In Sommer v. CleanChoice Energy, Inc., 2025 U.S. Dist. LEXIS 175878 (D. Mass. Sept. 9, 2025), the district court, when ruling on a motion to dismiss, analyzed the meaning of unfairness under Chapter 93A, Section 9.The plaintiff, a consumer, alleged that the defendant violated Massachusetts General Laws Chapter 93A by charging non-transparent, allegedly inflated variable rates for electricity (Variable Pricing Claim) andmisrepresenting that its electricity came from 100% renewable sources (Clean Energy Claim).
The defendant sought dismissal under Rule 12(b)6) and argued that (1) its pricing practices were fully consistent with the express contract terms and, therefore, could not be deceptive, and (2) its marketing was not "deceptive" because its disclosures—particularly in the terms and conditions—clearly explained that customers would not receive electricity from specific renewable facilities but that their usage would be matched by renewable energy generation through credits.The court viewed the Variable Pricing Claim as a breach of contract claim and, based on a term sheet that gave the defendant broad discretion to set rates, dismissed the claim because plaintiff failed to plead additional evidence of egregious conduct incident to the breach. The Clean Energy Claim, however, survived because certain promotional materials created a factual issue about misleading consumers.
In its analysis, however, the district court explained that conduct is unfair under Chapter 93A if it "attaint[s] a level of rascality that would raise an eyebrow of someone inured to the rough and tumble world of commerce" or "ha[s] an extortionate quality that gives the rancid flavor of unfairness, or fall[s] within some common law, statutory, or otherwise established concept of unfairness, or rises to the level of immoral, unethical, oppressive, or unscrupulous." In support, the district court cited Levingsv.Forbes & Wallace, Inc.,8 Mass. App. Ct. 498, 504, 396 N.E.2d 149(1979).
The rascality and rancid flavor standard was a standard applied to business-to-business disputes under Section 11, as opposed to the consumer-to-business disputes under Section 9 that was before the district court. Usually, there is a lesser showing required for consumer claims. As to the standard the district court cited, the Massachusetts Supreme Judicial Court—expressly citing Levings—abandoned it in Massachusetts Employers Ins. Exch. v. Propac-Mass, Inc., 420 Mass. 39 (1995). Indeed, the SJC viewed the Levings standard as "uninstructive" in deciding unfairness questions under Chapter 93A.Rather, the SJC instructed courts to "focus on the nature of challenged conduct and on the purpose and effect of that conduct" when making unfairness determinations.
Ultimately, because of the factual disputes identified, the district court may have come to the correct conclusion that the Clean Energy Claim should proceed to discovery and did not require dismissal under Rule 12(b)(b). That is because the nature of the conduct, and the purpose and effect of that conduct—construing all facts and inferences in the plaintiff's favor—may support a plausible unfairness claim. However, citing and relying on an incorrect and abandoned standard of unfairness clouds what already is a quagmire of case law under Chapter 93A. This decision demonstrates why parties should pay particular attention to the governing standards under Chapter 93A, Sections 9 and 11 as interpreted by the SJC when litigating Chapter 93A claims.
Finally, despite concluding in the body of the opinion to dismiss the Variable Pricing Claim and not the Clean Energy Claim, the order preserves the Variable Pricing Claim and dismisses the Clean Energy Claim. The decision also misspells the judge's name at the end of the order, so we may see a rescript.
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