# Skinner Inc. v. Li

> District Court, D. Massachusetts · March 2, 2023

URL: https://www.frixlaw.com/law-library/cases/10200924

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** March 2, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- noting that “[a]n act or practice is unfair [under Chapter 93A] if it is (1) within the penumbra of a common-law statutory, or other established concept of unfairness; (2) immoral, unethical, oppressive, or unscrupulous; or (3

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

SKINNER, INC.,
Plaintiff,

v. CIVIL ACTION NO. 20-11402-MPK1

LUCHENG LI, MAOLIANG FANG,
Defendants.

MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT (#85), DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (#88),
PLAINTIFF’S MOTION TO STRIKE MAOLING FANG’S ERRATA SHEET (#101), AND
DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S MOTION TO STRIKE (#109)

KELLEY, U.S.M.J.
I. Introduction.
This case involves the auction of a blue and white Yongzheng lotus-mouth vase (the
“Vase”) by plaintiff Skinner, Inc., an auction house located in Marlborough, Massachusetts. On
June 18, 2020, defendant Maoliang Fang, an art dealer located in China, through his agent,
defendant Lucheng Li, located in the United Kingdom, won the Vase with a final bid of
$1,330,000. After the hammer fell, a series of events unfolded that thwarted the sale and ultimately
led to this lawsuit.
In their claims and counterclaims, both parties allege that the other (i) breached the
Conditions of Sale (“COS”) that controlled the parties’ relationship during the auction and sale,

1 With the parties’ consent, this case was assigned to the undersigned for all purposes, including
trial and the entry of judgment, pursuant to 28 U.S.C. § 636(c). (#61.)
(ii) breached the covenant of good faith and fair dealing, and (iii) violated M.G.L. c. 93A § 11. In
its amended complaint (#35), plaintiff also included claims for intentional misrepresentation and
declaratory judgment. Plaintiff moved to dismiss defendants’ counterclaims, and in its order on
the motion, the court narrowed their scope. (#67). Defendants did not move to dismiss plaintiff’s
claims, so they remain as pled in the amended complaint. (#35.)

Before the court are the parties’ cross-motions for summary judgment (##85, 88),
plaintiff’s motion to strike Mr. Fang’s errata sheet (#101), and defendants’ motion to strike
plaintiff’s motion to strike (#109). The court heard argument on all four motions on January 5,
2023. (#118.) For the following reasons, Skinner’s motion for summary judgment (#85) is
allowed in part and denied in part; defendants’ motion for summary judgment (#88) is denied; and
both motions to strike (##101, 109) are denied.
II. Undisputed Material Facts.2
A. The Parties.
Skinner is an auction house and appraiser located in Marlborough, Massachusetts. (#87
¶ 1; #107 (undisputed).)
Mr. Fang is a Chinese national living in China. (#87 ¶ 17; #107 (undisputed).) Before his

deposition in this case, Mr. Fang had never communicated with Skinner, either orally or in writing.
Id.

2 The facts are derived from defendants’ Statement of Material Facts in support of its motion for
summary judgment (#88-2); Skinner’s Statement of the Undisputed Material Facts in support of
its motion for summary judgment (#87); Skinner’s response to defendants’ Statement of Material
Facts and its further Statement of Additional Undisputed Material Facts (#104); defendants’
response to Skinner’s Statement of Undisputed Material Facts (#107); defendant’s further
Statement of Disputed Facts submitted in response to Skinner’s further Statement of Additional
Undisputed Material Facts (#114); and, where appropriate, the underlying evidence submitted by
the parties.
Mr. Li is a Chinese national and an art agent with a place of business in Middlesborough,
UK. (#88-2 ¶ 1; #104 ¶ 1; #87 ¶¶ 19-20; #107 (undisputed).) He has worked for Mr. Fang since
2015, acting as his agent and bidding on his behalf in foreign art auctions approximately ten times
per year. (#87 ¶¶ 19-20; #107 (undisputed).) When acting as Mr. Fang’s agent, Mr. Li does not
determine what to bid on; he acts solely in accordance with Mr. Fang’s instructions. (#88-2 ¶ 5;

#104 ¶ 5.)
Before the auction of the Vase in June 2020, Mr. Li had made one purchase from Skinner,
on behalf of a client, in September 2017. (#87 ¶ 22; #107 (undisputed).) Mr. Li paid for the item
within four days and submitted an authorized release form, including information that he was using
an MC/DOT preferred shipper, which made clear that the item qualified for a sales tax exemption.
(#87 ¶ 23; #107 (undisputed).) After receiving the full payment for the item, minus sales tax, and
the appropriate paperwork to support the exemption, Skinner released the item to Mr. Li and his
client via the shipper. (#87 ¶ 24; #107 (undisputed).)
B. The 2020 Auction of the Vase and the Operative Conditions of Sale.
Skinner listed the Vase in its Asian Works of Art online auction to be held on June 18,

2020, valuing the item between $5,000 and $10,000.3 (#87 ¶ 16; #107 ¶ 16; #88-2 ¶¶ 1-2; #104
¶¶ 1-2.) On June 16, Mr. Li registered for the auction. (#87 ¶ 25; #107 ¶ 25 (not disputing
registration date).) As part of his registration, Mr. Li acknowledged his agreement of the COS, as
all bidders are required to do. Id. Mr. Li claims he does not recall doing so. (#88-2 ¶ 12; #104
¶ 12.) But, the parties agree—and the court already has ruled (#67 at 6)—that the COS controlled
the parties’ relationship throughout the auction and sale. (#40 ¶¶ 10-12, 25, 34-37, 42 (citing COS

3 The Asian Works of Art online auction took place June 9-18, 2020. (#87 ¶ 16.) The auction of
the Vase occurred on June 18, 2020, as part of the broader Asian Works of Art Online Auction.
(#87 ¶ 16; #107 ¶ 16.)
terms throughout counterclaims); #67 at 9 (“The terms defendants identify from Skinner’s website
are identical to those contained in the [COS].”).) They provide, in relevant part:
2. All property is sold “as is” . . . . (#87 ¶ 7; #107 ¶ 7; #91-1 at Ex. 12 §2.)

[ . . .]

4. All merchandise purchased must be paid for and removed from the premises
the day of the auction. . . . (#87 ¶ 9; #107 ¶ 9; #91-1 at Ex. 12 §4.)

[. . .]

6. If the purchaser breaches any of its obligations under these Conditions of
Sale, including its obligation to pay in full the purchase price of all items for which
it was the highest successful bidder, Skinner Inc. may exercise all of its rights and
remedies under the law including, without limitation, (a) canceling the sale and
applying any payments made by the purchaser to the damages caused by the
purchaser’s breach, and/or (b) offering at public auction, without reserve, any lot
or item for which the purchaser has breached any of its obligations, including its
obligation to pay in full the purchase price, holding the purchaser liable for any
deficiency plus all costs of sale. (#87 ¶ 10; #107 (undisputed); #91-1 at Ex. 12 §6)

[. . .]

9. Sales in Massachusetts, Florida, and New York are subject to the respective
current sales taxes. Dealers, museums, and other qualifying parties may be exempt
from sales tax upon submission of proper documentation. (#87 ¶ 13; #107 ¶ 13;
#91-1 at Ex. 12 §9.)

[. . .]

11. Bidding on any item indicates your acceptance of these terms and all other
terms printed within, posted, and announced at the time of the sale whether bidding
in person, through a representative, by phone, by Internet, or other absentee bid.
(#87 ¶ 4; #107 (undisputed); #91-1 at Ex. 12 § 11.)

Before the auction, Mr. Li requested from Skinner’s Asian Art Department information
about the Vase’s condition, to which Skinner responded with the requested explanations and
photographs. (#87 ¶ 26; #107 (undisputed); #91-1 at Exs. 15, 23) Two days later, on June 18,
2020, Mr. Li, acting on behalf of Mr. Fang, won the Vase with a bid of $1,330,000 (the “hammer
price”). (#87 ¶¶ 29, 30; #107 ¶ 29, (¶ 30 undisputed).)
C. Payments for the Vase.
Shortly after the auction,4 Skinner sent Mr. Li an invoice for $1,709,031.25, including the
hammer price, various charges, and $100,531.25 in sales tax. (#87 ¶ 30; #107 (undisputed).) The
invoice included Skinner’s bank information for wires, its address for checks, and a website link
that included further information about payments, sales tax, and shipping. (#87 ¶ 31; #107

(undisputed).) The day after the auction, June 19, Mr. Li forwarded the invoice to Mr. Fang. (#87
¶ 33; #107 ¶ 33.) Neither Mr. Li nor Mr. Fang made any payments on the Vase before June 24,
2020. (#87 ¶¶ 32, 34; #107 (¶ 32 undisputed), ¶ 34.) Instead, following his winning bid on June
18, Mr. Li sent an email to Skinner that same day requesting additional information regarding the
Vase, this time related to its provenance. (#87 ¶ 34; #107 ¶ 34.) Skinner did not respond. Id.
Mr. Li and Skinner did not communicate again until June 24, on which date Mr. Li (i)
conversed with William Debordes Jackson, of Skinner’s Accounts Receivable Department, via
telephone (#87 ¶ 36; #107 (undisputed)), and (ii) emailed Judith Dowling, of Skinner’s Asian Art
Department, requesting additional information regarding the Vase’s provenance and condition
(#88-2 ¶ 36; #104 ¶ 36).

As to (i), Mr. Debordes Jackson followed the telephone call with an email dated June 24,
2020, stating that Skinner would not allow Mr. Li to make a down payment or inspect the item
before completing full payment, and demanding payment in full. (#87 ¶ 37; #107 (undisputed);
#92-1 at Ex. 32.) Mr. Li responded the same day, stating that he understood Mr. Debordes
Jackson’s message, that he would make payment in full without inspecting the lot, and that he
would “aim to make full payment within the next week, because the Chinese Dragon Boat Festival
would . . . delay payment this week.” (#87 ¶ 38; #107 (undisputed); #92-1 at Ex. 33.) If Skinner

4 The parties dispute whether Skinner sent the invoice on June 18 or June 19. For reasons stated
infra n. 19, the dispute is not material.
was concerned, Mr. Li continued, he would “transfer 300,000 USD immediately to [Skinner’s]
bank account.” Id. Mr. Li also requested the final invoice without sales tax “[b]ecause [the Vase]
would be ship[ped] out of [the] US.” (#88-2 ¶ 40; #104 ¶ 40; #92-1 at Ex. 33) In response, Mr.
Debordes Jackson explained that Skinner’s COS “clearly state that payment is due at the time the
invoices [sic] is incurred” and that Mr. Li must “make full payment immediately” or else the Vase

may be offered to the underbidder (#87 ¶ 39; #107 ¶ 39; #92-1 Ex. 33), to which Mr. Li replied
that he would “do the transfer now” and send the receipt “later on” (#87 ¶ 40; #107 (uncontested);
#92-1 Ex. 33).
As to (ii), Ms. Dowling responded to Mr. Li’s email on June 24, 2020, with an unequivocal
demand for full payment: “If you have not made arrangements with our accounting department for
the payment of [the Vase] . . . by the end of the day tomorrow, June 25, 2020, I am offering the
[Vase] to the under bidder.” (#87 ¶ 41; #107 (undisputed); #92-1 at Ex. 34.) That same day, Mr.
Li sent a receipt for a partial payment of $300,000 that he claimed to have sent “from a bank in
UK” and stated that it “should . . . arrive in [Skinner’s] bank account within 3 days.”5 (#92-1 at

Ex. 35.) As he did with Mr. Debordes Jackson, Mr. Li promised Ms. Dowling that the rest would
be sent from a Hong Kong bank following the Dragon Boat Festival on Monday, June 29. Id. The
$300,000 wire arrived in Skinner’s bank account five days later, on June 29, but no other payments
did. (#87 ¶ 42; #104 ¶ 42.) The Bank of America record indicates that the payment originated
with the Yongquan Trading Co., Limited. (#93-1 at Ex. 37 p. 25.)

