Gattineri Memo iso Motion for Summary Judgment [FINAL]...3/ Wynn is a publicly traded Nevada...

UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MASSACHUSETTS

___________________________________ANTHONY GATTINERI, )

)Plaintiff )

)v. )

)WYNN MA, LLC and WYNN RESORTS, )LIMITED, )

)Defendants ) Civil Action No. 1:18-cv-11229

)WYNN MA, LLC, )

)Plaintiff-in-Counterclaim, )

)v. )

)ANTHONY GATTINERI, )

)Defendant-in-Counterclaim. )

____________________________________)

MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Case 1:18-cv-11229-FDS Document 133 Filed 11/04/20 of 33

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TABLE OF CONTENTSPage(s)

INTRODUCTION..........................................................................................................................1

BACKGROUND ............................................................................................................................1

A. The San Diego Agreement.........................................................................................2

B. This Action..................................................................................................................3

LEGAL STANDARD ....................................................................................................................4

ARGUMENT..................................................................................................................................4

I. Mr. Gattineri Cannot, As a Matter of Law, Prove His Breach of Contract Claim .4

A. Mr. Gattineri cannot prove that a valid contract between the parties existed ....5

B. Mr. Gattineri cannot prove that he was able to perform a required condition of the alleged San Diego Agreement: his innocence ..................................................13

C. Mr. Gattineri cannot prove he sustained damages as a result of Defendants’ breach of the alleged San Diego Agreement ..........................................................15

D. Mr. Gattineri’s breach of contract claim also fails because Mr. DeSalvio lacked actual or apparent authority to bind the Defendants to an agreement ..............16

E. The alleged San Diego Agreement is an unenforceable illegal contract because it directly contravenes a Commission directive.....................................................21

II. Mr. Gattineri’s Claim for Common Law Fraud Fails, As a Matter of Law, Because He Could Not Reasonably Rely on Mr. DeSalvio’s Vague Representation..............................................................................................................23

III. Because Mr. Gattineri’s Breach of Contract and Fraud Claims Fail As a Matter of Law, So Too Does His Derivative Claim for Violations of M.G.L. c. 93A..........24

CONCLUSION ............................................................................................................................25


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TABLE OF AUTHORITIESPage(s)

Cases

ACI Worldwide Corp. v. Keybank Nat'l Ass'n,No. 1:17-cv-10662-IT, 2020 U.S. Dist. LEXIS 182007 (D. Mass. Sep. 30, 2020) ........................................................................................................................................16

Anderson v. Liberty Lobby, Inc.,477 U.S. 242 (1986)...................................................................................................................4

Armstrong v. Rohm & Haas Co.,349 F. Supp. 2d 71 (D. Mass. 2004) ..............................................................................5, 6, 7, 9

Atwood v. Fisk,101 Mass. 363 (1869) ..............................................................................................................21

Baltazar Contrs., Inc. v. Town of Lunenburg,65 Mass. App. Ct. 718 (2006)............................................................................................21, 23

Bank of N.Y. Mellon Trust Co., N.A. v. Morgan Stanley Mortg. Capital, Inc.,821 F.3d 297 (2d Cir. 2016).....................................................................................................13

Baseball at Trotwood, LLC v. Dayton Professional Baseball Club,No. C-3-98-260, 2003 U.S. Dist. LEXIS 27460 (S.D. Ohio Sep. 2, 2003) .................13, 14, 15

BBJ, Inc. v. Millercoors,LLC, 2017 U.S. Dist. LEXIS 33072 (D. Mass. March 8, 2017) .............................................23

Bose Corp. v. Ejaz,732 F. 3d 17 (1st Cir. 2013)...........................................................................................5, 13, 14

Brownell v. Tide Water Associated Oil Co.,121 F.2d 239 (1st Cir. 1941)....................................................................................................19

Buker v. Nat'l Mgmt. Corp.,16 Mass. App. Ct. 36 (1983)......................................................................................................7

Chemawa Country Golf, Inc. v. Wnuk,9 Mass. App. Ct. 506 (1980)....................................................................................................15

City of Revere v. Boston/Logan Airport Assoc443 F.Sup.2d 121, 126 (D.Mass. 2006)…. …... ......................................................................10

City of Westfield v. Harris & Assocs. Painting, Inc.,567 F. Supp. 2d 252 (D. Mass. 2008) ......................................................................................22


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CNE Direct, Inc. v. Blackberry Corp.,821 F.3d 146 (1st Cir. 2016)........................................................................................16, 19, 21

Commonwealth v. Rollins,354 Mass. 630 (1968) ..............................................................................................................15

Conway v. Licata,104 F. Supp. 3d 104 (D. Mass. 2015) ..................................................................................6, 18

Council v. Cohen,303 Mass. 348 (1939) ..............................................................................................................21

Cytologix Corp. v. Ventana Med. Sys.,Nos. 00-12231-RWZ, 01-10178-RWZ, 2006 U.S. Dist. LEXIS 49677 (D. Mass. July 20, 2006) ................................................................................................................25

Duane v. Merchants' Legal Stamp Co.,227 Mass. 466 (1917) ..............................................................................................................21

Egan v. Athol Memorial Hosp.,971 F. Supp. 37 (D. Mass. 1997) .............................................................................................25

Eldridge v. Gordon Bros. Group, LLC,316 F.R.D. 12 (D. Mass. 2016)..........................................................................................15, 16

Frohberg v. Merrimack Mut. Fire Ins. Co.,34 Mass. App. Ct. 462 (1993)..................................................................................................25

G.S. Enters., Inc. v. Falmouth Marine, Inc.,410 Mass. 262 (1991) ..............................................................................................................15

Green Earth Energy Photovoltaic Corp. v. KeyCorp,No. 19-30123-MGM, 2020 U.S. Dist. LEXIS 64865 (D. Mass. Jan. 10, 2020)........................5

Hann v. Micron Separations,No. 96-1948, 1997 U.S. App. LEXIS 2351 (1st Cir. Feb. 12, 1997).......................................20

Harrigan v. Dodge,216 Mass. 461 (1914) ..............................................................................................................17

Held v. Zamparelli,13 Mass. App. Ct. 957 (1982)..................................................................................................10

Hogan v. Riemer,35 Mass. App. Ct. 360 (1993)..................................................................................................24

Huckins v. Hunt,138 Mass. 366 (1885) ..............................................................................................................21


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Hudson v. Massachusetts Property Ins. Underwriting Assn.,386 Mass. 450 (1982) ..............................................................................................................18

In re Lloyd, Carr & Co.,617 F.2d 882 (1st Cir. 1980)..............................................................................................11, 12

JLB LLC v. Egger,No. 1:19-cv-11890-ADB, 2020 U.S. Dist. LEXIS 93152 (D. Mass. May 28, 2020) ..........................................................................................................................................5

Johnson v. Charbonnier,No. 13-cv-13301-ADB, 2015 U.S. Dist. LEXIS 164373 (D. Mass. Dec. 8, 2015) ........................................................................................................................................15

Kansallis Fin. Ltd. v. Fern,421 Mass. 659 (1996) ..............................................................................................................18

Licata v. GGNSC Malden Dexter LLC,466 Mass. 793 (2014) ........................................................................................................18, 19

Macoviak v. Chase Home Mtge. Corp.,40 Mass. App. Ct. 755 (1996)..................................................................................................25

Masingill v. EMC Corp.,449 Mass. 532 (2007) ........................................................................................................23, 24

Massachusetts Mun. Wholesale Elec. Co. v. Danvers,411 Mass. 39 (1991) ................................................................................................................21

Medina-Munoz v. R.J. Reynolds Tobacco Co.,896 F.2d 5 (1st Cir. 1990)..........................................................................................................4

Mesnick v. General Elec. Co.,950 F.2d 816 (1st Cir. 1991)......................................................................................................4

Moore v. La-Z-Boy, Inc.,639 F. Supp. 2d 136 (D. Mass. 2009) ..................................................................................7, 10

