Today the Supreme Judicial Court of MA issued a decision saying that the invasion of a consumer’s legal right (for example a lease that had language that was inconsistent with some statute or regulation) may be a violation of 93A and may be unfair and deceptive but unless it has caused the consumer some kind of separate, identifiable harm, it is not actionable under 93A. In other words, no more $25 awards coming with thousands of attorney fees without any real injury to the tenant.
I have written about this in the past and sharply criticized one out-of-the-mainstream Housing Court Judge, Judge Dina Fein from Western Housing Court who stubbornly refuses to take the past hints from the SJC and to stop abusing Leardi (see https://massachusettslandlords.com/fein-follow-the-law-please/ and https://massachusettslandlords.com/judge-dina-fein-follow-the-law-please-part-2/).
Unfortunately again the SJC did not have the courage to utter the 3 magic words – “We overrule Leardi”. Instead, they beat around the bush trying to cover and over-explain their past mistakes. Where is the courageous court that was the first in the nation to declare gay marriages constitutional?
Tyler v Michaels Stores (03-11-2013)
“A complaint under G.L. c. 93A, § 9(1), see note 4, supra, must allege that the plaintiff has been “injured” by the act or practice claimed to be unfair or deceptive and therefore unlawful under c. 93A, § 2. Tyler relies on Leardi v. Brown, 394 Mass. 151 (1985) (Leardi ), and argues that a violation of § 105 (a ) directly equates with an injury under c. 93A, § 9(1), and therefore, a complaint alleging a violation of § 105 (a ), without more, satisfies the injury requirement of c. 93A, § 9, and entitles the plaintiff to recover damages, nominal or otherwise.
The Leardi case considered an amendment to G.L. c. 93A, § 9, that eliminated the requirement that one suffer a “loss of money or property” in order to be “injured” within the meaning of c. 93A, § 9(1), as appearing in St.1979, c. 406, § 1. [FN14] See Leardi, 394 Mass. at 158. This court’s decision in Leardi has been a source of some confusion in the years since 1985. The confusion appears to stem from the following language:
“[U]nder circumstances where there has been an invasion of a legally protected interest, but no harm for which actual damages can be awarded, we conclude that the statute provides for the recovery of minimum damages in the amount of $25…. [I]n amending G.L. c. 93A, [§ ] 9, the Legislature exercised its prerogative to create a legal right, the invasion of which, without more, constitutes an injury.”
Id. at 160. Later decisions of this court have interpreted the Leardi case and the language quoted here in different ways. [FN15] Nevertheless, our recent decisions generally establish the following. The invasion of a consumer’s legal right (a right, for example, established by statute or regulation), without more, may be a violation of G.L. c. 93A, § 2, and even a per se violation of § 2, but the fact that there is such a violation does not necessarily mean the consumer has suffered an injury or a loss entitling her to at least nominal damages and attorney’s fees; instead, the violation of the legal right that has created the unfair or deceptive act or practice must cause the consumer some kind of separate, identifiable harm arising from the violation itself. [FN16] See Rhodes v. AIG Dom. Claims, Inc., 461 Mass. 486, 496 n. 16 (2012) (Rhodes ); Casavant v. Norwegian Cruise Line Ltd., 460 Mass. 500, 504-505 (2011) (Casavant ); Iannacchino v. Ford Motor Co., 451 Mass. 623, 632-633 (2008) (Iannacchino ); Hershenow v. Enterprise Rent-A-Car Co. of Boston, 445 Mass. 790, 801-802 (2006) (Hershenow ). To the extent that the quoted passage from Leardi can be read to signify that “invasion” of a consumer plaintiff’s established legal right in a manner that qualifies as an unfair or deceptive act under G.L. c. 93A, § 2, automatically entitles the plaintiff to at least nominal damages (and attorney’s fees), we do not follow the Leardi decision. Rather, as the Rhodes, Casavant, Iannacchino, and Hershenow decisions indicate, a plaintiff bringing an action for damages under c. 93A, § 9, must allege and ultimately prove that she has, as a result, suffered a distinct injury or harm that arises from the claimed unfair or deceptive act itself. ”
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