Motion to Transfer in Elizabeth Grady Face First, Inc. D/B/A The Elizabeth Grady Company vs. Cynosure, Inc. et al| Trellis.Law

On December 08, 2020 a Motion-Secondary was filed involving a dispute between Elizabeth Grady Face First, Inc. D B A The Elizabeth Grady Company, and Ahitow, Blake, Cynosure, Inc., Thornal, Kevin, for Torts in the District Court of Middlesex County.

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COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, SS. SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT

ELIZABETH GRADY FACE FIRST INC.
D/B/A THE ELIZABETH GRADY
COMPANY,

Plaintiff, CIVIL ACTION NO. 2081-CV-02967

CYNOSURE, INC., and
KEVIN THORNAL,
3/4/2021
Defendants.

CYNOSURE, LLC’S AND KEVIN THORNAL’S JOINT REPLY IN SUPPORT
OF THEIR MOTION TO TRANSFER TO THE BUSINESS LITIGATION SESSION

Plaintiff offers no valid reason against transfer to the Business Litigation Session. First,

Plaintiff claims that “this is not a complex case.” Opp’n at 2. But it is already clear this will be a

hard-fought litigation that will involve significant motions practice and require close case

management. See Admin. Dir. No. 09-1 (cases are appropriate for BLS based on their

“complexity . . . and the need for substantial case management”). Both Defendants have filed

motions to dismiss. See Ex. A (Cynosure, LLC’s motion to dismiss); Ex. B (Mr. Kevin Thornal’s

motion to dismiss). Plaintiff opposed both the motions and filed an amended complaint,

prompting the need for a second round of motions to dismiss. See Ex. C (Plaintiff’s Omnibus

Opposition). A dispute has already arisen about whether discovery should be stayed while those

motions are heard. The procedural complexity evident even at this nascent stage of the case

demonstrates that transfer to the BLS is warranted.
Second, Plaintiff argues that venue is proper in Middlesex County. But that misses the

point. Plaintiff does not dispute that venue is also proper in Suffolk County. The Court therefore

has ample discretion to transfer the case to the BLS, which is particularly suited to handle this

complex commercial matter.

CONCLUSION

For the foregoing reasons, Cynosure and Mr. Thornal respectfully request that the Court

grant their Motion to Transfer the action to the BLS.

Respectfully submitted,

/s / Daniel Patrick Tighe /s/ Michael J. Pineault
Daniel Patrick Tighe (BBO No. 556583) Michael Pineault (BBO No. 555314)
Peter Erich Gelhaar (BBO No. 188310) ANDERSON & KREIGER LLP
DONNELLY, CONROY & GELHAAR, LLP 50 Milk Street, 21st Floor
260 Franklin Street, Suite 1600 Boston, MA 02109
Boston, MA 02110 mpineault@andersonkreiger.com
T: +1 617.720.2880 T: +1 617.621.6578
dpt@dcglaw.com F: +1 617.621.6619
peg@dcglaw.com
Daniel S. Pariser
Counsel for Defendant Kevin Thornal Jocelyn A. Wiesner
ARNOLD & PORTER KAYE SCHOLER, LLP
Dated: March 4, 2021 601 Massachusetts Ave., NW
Washington, D.C. 20001
daniel.pariser@arnoldporter.com
jocelyn.wiesner@arnoldporter.com
T: +1 202.942.5000
F: +1 202.942.5999

Counsel for Cynosure, LLC

Dated: March 4, 2021

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CERTIFICATE OF SERVICE

I hereby certify that a true copy of the above document was served upon the following
counsel of record for the parties by e-mail and by first class mail on March 4, 2021.

William A. Zucker (BBO No. 541230)
Nicholas W. Allen (BBO No. 663409)
MCCARTER & ENGLISH, LLP
265 Franklin Street,
Boston, MA 02110-3113
T: +1 617.449.6500
wzucker@mccarter.com
nallen@mccarter.com

Counsel for Plaintiff

Daniel Patrick Tighe, Esq. (BBO No. 556583)
Peter Erich Gelhaar, Esq. (BBO No. 188310)
DONNELLY, CONROY & GELHAAR, LLP
260 Franklin Street, Suite 1600
Boston, MA 02110
T: +1 617.720.2880
dpt@dcglaw.com
peg@dcglaw.com

Counsel for Defendant Kevin Thornal

/s/Jocelyn Wiesner

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Exhibit A
COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, SS. SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT

ELIZABETH GRADY FACE FIRST INC.
D/B/A THE ELIZABETH GRADY
COMPANY,

Plaintiff, CIVIL ACTION NO. 2081-CV-02967

CYNOSURE, INC., and
KEVIN THORNAL,

Defendants.

MOTION OF DEFENDANT CYNOSURE, LLC
TO DISMISS PLAINTIFF’S COMPLAINT

(HEARING REQUESTED)

Defendant Cynosure, LLC (f/k/a Cynosure, Inc.) (“Cynosure”) respectfully moves to

dismiss the Complaint filed against it by Plaintiff Elizabeth Grady Face First Inc. pursuant to

Mass. R. Civ. P. 12(b)(6).

