Yes: You Gotta Read The Errata

This post from a little over a month ago discussed a couple of Chapter 93A points from the TJX identity theft case. Yesterday, the First Circuit issued its "errata" from the initial opinion. But the errata aren't really errata.

Instead, the Court expands quite substantively on the significance of Federal Trade Commission complaints and consent decrees in the analysis of Chapter 93A claims. The Court replaces two terse paragraphs spanning about a page with five longer paragraphs that run for three and a half pages. What prompted this? It looks like it was TJX's petition for a rehearing (which you can find if you have a PACER account). The response to that petition appears to have been: "Yes, TJX, we'll give you a rehearing. Thanks for the brief! We've reviewed it and we're still ruling against you."

The panel goes a few clicks further than that, though. It emphasizes the magnitude of the plaintiffs' allegations against TJX:

If the charges in the complaint are true (and obviously the details matter), a court using these general FTC criteria might well find in the present case inexcusable and protracted reckless conduct, aggravated by failure to give prompt notice when lapses were discovered internally, and causing very widespread and serious harm to other companies and to innumerable consumers. And such conduct, a court might conclude, is conduct unfair, oppressive and highly injurious--and so in violation of chapter 93A under the FTC's interpretation.

Emphasis mine. But I'm still not clear on what the erratum was.

Two Less Exciting Points From The TJX Identity Theft Case

The First Circuit handed down an opinion in connection with the TJX identity theft debacle from a few years ago. The case is In re: TJX Retail Security Breach Litigation, No. 08-2828. Everyone probably remembers the facts, but here's a link to a contemporaneous news account. If you're looking for sexy talk about identity theft, though, you ought to move along.

Now: If you're an attorney and your practice rubs up against commercial litigation, you should skip to page 14 of the opinion. There you'll find a couple of important statements by the First Circuit concerning Chapter 93A, the unfair business practices statute. First, the Court makes it clear that 93A claims need not be based on "egregious" conduct. But the Court doesn't go very far in clarifying what types of unfair conduct do manage to clear the statutory hurdle. "[S]ystematic recklessness may suffice." Might it? Hmm.

Second, the Court discusses the requirement that the unfair act(s) in question must happen primarily and substantially in the Commonwealth. Here we get a bit more clarification, but only a bit. Apparently the requirement is satisfied if a defendant has an office in Massachusetts -- even if the bad acts didn't happen at that office. Communicating with someone via servers located in Massachusetts also seems to get you there. That's good to know, too. Is it entirely consistent with the statute's language? Again: hmm.