Egregious, Rancid or Unfair: The Interpretation of the Massachusetts Consumer Protection Act


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The Massachusetts Consumer Protection Act, G.L. c. 93A, protects consumers from unfair and deceptive acts and practices which occur in a business context. The statute provides for an award of double or treble damages and attorney’s fees. As such it is a powerful tool for consumers to obtain relief in consumer transactions that have gone awry. There are many state cases involving the application of c. 93A to a myriad of consumer situations with a consensus on a broad interpretation based on “any recognized or established common law or statutory concept of unfairness;” an objective standard.


In a separate section, however, the statute provides similar protection for business to business dealings and in that context, courts have been far less clear. Because businesses function in a world of contracts and transactions, the statute has been interpreted to require something more than the unfairness considered sufficient in the consumer context. The Appeals Court early on characterized the business standard as, “[t]he objectionable conduct must attain a level of rascality that would raise an eyebrow of someone inured to the rough and tumble of the world of commerce” and later on “a rancid flavor of unfairness.” Even though the Supreme Judicial Court rejected these colorful expressions as “uninstructive” and stated “we focus on the nature of the challenged conduct and on the purpose and effect as crucial factors,” lower courts and more importantly, the federal courts, continued to rely on the phrases to describe the required actionable conduct.

Federal Courts

The threshold for access to federal court (other than a federal question) requires a controversy between parties from different states in an amount greater than $75,000. Because many business transactions meet these requirements, much of business litigation occurs in federal court. Federalism requires that when a federal court applies state law, it must apply the law as it is interpreted by the highest courts of that state. However, when the law of the state evolves, as G.L. c. 93A has, the federal courts may at times erroneously continue to rely on their own outdated precedent. Therefore, despite contrary state law, the First Circuit Court of Appeals as recently as 2014 relied on the “rascality” language and its own interpretation that “the ‘general meter’ of the 93A standard “is that the defendant’s conduct must be not only wrong, but also egregiously wrong – and that this standard calls for determinations of egregiousness well beyond what is required for most common law claims.”

State Courts

At the same time, the Massachusetts SJC has rejected such a subjective standard in favor of an objective interpretation of unfairness more akin to that used in the consumer context. However, as the state and federal interpretations have drifted further apart, the differences are becoming more apparent, and lower federal courts have begun to apply Massachusetts state appellate court interpretation of the statute directly rather than rely on and repeat the outdated and questionable interpretation contained in federal court decisions.

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If you or a loved one were injured because of someone’s negligence, contact Attorney Allison now for a free consultation by calling 978-740-9433 or filling out our free consultation form.  We look forward to talking to you about your claim.






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