GOVERNO LAW FIRM LLC v. KENDRA ANN BERGERON & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties

and, therefore, may not fully address the facts of the case or the panel's

decisional rationale. Moreover, such decisions are not circulated to the entire

court and, therefore, represent only the views of the panel that decided the case.

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,

2008, may be cited for its persuasive value but, because of the limitations noted

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1195

GOVERNO LAW FIRM LLC

vs.

KENDRA ANN BERGERON & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Governo Law Firm LLC (GLF), brought this

action against the defendants, six former GLF employees

(attorney defendants) and the former employees' new law firm,

CMBG3 Law LLC (CMBG3), after the attorney defendants secretly

copied electronic files and databases while still employed at

GLF and took those materials with them when opening a competing

firm. A Superior Court jury found the defendants liable for

conversion, among other claims, and awarded GLF $900,000 as fair

1Jeniffer A.P. Carson, Bryna Rosen Misiura, David A.

Goldman, Brendan J. Gaughan, John P. Gardella, and CMBG3 Law

LLC.

compensation for the misuse of its documents or databases.2

Although the jury also made a binding determination that the

defendants did not violate G. L. c. 93A, § 11, the Supreme

Judicial Court (SJC) vacated that portion of the judgment on

appeal and remanded the matter to the Superior Court for a new

trial on that claim. See Governo Law Firm LLC v. Bergeron, 487

Mass. 188, 202 (2021) (Governo). After a bench trial, the same

trial judge found that the defendants did not violate c. 93A

because their unfair and deceptive conduct did not harm or

injure GLF. The judge also found that the defendants violated

two permanent injunctions, albeit not willfully, but declined to

impose sanctions on GLF's complaints for contempt.

In this appeal from the ensuing judgment, dated March 6,

2023, GLF argues that the judge erred in finding that GLF

suffered no harm or injury from the defendants' conduct, both

because the judge was bound by the jury verdict on the

conversion claim, and because GLF proved that element of the

G. L. c. 93A claim. GLF further argues that it was entitled to

sanctions for the defendants' violations of the injunctions.

Because we conclude that some of the judge's findings on the

2 The jury also found the attorney defendants liable for

breach of the duty of loyalty, and some of the defendants liable

for conspiracy. The jury found that none of the defendants

misappropriated trade secrets, however.

2

issue of harm or injury were clear error, we reverse so much of

the judgment as relates to the claim under c. 93A, and we remand

that claim for entry of a new judgment in favor of GLF and for

an assessment of damages consistent with this decision. We

otherwise affirm the judgment.

Background. The decision in the prior appeal describes in

detail the background of this case. See Governo, 487 Mass. at

190-192. After the second trial, the judge found the following

facts.

1. Defendants' departure from GLF. David Governo is the

sole owner and equity partner of GLF. Between 2000 and 2008, he

hired the attorney defendants to work in the firm's asbestos

litigation practice, with each attorney eventually becoming a

nonequity partner. At least as of 2006, the six attorney

defendants and one other nonequity partner ran the firm, grew

its business, and represented its clients with essentially no

involvement from Governo.

In 2016, Governo began to discuss the possibility of

selling GLF to the nonequity partners. The attorney defendants

initially were interested in this course -- an option they

dubbed their "plan A" -- but negotiations proved unsuccessful.

Specifically, the nonequity partners rejected Governo's offer to

sell the firm for $9.25 million in August 2016. Governo then

3

declined the nonequity partners' counteroffer of $2.25 million

and refused to negotiate further.

After these failed negotiations, the attorney defendants

moved forward with their "plan B." Under this plan, they

prepared to leave GLF and start their own firm, anticipating

that almost all of GLF's clients would follow them to the new

firm. To that end, during fall 2016, some of the attorney

defendants secretly copied electronic materials (discussed more

fully below) from GLF onto "thumb drives" and an external hard

drive (WD drive) and took them from the firm.3 All attorney

defendants were aware of and approved of this conduct.

Thereafter, on November 18, 2016, the nonequity partners

met with Governo and gave him a choice: sell GLF for $1.5

million plus all revenue collected through the end of that year,

or all nonequity partners would resign. Governo rejected the

offer to sell the firm but convinced one nonequity partner to

stay at GLF. Two days later, Governo told the attorney

defendants via e-mail message that he was terminating their

employment effective immediately, and asked them to confirm that

they had not taken or downloaded any files from GLF; the

attorney defendants did not respond.

