Does Massachusetts law allow me to send a 93A demand letter (consumer complaint) to an out of state business? (Posted on the Forum Chat Room by Doug.)

 Yes, you can send a demand letter (pursuant to Massachusetts General Laws Chapter 93A) to an out of state business. Technically, you can pursue a claim under 93A against an out of state business--that does not keep a place of business of keep assets in the state--without sending a demand letter (See M.G.L. Chapter 93A, Section 9), but I think it's a good idea to send the letter before pursuing the action.  However, if the business refuses to respond or responds in a manner that does not satisfy you, then the question becomes whether a Massachusetts court will have ‘subject matter jurisdiction’ over the dispute (to carry out the sanctions imposed by Massachusetts General Laws Chapter 93A). Subject matter jurisdiction exists under Massachusetts law when the ‘unfair or deceptive act occurred ‘primarily or substantially’ within Massachusetts. For that analysis, you need to consider such things as where the contract was signed (if any), where the parties met to discuss the product or service (did the prospective defendant make unfair and deceptive statements in MA or deliver any deceptive literature to MA?), where the various parts of the transaction occurred, where the damages were suffered, etc. Not all elements of the deceptive act or practice need to occur in Massachusetts, just enough to satisfy what Massachusetts courts refer to as the ‘center of gravity’ test.

 For some interesting analysis of the issue, and for a greater understanding of whether your dispute will satisfy the center of gravity test, try looking at the following case law: In Fillmore v. Leasecomm Corp., 18 Mass. L. Rptr. 560, 2004 WL 3091642 (Mass. Super. Ct. Nov. 15, 2004), a Superior Court judge dismissed a claim brought by a Massachusetts company against a California company because the allegedly deceptive sales tactics occurred in California and the unfair contracts were consummated in California. However, in Auto Shine Car Wash Sys. v. Nice 'n Clean Car Wash, Inc., 58 Mass. App. Ct. 685 (Mass. Appeals Ct. 2003), the court found subject matter jurisdiction in a case where the parties met frequently in Massachusetts and the misrepresentations were made in Massachusetts. Finally, don’t waste time. You don’t want to lose the right to sue the business in its home state (if a Massachusetts court declines jurisdiction) because of that state’s statute of limitations. Send the demand letter as soon as you become aware of the unfair or deceptive act, then follow up in court as soon as the business declines to satisfy your demand.

Here is some language from M.G.L. Chapter 93, Section 11:

No action shall be brought or maintained under this section unless the actions and transactions constituting the alleged unfair method of competition or the unfair or deceptive act or practice occurred primarily and substantially within the commonwealth. For the purposes of this paragraph, the burden of proof shall be upon the person claiming that such transactions and actions did not occur primarily and substantially within the commonwealth.

For more information or to post a question, visit our MA Consumer Law Discussion Forum.