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Responding to Consumer Demand Letters Under the Massachusetts Consumer Protection Act

The Massachusetts Consumer Protection Act (Chapter 93A, Section 9) prohibits a business from engaging in unfair or deceptive acts or practices. Chapter 93A litigation usually is time consuming, expensive, and exposes a company to mandatory multiple damages (if the act or practice was a knowing and willful violation of Chapter 93A) and attorneys’ fees. These provisions provide a consumer’s counsel significant leverage when litigating and attempting to settle Chapter 93A claims – particularly when brought in a class-action setting. Chapter 93A, however, affords a business an opportunity to gain that leverage back and limit exposure to the statute’s mandatory multiple damages and fee shifting provisions as well as foster more meaningful settlement discussions, if appropriate. Taking advantage of this opportunity, which occurs usually only once and before the litigation begins, can be beneficial for a company.    

Specifically, a consumer’s claims most often start with a Chapter 93A demand letter, which the consumer must send before initiating any litigation.  The demand letter must identify the claimant, describe the alleged unfair or deceptive acts and injury suffered, and give a company 30 days to provide a written response and tender a reasonable settlement, if appropriate.   A company’s opportunity to respond should not be taken lightly because, among other things, a company has an affirmative obligation to investigate the facts and law and determine whether the company should tender a reasonable settlement in response to the demand letter. Failure to investigate may evidence bad faith, which can expose the company to multiple Chapter 93A liability (even if the underlying unfair or deceptive practice was not knowing or willful).

Also, if a company receiving a demand letter tenders a settlement that is later found to be reasonable in relation to the injury actually suffered, Chapter 93A requires the court to limit the consumer’s recovery to the relief tendered in the response. Also, a reasonable settlement offer will limit a prevailing consumer’s recovery of attorneys’ fees to only those fees incurred prior to rejecting the settlement tender. Most times, this would prevent a consumer from recovering attorneys’ fees from the filing of the complaint through trial, which likely will be the period in which most of the fees will be incurred in the litigation. This statutory limitation holds true even if the consumer ultimately (i) prevails on summary judgment or at trial and (ii) proves the company engaged in knowing or willful unfair or deceptive acts or practices.

If the consumer’s demand letter contains a demand for relief on behalf of a class of similarly situated consumers, a company arguably may not be obligated to tender a settlement to the putative class until the class has been certified.1  In turn, after a class is certified, a company would be able to make a reasonable settlement offer to the certified class to obtain the damages and fee-limiting benefits of Chapter 93A.  However, where a putative class and damages are reasonably ascertainable at the time of the initial demand, there exists case law indicating that a company should make a settlement offer to redress the injury of the putative class with the company’s response to obtain the damages and fees limitations.2

Consequently, the importance of a proper investigation and response to a Chapter 93A demand letter cannot be overstated. A company should have procedures in place to investigate the claims in a demand letter and determine whether or not it will make a settlement offer in response to the letter with the 30-day statutory response period. These procedures can be incorporated easily into a company’s existing litigation response and readiness protocol. Ultimately, a company that conducts a thorough investigation will likely be in a better position to assess whether it should make a settlement offer in response to a demand letter and take full advantage of the pre-litigation opportunity to limit damages and fees afforded by Chapter 93A.

See Richards v. Arteva Specialties S.A.R.L., 66 Mass. App. Ct. 726, 733 (2006); Meaney v. OneBeacon Ins. Group, LLC, No. 07-1294-BLS2, 2009 WL 884613, at *6–7 (Mass. Super. Ct. Feb. 25, 2009).  Cf. Suk Jae Chang v. Wozo LLC, No. 11–10245–DJC, 2012 WL 1067643, at *8 (D. Mass. Mar. 28, 2012) (holding defendant’s settlement offer to only the lead plaintiff did not deprive the putative class of standing in Chapter 93A suit because it “was clearly insufficient to remedy the [alleged] classwide injury”).

See Richards, 66 Mass. App. Ct. at 725 n.9; Hermida v. Archstone, 950 F. Supp. 2d 298, 310 (D. Mass. 2013).

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About this Author

David Thomas, Greenberg Traurig Law Firm, Boston, Labor and Employment Litigation Attorney
Shareholder

David Thomas is a litigation, trial, and appellate attorney focusing on defending companies against unfair or deceptive business practices claims in individual and putative class action settings. Among other things, David represents (1) manufacturers and retailers facing false advertising claims arising out of alleged violations of federal and state consumer protection statutes, including the Federal Trade Commission Act and "little FTC Acts" like Massachusetts General Laws Chapter 93A – the Massachusetts Consumer Protection Act, and (2) lenders, mortgage brokers and...

617-310-6040
James Ponsetto, Greenberg Traurig Law Firm, Boston, Bankruptcy Litigation Attorney
Of Counsel

James P. Ponsetto is a trial attorney with broad experience involving complex business and bankruptcy-related litigation. Jim has served as counsel for corporations and individuals in federal and state courts, before arbitration panels, and in connection with mediation proceedings. He litigates various types of civil disputes, including breach of contract claims, securities claims, class action suits, consumer protection claims, intellectual property matters, lender liability claims (including Truth-in-Lending disputes and claims arising in connection with residential foreclosures), construction disputes, employment disputes (management side), tax disputes, title insurance disputes and related matters. His bankruptcy litigation experience involves adversary proceedings and contested matters concerning multiple areas, including fraudulent conveyance actions (including preference actions), claim disputes, motions to dismiss Chapter 11 proceedings, and confirmation disputes.

Concentrations

  • Business disputes 

  • Bankruptcy litigation 

  • Class action litigation

  • Consumer protection and consumer rights litigation, including FTC Act and GL. c. 93A disputes

  • Contract disputes 

  • Intellectual property disputes 

  • Employment claims, including those involving non-compete and non-solicitation issues

  • Lender liability, including Truth-in-Lending issues and issues arising in residential foreclosures 

  • Commercial landlord-tenant disputes 

  • Tax disputes, including Appellate Tax Board matters

  • Securities arbitration

  • Title insurance disputes

  • E-Discovery matters

  • Appellate work

617-310-6073
Michael Pastore, Greenberg Traurig Law Firm, Boston, Corporate Law, Finance and Litigation Law Attorney
Associate

Michael E. Pastore focuses his practice on financial services litigation, regulatory matters and consumer-related defense. Michael has represented banking clients and large financial institutions against alleged violations of various State and Federal Laws, including Mass General Laws Ch. 93A. Michael has also assisted companies in conducting internal investigations involving potential employee misconduct, as well as involving inquiries by the Securities and Exchange Commission, U.S. Department of Justice, FINRA, and various States’ Attorneys General.

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