Consumer protection – G.L.c. 93A – Out-of-state conduct

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Where a defendant West Virginia company has moved for summary judgment on a G.L.c. 93A claim, the motion should be allowed, as the defendants’ alleged conduct did not occur did not occur “primarily and substantially” in Massachusetts.

“[Plaintiff] Gen-Connect’s claim stems from its belief that any company, including [defendant] US Carburetion, selling products used to convert a generator engine to permit use of an alternate fuel source is required under 40 C.F.R. section1054.645 to obtain a particular certificate of conformity from the Environmental Protection Agency (‘EPA’). Gen-Connect obtained such a certificate; US Carburetion did not. Gen-Connect asserts that it suspended sales of relevant products during the process of obtaining the certificate, thus diminishing its sales and consequent profits, while competitors such as US Carburetion continued to sell their products, unfairly taking advantage of Gen-Connect’s self-imposed sales moratorium. US Carburetion’s continued sales of uncertified products in purported disregard of the EPA regulation was, the complaint alleges, an unfair trade practice forbidden by Section 11 of Chapter 93A. …

“US Carburetion’s argument is that it sells its products throughout the country, and even if its sales of uncertified products constituted unfair commercial acts, they did not occur ‘primarily and substantially’ within Massachusetts so as to make Section 11’s remedy available. …

“… Where the allegedly unfair sales occurred throughout the country, and where only a very small percentage of the number of sales and revenues generated was centered in Massachusetts, it is clear that the center of gravity — if there is a demonstrable one — is elsewhere. …”

New England Gen-Connect, LLC v. US Carburetion, INC. (Lawyers Weekly No. 02-194-19) (4 pages) (O’Toole, J.) (Civil Action No. 16-12270-GAO) (March 25, 2019).

Click here to read the full text of the opinion.