Ma Bar Essay - 93A

Front 1

Who does 93A help?

Back 1

people injured as a result of unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce

Front 2

What kind of actions are available under 93A?

Back 2

relief available in addition to any relief through tort or contract action; provides public and private remedies

Front 3

What is the jurisdictional requirement for 93A?

Back 3

Must occur "primarily and substantially in Mass."
Factors: where defendant committed deceptive practice/act, where plaintiff received and acted upon deceptive statements or acts, where plaintiff's losses occurred

Front 4

What kinds of transactions are covered by 93A?

Back 4

one party MUST be a business, does not cover completely private transactions not undertaken in the normal course of trade or business

Example covered transactions: landlord-tenant; retailer-buyer; breach of contract actions, breach of implied warranties, racial harassment in business context, product safety actions.

Front 5

What section covers business versus business?

Back 5

Section 11

Front 6

What section covers individual versus business?

Back 6

Section 9

Front 7

When is a demand letter required?

Back 7

For individual versus business (section 9). Must give 30 day demand letter before filing lawsuit. No requirement like this under section 11.

Front 8

What must a demand letter include?

Back 8

1. identity of claimant
2. express reference to 93A or Consumer Protection Act
3. Reasonable description of the unfair or deceptive act/practice and the injury suffered
4. Relief requested
5. expectation of settlement offer within 30 days
6. assertion that multiple damages and attorneys' fees will be pursued if relief is denied

Front 9

What is an unfair and deceptive practice?

Back 9

Conduct that could reasonably be found to have caused a person to act differently from the way they would have otherwise acted

Front 10

What is a person under 93A?

Back 10

natural persons as well as corporations, trusts, partnerships & associations (incorporated or not)

Front 11

Is there a right to a jury trial under 93A?

Back 11

No, but judge may grant one

Front 12

What do you recover under 93A?

Back 12

1. Statutory damages (value of the item). Do not have to prove financial loss under section 9, but DO have to prove it under section 11. Lost income may be recovered where proven though.

2. Double or treble damages if:
-practice was a WILLFUL or KNOWING violation of 93A
-refusal to grant relief was made in bad faith with knowledge or reason to know that the act or practice violated 93A (not where reasonable settlement offered, recovery limited to relief tendered and not multiple damages)

3. Attorneys fees or costs UNLESS settlement offer was timely and reasonable

Front 13

What is the statute of limitations for 93A?

Back 13

4 years but landlord-tenant = 3 years

Front 14

What conduct is held unlawful by 93A?

Back 14

unfair or deceptive acts or practices. For private actions, can be based on FTC decisions & regs, fed courts, AG regs, etc.

For business versus business actions, can be based on state & federal antitrust law. Need to show "a level of rascality that would raise an eyebrow of someone inured to the rough and tumble world of commerce"

Front 15

Can consumer rights be waived under MA law?

Back 15

Generally no unless specifically permitted by the law creating the rights.

Front 16

What are the public remedies under 93A?

Back 16

AG enforcement & investigation. Can impose civil penalties, injunctions, order restitution, etc.

Front 17

Can someone bring a class action under 93A?

Back 17

yes

Front 18

What court do 93A actions generally go to?

Back 18

Superior court.