasoning, which is merely an expansion of the more condensed

rationale offered by the district court.           Instead, bewilderingly,

Saint's argument rests on the propositions that the Illinois

district court ruled that Saint's alleged conduct was protected

                                      -16-
against antitrust scrutiny by the Noerr-Pennington doctrine and,

since it was not wrongful conduct, it could not be excluded from

coverage by Exclusion N.   This is a non-sequitur.

          The Noerr-Pennington doctrine,4 resting on Supreme Court

interpretations of the Sherman Act, reads that statute not to

extend to petitions or other representations aimed at legislators,

even where the motive and effects are to secure legislation to

forestall competition and such efforts use deception and other

improper methods. Although the doctrine was thereafter narrowed in

certain respects, see note 4, above, it helps Saint not at all if

we assume that the doctrine immunizes all of the alleged conduct in

the Second Amended Complaint.

          Exclusion N depends not on whether conduct occurred or,

if so, whether it was unlawful, but on what the complaint alleged.

What was factually alleged in the Second Amended Complaint in no

uncertain terms was an anti-competitive scheme and, where the

pertinent counts arise out of that alleged scheme, Exclusion N

negates coverage.   The exclusion does not depend on whether a




     4
      E. R.R. Presidents Conference v. Noerr Motor Freight, Inc.,
365 U.S. 127 (1961); United Mine Workers v. Pennington, 381 U.S.
657 (1965). Compare Cal. Motor Transp. Co. v. Trucking Unlimited,
404 U.S. 508, 511 (1972) (holding that Noerr-Pennington does not
apply to litigation that is a "mere sham" to stifle competition),
with Prof'l Real Estate Investors, Inc. v. Columbia Pictures
Indus., Inc., 508 U.S. 49, 60 (1993) (holding that the sham
exception only applies to "objectively baseless" litigation).

                                -17-
successful defense can be advanced: it excludes meritless claims

quite as much as ones that may prove successful.

            Saint alternatively argues that if activities protected

by Noerr-Pennington are excluded, the policy coverage becomes

illusory for it because Noerr-Pennington activities comprise such

a large portion of its business.     That the exclusion substantially

reduces coverage does not in any way make the policy illusory under

contract law since it still provides coverage for many potential

claims related to Saint's activities.           Bagley, 720 N.E.2d at 817.

Whether   Endurance   misrepresented      the    coverage   is   a   different

question which brings us to Saint's backup claims.

            These backup counts, which effectively seek to hold

Endurance liable for the coverage excluded by Exclusion N, also

were properly rejected by Judge O'Toole for reasons set forth in

his able decision. Importantly, neither the covenant of good faith

and fair dealing nor chapter 93A can be used to negate an express

provision of a written contract.       Saint, 2012 WL 1098429, at *5.

As for the negligence claim, it is predicated on a breach of a duty

to defend that does not exist in the contract.

            Saint's other backup counts--for estoppel, negligent

misrepresentation, and fraud--all rest on the notion that Saint

sought protection for its core business and its disclosed business

included efforts to halt development opposed by its clients.              But

Exclusion   N   specifically   excludes    certain     actions   and   claims


                                  -18-
whether or not they comprise core activities of Saint.                   The

"purpose of a policy exclusion is to narrow the scope of coverage."

Certain Interested Underwriters at Lloyd's, London v. Stolberg, 680

F.3d 61, 67 (1st Cir. 2012).

           As Judge O'Toole pointed out, the complaint does not

describe any explicit representation by Endurance that the policy

would cover without exclusions all of Saint's core activities,

Saint, 2012 WL 1098429, at *4, let alone indicate any disclosure by

Saint   that   such   activities   included   deception   and   misuse    of

administrative or judicial proceedings.              That Saint may have

expected more protection than it got suggests mainly that it may

not have read carefully the policy it purchased.

           It remains to address the First Amended Complaint. While

the Second Amended Complaint sought relief for the anti-competitive

scheme itself, the First Amended Complaint was concerned entirely

with documents that might be relevant to the substantive claims

that the Rubloff plaintiffs ultimately included in the Second

Amended Complaint. It was filed because after Mayo turned over the

incriminating    Saint   materials    to   Rubloff    Development,   Saint

threatened to sue to obtain their return.

