This case raised yet again the question of whether a claim could go forward under the Massachusetts Consumer Protection Act, G. L. c. 93A, when the plaintiff had suffered no real injury. Here the plaintiff complained that when he asked a licensed ticket reseller the prices for certain Red Sox tickets, the prices quoted were substantially higher than the tickets’ face values. The plaintiff, however, never purchased any tickets at the higher prices. Nonetheless, he brought claims under the Massachusetts anti-scalping statute, G.L. c. 140, § 185D, and c. 93A. NELF and co-amicus Associated Industries of Massachusetts argued that, under Hershenow v. Enterprise Rent-A-Car Co., 445 Mass. 790 (2006), the plaintiff had no claim under c. 93A because, having not purchased any tickets at the higher prices, he had suffered no actionable injury.
In its decision, the Court upheld the dismissal of Herman’s c. 93A claim, but not on the ground that he had not suffered any injury, but rather because his failure to purchase a ticket deprived him of standing to sue under c. 93A. The Court reasoned that the plaintiff could not plead that he was ready, willing, and able to purchase a ticket at a price authorized by the anti-scalping statute, which allows ticket resellers to add certain service charges in unspecified amounts to the cost of a ticket. Explained the Court: “The cost of litigation is dear, considerably greater than the cost of a ticket. In order to keep a proper perspective on the merits of the case, and in light of the variable nature of the fees a ticket reseller may impose pursuant to §185D, we hold that to obtain standing, a plaintiff must purchase a ticket to maintain a c. 93A claim premised on a violation of the policy embodied in § 185D.”