Opposing Retroactive Application of the Mandatory Treble Damages Provision of the Massachusetts Wage Act
The issue in this case, which was before the Supreme Judicial Court on direct appellate review, was whether the 2008 amendment to G. L. c. 149, § 150 (“§ 150”) making treble damages mandatory for any violation of certain employment laws (even where the violation is the result of an unintentional error) should apply retroactively to conduct that occurred before the amendment became effective. Prior to the 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.
The trial court’s rationale for applying the amended version of § 150 retroactively in this case was that defendants “have always been subject to treble damages” under the statute and therefore retroactive application of the amendment would not “substantially change[] [the] parties[’] rights and expectations.” (There was no finding of outrageousness here, so that, absent the retroactive application of the amendment, there could be no treble damages.)
Disagreeing strongly with the trial court’s decision, NELF filed an amicus brief in support of the defendant Molloy, pointing out that an analysis of § 150 before and after amendment shows that the amendment simply did not restate in clearer terms the Legislature’s intention that treble damages should be mandatory, as Rosnov claims, but rather substantively changed the law on damages. In addition, NELF provided legal authority to bolster Molloy’s argument that language indicating that the amendment was intended merely to clarify existing law, but 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 argued 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 the principle determining this form of liability clearly implicates a defendant’s substantive rights and therefore, under established Massachusetts law, cannot be applied retroactively.
In this connection, NELF pointed out the fallacy in the trial court’s reasoning, namely that it obscured the great difference, recognized in SJC precedent, between possible liability for multiple damages and legally certain liability for such damages. Because the amendment to § 150 made mandatory a liability for treble damages that was previously only possible, it worked a great change in the defendant’s substantive rights and therefore should not be applied retroactively. Finally, NELF decisively rebutted the plaintiff’s use of a U.S. Supreme Court case (Bradley v. School Board of The City of Richmond, 416 U.S. 696 (1974)) to justify the judge’s decision to apply the amended version of § 150. NELF showed that the Supreme Court had stated expressly that Bradley does not state the general federal rule on retroactivity, and NELF demonstrated that under the correct federal rule retroactivity would not be allowed in this case.
On August 31, 2011 the Massachusetts Court issued its decision in the case (460 Mass. 474). The Court agreed in all essentials with NELF’s analysis and ruled that the 2008 amendments to § 150 were not retroactive and, therefore, were not applicable in this case.
The issue in this case, which was before the Supreme Judicial Court on direct appellate review, was whether the 2008 amendment to G. L. c. 149, § 150 (“§ 150”) making treble damages mandatory for any violation of certain employment laws (even where the violation is the result of an unintentional error) should apply retroactively to conduct that occurred before the amendment became effective. Prior to the 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.
The trial court’s rationale for applying the amended version of § 150 retroactively in this case was that defendants “have always been subject to treble damages” under the statute and therefore retroactive application of the amendment would not “substantially change[] [the] parties[’] rights and expectations.” (There was no finding of outrageousness here, so that, absent the retroactive application of the amendment, there could be no treble damages.)
Disagreeing strongly with the trial court’s decision, NELF filed an amicus brief in support of the defendant Molloy, pointing out that an analysis of § 150 before and after amendment shows that the amendment simply did not restate in clearer terms the Legislature’s intention that treble damages should be mandatory, as Rosnov claims, but rather substantively changed the law on damages. In addition, NELF provided legal authority to bolster Molloy’s argument that language indicating that the amendment was intended merely to clarify existing law, but 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 argued 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 the principle determining this form of liability clearly implicates a defendant’s substantive rights and therefore, under established Massachusetts law, cannot be applied retroactively.
In this connection, NELF pointed out the fallacy in the trial court’s reasoning, namely that it obscured the great difference, recognized in SJC precedent, between possible liability for multiple damages and legally certain liability for such damages. Because the amendment to § 150 made mandatory a liability for treble damages that was previously only possible, it worked a great change in the defendant’s substantive rights and therefore should not be applied retroactively. Finally, NELF decisively rebutted the plaintiff’s use of a U.S. Supreme Court case (Bradley v. School Board of The City of Richmond, 416 U.S. 696 (1974)) to justify the judge’s decision to apply the amended version of § 150. NELF showed that the Supreme Court had stated expressly that Bradley does not state the general federal rule on retroactivity, and NELF demonstrated that under the correct federal rule retroactivity would not be allowed in this case.
On August 31, 2011 the Massachusetts Court issued its decision in the case (460 Mass. 474). The Court agreed in all essentials with NELF’s analysis and ruled that the 2008 amendments to § 150 were not retroactive and, therefore, were not applicable in this case.
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