United States Court of Appeals

For the First Circuit 

No. 15-1059 

KIM PHILIBOTTE, 

Plaintiff, Appellant, 

v. 

NISOURCE CORPORATE SERVICES COMPANY, d/b/a Nisource Services 

Inc., d/b/a Bay State Gas Company, d/b/a Northern Utilities, 

Inc., d/b/a Columbia Gas of Massachusetts; AGL RESOURCES INC., 

d/b/a Nicor Energy Services Company, d/b/a Columbia Home 

Solutions, 

Defendants, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Mark G. Mastroianni, U.S. District Judge] 

Before 

Howard, Chief Judge, 

Selya and Lynch, Circuit Judges. 

Valeriano Diviacchi, with whom Diviacchi Law Office was on 

brief, for appellant. 

J. Christopher Allen, Jr., with whom Troy K. Lieberman and 

Nixon Peabody LLP were on brief, for appellee. 
July 16, 2015 
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LYNCH, Circuit Judge. This suit, about a water heater, 

concerns the appropriate standard for determining when consumer 

transactions styled as "leases" are in fact disguised "credit 

sales" or "retail installment sales." If so, they are subject to 

disclosure requirements under federal and Massachusetts' consumer 

protection laws. See Truth in Lending Act ("TILA"), 15 U.S.C. 

§ 1601 et seq.; Massachusetts Consumer Credit Cost Disclosure Act 

("CCCDA"), Mass. Gen. Laws ch. 140D, § 1 et seq.; Massachusetts 

Retail Installment Sales and Services Act ("RISSA"), Mass. Gen. 

Laws ch. 255D, § 1 et seq.

Plaintiff Kim Philibotte alleges that the defendants, 

Nisource Corporate Services Company and AGL Resources, Inc. 

(collectively "Nisource"), engaged in deceptive business practices 

by disguising credit sales of hot water heaters as leases to avoid 

making the required disclosures. The district court found that 

Philibotte did not qualify for protection in light of the statelaw standards governing these transactions, and dismissed her 

suit. The district court reasoned that the decision of the 

Massachusetts Supreme Judicial Court ("SJC") in Silva v. Rent-aCenter, Inc., 912 N.E.2d 945 (Mass. 2009), which controls 

Philibotte's RISSA claim, also controls both her federal and state 

TILA claims in light of the similarity of the RISSA and the CCCDA 

(Massachusetts' TILA), which governs the applicable standard for 

both Philibotte's state and federal TILA claims under an exemption 
- 4 -

granted to Massachusetts. See Belini v. Wash. Mut. Bank, FA, 412 

F.3d 17, 20 (1st Cir. 2005) (explaining that Massachusetts has 

been granted an exemption that displaces "federal [TILA] law in 

favor of state [TILA] law"); see also 15 U.S.C. § 1633; 12 C.F.R. 

§ 226.29(b)(2). 

We affirm on alternate grounds. Philibotte's federal 

claim under TILA, 15 U.S.C. § 1640, is barred by the statute of 

limitations.1 As to the pendent state law claims, which are timely, 

we affirm dismissal for failure to state a claim. We agree that 

Silva controls Philibotte's RISSA claim, but apply the plain 

statutory language to resolve her CCCDA claim on narrower grounds. 

I. 

"Because [Philibotte] challenge[s] the district court's 

dismissal of [her] claims under Fed. R. Civ. P. 12(b)(6), we 

[briefly] recite the facts and reasonable inferences raised by the 

facts in [her] favor." Salois v. Dime Sav. Bank of N.Y., FSB, 128 

F.3d 20, 22 (1st Cir. 1997).2

                                                             1 The district court reached the merits, but also held, in 

the alternative, that Philibotte's federal claim was barred by the 

statute of limitations. Unlike the district court, we do not reach 

the merits of this claim. 

2 These facts are taken from the redacted amended complaint, 

the sealed portions being irrelevant to our resolution of this 

case. 

Philibotte also appealed the district court's order from 

December 22, 2014, denying her motion to unseal the complaint and 

the amended complaint. 

We review the district court's order for abuse of discretion. 

See Siedle v. Putnam Invs., Inc., 147 F.3d 7, 10 (1st Cir. 1998) 
- 5 -

In January 2011, Philibotte's hot water heater at her 

home in Chicopee, Massachusetts, stopped working. She contacted 

Columbia Gas, allegedly a Nisource entity,3 whose agents evaluated 

her water heater and told her that the "best and cheapest way to 

proceed" would be to "lease" a new Ruud water heater for $204, 

made in twelve monthly payments of $17. They gave her such a 

lease, which she signed. Philibotte alleges that the agents never 

explained the terms of the lease, provided her with any TILA 

disclosures, or informed her that the full retail market value of 

the heater (including installation) was only $400 to $500.

