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:

1. The sender of the mailings is not identified on the outside of the envelopes.
2. 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.
3. 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.

January 22, 2010

Ray Ciccolo
Village Automotive Group
75 North Beacon Street
Allston, MA 02134-1912

Dear Mr. Ciccolo,

Once again, I find myself sending you a M.G.L. Chapter 93a letter because of Honda Village’s deceptive trade practices.

In June 2009, Honda Village started sending me promotional materials in envelopes that look like this:

[image elided; see my previous blog posting]

I am not going to waste my time explaining why this is clearly intended to deceive the recipient about the source, importance, and content of these mailings. I know this is so; you know this is so; the methods of deception and intent to deceive are obvious. I’m quite certain that a judge will agree.

I received a number of these mailings before I finally decided to ask you to stop sending them. On October 15, I sent a message through the contact form on your Web site which read as follows:

(Do not add my email address to any bulk email lists as a result of this submission. I am providing you with my email address only so that you can respond to this request. NO OTHER USE OF MY EMAIL ADDRESS IS AUTHORIZED.)

(Do not add my postal mailing address to any direct-marketing lists as a result of this submission. I am providing you with my postal address only so that you can remove me from your direct-marketing list as described below. NO OTHER USE OF MY POSTAL ADDRESS IS AUTHORIZED.)

For months now, you have been sending me junk mail in envelopes that you have intentionally designed to deceive recipients. You’ve made them look like some sort of official certified or registered mail, and you’ve intentionally left your company name and return address off of the envelopes. These envelopes are clearly designed to get people to open them, when they would just throw them in the trash if it was obvious they were from you.

This kind of deceptive direct-mail advertising is exceedingly slimy. It is distressing to me that I purchased a vehicle from a company that employs such slimy tactics. You have proven to me, unfortunately not for the first time, that my initial impression, that you were different from all the other slimy car dealers out there, was wrong.

Whatever mailing list I am on to be sent these slimy mailings — please get me off of it. Right now. And leave me off of it. Permanently.

Honda Village did not have the courtesy to reply. Furthermore, since I sent the message quoted above, I have received at least two more of these offensive mailings, the most recent one today.

If you had stopped sending these when I asked you to stop, I would have left it at that. But since you didn’t, I have decided to teach you a lesson not only about not sending junk mail to people who have asked you to stop, but also about engaging in deceptive trade practices.

Chapter 93a stipulates that individuals may sue businesses which engage in deceptive trade practices for the greater of actual damages or $25. The law further stipulates that double or even triple damages shall be awarded for willful violations and/or when the violator refuses to grant relief. Finally, the law stipulates that a claim for damages may be made by the plaintiff for each separate violation.

At first glance, $25, may not seem like a lot. However, I have documented at least four such mailings, which increases the damages to $100. Given that your attempt to deceive is clearly willful, and that you failed to grant relief by stopping the mailings when I asked you to, triple damages are warranted, i.e., $300. And of course there’s also the filing fee.

But wait, there’s more. Chapter 93a (Section 9) also has this to say:

(2) Any persons entitled to bring such action may, if the use or employment of the unfair or deceptive act or practice has caused similar injury to numerous other persons similarly situated and if the court finds in a preliminary hearing that he adequately and fairly represents such other persons, bring the action on behalf of himself and such other similarly injured and situated persons; the court shall require that notice of such action be given to unnamed petitioners in the most effective practicable manner.

In other words, I can and will argue, if you force me to take you to court, that every single recipient of these mailings is entitled to $25 in damages, tripled to $75, for every single one of the mailings they received. That will obviously bump the case out of Small Claims Court and into Superior Court. That’s fine with me, since I have no doubt that I’ll be able to find a class-action lawyer willing to take the case on contingency.

How much do you reckon it’ll cost you to defend against this lawsuit, even if by some miracle you are successful?

