In Bucci v. Campbell, the Massachusetts Appeals Court, in a summary decision, clarified standards that govern a trial court's conclusions about whether acts or practices are unfair or deceptive under Chapter 93A, Section 2.
The underlying case concerned whether the defendants had breached a contract with the plaintiffs by failing to install a natural gas line to the plaintiffs' lot. The jury found that the defendants (i) had breached the contract, (ii) had breached the implied covenant of good faith and fair dealing, and (iii) were liable for negligent, but not intentional, misrepresentation. The plaintiffs also asserted a Chapter 93A claim against the defendants, which the trial judge reserved for the court after the jury verdict, and later found that the defendants did not violate Chapter 93A. The plaintiffs appealed the Chapter 93A judgment.
In its decision, the Appeals Court first explained that whether acts are unfair or deceptive in their factual setting is a question of fact, but whether unfair or deceptive conduct rises to a level to violate Chapter 93A is a question of law and subject to a de novo review standard. Here, the trial judge found the defendants' conduct to be "a bit sleazy" and based on "an extremely weak claim," but it did not "rise to the level of rascality or misconduct" required to violate Section 2. Before getting to the merits of the judge's conclusions, the Appeals Court noted that Chapter 93A no longer includes a "rascality" standard, which the Supreme Judicial Court rejected in 19951. This, according to the Appeals Court, may have caused the trial judge to err.
Based on the trial judge's acceptance of the jury's findings, combined with the judge's additional findings, the Appeals Court concluded that, as a matter of law, the defendants' conduct was both unfair and deceptive under Section 2. Specifically, the court found the defendants' negligent misrepresentation of fact, the truth of which could be reasonably ascertained, to be unfair and deceptive. With the addition of the "sleaziness" and "weak claim" the judge found, the defendants' conduct was sufficiently "extreme or egregious" enough to violate Section 2. A breach of the implied covenant of good faith and fair dealing may also violate Section 2. Since the jury found such a breach here, and the judge found that they breached the covenant for their own economic advantage, the court had to conclude that their conduct violated Section 2 as a matter of law. The defendants' conduct also was unfair under 940 Code Mass. Regs. § 3.16(2), which further supported the Appeals Court's conclusions that the trial judge had erred in finding the defendants had not violated Chapter 93A.
This case demonstrates that unfairness and deception under Section 2 are fact based in a sense that a fact finder must determine whether conduct is unfair or deceptive in the factual setting at issue. Beyond that, it is for the court to decide whether the conduct—coupled with other relevant facts—is unfair or deceptive enough to violate Section 2.
Footnote
1 See Mass. Employers Ins. Exc. v. Propac-Mass, Inc.
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