As grounds, Cynosure states that Plaintiff impermissibly seeks to disguise what is, in

effect, a breach of contract action as purportedly involving claims for fraud/misrepresentation,

violation of Mass. Gen. Law Ch. 93A § 11, and promissory estoppel. Plaintiff presumably seeks

to do so because any contract claim would be barred by the plain terms of the parties’ written

agreement. As a matter of law, Plaintiff cannot escape the terms of its agreement with Cynosure

by attempting to transmogrify a legally deficient contract action into claims ostensibly sounding

in fraud, 93A, or promissory estoppel.
More specifically, Plaintiff cannot predicate a fraud claim on a mere breach of contract ,

and it has failed to plead any extra-contractual misconduct with sufficient particularity to sustain

a claim of fraud. Plaintiff likewise cannot recover consequential damages under chapter 93A for

what is, in essence, a contractual claim between two private and sophisticated parties. Finally , a

claim for promissory estoppel does not lie where, as here, the parties intended that a written

contract would govern the subject matter of the promise at issue.

For these reasons, among others, Cynosure respectfully requests that Plaintiff’s

Complaint against Cynosure be dismissed in its entirety.

In further support of its motion, Cynosure submits the accompanying memorandum of

law and Declaration of Jocelyn Wiesner (with exhibits).

Dated: January 29, 2021
Respectfully submitted,

/s/Michael Pineault
Michael Pineault (BBO No. 555314)
ANDERSON & KREIGER LLP
50 Milk Street, 21st Floor
Boston, MA 02109
mpineault@andersonkreiger.com
T: +1 617.621.6578
F: +1 617.621.6619

Daniel S. Pariser (pro hac vice to be filed)
Jocelyn A. Wiesner (pro hac vice to be filed)
ARNOLD & PORTER KAYE SCHOLER LLP
601 Massachusetts Ave., NW
Washington, D.C. 20001
daniel.pariser@arnoldporter.com
jocelyn.wiesner@arnoldporter.com
T: +1 202.942.5000
F: +1 202.942.5999

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REQUEST FOR HEARING

Defendant Cynosure respectfully requests a hearing on this motion pursuant to Superior
Court Rule 9A(c)(2) and (c)(3).

RULE 9C CERTIFICATION

I, Jocelyn A. Wiesner, certify pursuant to Superior Court Rule 9C that I met and
conferred with Attorney William Zucker, counsel for the plaintiff, on or about January 18 and
January 20, 2021 to discuss the issues raised by this motion. The parties were unable to reac h
agreement on the motion.

/s/Jocelyn Wiesner

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the above document was served upon the following
counsel of record for the parties by e-mail and by first class mail on January 29, 2021:

William A. Zucker (BBO No. 541230)
Nicholas W. Allen (BBO No. 663409)
MCCARTER & ENGLISH, LLP
265 Franklin Street,
Boston, MA 02110-3113
T: +1 617.449.6500
wzucker@mccarter.com
nallen@mccarter.com

Counsel for Plaintiff

Counsel for Defendant Kevin Thornal

/s/Jocelyn Wiesner

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COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, SS. SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT

ELIZABETH GRADY FACE FIRST INC.
D/B/A THE ELIZABETH GRADY
COMPANY,

Plaintiff, CIVIL ACTION NO. 2081-CV-02967

CYNOSURE, INC., and
KEVIN THORNAL,

Defendants.

MEMORANDUM OF DEFENDANT CYNOSURE, LLC
IN SUPPORT OF MOTION TO DISMISS
PLAINTIFF ELIZABETH GRADY FACE FIRST INC.’S COMPLAINT

Defendant Cynosure, LLC (f/k/a Cynosure, Inc.) (“Cynosure”) submits this memorandum

in support of its motion to dismiss Plaintiff Elizabeth Grady Face First Inc.’s (d/b/a The

Elizabeth Grady Company) (“Plaintiff”) Complaint against Cynosure pursuant to Massachusetts

Rule of Civil Procedure 12(b)(6).

PRELIMINARY STATEMENT

While couched in theories of fraud and deception, Plaintiff has brought nothing more

than a disguised breach of contract claim that is barred as a matter of law by the plain terms of

the contract.

Plaintiff, a sophisticated and successful multi-location business, entered into a

commercial arrangement with Cynosure, a medical device manufacturer, documented by a

written contract. Under that agreement, Cynosure had every incentive for the deal to succeed
and none for it to fail: Cynosure agreed to pay all of the up-front costs involved in supplying

Plaintiff’s brick-and-mortar stores with dozens of medical devices; installing and servicing those

devices; training Plaintiff’s employees on how to operate the devices; and providing

commercially reasonable marketing services. Under the terms of the agreement, Plaintiff paid no

money to lease the devices—Cynosure would only profit by sharing in the proceeds if Plaintif f

profited. Incredibly, Plaintiff now claims it was intentionally duped into this arrangement by

Cynosure—even though Cynosure only stood to lose by fronting the relevant costs and tying its

fate to Plaintiff’s success. Plaintiff’s theory defies common sense.

In reality, this is a commercial breach of contract case predicated on Plaintiff’s assertion

that Cynosure failed to provide certain marketing services that were required by the terms of the

parties’ written agreement. But that same contract also expressly disclaimed any claims for lost

profits, as well as incidental, consequential, or special damages. See, e.g., Declaration of J.

Wiesner (“Wiesner Decl.”), Ex. 1 at ¶¶ 20, 22. In a bald attempt to evade that bargained-for

limitation, Plaintiff now asserts claims for fraud/misrepresentation, violation of Mass. Gen. Law

Ch. 93A § 11, and promissory estoppel in lieu of a breach of contract claim. But Plaintiff cannot

escape the terms of the parties’ written contract by masking what is in fact a contractual

complaint as a case of fraud, deception, or promissory estoppel.

