Viscito v. National Planning Corporation ( 2022 )

United States Court of Appeals
For the First Circuit
No. 21-1081
LEONARD VISCITO,
Plaintiff, Appellant,
v.
NATIONAL PLANNING CORPORATION, JOHN JOHNSON, MAURA COLLINS,
Defendants, Appellees,
JOHN DOE, JANE DOE,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark G. Mastroianni, U.S. District Judge]
Before
Lynch, Thompson, and Kayatta,
Circuit Judges.
Bart W. Heemskerk, with whom Heemskerk Business Litigation
PLLC was on brief, for appellant.
Sean P. Lynch, with whom Mary Grace Patterson and Morgan,
Lewis & Bockius LLP were on brief, for appellees.
May 13, 2022
THOMPSON, Circuit Judge. Leonard Viscito, a Florida-
based financial planner with a long-standing Massachusetts-based
financial services company and office, appeals from the entry of
final judgment entered in favor of his former broker-dealer on
Viscito's wage and employment misclassification claims after the
district court ruled on the parties' cross-motions for summary
judgment. In our de novo review, we are tasked with deciding
whether Massachusetts' choice-of-law principles lead to the
conclusion that the Massachusetts Wage Act, Mass. Gen. Laws ch.
149, § 148 ("MWA"), applies to the relationship between Viscito
and his former broker-dealer. For the reasons set forth below, we
agree with the district court that the MWA does not apply to the
undisputed facts in this case and affirm.
BACKGROUND
Viscito is a licensed financial advisor who has been
doing business as Viscito Financial Services ("VFS") since 1997.
He is registered with the Financial Institution Regulatory
Authority ("FINRA") and the Securities and Exchange Commission
("SEC") in several states, including Massachusetts and Florida,
and has long maintained an office with staff in Springfield,
Massachusetts. In 2008, Viscito bought a home in a part of Florida
called The Villages. He regularly worked out of his Florida home
-- meeting with clients in person or virtually, responding to
clients' questions by phone or email, placing securities' trade
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orders, and providing financial services. His staff remained in
Massachusetts, working in the Springfield office, and Viscito
sometimes met with clients in person in this office as well. To
work within the financial advice and securities industry, Viscito
had to be affiliated with a registered "Broker-Dealer" which is "a
brokerage firm that is subject[] to the supervision of [FINRA]."
Throughout his career, Viscito has been affiliated with several
such businesses, including one of the defendants in this case,
National Planning Corporation ("NPC").
NPC is both an investment advising firm and a broker-
dealer, headquartered in California. A broker-dealer "oversee[s]
the sale of securities[ and] commission-based products" whereas an
investment advisor charges fees for its advisory services. Each
side of the business has a different regulatory structure and
agency tasked with ensuring compliance with the industry's rules;
NPC was a "dual-registrant" -- meaning it was registered with both
the SEC and FINRA.
In November 2013, Viscito (in his personal capacity)
signed an Independent Contractor's Agreement with NPC and
thereafter sold securities and investment products exclusively as
an NPC investment advisor representative ("IAR").1 Viscito
1This agreement was the only contract Viscito entered into
with NPC. According to NPC, all of its IARs providing services to
NPC's clients were independent contractors; none were classified
as employees.
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registered both his Massachusetts VFS office and his Florida home
as NPC branch offices, with the Florida office tagged by NPC
(according to Viscito) as an "office of convenience."2 In December
2014 Viscito personally became a Florida resident, meaning, in
addition to living at The Villages and working extensively from
his home, he obtained a Florida driver's license, registered to
vote in Florida, and registered with Florida as a dual resident
for securities licensing purposes.3 Thereafter, NPC's Tax Forms
1099-MISC for 2015, 2016, and 2017 reflected Viscito's Florida
address. Even so, Viscito continued to employ his staff in
Massachusetts as employees of VFS and had sole authority to
determine their rate of compensation and the situs of their office
work. In his business dealings, Viscito used VFS letterhead with
VFS contact details prominently displayed at the top and a message
at the bottom in small font that VFS services were offered through
NPC but that VFS and NPC were "separate and unrelated companies."
2 Viscito's Florida "office of convenience" meant that he
could "meet with clients on a kind of ad hoc, as-needed basis, but
no books or records [we]re kept there."
