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COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
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EVOQUA WATER TECHNOLOGIES LLC,
Plaintiff, C.A. NO. 2084CV01086
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VEOLIA NORTH AMERICA, LLC on
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KENDALL GREEN ENERGY LLC
Third-Party Defendant.
VEOLIA NORTH AMERICA, LLC’S OPPOSITION TO EVOQUA WATER |
TECHNOLOGIES LLC’S MOTION FOR SUMMARY JUDGMENT
Pursuant to Mass. R. Civ. P. 56 and Rule 9A of the Superior Court Rules, Defendant and
Third-Party Plaintiff Veolia North America, LLC opposes the Motion for Summary Judgment
‘(the “Motion”) served by Plaintiff Evoqua Water Technologies LLC. The undisputed material
facts show that there is no basis for awarding judgment as a matter of law in favor of Evoqua
Water Technologies LLC. The breach of contract and quantum meruit claims are groundless
because the purported benefits that Evoqua Water Technologies LLC bestowed was for repairs |
performed on a water purification system that it sold to and installed for Third-Party Defendant
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Kendall Green Energy LLC. While Veolia North America, LLC and Kendall Green Energy LLC
were sister entities at that time, Veolia North America, LLC neither owned nor operated the
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water purification system or the plant where it was located. Therefore, there is no basis for it
Evoqua Water Technologies LLC’s claim that it bestowed a benefit on Veolia North America,
LLC. Any remuneration that Evoqua Water Technology LLC sought for the repair work was
resolved under a settlement agreement signed on July 31, 2017, which included a broad general
release to Kendall Green Energy LLC and its affiliates. Furthermore, there are no grounds for
Evoqua Water Technologies LLC to prevail under its claim pursuant to G. L. c. 93A (“Chapter a
93A”). The Chapter 93A claim wholly duplicates its breach of contract and quantum meruit
i
claims and Evoqua Water Technologies has not established any unfair or deceptive act
committed by Veolia North America, LLC. Furthermore, the Chapter 93A claim is equally
barred by the general release under the July 31, 2017 settlement agreement.
Overall, Veolia North America, LLC respectfully requests that the Court deny the
Motion. By cross-motion served simultancously herewith pursuant to Superior Court Rule 9A,
Veolia North America, LLC seeks summary judgment on all of Evoqua Water Technologies,
if
LLC’s claims.!
RELEVANT MATERIAL FACTS
The undisputed material facts show that Evoqua Water Technologies, LLC entered into a
purchase and sale agreement (“P&S Agreement”) with Kendall Green Energy LLC on February
25, 2015, whereby Evoqua installed a water purification system (the “System”) at the Kendall
Cogeneration Station (“Kendall Station”) located in Cambridge, Massachusetts. See Statement
of Facts (“SoF”) at 5. While Kendall Green Energy LLC is Veolia North America, LLC’s
i
' Pursuant to Rule 56(c) “[s]ummary judgment, when appropriate, may be rendered against the
moving party.” However, in order to preserve its right to have summary judgment considered by
the Court in its favor, Veolia North America, LLC serves a cross-motion for summary judgment
pursuant to Superior Court Rule 9A.
"
former sister entity, Veolia North America, LLC neither owned nor operated the Kendall Station
and the System. See SoF at J 23. Kendall Green Energy LLC is no longer a member of the
Veolia family of companies. See SoF at § 24.
The System was supposed to be a turnkey water treatment process. See SoF at 24.
However, by late 2016, the System started experiencing mechanical issues and Evoqua Water i
Technologies LLC was contacted to assess the issue and repair the system. See SoF at] 6. A
December 13, 2016, email exchange between Andrew Vincent on behalf of Evoqua Water
Technologies, LLC and Hans Tuneblom on behalf of Kendall Green Energy LLC confirms that it
was conveyed to Evoqua Water Technologies LLC that the repairs needed for the System should
be covered under the warranty terms under the P&S Agreement. See SoF at 125. Evoqua Water trit
Technologies LLC sharing its perspective concerning warranty coverage in January 2017 does
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not dispose of the fact that it was expected that the repair work would be performed under the
warranty embodied in the P&S Agreement.
