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13-P-1236 Appeals Court

SKYHOOK WIRELESS, INC. vs. GOOGLE INC.

No. 13-P-1236.

Suffolk. May 9, 2014. - November 6, 2014.

Present: Kantrowitz, Cohen, & Agnes, JJ.

Contract, Interference with contractual relations, Implied 

covenant of good faith and fair dealing. Unlawful 

Interference. Practice, Civil, Summary judgment, Consumer 

protection case. Malice. Consumer Protection Act, Unfair 

act or practice.

Civil action commenced in the Superior Court Department on 

September 15, 2010. 

The case was heard by Judith Fabricant, J., on a motion for 

summary judgment.

Glenn K. Vanzura, of California (Scott McConchie with him) 

for the plaintiff.

Jonathan M. Albano (Susan Baker Manning, of the District of 

Columbia, with him) for the defendant.

COHEN, J. After mobile electronic device manufacturers 

Motorola, Inc. (Motorola), and Samsung Electronics Co., Ltd. 

(Samsung), withdrew from business deals with software developer 
2

Skyhook Wireless, Inc. (Skyhook), Skyhook filed a complaint 

against the defendant, Google Inc. (Google), alleging 

intentional interference with Skyhook's contract with Motorola, 

intentional interference with Skyhook's advantageous business 

relations with both Motorola and Samsung, and violations of 

G. L. c. 93A.1 A judge of the Superior Court granted Google's 

motion for summary judgment on all counts.2 We affirm.

Background.

3 Consistent with summary judgment standards, 

the facts upon which we rely are either undisputed or taken in 

the light most favorable to Skyhook. See Drakopoulos v. U.S. 

Bank Natl. Assn., 465 Mass. 775, 777 (2013).4

 

1 Google later acquired Motorola, but at all times relevant 

to this case, Google and Motorola were separate, independent 

corporations.

2 The same judge previously had denied Skyhook's motion for 

a preliminary injunction. 

3 The judge's comprehensive thirty-five page decision 

contains an extremely detailed account of the events leading up 

to this dispute and the technological issues that lie at the 

heart of it. For present purposes, we summarize the essential 

facts needed to frame the issues on appeal.

4 Many of the materials before us in this appeal are 

governed by impoundment orders issued by the Superior Court, 

beginning with a "stipulated protective order for litigation and 

involving patents, highly sensitive confidential information 

and/or trade secrets." Because some of the facts recited in 

this opinion are drawn from a volume of the joint record 

appendix labeled by the parties as including impounded material, 

before publication of the opinion we solicited letters from the 

parties (and an interested nonparty) as to whether and why they 

contended that any of those specific facts should be subject to 

continuing impoundment. The letters disavowed any need for 
3

This case arises from the aborted plans of Motorola and 

Samsung, manufacturers of mobile electronic devices (including 

so-called "smart phones"), to license and install Skyhook's 

software product, XPS, to provide location services on their

"Android" mobile devices (described below). Location services 

identify where the mobile device is physically positioned. 

Alone and in conjunction with other software applications, they 

allow the device user to find his or her location, to identify 

the location of nearby facilities, and to receive marketing 

information about commercial establishments in the vicinity. 

Location systems also collect location data from the device and 

return that data to the software provider for inclusion in its 

location database. The data then can be used to improve the 

accuracy of location results, as well as for commercial 

purposes.

Android is a mobile device operating system developed and 

maintained by Google. It is an "open source" operating system, 

meaning that it is publicly available and can be used without 

charge; however, Google owns and controls the use of the Android 

trademark and related trademarks, as well as the use of a group 

 

impoundment of the identified facts, and we vacated the Superior 

Court impoundment orders to the limited extent necessary to 

allow public dissemination of those facts. See Rule 7 of the 

Uniform Rules on Impoundment Procedure (1986); S.J.C. Rule 1:15, 

as appearing in 401 Mass. 1301 (1988); Adams v. Adams, 459 Mass. 