                                                            

("The trial court enjoys considerable leeway in making decisions 

of this sort."). The crux of Philibotte's argument is that 

Nisource did not present, and the district court did not consider, 

"any independent basis other tha[n] the state court impoundment." 

"[A]lthough the scales tilt decidedly toward transparency," we 

cannot say the district court abused its discretion to keep under 

seal portions of the complaint that were filed in direct 

contravention of a state court order. See Nat'l Org. for Marriage 

v. McKee, 649 F.3d 34, 70 (1st Cir. 2011). The "presumptive right 

of access attaches to those materials 'which properly come before 

the court,'" and we will not permit litigants to abuse this right 

to circumvent state court procedures aimed at curbing discovery 

abuse. See In re Providence Journal Co., 293 F.3d 1, 9 (1st Cir. 

2002) (emphasis added) (quoting F.T.C. v. Standard Fin. Mgmt. 

Corp., 830 F.2d 404, 412-13 (1st Cir. 1987)); cf. Nixon v. Warner 

Commc'ns, Inc., 435 U.S. 589, 598 (1978) ("Every court has 

supervisory power over its own records and files, and access has 

been denied where court files might have become a vehicle for 

improper purposes."). 

3 We need not resolve a dispute over the relationship between 

these entities in light of our holding. See Philibotte v. Nisource 

Corp. Servs. Co., No. 14-11300, 2014 WL 6968441, at *1 n.1 (D. 

Mass. Dec. 9, 2014).
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The lease, which was attached to the complaint, carried 

a minimum term of twelve months, after which either party could 

terminate the lease without penalty on 30 days written notice. It 

also included a buyout option that could be exercised at any time. 

The buyout price varied depending on how many monthly payments had 

been made to date, decreasing over time to a minimum of $75. The 

lease did not require Philibotte to return the heater upon 

termination, unless demanded, and the parties dispute whether the 

transaction contemplates such a return.

Neither Philibotte nor Columbia Gas terminated the lease 

upon completion of the minimum term in January 2012. Philibotte 

continued to lease the heater for two more years, until February 

2014, when she contacted Columbia Gas to exercise her option to 

purchase. She alleges that Columbia Gas's response to her request 

"ma[de] all sorts of misrepresentations and waivers" to disguise 

the fact that this was the culmination of a disguised credit sale. 

Despite these, she signed the required "appliance sales 

agreement," under which she paid an amount roughly equivalent to 

the lease's buyout price.

Philibotte filed this putative class action against 

Nisource in March 2014. She alleged three disclosure violations 

under both federal and state law: (1) a federal claim under TILA, 

15 U.S.C. § 1601 et seq.; (2) a state law claim under the RISSA, 

Mass. Gen. Laws ch. 255D, § 1 et seq.; and (3) a state law claim 
- 7 -

under the CCCDA, Mass. Gen. Laws ch. 140D, § 1 et seq. She also 

brought an unjust enrichment claim and a Massachusetts 93A claim 

based on the alleged mischaracterization of the transaction as a 

"lease." The complaint sought, inter alia, class certification, 

compensatory and statutory damages, and equitable relief including 

rescission. 

The district court found that the transaction did not 

qualify for protection under the standard for identifying consumer 

leases subject to RISSA protection that was articulated by the SJC 

in Silva v. Rent-a-Center, Inc., 912 N.E.2d 945 (Mass. 2009). See 

Philibotte v. Nisource Corp. Servs. Co., No. 14-11300, 2014 WL 

6968441, at *3-6 (D. Mass. Dec. 9, 2014). The district court also 

found that the same standard applied, and so precluded, 

Philibotte's federal TILA and Massachusetts CCCDA claims. Id. 

Accordingly, the court granted Nisource's motion to dismiss. Id. 

at *6. 

II. 

The district court had jurisdiction over Philibotte's 

federal TILA claim pursuant to 28 U.S.C. § 1331, and supplemental 

jurisdiction under 28 U.S.C. § 1367 over the state law claims.4 

See Belini, 412 F.3d at 19-20. We have jurisdiction under 28 

U.S.C. § 1291. 

                                                             4 It is not clear whether there is also diversity jurisdiction 

over the state law claims in addition to supplemental jurisdiction, 
- 8 -

III. 

