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Boston Bar Journal
Legal Analysis

Controlling the Power of Chapter 93A: Eliminating the Threat of Multiple Damages by Identifying Grounds for Dismissal

September 18, 2026
| Summer 2026 Vol. 70 #3

By Stephanie R. Towne

A Chapter 93A claim is a powerful weapon in a litigator’s arsenal. Its assertion can shift a case’s value substantially due to the potential for the prevailing party to recover attorneys’ fees and multiple damages. Whether the claim can survive a motion to dismiss is therefore a key tactical question. For this reason, it is important for counsel to understand the grounds on which courts have (and have not) dismissed such claims.

Based on a review of Massachusetts trial court decisions over the past six years, this article identifies those arguments most often accepted as grounds for dismissing Chapter 93A claims. The article does not set forth every conceivable Chapter 93A defense. Nor does it address generally applicable defenses not specific to Chapter 93A, such as lack of ripeness or the existence of contractual provisions mandating arbitration.[1] Rather, the article focuses on dismissal arguments specific to Chapter 93A, which it presents through the following series of issue-spotting questions:

Is the Chapter 93A Claim Time Barred?

As with all claims, counsel should assess whether the Chapter 93A claim is subject to dismissal on statute of limitations grounds.[2] The statute of limitations for bringing a claim under Chapter 93A is four years. See G.L. c. 260, § 5A. A Chapter 93A claim begins to accrue when a plaintiff knows or should have known of the alleged injury.

For Consumer Claims, Did the Plaintiff Satisfy the Demand Letter Requirement?

Prior to bringing a claim under G.L. c. 93A, § 9, a plaintiff must have sent a demand letter to the defendant that identifies the basis for the Chapter 93A claim. According to the statutory language, such a letter must “reasonably describ[e] the unfair or deceptive act or practice relied upon and the injury suffered.” Counsel should assess the allegations to ascertain not only whether any demand letter was sent[3], but also to determine whether the demand letter was satisfactory. For example, if a defendant has been named in a Chapter 93A claim but never received a demand letter (even if other defendants did receive a letter), that can be grounds for dismissal as to the defendant who did not receive notice.[4] Likewise, if a plaintiff’s complaint contains a theory of Chapter 93A liability that was not set forth in the demand letter, the plaintiff may be barred from proceeding on that theory.[5] A plaintiff who runs into court before giving a defendant enough time (30 days) to respond to a demand letter will also find his or her claim subject to dismissal.[6]

Has the Plaintiff Alleged Unfair or Deceptive Acts with Respect to Each Defendant Named in the Count?

Sometimes a plaintiff will assert a Chapter 93A claim against multiple defendants, but the allegations in the complaint will only allege wrongdoing as to certain of them. This is impermissible. There must be allegations in a complaint that describe unfair and deceptive conduct by each defendant named in the Chapter 93A count, and if such allegations are missing, then that can be grounds for a motion to dismiss.[7]

Has the Plaintiff Alleged Facts Showing That the Parties Were in Trade or Commerce with One Another?

A Chapter 93A claim must be brought under either Section 9 or Section 11. Section 9 applies to consumers, whereas Section 11 can be considered a businessperson’s cause of action. Under either section, the defendant must be a person engaged in trade or commerce. Claims brought under Section 11 require both a defendant and a plaintiff to be engaged in trade or commerce. Under that section, the plaintiff must demonstrate that the unfair or deceptive conduct giving rise to the Chapter 93A violation took place within a “commercial relationship” or “business transaction” between the plaintiff and the defendant.[8]

A plaintiff’s failure to allege that parties were in trade or commerce with one another is one of the most common grounds for dismissal of Chapter 93A claims in both state and federal court, so counsel should carefully review the pleading to confirm that the plaintiff has satisfied this requirement. If there appears to be no commercial transaction or even business relationship between plaintiff and defendant in a case alleging unfair or deceptive acts[9], then there are likely grounds to move to dismiss.[10]

Are the Parties Part of the Same Venture?

