Connor v. Marriott International, Inc.

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23-P-178 Appeals Court

LOUISE CONNOR & others1 vs. MARRIOTT INTERNATIONAL, INC.,
& another.2

No. 23-P-178.

Norfolk. November 8, 2023. – March 18, 2024.

Present: Rubin, Massing, & Desmond, JJ.

Consumer Protection Act, Unfair or deceptive act. Practice,
Civil, Summary judgment, Consumer protection case.

Civil action commenced in the Superior Court Department on
November 13, 2019.

The case was heard by Paul D. Wilson, J., on a motion for
summary judgment.

Olena Savytska for the plaintiffs.
Sally A. Morris for the defendants.

MASSING, J. The plaintiffs made reservations at the

defendants' hotel for the express purpose of meeting with

1 NY Kids Showroom, Inc., and Stephanie Fishman.

2 Giri Dedham, LLC, doing business as the Fairfield Inn
Dedham.
2

prospective clients for their business -- the sale of children's

clothing to retailers -- as they had done in the past. When

they arrived, the hotel informed them of a new, unwritten policy

that prohibited doing business in the hotel. When the

plaintiffs argued about the surprise imposition of the new

policy, they were forced to leave. The plaintiffs claim that

their removal from the hotel violated a provision of the so-

called "innkeeper's statute," G. L. c. 140, § 12B, which they

contend amounts to an unfair or deceptive trade practice under

G. L. c. 93A, § 2, as a matter of law. A Superior Court judge

entered summary judgment for the defendants. Although we reject

the plaintiffs' claim that § 12B of the innkeeper's statute is a

consumer protection statute, the violation of which

automatically violates c. 93A, we vacate the allowance of

summary judgment on their c. 93A claim. The defendants did not

demonstrate that the plaintiffs had no reasonable expectation of

proving that the hotel's conduct was unfair or deceptive.

Background. "We recite the material facts in the light

most favorable to the plaintiff[s], the part[ies] who opposed

the motion for summary judgment." Sarkisian v. Concept

Restaurants, Inc., 471 Mass. 679, 680 (2015).

Plaintiffs Louise Connor and Stephanie Fishman and their

businesses, plaintiff NY Kids Showroom, Inc., and nonparty

Appaman, Inc., respectively, sell high-end children's clothing
3

and merchandise to retailers ranging from local boutiques to

major department stores. For several years the plaintiffs took

rooms at the defendant, Fairfield Inn Dedham,3 to showcase their

wares to retail customers in the Boston area. The location of

the hotel was particularly attractive because of its proximity

to trade shows held at a children's clothing market nearby.

For their stays, the plaintiffs requested specific suites

at the hotel to give them ample space to meet with potential

clients and display sample merchandise. To set up, the

plaintiffs "had to wheel in large merchandise displays and bring

in boxes of merchandise." They made appointments or met with

walk-in visitors, from whom they took orders for items that

would be produced and shipped months later. The plaintiffs did

not accept payment or distribute merchandise directly from the

hotel.

On the afternoon of September 14, 2019, Fishman drove to

Dedham from New Jersey. She called ahead to the hotel to

request a late check-in and discuss the handling of the large

boxes of samples that had been shipped to the hotel in advance.

3 At all relevant times, defendant Giri Dedham, LLC,
operated and did business as the Fairfield Inn Dedham. The
record is unclear as to the relationship between Giri Dedham,
LLC, and defendant Marriott International, Inc. The general
manager of the hotel testified at his deposition that Fairfield
Inn is a "subsidiary" of Marriott and "[t]hey go off of
Marriott's policy because they are Marriott."
4

The front desk employee not only confirmed the booking and the

hotel's receipt of five large boxes of samples, but also

welcomed Fishman as a repeat guest and remembered her preference

for a larger suite.

Connor arrived before Fishman; the hotel manager, Matthew

Cooke, checked her into her room. Soon thereafter, Cooke

visited Connor's room to inform her she "couldn't do any

business" there. Connor explained that she had visited the

hotel for business many times before and had never sold

merchandise out of the hotel room. Cooke said, "[F]ine," and

left the room, but soon returned, after telephoning the hotel's

general manager, and directed Connor to leave the premises

because the hotel's policy had changed and she was on a "do not

rent" list. Cooke told Connor that the plaintiffs "no longer

fit the image of the hotel." The general manager, citing the

safety risks of allowing unregistered visitors into the hotel to

view the plaintiffs' products, instructed Cooke to call the

police to remove Connor.