The Court should accordingly dismiss Plaintiff’s Complaint for three reasons. First,

Plaintiff cannot predicate a fraud claim on a mere breach of contract. And Plaintiff has not plead

any extra-contractual misconduct with sufficient particularity to sustain a fraud claim . Second ,

Plaintiff likewise cannot recover consequential damages under 93A for what is in essence a

contractual claim between two private and sophisticated parties. Finally, a claim for promissory

estoppel does not lie where, as here, the parties intended that a written contract would govern the

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subject matter of the promise at issue. Accordingly, dismissal of Plaintiff’s entire Complaint is

warranted.

BACKGROUND

Cynosure is a medical device manufacturer that markets and sells the SculpSure Non-

Invasive Body Contouring Platform (“SculpSure”) and the Icon Intense Pulsed Light System (the

“Icon”, and together with SculpSure, the “Devices”). The SculpSure is a medical device cleared

by the U.S. Food and Drug Administration (“FDA”) that uses laser technology to non-invasively

treat stubborn fat deposits. It works by using a particular laser frequency to target and disrupt fat

cells with minimal absorption by the skin. The Icon uses laser technology for hair remo val,

wrinkle reduction, skin resurfacing, scar treatment, vessel clearance, and pigment reduction. The

Icon also received pre-market clearance from the FDA pursuant to Section 510(k) of the Federal

Food, Drug, and Cosmetic Act.

Plaintiff, a sophisticated business in the cosmetics industry, is a “well-known and

successful operator and franchisor of skincare salons with locations throughout Massachusetts

and New Hampshire.” Compl. ¶ 2. Plaintiff is based in Boston, with twenty-four salons

throughout New England, and also runs an accredited School of Esthetics and Massage Therapy.

Compl. ¶ 7.

In or around November 2018, the parties began discussing the possibility of a commercial

arrangement pursuant to which Plaintiff would lease certain devices in its various locations. See

Compl. ¶¶ 12, 13, 16, 17. Following months of negotiations, the parties reached an agreement.

See Compl. ¶¶ 12-17, 34, 35 (alleging various meetings, discussions, and a formal presentation

involving senior management from both companies).

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On January 10, 2019, Cynosure and Plaintiff executed a Product Lease Agreement (the

“Agreement”), a formal contract that documented the full scope of the parties’ arrangement. 1

Compl. ¶ 35; Wiesner Decl., Ex. 1. In short, the Agreement provides that Cynosure—at no cost

to Plaintiff—would provide Plaintiff with thirty-six SculpSures and thirty-six Icons—devices

that sell for hundreds of thousands of dollars each—and install and service those devices across

Plaintiff’s twenty-four locations and its esthetics school. Wiesner Decl. Ex. 1 at ¶ 1, Ex. A.

Additionally, Cynosure agreed to “provide [Plaintiff] with access to its standard marketing

materials and in-house marketing support services related to the [devices] at no cost to

[Plaintiff]. . . . [and to] work in good faith with [Plaintiff] to meet any additional marketing needs

that may be reasonably requested by [Plaintiff] from time to time at no cost to [Plaintiff].” Id. at

¶ 4. In return for the leasing, installation, and servicing of th e Devices, the parties agreed to a

fifty-fifty net-revenue sharing arrangement. Id. at ¶ 3, Ex. B. In other words, Elizabeth G rady

would pay Cynosure for the Devices only if it generated money from treatments performed using

the Devices.

On July 10, 2019, the Agreement was amended. Wiesner Decl. Ex. 2. As part of that

amendment, the parties agreed that Plaintiff would hire a medical director to oversee use of the

Devices. While Plaintiff was responsible for hiring the medical director, both parties w ould

1 The Court may consider the parties’ Product Lease Agreement. Although it is not attached to
Plaintiff’s Complaint, Plaintiff nevertheless refers to and relies on the Agreement extensively
throughout its pleading. See, e.g., Compl. ¶¶ 1, 35, 40, 41, 47, 50, 52, 54, 63, 64, 66 .
Accordingly, the Product Lease Agreement may properly be considered without converting this
dismissal motion into a motion for summary judgment. Marram v. Kobrick Offshore Fund, Ltd.,
442 Mass. 43, 45 n.4, 809 N.E.2d 1017, 1021 (2004) (“Where, as here, the plaintiff had notice of
these documents and relied on them in framing the complaint, the attachment of such documents
to a motion to dismiss does not convert the motion to one for summary judgment.”); Cumis Ins.
Soc’y, Inc. v. BJ’s Wholesale Club, Inc., 455 Mass. 458, 465 n.14, 918 N.E.2d 36, 43 (2009)
(finding that judge properly considered a contract attached to defendants’ motion to dismiss

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share the cost. Id. at 1 (providing that the medical director’s salary would be paid from revenues

obtained from the Devices prior to share split).

Among other terms, the Product Lease Agreement limited the parties’ liability in

connection with the arrangement. For instance, the Agreement provides, in all capital letters:

EXCEPT AS PROVIDED FOR HEREIN, IN NO EVENT SHALL
EITHER PARTY, THEIR RESPECTIVE LICENSORS OR
SUPPLIERS BE LIABLE, WHETHER IN CONTRACT, TORT
OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL,
SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF
ANY KIND, INCLUDING WITHOUT LIMITATION, LOST
REVENUES OR PROFITS OR OTHER ECONOMIC LOSS, OF
ANY NATURE WHATSOEVER RESULTING FROM, OR
ARISING OUT OF, THEIR ACTS OR OMISSIONS, ITS
PERFORMANCE OR FAILURE TO PERFORM ANY OF
THEIR OBLIGATIONS UNDER THIS AGREEMENT,
REGARDLESS OF THE CAUSE AND WHETHER ARISING IN
CONTRACT (INCLUDING FUNDAMENTAL BREACH),
TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN
IF THE BREACHING PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION
SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF
THIS AGREEMENT.