Chapter 93A does not apply to claims between members of the same company, such as partners, co-members of an LLC, and employees/employers (this is often referred to as the “intra-enterprise exception” to Chapter 93A). Business litigators will sometimes include a Chapter 93A claim among many other claims asserted against another participant in the same venture. This is often improper and renders the Chapter 93A claim subject to dismissal.[11]

Is the Defendant a Governmental Actor Acting in Furtherance of its Governmental Functions or a Charitable Institution Acting in Support of its Core Mission?

A governmental actor or municipality is not subject to Chapter 93A unless it was acting in a business context (in other words, acting in trade or commerce). Counsel representing a governmental actor should carefully review the pleadings to determine whether the alleged unfair and deceptive conduct arose in the context of that actor carrying out its governmental function or whether it was alleged to have been engaged in commerce. Whether a municipality is acting in a business context depends on the nature of the transaction, the character of the parties involved and their activities, whether the transaction was motivated by business reasons, whether the municipality’s actions were incidental to a primary governmental function, and whether the municipality seeks to profit from its actions.[12]

Similarly, a charitable organization will typically not be liable under Chapter 93A if the challenged actions were undertaken in furtherance of the organization’s core mission.[13]

If the Chapter 93A Claim is Based in Fraud, Has It Been Pled with Particularity?

There is Massachusetts case law indicating that Chapter 93A claims based in fraud do not need to be pled with particularity.[14] Massachusetts federal courts, however, have been more receptive to the argument that Chapter 93A claims based in fraud must also be pled with particularity under Federal Rule of Civil Procedure 9(b).[15]

Does the Complaint Only Allege a Mere Breach of Contract?

A breach of contract, standing alone, does not constitute an unfair or deceptive trade practice, as required by Chapter 93A. In order for a breach of contract claim to rise to the level of a Chapter 93A violation, there must be evidence that the breaching party acted in disregard of known contractual arrangements and in a manner intended to secure benefits for itself. This generally occurs where one party breaches the contract in order to gain an unfair advantage over the other party—in other words, where the breach takes on an extortionate quality. If a complaint lacks allegations that a defendant did more than simply breach a contract, then the Chapter 93A claim is subject to dismissal.[16]

Does the Complaint Allege Only a Good Faith Dispute?

Similarly, if the complaint alleges only that the parties have a good faith dispute over whether money is owed or whether liability exists, that is insufficient to state a claim under Chapter 93A.[17] A good faith dispute over insurance policy provisions or a reasonable disagreement over conflicting interpretations of an ambiguous contract also will not support a Chapter 93A claim.[18]

Does the Complaint Allege Only Negligence?

As with basic breach of contract claims, a claim based on simple negligence (including negligent misrepresentation and malpractice), without more, does not support a finding that a defendant violated Chapter 93A. There must be evidence that the negligence resulted in an unfair act or practice. If the plaintiff appears to be trying to hold a defendant liable under Chapter 93A for acting carelessly or negligently, that is impermissible.[19]

Has the Plaintiff Alleged Damages Related to the Unfair and Deceptive Conduct?

It is not enough for a plaintiff to simply complain that a defendant engaged in unfair or deceptive conduct if such conduct did not directly harm the plaintiff in some fashion. The injury requirement is particularly stringent for Section 11 claims. For a plaintiff bringing suit under that section, they must allege that they have suffered a loss of money or property. Money means money, not time, and property means the kind of property that is purchased or leased, not intangibles. Under Section 9, a plaintiff need not show a loss of money or property (invasion of a legally protected interest is enough), but the plaintiff still must show some kind of personal harm as opposed to a generalized grievance. Counsel should review the allegations to confirm that a plaintiff has identified a harm and that such a harm is the kind of harm that is recognized under Chapter 93A.[20]

A plaintiff also must allege that their harm was caused by the unfair and deceptive conduct and not by some other source. Counsel should review the pleading to confirm that there are allegations demonstrating a causal chain between the alleged unfair and deceptive conduct and the harm.[21]

Is the Chapter 93A Claim Based Solely on the Same Allegations That Are Insufficient to Support Other Claims?