           The First Amended Complaint purported to assert three

different counts:

                  -first, a request for a declaration
           that the materials delivered by Mayo were not
           privileged and need not be returned to Saint


                                   -19-
            (made a case and controversy by Saint's
            threatened lawsuit to secure their return);

                   -second,   a   claim   for   negligent
            spoliation of evidence which, under Illinois
            law, e.g., Boyd v. Travelers Ins. Co., 652
            N.E.2d 267, 270 (Ill. 1995), may allow a
            plaintiff to collect damages where its own
            substantive claim was frustrated by the other
            side's negligent destruction of critical
            evidence;5 and

                   -third, a request for an injunction to
            prevent any further destruction by Saint of
            relevant materials.

            The first and third claims--the declaratory count and the

demand for injunctive relief--effectively aimed at preservation of

evidence in support of the substantive claims that the complaint

stated were to be asserted later.       While siding mostly with the

Rubloff plaintiffs on the request for declaratory relief, Judge

Leinenweber found that a request for injunctive relief standing

alone asserted a remedy but not a cause of action.    Then, he found

the spoliation claim premature since at the time no substantive

counts directed to the alleged scheme had been asserted.    See note

5, above.

            The document claims are not discussed in Judge O'Toole's

decision--it is unclear how far they were pressed by Saint in the

district court as a basis for arguing that Endurance had breached


     5
      Illinois law recognizes negligent spoliation of evidence as
a subcategory of the broader tort of negligence, but to prevail a
plaintiff must show that he would have prevailed in the underlying
lawsuit if he had the destroyed evidence. Borsellino v. Goldman
Sachs Grp., Inc., 477 F.3d 502, 510 (7th Cir. 2007).

                                 -20-
its policy obligations.          In our court almost all of Saint's

arguments for coverage are aimed at the Second Amended Complaint.

But Saint does say almost without explanation that the negligent

spoliation claim in the First Amended Complaint is enough to

require protection; we will assume dubitante that this argument was

preserved since it does not change the outcome.

              Endurance may have scanted its response due to the

terseness of Saint's reference but Endurance appears to think that

the First Amended Complaint is in all events irrelevant because it

was superseded by the Second Amended Complaint. However, the First

Amended Complaint was tendered to Endurance and representation

refused, and it may not help Endurance that the document issues

were thereafter resolved by Judge Leinenweber before the Second

Amended Complaint was even filed.

              Endurance might have argued that the negligent spoliation

count   was    itself   "based   upon   or   arising   out   of"   the   anti-

competitive scheme that was alleged in both amended complaints; but

the relationship between the alleged scheme and the "negligent"

destruction of documents might appear at least more remote than

counts in the Second Amended Complaint, all of which seek under

some heading redress for the harm done by the alleged scheme.

Anyway, under Massachusetts law an antecedent objection to coverage

based on the spoliation count is more straightforward.




                                    -21-
             The coverage of the malpractice policy is for wrongful

acts committed in the performance or failure to perform Saint's

"Professional Services," which are defined by Saint itself as

"[a]dvocacy consulting services including: analysis, strategic

planning,     research,     recommendations,        recruiting,     organizing,

support management and media communication." For example, if Saint

carelessly failed to organize media communication, this negligence

would surely be covered.

             But    in   Massachusetts,       the   "professional     services"

language is read to cover only claims involving the exercise or

failure to exercise professional judgment; and, critically here,

"even tasks performed by a professional are not covered [by a

professional services policy] if they are 'ordinary' activities

'achievable by those lacking the relevant professional training and

expertise.'"        Med. Records Assocs., 142 F.3d at 514 (quoting

Jefferson Ins. Co. of N.Y. v. Nat'l Union Fire Ins. Co. of

Pittsburgh, PA, 677 N.E.2d 225, 230 (Mass. App. Ct. 1997)).

             It is hard to see how the "negligent" discarding of old

files   by   a     consulting   firm   qualifies    as   its   performance   of

"professional       services"    as    that    concept    is   understood    in

Massachusetts law.        Possibly it would be different if the policy

holder were a document storage and disposal firm, which negligently

discarded documents confided to its care.                But that is not the




                                       -22-
business in which Saint declared itself to be engaged, and its

representation defines the scope of its protection.

            Finally, there were references during oral argument to

yet other claims which Saint made by counterclaim against Rubloff

Development   in   the   Illinois   district   court   action,   such   as

conversion and replevin.      Rubloff, 2012 WL 1032784, at *13-17.

Whether or not there might be coverage if these claims were brought

against Saint is of no matter; the policy covers claims against

Saint but not those brought by Saint as a claimant or counter-

claimant.

            Affirmed.




                                    -23-
