DAWN RICHARDS [Note 1] vs. ARTEVA SPECIALTIES S.A.R.L. [Note 2] & others. [Note 3]

LAURENCE, J. The principal question presented by this appeal is whether the plaintiff's G. L. c. 93A demand letter, purportedly sent on behalf of herself and a class of Massachusetts indirect purchasers who alleged injury as a result of the defendants' illegal price-fixing, "reasonably describ[ed] . . . the injury suffered," as required by G. L. c. 93A, § 9(3), inserted by St. 1969, c. 690. A Superior Court judge held the demand letter to be defective as matter of law for its failure to describe the alleged injury adequately and dismissed the complaint on the defendants' motions under Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974). Because we conclude that the demand letter was minimally sufficient to meet the statutory requirement on the individual plaintiff's own behalf prior to any class action being certified, we reverse.

Factual background. The defendants, manufacturers of a material called polyester staple, [Note 4] allegedly conspired over at least a two-year period to fix prices, eliminate competition among them, and allocate customers and markets for polyester staple used in consumer goods sold in and distributed to Massachusetts and other States. [Note 5] At least one defendant has pleaded

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guilty to the charge of violation of the Sherman Antitrust Act (15 U.S.C. § 1 [2000]), and another has admitted to participating in the conspiracy. [Note 6]

The plaintiff, Dawn Richards, brought the instant complaint on April 8, 2004, pursuant to G. L. c. 93A, §§ 2 and 9. She alleged that she represented a class of "millions" of Massachusetts "indirect purchaser[s]," consumers who purchased products containing polyester staple while the defendants' conspiracy was ongoing. She and the putative class members (the supposed class not yet having been certified) were indirect purchasers because they purchased the products at retail from third parties, not directly from the defendants. The plaintiff and the class were assertedly damaged (in an amount yet undetermined) because the products they purchased containing polyester staple were sold at artificially inflated prices as a result of the defendants' price-fixing conspiracy and other anticompetitive conduct.

Prior to filing the complaint, the plaintiff's counsel served on each of the defendants a letter entitled "Demand for Relief Pursuant to [G. L. c.] 93A, § 9." Under a heading captioned "CLAIMANT," the letter described the plaintiff and the class she proposed to represent and stated that the plaintiff personally "has purchased and paid illegally inflated prices on products containing polyester staple such as, but not limited to[,] shirts and other wearing apparel, linens and home furnishings." Under

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"UNFAIR OR DECEPTIVE ACTS OR PRACTICES," the letter described the defendants' alleged unlawful practices regarding the pricing of polyester staple and the purported effects of that unlawful conduct. The letter described the "INJURIES SUFFERED" as follows:

"Claimant, as well as the other members of the proposed Class, have suffered injury and damages as a result of the Respondent's unfair or deceptive acts or practices in the form of higher out-of-pocket costs to purchase products containing polyester staple and other damages. Claimant is a member of the putative Class. The members of the Class have suffered similar damages. Due to the conduct of Respondent and the inherently self-concealing nature of the conspiracy, the dollar amount of damages suffered by the Class cannot be determined without discovery. However, Respondent possesses enough information as to the supra-competitive prices of polyester staple in order to make a reasonable class wide tender of settlement." (Emphasis supplied.)

The letter demanded that the defendants pay all consequential damages caused by their illegal conduct, pay restitution and refunds to the plaintiff and members of the proposed class to the extent they had paid higher than competitive prices for products containing polyester staple, and reimburse the plaintiff and the proposed class members for their reasonable attorney's fees and expenses. None of the defendants responded to the demand letter.

Defendants Arteva Specialties S.A.R.L., doing business as KoSa (KoSa); E.I. DuPont de Nemours & Company (DuPont); DAK Fibers, LLC (DAK); and Wellman, Inc. (Wellman), moved to dismiss the complaint under Mass.R.Civ.P. 12(b)(6) on the ground that the demand letter was inadequate under G. L. c. 93A, § 9. Defendant Nan Ya Plastics Corporation, America (Nan Ya), separately moved to dismiss on the basis of lack of personal jurisdiction. After a hearing, the motion judge ruled that the demand letter did not reasonably describe the injury suffered and allowed the motion to dismiss on that ground with regard to all the defendants. The judge did not address Nan Ya's jurisdictional motion and argument. This appeal followed.

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Discussion. The standards governing our review of the allowance of a rule 12(b)(6) motion to dismiss are well-established, as well as exceedingly indulgent to a plaintiff. "In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Nader v. Citron, 372 Mass. 96 , 98 (1977), quoting from Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "Furthermore, the allegations of the complaint, as well as such inferences as may be drawn therefrom in the plaintiff's favor, are to be taken as true." Nader v. Citron, supra. "In passing on a rule 12(b)(6) motion, the court is not to consider the unlikelihood of the plaintiff's ability to produce evidence to support otherwise legally sufficient complaint allegations . . . however improbable appear the facts alleged . . . and 'notwithstanding expressions of denial and incredulousness as to ultimate proof by the defendants.' " Brum v. Dartmouth, 44 Mass. App. Ct. 318 , 322 (1998), S.C., 428 Mass. 684 (1999), quoting from Eyal v. Helen Bdcst. Corp., 411 Mass. 426 , 431 (1991).

