WHAT ARE UNFAIR AND DECEPTIVE TRADE PRACTICES BETWEEN BUSINESS UNDER G.L. 93A §11 AND WHEN DO DOUBLE OR TRIPLE DAMAGES ARISE?

What are the common disputes between businesses that may bring about claims under G.L. 93A for unfair and deceptive trade practices?
Massachusetts General Laws Chapter 93A is known as the "Consumer Protection Act". It regulates conduct between consumers and businesses under § 9, but also has far reaching remedies for resolving disputes between businesses in § 11. This law prohibits unfair and deceptive trade practices. Disputes about contracts or unfair conduct in a trade or business may come under its provisions. Common law fraud or misrepresentation, such as misstatements of fact in the negotiations leading to a contract clearly come under the law’s prohibitions. Mere puffing does not. The conduct between businesses to come under the Commonwealth’s statute must involve transaction "in the conduct of any trade or commerce" and take place primarily and substantially within Massachusetts. There must be a "loss of money or property." Unlike the Consumer provisions of § 9, a 30 day demand letter is not a requirement before commencing a law suit. If there has been no loss of money or property, an injunction - a court order prohibiting such conduct, may be granted if the unlawful actions may have the effect of causing such loss of money or property.

When do the remedies of double or triple damages and/or attorney’s fees apply in a Chapter 93A case?
It is such a powerful weapon in the civil litigator’s arsenal because it provides in appropriate cases where there has been a knowing and willful violation that double or triple damages apply. Even in cases where only single damages apply, if there has been a violation, the complaining party may be awarded payment of its attorney’s fees by the defending party. While not all contract disputes come within its ambit, particularly egregious conduct such as refusal to meet contractual obligations without a sound basis or failure to pay a bill when it is plainly due can result in liability under Chapter 93A. An answer to a 93A complaint may make an offer of single damages, which if the court finds reasonable at trial, may prevent double or triple damages.

What are some common business disputes that do not fall under the business-to-business consumer protection provisions of Chapter 93A?
As a first test, claims under 93A must be between businesses or between a business and an individual. Intra business disputes, such as between shareholders or partners or disputes about employment contracts usually do not fall under the protections of this law. On the other hand, fraudulent conduct, untruthful statements, made to get a party to enter into a contract may well provide the basis for a Chapter 93A claim. I recently tried a case for a client who had been provided false overstatements of the income from a commercial building, including fraudulently created leases for non-existent tenants to induce him to purchase it. That conduct resulted in findings of double damages for violations of Ch. 93A.

Does failure to make payments due under a contract constitute loss of money or property so as to come under Ch. 93A?
In a recent federal case, Arthur D. Little, Inc. was faced with a failure of a Korean company to pay bills for services that were rendered over a lengthy period of time. The court determined that when one business engages in unfair and deceptive practices towards another and the harm consists of a delay in payments owed (and the usual accompanying expenses) there is a "loss of money or property" establishing a violation under Ch. 93A, § 11. The high costs imposed are that the damages awarded are not those attributed solely to the nonpayment but rather may be multiples of the amount of payments originally owed. When the court made findings that the defendant company had ordered services without intent to pay for them and had given no reasons for its non-payment and was attempting merely to string-out ADL in an effort to force a compromise or otherwise delay payment, liability under Chapter 93A was clear and costly. The Court doubled the underlying contract damages and awarded attorney’s fees to ADL in excess of that figure.

WHAT MAKES UP THE ANATOMY OF A CIVIL LAW SUIT?

What is typically found in the document that begins a lawsuit, a complaint?
A lawsuit begins with the filing of a complaint by the plaintiff and the service of the complaint on the defendant with a summons requiring it to answer the allegations. The complaint states the names and identities of the parties and often tells the story of the dispute in paragraphs that make up a statement of factual allegations. The complaint should include all claims that arise from the underlying transactions and arrange each legal theory under a separate count. Each count often incorporates the factual allegations, and then states the legal wrongs and remedies that come under each theory. If there are contracts or other documents that are part of the underlying transactions, copies may be included and referred to as exhibits. In appropriate cases, the complaint should make a demand for a jury trial. Under ethical and court rules, an attorney has a duty to independently investigate the basis of the complaint to determine that it is not frivolous or brought in bad faith.

What does the answer filed by the defendant to the complaint contain?
The defendant must file an answer to the complaint or face a default judgment. The answer responds to each of the numbered paragraphs in the complaint, stating whether they are admitted or denied or whether the party has insufficient information to respond and therefore denies the same. It is obligatory to file counterclaims arising from the underlying circumstances. Certain kinds of defenses known as affirmative defenses must be raised in the answer or they are waived. Among the defenses may be a claim that the claims in the complaint are frivolous and should be dismissed and attorney’s fees awarded for the cost of responding to a frivolous complaint. In cases of a response to a Chapter 93A complaint, discussed elsewhere, it may be advisable to make a reasonable response and an offer of settlement to prevent double or triple damages and liability for the other party’s attorney’s fees.

