UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Isaac Mwangi, Lisa Mwangi

and Safari Merchandise

Centre, LLC

v. Civil No. 06-cv-175-JM

Zahid Alam and

Premium Gas, LLC, et al.

O R D E R

This action arose out of an ill-fated business relationship

between plaintiffs, Isaac and Lisa Mwangi, and defendants, Zahid

Alam and Premium Gas, LLC, which gave rise to an agreement that

plaintiffs would operate a convenience store and gasoline station

on property in Manchester, New Hampshire that defendants owned. 

Confusion and disagreement about the terms of the business

arrangement ultimately caused plaintiffs to lose their investment

in the business and close up shop less than four months after

opening. Alam formally evicted plaintiffs from the premises in

March 2006. Plaintiffs then brought this suit to recover their

losses. After a four day trial, the jury found defendants’

treatment of plaintiffs constituted breach of contract and breach

of the implied duty of good faith and fair dealing, and violated

Case 1:06-cv-00175-JM Document 45 Filed 11/02/07 Page 1 of 16
1Plaintiffs also had requested an attachment to secure

payment of the judgment; however, Alam agreed to give them a

mortgage on four parcels of real estate, which obviated the need

for an attachment. Before the mortgages were recorded, Alam

granted at least one other mortgage on one of the properties to

another creditor. The October 4, 2007, hearing focused on that

transaction and other real estate transfers which occurred in

June 2007 to assess whether Alam was making these transfers in

fraud of creditors. Any claim plaintiffs may wish to assert

relating to those transfers, however, must be made in state court

and does not alter my analysis here. 

 

2

the New Hampshire Consumer Protection Act, see New Hampshire Rev.

Stat. Ann. (“RSA”) 358-A (1995). The jury awarded plaintiffs

damages in the amount of $32,000, plus attorney’s fees and costs.

As part of the relief sought, plaintiffs asked for enhanced

damages, pursuant to RSA 358-A:10, I, which requires the court to

double or triple a damage award if the violation was willful or

knowing. Evidentiary hearings regarding plaintiffs’ requests for

attorney’s fees and enhanced damages were held on July 23, 2007,

and October 4, 2007.1 After trial but before the evidentiary

hearings, defendants obtained new counsel. Defense counsel

objects to plaintiffs’ request for enhanced damages, but conceded

the reasonableness of plaintiffs’ counsel’s fees at the July 23,

2007, hearing. After carefully considering the parties’

arguments, plaintiffs’ request for enhanced damages is granted.

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Discussion

1. Enhancement of Damages

The extent of enhanced damages plaintiffs may obtain is a

question for the court, rather than the jury, to resolve. See

Attrezzi, LLC v. Maytag Corp., 436 F.3d 32, 41 (1st Cir. 2006)

(citing Carter v. Lachance, 146 N.H. 11, 14, 766 A.2d 717, 719

(2001)). Plaintiffs are entitled to enhanced damages if

defendants’ violation of the Consumer Protection Act (either

“CPA” or “RSA 358-A”) was either knowing or willful. See RSA

358-A:10, I. When the CPA violation is determined to have been

willful or knowing, the court must double or triple the damage

award. See Simpson v. Young, 153 N.H. 471, 476, 899 A.2d 216,

221 (2006) (“the legislature’s use of the term ‘shall’ indicates

mandatory enforcement”); accord Unit Owners Ass’n v. Miller, 141

N.H. 39, 45, 677 A.2d 138, 142 (1996). Whether the amount is

doubled or trebled, however, is within the court’s discretion,

considering the degree and egregiousness of the willful or

knowing conduct. See Globe Distrib. Inc. v. Adolph Coors Co. (In

re Globe Distrib., Inc.), 129 B.R. 304, 320 (Bankr. D.N.H. 1991)

(“In re Globe I”) (considering extenuating circumstances before

doubling damages award). 

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Defendants object to plaintiffs request for enhanced

damages, arguing the damage award cannot be increased because the

jury did not find the CPA violation was either willful or

knowing. They cite the special verdict form, which did not

specifically ask whether defendants’ CPA violation was willful or

knowing. Based on my review of the entire record, however, I

find that the issue of willfulness was adequately presented to,

and was decided by, the jury. Defendants’ argument fails for the

following two reasons.

First, the jury instructions, when read in their entirety

and in context of the trial evidence, fairly explained that an

issue for the jury to decide was whether or not the defendants

acted willfully. See U.S. v. McFarlane, 491 F.3d 53, 59 (1st

Cir. 2007) (explaining that individual instructions must be

reviewed in context); see also U.S. v. Tom, 330 F.3d 83, 91 (1st

Cir. 2003) (“looking at the entire charge, in light of the

evidence, and ‘determin[ing] whether, taken as a whole, the

court’s instructions fairly and adequately submitted the issues

in the case to the jury’” (internal quotation omitted)). 