3 GLF continued to have access to these materials both

before and after they were copied by the attorney defendants.

4

The attorney defendants then promptly formed CMBG3 and

brought the copied materials from GLF with them. Ultimately,

the majority of GLF's clients, representing more than ninety-

five percent of GLF's annual revenue, decided to transfer their

asbestos litigation business to CMBG3.

2. Copied materials from GLF. The materials the attorney

defendants copied included "essentially all" files and databases

used to represent GLF's clients, as well as a "large volume" of

GLF's administrative materials. Among the copied materials were

six databases that GLF created via "FileMaker Pro" software to

organize, track, and store client file materials (FMP

databases).4 The first of the FMP databases, the asbestos case

management database, tracked key information about each active

asbestos case, including deposition summaries and notes from

attorneys on their mental impressions of the case and settlement

discussions with opposing counsel. Most of the information in

this database was not saved elsewhere, such as in the client

files. The second FMP database, the talc database, was used to

store and locate literature and analyses gathered and prepared

4 On appeal, GLF does not challenge the judge's finding that

certain materials, known as the 8500 New Asbestos Files, were

part of the files belonging to clients who transferred their

legal work to CMBG3. Therefore, we do not further discuss those

files, other than to note that the FMP databases provided the

mechanism that GLF used to track them.

5

for GLF clients who were involved in talc litigation, an

emerging subspecialty of GLF. The third, the mail log database,

contained a list (but not the contents) of all case-related

physical and electronic mail received by GLF, apart from e-mail

messages. This database was used to generate chronological

lists of correspondences received by case. The fourth database,

the bankruptcy trust database, was used to track payments from

bankruptcy trusts to plaintiffs in asbestos cases. That

database also linked to publicly-available documents that had

been gathered by GLF and stored elsewhere on GLF's system.

Finally, the Eckel and ECR databases were developed for two

clients whom GLF represented as national coordinating counsel in

all of their asbestos-related litigation. The attorney

defendants also copied most of GLF's administrative materials,

including GLF's client contact list; employee handbook; asbestos

litigation procedures manual; office procedures manual;

marketing, training, and billing manuals; summary of asbestos

litigation reporting requirements; and client service

assessments and plans.

After the attorney defendants formed CMBG3, defendant Bryna

Rosen Misiura placed most of the copied materials onto a laptop

(alternative laptop). Misiura was the only person who used the

alternative laptop, and she served as a de facto gatekeeper when

others wanted to use any materials copied from GLF; she would

6

not grant the other attorney defendants access to those

materials unless they convinced her "that a particular document

or item was critically important to defending a client," and

that they could not obtain a copy through other means. Misiura

only accessed client files that belonged to clients who

transferred their representation to CMBG3, although other client

files were still copied and brought to CMBG3.

Of the administrative materials, the attorney defendants

also accessed the client contact list and employee handbook.

Specifically, shortly after their departures from GLF, the

attorney defendants used addresses from the client contact list

to notify clients that they had left the firm and opened CMBG3

(notification letters). Additionally, the attorney defendants

made minor edits to GLF's employee handbook and submitted it to

their insurance broker to obtain insurance coverage for CMBG3.

3. General Laws c. 93A claim. On the c. 93A claim, the

judge determined that the defendants acted unfairly and

deceptively when they secretly copied GLF's electronic materials

and took them to CMBG3 before the new firm had any clients, but

concluded that GLF suffered no loss or injury from that conduct.

On that point, the judge found that the defendants never

accessed most of the materials they took from GLF.

Of the materials the defendants accessed, the judge found

that the FMP databases were client file materials that had been

7

paid for by and belonged to the clients who eventually

transferred to CMBG3. Specifically, the judge found that the

departing GLF clients were entitled to receive exported

electronic versions of all portions of the FMP databases in a

format that maintained the same "indexing, cross-linking,

database structure, and other organization that they had paid

GLF to create and maintain for them."

As to the administrative files, the judge concluded that

the attorney defendants were entitled to send notification

letters to their clients after they left GLF. Although the

attorney defendants used the client contact list from the copied

materials to do so, according to the judge, they could have sent

the same letters through other means. Moreover, the judge found

that GLF "implicitly authorized [the] defendants to keep and

use" the employee handbook because GLF's office manager later

sent copies of the handbook (among other materials) to the

defendants. Ultimately, the judge found that "GLF suffered no

loss of any kind from [the] defendants' unfair or deceptive

conduct, and [the] defendants did not earn any profits from any

improper use of materials that they copied and took from GLF."

