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Enacted as a state counterpart to the Federal Trade Commission Act, 15 U.S.C. §45, the Massachusetts Consumer Protection Act, G.L. c. 93A, is intended to improve the relationship between consumers and businesses and to encourage more equitable business practices. Toward this end, G.L. c. 93A, like similar statutes in other states, proscribes “unfair or deceptive acts or practices” in the conduct of any trade or commerce affecting Massachusetts consumers. It also creates a private right of action for those injured by the use of a proscribed act or practice. The relief available under G.L. c. 93A is sui generis - neither wholly tortious nor wholly contractual - and eliminates the elements of many common law claims. Violations of the statute carry penalties that are attractive to plaintiffs and have helped make G.L. c. 93A probably the most widely used statute in Massachusetts civil litigation, including attorney fees and trebling of damages on a potentially class-wide basis. Conceptually, statutes like G.L. c. 93A are a vital component of the American free enterprise system. On the whole, they function reasonably well in accomplishing their intended purpose in a manner that is generally fair for both consumers and businesses. Frequently, however, those faced with litigation under statutes like G.L. c. 93A complain that they are more a trap for the unwary than an effective means of curbing and penalizing unscrupulous business practices. They contend that reform is necessary because what constitutes an “unfair or deceptive act or practice” is often unclear and that the attorneys fees, treble damages and relaxed class certification provisions are potentially crippling for an unsuspecting business. Some also argue that too often consumers are merely pawns in the litigation and receive little, if any, benefit from lawsuits under this type of statute.

The Federalist Society’s Boston Lawyers Chapter and its Litigation Practice Group invite you to listen to this panel as it discusses the history and use of state consumer protection statutes based, in part, on reference to recent trends in litigation under G.L. c. 93A. Do these statutes impose unfair burdens on businesses or vindicate important consumer rights? What type of conduct falls within the definition of “unfair and deceptive” under these statutes? What constitutes an actionable injury under these statutes and under what circumstances are damages awarded? Does private consumer protection based litigation on a class-wide basis benefit individual consumers? Would strictly public enforcement achieve better results? To what extent are constitutionally protected rights, like freedom of speech and due process, threatened by the way consumer protection cases are litigated?

This panel will be published by the Connecticut Insurance Law Journal in 2008.

Panelists Include:

  • Deirdre Cummings, Consumer Program Director, Massachusetts Public Interest Research Group
  • Brian G. Leary, Esq., McCarter & English, LLP
  • John Roddy, Esq., Roddy, Klein & Ryan
  • Professor Paul H. Rubin, Emory University School of Law
  • Professor Dwight Golann, Suffolk University Law School, Moderator

Date: Thursday, February 15, 2007
Location: Omni Parker House Hotel
Boston, MA

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