United States Court of Appeals
                       For the First Circuit


Nos. 20-2126
     20-2149

 THE GENERAL HOSPITAL CORPORATION; DANA-FARBER CANCER INSTITUTE,
                              INC.,

               Plaintiffs, Appellees/Cross-Appellants,

                                 v.

                ESOTERIX GENETIC LABORATORIES, LLC,

                Defendant, Appellant/Cross-Appellee,

  LABORATORY CORPORATION OF AMERICA HOLDINGS, a/k/a Laboratory
                     Corporation of America,

                     Defendant, Cross-Appellee.


          APPEALS FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Indira Talwani, U.S. District Judge]


                               Before

                      Lynch, Selya, and Barron,
                           Circuit Judges.


     Christopher R. Howe, with whom Campbell Conroy & O'Neil, P.C.,
Robert I. Steiner, Jaclyn M. Metzinger, and Kelley Drye & Warren
LLP were on brief, for defendants.
     Douglas J. Nash, with whom Carolyn M. Crowley and Barclay
Damon LLP were on brief, for plaintiffs.
October 7, 2021
            SELYA, Circuit Judge.    Although these appeals arise out

of   a   dispute    between      sophisticated     entities     concerning

intellectual-property rights, they turn on abecedarian principles

of contract law.      Those principles, though familiar, are often

difficult to apply.    Because the court below erred in applying the

pertinent principles to the documents at hand, we vacate its

million-dollar-plus    damages    award   and    certain   of   its    other

rulings, and we remand for further proceedings consistent with

this opinion.

I. BACKGROUND

            We start by rehearsing the relevant facts and travel of

the case.    The plaintiffs, The General Hospital Corporation and

Dana-Farber Cancer Institute, Inc. (collectively, the Hospitals),

own patents related to the detection of the epidermal growth factor

receptor (EGFR) mutation that, when present, suggests that certain

cancer treatments are likely to be effective.              In 2005, the

Hospitals licensed the patents to a company that was in the

genetic-testing business.     Under the master license agreement (the

License), the licensee is permitted to use and sell                   certain

products and processes covered by the EGFR-detection patents, as

well as to sublicense those same rights to third parties.                  In

exchange, the licensee is required to pay stipulated amounts,

including an annual license fee, royalties on its use and sales of

the processes and products, and a portion of the fees and other


                                  - 3 -
income    received    from      sublicensees        (including      their   royalty

payments).

            Approximately five years later, the prior licensee's

rights   were   passed     on   to   one    of     the   defendants,    Laboratory

Corporation of America Holdings (LabCorp), when LabCorp purchased

most of the seller's genetic-testing business.                    The rights later

passed to defendant Esoterix Genetic Laboratories, LLC (Esoterix)

— an entity created by LabCorp to manage the assets.

            According to the License, royalties and sublicensing

fees and income are to be paid twice a year following six-month

reporting periods ending on June 30 and December 31.                   The License

delineates how these payments are to be computed.                   Royalties owed

on sales of processes, for example, are calculated by multiplying

a "royalty rate" by the "CONTRACT NET SALES," as defined, of

processes sold during a reporting period.                  Though simple on its

face, this calculation requires further computation to determine

the inputs.      Payments owed for sublicensing arrangements are

calculated more straightforwardly:                Esoterix owes the Hospitals a

fixed    percentage   of     certain       fees    or    income    collected   from

sublicensees.

