Consumer protection – Chapter 93A – Hotel ouster

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Where a defendant hotel was awarded summary judgment on a Chapter 93A claim asserted by plaintiff guests who were forced to leave under an unwritten policy that prohibited doing business in the hotel, that judgment must be vacated because the hotel did not demonstrate that the plaintiffs had no reasonable expectation of proving that its conduct was unfair or deceptive.

“The plaintiffs made reservations at the defendants’ hotel for the express purpose of meeting with prospective clients for their business — the sale of children’s clothing to retailers — as they had done in the past. When they arrived, the hotel informed them of a new, unwritten policy that prohibited doing business in the hotel. When the plaintiffs argued about the surprise imposition of the new policy, they were forced to leave. The plaintiffs claim that their removal from the hotel violated a provision of the so called ‘innkeeper’s statute,’ G.L.c. 140, §12B, which they contend amounts to an unfair or deceptive trade practice under G.L.c. 93A, §2, as a matter of law. A Superior Court judge entered summary judgment for the defendants. Although we reject the plaintiffs’ claim that §12B of the innkeeper’s statute is a consumer protection statute, the violation of which automatically violates c. 93A, we vacate the allowance of summary judgment on their c. 93A claim. The defendants did not demonstrate that the plaintiffs had no reasonable expectation of proving that the hotel’s conduct was unfair or deceptive. …

“The plaintiffs argue that because the hotel removed them based on an undisclosed policy, the hotel violated G.L.c. 140, §12B, of the innkeeper’s statute, which they contend amounts to a per se violation of c. 93A. Setting the innkeeper’s statute aside, the plaintiffs also argue that the hotel’s acts amounted to ‘unfair or deceptive acts or practices in the conduct of any trade or commerce.’ G.L.c. 93A, §2. …

“We are aware of no authority that identifies §12B of the innkeeper’s statute as a consumer protection statute, nor do we think that it qualifies as such. …

“Accordingly, we hold that §12B of the innkeeper’s statute is not a consumer protection statute within the meaning of 940 Code Mass. Regs. §3.16(3). Therefore, even if the hotel did not comply with §12B in removing the plaintiffs, its noncompliance would not amount to a per se violation of c. 93A. On the other hand, even if the hotel had properly removed the plaintiffs under the provisions of §12B, its compliance would not automatically insulate it from liability under c. 93A. ‘Legality of underlying conduct is not necessarily a defense to a claim under c. 93A.’ Kattar v. Demoulas, 433 Mass. 1, 13 (2000). Whether an act or practice violates c. 93A is based on the totality of the circumstances. … Thus, whether the defendants’ alleged unfair or deceptive act or conduct was authorized by §12B is one factor that should be considered, but is not dispositive. …

“We reject the defendants’ suggestion that §12B authorizes innkeepers to remove guests for violations of unwritten policies. While innkeepers need not post all of their policies or rules, they may claim the protection of §12B to remove guests only if the policy or rule violated is prominently posted. Still, whether the hotel’s removal of the plaintiffs in this case comported with §12B cannot be resolved at the summary judgment stage. Genuine disputes of fact apart from the plaintiffs’ alleged policy violation exist about whether the plaintiffs were removed in compliance with §12B, for example, for causing a disturbance. Although their removal is not the sole basis for the plaintiffs’ c. 93A claim, the hotel’s compliance or noncompliance with §12B should be considered, and given whatever weight the trier of fact may attach to it, in assessing the merits of the c. 93A claim. …

“The plaintiffs argue that their ouster was both unfair and deceptive. Given the many disputed issues of material fact, we agree that summary judgment should not have entered. The materials in the summary judgment record, viewed in the light most favorable to the plaintiffs, are sufficient to permit a finder of fact to determine that the defendants’ conduct violated c. 93A. …

“Two aspects of the hotel’s conduct, if proven, stand out as unfair within the meaning of c. 93A. One is that the hotel allowed the plaintiffs to make travel plans, ship merchandise, and arrange to meet with clients, all the time knowing that the hotel would upend the plaintiffs’ plans and disrupt their business as soon as they arrived. This sort of ‘stringing along’ conduct has been held to be actionable under c. 93A. … The other is that when the hotel sought to oust the plaintiffs, it purported to justify its actions based on what the trier of fact could find to be a policy that did not exist, obscuring whatever true motives the hotel may have had. …

“The defendants argue that their conduct was justified because the plaintiffs’ customers, coming in and out of the hotel, might pose a security threat; that their failure to disclose their supposed no solicitation policy to the plaintiffs in advance was no different from failing to notify arriving guests that a particular amenity might not be available; and that their conduct was at worst imperfect customer service, falling below the level of a c. 93A violation. We are not persuaded that these reasons entitle the defendants to judgment as a matter of law. Knowing the business purpose of the plaintiffs’ stay, the hotel’s failure to tell them in advance that they could not do business there was unlike neglecting to warn that an elliptical machine in the hotel gym was out of order, and more akin to neglecting to tell arriving guests that rooms are not furnished with beds. While the defendants will have an opportunity to explain their conduct to the trier of fact, the plaintiffs are entitled to an opportunity to persuade the fact finder that this sequence of events, as described by the plaintiffs, was unfair and caused substantial injury to their business.

“The defendants’ conduct could also be found to be deceptive within the meaning of c. 93A. …

“Viewing the summary judgment record in the light most favorable to the plaintiffs, the hotel knew the purpose of their reservations and affirmatively represented that the plaintiffs were welcome to stay there and do business as they had done in the past. The hotel argues that its failure to inform the plaintiffs of the change in policy was not a material omission because the ability to display items for sale is not a ‘central feature’ of the services offered by a hotel. … Here, however, the ability to display items for sale was the central purpose of the plaintiffs’ visit — and the plaintiffs provided competent evidence at the summary judgment stage to show that the hotel both knew this and accepted the plaintiffs’ reservations, as well as their shipments of merchandise, with that specific understanding. The hotel’s misrepresentation of assent to the plaintiffs’ business trip could be found to be an affirmative act that misled the plaintiffs into making a reservation and traveling to the defendants’ hotel, rather than someplace else, which they would not otherwise have done. … At the very least, the plaintiffs have presented a triable issue of fact whether the hotel’s use of an arguably fictitious policy and do not rent list was a deceptive means of forcing them out of the hotel. …

“We vacate so much of the judgment as grants summary judgment in favor of the defendants on the plaintiffs’ c. 93A claim, and remand the case for further proceedings consistent with this opinion. The judgment is affirmed in all other respects.”

Connor, et al. v. Marriott International, Inc., et al. (Lawyers Weekly No. 11-021-24) (17 pages) (Massing, J.) The case was heard by Paul D. Wilson, J., on a motion for summary judgment. Olena Savytska for the plaintiffs; Sally A. Morris for the defendants (Docket No. 23-P-178) (March 18, 2024).

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