CerCare Health LLC v. Phillips North America, LLC et al

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
1
CERCARE HEALTH, LLC,
1
Plaintiff,
)
1
v.
1
1
PHILIPS NORTH AMERICA, LLC,
1
TELCARE MEDICAL SUPPLY, LLC, and
1
BIOTELEMETRY, INC., 1
1
Defendants.
1
)
CIVIL ACTION No. 24-11618-WGY
YOUNG, D.J.
February 12, 2026
MEMORANDUM AND ORDER
I. INTRODUCTION
In this action, Plaintiff CerCare Health, LLC ("CerCare") claims that the Defendants, Philips North America, LLC, Telcare Medical Supply, LLC, and Biotelemetry, Inc. (collectively, "the Defendants") initially had an agreement whereby CerCare would resell the Defendants' diabetes testing products. At some point, CerCare was concerned about losing a deal with a large healthcare organization. Purportedly to save the deal, CerCare proposed that the Defendants directly contract with that organization, and that it act as an intermediary.
The Court earlier in this action dismissed the breach of contract, negligent misrepresentation, and unfair and deceptive
AUTHENTICATED U.S. GOVERNMENT INFORMATION GPC
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trade practice claims.1 What remains are two counts: Count III, promissory estoppel, and Count IV, unjust enrichment.
For the reasons stated below, the Defendants' Motion for Summary Judgment, ECF No. 67, is ALLOWED as to Count III, promissory estoppel, and ALLOWED in Part and DENIED in Part as to Count IV for unjust Enrichment, to the extent such claim cannot include claims for CerCare's purported lost profit damages. The Defendants' motion to strike the jury trial as to the remaining claims ECF No. 75 is ALLOWED in part as to the remaining claim of unjust enrichment as there is no right to a jury on this claim, and DENIED in part as MOOT with respect to the dismissed promissory estoppel claim. The Court reserves as to whether an advisory jury will be empaneled.
II. PROCEDURAL HISTORY
The Defendants move for summary judgment, accompanied by a memorandum of law, and supporting materials. Defs.' Mot. Summ. J. ("the Motion"), ECF No. 67; Mem. Supp. Mot. Summ. J. ("Defs.' Mem."), ECF No. 68. CerCare opposes the motion, along with supporting materials. Pl.'s Mem. Opp'n Defs.' Mot. Summ. J. ("Pl. 's Opp'n"), ECF No. 87. The Defendants filed a reply
1 This Court dismissed Counts I, II and V, when it allowed in part and denied in part the Defendants' Motion to Dismiss. See Elec. Clerk's Notes, ECF No. 34; Dec. 17, 2024 Tr. Mot. Dismiss, ECF No 36; Order, ECF No. 41; CerCare Health LLC v. Philips N. Am., LLC, No. CV 24-11618-WGY, 2025 WL 2164834 (D. Mass. Jan. 13, 2025).
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brief. Defs.' Reply Mem. Supp. Mot. Summ. J. ("Reply"), ECF No. 94.
Additionally, the Defendants move to strike the jury claim as to the remaining claims for promissory estoppel and unjust enrichment, which is also fully briefed. Defs.' Mot. Strike Pl. 's Jury Demand ( "Defs.' Mot. Strike"), ECF No. 75; Defs.'
Mem. Supp. Mot. Strike Pl. 's Jury Demand ( "Defs.' Mem. Mot. Strike"), ECF No. 76; Opp. Defs.' Mot. Strike Pl.'s Demand Jury Tr. ("Opp'n Mot. Strike"), ECF No. 86.
III. UNDISPUTED FACTS
The undisputed facts are taken from the Statement of Material Facts, ECF No. 69, as responded to in the Counter Statement, ECF No. 88 ("SUF { ") without quotations for readability.
CerCare is a wholly owned subsidiary of PENSA Health Management ("PENSA") . SUF 9 8. Scot Giambruno ("Giambruno") is the principal of both PENSA and CerCare. Id. II 6,8. CerCare's first contact with any of Defendants occurred in June 2019, when Giambruno emailed Bret Gautrau ("Gautrau") of Telcare/BioTel asking for an introductory call. Id. § 17.
In November 2020, CerCare and Telcare executed the Telcare Program Agreement ("Telcare Program Agreement"). SUF I 20; see ECF No. 84-44.
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A. The CerCare/Stax Agreement and the CerCare/Telcare Program Agreement
In June 2019, CerCare entered into a Services Agreement with Stax Solutions ("Stax") relating to a pilot program targeting the Atlanta VA diabetic patient population. SUF 1 27. Fewer than thirty patients participated in the Atlanta VA pilot program. Id. 1 28.