When Fishman arrived, Connor had already been speaking with

the police for about fifteen minutes in the parking lot in an

attempt to resolve the conflict. The plaintiffs repeatedly

asked to see a written copy of the new no solicitation policy or

the do not rent list, but Cooke refused, leading Fishman to

suspect that they did not exist. An undated document labeled as
5

a do not rent list does exist in the summary judgment record and

includes the plaintiffs' names, but the general manager of the

hotel conceded at his deposition that the plaintiffs were not on

the list when they arrived and were ejected only for violating

the no solicitation policy. The confrontation lasted for hours

and sparked rumors among the plaintiffs' potential customers.

The police briefly and reluctantly handcuffed Connor before

she and Fishman agreed to leave the premises. The hotel

refunded Connor for the cost of her room. As Fishman had not

checked in, no refund was necessary. Although Fishman found a

different hotel and managed to reschedule most of their

scheduled appointments, the plaintiffs claimed damages based on

the last-minute change of hotels, loss of business, and the

reputational harm they suffered as they were confronted by

uniformed officers in sight of potential customers.

Discussion. The plaintiffs argue that because the hotel

removed them based on an undisclosed policy, the hotel violated

G. L. c. 140, § 12B, of the innkeeper's statute, which they

contend amounts to a per se violation of c. 93A. Setting the

innkeeper's statute aside, the plaintiffs also argue that the

hotel's acts amounted to "unfair or deceptive acts or practices

in the conduct of any trade or commerce." G. L. c. 93A, § 2.

We review de novo the entry of summary judgment to

determine "whether, viewing the evidence in the light most
6

favorable to the nonmoving party, all material facts have been

established and the moving party is entitled to a judgment as a

matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass.

117, 120 (1991). Summary judgment is proper if the moving party

shows "that the party opposing the motion has no reasonable

expectation of proving an essential element of that party's

case." Scholz v. Delp, 473 Mass. 242, 249 (2015), cert. denied,

578 U.S. 1023 (2016), quoting Ravnikar v. Bogojavlensky, 438

Mass. 627, 629 (2003). "The moving party bears the burden of

demonstrating the absence of a triable issue of fact on every

relevant issue." Scholz, supra. The only issue in this appeal

is whether the defendants have shown that the plaintiffs have no

reasonable expectation of proving that the hotel's conduct was

unfair or deceptive.4

1. Innkeeper's statute. The plaintiffs rely on a section

of the innkeeper's statute that lists a number of permissible

reasons for a hotel to remove guests:

"An innkeeper may remove or cause to be removed from a
hotel a guest or other person who: refuses or is
unable to pay for accommodations or services; while on
the premises of the hotel acts in an obviously
intoxicated or disorderly manner, destroys or
threatens to destroy hotel property, or causes or
threatens to cause a disturbance; or violates a rule

4 The plaintiffs' complaint alleged claims of intentional
infliction of emotional distress, tortious interference with
advantageous business relations, and violation of c. 93A.
Summary judgment entered on all three counts. On appeal, the
plaintiffs advance only their c. 93A claim.
7

of the hotel that is clearly and conspicuously posted
at or near the front desk and on the inside of the
entrance door of every guest room. If the guest has
paid in advance, the innkeeper shall tender to the
guest any unused portion of the advanced payment at
the time of removal."

G. L. c. 140, § 12B. The plaintiffs argue that because the

hotel's supposed no solicitation policy was not "clearly and

conspicuously posted," they were removed in violation of § 12B.

And they argue that a violation of § 12B is a per se violation

of c. 93A by the vehicle of 940 Code Mass. Regs. § 3.16(3)

(1993). The hotel counters that its prohibition against

conducting business from hotel rooms did not have to be posted

because it was merely a "policy" but not a "rule," and in any

event, it properly removed the plaintiffs under § 12B for

"caus[ing] a disturbance."

Under 940 Code Mass. Regs. § 3.16(3), the Attorney General

defines an act or practice to violate G. L. c. 93A, § 2, if

"[i]t fails to comply with existing statutes, rules, regulations

or laws, meant for the protection of the public's health,

safety, or welfare promulgated by the Commonwealth or any

political subdivision thereof intended to provide the consumers

of this Commonwealth protection." The regulation "by its terms

imposes the substantive limitation that the law or regulation at

issue must be intended to protect consumers." Klairmont v.