Id. at ¶ 20. Further, the contract contains a merger clause, disclaiming any

representations not contained with the contract:

This Agreement and the Exhibit hereto represent the entire
agreement between the parties regarding the subject matter hereof
and supersede any and all prior agreements between the parties,
whether written or oral, regarding the subject matter hereof.
Neither this Agreement may be modified or amended except in a
writing executed by both parties.

Id. at ¶ 22. The Agreement also contained additional disclaimers, further limiting Cynosure’s

liability with respect to the Devices themselves, explicitly limiting Cynosure’s obligations to

repair or replacement of defective parts. Id. at Ex. C, Ex. D. at 19 (providing disclaimers, in all

where that contract was not attached to plaintiffs’ complaint but was “cited and relied on” in the
complaint).

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capital letters, limiting the parties’ liability with respect to the equipment itself and any

installation, care, warranty, or repair services provided by Cynosure).

On December 8, 2020, Plaintiff filed a Complaint against Cynosure, alleging

fraud/misrepresentation, violation of Mass. Gen. Law Ch. 93A § 11, and promissory estoppel.

Plaintiff’s Complaint makes the unsupported and conclusory allegation that Cynosure w ithheld

information about its impending sale from its former parent company, Hologic, Inc., because it

wanted to “use the relationship and Agreement with Elizabeth Grady to inflate Cynosure’s []

potential revenues for purposes of selling the company.” Compl. ¶¶ 46, 47.

At bottom, however, Plaintiff’s Complaint boils down to dissatisfaction with the services

Cynosure contracted to provide under the Product Lease Agreement. Specifically, Plaintiff

alleges that it did not obtain the marketing support it was allegedly owed pursuant to that

Agreement, and as a result, it could not achieve the anticipated revenues. Compl. ¶¶ 42, 43 , 49 .

Indeed, Plaintiff’s alleged damages consist only of lost revenues and expenses to “accommodate

Cynosure equipment,” which are precluded by the contractual limitation on consequential

damages. Compl. ¶ 49.

Because Plaintiff has not adequately pleaded claims that can evade its contractual

obligations and limitations, Plaintiff’s Complaint must be dismissed.

ARGUMENT

I. PLAINTIFF’S COMPLAINT DOES NOT ADEQUATELY PLEAD TORT
CLAIMS INDEPENDENT FROM THE CONTRACT.

In order to survive dismissal, Plaintiff is required to plead factual allegations “plausibly

suggesting (not merely consistent with) an entitlement to relief.” Iannacchino v. Ford Motor

Co., 451 Mass. 623, 636, 888 N.E.2d 879, 890 (2008) (quotation marks omitted) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Plaintiff’s factual allegations therefore “must

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be enough to raise a right to relief above the speculative level.” McLane, Graf, Raulerson &

Middleton, P.C. v. Grady, No. ESCV201301708A, 2014 WL 2504540, at *1 (Mass. Super. Apr.

1, 2014) (quoting Twombly, 550 U.S. at 557). Moreover, where, as here, a complaint alleges

fraud, such claims must be plead with particularity. See Mass. R. Civ. P. 9(b); Equip. & Sys. For

Indus., Inc. v. Northmeadows Const. Co., 59 Mass. App. Ct. 931, 931, 798 N.E.2d 571, 574

(2003). “At a minimum, a plaintiff alleging fraud must particularize the identity of the person(s)

making the representation, the contents of the misrepresentation, and where and when it took

place. In addition, the plaintiff should specify the materiality of the misrepresentation, its

reliance thereon, and resulting harm.” Equip. & Sys. For Indus., Inc., 59 Mass. App. Ct. at 931,

798 N.E.2d at 574.

The heart of Plaintiff’s complaint is that Cynosure did not provide it with promised

marketing support, which caused Plaintiff’s hoped-for business opportunity to fail. See, e.g.,

Compl. ¶ 27, 40-43, 49 (alleging that Cynosure promised to “be the driving force to bring in new

business”; “create custom advertisements”; and “work directly with [Plaintiff] to create new

marketing campaigns”). Yet the parties’ contract squarely addresses Cynosure’s obligation to

provide marketing services to Plaintiff. Wiesner Decl. Ex 1 at ¶ 4 (Cynosure agreed to “provide

[Plaintiff] with access to its standard marketing materials and in -house marketing support

services related to the [devices] at no cost to [Plaintiff]. . . . [and to] work in good faith with

[Plaintiff] to meet any additional marketing needs that may be reasonably requested by [Plaintiff]

from time to time at no cost to [Plaintiff].”). Plaintiff therefore complains, in essence, of a

breach of contract. Id. at ¶ 22; Ex. D at 19.

Plaintiff cannot recover for common law fraud based on what is in reality a breach of

contract claim. Where, as here, a contract embodies the obligations which the defendant

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allegedly failed to perform, their “remedy for damages for failure to perform would [be] upon the

contract.” Loughery v. Cent. Tr. Co., 258 Mass. 172, 177-78, 154 N.E. 583, 585 (1927).

Plaintiff’s claim therefore is cognizable only as a contractual claim—not a claim sounding in

tort. See, e.g., Anderson v. Fox Hill Vill. Homeowners Corp., 424 Mass. 365, 368, 676 N.E.2d

821, 823 (1997) (“failure to perform a contractual obligation is not a tort in the absence of a duty

to act apart from the promise made”); Cumis Ins. Soc’y, Inc. v. BJ’s Wholesale Club, Inc. , 455

Mass. 458, 474, 918 N.E.2d 36, 49 (2009) (“Plaintiffs who are unable to prevail on their contract

claims may not repackage the same claims under tort law.”); Magyar v. Jilly Beanne’s, Inc., 80

Mass. App. Ct. 1102, 951 N.E.2d 55 (2011) (affirming summary judgment on fraud and

negligent misrepresentation claims [that] simply were reconstituted breach of contract claims”).