CerCare purchased blood glucose monitoring supplies and services from Telcare pursuant to the Telcare Program Agreement and provided those supplies and services to the Atlanta VA pilot program patients free of charge. Id. § 29. Consistent with the agreed upon Telcare Program Agreement pricing, CerCare paid Telcare $100 for each blood glucose monitoring starter kit (BioTel Care BGM 4), $25 per box of blood glucose test strips (50 count), $4.99 per bottle of control solution, $9.99 for alcohol prep pads (100 count), $9.99 for lancets (100 count) , and $20 per patient per month for monitoring and coaching services that CerCare purchased from Telcare for use in the Atlanta VA pilot program. Id. 1 30. CerCare understood that the coaching services were Telcare's "secret sauce" and their "huge value." Id. 9 31. In total, CerCare paid $16,902.91 to Telcare for the blood glucose monitoring supplies and services that CerCare purchased pursuant to the Telcare Program Agreement for use by the Atlanta VA pilot program patients. Id. I 32.
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The $16, 902.91 that CerCare paid to Telcare in connection with the Atlanta VA pilot program is the only money that CerCare ever paid to Telcare pursuant to the Telcare Program Agreement. Id. I 34.
On September 23, 2021, Telcare executed a Subcontractor Agreement with Stax relating to the Atlanta VA pilot program. Id. I 35. Before executing the Subcontractor Agreement with Stax, Telcare sent CerCare a copy of that Subcontractor Agreement. Id. § 36. Stax has not made any payments to Defendants, pursuant to the September 2021 Subcontractor Agreement or otherwise. Id. # 38.
In January 2021, Amerigroup Georgia Managed Care Company ("Amerigroup Georgia"), CerCare and Telcare began discussing a potential pilot program targeting Amerigroup Georgia's population of Medicaid diabetic plan participants, where the "goal of the pilot would be to prove the concept and show Amerigroup the cost savings that can be derived" from the Telcare "diabetes management tool." Id. I 40. Discussions among Amerigroup Georgia, CerCare and Telcare about a potential Medicaid Pilot Program continued during the summer of 2021. Id. I 41. In September 2021, Amerigroup Georgia inquired about pricing for the program. Id.
On September 22, 2021 and September 28, 2021, Giambruno and Gautrau of Telcare exchanged texts regarding pricing for the
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Amerigroup Georgia Medicaid Pilot Program. Id. § 42. In his September 22, 2021 and September 28, 2021 texts, Giambruno asked for Telcare's best pricing for the Amerigroup Georgia Medicaid Pilot Program. Id. 1 43.
On September 29, 2021, Giambruno sent an email to Amerigroup Georgia attaching CerCare's "best and final pricing proposal for the Diabetes Pilot." Id. 1 45. In the cover email, Giambruno stated: "CerCare values the partnership and wants to do everything it can to ease the financial burden on Amerigroup during the Pilot period, so I have cut all the margin out of the pricing. The goal is to show Amerigroup just how effective the program is in reducing Alc, hospitalizations, and improving HEDIS scores." Id. The representation made by Giambruno in his September 29, 2021 email to Amerigroup Georgia was accurate; CerCare did in fact "cut all the margin" out of the pricing it was offering to Amerigroup Georgia for the Medicaid Pilot Program. Id. 1 46.
Amerigroup Georgia is a subsidiary of Anthem, Inc. ("Anthem"), which later changed its name to Elevance Health, Inc. ("Elevance") . Id. 1 47. Anthem has at least 40 to 50 affiliated health plans across the United States, including Amerigroup Georgia; these health plans include commercial plans, Medicare plans, and Medicaid plans. Id. 9 48.
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B. Anthem Sends Proposed Agreement to CerCare
On October 8, 2021, Anthem sent CerCare a draft management services agreement ("MSA") to be used as the basis for a statement of work ("SOW") for the Amerigroup Georgia Medicaid Pilot Program under discussion. Id. I 50. On October 19, 2021,
CerCare emailed Gautrau the draft MSA that CerCare had received from Anthem on October 8, 2021. Id. 1 54. CerCare (and not any of the Defendants) is the one that first suggested the possibility of altering the MSA to substitute Telcare for CerCare as the contracting party. Id. 9 55.
c. CerCare Proposes to Defendants a Different Arrangement with Anthem
On November 3, 2021, Giambruno stated, in a text to Gautrau: "I'm thinking we tweak the agreement to BioTel is the contracting agency offered through CerCare where I am the service/management side of things or something." Id. 1 56.
On November 19, 2021, Giambruno stated in a text to Gautrau of Telcare/BioTel that CerCare had "positioned it" with Anthem that CerCare's "program is more off the shelf and there are more resources available through [BioTel] and given all the requirements - [BioTel] is better positioned to handle all of the 'stuff. '" Id. # 57.
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CerCare did not bring any business to the Defendants that generated any revenues other than: (a) the Amerigroup Georgia Medicaid Pilot Program (which generated $389, 961 in revenues, as discussed below) ; and (b) the $16, 902.91 of supplies and services that CerCare purchased from Telcare for use in the Atlanta VA pilot program that was unrelated to the Anthem MSA. Id. I 61. According to CerCare, it did not aggressively pursue introductions to other Anthem plans or affiliates because CerCare "didn't want to start that yet ... [b]ecause [CerCare] was getting the runaround from [Defendants] about getting paid." Id. 1 62. CerCare had preliminary discussions with a few Anthem affiliates. Id. 1 63.
