United States Court of Appeals 

For the First Circuit 

Nos. 18-1088, 

 18-1121 

ACBEL POLYTECH, INC., individually and as 

assignee of EMC CORPORATION, 

Plaintiff-Appellant/Cross-Appellee, 

v. 

FAIRCHILD SEMICONDUCTOR INTERNATIONAL, INC., 

FAIRCHILD SEMICONDUCTOR CORPORATION, 

Defendants-Third Party Plaintiffs-Appellees/Cross-Appellants, 

SYNNEX ELECTRONICS HONG KONG LTD., 

SYNNEX TECHNOLOGY INTERNATIONAL CORP., 

Third Party Defendants. 

APPEALS FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Denise J. Casper, U.S. District Judge] 

Before 

Torruella, Kayatta, and Barron, 

 Circuit Judges. 

Zeb Landsman, with whom Richard Chassin, Jesse Travis Conan, 

and Becker Glynn Muffly Chassin & Hosinski LLP were on brief, for 

appellant/cross-appellee. 

Matthew Iverson, with whom Daniel E. Rosenfeld, Stephen W. 

Hassink, Yasmin Ghassab, DLA Piper LLP, Jeffrey A. Rosenfeld, and 

Alston & Bird LLP were on brief, for defendants-third party 

appellees/cross-appellants. 
June 20, 2019 

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TORRUELLA, Circuit Judge. We often fail to notice the 

complex interplay between the numerous components that make up 

electronic equipment. This is a case about one of these components 

-- a miniscule microcircuit that serves as a voltage regulator, 

the KA7805ERTM ("KA7805"). 

Defendant-Appellee Fairchild Semiconductor 

Corporation's ("Fairchild US") subsidiaries manufactured the 

KA7805. Plaintiff-Appellant AcBel Polytech, Inc. ("AcBel") 

purchased KA7805s from Fairchild's agent and installed them into 

power supply units ("PSUs") it then sold to EMC Corporation 

("EMC"). EMC used the PSUs for its data storage devices. In 2010, 

one of Fairchild US's subsidiaries began to manufacture a new 

"shrunk-die"1 version of the KA7805 ("shrunk-die KA7805"). After 

Fairchild transitioned to the shrunk-die KA7805, EMC began to 

experience problems with AcBel's PSUs. The shrunk-die KA7805s 

were failing. 

AcBel attributed EMC's problems with its PSUs to the 

design of Fairchild's shrunk-die K8705. As a result, it filed a 

diversity suit against Fairchild US and its holding company, 

Fairchild Semiconductor International, Inc. ("Fairchild 

 

1 A die is a miniaturized electronic circuit manufactured in, and 

on, the surface of a thin substrate of semiconducting material 

(e.g., silicone). The components of voltage regulators, like the 

KA7805, are installed on a die. 
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International") (collectively, "Fairchild"), asserting claims of 

breach of warranty (Counts I, II, XII and XIII); fraud and 

negligent misrepresentation (Counts III, IV and V); "design defect 

-- implied warranty/strict liability" (Counts VI and XIV); "design 

defect -- negligence" (Counts VII and XV); "failure to warn -- 

implied warranty/strict liability" (Counts VIII and XVI); "failure 

to warn -- negligence" (Counts IX and XVII); and violation of Mass. 

Gen. Laws ch. 93A (Counts X and XVIII).2 AcBel asserted all claims 

on its own behalf and on behalf of EMC, as its assignee, except 

for its fraud and misrepresentation claims (Counts III, IV, and 

V). 

At the summary judgment stage, the district court 

dismissed all claims except those involving breach of implied 

warranty (Counts I, II, XII, and XIII). After a nine-day bench 

trial, the district court dismissed AcBel's remaining breach of 

implied warranty claims. AcBel appeals from the dismissal of its 

implied warranty of merchantability (Count I), fraud (Counts III 

and IV) and negligent misrepresentation (Count V) claims. 

Fairchild cross-appeals, contending that, even if the district 

 

2 In its complaint, AcBel also presented two claims for punitive 

damages (Counts XI and XIX), but these were dismissed by the 

district court at the early stages of litigation pursuant to a 

motion to dismiss filed by Fairchild and are not subject to the 

present appeal. 
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court's grounds for dismissal were improper, it is still not liable 

to AcBel because the district court erred in determining that 

Fairchild's subsidiaries were its agents for liability purposes. 

Additionally, Fairchild avers in its cross-appeal that, in the 

event of reversal, this court should order discovery regarding 

certain documents produced by AcBel after discovery had closed 

(the "late-produced documents"). 

After careful review, we affirm the district court's 

finding of Fairchild's liability for the actions of its 

subsidiaries, vacate the district court's judgment dismissing 

AcBel's implied warranty of merchantability, fraud, fraud by 

omission, and negligent misrepresentation claims, and remand for 

further proceedings consistent with this opinion. Because it will 

likely help develop the record for trial on the remanded claims, 

we also grant Fairchild's request for additional discovery in 

relation to the late-produced documents. 

I. BACKGROUND 

AcBel is a Taiwanese company that manufactures and sells 

PSUs, including Katina, a second-generation PSU used by its 

customer, EMC, in its data storage devices. The Katina PSU was 

custom-made for EMC and specifically required the KA7805 voltage 

regulator, which was designed to emit a constant output of voltage, 

as one of its approximately 400 components. 
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Fairchild US is a Delaware corporation. Its whollyowned international subsidiaries (the "Asian subsidiaries") 

manufactured, assembled, and distributed the KA7805s. 

Specifically, the KA7805s were manufactured by Fairchild Korea 

Semiconductor Ltd. ("FSC Korea"), assembled by Fairchild 

Semiconductor Shuzhou Company, Ltd. ("FSC Shuzhou"), and 

distributed by Fairchild Semiconductor PTE, Ltd. ("FSC Singapore") 

and Fairchild Semiconductor Hong Kong Ltd. ("FSC Hong Kong"). 

Although the KA7805 voltage regulators were ultimately utilized in 

the Katina PSU, Fairchild did not manufacture them specifically 

for AcBel. 

In 2008, AcBel received a process change notice ("PCN") 

from Synnex,3 a company that had apparent authority to act as 

Fairchild's agent, notifying it that the KA7805 voltage regulator 

would be redesigned. The new version required that some internal 

components be moved to accommodate the smaller die, including a 

part known as the zener diode. In January 2010, FSC Korea began 

to manufacture the new shrunk-die version of the KA7805. At the 

end of the design process, FSC Korea performed industry-standard 

testing on the shrunk-die KA7805, and there were zero failures 

 

3 "Synnex" refers to Synnex Technology International and Synnex 

Electronics Hong Kong Ltd., third-party defendants that are not 

parties to this appeal. Synnex distributed Fairchild's KA7805 

voltage regulators. 
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reported.4 Fairchild did not assign a new part number to the 

redesigned shrunk-die KA7805. 