361, 362 n.1 (2011).
4

of proprietary mobile services applications known as Google 

Mobile Services (GMS) Apps. Google requires, by contract, that 

devices marketed under Android trademarks and including GMS Apps 

meet Google's compatibility standards, which are set out in 

detail in the Android Compatibility Definition Document (CDD) 

published by Google.5

In addition to a number of well-known software applications 

(e.g., Gmail, Google Maps, Google Search, and YouTube), GMS Apps 

include an application known as Network Location Provider (NLP), 

which helps to supply Google's location services to mobile 

devices. In part, NLP works in conjunction with two application 

programming interfaces (APIs) that are part of the Android 

operating system:6 the GPS Provider API, which determines a

device's location using the United States government's Global 

Positioning System (GPS) satellites; and the Network Provider

API, which determines location based both on triangulation from 

nearby cellular communications towers (cell towers) and on the 

device's detection of local wireless network access points ("Wi-

 

5 Because a device's Android compatibility gives its user 

access to over 400,000 applications developed by third parties 

(through Google's "Android Market" application), compatibility 

is also vital to device marketability.

6 An API is an interface that enables a software program to 

interact with other software and describes the ways in which 

particular tasks are performed.
5

Fi" networks).7,8 Google's Software Development Kit (SDK), which 

assists third-party developers in creating new applications for 

use on any Android-compatible device, specifically informs 

developers which kinds of data are used by the GPS Provider API 

 

7 "Wi-Fi" may be understood as follows:

"Wi-Fi refers to wireless local area networks, or 

WLANs, which connect users to the Internet by means of 

radio or infrared frequencies. These networks require the 

network operator to install a short-range radio tower, 

referred to as a wireless access point ('WAP'), which sends 

and receives data to and from user devices that are 

equipped with hardware capable of receiving the signal from 

the access point.

". . .

"Wi-Fi networks may be implemented by a variety of 

operators and in a variety of contexts. Private residences 

and businesses deploy wireless networks for use in the home 

or office. Other businesses directly provide wireless 

networks in public areas such as airports, coffee shops, 

hotels, and convention centers. Collectively, these 

networks create 'hotspots' in suburban areas and business 

districts, which provide wireless access to the public. 

Beyond hotspots, several municipalities currently offer or 

have begun to explore plans to provide public Wi-Fi 

access." (Footnotes omitted.)

Bierlein, Policing the Wireless World: Access Liability in the 

Open Wi-Fi Era, 67 Ohio St. L.J. 1123, 1128-1129 (2006).

8 As the judge described the three location technologies, 

"GPS is the most accurate of the three, but can be slow, 

and does not work well in dense, populated areas, or 

indoors. Cellular tower triangulation is less accurate, 

but works well indoors and outdoors. The [W]i-[F]i method 

draws on a manually-compiled database of [W]i-[F]i access

points in populated areas; it transmits data from those 

points to the software maker's location database, and then 

translates the data into latitude and longitude 

coordinates."
6

(satellite) and Network Provider API (cell tower and Wi-Fi) to 

fix location. The SDK is incorporated in the CDD by reference, 

and plays a role in determining whether Google's compatibility 

standards are met.

Like Google's NLP, Skyhook's XPS also determines the 

location of a mobile device by collecting information from GPS 

satellites, cell towers, and Wi-Fi networks. However, XPS 

operates by integrating the location data received from these 

three different sources. Through this approach, XPS achieves

greater speed in reporting a location result. Another 

difference between the Google and Skyhook systems is that, 

unlike Skyhook's XPS, Google's NLP includes "reverse geocoding" 

functionality, which converts longitude and latitude coordinates 

to street addresses and place names.

In supplying location services software to mobile device 

manufacturers, both Google and Skyhook expect and require that 

they will be able to collect location information from the 

mobile devices on which the software is installed. Thus, when 

enabled on an Android device and subject to the user's consent, 

NLP collects "network data" for Google, i.e., information about 

nearby Wi-Fi networks and cell towers. XPS likewise collects 

such information for Skyhook. Both companies consider this 

retrieval of network data, and the accuracy of the data, to be 
7

essential to the location databases they maintain as part of 

their business models.

 In April and June of 2009, respectively, Samsung and 

Motorola entered into contracts with Google allowing them to use 

the Android trademarks and to preload specified GMS Apps, 

including NLP,

9 on their mobile devices. The contracts did not 

specify that Google would be the exclusive provider of location 

services software for the manufacturers' Android devices. 