D. Discussions/Negotiations Between CerCare and the Defendants
Giambruno claims that he told Defendants' representatives two or three times a month over the course of eighteen months that CerCare had potential opportunities with other Anthem plans "lined up and ready to go and go hard at," but that CerCare was not going to "waste any time" on them until the parties got CerCare's contract "done" so CerCare could "get paid." Id. I 67.
On November 5, 2021, Gautrau sent CerCare a copy of Defendants' template broker agreement. Id. 1 68. On December 13, 2021, Gautrau emailed Giambruno the following, in its
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entirety: "Following up on our recent discussion, the agreement that is being negotiated between Telcare Medical Supply, LLC, a Philips company, and Anthem, Inc. is an agreement that is being brokered through CerCare Health. All parties agreed that a direct relationship between Telcare and Anthem was acceptable and the relationship originated with CerCare Health. " Id. 1 71.
On May 13, 2022, Giambruno emailed Defendants that he would "have my folks take a run at [a new draft agreement ] ." In that
email, Giambruno inquired whether Defendants would be interested in pursuing a structure that provided for a "monthly stipend or retainer" along with a "commission piece." Wilson replied: "generally speaking, honestly, not in my experience." Id. 1 74.
On August 1, 2022, Giambruno texted Josam Joffrion of Philips, asking: "Can we get this contract stuff squared away and put to bed? How can we move it off the center line?" Id. I 75.
On August 11, 2022, Giambruno texted his wife that he had a good conversation with Jeremy Oswald of Simple Therapy about helping him grow that company. Giambruno told his wife: "Might even consider selling off CerCare to Philips -- I'm tired of them dragging their feet on a co tract [sic] ." Id. § 76.
On August 18, 2022, CerCare emailed its counsel expressing "irritat [ion]" at a lack of progress from Philips and stating: "We may end up wanting them to buy us out of the agreement
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because it is too difficult to get anything done with them." Id. 9 77.
On August 30, 2022, Giambruno emailed CerCare's counsel that CerCare has "other opportunities I have had preliminary discussions with and would like to proceed but the lack of action on the agreement as well as other items is cause for pausing things until we can get the agreement worked out." Id. Я 78.
On November 10, 2022, Giambruno asked Defendants, "[c]an we at least get a discussion going for the range of comp[ensation]." Id. 1 80. CerCare wanted a 25% commission. Id. # 81.
On January 17, 2023, Giambruno emailed a PowerPoint presentation to Joffrion. In that presentation, CerCare stated that "[t]he goal in 2023 is to secure 3 additional Elevance Health [Anthem] plans" beyond the Amerigroup Georgia pilot. Id. I 91. CerCare did not secure business from any Anthem subsidiaries or plans during 2023 or 2024. Id. I 92.
The January 17, 2023 PowerPoint that CerCare sent to the Defendants identified Anthem plans in Texas and Nevada as priority targets for 2023. CerCare did not reach out to those targets during 2023, however, because it was not satisfied with the pace of discussions with the Defendants about a potential
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new compensation agreement, so CerCare started "slow-playing it." Id. 1 93.
On January 30, 2023, Giambruno texted Wilson: "I know there are lots of competing pressure right now but can the two of us sit down and hammer out the agreement? There is so much opportunity to grow the business rapidly and I dont [sic] want to miss this prime opportunity." Id. 194.
On February 6, 2023, Giambruno texted Joffrion that Giambruno is "getting antsy" about the potential new agreement because the "window is closing." Id. I 95.
On April 11, 2023, Giambruno emailed Joffrion "[l]et's get our deal done so we can capitalize" on a potential opportunity in Florida. Id. I 98.
On May 10, 2023, Giambruno texted Joffrion that CerCare no longer had "any faith" that a new agreement could get done, and that as a result, Giambruno would like to get CerCare's "departure wrapped up as quick as possible." Id. I 100.
On May 23, 2023, Giambruno texted Joffrion to ask if there has been any "movement from Nick or Legal on a departure settlement?" Id. # 101.
On June 7, 2023, Giambruno texted with CerCare consultant Bryan Barker about a potential opportunity with a Payer in Puerto Rico. When Giambruno asked about the size of
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the opportunity, Barker replied: "For Phillips? [sic] None. I'm working with a couple of other vendors on that opportunity. I don't have a good feeling about Phillips [sic] after all that we've done with no payment." Id. ] 102.
On June 22, 2023, Barker texted Giambruno: "How did call go about Phillips? [sic] I met with a group that could be a challenger to Phillips [sic] ." Giambruno replied: "My lawyers are preparing a letter - let's explore it." Id. 1 103.
On July 25, 2023, Giambruno emailed Joffrion to ask if there "has . been any movement at all" on a new agreement and asking if he could "at least get some idea of the numbers [. ] I'm trying to be optimistic that we can get something done but each passi [ng] month makes me wonder if we should pursue the buyout/exit option." Id. II 104.