Morris v. BAC Home Loans Servicing, L.P.,775 F.Supp.2d 255 (D.Mass. April 4, 2011)............................................................................24

N. Am. Catholic Educ. Programming Foundation, Inc. v. Cardinale,567 F.3d 8 (1st Cir. 2009)..................................................................................................23, 24

Neuhoff v. Marvin Lumber and Cedar Co.,370 F.3d 197 (1st Cir. 2004)....................................................................................................10


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O'Connor v. Steeves,994 F.2d 905 (1st Cir. 1993)......................................................................................................4

Pimental v. Wachovia Mortg. Corp.,411 F. Supp. 2d 32 (D. Mass. 2006) ........................................................................................25

Ramos v. Department of Educ.,52 F. Supp. 3d 387 (D.P.R. 2014)............................................................................................19

Roman v. Trustees of Tufts College,461 Mass. 707 (2012) ..............................................................................................................24

Rubel v. Hayden, Hardin & Buchanan, Inc.,15 Mass. App. Ct. 252 (1983)..................................................................................................18

Santiago-Ramos v. Centennial P.R. Wireless Corp.,217 F.3d 46 (1st Cir. 2000)......................................................................................................20

Saxon Theatre Corp. of Boston v. Sage,347 Mass. 662 (1964) ..............................................................................................................23

TAS Distrib. Co. v. Cummins Engine Co.,491 F.3d 625 (7th Cir. 2007) ...................................................................................................15

Theos & Sons, Inc. v. Mack Trucks, Inc.,431 Mass. 736 (2000) ..................................................................................................17, 18, 20

TLS Mgt. & Mktg. Servs., LLC v. Rodríguez-Toledo,966 F.3d 46 (1st Cir. 2020)......................................................................................................21

Waldner v. Carr,618 F.3d 838 (8th Cir. 2010) .....................................................................................................5

Warren H. Bennett, Inc. v. Charlestown Savings Bank,3 Mass. App. Ct. 753 (1975)....................................................................................................23

Wynne v. Rosen,391 Mass. 797 (1984) ..............................................................................................................15

Statutes

M.G.L. c. 23K § 21(b) .............................................................................................................21, 22

M.G.L. c. 23K, § 12 .......................................................................................................................14

M.G.L. c. 93A........................................................................................................................1, 4, 24


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Other Authorities

3 Am Jur 2d Agency § 80 ........................................................................................................18, 19

Fed. R. Civ. P. Rule 9(b)................................................................................................................23

Fed. R. Civ. P. 56(a) ........................................................................................................................4

Restatement (Third) of Agency § 2.01 Comment C (2006) ..........................................................17


INTRODUCTION1/

Pursuant to Federal Rule 56, Wynn MA, LLC (“Encore”)2/ and Wynn Resorts, Limited

(“Wynn”)3/ (together “Defendants”) file this Memorandum in Support of their Motion for

Summary Judgment on Counts I-III of Plaintiff Anthony Gattineri’s Complaint. The Complaint

alleges three Counts: Count I – Breach of Contract; Count II – Unfair and/or Deceptive Trade

Practices in Violation of M.G.L. c. 93A; and Count III – Common Law Fraud. Dkt No. 1

Complaint (“Comp.”) at ¶¶ 44-69. Based on the undisputed factual record, presented in the

Defendants’ accompanying Statement of Undisputed Material Facts (“SUMF”), Mr. Gattineri

cannot prove the essential elements of his breach of contract claim, as a result, that claim must fail.

Because Mr. Gattineri’s remaining claims are derivative of that breach of contract claim, and based

on the same operative facts, Counts II and III must also fail. As such, Defendants are entitled to

summary judgment as a matter of law on all three Counts.

BACKGROUND

In January 2013, Encore filed an application with the Massachusetts Gaming Commission

(the “Commission”) for a Region A category 1 gaming license (the “License”) to operate a resort

and casino on property located in Everett, MA (the “Parcel”) that was owned by FBT Everett

Realty, LLC (“FBT”). SUMF ¶ 3. Mr. Gattineri owns 46.69% of FBT. SUMF ¶ 1. Mr. Gattineri’s

allegations relate to Encore’s purchase of the Parcel from FBT.

In December 19, 2012, Encore and FBT entered into an Option Agreement (the “Option

Agreement”) for the purchase of the Parcel. SUMF ¶ 10. Although the Option Agreement reflected

1/ Citations to the factual record are to the Statement of Undisputed Material Facts Pursuant to Local Rule 56.1 in Support of Defendants’ Motion for Summary Judgment (“SUMF”).2/ Encore is a limited liability company organized under the laws of the State of Nevada with a principal place of business at 3131 Las Vegas Boulevard South, Las Vegas, Nevada 89109. SUMF ¶ 2. 3/ Wynn is a publicly traded Nevada corporation with a principal place of business at 3131 Las Vegas Boulevard South, Las Vegas, Nevada 89109. SUMF ¶ 2.


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a purchase price of $75 million for the Parcel, because the Parcel was polluted, SUMF ¶ 15, the

Option Agreement required FBT to complete, and incur the cost of, certain environmental

remediation work referred to as “Seller’s Environmental Obligations.” SUMF ¶¶ 10, 16-19. Under

Section 5.7.6 of the Option Agreement, FBT was “responsible for all costs and expenses related

to Seller’s Environmental Work.” SUMF ¶ 19.

Following the execution of the Option Agreement, the Commission became concerned that

there were additional owners in FBT, beyond the three disclosed to investigators. SUMF ¶¶ 24-

25, 33. In November 2013, FBT and Encore entered into a Ninth Amendment to the Option

Agreement (the “Ninth Amendment”), reducing the purchase price from $75 million to $35

million, and changing “Seller’s Environmental Obligations.” SUMF ¶¶ 48-51. The significant

price reduction reflected an appraisal of the fair market value of the Parcel, which was conducted

based on the following crucial assumptions: “(i) that the Property would not be used for gaming

purposes and (ii) that the environmental condition of the Property would be suitable for general

commercial uses.” (emphasis added). SUMF ¶ 53.

In December 2013, the Commission approved the Ninth Amendment. SUMF ¶ 55. In

connection with that approval, however, the Commission required “that the three members of FBT,

LLC, who are nominally going to receive the proceeds[,] be required to sign a document saying

that they are the exclusive recipients of the proceeds, and that they do that on a notarized document

under oath.” (the “Certificate”). SUMF ¶ 55. Paul Lohnes and Dustin DeNunzio—the other FBT

members—returned their Certificate promptly, on December 23, 2013. SUMF at ¶ 58; Comp. at ¶

17. Mr. Gattineri “refused to sign any Certificate.” SUMF at ¶ 59.

A. The San Diego Agreement.

Against this backdrop, Mr. Gattineri alleges that on June 14, 2014, he met with then Senior

Vice President of Development of Wynn Resorts Development, LLC, Robert DeSalvio, at the


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Westgate Hotel in San Diego, California (the “San Diego Meeting”). SUMF ¶ 64. Mr. Gattineri

claims that at the San Diego Meeting, Mr. DeSalvio made the following offer: “if Anthony

Gattineri signed the required Certificate and Wynn obtained the casino license for a casino on the

FBT property and bought the property, Wynn would ‘make him whole’ by providing him with his

percentage of the purchase price reduction (which is $18,676,000).” SUMF ¶ 72. The Complaint

refers to this alleged offer as the “San Diego Agreement.” Comp. ¶ 33. Although the Complaint

alleges a specific number in connection with the San Diego Agreement, it is undisputed that, at the

actual San Diego Meeting, Mr. Gattineri and Mr. DeSalvio never agreed upon a specific amount

of money that would “make him whole.” SUMF ¶ 74. The alleged San Diego Agreement was also

conditioned on Mr. Gattineri’s innocence. SUMF ¶ 73. (Q: So if the jury came back with a

conviction in April of 2016, the money wouldn’t be owed? A: Absolutely, I would be out the

money).4/

A few hours after the San Diego Meeting, Mr. Gattineri notified Mr. DeSalvio that he

would sign the Certificate. SUMF ¶ 79. Mr. Gattineri signed the Certificate on June 14, 2014, and

the signed Certificate was delivered to the Commission on June 18, 2014. SUMF ¶¶ 80-81.