However, the contracts did require the devices to meet Google's 

Android compatibility standards,

10 and also required the 

manufacturers to "accurately reproduce" the GMS Apps on the 

 

9 Samsung's contract with Google specified NLP by an 

amendment in December, 2009.

10 Samsung's contract with Google stated in part, "The 

license to distribute Google Applications . . . is contingent 

upon the device becoming an Android Compatible Device." The 

term "'Android Compatible Device(s)' means Device(s) that (i): 

comply with the [CDD] . . . and (ii) successfully pass the 

Android Compatibility Test Suite (CTS)." The CTS is a set of 

automated tests developed by Google to determine if a device has 

any known potential incompatibilities. It is undisputed that 

both Motorola's and Samsung's devices containing Skyhook's 

location services passed the CTS.

Motorola's contract with Google in part provided that 

"[t]he license to distribute Google Applications . . . is 

contingent upon Motorola certifying that the Device passes the 

[CTS] and conforms to the [CDD]." We reject Skyhook's 

contention that this provision, requiring Motorola to give its 

certification as to conformity with the CDD, means that Google 

may not withhold its written approval of a device based on its 

own determination of a lack of conformity. See notes 11 & 14, 

infra, and accompanying text.
8

devices. Under the contracts, the ultimate distribution of the 

devices was subject to Google's prior written approval.

11

Thereafter, unbeknownst to Google, both Motorola and 

Samsung entered into contracts with Skyhook. In September, 

2009, Motorola entered into a licensing and distribution 

agreement with Skyhook by which Motorola agreed to preload XPS 

on its Android devices, subject to an exception for devices 

"where Motorola is contractually prohibited by a qualified third 

party." The contract defined "qualified third party" to include 

"a certifying entity which has the right to define and approve 

the technical specifications required to be a[n] Androidcompliant device and which has declared the Embedded Software to 

be non-compliant." The Motorola-Skyhook contract also provided 

that Motorola would not authorize or enable any other party to 

use XPS or Motorola's devices to collect location data. 

Subsequently, in May, 2010, Samsung also entered into a 

 

11 For example, the following provisions appear in 

Motorola's contract with Google: "The pre-loading of a Device 

with Google Applications in each individual Territory shall be 

subject to Google's prior written approval, which shall not be 

unreasonably withheld or delayed"; "The distribution of each of 

. . . the Google Applications shall be subject to Google's prior 

written approval (not to be unreasonably withheld or delayed) to 

ensure adherence to the terms and conditions of this Agreement 

. . ."; "Google must provide terminal acceptance of a Device in 

writing before initial distribution of the Device in each 

individual Territory"; and "For the avoidance of doubt, each new 

Territory, each new Device, and each new Telecom Operator in 

each Territory needs to be approved by Google prior to Launch." 

Samsung's contract with Google includes similar language.
9

licensing agreement with Skyhook, but on a different basis. 

Pursuant to its contract with Skyhook, Samsung agreed to pay a 

guaranteed minimum for the right to install XPS on its Android 

mobile devices. However, Samsung was not obligated to do so.

After the execution of the Motorola-Skyhook contract, there 

was considerable discussion within and between these two 

companies as to whether XPS was Android-compatible. This 

discussion was prompted by the fact that XPS was configured to

report "hybrid" location data -- information derived not only 

from GPS satellites, but from the network data obtained using

cell towers and Wi-Fi networks -- through Google's GPS Provider 

API, which was described in Google's SDK as delivering satellite 

data alone. Both companies pondered whether XPS would violate 

Android compliance by giving the incorrect impression that the 

reported location results came from GPS satellite sources and 

met the high level of accuracy that users and independent 

application developers expected from satellite data.12

 

