Hebert v. Vantage Travel Serv.

• Decision Date: 18 June 2021
• Docket Number: Case No. 17-cv-10922-DJC
• Parties: RONALD HEBERT and AIME DENAULT on behalf of themselves and others similarly situated, Plaintiffs, v. VANTAGE TRAVEL SERVICE, INC. d/b/a VANTAGE DELUXE WORLD TRAVEL and VANTAGE ADVENTURES, Defendant.
• Court: U.S. District Court — District of Massachusetts

RONALD HEBERT and AIME DENAULTon behalf of themselves and others similarly situated, Plaintiffs, v. VANTAGE TRAVEL SERVICE, INC.d/b/a VANTAGE DELUXE WORLD

TRAVEL and VANTAGE ADVENTURES, Defendant.

Case No. 17-cv-10922-DJC

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

June 18, 2021

MEMORANDUM AND ORDER

CASPER, J.

I. Introduction

Plaintiffs Ronald Hebert and Aime Denault, suing on behalf of themselves and a class of others similarly situated (collectively, "Plaintiffs"), filed suit against Defendant Vantage Travel Service, Inc. d/b/a Vantage Deluxe World Travel and Vantage Adventures ("Vantage Travel") alleging breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, breach of common law warranties, negligent misrepresentation and a violation of the Massachusetts Consumer Protection Act, Mass. Gen. L. c. 93A, §§ 2 and 9 ("Chapter 93A"), related to river cruise travel packages that Plaintiffs purchased from Vantage Travel. D. 1-1.¹

Vantage Travel has now moved for reconsideration and reversal of the Court's March 12, 2020, Order denying in part its motion for summary judgment ("Summary Judgment Order"), D. 165, for a bench trial on the surviving Chapter 93A claim, D. 167, and to limit Plaintiffs' class, D. 169. For the reasons discussed below, the Court DENIES the motion to reconsider, D. 165, ALLOWS the motion for a bench trial, D. 167, and DENIES the motion to limit the class, D. 169.

II. Standard of Review

"[A] district court has the inherent power to reconsider its interlocutory orders." Fernández-Vargas v. Pfizer, 522 F.3d 55, 61 n.2 (1st Cir. 2008) (citation omitted). Allowing "a motion for reconsideration is an extraordinary remedy which should be used sparingly," Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006) (quotation omitted), and is appropriate only "where the movant shows a manifest error of law or newly discovered evidence, or where the district court has misunderstood a party or made an error of apprehension." Villanueva v. United States, 662 F.3d 124, 128 (1st Cir. 2011) (citing Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 81-82 (1st Cir. 2008)). A motion for reconsideration is not to "be used as a vehicle for a party to advance arguments that could and should have been presented to the district court prior to its original ruling." Id.

III. Procedural History

Plaintiffs instituted this action in Suffolk Superior Court. D. 1-3 at 2. Vantage Travel removed the action to this Court. D. 1. Vantage Travel initially moved to dismiss or, in thealternative, for summary judgment. D. 7. Named Plaintiffs filed a cross-motion to strike portions of a supporting declaration filed by Vantage Travel. D. 14 at 6-7. The Court denied both motions. D. 25. The Court certified the following class on May 1, 2019: "All persons who purchased from Vantage [Travel] either the July 2016 'Majestic Rivers of Europe' tour, or the July 2016 'Highlights of the Danube River.'" D. 75 at 6. Plaintiffs moved for summary judgment as to liability. D. 100. Vantage Travel moved for summary judgment as to all claims. D. 104. Plaintiffs also filed a motion to estop Vantage Travel from disclaiming ownership of the cruise ship, the MS River Voyager. D. 115. The Court denied Plaintiffs' motions and allowed Vantage Travel's motion on all claims except for part of Plaintiffs' Chapter 93A claim. D. 147. Vantage Travel has now moved for reconsideration and reversal of the Court's summary judgment order to the extent that it did not allow summary judgment as to the remainder of the Chapter 93A claim, D. 165, for a bench trial, D. 167, and to limit the class, D. 169.

IV. Discussion

A. Motion for Reconsideration

Plaintiffs' sole remaining claim is that Vantage Travel violated Chapter 93A when it "failed to offer Plaintiffs their choice of alternatives enumerated under 940 C.M.R. §15.06 and instead distributed a letter to all passengers requiring them to choose one of two restrictive options . . . ." See D. 147 at 22. Under 940 C.M.R. § 15.06, a "tour operator" must offer these alternatives when the operator "fails to provide any of the travel services" purchased by consumers. See id. at 24-25 (quoting 940 C.M.R. § 15.06). In turn, 940 C.M.R. § 15.01(1) (collectively, the "Travel Regulations") provides that "violation of any provision under [this section]," like § 15.06, "shall be an unfair or deceptive act or practice, under [Chapter 93A]." 940 C.M.R. § 15.01(1). As the Court explained, "[t]here is no dispute that Vantage Travel failed to offer passengers their choiceof a full refund of undelivered travel services, a travel service of equal or greater value or a travel service of lesser value along with a refund for the difference in value [but] there still appears to be a dispute as to whether Vantage Travel provided 'all services' purchased by Plaintiffs and, if not, which services they failed to provide." Id. at 26-27. Accordingly, the Court denied summary judgment on the question of whether Vantage Travel failed to provide "all services." Id. at 27.