On September 1, 2023, CerCare's counsel, Will Prickett, emailed Cody Cowper of Philips noting that the parties had been discussing a potential new agreement for "well over a year" but had not been able to complete an agreement. Cowper emailed Prickett on September 13, 2023, explaining that "[n]onemployee 'commission' payments in the healthcare space are potentially very thorny from a compliance perspective" and thus his "understanding [was] that the parties [had] been trying to find a business arrangement that mitigate[d] [those] concerns," and that he would "encourage" Giambruno "to be cognizant of those
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issues in any proposals to the business" which "may help speed things up." Prickett did not send over any proposed draft agreement, and the compensation terms and structure of the draft that CerCare had sent on December 6, 2022 remained unacceptable to the Defendants. Id. 1 106.
On September 14, 2023, Giambruno texted Joffrion that since the parties had not been able to reach agreement on a consulting or broker agreement, Giambruno could instead become a Philips employee - "I'll take $1 a year salary." Joffrion replied that he would pass it along. Giambruno then replied the "flip side" is if Philips rejects that idea "what do we do?" Id. I 107. On October 2, 2023, the Defendants' in-house counsel, Cowper, emailed CerCare counsel, stating that "I do not think it is fair to say" that the provisions in the draft agreement CerCare provided in December 2022 would be "consistent with [the Defendants'] healthcare compliance obligations." Id. I 108. On October 24, 2023, Philips notified CerCare, during a telephone call with Giambruno, that the Defendants did not plan to move forward with any amendment or revised agreement. The parties had not been able to agree on mutually acceptable terms. Id. 1 109.
On November 6, 2023, the Defendants emailed CerCare a proposed termination and release agreement that included a proposed termination payment of $10,000 from the Defendants to
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CerCare. Id. I 110. CerCare did not sign the proposed termination agreement, and did not make any counteroffer. Id. I 111.
E. Undisputed Facts Relating to Damages
Telcare and Anthem fully executed the MSA by May 2, 2022, and the MSA had an effective date of April 1, 2022. Id. § 112. Anthem did not exercise its option to extend the MSA. Id. I 114. The defendants earned $389,961 in revenues from the Amerigroup Georgia Medicaid Pilot covered by SOW No. 1 from the inception of the pilot through its termination in August 2024. Id. 1 117. The defendants incurred $185, 091 in costs providing supplies and services for the Amerigroup Georgia Medicaid Pilot covered by SOW No. 1 from the inception of the pilot through its termination in August 2024. Id. 1 118. Defendants earned
$204, 870 in profits ($389,961 minus $185,091) from the Amerigroup Georgia Medicaid Pilot covered by SOW No. 1 from the inception of the pilot through its termination in August 2024. Id. I 119. Amerigroup Georgia ended the Amerigroup Georgia Medicaid Pilot Program because it did not have the funds to continue it past August 2024, as the original $400,000 that Amerigroup Georgia prepaid for the pilot was almost exhausted. Id. I 120.
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On April 19, 2024, the Defendants executed a second SOW No. 2 with Amerigroup Georgia for a maternal health pilot program with the Georgia Department of Health (the "Georgia Maternal Health Pilot") . Amerigroup Georgia subsequently determined that the wrong person signed SOW No. 2 so the parties executed an otherwise identical SOW with the correct signatory on November 1, 2024. Id. I 121.
The Georgia Maternal Health Pilot arose through the Defendants' government affairs team's efforts to fund remote maternal health monitoring pilots. The Georgia Maternal Health Pilot includes three managed care organizations: Amerigroup Georgia, CareSource, and Peach State. The Defendants needed separately to contract with each of those organizations because the MSA was already in place with Anthem (Amerigroup Georgia's parent) and the Amerigroup contract was structured as a SOW pursuant to the MSA. Id. § 123.
SOW No. 2, for the Amerigroup Georgia piece of the Georgia Maternal Health Pilot, has a not-to-exceed value of $135,000, the maximum revenues Defendants can earn under
that SOW. As of the filing of the motion, the Defendants have earned well below that amount; as of the end of February 2025, SOW No. 2 had generated $17, 360 in revenues for Telcare. Id. I 124.
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The defendants expect to earn $32, 400 in profits under SOW No. 2, approximately 24% of the total revenue under that SOw. Through February 2025, Philips had earned $4,214 in profits under SOW No. 2. Id. 1 125. The Defendants did not enter into any other SOWs pursuant to the MSA other than SOW No. 1 and SOW No. 2 with Amerigroup Georgia described above. Id. I 126.
In connection with the Amerigroup Georgia Medicaid Pilot, CerCare did not provide the supplies, enroll or communicate with patients, or provide monitoring or coaching. All of those tasks were the responsibility of the Defendants. Id. § 127. At the time it filed its Complaint seeking lost profits damages, CerCare did not know how many patients were successfully enrolled in the Amerigroup Georgia Medicaid Pilot or how many patients stayed in the program, much less whether it generated any cost savings. Id. § 128.