3 Viscito initiated these actions after Florida's Office of
Financial Regulation received his application to register in
Florida as an investment advisor associated with a firm, and its
interest in Viscito's professional activities was piqued. The
Office of Financial Regulation found that Viscito had been
conducting investment advisory services and activities in Florida
from January 2009 through November 15, 2013, without being properly
registered in the State, which violated a Florida regulation
governing this profession. Viscito stipulated to the findings and
agreed to pay a $7,500 fine.
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At the time Viscito signed his contract with NPC, his
existing clients could join NPC as their new broker and continue
to be "serviced" by Viscito. That is, his book of business could
and did move with him. The bulk of Viscito's client relationships
began with individuals in Massachusetts, and he continued to meet
"at various times" (whatever that means) with some of them in
person in his Massachusetts office. Using travel records and
credit card statements, NPC asserts (and Viscito does not
meaningfully refute4) that, while Viscito was affiliated with NPC,
he spent more time in Florida than in Massachusetts or any other
location.
During Viscito's affiliation with NPC, Viscito met with
his clients without any NPC representatives also participating in
the meetings and he did not report to NPC the number of client
meetings he held or how he advised his clients. NPC did not direct
or interfere with Viscito's management of his clients' accounts or
the advice Viscito provided to his clients, but, on occasion, NPC
directed Viscito via email to sell a particular mutual fund in a
client's account.5 Once a year, NPC conducted an in-person audit
4 Viscito asserts that he was "regularly in Massachusetts for
large parts of the year" but does not provide any precise detail
or support other than this averment in his affidavit.
5 The record does not reveal how often or under what
circumstances NPC would send these directives.
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of Viscito's Massachusetts NPC branch office and sent him a punch
list of the ways in which the branch office was out of compliance
with NPC policies. NPC conducted at least one in-person audit of
Viscito's Florida branch office, in 2015. Based on Viscito's
client transactions, NPC paid Viscito commissions and "investment
advisory fees" that were "tied to the production generated by the
accounts that [he] managed," but not a regular salary. Viscito
received no vacation or holiday pay from NPC.
Viscito's affiliation with NPC came to an end in the
fall of 2017 when Viscito got an email from NPC's CEO telling him
that his registration with NPC would terminate that November and
spelling out the actions Viscito needed to take in order to
complete their separation.6 This included finding a new firm with
which to register and affiliate.7
6 The summary judgment record does not clearly explain the
reasons for the separation, but the record does show that NPC
withdrew from FINRA and stopped doing business as a broker-dealer
and investment advising firm as well as that NPC "entered into an
asset purchase agreement with LPL" Financial (another broker-
dealer) in November 2017.
7 Later, during NPC's general counsel's deposition, in
discussing who got which clients following separation, he
explained that NPC's IARs "own[] the[ir] book of business, . . .
they are free to go with the book, . . . there's no noncompete"
contractual provision. And elaborating further on post-
termination operations, Viscito's office manager testified at her
deposition that VFS operations remained the same after the broker-
dealer affiliation with NPC ended.
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Nine months later in August 2018, Viscito sued NPC in a
Massachusetts federal district court, alleging NPC had
misclassified him as an independent contractor when he should have
been on its books as an employee in violation of the Fair Labor
Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"), the Massachusetts
Independent Contractor Law, Mass. Gen. Laws ch. 149, § 148B, and
the Massachusetts Wage Act, Mass. Gen. Laws ch. 149, § 148.8 The
misclassification, alleged Viscito, deprived him of wages and
benefits to which he was entitled. Viscito alleged NPC's failure
to properly classify and compensate him for his work resulted in
its unjust enrichment and constituted a breach of the implied
covenant of good faith and fair dealing. He also included a count
for quantum meruit. Viscito sought "[a]ll damages to which [he]
is entitled under Massachusetts and federal law," including
doubling of the damages pursuant to federal law, 29 U.S.C.
§ 216(b), and treble damages pursuant to state law, Mass. Gen.
Laws ch. 149, § 150. In July 2019, Viscito filed an amended
complaint, adding NPC's CEO and CFO as individual defendants but
not amending the allegations or claims.
In July 2020, Viscito and the defendants filed cross-
motions for summary judgment, with Viscito seeking judgment as a
8Viscito sought and received a right to sue letter from the
Office of the Attorney General, as required by Mass. Gen. Laws ch.
149, § 150.