Gainsboro Restaurant, Inc., 465 Mass. 165, 174 (2013).
8

We are aware of no authority that identifies § 12B of the

innkeeper's statute as a consumer protection statute, nor do we

think that it qualifies as such. To the contrary, § 12B

provides protection for innkeepers, who are required under the

licensing provisions of G. L. c. 140, §§ 2, 5, and 6, "to be

provided at all times with suitable food for strangers and

travellers and . . . suitable rooms with beds and bedding for

the lodging of its guests." Commissioner of Corps. & Taxation

v. Chilton Club, 318 Mass. 285, 290 (1945). See Tamerlane

Realty Trust v. Board of Appeals of Provincetown, 23 Mass. App.

Ct. 450, 454 (1987). Under § 12B, by contrast, hotels have the

right to remove guests who refuse to pay, are unruly, or violate

posted rules. Rather than provide protections for hotel guests,

§ 12B provides a safe harbor for innkeepers who properly act to

eject customers.

Our reading of § 12B as an innkeeper protection statute is

confirmed by its legislative history. The provision was

inserted, together with G. L. c. 140, §§ 12A, 12C, and 12D, by

chapter 167 of the Acts and Resolves of 2000. Section 12A

defines "hotel," while sections 12C and 12D provide additional

rights for innkeepers: allowing them to refuse service to

certain individuals and to limit the number of guests who may

occupy a room, authorizing certain steps to ensure payment for

rooms and reimbursement for damages to hotel property, and
9

providing a cause of action against guests who negligently or

intentionally damage hotel property or cause injury to others on

the premises. Tellingly, the bill in which these provisions

were included was titled, "An act further establishing the

rights of innkeepers." St. 2000, c. 167.

Accordingly, we hold that § 12B of the innkeeper's statute

is not a consumer protection statute within the meaning of 940

Code Mass. Regs. § 3.16(3).5 Therefore, even if the hotel did

not comply with § 12B in removing the plaintiffs, its

noncompliance would not amount to a per se violation of c. 93A.

On the other hand, even if the hotel had properly removed the

plaintiffs under the provisions of § 12B, its compliance would

not automatically insulate it from liability under c. 93A.

"Legality of underlying conduct is not necessarily a defense to

a claim under c. 93A." Kattar v. Demoulas, 433 Mass. 1, 13

(2000). Whether an act or practice violates c. 93A is based on

the totality of the circumstances. See Herman v. Admit One

Ticket Agency LLC, 454 Mass. 611, 616 (2009); Kattar, supra at

13-14. Thus, whether the defendants' alleged unfair or

deceptive act or conduct was authorized by § 12B is one factor

5 Even if § 12B were a consumer protection statute, a
violation would not be a per se violation of c. 93A unless "the
conduct leading to the violation is both unfair or deceptive and
occurs in trade or commerce." Klairmont, 465 Mass. at 174.
10

that should be considered, but is not dispositive. See Herman,

supra; Schubach v. Household Fin. Corp., 375 Mass. 133, 137

(1978).6

We reject the defendants' suggestion that § 12B authorizes

innkeepers to remove guests for violations of unwritten

policies. While innkeepers need not post all of their policies

or rules, they may claim the protection of § 12B to remove

guests only if the policy or rule violated is prominently

posted. Still, whether the hotel's removal of the plaintiffs in

this case comported with § 12B cannot be resolved at the summary

judgment stage. Genuine disputes of fact apart from the

plaintiffs' alleged policy violation exist about whether the

plaintiffs were removed in compliance with § 12B, for example,

for causing a disturbance. Although their removal is not the

sole basis for the plaintiffs' c. 93A claim, the hotel's

compliance or noncompliance with § 12B should be considered, and

given whatever weight the trier of fact may attach to it, in

assessing the merits of the c. 93A claim.