When Amerigroup Georgia conducted audits relating to the Amerigroup Georgia Medicaid Pilot, it was the Defendants who had to provide the requested information. CerCare's role was "somewhat of an intermediary." Id. § 129.
In February 2022, CerCare retained the law firm of Alston & Bird inter alia to assist CerCare in drafting a proposed new or amended agreement with the Defendants for CerCare to send to the Defendants for their consideration. Id. # 131. CerCare has produced two invoices for legal fees it paid to Alston & Bird
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relating to any potential new or amended agreement with Defendants, one for $11,153.50, and one for $4,927.50, for a total of $16,081.00. Id. 1 132.
CerCare entered into a series of Consulting Agreements with Terminus Strategies, LLC ("Terminus") dated June 15, 2021, December 1, 2021, June 1, 2022, and December 1, 2022 (the "Terminus Agreements") . Id. I 133. CerCare has produced invoices showing that it paid $84,000 to Terminus for lobbying and consulting services in the state of Georgia rendered during the time period December 2021 through September 2023. Id. I 135.
CerCare has produced invoices showing that it was billed $77, 500 by Rubin Turnbull for lobbying and consulting services relating to the VA during the time period February 2022 through May 2023. Id. # 138. By letter from counsel on April 11, 2025, CerCare told the Defendants that "except for CerCare's lobbying and Alston & Bird fees . . CerCare has decided to withdraw its claim for out of pocket damages/expenses." CerCare's claimed lobbying costs and Alston & Bird fees total $177, 581. Id. I 139.
IV. ANALYSIS
The Defendants argue that the remaining counts for promissory estoppel and unjust enrichment fail as matter of law. For the reasons stated below, the Defendants' Motion for Summary
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Judgment, ECF No. 67, is ALLOWED as to Count III for Promissory Estoppel, and ALLOWED in Part and DENIED in Part as to Count IV for Unjust Enrichment, inasmuch as that latter claim cannot include claims for CerCare's purported lost profit damages.
A. Standard of Review
It is well-settled that "a court can grant summary judgment 'only if the record, construed in the light most amiable to the nonmovant, presents no genuine issue as to any material fact and reflects the movant's entitlement to judgment as a matter of law. '" United States ex rel. Omni Healthcare Inc. v. MD Spine Sols. LLC, 160 F.4th 248, 257 (1st Cir. 2025) (quoting Irobe v. U. S. Dep't of Agric., 890 F. 3d 371, 377 (1st Cir. 2018) ); see Fed. R. Civ. P. 56 (a). "The party 'seeking summary judgment must, at the outset, inform the court of the basis for its motion and identify the portions of the pleadings, depositions, answers to interrogatories, admissions, and affidavits, if any, that demonstrate the absence of any genuine issue of material fact.'" Id. at 258 (quoting Irobe, 890 F.3d at 377). If the moving party "'crosses this modest threshold,' it becomes the nonmoving party's duty to, 'with respect to each issue on which it would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in its favor. '" Id. It is a rigorous burden: "[t]o avoid the axe, the
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nonmovant must identify 'significantly probative evidence favoring' its position. '" Id.
B. Promissory Estoppel
The elements of promissory estoppel under Massachusetts law are similar to breach of contract, but without the element of consideration. "When a promise is enforceable in whole or in part by virtue of reliance, it is a 'contract,' and it is enforceable pursuant to a 'traditional contract theory' antedating the modern doctrine of consideration." Loranger
Const. Corp. v. E. F. Hauserman Co., 376 Mass. 757, 761 (1978) .
Under Massachusetts law, "[t]o prevail on a promissory estoppel claim, [CerCare] must show (1) a representation intended to induce reliance; (2) reasonable reliance on that representation; and (3) resulting detriment." Tody's Serv., Inc. v. Liberty
Mut. Ins. Co., 496 Mass. 197, 201 (2025). Notably, "because promissory estoppel is equivalent to a contract action, all elements of a contract other than consideration must be established." Id. (citation and quotations omitted) . "Reduced to basic terms, promissory estoppel 'consists simply of a promise that becomes enforceable because of the promisee's reasonable and detrimental reliance. '" Suominen v. Goodman Indus. Equities Mgmt. Grp., LLC, 78 Mass. App. Ct. 723, 731 (2011) (quoting Rooney v. Paul D. Osborne Desk Co., 38 Mass.App.Ct. 82, 83 (1995) .