            In 2014, Esoterix sued QIAGEN Manchester, Ltd. and other

related entities (collectively, QIAGEN), for, inter alia, breach

of a sublicense anent the EGFR-detection patents.                    QIAGEN filed

counterclaims challenging the patents' validity.                     Esoterix and


                                      - 4 -
LabCorp eventually settled all claims with QIAGEN.         They also

agreed to pay the Hospitals a portion of the settlement amount

paid by QIAGEN.   The parties entered into a settlement agreement

to this effect on June 27, 2017.1     Section 3.1 of the settlement

agreement comprised a broad release, which was effective as of the

date of execution of the agreement.   In it, the Hospitals released

Esoterix and LabCorp:

          of, from, and with respect to, any and all
          liabilities,    losses,   damages,    charges,
          complaints,       claims,       counterclaims,
          obligations,       promises,       agreements,
          controversies, actions, causes of action,
          suits, rights, demands, costs, debts and
          expenses (including attorneys' fees and court
          costs) of any nature whatsoever, known or
          unknown, suspected or unsuspected that may
          have arisen before the Effective Date, which
          [the Hospitals] may have, own or hold, or
          claim to have, own or hold against [Esoterix
          and LabCorp], relating to or arising from (i)
          the acts or omissions that were stated in,
          arose out of, or which may have arisen out of,
          the [prior litigation], (ii) the Patent
          Rights; (iii) the [License], including but not
          limited to the provision of any notice(s)
          required under the [License] or the payment of
          any past royalties or other fees pursuant to
          the [License] . . . .

          Under the terms of the License, a reporting period closed

on June 30, 2017 (a few days after the effective date of the




     1 In the sealed record, both the License and the settlement
agreement are in redacted form.    The parties confirmed at oral
argument that the redacted versions contain all of the provisions
that bear on this dispute and that the omitted portions are not
material to our decision.


                              - 5 -
release).     Esoterix's royalties and sublicensing payments, along

with a semi-annual royalty report, were due within forty-five days

thereafter.    Esoterix took the position that the release operated

to discharge the payment obligations for all uses and sales that

occurred    before   June   27.    Accordingly,   its   report   for   that

reporting period supplied revenue and royalty information only for

the period between June 28 and June 30.2          The payments owed for

those few days were defrayed by application of Esoterix's annual

license fee, an offset that was permissible under the License.

            Unwilling to turn the other cheek, the Hospitals brought

suit in a Massachusetts state court.          Noting the existence of

diversity jurisdiction, the defendants removed the action to the

United States District Court for the District of Massachusetts.

See 28 U.S.C. §§ 1332(a), 1441. The Hospitals alleged, among other

things, that Esoterix and LabCorp violated the terms of the License

by failing to pay amounts owed for the entire reporting period

ending June 30, 2017.       Soon after removal, the defendants moved to

dismiss.    See Fed. R. Civ. P. 12(b)(6).         The Hospitals opposed

that motion and went on the offensive, filing a motion for partial

summary judgment on their breach of contract claim.




     2 The release is plain that it operates to wipe out matters
arising before — and not on or before — June 27. We thus assume
that the report did not contain royalty information for June 27
because there was none to report.


                                   - 6 -
            The    district   court    consolidated   these    motions   for

hearing.     Thereafter, the court granted the Hospitals' partial

summary judgment motion, concluding that Esoterix had not been

released from its obligation to pay royalties and sublicensing

fees for uses and sales occurring before June 27.3            See Gen. Hosp.

Corp. v. Esoterix Genetic Lab'ys, LLC, No. 18-11360, 

, at *1, *4 (D. Mass. Sept. 4, 2019).          Esoterix's motion to

dismiss was denied, save for the count of the complaint that sought

reformation of the settlement agreement (count five).            See 

.      That count was dismissed as moot (due to the court's

disposition of the breach of contract claim).          See 

    Following

the     parties'   stipulation   to     dismiss   without   prejudice    the

remaining claims — including those pending against LabCorp — the

court entered judgment for the Hospitals on the breach of contract

claim in an agreed-upon sum of $1,291,427.13 plus interest.              The

judgment also granted the Hospitals' prayer for an audit and

accounting.    These timely appeals ensued.

II. ANALYSIS

            These appeals rise or fall on the Hospitals' claim that

Esoterix breached the License by failing to pay certain royalties




      3The district court deemed the record insufficient to
determine whether LabCorp was liable for the breach and granted
partial summary judgment against Esoterix only. See Gen. Hosp.
Corp., 

, at *1 n.1. That ruling is not challenged
before us.


