Where a party prevails on a Chapter 93A claim, the party should submit a fee application that segregates the fees for the work necessary to prevail on the Chapter 93A claim. That’s the key takeaway from Commonwealth Insurance Partners, LLC, et al. v. Patricia Boucher, et al., a case in which the plaintiffs asserted claims for breach of contract, violation of fiduciary duties, and violation of Chapter 93A.
After prevailing on their claims at trial, the plaintiffs filed an application for attorneys’ fees under Chapter 93A. Judge Ricciuti, sitting in the Business Litigation Session of the Massachusetts Superior Court, found that “the result obtained by Plaintiffs’ counsel under Chapter 93A was substantial and the successful result was achieved by experienced, reputable and capable attorneys.” He ruled that the plaintiffs’ lawyers “merit[ed] an appropriate legal fee.”
After successfully appealing a judgment and obtaining a remand of its Chapter 93A claim to the Massachusetts BLS, the Governo Law Firm moved to admit expert testimony about a “reasonable royalty” measure of damages. Governo had sued six former nonequity partners whom the law firm alleged had misappropriated proprietary databases and electronic files. Deciding Governo’s motion, Judge Salinger ruled that Governo had waived its right to challenge the admission of the damages testimony because Governo had failed to raise the argument on appeal.
Judge Salinger’s decision turned on the procedural history of the case.
Judge Ricciuti ruled that the plaintiff, whose educational-travel trip was cancelled because of the COVID-19 pandemic, stated a viable Chapter 93A claim that the contractual remedy provided by the tour operator improperly limited available regulatory remedies.
In Godines, et al. v. EF Explore America, Inc., the contract permitted the tour operator to cancel the plaintiff’s trip due to an “Extraordinary Event.” There was no dispute that the COVID-19 pandemic was such an event. The contract further provided that, in the event of cancellation, customers would receive a voucher for future travel, less non-refundable fees. But the applicable consumer-protection regulation, 940 CMR 15.06, provides that if a trip is cancelled, a travel company must offer a full refund, a substitution travel service of equal value, or a lower-valued travel service and refund the difference. The contract, in other words, offered “more limited relief,” and the tour operator issued only a partial refund.
In Cabrera v. Auto Max, Carlos Cabrera moved to certify a class of Auto Max vehicle purchasers who did not receive disclosures informing them that their vehicles had suffered structural/frame damage. Auto Max’s alleged failure to provide those disclosures, Cabrera alleged, violated 940 Code Mass. Regs. §§ 3.05(1) and 3.16(2)—and, in turn, G. L. c. 93A.
Judge Kaplan denied the class-certification motion for two main reasons.
After prevailing at trial, Cedar Hill Retreat Center sought sanctions against the plaintiffs under G.L. c. 231, § 6F. That statute authorizes a judge to award a moving party reasonable attorneys’ fees and costs if the judge finds that “all or substantially all of the claims, defenses, setoffs or counterclaims . . . made by any party who was represented by counsel . . . were wholly insubstantial, frivolous and not advanced in good faith.” Judge Salinger denied the motion because he was not convinced that “all or even substantially all of the claims against Cedar Hill were frivolous and not advanced in good faith.”
That is not to say, however, that the court did not find one of the claims “troubling.” Judge Salinger struggled to “discern what good faith basis the [Reed] Foundation had for alleging that Cedar Hill’s challenged activities were in trade or commerce and therefore subject to c. 93A, or that those activities constitute unfair or deceptive acts or practices and would have violated c. 93A if the statute applied in the first place.” But even if he assumed that the 93A claim was wholly insubstantial and not asserted in good faith, that was not enough, according to Judge Salinger, to impose § 6F sanctions. Cedar Hill did not show, Judge Salinger wrote, “that all or substantially all of the Reed Foundation’s claims . . . were both frivolous and not asserted in good faith” (emphasis added).
Wildlands Trust of Southeastern Massachusetts, Inc. v. Cedar Hill Retreat Center, Inc., et al. (September 3, 2019)
It’s been a busy year at the BLS Blog. As we wrap up 2018, take a look at our top five most well-read posts:
- America’s Test Kitchen Faces Abuse of Process Claim: Judge Salinger denied
America’s Test Kitchen’s motion to dismiss an abuse-of-process claim asserted by William Thorndike, Jr. According to Thorndike, America’s Test Kitchen brought a baseless lawsuit to hinder Christopher Kimball’s efforts, supported by Thorndike, to compete against America’s Test Kitchen. That assertion, according to Judge Salinger, was sufficient to state an abuse-of-process claim.
In a case concerning alleged violations of the Massachusetts law governing the involuntary towing of motor vehicles, Judge Salinger concluded that the defendant’s “attempt to ‘pick off’ the named plaintiff did not moot [the plaintiff’s] individual claims or the class action.”
Judge Salinger granted summary judgment in favor of a defendant that violated Massachusetts debt collection law where a plaintiff failed to show an injury “separate” and “distinct” from the regulatory violation.
In Beninati, et al. v. Borghi, et al., Judge Sanders ruled that the plaintiffs in a successful action under G.L. c. 93A, § 11, were not entitled to recover $170,000 in attorneys’ fees incurred before the litigation began. The fees, according to the plaintiffs’ fee petition, related to “extensive settlement discussions” that predated the filing of the action. Judge Sanders wrote: “This Court is aware of no authority that permits the award of fees incurred before the litigation began and that do not bear directly on its preparation, which these fees clearly did not.”
Although this blog focuses on BLS cases, a recent decision from the First Circuit merits attention here. The case highlights a key difference between federal and state practice on Chapter 93A claims, which are as commonly asserted in Massachusetts civil litigation as streets are jammed with traffic in Boston. In Full Spectrum Software, Inc. v. Forte Automation Systems, Inc., the First Circuit ruled that there is a right to a jury trial for Chapter 93A claims pending in federal court, at least in certain circumstances. The Supreme Judicial Court decided years ago in Nei v. Burley, in contrast, that no such right exists in connection with Chapter 93A claims pending in Massachusetts state courts.
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- Senior Editor, Co-Chair, Business Litigation Practice Group