[You can read the whole series of Honda Village postings here.]
I received in the mail today a letter from E. Peter Mullane, the lawyer whom Village Automotive Group has apparently retained to respond to my Chapter 93a letter about their deceptive advertising practices.
It is worth noting that E. Peter Mullane’s chief claim to fame is that he is one of the lawyers who defended John J. Connolly Jr., the former FBI agent who was convicted in federal court of racketeering, obstruction of justice, murder and conspiracy to commit murder and will be spending the rest of his life in prison. Nice!
I am not going to publish Mullane’s letter here, because there are all kinds of legal issues with that, and… well… Mullane is a lawyer, y’know? I will, however, publish the response I just sent him, from which you can get a pretty good idea of the claims he made in his letter. Enjoy!
E. Peter Mullane, Esq.
6 Bennett Street
Cambridge, MA 02138-5708
Dear Mr. Mullane,
I received your letter today concerning Village Automotive Group. Not Honda Village, because the deceptive practices about which I wrote are being used by multiple VAG dealerships, and because Honda Village is not a registered corporation but rather is part of Village Automotive Group, Inc. As such, any class action undertaken in response to these practices will name VAG as the defendant.
While agree with your characterization of the advertising industry as “primarily and unapologetically based upon the premises and goal of the advertisers trying to get people to buy things they perhaps do not really need, or to use products that have less value than is being represented and touted by the manufacturer,” the law views these objectives differently from intentional deception, i.e., knowingly misleading consumers into believing something that is completely and objectively false.
Concerning your example, “the pharmaceutical companies who spend billions of dollars advertising prescription drugs that commonly do not perform as advertised, and in fact in many cases have undisclosed side-effects that are actually harmful to the consumer,” in fact, drug companies are prohibited from knowingly making false claims and are required to disclose side effects. There have been several high-profile cases recently when drug companies have been fined and prosecuted for failures in this regard.
As for your other example, “companies advertising the social benefits of alcohol and tobacco use, while promoting the fiction and deception that the use of those products is the key to the road to happiness and having a fun time,” advertisements are permitted to employ exaggeration and hyperbole which a reasonable man would recognize as such, and the alcohol and tobacco advertisements to which you refer clearly fall into this category, and the law does not regard them as “deception.”
As for your assertion that the advertising industry is protected by the First Amendment, that is true to a large extent, but again, that protection does not apply to intentional, knowing deception. If that were not so, then the deceptive advertising elements of Chapter 93a would have been ruled unconstitutional long ago. For example, an oriental rug store may not repeatedly advertise fake “Going out of business!” sales to dupe customers into thinking that they are getting a good deal when they are not.
The envelopes which Village Automotive Group is using to mail its advertisements to consumers are designed to intentionally, knowingly deceive the recipients into thinking that their content is different and more important than it actually is. This is true for at least three different reasons:
- The sender of the mailings is not identified on the outside of the envelopes.
- The envelopes bear markings designed to make them falsely appear to be Certified Mail™, thus making the contents of the envelopes appear to be more important than they actually are.
- The other markings on the envelopes, e.g., the printed year and the font used for the return address, are designed to mimic those of mailings sent by the federal government (most notably, the IRS and/or Social Security Administration), thus, once again, making it appear that the contents of the envelopes are far more personal and important than they actually are.
Unlike an alcohol or tobacco advertisement, a reasonable man would not recognize the deception being promulgated by one of these envelopes until he had already opened it. Indeed, the strategies employed by these envelopes are designed and intended to deceive a reasonable man.
According to Duclersaint v. Federal National Mortgage Association, 427 Mass. 809, 696 NE2d 536 (1998) “A practice may be deceptive if it reasonably could be found to have caused the plaintiff to act differently than he otherwise would have acted.” That is clearly the case here, as the entire purpose of these deceptive envelopes is to cause their recipients to open them rather than throwing them in the trash as they would have if they had recognized their real origin and purpose.
On the subject of damages, Chapter 93a does not limit itself to actual damages, but rather permits redress for incidental damages as well. Indeed, according to Leardi v. Brown, 394 Mass. 151 (1985). Chapter 93A can be used to redress any injury, defined as “invasion of a legally protected interest.” and “plaintiffs are entitled to nominal damages even where no actual damages are shown.”
For example, if a consumer sees a “Going out of business!” banner in the window of a rug store, enters the store thinking he is going to get a bargain on a rug, and discovers that in fact the rugs being sold are of poor quality and not worth even the supposedly “bargain” prices being asked for them, he may file a claim against the store under Chapter 93a even if he did not purchase a rug, citing as damages the lost of time spent determining that the store’s advertisement was deceptive.
I assert time damages resulting from lost time spent opening your client’s deceptive advertisements before realizing their deceptive nature, as well lost time spent attempting to get your client to stop sending me these advertisements. I further assert damages resulting from emotional distress: since purchasing a vehicle from your client, I have become disgusted by their deceptive and dishonest practices and intensely ashamed that I ever did business with them, and I am forced to relive these painful emotions every time I receive another advertisement from your client. I further assert damages from invasion of privacy resulting from your client’s failure to stop sending me the advertisements when I asked them to do so. By the way, thank you for confirming that your client received that request, thereby making it impossible claim that they did not, should this matter go to trial.
Even if you are correct that my request was passed on to a vendor who failed to act on it, that does not diminish your client’s liability. The vendor was acting as a paid agent of your client, and it was incumbent upon your client to ensure that the vendor had proper procedures in place to ensure that requests such as mine were properly handled. Furthermore, concerning the nature of the advertisements, your client obviously worked with the vendor to design them and is thus liable for the intentional deception. Nevertheless, you can be sure that if a class action is initiated against your client for employing these deceptive practices, the advertising vendor through which the mailings were sent will be named as an additional defendant.
I have now demonstrated that the actions of your client were both unlawful and injurious under Chapter 93a. I include here by reference, without modification, the demands I enumerated in my last letter. I look forward to your prompt reply.