4. Contempt complaints. After the first trial, the judge

issued a permanent injunction that required the defendants to

delete most of the copied materials (unless later obtained from

some other source), and to certify their compliance by October

8

2019 (first injunction). The judge later issued another

injunction consistent with the SJC's remand order that expanded

the scope of the materials to be deleted to include the

administrative materials (second injunction). See Governo, 487

Mass. at 197-198. That injunction required certification of

compliance by June 2021.

GLF then filed complaints alleging that the defendants were

in contempt of the injunctions, and the contempt proceedings

were consolidated with the retrial on the c. 93A claim. After

trial, the judge found that, while the defendants did not fully

comply with the deletion and certification requirements of the

injunctions, the defendants never used any materials kept in

violation of the injunctions, none of the violations were

willful, and the defendants acted in good faith to comply.

The violations were as follows. The defendants incorrectly

certified compliance with the first injunction in October 2019

based on their mistaken belief that their outside computer

expert had wiped all devices of the copied materials. The

defendants learned that their belief was mistaken, and that

their first trial counsel had retained some copied materials, in

May 2021, and they promptly notified GLF. Then, in July 2021,

defendant Misiura remembered that prior counsel previously

returned the WD drive to her, and so she provided the drive to

GLF through successor counsel. Finally, despite certifying

9

compliance with the injunctions in January and February 2022,

the defendants discovered in the middle of the second trial that

Misiura had a thumb drive that contained some copied materials,

all of which belonged to then-active clients of CMBG3.

Ultimately, the judge found that the defendants were in full

compliance with the injunctions as of June 2022. The judge

declined to impose sanctions on the defendants or award

attorney's fees or costs to GLF, however, because "GLF brought

and pressed its complaints for contempt solely to punish [the]

defendants."

Discussion. 1. General Laws c. 93A, § 11. a. Jury

verdict. GLF first argues that, under the doctrine of issue

preclusion, the judge was bound to find a knowing and willful

violation of c. 93A based on the prior jury verdict and entry of

final judgment on the conversion claim in favor of GLF. GLF

raised this argument before the second trial through a motion

for partial summary judgment.5 In denying that motion, the judge

rejected the argument that the jury verdict had a preclusive

effect, and explained that the SJC's remand order required him

"to conduct an entirely new trial on the c. 93A claim."6

5 GLF's motion sufficiently preserved the issue for

appellate review.

6 In the prior appeal, the SJC found that the jury were

erroneously instructed that any conduct that occurred while the

attorney defendants were employed by GLF was "irrelevant" to the

10

We turn then to the issue whether the judge was bound by

the prior verdict on the conversion claim. In a similar

context, we have found that even after a jury trial and entry of

separate and final judgment on a non-93A claim, "the subject

matter of a c. 93A claim is sufficiently distinct so that a

judge sitting independently on the c. 93A claim may arrive at

findings different from those of the jury sitting on the non–93A

claims." Wyler v. Bonnell Motors, Inc., 35 Mass. App. Ct. 563,

568 (1993). The same reasoning applies here where the judge

opted to hold a bench trial on remand. See Klairmont v.

Gainsboro Restaurant, Inc., 465 Mass. 165, 186-187 (2013)

(judge's findings on causation may conflict with jury's findings

on parallel common-law claim and nonbinding advisory opinion on

c. 93A claim, if judge reserved claim); Chamberlayne Sch. &

Chamberlayne Jr. College v. Banker, 30 Mass. App. Ct. 346, 354-

355 (1991) ("the broader scope and more flexible guidelines of

c. 93A claim, including "negotiations, copying of materials,

[and] anything else" occurring before the attorney defendants'

separation from GLF. Governo, 487 Mass. at 193. The SJC

distinguished the facts here from those of a purely intracompany

dispute where G. L. c. 93A, § 11, ordinarily does not apply; the

SJC explained, "[t]hat the individuals were employees at the

time of the misappropriation does not shield them from liability

under G. L. c. 93A, § 11, where they subsequently used the ill-

gotten materials to compete with their now-former employer."

Id. at 196. Additionally, the SJC noted that GLF's claim

"required the jury to consider that the attorney defendants

stole GLF's materials in order to determine whether the

subsequent use of these materials was unfair or deceptive." Id.

11

c. 93A permit a judge to make [independent] decisions under

c. 93A without being constrained by the jury's findings"

[citation omitted]).