6 For example, if the defendants had posted their new no
solicitation policy by the front desk and in every room, but
failed to inform the plaintiffs about the policy in advance,
knowing the purpose of the plaintiffs' upcoming stay, this
conduct might still be considered unfair or deceptive in the
circumstances of this case.
11

2. Unfair or deceptive trade practices. General Laws

c. 93A, § 2, makes unlawful "unfair or deceptive acts or

practices in the conduct of any trade or commerce."7 An act or

practice violates c. 93A if it is either unfair or deceptive, as

"[t]he proscription is disjunctive." Lee v. Conagra Brands,

Inc., 958 F.3d 70, 76 (1st Cir. 2020). See Massachusetts Farm

Bur. Fed'n, Inc. v. Blue Cross of Mass., Inc., 403 Mass. 722,

729 (1989) ("An act or practice may be 'unfair' within the

statutory meaning without being deceptive or fraudulent");

Cherick Distribs., Inc. v. Polar Corp., 41 Mass. App. Ct. 125,

128 (1996) ("deception is only one prong of the prohibited

conduct under G. L. c. 93A").8 "[W]hether a particular set of

acts, in their factual setting, is unfair or deceptive is a

question of fact. But whether conduct found to be unfair or

deceptive rises to the level of a chapter 93A violation is a

7 The plaintiffs' complaint does not specify whether their
c. 93A claim is brought under § 9 or § 11. Although they
alleged that they sent a demand letter, as required by § 9, we
note that the plaintiffs are two individuals and one corporation
and that their claim might be viewed as arising under § 11, as
their alleged injuries stem from losses incurred in their
conduct of trade or commerce, which led to a loss of money or
property. See Giuffrida v. High Country Investor, Inc., 73
Mass. App. Ct. 225, 237 (2008). In any event, the parties do
not raise this issue on appeal.

8 Although not every unfair act or practice is deceptive,
almost all deceptive acts and practices are unfair. See Nei v.
Burley, 388 Mass. 307, 312-313 (1983).
12

question of law" (quotations and citation omitted). H1 Lincoln,

Inc. v. South Washington St., LLC, 489 Mass. 1, 13-14 (2022).

The plaintiffs argue that their ouster was both unfair and

deceptive. Given the many disputed issues of material fact, we

agree that summary judgment should not have entered. The

materials in the summary judgment record, viewed in the light

most favorable to the plaintiffs, are sufficient to permit a

finder of fact to determine that the defendants' conduct

violated c. 93A.

To assess whether an act or practice is "unfair," "[w]e

focus on the nature of challenged conduct and on the purpose and

effect of that conduct as the crucial factors." Massachusetts

Employers Ins. Exch. v. Propac-Mass, Inc., 420 Mass. 39, 42

(1995). "We have stated that a practice or act will be unfair

under G. L. c. 93A, § 2, if it is (1) within the penumbra of a

common law, statutory, or other established concept of

unfairness; (2) immoral, unethical, oppressive, or unscrupulous;

or (3) causes substantial injury to competitors or other

business people." Heller Fin. v. Insurance Co. of N. Am., 410

Mass. 400, 408 (1991).

The evidence, considered in the light most favorable to the

plaintiffs, shows that they made arrangements to stay at the

defendants' hotel, reserving suites and shipping merchandise to

the hotel as they had done in the past without incident. The
13

hotel accepted the plaintiffs' reservations with full knowledge

of their purpose and practices, even receiving the plaintiffs'

advance shipment of five boxes of merchandise. The plaintiffs

traveled to the hotel in reliance on the front desk clerk's

affirmative representation that their business visit would be

welcomed and accommodated. When the plaintiffs arrived, the

hotel seemingly invented a rule to thwart the very reason for

their stay. The hotel's managers could not offer a cogent

explanation of their rule change or produce a copy of their no

solicitation policy or do not rent list, but they nonetheless

called the police to have the plaintiffs physically removed.

The plaintiffs were forced to cancel or reschedule appointments,

find alternative accommodations, make new arrangements for

transportation of their merchandise, and suffer losses to their

business prospects and reputations.

Two aspects of the hotel's conduct, if proven, stand out as

unfair within the meaning of c. 93A. One is that the hotel

allowed the plaintiffs to make travel plans, ship merchandise,

and arrange to meet with clients, all the time knowing that the

hotel would upend the plaintiffs' plans and disrupt their

business as soon as they arrived. This sort of "stringing

along" conduct has been held to be actionable under c. 93A.

See, e.g., H1 Lincoln, Inc., 489 Mass. at 16, quoting Greenstein

v. Flatley, 19 Mass. App. Ct. 351, 356 (1985) ("Stringing along
14

tactics involve the use of a protracted 'pattern of conduct

. . . calculated to misrepresent the true situation' to the

target business and thereby induce detrimental reliance on the

target's part"). The other is that when the hotel sought to

oust the plaintiffs, it purported to justify its actions based

on what the trier of fact could find to be a policy that did not

exist, obscuring whatever true motives the hotel may have had.