12 For example, in February, 2010, Motorola employees stated 

that XPS "is absolutely a horrible user experience for 

location," that Motorola "will be in violation of Android 

Compliance if we ship like this and may have stop ship issue on 

our hands," and that "Skyhook is the poster child for making 

changes to the [Android] platform the wrong way." On February 

19, 2010, a Skyhook employee stated in an internal electronic 

mail message (e-mail) that "reporting cell locations as GPS 

locations is just too confusing for an app[lication]." The next 

day, in an internal e-mail discussing various concerns with the 

XPS implementation, a Motorola employee wrote: "Skyhook is 

evaluating the time and effort needed to change XPS to only 
10

Google remained unaware of Motorola's contract with Skyhook 

until April 26, 2010, when, without Motorola's contractually 

required approval, Skyhook released a press briefing entitled

"Motorola to replace Google with Skyhook," and stating in part 

that "Motorola is the first Android device maker to abandon 

Google for its location services." Google employees immediately 

began to discuss this development and its implications, 

including the risk that other device manufacturers would switch 

to Skyhook and Google would suffer a loss in the "ability to 

continue collecting data to maintain and improve [its] location 

database." 

Soon thereafter, on May 7, 2010, representatives of Google 

and Motorola met to discuss Motorola's use of XPS to provide

location services. At this meeting, Google employees raised the 

same hybrid location reporting issue that Motorola and Skyhook 

had been discussing.13 A few weeks later, Google informed 

 

return GPS results if the application makes a direct location 

request to the GPS Location Provider API, and will provide their 

estimate on Monday. In parallel, Motorola needs to determine if 

we feel that the current approach creates a compliance issue or 

whether the current XPS implementation is acceptable since it 

provides a location result using GPS, WiFi, and CellID 

information."

13 Specifically, Google voiced concern that XPS's use of the 

Android operating system's GPS Provider API, rather than the 

Network Provider API, to report location based on Wi-Fi and 

cellular data would reduce the accuracy of the information 

collected by Google and stored in its database about Wi-Fi 

access point and cell tower locations. Google described this 
11

Motorola that, due to this reporting issue, Motorola's 

implementation of XPS would fail to meet Android compatibility 

requirements. Nevertheless, Google emphasized that if Motorola 

could implement Skyhook in a way that resolved the reporting 

issue, then "by all means let's do it."

At the same May 7 meeting, Google identified another issue 

with XPS -- its inability to convert longitude and latitude 

coordinates to street addresses and place names. Motorola could 

not effectively market its devices without this reverse 

geocoding function, and, as the issue developed over the next 

few weeks, it became apparent that Motorola also would need to 

rely on Google's competing product, NLP, in order to provide for 

reverse geocoding. Skyhook acknowledged that Motorola's use of 

NLP was the only available option, but would agree to its use 

only if Motorola altered NLP to block its collection of 

competitive location data for Google.

Motorola and Skyhook began communicating with each other 

about both the hybrid location reporting issue and the data 

collection issue. On May 28, 2010, with these issues still 

unresolved, Google instructed Motorola not to ship its devices 

with XPS. Motorola complied and removed XPS from devices being 

 

reporting problem as "contaminating" Google's location database. 

Google also voiced concern that XPS's misreporting of network 

data as GPS data would adversely affect applications created by 

third-party developers in reliance on the accuracy of location 

data reported through the GPS Provider API.
12

prepared for shipment in July. A few days later, on June 4, 

Skyhook submitted to Motorola revised software that was intended 

to fix the hybrid location reporting issue. Subsequently, 

Google made it clear to Motorola that it was free to include 

XPS, as long as the revised software did not deviate from 

Google's compatibility standards by returning non-satellite data 

through the GPS Provider API. 

The data collection issue remained an active concern, 

however. Google remained steadfast that, under its contract 

with Motorola, Motorola was required to include the applications 

it licensed from Google (including NLP and other applications 

that collected location data) in their entirety -- and without 

neutering their data collection function. Skyhook, for its 

part, insisted that its contract with Motorola gave it the right 

to block Google from collecting location data on Motorola 

devices, and that the data collection function on Google 

applications would have to be disabled. Faced with these 

conflicting demands, Motorola eventually notified Skyhook that 

it was terminating their agreement.