Ultimately, Encore obtained the License from the Commission in September 2014, and purchased

the Parcel a few months later pursuant to the Ninth Amendment for approximately $35 million.

SUMF ¶ 82.

B. This Action.

On April 11, 2018, representatives of Wynn and Encore received a letter (the “Demand

4/ Mr. DeNunzio, Mr. Gattineri, and Charles Lightbody were federally indicted on October 1, 2014 on the following charges: (1) conspiracy to commit wire fraud; and (2) wire fraud. SUMF ¶ 60. Mr. Gattineri also faced state court charges for impeding a gaming investigation, conspiracy, and tampering with evidence. SUMF ¶ 61. On April 29, 2016, after trial, Mr. Gattineri was acquitted on all federal charges. SUMF ¶ 62. On September 29, 2016, the Commonwealth entered a nolle prosequi in the state court case. SUMF ¶ 63.


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Letter”) from Mr. Gattineri’s counsel alleging that Defendants breached the alleged San Diego

Agreement with Mr. Gattineri, and that Defendants had engaged in “unfair and/or deceptive trade

practices in violation” of M.G.L. c. 93A. SUMF ¶¶ 83-84. On June 12, 2018, Mr. Gattineri filed

the Complaint in this Action. Defendants now move for summary judgment on all three counts.

LEGAL STANDARD

The role of summary judgment is “to pierce the pleadings and to assess the proof in order

to see whether there is a genuine need for trial.” Mesnick v. General Elec. Co., 950 F.2d 816, 822

(1st Cir. 1991) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)). Summary

judgment shall be granted when “there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine issue is “one that must

be decided at trial because the evidence, viewed in the light most flattering to the nonmovant . . .

would permit a rational fact finder to resolve the issue in favor of either party.” Medina-Munoz v.

R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) (citation omitted). In evaluating a

summary judgment motion, the court indulges all reasonable inferences in favor of the nonmoving

party. See O'Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993). But, when “a properly supported

motion for summary judgment is made, the adverse party must set forth specific facts showing that

there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, (1986)

(quotations omitted). The nonmoving party may not simply “rest upon mere allegation or denials

of his pleading," instead, he must “present affirmative evidence.” Id. at 256-57.

ARGUMENT

I. Mr. Gattineri Cannot, As a Matter of Law, Prove His Breach of Contract Claim.

Under Massachusetts law, a breach of contract claim requires the plaintiff to prove four

elements: (1) a valid contract between the parties existed; (2) the plaintiff was ready, willing, and

able to perform; (3) the defendant was in breach of the contract; and (4) the plaintiff sustained


5

damages as a result. See Bose Corp. v. Ejaz, 732 F. 3d 17, 21 (1st Cir. 2013). The plaintiff bears

the burden of proving that there was an “agreement between the parties on the material terms of

that contract, and [that] the parties . . . ha[d] a present intention to be bound by that agreement.”

JLB LLC v. Egger, No. 1:19-cv-11890-ADB, 2020 U.S. Dist. LEXIS 93152, at *31 (D. Mass. May

28, 2020). “Whether an alleged contract is legally enforceable in light of indefinite terms is a

question of law for the court.” Armstrong v. Rohm & Haas Co., 349 F. Supp. 2d 71, 78 (D. Mass.

2004). Mr. Gattineri cannot demonstrate all of the essential elements of his breach of contract

claim: he cannot show that a valid contract between the parties existed; that he was able to perform

a required condition of the alleged agreement; and he cannot quantify the alleged damages he

sustained. As a result, Defendants are entitled to summary judgment as a matter of law.

A. Mr. Gattineri cannot prove that a valid contract between the parties existed.

1. The material terms of the alleged San Diego Agreement are indefinite and uncertain.

To demonstrate an enforceable contract, “[a]ll the essential terms of a contract must be

sufficiently definite and certain so that the intention of the parties may be discovered, the nature

and extent of their obligations ascertained, and their rights determined.” JLB LLC, supra (emphasis

added); see Waldner v. Carr, 618 F.3d 838, 850 (8th Cir. 2010) (“Sufficient evidence of an oral

contract exists when the parties can ascertain the duties and conditions of the contract terms.”); A.

Corbin, Contracts (Rev. Ed. 1996) §4.1, p. 525. In other words, “[a]n agreement may have some

indefinite terms and still be enforceable, but the terms that do exist must be sufficiently definite

that the court could give an exact meaning to the agreement and could enforce it.” Green Earth

Energy Photovoltaic Corp. v. KeyCorp, No. 19-30123-MGM, 2020 U.S. Dist. LEXIS 64865, at

*16-17 (D. Mass. Jan. 10, 2020). Here, Mr. Gattineri alleges the following agreement exists

between the parties: Defendants would “make him whole” if he signed the required Certificate,


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and Defendants obtained the license for a casino on the Parcel. SUMF ¶¶ 72, 84; Comp. at ¶ 31.

“Make him whole” is the essential term of the alleged San Diego Agreement. This term is

insufficiently definite to form the basis of a valid contract for two reasons: (1) it is completely

undefined; and (2) the amount of money that would make Mr. Gattineri whole cannot be

calculated.

First, the phrase “make him whole” is completely undefined. Furthermore, to the extent the

parties did discuss the meaning of the phrase “make him whole,” Mr. Gattineri’s conflicting

testimony proves that they never progressed beyond the stage of “imperfect negotiation.”

Armstrong, 349 F. Supp. 2d at 78 (“While it is not required that parties specify all terms of an

agreement, they must have progressed beyond the stage of imperfect negotiation.”). At his

deposition, Mr. Gattineri claimed that under the alleged agreement he is owed 46.69% (his

ownership percentage in FBT) of $40 million (the difference between the $75 million purchase

price of the Option Agreement and the $35 million purchase price of the Ninth Amendment).

SUMF ¶¶ 72, 74, 76. Mr. Gattineri testified that he thought he “said it was around $19 million,”

but he conceded that he “did not know the exact dollar.” SUMF ¶¶ 74, 75. Yet, in the Complaint,

he alleges that this amount is precisely $18,676,000. Comp. at ¶ 31. In reality, the record shows

that, on June 14, 2014, Mr. Gattineri and Mr. DeSalvio never discussed a specific amount of

money. SUMF ¶¶ 74, 75. In addition, Mr. Gattineri testified that there might have been other ways

to “make him whole,” including additional real estate deals with Encore. SUMF ¶ 77. These

inconsistent statements regarding an essential term of the contract show that “make him whole” is

not sufficiently definite to form a valid contract. See Conway v. Licata, 104 F. Supp. 3d 104, 114

(D. Mass. 2015) (holding a purported contract unenforceable for lacking material terms such as

rate or procedure for determining compensation, type of work required and duration of the


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agreement); Armstrong, 349 F. Supp. 2d at 80-81 (the phrase “all the work” plaintiffs could

“handle” was not sufficiently defined so much that the “omissions [were] fatal.”); Moore v. La-Z-

Boy, Inc., 639 F. Supp. 2d 136, 141 (D. Mass. 2009) (“Plaintiffs themselves [were] in complete

disarray” on a material term of the contract and thus it was unenforceable); Buker v. Nat'l Mgmt.

Corp., 16 Mass. App. Ct. 36, 42, (1983) (defendant's oral promise to “work things out” was too

vague to overcome summary judgment and constitute the basis of a modified contract).

Second, the amount of money that would make Mr. Gattineri whole cannot be calculated.

Mr. Gattineri claims that he is owed 46.69% of the difference between the purchase prices in the

Option Agreement ($75 million) and the Ninth Amendment ($35 million). However, that claim

does not take into account the cost of “Seller’s Environmental Obligations,” which FBT was

required to perform in exchange for the $75 million.5/ Because that cost was never determined, the

amount that would make Mr. Gattineri whole cannot be calculated.