Our review is de novo. Palmer v. Champion Mortg., 465 

F.3d 24, 27 (1st Cir. 2006). We are not bound to the reasoning of 

the district court, but "may affirm on any basis apparent in the 

record." Debnam v. FedEx Home Delivery, 766 F.3d 93, 96 (1st Cir. 

2014) (quoting Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 237 

n.11 (1st Cir. 2013)). In so doing, we must draw all reasonable 

factual inferences in Philibotte's favor, but "refrain from 

crediting her 'bald assertions, unsupportable conclusions, and 

opprobrious epithets.'" Palmer, 465 F.3d at 28 (quoting Chongris 

v. Bd. of Appeals, 811 F.2d 36, 37 (1st Cir. 1987)). We begin 

with the federal claim. 

Philibotte's federal TILA claim is time-barred unless 

brought within the one-year statute of limitations. 15 U.S.C. 

§ 1640(e); McKenna v. Wells Fargo Bank, N.A., 693 F.3d 207, 211 

(1st Cir. 2012) (noting that the federal statute of limitations 

applies to the federal claim, even where a state exemption 

applies); see also Belini, 412 F.3d at 26. This period runs "from 

the date of the occurrence of the violation," 15 U.S.C. § 1640(e), 

                                                            

and the district court did not address the issue. Even assuming 

there is not diversity jurisdiction, the facts fail to give rise 

to a claim under state law without implicating substantive 

questions of state law. Accordingly, we cannot say the district 

court would have abused its discretion had it exercised 

supplemental jurisdiction for the convenience of the parties after 

dismissal of the federal claim. Cf. Desjardins v. Willard, 777 

F.3d 43, 45 (1st Cir. 2015). 
- 9 -

which for disclosure violations in credit sales is the date the 

transaction was consummated. See, e.g., King v. California, 784 

F.2d 910, 915 (9th Cir. 1986); Evans v. Rudy-Luther Toyota, Inc., 

39 F. Supp. 2d 1177, 1184 (D. Minn. 1999) (citing Dryden v. Lou 

Budke's Arrow Fin. Co., 630 F.2d 641, 646 (8th Cir. 1980)). Absent 

equitable tolling, the statute of limitations ran in January 2012, 

one year after Philibotte entered into the lease agreement. Suit 

was not brought until March 2014. 

Philibotte argues that equitable tolling applies because 

Nisource misrepresented the agreement to be a "lease" and engaged 

in active deception to hide the true nature of the lease as a 

credit sale.5 But "[i]n this case, the inquiry is over before it 

begins." Salois, 128 F.3d at 26. 

To warrant equitable tolling under the doctrine of 

fraudulent concealment, a plaintiff must "exercise reasonable 

diligence in discovering that [she] ha[s] been the victim[] of 

fraud." Id. ("[A]lthough . . . reasonable diligence is factually 

based, it may be determined as a matter of law where the underlying 

                                                             5 Although the district court ruled, in the alternative, that 

the statute of limitations barred Philibotte's federal claim, the 

district court did not expressly address equitable tolling in its 

decision. Cf. Jardín de las Catalinas Ltd. P'ship v. Joyner, 766 

F.3d 127, 135 (1st Cir. 2014) (noting that rejection of equitable 

tolling is reviewed for abuse of discretion against the "background 

precepts that [it] is available only in exceptional circumstances" 

(quoting Neverson v. Farquharson, 366 F.3d 32, 40 (1st Cir. 2004)) 

(internal quotation marks omitted)). 
- 10 -

facts are admitted or established without dispute."). Even 

accepting all facts as alleged, Philibotte failed to exercise this 

diligence as a matter of law, and so does not warrant relief. See 

id. The lease here "contained all of the information necessary to 

determine" that it might be a disguised credit sale. Id. 

Accordingly, "sufficient facts -- indeed, all the facts -- were 

available to place [Philibotte] on inquiry notice of fraudulent 

conduct" from the time she entered into the agreement. Id.; cf. 

Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1045-46 

(9th Cir. 2011). And there were no other impediments to 

Philibotte's discovery of the alleged fraud: the lease itself is 

short and simple to understand, and she does not allege that 

Nisource took any further action to hide the true nature of the 

transaction.6 Cf. Palmer, 465 F.3d at 28 ("This methodology [of 

refraining from crediting bald assertions on motions to dismiss] 

is particularly appropriate in the TILA context where we . . . 

focus[] . . . on the text of the disclosures themselves rather 

than on plaintiffs' descriptions of their subjective 

                                                             6 Philibotte alleges that Nisource engaged in active deception 

when she exercised her option to purchase, but this was not until 

February 2014, long after the period had already run. Cf. Hubbard 

v. Fidelity Fed. Bank, 91 F.3d 75, 79 (9th Cir. 1996) (declining 

to toll the statute of limitations for TILA claims that had run 

before defendant's subsequent attempts to conceal violations); 

accord Evans, 39 F. Supp. 2d at 1185 ("[A]t the time of those 

purported acts, there was no limitations period to toll."). 
- 11 -

understandings."). Even so, Philibotte did not sue for three 

years. 

Under our "narrow view of equitable exceptions" to the 

statute of limitations, we decline to find that tolling is needed 

on the facts of this case "to prevent unjust results or to maintain 

the integrity of [the] statute." Salois, 128 F.3d at 25 (quoting 

King, 784 F.2d at 915). The limitations period ran in January 

2012. Because Philibotte did not file until March 2014, her 

federal TILA claim is barred, and so was properly dismissed. See 

15 U.S.C. § 1640(e); cf. McKenna, 693 F.3d at 211. 

IV. 

The federal claim having been properly dismissed, there 

remain only the state law claims for alleged violations of RISSA, 

for alleged violations of Massachusetts CCCDA, for unjust 

enrichment, and for violations of Massachusetts 93A, over which we 

exercise supplemental jurisdiction.7

                                                             7 We emphasize that where a court "dismisses the foundational 

federal claims, it must reassess its jurisdiction." Desjardins, 

777 F.3d at 45 (quoting Camelio v. Am. Fed'n, 137 F.3d 666, 672 

(1st Cir. 1998)) (internal quotation marks omitted). Although the 

"balance of competing factors ordinarily will weigh strongly in 

favor of declining jurisdiction over state law claims where[, as 

here,] the foundational federal claims have been dismissed at an 

early stage in the litigation," the parties do not challenge the 

district court's decision to exercise this discretionary 

jurisdiction (assuming diversity jurisdiction was unavailable), 

and this case can be narrowly decided to avoid concerns of comity. 

Camelio, 137 F.3d at 672 ("Comity is a particularly important 

concern in these cases."); see also Desjardins, 777 F.3d at 45 

(noting that other factors to be balanced include fairness, 
- 12 -

In "exercising supplemental jurisdiction over a state 

law claim," we apply "state substantive law" as that law has been 

applied by the state's highest court. Barton v. Clancy, 632 F.3d 

9, 17 (1st Cir. 2011). "If the highest court has not spoken 

directly on the question at issue, we predict 'how that court 

likely would decide the issue.'" Id. (quoting González Figueroa 

v. J.C. Penney P.R., Inc., 568 F.3d 313, 318-19 (1st Cir. 2009)). 

In so doing, we are mindful that "[n]eedless decisions of state 

law should be avoided both as a matter of comity and to promote 

justice between the parties," Camelio v. Am. Fed'n, 137 F.3d 666, 

672 (1st Cir. 1998) (quoting United Mine Workers of Am. v. Gibbs, 

383 U.S. 715, 726 (1966)), and so affirm on the narrowest grounds 

made apparent by the record, see Debnam, 766 F.3d at 96. 

A. Philibotte's Claim under RISSA 

The district court correctly held that Philibotte's 

RISSA claim is precluded under Massachusetts SJC precedent in Silva 

v. Rent-A-Center, Inc., 912 N.E.2d 945 (Mass. 2009). This is 

because RISSA's disclosure requirements only apply to consumer 

leases meeting "specific [statutory] requirements" that, as Silva 

makes clear, Philibotte's lease cannot meet. Silva, 912 N.E.2d at 

                                                            

judicial economy, and convenience). Accordingly, we continue to 

the merits, and affirm on narrower grounds than the district court. 

 
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949-53 (discussing the standard for identifying "retail 

installment sale agreement[s]"). 