The work performed on the system ended by June 2017 (see SoF at { 15) and a settlement
agreement was executed between Kendall Green Energy LLC and Evoqua Water Technologies
LLC on July 31, 2017. see SoF at { 27. According to the settlement agreement, the “Dispute”
addressed therein broadly involved “several matters arising out of the [P&S Agreement] ....”
See id. (emphasis added). see SoF at § 27. Additionally, the settlement agreement includes
provisions showing that Evoqua and its “Affiliates” release “Kendall and its Affiliates” from “all
claims . . . of whatever kind or nature, asserted or not asserted, whether known or unknown” that
Evoqua or its “Affiliates ... ever had, now have, hereafter can, shall or may have for, upon or by
any reason of any matter, cause or things whatsoever prior to the Effective Date.” Jd. It was
understood that payment for services rendered by Evoqua Water Technologies LLC to repair the
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System was embodied in the final settlement amount due ftom Kendall Green Energy LLC under
the settlement agreement. see SoF at { 28.
STANDARD |
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Under Mass. R. Civ. P. 56(c), summary judgment may be granted only when there are no
genuine issues as to any material fact and where the moving party is entitled to judgment as a
matter of law. See Cassesso v. Comm’r of Correction, 390 Mass. 419, 422 (1983). Therefore,
summary judgment is not appropriate where there are genuine issues of material fact or the
undisputed material facts do not show that the movant is entitled to judgment as a matter of law.
Summary judgment, when appropriate, may be rendered against the moving party. See Mass. R.
Civ. P. S6(c).
ARGUMENT il
IL Evoqua Water Technologies LLC is Not Entitled to Summary Judgment Under
Its Breach of Contract and Quantum Meruit Claims
Evoqua Water Technologies LLC is not entitled to summary judgment under its breach of
contract and quantum meruit claims because the undisputed material facts show that no services
were rendered to Veolia North America, LLC and, nevertheless, all claims concerning payment
for repairs performed on the System are released under the settlement agreement signed in July iy!
2017.
"
In this matter, it is undisputed that (1) the System was purchased by Kendall Green
Energy LLC under the P&S Agreement executed in February 2015 (SoF at { 5); (2) the System
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experienced mechanical issues in late 2016 and Evoqua Water Technologies LLC was requested
to perform repair work covered by the P&S Agreement’s warranty terms (SoF at ff 6, 25); (3) In II
"
January 2017 Evoqua Water Technologies LLC asserted that the repair work for the System was
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not covered under the P&S Agreement’s warranty terms but performed work up until June 2017
(SoF at {J 7, 15); and (4) a settlement agreement was executed on July 31, 2017, between
Kendall Green Energy LLC and Evoqua Water Technologies LLC that included a broad release
from Evoqua Water Technologies LLC (SoF at ¥ 27). Given the foregoing, there is no basis for
Evoqua Water Technologies LLC’s claims that the purchase orders and invoices referenced in its
Motion show that it had contracts with Veolia North America, LLC. The undisputed material
facts demonstrate that the repair services were rendered on a System purchased by Kendall
Green Energy LLC and therefore, the purported benefit accrued to Kendall Green Energy LLC.
Nevertheless, Evoqua Water Technologiés LLC’s claims are unequivocally barred by the
general release embodied in the settlement agreement. The settlement agreement provides that
Evoqua Water Technologies LLC release Kendall Green Energy LLC and its affiliates* from any
and all claims of whatever nature: 4
Evoqua and its Affiliates do hereby release, remise, acquit and discharge (i) Kendall
and its Affiliates and their successors and assigns and (ii) their respective officers,
directors, employees, agents, and representatives, from any and all claims, ‘|
demands, damages, debts, liabilities, actions, promises, causes of actions or suits of
whatever kinds or nature, asserts or not asserted, whether known or unknown, in
law or equity, which Evoqua, its Affiliates, successors, assigns, agents or
representatives ever had, now have, hereafter can, shall or may have for, upon or
by reason of any matter, cause or thing whatsoever prior to the Effective Date.
See SoF at J 27, Ex. 19 at § 2.1.