Despite the shrunk-die KA7805's entry into the market in 

early 2010, its manufacture and shipment was halted sometime in 

July 2010 when FSC Korea reported a quality incident involving a 

product that used the same shrunk die. The root cause of the 

reported quality incident was not immediately known. Fairchild 

US recommended that FSC Korea permanently cease production of the 

shrunk-die version KA7805 and revert to the larger die, which was 

done by week 35 of 2010. No notification of the switch from the 

shrunk-die KA7805 model back to the large-die model was provided 

to AcBel and Fairchild's other customers. 

Meanwhile, AcBel had purchased 195,000 shrunk-die 

KA7805s, all of which ended up in the second-generation Katina 

PSUs it manufactured for EMC. On or about December 3, 2010, while 

FSC Korea was still investigating the quality issue reported in 

July of that year, AcBel received notice from EMC that thousands 

of shrunk-die KA7805s had failed, causing the Katina PSUs in its 

data storage devices to fail as well. Eventually, it was 

 

4 FSC Korea tested the shrunk-die KA7805 in accordance with the 

standards set by the Joint Electron Device Engineering Council 

("JEDEC"), a body that establishes industry-accepted qualification 

standards for testing semiconductor reliability.
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determined that 26,000 PSUs needed to be replaced for EMC 

customers. 

No terms and conditions limiting liability in connection 

with the KA7805 sales were provided to AcBel prior to December 

2010. At AcBel's request, a representative from FSC Hong Kong 

formed a task force to address the shrunk-die KA7805's failure 

issue. On December 22, 2010, Fairchild executed a letter 

guaranteeing AcBel that it would revert to the non-shrunk or largedie design of the KA7805. 

The dispute over the cause of shrunk-die KA7805's 

failures eventually led to the current litigation. AcBel 

attributed the part's failures to the shrunk-die model's design, 

which it claimed made the product defective. During trial, 

Fairchild's expert testified that a certain sequence of events 

must occur to trigger the shrunk-die KA7805's failure: (1) moisture 

penetration; (2) a mechanism for the generation of hydrogen from 

moisture on the die surface; (3) a way for the hydrogen to get 

underneath the silicon nitride at the edge of the die and find its 

way to the zener diode; (4) a trigger for the molecular hydrogen 

to form atomic hydrogen; and (5) that all of these occurrences 

happen at relatively low temperatures. Evidence demonstrated that 

the failure symptoms could only be duplicated by creating extreme 

conditions designed to make devices fail, such as a Highly 
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Accelerated Stress Test ("HAST"), with bias, followed by a Low 

Temperature Operating Life test ("LTOL"). HAST and LTOL testing 

are not part of the JEDEC standards, so standard industry testing 

would not uncover the shrunk-die KA7805's failure systems. 

Additionally, evidence presented at trial suggested that EMC's 

problems with the KA7805s may have resulted from the extreme heat 

produced by AcBel's soldering of the microcircuits to the PSU 

circuit boards. 

AcBel's expert, on the other hand, concluded the KA7805s 

had a defective design, and claimed AcBel's soldering process was 

within industry standards. AcBel's expert believed the new 

placement of the zener diode in the shrunk-die KA7805 made it 

susceptible to moisture exposure, thereby impairing the voltage 

regulator's electrical function. The expert, however, could not 

identify the specific mechanism that caused the KA7805s to fail 

and did not perform independent testing. 

II. DISCUSSION 

A. AcBel's Implied Warranty of Merchantability Claim (Count I) 

The district court held that Fairchild did not breach 

the KA7805's implied warranty of merchantability. It based its 

holding on AcBel's failure to establish that the design defect of 

Fairchild's shrunk-die KA7805 was foreseeable. AcBel contends 

that the district court's analysis was legally flawed, inasmuch as 
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it held that AcBel was required to establish that the design defect 

of Fairchild's shrunk-die KA7805 was foreseeable in order to 

prevail in its implied warranty of merchantability claim. Because 

AcBel challenges a legal determination made by the district court 

during the course of the bench trial, our review is de novo. 

United States v. 15 Bosworth St., 236 F.3d 50, 53 (1st Cir. 2001). 

Under Massachusetts law, with certain exceptions not 

applicable here, "a warranty that the goods shall be merchantable 

is implied in a contract for their sale if the seller is a merchant 

with respect to goods of that kind." Mass. Gen. Laws ch. 106, 

§ 2–314(1) (adopted by Massachusetts from the Uniform Commercial 

Code ("UCC") § 2–314(1)). Thus, manufacturers impliedly warrant 

that their products will be "fit for the ordinary purposes for 

which such goods are used." Back v. Wickes Corp., 378 N.E.2d 964, 

969 (Mass. 1978) (quoting Mass. Gen. Laws ch. 106, § 2–314(2)(C)). 

The cornerstone of the duty of warranty of merchantability "is the 

anticipation of foreseeable uses." Cigna Ins. Co. v. Oy Saunatec, 

Ltd., 241 F.3d 1, 16 (1st Cir. 2001). 

In its complaint, AcBel alleged that Fairchild breached 

the implied warranty of merchantability by selling to AcBel 

defective shrunk-die KA7805s that were unfit for their ordinary 

purpose. As correctly noted by the district court, for AcBel to 

succeed on its breach of the implied warranty of merchantability 
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claim presented on its behalf and on behalf of EMC, it must have 

demonstrated at trial that: (1) Fairchild manufactured or sold the 

shrunk-die KA7805s; (2) a defect or unreasonably dangerous 

condition existed that rendered the shrunk-die KA7805s not 

suitable for the ordinary uses for which voltage regulators were 

sold; (3) AcBel and EMC were using the shrunk-die KA7805s in a 

manner that Fairchild intended or could have reasonably foreseen; 

and (4) the defect or unreasonably dangerous condition was a legal 

cause of AcBel's and EMC's injuries. See Provanzano v. MTD Prods. 

Co., 215 F. Supp. 3d 134, 138 (D. Mass. 2016) (citing Lally v. 

Volkswagen Aktiengesellschaft, 698 N.E.2d 28, 43 (Mass. App. Ct. 

1998)). 

As to the first prong, Fairchild challenges on appeal 

the district court's determination that it is liable for the acts 

of its subsidiaries. Specifically, the district court found that, 

because Fairchild was so intermingled with the conduct of its 

subsidiaries, they were its agents for liability purposes.5 This 

is relevant for our implied warranty of merchantability analysis 

 

5 Given that the district court correctly decided this issue, and 

persuasively explained its reasoning in detailed fashion, see 

AcBel Polytech, Inc. v. Fairchild Semiconductor Int'l, Inc., No. 