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matter of law in his favor on his two Massachusetts statutory wage
claims and the defendants moving for summary judgment on all of
Viscito's claims.9 The district court concluded the defendants
were entitled to judgment as a matter of law on Viscito's
Massachusetts statutory wage claims because the "application of
Massachusetts['] choice-of-law principles leads . . . [to the
conclusion] that the MWA is inapplicable" to the relationship
between Viscito and NPC. In addition, the district court concluded
Viscito's other claims weren't going anywhere (the FLSA claim
because "misclassification" is not an act prohibited by this
federal law, the breach of the implied covenant of good faith and
fair dealing claim because Viscito hadn't alleged a breach of
contract or bad faith conduct on NPC's part, and the unjust
enrichment and quantum meruit claims because the parties'
relationship was indisputably governed by a contract -- the
Independent Contractor's Agreement -- which knocked out these
alternative theories of recovery).
Given this reasoning, the district court denied
Viscito's motion, granted the defendants' motion in its entirety,
and entered final judgment in the defendants' favor. Viscito
Viscito had filed a motion for partial summary judgment on
9
these same two counts almost a year earlier, but the district court
denied it without prejudice on the basis that there were
outstanding discovery disputes between the parties and that fact
discovery was not yet completed.
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timely appealed, challenging the judgment as to the state statutory
counts only and arguing that the district court erred by concluding
the MWA doesn't apply to his employment relationship with NPC.
STANDARD OF REVIEW
Choice-of-law determinations are questions of law, see
Reicher v. Berkshire Life Ins. Co. of Am., 360 F.3d 1, 4 (1st Cir.
2004); Crellin Techs., Inc. v. Equipmentlease Corp., 18 F.3d 1, 4
(1st Cir. 1994), as such they are reviewed anew, Waithaka v.
Amazon.com, Inc., 966 F.3d 10, 16 (1st Cir. 2020), (citing Robidoux
v. Muholland, 642 F.3d 20, 22 (1st Cir. 2011)), cert. denied, 141
S. Ct. 2794 (2021). "We [also] review the entry of summary judgment
de novo." Garcia-Garcia v. Costco Wholesale Corp., 878 F.3d 411,
417 (1st Cir. 2017) (quoting Echevarría v. AstraZeneca Pharm. LP,
856 F.3d 119, 126 (1st Cir. 2017)). "A grant of summary judgment
is appropriate when 'there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.'"
Id. (quoting Ameen v. Amphenol Printed Circuits, Inc., 777 F.3d
63, 68 (1st Cir. 2015)). "A genuine issue of fact exists where
the evidence is such that a reasonable jury could return a verdict
for the nonmoving party." Id. (quoting Taylor v. Am. Chemistry
Council, 576 F.3d 16, 24 (1st Cir. 2009)). "The court must examine
'the record in the light most favorable to the nonmovant' and must
make 'all reasonable inferences in that party's favor.'" Id.(quoting Ameen, 777 F.3d at 68). "Where, as here, the parties
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cross-move for summary judgment, the court must [examine] each
motion 'separately, drawing inferences against each movant in
turn.'" Lawless v. Steward Health Care Sys., LLC, 894 F.3d 9, 20–
21 (1st Cir. 2018) (quoting EEOC v. Steamship Clerks Union, Loc.
1066, 48 F.3d 594, 603 n.8 (1st Cir. 1995)). "While we resolve
all reasonable inferences in favor of the nonmoving party, we must
ignore conclusory allegations, improbable inferences, and
unsupported speculation." Garcia-Garcia, 878 F.3d at 417 (quoting
Taylor, 576 F.3d at 24).
DISCUSSION
The issue in this appeal is, as the parties agree, a
narrow one: whether Viscito can properly invoke Massachusetts
statutory law to govern his employment claims against NPC. The
answer turns on the application of Massachusetts' choice-of-law
principles, which we set forth in the context of MWA claims before
turning our attention to Viscito's arguments about why he thinks
the district court got it wrong.
"A federal district court exercising its diversity
jurisdiction must apply the choice-of-law rules of the state in
which it sits." Hendricks & Assocs., Inc. v. Daewoo Corp., 923
F.2d 209, 213 n.3 (1st Cir. 1991) (citing Klaxon Co. v. Stentor
Elec. Mfg. Co., 313 U.S. 487 (1941) and Bi–Rite Enters. v. Bruce
Miner Co., 757 F.2d 440, 442 (1st Cir. 1985)). "Massachusetts
follows 'a functional choice-of-law approach that responds to the
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interests of the parties, the States involved, and the interstate
system as a whole.'" UBS Fin. Servs., Inc. v. Aliberti, 133 N.E.3d
277, 288 n.12 (Mass. 2019) (quoting Bushkin Assocs., Inc. v.