Section 5.7 of the Option Agreement sets forth the “Seller’s Environmental Obligations”,

and in pertinent parts this Section provides:

5.7.1 Seller shall, at Seller’s sole cost and expense, promptly commence and diligently pursue throughout the Option Period, and achieve as soon as reasonably practicable prior to Closing, a Permanent Solution to any Releases of Oil and Hazardous Material at and From the Property (“OHM Releases”) in compliance with the applicable provisions of the Massachusetts Contingency Pan, 310 CMR 40.0000, et seq. (MCP), which Permanent Solution shall be consistent with Purchaser’s proposed use and development of the Property and acceptable to Purchaser in its reasonable discretion (“Permanent Solution”).

5.7.6. Seller shall be responsible for all costs and expenses related to Seller’s Environmental Work. The Parties shall endeavor in good faith to, prior to the Environmental Condition Date, enter into a mutually acceptable cost-sharing

5/ At his deposition, Mr. Gattineri tried to say that he was unaware that FBT had environmental obligations under the Option Agreement, but this statement is belied by the documents produced in this Action showing that Mr. Gattineri was not only aware of the environmental issues, but updated on and participated in the evolving negotiations. SUMF ¶¶ 22, 23, 41.


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agreement (the “Environmental Cost-Sharing Agreement”) related to the sharing of any incremental costs (the “Incremental Environmental Costs”)resulting or arising from OHM Releases at or from the Property, over and above the costs of Seller’s Environmental Work, related specifically to Purchaser’s proposed development and use of the Property, including, without limitation increased costs of excavation, construction, landscaping, including, without limitation, increased costs of excavation, construction, landscaping and maintenance, including the disposition of contaminated soil, groundwater or sediments. The agreed framework for the Environmental Cost-Sharing Agreement is that the Parties shall share the Incremental Environment Costs equally (50/50) with a to-be-determined cap on Seller’s share of such Incremental Environmental Costs. In negotiating the Environmental Cost-Sharing Agreement, the parties shall consider the best way to realize and maximize for the benefit of the Property and the Parties mutual benefit, the continuing obligations of Pharmacia Corporation, et al, under the Judgment dated June 5, 2006 in a Civil Case entitled Mystic Landing LLC v. Pharmacia Corporation , et al, bearing Civil Action No. 04-10180-NMG, in the United States District Court of the District of Massachusetts (the “Pharmacia Judgment”); provided, however, Seller’s Environmental Obligations shall not be limited by or contingent on collection of the Pharmacia Judgment. … If the Parties are unable to reach a mutually acceptable Environmental Cost-Sharing Agreement, this Agreement shall terminate without father recourse of the Parties and no Break Fee shall be due from Purchaser.

SUMF ¶¶ 16-19 (emphasis added). Under the Option Agreement, “Seller’s Environmental

Obligations” including the “Environmental Cost-Sharing Agreement” and “Incremental

Environment Costs” were subject to further negotiations between the parties after the Option

Agreement was signed. SUMF ¶¶ 16-21, 40, 42. Critical to Mr. Gattineri’s claims, FBT and the

Defendants never finished those negotiations. SUMF ¶¶ 42-45. On November 11, 2013, FBT’s

Manager, Mr. DeNunzio, sent a letter to Jacqui Krum, Senior Vice President and General Counsel

of Wynn, stating “[U]nder Section 5.7.6 of the Option Agreement the parties have not been able

to reach a mutually acceptable Environmental Cost-Sharing Agreement and that failure also gives

rise to termination of the Option Agreement.” SUMF ¶ 21. On November 15, 2013, Mr. Gattineri

weighed in on FBT’s “Environmental Cost-Sharing Agreement” stating, “I have no intention of

cost sharing 30,000,000 [sic] for clean up …Wynn and us are not anywhere near on the same

page…” SUMF ¶ 23.


9

At his deposition, Mr. DeNunzio, stated that the negotiations also remained “open” when

the Ninth Amendment was signed. SUMF ¶ 40, 42. Mr. DeNunzio further explained that, while

the Ninth Amendment settled FBT’s clean up responsibilities with “finality,” there was still

uncertainty as to “whether it was to [FBT’s] benefit or not.” SUMF ¶ 43. This is because the

Defendants and FBT “never determined [FBT’s] responsibilities in the original Option Agreement,

so we could never fully quantify how that it [sic] would be.” SUMF ¶ 44. By way of example, the

Defendants and FBT never finalized how the Pharmacia judgment would be allocated; in Mr.

DeNunzio’s words “we didn’t know how much actually Monsanto [Pharmacia] would have paid,

and it could have been 30, 40, 50 million. Who knows what it would have been. We just have no

idea.” SUMF ¶ 45.

When the Ninth Amendment was signed, many questions under the Option Agreement

remained unanswered (e.g., What were the terms of the “Environmental Cost-Sharing

Agreement”? What was FBT’s share of the “Incremental Environmental Costs”? How would the

parties allocate the “Pharmacia Judgment?”). Because these questions remained open, it is

impossible to determine the cost to FBT of performing “Seller’s Environmental Obligations”

which costs would have, of course, reduced the actual amount realized by FBT (and Mr. Gattineri)

from the $75 million. As such, Mr. Gattineri cannot prove how to calculate the dollar amount that

would “make him whole,” making the alleged promise “too vague for this Court to ascertain a

reasonably certain basis for providing an appropriate remedy.” Armstrong, 349 F. Supp. 2d at 79

(volume of work to be performed, the nature and scope of the work, the price to be paid, and the

duration of the contract were material terms that needed to be defined in the contract). If this Court

tried to quantify the amount of money that would “make [Mr. Gattineri] whole” in order to enforce

the alleged agreement, it would be required to write material elements of two contracts: the Option


10

Agreement and the alleged San Diego Agreement. See, e.g., Held v. Zamparelli, 13 Mass. App.

Ct. 957, 958-59 (1982) (defendant's oral promise to pay plaintiff one-fourth of the profits from

leased land if plaintiff would refrain from exercising her option to purchase was silent as to

material matters, such as when and how plaintiff's share of the profits was to be calculated and

paid and the duration of the agreement, and thus too vague and indefinite to be enforced because

“construction and enforcement of the agreement without [such] essential terms would be futile”);

La-Z-Boy, Inc., 639 F. Supp. 2d at 141 (same). Compare Lafayette Place Ass'n., 427 Mass. 509,

518-19(1998) (agreement was enforceable although it failed to provide certain terms such as the

precise contract price because it “provided a pricing formula to determine the price to be paid” and

created a means for resolving disputes over other details not made specific therein).

Because “Seller’s Environmental Obligations” under the Option Agreement were never

determined, their cost cannot be calculated now. It is therefore impossible to establish the actual

monetary benefit that FBT (and Mr. Gattineri) would have realized under the Option Agreement,

and thus impossible to establish what amount of money would “make him whole.” As such, the

terms of the alleged San Diego Agreement are neither definite nor certain, and would be impossible

to enforce. Consequently, Mr. Gattineri cannot demonstrate that a valid and enforceable contract

existed, and Defendants are entitled to summary judgment.

2. The alleged San Diego Agreement is not based on valid consideration.

To prove a breach of contract, a plaintiff must show that the contract was supported by

valid consideration. City of Revere v. Boston/Logan Airport Assoc., LLC, 443 F.Sup.2d 121, 126

(D.Mass. 2006). Valid consideration is “a bargained-for exchange in which there is a legal

detriment of the promisee or a corresponding benefit to the promisor.” Neuhoff v. Marvin Lumber

and Cedar Co., 370 F.3d 197, 201 (1st Cir. 2004). It is well settled that “performance of a pre-

existing legal duty that is neither doubtful nor subject to honest and reasonable dispute is not valid


11

consideration where the duty is owed to the promisor, or to the public at large.” In re Lloyd, Carr

& Co., 617 F.2d 882, 890 (1st Cir. 1980). “The policy underlying this rule is to discourage parties

under such a duty from using the threat of nonperformance to extort greater compensation for

doing only that which they were already obligated to do.” Id.