CV 13-13046-DJC, 2017 WL 6625036, at *9-10 (D. Mass. Dec. 27, 

2017), we see no reason to write at length to place our seal of 

approval on its decision. See In re Fin. Oversight & Mgmt. Bd. 

for P.R., No. 18-1165, 2019 WL 1349223, at *3 n.6 (1st Cir. 

Mar. 26, 2019). 
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because the shrunk-die KA7805s were manufactured by FSC Korea and 

sold to AcBel by Synnex, which acted as FSC Hong Kong's agent.6 

Thus, if Fairchild is not liable for its subsidiaries' actions, 

AcBel is unable to meet the first element of this implied warranty 

of merchantability inquiry. See Provanzano, 215 F. Supp. 3d at 

138. 

Fairchild accepts the district court's factual findings 

regarding its relationship with its Asian subsidiaries, but on 

appeal makes three strictly legal arguments in support of its 

contention that the district court improperly held it liable for 

its subsidiaries' conduct. 

First, Fairchild sustains that the district court based 

its agency determination on the "pervasive control" theory but did 

not make the requisite finding that Fairchild also used the 

corporate form to engage in improper conduct. Fairchild contends 

that the absence of improper conduct is dispositive because 

"control, even pervasive control, without more, is not a sufficient 

basis for a court to ignore corporate formalities . . . without a 

showing of improper conduct." (quoting Scott v. NG U.S. 1, Inc., 

881 N.E.2d 1125, 1132 (Mass. 2008)). 

Second, Fairchild argues that, even in the absence of 

 

6 Fairchild does not challenge the FSC Hong Kong-Synnex agency 

relationship. 
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improper conduct, the district court's agency determination was 

erroneous because the facts it found do not establish its pervasive 

control over its subsidiaries, as required to create liability. 

And third, Fairchild asserts it would not be liable for 

the Asian subsidiaries' conduct under the apparent manufacturer 

doctrine, as suggested by the district court in dicta, because for 

the doctrine to apply, Fairchild must have "participate[d] 

substantially in the design, manufacture, or distribution of the 

[KA7805s]" and the district court made no finding to such effect. 

(quoting Lou v. Otis Elevator Co., 933 N.E.2d 140, 148 (Mass. App. 

Ct. 2010)). 

We are not persuaded. A simple reading of the district 

court's judgment reveals that its decision was made on the basis 

of an agency theory, not a pervasive control theory, despite its 

citing of cases addressing the piercing of the corporate veil in 

support of its agency conclusion. See AcBel Polytech, 2017 WL 

6625036, at *9-10. The district court cited those cases to 

highlight the level of control FSC had over its subsidiaries. Id. 

Fairchild's level of control over its subsidiaries is not exclusive 

of agency but rather supportive of the district court's finding 

that such relationship exists. Id. (citing RFF Family P'ship, LP 

v. Link Dev., LLC, 907 F. Supp. 2d 155, 161 (D. Mass. 2012) ("An 

agency relationship is created when there is mutual consent, 
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express or implied, that the agent is authorized to act on behalf 

and for the benefit of the principal, subject to the principal's 

control." (emphasis added))). 

Moreover, the intermingling between two entities can 

also provide an independent basis for the conclusion that an agency 

relationship existed. To this point, in My Bread Baking Co. v. 

Cumberland Farms, Inc., the Supreme Judicial Court of 

Massachusetts ("SJC") held that: 

Although common ownership of the stock of two or more 

corporations together with common management, 

standing alone, will not give rise to liability on 

the part of one corporation for the acts of another 

corporation or its employees, additional facts may be 

such as to permit the conclusion that an agency or 

similar relationship exists between the entities. 

Particularly is this true (a) when there is active 

and direct participation by the representatives of 

one corporation, apparently exercising some form of 

pervasive control, in the activities of another and 

there is some fraudulent or injurious consequence of 

the intercorporate relationship, or (b) when there is 

a confused intermingling of activity of two or more 

corporations engaged in a common enterprise with 

substantial disregard of the separate nature of the 

corporate entities . . . . 

233 N.E.2d 748, 751-52 (Mass. 1968) (emphasis added). 

Based on the foregoing and the fact that Fairchild 

accepts the district court's factual findings, which reveal the 

high degree of control Fairchild actually exercised over its 

subsidiaries, we cannot find any error in the district court's 

determination that an agency relationship existed between 
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Fairchild and its Asian subsidiaries. The district court was not 

required to make any additional findings, as Fairchild contends, 

to impose liability. Accordingly, we conclude that AcBel met the 

first element of the implied warranty of merchantability test by 

establishing that, for purposes of liability, Fairchild 

manufactured and sold the shrunk-die KA7805s. 

The second element of the test required AcBel to show 

that the shrunk-die KA7805 had a defect or unreasonably dangerous 

condition7 that made it unsuitable for its ordinary use, while the 

third element required AcBel to show it was, along with EMC, using 

the shrunk-die KA7805s in a manner that Fairchild intended or could 

have reasonably foreseen. Here, things start to get complicated. 

The district court conflated its analysis of these two elements. 

Thus, the specific basis for its conclusion that Fairchild did not 

violate the shrunk-die KA7805's implied warranty of 

merchantability is not completely clear. What is clear, however, 

 

7 In the context of the present case, where no person was 

physically injured, we interpret "dangerous condition" to mean a 

condition that presents a danger of injury to the product itself 

-- the shrunk-die KA7805 -- and thus to its fitness for its 

ordinary purposes. See generally East River Steamship Corp. v. 

Transamerica Delaval, Inc., 476 U.S. 858, 871-72 (1986) 

(explaining, in the context of interpreting UCC § 2-314, that 

"[d]amage to a product itself is most naturally understood as a 

warranty claim"); see also Mass. Gen. Laws ch. 106, § 2-314 

(adopting UCC § 2-314 for purposes of Massachusetts implied 

warranty claims). 
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is that the district court relied on a tort-based design defect 

theory and, in doing so, erroneously added an inapplicable 

"foreseeability by reasonable testing requirement" to AcBel's 

contract-based implied warranty of merchantability claim. 

After recounting the correct four-element test for an 

implied warranty of merchantability claim, the district court 

cited to Town of Westport v. Monsanto Co., a tort case involving 

a dangerous product,8 in support of its conclusion that Fairchild 

did not breach the implied warranty of merchantability. AcBel 

Polytech, 2017 WL 6625036, at *12 (citing Town of Westport, 

No. 14 -cv-12041, 2017 WL 1347671, at *4 (D. Mass. Apr. 7, 2017), 

aff'd, 877 F.3d 58 (1st Cir. 2017)). Specifically, the district 

court held that "[a] manufacturer may only be held liable for a 

defective design if it fails to design against the reasonably 

foreseeable risks attending the product's use in that setting." 

