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From Boston Bar Journal: Student-Consumers: the Application of Chapter 93A to Higher Education in Massachusetts

by Robert E. Toone and Catherine C. Deneke

Legal Analysis

While the value of a college education used to be (pardon the expression) a no-brainer, some have begun to question it.  College graduates have generally fared better in the Great Recession than others, but unemployment remains high and many have had to take jobs that traditionally did not require a college degree.  Student loan debt obligations now exceed $1 trillion and continue to burden the economy by making it harder for Millennials to buy homes, start businesses, and invest for retirement.

Some students, dissatisfied with the financial value of their education, have turned to the courts for relief.  Perhaps not surprisingly, law students have led the way, filing a variety of claims against their alma maters.[1]  Other students have sued colleges and universities for, among other things, making misleading claims about job placement or earned qualifications, program accreditation, failure to describe admission standards, and grade disputes.  In many of these lawsuits, students have asserted consumer protection claims, on the theory that they are consumers of the institutions they are suing.

In addition to having a celebrated and diverse collection of colleges and universities, Massachusetts has one of the most powerful consumer protection laws in the nation, Chapter 93A.[2]  Enacted in 1967 and amended several times since, the statute gives the Attorney General broad authority to implement regulations, investigate potential violations, and file enforcement actions.  It also establishes a cause of action for consumers who have been subjected to unfair or deceptive acts or practices.  Prevailing plaintiffs may obtain injunctive relief, and recover compensatory damages, multiple damages in the event of a willful and knowing violation, and reasonable attorneys’ fees and costs.

Over the years, a variety of consumer-fraud lawsuits have been brought against Massachusetts colleges and universities.  The resulting decisions show that even though liability under 93A is generally expansive, it has significant limits in higher education.  It remains to be seen whether a shifting perception of consumerism in the college setting will change this area of the law.

Scope of Chapter 93A’s Application

The most frequently litigated limitation on Chapter 93A’s scope involves its requirement that challenged acts and practices occur in the conduct of “trade or commerce.”  In applying this requirement, courts ask whether a challenged act or practice occurred “in a business context,” a fact-specific inquiry that involves the character, activities, and motivations of the parties involved.  See Kraft Power Corp. v. Merrill, 464 Mass. 145, 155-56, 981 N.E.2d 671, 682-83 (2013).  While considerable attention has been paid in recent years to the experience of students at “for profit” colleges,[3] it is a mistake to assume that an institution’s charitable status under the tax code will shield it from liability under Chapter 93A.  In fact, a number of nonprofit colleges and universities have been successfully sued under this statute.

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New Lawyers Committees

  • New Lawyers Law School Outreach Committees
    This Committee seeks to integrate Boston area law students into the local legal community by encouraging participation in the BBA. We conduct programming, in conjunction with other sections of the BBA and local law schools, designed to promote the professional development of law students. Through these programs, the Committee provides students with opportunities to obtain practical substantive legal knowledge and to network with attorneys and other students.
  • New Lawyers Practical Skills Committee
    This Committee creates programming geared towards the needs of new lawyers to help them develop basic and advanced skills, both generally and within their substantive areas of practice, and to practice more effectively. Programming consists of presentations and panels covering a broad range of topics—from how to file an appeal, how to work with partners, to the basics of a purchase agreement. Committee members, who are responsible for managing these events from concept through to completion, have the opportunity to work closely with senior lawyers in numerous practice areas when facilitating these programs.

    Contact Information

    Elizabeth J. McEvoy

    Donoghue, Barrett & Singal, P.C.

    (617) 720-5090

    Michael C. Birch

    Lurie, Lent & Friedman, LLP

    (617) 367 1970

  • New Lawyers Public Service Committee
    This Committee serves as a resource for new attorneys interested in starting or expanding their pro bono and community service work. The committee runs the Volunteer Income Tax Assistance Program which offers free tax help to low-to-moderate income persons in Massachusetts.
  • New Lawyers Social Events Committee
    This Committee organizes monthly gatherings for the New Lawyer's Section, including wine tastings, a casino night, happy hours, and more.

    Contact Information

    Michael Licker

    Foley Hoag LLP

    (617) 832-1197

    Adam M. Veness

    Acceleron Pharma Inc.

    (617) 649-9348

  • Steering Committee
    The leadership committee of the Section organizes programs and discusses policy. To inquire about opportunities, please contact the Section Co-Chairs.