Consumer protection – Discovery – Chapter 93A

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Where plaintiffs alleging unlawful recording of conversations have moved for leave to conduct limited discovery regarding their G.L.c. 93A claims, that motion should be denied because there is little indication that the discovery requested will yield any information supporting the requisite commercial relationship between the plaintiffs and the defendants.

“Plaintiffs Jason Courtemanche, Brett Foresman, Juan Rios, and Dennis Williams (collectively ‘Plaintiffs’) bring this putative class-action lawsuit against Defendants Motorola Solutions, Inc. (‘Motorola’), Callyo 2009 Corp. (‘Callyo’), SHI International Corp. (‘SHI’), and the Superintendent of the Massachusetts State Police in his official capacity (collectively ‘Defendants’). …

“In essence, Plaintiffs’ First Amended Complaint (‘FAC’) alleges that the Massachusetts State Police (‘MSP’) unlawfully recorded the contents of conversations between officers and Plaintiffs, then used the intercepted recordings to pursue criminal charges against the Plaintiffs and others. … Plaintiffs also allege that Motorola, Callyo, and SHI ‘willfully procured MSP’ in committing the alleged interceptions by providing the MSP with intercepting devices and storing the recordings on Motorola’s server. … As a result of these alleged violations, Plaintiffs bring this putative class action against all Defendants with claims under 42 U.S.C. §1983, as well as other claims against various subsets of defendants. Relevant to this motion, Plaintiffs bring claims for unfair and deceptive acts or practices under Mass. Gen. Laws ch. 93A (‘Chapter 93A‘) against Motorola and Callyo in Count II, and against SHI in Count VI.

“In their motions to dismiss, Motorola, Callyo, and SHI argue that Plaintiffs’ Chapter 93A claim should be dismissed because Plaintiffs have failed to allege a business, commercial, or transactional relationship between them and Motorola/Callyo/SHI. The motion for limited discovery before the Court is an attempt by Plaintiffs to establish such a relationship by determining whether Motorola, Callyo, or SHI profited off the recordings of the Plaintiffs, perhaps by ‘analyzing MSP’s intercepted oral communications, creating new Motorola/Callyo products and services, and operating, maintaining, managing, and improving Motorola/Callyo’s products and service.’ … Plaintiffs state that Motorola and Callyo are the only parties who could identify the extent to which they or other third-parties have used the license granted to them by the MSP for profit. … Plaintiffs allege that if they are not allowed to conduct discovery for this purpose, they will be ‘denied the opportunity to determine the extent of their damages and potential additional defendants.’ …

“… To properly allege a claim under Mass. Gen. Laws ch. 93A §9, a plaintiff must demonstrate that ‘some business, commercial, or transactional relationship’ exists between the plaintiff and the defendant. …

“The Court is unconvinced that allowing Plaintiffs to conduct limited discovery would be appropriate in this case. Plaintiffs assert that they have properly alleged the factual basis for a business, commercial, or transactional relationship between them and Motorola or SHI; however, they rely exclusively on their allegations relating to Motorola, Callyo, and unknown third parties’ usage of the license MSP allegedly granted to Motorola/Callyo. … Plaintiffs claim the recordings were distributed ‘for the purpose of, among other things, analyzing MSP’s intercepted oral communications, creating new Motorola/Callyo products and services, and operating, maintaining, managing, and improving Motorola/Callyo’s products and services.’ …

“The issue, as Defendants note, is that these allegations merely highlight the commercial relationship between Motorola/Callyo and the MSP, not any commercial relationship with the Plaintiffs. While §9 of Chapter 93A permits consumer plaintiffs to allege an indirect commercial link, such as when a plaintiff is an upstream consumer of a defendant’s product, … Plaintiffs here have not plausibly provided a factual basis that would support how the limited discovery they seek could establish anything other than more information about the commercial relationship between the defendants in question. It is true that limited discovery may uncover the extent to which Motorola, Callyo, or third parties profited from the alleged interceptions through their own transactions with each other. Limited discovery could also show the ways the defendants used the MSP license. However, there is little indication that the discovery requested will yield any information supporting the requisite commercial relationship between Plaintiffs and the Defendants in question. … As such, Plaintiffs have failed to demonstrate how the information sought could be relevant to bolstering their Chapter 93A claim. To allow limited discovery on these facts would amount to the type of ‘fishing expedition’ the First Circuit has disallowed. …”

Courtemanche, et al. v. Motorola Solutions, Inc., et al. (Lawyers Weekly No. 02-590-24) (6 pages) (Guzman, J.) (Civil No. 4:24-CV-40030-MRG) (Dec. 13, 2024).

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