As for Samsung, in March, 2010, and entirely independent of

any input from Google, Samsung began to express concerns to 

Skyhook about the cost of XPS. Several months later, in June, 

2010, Google first discovered that Samsung had contracted with 

Skyhook and that Samsung already had begun shipping some devices 
13

containing XPS. Google informed Samsung of the same hybrid 

location reporting issue it had raised with Motorola, stating 

that it "cannot approve the current implementation as-is." On 

July 10, Samsung notified Skyhook that it was not going to use 

XPS because "Google Locator was good enough in [the United 

States] region and [the] financial burden from Skyhook was 

another reason."

On September 15, 2010, Skyhook filed the present action, 

claiming that Google had, with improper motive or means, 

intentionally interfered with its contract with Motorola and 

with its advantageous business relations with both Motorola and 

Samsung, and that those acts constituted violations of G. L. 

c. 93A. Google moved for summary judgment, and the judge ruled 

in its favor. On the interference claims, the judge reasoned 

that the evidence did not support a finding of improper motive 

or means. On the c. 93A claim, the judge ruled that no 

reasonable jury could conclude that the conduct at issue 

occurred "primarily and substantially in Massachusetts" as 

required by c. 93A, § 11. 

2. Discussion. a. Standard of review. We review the 

grant of summary judgment de novo to determine "whether, viewing 

the evidence in the light most favorable to the nonmoving party, 

. . . the moving party is entitled to a judgment as a matter of 

law." Go-Best Assets Ltd. v. Citizens Bank of Mass., 463 Mass. 
14

50, 54 (2012), quoting from Juliano v. Simpson, 461 Mass. 527, 

529-530 (2012). See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 

1404 (2002); Kourouvacilis v. General Motors Corp., 410 Mass. 

706, 711-712 (1991). While our review is de novo, we have the 

benefit of the motion judge's thorough and thoughtful decision. 

After independently considering the record and the applicable 

law, we reach the same conclusions.

b. Interference claims. To establish a claim of 

intentional interference with contractual relations, the 

plaintiff must prove that: (1) the plaintiff had a contract 

with a third party; (2) the defendant knowingly induced the 

third party to break that contract; (3) the defendant's 

interference, in addition to being intentional, was improper in 

motive or means; and (4) the plaintiff was harmed by the 

defendant's actions. United Truck Leasing Corp. v. Geltman, 406 

Mass. 811, 812-817 (1990). Similarly, to establish a claim for 

interference with advantageous business relations, the plaintiff 

must prove that "(1) [the plaintiff] had an advantageous 

relationship with a third party (e.g., a present or prospective 

contract or employment relationship); (2) the defendant 

knowingly induced a breaking of the relationship; (3) the 

defendant's interference with the relationship, in addition to 

being intentional, was improper in motive or means; and (4) the 

plaintiff was harmed by the defendant's actions." Blackstone v. 
15

Cashman, 448 Mass. 255, 260 (2007). It is undisputed that 

Skyhook has established the first two elements of each claim. 

As to the third element, although Google does not concede that 

its actions constituted interference, we need not confront that 

issue because, like the motion judge, we conclude that Skyhook's 

claims founder because Skyhook cannot demonstrate on this record 

that any interference by Google was improper in either motive or 

means. We therefore need not reach the fourth element, harm to 

Skyhook.

In essence, Skyhook's arguments are as follows. As to 

motive, Skyhook takes the position that a jury should be allowed 

to decide whether Google's concerns about hybrid location 

reporting and data collection were a pretext for its true 

motive, which, according to Skyhook, was to "bully Skyhook out 

of the market." As to means, Skyhook takes the position that 

Google unfairly interpreted its contracts with Motorola and 

Samsung in order to pressure them to abandon their deals with 

Skyhook. Neither point has merit.

i. Google's contractual rights. We begin with a question 

of law -- the interpretation of Google's contracts with Motorola 

and Samsung. Contrary to Skyhook's position, those contracts 

plainly gave Google the right to hold the manufacturers to 
16

requirements pertaining to compatibility and functionality.14 

With respect to the hybrid location reporting issue, the 

compatibility standards to which both manufacturers were bound 

required that, as described in the CDD, "[d]evice 

implementations MUST NOT omit any managed APIs, alter API 

interfaces or signatures, [or] deviate from the documented 

behavior." In addition, the SDK, which was incorporated into 

the compatibility standards, informed third-party software 

developers as to the documented API behavior: that the GPS 

Provider API determined location using GPS satellites, while the 

Network Provider API did so based upon network data. Because 

the manner in which XPS reported hybrid location data through 

 