Vantage Travel now asserts that the Court erred in denying summary judgment as to the remaining theory of liability under Chapter 93A, arguing (1) that Massachusetts courts and the First Circuit have rejected per se violations of Chapter 93A that are based on regulatory violations, (2) that Plaintiffs are required to make a heightened showing of unfair and deceptive conduct, and (3) that the Attorney General exceeded her authority in issuing the Travel Regulations that define certain acts or practices as per se unfair or deceptive. See D. 166. As an initial matter, Vantage Travel did not raise any of these arguments in its prior summary judgment briefing. See D. 105 at 15-19. Even assuming these arguments were properly before the Court for reconsideration, however, Vantage Travel's arguments still fail for the reasons discussed below.

First, although the Court overstated same in its Summary Judgment Order, see D. 147 at 23, the issue is not a per se violation of Chapter 93A, but whether an act or practice is a per se unfair or deceptive based on violation of the regulations. Where, as here, regulations set out that an act or practice is per se unfair or deceptive, a plaintiff still must satisfy other elements of the Chapter 93A claim (e.g., causation and injury). See Tyler v. Michaels Stores, Inc., 464 Mass. 492, 503 (2013) (concluding that "violation of the legal right that has created the unfair or deceptive act or practice must cause the consumer some kind of separate, identifiable harm arising from the violation itself"); Ferreira v. Sterling Jewelers, Inc., 130 F. Supp. 3d 471, 478 (D. Mass. 2015) (noting that plaintiff must prove regulatory violation plus injury caused by the unfair or deceptiveact); Barron v. NCMIC Ins. Co., No. 17-cv-11969-ADB, 2018 WL 2089357, at *5 (D. Mass. May 4, 2018) (explaining that "[v]iolations of state regulations that constitute per se unfair or deceptive practices under Chapter 93A do not, without more, establish injury under Chapter 93A").

Second, when regulations establish per se unfair or deceptive acts or practices, plaintiffs need not make an additional showing of unfairness or deceptiveness aside from evidence of the violation itself. See Cranmore v. Wells Fargo Bank, N.A., 410 F. Supp. 3d 336, 341-42 (D. Mass. 2019) (concluding that violation of 209 C.M.R. § 18.22(1) "is per se 'an unfair or deceptive act or practice' under Chapter 93A" and rejecting defendants' argument that a Chapter 93A claim requires more than an allegation that action violated regulation, which "explicitly defines a violation of [the regulation] as per se 'an unfair or deceptive act or practice' under Chapter 93A"); Craw v. Hometown Am., LLC, No. 18-cv-12149-LTS, 2019 WL 1298588, at *12 (D. Mass. Mar. 21, 2019) (concluding that plaintiffs stated valid Chapter 93A claim when defendants' "policy violated [their] duty to plaintiffs under the Sanitary Code, which violation itself is defined by [940 C.M.R. § 3.17(1)(i)] as an unfair or deceptive act" and plaintiffs alleged economic injuries resulting from the policy); Weinberg v. Grand Circle Travel, LCC, 891 F. Supp. 2d 228, 250 (D. Mass. 2012) (concluding that plaintiffs stated valid Chapter 93A claim based on regulatory violation because "[a] violation of any provision of [940 C.M.R. § 15.00] is an unfair or deceptive practice").

Third, the SJC has held that "the [A]ttorney [G]eneral may make rules and regulations interpreting the provisions of [Chapter 93A]," like 940 C.M.R. § 15.00 that "define[] and outlaw[] certain unfair or deceptive business practices in the sale of travel services to the public. . . ." Casavant v. Norwegian Cruise Line Ltd., 460 Mass. 500, 503-04 (2011). Thus, when regulations define such acts or practices, evidence showing "violations [of the Attorney General'sRegulations] qualify as unfair or deceptive acts" as a matter of law. Id. at 504 (reversing trial judge's conclusion that no Chapter 93A violation occurred when evidence at trial showed regulatory violation and remanding for determination of damages). Courts have since applied this precedent in the context of other regulations. See Khan v. Beacon Assocs., Inc., 91 Mass. App. Ct. 1118, 2017 WL 1476261, at *2 & n.4 (2017) (concluding that "landlord's inclusion of [a] late fee provision constituted a per se unfair or deceptive act or practice [under 940 C.M.R. § 3.17(3)(a)(1)]" and citing Casavant for proposition that "violation of Attorney General regulation constituted unfair or deceptive act as matter of law"); Henry v. Bozzuto Mgmt. Co., 98 Mass. App. Ct. 690, 701-02 (2020) (citing Casavant for same); see Layes v. RHP Properties, Inc., 95 Mass. App. Ct. 804, 812-13 (2019) (concluding that regulation defining specific conduct for park operators as unfair and deceptive was "clear and unambiguous" and finding violation of regulation to determine liability under Chapter 93A); Clark v. Leisure...