By: Alex R. Zwillinger, Esq. and Jessica A. Hartman, Esq.
Oftentimes, the first our construction clients hear that their customers are dissatisfied is when they receive a Chapter 93A demand letter, crammed with legalese, alleging bad work and “unfair and deceptive trade practices,” and demanding payment for damages.
Understandably, many contractors are unfamiliar with Chapter 93A, its requirements, and how to best protect themselves and their businesses when they receive such a demand. This article gives background on Chapter 93A and provides tips for how to protect yourself if you receive one.
Basics of Chapter 93A
The Massachusetts Consumer Protection Law, or Chapter 93A, enables consumers and businesses to take legal action against unfair or deceptive business conduct.
A consumer or business suing under the law must first send a detailed 30-day demand letter that outlines the harm suffered and the demanded relief. If the parties are unable to resolve their dispute, it then moves to litigation.
In litigation, a court can award a plaintiff double or treble (triple) damages if the plaintiff can prove:
(1) the defendant willfully and knowingly violated Chapter 93A, or
(2) the defendant refused to grant relief in bad faith with knowledge or reason to know that his acts violated Chapter 93A.
This means that should you fail to properly respond to a 93A demand letter, it could allow the plaintiff to demand up to triple the amount in damages that they suffered.
Chapter 93A in the Construction Context
In the construction context, common types of Chapter 93A allegations include:
- Defective work;
- Failure to pay invoices/change orders;
- Abandonment of the project;
- Improper termination from the project; and
- Misrepresentations or fraud in contract negotiations.
Specifically, contractors who are, or should be, licensed as Home Improvement Contractors need to be aware that a violation of any of Chapter 142A’s requirements for residential construction is automatically a violation of Chapter 93A, and therefore can expose the contractor to double or treble (triple) damages.
Tips for Responding to a Chapter 93A Demand Letter
If you receive a Chapter 93A demand letter, don’t panic. While it is not something to ignore, with the tips below you can ensure that you are in the best position to protect yourself and/or your company.
- Contact an Attorney ASAP
The recipient of a Chapter 93A demand letter has 30 days to respond under the statute. Failure to respond within 30 days can result in the court awarding double or treble (triple) damages. Therefore, it is critical to contact an attorney quickly to allow time for the attorney to investigate the allegations and put together a response.
Keep in mind that while individuals can represent themselves in court, business cannot. Therefore, even if you may be able to respond to the letter effectively, you still need counsel to protect the business’s interests.
While you are in the process of obtaining representation, do not engage with the demand’s author about the issue in dispute. However, as detailed below, do continue performing work and/or any other contractual obligations unless your attorney advises otherwise.
2. Document the Issue
Whatever the nature of the dispute is, document it to ensure you can provide your attorney with the most complete understanding possible. Documentation can include:
- Taking notes of any phone or in-person conversation.
- For example, write a summary email of what was discussed after the conversation and send it to those involved and ask for confirmation of your understanding.
- Take pictures and/or videos where appropriate.
- Try to include enough context in the picture/video so that an outsider can understand the situation.
- Create a timeline of the project and dispute.
3. Preserve and Compile Relevant Documents
In litigation, you have an obligation to preserve any potential evidence relevant to the dispute. In the construction context, this can mean:
- Text messages;
- Emails;
- Hard-copy paperwork exchanged; or
- Documents submitted though project management or payment systems.
To ensure evidence is preserved, direct your employees and any subcontractors, vendors, suppliers, etc. that you have control over to not delete any evidence from their work or personal devices or accounts.
Additionally, begin compiling all the relevant documents related to the project, such as:
- Contract documents and any amendments;
- Specifications, proposals, drawings, etc.;
- Change orders, invoices/payment applications, and accounting;
- Any communications regarding the disputed matter; and
- The emails that any relevant document was attached to.
You don’t necessarily need to have all this information packaged up immediately, and you should not delay contacting an attorney to collect this information, but whatever you can gather up ahead of time will be helpful.
4. Continue Working as Required
Many contracts contain a “work under protest” clause. While the actual language of the clause varies from contract to contract, these clauses generally require a contractor to continue doing their project work while any dispute is pending.
If you are uncertain if your contract contains this clause, or whether it applies, the safest bet is to continue working, if possible, until your attorney can give you further guidance. Additionally, continue submitting invoices/payment applications and change orders in the usual manner for the project.
Continuing with work may also raise questions of providing notice to others who may have an interest in the dispute. Your attorney can help with providing adequate notice, but some potential parties to keep in mind are:
- Your insurer(s);
- Any subcontractors/vendors/suppliers; or
- The general contractor and/or owner.
5. Think Strategically
To help yourself, and your lawyer, think strategically about the dispute, and gather any information required to pursue your interests. For example, ask yourself:
- What is the ideal outcome for your situation? What will you settle for?
- What does the other side want? What might they settle for?
- Are other parties involved and/or experiencing a similar dispute?
- Has the other side done anything improper on the project?
- What would it entail to fix any defective work alleged?
- What would it entail to finish any uncompleted work?
Above all, keep it in mind that responding to a Chapter 93A demand letter does not mean that you are on the defense. Remember – the best defense is a great offense. And with Kenney & Sams by your side, we will go on the offense and fight to protect your interests and achieve results, no matter the circumstances.
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This alert is for informational purposes only and may be considered advertising. It does not constitute the rendering of legal, tax, or professional advice or services. You should seek specific detailed legal advice prior to taking any definitive actions.