Accordingly, Plaintiff’s complaints about lack of marketing support cannot form the basis of an

independent fraud claim.

The same is true for Plaintiff’s ch. 93A claim. The law is clear that “a mere breach of a

legal obligation under commercial law, without more, does not amount to an unfair or deceptive

act under G. L. c. 93A.” Framingham Auto Sales, Inc. v. Workers’ Credit Union, 41 Mass. App.

Ct. 416, 418 (1996). Because this case is “little more than a dispute over . . . [a] breach of an

alleged contract,” Plaintiff’s 93A claim similarly fails. Bunge Oils, Inc. v. M & F Mktg. Dev.,

LLC, No. CIV.A.03-11559-GAO, 2005 WL 629489, at *3 (D. Mass. Mar. 15, 2005); see also

Utica Nat. Ins. Grp. v. BMW of N. Am., LLC, 45 F. Supp. 3d 157, 161 (D. Mass. 2014) (a

plaintiff “must invoke something more than a mere breach of warranty to plead a plausible

Chapter 93A, § 11 claim”) (collecting cases).

Plaintiff cannot end run this precedent—or its freely-bargained-for contract—based on

the implausible and conclusory assertion that Cynosure never intended to fulfill its marketing

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obligations in the first place, and therefore committed fraud. See Iannacchino, 451 Mass. at 636

(quotation marks omitted) (quoting Twombly, 550 U.S. at 557). Under the contract, Cynosure

committed to significant expenditures—and leased the devices to Plaintiff without charge—

without any upfront compensation. Cynosure would only gain financially if the arrangement

succeeded. It makes no sense that Cynosure would enter into such a deal with the intent it would

fail. Indeed, the only motive Plaintiff gives for such an outlandish scheme is embodied in a

single “information and belief” allegation, which avers that Cynosure wanted to use the

relationship to inflate revenues the for purpose of selling the company. See Compl. ¶ 47 . This

bare and conclusory allegation, which relies on the implausible proposition that Cynosure acted

against its self-interest, does not bring Plaintiff’s fraud and 93A claims above the speculative

level as required to state a claim. Iannacchino, 451 Mass. at 636 (“a plaintiff’s obligation to

provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions. . .

. Factual allegations must be enough to raise a right to relief above the speculative level.”)

(quoting Twombly, 550 U.S. at 555).

Plaintiff has also not identified any representations that can support a separate claim f or

fraud. See, e.g. Compl. ¶ 34 (alleging only that “[d]uring the parties negotiations, Cynosure

made additional representations”). Massachusetts courts routinely dismiss fraud claims where

“the time, place, and content of the alleged false representation” is not plead with particularity.

See, e.g., Driscoll v. Worcester Telegram & Gazette Corp., No. WOCV090043, 2009 WL

3839067, at *4 (Mass. Super. Sept. 28, 2009). Here, Plaintiff has not adequately identified any

specific oral representations beyond Cynosure’s general agreement to provide marketing support,

as specified in the contract. It has not pleaded who made those supposed representations, when

they were made, or in what manner they were made. It has not, for example, alleged that

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Cynosure promised to allocate a specific marketing budget to Plaintiff, dedicate specific

personnel to Plaintiff, or create any specific materials.

Finally, Plaintiff also fails to plead reasonable reliance on any such oral representations,

even if they were pleaded with sufficient particularity. Where, as here, the parties specifically

negotiated Cynosure’s marketing obligations and included them in the contract, Plaintif f could

not have reasonably relied on any oral representations that are inconsistent with or additional to

the obligations set forth in the parties’ written contract. See Turner v. Johnson & Johnson, 809

F.2d 90, 95 (1st Cir. 1986); see also Elias Bros. Restaurants v. Acorn Enterprises, Inc. , 831 F.

Supp. 920, 926 (D. Mass. 1993) (denying leave to amend where the “direct, precise terms of the

[] agreements serve as a bar to any reasonable reliance”). In short, Plaintiff’s Complaint fails to

plead tort claims that are independent from a breach of contract action, and it should be

dismissed.

II. PLAINTIFF CANNOT CIRCUMVENT THE PARTIES’ DISCLAIMER OF
CONSEQUENTIAL DAMAGES

Where, as here, the parties are sophisticated entities, they may contractually agree to limit

their liability for consequential damages. See Mass. Gen. Laws Ann. ch. 106, § 2-719; Deerskin

Trading Post, Inc. v. Spencer Press, Inc., 398 Mass. 118, 124, 495 N.E.2d 303, 307 (1986)

(“Limiting damages to a refund of the purchase price in the circumstances of this case, where the

two parties are sophisticated business entities, and where consequential damages in the event of a

problem could be extensive, is a reasonable business practice . . . .”); Canal Elec. Co. v.

Westinghouse Elec. Corp., 406 Mass. 369, 375, 548 N.E.2d 182, 186 (1990) (holding that “ the

agreed-upon allocation of commercial risk should not be disturbed where the warranted item is a

highly complex” piece of equipment and the entities are not consumers, but sophisticated

commercial entities) (internal quotation marks omitted). Here, the parties bargained for just such

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a limitation as a material inducement to Cynosure’s willingness to enter into the arrangement.

See, e.g., Wiesner Decl. Ex. 1, ¶ 20.

