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Massachusetts General Law 93A, according to the Regulation of Business Practices for Consumer Protection, is to protect those consumers who otherwise would not have their rights. Mass. Gen. Law 93A. As it was originally designed, 93A does not create a private right to sue, a issue which was quickly from the legislature and now to consumers and businesses can use 93A as a basis for enforcing their rights through private litigation. Unlike some other states, the Massachusetts Consumer Protection Act provides an express rather than implied, to sue for companies that feel they were victims of a deceptive or unfair act. It is often easy to recognize a consumer protection regime problem with standard businesses, such as "bait and switch advertising, do not disclose defects which fixing prices, warranty claims faulty and un-expected return / refund policy. It is much more difficult to determine if a consumer protection claim on the basis of Mass. General Law 93A exists if the company is only involved in electronic commerce, and especially if the business is not within the state.

In assessing a potential consumer protection claim, it is necessary to remember that the necessary elements for a company and consumers. The consumer must be given formal and substantive requirements in section 9 of the Act. Among other elements, section 9, a 30-day demand letter, that they in fact a consumer is an unfair or deceptive practices, and a showing of harm.

Business, especially online businesses differ greatly in their required elements. Section 11 sets out requirements for a 93A claim, and requires that a company show:

1. That they have a "business" "- [to the settlement of trade and commerce];
2. That the defendant, an "unfair method of competition" or the defendant's actions were "unfair" or "misleading"; "
3. The fact that these actions occurred primarily and substantially in Massachusetts (the burden on the defendant to rebut this presumption as a defense) and
4. That these actions resulted in a loss for the plaintiff company of money or property, real or personal, for money damages, the issuance or
5. That these measures "may have the effect of the loss of money or property."

Mass. Gen. Law 93A
Due to the openness of the Internet and the anonymity that it may be extremely difficult to prove that a particular method was either unfair or deceptive. More difficult, especially in the context of an online business, is to demonstrate that a particular act, which causes damage or loss. As online transactions vary in height and because the market is constantly expanding, it can be extremely difficult to demonstrate actual loss or even the potential for loss. Since each element must prior to the submission of a claim, the prudent lawyer will research the facts of the case prior to the initiation of a 93A claim. Without the proper PLED elements, most judges, this is the case at the first opportunity.

In addition, online companies present unique jurisdictional issues, which demonstrates that the use of 93A for the consumer will be. To say it for all hoped that the application 93A to an online business, the "unfair or deceptive act" must be primarily or substantially within the Commonwealth of Massachusetts. If neither the deceptive / unfair trade, nor the damage takes place in MA, consumer protection rules will be barred claims on the basis of 93A, even if the victim is a Massachusetts resident or business. In recent Massachusetts Superior Court case of Fillmore v. Leasecomm Corp., the judge dismissed a consumer protection regime plea from a Massachusetts company against a California company, because the alleged misleading sales tactics and the unfair contracts were all executed in California. Fillmore v. Leasecomm Corp., 18 Mass. L. Rptr. 560, 2004 WL 3091642 (Mass. Super. Ct. Nov. 15, 2004). In Fillmore, the applicant, the application does not meet the "Center of Gravity" test for judicial purposes, and the claim was rejected. When deciding whether or not a demand of consumers in Massachusetts, it is best first impression of the act, the harm and responsibility. The more that within Massachusetts jurisdiction, the more likely the claim will be allowed to continue. However, Massachusetts courts found in favor of Massachusetts, where all elements, including the jurisdiction are met. If a contract was to be in Massachusetts, and the damage was in Massachusetts, then the judicial element are met and the court is for the claimant, as the Massachusetts Appeals Court has the Auto-Shine Car Wash Sys. V. Nice 'n Clean Car Wash, Inc., in-car service, the parties often met in Massachusetts, and the deception originated in Massachusetts. The court in favor of the plaintiff for damages in double the amount, as it was a willful and knowing violation of Mass. Gen. Laws ch. 93A 58 Mass. App. Ct. 685 (Mass. Appeals Ct. 2003).

Filing a claim by the consumer a much higher level of evidence and jurisdiction requirements, if your customer is a business. Pay attention to the consequences and potential wasted time you can when filing a claim without having met each element. Quite simply because Massachusetts does a company for the express right, claims, doe not mean that the judge is willing to overlook even the smallest deviations in the pleading requirements.

This article was written by Nicholas J. Deleault, Pierce Law Center'07 and lawyer Michael Goldstein of the law firm Goldstien and Clegg, LLC, a Massachusetts company Cyberlaw.