Id. (quoting Town of Westport, 2017 WL 1347671, at *4 (internal 

citations and quotations omitted)). The court explained that 

"[t]he expert testimony and other evidence concerning the design 

and testing of the shrunk-die KA7805 shows that, to the extent 

 

8 Specifically, in Town of Westport, plaintiffs filed suit 

alleging tort liability against the manufacturer of a dangerous 

product, polychlorinated biphenyls ("PCBs") -- chemicals that are 

hazardous above certain concentrations. See Town of Westport v. 

Monsanto Co., 877 F.3d 58, 61-62 (1st Cir. 2017). 
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moving the zener diode was a risk, there was no reasonably 

foreseeable risk in its design" and, furthermore, that "[d]espite 

the shrunk-die KA7805's rate of failure . . . AcBel failed to show 

that any reasonable testing regimen would have revealed any such 

defect." Id.9

The district court also seems to have focused on the 

shrunk-die KA7805's testing for purposes of its analysis of the 

second element of the implied warranty of merchantability test. 

After noting that Fairchild and its subsidiaries tested the shrunkdie KA7805 in accordance with industry standards10 but could only 

recreate its failure by running non-industry standard consecutive 

HAST and LTOL tests, the court held that "even with the benefit of 

expert testimony, AcBel did not show that the shrunk-die [KA7805] 

was defective or had an unreasonably dangerous condition." Id. 

Doubling down on its focus on testing, the district court finalized 

its implied warranty of merchantability analysis relying on 

Vassallo v. Baxter Healthcare Corp., 696 N.E.2d 909 (Mass. 1998), 

 

9 Because these expressions address foreseeability, albeit 

incorrectly, we read them to be related to the district court's 

analysis of the third element of the implied warranty of 

merchantability test, which will be discussed in turn. 

10 As mentioned above, supra n.4, JEDEC establishes industryaccepted standards for assessing reliability in the semiconductor 

component industry. 
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another tort case involving a dangerous product.11 The court 

concluded that "[a]pplying 'the standard of knowledge of an expert 

in the appropriate field,' [Fairchild] 'could not have [] 

discovered by way of reasonable testing' [the shrunk-die KA7805's] 

risk of failure under the[] extreme circumstances" created by 

consecutively running the HAST and LTOL tests. AcBel Polytech, 

2017 WL 6625036, at *12 (quoting Vassallo, 696 N.E.2d at 923) (some 

alterations in the original). 

The link between a reasonable testing regime, which 

generally goes towards foreseeability, see Vassallo, 696 N.E.2d at 

923 (applying the reasonable testing standard in the context of a 

failure to warn or provide instructions about risks context), and 

the district court's conclusion that the KA7805 was not defective 

or had an unreasonably dangerous condition is not totally clear. 

Notwithstanding, because this conclusion was only supported by an 

inapplicable tort-based theory, we need not unravel this mystery 

to conclude that the district court erred. 

By considering foreseeability by reasonable testing for 

its analysis of the second and third elements of the implied 

 

11 In Vassallo, the plaintiff sued the successor of a company that 

manufactured silicone breast implants she had implanted in her, 

claiming that they were negligently designed, accompanied by 

negligent product warnings, and breached the implied warranty of 

merchantability, with the consequence of causing injuries to her 

person. 696 N.E.2d at 912. 
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warranty of merchantability test, the district court improperly 

commingled contract-based and tort-based theories of implied 

warranty. See Rule v. Fort Dodge Animal Health, Inc., 607 F.3d 

250, 252 (1st Cir. 2010) (warning that "[g]eneraliz[ations] about 

warranty law should be [made] with care; there are variations in 

state law, changes over time, modification by statutes like the 

Uniform Commercial Code, [and] a mingling of tort and contract 

concepts"). When economic loss is the only injury that is claimed, 

recovery for breach of an implied warranty should be construed as 

contract-based, not tort-based, under Massachusetts law. Jacobs 

v. Yamaha Motor Corp., U.S.A., 649 N.E.2d 758, 762 (Mass. 1995) 

(recognizing a contract-based warranty claim "to recover against 

a manufacturer or remote seller for breach of warranty causing 

damage other than personal injury"); Bay State-Spray & 

Provincetown S.S., Inc. v. Caterpillar Tractor Co., 533 N.E.2d 

1350, 1352 (Mass. 1989). We have made the same distinction, see 

Wilson v. Hammer Holdings, Inc., 850 F.2d 3, 7-8 (1st Cir. 1988) 

(noting a difference between "products liability actions" and 

"contractually based warranty claims"), and the Supreme Court has 

said as much in the context of an admiralty case, see East River 

Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 871-

75 (1986) ("When a product injures only itself the reasons for 

imposing a tort duty are weak and those for leaving the party to 
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its contractual remedies are strong."); see also 18 Williston on 

Contracts § 52:67 (4th ed.) ("An implied warranty may be breached 

whether or not the seller is aware of a defect in the goods 

. . . ."). 

Because the injury here was to the shrunk-die 

KA7805s -- the product itself -- it sounds in contract, not tort. 

As a result, the reasonableness of the testing of the shrunk-die 

KA7805 was inconsequential. Instead, the district court's 

analysis should have been circumscribed to the foreseeability of 

the shrunk-die KA7805's use. See Mass. Gen. Laws ch. 106, § 2-

314(2)(c) ("Goods to be merchantable must at least be . . . fit 

for the ordinary purposes for which such goods are used . . . ."); 

see also Cigna Ins. Co., 241 F.3d at 16. 

Thus, to conduct the proper contractual implied warranty 

of merchantability inquiry, we must turn to the question of whether 

AcBel's use of the shrunk-die KA7805's was foreseeable. The 

shrunk-die KA7805's functionality was contingent on it being 

soldered into a circuit board, as AcBel did to install the KA7805s 

onto its PSUs. The act of soldering the KA7805 into a circuit 

implicates exposure to high heat. Furthermore, the tests employed 

by Fairchild to verify the KA7805's reliability in accordance with 

the industry standard and later to determine its failure mechanism 
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all involved exposure to high heat.12 Finally, testimony at trial 

revealed that Fairchild was aware of the multiple uses given to 

the shrunk-die KA7805. Fairchild US's vice-president, Eric Hertz, 

described the KA7805 as a "jelly bean product" -- "a product that 

. . . is sold to a lot of different customers[] [for] a lot of 

different applications." Taking these facts into account, we 

cannot conclude that AcBel was unable to meet the implied warranty 

of merchantability test's burden of establishing that its use of 

the shrunk-die KA7805 was foreseeable. 

