COMMONWEALTH vs. AMCAN ENTERPRISES, INC., & others [Note 1]

DREBEN, J. Between 1990 and 1994, the defendants, using the name "The New England Yellow Pages" and the logo "walking fingers," mailed approximately 2,345,000 advertising solicitations to businesses in Massachusetts. Alleging violations of G. L. c. 93A, s. 2 [Note 2], and 940 Code Mass. Regs. s. 3.05(1) and 3.16(2) (1993) [Note 3], by sending misleading and deceptive solicitations to consumers for listing in a yellow page directory unconnected with a telephone company, the Attorney General brought

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an action against the defendants under c. 93A, s. 4. On the Commonwealth's motion for summary judgment, a judge of the Superior Court determined that the defendants had violated c. 93A, s. 2(a), at least 2,345,000 times and granted partial summary judgment in favor of the Commonwealth on the issue of liability [Note 4]. Following an assessment of damages hearing, a final judgment entered which included a permanent injunction against the defendants' solicitations, an award of restitution to those persons (nine) who had filed affidavits setting forth the amount paid to the defendants, an assessment of civil penalties of $1,000,000 jointly and severally against the defendants, and an award of attorney's fees to the Commonwealth of $26,415.

In their appeal, the defendants claim that (1) the Attorney General's regulations and the judge's decision are not in accord with current interpretations of the Federal Trade Commission, contrary to the requirements of c. 93A, s. 2(b) and 2(c), see note 2, supra; (2) the granting of summary judgment was error in the face of the minimal number of complaints and an affidavit from the defendants' expert stating that the defendants' conduct was not deceptive; (3) the civil penalty was improperly assessed as the Commonwealth presented no evidence of actual harm from the defendants' deceptive acts; and (4) the award of

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attorney's fees was unsupported by the evidence. We affirm the judgment, as modified in accordance with this opinion, for substantially the reasons set forth by the judge in his careful and well-reasoned memoranda of decision.

1. Summary judgment materials. In support of its motion, the Commonwealth submitted the solicitation packages of the defendants [Note 5], decisions of the United States Postal Service finding that the defendants had engaged in conduct violating Federal law by seeking money by means of false representations through the mail [Note 6], interrogatories answered by the defendants, and affidavits, including nine from persons who stated that they had believed that the solicitation had come from the local phone company and would not have returned the solicitation had they known its source. The defendants produced affidavits and other material showing that other companies publish directories which are not affiliated with any telephone company, that both the term "yellow pages" and the "walking fingers" logo are in the public domain, and that the defendants had obtained from the Massachusetts Secretary of State trademarks for "The Massachusetts Yellow Pages ... .. The New England Yellow Pages," and "The Yellow Pages of Massachusetts." They also presented an affidavit of Edward T. Popper, a business school dean and a former consumer research advisor to the Federal Trade Commission, which stated that he had "conducted and reviewed results of a survey of potential mailing . . . recipients" of the defendants - the affidavit gives no further details as to this survey - and concluded that "[r]easonable recipients of th[e]se

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mailings are likely to understand the nature of those mailings, the source of the mailing, and the nature of the directory listing being promoted" and, hence, are not deceived.

a. Proper standard for determining deception. The defendants base their argument that summary judgment was improperly granted on two grounds. We treat first their claim that the standard for determining deception set forth in the Attorney General's regulations, see note 3, supra, is contrary to the mandate contained in c.93A states the legislative intent that courts, in construing which acts are deceptive, are to be "guided by the interpretations given by the Federal Trade Commission and the Federal Courts" to the analogous Federal statue, and s.2(c) provides that the rules and regulations of the Attorney General "shall not be inconsistent with the rules, regulations and decisions of the Federal Trade Commission and the Federal Courts." See not 2, supra.

The defendants argue that 940 Code Mass. Regs. s.3.05(1), see note 3, supra, which prohibits a representation which "has the capacity or tendency or effect of deceiving buyers," establishes an outmoded standard in view of the new criteria set forth in Cliffdale Assocs., Inc., 103 F.T.C. 110, 164-165 (1984). That case found "this approach to deception [tendency or capacity to deceive] and violations of Section 5 [the Federal analogue to c.93A, s.2,] to be circular and therefore indadequate to provide guidance on how a deception claim should be analyzed." Id. at 164. The Federal Trade Commission then articulated what it believed to be "a clear and understandable standard for deception." Ibid. An act or practice will be found deceptive "if, first, there is a representation, omission, or practice that, second, is likely to mislead consumers acting reasonably under the circumstances, and third, the representation, omission, or practice is material." Id. at 165.

