Rosnov v. Molloy

(Massachusetts Supreme Judicial Court)

• Opposing Retroactive Application of the Mandatory Treble Damages Provision of the Massachusetts Wage Act

The issue in this case, which is before the Supreme Judicial Court on direct appellate review, is whether the 2008 amended version of G. L. c. 149, § 150 (“§ 150”), which mandates treble damages for any violation of certain employment laws (even where the violation was the result of an unintentional error), should apply retroactively to conduct that occurred before 2008.  Prior to the 2008 amendment, the SJC had construed the language of § 150 as making treble damages discretionary, available only on a showing that the defendant’s conduct had been outrageous.  (There was no finding of outrageousness in this case.)  The trial court’s rationale in this case for applying the amended version of § 150 retroactively was that defendants “have always been subject to treble damages” under the statute and therefore retroactive application of the 2008 amendment does not “substantially change[] [the] parties[’] rights and expectations.”  NELF has filed an amicus brief in support of the defendant Molloy, pointing out that a textual comparison of the two versions of § 150 shows that the amendment did not clarify, but rather substantively changed the law.  In addition, NELF provides legal authority to bolster Molloy’s argument that language indicating that the amendment was intended only to clarify existing law, which was deleted from the amendment prior to its passage by the Legislature, should not be read back into the amendment by courts.  NELF also argues that retroactive application is improper because it would alter Molloy’s  substantive rights by significantly enlarging the legal grounds on which he may be held liable for treble damages.  Such an adverse, after-the-fact change in a principle of liability clearly implicates a defendant’s substantive rights and therefore, under established Massachusetts law, cannot be applied retroactively.  Finally, NELF points out the fallacy in the trial court’s reasoning, namely that it obscures the great difference, recognized in SJC precedent, between possible liability for multiple damages and legally certain liability for such damages.  Because the 2008 amendment to § 150 made mandatory a liability for treble damages that was previously only possible, it worked a substantive change in the law and the defendant’s rights  and, therefore, should not be applied retroactively.