In a recent decision (Karl Pumiglia v Northland Cliffside, Oct’12) judge Dina Fein from Western Housing Court acknowledges that the SJC in Hershenow v Enterprise Rent-a-Car, 2006 requires an actual injury to the Consumer before $25 and Attorney Fees can be awarded under 93A (The Unfair and Deceptive practices Act in MA) but she makes a case that because Leardi v Brown, 1984 wasn’t explicitly overruled by the SJC then it must be considered an exception to the rule that Hershenow set. If Leardi is considered an exception that would mean that the rule “no actual injury = no 93A” would apply to all businesses except landlords. How self-serving!
Judge Fein, just because the SJC did not explicitly overrule Leardi doesn’t mean that it wasn’t de facto overruled. They don’t need to overrule every single case.
The Supreme Judicial Court of MA with Hershenow made a general statement – unfair and deceptive clauses in contracts even though they may be unfair and deceptive and even though they may be a violation of a legally protected right do not rise to the level of being an actual injury (unless those unfair and deceptive clauses were actually enforced against the Consumer) and so they are not actionable under 93A. Nominal awards of $25 are not allowed because they bring with them Attorney Fees in the tens of thousands of dollars and that situation is abusive.
Hershenow applies to all contracts. Leases are contracts too.
In 2008 the SJC thought that maybe they went a little too far with Hershenow declaring that no potential injury could be actionable under 93A and they refined it with Iannacchino v Ford Motor. In it they basically said that sometimes potential injury can be actionable under 93A but certainly never in cases where it’s not even possible to injure the Consumer like in cases where they no longer own or rent the product related to the unlawful contract.
I believe at this point Western Housing court (Judge Dina Fein and Judge Robert Fields) is the only court in MA that is aggressively ignoring Hershenow and Iannacchino and clinging on to the past in Leardi most likely in a thinly disguised attempt to award attorney fees to their past colleagues and encourage them to keep coming to their Court. The result is unfair and abusive.
Judge Fein, follow the law please. Understand that Classes of Tenants going back sometimes 4 years should not be allowed because they were not only not injured but also could not be injured because they are out of the contracts now.