                                      - 7 -
and sublicensing fees.        Our analysis of that claim begins — and

ends — with Esoterix's flagship contention:         that the terms of the

release    wiped   out   Esoterix's   obligations    to    pay   the   unpaid

royalties and sublicensing fees for uses and sales that occurred

before the effective date of the release (June 27).              Contrary to

the district court's determination, the terms of the release and

the License do not indicate that Esoterix's obligations arose after

the release's effective date (when they became due and payable).

            We subdivide our analysis into three segments.             First,

we review the text of the relevant release provision.              Next, we

assess the district court's interpretation of that provision.

Finally, we address the effect of the release and explain how it

operates in this case.

            For the most part, the applicable legal standards are

familiar. We review the district court's entry of summary judgment

de novo.     See Mason v. Telefunken Semiconductors Am., LLC, 

, 37 (1st Cir. 2015).          In the course of that review, we

take the facts in the light most hospitable to the nonmovant (here,

Esoterix) and draw all reasonable inferences therefrom to that

party's behoof.     See 

            This case, removed from a state court, is brought in

diversity jurisdiction.       See 28 U.S.C. § 1332.       Thus, although we

look to federal law for the summary judgment framework, we look to

state law for the substantive rules of decision.            See Mason, 797


                                   - 8 -
F.3d at 38 (citing Hanna v. Plumer, 

, 473 (1965)).

The parties agree      —   and the choice-of-law provisions in the

settlement and license agreements reflect — that Massachusetts is

the wellspring of the relevant state law.

             A.    The Settlement Agreement and Release.

          In matters of contract, words are the signposts that the

contracting parties use to demarcate the boundaries of their

agreement.   Consequently, we begin with the text of the release

provision contained within the settlement agreement.

          Under     Massachusetts     law,   the    interpretation    of   a

contractual provision is a question of law for the court.            See NTV

Mgmt., Inc. v. Lightship Glob. Ventures, LLC, 

, 443

(Mass. 2020); see also Bank v. Thermo Elemental Inc., 

, 907 (Mass. 2008).      "Contract language is ambiguous where the

phraseology can support a reasonable difference of opinion as to

the meaning of the words employed and the obligations undertaken."

Bank, 888 N.E.2d at 907 (quotations omitted).               "[T]he parties'

intent must be gathered from a fair construction of the contract

as a whole and not by special emphasis upon any one part."           Bukuras

v. Mueller Grp., LLC, 

, 262 (1st Cir. 2010) (quotations

omitted) (applying Massachusetts law).        Words that are "plain and

free from ambiguity"       must be    understood in their "usual and

ordinary sense," and       a contract should be interpreted "in a

reasonable   and   practical   way,    consistent    with    its   language,


                                  - 9 -
background, and purpose."   

 (quotations omitted).     "[A]bsent

ambiguous provisions, we look solely to the language of the

contract and do not consider extrinsic evidence."   NTV Mgmt., 140

N.E.3d at 443.

          The principal release provision — section 3.1 of the

settlement agreement — sweeps broadly. In it, the Hospitals agreed

to:

          release, waive, forever discharge, and hold
          harmless [Esoterix] . . . of, from, and with
          respect to, any and all liabilities, losses,
          damages,    charges,   complaints,    claims,
          counterclaims,     obligations,     promises,
          agreements, controversies, actions, causes of
          action, suits, rights, demands, costs, debts
          and expenses . . . of any nature whatsoever,
          known or unknown, suspected or unsuspected
          that may have arisen before the Effective
          Date . . . relating     to      or    arising
          from . . . the [License], including but not
          limited to . . . the payment of any past
          royalties or other fees pursuant to the
          [License] . . . .

By these terms, the parties manifestly intended to enter into a

release with many attributes of a general release — a release that

broadly discharges liability for all claims and demands, whether

known or unknown.   See Eck v. Godbout, 

, 300-01

(Mass. 2005).