Contractual limitations such as the one at issue here bar recovery under 93A whenever

that claim sounds in contract, not tort. See e.g., Canal Electric Co. v. Westinghouse Elec. Corp.,

406 Mass. 369, 548 N.E.2d 182 (1990). In Canal Electric, plaintiffs alleged that they suffered

substantial losses when components of an electric generator failed. The Court held, however,

that the “dispute is a purely commercial one” and, as such, their 93A claim was essentially

“duplicative of [plaintiffs’] breach of warranty claim”. Id. at 378-79, 188. Accordingly, the

Court held that plaintiffs had contractually waived their right to bring a 93A claim because the

contract specifically disclaimed consequential damages. Id. Indeed, Massachusetts courts

regularly apply liability limitations to 93A claims where such claims are merely duplicative of

contract claims. SG Realty Holdings, LLC et al. v. 49 Melcher St., LLC, No. SUCV2018490,

2020 WL 8182879, at *16 (Mass. Super. Oct. 14, 2020) (holding that plaintiffs could not recover

damages as a matter of law, where their 93A claim arose from defendant’s “failure to f ulfill its

obligations under the [agreement] and is an alternative theory of recovery for the conduct upon

which their contract claims are based”); Chestnut Hill Dev. Corp. v. Otis Elevator Co., 653

F.Supp. 927, 931 (D.Mass.1987) (consequential damages disclaimer in contract barred recovery

under c. 93A, § 11); McPherson, Inc. v. Pixelvision of Oregon, Inc., No. 041861, 2006 WL

620711, at *5 (Mass. Super. Feb. 6, 2006) (applying limitation of liability where plaintiff’s

complaint plead nothing more than the fact that defendant “breached its obligation ” under the

contract).

That is precisely the case here. Plaintiff alleges that Cynosure failed to perform its

responsibilities regarding marketing as expressed by the contract, an d as a result suffered

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monetary damages. Compl. ¶¶ 41-43, 49. As in Canal Electric, the claims at issue here are

“purely commercial one[s] that do[] not affect the public interest.” 406 Mass. 369, 379, 548

N.E.2d 182, 188. And the Parties contractually agreed—in an arms’ length negotiation—that

Cynosure could not be held liable for such damages. 406 Mass. at 379, 548 N.E.2d at 188. That

Plaintiff elected not to also bring a breach of contract claim does not change this essential fact.

Plaintiff is therefore left without cognizable damages. See Shaulis v. Nordstrom, Inc.,

865 F.3d 1, 10 (1st Cir. 2017) (“To state a viable [93A] claim . . . a plaintiff must show ‘real’

economic damages.”). The parties’ consequential damages disclaimer extends not only to lost

profits, but also to “lost customers, loss of goodwill, lost income, lost productivity, lost business

opportunity, [and] payment of various services which it was unable to utilize.” See, e.g., CMG

Holdings, Inc. v. AT & T Corp., No. 992129E, 2000 WL 230356, at *3 (Mass. Super. Feb. 17,

2000); see Pentagram Software Corp. v. Voicetek Corp., No. 9200873, 1993 WL 818722, at *4

(Mass. Super. Nov. 18, 1993) (“The other damages, including those claimed for marketing costs,

lost marketing opportunities, relocation expenses and insurance surcharges, are merely

consequential damages . . . .”). Because Plaintiff paid nothing out-of-pocket to lease the

machines, all of its damages are consequential. Accordingly, Plaintiff’s 93A claim fails by

virtue of the fact that any recovery would be barred by the parties’ mutually agreed-upon

contractual liability limitation.

III. PLAINTIFF’S PROMISSORY ESTOPPEL CLAIM FAILS IN LIGHT OF THE
PARTIES’ CONTRACT

Finally, Plaintiff cannot maintain a claim for promissory estoppel in the face of the

contract governing this transaction. Plaintiff asserts a promissory estoppel claim predicated on

Cynosure’s alleged pre-sale promises to provide marketing support. See, e.g., Compl. ¶ 63. But

these very promises were incorporated into the Product Lease Agreement. See Wiesner Decl.

12
Ex. 1 ¶¶ 4, 22. In Massachusetts, a claim for promissory estoppel lies only where the party

cannot enforce the promise through contract, and must instead enforce that promise through

equity. See Malden Police Patrolman’s Ass’n v. Malden, 92 Mass. App. Ct. 53, 60, 82 N.E.3d

1055, 1064 (2017) (“In the absence of a contract in fact, promissory estoppel implies a contract

in law where there is proof of an unambiguous promise coupled with detrimental reliance by the

promisee.”) (citation omitted); Rhode Island Hosp. Trust Natl. Bank v. Varadian, 419 Mass. 841,

848-50, 647 N.E.2d 1174 (1995) (explaining that the reliance element of promissory estoppel

substitutes for consideration); see also Zarum v. Brass Mill Materials Corp., 334 Mass. 81, 85,

134 N.E.2d 141, 143 (1956) (“The law will not imply a contract where there is an express

contract covering the same subject matter.”) (citations omitted); Knowlton v. Swampscott, 280

Mass. 69, 72, 181 N.E. 849 (1932) (“A party cannot come into equity to secure relief open to

him at law”).

