MPT's main claim is that VSI failed to provide a particular form of proof of "special damages" — namely, lost sales to specific named customers as opposed to expert evidence and general data from which aggregate loss of sales might be inferred. In most fields of tort law, a plaintiff having established wrongdoing may prove damages in any reasonable way, e.g., Graves v. R.M. Packer Co., 45 Mass.App.Ct. 760, 702 N.E.2d 21, 28 (1998) (stating that the damages evidence need only "afford a 'basis for a reasonable judgment'" (quoting Linkage Corp. v. Trs. of Boston Univ., 425 Mass. 1, 679 N.E.2d 191, 210 n. 38 (1997))); but for peculiar reasons, probably more historical than prudential, a number of jurisdictions following the Restatement (Second) of Torts require in product disparagement cases proof of specific lost sales to identifiable customers unless it is infeasible to provide such proof. The phrase "special damages" — common in defamation law — means nothing more than actual damages (as opposed to damages — e.g., to reputation — that are presumed for certain libelous statements), Peckham v. Holman, 28 Mass. (1 Pick.) 484, 486 (1831); the Restatement, followed in a number of jurisdictions, goes even further — in certain but not all cases — by demanding proof of specific lost sales.
Wellons maintains that Deerskin requires a separate finding by the trier of fact only where the date of breach or demand is actually in dispute or otherwise ambiguous. Cf. Karen Constr. Co., 484 N.E.2d at 1012-14 (pre- Deerskin case referring to "alleged date of breach" in dispute involving owner's refusal to pay builder balance on several installments of contract; concluding that date of breach had not been established at trial and awarding prejudgment interest from date complaint was filed); Graves v. R.M. Packer Co. 45 Mass.App. Ct. 760, 702 N.E.2d 21, 29 (1998) (post- Deerskin case where there was no admission as to the date of breach of oral contract to repair and maintain underground storage tank; upholding award of prejudgment interest from date of commencement of the action). In Deerskin, the SJC established a bright-line rule mandating an award of prejudgment interest under the statute from the date of commencement of the action where "the demand of breach or demand is not established."
Wolf v. Comm'r of Pub. Welfare, 367 Mass. 293, 300, 327 N.E.2d 885 (1975) (citing Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975)); see also Meaney v. OneBeacon Ins. Grp., LLC, No. 07–1294–BLS2, 2009 WL 884613, at *7–9 (Mass.Super.Ct. Feb. 25, 2009) (Neel, J.) (holding that a timely and effective offer to an individual claimant “will not serve to moot all claims brought ... on behalf of the putative class”). “The award belongs to the plaintiffs, not the attorneys.” Maston v. Poirier, 81 Mass.App.Ct. 1131, No. 11–P–358, 2012 WL 1398619, at *2 (Mass.App.Ct. Apr. 24, 2012) (“Regardless of the fee arrangements between the attorneys and the plaintiffs, having prevailed on their [Chapter] 93A claims, the plaintiffs were entitled to recover an award of reasonable attorneys' fees.”); Graves v. R.M. Packer Co., 45 Mass.App.Ct. 760, 771, 702 N.E.2d 21 (1998) (“The award of fees under [Chapter] 93A belongs to the prevailing party, not the attorney.”). The courts have not, however, clearly defined whether attorneys' fees awarded under Chapter 93A, Section 9 belong to the individual petitioner or to the class.
It does not directly, however, address the question of whether a plaintiff, who retained an attorney on a contingent fee basis, may collect a statutory attorney's fee, once he prevails, under section eleven. More direct authority is found in Graves v. R.M. Packer Co., 702 N.E.2d 21, 23, 28-29 (Mass.App.Ct. 1998), where the appeals court upheld a ruling which conditioned an award of attorney's fees under section eleven on the abrogation of a contingent fee agreement. See also Siegel v. Berkshire Life Ins. Co., 835 N.E.2d 288, 293 (Mass.App.Ct. 2005) ("Regardless of the arrangements Carole had with her attorney, as the prevailing party in a c. 93A case, she was entitled to recover a reasonable attorney's fee for the work done to vindicate her rights under the statute.").
The two cases relied on by the defendants do not help them. Graves v. R.M. Packer Co., Inc., 702 N E.2d 21 (Mass.App.Ct. 1998) held that an "award of fees under c. 93A belongs to the prevailing party, not the attorney." Id. at 29.
January 25, 1999Further appellate review denied: Reported below: 45 Mass. App. Ct. 760 (1998).
We think the judge properly applied the statutory interest rate as of the date of commencement of the Simply Surgical's counterclaim. See Graves v. R.M. Packer Co., 45 Mass.App.Ct. 760, 771, 702 N.E.2d 21 (1998). 3.
Regardless of the arrangements Carole had with her attorney, as the prevailing party in a c. 93A case, she was entitled to recover a reasonable attorney's fee for the work done to vindicate her rights under the statute. See Graves v. R.M. Packer Co., 45 Mass. App. Ct. 760, 771 (1998). The award of fees under the statute belongs to the prevailing party, not the attorney, while the extent of the party's obligation to pay his or her attorney is defined by the agreement between them.
Continuing: when the first note fell due, and a renewal was necessary, the judge found that Gennaro, the loan officer, by negligent misrepresentations "fraudulently induced" Hayeck to sign the second note. See Graves v. R.M. Packer Co., 45 Mass. App. Ct. 760, 767 n.12 (1998), and cases cited therein. The judge found that Gennaro "assured Hayeck that the bank was [emphasis in original] holding the $65,000 in a separate NENMCO account from which the note would be repaid."
Pepsi-Cola Metro. Bottling Co. v. Checkers, Inc., 754 F.2d 10, 18 (1st. Cir. 1985); see also Massachusetts Employers Ins. Exch. v. PropacMass, Inc., 420 Mass. 39, 43 (1995); Community Builders, Inc. v. Indian Motocycle Assocs., Inc., 44 Mass.App.Ct. 537, 559 (1998). However, a case involving a breach of contract may establish unfair or deceptive conduct where the circumstances indicate that the defendant: (1) violated the implied covenant of good faith and fair dealing, see Cherick Distribs. v. Polar Corp., 41 Mass.App.Ct. 125, 128 (1996); (2) made fraudulent misrepresentations, see Graves v. R.M. Packer Co., 45 Mass.App.Ct. 760, 768 (1998); or used the breach as leverage to gain an economic advantage or other concession, see Clamp-All Corp. v. Foresta, 53 Mass.App.Ct. 795, 812-13 (2002), and cases cited. Similarly, whether a breach of warranty qualifies as an unfair or deceptive act or practices depends on whether the circumstances demonstrate more than a simple breach of warranty.