REFUSE & ENV. SYSTEMS v. Industrial Services

• Decision Date: 09 March 1990
• Docket Number: Civ. A. No. 85-0375-F.
• Citation: 732 F. Supp. 1209
• Parties: REFUSE & ENVIRONMENTAL SYSTEMS, INC. and Richard V. Bisesti, Plaintiffs, v. INDUSTRIAL SERVICES OF AMERICA, d.b.a. Computerized Waste Systems, Inc., Harry Kletter, Joseph Freedman, Paul Burke, Daniel Goodman, David Goodman, Samuel Rosenberg, and John Doe(s), Defendants.
• Court: U.S. District Court — District of Massachusetts

732 F. Supp. 1209

REFUSE & ENVIRONMENTAL SYSTEMS, INC. and Richard V. Bisesti, Plaintiffs, v. INDUSTRIAL SERVICES OF AMERICA, d.b.a. Computerized Waste Systems, Inc., Harry Kletter, Joseph Freedman, Paul Burke, Daniel Goodman, David Goodman, Samuel Rosenberg, and John Doe(s), Defendants.

Civ. A. No. 85-0375-F.

United States District Court, D. Massachusetts.

March 9, 1990.

COPYRIGHT MATERIAL OMITTED

George F. Kelly, Ryan & White, Springfield, Mass., and John J. Pribish, N. Brunswick, N.J., for plaintiffs.

Charles Bergin, Robinson Donovan Madden & Barry, P.C., Springfield, Mass., for defendant Computerized Waste.

Edward Donnellan, Keyes & Donnellan, Springfield, Mass., for defendants Kletter, Computerized Waste, Freedman and Burke.

MEMORANDUM AND ORDER

FREEDMAN, Chief Judge.

I. INTRODUCTION

Plaintiff Richard V. Bisesti ("Bisesti") and his upstart company, plaintiff Refuse & Environmental Systems, Inc. ("R & E"), filed suit against the named defendants on September 9, 1985. In a lengthy complaint, plaintiffs sought relief on six counts, including violations of the federal antitrust laws, the Massachusetts Consumers Protection Act, and Massachusetts tort law.¹ After trial, a jury awarded damages to plaintiffs on four of the five counts presented for jury consideration. The jury awarded plaintiff R & E $43,050.00 against defendant Industrial Services of America ("Industrial Services" or "CWS")² on Count I for violation of section 4 of the Clayton Act, 15 U.S.C. § 15. The jury also found Industrial Services liable to R & E on Count II for interference with R & E's prospective economic gain and contractual relations. The jury awarded $151,990.00 for this wrong. On Count III, a claim for slander, the jury found defendants Joseph Freedman and Harry Kletter liable to plaintiff Bisesti for $100,000 each. On Count V, the jury awarded plaintiffs a total of $6,000.00 for abuse of process, payable in equal parts by defendants Freedman and Kletter. See Special Interrogatories (March 30, 1989).³

A sixth count, brought under the Consumers Protection Act, Mass. Gen. Laws ch. 93A, § 2, was decided by the Court after the jury rendered its verdicts. The Court found that defendants Freedman and Kletter were liable for unfair and deceptive acts within the meaning of section 2. Accordingly, the Court ordered Freedman and Kletter to pay $10,000.00 each for the chapter 93A violations.

Both sides have filed post-trial motions. A total of five motions have been filed, and these are presently before the Court. (1) Plaintiff R & E has filed a motion for amended findings. R & E asks this Court to treble the damages awarded under Count I pursuant to section 4 of the Clayton Act, 15 U.S.C. § 15. R & E also requests that the damages awarded under Count II and Count V be trebled pursuant to chapter 93A. (2) R & E has filed a motion for an award of attorney's fees pursuant to both the Clayton Act and chapter 93A. (3) Plaintiffs have moved for an order requiring that defendants bear the entire cost of the trial transcript.⁴ Defendants oppose these motions.

Like plaintiffs, defendants seek to modify the verdict in a direction favorable to them. (4) Defendant Freedman has filed a motion for relief from the verdict as to Count III. (5) Defendants have filed a motion for a declaration that damages will be awarded in the alternative, that is, that R & E must choose between Count I damages and Count II damages. Plaintiffs oppose defendants' motions. Now, with the assistance of the voluminous transcript and a plethora of memoranda from the parties, the Court must render its decision on these five motions.

II. DISCUSSION

A. Plaintiff R & E's Motion for Treble Damages Pursuant to 15 U.S.C. § 15

The jury returned a verdict against defendant Industrial Services on Count I, finding that Industrial Services was liable for antitrust violations in the sum of $43,050.00

Under section 4 of the Clayton Act, 15 U.S.C. § 15, "any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in the district court of the United States ... and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee." The statutory language is clear. This Court, operating under a mandate from Congress must treble damages awarded for the antitrust violation. Such damages provide for private relief, and serve the "high purpose of enforcing antitrust laws." Zenith Corp. v. Hazeltine, 395 U.S. 100, 131, 89 S.Ct. 1562, 1580, 23 L.Ed.2d 129 (1969).