These generous criteria have reduced a plaintiff's obstacle in surmounting a rule 12(b)(6) motion to a "minimal hurdle," Bell v. Mazza, 394 Mass. 176 , 184 (1985), and they are applicable to c. 93A consumer class actions. Ciardi v. F. Hoffmann-La Roche, Ltd., 436 Mass. 53 , 55 (2002). In this connection, we also observe that in enacting G. L. c. 93A the Legislature intended to create new substantive rights and procedural devices substantially broadening the vindication of consumers' rights, id. at 58, and that "technicalities are not to be read into the statute in such a way as to impede the accomplishment of substantial justice," Baldassari v. Public Fin. Trust, 369 Mass. 33 , 41 (1975); this includes the reading of the demand letter requirement. See id. at 41-42. Indeed, as the Ciardi case made clear, in a G. L. c. 93A, § 9, case involving (as here) an indirect purchaser plaintiff's class action complaint alleging injury from being "forced to pay 'supra-competitive prices' " "as a result of [the defendants'] price-fixing conspiracy," the "plaintiff has a relatively light burden to carry to maintain her complaint . . . under rule 12(b)(6)." Ciardi v. F. Hoffmann-La Roche, Ltd., 436 Mass. at 65.

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Even a complaint satisfying these liberal standards will, however, be unavailing to a plaintiff proceeding under G. L. c. 93A, § 9, unless she has complied with the distinct prerequisite to filing a suit, namely, serving a demand letter, reasonably describing the claimant's grievances, on the defendants being charged with the c. 93A violation. Entrialgo v. Twin City Dodge, Inc., 368 Mass. 812 , 813 (1975). General Laws c. 93A, § 9(3), provides in relevant part:

"At least thirty days prior to the filing of any such action, a written demand for relief, identifying the claimant and reasonably describing the unfair or deceptive act or practice relied upon and the injury suffered, shall be mailed or delivered to any prospective respondent" (emphasis supplied).

Complicating the matter in the instant case is that, in the demand letter, the plaintiff purported to represent not only herself but also a class of similarly situated "indirect purchasers" and demanded a tender of settlement with the entire class. No reported decision has addressed the level of "reasonable" description required of a demand letter by a plaintiff seeking to elicit a settlement on behalf of an as yet uncertified class. As always in such situations, we look at the pertinent words of the statute itself for guidance, see Martha's Vineyard Land Bank Commn. v. Assessors of W. Tisbury, 62 Mass. App. Ct. 25 , 27-28 (2004), and cases cited:

"At least thirty days prior to the filing of any such action, a written demand for relief, identifying the claimant . . . , shall be mailed or delivered to any prospective respondent. Any person receiving such a demand for relief who, within thirty days of the mailing or delivery of the demand for relief, makes a written tender of settlement which is rejected by the claimant may, in any subsequent action, file the written tender and an affidavit concerning its rejection and thereby limit any recovery to the relief tendered if the court finds that the relief tendered was reasonable in relation to the injury actually suffered by the petitioner. In all other cases, if the court finds for the petitioner, recovery shall be in the amount of actual damages or twenty-five dollars, whichever is greater; or up to three but not less

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than two times such amount if the court finds that the use or employment of the act or practice was a willful or knowing violation of said section two or that the refusal to grant relief upon demand was made in bad faith with knowledge or reason to know that the act or practice complained of violated said section two." (Emphases supplied.)

G. L. c. 93A, § 9(3).

The singular forms of "claimant" and "petitioner" [Note 7] are used in the statute to denote the party from whom a written demand letter is expected and to whom a written tender is made. Further, G. L. c. 93A, § 9(3), provides that when judging the reasonableness of the relief tendered, a court only looks at "the injury actually suffered by the petitioner." The plain language of G. L. c. 93A, § 9(3), thus provides that only a demand letter made on the claimant's own behalf is required to be served on defendants and responded to, at least until a "class of petitioners" has, at some future period, been certified after the preliminary hearing following the commencement of the action, as provided in G. L. c. 93A, § 9(2). (But see discussion, infra.)

