Life is not fair in the world of consumer protection.

11 September 2023

You have been the victim of an unfair business practice and it has caused you damage.  The kind of act that evokes the response, “ouhh, that is mean” when you describe to another of how this business conducted itself.  You seek assistance from an attorney to address the matter and he tells you that his opinion is that you are indeed a victim of an unfair business practice and you have a legal claim under section 2 of chapter 93A of Massachusetts General Laws.  And that this type of claim has the possibility of being awarded double or treble damages plus reasonable attorneys’ fees if certain events occur and you are ultimately successful in court.  But in order to pursue such a claim, you must follow the requirements of the statute and send an initial demand letter and give your adversary a chance to make a tender of settlement.  If your adversary does not comply, in the form of not offering an adequate tender of settlement, the harsh penalties of the statute can come into play.  He gives you a quote, you engage his office, he prepares the letter with your authority and information, and he fires it off in the mail.

What happens now?  Well we’ll explore two possible scenarios in this hypothetical story, the first being that the adversary makes an adequate tender of settlement, basically giving you your damages for their misdeed with a contrite apology.  Your lawyer says the offer is adequate under the law and would avoid any of the penalties in your favor and you are essentially bound to accept it.  You instruct him to do so, but what about the attorneys’ fees you paid so far?

The next scenario is that your adversary rejects or simply ignores the well prepared and articulate demand letter that meets all the requirements of the statute, and you go to court.  You trudge through all the phases of the civil case and end up prevailing at trial with the fact finder deciding that you were indeed a victim.  You are awarded multiple damages, but what about your attorneys’ fees you spent before the case started?

In both of these scenarios, you are not legally entitled to any attorneys’ fees for the preparation of the demand letter, review of any response sent, or any negotiations prior to deciding to file suit.  In the first scenario, you get absolutely nothing for any attorneys’ fees.  In the second, you would be entitled to the attorneys’ fees incurred to prepare the complaint you filed in court, but again, nothing beforehand having anything to do with the initial demand letter and its negotiation.  Tarpey v. Crescent Ridge Dairy, Inc., 427 Mass. App. Ct. 380, 392 (1999); Resnick v. Baker, 2014 Mass. App. Unpub. LEXIS 1048 *15-16 (affirming trial court’s limitation of 93A attorneys’ fees to only after claim was added to complaint).

Is this fair?  Well most people the author encounters say it isn’t, because hey, they had to send the demand letter, review any response, and (arguably/maybe) try to negotiate a settlement prior to suit, they say.  The respondent/bad actor business just keeps their mouth shut.

Logically, if someone is entitled to attorneys’ fees for the preparation of the complaint, which is absolutely required to pursue a claim.  (In the vernacular, one may say “duh.”)  Then if the demand letter is required too, why wouldn’t the attorneys’ fees incurred to prepare it, etc. be included?  This is logical.  However, the author’s thought is that the legislature may not have wanted people attempting to collect incurred attorneys’ fees under the first scenario above as it could be abused and stimulate more conflict.  (How much is reasonable?).

The author will inform you that in almost every case under scenario two above that the plaintiff asks for the attorneys’ fees for the demand letter, despite it being clear under the law they are not entitled to them.  But not always does the defendant counter with the law included in this blog.

The author will tell you that this is one example in the law where someone is not made whole, which really doesn’t happen.  The lesson here is that even if you get everything you are entitled to under the law, you almost always are not made completely whole and are left with some damage.  In other words, life is not (completely) fair.