What are the common types of discovery used to learn more about the claims and factual issues underlying the lawsuit and to obtain proof?
Soon after the lawsuit has begun, attorneys frequently commence the process of formal discovery of the underlying facts. Three common tools used in discovery are (1) requests for production of documents or things, (2) depositions under oath of parties and witnesses, and (3) requests for admissions of fact. Requests for production of documents and things require the responding party to produce all of the requested documents and items relevant to the lawsuit for inspection and copying. Depositions of witnesses and parties occur when an attorney serves a notice of deposition on a party or a witness, requiring attendance, usually at the attorney’s office, of his or her deposition at which the attorney questions the witness about the case. The witness is under oath and testimony is recorded by a court stenographer or sometimes by videotape. The deposition provides not only factual material for the prosecution or defense of a lawsuit, but also preserves testimony should the witness later be unavailable. Each party besides the calling party has the right to cross-examine. Depositions allow attorneys for the parties to weigh the credibility and demeanor of the witnesses and to determine how strong they may be as a witness at trial. Witness may have their own counsel present. Often cases settle after depositions have been taken since at that point the parties have attended the depositions with their attorneys and have a fairly good idea as to the strengths and weaknesses of the lawsuit. Finally, it may make sense to ask the opposing party to admit to facts and the identity of documents to ease their presentation at trial. These are numbered statements of fact or of the identity and genuineness of documents to which a party must either admit or deny, and if admitted, these are established for purposes of trial.

What are written interrogatories to parties and how do they assist in the discovery of the facts of a case?
Another tool that is used in the discovery process is the service upon other parties of written interrogatories to be answered under oath by the party or an agent, officer, or employee of the party. Like other discovery, interrogatories often seek to identify the factual basis of a party’s claims or defenses. They may also inquire as to the facts known and opinions held by experts. Thus, a party may find out what experts the other party intends to call as witnesses at trial, what is the subject matter on which the expert is expected to testify, and the substance of facts and opinions relied upon
How does an attorney conduct a trial and use the results of discovery?
A trial, as is commonly known from TV and film depictions, involves first opening statements of counsel for the parties, then the presentation of the cases of each of the parties, and finally closing arguments. A good trial attorney gives considerable thought to the order in which he calls witnesses and how to present evidence in an interesting and compelling way to the trier of facts, whether a judge or the jury, or sometimes with some claims tried by the judge and others decided by the jury. Each witness is called and examined under oath by the calling party and then is subject to cross-examination by the opposing party which may seek to clarify or undermine the witness’s testimony. Leading questions, questions which suggest the answer, may be used on cross examination and can be a very effective tool. If a witness contradicts testimony in a deposition, the testimony in the deposition may be used to contradict the witness on the stand. If a witness is unavailable at trial, the deposition testimony may be used. The rules of evidence govern the admission of evidence, and the attorney must be familiar with what constitutes hearsay testimony and exceptions to it as well as numerous other rules of evidence and procedure. Objections at trial must be timely made or waived.

WHY ARE STATUTE OF LIMITATIONS, THE DEADLINES FOR BRINGING LAWSUITS, SO IMPORTANT AND WHEN ARE THEY EXTENDED?

Statutes of Limitations, as the deadlines for bringing lawsuits, must be observed unless there are some circumstances suspending the deadline. Various claims have different deadlines for bringing a claim in court or in the agency where the claim may have to be filed first. The deadline runs from the time the claim or cause of action “accrues.” This generally means the earliest time from which the person having the claim knew or should have known that he or she had a claim. In one case involving a breach of contract (6 years), fraud (3 years) and violations of Ch. 93A (the consumer Protection Act, 4 years), the Court stated that “ We conclude that the triggering event cannot be pinpointed as matter of law, but poses a question of fact as to when a reasonable policy holder should have realized from the available information that the policy was not performing as allegedly promised and that the so-called vanishing premiums were a fiction. ‘In most instances, the question when a plaintiff knew or should have known of its cause of action is one of fact that will be decided by the trier of fact.’”

Until recently, claims for employment discrimination had to be filed with the Massachusetts Commission Against Discrimination within six months of the last act constituting discrimination. Legislation was passed in 2002 increasing the statute of limitations to 300 days. Most tort claims such as fraud, personal injuries such as medical or legal malpractice, assault, injuries caused by a fall or car accident, libel or defamation have a deadline of 3 years. Claims against the executor of an estate have to be brought within a year of the appointment of the executor or other fiduciary such as a trustee. Breaches of contract must be brought within 6 years unless the contract has some other term. As indicated above, the Consumer Protection Act requires the actions be brought within 4 years. There are some very short appeal periods. An appeal from an Order of Condition of a local Conservation Commission under the Wetlands Protection Act to the Department of Environmental Protection must be taken within 10 days. An appeal from a decision of a City or Town’s Zoning Board of Appeal or other permit-granting authority regarding a variance or special permit must be appealed within 21 days.

There are circumstances that suspend or toll the statute of limitations. Dishonest or fraudulent concealment of the right to sue by the wrongdoer will suspend the deadline an amount of time equal to the period of concealment. Disability of the victim or the victim being underage will hold off the deadline until that status ends. There are other circumstances that may impact the determination such as lack of circumstances for discovery of the right to sue. Thus, whenever a question arises of whether the deadline has passed, a lawyer should be consulted. Never should it be assumed that circumstances cannot be found that may excuse the missing of a deadline. A lawyer’s having missed the deadline is one of the most common grounds for lawyer malpractice claims.

Civil Litigation

WHAT ARE UNFAIR AND DECEPTIVE TRADE PRACTICES BETWEEN BUSINESS UNDER G.L. 93A §11 AND WHEN DO DOUBLE OR TRIPLE DAMAGES ARISE?

WHAT MAKES UP THE ANATOMY OF A CIVIL LAW SUIT?

WHY ARE STATUTE OF LIMITATIONS, THE DEADLINES FOR BRINGING LAWSUITS, SO IMPORTANT AND WHEN ARE THEY EXTENDED?