Massachusetts has a policy of “giving effect to general releases, even if the parties did not
have in mind at the time all of the matters that might be covered.” MacDonald v. Jenzabar, Inc.,
—. _—
? The settlement agreement provides that “affiliates” means, “as to a particular person, any other
Persons now or in the future controlling, controlled by or under common control with such
particular Person.” See SoF at 27, Ex. 19 at § 1.1. Therefore, Veolia North America, LLC is
covered under the release terms because it was affiliated with Kendall Green Energy LLC at the |
time as a sister entity. |
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92 Mass. App. Ct. 630, 636 (2018). Therefore, Massachusetts “courts have counselled that any h
exceptions to, or reservation of rights in, a general release should be stated in clear terms.” Id.
“As is often the case, a release may be prompted by the settlement of a specific dispute or
resolution of a specific issue, but broad wording in the release operates to settle all other,
unrelated matters, even if they were not specifically in the parties’ minds at the time the release
was executed.” Eck v, Godbout, 444 Mass. 724, 728 (2005).
Here, the undisputed material facts show that repair work was performed up until June
2017 and the settlement agreement was executed later on July 31, 2017. See SoF at ff 15, 27.
The general release from Evoqua Water Technologies LLC under the settlement agreement is
unconditional and releases Kendall Green Energy LLC and its affiliates (including Veolia North
America, LLC) from any and all claims that accrued before the Effective Date. See SoF at § 27,
Ex. 19 at § 2.1. Therefore, any and all claims concerning payment for work performed on-the
System prior to the effective date are undoubtedly released.
Evoqua Water Technologies LLC’s efforts to revise the terms of the settlement
agreement through the Motion fails. First, the parol evidence rule bars Evoqua Water
Technologies LLC from attempting to introduce evidence that contradicts the express terms of
the settlement agreement. See Sound Techniques, Inc. v. Hoffman, 737 N.E.2d 920, 923, 50
Mass. App. Ct. 425, 429 (2000) (“The rule that written agreements may not be varied or added to
by parol evidence of antecedent or contemporaneous negotiations is not one merely of evidence,
but is a rule of substantive law.”). Additionally, Evoqua Water Technologies LLC’s efforts are
barred by the merger clause under the settlement agreement because it provides that “[a]ll prior q
discussions, written communications, negotiations with regard to the resolution of this matter
have been merged and integrated into and are superseded by [the] Settlement Agreement.” See
| I
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SoF at § 27, Ex. 19 at § 7.5. Even so, the scope of the issues that were the subject of the |
settlement agreement has no bearing on the enforceability of a broad general release. Indeed, the
Massachusetts Supreme Judicial Court has explained that “a release may be prompted by the
settlement of a specific dispute or resolution of a specific issue, but broad wording in the release
operates to settle all other, unrelated matters, even if they were not specifically in the parties
minds at the time the release was executed.” See Eck v. Godbout, 444 Mass. 724, 728 (2005).
Given the foregoing, Evoqua Water Technologies LLC’s claims for breach of contract
and quantum meruit are barred by the general releases embodied in the settlement agreement and
Veolia North America, LLC is entitled to summary judgment on those claims. 1
I. Evoqua Water Technologies LLC is Not Entitled to Summary Judgment Under
Its Chapter 93A claim
Evoqua Water Technologies LLC is not entitled to summary judgment under its Chapter
93 claim because Evoqua Water Technologies LLC’s general release under the settlement
agreement bars this claim. See First Mut., Inc. v. Rive Gauche Apparel Distribution, Ltd, 1990
WL 235422, at *3 (D.Mass.,1990) (“[W]here the dispute is essentially a private one arising
between two commercial entities, and where the [Chapter 93A] claims merely supplement
private claims, a party may waive its rights under [Chapter 93A] by contract.”) (citing Canal |
Elec. Co. v. Westinghouse Elec. Corp., 406 Mass. 369, 379 (1990)).