5 Mr. Li also responded to Ms. Dowling with an email stating that he would send his “business
partner Mr. Chen” to Skinner’s office “today to make the payment as soon as possible.” (#89 at
App. 504.) Mr. Li attached Mr. Chen’s Massachusetts ID to the email. Id. Neither party refers to
this correspondence, and the parties have not directed the court to any evidence showing whether
Mr. Chen arrived at Skinner as promised.
The next day, June 25, Mr. Li sent to Skinner a wire receipt for $640,000 that was
purportedly transferred that day, and again promised that “[t]he rest of the amount 668,500 would
be transferred on next Monday,” June 29, following the Dragon Boat Festival. (#87 ¶ 44; #107
(undisputed); #92-1 at Ex. 36.) The $640,000 payment never arrived in Skinner’s bank account,
and the remainder amount of $668,500 did not arrive on June 29.6 (#87 ¶ 45; #107 ¶ 45.)

Continuing the pattern, on June 26, Mr. Li sent another wire receipt, this one for $200,000.
(#87 ¶ 47; #107 (undisputed).) After receiving this third wire receipt and on Ms. Keane’s advice,
Ms. Dowling emailed Mr. Li stating, “We await confirmation of your full payment.” (#87 ¶ 48;
#107 (undisputed); #92-1 at Exs. 39, 40.) Four days later, on June 30, 2020, Skinner received an
unannounced wire in the amount of $700,000, also from the Yongquan Trading Co., Limited. (#87
¶ 55; #107 ¶ 55.) Also on June 30, Mr. Li sent wire receipt images for two additional transfers in
the amount of $295,049 and $7,000, both of which Skinner’s bank averred it never received.7 (#87
¶¶ 67-72; #107 ¶¶ 67-72.) The $200,000 payment arrived in Skinner’s account on July 2, it too
originating from the Yongquan Trading, Co., Limited. (#87 ¶ 47; #107 (undisputed).)

Also between June 26 and June 30, Skinner received approximately 150 small payments—
each between a few hundred to two or three thousand dollars—via money orders, personal checks,
and one cash deposit. (#87 ¶ 56; #107 (undisputed); ##94-1 – 96-1 at Ex. 45.) The payments were
made by numerous payors, none of whom Mr. Fang or Mr. Li knew, and many of whom Skinner

6 Plaintiff claims that Mr. Li promised a $668,500 wire, and that no such payment ever arrived in
Skinner’s bank account. (#87 ¶¶ 44-45.) But, Mr. Li did not promise to send the remainder as a
single wire (although he promised it would all arrive on June 29) and, unlike the $640,000
payment, he never sent a wire receipt for that amount as of that date. (#92-1 at Ex. 36.)

7 Defendants claim that the $7,000 wire was deposited on June 28, 2020, citing a cropped
photograph of a deposit receipt. (#89 at App. 129.) Defendants do not dispute that the $295,049
wire never arrived. (#87 ¶ 67; #107 ¶ 67.)
could not identify due to illegible or incomplete information on the transfer slips. (#87 ¶¶ 58-60;
#107 ¶¶ 58-59 (¶ 60 undisputed); ##94-1 – 98-1 at Exs. 45-46) The payments totaled $113,451
and $111,940; Skinner credited them to defendants’ account, as reflected in an invoice sent to
defendants’ counsel dated July 8, 2020. (#88-2 ¶ 52; #104 ¶ 52.) The situation was “unusual and
unprecedented at Skinner,” as “no one at Skinner can remember a situation even similar factually

to this one over the course of Skinner’s decades in business.” (#87 ¶ 61; #107 ¶ 61.)
During the same period, Skinner also received a $26,000 check that was returned for
insufficient funds, and then resubmitted successfully on July 9, 2020. (#87 ¶ 57; #107 ¶ 57.) On
July 2, 2020, Mr. Li contacted Skinner, stating that “one of our friends in the US” had overpaid
Skinner by $111,940 via ten payments by “mistake.” (#87 ¶ 62; #107 (uncontested).)
Mr. Li claimed that by June 30 he had sent Skinner the entire invoice less sales tax,
amounting to $1,608,500. (#99-1 at Ex. 55.) As of July 9, however, Skinner had only received
$1,429,399—$279,632.25 less than the total invoice price and $179,101 less than the invoice price
without sales tax.8 (#87 ¶ 65; #107 ¶ 65; #89 at App. 525-29 (June invoice that does not yet reflect

the undisputed $26,000 check clearance on July 9).)
D. Defendants’ Foreign Payment Agent.
As it turned out, neither Mr. Li nor Mr. Fang were “involved in making any payments to
Skinner for the [Vase].” (#87 ¶ 50; #107 ¶ 50; #104 ¶ 17 (plaintiff’s additional facts); #114 ¶ 17.)
Because Mr. Fang was living in Shanghai, which defendants claim restricts currency transfers
outside of China, he required the assistance of third parties outside of China to facilitate

8 Skinner cites internal records demonstrating defendants had paid $1,418,391 by July 9 (#92-1 at
Ex. 31), and defendants cite the July 8 invoice demonstrating that they had paid $1,429,399 (if
calculated to include the $26,000 payment that the parties agree was credited the following day)
(#89 at App. 525-529). The difference is not material to the issues, so the court will recognize the
information included on the June 8 invoice.
international payments. (#88-2 ¶ 27; #104 ¶ 27.) So, Mr. Fang enlisted an agent named Yangfeng
Liu to complete his payments to Skinner.9 (#87 ¶ 51; #107 (undisputed).) Defendants identified
Mr. Liu in their amended initial disclosures, noting his contact information as “London, U.K.
(Address and Phone number unknown).” (#87 ¶ 52; #107 (undisputed); #99-1 at Ex. 5.) Their
arrangement worked as follows: Mr. Liu would arrange to make payments to Skinner and would

communicate to Mr. Fang that those payments had been made; Mr. Fang would then send payment
information, including receipts, to Mr. Li; Mr. Li would send those receipts to Skinner; and then
Mr. Fang would send payment to Mr. Liu. (#87 ¶¶ 53-54; #107 (undisputed).)
E. Mr. Li Requests Confirmation of Receipt of Payment and Deduction of Sales
Tax.
Defendants’ payments were paralleled by a voluminous back-and-forth in which Mr. Li
sought (i) confirmation of Skinner’s receipt of his wires, and (ii) an invoice deducting sales tax.
As noted above, Mr. Li first requested an invoice without sales tax in an email to Mr. Debordes
Jackson dated June 24, 2020, in which he explained that the Vase was to be shipped out of the
United States. (#88-2 ¶ 40; #104 ¶ 40.) Ms. Keane received Mr. Li’s email but did not respond to
him. (#88-2 ¶ 40; #104 ¶ 40; #89 at App. 246-47; #92-1 at Ex. 33.)
On June 29, and twice on June 30, Mr. Li emailed Skinner to confirm receipt of pending
wire transfers. (#88-2 ¶ 49; #104 ¶ 49.) On June 30, Ms. Keane emailed Mr. Li promising to send
an email “at the close of the business day reflecting any credits to [his] account.” (#104 ¶ 62
(plaintiff’s additional facts); #114 ¶ 62; #105-1 at Ex. 98.) Later that same day, Mr. Debordes

9 Mr. Fang typically used another agency in Hong Kong, Sheng Zuan Logistics Company, to
arrange for international payments and shipping, but here he used Mr. Liu. (#88-2 ¶ 29; #104
¶ 29.) He had worked with Mr. Liu six or seven times in the past for this purpose. (#88-2 ¶ 32;
#104 ¶ 32.)
Jackson emailed Mr. Li an updated invoice10 (#104 ¶ 66 (plaintiff’s additional facts); #114 ¶ 66.),
followed by an email confirming the updated invoice had been sent and stating that “as of 6/30/20
we have not received your payments of $200,000.00, $295,049.00. We post and reconcile wire
deposits every morning. You will receive an email confirmation once your invoice has been paid
in full.” (#104 ¶ 67 (plaintiff’s additional facts); #114 ¶ 67.)

Skinner emailed the invoice again on July 1 (#104 ¶ 68; #105-1 at Ex. 100 (attached invoice
not in record as cited but indicated on face of email); #114 ¶ 68 (disputing attached invoice existed
and also claiming invoice was identical to the one sent on June 30)), and Mr. Debordes Jackson
again followed that invoice with a separate email, this time requesting further information
regarding the purported wires of $200,000 and $295,049. (#104 ¶ 69 (plaintiff’s additional facts);
#114 ¶ 69; #105-1 at Ex. 101.) Mr. Li responded the same day, stating that the wires should have
arrived already and asking Mr. Debordes Jackson to “[p]lease check your account regularly.”
(#88-2 ¶ 64; #104 ¶ 64; #89 at App. 492.)
The next day, July 2, Skinner notified Mr. Li that “[f]unds ha[d] now been posted to [his]

account” for a total amount paid to date of $1,117,451 and informed him that “[o]nce paid in full”
he was welcome to schedule a contact-less pickup.11 (#104 ¶ 70 (plaintiff’s additional facts); #114

10 Defendants dispute the accuracy of Skinner’s invoice. They argue that Skinner “did not confirm
receipt of sums that had been wired and failed to accurately reflect credits to the account,” but they
cite no evidence demonstrating that Skinner did not apply payments that it had received and
processed from defendants as of that date. (#114 ¶ 66.)

11 Defendants dispute the accuracy of the amount reflected in Skinner’s email, claiming that by
July 2, Skinner had received $1,425,391, not $1,117,451 as the July 2 email indicates. (#114 ¶ 70.)
As support, they cite two undated invoices Skinner sent to Mr. Li reflecting the higher amount and
payments received through July 2. Id.; #89 at App. 525-535. The invoices do not reflect, however,
when those payments were processed and posted to Mr. Li’s account.
¶ 70.) Mr. Li quickly followed up requesting an “updated invoice once [Skinner] received 295,049
USD and 200,000 USD.” (#88-2 ¶ 64; #104 ¶ 64; #89 at App. 489.)
On July 6,12 Mr. Li called Skinner’s Accounts Receivables department and, receiving no
response, again emailed Ms. Keane, noting that “My client need[s] the vase ship[ped] out ASAP.”
(#88-2 ¶ 64; #104 ¶ 64; #89 at App. 135.) Ms. Keane responded, informing Mr. Li that receipts

received over the holiday weekend would be posted the following day, July 7, and that Mr.
Debordes Jackson would be reaching out to him with any updates at that time. (#88-2 ¶ 64; #104
¶ 64; #89 at App. 490.) He also emailed Mr. Debordes Jackson on July 6 seeking confirmation
that Skinner had received the “full payment.” (#88-2 ¶ 64; #104 ¶ 64; #89 at App. 485.)
The next day, July 7, Mr. Li promptly emailed Ms. Keane (#88-2 ¶ 67; #104 ¶ 66
(responding to ¶ 67); #89 at App. 490) and the Accounts Receivable Department (i.e. Mr. Debordes
Jackson) (#88-2 ¶ 64; #104 ¶ 66 (responding to ¶ 67); #89 at App. 493) requesting an update on
the status of his full payment. In his email to Accounts Receivable, Mr. Li also asked Skinner to
remove the sales tax from his updated invoice and provided, for the first time, documentation

verifying that the Vase would not be subject to Massachusetts sales tax. (#88-2 ¶ 55; #104 ¶ 55;
#89 at App. 493.) Ms. Keane directed Mr. Debordes Jackson not to respond to Mr. Li because she
had delegated the investigation into Mr. Li’s payments to Kristina (“Tina”) Sutton, Skinner’s CFO.
(#89 at App. 519.)
Also on July 7, Mr. Li began communicating with Skinner through counsel. (#87 ¶ 90;
#107 (undisputed).) On July 8, Skinner’s counsel, Martin Desmery, sent to William Wei, one of
Mr. Li’s three attorneys, a copy of the latest invoice and deposit report, which credited Mr. Li’s

12 July 4, 2020 fell on a Saturday, so the federal holiday was observed on Friday, July 3, meaning
Skinner’s business was closed from July 3 through Sunday, July 5. (#104 ¶ 71 (plaintiff’s
additional facts); #114 ¶ 71 (not disputing the observance of a federal holiday).)
account $1,403,409. (#88-2 ¶ 71; #104 ¶ 70 (responding to defendants’ ¶ 71); #89 at App. 525-
29.) The invoice included the small payments discussed above and continued to list Massachusetts
sales tax. Id.
F. Victims of Fraud Contact Skinner.
Amid the flurry of payments and communications, on July 6, an individual named Deepa