In particular, a consumer lease must satisfy two 

statutory requirements to trigger RISSA's disclosure protections: 

(1) the lessee "contracts to pay as compensation for use a sum 

substantially equivalent to or in excess of the value of goods 

involved"; and (2) "it is agreed that the . . . lessee will become, 

or for no other or for a nominal consideration has the option to 

become the owner of the goods upon full compliance with his 

obligations under the contract." RISSA, Mass. Gen. Laws ch. 255D, 

§ 1;8 see also Silva, 912 N.E.2d at 950 n.11 (emphasizing that, 

                                                             8 The relevant definition under RISSA states in full: 

"Retail installment sale agreement", [is] an agreement, 

other than a revolving credit agreement or agreement 

reflecting a sale made pursuant thereto, signed by the 

buyer in this commonwealth, involving a finance charge 

and providing for the sale of goods or the rendering of 

services or both, or for the issuance of merchandise 

certificates, for a specified amount which the buyer 

undertakes to pay in more than one payment subsequent to 

the making of the agreement, or not involving a finance 

charge and providing for the sale of goods or the 

rendering of services or both, or for the issuance of 

merchandise certificates, for a specific amount which 

the buyer undertakes to pay in five or more installments 

subsequent to the making of the agreement. A retail 

installment sales agreement shall not include an 

agreement signed by a nonresident buyer in the 

commonwealth if such buyer has agreed that the law of 

his state shall apply. “Retail installment sale 

agreement” shall also include any contract in the form 

of a bailment or lease if the bailee or lessee contracts 

to pay as compensation for use a sum substantially 

equivalent to or in excess of the value of goods involved 
- 14 -

under RISSA, both definitional requirements must be met). In 

applying at least the first of these requirements, the SJC directs 

us to "look . . . to the nature of the contract at the time it was 

formed." Silva, 912 N.E.2d at 951 (emphasizing that we are to 

evaluate "parties' contractual rights and obligations at that 

point").9

Under this standard, leases will not satisfy the first 

requirement if they do not "require payments substantially 

equivalent to or in excess of the value of the goods" under their 

original term. Id. at 951-52 (citation omitted). Because of this 

emphasis on the lease's original term, this RISSA requirement is 

not satisfied by a consumer who renews "multiple times" and so 

eventually makes payments "exceed[ing] the value of the item." 

Id. 

                                                            

and it is agreed that the bailee or lessee will become, 

or for no other or for a nominal consideration has the 

option to become the owner of the goods upon full 

compliance with his obligations under the contract. A 

retail installment sale agreement shall not include an 

agreement which provides (a) for the payment of the total 

sale price in no more than three monthly installments 

and (b) a finance charge not in excess of one dollar and 

(c) no collateral security for the seller. 

Mass. Gen. Laws ch. 255D, § 1. 

9 Some doubt has been cast on how this standard applies to 

the second statutory requirement. See, e.g., Saia v. Bay State Gas 

Co., 965 N.E.2d 224, 2012 WL 1145913, at *2 (Mass. App. Ct. Apr. 

6, 2012) (unpublished disposition). Because we can resolve this 

case on the first prong, we do not reach this issue. 
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Philibotte's lease cannot meet this requirement because 

the original term of her "agreement [does] not require [her] . . . 

to pay a 'sum substantially equivalent to or in excess of the value 

of the goods involved.'" Id. at 950 (quoting Mass. Gen. Laws ch. 

255D, § 1). That agreement only obligated her to pay $204, which 

she concedes is less than half the alleged value of the water 

heater involved. This "absence of any obligation on the part of 

[Philibotte] to pay a sum substantially equivalent to the value of 

the leased [water heater] is decisive" under the standard applied 

by the SJC. Id. at 951. 

B. Massachusetts CCCDA Claim 

Like Philibotte's claim under RISSA, Philibotte's claim 

under Massachusetts CCCDA will only succeed if the lease meets the 

statutory definition of a "credit sale." Mass. Gen. Laws ch. 140D, 

§ 1. Unlike for RISSA, the SJC has yet to speak directly on the 

appropriate construction, and so we must predict how the SJC would 

likely rule in this case. Barton, 632 F.3d at 17.

The statutory definition of "credit sale" includes 

leases "if the . . . lessee contracts to pay as compensation for 

use a sum substantially equivalent to or in excess of the aggregate 

value of the property and services involved." Mass. Gen. Laws ch. 

140D, § 1.10 Philibotte's lease clearly does not meet this 

                                                             10 The relevant definition reads in full: 
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standard. She only "contract[ed] to pay" $204, a sum concededly 

less than half the "value of the property . . . involved," and so 

far, far less than the value of the property and services -- which 

included installation. See id. For this reason, we need not reach 

Philibotte's argument that the original term effectively 

constituted a "down payment," because even if the SJC declined to 

strictly apply the statutory definition, Philibotte's lease does 

not meet it. Cf. Saia v. Bay State Gas Co., 965 N.E.2d 224, 2012 

WL 1145913, at *1-4 (Mass. App. Ct. Apr. 6, 2012) (unpublished 

disposition) (finding a water-heater lease may be a disguised 

credit sale where original three-year term required payment far 

exceeding value of heater). 

