United States: Leading Cases On Chapter 93a

Last Updated: October 15 2015
Article by Michael C. Gilleran

 Nearly all business disputes in Massachusetts are governed by Chapter 93A. The winning plaintiff under Chapter 93A is entitled to an automatic award of its attorney's fees, and may be awarded up to three times its actual damages. Neither of these enhanced damages is possible under regular Massachusetts law.

It can be challenging to apply 93A because it is vague and has a low threshold of proof necessary to establish liability. Additionally, 93A is extremely complex. It has many inclusions, exclusions, permutations and penumbras, and there are tens of thousands of decided cases creating precedent dealing with the law.

The slightest advantage in knowledge can make the difference between a tremendous victory for triple damages and attorney's fees or a catastrophic loss for the same. Here are the recent leading cases that interpret and apply Chapter 93A.

1. Higher 93A Standard Between Businesses

A higher standard applies where both parties are businesses and sophisticated commercial players. – Ora Catering v. Northland Ins. (D. Mass. 2014); Boston Cab v. Uber (D. Mass. 2014)

2. Differing Federal Versus State Standards for 93A Liability

Massachusetts state courts apply the coercion or leveraging test, while many Federal courts still apply the "rascality" test or "eyebrow" test. – Ora Catering v. Northland Ins. (D. Mass. 2014)

Massachusetts state courts require that a violation of other law or regulations must still be shown independently to be unfair or deceptive under 93A. However, Federal courts now hold that a violation of many Federal laws is an automatic or per se violation of 93A. – McDermott v. Marcus, et al (First Cir. 2014)

3. 93A Standard and Misrepresentation

Although many cases hold that a statement that has the "capacity to mislead" is a 93A violation, recent authority holds that test cannot be right because it is a mere test of causation without regard to whether the representation was in any way culpable. – Baker v. Goldman Sachs (First Cir. 2014)

A negligent misrepresentation cannot give rise to 93A liability unless it is "extreme" or "egregious." – Baker v. Goldman Sachs (First Cir. 2014)

Well-intentioned bad advice or opinion cannot give rise to 93A liability. – Baker v. Goldman Sachs (First Cir. 2014)

Statements which are accurate cannot be unfair or deceptive. – Ortiz v. Examworks (Mass. 2015)

4. 93A Standard and Contract

Mere breach of contract alone does not violate 93A. – Baker v. Goldman Sachs (First Cir. 2014).

Mere misrepresentations in connection with a breach of contract do not violate 93A. There will be no 93A liability for a breach of contract, even if the breach is accompanied by misrepresentations, if there are no other damages besides those stemming from the breach of contract.

The plaintiff in a business case must prove a distinct injury due to the unfair or deceptive practice apart from a mere contract breach or tort. – Auto Flat Car Crushers v. Hanover Ins. (Mass. 2014). 

Contract breaches must be "egregious" to qualify as a 93A violation. – Baker v. Goldman Sachs (First Cir. 2014)

5. Intellectual Property and 93A

Non-competes and Trade Secrets

Non-competes and trade secret cases are mixed on whether a departing employee can be liable under 93A for violating a non-compete or misappropriating a trade secret, since 93A generally does not apply to employer-employee disputes. Cases holding that 93A claims can be brought include Sentient Jet v. Apollo Jets (D. Mass. 2014), 93A claims against former employees for breach of non-compete agreements were not dismissed even though defendants argued that the 93A claim arose out of the employment relationship.

Cases holding that a 93A claim cannot be brought include Advanced Micro Devices, Inc. v. Feldstein (D. Mass. 2013). 93A claims against former employees for misappropriation of trade secrets were dismissed as they were within the "intra-enterprise" exception to 93A.


Even though the Copyright Act clearly preempts other related law, a 93A claim premised on copyright infringement can still be brought if it alleges an "extra element." – IvyMedia Corp v. iLIKEBUS (D. Mass. 2015)


93A claims against alleged infringers can be brought if they allege an "extra element," such as misconduct in the marketplace; 93A claims against patent holders for bad faith enforcement and publication of their patents are not preempted by the Patent Act.

Trade Dress

The 93A standard for trade dress infringement is the same as the Federal trade dress infringement standard. – Bern Unlimited v. The Burton Corp. (D. Mass. 2015)

False claim of IP rights plus litigation to stifle competition – A 93A claim can be brought against a claimed holder of intellectual property rights who in bad faith brings suit against competitors to stifle competition.

