JEANINE BANKS v. AMAZON COM INC (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, Jeanine and Sinclair Banks, appeal the denial of their request for multiple damages and attorney's fees after a District Court judge entered default judgment against the defendant, Amazon.com, Inc. (Amazon), on the plaintiffs’ negligence and G. L. c. 93A (c. 93A) claims.² A panel of judges of the Appellate Division of the District Court largely affirmed the judgment, but corrected the total award amount. We affirm in part and remand in part for further factual findings.³

Background. During a snowstorm in February 2021, Amazon delivered a package to the plaintiffs’ residence. While delivering the package, the delivery driver's van got stuck in the snow in the plaintiffs’ gravel driveway. The driver used a snow shovel to try to dig out the van, and when that did not work, “spun the wheels of the van” with no success. The driver's actions to move the van, as well as the plow truck that Amazon sent to remove the van, damaged the plaintiffs’ gravel driveway.

On July 29, 2021, the plaintiffs sent the defendant a c. 93A demand letter alleging damages of $1,429.38. In response, the defendant made a settlement offer of $500 on August 6, 2021, which the plaintiffs refused. On March 14, 2022, default judgment entered for the plaintiffs.⁴ A judge awarded the plaintiffs actual damages in the sum of $461.75 and denied attorney's fees. On February 26, 2025, the Appellate Division affirmed the judge's denial of treble damages and attorney's fees but corrected the judge's erroneous deduction of $1,100 from the plaintiffs’ damages award.⁵ The total award amount was adjusted to $1,561.75.⁶

Discussion. 1. Attorney's fees. General Laws c. 93A, § 9 (4), provides that if a violation under c. 93A, § 2, has been established, the plaintiff “shall ․ be awarded reasonable attorney's fees and costs incurred in connection with said action.” However, attorney's fees and costs “incurred after the rejection of a reasonable offer of settlement” will be denied. G. L. c. 93A, § 9 (4). The plaintiffs argue that Sinclair, as a licensed attorney representing himself and his wife in this matter, is entitled to attorney's fees under G. L. c. 93A, § 9 (4), and that it was error for the judge to not award attorney's fees on the c. 93A claim. We review decisions concerning attorney's fees for an abuse of discretion. Blake v. Hometown Am. Communities, Inc., 486 Mass. 268, 284 (2020).

Here, the trial judge did not make written findings in denying the plaintiffs’ request for attorney's fees under c. 93A. Without findings as to the reason the judge denied the request of attorney's fees, we cannot discern whether the judge denied attorney's fees because he concluded that Amazon's settlement offer was reasonable or because he erroneously concluded that Sinclair could not be awarded attorney's fees as a self-represented lawyer.

We start by addressing the Appellate Division's conclusion, based on Kay v. Ehrler, 499 U.S. 432, 437-438 (1991), that Sinclair was not entitled to fees because he was a self-represented attorney. In Kay, id., the Supreme Court held that a pro se litigant who is also a lawyer could not receive attorney's fees in a civil rights action under 42 U.S.C. § 1988 where “the overriding statutory concern is the interest in obtaining independent counsel for victims of civil rights violations.” However, this court has distinguished c. 93A claims from Federal case law that denies such recovery to self-represented lawyers. As a matter of law, this court has decided “the better rule to be one that allows an attorney who represents herself to recover the same costs she would be entitled to if she had been represented by another.” Robbins v. Krock, 73 Mass. App. Ct. 134, 137 (2008). See Hug v. Gargano & Assocs., P.C., 76 Mass. App. Ct. 520, 528 n. 13 (2010), citing Robbins, supra at 136-137 (affirming award of attorney's fees to self-represented attorney who prevailed under c. 93A). Under Robbins, supra, Sinclair is not barred from receiving attorney's fees because of his status as a pro se litigant who is also an attorney.