14 Skyhook does not contend that the preexisting contracts 

between Google and the manufacturers were unlawful. The gist of 

its argument is that only the manufacturers, and not Google, had 

the authority under the contracts to make compatibility 

determinations; however, this contention is at odds with facts 

that Skyhook deemed undisputed below, allegations contained in 

its complaint, the relevant contract language (see notes 10 & 

11, supra, and accompanying text), and the course of dealing 

between Google and the manufacturers. Google, Motorola, and 

Samsung all understood Google to have the authority to make 

compatibility determinations and to provide standards for the 

conditions under which devices containing its proprietary 

applications could be shipped. Furthermore, Skyhook's own 

contract with Motorola contemplated that Motorola would be 

excused from preloading XPS, if doing so was "contractually 

prohibited by a qualified third party," i.e., an entity that 

"has the contractual right over Motorola to substantially define 

the features, functions and overall design" of the devices, or 

"a certifying entity which has the right to define and approve 

the technical specifications required to be a[n] Androidcompliant device and which has declared the Embedded Software to 

be non-compliant."
17

the GPS Provider API was in violation of those standards, Google 

had the contractual right to stop distribution of devices 

containing XPS as it originally was designed.15

With respect to the data collection issue, in order to ship 

their devices with the Android trademark and Google's 

proprietary GMS Apps, the manufacturers were contractually 

obliged to leave the GMS Apps fully functional. When Skyhook 

conditioned Motorola's use of the revised version of XPS on 

Motorola's removal of NLP's data collection function, Google was 

entitled, under its contract with Motorola, to insist upon the 

"accurate reproduction" of Google applications, including NLP.16

ii. Motive. We next consider whether, on this record, it 

reasonably could be found that Google's assertion of its 

contractual rights was but a smokescreen for its desire to shut 

Skyhook out of the Android market. We conclude that no such 

 

15 To the extent Google's right to stop shipment was 

qualified by contract language requiring that its approval not 

be unreasonably withheld or delayed, see note 11, supra, we

conclude that on this record no rational jury could find 

Google's actions or timetable unreasonable.

16 The "Accurate Reproduction" section of the contract 

specifies that Motorola "will accurately reproduce the Google 

Applications . . . and will not insert into the Google 

Applications . . . other code that is specifically designed to 

cause the Google Applications to cease operating, or to . . . 

interfere with any Google Applications or End User data." 

Installing a stripped-down version of NLP would not have been an 

"accurate reproduction" and would have "interfered" with the 

functioning of the application, in violation of this section of 

the agreement.
18

finding would be warranted. The legitimacy of the reporting 

issue is illustrated by the fact that long before Google even 

knew that Motorola was going to use XPS, the same problem had 

been recognized and debated by engineers at both Skyhook and 

Motorola. Furthermore, Google never categorically prohibited 

Motorola's use of XPS. Google informed Motorola that it had no 

objection to Motorola's installation of XPS if it could be 

installed in a compatible way, and, after June 4, 2010, when 

Skyhook submitted revised software, Google never instructed 

Motorola not to use the revised XPS.

Likewise, the legitimacy of the data collection issue 

cannot reasonably be questioned. Skyhook, no less than Google, 

considered the collection of network location data to be 

essential for operational and business reasons. If anything, 

Skyhook's criticism of Google's position on data collection 

seems disingenuous. Unlike Google, Skyhook insisted upon being 

the exclusive recipient of location data. Skyhook also 

attempted to convince Motorola to disable the data reporting 

functions on GMS Apps, despite Motorola's valid concerns about 

its contractual obligations to Google.

Although the record substantiates that, upon learning of 

the Motorola-Skyhook contract, Google was concerned about losing 

customers for its own location services and the ensuing harm to 

its valuable location database, advancing one's own economic 
19

interest, by itself, is not an improper motive. Pembroke 

Country Club, Inc. v. Regency Sav. Bank, F.S.B., 62 Mass. App. 

