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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Hillsborough-southern judicial district No. 2007-423 CLARK & LAVEY BENEFITS SOLUTIONS, INC. v. EDUCATION DEVELOPMENT CENTER, INC. Argued: April 10, 2008 Opinion Issued: May 2, 2008 Getman, Stacey, Schulthess & Steere, P.A., of Bedford (Andrew R. Schulman and Dona Feeney on the brief, and Mr. Shulman orally), for the plaintiff. Michael J. Sheehan, of Concord, by brief and orally, for the defendant. GALWAY, J. The defendant, Education Development Center, Inc. (EDC), appeals, and the plaintiff, Clark & Lavey Benefits Solutions, Inc. (C&L), crossappeals, from rulings of the Trial Court (Groff, J.). We affirm. The record discloses the following facts. C&L was formed in 1997 to broker group insurance policies for companies that sponsor employee benefit plans. EDC is a not-for-profit corporation dedicated primarily to "applied research in education and public health awareness." In 1997, EDC hired C&L as its insurance broker. Pursuant to the parties' contract, C&L was paid solely from commissions built into the premiums paid by EDC to the insurance carriers it selected with C&L's help.

In 2004, EDC's benefits manager began reviewing the commissions paid to C&L, and compared the rates to the "standard" brokerage commission rates paid by its health and dental carriers. He determined that because the rates paid to C&L were higher than the "standard" rates, he would negotiate with C&L to recover the difference. Despite the parties' negotiations, and EDC's continuing use of C&L's services throughout 2004, EDC terminated C&L as its broker in 2005. In April 2005, C&L sued EDC and EDC counterclaimed against C&L. Following trial, a jury found C&L liable to EDC for breach of a fiduciary duty and for intentional misrepresentations and awarded EDC $70,000 in damages. However, the jury also found EDC liable to C&L for breach of contract and negligent and intentional misrepresentations, and awarded C&L $112,000 in damages. After the trial ended, EDC filed a motion seeking forfeiture of all commissions C&L had earned since 1998, which the trial court denied. EDC appeals, arguing that certain jury instructions were erroneous and that the trial court erred in denying its forfeiture motion. C&L cross-appeals from the trial court's denial of its motion for a directed verdict on EDC's claims for breach of contract and misrepresentation. We address each argument in turn. When EDC counterclaimed, it alleged, in part, that C&L had breached the Massachusetts Consumer Protection Act (MCPA), Mass. Gen. Laws ch. 93A, by failing to disclose the "standard" brokerage commission rates paid by the carriers it selected. According to EDC, had C&L disclosed those rates, that information would have influenced EDC's decision to use C&L's services. EDC contends that the trial court erroneously instructed the jury on the elements of this claim. "The purpose of jury instructions is to identify issues of material fact, and to inform the jury of the appropriate standards of law by which it is to resolve them." Transmedia Restaurant Co. v. Devereaux, 149 N.H. 454, 457 (2003) (quotation omitted). We review jury instructions in context and will not reverse unless the charge, taken in its entirety, fails to adequately explain the law applicable to the case in such a way that the jury is misled. Id. Relative to the MCPA claim, the trial court instructed the jury that: In order to recover under a claim for violation of the Consumer Protection Act, EDC must prove, one, that Clark and Lavey committed an unfair and deceptive trade practice by failing to disclose to EDC the established broker commission rates for the sale of the insurance carrier's policies; two, that disclosure of these

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standard commission rates may have influenced EDC not to enter into the transaction of designating Clark and Lavey as its broker for the purchase of these policies; and, three, that as a result of this conduct by Clark and Lavey EDC suffered pecuniary loss. In order to constitute an unfair and deceptive trade practice under the act, Clark and Lavey's conduct must obtain a level of rascality that would raise an eyebrow of someone inured to the rough and tumble world of commerce or be at least within the penumbra of some established concept of unfairness or whether it is immoral, unethical, oppressive, or unscrupulous. According to EDC, under the MCPA, the failure to disclose, in itself, is a violation and reference to the "rascality" standard was unnecessary and erroneous. Alternatively, EDC argues that if some reference to a subjective standard was proper, the "rascality" standard is not the correct standard. C&L counters that the issue has not been preserved for appeal, or, if it has, the instruction was not erroneous. We address first whether the argument has been preserved. "A contemporaneous objection is necessary to preserve a jury instruction issue for appellate review." Nilsson v. Bierman, 150 N.H. 393, 402 (2003) (quotation omitted). Without a contemporaneous objection, the trial court is not afforded the opportunity to correct an error it may have made. Id. "This long-standing requirement is grounded in common sense and judicial economy, and applies equally to civil and criminal matters." Devereaux, 149 N.H. at 457. EDC did not make, and does not contend that it made, any objection at the time the instruction was given to the jury, despite having the opportunity to do so. Instead, EDC argues that during an on-the-record conference with the trial court to discuss the instructions proposed by the trial court, it objected to the use of the "rascality" language. During the conference, C&L raised objections to the wording of the proposed instruction, and, after some discussion, the parties agreed to work out an instruction to submit to the court. The parties, however, could not agree on an instruction and further discussed the matter with the trial court. The following discussion ensued between the trial judge and EDC's counsel: [EDC]: As it's been presented, Your Honor, I think the difference is whether we're going to go from the definition from the CMR [Code of Massachusetts Regulations] to the information about rascality and then the application to the facts. What I've suggested is that we go the CMR definition and then say EDC must prove, and use the language that you've already given us, and then say in addition you must find that this behavior reached a level of

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