Tuesday, July 1, 2008

New SJC Case on 93A Injury Requirement

The Massachusetts Supreme Judicial Court again took on a case addressing the injury requirement under the Massachusetts Consumer Protection Act ("93A"). In Iannacchino v. Ford Motor Co., 451 Mass. 623 (2008) the Court found against the plaintiff on narrow, pleading-based grounds and in the course of doing so addressed the vexing issue of the harm required to state a claim under 93A. In Iannacchino , the putative class had purchased Ford vehicles with door latches that allegedly failed to meet federal safety standards. The defendants argued that even if the door latches were faulty, there could be no legally cognizable injury under 93A because the plaintiffs did not allege that any of the latches had actually malfunctioned--only that they had a higher propensity to do so. The plaintiff's argued that the vehicles were inherently less valuable than ones with compliant door latches. This is an argument with which the SJC agreed, stating: "If Ford knowingly sold noncompliant (and therefore potentially unsafe) vehicles or if Ford, after learning of noncompliance, failed to initiate a recall and to pay for the condition to be remedied, the plaintiffs would have paid for more (viz., safety regulation-compliant vehicles) than they received. Such an overpayment would represent an economic loss-measurable by the cost to bring the vehicles into compliance-for which the plaintiffs could seek redress under G.L. c. 93A, § 9." The SJC went on the impose a pleading requirement that plaintiffs allege noncomplicance with government standards to state a claim for diminution-of-value injury--at least in the vehicle context.

I do not see this holding providing much clarity for the muddled 93A injury jurisprudence outside of the context of products and warranties. I participated in the amicus brief committee supporting the plaintiffs in this case. It was interesting to see how many fact scenarios could be affected by the injury concept. Some plaintiffs--such as those with lead paint cases--are likely vindicated by the Iannacchino holding because it recognizes a diminution of value injury. However, in the debt collection context the situation is far more murky. For example, Massachusetts regulations prohibit creditors from calling consumers at home to collect a debt more often than twice in a seven day period. This requirement is routinely violated. However, if a plaintiff can not prove emotional distress or other damages with sufficient evidence, can a plaintiff or class of plaintiffs state a claim under 93A? If not, unlawful business practices are left undisturbed. If they can, the notion of injury must accommodate something along the lines of the "invasion of a right as injury". This is where many thought the law was under old case law (Leardi). However, it is hard to reconcile this idea with the SJC's Hershenow decision.

I believe that a debt collection case like the one above needs to be brought to better define the injury standard under 93A.