My business, located in Massachusetts, entered a contract with another business to develop and install a specific software program on our system. The details are some what convoluted but the bottom line is the company did not deliver as promised and, in my opinion, it is fairly obvious that they should have know they could not deliver the product with the performance levels they promised us. I'm in the process of hiring an attorney, but my question right now is whether Massachusetts 93A might entitle us to treble damages, even though the misrepresentations made by the other company were not, I believe, intentional, but rather negligent. That is, with a bit of research, they should have known. Even though they haven't delivered, we paid them over half of the contract amount along the way and they're not giving us any money back. Thanks.
Submitted by Richard65 on Wed, 11/23/2011 - 08:52
Posted in
Negligent misrepresentation under MA Consumer Protection Act
Very interesting. I'm glad you are looking for an attorney, because this sounds like a fairly complicated matter. It also sounds, to me, like a case that may indeed create liability under Chapter 93A. If that is the case then, in addition to treble damages, you may be entitled to collect your attorney's fees from the other company. Although, depending on the judge and on how the other party responds to your issue, treble damages are never a sure think under 93A.
Your attorney should be able to explain the relevant law to you, but if you are interested in doing some research yourself, you should start with Glickman v Brown, 21 Mass. App. Ct. 229 (1985). In Glickman, the Massachusetts Appeals Court held that since, under 93A, sellers are not allowed to misrepresent the truth, it follows that they should not be allowed make misrepresentations "simply because they have not made reasonable efforts to ascertain [the truth]." Accordingly, the Court held that a negligent misrepresentation of truth, where that truth is reasonably ascertainable, may constitute and unfair and deceptive act or practice under MA Chapter 93A, Section 2(a).
Perhaps even more interesting, in Perfectyourself.com, Inc. vs. Accusoft, a Massachusetts Superior Court judge actually applied the above reasoning to hold a software company liable under 93A. The case sounds very similar to yours and was based on charges by the plaintiff that the defendant software company negligently misrepresented its abilities. Good luck with your case.