Raytheon Co., 473 N.E.2d 662, 668-70 (Mass. 1985)); see also Hisert
v. Haschen, 980 F.3d 6, 8 (1st Cir. 2020) (acknowledging functional
approach). "Under the functional approach, the forum applies the
substantive law of the state which has the more significant
relationship to the transaction in litigation." Hendricks, 923
F.2d at 213 n.3. This approach in Massachusetts "is explicitly
guided by the Restatement (Second) of Conflict of Laws (1971)
[("Restatement")]," Aliberti, 133 N.E.3d at 288 n.12 (quoting
Clarendon Nat'l Ins. Co. v. Arbella Mut. Ins. Co., 803 N.E.2d 750,
752 (Mass. App. Ct. 2004)) (alteration in original), which provides
that "[a] court may not apply the local law of its own state to
determine a particular issue unless such application of this law
would be reasonable in the light of the relationship of the state
and of other states to the person, thing or occurrence involved,"
Restatement § 9 cmt. g.
In their arguments to the district court, both parties
relied heavily on a Massachusetts Appeals Court case holding that
a salesman telecommuting much of the time from his residence in
Florida while working for a Massachusetts company could avail
himself of the MWA because Massachusetts had "by far the most
significant relationship" to the defendant-employer as a citizen
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of Massachusetts and to the plaintiff-salesman's employment
relationship with the defendant. Dow v. Casale, 989 N.E.2d 909,
914 (Mass. App. Ct. 2013).10 The Massachusetts Appeals Court
highlighted several characteristics of the parties and the
employment relationship, including: the defendant-employer was
headquartered in Massachusetts; all of the defendant-employer's
physical facilities were in the Commonwealth; the plaintiff-
salesman traveled throughout the country -- essentially
"untethered to any particular work place" -- but performed the
same work tasks whether he was home in Florida, traveling around
the country, or in the defendant-employer's Massachusetts office;
all of the plaintiff-salesman's work -- regardless of the
geographic location of the performance -- benefited the defendant-
employer at its base in Massachusetts; the plaintiff-salesman's
business cards provided the defendant-employer's contact
information as his contact information; his paychecks were issued
in Massachusetts; he worked from the Massachusetts facility
We note that "[w]hile decisions of a state's intermediate
10
appellate court are not binding on a federal court sitting in
diversity, such opinions are entitled to some weight." Vt. Mut.
Ins. Co. v. Zamsky, 732 F.3d 37, 42 (1st Cir. 2013). Moreover,
"[w]e have consistently followed the decisions of state
intermediate appellate courts in the absence of convincing
evidence that the state's highest court would decide otherwise."
Torres-Ronda v. Nationwide Mut. Ins. Co., 18 F.4th 80, 84 (1st
Cir. 2021).
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several times a year; and his employment agreement stated it was
"governed by and interpreted under" Massachusetts law. Id.In rendering its decision, the district court contrasted
these details with the characteristics of Viscito's and NPC's
working relationship, highlighting that NPC had a more significant
relationship with California than Massachusetts because it is
headquartered in California, had no employees in Massachusetts,
and registered in Massachusetts as a broker-dealer for regulatory
purposes only. In addition, other than the annual in-person audit
of Viscito's Massachusetts branch office, NPC provided all of its
services to Viscito at his Florida address (e.g., tax forms,
commission statements, online trainings) and all of the income
Viscito generated for NPC benefited NPC at its home base in
California. Moreover, the Independent Contractors Agreement
provided that it would be subject to California law.11 The district
court also pointed out that Viscito spent more than half of his
time working from Florida and that his tie to Massachusetts was
his business interest in VFS but that neither VFS nor its employees
11 The Independent Contractors Agreement governing the
relationship between Viscito and NPC indeed included a forum
selection clause stating that the contract "shall be subject to
California law, without giving effect to its choice of law
provisions." As the district court noted, however, the
Massachusetts Supreme Judicial Court says that a contract's
choice-of-law clause does not govern a Wage Act claim when (as
here) the choice-of-law clause doesn't explicitly refer to and
include statutory causes of action. Melia v. Zenhire, Inc., 967
N.E.2d 580, 590 (Mass. 2012).
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had a direct relationship with NPC. Ultimately, the district court
concluded that "Massachusetts had a tenuous connection to the
relationship between NPC and [Viscito, and] California and Florida
had more significant ties"; the application of Massachusetts'
choice-of-law principles meant the MWA is inapplicable.
Viscito offers a few ideas to us about why the district
court erred in concluding the MWA is inapplicable to his employment
relationship with NPC.12 The gist of his main argument targets why
he thinks the district court's actual application of the most
significant relationship standard went awry. According to
Viscito, the district court "misstated and downplayed facts"
demonstrating Massachusetts is the state that has the most
significant relationship to NPC and Viscito as well as to their
employment relationship. Continuing, Viscito says the court
12 We quickly dispense with his first line of attack, which
we understand to be that the district court erred by applying the
most significant relationship standard at all when, according to
Viscito, the court should have only considered whether it was
"reasonable" to conclude the MWA applied because neither NPC nor
the court "identified any other state [wage] law . . . in conflict
with the law of . . . Massachusetts." However, as NPC points out,
we don't have to take up this argument because it's waived --
Viscito argued for the application of Dow's most significant
relationship standard to the district court and raises this
argument for the first time on appeal. See Hisert, 980 F.3d at 8.
We also note that Viscito argued for the application of the most
significant relationship standard when he filed his first motion
for partial summary judgment -- the one the district court denied
without prejudice due to outstanding discovery issues. In this
first motion, he did not utter a peep about the choice of law
coming down to "reasonableness" only, as he now argues on appeal.
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focused too narrowly on Viscito's physical location during the
time he worked for NPC, ignoring that he was still a citizen of
Massachusetts in 2013 when he signed the Independent Contractors
Agreement in the first place. Further, he says the court omitted
a discussion of the fact that most of the revenue Viscito generated
for NPC was from accounts opened and maintained in Massachusetts
for Massachusetts residents with account transactions documented
in Massachusetts. Therefore, the district court erred in relying
on Viscito's interest in VFS as the only significant relationship
point for Viscito to Massachusetts.
For its part, NPC says the district court got it right
when it applied the Massachusetts functional choice-of-law
standard to the undisputed material facts and, in consequence,
concluded Massachusetts does not have the most significant
relationship to Viscito's employment affiliation with NPC. NPC
contends Viscito has not shown why the details he wants emphasized
should be viewed as dispositive in his favor and that each of the
employment characteristics considered in Dow (the state where the
employer's headquarters is located, the place(s) the worker
performed the work, the frequency of interactions between the
worker and the employer in Massachusetts, whether another state
has a significant connection to the worker and work performance,
and whether the contract between the worker and employer has a
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choice-of-law provision, see 989 N.E.2d at 914) weigh against the
application of Massachusetts law here.
We believe NPC has the better argument. The undisputed
summary judgment record as we have reviewed it afresh indicates
the district court was not wrong to conclude Viscito had spent
more than half of his time in Florida while he was affiliated with
NPC.13 Viscito clearly managed his relationships with his clients
more often from Florida than in person in Massachusetts. Moreover,
when Viscito was in Massachusetts, all of his contacts were with
his own company and his clients, and not (other than the single
13In his opening brief, Viscito seems to be asserting that a
factual dispute exists about how much time he spent in Florida.
But in doing so, he leaves us emptyhanded as to what he believes
to be the legal significance of such a contention here. Viscito
does not attempt to argue that this dispute created a genuine issue
of fact that should have precluded summary judgment. Perhaps this
is so because the record belies such an assertion. NPC, using
Viscito's travel and business records, provided in its summary
judgment documents a detailed breakdown of when Viscito was
physically present in Massachusetts and Florida. Viscito did not
respond or attempt to controvert this evidence, and so NPC's
statement of undisputed facts about Viscito's time spent in
Massachusetts as opposed to Florida is deemed admitted. See
Frappier v. Countrywide Home Loans, Inc., 645 F.3d 51, 56 (1st
Cir. 2011). He also did not provide any materials of his own to
support his general affidavit averment that he was "regularly in
Massachusetts for large parts of the year." This general statement
does not create a genuine dispute about the amount of time Viscito
spent in Massachusetts because NPC's evidence is not in fact
inconsistent with this statement. As this court has said before,
"[t]he summary judgment stage is the put up or shut up moment in
litigation." Garmon v. Nat'l R.R. Passenger Corp., 844 F.3d 307,
316 (1st Cir. 2016) (quoting Jakobiec v. Merrill Lynch Life Ins.
Co., 711 F.3d 217, 226 (1st Cir. 2013)). Therefore, to the extent
Viscito is arguing that the district court somehow erred in deeming
the factual record undisputed, he is mistaken.