          The release is meaningfully limited in only two ways.

First, the release is limited temporally: it applies to any matter

that "may have arisen" before its effective date.       Second, the

subject of the release is limited:      the matter released must


                             - 10 -
"relat[e] to or aris[e] from" one of the release's enumerated

topics (a taxonomy that includes the License).

            Read in light of the settlement agreement as a whole,

the release is unambiguous.              The adjacent release provision —

section 3.2 — releases obligations related to the QIAGEN litigation

(the underlying incident that prompted the settlement agreement).

The existence of this second (tailored) release provision confirms

that   a   broader    release     was   part     and   parcel    of   the   parties'

bargained-for settlement.          See, e.g., Cohen v. Steve's Franchise

Co., 

, 29 (1st Cir. 1991) (explaining that, under

Massachusetts       law,   "[a]    reading       rendering      contract    language

meaningless is to be avoided"); Oliveira v. Com. Ins. Co., 

, 1210 (Mass. App. Ct. 2018).                 It is commonplace that

"a release may be prompted by the settlement of a specific dispute

or resolution of a specific issue," and yet the parties may choose

to negotiate a general release that "operates to settle all other,

unrelated matters."        Eck, 831 N.E.2d at 300-01.             The release has

two    meaningful    limitations,        but     it    nonetheless    operates    to

extinguish many matters beyond those stemming from the QIAGEN

litigation.

                      B.   The District Court's Order.

            Notwithstanding the breadth of the language in which the

release is couched, the district court held that the Hospitals'

claim for royalty payments was beyond the purview of the release.


                                        - 11 -
See Gen. Hosp. Corp., 

, at *3-4.             Refined to bare

essence, the court reasoned that the Hospital's breach of contract

claim accrued when Esoterix's unpaid royalties and fees became due

and payable.      See 

.        Because this payment deadline

occurred after the effective date of the release, the district

court   determined   that    the   breach   of   contract   claim   was   not

foreclosed.     See 

     Relatedly, the court rejected Esoterix's

contention that its obligations to the Hospitals arose before the

payment deadline.     See 

.

             The district court's focus on when the Hospitals' cause

of action accrued is insupportable.         Massachusetts law is pellucid

that a broad release can encompass all matters that come within

its terms.    With respect to general releases covering "any and all

claims . . . whatsoever of every name and nature," claims can be

released even if they were not in the forefront of the parties'

thinking.    Eck, 831 N.E.2d at 300-01; see Radovsky v. Wexler, 

, 410 (Mass. 1930) ("A general release of all demands

embraces everything included within its terms.").           This is so even

when a cause of action has yet to accrue.          See Eck, 831 N.E.2d at

302; see also Sword & Shield Rest., Inc. v. Amoco Oil Co., 

, 33 (Mass. App. Ct. 1981).          For instance, a contingent

obligation can be      released by a general release even before

preconditions occur that would ripen that obligation into an

enforceable promise.        See Radovsky, 173 N.E. at 410; see also


                                   - 12 -
Pierce v. Parker, 

, 89-90 (1842).            The guiding

principle is that the plain meaning of the unambiguous terms of

the release control.      See, e.g., Leblanc v. Friedman, 

, 1290-91 (Mass. 2003); Schuster v. Baskin, 

,

208 (Mass. 1968).

          The district court's reasoning contravened this guiding

principle by ignoring the terms of the release in two ways.           First,

the release applies to considerably more than causes of action,

liabilities, rights or demands.       It also encompasses, among other

things, "any and all" "obligations," "promises," and "debts."

Second, the release applies to all claims that "may have arisen"

before its effective date.     Thus, the actual accrual of a cause of

action lacks any talismanic significance.