Here, the San Diego Agreement is not based on valid consideration because Mr. Gattineri

had a pre-existing legal duty under the Option Agreement to provide the very Certificate that he

claims is the “bargained-for-exchange.” Two provisions in the Option Agreement required Mr.

Gattineri to provide the Certificate. First, Section 5.2 of the Option Agreement provides,

Seller and its Affiliates shall, at their sole cost and expense, reasonably cooperate with Purchaser with respect to any information it reasonably requires to complete the Casino Application and respond to any such inquiries throughout the licensing process.” Option Agreement at Section 5.2. “‘Affiliate’ means, with respect to any Person, any other Person which, directly or indirectly, Controls, is Controlled by, or is under common Control with, such original Person.”

SUMF at ¶ 12. Next, Section 13.13.5 provides,

Seller represents and warrants to Purchaser that Seller and, to the best of Seller’s knowledge, all Persons associated with Seller are willing to file all necessaryapplications to obtain whatever Approvals from the Gaming Regulatory Agencies may be required of such Persons in connection with this Agreement. To the best of Seller’s knowledge neither Seller nor any Person associated with Seller has ever engaged in any conduct or practices which any of the foregoing Persons should reasonably believe would cause such Person to be denied any such Approvals.

SUMF at ¶ 14. The Option Agreement defines “Approvals” to mean,

“Approvals” means all approvals, consents, licenses, permits, authorizations, orders, franchises, accreditations, certificates, variances, declarations, concessions, entitlements, waivers, exemptions waivers and similar items, including, without limitation, any license or approval under M.G.L. Chapter 91, a determination under the Massachusetts Environmental Policy Act (“MEPA”), or an Army Corp of Engineer’s Permit under the Federal Clean Water Act.

SUMF at ¶ 14 (emphasis added). The Option Agreement defines “Person” to mean,

“Person” means any individual, partnership, corporation, limited liability company, trust, estate or other legal entity.


12

SUMF at ¶ 14. Thus, under the Option Agreement, Mr. Gattineri (a Person associated with Seller),

was required to obtain whatever Approvals (including certificates) from the Commission that may

be required in connection with the Option Agreement. When the Commission approved the Ninth

Amendment, it required “the three members of FBT, LLC, who are nominally going to receive the

proceeds … to sign a document saying that they are the exclusive recipients of the proceeds, and

that they do that on a notarized document under oath.” SUMF at ¶ 55. Mr. Lohnes and Mr.

DeNunzio returned the certificate promptly, on December 23, 2013. SUMF at ¶ 58; Comp. at ¶ 17.

Only Mr. Gattineri, as alleged in his Complaint, “refused to sign any Certificate.” Comp. at ¶ 18;

Introduction.

Again, the agreement that Mr. Gattineri claims he made was this: “if he signed the required

Certificate, and Wynn obtained the license for a casino on the Casino Parcel, Wynn would ‘make

him whole’ by providing him with his share of the $40 million windfall to Wynn (an amount equal

to $18,676,000).” Comp. at ¶ 31. But Mr. Gattineri was already obligated, under the Option

Agreement, to provide the Certificate. Thus, Mr. Gattineri had a pre-existing legal duty to execute

the Certificate, and his subsequent bargain to “make him whole” in exchange for his signature is

not valid consideration. Mr. Gattineri is attempting to do exactly what the pre-existing duty rule

aims to prevent. See In re Lloyd, Carr & Co., 617 F.2d at 890. Disappointed that the purchase price

for the Parcel was reduced from $75 million to $35 million, Mr. Gattineri is now trying to “extort

greater compensation for doing only that which [he was] already obligated to do”—sign the

Certificate. Id. Without valid consideration, Mr. Gattineri cannot, as a matter of law, demonstrate

that a valid and enforceable contract existed between the parties, and Defendants are entitled to

summary judgment.


13

B. Mr. Gattineri cannot prove that he was able to perform a required conditionof the alleged San Diego Agreement: his innocence.

To prove breach of contract, the plaintiff must show that he “was ready, willing, and able

to perform.” See Bose Corp. v. Ejaz, 732 F. 3d 17, 21 (1st Cir. 2013) (emphasis added). “[A]s a

matter of law, a party’s reliance upon a promise, no matter how definite, cannot be reasonable

where: 1) the promise itself is conditioned upon something indefinite; 2) the indefinite condition

precedent is something over which the promisee has no control; and 3) the alleged reliance is

undertaken prior to the fulfillment of the condition precedent. Baseball at Trotwood, LLC v.

Dayton Professional Baseball Club, No. C-3-98-260, 2003 U.S. Dist. LEXIS 27460, at *155-156

(S.D. Ohio Sep. 2, 2003). While “talismanic words are not required, the law nevertheless requires

that conditions precedent be expressed in unmistakable language.” Bank of N.Y. Mellon Trust Co.,

N.A. v. Morgan Stanley Mortg. Capital, Inc., 821 F.3d 297, 305 (2d Cir. 2016).

It is undisputed that the purported San Diego Agreement was conditioned on Mr.

Gattineri’s innocence. At his deposition, Mr. Gattineri explained,

A. The amount over -- the amount between the reduced price and the casino premium, that delta, would be paid if there was no claims against me or, you know, no charges or I’m released from everything, totally innocent, and that’s what happened.

Q. That was part of your agreement with Bob?

A. I believe, yeah.

Q. So if the jury came back with a conviction in April of 2016, the money wouldn’t be owed?

A. Absolutely, I would be out the money.

SUMF at ¶ 73 (emphasis added). This condition renders the alleged agreement unenforceable

because it is a condition that is both “indefinite” and “something over which the promisee [Mr.


14

Gattineri] has no control,” Baseball at Trotwood, LLC, supra, such that Mr. Gattineri cannot

demonstrate that he “was ready, willing, and able to perform.” Bose Corp., supra.

When the Commission approved the Ninth Amendment, it also instructed the

Investigations and Enforcement Bureau (“IEB”) “to deliver its entire file…to the U.S. Attorney,

the district attorney for Suffolk County, and the attorney general.”’ SUMF ¶ 56.6/ Mr. Gattineri

was made aware of the Commission’s conditions, including the condition that the IEB turn over

its file to law enforcement officials, on December 13, 2013, the same day the decision was issued.

SUMF ¶ 57. That file included the IEB’s December 6, 2013 Suitability Report, which provided

“the findings of fact relative to [the suitability] investigation,” and detailed, in part, “concerns

regarding the sellers of the property for the proposed casino site.” SUMF ¶¶ 32-33. Moreover, Mr.

Gattineri had already been interviewed by the IEB on October 15, 2013, where he asserted his

Fifth Amendment rights. SUMF ¶ 31. Thus, at the time of the June 14, 2014 meeting in San Diego,

Mr. Gattineri knew that state and federal law enforcement officials had received copies of the

IEB’s file, and it was impossible for Mr. Gattineri to know whether he would be found not guilty

of any crime, and he had no control over that outcome.

After the San Diego Meeting, on October 14, 2014, Mr. Gattineri (along with Mr.

DeNunzio and Mr. Lightbody) was indicted on federal charges of conspiracy to commit wire fraud,

and wire fraud. SUMF ¶ 60. Mr. Gattineri was arraigned in state court on charges of impeding a

gaming investigation, conspiracy, and tampering with evidence on October 20, 2014. SUMF ¶ 61.

Mr. Gattineri was acquitted on all federal charges on April 29, 2016, and the Commonwealth of

Massachusetts entered a nolle prosequi in Mr. Gattineri’s state court case on September 29, 2016.

6/ Under M.G.L. c. 23K, § 12, the Investigations and Enforcement Bureau (“IEB”) of the Commission was tasked with conducting a suitability investigation of each applicant for a gaming license including Encore and Wynn. This included a review of the Option Agreement with FBT. SUMF ¶ 28.