Our inquiry, however, does not end here. Even assuming 

that its use of the shrunk-die KA7805s was foreseeable, AcBel was 

still required to meet the fourth and last element of the implied 

warranty of merchantability test: establishing that a defect or 

unreasonably dangerous condition of the shrunk-die KA7805 

constituted the legal cause of the injuries sustained by itself 

and EMC. See Provanzano, 215 F. Supp. 3d at 138. The district 

court found that the root cause of the failures experienced by EMC 

with the shrunk-die KA7805 was the sequence of events recreated by 

running the HAST, with bias, followed by a LTOL, but that is of 

little help to establish legal or proximate causation.13 See 

 

12 These tests exposed the shrunk-die KA7805 to temperatures as 

high as 150 degrees Celsius. For context, water's boiling point 

is 100 degrees Celsius. 

13 The terms "legal cause" and "proximate cause" are 
-22- 

Restatement (Second) of Torts § 9 cmt. a (Am. Law. Ins. 1965) 

(establishing that legal causation traces liability to a person). 

Legal cause must be sufficient to result in liability. Restatement 

(Second) of Torts § 9 (Am. Law. Ins. 1965). Be it the result of 

an act or omission, legal causation leads to a consequence for 

which liability may be imposed on a party. Id. 

Given its finding on foreseeability, the district court 

had no need to reach a finding on legal causation. The evidence 

on this issue was conflicting. As the district court observed, 

the problems EMC experienced with the shrunk-die KA7805s may have 

originated when AcBel soldered them to its PSU circuit boards14 and 

other users reported a rate of 0.012%, while AcBel reported a 

failure rate of 7.5% for the same relevant time period (third and 

fourth quarters of 2010).15 In conflict with these observations, 

 

interchangeable. See CSX Transp., Inc. v. McBride, 564 U.S. 685, 

701 (2011); Cause, Black's Law Dictionary (10th ed. 2014). 

14 Specifically, the district court found that "the problem with 

the shrunk-die KA7805 may have resulted from delamination caused 

by extreme heat during AcBel's wave soldering process." AcBel 

Polytech, 2017 WL 6625036, at *8. In further support of this 

conclusion, it noted that "[d]elamination was not present when the 

KA7805s were originally shipped [by Fairchild]. It occurred when 

the KA7805s were in the care of AcBel." Id. 

15 Furthermore, our own review of the record reveals that AcBel's 

internal documents reflect that 80% of its employees, including 

engineers, failed their soldering skill performance examinations 

in 2008. This, considered in tandem with EMC's heightened failure 

rates in comparison with other sources, raises serious questions 

as to whether AcBel's soldering practices caused the KA7805 
-23- 

the court also noted -- without making any statements as to 

credibility -- that AcBel's expert testified that AcBel's 

soldering process was within industry standards. 

The inconclusive nature of the district court's findings 

coupled with the absence of a causation analysis -- considered in 

conjunction with its application of an erred foreseeability 

analysis -- counsels us against making a final determination as to 

whether Fairchild actually breached the shrunk-die KA7805's 

warranty of merchantability. With the benefit of the guidance set 

out above as to the proper inquiry to be performed in adjudicating 

a contract-based implied warranty of merchantability claim, we 

believe the district court is in an improved position to evaluate 

the parties' arguments and evidence in this all but simple case. 

Accordingly, we vacate the district court's dismissal of AcBel's 

implied warranty of merchantability claim and remand for trial 

where the district court shall determine: whether the shrunk-die 

KA7805 had a defect or unreasonably dangerous condition that 

rendered it not suitable for the ordinary use for which it was 

sold; whether AcBel and EMC were using the shrunk-die KA7805 in a 

manner that Fairchild intended or could have reasonably foreseen; 

and whether a defect or unreasonably defective condition of the 

 

failures. 
-24- 

shrunk-die KA 7805 constituted the legal cause of AcBel's and EMC's 

injury.16

B. AcBel's Fraud and Misrepresentation Claims (Counts III, IV, 

and V) 

AcBel also challenges the district court's entry of 

summary judgment dismissing its fraud (Count III), fraud by 

omission (Count IV), and negligent misrepresentation (Count V) 

claims. Our review is de novo. See Scholz v. Goudreau, 901 F.3d 

37, 44 (1st Cir. 2018). "In so reviewing, we must 'tak[e] the 

facts and all reasonable inferences therefrom in the light most 

favorable to [the non-moving party]," in this case AcBel. Id. 

(quoting Aponte-Rosario v. Acevedo-Vilá, 617 F.3d 1, 6 (1st Cir. 

2010)). We will affirm a district court's grant of summary 

judgment only "when there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of law." 

Rivera-Rivera v. Medina & Medina, Inc., 898 F.3d 77, 87 (1st Cir. 

2018) (citation and internal quotation marks omitted). 

The core of AcBel's fraud and negligent 

misrepresentation claims rests on the following factual 

allegation: despite being required by industry custom, Fairchild 

 

16 We assume, without concluding, that as part of trial proceedings 

the district court will also have to evaluate the misuse, 

unreasonable use, and unforeseeable use defenses raised by 

Fairchild. See generally Cigna Ins. Co., 241 F.3d at 14-19; Allen 

v. Chance Mfg. Co., 494 N.E.2d 1324 (Mass. 1986). 
-25- 

did not notify AcBel that it abandoned the shrunk-die KA7805 and 

reverted back to the large-die model in week 35 of 2010, either 

through a change in part number or issuance of a PCN. The district 

court based its dismissal of all three of AcBel's fraud and 

misrepresentation claims primarily on its conclusion that AcBel's 

reliance on Fairchild's failure to change the KA7805's part number 

when the part was switched from the large-die to the shrunk-die 

model was, as a matter of law, unreasonable. We disagree and 

therefore vacate the district court's dismissal of AcBel's fraud 

and misrepresentation claims and remand for adjudication of these 

claims at trial. For clarity, we discuss each of AcBel's fraud 

and misrepresentation claims in turn. 

Under Massachusetts law, to recover on fraudulent 

misrepresentation claims, a plaintiff must establish that 

defendants: (1) " made a false representation of material fact"; 

(2) "with knowledge of its falsity"; (3) "for the purpose of 

inducing the plaintiff[] to act on this representation"; (4) "that 

the plaintiff[] reasonably relied on the representation as true"; 

and (5) "that [the plaintiff] acted upon it to their damage." 

Cumis Ins. Soc'y, Inc. v. BJ's Wholesale Club, Inc., 918 N.E.2d 

36, 47 (Mass. 2009) (emphasis added); see also Rodi v. S. New 

England Sch. of Law, 532 F.3d 11, 15 (1st Cir. 2008) (pursuant to 

Massachusetts law, reliance upon the alleged misstatement must be 
-26- 

"reasonable under the circumstances"). 

