Consumer Protection - Chapter 93A

Question 1

Define the scope of Ch. 93A

Answer 1

The MA Consumer Protection Act (Ch. 93A) provides public and private remedies to people injured as a result of unfair methods of competition and unfair or deceptive trade acts or practices in the conduct of any trade or commerce.

Question 2

How may one obtain relief under Ch. 93A?

Answer 2

Through a torts/contracts/property action.

Question 3

For a business to be sued in MA under Ch. 93A, where must the transaction occur?

Answer 3

Primarily and substantially in MA.

Consider:
Where D did the act;
Where P received and acted upon deceptive statements;
Where P’s losses occurred.

Question 4

What actions commonly give rise to Ch. 93A issues?

Answer 4

Landlord/Tenant
Contractor/Homeowner
Auto-dealer/Buyer

One party must be a business.

Question 5

What is not covered by Ch. 93A?

Answer 5

Completely private business transactions and those not undertaken in the normal course of trade or business.

e.g. employer/employee
individual home buyer/individual seller.
inter-partnership disputes

Question 6

Under what section does one bring a business to business suit? What about individual to business?

Answer 6

B to B = Section 11

I to B = Section 9

Question 7

If brought under section 9, what additional step is required in Ch. 93A litigation.

Answer 7

30 day demand letter before filing. If this is not sent, the action is dismissed.

Letter includes:

1. Identify of claimant.
2. Reference to Ch. 93A.
3. Reasonable description of the unfair or deceptive act and injuries suffered.
4. Relief requested.
5. Expectation of settlement offer within 30 days.
6. Assertion that multiple damages and attorney’s fees will be pursued if relief is denied.

Question 8

Define “unfair and deceptive practices”.

Answer 8

Conduct that could reasonably be found to have caused a person to act differently from the way he or she would otherwise have acted.

Question 9

How does Ch. 93A define “person”?

Answer 9

Includes corporations, trusts, partnerships, corporations, and unincorporated associations.

Question 10

Jury trials in Ch. 93A suits?

Answer 10

No right to a jury trial but may request one.

Question 11

How does the burden of proof regarding damages shift depending on whether a Ch. 93A suit is filed in section 9 versus section 11.

Answer 11

Under section 9, a plaintiff does not need to prove financial loss, just proof that a business’ actions cause her to suffer “injury” is sufficient.

Injury means the invasion of any legally protected interest.

That being said, lost income may be recovered if proven.

Question 12

Under what circumstances may P recover double or treble damages?

Answer 12

The practice was willful or a knowing violation of Ch. 93A or refusal to grant relief was made in bad faith or with knowledge or reason to know of a violation.

However, if court finds that D makes a reasonable settlement offer, the recovery is limited to the relief tendered and no multiple damages will be awarded.

Double and treble damages will not attach if P has died.

Question 13

Under what circumstances will attorney’s fees and costs be awarded in a Ch. 93A case?

Answer 13

In all cases unless settlement offer was timely and reasonable.

Question 14

What is the SoL of a Ch. 93A case?

Answer 14

4 years.

Note***Other actions to which 93A actions may attach will likely have a shorter SoL.

Question 15

In a consumer protection claim, an injured consumer may recover damages under:

A Consumer protection law only.
B Consumer protection and tort law.
C Consumer protection, contract, and tort law.
D Consumer protection or contract and tort law.

Answer 15

C Consumer protection, contract, and tort law.

A consumer may recover under consumer protection, tort, and contract law. Consumer protection law works in concert with other areas of law. It does not eliminate damages from other causes of action. In this case, all three causes of action can exist together in a consumer protection claim.

Question 16

Which legal action cannot fall under the consumer protection law?

A Product safety actions.
B Violations of Federal Truth in Lending Act.
C A consumer’s defamation claim.
D A breach of contract action by an employee against her employer.

Answer 16

D A breach of contract action by an employee against her employer.

A breach of contract action by an employee against her employer cannot fall under the consumer protection statute. The consumer protection statute only covers actions taken in the ordinary course of business. The consumer protection statute does not cover actions that are outside the commercial consumer relationship, such as claims by employees against their employers regarding the employer/employee relationship.

Question 17

Trade is defined as the ____________________​, ____________________​, or ____________________ services, property, security, or other things of value.

A Advertisement; offering for sale; sale of.
B Offer; acceptance; consideration for.
C Creation; transport; sale of.
D Selling; bartering; transfer of.

Answer 17

A Advertisement; offering for sale; sale of.

Question 18

Which of the following transactions is excluded from coverage under the consumer protection statute?

A Buyer hires a real estate broker to help purchase a house.
B Client hires an attorney for a civil case.
C Homeowner hires a contractor to renovate a house.
D Buyer buys a house from the former resident homeowner.

Answer 18

D Buyer buys a house from the former resident homeowner.

A home purchase from the former resident homeowner is not covered under consumer protection. Consumer protection only applies if the seller in the transaction is a commercial seller. In the case of a resident homeowner, the seller is a noncommercial entity. Consumer protection cannot apply.

Question 19

A deceptive practice must have what effect to be actionable?

Answer 19

Must cause a consumer to do what he would not otherwise do.

Question 20

Which action is covered by specific consumer protection regulations?

A Improperly distributing a trustee’s assets.
B Renting out an unclean hotel room for the night.
C Price gouging on gas due to a local monopoly.
D Misrepresenting used goods as new.

Answer 20

D Misrepresenting used goods as new.

Question 21

What does the court require before it will consider a case between two businesspersons?

Answer 21

Exhaustion of administrative remedies.

Question 22

When can a businessperson maintain a consumer protection action despite the absence of an actual loss of money or property?

Answer 22

When the plaintiff only seeks an injunction.

If a business claimant only seeks an injunction, there is no need to establish an actual loss. Unlike consumers, business claimants are not entitled to nominal damages. In most cases between businesspeople, an actual loss is required. However, the court will consider a case if the claimant seeks an injunction to prevent a loss.

Question 23

In a case involving sophisticated business entities engaged in an arm’s length transaction, what must the plaintiff show to establish a violation of consumer protection law?

Answer 23

Unfair or deceptive practices and a high level of “rascality.”