The use of singular forms in § 9(3) does not appear to have been accidental. The Legislature, having enacted § 9(2) at the same time as § 9(3), see St. 1969, c. 690, could easily have stated in § 9(3) that a demand letter by a plaintiff purporting to represent a class, as authorized by § 9(2), should identify "the claimant and any similarly situated persons on behalf of whom the claimant brings the action"; that a tender should be made to and might be rejected by the "the claimant on behalf of such similarly situated persons"; or that the reasonableness of the

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tender would be evaluated "in relation to the injury actually suffered by the petitioner and the class of petitioners claimed to be represented," or words to similar effect. But it did not, and we do not read into a statute provisions the Legislature did not see fit to put there. See Massachusetts Broken Stone Co. v. Weston, 430 Mass. 637 , 640 (2000); Dube v. Contributory Retirement Appeal Bd., 50 Mass. App. Ct. 21 , 23-24 (2000).

Such an omission additionally appears intentional because the important functions served by the demand letter requirement -- to "encourage negotiation and settlement . . . [and] operate as a control on the amount of damages" that can ultimately be recovered, Slaney v. Westwood Auto, Inc., 366 Mass. 688 , 704 (1975) -- could not practicably be realized (contrary to the plaintiff's expectation here) at a time when both the size of the eventual plaintiff class (if ever certified) and the total extent of their eventually claimed damages were unknown and could not possibly be estimated by a prospective defendant receiving the letter without knowledge of the actual scope and extent of the injuries to be alleged. (The plaintiff's contention, that merely by being identified as conspiratorial price-fixers in an unverified complaint prospective defendants may be presumed to possess the information necessary to make such a damage evaluation, finds no support in law, logic, or litigation realities.) Accordingly, in judging the sufficiency of such a precertification demand letter, we look solely to the description of the individual claimant's own injury, and the central issue in this case becomes whether the demand letter sufficiently described the injury suffered by the plaintiff herself.

There is no dispute as to the demand letter's sufficient identification of the claimant and the class she proposed to represent. There is also no dispute that the letter "reasonably describ[ed] the unfair or deceptive act or practice relied upon," G. L. c. 93A, § 9(3), by explicitly alleging that the defendants had conspired to "fix, raise, maintain and stabilize prices for the sale of polyester staple" and to "divide and allocate customers in connection with the sale of polyester staple" and by setting forth details of the conspiracy alleged to have occurred in the defendants' meetings and conversations. Price-fixing of any sort is unquestionably a violation of G. L. c. 93A. Ciardi v. F. Hoffmann-La Roche, Ltd., 436 Mass. at 59-60.

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The heart of the defendants' rationale for dismissal, adopted by the judge, is that the demand letter did not reasonably describe the injury suffered by the plaintiff. The judge faulted her for failing to identify the following:

"1) the type of consumer product bought by the plaintiff containing Polyester Staple; 2) the approximate number of products containing Polyester staple bought by the plaintiff; 3) an estimate of the alleged economic injury suffered by the plaintiff; or 4) any correlation between anything any defendant is alleged to have done and the unidentified consumer product the plaintiff is alleged to have purchased."

We disagree with the judge's strictures. [Note 8] First, the findings that the plaintiff failed to identify the type and number of consumer products she had bought cannot stand. The plain language of G. L. c. 93A, § 9(3), only requires the demand letter to "reasonably describ[e] . . . the injury suffered." Neither the statute nor any decided case requires the letter to identify the type or the number of consumer products purchased by a plaintiff in such a case. Moreover, the plaintiff's demand letter did describe the types (though not the numbers) of consumer products containing polyester staple that she had purchased (if only generically), as "shirts and other wearing apparel, linens and home furnishings."

Requiring a dollar estimate of the alleged "economic injury" suffered by the plaintiff was also not supportable. The letter, in our view, describes the injury in sufficient detail to permit the defendants reasonably (even if only roughly) to ascertain their exposure, at least to her as an individual and occasional purchaser of personal and household items containing polyester staple. We have held on more than one occasion that a demand letter need not contain a dollar amount of damages, so long as it describes the injuries in "sufficient detail to permit [the defendant] reasonably to ascertain its exposure." Simas v. House of Cabinets, Inc., 53 Mass. App. Ct. 131 , 140 (2001). See Brandt

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v. Olympic Constr., Inc., 16 Mass. App. Ct. 913 , 915 (1983) (demand letter held adequate where damages were apparent from facts alleged); Fredericks v. Rosenblatt, 40 Mass. App. Ct. 713 , 717-718 (1996) (demand letter sufficient where injury was described and damages were reasonably ascertainable); Tarpey v. Crescent Ridge Dairy, Inc., 47 Mass. App. Ct. 380 , 391 (1999) ("the fact that the demand letter did not specify the dollar amount demanded is not decisive since . . . the letter was otherwise comprehensive and detailed"). [Note 9]

Contrary to the finding that the demand letter did not allege that the plaintiff "was injured in any manner, let alone reasonably describe the injury suffered," the letter expressly alleged that the plaintiff was injured "in the form of [having to pay] higher out-of-pocket costs to purchase products containing polyester staple and other damages" as a result of the defendants' price-fixing conspiracy. [Note 10] In light of the type of consumer claim at issue, we believe that the letter "reasonably

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describ[ed] . . . the injury suffered" by the plaintiff as an individual consumer when she allegedly bought a relatively few categories of overpriced household and personal goods that were unlikely to be frequently acquired by an average purchaser over a four-year period. Not only was she not required to identify a specific dollar figure of damages, but such a requirement might very well have made it impossible for her to have proceeded at all, since only through postcomplaint discovery could the defendants' materials and manufacturing costs, product pricing, distribution chains, and other data needed even to estimate the direct and subsequent "indirect" ripple effects of the price-fixing alleged be ascertained.