Plaintiffs did not allege that defendants conduct constituted one

of the enumerated violations of the CPA, see RSA 358-A:2 (Supp.

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2007) (listing specific acts and practices that violate the

statute), but rather that it generally constituted an unfair or

deceptive business practice. The jury, therefore, was given the

following broader instruction about conduct that generally

offends the spirit and policy of the CPA:

A practice may be considered “unfair” if it is

immoral, unethical, oppressive or unscrupulous.

A practice may be considered “deceptive” if it

could reasonably be found to have caused a 

person to act differently from the way he otherwise

would have acted.. . . An ordinary breach of 

contract claim does not present an occasion for

the remedies under the Consumer Protection Act. 

To create liability under the Consumer Protection

Act, the objectionable act or practice must attain

a level of rascality, that is dishonesty, that 

would raise an eyebrow of someone inured to the

rough and tumble world of commerce.

This instruction necessarily implies willfulness or knowledge,

because conduct that is deceptive or unethical and that attains a

“level of rascality” which offends the usual competition of the

market must be deliberate and intentional. See Kelton v. Hollis

Ranch, LLC, __ N.H. __, __ A.2d __, 2007 WL 2034008, *2 (July 17,

2007) (explaining how conduct that is deceptive or unfair implies

“a degree of knowledge or intent”). The jury’s finding that

defendants had committed an “unfair or deceptive act or practice

in the conduct of any trade or commerce,” RSA 358-A:2, therefore,

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necessarily constituted a finding that defendants acted willfully

or knowingly.

Additionally, because plaintiffs specifically alleged that

defendants had acted willfully and knowingly, the jury was

explicitly instructed on the meaning of a willful or knowing

violation of the CPA:

Plaintiffs claim that defendants’ alleged

violations of the Consumer Protection Act 

were willful and/or knowing. A person or 

entity acts knowingly if it acts intentionally

and voluntarily and not because of ignorance,

mistake, accident, or carelessness. Whether 

a person or entity has acted knowingly may be 

proven by the party’s conduct and by all of

the facts and circumstances surrounding the 

case. A party acts willfully when it acts

with knowledge that its conduct is unlawful 

and with the intent to do something the law

forbids, that is to say, with the bad purpose

to disobey or to disregard the law. A party’s

conduct is not willful if it was due to negligence,

inadvertence, or mistake.

This instruction immediately followed the instruction on what

constituted a CPA violation. Read together, these instructions

fairly informed the jury that it was assessing the evidence to

determine if defendants’ conduct was sufficiently oppressive,

unscrupulous or deceptive that it could be found to be a willful

violation of the CPA. See McFarlane, 491 F.3d at 59 (reviewing

accuracy of instructions by assessing them as a whole). 

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In the context of these instructions, the special verdict

form becomes clearer. While the special verdict form did not

specifically ask the jury whether or not defendants acted

willfully or knowingly, it did ask “if the plaintiffs have proved

by a preponderance of the evidence that defendants engaged in any

unfair method of competition or any deceptive act or practice in

violation of the [CPA]?” In light of the entire charge and the

evidence presented, that question can be fairly understood to

have asked whether the CPA violation was willful. See Johnson v.

Teamsters Local 559, 102 F.3d 21, 28 (1st Cir. 1996) (examining

the wording of the special verdict form in conjunction with the

instructions to determine if together they fairly presented the

issues to the jury). 

Second, defendants have waived any objection they might now

assert, because they failed to object to the jury instructions or

the special verdict form, either during the charging conference

or in the courtroom after the instructions were given. See Fed.

R. Civ. P. 51(b) & (c) (providing procedure for review of and

objections to jury instructions and requiring objections to be

timely made, on the record); see also Surprenant v. Rivas, 424

F.3d 5, 15 (1st Cir. 2005) (“A party’s failure to adhere to the

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protocol specified in Rule 51 constitutes a forfeiture and limits

appellate review to plain error.”); Muniz v. Rovira, 373 F.3d 1,

6 (1st Cir. 2004) (citing precedent for the procedural default

resulting from defendant’s failure to timely object to the jury

instructions). “We enforce our object-or-forfeit rule ‘to compel

litigants to afford the trial court an opportunity to cure [a]

defective instruction and to prevent the litigants from ensuring

a new trial in the event of an adverse verdict by covertly

relying on the error.’” Baron v. Suffolk County Sheriff’s Dep’t,

402 F.3d 225, 235 (1st Cir. 2005) (quoting Flynn v. AK Peters,

Ltd., 377 F.3d 13, 25 (1st Cir. 2004)). Although federal courts

may consider “a plain error in the instructions affecting

substantial rights that has not been preserved as required by

Rule 51(d)(1)(A) or (B),” Fed. R. Civ. P. 51(d)(2), the lack of a

specific question about willfulness on the special verdict form

did not constitute plain error here. 