In other words, a party cannot bring a claim for promissory estoppel where, as here, a

written contract governs the subject matter of the promise at issue. See Rhode Island Hosp. Trust

Natl. Bank , 419 Mass. at 850 (where parties contemplated written agreement would govern

promised loan, no “promise in the contractual sense had been made, and therefore no amount of

reliance on the part of the promisee would give rise to a ‘contract’ by virtue of reliance”)

(internal quotations omitted). Courts in Massachusetts routinely dismiss promissory estoppel

claims where the alleged promise at issue is addressed in a subsequent written agreement

between the parties. See Malden Police Patrolman's Ass'n, 92 Mass. App. Ct. at 60-61

(dismissing promissory estoppel claim on the pleadings where alleged promises pertaining to

police officer payment and employment terms were covered in parties’ contract); Hershey v.

Mount Vernon Partners, LLC, No. 1984CV02666BLS1, 2020 WL 4607471, at *6 (Mass. Super.

13
June 26, 2020) (dismissing promissory estoppel claim on the pleadings predicated on alleged

promise to pay plaintiff’s housing costs where parties entered into written agreement concerning

same promise); Sonoiki v. Harvard Univ., No. 19-CV-12172, 2020 WL 3416516, at *15 (D.

Mass. June 22, 2020) (dismissing promissory estoppel claim on the pleadings because “a

contract exists and governs the relationship between [the parties]. As such, there is no reason for

[plaintiff] to assert a quasi-contract theory regarding the same subject matter governed by the

valid contract.”), appeal filed July 16, 2020; Doe v. W. New England Univ., 228 F. Supp. 3d 154,

181-82 (D. Mass. 2017) (“It is well-established that recovery under a quasi-contract theory is not

available where there is a written contract governing the same subject matter.”) (citation and

quotations omitted). Plaintiff does not dispute that the Product Lease Agreement is enforceable.

See, e.g., Compl. ¶¶ 35, 64, 66. As this agreement governs the marketing support terms

applicable to the parties, Plaintiff’s claim for promissory estoppel must be dismissed.

CONCLUSION

For the foregoing reasons, Cynosure respectfully requests that the Court grant its Motion

to Dismiss Plaintiff’s Complaint.

Dated: January 29, 2021
Respectfully submitted,

/s/ Michael Pineault
Michael Pineault (BBO No. 555314)
ANDERSON & KREIGER LLP
50 Milk Street, 21st Floor
Boston, MA 02109
mpineault@andersonkreiger.com
T: +1 617.621.6578
F: +1 617.621.6619

Daniel S. Pariser (pro hac vice to be filed)
Jocelyn A. Wiesner (pro hac vice to be filed)
ARNOLD & PORTER KAYE SCHOLER LLP
601 Massachusetts Ave., NW

14
Washington, D.C. 20001
daniel.pariser@arnoldporter.com
jocelyn.wiesner@arnoldporter.com
T: +1 202.942.5000
F: +1 202.942.5999

15
CERTIFICATE OF SERVICE

I hereby certify that a true copy of the above document was served upon the following
counsel of record for the parties by e-mail and by first class mail on January 29, 2021:

William A. Zucker (BBO No. 541230)
Nicholas W. Allen (BBO No. 663409)
MCCARTER & ENGLISH, LLP
265 Franklin Street,
Boston, MA 02110-3113
T: +1 617.449.6500
wzucker@mccarter.com
nallen@mccarter.com

Counsel for Plaintiff

Counsel for Defendant Kevin Thornal

/s/Jocelyn Wiesner

16
COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, SS. SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT

ELIZABETH GRADY FACE FIRST INC.
D/B/A THE ELIZABETH GRADY
COMPANY,

Plaintiff, CIVIL ACTION NO. 2081-CV-02967

CYNOSURE, INC., and
KEVIN THORNAL,

Defendants.

DECLARATION OF JOCELYN A. WIESNER IN SUPPORT OF
DEFENDANT CYNOSURE, LLC’S MOTION TO DISMISS

I, Jocelyn A. Wiesner, hereby declare as follows:

1. I am an attorney at law duly admitted to practice in the District of Columbia and

New York, and I am seeking pro hac vice admission in connection with the above-caption case. I

am an attorney with the law firm Arnold & Porter Kaye Scholer LLP and represent Cynosure, LLC

(f/k/a Cynosure, Inc.) (“Cynosure”). I submit this declaration in support of Cynosure’s Motion to

Dismiss Plaintiff’s Complaint. The facts set forth herein are of my own personal knowledge and

review of the relevant material, and if called to testify, I could and would testify competently

thereto.

2. A true and correct copy of the Product Lease Agreement, executed by Plaintiff and

Cynosure on January 10, 2019, and referenced throughout Plaintiff’s Complaint, is attached hereto

as Exhibit 1.
3. A true and correct copy of the July 10, 2019 amendment to the Product Lease

Agreement is attached hereto as Exhibit 2.

I declare under penalty of perjury under the laws of the Commonwealth of Massachusetts

that the foregoing is true and correct.

Executed this 29th day of January, 2021 in Washington, D.C.

/s/Jocelyn Wiesner
Jocelyn A. Wiesner (pro hac vice to be filed)
ARNOLD & PORTER KAYE SCHOLER LLP
601 Massachusetts Ave., NW
Washington, D.C. 20001
jocelyn.wiesner@arnoldporter.com
T: +1 202.942.5000
F: +1 202.942.5999

2
CERTIFICATE OF SERVICE

I hereby certify that a true copy of the above document was served upon the following
counsel of record for the parties by e-mail and by first class mail on January 29, 2021:

William A. Zucker (BBO No. 541230)
Nicholas W. Allen (BBO No. 663409)
MCCARTER & ENGLISH, LLP
265 Franklin Street,
Boston, MA 02110-3113
T: +1 617.449.6500
wzucker@mccarter.com
nallen@mccarter.com

Counsel for Plaintiff

Counsel for Defendant Kevin Thornal

/s/Jocelyn Wiesner

3
EXHIBIT 1
EXHIBIT 2
Exhibit B
COMMONWEALTII OF MASSACHUSETTS

MIDDLESEX, SS SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT

)
ELIZABETH GRADY FACE FIRST INC. )
d/b/a THE ELIZABETH GRADY )
COMPANY, )
) CIVIL ACTION NO. 2081 -CV-02967
) (ORAL ARGUMENT REQUESTED)
Plaintiff, )
V. )
)
CYNOSURE, INC., and )
KEVIN THORNAL, )
)
Defendants. )
)

KEVIN THORNAL'S MOTION TO DISMISS
Defendant Kevin Thomal moves to dismiss all claims against him pursuant to Mass. R.