Under the judge's and the defendants' theory, that a heightened level of detail regarding injury and damages is required in a demand letter, a consumer seeking to challenge a price-fixing conspiracy as the representative of an allegedly injured class under G. L. c. 93A, § 9(2), would rarely, if ever, be able to satisfy the condition precedent to filing suit, given the evidentiary reality that true conspirators may be presumed to have taken steps to conceal their illegal conduct and its harmful effects. Cf. Commonwealth v. Anselmo, 33 Mass. App. Ct. 602 , 604 (1992), quoting from Commonwealth v. Nelson, 370 Mass. 192 , 200 (1976) ("circumstantial evidence . . . is the usual mode of proving [conspiracy], since it is not often that direct evidence can be had"); Commonwealth v. Melanson,

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53 Mass. App. Ct. 576 , 580 (2002) ("a conspiracy rarely wears its heart on its sleeve"). We cannot construe the statute in such a way as effectively to negate the manifest legislative intent to provide a meaningful form of class action remedy to Massachusetts consumers affected by one of the most egregious of anticompetitive activities. See Simon v. Solomon, 385 Mass. 91 , 100 (1982) ("A statute should not be read in a manner that defeats its intended utility"). See also Manning v. Boston Redev. Authy., 400 Mass. 444 , 453 (1987). This is particularly so since the intent of St. 1969, c. 690, was to broaden, rather than narrow or limit, the ability of Massachusetts citizens to vindicate their rights against unfair, deceptive, and anticompetitive acts and practices. Cf. Commonwealth v. Kapsalis, 26 Mass. App. Ct. 448 , 455 (1988).

We also disagree with the finding that the plaintiff failed to identify any causal relationship between the defendants' alleged conduct and the products the plaintiff claimed to have purchased. [Note 11] The plaintiff expressly asserted in the demand letter that she was "overcharged for products that contain polyester

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staple . . . as a result of" the defendants' price-fixing, as well as "deprived of the benefits of competition among existing polyester staple manufacturers."

As noted earlier, the plaintiff cast the demand letter as one on behalf of the entire putative class as well as herself. If and when a class is certified, it is unclear -- and we express no opinion on the issue -- whether one or more new demand letters would be required or even appropriate, [Note 12] particularly in light of the mandate of § 9(2) that, once a class is certified, the action may not be settled or compromised without court approval.

Finally, as noted earlier, the judge did not act on Nan Ya's separate motion to dismiss for lack of personal jurisdiction. [Note 13] The parties argue that this court can and should nonetheless decide the issue because they have fully briefed it (and, unsurprisingly, reached opposite conclusions). However, the question whether a tribunal has personal jurisdiction is peculiarly fact-specific and fact-intensive, possibly including difficult inquiries into parties' intentions. See Droukas v. Divers Training Academy, Inc., 375 Mass. 149 , 152-159 (1978); Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1 , 2, 5-12 (1979); Haddad v. Taylor, 32 Mass. App. Ct. 332 , 334-336 (1992); Stanton v. AM Gen. Corp., 50 Mass. App. Ct. 116 , 117-121 (2000). Furthermore, "the [trial] courts of the Commonwealth

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are afforded considerable procedural leeway in determining proof of the factual basis for the 'minimum contact' requirement necessary to satisfy the 'fair and reasonable' due process standard," Cepeda v. Kass, 62 Mass. App. Ct. 732 , 737 (2004), which may take the form of ordering discovery prior to ruling on the motion to dismiss, see Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. at 13 n. 20; Tatro v. Manor Care, Inc., 416 Mass. 763 , 764 (1994), or holding an evidentiary hearing on the motion. Cepeda v. Kass, 62 Mass. App. Ct. at 737-738.

Consequently, we deem the trial court to be the more appropriate forum to marshal the pertinent facts and apply the fact-dependent jurisdictional standards under the long-arm statute, G. L. c. 223A, § 3, at least in the first instance. For such an inquiry, the trial court is also better positioned to decide the issue in question as a matter of sound judicial administration; at the same time we keep in mind (while expressing no view as to how the jurisdictional issue might be resolved) that this allocation of decision-making does not preclude appellate correction when necessary.

Judgment reversed.