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The Defendants argue that they are entitled to judgment as matter of law because CerCare cannot prove any of the above elements and that, as to damages, the lost profits claim fails, and at most it is entitled to out-of-pocket expenses. An enforceable promise must be unambiguous. For example, "statements of intent or agreements to negotiate" are "not unambiguous promises." Columbia Plaza Assocs. v. Northeastern
Univ., 493 Mass. 570, 585 (2024). "[A]s with a claim for breach of contract, [in] order to establish the existence of an enforceable promise under promissory estoppel, the plaintiff must show that the defendants' promise included enough essential terms so that a contract including them would be capable of being enforced. " Lan Glob., Inc. v. Alchemy Telco Sols. US, LLC, No. 22-CV-11732-AK, 2023 WL 5978296, at *12 (D. Mass. July 6, 2023) (alteration in original) (emphasis added) (quoting Armstrong v. Rohm and Haas Co. , Inc., 349 F. Supp. 2d 71, 82 (D. Mass. 2004), report and recommendation adopted, No. 22-CV-11732- AK, 2023 WL 5978297 (D. Mass. Aug. 25, 2023) ).
As this Court wrote in 2011, the promise must be unambiguous because otherwise the Court would be impermissibly creating the terms of a contract that did not exist:
Thus, even where detrimental reliance acts as a substitute for consideration, the promise on which a claim for promissory estoppel is based must be interchangeable with an offer "in the sense of 'commitment. '" Cataldo Ambulance Serv., Inc. v. City
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of Chelsea, 426 Mass. 383, 386 n. 6, 688 N.E.2d 959 (1998) . The promise must demonstrate "an intention to act or refrain from acting in a specified way, so as to justify a promisee in understanding that a commitment has been made." Varadian, 419 Mass. at 849-50 (quoting Restatement (Second) of Contracts § 2 (1981) ) . That the representation is of future, rather than present, intention will not preclude recovery, so long as the promisor's expectation to be legally bound is clear. See Sullivan v. Chief Justice for Admin. & Mgt. of Trial Court, 448 Mass. 15, 28 & n. 9 (2006) (quoting Boylston Dev. Group, Inc. v. 22 Boylston St. Corp., 412 Mass. 531, 542 n. 17 (1992) ) .
In addition to demonstrating a firm commitment, the putative promise, like any offer, must be sufficiently "definite and certain in its terms" to be enforceable. Moore v. La-Z-Boy, Inc., 639 F. Supp. 2d 136, 142 (D.Mass.2009) (Stearns, J.) (quoting Kiely, 914 F. Supp. at 712). " [I]f an essential element is reserved for the future agreement of both parties, as a general rule, the promise can give rise to no legal obligation until such future agreement." 1 Richard A. Lord, Williston on Contracts § 4:29 (4th ed. 1990) ; see Lucey v. Hero Int'l Corp., 361 Mass. 569, 574-75, 281 N.E.2d 266 (1972). Under well-settled Massachusetts law, "an agreement to enter into a contract which leaves the terms of that contract for future negotiation is too indefinite to be enforced." Caggiano v. Marchegiano, 327 Mass. 574, 580, 99 N.E.2d 861 (1951) ; see Sax v. DiPrete, 639 F.Supp.2d 165, 171 (D.Mass.2009) (Stearns, J.); Moore, 639 F.Supp.2d at 142; In re Harvey Probber, Inc., 50 B.R. 292, 296-97 (Bankr. Mass. 1985) ; Lafayette Place Assocs. v. Boston Redevelopment Auth., 427 Mass. 509, 517, 694 N.E.2d 820 (1998) ; Bell v. B.F. Goodrich Co., 359 Mass. 763, 763, 270 N.E.2d 926 (1971); Air Tech. Corp. v. General Elec. Co., 347 Mass. 613, 626, 199 N.E.2d 538 (1964); Rosenfield v. United States Trust Co., 290 Mass. 210, 217, 195 N.E. 323 (1935); Restatement (Second) of Contracts § 33, comment (c) ("The more terms the parties leave open, the less likely it is that they have intended to conclude a binding agreement.") .
The longstanding reluctance of courts to enforce open-ended "agreements to agree" reflects a belief that, unless a "fall-back standard" exists to supply
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the missing terms, there is no way to know what ultimate agreement, if any, would have resulted. E. Allan Farnsworth, Precontractual Liability and Preliminary Agreements: Fair Dealing and Failed Negotiations, 87 Colum. L.Rev. 217, 255-56 (1987) . It is the vague and indefinite nature of that potential final agreement-not the preliminary agreement to agree-that troubles courts. See Armstrong v. Rohm & Haas Co., Inc., 349 F.Supp.2d 71, 78 (D. Mass. 2004) (Saylor, J.) (holding that an agreement must be sufficiently definite to enable courts to give it an exact meaning). Judges are justifiably unwilling to endorse one party's aspirational view of the terms of an unrealized agreement. See Farnsworth, supra at 259. Just as "[i]t is no appropriate part of judicial business to rewrite contracts freely entered into," RCI Northeast Servs. Div. v. Boston Edison Co., 822 F. 2d 199, 205 (1st Cir. 1987), courts must not force parties into contracts into which they have not entered freely, Armstrong, 349 F.Supp.2d at 80 (holding a promise unenforceable where the court could not "supply the missing terms without 'writing a contract for the parties which they themselves did not make'" (quoting Held v. Zamparelli, 13 Mass. App. Ct. 957, 958, 431 N.E.2d 961 (1982) ) ).