Ct. 34, 39 (2004), citing Hunneman Real Estate Corp. v. Norwood 

Realty, Inc., 54 Mass. App. Ct. 416, 428-429 (2002). Even if, 

as Skyhook insists, its location services were superior to 

Google's, it was not improper for Google to be motivated, in 

part, by competition. Although Skyhook maintains that 

competitive motivation can be proper only if it will advance 

better products and services in the marketplace, here the only 

parties equipped to decide which product was better for their 

needs at that time and under all relevant circumstances were 

Motorola and Samsung.

iii. Means. "The assertion by a party of its legal rights 

is not 'improper means' for purposes of a tortious interference 

claim." Pembroke Country Club, Inc., supra at 40. See 

Restatement (Second) of Torts § 773 (1979).17 As previously 

 

17 Section 773 of the Restatement deals with one of several 

"special situations" in which application of enumerated factors 

for determining whether interference is improper have produced 

"clearly identifiable decisional patterns" that warrant a more 

specific rule. Restatement (Second) of Torts § 767 comment a

(1979). Section 773 provides that "[o]ne who, by asserting in 

good faith a legally protected interest of his own . . . 

intentionally causes a third person not to perform an existing 

contract . . . does not interfere improperly with the other's 

relation if the actor believes that his interest may otherwise 

be impaired or destroyed by the performance of the contract or 

transaction." Id. § 773. The actor's assertion of contractual 

rights that are in conflict with another's contractual rights is 

within the scope of this section. See id. § 773 illus. 3.
20

discussed, Google had the contractual right to stop shipments of 

Motorola and Samsung devices unless and until the reporting 

issue was resolved. Its exercise of that right did not 

constitute improper means. By the same token, Google had the 

contractual right to insist that its proprietary applications, 

including their location data collecting functions, would remain 

intact. Any economic pressure felt by the manufacturers was 

simply a product of their preexisting contractual arrangements 

with Google and their desire to continue marketing their devices 

under the Android trademarks and with proprietary Google 

applications. There is no evidence that Google used threats, 

misrepresented any facts, or used any other improper means. 

b. Violation of G. L. c. 93A. Under c. 93A, § 11, it is 

Google's burden to demonstrate that "the center of gravity of 

the circumstances that [gave] rise to the claim" were not 

"primarily and substantially within the Commonwealth." Kuwaiti 

Danish Computer Co. v. Digital Equip. Corp., 438 Mass. 459, 470, 

473 (2003). Looking only to the allegedly unscrupulous conduct, 

factors to examine include, but are not be limited to, the place 

of conduct, and the "situs of loss." Id. at 472 n.13, 474-475. 

We agree with the motion judge that Google has established, as 

matter of law, that c. 93A does not apply here.

 
21

At the relevant time, Google's headquarters was in 

California, Motorola's headquarters was in Illinois, and 

Samsung's headquarters was in South Korea. All of Google's 

allegedly unfair or deceptive acts, including its

communications, both physical and electronic, occurred outside 

the Commonwealth. Although Massachusetts would be the situs of 

any royalty revenue lost to Skyhook from the sale to 

Massachusetts consumers of XPS-enabled Motorola and Samsung 

Android devices, that factor alone does not suffice to bring 

this dispute within the ambit of c. 93A, particularly in light 

of the global marketplace for such devices. Compare Yankee 

Candle Co. v. Bridgewater Candle Co., 107 F. Supp. 2d 82, 88 (D.

Mass. 2000) (although plaintiff's headquarters was in 

Massachusetts, § 11 requirement not satisfied because alleged 

deception was "conceived and concocted outside Massachusetts" 

and was directed at plaintiff's customers, who were 

"overwhelmingly . . . persons and entities outside the 

Commonwealth"), aff'd, 259 F.3d 25, 47-48 (1st Cir. 2001). 

On this record, Skyhook's physical location in 

Massachusetts was of minimal import. For this reason, if no 

other, Google was entitled to summary judgment on Skyhook's 

c. 93A claim.

Judgment affirmed.