Luthra, wife of Sanjeev Kumar, contacted Skinner via telephone to explain that she had been
contacted on July 1 or 2, 2020, by a company called “Utility Savings Expert” who told her that she
could pay her utility bill through Skinner. (#87 ¶ 81; #107 (undisputed).) She reported that she
had arranged for a cashier’s check with her husband’s name to be deposited into Skinner’s Bank
of America account in the amount of $2,934, (#87 ¶ 82; #107 ¶ 82 (disputing evidentiary
foundation that check bore Mr. Kumar’s name); #104 ¶ 40 (plaintiff’s additional facts); #114 ¶ 40
(not disputing name on check)), but was now worried that she had been misled. (#87 ¶ 83; #107
(undisputed).) She followed up via email, id., as did her husband, who corresponded with Ms.
Sutton via email between July 8 and 13, 2020. (#87 ¶ 84; #107 (undisputed).) Both Ms. Luthra
and Mr. Kumar’s bank, SunTrust, and Skinner’s bank, Bank of America, opened an investigation

into the potential fraud. (#87 ¶ 85; #107 (undisputed).) When the investigation concluded, on or
around September 28, 2020, Bank of America determined that the “transaction was unauthorized”
and debited Skinner’s account for the payment by Ms. Luthra and Mr. Kumar, returning it to
SunTrust. (#104 ¶ 44 (plaintiff’s additional facts); #114 ¶ 44; #99-1 at Ex. 69, 70.)13

13 Defendants dispute paragraph 44, noting only that the “letter from Bank of America states that
it was advised that the transaction was unauthorized,” apparently contesting that the transaction
actually was found to be unauthorized and not the authenticity of the communication itself. (#114
¶ 44.) The letter states both that Bank of America was informed the transaction may be
unauthorized and that “[t]he transaction was unauthorized,” resulting in a deduction from
Skinner’s account in the amount of $2,934. (#99-1 at Exs. 69, 70.)
On July 8, Ms. Keene had a conversation with John Pajka at Bank of America in which she
claims Mr. Pajka recommended canceling the sale of the Vase because of how defendants’
payments had come in. (#88-2 ¶ 74; #104 ¶ 73 (responding to defendants’ ¶ 74); #104 ¶ 45
(plaintiff’s additional facts); #114 ¶ 45 (disputing the substance of the conversation, but not that it
occurred).) Mr. Pajka also advised Skinner that if individuals came forward claiming fraud,

Skinner would be liable. (#87 ¶ 88; #107 (undisputed).)
G. The Deal Comes to an End.
As discussed above, beginning on July 7, Mr. Li began communicating with Skinner
exclusively through counsel. (#87 ¶¶ 89-90; #107 (undisputed).) On that date, Mr. Li’s counsel
sent Skinner an email stating that Mr. Li had paid $1,720,440, asserting that this was an
overpayment of $111,940, and seeking to confirm that his client could arrange to have a verified
shipping company pick up the Vase no later than July 10, 2020. (#87 ¶ 90; #107 (undisputed).)
Also on July 7, U.S. Art Company contacted Skinner to arrange to remove the Vase for shipment
to China on July 10, 2020. (#87 ¶ 80; #107 (undisputed).) Skinner advised them that the Vase
had not been fully paid for and could not be removed. Id.; #105-1 at Ex. 104.

The next day, Mr. Desmery responded to Mr. Li’s counsel with an updated invoice
reflecting a remaining balance on his account. (#89 at App. 524-35.) As mentioned above, this
invoice still included Massachusetts sales tax. Id. A colloquy ensued via email, text, and phone
over the following days and finally, on July 10, Mr. Li’s counsel informed Mr. Desmery via text
that his “client will suffer $1 million in damages if this isn’t handled in time. That’s a problem for
you and me.” (#87 ¶ 91; #107 ¶ 91 (citing plaintiff’s exhibits Exs. 72-81 as evidence of counsel’s
communications); #99-1 at Ex. 74.) Counsel also sent Mr. Desmery an email stating that “we have
an emergency,” once again requesting that he call him. (#87 ¶ 91; #107 ¶ 91; #99-1 at Ex. 75.)
Later that day, Friday, July 10, Mr. Desmery emailed Mr. Li’s three attorneys, Mr. Wei,
Bari Zahn, and Robert Zausmer, stating that he was “done with this circus,” and informing them
that “Skinner ha[d] decided to cancel the sale. But it will take time on Monday to connect with
the client and bankers, so if you have a proposal I suggest you put it in writing and deliver by
Monday morning,” July 13. (#89 at App. 521.) As directed, over the weekend Mr. Zausmer sent

Mr. Desmery a proposal in which Mr. Li agreed to, among other things, (i) send an immediate wire
amounting to the sum of the remaining balance on the Vase as well as the payments Skinner
considered to be “questionable,”14 (ii) pay Skinner’s “reasonable legal fees” for an interpleader
action related to the “questionable” payments, and (iii) indemnify Skinner for any liability it may
incur with respect to those payments. (#99-1 at Ex. 76.) At 6:22 a.m. Monday morning, July 13,
Mr. Zausmer followed up on his email noting that he “would appreciate the professional courtesy
of a response to the e-mail I sent you yesterday.” Id. Mr. Desmery responded later that day with
concerns and questions regarding Mr. Zausmer’s proposal, including that any indemnity provisions
would be difficult to enforce on a Chinese national living outside the U.S., and made no

commitments regarding the proposal. (#87 ¶ 93; #107 ¶ 93; #99-1 at Ex. 77.) Mr. Zausmer
responded with a counter-proposal in which his client would, among other things, take full
responsibility for the interpleader action related to the “questionable” payments. (#99-1 at Ex. 81.)
His email further emphasized that “time is becoming of the essence” and that his client advised
him that “he must take physical possession of the Vase from Skinner by no later than this Friday,

14 The court refers to these payments as “the questionable payments,” with the understanding that
these are the payments that Skinner considered to be questionable. (#87 ¶ 92; #107 ¶ 92; #99-1 at
Ex. 76 (Mr. Zausmer referring to the “portion of the unpaid balance which Skinner regards as
questionable (hereafter, the ‘Questionable Payments’).”) Whether the payments were in fact
“questionable” remains in dispute. Id.
July 17.” Id. He indicated that, “if we don’t have an agreement worked out very soon, I foresee
litigation coming down the pike.” Id.
The next day, July 14, Mr. Desmery formally canceled the sale on Skinner’s behalf. (#87
¶ 94; #107 ¶ 94; #99-1 at Ex. 78.) In his email, he laid out the facts of the suspicious payments,
the strange timing of the wires and the “flurry” of small payments, and concluded that, “[b]ased

on the foregoing, as well as the unpaid balance of Skinner’s invoice, Skinner has decided to
exercise its right to cancel the sale of the Vase to Mr. Li.” (#87 ¶ 95; #107 (undisputed); #99-1 at
Ex. 78.) With respect to the $1.4 million Skinner had received to date, Mr. Desmery explained
that Skinner intended to file an interpleader action, naming Mr. Fang and the “John Doe’s” that
supposedly sent money on Mr. Li’s behalf and “let[ting] a judge decide if, when, and how much
to return to Mr. Li.” (#99-1 at Ex. 78.) Mr. Zausmer sent yet another counter-proposal in an
attempt to save the sale, noting that his client had sent an additional wire payment of $350,000
over the weekend. (#87 ¶ 96; #107 ¶ 96; #99-1 at Ex. 79.) Skinner never received that $350,000
payment. (#87 ¶ 96; #107 ¶ 96.) He also offered numerous times to provide Skinner with the

names and identities of the people who had made the small payments into Skinner’s account (#87
¶ 97; #107 ¶ 97), but never did so. (#87 ¶ 98; #107 ¶ 98 (disputing Skinner’s characterization but
conceding that defendants “did not know those individuals’ identities”).)
H. The Second Auction of the Vase.
Skinner ultimately included the Vase in a second auction on October 9, 2020, in which
Skinner agreed to indemnify the purchaser from any claim to title from defendants. (#87 ¶¶ 99-
100; #107 ¶ 99 (¶ 100 undisputed).) The Vase sold for a winning bid of $1,050,000—$280,000
less than the hammer price in June. (#87 ¶ 101; #107 (undisputed).) The lower hammer price
resulted in a buyer’s premium that was $56,000 less than that expected from the June sale, and,
because Skinner had agreed to a commission charge 6% less than the one in June, Skinner lost
$96,600 in commission fees on the second sale. (#87 ¶¶ 101-03; #107 ¶ 103 (¶¶ 101-02
undisputed).) The buyer paid in full for the Vase by November 12, 2020, via five bank wires.
(#104 ¶ 58 (plaintiff’s additional facts); #114 ¶ 58; #100-1 at Ex. 89.) Skinner settled with the
Vase’s consignor the same day, and, on November 24, 2020, confirmed shipment of the Vase to
the buyer. (#87 ¶ 105; #107 (undisputed); #100-1 at Exs. 90-91.)

I. The Interpleader Action and this Lawsuit.
Skinner continues to hold the funds paid by defendants or by third parties allegedly on their
behalf—a total of $1,483,161.15 (#87 ¶ 106; #107 ¶ 106 (claiming total paid $1,429,399).) On
July 24, 2020, Skinner filed an interpleader action naming Mr. Li, Mr. Kumar, Ms. Luthra, and
“John Does 1 through 50, representing the unknown individuals or entities that provided suspicious
funds to, for or on behalf of Li.” (#1 at 1 (interpleader complaint).) Along with the interpleader
count, Skinner’s complaint included a claim for breach of contract against Mr. Li. Id. at 8-9. In
conjunction with its complaint, Skinner moved to deposit $928,172.66 of the disputed $1.4 million
and sought authorization to retain $558,095 as compensation for its lost commission and fees and
anticipated attorneys’ fees and costs. (#3.) In response, Mr. Li filed counterclaims against Skinner,

claiming breach of contract, breach of the implied covenant of good faith and fair dealing, and
violation of M.G.L. c. 93A (#14), which Skinner moved to dismiss (#19). Mr. Li also moved to
require Skinner to deposit with the court $1,720,440, which he claimed to have paid to Skinner as
part of the sale of the Vase. (#24.) Skinner opposed this, too. (#25.)

15 The parties dispute whether Skinner holds the funds in a segregated account or an escrow
account. Defendants assert that no escrow account exists. (#107 ¶ 106; #89 at App. 1066.)
Plaintiff does not seem to disagree and claims instead that the funds remain in a segregated Bank
of America account. (#87 ¶ 106; #100-1 at Exs. 92-94.) In any event, it is undisputed that Skinner
continues to hold the funds and has neither returned them to defendants nor absconded with them
outright.
Ultimately, Skinner was unable to ascertain the identities of the remaining individuals who
sent payments to Skinner in the form of cashier’s checks or money orders (other than Ms. Luthra
and Mr. Kumar, who had already been reimbursed), and Mr. Li did not provide any of the
information necessary to serve them, so on February 11, 2021, Skinner moved to amend its
complaint to drop the interpleader, drop Ms. Luthra and Mr. Kumar as defendants, add Mr. Fang

as a defendant, and assert direct claims against him and Mr. Li. (#26 at 1, ¶¶ 9, 19.) The court
allowed the motion16 (#34), and plaintiff filed its amended complaint (#35) asserting against Mr.
Li and Mr. Fang identical claims for breach of contract (Counts I & II), breach of the implied
covenant of good faith and fair dealing (Counts III & IV), violation of M.G.L. c. 93A § 11 (Counts
V & VI), fraudulent misrepresentation (Counts VII & VIII), and declaratory judgment (Count IX).
Defendants filed their counterclaims (#35), which Skinner again opposed (#44). Defendants did
not move to dismiss any of Skinner’s claims. In its order on Skinner’s motion, the court limited
the scope of defendants’ counterclaims. (#67.)
J. The Motions to Strike (## 101, 109).
The parties then moved into discovery. On March 31, 2022, Skinner deposed Mr. Fang

with the assistance of an interpreter. (#101 at 1; #110 at 2). The final transcript of Mr. Fang’s
deposition was transmitted in English to plaintiffs, and one assumes to defendants as well, on April
13, 2022. Id. The parties did not stipulate to an agreed-upon deadline for errata, so the 30-day
deadline set forth in Fed. R. Civ. P. 30(e)(1) ruled and ran on May 13, 2022. (#101 at 1-2.)
Defendants never requested additional time to serve their errata. Id. at 2.
The parties filed cross-motions for summary judgment on July 15, 2022. (#85; #88.) Also
on July 15, defendants served an errata sheet for Mr. Fang’s deposition, signed that day and

16 The court also denied as moot plaintiff’s motion to dismiss (#19) and denied defendants’ motion
for deposit of interpleader funds (#24).
claiming that there was an error in translation on page 57, line 13 (among other minor changes).
(#101 at 2; #110 at 2; #89 at App. 883-84 (errata sheet).) In context, the change had a substantive
effect on Mr. Fang’s testimony:
Original:

Q. What evidence do you have, if any, that Skinner engaged in negligent or faulty
accounting practices?

[…]

A. But in terms of negligence, I think there was some negligence.

Q. And what is your evidence of that negligence?

A. I think under normal circumstances . . . Skinner had sent me an invoice that
excluded the sales tax, if Skinner had confirmed with me how much they had
received and how much the remaining payment that they had not received in time,
specifically if Skinner had send me the invoice that didn’t show taxes in time, I
might have been able to pay the amount off without any help from Mr. Liu.