Moreover, parties ought be allowed to step away unscathed if they are unable to reach a deal. Cf. R.W. Int'l Corp. v. Welch Food, Inc., 13 F. 3d 478, 484-85 (1st Cir.1994). To impose rights and duties at "the stage of 'imperfect negotiation,'" Lafayette Place Assocs., 427 Mass. at 517, would be to interfere with the liberty to contract -- or not to contract. Thus, the concern is that if a court were to order specific performance of an agreement to agree, where the material terms of the final agreement were left open by the parties, not only would there be "little, if anything, to enforce," Lambert v. Fleet Nat'l Bank, 449 Mass. 119, 123, 865 N.E.2d 1091 (2007), but also future negotiations would be chilled. Cf. American Broad. Cos., Inc. v. Wolf, 52 N.Y.2d 394, 438 N.Y.S.2d 482, 420 N.E.2d 363, 368-69 (1981) (denying request for specific performance of general contract negotiation clause as inhibitive of free competition) .
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Dixon v. Wells Fargo Bank, N.A., 798 F. Supp. 2d 336, 340-42 (D. Mass. 2011) .
The Defendants argue there was no promise, or if there was it was so ambiguous as to not be actionable. Defs.' Mem. 6-10. Specifically, they argue there were no written promises, that the alleged oral promises were insufficient, and that the written correspondence supports no more than an unenforceable agreement to negotiate. Id .; see Sunningdale Ventures, Inc. v. Martin, No. CV 13-12512-DPW, 2018 WL 1582554, at *10 (D. Mass. Mar. 31, 2018) (Woodlock, J) (" [A]n agreement-to-agree later is unenforceable . At most, [the Defendant] promised [the Plaintiff] that it would agree to negotiate over a later modification. Under Massachusetts law, this is too vague to be enforced, even under a theory of detrimental reliance. A court would have to write all the essential terms of the modified loan agreement into the purported contract in order to reach the result Martin seeks.").
CerCare argues that the evidence demonstrates "not whether CerCare would be compensated or how much, but rather what was the best option to achieve the compensation levels the Philips Defendants promised to pay Cercare for the levels of business it brought to Defendants." Pl. 's Opp'n 6 (emphasis in original) . In sum, the Cercare argues that the Telcare Agreement was the
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base line for a new agreement. Id. 6-13. CerCare has submitted, among other evidence, an affidavit as to the promise:
The promises to pay CerCare at the same levels, for the same amount of business I generated, under the Telcare Agreement were made orally to me on multiple occasions by several Philips employees, including Josam Joffrion, Nick Wilson, and David Bliss. While I cannot recall the exact date on which each of these employees made these promises to me, I do recall a specific meeting with Philips employees in Boston, Massachusetts on April 22, 2022. At that meeting, Mr. Joffrion, Mr. Wilson and Mr. Bliss repeated this promise to me and Wilson assured me, once again, that Philips would sign the revised agreement, which would confirm those promises in a written agreement.
Aff. Scott Giambruno ("Giambruno Aff.") I 18 (emphasis added) , ECF No. 90.
This, and similar statements and communications, are simply not enough. "Whether an alleged agreement is sufficiently definite to be judicially enforced is a fact-based inquiry which depends upon the nature of the underlying agreement and the alleged terms." Lan Glob., Inc., 2023 WL 5978296, at *13. The simpler the deal, the fewer terms; for example, a property rental might require price and duration. Id. More complex deals require more detail. Id.
Here, the underlying Telcare Program Agreement does not set any revenue, but rather just provides a commitment to sell to CerCare, and for CerCare to pay Telcare for the products it purchases. Cercare argues that the "Defendants promised to preserve CerCare's compensation at the same level as under the
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Telcare Program Agreement and consistent with the expected compensation levels from that Agreement." Pl.'s Opp'n 13. As the Defendants argue, however, "the Telcare Agreement does not provide for any payments to CerCare, and put the onus on CerCare to negotiate contracts with Payers at high enough prices to earn any profits from selling the products and services CerCare would purchase from Telcare." Reply 1. Furthermore, while the Telcare Program Agreement may have been a baseline, the redline and proposed by Cercare agreement was essentially an entirely different agreement. See ECF No. 84-25 13-38; 39-50.