15

SUMF ¶¶ 62-63. A nolle prosequi is not an acquittal and does not terminate a case in the Plaintiff’s

favor. See Wynne v. Rosen, 391 Mass. 797, 801 (1984); Johnson v. Charbonnier, No. 13-cv-13301-

ADB, 2015 U.S. Dist. LEXIS 164373, at *20 (D. Mass. Dec. 8, 2015). In other words, a nolle

prosequi does not make Mr. Gattineri “totally innocent” as required by the purported San Diego

Agreement. See Commonwealth v. Rollins, 354 Mass. 630, 632 (1968) (“A nolle prosequi before

a jury has been empaneled does not operate as an acquittal of the charge discontinued.”).

Throughout these proceedings, there was no way for Mr. Gattineri to know that there would

ultimately be “no claims against me or, you know, no charges or I’m released from everything,

totally innocent” as required by the condition of the alleged San Diego Agreement. SUMF ¶ 73.

Mr. Gattineri’s fate rested in the hands of law enforcement officials and, in the federal case, a jury.

Ergo, as a matter of law, Mr. Gattineri’s innocence is not a condition that can form the basis of a

valid and enforceable contract, and Defendants are entitled to summary judgment. See Baseball at

Trotwood, LLC, supra.

C. Mr. Gattineri cannot prove he sustained damages as a result of Defendants’ breach of the alleged San Diego Agreement.

To recover for breach of contract, Mr. Gattineri “must establish both that he sustained

damages . . . [and] a reasonable basis for computation of those damages.” TAS Distrib. Co. v.

Cummins Engine Co., 491 F.3d 625, 632 (7th Cir. 2007). “[T]those damages cannot be speculative

or conjectural losses.” Chemawa Country Golf, Inc. v. Wnuk, 9 Mass. App. Ct. 506, 511 (1980)

(no disruption of the contract and no evidence that golf club lost members or green fees due to

defendant's interference); G.S. Enters., Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 276 (1991)

(plaintiff must sustain “damages due to [third party's] breaking off of its contract with” plaintiff

and such damages cannot be “speculative” or “conjectural”) (citations omitted); Eldridge v.

Gordon Bros. Group, LLC, 316 F.R.D. 12, 28 (D. Mass. 2016) (Granting summary judgment


16

because claim of damages was unduly speculative); ACI Worldwide Corp. v. Keybank Nat'l Ass'n,

No. 1:17-cv-10662-IT, 2020 U.S. Dist. LEXIS 182007, at *13-14 (D. Mass. Sep. 30, 2020) (same).

Although Mr. Gattineri proposes a seemingly simple way to compute his alleged damages,

“$18,676,000 (46.69% of $40 million)”, Comp. at ¶ 31, as explained above, there is no way to

determine the actual amount FBT would have received under the original Option Agreement

because the “Seller’s Environmental Obligations” under the Option Agreement were never

finalized. See supra Section A.1. Because it is impossible to determine the actual monetary benefit

that FBT would have realized under the Option Agreement, the same is true for Mr. Gattineri. As

a result, Mr. Gattineri’s alleged damages can only ever be “speculative” or “conjectural.” See

Eldridge, supra. Thus, Mr. Gattineri cannot demonstrate, as a matter of law, the essential damages

element of his breach of contract claim, and Defendants are entitled to summary judgment as a

matter of law.

D. Mr. Gattineri’s breach of contract claim also fails because Mr. DeSalvio lacked actual or apparent authority to bind the Defendants to an agreement.

Summary judgment is appropriate if the party asserting the existence of an agency

relationship “fails to advance specific facts sufficient to establish the existence of a genuine issue

of material fact as to the putative agent's actual or apparent authority to act on behalf of the

principal.” CNE Direct, Inc. v. Blackberry Corp., 821 F.3d 146, 150 (1st Cir. 2016).7/ Here, Mr.

Gattineri alleges that Mr. DeSalvio entered into the San Diego Agreement “with Wynn’s authority

and knowledge.” Comp. at ¶ 31. But the record shows that Mr. DeSalvio did not have the actual

7/ “Massachusetts follows the Second Restatement view of principal-agent relationships, the essential ingredients of which are: 1) the agent's power to alter the legal relationships between the principal and third parties; 2) a fiduciary relationship toward the principal regarding matters within the scope of the agency; and 3) the principal's right to control the agent's conduct in matters within the scope of the agency.” CNE Direct, Inc. v. Blackberry Corp., 821 F.3d 146, 150 (1st Cir. 2016).


17

or apparent authority to enter into any such agreement. SUMF ¶¶ 9, 71. For these reasons, Mr.

Gattineri’s breach of contract claim must fail.

1. Mr. DeSalvio lacked the actual authority to bind Defendants to the alleged San Diego Agreement.

Actual authority exists when an agent has power to affect the principal’s relations with

third parties directly established by the principal. Theos & Sons, Inc. v. Mack Trucks, Inc., 431

Mass. 736, 743 (2000). “Actual authority results when the principal explicitly manifests

consent, either through words or conduct, that the agent should act on behalf of the

principal...Implied authority is actual authority that evolves by implication from the conduct of the

parties.” Id. at 743 n.13 (emphasis added). To determine whether an agent had actual authority,

the Court must look to the principal’s actions towards the agent, through words or conduct, and

the agent's reasonable understanding of the principal's manifestations. See Restatement (Third) of

Agency § 2.01 comment c (2006).

Here, there is no evidence that either Defendant explicitly manifested consent for Mr.

DeSalvio to bind the companies in the alleged San Diego Agreement. Only two individuals ever

signed documents on behalf of the Defendants in connection with the purchase of the Parcel:

Matthew Maddox, then President and CFO of Wynn, and Kim Sinatra, Executive Vice President

and General Counsel of Wynn. SUMF ¶¶ 11, 47. In addition, Mr. Maddox, to whom Mr. DeSalvio

reported, provided sworn testimony that Mr. DeSalvio’s actual authority to bind the Defendants

was limited to agreements in the amount of $50,000 or less, and that he did not authorize Mr.

DeSalvio to exceed that $50,000 limit on behalf of Wynn, Encore, or Wynn Resorts Development,

LLC in any agreement with FBT or its individual members. SUMF ¶¶ 9, 71. See Harrigan v. Dodge,

216 Mass. 461, 465 (1914) (a “contract being plainly in excess of [the agent’s] authority, [i]s not

binding upon [a principal].”).


18

2. Mr. DeSalvio lacked apparent authority to bind Defendants to the alleged agreement, and Mr. Gattineri failed to perform sufficient diligence to determine the limits of Mr. DeSalvio’s authority.

Apparent authority exists when conduct by the principal “causes a third person

reasonably to believe that a particular person . . . has authority to enter into negotiations or to make

representations as his agent.” Hudson v. Massachusetts Property Ins. Underwriting Assn., 386

Mass. 450, 457 (1982) (emphasis added). “Apparent authority is not established by the putative

agent's words or conduct, but by those of the principal,” Rubel v. Hayden, Hardin & Buchanan,

Inc., 15 Mass. App. Ct. 252, 255 (1983), “at the time” of the relevant transaction or representation.

See Theos & Sons, Inc., 431 Mass. at 745; see also Licata v. GGNSC Malden Dexter LLC, 466

Mass. 793, 801 (2014) (“Only the words and conduct of the principal . . . and not those of the

agent, are considered in determining the existence of apparent authority.”).

Furthermore, “a third person dealing with a known agent may not act negligently with

regard to the extent of the agent’s authority or blindly trust the agent’s statements in such respect

but rather must use reasonable diligence and prudence to ascertain whether the agent is acting

within the scope of his or her authority.” 3 Am Jur 2d Agency § 80 (emphasis added). See Kansallis

Fin. Ltd. v. Fern, 421 Mass. 659, 665 (1996) (“there is little fairness in saddling the principal with

liability for acts that a reasonable third party would not have supposed were taken on the principal's

behalf”). The party asserting the existence of apparent authority bears the burden of proof. Licata,

466 Mass. at 801.

There is no evidence that either Defendants’ words or conduct would have caused Mr.

Gattineri to believe Mr. DeSalvio had apparent authority to enter into the San Diego Agreement.

