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How to Draft a Consumer Demand Letter Under G.L.c. 93A, Section 9 in Massachusetts

Litigation involving claims of unfair or deceptive business practices under Chapter 93A is, to say the least, a frequent occurrence in Massachusetts. Quite often, Chapter 93A claims are a mechanism for a plaintiff to potentially recovery multiple damages against a business, including attorney's fees, costs, and interest. In order to bring a Chapter 93A claim, however, an aggrieved party must begin the process by sending what is commonly referred to as a Chapter 93A, section 9 "consumer protection demand letter" to which the business has 30 days to respond.

What is a Consumer Protection Demand Letter?

A consumer protection demand letter, sometimes referred to simply as a 30 day demand letter, is a formal notification. It tells the business or merchant that the aggrieved party intends to take them to court over an alleged unfair trade practice.

These demand letters must contain certain pieces of information in order to meet the requirements of the statute:

  1. The letter must be sent 30 days before any complaint is filed in court. The letter should be sent by certified mail in order to ensure that there is a record that the letter has been delivered, thus triggering the 30 day response period.
  2. It must specifically identify the claimant and the claimant's address.
  3. The letter must provide a reasonable description of the unfair act or practice. This involves setting forth a descriptive factual account of the problem and where the deception happened. An effective tool in setting forth the factual account would be to use separate paragraphs for each fact alleged.
  4. It must identify the damages suffered by the claimant. This can be done by describing the money or property lost or any injuries suffered by the business due to the unfair or deceptive act.

The demand letter serves three basic functions:

  1. It provides notice and information to business about the nature of the consumer's claim,
  2. It encourages business to negotiate a settlement rather than go to court, and
  3. It controls the number of money damages a consumer may ultimately recover.

What Happens After the Demand Letter is Received?

After being served with a consumer protection demand letter, the business has 30 days to make a written response to the 93A demand letter. This response has to include a reasonable offer of settlement.

Many businesses are unaware that they can be held liable for not replying to a demand letter in good faith or for making an unreasonable settlement offer. If a business fails to investigate a consumer complaint, it can amount to a bad faith response which can, in and of itself, violate the consumer protection act. This new violation can be a problem for the business, even if the underlying alleged unfair or deceptive practice was not knowing or willful. 

If a business responds in bad faith to a 93A demand letter or makes a settlement offer that a court later deems unreasonable, it can open the business up to triple damages and attorney's fees. These pressures are meant to ensure that the business takes the demand letter and the claimant's case seriously and initiate the settlement process.

Pros and Cons of Accepting or Rejecting the Settlement Offer

If the consumer, for one reason or another, fails to accept the offer made by the business, or if an agreement cannot be negotiated and the consumer files a lawsuit, there are risks that both sides will face.

The consumer, if successful in a later court action, may potentially recover multiple damages including reasonable attorney's fees, costs, and interest. On the other hand, however, a court may find that the initial response to the consumer protection demand letter by the business was reasonable or in good faith under the specific circumstances of the case and thus award the consumer only its actual damages.

When a court decides such a claim it has to take into consideration whether the business' conduct was, in fact, unfair or deceptive. If the answer is yes, then the question becomes whether the conduct was willful, whether the business's refusal to grant the consumer his or her original demand was in bad faith, and whether the business was aware of its violation.

Unfair Trade Practice Lawyers at the Katz Law Group Serve Massachusetts

The business and contract litigations lawyers at the Katz Law Group has deep experience in the area of Chapter 93A and has represented both individuals and businesses in bringing and defending violations of the Consumer Protection Act. Please contact us online if you have any questions regarding this ever-developing area of Massachusetts law. We serve clients in Worcester, Marlborough, Framingham, and the rest of Massachusetts.

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