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Mass. Gen. Laws c. 93A, Section 9 versus Section 11

Massachusetts General Laws Chapter 93A, § 2 ("Chapter 93A") states:  "Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful."  From that simple statement, numerous acts and practices can serve as the basis for a suit alleging a violation of c. 93A.  Under the definitions of Chapter 93A, any person involved in trade or commerce, including corporate persons, can sue and be sued for violating the statute.

Chapter 93A contains two different regimes for relief, depending on whether a claimant is a consumer, in which case suit is brought under Section 9, or an entity engaged in trade or commerce, in which case the plaintiff proceeds under Section 11 (a business-to-business claim).  Both sections permit recovery of actual damages incurred, multiple recovery for knowing or willful violations of the statute, and the award of attorneys' fees to a prevailing claimant.  The two regimes, however, have different requirements for successfully asserting, pursuing, and winning a claim.

Chapter 93A, Section 9 provides a right of action to any person, other than one involved in trade or commerce under Section 11, who has been injured by any method, act or practice declared unlawful by Chapter 93A, Section 2 or certain other statutes.  In order to bring suit under Section 9, a plaintiff must send a written demand for relief, identifying the claimant and reasonably describing the unfair or deceptive act or practice and the injury suffered.  The Chapter 93A demand letter must be sent to each proposed defendant at least thirty days prior to filing suit, although no demand letter is required to assert a claim under the statute by way of counterclaim, cross-claim, or against a prospective defendant that does not have a place of business or assets within Massachusetts.  A prospective defendant has thirty days from the sending of the letter to respond to the demand, and can make a settlement offer in its response.  Should the plaintiff reject the settlement offer, and should a judge later determine that the defendant's offer was reasonable in relation to any actual injury suffered, the court can limit the plaintiff to recovery of that reasonable settlement offer, with no multiple damages or attorneys' fees, even if a defendant's violation of Chapter 93A was willful or knowing.  Importantly, the demand letter is a jurisdictional requirement for filing the lawsuit, and failure to send a demand letter thirty days before filing the suit will result in the dismissal of the claim.

Chapter 93A, Section 11 provides a right of action to any person engaged in trade or commerce who suffers a loss of money or property from another person's use, in trade or commerce, of an unfair method of competition or an unfair or deceptive act or practice.  Unlike Section 9, Section 11 does not require a demand letter prior to initiating suit, but does allow for submission of a written offer of settlement, with defendant's answer instead of in response to the demand letter, that if found reasonable by the court will limit plaintiff to single damages.  Section 11, however, does have a significant requirement not present in Section 9.  While all claims under Chapter 93A must satisfy traditional jurisdiction requirements and choice of law rules, Section 11 goes further and requires that the actions and transactions constituting the unfair or deceptive act or practice must have occurred primarily and substantially within Massachusetts.  If the center of gravity of the defendant's actions and the claims is outside Massachusetts, no Section 11 claim is viable.

While Chapter 93A authorizes recovery, including multiple damages and attorneys' fees, for both consumers under Section 9, and businesses under Section 11, it is important to note that the requirements differ:

Chapter 9 - Consumer plaintiff injured by unfair or deceptive act or practice; demand letter required thirty days before filing suit; no requirement that deceptive acts or practices took place primarily and substantially within Massachusetts.

Chapter 11 - Business plaintiff in trade or commerce suffering loss of money or property due to use of an unfair method of competition or an unfair or deceptive practice; no demand letter required; acts complained of must have occurred primarily and substantially within Massachusetts.

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