Massachusetts Business Attorney · Business Law
“Can I really get three times my damages?” I hear that question from business owners who think they were cheated. I hear the reverse from owners who just received a demand letter: “Can they really get three times their damages from me?”
The short answer is yes, sometimes. Chapter 93A, the Massachusetts consumer protection law, allows a court to award double or triple damages plus attorney’s fees. But multiple damages are not automatic. They depend on which section of the statute applies, what the claimant can prove they actually lost, and the defendant’s state of mind. This guide explains how 93A damages work, how the multiplier is calculated, and where the limits are.
The short version
- The starting point is actual damages, the loss the unfair or deceptive conduct caused.
- If the violation was willful or knowing, the court must award at least double and may award up to triple that amount.
- Under § 9 only, multiple damages are also available when a business refused relief in bad faith after receiving a demand letter.
- The multiple replaces single damages. It is not added on top of them.
- A claimant who proves a violation is generally awarded reasonable attorney’s fees and costs, which are added separately and are not multiplied.
- Prejudgment interest is not added to the multiplied portion of an award.
Section 9 or Section 11: why it decides what you can recover
Chapter 93A has two private enforcement sections. Which one applies changes the damages rules.
- Section 9 covers any person injured by an unfair or deceptive practice, other than a person entitled to sue under § 11. In practice, that usually means consumers.
- Section 11 covers a person engaged in trade or commerce who suffers a loss of money or property because of another business’s unfair or deceptive conduct.
The differences that matter for damages:
- Minimum recovery. Section 9 provides for actual damages or $25, whichever is greater. Section 11 has no $25 minimum.
- Type of harm. Section 9 speaks of a person “injured.” The SJC has held that emotional distress caused by a 93A violation can be compensable under § 9 (Haddad v. Gonzalez, 410 Mass. 855 (1991)). Section 11 requires a “loss of money or property,” although a business may seek an injunction to prevent such a loss.
- Routes to multiple damages. Section 9 has two: a willful or knowing violation, or a bad-faith refusal to grant relief after a demand. Section 11 has only one: a willful or knowing violation.
- Demand letter and tender. Section 9 requires a 30-day pre-suit demand letter (with exceptions) and gives the business 30 days to make a written settlement tender. Section 11 has no demand-letter requirement; the defendant may instead file a written offer of single damages with its answer.
For more on business-to-business claims, see Chapter 93A demand letters when a business sues a business.
Actual damages, the $25 minimum and the causation trap
Everything starts with actual damages. Proving that conduct was unfair or deceptive is not enough. The claimant must also prove that the conduct caused a real loss.
That is true even for the $25 minimum under § 9. In Hershenow v. Enterprise Rent-A-Car Co. of Boston, Inc., 445 Mass. 790 (2006), the SJC held that the statutory damages provision does not replace the requirement to prove causation. The $25 figure helps a claimant who was harmed but cannot easily put a dollar value on the harm. It does not help a claimant who was not harmed at all.
Causation and injury are often where a 93A claim is weakest. I cover them in more detail in our article on defenses to Chapter 93A claims. For what counts as an unfair or deceptive practice in the first place, see what makes a business practice unfair or deceptive under Chapter 93A.
Misrepresentation damages: benefit of the bargain or out of pocket?
Many 93A claims involve a misrepresentation: a product, property or business that was not what the seller said it was. There are two ways to measure that loss.
- Benefit of the bargain: the difference between the value of what the buyer received and the value it would have had if the statements had been true.
- Out of pocket: the money the buyer actually lost by relying on the misrepresentation, putting the buyer back where it started.
Massachusetts has long applied the benefit-of-the-bargain measure in deceit cases (Rice v. Price, 340 Mass. 502 (1960)). But in Twin Fires Investment, LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411 (2005), the SJC said that benefit-of-the-bargain damages are limited to intentional misrepresentation and are the usual rule only “in appropriate cases.” Where the plaintiff did not acquire anything that turned out to be worth less than promised, the court limited recovery to the loss actually suffered, and that also defeated the argument for trebling a larger benefit-of-the-bargain figure under 93A.
Because the multiplier applies to whatever base the court accepts, the choice of measure can matter as much as the multiplier itself.
