Introduction
One of the most potent tools in Massachusetts commercial litigation is Chapter 93A, § 11 of the Massachusetts General Laws. Designed to deter "unfair" or "deceptive" conduct in "trade or commerce," Section 11 creates a statutory cause of action between businesses that allows for the recovery of treble damages, attorneys' fees, costs, and injunctive relief. Section 9, largely applicable to consumer plaintiffs, is similarly potent;1 however, this article focuses largely on Section 11 business claims.
For plaintiffs, Chapter 93A amplifies recovery; for defendants, it is a substantial liability risk. While Chapter 93A claims are frequently threatened and litigated, they are often brought without a full command of the statutory and doctrinal nuances that can fundamentally alter the outcome. Below are just a few common issues that continue to surface and develop in recent jurisprudence.
1. Bring the right type of claim or risk dismissal
Section 11 is not Chapter 93A's only private right of action. While nuances exist, Section 9 provides a private right of action to individual consumers who have suffered a loss due to an unfair trade practice—whereas Section 11 generally pertains to persons acting in a business context.2 Bringing a claim under the wrong statutory provision risks early dismissal.
Practice Tip: Where the facts are unclear or mixed as to which Section applies (e.g., both businesses and consumers are impacted by a potential regulation), the most prudent course is to plead both Sections in the alternative.
2. Don't miss the opportunity to limit your damages at the outset
A savvy defendant can limit its damages at the outset of the case. Section 11 contains a little-used but powerful tool for defendants to avoid multiple damages. By submitting a written offer of settlement for single damages "with [its] answer," a defendant caps its exposure if the offer is rejected but later deemed reasonable by the court relative to the actual injury suffered.3 Courts have enforced this limitation—even mid-litigation—so long as the offer is specific, timely, and brought to the court's attention before judgment is entered. Failing to raise the issue before treble damages are awarded may result in waiver, regardless of the offer's reasonableness.
3. Don't gloss over the geographic prerequisite; it has teeth
One of the unique—and dispositive—features of a Section 11 business claim is the requirement that the unfair or deceptive conduct occurred "primarily and substantially" within Massachusetts. Take this defense seriously—as it has been known to dismiss a case wholly outside the merits, even when a party is based in Massachusetts. Courts apply this standard by examining the "center of gravity" of the misconduct—e.g., where decisions were made, negotiations occurred, harm was felt, and control was exercised. Recently, a court dismissed a 93A claim where, despite some business activity and incorporation in Massachusetts, the heart of the wrongdoing occurred elsewhere. 4 This defense can support early resolution and often serves as a strategic tool for out-of-state defendants. This test also takes on different import depending on the underlying nature of the claim. It is typically most effective at the summary judgment stage—though some courts have dismissed claims on the pleadings where allegations are improperly framed. 5
Conversely, a Chapter 93A claim brought by a consumer under Section 9 contains no such heightened geographic prerequisite. In fact, Section 9 even contains its own special language, construed as more "consumer friendly," in seeking class certification. 6 While courts have permitted nationwide classes under Chapter 93A (typically involving "settlement classes"), most courts have followed an "unbroken string of opinions" declining to extend Chapter 93A to multi-state classes. 7
4. Heed the scope of actionable misconduct
One of Chapter 93A's strengths is its malleability and real-world application; it captures the reality that, whether a business practice is truly "unfair" or "deceptive" requires consideration of the surrounding circumstances and context. Chapter 93A claims are evaluated "holistically" and "based on the circumstances of each case." 8 Whether a particular set of acts, in their factual setting, is unfair or deceptive is a question of fact, but whether that conduct rises to the level of 93A violation is a question of law. 9
In that sense, courts have circumscribed the scope of an actionable claim. For example, while mere negligence or breach of contract, without more, does not suffice, a party knowingly violating its contractual obligations to secure an unwarranted benefit does. 10 Further, courts generally require a higher standard for offensive conduct when brought as business claims under Section 11 (versus Section 9). Last, be aware that some relationships are excluded entirely. Chapter 93A is intended to regulate market-based, arm's-length transactions. As such, courts have held that internal business disputes—such as those between employer and employee, or between co-owners of a closely held business—generally fall outside the scope of "trade or commerce." Similarly, regulated entities acting within the bounds of a statutory or regulatory scheme may be exempt under Section 3 of the statute.
Conclusion
Chapter 93A claims are powerful tools in Massachusetts commercial (and consumer) litigation. For clients and others engaged in business in Massachusetts, awareness of the nuances of this statute and its evolving jurisprudence is important.
Footnotes
1 Massachusetts courts and regulators continue to broaden the reach of Chapter 93A, making it an increasingly powerful tool for consumer plaintiffs. A recent example is the new regulation under 940 CMR 38.00, effective September 2, 2025, which targets hidden or misleading "junk fees." See https://www.mass.gov/doc/junk-fee-regulations-940-cmr-3800-0/download. The regulation requires businesses to disclose the total cost of a product or service—including all mandatory fees—clearly and conspicuously at the outset. Failure to do so will be per se "unfair" or "deceptive" under G.L. c. 93A, Section 2, which gives consumer plaintiffs a powerful new tool under Section 9.
This regulatory shift, combined with Section 9's plaintiff-friendly features—such as mandatory treble damages for willful violations and attorneys' fees for prevailing plaintiffs—may drive a wave of new class actions. Industries relying on drip pricing, auto-renewing subscriptions, or trial offers should be especially vigilant.
2 See In re: Moveit Customer Data Security Breach Litigation, No. 23-MD-3083-ADB-PGL, 2025 WL 2176590, at *17 (D. Mass. July 31, 2025)
3 See G.L. c. 93A, § 11, ¶ 5
4 See Pro. Sports Servs. FI OY v. Grossman, 770 F. Supp. 3d 394, 399 (D. Mass. 2025)
5 See CrunchTime! Info. Sys., Inc. v. Frischs Restaurants, Inc., 768 F. Supp. 3d 183, 186 (D. Mass. 2025)
6 G.L. c. 93A, § 9
7 Ortiz v. Saba Univ. Sch. of Med., 348 F.R.D. 4, 15 (D. Mass. 2024)
8 CrunchTime! Info. Sys., 768 F. Supp. at 185
9 Bickford's Fam. Restaurants, Inc. v. Waltham Ventures, LLC, 102 Mass. App. Ct. 1121, 211 N.E.3d 1067 (2023)
10 Edv & Cad Group v. Scopic Software LLC, 771 F. Supp. 3d 33, 54–55 (D. Mass. 2025)
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.
