93A Can Now Overcome Contracts Including Contractual Limitation of Liability Clauses. Revolutionary is a fair characterization of the SJC’s new decision in H1 Lincoln v. South Washington Street, LLC. Now a contract breach by conduct that is unfair or deceptive and done willfully and knowingly is a 93A violation. And such violation will necessarily result in an award of 2 or 3 times actual damages as well as attorney’s fees. The SJC further held that a contractual limitation of liability clause cannot bar such claims. The revolution is now that no contract is any longer safe from a devastating triple damages 93A claim.
Michael Gilleran, Partner, FisherBroyles
The SJC’s very recent decision in H1 Lincoln v. South Washington Street greatly magnifies the role and power of Chapter 93A in business versus business disputes. The precise holding is that a plaintiff who establishes that the defendant had by unfair or deceptive means willfully or knowingly breached a contract between the two would still be liable under Chapter 93A even if the contract contained a limitation of liability clause. This is a momentous expansion of 93A liability. The question now is how far does 93A go in overcoming contracts and contractual limitation of liability clauses.
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