Commercial – Unfair competition – Alternate fuels

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Where a plaintiff has alleged that the defendant competitor violated G.L.c. 93A by converting gasoline engines to run on alternate fuels and selling them without obtaining certificates of conformity from the federal Environmental Protection Agency as required by 40 C.F.R. section1054.645, a motion by the defendant to dismiss that claim must be denied because an “unfair method of competition” is adequately pleaded in the complaint.

“… The complaint claims that the plaintiff has been, and continues to be, harmed because the defendant is ‘selling unregulated goods, which are cheaper to manufacturer and are not bonded by the EPA and they are therefore able to sell cheaper goods, and operate with less operating costs than [the plaintiff]1 and other Massachusetts companies which have taken the steps to, and are currently complying with CFR 40 section1054.645.’ …

“… The defendant’s arguments are essentially defensive, arguing for various reasons that the plaintiff cannot prevail on such a claim. Those arguments are for another occasion. A complaint by one business that a competitor has lowered its own costs as a direct result of its violation of law and with lowered costs is undercutting law-abiding competition plausibly states a claim for unfair competition under section11. Whether such a claim might be defeated by a failure of proof or overridden by other legal principles are matters for another day.”

New England Gen-Connect, LLC v. US Carburetion, Inc. (Lawyers Weekly No. 02-511-17) (3 pages) (O’Toole, J.) (Civil Action No. 16-12270-GAO) (Sept. 29, 2017).

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