The standard for a fraudulent omission claim retains the 

above-cited elements but the "false representation" element takes 

the form of an omission. See Sahin v. Sahin, 758 N.E.2d 132, 138 

n.9 (Mass. 2001). Additionally, to establish a fraud by omission 

claim, a plaintiff must establish defendants' "concealment of 

material information" and "duty requiring disclosure." Id. 

The standard for a negligent misrepresentation claim, 

however, differs to a larger extent. "Unlike fraud, negligent 

misrepresentation does not require an intent to deceive or actual 

knowledge that a statement is false." Cumis Ins. Soc'y, 918 N.E.2d 

at 47. To succeed on a negligent misrepresentation claim, a 

plaintiff must establish that: 

[T]he defendants, "in the course of [their] business, 

profession or employment, or in any other transaction 

in which [they had] a pecuniary interest, suppli[ed] 

false information for the guidance of others in their 

business transactions" without exercising "reasonable 

care or competence in obtaining or communicating the 

information," that those others justifiably relied on 

the information, and that they suffered pecuniary loss 

caused by their justifiable reliance upon the 

information. 

Id. at 47-48 (citation omitted) (some alterations in original) 

(emphasis added). 

As may be noted, and most importantly for purposes of 

our current analysis, all three of AcBel's fraud and 

misrepresentation claims have a reliance requirement. 
-27- 

The district court addressed two elements of AcBel's 

fraud claims: Fairchild's alleged false representation and 

omission, and AcBel's reasonable reliance on the alleged 

misrepresentation and omission. Its decision to grant summary 

judgment in favor of Fairchild, however, rested exclusively on the 

latter.17

As to the first switch from the large-die to shrunk-die 

model, the district court found that Fairchild did not make a 

misrepresentation by failing to change the KA7805's part number 

because, in 2008, it provided AcBel "adequate notice of the design 

change" through the delivery of a PCN.18 The PCN described the 

changes that were going to be made to the KA7805 and stated that 

the first shipment of shrunk-die model was expected to take place 

in approximately three months. As to the switch back to the largedie model in week 35 of 2010, the district court concluded that, 

 

17 A finding of a misrepresentation hinges on whether Fairchild 

had an obligation to change the KA7805's part number when it 

switched the microcircuit from the large-die to the shrunk-die 

model. Because the parties dispute the requirement of a change in 

part number, this raises an issue of material fact. Specifically, 

AcBel contends that industry custom and standards required 

Fairchild to add a suffix to the part number, while Fairchild 

sustains that no change was required. Notwithstanding, for 

purposes of its summary judgment disposition, the district court 

assumed the change was required and rested its conclusion on the 

supposed unreasonableness of AcBel's reliance on the KA7805's part 

number. 

18 The PCN was delivered to AcBel by Fairchild's agent, Synnex. 
-28- 

inasmuch as "the [KA7805s] were returned to their original 

design[,] . . . labeling them with the original part number was 

not a false statement even under AcBel's representation of the 

industry custom." Accordingly, it held that Fairchild's "failure 

to change the part number when 'the second change' was made [did] 

not amount to a misrepresentation." 

Whether Fairchild's continued use of the same part 

number for the shrunk-die KA7805 constituted a misrepresentation 

is contingent on whether industry norm required a change -- an 

issue of material fact. On review, we must presume as much. See 

Scholz, 901 F.3d at 44. Assuming that the change was required, as 

we must, the district court's position in granting summary judgment 

that Fairchild's failure to change the KA7805's part number was 

somehow cured as a matter of law by the PCN in 2008, and then by 

the reassignment of the unchanged part number back to the largedie version in 2010, is unavailing. While it is true that Fairchild 

sent a PCN informing AcBel that a switch to a new shrunk-die model 

was going to take place, nowhere in the PCN does Fairchild affirm 

or deny that a new part number was going to be assigned. Under 

these circumstances was it not safe for AcBel to assume, at some 

point, that the shrunk-die model retained the large-die model's 

part number, despite this being contrary to the usual practice 

under industry custom? In such case, would changing the KA7805 
-29- 

back to a large-die design without informing such change not 

constitute a misrepresentation given that its original part number 

now constituted the shrunk-die's part number? We view these 

questions as too dependent on the idiosyncrasies of industry norms 

to be addressed with the record available to the district court at 

summary judgment. 

Furthermore, the extent to which the PCN could have cured 

Fairchild's failure to change the part number when switching to 

the shrunk-die model is in itself an issue of material fact better 

left for trial. Likewise, whether Fairchild was required to issue 

a PCN in 2010 when switching back to the large-die model in 2010, 

as AcBel alleges was required by industry norm, is also an issue 

of material fact better left for trial. 

That the KA7805's part number, after week 35 of 2010, 

once again coincided with the large-die model to which it was 

originally assigned does not preclude the existence of an 

affirmative misrepresentation. The thrust of AcBel's affirmative 

misrepresentation claim lies in that, by keeping the same part 

number for both the large-die and shrunk-die models, Fairchild 

misrepresented that the part had not undergone a material change. 

The factfinder could certainly find that a highly unusual switch 

back to the large-die model, which would have put AcBel on notice 

regarding issues with the shrunk-die model, is a material change. 
-30- 

In any case, we now turn to what we read as the district 

court's primary basis for dismissing AcBel's fraud and 

misrepresentation claims, regardless of whether Fairchild's 

failure to change the part number constituted a misrepresentation 

-- AcBel's allegedly unreasonable reliance on the unchanged part 

number. 

In regard to AcBel's reliance on the unchanged part 

number, the district court held that, even assuming that the 

unchanged part number constituted a misrepresentation, AcBel's 

reliance upon it was unreasonable as a matter of law because the 

PCN placed AcBel on notice that the KA7805 was being switched to 

the shrunk-die model. For the district court, the PCN and the 

unchanged part number (to the extent that it represented that the 

KA7805 had not been altered) constituted "conflicting statements" 

that "engender[ed] doubt" and thus rendered AcBel's reliance on 

the part number unreasonable as a matter of law. Along the same 

vein, the court considered that AcBel's reliance was unreasonable 

because, at the very least, these "conflicting statements" 

triggered AcBel's duty to inquire as to whether "the information 

in the PCN was nullified by the allegedly unchanged part number," 

which the record reflects AcBel did not do. AcBel Polytech, Inc. 