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audit every year) with any representative of NPC. And, contrary
to Viscito's contention that the district court leaned too heavily
on his physical location in its analysis to determine whether
Massachusetts had the most significant relationship to the
affiliation between NPC and Viscito, the court appropriately
considered the fact that Viscito was located outside of
Massachusetts as only one of several factors in the mix -- a mix
that also included consideration of the location of NPC's
headquarters and physical facilities, the location of its
employees, the frequency with which NPC had contact with Viscito
in Massachusetts compared to Florida, the state in which NPC
benefited from Viscito's work as an IAR, and Viscito's business
interests in Massachusetts. See Dow, 989 N.E.2d at 914-15. While
in Dow the Appeals Court deemed the plaintiff's mobile work around
the country to have "occurred" in Massachusetts because the
plaintiff's work always benefited the Massachusetts-based
defendant and did not benefit any other state given the dynamics
of the working relationship, here Viscito's work, performed more
often from Florida than Massachusetts -- albeit for some customers
who may have been Massachusetts residents -- benefited the
California-based NPC in California because NPC did not have any
facilities or employees in Massachusetts.
But not so fast, says Viscito. Had the district court
properly applied the most significant relationship standard to the
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facts here, it would have weighed them differently and concluded
Massachusetts has the most significant relationship to the
employment connection between Viscito and NPC. What Viscito
focused on below (and does again here) was on details of his work
with NPC such as keeping his clients' physical files at the
Massachusetts branch office, displaying the Massachusetts VFS
address on all of his NPC-approved marketing materials, initially
providing services to many of his clients in Massachusetts, and
maintaining the greatest share of his assets under management with
Massachusetts resident account holders. The district court, says
Viscito, was also wrong because it did not give any weight to
Massachusetts as the place where Viscito generated fees and
commissions for NPC as part of the "core of the employment
relationship" factor. Dow, 989 N.E.2d at 914 & n.12 (quoting
Cormier v. Pezrow New England, Inc., 771 N.E.2d 158, 163 (Mass.
2002)). But again, he is incorrect. That the district court did
not explicitly identify the fees and commissions generated from
the clients and documented in files located in Massachusetts as
deserving more weight than the other undisputed details of the
working relationship was not error. The district court did find,
for example, that "[r]egardless of where [Viscito] worked, the
income he generated benefitted NPC in California," that NPC
provided all of its services to Viscito from California, and that,
other than the annual audit, NPC did not require Viscito to train
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or work in Massachusetts. Clearly the district court considered
the specific characteristics and the nature of the industry, the
revenue and income Viscito generated, and the significance of these
facts within the mix of factors for the choice-of-law analysis.
Therefore, for the reasons discussed herein, we
conclude, like the district court, that Massachusetts is not the
state with the most significant connection to the employment
relationship between NPC and Viscito, and NPC is entitled to
summary judgment on Viscito's Massachusetts statutory claims.14
14Viscito makes two other arguments in his appeal but both
are waived. First, he says the district court should have
concluded that Massachusetts has personal jurisdiction over NPC
and that the exercise of jurisdiction over NPC based on its
presence in Massachusetts is consistent with due process. As NPC
points out, this argument is raised for the first time in this
appeal and is therefore waived for Viscito's failure to raise it
first to the district court. See Johnson v. Johnson, 23 F.4th
136, 143 (1st Cir. 2022). Even so, Dow is clear that the choice-
of-law doctrine is a better frame of analysis than personal
jurisdiction in this precise situation, see 989 N.E.2d at 913, and
NPC has not advanced any jurisdictional challenges.
Second, Viscito asserts that "Massachusetts has a fundamental
policy interest in enforcing the [MWA]" and neither NPC nor the
district court identified another state with a public policy
interest in NPC's relationship with Viscito. NPC says Viscito
also waived this argument for failure to raise it below. Viscito
replies that he did assert Massachusetts' strong policy interest
in the enforcement of the MWA to the district court, and the record
shows that this argument was indeed included in his motion for
partial summary judgment. However, other than asserting
Massachusetts' stated policy interest in enforcing the MWA,
Viscito does not develop an argument here (and did not below) about
how Massachusetts' stated policy interest can show that his
employment relationship with NPC is so significantly related to
Massachusetts that the district court was wrong to conclude
Massachusetts law is inapplicable.
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WRAP UP
All that's left to say is the district court's judgment
is affirmed and each party shall bear its own costs.
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