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Under the Massachusetts G.L. c. 93A, a consumer can bring a claim alleging that a business defendant has engaged in unfair or deceptive acts or practices, and that the consumer has been damaged as a result. The consumer may be entitled to damages and can also recover his or her reasonable attorneys fees. The court may award up to treble damages upon a showing that the defendants conduct was knowing or willful.
However, before filing his or her complaint in court, a consumer suing under c.93A must serve a so-called “demand letter” on the defendant business. Each one of multiple defendants must be served with a demand letter.
A business suing another business is not required to serve a demand letter, nor is a consumer who asserts a c.93A claim as a counterclaim or crossclaim or who is suing a defendant that does not maintain a place of business or keep assets within Massachusetts.
The demand letter gives the defendant an opportunity to make a reasonable offer of settlement, thereby preventing the plaintiff from recovering multiple damages and attorneys’ fees. Failure to serve the demand letter at least 30 days prior to commencing suit, and to allege in the complaint that this was done, deprives the court of jurisdiction to adjudicate the c.93A claim.
Because a valid demand letter is a prerequisite to a consumer action under c.93A, issues arise as to what type of written correspondence constitutes a valid demand letter. “A claimant who fails to send any demand letter, or who sends a legally insufficient demand letter will be denied recovery.” Bushay v. McDonnell, 327 B.R. 695, 702 (1st Cir. BAP 2005).
A valid demand letter must: (1) identify the defendant’s conduct complained of, (2) identify the injury suffered by the plaintiff, (3) state what relief the plaintiff is seeking and (4) give notice to the defendant that the claim is being brought under c.93A.
The description of the defendants conduct need only be sufficiently specific “to give the defendant[] ‘an opportunity to review the facts and the law to see if the requested relief should be granted or denied’ and to enable [defendant] to make ‘a reasonable tender of settlement ….” Brandt v. Olympic Const., Inc., 16 Mass. App. Ct. 913 (1983), quoting York v. Sullivan, 369 Mass. 157, 162 (1975).
The letter must also state the nature of the plaintiff’s injury. Care should be taken to include all of the types of injury for which the plaintiffs seeks to recover, as omitting an injury in the demand may preclude the plaintiff from proving it at trial.
Although the demand letter must also state the nature of the relief sought, it need not specify a dollar amount of damages. Again, the relief sought need only be stated with sufficient specificity to enable the defendant to “review the facts and the law to see if the requested relief should be granted or denied”. Brandt, 16 Mass. App. Ct. 913, quoting York, 369 Mass. at 162.
A demand letter must also indicate that the plaintiff intends to use the “heavy artillery of c. 93A, i.e., multiple damages and the imposition of counsel fees.” Cassano v. Gogos, 20 Mass. App. Ct. 348, 351 (1985). To satisfy the requirement that the demand letter refer to the consumer protection act, the letter must contain at least one of the following six statements:
(1) any express reference to c. 93A; (2) any express reference to the consumer protection act; (3) any assertion that the rights of the claimants as consumers have been violated; (4) any assertion that the defendant has acted in an unfair or deceptive manner (G.L. c. 93A, § 2[ a ] ); (5) any reference that the claimants anticipate a settlement offer within thirty days (to the contrary, the letter demands action within one week, a response which c. 93A, § 9[3], does not require); or (6) any assertion that the claimant will pursue multiple damages and legal expenses, should relief be denied. We are of the opinion that in order to qualify as a written demand under c. 93A, a letter must, in addition to defining the injury suffered and the relief sought, mention at least one of the six factors we have enumerated (or contain some other signal which will alert a reasonably perceptive recipient). Otherwise, the potential defendant is without warning that the claimant intends to invoke the heavy artillery of c. 93A, i.e., multiple damages and the imposition of counsel fees.
Cassano, 20 Mass. App. Ct. at 350-51. See also Buckley v. JR Builders, Inc., 2003 WL 1689617, *6 n.6 (Mass. Super. 1/17/03); DiBona v. Furnace Brook Office Condominium Assoc., 2000 WL 804648, *2 and n.1 (Mass. Super. 1/4/00) (finding letter inadequate); Eisenberg v. Gouthro, 1995 WL 1146849, *2 (Mass. Super. 11/16/95) (finding letters inadequate).
While none of these requirements is difficult to meet, a plaintiff’s attorney must take care in each case to ensure that they are satisfied. Conversely, counsel for a c.93A defendant should consider whether the consumer plaintiff has served an effective demand letter.