Additionally, Evoqua Water Technologies LLC has not made a showing of actionable
|
conduct under Chapter 93A notwithstanding the general release, Although Chapter 93A does not |
define the meaning of “unfair” or “deceptive,” Massachusetts courts have stated that “not every
1
unlawful act is automatically an [unfair or deceptive] one under G L. c, 93A.” It is well accepted
that a mere breach of contract, without more, does not amount to a claim under Chapter 93A, §
11, See Madan v. Royal Indem. Co., 26 Mass. App. Ct. 756, 762 (1989); accord City of Beverly
"
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“Il
v. Bass River Golf Mgmt., Inc., 92 Mass. App. Ct. 595, 606 (2018) (“Appellate courts have
consistently held that a mere breach of contract, without more, does not amount to a violation of
G. L. ¢. 93A.”); Declude, Inc. v. Perry, 593 F. Supp. 2d 290, 297 (D. Mass. 2008) (dismissing a
|
claim under G. L. c. 93A, § 11 because it “alleges nothing more than a mere breach of contract
and copyright infringement”). Indeed, a genuine dispute concerning a party’s contractual
obligations does not give rise to a claim under Chapter 93A. See Duclersaint v. Fed. Nat. Mortg.
Ass'n, 427 Mass. 809, 814 (1998) (“[A] good faith dispute as to whether money is owed, or
performance of some Kind is due, is not the stuff of which ac. 93A claim is made.”); Oliver v.
Bank of Am., N.A., No. CIV.A. 12-12186-PBS, 2013 WL 3732877, at *6 (D. Mass. June 17,
2013) (“A good faith dispute regarding whether to honor a promise and forgive the mortgage
fails to rise to a chapter 93A violation.”).
Here, Evoqua Water Technologies LLC’s chapter 93A claim rests solely on its assertion that
it is due payment for services rendered to repair the System. Jt has not made a separate showing il
of unfair or deceptive conduct by Veolia North America, LLC that is actionable under Chapter
93A. The undisputed material facts show that in late 2016, warranty coverage was requested
I
(SoF at ¥ 25) but Evoqua Water Technologies LLC disputed that it was obligated to cover the
repairs under warranty in January 2017. See SoF at 7. Furthermore, the undisputed material
facts show that the dispute concerning whether Evoqua Water Technologies LLC should be paid
‘|
for repair work on the System or whether the repairs were covered by the warranty terms under
the P&S Agreement was eventually resolved through a settlement agreement executed on July
31,2017. See SoF at {{[ 27-28. Therefore, there are no grounds for Evoqua Water Technologies
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LLC to obtain summary judgment against Veolia North America, LLC under Chapter 93A.
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CONCLUSION {|hh
For the foregoing reasons, Veolia North America, LLC respectfully requests that the
Court deny Evoqua Water Technologies LLC’s Motion and the Court enter summary judgment il
in Veolia North America, LLC’s favor on all of Evoqua Water Technologies LLC’s claims
pursuant to Mass. R. Civ. P. 56. Through these proceedings, Evoqua Water Technologies LLC
attempts to circumvent its 2017 settlement agreement and attempts to pursue groundless claims
against a party that neither owned nor operated the water purification system that is at the heart
of Evoqua Water Technologies LLC’s claims.
The undisputed material facts show that Evoqua Water Technologies LLC sold a water
purification system to Veolia North America, LLC’s former sister entity Kendall Green Energy
LLC. After the System started experiencing mechanical errors, Evoqua Water Technologies
LLC was requested to perform repair work to get the system running again but the parties
disputed whether the repair costs should be covered by the warranty embodied in the P&S
Agreement. In the end, the parties settled their differences by agreement on July 31, 2017, and
Evoqua Water Technologies LLC executed an unconditional general release for Kendall Green
Energy LLC and its affiliates. Therefore, there is no basis for entry of judgment as a matter of
if
law in favor of Evoqua Water Technologies LLC and the facts show that summary judgment
should be entered in Veolia North America, LLC’s favor.
Vy
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Dated: September 16,2021 Respectfully submitted,
VEOLIA NORTH AMERICA, LLC,
By its Attorney,
4s/ Tarae 1. Howell
Tarae L. Howell (BBO No. 679500)
NIXON PEABODY LLP
Exchange Place
53 State Street
Boston, MA 02109
Tel: (617) 345-1000
Fax: (617) 345-1300
thowell@nixonpeabody.com
CERTIFICATE OF SERVICE
I hereby certify that on September 16, 2021, a true and correct copy of the foregoing
document was served by email on counsel of record for Evoqua Water Technologies LLC and
Kendall Green Energy LLC.