v. Fairchild Semiconductor Int'l, Inc., No. CV 13-13046-DJC, 2016 

WL 7197368, at *12 (D. Mass. Dec. 9, 2016). 
-31- 

In order to establish a claim for fraud, reliance upon 

the alleged misstatement must be "reasonable under the 

circumstances." Rodi, 532 F.3d at 15. While "[a] party may 

justifiably rely on a misrepresentation even if he could have 

ascertained its falsity by conducting an investigation," 

misrepresentations that could be discovered by a "cursory glance," 

and are known to be false or obviously false, may not be relied 

upon. Sanford Inst. for Sav. v. Gallo, 156 F.3d 71, 74-75 (1st 

Cir. 1998).19 As the SJC has explained, a plaintiff may not rely 

"on a representation that [is] either preposterous or palpably 

false." Yorke v. Taylor, 124 N.E.2d 912, 916 (Mass. 1955); see 

also Damon v. Sun Co., Inc., 87 F.3d 1467, 1480 (1st Cir. 1996) 

("Only reliance on 'preposterous or palpably false' 

representations vitiates a misrepresentation claim." (citation 

omitted)). "[I]f a mere cursory glance would have disclosed the 

falsity of the representation, its falsity is regarded as obvious 

. . . ." Kuwaiti Danish Comput. Co. v. Dig. Equip. Corp., 781 

N.E.2d 787, 795 (Mass. 2003). Accordingly, if the plaintiff could 

 

19 Although Sanford is a bankruptcy case, the cited expressions 

regarding reasonable reliance are guided by the same common law 

concepts adopted by Massachusetts law. Compare Sanford, 156 F.3d 

at 74-76 (citing Restatement (Second) of Torts §§ 540, 541 cmt. a 

(1976)) with Kuwaiti Danish Comput. Co. v. Dig. Equip. Corp., 781 

N.E.2d 787, 795 (Mass. 2003) (citing Restatement (Second) of Torts 

§§ 540, 541). 
-32- 

have discovered the falsity of the defendant's representation, but 

failed to do so, plaintiff's reliance is reasonable unless there 

were "any warning signs . . . either in the documents, in the 

nature of [a] transaction, or in [defendant's] conduct or 

statements." Sanford, 156 F.3d at 75 (quoting Restatement (Second) 

of Torts § 540, cmt. a (1977)); see also Kenda Corp., Inc. v. Pot 

O'Gold Money Leagues, Inc., 329 F.3d 216, 227 (1st Cir. 2003) 

("Certainly where a defendant has willfully made false 

representations with intent to deceive he ought not to be relieved 

of liability because of his victim's lack of diligence." (quoting 

Yorke, 124 N.E.2d at 916)). 

Clearly conflicting statements, however, "should [place] 

petitioner on notice that he should not rely on either statement. 

Confronted by such a conflict a reasonable person investigates 

matters further; he receives assurances or clarification before 

relying." Trifiro v. N.Y. Life Ins. Co., 845 F.2d 30, 33 (1st 

Cir. 1988). "Explicit conflict engenders doubt, and to rely on a 

statement the veracity of which one should doubt is unreasonable." 

Id. at 34 (emphasis added). 

The conflicting information that the district court 

found triggered AcBel's duty to inquire -- or otherwise make its 

reliance on either piece of information unreasonable -- was the 

content of the Fairchild's 2008 PCN and the unchanged part number 
-33- 

in the KA7805's label. The PCN represented that the KA7805 was 

undergoing a design change. The unchanged part number, on the 

other hand, could be perceived to represent that no change was 

made to the KA7805's design following the delivery of the PCN. In 

light of the fact that the PCN did not provide a specific date for 

the shipment of shrunk-die KA7805s, we cannot agree that there was 

no issue of material fact regarding the existence of a conflict 

between the representations, much less as to the existence of an 

"[e]xplicit conflict" that "engender[ed] doubt" and thus triggered 

AcBel's duty to inquire. Id. Given the uncertainty as to shipment 

date reflected in the PCN, and the lack of temporal proximity 

between the delivery of the PCN and the actual commencement of 

shipment of shrunk-die KA7805s to AcBel -- approximately one year 

and nine months later -- we conclude that the issues of AcBel's 

reasonable reliance (in general) and the existence of a conflict 

in information that triggered AcBel's duty to inquire (more 

specifically) would be more properly addressed at trial.20 See 

Marram v. Kobrick Offshore Fund, Ltd., 809 N.E.2d 1017, 1031 (Mass. 

 

20 The district court did not address AcBel's reliance on the 

unchanged part number in relation to Fairchild's switch back to 

the large-die model in week 35 of 2010, but rather only as to the 

first switch to the shrunk-die in week 1 of 2010. Fairchild's 

failure to differentiate between the two models based on part 

number permitted it to revert to the large-die model without 

explicitly revealing that this change had been made. 
-34- 

2004). 

By the same token, we cannot agree that AcBel's reliance 

on the unchanged part number was unreasonable as a matter of law. 

A court's reasonable reliance analysis is based on the 

circumstances of the alleged reliance on a representation. Rodi, 

532 F.3d at 15. The circumstances in the present case are clearly 

distinguishable from those presented in the cases cited by 

Fairchild, as well as other we have located, where the First 

Circuit or Massachusetts courts have found a plaintiff's reliance 

unreasonable due to the existence of conflicting information. 

For example, in Trifiro, cited approvingly by the 

district court, the plaintiff claimed that he reasonably relied on 

a statement made by defendant's officer as to the formation of a 

contract which was directly contradicted by a letter sent by 

defendant shortly thereafter. 845 F.2d at 33. Specifically, 

during an initial conversation, defendant's officer expressed to 

plaintiff's agent that, despite his employer having a committee 

approval requirement, the transaction proposed by plaintiff "would 

be a small deal for [defendant] and . . . committee approval would 

be a mere formality." Id. Notwithstanding, a mere two days to a 

week later, the defendant sent the plaintiff a letter explicitly 

stating that "approval of any proposal would be at the sole 

discretion of the appropriate committee or authority" and, 
-35- 

furthermore, requesting that plaintiff "acknowledge [his] 

understanding of . . . [the requirement of committee approval] by 

signing and dating the enclosed copy of th[e] letter." Id. (some 

alterations in the original). Plaintiff signed the letter but, 

nonetheless, later asked this court to "hold that he acted 

reasonably in relying on the earlier oral statement made to [his 

agent] that committee approval would be a mere formality." Id. 

We rejected the plaintiff's request holding that "[w]hen a person 

acts in a way contrary to his own acknowledged understanding of 

the facts, his acts must be deemed unreasonable as a matter of 

law," and, furthermore, that the circumstances rendered the 

plaintiff's reliance unreasonable because he was the recipient of 

explicitly conflicting information -- one statement that approval 

of his proposal was certain versus a second representing that it 

was uncertain. Id. 