Where IP claims fail, 93A claim predicated on same elements will also fail. – Bern Unlimited v. The Burton Corp. (D. Mass. 2015)

6. Class Actions and 93A

A class claim must still show proof of causation on a class-wide basis and cannot get around the class-wide causation issue by turning it into a question of the mere amount of individual damages for each class member. – Bellerman v. Fitchburg Gas (Mass. 2014)

Courts declare that a Massachusetts 93A claim may provide the most consumer friendly vehicle for class actions versus the laws of any other state. – Bezdek v. Vibram (D. Mass. 2015)

It is easier to certify a class under 93A than under Rule 23. – Bellerman v. Fitchburg Gas (Mass. 2014)

Massachusetts public policy favors 93A class actions. – Bellerman v. Fitchburg Gas (Mass. 2014)

7. Insurance and 93A

The First Circuit has held that an insurer cannot be liable under 93A for bad faith insurance claim settlement practices unless the insurer has engaged in egregious settlement misconduct including use of non-payment to leverage a reduced settlement amount. – Peabody Essex Museum v. U.S. Fire Ins. (First Cir. 2015)

8. Defenses to 93A

Non-market Transactions

93A does not apply to "private disputes" – a dispute is private where: (i) services are not offered in a public marketplace; or (ii) services are not offered in the ordinary course of a business. 

Private transaction defense may apply to transactions among shareholders or executives of a close corporation.

Conclusory Allegations

No 93A claim can be maintained where the allegations pled are: conclusory in nature, based on a rote recital of the elements of the cause of action, lack sufficient detail, or are based on speculation. – Karle v. Capital One (D. Mass. 2015); McLoughlin v. Intoccia (Mass. App. 2015).

Attorney General Regulations

The Attorney General's 93A regulations, which are highly favorable to consumer plaintiffs, do not apply to disputes between businesses. – Baker v. Goldman Sachs (First Cir. 2014)

More courts hold against the 93A claim where the non-93A claim fails. Although 93A was originally expected to expand plaintiffs' rights, more often now where the related non-93A claim fails courts are also dismissing the 93A claim.

9. Multiple Damages Under 93A

Multiplication Even If Damages Paid

Unless a Chapter 11 business plaintiff strictly observes the provision of 93A for making an offer of settlement with its answer, no later offer, or even outright payment in full, can bar an eventual award of multiple damages against the plaintiff; a later payment, even if in full, is only an offset against an award of multiple damages. – Auto Flat Car Crushers v. Hanover Ins. (Mass. 2014)

Multiplication of All Verdicts

A 1989 amendment to 93A requires the multiplication of all jury verdicts based on the same conduct, not just the 93A verdict. – Hill Financial v. Murphy (Mass. App. 2015)

Multiplication Against All Defendants

Where several corporate defendants, such as a corporation and its officers, are found jointly and severally liable under 93A, full multiple damages can be collected from each one separately.

10. Choice of Law and Choice of Forum

A 93A claim will survive a motion to dismiss asserting that the cause of action did not arise primarily and substantially in Massachusetts where it alleges that the place of reliance on the 93A conduct and the place of injury or loss were both in Massachusetts, that is, the plaintiff is located in Massachusetts. – E.G. Conway v. Licata (D. Mass. 2015)

However, where the 93A claim alleges harm to plaintiff's customers nationwide, the primarily and substantially test will probably not be met.

11. Where Judges Differ From Juries on 93A Issues

A judge's decision on 93A claim can be contrary to a jury verdict on a parallel common law claim with regard to the exact same issue. – Via Restaurants v. The Occupancy Corp (Mass. App. 2015)

12. Attorney Fees Awarded Under 93A

Attorney fees awards must be proportional to damages – Recent decisions require generally that a judge's award of attorney's fees to a prevailing 93A plaintiff must be proportional to the 93A judgment amount, whereas older decisions did not require this. – Shirokov v. Dulap, Grubb & Weaver (D. Mass. 2014)

13. 93A Claims on Appeal

An appellate court has the power to determine whether a trial court ruling in favor of 93A liability actually falls within the "boundaries" of 93A, as determined by the appellate court, and to overturn the trial court decision if it is outside those boundaries. – Silva v. Steadfast (Mass. App. 2015)


As these cases show, every piece of information about Chapter 93A is vital. Since there is much at stake when litigating a Chapter 93A claim, it is critical that your attorney has up-to-the-minute knowledge of developments in the case law.

Michael Gilleran, a partner in the Business Litigation and Intellectual Property groups at Burns & Levinson, is a principal authority on Chapter 93A.

His book, The Law of Chapter 93A, published by the largest legal publisher Thompson Reuters Westlaw, is a leading source for attorneys and is frequently cited by Massachusetts appellate courts.

Michael writes annual supplements for the book. He also frequently writes articles on 93A for Massachusetts Lawyers Weekly and on similar laws in other states for the American Bar Association Journal and its related publications.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Burns & Levinson LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Burns & Levinson LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions