A recent Massachusetts Superior Court case, Germinara v. Bakis, et al. (decided May 13, 2019), involved a plaintiff borrower who obtained a commercial loan in order to fund the purchase and operation of a gas station/convenience store, which was owned by an LLC formed by the plaintiff. The loan was secured by both the gas station property and contents and a second property that was owned by the borrower in trust. Further, the lender and the funder of the loan were granted mortgages and deeds-in-lieu of foreclosure to secure the interest on both properties owned by the borrower. When the plaintiff defaulted on the loan, the lender and the funder took title to the two properties by exercising the deeds-in-lieu of foreclosure. They sold both properties and, additionally, seized some items of the borrower's personal property that had been located at the properties, such as trucks and vehicles. Some of these items were owned by the plaintiff in his individual capacity, and not by the LLC that held title to the gas station; however, the lender held other security obligations which included the vehicles.
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.
Mass. Gen. Laws ch. 93A § 11 allows corporate plaintiffs to recover up to treble damages and attorneys fees from defendants who engage in unfair or deceptive trade practices. To invoke this powerful statute, however, the plaintiff must show that "the center of gravity of the circumstances that give rise to the claim is primarily and substantially within the Commonwealth." Kuwaiti Danish Comput. Co. v. Digital Equip. Corp., 438 Mass. 459, 473 (2003). A court will determine whether a plaintiff has done so "after making findings of fact, and after considering those findings in the context of the entire [Chapter 93A] § 11 claim." Id.
The Massachusetts Consumer Protection Act, General Laws Chapter 93A, § 2, prohibits "unfair or deceptive acts or practices in the conduct of trade or commerce." Since Chapter 93A was enacted in 1967, the Commonwealth's courts have continued to define the scope and substance of the conduct that the law prohibits.
The Land Court Department of the Massachusetts Trial Court exists, in part, because issues involving title, easements, and the various other rights in property are complex enough that judges with special expertise are preferable.
As a foreign attorney representing a party whose business dispute is governed by Massachusetts law, you might want to learn about the rights available under the consumer protection statute in Massachusetts, M.G.L. c. 93A. Massachusetts General Laws c. 93A, § 2 (a) makes unlawful any "[u]nfair or deceptive acts or practices in the conduct of any trade or commerce." This prohibition is "extended to those engaged in trade or commerce in business transactions with others similarly engaged" by M.G.L. c. 93A, § 11.
Where a plaintiff has been harmed by a company, and the principal of that company exercises "pervasive control" over it, a court may "disregard" the corporate form allowing the plaintiff to recover directly from the principal. What if the corporate principal has died? Can a plaintiff still pursue claims under a so-called "veil piercing" theory against the principal's estate? In Kraft Power Corporation v. Merrill, the Massachusetts Supreme Judicial Court concluded that certain claims survive the death of the corporate principal, and others do not. The Court also held for the first time that a plaintiff cannot recover multiple damages for unfair and deceptive business practices under M.G.L. c. 93A where the defendant has died.
Your company has been wronged. A vendor failed to deliver as promised causing lost sales. A customer has failed to pay for services rendered. A construction contractor's shoddy workmanship resulted in leaks and damage in your company warehouse. The defendant will not pay up voluntarily, so your business has decided to engage a law firm to file a lawsuit to recover the damages. Can your company recover its attorney's fees and other litigation costs?