Robert Nislick By Robert Nislick
You are a Massachusetts businessperson. Perhaps you are a landlord, a contractor, a builder, a real estate broker, or a storeowner. Someone you have done business with is upset with you. One day you receive a letter from an attorney, or from the person directly.
The letter may state that is a “Written Demand for Relief”. It may allege that you violated the Consumer Protection Act, G. L. c. 93A. It may accuse you of having committed a host of unfair and deceptive acts and practices. A well-written Chapter 93A demand letter will explain in great detail all the things you are alleged to have done wrong. It may demand that you pay the person a lot of money. It may demand that you take some action or cease and desist from certain conduct. The letter may also claim that you will responsible for paying the plaintiff multiple damages, and the plaintiff’s attorney’s fees and costs.
If you receive a Chapter 93A demand letter, contact Robert Nislick, a Massachusetts business attorney, today.
How you respond to a Chapter 93A demand letter can have a profound impact on the eventual outcome of your dispute. You need experienced counsel to develop the best strategy for dealing with this problem. You will want to analyze whether there are any defects in the letter itself. The letter may not satisfy the minimum criteria required for Chapter 93A demand letters.
It is also possible that the letter was not properly served. This situation may arise when a consumer is seeking to make a demand on a corporation, and fails to serve the registered agent.
It is also possible that you are not engaged in trade or commerce, and consequently, you are not subject to liability under Massachusetts General Laws Chapter 93A. This may be the case, for example, if you are the landlord of a “dwelling unit in an owner-occupied two-family house, where the landlord owns no other rental real property”.[1]
It is also possible that the demand letter was sent to the wrong person. Even though someone may have done someone wrong to the plaintiff, it was someone else, not you.
Perhaps the letter is complaining about something you did a long time ago. You may be able to avoid liability under Chapter 93A based on the statute of limitations. “Actions arising on account of violations of any law intended for the protection of consumers, including . . . chapter ninety-three A . . . whether for damages, penalties or other relief and brought by any person . . . shall be commenced only within four years next after the cause of action accrues.”[2]
It is possible that the person simply made up all or some the allegations in the letter. In this situation, especially if an attorney wrote the letter, you will want to show that the facts asserted are simply not credible. A good response to a demand letter exposes the weaknesses in the plaintiff’s case to the plaintiff’s attorney.
Many Chapter 93A demand letters are designed to intimidate the recipient. The tone of the letter may be harsh or even insulting. A letter like this may make you angry. I will probably tell you to try to take the emotion out of the equation. I want to help my client analyze the strength of the plaintiff’s claim, and the strength of the client’s defenses, based on the facts and the law.
Upon receiving a Chapter 93A demand letter, a defendant is required to investigate the facts.[3] The plaintiff has a reciprocal duty to be straightforward and forthcoming in providing the information necessary to the defendant’s evaluation of the case.[4]
A potential defendant may receive a written demand for relief, but may not be able to fully evaluate the plaintiff’s claim. This may happen where the demand letter is not sufficiently detailed in its allegations. It may also happen where a potential defendant may be liable for someone else’s actions, but legitimately does not know the facts which give rise to the claim. Under these circumstances, the defendant would be justified in telling the plaintiff to provide him with more information, so that he can properly evaluate the plaintiff’s claim.
You may receive a demand letter where the plaintiff makes true allegations, and where you will likely have some liability. Many types of conduct can constitute a violation of G. L. c. 93A.[5] The problem may arise, however, where the amount of damages demanded is ludicrous, or at least, not truly reflective of the plaintiff’s actual damages.
When I analyze a demand, especially one with some merit, I want to gain a clear picture of what the plaintiff’s actual damages are. Similarly, when I am making a demand, I draft my letters so that they reflect my client’s actual damages, and I typically try to itemize those damages as best as I can.
A demand letter that is puffed up with a lot of hot air is much easier to deflate. In the landlord-tenant context, for example, a tenant’s 93A demand letter may assert several different causes of action or theories against a landlord, any of which may potentially subject the landlord to the prospect of having to pay the tenant multiple damages, attorney’s fees, and costs. It would be important to point out in the response that cumulative damages under G. L. c. 93A, and other statutes, for the same wrong, may not be awarded.[6]
The timing and content of the recipient’s response to a Chapter 93A demand letter is vitally important because it provides the recipient with an opportunity to limit his exposure to having to pay only the plaintiff’s actual damages, as opposed to the prospect of having to pay double or treble damages to the plaintiff, plus his attorney’s fees and costs.[7]
The recipient of a demand letter will want to make a written tender of settlement within thirty days of receiving the demand letter. The recipient should make a reasonable settlement offer. The plaintiff may reject the written tender of settlement and file suit anyway. If this happens, the defendant can file the written tender of settlement and an affidavit concerning its rejection with the court. If the court finds that the written tender of settlement was reasonable in relation to the injury actually suffered, the defendant can limit the plaintiff’s recovery to the relief tendered.
By contrast, if the court finds for the plaintiff, it will order the defendant to pay actual damages. Additionally, if the defendant willfully or knowingly committed an unfair and deceptive act and practice in violation of G. L. c. 93A, the court will order the defendant to pay the plaintiff between two and three times the actual damages. Additionally, the court will order the defendant to pay the plaintiff reasonable attorney’s fees and costs.
The court, however, “shall deny recovery of attorney’s fees and costs which are incurred after the rejection of a reasonable written offer of settlement made within thirty days of the mailing or delivery of the written demand for relief required by this section.”[8]
Businesspeople must take a Chapter 93A demand seriously. Attorney Robert Nislick is an experienced litigator who has drafted and responded to these letters. If you are having a dispute with a Massachusetts consumer, contact Robert Nislick today.
[1] See Billings v. Wilson, 397 Mass. 614, 616 (1986).
[3] See Heller v. Silverbranch Constr. Corp., 376 Mass. 621, 628 (1978).
[4] Parker v. D’Avolio, 40 Mass. App. Ct. 394, 402 n.9 (1996).
[5] See 940 Code Mass. Regs 3.00.
[6] See McGrath v. Mishara, 386 Mass. 74, 84-85 (1982).
[7] See G. L. c. 93A, § 9(3), (4).
[8] See G. L. c. 93A, § 9(4).