¢s/ Tarae L. Howell
Tarae L. Howell
ny
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Preview
Ip | COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT | | Wy EVOQUA WATER TECHNOLOGIES LLC, Plaintiff, C.A. NO. 2084CV01086 v VEOLIA NORTH AMERICA, LLC on Ox 22 me so Fe Defendant. am ar oF Qe c me zo po >m am VEOLIA NORTH AMERICA, LLC, on= ww | 42 ee 70 S= moa Third-Party Plaintiff, wh moe Ie v KENDALL GREEN ENERGY LLC Third-Party Defendant. VEOLIA NORTH AMERICA, LLC’S OPPOSITION TO EVOQUA WATER | TECHNOLOGIES LLC’S MOTION FOR SUMMARY JUDGMENT Pursuant to Mass. R. Civ. P. 56 and Rule 9A of the Superior Court Rules, Defendant and Third-Party Plaintiff Veolia North America, LLC opposes the Motion for Summary Judgment ‘(the “Motion”) served by Plaintiff Evoqua Water Technologies LLC. The undisputed material facts show that there is no basis for awarding judgment as a matter of law in favor of Evoqua Water Technologies LLC. The breach of contract and quantum meruit claims are groundless because the purported benefits that Evoqua Water Technologies LLC bestowed was for repairs | performed on a water purification system that it sold to and installed for Third-Party Defendant "Il Kendall Green Energy LLC. While Veolia North America, LLC and Kendall Green Energy LLC were sister entities at that time, Veolia North America, LLC neither owned nor operated the 1 i| | i i wh Ii Wy water purification system or the plant where it was located. Therefore, there is no basis for it Evoqua Water Technologies LLC’s claim that it bestowed a benefit on Veolia North America, LLC. Any remuneration that Evoqua Water Technology LLC sought for the repair work was resolved under a settlement agreement signed on July 31, 2017, which included a broad general release to Kendall Green Energy LLC and its affiliates. Furthermore, there are no grounds for Evoqua Water Technologies LLC to prevail under its claim pursuant to G. L. c. 93A (“Chapter a 93A”). The Chapter 93A claim wholly duplicates its breach of contract and quantum meruit i claims and Evoqua Water Technologies has not established any unfair or deceptive act committed by Veolia North America, LLC. Furthermore, the Chapter 93A claim is equally barred by the general release under the July 31, 2017 settlement agreement. Overall, Veolia North America, LLC respectfully requests that the Court deny the Motion. By cross-motion served simultancously herewith pursuant to Superior Court Rule 9A, Veolia North America, LLC seeks summary judgment on all of Evoqua Water Technologies, if LLC’s claims.! RELEVANT MATERIAL FACTS The undisputed material facts show that Evoqua Water Technologies, LLC entered into a purchase and sale agreement (“P&S Agreement”) with Kendall Green Energy LLC on February 25, 2015, whereby Evoqua installed a water purification system (the “System”) at the Kendall Cogeneration Station (“Kendall Station”) located in Cambridge, Massachusetts. See Statement of Facts (“SoF”) at 5. While Kendall Green Energy LLC is Veolia North America, LLC’s i ' Pursuant to Rule 56(c) “[s]ummary judgment, when appropriate, may be rendered against the moving party.” However, in order to preserve its right to have summary judgment considered by the Court in its favor, Veolia North America, LLC serves a cross-motion for summary judgment pursuant to Superior Court Rule 9A. " former sister entity, Veolia North America, LLC neither owned nor operated the Kendall Station and the System. See SoF at J 23. Kendall Green Energy LLC is no longer a member of the Veolia family of companies. See SoF at § 24. The System was supposed to be a turnkey water treatment process. See SoF at 24. However, by late 2016, the System started experiencing mechanical issues and Evoqua Water i Technologies LLC was contacted to assess the issue and repair the system. See SoF at] 6. A December 13, 2016, email exchange between Andrew Vincent on behalf of Evoqua Water Technologies, LLC and Hans Tuneblom on behalf of Kendall Green Energy LLC confirms that it was conveyed to Evoqua Water Technologies LLC that the repairs needed for the System should be covered under the warranty terms under the P&S Agreement. See SoF at 125. Evoqua Water trit Technologies LLC sharing its perspective concerning warranty coverage in January 2017 does il WW not dispose of the fact that it was expected that the repair work would be performed under the warranty embodied