As required by Chapter 93a, here are my demands for an acceptable settlement to this matter:

1. You will pay me $200 (two hundred dollars), i.e., double the minimum damages to which I am entitled under Chapter 93a, as compensation for the time I’ve spent publicizing and trying to stop your deceptive practices. This is a fair compromise to save us both the trouble of going to court, where I would surely be awarded triple damages.
2. You will permanently cease and desist from sending promotional postal and electronic mailings of any sort to my wife or me.
3. You will agree in writing that any future promotional mailing sent by you to my wife or me will ipso facto cause us undue emotional distress, and that you will pay damages to us in the amount of $500 (five hundred dollars) for each such mailing.
4. While not admitting fault, you will agree in writing to permanently cease and desist from sending promotional mailings, to anyone (i.e., not merely to my wife and me), that are designed to deceive the recipient as to their contents. Furthermore, you will agree to always identify Honda Village or Village Automotive Group by name on the outside of all future promotional mailings.
5. You will agree in writing that any future promotional mailings from you which do not identify Honda Village or Village Automotive Group by name on the outside shall ipso facto constitute a deceptive trade practice under Chapter 93a.
6. You will agree in writing to allow me to publish your response to this letter, including but not limited to the commitments enumerated in the previous two paragraphs, on my blog.

As required by Chapter 93a, I will await your response for 30 days from the date of this letter before initiating legal action.

Sincerely,

Jonathan Kamens

More junk mail arrived in late March, so I asked him again, this time using both the form and a phone call.

He sent me back a snarky response.  I, in term, sent him an equally snarky response.  He responded a second time, and this time he was somewhat less snarky and more conciliatory.

Conciliatory though he may have been, he didn’t actually do what I asked.  Since then, I have received at least five pieces of junk mail from him, and one from another Realtor in his office.

It seems that refrigerator magnets are Frank’s gimmick, since several of the junk mailings have contained them — the Patriots schedule, the Red Sox schedule, a 2010 calendar, etc.  I have no use for any of these, and they are far worse for the environment than simple paper junk mail.

Vanguard Realty is right in my neighborhood.  When my wife and I decide to sell our house, using a Realtor near us would be quite convenient both to us and to potential buyers.  But we’re not going to use one who ignores the most basic of requests (“stop sending us junk mail!”) from potential customers, and in the process damages the environment.

One cannot help but wonder why Frank doesn’t seem to understand that alienating potential customers is bad for business.

July 27, 2009

Customer Complaint Department
Micro Electronics, Inc.
4119 Leap Road
Hilliard, OH 43026

To whom it may concern:

I first asked you to permanently remove me from your postal mailing list on October 10, 2007. I received a response that same day confirming my request. I received two more mailings that month, and then the mailings stopped. At least, they did until February 2009, when they started again after I bought something at one of your stores.

On February 16, I sent a message through your Web form, asking you once again to permanently unsubscribe me from your mailing list (yes, that means that even if I buy something from one of your stores, I don’t want you to put me back on the list!). I sent another request March 15, and a third on April 30, this time by email to csrs@microcenterorder.com.

Since I asked you on February 16 to stop sending me mailings, I’ve received six, most recently today.

As a result of your repeatedly ignoring the requests I’ve sent through the obviously useless mechanisms you tell customers to use, I have now been forced to spend my own money to send you this letter.

For two years, I have been attempting to eliminate junk mail from my mailbox. In addition to signing up for the Direct Marketing Association’s “do not mail” list, I have contacted every single entity that has sent me junk mail, literally hundreds of them, and asked them to remove me from their lists. I can count on one hand the number of entities who have been incapable of honoring my request. Same on you for being one of them.

I’ve spent so much time and effort combating junk mail because it is a huge scourge on the environment, and I actually care about the future of our planet. Apparently, your company does not.

I will, of course, be posting this letter on my blog and encouraging all those who read it to shop elsewhere. Why should we patronize a store which thinks nothing of ignoring its customers’ wishes and destroying the environment?

Sincerely,

Jonathan Kamens

P.S. Given the difficulties I’ve encountered getting you to stop sending me junk mail, I find it rather ironic that the “Privacy Policy” URL printed on your mailings, http://www.microcenter.com/privacy_policy.html, is invalid.