The Chapter 93A, Section 9 demand letter presentment requirement allows respondents to evaluate risks and consider pre-suit settlements, as it limits claimants from pursuing relief not specified, thereby potentially avoiding litigation or limiting damages and attorneys’ fees.

Dealing with cross-motions for summary judgment, Judge Katherine Robertson issued an instructive opinion about Section 9 demand letters in 1611 Cold Spring Rd. Operating Co., LLC v. Skinner. The litigation arose from a dispute between Sweetwood, a retirement community, and Pamela Skinner, a daughter of community residents who were charged certain fees, which Skinner asserted violated Mass. Gen. Laws ch. 93, § 76. Prior to filing her complaint, Ms. Skinner sent Sweetwood a Chapter 93A demand letter alleging that Sweetwood’s fees ran afoul of Section 76, which in turn violated Chapter 93A, Section 9.

Ms. Skinner then argued on summary judgment that Sweetwood violated Chapter 93A by failing to comply with 940 Mass. Code Regs. § 3.13(4), which governs consumer refunds. The court disagreed, explaining that (i) a claimant seeking relief must send a written demand that sets out “specifically any activities . . . as to which [claimants] seek relief” and (ii) separate relief on actions not mentioned in the demand letter is foreclosed as a matter of law. Sending this mandated demand letter is referred to as the “presentment requirement” under Chapter 93A, Section 9. Although Ms. Skinner’s letter did not need to state every specific statutory or regulatory violation alleged, her failure to identify Section 3.13(4) as a basis of her Chapter 93A claim deprived Sweetwood of the opportunity to consider the viability of that theory for purposes of determining “if the requested relief [in the demand letter] should be granted or denied” and whether to make “a reasonable tender of settlement” as set forth in Section 9. Therefore, the court could rightfully decline to consider her Chapter 93A claim on the merits of Section 3.13(4).

The court noted further that presentment of a demand letter is not needed when the Chapter 93A claim is asserted in a counterclaim and crossclaim. Although Ms. Skinner asserted the Chapter 93A claim in a counterclaim, she did not rely on this carve-out to the presentment requirement in her summary judgment briefing and, therefore, waived the exception as a basis to avoid the court granting summary judgment in favor of Sweetwood.

This case underscores the importance of the demand letter presentment requirement (when applicable), which is designed to allow a respondent to assess risk and offer a pre-suit settlement that could avoid litigation or limit damages and attorneys’ fees should litigation ensue. Although claimants need not include every specific statutory or regulatory violation alleged, respondents should keep an eye on claimants expanding their claims beyond those outlined in the demand letter during litigation.