In Courtemanche v. Motorola Sols., Inc., at the defendant’s request, the district court certified questions about the plaintiffs’ Massachusetts General Laws Chapter 93A, Section 9 claims to the First Circuit Court of Appeals. As readers of this blog are aware, Section 9 allows consumers to bring claims for unfair practices.
In this case, the plaintiffs alleged that the defendant engaged in unfair practices by knowingly marketing and selling surveillance technology to the Massachusetts State Police (MSP) that contained a default setting to record conversations without notice, in violation of the Massachusetts Wiretap Act (which requires notice and consent). In other words, the plaintiffs assert that regulatory noncompliance coupled with knowledge of that noncompliance constitute an unfair business practice. We have reported on the district court’s first attempt to deal with the underlying issues in a February 2025 blog post.
In this case, after being sued by four individuals who had their conversations recorded without consent (who were then prosecuted), the defendant moved to dismiss the plaintiffs’ Section 9 claims. The district court denied that motion because the court found that the plaintiffs had sufficiently alleged that the defendant’s conduct fell within the “penumbra of some common-law, statutory, or other established concept of unfairness,” satisfying the unfairness standard under PMP Assocs. v. Globe Newspaper Co., 366 Mass. 593 (1975) (specifically, the plaintiffs alleged that the MSP notified the defendant about the default recording settings in 2017, but the defendant failed to update or recall the product, and continued to sell and market the product). Also, the plaintiffs pleaded a cognizable injury because they claimed a violation of constitutional rights, loss of liberty and associated legal costs, and emotional and reputational harm. As to causation, the district court accepted the plaintiffs’ allegation that “but for” defendant’s conduct, those injuries would not have occurred, and that the harm was foreseeable.
The district court rejected the defendant’s argument that the plaintiffs could not proceed under Section 9 because no commercial relationship existed between the defendant and the plaintiffs since the products were sold to MSP and that the use of the product with the plaintiffs (and others similarly situated) was foreseeable. Citing Ciardi v. Hoffmann-La Roche, 436 Mass. 53 (2002), the district court explained that indirect commercial relationships could provide standing under Section 9 and as the plaintiffs were foreseeable targets of a product, the relationship between the defendant and MSP was sufficient to establish the necessary “commercial link” under Section 9.
In response to the defendant’s motion for reconsideration and request for an interlocutory review, however, the district court concluded that the defendant raised legitimate questions for the First Circuit to address on an interlocutory basis. Those questions are as follows:
- Whether the plaintiffs adequately alleged that the defendant’s products are per se unlawful and that it was foreseeable to the defendant that its products would be used unlawfully by MSP to record the plaintiffs.
- What level of connection is required for an indirect commercial relationship between a plaintiff and defendant to give the plaintiff standing to sue under Section 9.
The district court did comment that the plaintiffs just barely met Rule 12(b)(6) plausibility standards for their Chapter 93A claims. The First Circuit’s interlocutory review may provide further guidance as to whether regulatory noncompliance standing alone is sufficient to state a claim and what level of commercial link is required to assert claims under Section 9, as well as what the First Circuit deems sufficient to plead unfairness under Chapter 93A.