Dear Attorney General Martha Coakley,
I hope that this letter finds you and your family well. I would like to address an issue that has been brought to my attention that you had mentioned in a previous press release that you were "Not familiar with the specifics of what candidate Tolman is talking about. The broad premise is that you can't engage in a business practice that is unfair or unsafe. That is the basis of our regulatory authority". However I find that to be false and a down right lie. Even though you did not create 940 CMR 16.00 you follow it.
In the creation of the Handgun Regulations (940 CMR 16.00) it claims that Attorney General has the ability to establish said regulations is defined and granted under Massachusetts General Law Chapter 93A, Section 2:
Unfair practices; legislative intent; rules and regulations. This particular section of law does allow, in Chapter 93A, Section 2 (c), the attorney general to make rules and regulations regarding to “
unfair or deceptive acts”, but not without restrictions.
As we read the Consumer Compliance Handbook the following legal standards are given. The legal standards for unfairness and deception are independent of each other; depending on the facts, an act or practice may be unfair, deceptive, or both. The legal standards are briefly described here.
Unfair Acts or Practices
An act or practice is unfair where it
• Causes or is likely to cause substantial injury to consumers,
• Cannot be reasonably avoided by consumers, and
• Is not outweighed by countervailing benefits to consumers or to competition. Public policy, as established by statute, regulation, or judicial decisions, may be considered with all other evidence in determining whether an act or practice is unfair.
Deceptive Acts or Practices
An act or practice is deceptive where
• A representation, omission, or practice misleads or is likely to mislead the consumer;
• A consumer’s interpretation of the representation, omission, or practice is considered reasonable under the circumstances; and
• The misleading representation, omission, or practice is material
Chapter 93A: Section 2 lays out the specific guidelines by stating
“Such rules and regulations shall not be inconsistent with the rules, regulations and decisions of the Federal Trade Commission and the Federal Courts interpreting the provisions of 15 U.S.C. 45(a)(1) (The Federal Trade Commission Act), as from time to time amended.”
Since Chapter 93A, Section 2 restricts the Attorney General to the same laws that the
Federal Trade Commission would be
, we should then refer to 15 U.S.C. 45 to find those guidelines. Referring to 15 U.S.C. 45(n), we find that this section of federal law holds the Commission, and therefore the attorney general, to the
“standard of proof”. This standard is clearly outlined so that the parties in question
“shall have no authority to declare unlawful an act or practice on the grounds that such act or practice is unfair unless the act or practice causes or is likely to cause substantial injury to a consumer which is not reasonably avoidable by consumers”
The second section of paragraph (n) specifically states that such regulations may only be adopted if said regulations are
: “not outweighed by countervailing benefits to consumers or to competition”.
Using the Legal Standards given, how do any of the Attorney Generals regulations in 940 CMR16.00 fall under Unfair or Deceptive practices? Simple answer, they don’t!
Lastly on
http://www.proskauer.com/professionals/scott-harshbarger/ it mentions that Scott Harshbarger is a Senior Counsel in the Boston office. Scott Harshbarger was the Attorney General at the time who implemented 940 CMR 16.00. His profile reads and I quote”
Scott was the first AG to use consumer protection and safety regulations to combat handgun availability.” Combat handgun availability, does that really sounds like he was trying to “protect” the consumer?
I am not looking for a simple generic one reply to all answer, or an answer from your staff. I would like a direct response from Attorney General Martha Coakley. The 940 CMR 16.00 is unlawful because you state in your press release "The broad premise is that you can't engage in a business practice that is unfair or unsafe? That is the basis of our regulatory authority".
