What section 11 does
Massachusetts General Laws chapter 93A prohibits unfair or deceptive acts in trade or commerce. Section 11 gives a business that loses money or property because of another business's unfair or deceptive conduct its own right to sue. If the claim succeeds:
- The plaintiff recovers its actual damages.
- The court awards reasonable attorney's fees and costs.
- If the violation was willful or knowing, the court awards between double and treble damages.
Fee-shifting changes the economics of the case. It's often the difference between a claim that's worth bringing and one that isn't, and it changes how seriously the other side takes settlement.
A breach isn't enough on its own
Massachusetts courts have said many times that a breach of contract, even an intentional one, isn't by itself an unfair act. Something more is required. Conduct that courts have found crosses the line includes:
- Withholding payment that's clearly owed to force a concession the payor isn't entitled to
- Making promises to keep goods or services coming while never intending to pay
- Inventing pretextual defects to avoid paying for work that was fine
- Misrepresenting facts to get you to sign, extend credit, or keep performing
- Taking a contract's benefits while engineering a way not to pay for them
The test is fact-specific, and courts apply a higher standard of unfairness between sophisticated businesses than they do for consumers. I'm candid about which side of the line I think a case falls on. Pleading 93A where it doesn't belong costs credibility with the judge and rarely pays off.
Section 11 compared with section 9
Consumer claims under section 9 require a written demand letter at least 30 days before suit. Business claims under section 11 don't. A defendant can still limit its exposure to multiple damages and fees by making a reasonable written settlement offer, which is why the timing and content of early settlement talks matter in a 93A case.
Individuals sometimes have 93A claims too, for example against a contractor or a seller. If you were acting as a consumer rather than a business, the section 9 rules apply, including the demand letter.
Where 93A cases are heard
For a section 11 claim, the unfair conduct has to have occurred primarily and substantially in Massachusetts. These claims are often decided by the judge rather than the jury, sometimes alongside a jury's verdict on the contract claim. Many significant 93A cases are heard in the Superior Court's Business Litigation Session.
Deadline. Chapter 93A claims generally have a four-year limitations period (G.L. c. 260, § 5A), shorter than the six years for contract claims. Don't let a contract timeline lull you into missing the 93A one.
Contingency and 93A
Because 93A awards include attorney's fees, a fee agreement in a 93A case needs to say how a court fee award and a contingency percentage interact. I explain that up front and put it in writing. How my fees work.
If you think the way you were treated was more than a broken promise, send me the facts or call (617) 230-2779.