The Massachusetts Consumer Protection Act, (G. L. c. 93A) protects both consumers and businesses from unfair and deceptive business practices within the conduct of trade or commerce. The law does not define any specific business actions that violate the law; rather it states that “unfair or deceptive practices” are illegal. Although each case is judged on its own merits, some examples of unfair or deceptive practices that might fall under Chapter 93A would be when:
- A business charges a consumer higher rates than the marked, published or advertised price;
- The refund/return policy is not clearly posted where it can be readily noticed and understood;
- A business fails to tell you relevant information regarding your product or service or misleads you in any way;
- A business does not meet its warranty agreement;
- A business uses “Bait and Switch” advertising – a technique by which the seller advertises an item for sale at a particularly good price or terms but does not really want to sell that item. The seller discourages the purchase of the advertised item and instead tries to convince the buyer to purchase a different item for a higher price or on less favorable terms.
The Massachusetts Attorney General has enacted certain regulations which define per se unfair or deceptive practices, but this list is not exclusive.
If a consumer believes a business has violated the Consumer Protection Act and engaged in some sort of unfair or deceptive practice and after attempting to resolve the complaint with the merchant informally, he/she may decide to take legal action. Section 9 of Chapter 93A grants a right to any person injured by an unfair trade or practice the right to bring suit against a business.
As a general matter, a consumer suing under 93A must demonstrate the following to prove the claim:
- That the consumer sent a detailed 30-day demand letter that outlines the complaint, the harm suffered, and the demanded relief.
- That he or she is a “consumer” plaintiff – someone engaging in commerce primarily for personal, family or household purposes;
- That the defendant’s actions were “unfair” or “deceptive”; and
- That these actions resulted in a loss of money, property or otherwise constituted some type of injury to that consumer.
A court can award a consumer plaintiff who proves the above compensatory or actual damages double or treble (triple) damages if the plaintiff can prove (1) the defendant willfully and knowingly violated Chapter 93A or (2) the defendant refused to grant relief in bad faith with knowledge or reason to know that their acts violated Chapter 93A
30 Day Demand Letter
The Massachusetts Consumer Protection Law requires you to send the business a letter 30 days before filing a claim in court. The letter must outline your complaint, the harm you suffered, and how you want the problem resolved. This is called a 30-Day Demand Letter. The business must make a good faith response within 30 days, or it could subject them to triple damages and attorney’s fees. The purpose of the letter is to put the business on notice of the suit as well as encourage the out-of-court settlement of the issues. Once you receive the response to your demand letter you then must decide to either reject or accept an offer, if any. If you reject an offer which the court later finds to be reasonable, then the court may limit the amount of money you can collect. The court may limit your recovery to the amount the business originally offered to you.
If the business never sent a settlement offer or sent you an unreasonable offer, the court may rule in your favor. You then may be able to recover your actual monetary damages, or $25, whichever is greater.
Business to Business
If a business brings a civil action to another business under the Act, Section 11 of Chapter 93A applies. Under Section 11, no demand letter is required as it is for consumer plaintiffs. However, the statute does permit the submission of a settlement offer prior to initiation of a lawsuit, which if later found reasonable may limit the plaintiff to single damages.
An additional requirement on litigation under Section 11 is that the unfair or deceptive practices must have occurred primarily and substantially within Massachusetts. This requirement does not exist for consumer plaintiffs under Section 9.
Generally, a business suing another business under the law must demonstrate the following to prove its claim:
- That they are considered a “business” – engaged in the conduct of any trade or commerce;
- That the defendant’s actions were unfair or deceptive;
- That these actions occurred primarily and substantially within Massachusetts (the burden is on the defendant to disprove this presumption as a defense); and
- That these actions resulted in a loss to the business plaintiff of money, property or otherwise resulted in some type of injury; or
- That these actions “may have the effect of causing such loss” to that business plaintiff for injunctive relief.
A court can award a business plaintiff who proves the above compensatory or actual damages. Double or triple damages are also available if the plaintiff can prove the defendant willfully and knowingly violated Chapter 93A. Reasonable attorney’s fees and costs incurred in the lawsuit are also available under certain circumstances.
Defenses
If you or your business are the subject of a claim under Chapter 93A there are ways to defend your case and alleviate possible damages against you. While each situation is unique, some common examples are instructive.
The first step in defending against Chapter 93A claims is to prevent them from occurring in the first place. Consultation with an experienced attorney allows your business to actively look for possible liabilities and enact business policies that help to prevent them.
A statute of limitations is the date by which a plaintiff must file their action or the suit may be dismissed. The statute of limitations for Chapter 93A claims is four (4) years from the date of the alleged injury or deceptive act which gave rise to the lawsuit. If a plaintiff files their claims after the limitations date has run the case against your business can be dismissed.
Consumer plaintiffs are required to file a demand letter at least thirty (30) days before filing suit. If a plaintiff files suit without a demand letter or files the suit prematurely, the case may be dismissed. Further, the demand letter has certain requirements that must be met. Failure to comply with those requirements may warrant dismissal of the case. Additionally, if your business responded to a timely demand letter with a reasonable settlement offer which was denied, the plaintiff may be limited to that original offer at the end of litigation.
Simply because a plaintiff alleges you violated the act does not mean that you or your business are liable. Some cases are frivolous and meant to induce a quick settlement or are done without a complete understanding of the law. In many cases, a violation may have occurred, but it was not done willfully or with the knowledge that the particular act violated the law. If that is the case, a plaintiff is unable to collect multiple damages or attorney fees. This protects your business from facing punishment for acts which were not done with unfair or deceptive intent.
JD Molleur Law, PLLC will advise you of your rights, defenses and options available to you in bringing forth or defending against a claim involving the Massachusetts Consumer Protection Statute. Please feel free to call us at (508) 404-8338 or email us at info@jdmolleurlaw.com. You can also contact us after hours 24/7 at (508) 579-8333.