Defendant Industrial Services is hereby ordered to pay, pursuant to 15 U.S.C. § 15, three times the damages awarded by the jury on Count I, that is, $129,150.00.⁵

B. Plaintiff R & E's Motion for Multiple Damages Under Massachusetts General Laws Chapter 93A

The legislature enacted chapter 93A to provide a remedy for those persons injured by unfair and deceptive practices. Heller v. Silverbranch Construction Corp., 376 Mass. 621, 382 N.E.2d 1065, 1069 (1978). "Section 2, the substantive heart of c. 93A, makes `unfair and deceptive practices in the conduct of any trade or commerce' unlawful." Id. A plaintiff need not prove common law or statutory causes of action as a basis for chapter 93A recovery. Commonwealth v. DeCotis, 366 Mass. 234, 316 N.E.2d 748, 754 (1974). Instead, chapter 93A "establishes new procedural devices to aid consumers and others ... and also creates new substantive rights by making conduct unlawful which was not unlawful under the common law or any prior statute." Id. 316 N.E.2d at 755 n. 8.

Damages awarded under chapter 93A are "in addition to, and not an alternative to, traditional tort and contract remedies." Linthicum v. Archambault, 379 Mass. 381, 398 N.E.2d 482, 485 (1979). A plaintiff may collect damages for both a common law or statutory cause of action, and a chapter 93A violation where a separate basis for recovery exists for each. It is "error for the trial judge to refuse relief under chapter 93A because it was `unnecessary to secure adequate relief for said plaintiff' or because the plaintiff would thereby find herself `in a better position than she would have been in had the defendant fulfilled his contractual obligations.'" Linthicum, 398 N.E.2d at 485.

However, the traditional judicial axiom that a plaintiff may not collect duplicative damages applies to chapter 93A actions. "Where the same acts cause the same injury under more than one theory ... duplicative damage recoveries will not be permitted." Calimlim v. Foreign Car Center, Inc., 392 Mass. 228, 467 N.E.2d 443, 448 (1984). There must be separate bases for recovery under the different theories. Plaintiff may not allege one set of facts and collect under two theories for the same wrongful conduct. A rule to the contrary would result in cumulative recovery, which the Supreme Judicial Court has expressly prohibited. Id. 467 N.E.2d at 447-48.

Chapter 93A, § 11 provides in relevant part as follows:

If the court finds for the petitioner, recovery shall be in the amount of actual damages; or up to three, but not less than two, times such amount if the court finds that the use or employment of the method of competition or the act or practice was a willful or knowing violation of said section two.

Thus, chapter 93A demands that a court at least double the award of actual damages sustained by a plaintiff as a result of a chapter 93A violation if that violation is deemed "willful." Chapter 93A does not, however, allow the court to double or treble damages awarded by a jury on claims not brought under chapter 93A. This is true despite the willful nature of the acts.

After the jury returned its verdicts in the instant case, the Court awarded plaintiff damages on Count VI for the chapter 93A violations.⁶ The Court held that Kletter and Freedman had each caused $10,000.00 actual damages to plaintiffs as a result of unfair and deceptive practices, and the defendants were held liable for that amount, in addition to the damages awarded by the jury. The tort damages awarded by the jury on Counts II and V are not subject to increase under chapter 93A. Instead, the language of chapter 93A, § 11 provides that the court must double, and may treble, only the actual damages awarded for the chapter 93A violation.

In this case, the Court found a separate basis for chapter 93A violations. The Court found that the defendants, in bringing the state lawsuit in spite of the evidence, willfully committed an unfair and deceptive practice within the meaning of chapter 93A, §§ 2 and 11. Chapter 93A offers a remedy to plaintiffs who have been forced to litigate claims that clearly lack merit. Heller, 382 N.E.2d at 1071; International Fidelity Ins. Co. v. Wilson, 387 Mass. 841, 443 N.E.2d 1308, 1318 (1983). Thus, the Court awarded actual damages in the sum of $20,000.00, payable in equal parts by defendants Freedman and Kletter. This amount must be doubled, and may be trebled if the Court in its discretion deems such an award appropriate.

Multiple damage awards allowed under section 11 serve to discourage the use of deceptive trade practices in business, and "encourage victims to avail themselves of these legal remedies, thus giving chapter 93A greater practical effect." Evans v. Yegen Associates, Inc., 556 F.Supp. 1219, 1235 (D.Mass.1982). With the goal of chapter 93A in mind, this Court will consider the egregiousness of the violation, the deterrence value of multiple damages, the practical effect on the parties of the award, and other relevant factors to decide whether to treble the damages. After carefully considering the facts of this case, the Court decides to award double, but not treble damages. Treble damages are most appropriate in consumer cases where the victims are vulnerable individuals with limited resources. The Evans court states that:

although the goals of the multiple damages provisions are similar in consumer and commercial

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