The plain error doctrine requires the litigant “to show, at

a bare minimum, that the alleged error seriously affected the

fairness or integrity of the trial.” Muniz, 373 F.3d at 6. 

Defendants have not made that showing. They have not cited

anything in the record which supports a claim that the trial was

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unfair because of the wording of the special verdict form. My

review of the record leads to the conclusion that the trial in

fact was not rendered unfair by that wording. The jury verdict

can fairly be understood as finding that plaintiffs prevailed on

their CPA claim because the evidence demonstrated that defendants

acted in an unscrupulous, unethical or immoral manner; in other

words, the jury concluded defendants had acted willfully. 

Having disposed of defendants’ objections, I turn to the

issue of whether the damage award should be doubled or trebled. 

See RSA 358:A-10, I. I find the evidence amply supported the

jury’s determination that defendants treated plaintiffs unfairly,

and that Alam’s decision to abruptly stop deliveries of gasoline

gave plaintiffs no choice other than to close their business,

which caused them significant financial hardship. The evidence

readily supports the conclusion that Alam fully appreciated the

business implications of how he treated plaintiffs and willfully

engaged in a course of dealing with them that resulted in a

financial windfall to him at disastrous costs to them. 

The evidence told the following story: 

Alam is a sophisticated businessman, with a masters degree

in business administration and an established network of

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2Testimony at the October 4 hearing established that Alam’s

business endeavors have foundered in recent months; however, that

unfortunate turn of events for him does not affect the analysis

of his conduct during the seven month period from September,

2005, through March, 2006, when the ill-fated business

relationship at issue here occurred.

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gasoline-related businesses.2 By contrast, plaintiffs had no 

business education and worked as social workers before embarking

on the entrepreneurial endeavor at issue in this matter. The

business arrangement was based on an oral agreement between the

parties, which was not reduced to writing until four months after

negotiations began in September 2005. Despite having the

assistance of counsel, Alam did not ensure that any contracts

were executed in advance of plaintiffs assuming control of the

leased premises, and did not explain plaintiffs’ need for various

licenses and regulatory approvals to conduct the business of

operating a convenience store there. These decisions of Alam’s

seem to have been part of his ploy to entice plaintiffs into a

bad business deal. 

In October 2005, Alam turned the property over to plaintiffs

after they paid him $40,000, which transaction was documented

with a receipt that stated “fee to lease the premises.” While

plaintiffs testified that they believed this money constituted

prepayment of rent, Alam testified that the money was the price

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plaintiffs paid for the business. The evidence, however, did not

substantiate Alam’s claim. To the contrary, it showed that

plaintiffs got nothing for the $40,000 other than leased space,

because there was no business to acquire. The property they

rented was a dirty, empty building, without any going concern

value, store fixtures or inventory. Plaintiffs invested

substantial time and money, working seven days a week, to

transform the space into a convenience store, to obtain the

necessary permits and licenses, to buy and stock inventory, and

to create goodwill. 

As part of the agreement, plaintiffs were required to buy

gasoline exclusively from defendants. The exclusive supply

arrangement enabled defendants to control the price and quantity

terms of plaintiffs’ fuel supply; however, the parties never

reached a meeting of the minds about the payment terms. From the

beginning, the volume of gasoline listed on the delivery slips

did not correspond to the gauge on plaintiffs’ tank. The price

of fuel also caused problems, as defendants charged more if

payment was not received in full at the time of delivery, yet did

not provide either a total price or a price per gallon on the

delivery slip. Instead, plaintiffs would call defendants later

Case 1:06-cv-00175-JM Document 45 Filed 11/02/07 Page 11 of 16
3At the July 23 hearing, Alam testified, contrary to what he

said at trial, that it was common practice for a gas delivery to

be paid for at the next subsequent delivery. 

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in the day to be told the amount due. Plaintiffs understood the

course of dealing allowed them to pay for fuel deliveries at the

immediate subsequent delivery, when cash would be available to

make the payment. Alam, by contrast, testified that he expected

payment in full within two days of delivery and raised the price

if payment was not received within this time frame.3 At times

the “wholesale” price of gasoline charged plaintiffs exceeded the

retail price defendants sold gasoline for at a nearby station

they owned. Finally, in spite of repeated requests for invoices

that corresponded to the delivery slips, to enable plaintiffs to

match quantities and prices with delivery dates, defendants did

not provide plaintiffs any itemized bills.