          What counts is the meaning of "arisen," which — depending

on the object of the verb — may or may not be synonymous with the

term "accrued."      See Eck, 831 N.E.2d at 302 (holding that claims

arise "at the time of the underlying incident giving rise to the

claim," which may be before any cause of action accrues in fact

(quotations omitted)); see also John Doe No. 4 v. Levine, 

, 953 (Mass. App. Ct. 2010) ("The two terms 'arise' and

'accrue' are not synonymous."); cf. United States v. Romain, 

, 74 (1st Cir. 2004) (explaining that "words are like

chameleons;   they    frequently   have     different   shades   of   meaning

depending upon the circumstances").          It follows that an isthmian


                                   - 13 -
focus on the timing of the breach of contract claim would be

inappropriate.     "When the words the parties have selected possess

a breadth enveloping myriad meanings, the judge need not rush to

play the role of augur."       Fashion House, Inc. v. K Mart Corp., 

, 1084 (1st Cir. 1989).

                      C.   The Effect of the Release.

            Setting to one side the district court's reasoning, we

consider afresh the extent to which the release covered Esoterix's

unpaid royalties and other payment obligations.                  The "ordinary

sense," Bukuras, 

 of the term "obligations," as

used in the release, is wide-ranging and easily accommodates a

duty to pay royalties and sublicensing fees.              Nor do the Hospitals

dispute that Esoterix's unfulfilled obligations "relate" to the

License (a subject matter specified in the release).              The analysis

of the release's effect, then, reduces to what extent — if at all

— Esoterix's obligations "may have arisen" before the effective

date   of   the   release.         When   reading   the   term   "arisen,"    in

conjunction with the object "obligation," the pivotal question

becomes     whether    Esoterix's         royalty   and     sublicensing     fee

obligations may have originated before June 27, 2017.                To answer

this question, we turn to the meat of the parties' financial

arrangements.

            The   royalty    and    sublicensing    fee    provisions   of   the

License make plain that Esoterix's obligations arise upon its sales


                                     - 14 -
of processes and products, on the one hand, and its receipt of

sublicensing income, on the other hand.             The License provides, in

relevant part, that Esoterix "shall pay" a royalty for sales of

processes or products.           License § 4.5(a)-(b).           The obligatory

language    —    "shall   pay"   —    is    modified.    A     royalty   is   paid

"[b]eginning with the first COMMERCIAL SALE," id. — defined as

having been "completed at the time [Esoterix] records a sale," id.

§ 1.6 — and "continuing during the term of the [License]," id.

§ 4.5(a)-(b).      Thus, a royalty obligation arises when the sale is

first recorded.       That Esoterix must pay a royalty "continuing"

during     the    agreement's        term   confirms    that     royalties    are

continually owed upon sales until the license runs its course.

            For sublicensing fees and other income, Esoterix "shall

pay" the Hospitals a percentage of "any and all fees" and of "any

royalty or similar payments."           Id. § 4.6(a)-(b).      The terms "fees"

and "royalty or similar payments"               are each modified by past

participles — "actually received" and "paid," respectively.                    Id.

Past participles can be "used as adjectives to describe the present

state of a thing," Henson v. Santander Consumer USA Inc., 

, 1722 (2017), and also can "indicate[] past or completed

action," Fla. Dep't of Revenue v. Piccadilly Cafeterias, Inc., 

, 39 (2008).       Read in context, the past participles of "to

receive" and "to pay" suggest that those actions must have occurred

for Esoterix's payments to be required.             In other words, Esoterix


                                       - 15 -
owes a portion of sublicensing money when that money has been

received by Esoterix or paid to it.            The upshot is that Esoterix's

obligations to pay sublicensing fees and other income originate as

Esoterix receives the fruits of its sublicensing rights.

