In Royal v. Metcalf, the Massachusetts Superior Court entered summary judgment under Chapter 93A for the plaintiff (an alleged debtor) against the defendant (the owner of a company engaged in the business of collecting debts). According to the undisputed facts, the owner, without possessing chain-of-title evidence to prove ownership of the debt, filed a small claims action against the plaintiff and included prejudgment interest in the amounts claimed as unpaid principal. That, according to the court, violated M.G.L. c. 93, § 49, which prohibits unfair and deceptive debt collection practices and, in turn, constituted a per se violation of Chapter 93A, Section 2. That finding makes sense because, according to G.L. c. 93, § 49, a violation of Section 49 “shall constitute an unfair or deceptive act or practice under the provisions of chapter ninety-three A.” Beyond the per se violation, the court also concluded that filing suit to collect on a consumer debt without having—or being able to readily obtain—evidence that the plaintiff owns or has any right to collect on a debt, as the owner did here, is unfair and deceptive, because the small claims filing contained false information.

As to a Section 9 injury, the court stated as follows:

Relief is also available under § 9 where the claimed injury is ‘the invasion of a legally protected interest.’ Id. at 800, quoting Leardi v. Brown, 394 Mass. 151, 159 (1985) (landlord violated c. 93A by having tenants sign residential leases with provision falsely implying they were waiving right to habitable housing). Furthermore, § 9 ‘provides for recovery of actual damages or twenty-five dollars, whichever is greater.’ Leardi, supra, at 160, quoting G.L. c. 93A, § 9(3). ‘Accordingly, under circumstances where there has been an invasion of a legally protected interest, but no harm for which actual damages can be awarded, … the statute provides for the recovery of minimum damages in the amount of $25.’ Id. Royal has established that he has suffered an invasion of a legally protected interest. Plus, most anyone compelled to answer a small claim action will have suffered some amount of emotional distress. Both of these kinds of injury are compensable under G.L. c. 93A, § 9.

The court’s injury analysis, in part, is flawed. A Section 9 injury must be separate and distinct from the underlying Section 2 violation, as the Supreme Judicial Court (SJC) held in Tyler v. Michael’s Stores, Inc. In Tyler, the SJC explained as follows:

Nevertheless, our recent decisions generally establish the following. The invasion of a consumer’s legal right (a right, for example, established by statute or regulation), without more, may be a violation of G. L. c. 93A, § 2, and even a per se violation of § 2, but the fact that there is such a violation does not necessarily mean the consumer has suffered an injury or a loss entitling her to at least nominal damages and attorney’s fees; instead, the violation of the legal right that has created the unfair or deceptive act or practice must cause the consumer some kind of separate, identifiable harm arising from the violation itself. See Rhodes v. AIG Dom. Claims, Inc., 461 Mass. 486, 496 n.16 (2012) (Rhodes); Casavant v. Norwegian Cruise Line Ltd., 460 Mass. 500, 504-505 (2011) (Casavant); Iannacchino v. Ford Motor Co., 451 Mass. 623, 632-633 (2008) (Iannacchino); Hershenow v. Enterprise Rent-A-Car Co. of Boston, 445 Mass. 790, 801-802 (2006) (Hershenow). To the extent that the quoted passage from Leardi can be read to signify that ‘invasion’ of a consumer plaintiff’s established legal right in a manner that qualifies as an unfair or deceptive act under G. L. c. 93A, § 2, automatically entitles the plaintiff to at least nominal damages (and attorney’s fees), we do not follow the Leardi decision. Rather, as the Rhodes, Casavant, Iannacchino, and Hershenow decisions indicate, a plaintiff bringing an action for damages under c. 93A, § 9, must allege and ultimately prove that she has, as a result, suffered a distinct injury or harm that arises from the claimed unfair or deceptive act itself. 

Therefore, since Tyler, it is no longer the law in Massachusetts that the “invasion of a legally protected interest” standing alone constitutes a Section 9 injury. Rather, at most, it can violate Section 2 only. The court in Royal commingled and truncated the violation with the injury. Even so, the court apparently did find that the plaintiff suffered from emotional distress as a result of having to defend against a baseless small claims court filing. Emotional distress may serve as a separate and distinct injury under Section 9 to comply with Tyler. Therefore, if violation of Section 49 is the invasion of the legally protected interest (therefore violating Section 2), and plaintiff suffered measurable emotional distress as a result of having to defend the small claims filing (therefore establishing causation and a separate and distinct injury), then the court properly entered summary judgment—provided the facts concerning causation and emotional distress were not genuinely disputed. 

Citing a Massachusetts District Court Appellate Division decision, the court also concluded that a violation of Section 49 remedied the need for the plaintiff to show the act otherwise occurred in “trade or commerce.” That conclusion, however, would seem to be at odds with the express language of Section 2, which requires “trade or commerce” as a separate condition to unfairness or deceptiveness. Indeed, Section 49 only states that failure to comply with Section 49 shall constitute an unfair or deceptive act or practice. It says nothing about “trade or commerce.” It would seem incongruous with the intent of Chapter 93A to extend its protections to actions and conduct not occurring in “trade or commerce” as Section 2 expressly requires. The court’s reliance on the Appellate Division decision is puzzling, given that meeting the trade or commerce requirement would appear to have been easily met according to the facts of the case. Furthermore, owners of businesses engaged in trade or commerce may be exposed to Chapter 93A liability if they engaged themselves in the unfair acts or practices.

The case illustrates the continued confusion among the bench and bar with Chapter 93A’s requirements.