Civ. P. 9(b) and 12(b)(6). As grounds for this motion, Thornal states as follows:

Plaintiff Elizabeth Grady Face First Inc.'s ("EG") complaint is premised on the assertion

that defendant Cynosure Inc. ("Cynosure") made and breached promises that were not

memorialized in the parties' January 10, 2019 Product Lease Agreement (the "Agreement" or

"Agmt."). That Agreement is fully integrated, includes no promises about revenues, provides

only that Cynosure will assist EG with marketing "as reasonably requested," and disclaims any

right to sue for consequential and indirect damages. These provisions defeat all of the claims

asserted by EG. Cynosure has moved to dismiss the complaint on the basis that the contract bars

all of EG's claims. Thomal joins in those arguments.

1
In addition, the claims against Thornal should be dismissed, even if the Court disagrees

with Cynosure, for independent reasons. As is more fully in the supporting memorandum

submitted herewith:

• Count I should be dismissed as to Thornal pursuant to Mass. R. Civ. P. 9(b) and

12(b)(6) because EG does not specify anything said by Thornal, as opposed to

"Cynosure representatives" generally. And even if Thornal could somehow be

held legally responsible for statements made by other, unnamed Cynosure

representatives, the statements that EG relies upon relate only to future events, not

then-existing facts. For those future-looking statements to be actionable, EG must

offer factual allegations to plausibly suggest that Thornal actually knew that

Cynosure did not intend to use its marketing capabilities to benefit EG. EG does

not even try to meet that burden.

• The ch. 93A claim (Count II) should be dismissed because it is premised on the

same inadequate allegations that EG offers to support its fraud claim. And to the

extent that EG contends that Thomal violated ch. 93A because of Cynosure's

purported failure to meet EG's expectations, EG fails to state a claim because EG

does not allege that Thornal acted with the intention to obtain an improper

personal benefit.

• Finally, Count III should be dismissed because a promissory estoppel claim does

not lie where the parties also entered an actual contract. And to the extent that

this count is directed at Thornal individually (which is unclear), the claim fails

because the counter-party to any implied contract would be Cynosure, not

Thornal.

2
The grounds for this motion are further set forth in the supporting memorandum

submitted by Thornal and in the motion and supporting memorandum submitted by Cynosure.

CONCLUSION

For all the reasons set forth above and in the motion to dismiss and supporting

memorandum submitted by Cynosure, Kevin Thornal requests that the Court dismiss all claims

asserted against him pursuant to Mass. R. Civ. P. 9(b) and 12(b)(6).

REQUEST FOR ORAL ARGUMENT

Thornal requests oral argument on this motion pursuant to Superior Court Rule 9A(c)(2)

and (c)(3) as this is a dispositive motion and argument may materially aid the Court.

KEVIN THORNAL

By his attorneys,

Peter E. Gelhaar, 0 # 188310
Daniel P. Tighe, BBO # 556583
DONNELLY, CONROY & GELHAAR, LLP
260 Franklin Street, Suite 1600
Boston, MA 02110
617-720-2880

February 5, 2021

3
CERTIFICATE OF SERVICE

I hereby certify that I have caused a copy of the foregoing pleading to be served on the following
counsel by first class mail and email on February 5, 2021:

William A. Zucker, Esq. Daniel S. Pariser, E

Case Info

Judge

Patrick M. Haggan Track Judge’s New Case

Case No.

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Document Filed Date

March 04, 2021

Case Filing Date

December 08, 2020

County

Parties

Ahitow, Blake Defendant
Allen, Esq., Nicholas W Attorney for the Plaintiff
Barnes, Esq., Timothy H Attorney for the Plaintiff
Butters, Esq., Thomas J Attorney for the Plaintiff
Cynosure, Inc. Defendant
Elizabeth Grady Face First, Inc. D/B/A The Elizabeth Grady Company Plaintiff
Gelhaar, Esq., Peter Erich Attorney
Gelhaar, Esq., Peter Erich Attorney for the Defendant
Hologic Inc. Other Interested Party
Leskin, Lori B Attorney for the Defendant
Novak, Leah R Attorney for the Defendant
Pariser, Daniel S Attorney for the Defendant
Pineault, Esq., Michael J Attorney for the Defendant
Pine, Esq., Alec Spencer Attorney for the Plaintiff
Thornal, Kevin Defendant
Tighe, Esq., Daniel Patrick Attorney
Tighe, Esq., Daniel Patrick Attorney for the Defendant
Wiesner, Jocelyn A Attorney for the Defendant
Zucker, Esq., William A Attorney for the Plaintiff
David Ianelli Attorney
Gregory Eaton Attorneys for Plaintiffs
Daniel Palese Attorney
Glenn MacKinlay Attorney

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Motion-Secondary: Elizabeth Grady Face First, Inc. D/B/A The Elizabeth Grady Company vs. Cynosure, Inc. et al

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