              The structure of Esoterix's royalty and other payments

lends further support to this interpretation.              Apart from certain

annual    fees,      see    License   § 4.3,    Esoterix's    other    monetary

obligations are structured to be proportional to sales (though the

method of accounting when a sale occurs varies).                The royalties

owed on products, for example, are just a percentage of "NET

SALES," see id. § 4.5(b), which are defined as occurring when

Esoterix receives the amount payable, see id. § 1.22(c). Royalties

owed on processes are amounts that are keyed both to sales and to

utilization.        See id. § 4.5(a).4    That the amounts owed are tied

to   actual     sales       reinforces   an    inference     that     Esoterix's

obligations arise from exercising its licensing rights.                 And this

inference is buttressed by the logic that undergirds patent license

royalties in general.          Such royalties, in effect, allow licensees

to   engage    in    conduct   that   otherwise    might   constitute     patent

infringement.         See   Spindelfabrik Suessen-Schurr,       Stahlecker &


      4 Viewed from 50,000 feet, the amount is calculated by
multiplying a royalty rate based on the utilization of the
processes from the prior reporting period — defined in the License
as the "AVERAGE REIMBURSEMENT" — against a base that also tracks
sales through the "number of PROCESSES invoiced to THIRD PARTIES
during the current REPORTING PERIOD." See License §§ 1.34, 4.5(a).


                                      - 16 -
Grill    GmbH    v.      Schubert     &        Salzer      Maschinenfabrik

Aktiengesellschaft, 

, 1081 (Fed. Cir. 1987) ("[A]

patent license agreement is in essence nothing more than a promise

by the licensor not to sue the licensee."); see also 3 Roger M.

Milgrim, Milgrim on Trade Secrets § 10.02 (2021) (differentiating

between patent and trade secret licenses).          "In this sense, [a]

patent license royalty is much like the payment of tolls on a

bridge or turnpike."    Milgrim, supra, § 10.02.        A duty to pay would

logically originate when and as the responsible party engages in

the licensed conduct.

          The   Hospitals    demur.       In   their     view,   Esoterix's

unfulfilled royalty and other fee obligations — for uses and sales

that occurred before June 27 — arose when the payments became due

and payable.    Stripped of rhetorical flourishes, the Hospitals

seek to uphold the judgment on their breach of contract claim by

focusing on when the Hospitals' right to demand payment came into

existence and when the breach of contract claim accrued.              Were

this focus correct, the net result would be that the release did

not extinguish Esoterix's obligation to pay the unpaid amounts

because they became due only after the release's effective date.

          But the Hospitals' focus is incorrect.          Their thesis, at

bottom, rests on an assumption that there is a condition precedent

requiring that the amounts owed are due and payable before the

obligations can arise.    See Mass. Mun. Wholesale Elec. Co. v. Town


                                - 17 -
of Danvers, 

, 288 (Mass. 1991) (defining condition

precedent under Massachusetts law as an event that must occur

"before an obligation to perform arises under the contract"). Even

so, the Hospitals have not mustered any plausible support for their

thesis from within the four corners of the License.           The absence

of   such   support   is   telling.   "Emphatic   words    are   generally

considered necessary to create a condition precedent that will

limit or forfeit rights under an agreement."              

 (quotations

omitted); see Restatement (Second) of Contracts § 226 cmt. a (Am.

L. Inst. 1981) (explaining that words that create a condition

precedent are "on condition that," "provided that," and "if").           A

searching examination of the License leaves no doubt but that it

is devoid of any terms that suggest that the obligations must be

due or payable before they are deemed to originate.           Rather, the

royalty provisions' due and payable clauses are run-of-the-mine.

See License §§ 4.5(e), 4.6(d) (stating that payments required by

sections 4.5 and 4.6 "shall be due and payable" "within forty-five

(45) days after the end of the REPORTING PERIOD" and that, for

section 4.5, the first royalty payment would not be due for some

specified time).

            Nor is the "intent of the parties to create [a condition

precedent] clearly manifested in the contract as a whole."           Mass.