See Exhibit Source, Inc. v. Wells Ave. Business Ctr., LLC, 94

Mass. App. Ct. 497, 501 (2018) (violation of c. 93A supported by

evidence that defendant provided "manufactured" and pretextual

reasons for its actions).

The defendants argue that their conduct was justified

because the plaintiffs' customers, coming in and out of the

hotel, might pose a security threat; that their failure to

disclose their supposed no solicitation policy to the plaintiffs

in advance was no different from failing to notify arriving

guests that a particular amenity might not be available; and

that their conduct was at worst imperfect customer service,

falling below the level of a c. 93A violation. We are not

persuaded that these reasons entitle the defendants to judgment

as a matter of law. Knowing the business purpose of the

plaintiffs' stay, the hotel's failure to tell them in advance

that they could not do business there was unlike neglecting to

warn that an elliptical machine in the hotel gym was out of
15

order, and more akin to neglecting to tell arriving guests that

rooms are not furnished with beds. While the defendants will

have an opportunity to explain their conduct to the trier of

fact, the plaintiffs are entitled to an opportunity to persuade

the fact finder that this sequence of events, as described by

the plaintiffs, was unfair and caused substantial injury to

their business.

The defendants' conduct could also be found to be deceptive

within the meaning of c. 93A. "An act or practice will be found

deceptive 'if, first, there is a representation, omission, or

practice that, second, is likely to mislead consumers acting

reasonably under the circumstances, and third, the

representation, omission, or practice is material.'"

Commonwealth v. AmCan Enters., Inc., 47 Mass. App. Ct. 330, 334

(1999), quoting Cliffdale Assocs., Inc., 103 F.T.C. 110, 165

(1984). A deceptive practice is one that "could reasonably be

found to have caused a person to act differently from the way he

otherwise would have acted." Purity Supreme, Inc. v. Attorney

Gen., 380 Mass. 762, 777 (1980), quoting Lowell Gas Co. v.

Attorney Gen., 377 Mass. 37, 51 (1979).

Viewing the summary judgment record in the light most

favorable to the plaintiffs, the hotel knew the purpose of their

reservations and affirmatively represented that the plaintiffs

were welcome to stay there and do business as they had done in
16

the past. The hotel argues that its failure to inform the

plaintiffs of the change in policy was not a material omission

because the ability to display items for sale is not a "central

feature" of the services offered by a hotel. See Tomasella v.

Nestlé USA, Inc., 962 F.3d 60, 72 (1st Cir. 2020), quoting Hall

v. SeaWorld Entertainment, Inc., 747 F. App'x 449, 453 (9th Cir.

2018) ("SeaWorld's failure to disclose facts about the poor

treatment of its orca whales was not an unfair or deceptive act

because such treatment '[did] not concern a central feature of

the entertainment experience' inherent to the purchase of

SeaWorld tickets"). Here, however, the ability to display items

for sale was the central purpose of the plaintiffs' visit -- and

the plaintiffs provided competent evidence at the summary

judgment stage to show that the hotel both knew this and

accepted the plaintiffs' reservations, as well as their

shipments of merchandise, with that specific understanding. The

hotel's misrepresentation of assent to the plaintiffs' business

trip could be found to be an affirmative act that misled the

plaintiffs into making a reservation and traveling to the

defendants' hotel, rather than someplace else, which they would

not otherwise have done. See Purity Supreme, Inc., 380 Mass. at

777. At the very least, the plaintiffs have presented a triable

issue of fact whether the hotel's use of an arguably fictitious
17

policy and do not rent list was a deceptive means of forcing

them out of the hotel.9

Conclusion. We vacate so much of the judgment as grants

summary judgment in favor of the defendants on the plaintiffs'

c. 93A claim, and remand the case for further proceedings

consistent with this opinion. The judgment is affirmed in all

other respects.

So ordered.

9 The parties' requests for attorney's fees are denied. If,
after remand, judgment is granted in favor of the plaintiffs on
their c. 93A claim, the plaintiffs shall be awarded reasonable
attorney's fees under that statute. See G. L. c. 93A, §§ 9 (4),
11. Attorney's fees attributable to this appeal and any
proceedings after remand may be included in the award. See
Patry v. Liberty Mobilehome Sales, Inc., 394 Mass. 270, 272
(1985).