Massachusetts

Pages275-297
275
CHAPTER 23
MASSACHUSETTS
A. Scope of the Statute and Elements of a Cause of Action
The Massachusetts Consumer Protection Act,1 also commonly
referred to as “Chapter 93A,” declares unlawful “[u]nfair methods of
competition and unfair or deceptive acts or practices in the conduct of any
trade or commerce.”2 Chapter 93A seeks to ensure that parties conducting
business provide the “proper disclosure of information,”3 and was
designed “to encourage more equitable behavior in the marketplace . . [and
impose] liability on persons seeking to profit from unfair practices.”4 In
addition to “establish[ing] new procedural devices to aid consumers and
others,” Chapter 93A and “create[es] new substantive rights by making
conduct unlawful which was not unlawful under the common law or any
prior statute.” 5
As originally enacted, Chapter 93A included no private remedy
provisions.6 Although the original act made both unfair methods of
competition and unfair or deceptive acts or practices unlawful, only the
attorney general could enforce the provisions.7 However, “[b]ecause of the
inability of the Division to handle all the complaints it was receiving, it
became clear that private remedies were needed under [Chapter] 93A.”8
There are two types of claims that can be brought under this Chapter
93A. Chapter 93A, § 9 provides a cause of action for any person othe r than
someone who is “engage[d] in the conduct of any trade or commerce.”9 To
state a claim under this section, a plaintiff must allege that 1) the defendant
committed an unfair or deceptive act or practice; 2) this act or practice
1. MASS. GEN. LAWS ch. 93A.
2. MASS. GEN. LAWS ch. 93A, § 2(a).
3. Com. v. DeCotis, 316 N.E.2d 748, 752 (1974).
4. Poznik v. Massachusetts Med. Pro. Ins. Ass'n, 628 N.E.2d 1, 4 (Mass.
1994).
5. Slaney v. Westwood Auto, 322 N.E.2d 768, 772 (Mass. 1975); Kattar v.
Demoulas, 739 N.E.2d 246, 257 (Mass. 2000).
6. Slaney, 322 N.E.2d at 775.
7. Id. at 775-76.
8. Id. at 776.
9. MASS. GEN. LAWS ch. 93A, §§ 9, 11.
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76 State Consumer Protection Law
occurred in the conduct of any trade or commerce; 3) the plaintiff was
injured; and 4) the defendant’s act caused the plaintiff’s injury.10
Chapter 93A, § 11 provides a similar cause of action for persons
“engage[d] in the conduct of any trade or commerce.”11 To state a claim
under this section, a plaintiff must allege that 1) the defendant committed
an unfair or deceptive act or practice or engaged in an unfair method of
competition; 2) this act or practice occurred in the conduct of any trade or
commerce; 3) the plaintiff suffered “loss of money or property, real or
personal”; and 4) the defendant caused the plaintiff’s injury.12 Injunctive
relief is also available if the alleged violation “may have the effect of
causing such loss of money or property.”13 Defendant corporations can
face Chapter 93A liability for acts of other corporations through successor
liability.14
1. Unfair Acts or Practices
Chapter 93A does not define “unfair or deceptive acts or practices.”
Massachusetts courts have held that conduct need not be exceptionally
“immoral, unethical, oppressive, or unscrupulous . . . but need only be
within any recognized or established common law or statutory concept of
unfairness” to be held unfair or deceptive.15
The Massachusetts Supreme Judicial Court has recognized that, by
adopting Chapter 93A, the legislature “creat[ed] ‘new substantive rights’”
that were intended to supplement and not replace traditional tort
remedies.16 Although “common law actions for fraud and deceit are within
the contemplation of an ‘unfair act’ under the statute, it is equally well
10. Rafferty v. Merck & Co., 92 N.E.3d 1205, 1222 (Mass. 2018).
11. MASS. GEN. LAWS ch. 93A § 11.
12. Mass. Biologic Labs. of Univ. of Mass. v. Medimmune, LLC, 65 N.E.3d
31 (Table) (Mass. App. Ct. 2016).
13. MASS. GEN. LAWS Ch. 93A § 11.
14. Milliken & Co. v. Duro Textiles, LLC, 887 N.E.2d 244, 260 (Mass.
2008) (“To the extent that a predecessor corporation engages in unfair or
deceptive acts or practices within the meaning of c. 93A, principles of
successor liability would dictate that legal responsibility for such acts
should pass to the successor corporation.”).
15. Exhibit Source, Inc. v. Wells Ave. Bus. Ctr., 114 N.E.3d 993, 998 (Mass.
App. Ct. 2018) (quoting VMark Software, Inc. v. EMC Corp., 642 N.E.2d
587, 595 (Mass. App. Ct. 1994)).
16. Datacomm Interface, Inc. v. Computerworld, Inc., 489 N.E.2d 185, 197
(Mass. 1986).

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