Chapter 93A does not require pleading an underlying tort or breach of contract, and, therefore, it is not automatic that dismissal of such other claims in a case requires dismissal of the Chapter 93A claim as well. As a practical matter, however, where the same allegations are used to support multiple claims in a case, if those allegations are deemed insufficient to support tort or contract claims, they will often likewise be insufficient to support a Chapter 93A claim.[22] For example, if a Chapter 93A claim is based on misrepresentations and the alleged misrepresentations are insufficient to state a claim for fraud, the Chapter 93A claim will likely fail as well.

Similarly, if an insurer is found to have correctly denied coverage, a Chapter 93A claim brought against that insurer will likely fail.[23]

Is the Chapter 93A Claim Based on Legally Protected Speech?

Consider whether there is an argument that the conduct giving rise to the Chapter 93A claim is protected by the First Amendment, the Fair Report Privilege, or the litigation privilege.[24]

Is the Chapter 93A Claim Preempted By Another State or Federal Law?

If the Chapter 93A claim arises in a factual circumstance that implicates another federal or state statutory regime, consider whether there is an argument that the Chapter 93A claim is preempted. For example, Massachusetts courts have found Chapter 93A claims to be preempted by, without limitation, ERISA, the Fair Credit Reporting Act, the National Labor Relations Act, federal copyright law, G.L. c. 93B, and the Carmack Amendment (covering rules for interstate freight transportation).[25]

If the Plaintiff is Arguing that Violation of an Underlying Statute Creates Chapter 93A Liability, is There an Argument That the Statute Does Not Apply?

Sometimes a plaintiff will base a Chapter 93A claim solely on a violation of another statute or regulation. If that is the case, counsel should consider whether there is an argument that such other statute or regulation clearly was not violated or does not apply to the defendant.[26]

Is the Conduct of Such a Nature That It Can Be Said Not to Be Unfair or Deceptive as a Matter of Law?

Whether a particular set of acts, in their factual setting, is unfair or deceptive is a question of fact, but whether conduct found to be unfair or deceptive rises to the level of a Chapter 93A violation is a question of law. Although there are cases that will reserve judgment on this issue until the development of a factual record, there are many cases that determine, on a motion to dismiss, that the conduct described by the plaintiff simply does not rise to the level of the kind of conduct prohibited under Chapter 93A.[27] For example, if the allegedly unfair or deceptive conduct was actually permitted by statute, regulation, or by the parties’ contract, there is likely no Chapter 93A claim as a matter of law.[28] Chapter 93A claims also do not lie for a mere failure to consummate negotiations, for the act of filing a lawsuit, for standard marketplace competition, or for a failure to respond to a demand letter.[29] Like all claims, allegations of unfair and deceptive conduct cannot be conclusory in nature. Therefore, counsel should not be shy about raising this type of challenge on a motion to dismiss.

Is it Obvious from the Pleadings That the Center of Gravity Is Not in Massachusetts?

Section 11 claims must be based on an unfair or deceptive act that occurred primarily or substantially in Massachusetts. Under this provision, the “center of gravity” of the deceptive conduct must have occurred in Massachusetts.

Massachusetts state courts are reluctant to decide this issue on a motion to dismiss (though on rare occasions, they will do so).[30] The Massachusetts federal court, however, is more willing to dismiss cases where the complaint’s allegations demonstrate that the facts giving rise to the claim did not occur primarily or substantially in Massachusetts. Therefore, practitioners litigating in federal court should make this argument where applicable.[31]

Is There a Governing Choice-of-Law Clause or Choice-of-Law Analysis That Requires Application of the Law of Another State?

Counsel should consider whether an agreement exists between the parties that their disputes would be resolved solely under the law of another state.[32] For example, this may arise in situations where a Chapter 93A claim is closely related to a claim for breach of contract and the underlying contract selects the law of another state.[33] Such clauses may prevent the parties from bringing Massachusetts state law claims like violation of Chapter 93A. Similarly, counsel should consider whether a choice-of-law analysis in a particular case would lead to the conclusion that the law of another jurisdiction would apply.[34]

Stephanie Towne is a partner at O’Connor Carnathan & Mack. She practices in all areas of civil litigation and regularly litigates in state and federal courts throughout the Commonwealth.

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