(#89 at App. 877-78 (emphasis added)).
With errata change to final sentence:
Q. And what is your evidence of that negligence?

A. I think under normal circumstances . . . Skinner had sent me an invoice that
excluded the sales tax, if Skinner had confirmed with me how much they had
received and how much the remaining payment that they had not received in time,
specifically if Skinner had send me the invoice that didn’t show taxes at the
beginning, I would have been able to pay the amount off without any help from
Mr. Liu.

Id. (applying changes reflected in errata sheet). Defendants relied on the change in their statement
of material facts, e.g., #88-2 ¶ 58, and their summary judgment memorandum, e.g., #88-1 at 9.
After attempting to confer with defense counsel four times over four days (three times by
email and once via voicemail), plaintiff moved to strike the errata sheet on the morning of the
summary judgment opposition deadline. (#101.) The motion included a Rule 7.1 certification,
setting out plaintiff’s attempts, and ultimate failure, to confer prior to filing the motion. Id. Two
days later, defendants filed a motion to strike plaintiff’s motion to strike (#109), claiming plaintiff
failed to comply with Rule 7.1 and that, if it had, the parties would have been able to re-review the
video deposition and agree to a translation without the court’s intervention. Defendants’ motion
did not include a Rule 7.1 certification. Id. Both motions are opposed. (#110; #112).

The court heard argument on all four motions on January 5, 2023. (#118.)
III. The Summary Judgment Motions.
A. Legal Standard.
“Summary judgment is appropriate when the moving party ‘shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Drew
Co., Inc. v. Wolf, 511 F. Supp. 3d 15, 17 (D. Mass. 2021) (quoting Fed. R. Civ. P. 56(a)). “Facts
are material when they have the ‘potential to affect the outcome of the suit under the applicable
law.’” Cherkaoui v. City of Quincy, 877 F.3d 14, 23 (1st Cir. 2017) (quoting Sánchez v. Alvarado,
101 F.3d 223, 227 (1st Cir. 1996)). “And, ‘[a] dispute is ‘genuine’ if ‘the evidence about the fact
is such that a reasonable jury could resolve the point in the favor of the non-moving party.’”
Rivera-Rivera v. Medina & Medina, Inc., 898 F.3d 77, 87 (1st Cir. 2018) (quoting Cherkaoui, 877

F.3d at 23-24) (alteration in original). “A court must view all properly supported evidence in the
light most favorable to the non-movant and draw all reasonable inferences in the non-movant’s
favor.” Winfield v. Lawrence Gen. Hosp., No. 1:16-cv-11482, 2018 WL 4854628, at *1 (D. Mass.
Oct. 5, 2018) (citing Griggs-Ryan v. Smith, 904 3.2d 112, 115 (1st Cir. 1990)). But, “a court must
‘disregard conclusory allegations, improbable inferences, and unsupported speculation in
determining whether a genuine factual dispute exists.’” Id. (quoting Cherkaoui, 877 F.3d at 23).
“‘When facing cross-motions for summary judgment, a court must rule on each motion
independently, deciding in each instance whether the moving party has met its burden under Rule
56.’” Winters v. Ocean Spray Cranberries, Inc., 296 F. Supp. 3d 311, 316 (D. Mass. 2017)
(quoting Ferguson v. Gen. Star Indem. Co, 582 F. Supp. 2d 91, 98 (D. Mass. 2008)). “‘Cross-
motions for summary judgment do not alter the basic Rule 56 standard, but rather simply require
the court to determine whether either of the parties deserves judgment as a matter of law on facts
that are not disputed.’” Drew Co., Inc., 511 F. Supp. 3d at 18-19 (quoting Ferguson, 582 F. Supp.

2d at 98) (alteration omitted).
“Massachusetts law determines the elements of the parties’ claims because the case is
properly before this [c]ourt based on diversity jurisdiction,” Wagner v. Fed. Home Loan Mortgage
Corp., 494 F. Supp. 3d 80, 85 (D. Mass. 2020); (#35 ¶ 4), and the COS expressly provide that they
“shall be governed by the laws of the Commonwealth of Massachusetts,” (#91-1 at Ex. 12 ¶ 13).
B. Plaintiff’s Motion for Summary Judgment (#85).
Plaintiff moves for summary judgment on all nine counts in its Amended Complaint (#35)
and on all three of defendants’ counterclaims (#40 (as limited by #67)). On plaintiff’s motion, the
court reviews all the facts in a light most favorable to defendants and makes all reasonable
inferences in their favor. Winfield, 2018 WL 4854628, at *1.

i. Skinner’s breach of contract claims – Counts I & II
“‘Under Massachusetts law, the elements of a breach of contract claim are that there was
an agreement between the parties; the agreement was supported by consideration; the plaintiff was
ready, willing, and able to perform his or her part of the contract; the defendant committed a breach
of the contract; and the plaintiff suffered harm as a result.’” Durbeck v. Suffolk Univ., 547 F. Supp.
3d 133, 144-45 (D. Mass. 2021) (quoting Squeri v. Mount Ida Coll., 954 F.3d 56, 71 (1st Cir.
2020)). The existence of a valid contract—here, the COS—is not in dispute.17
a. Parties’ positions.
Skinner argues that it was ready, willing, and able to perform under the COS and claims

that defendants have not produced any evidence that Skinner did not have possession of the Vase
and/or would not have delivered the Vase upon receipt of full payment. (#86 at 11.) It claims that
(i) Skinner’s messages to Mr. Li informing him that the Vase would be released only upon payment
in full, and (ii) the delivery of the Vase to another buyer who did pay in full, prove this element of
its claim. Id. As to breach, Skinner argues that there is no dispute that defendants did not pay for
the Vase on the day of the sale, breaching Section 4 of the COS, and that Skinner never received
full payment—even less sales tax—breaching Section 6. Id. at 11-12. Skinner does not base its
breach of contract claim on the legitimacy of the “questionable” payments from defendants.
Defendants’ relevant defenses18 fall into four categories: impossibility, waiver,

modification, and unclean hands. Defendants claim, first, that it was impossible for them to
comply with Section 4 of the COS, which required full payment on the date of sale, because
Skinner did not send an invoice until the next day. (#106 at 9.) Second, Skinner’s June 24 request
for payment constituted waiver of Section 4. Id. Third, Skinner’s acceptance of defendants’ late
payments constituted a modification of the COS that allowed defendants an as-yet-undefined
additional amount of time to pay. Id. at 11. Finally, Skinner’s failure to confirm whether it

17 Although the parties quibble over whether Mr. Li agreed to the COS before bidding on the Vase,
e.g. #107 ¶¶ 3, 5, the parties agree, id., and the court has ruled, (#67 at 6, 9), that the COS governed
the parties’ relationship.

18 Defendants’ opposition responds to many arguments that Skinner did not make in its opening
motion, so the court will focus only on those arguments that address live issues.
received the final wires hindered defendants’ performance, such that Skinner cannot now claim
breach. Id. at 11-12.
b. Discussion.
There is no dispute that defendants did not pay for the Vase on the day of the auction, nor

any dispute that Section 4 required them to do so.19 (#87 ¶ 32; #107 (undisputed).) There is also
no dispute that defendants never paid for the Vase in full, even less sales tax. E.g. #106 at 6
(conceding “[i]n total, Skinner received $1,429,399.00 from the defendants toward a $1,608,500
obligation”); #107 ¶ 45 (calculating total payment as $1,429,399 “toward a $1,608,500
obligation”). There is, however, a dispute as to whether plaintiff waived its rights under or
otherwise modified the COS by (i) requesting payment days after the sale and (ii) accepting
defendants’ late and partial payments. Bachorz v. Miller-Forslund, 703 F.3d 27, 32 (1st Cir. 2012)
(“Whether a party has waived a right under a contract is usually a question of fact, but the issue
may be resolved on summary judgment when ‘the evidence is clear, unequivocal and undisputed.’”

(quoting Metro Transit Auth. v. Ry. Exp. Agency, Inc., 84 N.E.2d 26, 28 (Mass. 1949)).

19 Defendants argue that Skinner sent the invoice on June 19 rather than June 18, therefore making
it impossible for defendants to pay on the day of the auction in accordance with Section 4. (#106
at 9.) Defendants’ argument relies on a version of Skinner’s invoice email with a BST timestamp
that indicates Mr. Li received the email at 2:04 BST on June 19, 2020. (#89 at App. 591.) The
document appears not to have been produced in discovery, as it bears no bates stamp. Id. In the
memorandum of law in support of their own motion, defendants state that “BST refers to British
Summer time, which is Greenwich Mean Time +1,” or six hours ahead of Eastern Standard Time.
(#88-1 at 6 n. 4.) Defendants produced another version of the same email with a timestamp of
10:05 pm on June 18, 2020, or four hours ahead of the BST timestamp. (#92-1 at Ex. 28 (bates
stamped Li_0000042).) That version did not indicate a time zone. Id. Both documents ostensibly
originated with defendants, so this is not a question of whose evidence to believe. See #111 at 5-
6. Luckily, the court need not parse these apparent discrepancies—even if Skinner did send the
invoice on June 19, there is no evidence that defendants paid or attempted to pay Skinner the total
amount on that date, either.
The court has already ruled that the COS’s terms are unambiguous and therefore extrinsic
evidence may be used to interpret, but not contradict, its terms. (#67 at 9.) Interpretation of those
terms is a question of law that is proper for summary judgment. Faiola v. APCA Graphics, Inc.,
2010 WL 11579960, at *8 (D. Mass. Jan. 12, 2010) (“‘If a contract . . . is unambiguous, its
interpretation is a question of law that is appropriate for a judge to decide on summary judgment.’”