Mun., 577 N.E.2d at 288.      For example, no provisions indicate that

the obligations arise upon demand or assessment. In point of fact,


                                  - 18 -
the termination provision shows just the opposite.                   It states that

"all royalties and other payments . . . accrued or due to [the

Hospitals] as of the termination date shall become immediately

payable."        License § 10.7.        This language clearly evinces the

parties' understanding that royalty and sublicense fee obligations

have significance independent of any contractual obligation to

make timely payments.           If a party terminated the License during a

reporting     period,        Esoterix      would    still    owe     the   monetary

obligations      that    arose    during     that   period    even    though   those

obligations were not yet payable.

            Without      any     plausible    support   in    the    License,   the

Hospitals' asseverations defy common sense.                   A payment deadline

may be informative as to when a breach for failure to pay occurs.

Standing alone, though, it does not shed light on when a royalty

obligation is incurred.            After all, the postponement of a debt

payment does not mean that the debt has not already been created;

it means only that the payment is not yet required.                   For example,

a   bank   may    lend   a     homeowner    $300,000,   yet    postpone     payment

obligations incrementally in line with a twenty-year repayment

amortization schedule.           That only a fraction of the principal is

due each month does not mean, at any point in time, that the

homeowner is absolved of her overall obligation to repay the entire

loan balance.




                                        - 19 -
           The    Hospitals'       contention   that   Esoterix's      payment

obligations cannot arise until they are calculable is no more

logical.    Here, moreover, it is apparent that the royalties and

sublicensing fees may be calculated at any time (even before the

end of a reporting period when they become due).                The royalty

payments for processes are based on an equation in which all but

one of the variables are known from the prior period.               The single

unknown variable is the number of processes invoiced to third

parties during the current reporting period, which can be assessed

at any time.      See id. § 4.5(a).       The royalties for products and

payments related to sublicensing are just a percentage of payments

and income received.      See id. §§ 4.5(b), 4.6(a)-(b).            These, too,

are   calculations    that   can    be   performed   before   the    end   of   a

reporting period.

           The Hospitals identify two other potential cures for the

infirmities that plague their position. On close scrutiny, though,

neither potential cure proves to be a panacea.

           To begin, the Hospitals say that even if the relevant

payments are calculable on an incremental basis, they had "no way

of knowing if any royalty would be due."         This may be true, but it

does not move the needle in the Hospitals' direction. The critical

fact is that the release applies to obligations "known or unknown."

           The Hospitals' second therapeutic fares no better.              They

implore    us    to   consider     the   circumstances    surrounding       the


                                     - 20 -
settlement.   The settlement discussions, the Hospitals insist,

show that the parties never intended the result that Esoterix now

seeks.   Building on a provision in the release that deals with

"the payment of any past royalties," they argue that the release

applies only to the "past royalties" at stake in the QIAGEN

litigation.   This argument, though, encounters strong headwinds

under Massachusetts law.

          Examination of extrinsic evidence is improper where, as

here, the terms of a contract are neither vague nor ambiguous.

See NTV Mgmt., 140 N.E.3d at 443.       This rule applies with full

force to releases.   See Radovsky, 173 N.E. at 410 ("A release which

is absolute and unequivocal in its terms cannot be explained by

parol evidence.").

          To be sure, this general rule is susceptible to an

exception under which extrinsic evidence can be used to "determine

whether an apparently clear term is actually uncertain."   Smart v.

Gillette Co. Long-Term Disability Plan, 

, 179 (1st Cir.

1995). This exception, though, has no bearing here. The reference

in the release to "past royalties" — the proffered textual hook on

which the asserted relevance of the settlement discussions is hung

— appears in a clause that does nothing to limit the broad scope

of the release.   It follows the phrase, "including but not limited

to," and extrinsic evidence cannot write that phrase out of the

release. See 

 (explaining that extrinsic evidence cannot


                               - 21 -
"be employed to contradict explicit contract language or to drain

an agreement's text of all content save ink and paper").                          The

release plainly applies to any and all of Esoterix's royalty

obligations under the License, which arose prior to the release's

effective date. And that holds true whether or not those royalties

relate to the QIAGEN litigation.