Because Sinclair's status as an attorney did not preclude him from recovering fees under c. 93A, § 9 (4), the issue turns on whether Sinclair rejected a reasonable settlement offer, and thereby was precluded from an award of attorney's fees, which is a question of fact for the judge to determine on remand.⁷ See Kohl v. Silver Lake Motors, Inc., 369 Mass. 795, 799 (1976) (“A determination of reasonableness normally is a question of fact”); Parker v. D'Avolio, 40 Mass. App. Ct. 394, 395 (1996) (“Whether the defendants’ settlement proposal was an unreasonable refusal or made in bad faith [is] a question of fact”). On remand, it must also be clarified whether the decision to deny attorney's fees relied on the erroneous conclusion that a pro se litigant who is an attorney is not entitled to such fees, or instead, was based solely on the determination that the plaintiffs rejected a reasonable offer

2. Damages. The plaintiffs next contend that the judge erred in denying their request for treble damages because Amazon's violation of G. L. c. 93A, § 2, was “willful and knowing” and its settlement offer was made in bad faith. We disagree. Because a default judgment entered against Amazon, the plaintiffs’ factual allegations as set forth in their complaint are accepted as true for the purpose of establishing liability. See Multi Tech., Inc. v. Mitchell Mgmt. Sys., Inc., 25 Mass. App. Ct. 333, 334–335 (1988). However, the issue of damages remains open after a default judgment, and “on the questions relating to damages, the judge's findings, if not clearly erroneous, control.” Marshall v. Stratus Pharms., Inc., 51 Mass. App. Ct. 667, 670 (2001). Thus, for claims filed under c. 93A, the “entitlement ․ to double or triple damages because of the willfulness of a defendant is treated as a question relating to damages.” Id. at 677.

To award multiple damages, the judge must find a willful or knowing violation of c. 93A or that a refusal to settle was made in bad faith with reason to know that the acts complained of occurred. Heller v. Silverbranch Constr. Corp., 376 Mass. 621, 627 (1978). Here, by failing to award treble or multiple damages under c. 93A, the judge made an implicit finding that there was no “willful or knowing violation.” The plaintiffs have not shown that this finding was clearly erroneous, as they have not provided a transcript of the hearing on damages. See O'Meara v. Doherty, 53 Mass. App. Ct. 599, 605-606 (2002), and cases cited. Further, the record indicates that the damages hearing was not evidentiary in nature, as is required to award multiple damages under c. 93A. See Bissanti Design/Build Group v. McClay, 32 Mass. App. Ct. 469, 471 (1992) (“punitive damages cannot be fixed without an evidentiary hearing to determine how egregious was the conduct of the defendant”).

Conclusion. We vacate the portion of the amended judgment denying attorney's fees and remand the matter for further proceedings consistent with this memorandum and order. The amended judgment is otherwise affirmed.

So ordered.

FOOTNOTES

2.   Sinclair Banks is a licensed Massachusetts attorney representing both himself and his wife in this matter.

3.   “In reviewing the decision of the Appellate Division, we can enter such order as that court ought to have entered.” Worldwide Commodities, Inc. v. J. Amicone Co., 36 Mass. App. Ct. 304, 308 (1994).

4.   The District Court docket indicates that judgment initially entered on March 14, 2022, but was subsequently amended on April 19, 2022, to correct a clerical error.

5.   The appellate division reasonably concluded that the judge mistakenly believed that the defendant had already paid the plaintiffs $1,100. Amazon does not contest this point.

6.   The defendant argues that because Amazon is not engaged in the business of insurance, and thus not subject to G. L. c. 176D, § 3 (9), it cannot be held liable under G. L. c. 93A. This argument is unavailing. Amazon is correct that it is not subject to the standards imposed by c. 176D, which cover unfair claim settlement practices in insurance, because it is not an insuring entity and thus “cannot, as [a] matter of law, be held liable under G. L. c. 93A for bad faith settlement practices.” Morrison v. Toys “R” Us, Inc., 441 Mass. 451, 458 (2004). However, Amazon was found in violation of G. L. c. 93A, § 2, on default judgment for engaging in unfair and deceptive trade practices separate from any insurance-related claims.

7.   The plaintiffs also argue that if self-represented litigants who are lawyers are barred from receiving attorney's fees, Jeanine Banks is entitled to attorney's fees because Sinclair represented her; the plaintiffs contend that she is neither a lawyer nor a self-represented litigant. Since we conclude that Sinclair is not prohibited from receiving attorney's fees, we need not address in the alternative whether Jeanine is entitled to attorney's fees.