See Licata, supra. As discussed above, only two individuals ever signed documents on behalf of

the Defendants with respect to FBT: Mr. Maddox and Ms. Sinatra, SUMF ¶¶ 11, 47, and there is

no evidence in the record that Mr. DeSalvio was the signatory on any other contract between the


19

Defendants and Mr. Gattineri or FBT. See CNE Direct, Inc., 821 F.3d at 151 (parties’ prior “course

of dealing” is relevant to ascertaining the existence of apparent authority). In fact, Mr. Gattineri

had conceded that he had never heard of Mr. DeSalvio until he met him for the first time in April

2014, and that he was also aware that Mr. DeSalvio had only recently joined Encore. SUMF at ¶

7. Furthermore, throughout the Ninth Amendment negotiations in the fall of 2013, Mr. Gattineri

repeatedly told the other FBT members and his attorneys that his position was to “negotiate with

decision makers.” SUMF at ¶ 35. Mr. Gattineri stated he was tired of dealing with “underlings” or

Ms. Sinatra, who was “just a soldier,” and that the “deal [was] over” unless he could work with

the “decision maker,” Steve Wynn. SUMF at ¶¶ 34-39. Thus, there is no evidence that the

Defendants should have expected that Mr. Gattineri would be misled merely by Mr. DeSalvio’s

position with Wynn Resorts Development, LLC – “a necessary element in establishing apparent

authority.” Brownell v. Tide Water Associated Oil Co., 121 F.2d 239, 245 (1st Cir. 1941) (Third

party has the duty to inquire into the authority of the agent to make an agreement).

Mr. Gattineri also failed to use the required reasonable diligence and prudence to determine

whether Mr. DeSalvio had authority. First, Mr. Gattineri may not “blindly trust the agent’s

statements” with respect to authority. 3 Am Jur 2d Agency § 80; see also See Licata, 466 Mass. at

801. While Mr. Gattineri testified at his deposition that he asked Mr. DeSalvio if he had the

authority to enter into an agreement, and that Mr. DeSalvio stated that he did, SUMF ¶¶ 66-67, the

putative agent’s own statements and conduct cannot create apparent authority. Licata v. GGNSC

Malden Dexter LLC, 466 Mass. 793, 801 (2014).8/

8/ Mr. Gattineri’s self-serving deposition testimony on this point, without more, cannot overcome summary judgment. See Ramos v. Department of Educ., 52 F. Supp. 3d 387, 395-396 (D.P.R. 2014) (“While deposition testimony is acceptable evidence, at the summary judgment stage, Plaintiffs must bring more to the table than their word, conclusions and opinions in their opposition. They must present facts, acts and documents to buttress their allegations, and cannot merely create an issue of fact by opposing all


20

Second, Mr. Gattineri conceded that he did not ask for any evidence of Mr. DeSalvio’s

purported authority. SUMF ¶ 66. He did not ask whether Mr. Maddox or Ms. Sinatra new whether

Mr. Gattineri and Mr. DeSalvio were meeting, SUMF ¶¶ 69-70, and he does not know whether

Steve Wynn knew Mr. DeSalvio was meeting with him. SUMF ¶ 68. Mr. Gattineri’s lack of

diligence is further emphasized because he was put on notice of Mr. DeSalvio’s limited authority

at the San Diego Meeting, during which Mr. DeSalvio told Mr. Gattineri that the casino industry

is “more highly regulated than the nuclear power industry.” SUMF ¶ 78. Mr. Gattineri cited this

as the reason that Mr. DeSalvio refused to put the purported offer in writing. Comp. at ¶ 32. In

addition, Mr. Gattineri experienced firsthand the highly regulated nature of the casino industry. In

July 2013, Mr. Gattineri was interviewed by the Massachusetts State Police in connection with the

IEB’s suitability investigation, SUMF ¶ 29, and received a subpoena to provide further testimony

on September 5, 2013. SUMF ¶ 30. He was interviewed again, on October 15, 2013, where he

asserted his Fifth Amendment rights. SUMF ¶ 31. Ultimately, the Commission’s instruction to the

IEB to turn over its file to law enforcement resulted in Mr. Gattineri’s indictment on federal and

state criminal charges. SUMF ¶ 56, 60, 61. This makes any reliance on Mr. DeSalvio’s apparent

authority all the more “unreasonable.” See Hann v. Micron Separations, No. 96-1948, 1997 U.S.

App. LEXIS 2351, at *5 (1st Cir. Feb. 12, 1997) (reliance on agent’s purported statements must

be reasonable).

On the facts alleged, the conduct of the Principals (Wynn and Encore), and Mr. Gattineri’s

prior dealings with the Principals, it strains credulity that, “at the time” of the transaction, see

Theos & Sons, Inc., 431 Mass. at 745, Mr. Gattineri would trust that a brand new employee—with

whom he had no history of prior dealings—, in a highly regulated industry, had authority to make

of Defendants' proffered facts with their self-serving deposition testimony.”); see also Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52-53 (1st Cir. 2000) (same).


21

a deal in excess of $18 million over breakfast with a handshake. SUMF at ¶ 65, 68-70, 78. See

CNE Direct, Inc., 821 F.3d at 151.

E. The alleged San Diego Agreement is an unenforceable illegal contract because it directly contravenes a Commission directive.

“[I]t has . . . long been settled that the law will not aid either party to an illegal contract to

enforce it against the other, neither will it relieve a party to such a contract . . . who seeks to

reclaim his money or whatever article of property he may have applied to such a purpose.” Atwood

v. Fisk, 101 Mass. 363, 364 (1869). See Council v. Cohen, 303 Mass. 348, 354, (1939), quoting

Berman v. Coakley, 243 Mass. 348, 350, (1923) (“courts will not aid in the enforcement, nor afford

relief against the evil consequences, of an illegal … contract”). The policy underlying this rule is

that “[t]he suppression of illegal contracts is far more likely in general to be accomplished, by

leaving the parties without remedy against each other.” Atwood, supra. Accordingly, the general

rule is that a court leaves parties to an illegal contract in the same position as it finds them. See

Duane v. Merchants' Legal Stamp Co., 227 Mass. 466, 468-469 (1917); Huckins v. Hunt, 138

Mass. 366, 366-367 (1885); Atwood, supra.

“Whether a contract made in violation of a statute is void depends upon the terms of the

statute and the nature of the violation.” Baltazar Contrs., Inc. v. Town of Lunenburg, 65 Mass.

App. Ct. 718, 720 (2006). See Massachusetts Mun. Wholesale Elec. Co. v. Danvers, 411 Mass. 39,

55 (1991) (absent statutory declaration or binding precedent “voiding ab initio… applied…with

the view of…effectuating public policy”). Whether an agreement constitutes a valid enforceable

contract is a matter of law, and it is proper for a court to determine this issue on summary judgment.

TLS Mgt. & Mktg. Servs., LLC v. Rodríguez-Toledo, 966 F.3d 46, 57 (1st Cir. 2020).

As alleged, the San Diego Agreement violates M.G.L. c. 23K and is therefore void as an

illegal contract. General Laws c. 23K § 21(b) gives the Commission the power to put conditions


22

on each license. Specifically, this statutory provision states, “[t]he commission may include any

reasonable additional requirements to the license conditions.” M.G.L. c. 23k, § 21(b). Any secret,

unauthorized, and/or undisclosed side-agreement pertaining to the Parcel directly contradicts the

process that the Commission approved, and thus its powers enacted by the Legislature. See City of

Westfield v. Harris & Assocs. Painting, Inc., 567 F. Supp. 2d 252, 256 n.3 (D. Mass. 2008)

(Undisputed violation of a statute renders the parties’ agreement “clearly contrary to public policy”

as embodied in a legislative enactment.).

