April 19, 1994 Alec DeSimone Smyly Autos Incorporated 700 Broadway Malden, MA 02148 voice 324-7000 FAX 321-9742 Dear Mr. DeSimone: As we discussed on the telephone, I am making a formal demand pursuant to Massachusetts General Laws ch. 93A. As I reported to the Malden Police (report #9403151), here is the sequence of events: ù I drove into Smyly Dodge at 10 a.m. on Wednesday, April 13th for my appointment. I was listening to a lecture on cassette from the Teaching Company. I waited 45 minutes before Mike, one of your service advisors, wrote me up on ticket #1835. I removed the cassettes from my vehicle and walked over to my rental car with Jeff Marsh of Enterprise. When I noticed that my rental Pontiac lacked a cassette player, I expressed disappointment to Mr. Marsh that I would be unable to continue listening to the lecture I'd started on my own car stereo. ù I picked up my 1993 Dodge Caravan on Friday, April 15 at 10:30 a.m. and discovered a coil of wires where my Alpine 7525 cassette/tuner had been. Here are some notes I took on my portable computer at about 11:30 am on the same day: Car was outside in parking lot. I returned my rental car to Jeff, the Enterprise guy, and walked up to the Caravan. I noticed that the alarm wasn't set (no flashing light on dash) so I just turned the key in the lock. I noticed immediately that the stereo was missing from the dashboard; there was just a gaping hole with wires coiled and tucked neatly inside. Jeff from Enterprise came back with me and we walked around the car. No broken windows, no signs of forced entry. Key turned smoothly in all locks. I alarmed the car and went back to the dealer. I had to wait 20 minutes before the service manager, David Pike (never introduced himself, but that was the name on the office) would talk to me. In the meantime, I called State Farm and found that they would not cover a loss while the car was at a dealer. Pike eventually came over in shirtsleeves and said "It is very strange. Usually the dashboard is all ripped up, but this was done neatly and even a nut was put back on a grounding strap. We have a night watchman who patrols the lot. A lot of cars come in here with stereos already stolen." (The implication here was that the stereo hadn't been in when I drove in.) I responded, "I was listening to a tape when I came in [Teaching Company course on astronomy, lecture 2] and even moved my tapes into the rental car. I told Jeff how disappointed I was that there was no cassette deck because I wanted to finish the tape." ù nobody at any time apologized for (1) Smyly's negligence in allowing a stereo to disappear from a car with a $700 alarm system that showed no signs of forced entry, (2) the criminal activity of either a Smyly employee of Smyly Autos itself, or (3) my inconvenience. You sounded very confident on the telephone, Mr. DeSimone, and asked me a lot of questions without offering anything yourself. I was patient and answered them all to your satisfaction, but frankly I was outraged. Smyly's conduct has been negligent at best and criminal at worst. Nobody has apologized. Nobody has offered to do anything to fix my vehicle. Here are my damages: (1) $600 for an Alpine 7525 cassette/tuner; (2) $200 for installation and followups (my car has a very complex stereo system; Smyly returned the vehicle with an amplifier, a CD changer, and (so far as I can tell-I haven't looked behind the grilles) four custom speakers); (3) eight hours of lost work at $300/hour equals $2400. That makes a total of $3200. In the interest of quickly resolving this case out of court, I will give you 30 days to settle this case for $2500. May I gently suggest that you discuss with your president, Jim Smyly, whether you really want to litigate this case. Do you think it would be good for your image to have our dispute become a matter of public record? Do you think customers, after hearing about a protracted lawsuit between myself and Smyly would say "that's where I'd like to go to get my oil changed, because I like to lose my stereo and get paid for it four years later after going to court five times"? Are you sure your insurance company will pay for your legal defense and a judgment when criminal conduct is the root of the case? Will they pay for the treble damages of 93A? What would you do if you were on a jury and a case like this came before you, i.e., a car dealer who ripped off a customer's stereo and then didn't even have the grace to apologize? Would you be shy about awarding enough punitive damages to teach the dealer a lesson? (I encourage you to read Wyler v. Bonnell Motors, Inc., 35 Mass App. Ct. 563, if you want to see how Bonnell got a lesson in 93A from a judge and jury. "There must be a cautionary tale to spin when, as here, a difference of opinion about an automobile repair bill of $502.33 results in an aggregate judgment for the customer of $120,418," wrote Judge Kass of the Appeals Court. He reduced Bonnell's damages by $15,000 but that still left them with a substantial (and I believe uninsured) hole in their pocket. I'd wager that Bonnell went into the litigation with an attitude like yours and came out with a very different one.) In short, you sound awfully cocky in your attitude toward me and toward the law, in particular your assertions that you are in court all the time, that you always win, and that there is no way you could be held in violation of c. 93A. Here are a few of my notes from my last case that involved an automobile and c. 93A (additions today are in bold face): 93A stuff from MGL Annotated: pg. 158 consumer protection law was not designed to limit consumers' preexisting rights or remedies (York v. Sullivan (1975) 338 N.E.2d 341, 369 Mass. 157). pg. 159 Statute says that FTC interpretations of unfairness govern pg. 164 Failure to disclose any fact, disclosure of which may have influenced persons not to enter into transaction, is violation of this chapter (Grossman v. Waltham Chemical Co. (1982) 436 NE2d 1243, 14 Mass. App. 932). [Did Smyly disclose to me that it might steal my radio?] pg. 165 Failure to disclose defect in engine of automobile is unlawful under this section and is actionable under ¤9 of 93A (Slaney v. Westwood Auto. Inc (1975) 322 NE 2d 768) Breach of implied warranty of merchantability constitutes unfair and deceptive act or practice (Burnham v. Mark IV Homes, Inc. (1982) 441 NE 2d 1027, 387 Mass. 575) Failure to fulfill promise arising under service contract warranty entitles property owner to relief under 92A (Giannasca v. Everett Aluminum Inc. (1982) 431 NE2d 596, 12 Mass App 208) Acts of fraud clearly fall within unfair (Evans v Yegen Associates (DC1982) 5556 F. Supp. 1219) [You are sure it isn't fraud to pretend to change someone's oil and actually remove their stereo?] Judge Quirico says that there are 2 pleading requirements from ¤9 of 93A: 1) there must be a purchase of goods, 2) the transaction must have been undertaken for person, family or household purposes ¤9(1) also requires that the plaintiff allege and prove that the defendant used or employed "an unfair or deceptive act or practice declared unlawful by ¤2 or by any rule or regulation issued under paragraph (c) of said ¤2" I can find nothing in the statute or the case law that would get Smyly off the 93A hook for its outrageous conduct so far. Remember, upon a finding that Smyly's conduct constituted a violation of c. 93A, I will be entitled not only to recover my actual damages but also to recover my attorney's fees and costs including any expert witness fees and expenses incurred in litiga tion. In addition, upon a finding that Smyly's violation of c. 93A was willful or knowing, Smyly will be held liable for two or three times the amount of my actual damages. However, a finding of an intentional violation is not a prerequisite to an award of attorney's fees and costs; attorney's fees and costs are awarded even without a finding that a violation was willful or knowing. I look forward to an amicable settlement of this dispute. Sincerely, Philip Greenspun