In so doing, we do not follow the district court's 

reasoning that, because CCCDA and RISSA share similar statutory 

definitions for the type of consumer transactions covered,11 the 

                                                            

"Credit sale", [is] any sale in which the seller is a 

creditor. The term includes any contract in the form of 

a bailment or lease if the bailee or lessee contracts to 

pay as compensation for use a sum substantially 

equivalent to or in excess of the aggregate value of the 

property and services involved and it is agreed that the 

bailee or lessee will become, or for no other or a 

nominal consideration has the option to become, the 

owner of the property upon full compliance with his 

obligations under the contract. 

Mass. Gen. Laws ch. 140D, § 1. 

11 The only difference between the CCCDA definition and the 

RISSA definition is that CCCDA substitutes the "aggregate value of 

the property and services involved" for "the value of goods 

involved," and "owner of the property" for "owner of the goods." 
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standard articulated in Silva also applies to Philibotte's claim 

under the CCCDA. See Philibotte, 2014 WL 6968441, at *4 & n.4. 

We need not, and so should not, reach that issue because 

Philibotte's claim plainly fails to meet the first prong of the 

CCCDA definition. Accordingly, we need not, and so should not, 

decide whether Silva controls the appropriate construction of the 

CCCDA. Cf. Camelio, 137 F.3d at 672 (quoting United Mine Workers, 

383 U.S. at 726) (counseling avoidance of "[n]eedless decisions of 

state law").12

C. Unjust Enrichment & Massachusetts 93A 

Finally, we affirm dismissal of Philibotte's remaining 

claims for unjust enrichment and violations of Massachusetts 93A. 

A claim for unjust enrichment generally cannot stand 

where there is an existing, express contract, unless the contract 

                                                            

See CCCDA, Mass. Gen. Laws ch. 140D, § 1; RISSA, Mass. Gen. Laws 

ch. 255D, § 1. 

12 This is particularly true where, as here, existing state 

precedent governing RISSA may complicate the interaction between 

the Massachusetts exemption for the CCCDA and the scope of federal 

TILA coverage for this type of transaction. Cf. McKenna, 693 F.3d 

at 211 (noting the existence of "unsettled questions as to what 

federal rights are displaced and what others remain where, as is 

the case with Massachusetts, the Federal Reserve has exempted a 

state from various TILA's provisions on the grounds that state law 

establishes 'substantially similar' requirements"); McKenna v. 

First Horizon Home Loan Corp., 475 F.3d 418, 422 (1st Cir. 2007) 

(noting that CCCDA is to be construed similarly to TILA); Silva, 

912 N.E.2d at 951 (interpreting analogous definition under RISSA); 

Saia, 2012 WL 1145913, at *2 (determining whether lease of hot 

water heater was a "credit sale" under CCCDA without 

straightforwardly applying standard articulated in Silva). 
- 18 -

is not valid. See Okmyansky v. Herbalife Int'l of Am., Inc., 415 

F.3d 154, 162 (1st Cir. 2005) (collecting cases); see also Zarum 

v. Brass Mill Materials Corp., 134 N.E.2d 141, 143 (Mass. 1956). 

Philibotte contends that the contract's existence does not bar her 

claim because Nisource procured the contract by fraud. 

Specifically, she argues that Nisource mischaracterized the 

transaction as a lease when the transaction was, in fact, a 

disguised credit sale or retail installment sale to which 

disclosure requirements apply. But we have already rejected her 

contention that the lease was, in fact, a credit sale or retail 

installment sale agreement within the meaning of the relevant 

statutes. Because Philibotte does not allege any other fraud that 

might render the lease invalid, the existing lease agreement bars 

her claim for unjust enrichment.13 See Okmyansky, 415 F.3d at 162. 

Philibotte's 93A claim fails for a similar reason: the 

only basis she offers for her 93A claim is that "[a] violation of 

CCCDA or the RISSA is as a matter of law a violation of [93A]." 

See Mass. Gen. Laws ch. 140D, § 34. We have already rejected her 

contention that the lease violated either the CCCDA or RISSA, and 

so affirm dismissal of her 93A claim. 

                                                             13 Philibotte does not develop -- and so has waived -- any 

argument that the lease was a disguised conditional sale even if 

it does not meet the statutory definitions for (disguised) credit 

or retail installment sales under CCCDA and RISSA. See United 

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
- 19 -

Affirmed. Costs are assessed against Philibotte.