/>iNo. Chapter 93A, Section 9(3) expressly provides for only two forms of recovery: (1) actual damages or (2) $25 in statutory damages, whichever is greater. According to the Massachusetts Supreme Judicial Court (SJC) in Leardi v. Brown, a $25 statutory damages award (also colloquially known as “nominal” damages) is intended to provide a prevailing consumer plaintiff with a nominal award when the alleged unfair or deceptive act (the Section 2 violation) causes a cognizable Section 9 injury, but did not cause actual damages exceeding $25.
What happens if a defendant violated Chapter 93A more than once, but the violations in the aggregate still do not cause actual damages exceeding $25? Does a consumer receive $25 in nominal damages for each violation? In Aspinall v. Philip Morris Companies, Inc., the Superior Court answered “no.”
The court’s conclusion comes from standard principles of statutory construction and the fact that Chapter 93A, Section 4 affords up to $5,000 in penalties per violation in civil enforcement actions brought by the Massachusetts Attorney General. From a statutory construction standpoint, a court must conclude the Massachusetts Legislature intended the words it chose to use – and not use – when enacting and amending Chapter 93A over the years. For example, when one section of a statute confers a right to person A (the Attorney General under Section 4), the absence of that right in another section for person B (a consumer under Section 9) proves the Legislature did not intend to extend the right to person B. The Legislature enacted Section 4 in 1967 and inserted the “for each such violation” language in 1985. The Legislature could have included a “per violation” statutory damage award for Section 9 at that time, but it chose not to do so. Similarly, the Legislature added Section 9(3) in 1969 and amended it in 1979, 1987, and 1989. The Legislature could have added a “per violation” statutory damage award in Section 9 at any of those times, but it did not.
Therefore, courts must presume the Legislature knew that Section 9(3) did not contain any “per violation” statutory damages penalty when it added language to Section 4, just as it knew that Section 9(3) had no such language when it amended Section 9(3) in 1987 and 1989. If the Legislature wanted to provide consumers with the ability to recover a $25 “for each such violation” of Section 2, the Legislature was more than capable of doing so. Again, it did not. The Legislature’s decision to afford the Attorney General the ability to seek a penalty “for each such violation” in Section 4, and not to afford any such remedy for private consumers in Section 9(3) reveals the Legislature’s intent. As the Superior Court explained in Aspinall:
If the Legislature wanted to allow private plaintiffs to recover $25 “for each such violation,” § 4 demonstrates that the Legislature knew how to craft a statute that would provide for that relief. Under the plain language of § 9(3), the plaintiffs are not entitled to nominal statutory damages of $25 for each of their purchases of Marlboro Lights.
The Aspinall decision follows previously established SJC Chapter 93A jurisprudence. For example, in Leardi, the plaintiffs sought $25 for each renewal of an unlawful lease and for each unlawful clause in the lease, all of which purportedly were Section 2 violations. The SJC, however, affirmed a single award of $25 and not a $25 per renewal or per offending clause award, i.e., not an award “for each such violation.” Likewise, in Tyler v. Michael Stores, Inc., while the defendant violated Chapter 93A “[o]n several occasions” by taking personal information from the plaintiff that it did not need for the transaction, the SJC concluded that the plaintiff would be “entitled to the minimum statutory damage award of twenty-five dollars,” not $25 for each “occasion” on which the defendant violated Chapter 93A.
