As originally drafted, Chapter 93A did not contain any private right to sue - only the Attorney General had that power. The state legislature quickly fixed that omission and now individual consumers and businesses can enforce their statutory rights in a private lawsuit.
What Violates The Consumer Protection Law?
What type of business actions violate Chapter 93A? The law does not list them in any definitive fashion but states that "unfair or deceptive practices" are illegal. Well then, what is "unfair" or "deceptive?" Like most legal questions, this one is answered by that age-old adage "it depends." A court's analysis of what is unfair or deceptive will not be limited to merely contract, negligence or breach of warranty claims. Harassment, defamation and invasion of privacy all can fall within the list of illegal actions so long as the conduct happens in the consumer realm. Fraud, deception and unfair methods of competition also violate Chapter 93A. Unfair methods of competition claims must be tied to conduct harming the marketplace as a whole and not just to a single consumer or business.
Certain actions are deemed to be violations of Chapter 93A by their very nature. Under the law, these illegal activities include certain debt collection practices, landlord-tenant actions and sales tactics.
Aside from these detailed violations, the law simply and basically fails to provide specificity about the scope of illegal conduct. While this may frustrate those looking for easy answers, such an approach allows a case-by-case, fluid determination of violations. One commentator has noted that, over time, this may protect "those unexpressed standards of fair dealing which the conscience of the community may progressively develop."
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 does not meet its warranty agreement.
- A business fails to tell you relevant information regarding your product or service or misleads you in any way.
- 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.
These are some classic examples. Many other scenarios may also implicate Chapter 93A.
Are There Any Differences Between The Rights Of Individuals And Businesses?
Yes. The law protects "any person who is injured." However, the rules differ under the law's provisions for individuals and businesses.
Section 9 - Rules for Individual Claimants
As a general matter, a consumer suing under section 9 of the law must demonstrate the following to prove the claim:
- That the consumer sent a detailed 30-day demand letter (see 30-Day Demand Letter guide available by calling 888-283-3757 or go to it on the web;
- 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 or property, real or personal" to that consumer.
Generally, a court can award a consumer plaintiff who proves the above compensatory or actual damages. Multiple (double or treble) damages are also available 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 his acts violated Chapter 93A. An individual consumer can also collect reasonable attorney's fees and costs incurred in the lawsuit under certain circumstances detailed in Chapter 93A, § 9(4).
Section 11 - Rules for Business Claimants
Generally, a business suing another business under section 11 of 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 engaged in an "unfair method of competition" or 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 or property, real or personal, for money damages to issue; or
- That these actions "may have the effect of causing such loss" to that business plaintiff for injunctive relief.
Generally, a court can award a business plaintiff who proves the above compensatory or actual damages. Multiple (double or treble) 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.
Questions? Help Is Available!
A full copy of Chapter 93A is available online at www.mass.gov/legis/laws/mgl.
More detailed legal advice may be helpful. Free legal resources exist throughout
Massachusetts. Here are some telephone numbers if you need legal advice:
Massachusetts Bar Dial-a-Lawyer
Legal Advocacy and Resource Center
Western MA Volunteer Lawyers Service
Home Improvement, Landlords' Rights and Responsibilities, Lemon Aid Law, Managing Credit and Debt, New & Leased Car Lemon Law, Shopping Rights, Small Claims Court, Tenants' Rights and Responsibilities, 30-Day Demand Letter, Used Vehicle Warranty Law
Auto Repair Rights, Credit Card Secrets, Making Health Clubs Work Out for You, Stopping Junk Mail, Calls, and E-mail, Surviving Financial Identity Theft, On-line Auctions
617-973-8787 or Toll Free in MA 1-888-283-3757
On-line Resource Center:
This publication provides general information about Massachusetts consumer issues and procedures. It is not designed to address all questions in detail and consumers are encouraged to seek further guidance by contacting the agency directly.