These cases are very fact-dependent. Nevertheless, the 

circumstances in the present case lead us to conclude that the 

question of whether AcBel's reliance on the unchanged part number 

was reasonable is an issue of fact. First, while it is true that 

AcBel admitted it received the PCN informing that Fairchild would 

switch to a small-die model, nowhere in the PCN did Fairchild state 

that the part number would not be changed in contravention to 

industry norm. Second, the discrepancy between the PCN and 
-36- 

unchanged part number was not as explicit as, perhaps, conflicting 

statements such as being told "yes" and later "no." The statements 

here are more similar, at best, to a "yes" followed by "maybe no." 

That is, an unchanged part number does not provide the same level 

of certainty regarding contradiction as does an affirmative 

statement to the opposite. See id. 33-34. Third, the temporal 

proximity between the conflicting statements in Trifiro was 

significantly short, a week at most, while the supposed conflict 

between the PCN, representing that the KA7805 was to be redesigned, 

and the shrunk-die KA7805's labelling (i.e., with the same part 

number as the large-die model), representing that the part had not 

undergone a change, came into effect approximately one year and 

nine months later. With this amount of time before the KA7805's 

labelling could possibly constitute a false statement, a 

factfinder might find it hard to understand how its falsity could 

be obvious to AcBel. See Restatement (Second) of Torts § 541 

(1977) ("The recipient of a fraudulent misrepresentation is not 

justified in relying upon its truth if he knows that it is false 

or its falsity is obvious to him."). 

Similarly, in Kuwaiti Danish Computer Co., the plaintiff 

alleged that a contract had been formed based on his reliance on 

the conduct and statements made by one of the defendant's employees 

at the end of negotiations. 781 N.E.2d at 795. The SJC held that 
-37- 

plaintiff's reliance was unreasonable as a matter of law because 

"any statement or conduct" of defendant's employee "conflicted 

with the qualifying language of [his] quotation, which stated that 

it was only an invitation to offer, and that any contract required 

approval from someone with authority at [the defendant company]." 

Id. In reaching this conclusion, the SJC stressed that "[t]he 

qualifying language was presented essentially contemporaneously 

with [the defendant's employee's] statements." Id. 

Again, the distinctions between these circumstances and 

those presented in the case at hand are clear. The conflict 

between the defendant employee's statement and the information in 

the quotation he provided was unequivocal. As the SJC noted, 

"[a]ll that was required of [plaintiff's representatives] was that 

they read the document to ascertain the obvious."21 Id. As noted 

 

21 Fairchild cites to this passage in support of its contention 

that AcBel's reliance on the KA7805's unchanged part number was 

unreasonable, despite the noted difference between the 

circumstances faced by the plaintiff in Kuwaiti Danish Computer 

Co. from those faced by AcBel. As mentioned above, the 

circumstances were also significantly different in the other cases 

cited by Fairchild. See, e.g., Rodi, 532 F.3d at 17 (information 

that conflicted with statement on which plaintiff relied regarding 

defendant law school's accreditation was contemporaneously 

available in the school's catalogue); Liberty Leather Corp. v. 

Callum, 653 F.2d 694, 696-99 (1st Cir. 1981) (reliance by plaintiff 

on representations by defendant regarding imminence of completion 

of sale of stock to him was unreasonable given that: (1) three to 

four days after representations were made, defendant called the 

plaintiff to request an increased offer for the stock; and, within 

a maximum of seventeen days after defendant's representations, 

plaintiff came to knowledge of shareholder's unanimous vote to 
-38- 

above, the supposed conflicting statements in the present case 

were not obviously contradictory nor presented within a short 

period of time, much less contemporaneously. 

Based on the foregoing analysis, we conclude that the 

district court erred in dismissing AcBel's fraudulent 

misrepresentation claim summarily. Because the district court's 

basis for dismissal of AcBel's fraudulent omission and negligent 

misrepresentation 22 also rested on its erroneous holding that 

AcBel's reliance on the KA7805's unchanged part number was 

unreasonable as a matter of law, we conclude that the court erred 

in dismissing these two claims as well. Accordingly, we vacate 

the district court's entry of summary judgment dismissing AcBel's 

 

reject his offer). 

22 Inasmuch as the district court's dismissal of AcBel's negligent 

misrepresentation claim is based on AcBel's supposed failure to 

provide an affirmative misstatement or presentation of false 

information regarding the design changes made to the KA7805, we 

hold that the district court erred given that the evaluation of 

falsity regarding design changes in the present case's context is 

dependent on industry custom, which is at issue. See supra at 28-

32. The same logic applies to the district court's dismissal of 

AcBel's fraud by omission and negligent misrepresentation claims 

on the grounds that Fairchild did not have a duty to disclose 

issues regarding the KA7805's design or that the part was switched 

back to the large-die version. See Restatement (Second) of Torts 

§ 551(2)(e) (1977) (providing that duty to disclose may arise out 

of "the customs of the trade"); see also Greenery Rehab. Grp., 

Inc. v. Antaramian, 628 N.E.2d 1291, 1294 (Mass. App. Ct. 1994) 

(recognizing that a duty to disclose arises out of the situations 

described in § 551). 
-39- 

fraud (Count III), fraud by omission (Count IV), and negligent 

misrepresentation (Count V) claims, and remand for trial on the 

merits. 

C. Fairchild's Cross-Appeal 

Because we are remanding for further proceedings below, 

we now turn to Fairchild's cross-appeal. Fairchild asks us to 

order that it be permitted to conduct additional discovery in 

relation to documents produced by AcBel after the case's discovery 

deadline had elapsed. 

Weighing the equities and in light of the possibility 

that discovery related to issues or leads suggested by the lateproduced documents will lead to evidence relevant to the remanded 

claims, we instruct the district court to reopen discovery 

exclusively for purposes of Fairchild's discovery of evidence 

strictly related to AcBel's late-produced documents. See 

AngioDynamics, Inc. v. Biolitec AG, 780 F.3d 429, 435 (1st Cir. 

2015); see also Vineberg v. Bissonnette, 548 F.3d 50, 55 (1st Cir. 

2008) (recognizing that a party's proffer of relevant leads it 

might obtain through additional discovery "may be an important 

factor in deciding whether to reopen discovery"); Young v. Gordon, 

330 F.3d 76, 82 (1st Cir. 2003) (implying that a party's failure 

to meet a case-management deadline should only be to his own 

peril). 
-40- 

III. CONCLUSION 

For the reasons explained above, we vacate the district 

court's judgment dismissing AcBel's implied warranty of 

merchantability (Count I), fraud (Count III), fraudulent omission 

(Count IV), and negligent misrepresentation (Count V) claims, and 

remand for further proceedings consistent with this opinion. 

Vacated and Remanded. Each party shall bear its own 

costs.