(quoting Seaco In. Co. v. Barbosa, 761 N.E.2d 946, 951 (Mass. 2002))). Plaintiff argues that the
terms of the contract grant it the option to terminate the agreement at any time if a buyer fails to
pay for an item on the day of the auction. (#111 at 4.) The court has already ruled, however, that
the COS alone does not foreclose the possibility of implicit waiver or modification. (#67 at 12.)
In fact, the court found that Skinner’s revised invoice reflecting its application of
defendants’ late payments could show that “Skinner accepted the delayed payments and intended
to allow defendants to submit additional payment(s) to complete their purchase.” Id. Skinner’s
emails support this inference, indicating that plaintiff may have continued to accept payment until
defendants paid in full, at which time there is little argument that they would no longer have been

in breach. E.g., #99-1 at Ex. 53 (e-mail from Skinner to Mr. Li dated June 30, 2020, applying
payments to date: “You should have received an email with your invoice attached . . . You will
receive an email confirmation once your invoice has been paid in full. If you have any questions
about remitting payment or looking for confirmation please feel free to email us here, or call”);
Ex. 54 (updated invoice crediting post-June 18 payments to Mr. Li’s account).
Skinner has not produced additional evidence at summary judgment barring the possibility
that it modified the terms of the agreement, other than Mr. Li’s deposition testimony admitting
that Skinner never agreed to a payment plan, (#111 at 8; # 87 ¶ 49; #107 ¶ 49), which was already
supported by documentary evidence that this court credited under Rule 12(b)(6) (#67 at 11-12).
The uncontroverted evidence that defendants never paid for the Vase in full does not foreclose the
possibility that Skinner had modified the terms of the COS to allow them additional time to pay.
Cf. id. (noting that in deciding plaintiff’s motion to dismiss, the court must take as true defendants’
allegation that they did pay in full). Viewing the facts in defendants’ favor, a reasonable jury could
find on this record that Skinner modified the terms of the contract by accepting late payments

and/or waived its right to terminate the sale without warning for failure to pay on the day of the
auction. Skinner’s motion is denied as to Counts I and II of its amended complaint (#35).
ii. Skinner’s breach of the implied covenant of good faith and fair
dealing claims – Counts III & IV
“[I]n Massachusetts, every contract is subject to an implied covenant of good faith and fair
dealing.” Anthony’s Pier Four, Inc. v. HBC Assocs., 583 N.E.2d 806, 821 (Mass. 1991). “The
implied covenant of good faith and fair dealing provides ‘that neither party shall do anything that
will have the effect of destroying or injuring the right of the other party to receive the fruits of the
contract[.]’” Id. at 820 (quoting Drucker v. Roland Wm. Jutras Assocs., 348 N.E.2d 763, 765
(Mass. 1976)). That said, “[t]he purpose of the covenant of good faith and fair dealing is not to
supply contractual terms that the parties are free to negotiate.” Uno Restaurants, Inc. v. Boston
Kenmore Realty Corp., 805 N.E.2d 957, 966 (Mass. 2004); see Ayash v. Dana-Farber Cancer
Inst., 822 N.E.2d 667, 685 (Mass. 2005) (“This implied covenant may not be invoked to create
rights and duties not otherwise provided for in the existing contractual relationship, but rather

concerns the manner of performance.” (internal quotes and citations omitted)).
Recovery under a theory of breach of the implied covenant of good faith and fair dealing
“‘requires conduct taken in bad faith either to deprive a party of the fruits of labor already
substantially earned or unfair leveraging of the contract terms to secure undue economic
advantage.’” Gallagher v. J.P. Morgan Chase Bank, N.A., No. 21-cv-11411, 2022 U.S. Dist. WL
1538923, at *9 (D. Mass. May 16, 2022) (Christiansen v. Kingston Sch. Comm., 360 F. Supp. 2d
212, 226 (D. Mass. 2005)). Such harms “generally involve deceit or ‘unfair subterfuge’ and usually
are ‘compounded by deceptive or unfair behavior that prevented—or at a minimum diverted—the
injured parties from seeking immediate redress.’” Christiansen, 360 F. Supp. 2d at 226 (quoting
Boston Pilots v. Motor Vessel Midnight Gambler & E. Coast Excursions, Inc., 357 F.3d 129, 135

(1st Cir. 2004)).
a. Parties’ positions.
Skinner’s implied covenant claim is based on the theory that defendants (i) made false
promises to tender full payment; (ii) sent Skinner inaccurate bank wire receipts; (iii) sourced illicit
funds for payment; (iv) scheduled a shipper to hurriedly pick up the Vase for overseas shipment
before paying in full; and (v) sent threatening demands to Skinner, all in an effort to abscond with
the Vase without paying for it in full. 20 (#86 at 14-15.)
Defendants argue that Skinner failed to present any evidence that (i) defendants knew that

they did not intend to tender full payment when they bid on the Vase; and (ii) the “questionable”
payments were suspicious, illicit, or fraudulent. They claim Skinner’s use of the terms
“suspicious” and “fraudulent” is unsupported and should be rejected as “vitriolic hyperbole,” and

20 Defendants correctly point out that plaintiff based its implied covenant claims on the “suspicious
funds” issue only and not the “absconding” theory. (#35 at ¶¶ 48-55.) Nonetheless, the court sees
no issue in allowing plaintiff to move forward on both theories because plaintiff alleged the
“absconding” theory in its chapter 93A claims, id. at ¶¶ 59, 65, so defendants had adequate notice
and opportunity to explore it in discovery. Avalanche IP, LLC v. FAM, LLC, No. 20-cv-10102,
2022 WL 3597411, at *5 (D. Mass. Aug. 23, 2022) (“While the Court agrees with [counterclaim
defendant] that summary judgment is not an opportunity to raise new claims or theories of liability
. . . the Court will consider the alternative theory . . . because it is based on the same facts that
underlie [counterclaim plaintiff’s] original counterclaim . . . . [T]here are no facts tied to this theory
. . . that were not explored in discovery and that [counterclaim defendant] has not been long aware
of.”)
that plaintiff’s reliance on counsel’s and Bank of America’s advice as to defendant’s potential
fraud is based on impermissible hearsay. (#106 at 7, 12-13.) Finally, defendants argue again that
the court cannot consider any actions taken after the contract ended on July 10 because the
covenant applies only to the performance of a contract; therefore, they say, Skinner cannot rely on
Mr. Li’s efforts to have the vase shipped or the allegedly threatening demands by counsel to

support its claims. Id. at 16-17.
b. Discussion.
Skinner’s implied covenant claims survive summary judgment. The record supports (but
does not prove) Skinner’s theory that defendants were either fraudulently causing individuals to
deposit money into Skinner’s account and/or attempting to abscond with the Vase without paying
for it in full, either of which could support a claim for breach of the implied covenant. Much of
this evidence is undisputed. 21 For example:
 Defendants sent wire transfer receipts for amounts that Skinner never received. (#87 ¶ 67;
#107 ¶ 67 (disputing that Skinner did not receive $7,000 transfer, but not disputing that
Skinner did not receive $295,049 wire for which Mr. Li sent a transfer receipt).)

 Defendants caused around 160 small individual deposits to enter Skinner’s bank account
and the defendants cannot say from where they originated. (#107 ¶ 98 (“This assertion
[that counsel for defendants’ never provided the identities of these various payors] assumes
that the Defendants knew the identities of the various payors. The defendants did not know
these individuals’ identities.”).)

21 Defendants are correct that the evidence submitted by Skinner supporting Bank of America’s or
counsel’s opinions as to the legitimacy of defendants’ payments and/or any indicia of fraud is
hearsay that cannot be considered for the truth of the matter asserted on summary judgment.
Kenney v. Floyd, 700 F.3d 604, 609 (1st Cir. 2012). See, e.g., (#87 ¶ 87 (“Skinner’s Bank of
America representative communicated to Skinner’s CEO Karen Keane on July 8, 2020 that he
recommended ‘cancel[ing] this sale because of the curious way [Skinner] has been paid,’ stating
further that ‘it could be that they are scamming unwitting people out of money or they are
laundering their money from some other scheme. Either way this is a bad deal… [Pajka] also
pointed to their pressure as a tactic that doesn’t look right.’” (citing only Ex. 72
(SKINNER0006680)); #99-1 at Ex. 72 (email from Ms. Keane to Skinner counsel Martin
Desmery, memorializing telephone call with John Pajka from Bank of America).)
 Skinner received a call from Ms. Luthra claiming that she had been the victim of telephone
fraud and that, as a result, she had deposited $2,934 into Skinner’s account. The transfer
was found to have been “unauthorized” and the funds were withdrawn from Skinner’s
account and returned to Ms. Luthra and her husband. (#87 ¶¶ 81-86; #107 ¶¶ 81-86 (only
contesting that “the communication record makes no reference to sending Skinner a
cashier’s check ‘including her husbands [sic] name’”).) Ms. Luthra was defrauded on or
around July 1, around the same period of time that 150 or so deposits of similar amounts
entered Skinner’s account and were credited to Mr. Li’s account, i.e. June 26-30. (#87
¶ 56; #107 (undisputed); ##94-1 – 96-1 at Ex. 45.)

 Defendants secured a shipper and tried to ship the Vase without confirmation of full
payment from Skinner. (#87 ¶ 90; #107 (undisputed); #87 ¶ 80; #107 (undisputed).)

 Defendants’ counsel sent Skinner’s counsel a message that if the Vase was not transferred
it “would be a problem for you and me.” (#87 ¶ 91; #107 ¶ 91 (disputing the
characterization of counsel’s message, but not its substance).)
Defendants dispute that this evidence proves that they were acting in bad faith. The
evidence does not prove plaintiff’s claim as a matter of law, but it creates a dispute of material fact
as to defendants’ intent. Penate v. Kaczmarek, No. 3:17-cv-30119, 2022 WL 407411, at *6 (D.
Mass. Feb. 10, 2022) (“Additionally, this court takes into consideration the principle . . . that ‘intent
is a matter generally deemed ill-suited to summary judgment—as the First Circuit has cautioned,
courts must be exceptionally cautious in granting brevis disposition in such cases.’” (quoting Chu
v. Legion of Christ., 2 F. Supp. 3d 160, 176 (D.R.I. 2014) (quoting In re Varesso, 37 F.3d 760, 764
(1st Cir. 1994) (internal quotation marks omitted))). Giving defendants the benefit of every
inference, a jury could find that they attempted in good faith to purchase the Vase. See Zemrock
v. Yankee Candle Co., Inc., No. 14-cv-30107, 2017 WL 506249, at *11 (D. Mass. Feb. 7, 2017)
(denying summary judgment on retaliation claim because “[i]ssues involving questions of motive,
intent, and state of mind . . . are not usually appropriate for the resolution at the summary judgment
stage.” (citing Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 54 (1st Cir.
2000)). Skinner’s motion is denied as to Counts III and IV of its amended complaint (#35).
iii. Skinner’s violation of M.G.L. c. 93A § 11 claims – Counts V and VI
“To be successful, a plaintiff bringing a claim under § 11 must establish (1) that the
defendant engaged in an unfair method of competition or committed an unfair or deceptive act or
practice, as defined by G.L. c. 93A § 2, or the regulations promulgated thereunder; (2) a loss of
money or property suffered as a result; and (3) a causal connection between the loss suffered and

the defendant’s unfair or deceptive method, act, or practice.” Auto Flat Car Crushers, Inc. v.
Hanover Ins. Co., 17 N.E.3d 1066, 1074-75 (Mass. 2014).
“‘Whether conduct is unfair or deceptive under G.L. c. 93A is a mixed question of law and
fact.’” Vita v. Berman, DeValerio & Pease, LLP, 967 N.E.2d 1142, 1149 (Mass. App. Ct. 2012)
(quoting Zabin v. Picciotto, 896 N.E.2d 937, 963-64 (Mass. App. Ct. 2008), rev. denied, 453 Mass.
1103 (Mass. 2009)). It is a question of fact whether the alleged conduct was unfair or deceptive;
but whether that conduct rose to the level of a Chapter 93A violation is a question of law. H1
Lincoln, Inc. v. South Washington Street, LLC, 179 N.E.3d 545, 556-57 (Mass. 2022). “‘Conduct
in disregard of knowing contractual arrangements and intended to secure benefits for the breaching
party’” may constitute an unfair act or practice under Chapter 93A. Vita, 967 N.E.2d at 1149

