On Sept. 4, 2024, the Hon. Julia E. Kobick issued an opinion detailing some of the fundamental differences between Section 9 (consumer) and Section 11 (business) claims under Chapter 93A.
In Rojas v. Capital One, the plaintiffs brought claims against the defendant under Section 11, alleging the defendant withdrew funds from a bank account without authorization. The court granted the defendant’s motion for judgment on the pleadings as to various common-law claims and under the federal Electronic Fund Transfer Act. However, the Chapter 93A claim remained because the defendant’s arguments did not pass muster under Rule 12(c) standards, which required the court to accept all the plaintiffs’ well-pleaded facts as true. When denying the defendant’s motion, the court relied on time-honored Chapter 93A principles.
First, the court rejected the defendant’s argument that the plaintiffs’ Section 11 claim should be dismissed because the plaintiffs failed to send a 30-day, pre-suit demand letter. As the court noted, Section 11 does not have a demand letter requirement. Rather, that requirement is only found in Section 9. Specifically, absent certain circumstances contained in Section 9(3) (when the claim is asserted in a counterclaim or cross-claim, or if the defendant-respondent does not maintain a place of business or does not keep assets within the commonwealth), Section 9 has a jurisdictional 30-day pre-suit demand letter requirement.
Second, the court rejected the defendant’s argument that the plaintiffs did not properly plead an unfair act under Section 2. As the court explained, although Chapter 93A does not define what constitutes unfairness or deception, the First Circuit and the MA Supreme Judicial Court have held that an act or practice is unfair if it falls “within at least the penumbra of some common-law, statutory, or other established concept of unfairness; is immoral, unethical, oppressive, or unscrupulous; and causes substantial injury to consumers.” At the pleading stage, with all inferences drawn in plaintiffs’ favor, the plaintiffs’ allegations about improper, fraudulent withdrawals and threats satisfied Section 2’s concept of an unfair or deceptive act or practice.
Lastly, the court rejected the defendant’s argument that its dispute with the plaintiffs was “private” and therefore did not implicate Chapter 93A. This dispute, however, appeared to occur in the ordinary conduct of trade or commerce and did not arise from a strictly private transaction, such as disputes between business partners or between an employer and employee. As a result, the court determined, it fell within the scope of Chapter 93A.