When damages double or triple
Under both sections, if the court finds that the use of the unfair or deceptive act was a “willful or knowing” violation, recovery is “up to three but not less than two times” actual damages. Once that finding is made, at least double damages are mandatory.
Section 9 adds a second route. Multiple damages are also available if the business’s refusal to grant relief upon demand was made in bad faith, with knowledge or reason to know that the practice violated the statute. That is why the response to a § 9 demand letter matters so much. A dismissive or bad-faith response can create multiple-damages exposure on its own. If you have received one, see your business received a Chapter 93A demand letter: now what?
Section 11 has no bad-faith-refusal route. In a business-to-business case, multiple damages depend on proving that the violation itself was willful or knowing.
What “willful or knowing” means
Multiple damages under Chapter 93A are a penalty. The SJC has said that the multiple damage provisions are designed to impose a penalty that varies with the culpability of the defendant (International Fidelity Insurance Co. v. Wilson, 387 Mass. 841 (1983)). Defendants whose violations were relatively innocent pay single damages. Defendants whose violations were willful or knowing pay double or triple.
Negligence is not enough. In Wang Laboratories, Inc. v. Business Incentives, Inc., 398 Mass. 854 (1986), the SJC said plainly that a negligent unfair act or practice does not qualify for multiple damages. A business that made an honest mistake may still violate 93A and owe actual damages and fees, but it should not face a multiplier for that mistake alone.
What does qualify depends on the facts. Knowingly making a false statement to close a sale, or deliberately using a contract to take something the other side was entitled to keep, are the kinds of conduct that tend to support a finding. The judge decides, based on the evidence about what the business knew and intended.
How double and treble damages are calculated
Multiply, don’t add. The statute awards two or three “times such amount.” If actual damages are $40,000, double damages are $80,000 and treble damages are $120,000. Treble damages are not $40,000 plus another $120,000.
What gets multiplied. Both § 9 and § 11 say that the amount of actual damages to be multiplied is “the amount of the judgment on all claims arising out of the same and underlying transaction or occurrence,” regardless of whether insurance is available to pay the claim. So if a breach-of-contract count and a 93A count arise out of the same deal, the contract damages can become part of the multiplied base.
What does not get multiplied. Attorney’s fees and costs are awarded under a separate subsection of the statute and are added after the damages calculation. In insurance cases where the multiplied amount is based on an earlier judgment, the SJC has held that postjudgment interest on that judgment is not part of the amount multiplied (Anderson v. National Union Fire Insurance Co. of Pittsburgh, 476 Mass. 377 (2017)).
Double or triple is the court’s call. Once a willful or knowing violation is found, the judge chooses the multiple between two and three based on the seriousness of the conduct. There is no right to a jury trial on a Chapter 93A claim (Nei v. Burley, 388 Mass. 307 (1983)), so the 93A claim, including the multiplier, is decided by the judge.
No double-dipping: 93A and common-law counts for the same loss
Most 93A complaints include other counts, such as breach of contract, breach of warranty, fraud or negligent misrepresentation. Chapter 93A relief is “in addition to, and not an alternative to,” traditional tort and contract remedies (Linthicum v. Archambault, 379 Mass. 381 (1979)). But that does not mean a claimant collects twice for the same harm.
In Calimlim v. Foreign Car Center, Inc., 392 Mass. 228 (1984), the SJC held that duplicative damage recoveries will not be permitted. Separate recoveries are allowed only for separable injuries. If the contract count and the 93A count compensate the same loss, the claimant gets one recovery for that loss, not one under each count.
Attorney’s fees: often the biggest number in the case
If the court finds a violation, the statute provides that the claimant shall be awarded reasonable attorney’s fees and costs incurred in connection with the action, “irrespective of the amount in controversy.” That last phrase is important. A claim worth a few thousand dollars can still carry a fee award many times larger, because the fee is measured by the work reasonably required, not by the size of the loss.
The judge sets the amount. In Linthicum v. Archambault, the SJC listed factors that include the nature of the case and the issues presented, the time and labor required, the amount of damages involved, the result obtained, and the experience, reputation and ability of the attorney, along with the usual price charged for similar services. The amount is largely within the judge’s discretion. A claimant who wins on appeal may also be awarded fees for the appeal (McEvoy Travel Bureau, Inc. v. Norton Co., 408 Mass. 704 (1990), citing Yorke Management v. Castro, 406 Mass. 17 (1989)).