(quoting Anthony’s Pier Four, 583 N.E.2d at 821)). But, as the Massachusetts Appeals Court has
noted,
[a] breach of contract, standing alone, is not an unfair trade practice under c. 93A.
Instead, to rise to the level of a c. 93A violation, a breach must be both knowing
and intended to secure “unbargained-for benefits” to the detriment of the other
party. The breaching party’s conduct must exceed the level of mere self-interest,
rising instead to the level of “commercial extortion” or a similar degree of culpable
conduct.
Zabin, 896 N.E.2d at 963 (internal quotation marks and citations omitted). “Specifically, a party’s
refusal to make payments due under a contract does not constitute an unfair trade practice where
the party, in good faith, disputes its obligation to make the payments.” Id. (citing Levings v.
Forbes & Wallace, Inc., 396 N.E.2d 149, 153-54 (Mass. 1979)) (collecting cases).
a. Parties’ positions.
Skinner’s Chapter 93A claims are based on largely the same conduct as its breach of the

implied covenant claims, discussed supra. (#86 at 18-22.) In addition, it claims defendants knew
that they could not pay for the Vase at the time of bidding, hired Mr. Liu as a payment agent to
find the funds, and then made no effort to ensure the funds were legitimate. Id. at 20. Skinner
further argues that defendants knowingly breached the COS by failing to tender payment on the
day of the auction; used deceptive tactics to deter Skinner from exercising its termination rights
by sending false wire receipts, making false promises to pay, and sending illicit funds by way of
individual wires; and then pressured Skinner to transport the Vase before full payment was made
or Skinner could investigate the origin of the funds. Id. at 18-22. Because it alleges defendants’
deceptive acts were knowing and willful, plaintiff claims that it is entitled to statutory treble

damages. Id. at 23-24.
Defendants’ position on Skinner’s Chapter 93A claims is nearly identical to its arguments
on Skinner’s breach of the implied covenant claims, discussed supra. (#106 at 17-19.) Defendants
argue that the record cannot support a finding that the funds defendants transmitted were
illegitimate or tainted, that defendants knowingly misrepresented their ability to pay, or that they
otherwise failed to act in good faith. Id. Even if Skinner could prove its allegations, defendants
argue, they do not rise to the level of a Chapter 93A violation. Id. at 18-19.
b. Discussion.
Once again, Skinner has presented enough evidence to create a dispute of material fact as

to defendants’ bad faith, but cannot prove it as a matter of law. See Tomasella v. Nestlé USA, Inc.,
962 F.3d 60, 71 (1st Cir. 2020) (“Of additional note, ‘Chapter 93A liability is decided case-by-
case, and Massachusetts courts have consistently emphasized the ‘fact-specific nature of the
inquiry.’” (quoting Arthur D. Little, Inc. v. Dooyang Corp., 147 F.3d 47, 55 (1st Cir. 1998))). The
evidence before the court could support a finding that defendants paid for the Vase with illicit
funds or that they intended to make off with the Vase without paying fully, either of which would

support a Chapter 93A claim. Id. at 70, 79 (noting that “[a]n act or practice is unfair [under Chapter
93A] if it is (1) within the penumbra of a common-law statutory, or other established concept of
unfairness; (2) immoral, unethical, oppressive, or unscrupulous; or (3) causes substantive injury to
. . . business people,” and that conduct is “deceptive” if “it possesses a tendency to deceive and it
could reasonably be found to have caused a person to act differently from the way he or she
otherwise would have acted.”) Indeed, courts have found that similar, lesser, behavior violates
Chapter 93A. See, e.g., Renovator’s Supply Inc. v. Sovereign Bank, 892 N.E.2d 777, 786-88
(Mass. App. Ct. 2008), rev. denied, 896 N.E.2d 632 (Mass. 2008) (Table) (holding bank that
“presented [plaintiff] with a ‘take it or leave it’ proposal” after it decided it “wanted new terms

and now had the leverage to achieve” them violated Chapter 93A). But for all the reasons
discussed supra with regard to plaintiff’s implied covenant claim, there remains a dispute of
material fact as to whether the funds were illicit or whether the defendants were acting deceptively
that bars summary judgment in Skinner’s favor. Skinner’s motion is denied as to Counts V and
VI of its amended complaint (#35).
iv. Skinner’s fraudulent misrepresentation claims – Counts VII – VIII
“To prevail on a claim for fraudulent misrepresentation, the plaintiff ‘must establish that
the defendant made a false representation of a material fact with knowledge of its falsity for the
purpose of inducing the plaintiff to act thereon, and that the plaintiff reasonably relied upon the
representation as true and acted upon it to his damage.” Nationwide Book Indus., LLC v. A&S
Booksellers, Inc., 950 F. Supp. 2d 264, 267 (D. Mass. 2013) (quoting Russell v. Cooley Dickinson
Hosp., Inc., 772 N.E. 2d 1054, 1066 (Mass. 2002) (internal quotes and citations omitted)).
a. Parties’ positions.

Skinner’s fraudulent misrepresentation claims are based on the following allegedly false
statements made by Mr. Li on Mr. Fang’s behalf: (1) full payment less sales tax would be made
by June 29, 2020; (2) payment of a wire for $640,000, for which Mr. Li sent a receipt, would arrive
by June 29, 2020; (3) an additional payment of $668,500 would arrive by June 29, 2020, to
complete full payment for the Vase, less sales tax; (4) a payment of $111,940 had been paid “by
mistake” and was an overpayment; and (5) an additional $350,000 had been transferred, in
response to Skinner’s intention to cancel the transaction. (#86 at 25.) Skinner argues that the
statements were clearly false because none of the payments ever arrived (except the $111,940
payments that defendants claimed were made by mistake), and that the statements “were clearly

made with the intention to stop Skinner from cancelling the sale, as each was made after Skinner
warned that it would cancel the sale if full payment was not made.” Id. Even if defendants did
not intend to make false statements, plaintiff argues that their misstatements were at least reckless
because defendants made them with no personal knowledge or diligent examination of the
payments, as the payments were in fact made by Mr. Liu. Id. at 26. Skinner claims it relied on
the statements to its detriment and waited to cancel the sale until it “no longer had any other
choice,” causing damages. Id.
Defendants argue that there is no evidence (i) the statements were false, or (ii) Skinner
relied on those statements to its detriment. (#106 at 19-20.) They also argue in their moving
papers that Skinner cannot show that defendants knew the statements were false at the time they
were made, and that the statements upon which Skinner relies constituted unactionable promises
of future intent. 22 (#88-1 at 24-25.)
b. Discussion.
Skinner survives summary judgment on its fraudulent misrepresentation claims, but

defendants’ intent and plaintiff’s detrimental reliance remain material issues of fact that keep
plaintiff from winning at this stage. Nationwide Book Indus., 950 F. Supp. 2d at 270 (“The First
Circuit has advised caution when disposing of the state of mind issue on summary judgment.”
(quoting Bolen v. Paragon Plastics, Inc., 754 F. Supp. 221, 226 (D. Mass. 1990)). It is largely
undisputed that the statements Mr. Li made did not turn out to be true—that is, the payments that
Mr. Li said were on the way never arrived. Four of the five statements were not mere statements
of intent, either; they were supported by images of receipts that indicated the transfers had already
occurred. In any event, although “a statement on which liability for misrepresentation may be
based must be one of fact, not of expectation,” Zimmerman v. Kent, 575 N.E.2d 70, 75 (Mass. App.

Ct. 1991), if the speaker knows a statement of future intent is false (or impossible) at the time the
statement is made, that statement is actionable if the injured party relies on it to their detriment.
Olafsson v. Sullivan-McCaughey, 111 N.E.3d 305 (Mass. App. Ct. 2018) (Table) (“[F]alse
statements of future intent are actionable as fraud if a jury can find ‘the statements misrepresent

22 Additionally, defendants argue that “Skinner appears to contend that the defendants should be
deemed to have implied that they would not use suspicious funds and that payment would be
legitimate” and that the parties “can debate whether such a representation can be implied (as the
record is devoid of an express representation)[.]” (#106 at 19.) If defendants mean to argue that
they cannot be held liable for false payments because they never expressly promised to pay Skinner
with legitimate funds, the court rejects that argument; legitimate payment is clearly implied in any
legal transaction. At any rate, Skinner does not base its claims on any allegedly illicit payments,
only on the promises that payments would arrive and then did not. So, the argument is inapposite
as well.
the actual intention of the speaker and were relied on by the recipient to his damage.’” (quoting
McEvoy Travel Bureau, Inc. v. Norton Co., 563 N.E.2d 188, 192 (Mass. 1990))).
Skinner has presented enough evidence to create a dispute as to whether defendants knew
the statements were false when made, but it cannot prove defendants’ knowledge as a matter of
law. Reviewing the facts in the light most favorable to defendants, a reasonable jury could find

that defendants believed the payments were on the way and that something unforeseen, unknown,
or out of their control prevented the money’s arrival; that same jury could also find to the contrary.
Moreover, Skinner has not proven reasonable reliance. It claims that it “has presented
evidence that its reliance on Defendants’ statements caused Skinner to postpone cancelation of the
sale, necessitating a second auction when the sale was later canceled, rather than cancelling the
sale earlier and selling the Vase to the underbidder (as Skinner had suggested on June 24, 2020).”
(#111 at 15.) The only evidence Skinner cites, however, is an email from Skinner to Mr. Li dated
June 24, 2020, threatening to offer the Vase to the underbidder if Skinner did not receive payment
by the end of the following day. Id.; see #87 ¶ 41; #92-1 at Ex. 34. This email, coupled with Mr.

Li’s subsequent promises of immediate payment, demonstrates that Skinner’s sale to the
underbidder may have faced time restrictions with which defendants interfered. It does not prove
as a matter of law, however, that defendants’ delay hindered Skinner’s sale or that the delay forced
Skinner to conduct a second auction rather than sell to the underbidder, as the COS contemplates.
Skinner’s motion is denied as to Counts VII and VIII of its amended complaint (#35).
v. Skinner’s declaratory judgment claim – Count IX
Skinner seeks declaratory judgment pursuant to the Declaratory Judgment Act, 28 U.S.C.
§§ 2201-02, and Fed. R. Civ. P. 57 declaring its cancellation of the sale valid under the COS. (#35
¶¶ 80-85.) “An action for declaratory judgment ‘enable[s] litigants to clarify legal rights and
obligations before acting upon them.’” Tocci Bldg. Corp. of New Jersey, Inc. v. Virginia Sur. Co.,
750 F. Supp. 2d 316, 320 (D. Mass. 2010) (quoting Ernst & Young v. Depositors Econ. Prot. Corp.,
45 F.3d 530, 534 (1st Cir. 1995)) (alteration in original). “District courts have significant
discretion when deciding if declaratory judgment is appropriate.” Rishell v. Med. Card Sys., Inc.,
925 F. Supp. 2d 211, 221 (D.P.R. 2013) (citing DeNovellis v. Shalala, 124 F.3d 298, 312-14 (1st

Cir. 1997)).
Skinner concedes that its declaratory judgment claim rises and falls with its breach of
contract claim. (#86 at 11 (arguing breach of contract and declaratory judgment together).) For
the same reasons discussed above in relation to Skinner’s breach of contract claims, Skinner’s
motion is denied as to Count IX.23
vi. Defendants’ breach of contract counterclaim – Counterclaim I
c. Parties’ positions
Defendants claim Skinner breached the COS by (i) terminating the sale of the Vase without
notice after agreeing to modify the payment deadlines outlined in Section 4; and (ii) not returning

the $1,429,399 after terminating the sale, as contemplated in Section 6. (#88-1 at 27-30; #106 at
20 (incorporating argument in opposition).) The COS does not, they say, grant Skinner the right
to hold the funds due to an ongoing fraud investigation. Id.
Skinner argues defendants cannot prove breach because (i) the unambiguous terms of the
contract allow it to terminate the contract at any time if payment is not made in full the day of the
auction (which it undisputedly was not); (ii) there is no evidence of modification in the record, for

23 Defendants do not address plaintiff’s declaratory judgment argument in its opposition (#106),
instead requesting declaratory judgment in its own favor in its own motion, (#88-1 at 25-26), which
the court addresses infra.
instance, defendants offered no consideration in exchange for Skinner’s modifying the COS to
allow them more time to pay; and (iii) there is no evidence of waiver, especially considering
Skinner’s consistent communications that it would not accept partial payment or other payment
plan options. (#86 at 27-32.) Skinner also claims that defendants were not ready, willing, and
able to perform under the contract, because they did not have the funds accessible to pay for the

Vase on the day of the auction. Id.
The court already held that the terms of the COS and the undisputed facts in the record
allow for the possibility of waiver and/or modification, so defendants’ breach of contract
counterclaim should survive on the same grounds. See supra. There is also a dispute of material
fact as to whether defendants were ready, willing, and able to hold up their end of the bargain at
the time of the auction. Skinner’s motion is denied as to Counterclaim I (#40). 24
vii. Defendants’ breach of the implied covenant of good faith and fair
dealing counterclaim – Counterclaim II
Defendants’ only theories remaining after the court’s order on Skinner’s motion to dismiss
are: (i) Skinner agreed to modify its payment terms only to later change its mind without notice to
defendants; (ii) Skinner failed to properly account for payments that Mr. Fang caused to be made;
and (iii) Skinner improperly included sales tax on invoices to defendants and refused to provide
advice or information on how to remove it. (#67.)