Despite these difficulties, on January 5, 2006, plaintiffs

executed documents which they believed reflected their oral

agreement and course of dealing with defendants. The documents

included a promissory note for $10,000, a lease that was backdated to October 7, 2005, and a “Motor Fuels Product Sales

Agreement.” In addition to these documents, handwritten notes

pertaining to plaintiffs’ contractual demands were also

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introduced at the trial. Those terms, however, were not

incorporated into the written agreements. Almost immediately

after the documents were executed, defendants stopped delivering

gasoline, claiming plaintiffs owed nearly $20,000 for fuel. 

Plaintiffs tried to reach Alam to resolve the payment issue to no

avail. Without gasoline to sell, plaintiffs could not sustain

their convenience store and were forced to abandon the business. 

Alam formally evicted them in March 2006, claiming they were

behind in rent and utilities obligations. 

I find defendants’ precipitous termination of product and

coercive eviction were both unethical and unscrupulous. The

evidence of defendants shorting the fuel amounts delivered and

manipulating the price charged demonstrates both an unfair and

deceptive trade practice, designed to take advantage of

defendants’ superior bargaining position. Finally, the late-inthe-game execution of documents, which defendants then relied on

to hold plaintiffs in breach of contract and evict them from the

property, appears to have been a sham effort to legitimize an

oppressive business deal. The evidence consistently showed a

pattern of rascality that offends both the letter and the spirit

of the CPA. Under such circumstances, I readily reach the

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conclusion that a trebling of the damages awarded by the jury is

warranted. See e.g. In re Globe I, 129 B.R. at 321 n.19

(doubling damages but explaining they would have been trebled if

defendant had “set up” plaintiff in a sham transaction or had

appropriated to itself the value of the network and goodwill

plaintiff had built without compensating plaintiff); see also

Boynton v. Figueroa, 154 N.H. 592, 606-07, 913 A.2d 697, 709-10

(2006) (upholding judge’s doubling of jury award as within his

sound discretion); Pepsi-Cola Metro. Bottling Co. v. Checkers,

Inc., 754 F.2d 10, 18-19 (1st Cir. 1985) (affirming trebling of

damage award where CPA willfully violated when defendant refused

to pay an uncontested debt to coerce plaintiff to deliver more

product). Accordingly, the jury award shall be tripled, to total

$96,000. 

2. Attorney’s Fees and Costs

Like enhanced damages, the amount plaintiffs, as the

prevailing party, are entitled to receive for attorney’s fees and

costs is a question for the court. See Attrezzi, LLC, 436 F.3d

at 41; see also RSA 358-A:10, I (“a prevailing plaintiff shall be

awarded the costs of the suit and reasonable attorney’s fees, as

determined by the court”). The court’s primary focus must be on

Case 1:06-cv-00175-JM Document 45 Filed 11/02/07 Page 14 of 16
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the reasonableness of the rates charged and the hours spent,

given the complexity of the issues involved. See e.g. Gisbrecht

v. Barnhart, 535 U.S. 789, 801-02 (2002) (explaining statutory

fee-shifting adjudication); see also Globe Distrib. Inc. v.

Adolph (In re Globe Distrib., Inc.), 145 B.R. 728, 732 (Bankr.

D.N.H. 1992) (following same analysis for RSA 358-A:10 awards). 

At the July 23 hearing, defense counsel stated that defendants

were not going to challenge the attorney’s fees. Accordingly,

plaintiffs’ counsel submitted to the court an itemized statement

of his costs and fees. See Document no. 44. I have reviewed

that statement and find the rates charged and the time spent to

be reasonable, justifying an award of the total amount submitted

to the court. Plaintiffs’ counsel is entitled to payment of

$28,442.69, from defendants, pursuant to RSA 358-A:10, I.

Conclusion

For the reasons set forth above, it is hereby ordered:

1. Plaintiffs are awarded the sum of $96,000, which

represents the trebled damages assessed against defendants in

this action; and

2. Plaintiffs are entitled to costs and attorney’s fees, in

the amount of $28,442.69, to be paid by defendants.

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Finally, the Clerk of Court shall mail a copy of this order

to the New Hampshire Attorney General’s Office, consistent with

the requirements of RSA 358:A-10, II. 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: November 2, 2007 

cc: Craig S. Donais, Esq.

James W. Craig, Esq.

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