              The   breadth    of     the   release     was   by   choice   of    the

contracting parties.          Courts should not attempt to "accomplish by

judicial fiat what [a party] neglected to achieve contractually."

FDIC v. Singh, 

, 23 (1st Cir. 1992) (alteration in

original) (quotations omitted).             That admonition has special force

where,   as    here,   the     parties      are    sophisticated    entities     that

negotiated a release with the benefit of counsel.                  In signing the

settlement agreement, the parties acknowledged that they had been

"specifically       advised"     of    the        "consequences . . . and      their

respective rights and obligations."                   We are not at liberty to

rewrite this bargained-for arrangement.

              To sum up, the terms of the License show that Esoterix's

royalty and sublicensing fee obligations arise upon its sales of

processes and products and its receipt of sublicensing income,

respectively.       As such, the unpaid obligations arose prior to the

effective date of the release and, thus, were extinguished by it.

In the absence of a duty to pay those amounts, there could be no

breach of the License, and judgment should not have entered in


                                       - 22 -
favor of the Hospitals on their breach of contract claim. Instead,

the district court should have granted Esoterix's motion to dismiss

that claim.

                       D.    Tying Up Loose Ends.

           In addition to having ruled in favor of the Hospitals on

their breach of contract claim, the district court made certain

other rulings.     Two of these other rulings require our attention.

           The district court denied the defendants' motion to

dismiss the Hospitals' claim of entitlement to a full audit and

accounting of the relevant records for the reporting period ending

June 30, 2017.     See Gen. Hosp. Corp., 

, at *5.           The

court determined that it would award injunctive relief on that

claim, see 

 and entered judgment thereon in favor of the

Hospitals.    This grant of relief draws its essence from section

5.4 of the License, which gives the Hospitals audit rights "solely

for examination during normal business hours to verify any reports

and payments made under, and/or to determine compliance in other

respects with, [the License]."       License § 5.4.       Without Esoterix's

duty to pay the unpaid amounts, the Hospitals' right to an audit

and accounting to "verify" or "determine compliance" as to those

payments   would   cease    to   exist.     Given   our   holding   that   the

Hospitals have released Esoterix with respect to all obligations

incurred up to June 27, 2017, the Hospitals are entitled to payment

for only four days of the reporting period that they wish to audit.


                                   - 23 -
          This curtailment in the period that is open to audit may

very well influence both the Hospitals' desire for the audit and

the   district    court's     determination      that   one   is    required

(especially in view of the License-fee setoff).                We think it

sensible, therefore, to vacate the judgment as to the audit-and-

accounting claim; without prejudice, however, to the Hospitals'

right to renew their request if they wish to do so under the

materially changed circumstances.

          The defendants also moved to dismiss count five — the

Hospitals'   claim    for   reformation    of   contract   (the    settlement

agreement) — based on mistake.            See Gen. Hosp. Corp., 

, at *5.      The district court granted the motion as to the

claim, dismissing it as moot.      See 

      Given the collapse of the

Hospitals' breach of contract claim, see supra Part II(C), the

reformation claim is no longer moot.        Since the district court did

not decide the motion to dismiss count five on the merits, we

vacate the order of dismissal so as to allow the district court to

consider this repositioned claim in the first instance.                   See

Hochendoner v. Genzyme Corp., 

, 735 (1st Cir. 2016).

III. CONCLUSION

          We need go no further. For the reasons elucidated above,

we vacate the judgment in favor of the Hospitals as to the breach

of contract claim and direct the district court to enter judgment

granting Esoterix's motion to dismiss that claim.             We vacate the


                                  - 24 -
judgment as to the audit-and-accounting and reformation claims,

without prejudice.       We leave the judgment undisturbed as to all

claims not specifically mentioned and remand the matter to the

district   court   for   further   proceedings   consistent   with   this

opinion.   Costs shall be taxed in favor of the defendants.



So Ordered.




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