24 The court notes that defendants’ assertion that plaintiff wrongfully held defendants’ funds is
questionable. The COS do not allow plaintiff to keep bidders’ funds whose bids fall through.
(#91-1 at Ex. 12, §§ 4, 6.) Even two-and-one-half years later, however, defendants have produced
no evidence indicating that they know the source of the funds or that they are the funds’ rightful
owners. Skinner is holding the funds in a segregated Bank of America account (not an escrow
account, as defendants loudly make clear) until the question of ownership is settled. There is no
evidence that plaintiff is “enjoying” defendants’ funds throughout the course of litigation. There
is evidence that Skinner made a good faith effort to determine the sources of the funds via the
interpleader action. (#1.) Defendants did not, or were unable to, cooperate with that endeavor.
(#26.)
First, defendants have not put forth any evidence that Skinner was attempting to extract a
better deal from defendants through its conduct. There is no evidence Skinner requested additional
money from defendants in exchange for the Vase, nor that plaintiff was attempting to terminate
the agreement to profit from a better deal—in fact, the opposite transpired. See A.L. Prime Energy
Consultant, Inc. v. Massachusetts Bay Transport. Auth., 95 N.E.3d 547, 561 (Mass. 2018)

(affirming motion to dismiss implied covenant claim because “this is not a case in which one party
leveraged its discretion to ‘recapture opportunities for forgone contracting’ or ‘to refuse to pay the
expected costs of performance’. . . . [n]or has [plaintiff] claimed [that defendant] entered into the
contractual relationship without intending to continue it for the full term” (quoting Anthony’s Pier
Four, Inc., 583 N.E.2d at 821)).
Second, there is no evidence that Skinner failed to properly account for defendants’
payments, and there are undisputed facts in the record demonstrating that only around $1.4 million
made it to Skinner, just as Skinner’s accounts reflect.25
Third, there is no evidence that Skinner attempted to force defendants to pay sales tax when

none was required in a conscious effort to steal the erroneous fee. Defendants did not provide
Skinner with the necessary paperwork until July 7, 2020. (#87 ¶ 79; #107 (undisputed, but sales
tax position laid out in response to #87 ¶ 78).) As Ms. Keane testified, Skinner could not have
simply accepted defendants’ word that they were shipping the item overseas; Skinner required
proper documentation that complied with the law. (#89 at App. 210 (“We . . . expect our clients
to be able to prove to us that they do not need to be charged sales tax in the various states where
we collect sales tax or they don’t need to be – because they are either a dealer or a museum or that
they are shipping the things out of . . . the country, and . . . this is not Skinner’s rules. These are

25 Indeed, defendants seem to no longer pursue argument (ii). (#88-1 at 31-32.)
the tax rules for the State of Massachusetts and the State of New York and the State of Florida and
the State of Maine.”). After Mr. Li provided the proper documentation, Skinner’s counsel, Martin
Desmery, did provide an invoice including sales tax; but by then, Skinner and/or its counsel and
bank had already begun an investigation into defendants’ payments, and Mr. Desmery’s
communications with Mr. Li’s counsel do not indicate he was attempting to fraudulently collect

the exempted sales tax.
Moreover, despite defendants’ claim that the erroneously added sales tax complicated their
international payments, there is no evidence that defendants ever planned to pay the sales tax. All
of Mr. Li’s communications with Skinner indicate that he intended to pay the invoice without sales
tax. For instance, on June 25, 2020, Mr. Li sent an email to Judith Dowling at Skinner stating,
“We already sent 300,000 USD from UK bank . . . Please find attachment as the transfer receipt
for another $640,000 USD . . . The rest of the amount $668,500 would be transferred on next
Monday.” (#89 at App. 476.) Those three wires add up to $1,608,500, the invoice amount minus
the sales tax, indicating that, whether Skinner included the sales tax on the invoice or not,

defendants never intended to pay it and did not include it in their internal calculations. See also
#91-1 at Ex. 25, Li_0000227 (June 19, 2020 text from Mr. Li to Mr. Fang explaining that “[t]he
sales tax of one hundred thousand dollars can be taken off” and “[t]he bill is sent by the computer
automatically . . . [s]o it is not changed.”). Moreover, when defendants’ counsel attempted to
coordinate shipping because Mr. Li allegedly believed the full invoice had been paid, he also
attempted to collect an alleged overpayment—i.e. the amount over and above the invoice without
sales tax. (#87 ¶ 90 (“After that [July 7, 2020], Skinner was contacted by Mr. Li’s counsel . . .
stating that Mr. Li had paid $1,720,440, asserting that this was an overpayment of $111,940 and
wanted to ensure his client could arrange to pick up the Vase on July 10, 2020.”); (#107
(undisputed).)
Although the facts must be read in the light most favorable to defendants and all inferences
taken in their favor, the court must “‘disregard conclusory allegations, improbable inferences, and
unsupported speculation in determining whether a genuine factual dispute exists.’” Winfield, 2018

WL 4854628, at *1 (D. Mass. Oct. 5, 2018) (quoting Cherkaoui, 877 F.3d at 23). Defendants have
produced no evidence of bad faith or gamesmanship on Skinner’s part. A.L. Prime Energy
Consultant, 95 N.E.3d at 561. Skinner’s motion is granted as to Counterclaim II, and Counterclaim
II is dismissed with prejudice.
viii. Defendants’ violation of M.G.L. c. 93A § 11 counterclaim –
Counterclaim III
Defendants’ only Chapter 93A theories remaining after the court’s motion to dismiss order
are: (1) Skinner improperly charged defendants sales tax from which they should have been
exempt; (2) Skinner engaged in faulty accounting practices;26 and (3) Skinner deemed defendants’
payments to be suspicious without any evidence. (#67 at 18.) Defendants’ theories dovetail with
their implied covenant counterclaim (the sales tax theory) and their opposition to Skinner’s implied
covenant claim (suspicious payments theory), both discussed supra. Defendants also argue for the
first time that “Skinner canceled the sale of the vase for an improper and insufficient reason and
subsequently exercised control over the defendant’s money, essentially holding it hostage unless

the defendants agree to pay Skinner’s legal fees, even though Skinner had no right to those fees,

26 Defendants seem to no longer pursue (2) (#88-1 at 32), and plaintiff does not address it in its
motion (#86 at 34-35). For the same reasons discussed above in relation to defendants’ implied
covenant counterclaim, the theory would fail on the summary judgment record presently before
the court.
contractual or otherwise.” (#88-1 at 32.) This argument mirrors its breach of contract and implied
covenant theories.
Even taking all inferences in defendants’ favor, there is insufficient evidence in the record
to establish that Skinner behaved deceitfully or with bad faith to support a finding that plaintiff
violated Chapter 93A. Contrary to defendants’ assertion, there is evidence supporting Skinner’s

belief that defendants’ payments may have been fraudulent. See supra at 26-27. And, for the same
reasons discussed above, there is no evidence that Skinner charged defendants sales tax
dishonestly—indeed there is evidence that defendants never intended to pay it. Even if Skinner
had been delinquent in sending defendants information regarding the sales tax waiver, such a delay
would not rise to the level of a Chapter 93A violation. Baker v. Goldman, Sachs & Co., 771 F.3d
37, 49 (1st Cir. 2014) (“Whether a particular set of acts, in their factual setting, is unfair or
deceptive is a question of fact, but whether that conduct rises to the level of a chapter 93A violation
is a question of law.” (internal cites and quotes omitted)).
Addressing defendants’ new theory in the most favorable light, there is no evidence in the

record to support a finding that Skinner held defendants’ funds “hostage” following the termination
of the agreement. Skinner did not know, and does not know, whether the funds belong to
defendants, and defendants have produced no evidence to establish their entitlement to the funds.
Zabin, 896 N.E.2d at 963. Skinner’s motion is granted as to Counterclaim III. Counterclaim III
is dismissed with prejudice.
C. Defendants’ Motion for Summary Judgment (#88).
Defendants move for summary judgment on all nine of plaintiff’s claims (#35) and on all
three of their own counterclaims (##40, 67). As a preliminary matter, defendants’ motion as to
Counterclaims II and III is denied as moot in light of the court’s order on Skinner’s motion, supra.
i. Skinner’s breach of contract claims – Counts I & II
a. Parties’ positions.
In their own motion, but not in opposition to Skinner’s, defendants claim that Skinner was
not “ready, willing, and able to perform” its end of the bargain because it violated the covenant of
good faith and fair dealing by avoiding defendants, failing to provide them with an invoice without

sales tax, and failing to confirm whether it received defendants’ wires. (#88-1 at 18-19.)
Defendants claim Skinner’s conduct interfered with their rights to enjoy the fruits of their contract
such that plaintiff cannot now claim breach. Id. Defendants also argue, without any legal support,
that Skinner is estopped from claiming breach because Skinner “never rescinded” its permission
for defendants to pay past the window allowed in the COS. 27 Id. at 19-20.
Skinner counters that defendants’ allegations do not address whether Skinner itself was
ready and willing to perform. (#103 at 8.) Defendants do not dispute that Skinner possessed the
Vase and was ready to transfer it upon full payment, nor do they dispute that Skinner was not
obliged to perform an ongoing accounting for them. Id. Skinner disputes again, however, the
notion that it permitted defendants to make late payments. Id. at 9.

b. Discussion.
Defendants do not meaningfully dispute that Skinner was ready and willing to perform its
end of the bargain. They do not, nor could they on the present record, assert that Skinner did not
actually possess the Vase, or that Skinner could not or would not release the Vase upon payment

27 Defendants further argue, again, that Skinner failed to put forth any evidence to support its belief
that defendants’ payments were suspicious. (#88-1 at 20-22.) As discussed above, Skinner’s
breach of contract claim does not rest on the legitimacy of defendants’ payments, so this argument
is inapposite. Moreover, there is adequate evidence in the record to create a material dispute of
fact as to whether defendants’ payments were legitimate or whether Skinner’s belief that they were
suspicious was justified. See supra at 26-27.
in full. Cf. #101-1 at Ex. 89 (final invoice to second bidder showing $0.00 balance); Ex. 90
(payment confirmation); Ex. 91. There is also inadequate evidence in the record to prove that
Skinner prevented defendants from enjoying the fruits of their contract. As discussed above, the
evidence shows that defendants did not provide Skinner with the necessary paperwork to remove
sales tax from the invoice until July 7, 2020. Skinner was under no obligation to provide

defendants with an updated invoice before then, and any claim that Skinner’s failure to do so
prevented defendants from performing is belied by defendants’ own intentions to pay only the
invoice without the sales tax. Additionally, Skinner provided defendants with numerous updated
invoices throughout the sale, undercutting defendants’ claim that Skinner avoided them and
refused to confirm receipt of their wires. Skinner was not obliged to provide payment-by-payment
confirmations, especially considering Skinner made clear (and Mr. Li understood) that Skinner
required full, not partial, payments.
For the reasons discussed above in relation to Skinner’s motion (#85), there remains a
material dispute of fact as to whether Skinner waived its rights under or otherwise modified the

COS. This dispute prevents Skinner from winning its claim on summary judgment, but defendant
has pointed to no evidence of Skinner’s bad faith that would prevent plaintiff from putting the
question before a factfinder. Defendants’ motion is denied as to Counts I and II.
ii. Skinner’s breach of the implied covenant of good faith and fair
dealing claims – Counts III & IV
Defendants argue that Skinner cannot win its breach of the implied covenant of good
faith and fair dealing claims because there is no evidence in the record to support a finding that
defendants’ payments were “improper, illegitimate, obtained illegally or ‘tainted’ in any way.”
(#88-1 at 22-23.) As discussed above, there is adequate evidence for summary judgment purposes
to put this very question to a jury. See supra at 26-27. Defendants’ motion is denied as to Counts
III and IV of Skinner’s amended complaint (#35).
iii. Skinner’s violation of Chapter 93A § 11 claims – Counts V & VI
Defendants argue Skinner’s Chapter 93A claims must fail for the same reasons they claim
plaintiff’s breach of contract and breach of the implied covenant claims fail. (#88-1 at 23-24

(“These [Chapter 93A] claims must fail because Skinner’s G.L. c. 93A claim [sic] is predicated on
the same facts that form the basis of its breach of Contract and Covenant of good faith and fair
dealing claims.”).) Those claims survive summary judgment, so, applying defendants’ own
argument, Skinner’s Chapter 93A claims do, too. Defendants’ motion is denied as to Counts V
and VI of Skinner’s amended complaint (#35).28
iv. Skinner’s fraudulent misrepresentation claims – Counts VII & VIII
Defendants argue Skinner cannot establish a prima facie claim for fraudulent
misrepresentation because (i) Mr. Li’s allegedly fraudulent statements were statements of future
intent, and (ii) Skinner cannot show that defendants knew those statements were false when made.

