For decades, plaintiffs have sought to charge Massachusetts
public entities with violations of the Regulation of Business
Practice and Consumer Protection Act (the act)1 and
obtain the enhanced damages, including multiple damages and
attorneys' fees, provided under the act.
In so doing, plaintiffs have relied upon the statutory definition
of a "person" as "natural persons, corporations, trusts,
partnerships, incorporated or unincorporated associations, and any
other legal entity,"2 and argued that public entities,
such as the commonwealth itself, fit within this definition. The
sweepingly broad definition of a "person" against whom suit may be
brought has created confusion and invited much litigation against
the commonwealth and its subdivisions.
Despite the significant volume of such claims against the
commonwealth and its subdivisions, the question of whether the
private causes of action created by the act are barred by the
doctrine of sovereign immunity has evaded definitive review, until
In February 2011, in Max-Planck-Gesellschaft Zur Forderung Der
Wissenschaften E.V. v. Whitehead Institute for Biomedical
Research,3 the Hon. Patti B. Saris, of the U.S.
District Court for the District of Massachusetts, expressly ruled
that Chapter 93A claims brought by inventors claiming improper
licensing of intellectual property rights against the University of
Massachusetts were barred by the doctrine of sovereign immunity.
This ruling was the first instance where a court affirmatively
acknowledged that the doctrine of sovereign immunity bars Chapter
In the decades preceding the Max-Planck-Gesellschaft
decision, the ambiguity in the law had been perpetuated by a number
of decisions that, while ruling in favor of public entities on
factual findings that the defendant was not engaged in trade or
commerce, appear to acknowledge that public entities may be
"persons" as defined by the act.4 Courts in other cases
discussed the ambiguity but failed to directly rule on
The Appeals Court, in M. O'Connor Contracting, Inc. v. City of
Brockton, noted that "(w)hether a governmental entity is ever
amenable to suit under c. 93A remains an open issue."6
The court acknowledged that the act "contains no explicit
indication that governmental entities are to be liable under its
provisions,"7 but also recognized that public entities
have standing to bring claims under the act, and opined that this
fact would support a finding that they are also liable under the
But, like the preceding cases, the court then put aside the
question of whether Chapter 93A may be read as waiving governmental
immunity in any circumstances, and ruled on other grounds. That
same year, 2004, the Supreme Judicial Court expressly acknowledged
that the issue of whether public entities are persons amenable to
suit under Chapter 93A has evaded review, stating that "no case has
presented us with an occasion to decide whether a municipality may
in some circumstances be 'amenable to the provisions' of G.L. c.
The Max-Planck-Gesellschaft case required the U.S.
District Court to grapple with the issue head on because the facts
there clearly established that the defendant, the University of
Massachusetts, was engaged in trade and commerce. More
specifically, the claims against the University of Massachusetts
involved contracts entered into "solely for profit" and did not fit
any of the traditional governmental roles.10 Thus, this
unique set of facts required, at long last, a critical analysis of
the application of the doctrine of sovereign immunity to Chapter
The court recognized that under well-established Massachusetts
law, waiver of sovereign immunity requires either an express
legislative waiver or a finding that such a waiver is necessarily
implied from the terms of the statute.11 It then noted
that Chapter 93A contains no explicit waiver of sovereign immunity,
and opined that an implied waiver must be "very
clear."12 The court then acknowledged that in general,
Massachusetts statutes that use the term "person" do not encompass
governmental entities, and found that the Massachusetts Legislature
has explicitly defined "person" to include the commonwealth in
other ?statutory enactments.13
Moreover, the court's decision affirmatively states that the
Legislatures' use of the term "any other legal entity" is not a
sufficient basis to support a finding that the Legislature intended
to waive sovereign immunity in Chapter 93A.14
In reaching its decision, the court applied the test set forth in
Todino v. Town of Wellfleet15 and Bates v.
Director of Office of Campaign and Political
Finance16 that implied waiver can only be found
where it is necessarily implied by the statute and without such
implication the statute would be rendered ineffective. The court
concluded that exempting the commonwealth and its municipalities
from liability under Chapter 93A would not render the act
"ineffective," and thus held that sovereign immunity was not waived
by Chapter 93A.17
While the Max-Planck-Gesellschaft decision stands as a
trial court decision that will not be reviewed on appeal, it
provides important guidance on an issue that has long evaded
substantive review. Moreover, it stands as a call to the
Legislature to clarify the language of the act to either
affirmatively exempt public entities or to explicitly include
public entities within the ambit of the term "person."
Doing the former would put an end to plaintiffs' pursuit of
attorneys fees and double or treble damages against the
commonwealth and its subdivisions and relieve taxpayers of the
costly burden of defending Chapter 93A claims.
1MASS. GEN. LAWS c. 93A (2011).
2MASS. GEN. LAWS c. 93A § 1 (2011).
3No. 09-CV-11116-PBS, 2011 WL 487828 (D. Mass. Feb. 7,
4See, e.g., Park Drive Towing, Inc. v. City of
Revere, 442 Mass. 80, 86 (2004); All Seasons Services, Inc. v.
Comm'r of Health and Hospitals of Bos., 416 Mass. 269, 271 (1993);
Morton v. Town of Hanover, 43 Mass. App. Ct. 197, 206 (1997).
5See, e.g., M. O'Connor Contracting, Inc. v.
City Of Brockton, 61 Mass.App.Ct. 278, 284 (2004).
6Id. at n.8.
9Park Drive Towing, 442 Mass. at 86.
10Max-Planck-Gesellschaft, 2011 WL 487828, at
11Id., at *12.
14Id. at *13.
15448 Mass. 234, 238 (2007).
16436 Mass. 144, 174 (2002).
17Max-Planck-Gesellschaft, 2011 WL 487828, at
Richard M. Dohoney is a partner in the Berkshire
County-based law firm of DeRosa Dohoney LLP. He concentrates in
civil litigation and frequently represents plaintiffs and
municipalities in litigation involving contracting disputes,
eminent domain and zoning matters. He is a member of the MBA's
Civil Litigation Section Council.