Here, as part of the IEB’s suitability investigation, “[c]ertain regulatory concerns [were]

expressed with respect to the ownership of FBT.” SUMF at ¶¶ 24, 33. These concerns led FBT

and Encore to enter into the Ninth Amendment, which reduced the purchase price of the Parcel

from $75 million to $35 million. SUMF at ¶¶ 46, 48, 52-53, 55. The Commission specifically

approved the Ninth Amendment’s price reduction, “that the sale price be 35 – no more [than] $35

million…”, in a formal vote on December 13, 2013, adding the—now familiar—“additional

requirements” that the FBT members, including Mr. Gattineri, sign a certificate swearing that they

were the exclusive recipients of the proceeds, and that the IEB file be turned over to law

enforcement. SUMF ¶ 56. The alleged San Diego Agreement directly contravenes the

Commission’s approval of the Ninth Amendment by effectively reinstating the $75 million

purchase price and increasing the amount of money received by one of FBT’s members. It also

circumvents the Commission’s requirement that Mr. Gattineri sign a Certificate swearing that he

is the exclusive recipient of the proceeds; there is nothing in the San Diego Agreement that would

prevent Mr. Gattineri from sharing the “make him whole” payment with undisclosed third parties


23

including Charles Lightbody9/, which would be a complete end-run around the Commission’s

conditional approval of the Ninth Amendment, threatening the integrity and objective of the state

agency.

Consequently, the San Diego Agreement must be deemed void in order to maintain the

legislative enacted powers allotted to the Commission. See Baltazar Contrs., Inc. 65 Mass. App.

Ct. at 721 (If “a statute does not expressly provide that a contract made in violation of its terms is

invalid, the contract will be deemed void if doing so is necessary to accomplish the statute's

objectives.”).

II. Mr. Gattineri’s Claim for Common Law Fraud Fails, As a Matter of Law, Because He Could Not Reasonably Rely on Mr. DeSalvio’s Vague Representation.

To prove his claim for common law fraud, Mr. Gattineri must show: (1) the defendants

made a false representation of material fact; (2) with knowledge of its falsity; (3) for the purpose

of inducing the plaintiff to act in reliance thereon; (4) the plaintiff relied upon the representation;

and (5) the plaintiff acted to his detriment. See Masingill v. EMC Corp., 449 Mass. 532 (2007).

Rule 9(b), Fed. R. Civ. P. mandates that a heightened pleading standard be applied to fraud claims,

including state law fraud claims asserted in federal court. See N. Am. Catholic Educ. Programming

Foundation, Inc. v. Cardinale, 567 F.3d 8, 13 (1st Cir. 2009). The plaintiff must also show that his

reliance on the alleged misrepresentations was reasonable. See Saxon Theatre Corp. of Boston v.

Sage, 347 Mass. 662, 666-7 (1964); BBJ, Inc. v. Millercoors, LLC, 2017 U.S. Dist. LEXIS 33072,

*20, 2017 WL 925004 (D. Mass. March 8, 2017); see Saxon, 347 Mass, at 666-667 (no reasonable

reliance for purposes of plaintiff's claim of deceit where defendant's agreement to construct a

theater and lease it to plaintiff “left [so many details] for future negotiations”); Warren H. Bennett,

9/ Mr. Gattineri acquired Mr. Lightbody’s 12.05% membership interest in FBT through a Memorandum of Transfer and Promissory Note for $1.7 million, which was paid off only two days before Mr. Gattineri signed the Certificate. SUMF ¶¶ 26-27.


24

Inc. v. Charlestown Savings Bank, 3 Mass. App. Ct. 753, 753 (1975) (“no actionable deceit is

alleged . . . as the representation allegedly relied upon was so indefinite and imprecise as to render

such reliance unreasonable as a matter of law”).

Here, Mr. Gattineri’s allegations of fraud are insufficient to overcome the heightened

standard applied to fraud claims. See Cardinale, supra. First, as discussed above, Mr. Gattineri’s

reliance on Mr. DeSalvio’s authority to make a deal in excess of $18 million was entirely

unreasonable. See supra Section I.D. Furthermore, vague and general statements cannot serve as

the basis for a valid fraud claim. See Masingill, supra at 540. In fact, the Supreme Judicial Court

has held that an alleged representation that an agent will “make you whole” is too vague to support

a fraud claim as a matter of law. See id. (“The evidence does not offer any definition or further

explanation of the term “make you whole” sufficiently precise to determine what the representation

meant.”). See also Hogan v. Riemer, 35 Mass. App. Ct. 360, 365 (1993) (vague “[s]tatements of

expectation” do not support cause of action for fraud). Because Mr. Gattineri could not have

reasonably relied on Mr. DeSalvio’s vague representation, his fraud claim fails as a matter of law,

and Defendants are entitled to summary judgment. See Roman v. Trustees of Tufts College, 461

Mass. 707, 711 (2012) (“A nonmoving party's failure to establish an essential element of her claim

renders all other facts immaterial and mandates summary judgment in favor of the moving party.”).

III. Because Mr. Gattineri’s Breach of Contract and Fraud Claims Fail As a Matter of Law, So Too Does His Derivative Claim for Violations of M.G.L. c. 93A.

To prevail on a Chapter 93A claim, the plaintiff must prove that a person who is engaged

in trade or business committed an unfair or deceptive trade practice and that the [plaintiff] suffered

a loss of money or property as a result.” Morris v. BAC Home Loans Servicing, L.P., 775 F.Supp.2d

255, 259 (D.Mass. April 4, 2011) (citations omitted). In other words, a plaintiff “must demonstrate

that the defendant's actions fell within at least the penumbra of some common-law, statutory, or


25

other established concept of unfairness, or were immoral, unethical, oppressive or unscrupulous.”

Egan v. Athol Memorial Hosp., 971 F. Supp. 37, 47 (D. Mass. 1997). A claim under c. 93A must

fail where the underlying tort claims fail. See Cytologix Corp. v. Ventana Med. Sys., Nos. 00-

12231-RWZ, 01-10178-RWZ, 2006 U.S. Dist. LEXIS 49677, at *5 (D. Mass. July 20, 2006)

(emphasis added).

Here, Mr. Gattineri’s c. 93A claim derives entirely from the same set of operative facts as

his legally unsupported common law claims. Because Mr. Gattineri’s c. 93A claim is “wholly

derivative” of his “legally unsupportable” breach of contract and fraud claims, and there are no

unique arguments related to the c. 93A claim, Defendants are entitled to summary judgment as a

matter of law. See Frohberg v. Merrimack Mut. Fire Ins. Co., 34 Mass. App. Ct. 462, 465 (1993);

Macoviak v. Chase Home Mtge. Corp., 40 Mass. App. Ct. 755, 760 (1996) (c. 93A claim

“necessarily fail[s]” where it “is solely based upon . . . underlying claim for common law” tort and

that tort claim fails as a matter of law); Egan, 971 F. Supp. at 47 (where there was no evidence of

the claimed underlying violation, and where there were “no unique arguments related to [the]

Chapter 93A claim”, defendant was entitled to summary judgment on plaintiff's Chapter 93A

claim); Pimental v. Wachovia Mortg. Corp., 411 F. Supp. 2d 32, 40 (D. Mass. 2006) (dismissing

Chapter 93A claim that “hinge[d] on” breach of contract and negligence claims).

CONCLUSION

Defendants respectfully request that the Court (1) grant their motion for summary judgment

on Counts I-III, dismissing with prejudice Plaintiff’s Complaint, and (2) award Defendants any

other relief that the Court deems just and proper, including attorney’s fees.


26

Respectfully submitted,

WYNN MA, LLC & WYNN RESORTS, LIMITED,

By its attorneys,

/s/ Samuel M. StarrSamuel M. Starr, BBO No. 477353Caitlin A. Hill, BBO No. 684774Daniel J. Goodrich, BBO No. 692624MINTZ, LEVIN, COHN, FERRIS, GLOVSKY

& POPEO, P.C.One Financial CenterBoston, MA 02111Tel: 617.542.6000Fax: 617.542.2241E-mail: [email protected] [email protected] [email protected]

Dated: November 4, 2020

CERTIFICATE OF SERVICE

I hereby certify that on November 4, 2020, the above document was served electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as nonregistered participants.

___/S/ Samuel M. Starr____________Samuel M. Starr

97533702


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