Even taking all reasonable inferences in favor of CerCare, while the parties may have intended to enter into a new arrangement, the evidence demonstrates an agreement to negotiate a new agreement. Indeed, as here, "[w]hen the core terms of an alleged promise have not yet been specified, there is no reliable basis upon which the Court could go about filling in the missing terms." Lan Glob., Inc., 2023 WL 5978296, at *14. Accordingly, no reasonable jury could conclude that the Defendants made an unambiguous promise. Promissory estoppel fails as matter of law.
c. Unjust Enrichment
Under Massachusetts law, "[t]o succeed on an unjust enrichment claim," CerCare has the burden of demonstrating "that (1) it 'conferred a measurable benefit' on the defendant, (2) it
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'reasonably expected compensation,' and (3) 'the defendant [s] accepted the benefit with knowledge' of that reasonable expectation." Tody's Serv., Inc. v. Liberty Mut. Ins. Co., 496 Mass. 197, 200 (2025) (quoting Columbia Plaza Assocs. v. Northeastern Univ., 493 Mass. 570, 589 (2024)). The Defendants argue that "CerCare cannot demonstrate that the limited profits the Defendants earned from business referred to them by CerCare were obtained by Defendants at CerCare's expense. Defs.' Mem. 18-19. As CerCare argues, "[a]t a minimum, a genuine issue of material fact exists concerning whether CerCare had a reasonable expectation of compensation during the period before Defendants informed CerCare they would not be moving forward with the new agreement to document their promises to compensate CerCare, precluding summary judgment." CerCare Opp'n 17 (citing Crosby Legacy Company, LLC v. TechnipFMC PLC, No. CV 18-10814-NMG, 2025 WL 1071628, at *11 (D. Mass. Feb. 6, 2025), report and recommendation adopted, No. 18-CV-10814, 2025 WL 700301 (D. Mass. Mar. 5, 2025), and report and recommendation adopted, No. CV 18-10814-NMG, 2025 WL 2937099 (D. Mass. Oct. 15, 2025) ).
CerCare has the better of it here. A fact finder can decide the contours of the expectations of payment for the assistance in getting Anthem on board. Count IV therefore survives summary judgment. The Defendants correctly argue in the alternative, however, that damages cannot include CerCare's
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lost profits. Defs. Mem. 19-20 (citing Massachusetts Eye & Ear Infirmary v. QLT Phototherapeutics, Inc., 552 F.3d 47, 67 (1st Cir. 2009) ("[A] plaintiff may not recover her own lost profits through an unjust enrichment claim ") ). Accordingly, damages if any under this count, must exclude CerCare's lost profits.
V. MOTION TO STRIKE JURY CLAIM
The Defendants motion to strike the jury claim is ALLOWED in Part as to unjust enrichment, with the Court reserving the right to empanel an advisory jury, 2 and DENIED as MOOT as to the dismissed promissory estoppel claim.
While the First Circuit has not ruled definitively on the issue, this Court has previously ruled that "there is no Seventh Amendment right to a jury solely on the basis of [an unjust enrichment] claim." Massachusetts Eye & Ear Infirmary v. QLT, Inc., 495 F. Supp. 2d 188, 193 (D. Mass. 2007), aff'd in part, vacated in part sub nom. Massachusetts Eye & Ear Infirmary v. QLT Phototherapeutics, Inc., 552 F.3d 47 (1st Cir. 2009),
2 Even where no right to a jury trial may attend, the Defendants concede that the Court may employ an advisory jury to the Court, citing this Court's decision Moitoso v. FMR LLC, 410 F. Supp. 3d 320, 322 (D. Mass. 2019) for the proposition that "anything a judge can do a jury can do better." Defs.' Mem. Mot. Strike 1; see Fed. R. Civ. P. 39 (c) (1) ("In an action not triable of right by a jury, the court, on motion or on its own: . may try any issue with an advisory jury . . .")
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decision clarified on denial of reh'g, 559 F.3d 1 (1st Cir. 2009) .
The First Circuit appears to agree, though it is unclear whether this was dicta when it stated that "it is undisputed that the unjust enrichment count does not require a jury trial" in Frappier v. Countrywide Home Loans, Inc., 750 F. 3d 91, 97 (1st Cir. 2014). CerCare argues that the remedy is nevertheless legal in nature and tries to distinguish these cases because they did not include "legal damages claims." Opp'n Mot. Strike 4 n. 1. CerCare attempts to buttress the legal nature of its claims with lost profit damages, but those damages are not available in an unjust enrichment case. The Court is unpersuaded. CerCare does not have a jury claim as matter of right.
VI. CONCLUSION
For the reasons stated above, the Defendants' Motion for Summary Judgment, ECF No. 67, is hereby ALLOWED in Part as to Count III Promissory Estoppel and DENIED in Part as to Count IV for Unjust Enrichment, but such claim cannot include claims for CerCare's purported lost profit damages which are impermissible.
The Defendants' motion to strike the jury trial as to the remaining claims, ECF No. 75, is ALLOWED in part as to the remaining claim of unjust enrichment, and DENIED in part as MOOT
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with respect to the dismissed promissory estoppel claim. 3 SO ORDERED.
William 4. Hours
WILLIAM G. YOUNG JUDGE - of the UNITED STATES4
3 The Court reserves as to whether to empanel an advisory jury. See Fed.R.Civ.P. 39 (c) (1)
4 This is how my predecessor, Peleg Sprague (D. Mass 1841- 1865), would sign official documents. Now that I'm a Senior District Judge I adopt this format in honor of all the judicial colleagues, state and federal, with whom I have had the privilege to serve over the past 47 years.
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