in the P&S Agreement. The work performed on the system ended by June 2017 (see SoF at { 15) and a settlement agreement was executed between Kendall Green Energy LLC and Evoqua Water Technologies LLC on July 31, 2017. see SoF at { 27. According to the settlement agreement, the “Dispute” addressed therein broadly involved “several matters arising out of the [P&S Agreement] ....” See id. (emphasis added). see SoF at § 27. Additionally, the settlement agreement includes provisions showing that Evoqua and its “Affiliates” release “Kendall and its Affiliates” from “all claims . . . of whatever kind or nature, asserted or not asserted, whether known or unknown” that Evoqua or its “Affiliates ... ever had, now have, hereafter can, shall or may have for, upon or by any reason of any matter, cause or things whatsoever prior to the Effective Date.” Jd. It was understood that payment for services rendered by Evoqua Water Technologies LLC to repair the a i | fy | 4 System was embodied in the final settlement amount due ftom Kendall Green Energy LLC under the settlement agreement. see SoF at { 28. STANDARD | | a Under Mass. R. Civ. P. 56(c), summary judgment may be granted only when there are no genuine issues as to any material fact and where the moving party is entitled to judgment as a matter of law. See Cassesso v. Comm’r of Correction, 390 Mass. 419, 422 (1983). Therefore, summary judgment is not appropriate where there are genuine issues of material fact or the undisputed material facts do not show that the movant is entitled to judgment as a matter of law. Summary judgment, when appropriate, may be rendered against the moving party. See Mass. R. Civ. P. S6(c). ARGUMENT il IL Evoqua Water Technologies LLC is Not Entitled to Summary Judgment Under Its Breach of Contract and Quantum Meruit Claims Evoqua Water Technologies LLC is not entitled to summary judgment under its breach of contract and quantum meruit claims because the undisputed material facts show that no services were rendered to Veolia North America, LLC and, nevertheless, all claims concerning payment for repairs performed on the System are released under the settlement agreement signed in July iy! 2017. " In this matter, it is undisputed that (1) the System was purchased by Kendall Green Energy LLC under the P&S Agreement executed in February 2015 (SoF at { 5); (2) the System |: experienced mechanical issues in late 2016 and Evoqua Water Technologies LLC was requested to perform repair work covered by the P&S Agreement’s warranty terms (SoF at ff 6, 25); (3) In II " January 2017 Evoqua Water Technologies LLC asserted that the repair work for the System was ma "I IT not covered under the P&S Agreement’s warranty terms but performed work up until June 2017 (SoF at {J 7, 15); and (4) a settlement agreement was executed on July 31, 2017, between Kendall Green Energy LLC and Evoqua Water Technologies LLC that included a broad release from Evoqua Water Technologies LLC (SoF at ¥ 27). Given the foregoing, there is no basis for Evoqua Water Technologies LLC’s claims that the purchase orders and invoices referenced in its Motion show that it had contracts with Veolia North America, LLC. The undisputed material facts demonstrate that the repair services were rendered on a System purchased by Kendall Green Energy LLC and therefore, the purported benefit accrued to Kendall Green Energy LLC. Nevertheless, Evoqua Water Technologiés LLC’s claims are unequivocally barred by the general release embodied in the settlement agreement. The settlement agreement provides that Evoqua Water Technologies LLC release Kendall Green Energy LLC and its affiliates* from any and all claims of whatever nature: 4 Evoqua and its Affiliates do hereby release, remise, acquit and discharge (i) Kendall and its Affiliates and their successors and assigns and (ii) their respective officers, directors, employees, agents, and representatives, from any and all claims, ‘| demands, damages, debts, liabilities, actions, promises, causes of actions or suits of whatever kinds or nature, asserts or not asserted, whether known or unknown, in law or equity, which Evoqua, its Affiliates, successors, assigns, agents or representatives ever had, now have, hereafter can, shall or may have for, upon or by reason of any matter, cause or thing whatsoever prior to the Effective Date. See SoF at J 27, Ex. 19 at § 2.1. Massachusetts