Massachusetts General Law 93A, titled the Consumer Protection Trade Practices Regulation, is designed to protect those consumers who might not otherwise be aware of their legal rights. Mass. General Law 93A. As originally written, 93A did not create a private right to sue, an issue the legislature quickly addressed, and now both consumers and businesses can use 93A as a basis for asserting their rights through a lawsuit at law. private. Unlike other states, Massachusetts’ consumer protection statute provides an explicit, rather than implicit, right to sue businesses that they feel have been the victim of a deceptive or unfair act. It’s often easy to spot a consumer protection issue with standard companies, such as: bait-and-switch advertising, failure to disclose defects, price fixing, faulty warranty claims, and non-negotiated return/refund policies. It becomes much more difficult to determine when a consumer protection claim based on Mass. General Law 93A exists when the business involved is solely engaged in electronic commerce, and especially when that business is not located within the state.

When evaluating a potential consumer protection claim, it is necessary to keep in mind that the required elements are different for a business and a consumer. A consumer must follow certain substantive and procedural requirements outlined in section 9 of the act. Among other items, Section 9 requires a 30-day demand letter, a demonstration that you are in fact a consumer, an unfair or deceptive practice, and a demonstration of damages.

Businesses, especially online businesses, differ substantially in their required elements. Section 11 sets out the requirements for a 93A business claim and requires a business to show:

1. What are a “business”? [involved in the conduct of any trade or commerce];
2. That the defendant engaged in an “unfair method of competition” or that the defendant’s actions were “unfair” or “deceptive”;
3. That these actions occurred primarily and substantially within Massachusetts (defendant bears the burden of rebutting this presumption as a defense); and
4. That these actions resulted in a loss for the claimant business of money or property, real or personal, for damages in money to be issued; gold
5. That these actions “may have the effect of causing such loss of money or property.”

Mass. General Law 93A

Due to the openness of the Internet and the anonymity involved, it can be extremely difficult to prove that a certain method was unfair or misleading. More difficult, especially in the context of an online business, is to prove that a certain act has the effect of causing harm or loss. Because online transactions vary in quantity and because the market is continually expanding, it can be extremely difficult to prove actual loss or even the possibility of loss. Since each element must be present before a claim is filed, the prudent attorney will investigate the facts of the case before initiating a 93A claim. Without the elements properly alleged, most judges will dismiss the case at the first possible opportunity.

Additionally, online businesses present unique jurisdictional issues that may confuse the use of 93A for consumer protection purposes. For there to be any hope of applying 93A to an online business, the “unfair or deceptive act” must have occurred primarily or substantially within the Commonwealth of Massachusetts. When neither the deception/unfair act nor the damage occurs in MA, a consumer protection claim based on 93A will be barred, even if the victim is a Massachusetts resident or business. In the recent Massachusetts Superior Court case of fillmore v. Leasecomm Corp.The judge dismissed a consumer protection lawsuit filed by a Massachusetts company against a California company because the allegedly deceptive sales tactics and unfair contracts took place in California. fillmore v. leasingcomm corporation, 18 Mass. L.Rptr. 560, 2004 WL 3091642 (Mass. Super. Ct. Nov. 15, 2004). In fill more, the plaintiff’s allegations did not pass the ‘center of gravity’ test applied for jurisdictional purposes and therefore the claim was dismissed. When deciding whether or not to file a consumer protection claim in Massachusetts, it is best to first look at the act, damage, and jurisdiction. The more that occurred within the jurisdiction of Massachusetts, the more likely it is that the claim will be allowed to proceed. However, Massachusetts courts find in favor of Massachusetts businesses when all elements, including jurisdictional ones, are met. If a contract was to be performed in Massachusetts and the damages occurred in Massachusetts, then the jurisdictional element will be met and the court will find in favor of the plaintiff, as the Massachusetts appellate court did in Auto Shine Car Wash Sys. v. Nice ‘n Clean Car Wash, Inc. In Auto Shine, the parties frequently met in Massachusetts and the misrepresentation originated in Massachusetts. The court found in favor of the plaintiff for double damages, as there was a willful and knowing violation of the Mass. general Laws cap. 93A 58 Mass. application. 685 Court (Massachusetts Court of Appeals 2003).

Filing a consumer protection claim presents a substantially higher level of evidence and venue requirements when your client is a business. Beware of the consequences and potential loss of time you may spend filing a claim without meeting all the elements. Just because Massachusetts provides an express right for businesses to bring claims doesn’t mean judges are willing to overlook even the smallest discrepancies in pleading requirements.