(#88-1 at 24.) Defendants also argue that Skinner cannot establish reasonable reliance as a matter
of law. (#88-1 at 24-25.)
As discussed above, many of the statements upon which Skinner bases its claims were not
statements of future intent, but rather representations that certain transfers had already been made
(though not yet received by Skinner). Moreover, there is enough evidence in the record to support

28 To the extent defendants attempt to preclude Skinner from seeking attorneys’ fees allowed by
statute, (#88-1 at 26-27), defendants’ motion is denied. Hyannis Anglers Club. Inc. v. Harris
Warren Comm. Kitchens, LLC, 78 N.E. 3d 784, 791-92 (Mass. App. Ct. 2017) (“General Laws c.
93A, § 11, provides that ‘‘reasonable attorneys’ fees and costs’ shall be awarded if a judge finds
that a defendant has violated the statute, regardless of the amount in controversy.’” (quoting Twin
Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 837 N.E.2d 1121 (Mass. 2005), and G. L.
c. 93A, § 11).
a finding that defendants knew that the statements were false, even where they merely promised
to pay by a date certain. For instance, numerous wires for which Mr. Li sent receipts failed to
arrive; defendants’ hollow promises to pay directly followed Skinner’s threats to cancel the sale;
and defendants secured a shipper to pick up the Vase without receiving confirmation that their
final wire had arrived with Skinner. Additionally, as discussed supra, Skinner has presented

enough evidence to create a dispute of material fact as to its reasonable reliance.29 Defendants’
motion as to Counts VII and VIII of Skinner’s amended complaint (#35) is denied.
v. Skinner’s declaratory judgment claim – Count IX
Defendants attempt to circumvent Fed. R. Civ. P. 15(a) by pleading a counterclaim for
declaratory judgment in their moving papers. (#88-1 at 25-26.) This is improper. See Ellis v.
North Andover Pub. Sch., 569 F. Supp. 3d 61, 65 (D. Mass. 2021) (“[T]he appropriate method by
which to advance a new claim that arises out of discovery is to amend the complaint, as provided
for under Fed. R. Civ. P. 15(a).”). Defendants’ motion is denied as to Count IX of the amended
complaint (#35).

vi. Defendants’ breach of contract counterclaim – Counterclaim I
Defendants claim that Skinner breached the COS by first, cancelling the contract without
a proper basis and second, retaining the funds that defendants had submitted for payment. (#88-1
at 27-29.) Plaintiff argues that it never waived its rights under or modified the COS, and thereby
retained a unilateral right to cancel the contract following defendants’ failure to pay in full on the
day of the auction. (#103 at 10-11.) It further claims that it has a right to retain the funds because
there is a legitimate question as to whom the funds belong. Id. at 11-13.

29 Here, too, defendants argue that plaintiff cannot show that they promised to use legitimate funds
to pay for the Vase. (#88-1 at 28.) Again, the court rejects this argument.
As discussed above, first, there is a material dispute of fact as to whether Skinner waived
its rights under or otherwise modified the COS. This dispute keeps defendants from winning at
this stage just as it does plaintiff, because if plaintiff did not modify the COS or waive its rights,
then defendants cannot win on their cancellation theory. Second, there is a material dispute of fact
as to who owns the funds currently in Skinner’s possession that keeps defendants from proving

their retention theory. If the funds are not defendants’, then Skinner did not breach the COS by
retaining them for the benefit of the rightful owners. Defendants’ motion is denied as to
Counterclaim I of their answer and counterclaims (#40.)
IV. The Motions to Strike.
A. Plaintiff’s Motion to Strike Fang’s Errata Sheet (#101).
i. Parties’ positions
Plaintiff argues first that untimeliness alone is sufficient reason to strike Mr. Fang’s errata
sheet. (#101 at 4-5.) Plaintiff cites In re Kugel Mesh Hernia Repair Patch, Litig., No. MDL-07-
1842ML, 2010 WL 678092 (D.R.I. Feb. 24, 2010) and other non-binding cases from outside this
District for the proposition that “‘[t]here are no exceptions provided in Rule 30(e) to the thirty-day
time frame for making changes to the deposition testimony,’” especially where defendants

“provided no reason for its lateness.” Id. at 5 (quoting In re Kugel Mesh, 2010 WL 678092, at *2).
Second, plaintiff claims the errata sheet is tactical because it (i) was submitted on the summary
judgment deadline, leaving plaintiff no time to respond before filing its own motion; and (ii)
supports a new argument in defendants’ own summary judgment brief. Id. at 5-6. Finally, plaintiff
argues that although the change is immaterial to the pending summary judgment motions, the
timing of the change prejudices Skinner because Skinner (i) cannot seek further discovery on this
new point, including additional testimony from Mr. Fang, and (ii) prepared its summary judgment
papers with Mr. Fang’s original testimony and had no opportunity to include the new testimony in
its affirmative arguments. Id. at 6-7.
Defendants argue that they had a good faith reason for the delay, namely they needed to
coordinate bilingual counsel to go over Mr. Fang’s transcript with him because he does not speak
English and coordinating the significant time differences between Mr. Fang and counsel

exacerbated that delay. (#110 at 3-5 (citing, inter alia, Porter v. Hamilton Beach/Proctor-Silex,
Inc., No. 01-2970-MaV (W.D. Tenn. Jul. 28, 2003).) They further argue that they satisfied the
substantive requirements of Fed. R. Civ. P. 30(e)—the errata sheet listed the changes and reasons
for making them, and Mr. Fang signed it—and that the transcript’s substantive accuracy should
prevail over Skinner’s “tactical machinations.” Id. at 5-6. They claim that plaintiff could have
checked the translation via the deposition video and provided the court with an accurate transcript,
but instead is trying to gain a tactical advantage by striking the accurate testimony. Id. Notably,
defendants acknowledge that the “affected testimony is not material to the pending motions for
summary judgment, but may be material to the issue of damages at a later date.” Id. at 1.

ii. Discussion
Upon request of a party or deponent, a deponent must be allowed thirty days after being
notified that the deposition transcript or recording is available in which to review the transcript or
recording and, “if there are changes in form or substance, to sign a statement listing the changes
and the reasons for making them.” Fed. R. Civ. P. 30(e). Such changes cannot be tactical, and
when made in conjunction with a summary judgment pleading, are “analyzed under a framework
similar to that of the sham affidavit rule—in other words, it would be struck unless the witness
offered a proper explanation.” Maga v. Hennessy Indus., Inc., No. 12-cv-11423, 2014 WL
10051399, at *8 (D. Mass. Dec. 1, 2014); see Heal v. Wells Fargo, N.A., 560 F. Supp. 3d 347, 359
(D. Mass. 2021) (“Because the errata sheet was submitted after the Defendants’ summary
judgment motions, it will be analyzed under the framework of the sham affidavit rule, which
prohibits parties who have given a clear answer to an unambiguous question at deposition from
creating a disputed issue of fact to avoid summary judgment by offering an affidavit which
contradicts their earlier testimony without providing a satisfactory explanation of why the

testimony has changed.”).
Although the District of Rhode Island appears to read Fed. R. Civ. P. 30(e)’s 30-day
deadline as a bright line rule, see In re Kugel Mesh, 2010 WL 678092, at *2 (declining “to read a
‘no prejudice’ exception into Rule 30(e) and to engage in a subjective analysis of whether or not
to hold a party to the plain requirements of the Rule” and striking late errata even where no
prejudice shown), this District is less austere. Nevertheless, where an untimely errata sheet
contradicts previous testimony given, the court has stricken the errata. E.g., Bruno v. Town of
Framingham, No. 08–cv–11403, 2009 WL 4062177, at *1 (D. Mass. Nov. 20, 2009) (striking
errata that were submitted the day after summary judgment motions filed and “dramatically

change[d] the sworn testimony [deponent] previously gave”). It has also stricken errata sheets
used to create a question of fact on summary judgment, id. (“Rule 30 most certainly may not be
used as a tool to survive summary judgement”), and where the witness does not provide a reason
for the change. Id. (“Additionally, [deponent] failed to give any explanation for why his testimony
has changed so dramatically since his . . . deposition.”).
Here, the parties largely agree that the change is immaterial to the merits of the pending
motions for summary judgment. 30 Compare #101 at 6 (“Skinner does not believe the proposed

30 At the January 5, 2023 hearing, defense counsel walked back this position, arguing agnostically
that the change may be relevant to the pending motions. (#118.) The court did not interpret
changed testimony is material to any motion for summary judgment pending before this Court[.]”)
with #110 at 1 (“[T]he affected testimony is not material to the pending motions for summary
judgement.”). After reviewing the record, the court agrees. It is undisputed that the COS required
winning bidders to provide “proper documentation” showing that they are exempt from sales tax.
(#99-1 ¶ 9; #67 at 15 (“One of the terms of the Conditions of Sale requires buyers to provide

documentation if they want to claim an exemption from Massachusetts sales tax.”).) It is also
undisputed that Mr. Li did not provide such documentation until July 7, 2020. Even if Mr. Fang
could have paid the invoice minus sales tax more expediently had the invoice reflected the $1.6
million balance from the beginning—a fact disputed by other evidence in the record indicating that
Mr. Li only ever intended to pay the $1.6 million and did not do that until July—there is no
evidence, including the errata, suggesting that Skinner was aware of Mr. Fang’s purported
currency transfer restrictions such that it could have leveraged them to its advantage. As
defendants note in their motion, the testimony may go to damages should they prove their prima
facie case (#110 at 1), but it is immaterial to whether Skinner violated the COS, the implied

covenant, or Chapter 93A.
Additionally, the errata change does not contradict Mr. Fang’s previous testimony. His
original transcript stated that he “might” have been able to pay the invoice-less-sales tax without
Mr. Liu; his errata states that he “would” have been able to. The change is substantive, but not
contradictory. Cf. Bruno, 2009 WL 4062177, at *1 (striking errata that changed five answers from
“yes” to “no” without explanation). As such, the change is not as prejudicial as plaintiff purports—
Mr. Fang’s original testimony put plaintiff’s counsel on notice of the issue of his ability to pay,

counsel’s argument, however, as conceding that the change was material to defendants’ position
on summary judgment. Id.
and counsel could have questioned Mr. Fang (or requested additional discovery) on that point at
his deposition or following it. In any event, defendants provided a legitimate explanation for the
delay, namely, a translation error. Cf. Heal, 560 F. Supp. 3d at 359 (“Not only would allowing
such contradictory testimony thwart the sham affidavit rule, Plaintiff also did not comply with R.
30(e) by providing a reason for the amended statement on the errata sheet.”).

The court is concerned about the timing of Mr. Fang’s errata. Because the change is
immaterial to the pending summary judgment motions, does not contradict previous testimony,
and comes coupled with a legitimate explanation, however, plaintiff’s motion to strike (#101) is
denied.
B. Defendants’ Motion to Strike the Motion to Strike (#109).
In light of the court’s order denying (#101), defendants’ counter motion is largely moot.
Thus, defendants’ motion to strike (#109) is denied as well.
V. Conclusion.
For the reasons stated above plaintiff’s motion for summary judgment (#85) is granted
as to defendants’ Counterclaims II and III, and denied as to all other counts; defendants’ motion
for summary judgment (#88) is denied; plaintiff’s motion to strike (#101) is denied; and

defendants’ motion to strike (#109) is denied.

/s/ M. PAGE KELLEY
March 2, 2023 M. Page Kelley
Chief United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10200924. Public record. Not legal advice.