has a policy of “giving effect to general releases, even if the parties did not have in mind at the time all of the matters that might be covered.” MacDonald v. Jenzabar, Inc., —. _— ? The settlement agreement provides that “affiliates” means, “as to a particular person, any other Persons now or in the future controlling, controlled by or under common control with such particular Person.” See SoF at 27, Ex. 19 at § 1.1. Therefore, Veolia North America, LLC is covered under the release terms because it was affiliated with Kendall Green Energy LLC at the | time as a sister entity. | I ‘il I 92 Mass. App. Ct. 630, 636 (2018). Therefore, Massachusetts “courts have counselled that any h exceptions to, or reservation of rights in, a general release should be stated in clear terms.” Id. “As is often the case, a release may be prompted by the settlement of a specific dispute or resolution of a specific issue, but broad wording in the release operates to settle all other, unrelated matters, even if they were not specifically in the parties’ minds at the time the release was executed.” Eck v, Godbout, 444 Mass. 724, 728 (2005). Here, the undisputed material facts show that repair work was performed up until June 2017 and the settlement agreement was executed later on July 31, 2017. See SoF at ff 15, 27. The general release from Evoqua Water Technologies LLC under the settlement agreement is unconditional and releases Kendall Green Energy LLC and its affiliates (including Veolia North America, LLC) from any and all claims that accrued before the Effective Date. See SoF at § 27, Ex. 19 at § 2.1. Therefore, any and all claims concerning payment for work performed on-the System prior to the effective date are undoubtedly released. Evoqua Water Technologies LLC’s efforts to revise the terms of the settlement agreement through the Motion fails. First, the parol evidence rule bars Evoqua Water Technologies LLC from attempting to introduce evidence that contradicts the express terms of the settlement agreement. See Sound Techniques, Inc. v. Hoffman, 737 N.E.2d 920, 923, 50 Mass. App. Ct. 425, 429 (2000) (“The rule that written agreements may not be varied or added to by parol evidence of antecedent or contemporaneous negotiations is not one merely of evidence, but is a rule of substantive law.”). Additionally, Evoqua Water Technologies LLC’s efforts are barred by the merger clause under the settlement agreement because it provides that “[a]ll prior q discussions, written communications, negotiations with regard to the resolution of this matter have been merged and integrated into and are superseded by [the] Settlement Agreement.” See | I tl | hy SoF at § 27, Ex. 19 at § 7.5. Even so, the scope of the issues that were the subject of the | settlement agreement has no bearing on the enforceability of a broad general release. Indeed, the Massachusetts Supreme Judicial Court has explained that “a release may be prompted by the settlement of a specific dispute or resolution of a specific issue, but broad wording in the release operates to settle all other, unrelated matters, even if they were not specifically in the parties minds at the time the release was executed.” See Eck v. Godbout, 444 Mass. 724, 728 (2005). Given the foregoing, Evoqua Water Technologies LLC’s claims for breach of contract and quantum meruit are barred by the general releases embodied in the settlement agreement and Veolia North America, LLC is entitled to summary judgment on those claims. 1 I. Evoqua Water Technologies LLC is Not Entitled to Summary Judgment Under Its Chapter 93A claim Evoqua Water Technologies LLC is not entitled to summary judgment under its Chapter 93 claim because Evoqua Water Technologies LLC’s general release under the settlement agreement bars this claim. See First Mut., Inc. v. Rive Gauche Apparel Distribution, Ltd, 1990 WL 235422, at *3 (D.Mass.,1990) (“[W]here the dispute is essentially a private one arising between two commercial entities, and where the [Chapter 93A] claims merely supplement private claims, a party may waive its rights under [Chapter 93A] by contract.”) (citing Canal | Elec. Co. v. Westinghouse Elec. Corp., 406 Mass. 369, 379 (1990)). Additionally, Evoqua Water Technologies LLC has not made a showing of actionable | conduct under Chapter 93A notwithstanding the general release, Although Chapter 93A does not | define the meaning of “unfair” or “deceptive,” Massachusetts courts have stated that “not every 1 unlawful act is automatically an [unfair or deceptive] one under G L. c, 93A.” It is well accepted that a mere breach of contract, without more, does not amount to a claim under Chapter 93A, § 11, See Madan v. Royal Indem. Co., 26 Mass. App. Ct. 756, 762 (1989); accord City of Beverly " 7 | | “Il v. Bass River Golf Mgmt., Inc., 92 Mass. App. Ct. 595, 606 (2018) (“Appellate courts have consistently held that a mere breach of contract, without more, does not amount to a violation of G. L. ¢. 