No Harm, No Foul? First Circuit Departs from Trend Narrowing Chapter 93A Injury Requirement, Reverses Dismissal of Claim Arising from Failed Price-Fixing Conspiracy

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State unfair competition laws can sometimes provide a vehicle to permit consumers to bring certain types of claims arising from violations of the Sherman Act – for example, indirect purchaser price fixing claims – that such consumers might otherwise lack standing to bring. In its recent decision in Liu v. Amerco, Inc., the First Circuit goes even further, holding that conduct that does not violate the Sherman Act – in this instance, an alleged failed attempt to fix truck rental prices – nonetheless could be actionable as an unfair and deceptive trade practice under the Massachusetts Consumer Protection Act, G.L. c. 93A (Chapter 93A). In so ruling, the court determined that a defendant’s unilateral but unreciprocated price increases, allegedly in furtherance of the unsuccessful price-fixing scheme, could constitute actionable injury under Chapter 93A. The First Circuit’s ruling, which runs counter to the recent narrowing of Chapter 93A’s injury requirement in Massachusetts state courts, focused exclusively on the question of whether the plaintiff had alleged facts plausibly establishing that the defendant had raised its prices. Left unanswered was the question of whether the refusal of competitors to raise their prices, which made it possible for consumers to rent trucks at lower prices, would negate the claim of injury. Absent further development of such injury issues, which were not specifically addressed in the opinion, the decision in Liu could signal more expansive construction of consumer claims under Chapter 93A by state and federal courts in Massachusetts.

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