The decision, however, noted that these elements articulate the factors actually used in most earlier cases even if couched in terms of "a tendency and capacity to deceive." Id. at 165 (citation omitted). Thus, the likely to mislead" requirement, the Federal Trade Commission noted, reflects the long-established principle that actual deception need not be proved. That the effect be on "consumers acting reasonably under the circumstances" is likewise not a new requirement; an advertise-

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ment would not have been considered deceptive if unreasonably misunderstood by an unrepresentative class of persons. Ibid. Similarly, the third element, materiality, that is, a representation or omission that "involves information that is important to consumers and, hence, likely to affect their choice of, or conduct regarding, a product," was usually one of the factors considered in the deception cases. Id. at 165-166. [Note 7]

In refuting the defendants' argument that the two regulations, see note 3, supra, were inconsistent with the standard articulated in Cliffidale, the motion judge correctly concluded, based on Massachusetts law, that the newly articulated standard "did not represent a radical change in policy" and that the "new test is rooted in established precedent and does not affect the validity of the Attorney General's regulations." He pointed to Leardi v. Brown, 394 Mass. 151 , 156 (1985), [Note 8] which requires the "tendency to deceive" standard to be construed in the context of a reasonable consumer, and that the misrepresentation be material. See Purity Supreme, Inc. v. Attorney Gen., 380 Mass. 762 , 777 (1980) (practice may be deceptive if it reasonably could be found to have caused the plaintiff to act differently than he or she otherwise would have acted). Lest there be any doubt that he was applying the correct standard, [Note 9] the judge specifically adopted the Cliffidale test in interpreting both regulations, stating, "For purposes of this case, each of these regulations use[s] different words to express the same prohibition; namely, a solicitation package is deceptive if it contains mate-

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telephone company 'yellow pages' directory. The defendants' solicitation packages, taken as a whole, were likely to mislead business consumers, acting reasonably under the circumstances, to believe that they were sent by the publisher of the local 'yellow pages' directory and that by responding to the solicitation package, the recipients were renewing an existing listing."

That the Commonwealth produced only nine affidavits does not show, as the defendants contend, that "this infinitesimally small number of complaints creates a strong inference that any confusion in the mind of this small number of consumers is immaterial [Note 10]."

The affidavit from the defendants' expert did not create a genuine question of material fact. It improperly stated the ultimate fact and conclusion of law. See Dolloff v. School Comm. of Methuen, 9 Mass. App. Ct. 502 , 505-506 (1980); Federal Trade Commn. v. Amy Travel Serv., Inc., 875 F.2d at 573. The expert's partial reliance on a survey cannot in this case be viewed as competent evidence. He provided no details as to the number of consumers who were questioned, what questions they were asked, who they were, or where the survey took place. Even in the absence of a motion to strike, a judge may disregard material in an affidavit which would not be admissible in evidence. See Baptiste v. Sheriff of Bristol County, 35 Mass. App. Ct. 119 , 126 (1993). Since no questions of material fact were presented, and the issue was properly a matter of law, the judge was warranted in granting summary judgment.

Quite rightly, the judge determined the disclaimer referred to in note 5, supra, too inconspicuous to be sufficient. See Donaldson v. Read Magazine, Inc., 333 U.S. 178, 185-186 (1948); Removatron Intl. Corp. v. Federal Trade Commn., 884 F.2d 1489, 1497 (1st Cir, 1989).

2. Damages and attorney's fees. At the special hearing on damages, the defendants did not contest the issuance of the injunction; they had already ceased doing business in Massachusetts. See note 6, supra. On appeal, they also do not challenge the restitution damages awarded to the nine businesses on whose behalf affidavits had been filed. The defendants focus on the civil sanction penalty.

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In awarding $1,000,000 against the defendants, the judge relied on the defendants' acknowledgment that they had, between 1990 and 1994, sent approximately 2,345,000 solicitation packages to businesses in Massachusetts. The judge correctly noted that each deceptive solicitation may be viewed as a separate statutory violation for which a judge may, under G. L. c. 93A, s. 4, impose a separate civil penalty [Note 11]. Commonwealth v. Fall River Motor Sales, Inc., 409 Mass. 302 , 313-314 (1991). United States v. Reader's Digest Assn., Inc., 662 F.2d 955, 966 (3d Cir. 1981), cert. denied, 455 U.S. 908 (1982). Any penalty actually imposed is, however, subject to the limitation of judicial discretion. 662 E.2d at 967.

In exercising his discretion, the judge considered the factors set forth in Commonwealth v. Fall River Motor Sales, Inc., 409 Mass. at 311 (quoting from the Reader's Digest case at 967), namely, "(1) the good or bad faith of the defendants; (2) the injury to the public; (3) the defendant's ability to pay; (4) the desire to eliminate the benefits derived by a violation; and (5) the necessity of vindicating the authority of the [Commonwealth]" (in original, "vindicating the authority of the FTC").

The defendants fault the judge for using the Fall River Motor Sales factors, as that case involved a party who had violated a consent decree, a party considered more culpable as can be seen from the fourth paragraph of c. 93A, s. 4, which imposes a $10,000 penalty for each violation by persons who violate the terms of an injunction or other order issued under s. 4. While the defendants are correct that the Fall River case involved a party who violated a consent decree, essentially the same factors apply when a consent decree or other court order is not involved. See Commonwealth v. ELM Med Labs., Inc., 33 Mass. App. Ct. 71 , 84 n.16 (1992). Thus, 15 U.S.C. s. 45(m)(1)(C)

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(1994), provides, "In determining the amount of such a civil penalty [for violating the analogue to c. 93A s. 2], the court shall take into account the degree of culpability, any history of prior such conduct, ability to pay, effect on ability to continue to do business, and such other matters as justice may require." See United States v. J.B. Williams Co., 498 F.2d 414, 438 (2d Cir. 1974) ("size of the penalty should be based on a number of factors including the good or bad faith of the defendants, the injury to the public, and the defendants' ability to pay").

In addition to the nine affidavits of the complaining businesses, the affidavit from the Attorney General's office setting forth that it had received seventy-five complaints, and an affidavit relating to attorney's fees, two other affidavits were submitted from employees of that office: one indicating that the employee had counted 2,616 Massachusetts companies listed in the " 1992 New England Yellow Pages"; the second that another employee had counted 1,322 Massachusetts companies listed in "1994 Yellow Pages, National Edition." The Commonwealth also calculated that approximately 10,000 Massachusetts business consumers advertised in the defendants' directories from 1990 to 1994, and that since each had paid at least $147 (the defendants had charged amounts from $147 to $196 annually for a listing), damages amounted to $1.47 million. Noting that the United States Postal Service had filed an administrative complaint on April 15, 1991, against the defendants, and that he had found that advertisers had derived little or no benefit from a listing in the defendants' directories, the judge concluded:

"The defendants have known since at least 1991 that their solicitations were in fact misleading consumers. Indeed, it is reasonable to infer that this was their objective. There is no evidence in the record of the defendants' ability to pay a penalty. The defendants refused to produce discovery showing the income realized from Massachusetts consumers. It is reasonable to infer that a conservative estimate of the losses incurred by Massachusetts consumers who were deceived by the defendants exceed one million dollars. In order to punish the defendants and to deter them as well as others from engaging in similar schemes in the future to bilk Massachusetts consumers, a civil fine equal to the conservative estimate of the damages sustained by Massachusetts consumers is within the court's discretion

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to impose, particularly where the defendants have not been required to pay any significant restitution. For these reasons, the court will impose a civil penalty of one million dollars."

Accepting the rationale of the judge, we consider a modification of the award to be in order. The Commonwealth's number of 10,000 advertisers over the period 1990-1994 appears to be derived by taking an approximate average (2,000) of the two figures of 2,616 and 1,322 contained in the affidavits of the employees of the Attorney General and multiplying that figure by five. Since the judge attributed knowledge to the defendants from at least the time of the administrative complaint of the United States Postal Service (April 15, 1991), caution suggests that advertisements prior to that time should not be counted. Accordingly we reduce the civil sanctions to $733,000 [Note 12].

The defendants' contentions concerning the award of legal fees of $26,415 are without merit. The judge took into account the proper factors, and the award was warranted.

As modified herein, the judgment is affirmed.

So ordered.