93A.”); Declude, Inc. v. Perry, 593 F. Supp. 2d 290, 297 (D. Mass. 2008) (dismissing a | claim under G. L. c. 93A, § 11 because it “alleges nothing more than a mere breach of contract and copyright infringement”). Indeed, a genuine dispute concerning a party’s contractual obligations does not give rise to a claim under Chapter 93A. See Duclersaint v. Fed. Nat. Mortg. Ass'n, 427 Mass. 809, 814 (1998) (“[A] good faith dispute as to whether money is owed, or performance of some Kind is due, is not the stuff of which ac. 93A claim is made.”); Oliver v. Bank of Am., N.A., No. CIV.A. 12-12186-PBS, 2013 WL 3732877, at *6 (D. Mass. June 17, 2013) (“A good faith dispute regarding whether to honor a promise and forgive the mortgage fails to rise to a chapter 93A violation.”). Here, Evoqua Water Technologies LLC’s chapter 93A claim rests solely on its assertion that it is due payment for services rendered to repair the System. Jt has not made a separate showing il of unfair or deceptive conduct by Veolia North America, LLC that is actionable under Chapter 93A. The undisputed material facts show that in late 2016, warranty coverage was requested I (SoF at ¥ 25) but Evoqua Water Technologies LLC disputed that it was obligated to cover the repairs under warranty in January 2017. See SoF at 7. Furthermore, the undisputed material facts show that the dispute concerning whether Evoqua Water Technologies LLC should be paid ‘| for repair work on the System or whether the repairs were covered by the warranty terms under the P&S Agreement was eventually resolved through a settlement agreement executed on July 31,2017. See SoF at {{[ 27-28. Therefore, there are no grounds for Evoqua Water Technologies I| || LLC to obtain summary judgment against Veolia North America, LLC under Chapter 93A. " i| i CONCLUSION {|hh For the foregoing reasons, Veolia North America, LLC respectfully requests that the Court deny Evoqua Water Technologies LLC’s Motion and the Court enter summary judgment il in Veolia North America, LLC’s favor on all of Evoqua Water Technologies LLC’s claims pursuant to Mass. R. Civ. P. 56. Through these proceedings, Evoqua Water Technologies LLC attempts to circumvent its 2017 settlement agreement and attempts to pursue groundless claims against a party that neither owned nor operated the water purification system that is at the heart of Evoqua Water Technologies LLC’s claims. The undisputed material facts show that Evoqua Water Technologies LLC sold a water purification system to Veolia North America, LLC’s former sister entity Kendall Green Energy LLC. After the System started experiencing mechanical errors, Evoqua Water Technologies LLC was requested to perform repair work to get the system running again but the parties disputed whether the repair costs should be covered by the warranty embodied in the P&S Agreement. In the end, the parties settled their differences by agreement on July 31, 2017, and Evoqua Water Technologies LLC executed an unconditional general release for Kendall Green Energy LLC and its affiliates. Therefore, there is no basis for entry of judgment as a matter of if law in favor of Evoqua Water Technologies LLC and the facts show that summary judgment should be entered in Veolia North America, LLC’s favor. Vy i! I Ii yf Dated: September 16,2021 Respectfully submitted, VEOLIA NORTH AMERICA, LLC, By its Attorney, 4s/ Tarae 1. Howell Tarae L. Howell (BBO No. 679500) NIXON PEABODY LLP Exchange Place 53 State Street Boston, MA 02109 Tel: (617) 345-1000 Fax: (617) 345-1300 thowell@nixonpeabody.com CERTIFICATE OF SERVICE I hereby certify that on September 16, 2021, a true and correct copy of the foregoing document was served by email on counsel of record for Evoqua Water Technologies LLC and Kendall Green Energy LLC. ¢s/ Tarae L. Howell Tarae L. Howell ny || ‘I l 10 ‘