Fee shifting runs one way. The statute awards fees to a claimant who proves a violation. It does not give a business that defeats a 93A claim its fees from the claimant.
Under § 9, there is one important limit. If a business made a reasonable written settlement offer within 30 days of the demand letter and the claimant rejected it, the court must deny fees and costs incurred after the rejection.
Interest on a 93A award
Massachusetts law adds prejudgment interest to damages in many civil cases. In contract actions, G.L. c. 231, § 6C provides for interest at the contract rate, or 12 percent per year if none is set, generally from the date of the breach or demand. Section 6B covers tort actions for personal injury and property damage.
Interest does not stack on the penalty. In McEvoy Travel Bureau, Inc. v. Norton Co., the SJC held that prejudgment interest is not to be added to multiple damages imposed under Chapter 93A. Interest is meant to compensate a party for the loss of the use of its money. Multiple damages are punitive, and adding interest to them would compound the penalty. In practical terms, interest attaches to the single, compensatory damages, not to the extra amount added by doubling or trebling.
Insurance-claim cases, where the base is an earlier judgment, have their own rules on interest.
How a business can limit exposure: the settlement tender
The statute gives businesses a way to cap damages with a reasonable written offer. Under § 9, a tender made within 30 days of the demand letter that the court later finds reasonable in relation to the injury actually suffered limits recovery to the amount tendered and cuts off later fees. Under § 11, a reasonable written offer of single damages filed with the answer prevents the court from awarding more than single damages. An offer the court finds unreasonable gives no protection. I discuss the tender in more detail in your business received a Chapter 93A demand letter: now what? and defenses to Chapter 93A claims.
What this means for business owners
If you were wronged, a 93A count can change the value of a case. But the multiplier is earned with evidence of what the other side knew and did, not by adding “93A” to a contract dispute. The base you can prove, the measure of damages and the fee record you build all matter.
If you are facing a 93A claim, the exposure is real, but so are the limits. Whether the conduct was negligent or knowing, whether the claimed loss was actually caused by the conduct, whether common-law and 93A damages overlap, and whether a reasonable tender was made can each change the final number.
Frequently asked questions
Are treble damages automatic in a 93A case?
No. Multiple damages require a finding that the violation was willful or knowing, or, under § 9 only, that the business refused relief in bad faith after a demand. Without that finding, recovery is actual damages (or $25 under § 9 if greater), plus fees and costs.
Are attorney’s fees tripled too?
No. The statute multiplies actual damages. Reasonable attorney’s fees and costs are awarded separately and are added to the judgment, not multiplied.
Can I recover under both 93A and breach of contract?
You can bring both counts, but you cannot recover twice for the same loss. Under § 9 and § 11, the multiplied amount is the judgment on all claims arising out of the same transaction, so related contract damages can be part of the base.
Does a jury decide whether damages are doubled or tripled?
No. There is no right to a jury trial on a Chapter 93A claim. The judge decides whether there was a willful or knowing violation and chooses the multiple.
Getting help with a Chapter 93A claim
Whether you are considering a 93A claim or responding to one, the damages analysis starts early, often with the demand letter. To learn more, see our Massachusetts business law services, or contact our office at 978-273-8337.
About the Author
Richard Alan Gaudet, Esq. is a Massachusetts attorney at the Law Offices of Richard Alan Gaudet, LLC in Middleton, Massachusetts, who advises businesses and individuals on collections, Chapter 93A claims and commercial disputes. His practice focuses on professional license defense, business law and litigation, family law, and landlord representation, serving clients across Northern, Eastern, and Central Massachusetts. Reach him at 978-273-8337 or rgaudet@gaudetlawoffice.com. Office: 35 Village Rd., Ste 100, Middleton, MA 01949.
ABOUT THIS ARTICLE
This article was prepared by a Massachusetts attorney and is provided solely for general informational and educational purposes directed to members of the general public. It does not constitute legal advice and does not create an attorney-client relationship. The law applicable to any particular situation depends on the specific facts and circumstances of that matter. Readers are encouraged to seek the advice of a licensed Massachusetts attorney before taking any action.
