Massachusetts has a powerful consumer protection statute commonly known as Chapter 93A. General Law Chapter 93A affords a private right of action on behalf of consumers (§ 9) and businesses (§ 11) for unfair or deceptive acts and practices. Where a violation is shown, a party may recover reasonable attorney’s fees and potentially treble damages (upon proof of a willful violation). Chapter 93A is routinely pled in business contract and tort actions in Massachusetts.
In 1982, the Massachusetts Supreme Judicial Court (“SJC”) “held that, even where a consumer executed a valid contract agreeing to arbitrate all disputes, a plaintiff may not be compelled to arbitrate a claim alleging unfair or deceptive trade practice in violation of G.L. c. 93A, § 9.” Hannon v. Original Gunite Aquatech Pools, Inc., 385 Mass. 813, 826-827, 434 N.E.2d 611 (1982). Thus, absent agreement at the time the dispute has ripened, a party could keep Chapter 93A claims (and perhaps the entire dispute if the facts are intertwined with each other) out of arbitration despite an otherwise enforceable agreement to arbitrate.