Tis But a Breach – Looking for the Unfairness to Support a 93A Claim

I frequently represent small businesses and individuals in litigation. One of the first topics I bring up is the cost associated with litigation. For smaller cases, the unfortunate reality is that litigation costs can easily dwarf the amount in dispute. And while a properly designed budget and strategy for a case should always consider the amount in dispute, there is only so much you can do to limit costs. So the discussion inevitably turns to whether the client can recover any of those fees and costs from the other side. I love this question. I am always looking for ways that a client can potentially recover their attorney’s fees and costs, not only so the client has the possibility of actually recovering those fees, but for the increased leverage a claim for fees can bring to a case. Just the possibility that a party will be able to recover their costs and fees can drastically change the dynamic of a case.

One of the more powerful tools you can use to potentially recover attorney’s fees and costs is a claim under M.G.L. c. 93A, the Massachusetts Consumer Protection statute. But inexplicably, this claim is often not included in complaints or counterclaims, in particular in cases involving breaches of contract. A 93A claim must allege more than a mere breach of contract. But often, digging below the surface of the breach will reveal facts that can be used to construct a valid 93A claim. All you need to show is that there were some egregious circumstances surrounding the breach to provide the additional “unfair” or “deceptive” ingredient required under the statute. This could be as straightforward as demonstrating that the opposing party breached the contract in a deliberate attempt to obtain the benefits of the contract, and to avoid fulfilling their own obligations under the contract. Or it could be that the opposing party’s actions unfairly “strung along” my client. There are any number of fact patterns that can support a viable 93A claim.

By looking at a set of facts through the lens of 93A, I am looking for the unfairness in what has happened to my client. This often guides not only the 93A claim, but how I frame the entire case going forward. As a trial attorney, I need to tell the story of why my client was wronged. The story of a client who was unfairly treated is much more compelling than the one about the gentleman’s breach of a contract.

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