To the extent GLF argues that this case is distinguishable

because the judge decided to submit the claim to the jury for a

binding determination before the first trial, we disagree. See

Linkage Corp. v. Trustees of Boston Univ., 425 Mass. 1, 22 n.31,

cert. denied, 522 U.S. 1015 (1997) (judge did not err in

treating jury verdict as advisory where judge "initially stated

that 'the jury [will] decide the [c.] 93A claim[s],' but chose

after trial to issue his own findings in order to avoid a

retrial if one of his key jury instructions was found to be

erroneous"); Wyler, 35 Mass. App. Ct. at 567-568 (separate and

final judgment on abuse of process claim after jury trial had no

preclusive effect on c. 93A claim tried before judge). On

remand, only a c. 93A claim remained, and no right to a jury

trial exists on that claim. See, e.g., Nei v. Burley, 388 Mass.

307, 315 (1983). Thus, the judge was free to decide the 93A

question independently based on the evidence presented at the

second trial. See Wyler, supra at 566. Cf. Acushnet Fed.

Credit Union v. Roderick, 26 Mass. App. Ct. 604, 606, 608 (1988)

(on retrial, judge could submit c. 93A claim to jury for binding

determination after reserving claim at first trial).

12

b. Loss or harm. GLF next argues that the judge erred in

finding that there was no loss or harm resulting from the

defendants' unfair and deceptive conduct.7 "We accept the trial

judge's findings of fact on the c. 93A issue absent clear error,

but review [the judge's] applications of law de novo." Exhibit

Source, Inc. v. Wells Ave. Business Ctr., LLC, 94 Mass. App. Ct.

497, 500 n.3 (2018). "A ruling that conduct violates [c. 93A]

is a legal, not a factual, determination[,] . . . [a]lthough

whether a particular set of acts, in their factual setting, is

unfair or deceptive is a question of fact" (citation omitted).

Klairmont, 465 Mass. at 171.

To prevail on a claim under G. L. c. 93A, § 11, a plaintiff

must establish

"(1) that the defendant engaged in an unfair method of

competition or committed an unfair or deceptive act or

practice, as defined by G. L. c. 93A, § 2, or the

regulations promulgated thereunder; (2) a loss of money or

property suffered as a result; and (3) a causal connection

between the loss suffered and the defendant's unfair or

deceptive method, act, or practice." (Footnote omitted.)

Auto Flat Car Crushers, Inc. v. Hanover Ins. Co., 469 Mass. 813,

820 (2014). The statute authorizes double or treble damages if

7 For the same reasons discussed in the previous section, we

reject GLF's argument that, on the c. 93A claim, the judge was

bound to accept $915,000 (the amount of the jury's award, plus

costs) as the amount of "actual damages" based on the judgment

entered after the earlier trial. G. L. c. 93A, § 11. See

Wyler, 35 Mass. App. Ct. at 568 (judge deciding 93A claim is not

bound by jury's assessment of damages on non-93A claim).

13

the defendant's unlawful conduct was "willful or knowing."

G. L. c. 93A, § 11.

As the judge in the present case found, the attorney

"defendants acted unfairly and deceptively when they secretly

copied GLF client file materials and administrative materials

and took them to their new law firm without permission from GLF

and before they had any clients." Yet, the judge found no

resulting injury to GLF because, essentially, the defendants

only accessed copied materials that belonged to clients who had

transferred to CMBG3, or that the attorney defendants were

otherwise authorized to use after they left GLF.8 As to the FMP

databases, the findings underlying this conclusion are clearly

erroneous.9

8 Although GLF argues that its loss of property (i.e., the

copied materials) was sufficient in and of itself to establish

damages, we disagree. There must be some connection between the

loss of that property and the loss suffered by GLF (through, for

instance, a subsequent misuse of that property) to establish

damages. See Governo, 487 Mass. at 195-196; Jet Spray Cooler,

Inc. v. Crampton, 361 Mass. 835, 839 (1972), S.C., 377 Mass. 159

(1979). There was no such connection here.

9 The judge's findings on the administrative materials,

however, are not erroneous. The attorney defendants were free

to notify clients of their move to CMBG3, see, e.g., Meehan v.

Shaughnessy, 404 Mass. 419, 437 & n.15 (1989), and the judge

found that the attorney defendants could have obtained the

client addresses through other means for their notification

letters. We also discern no error in the judge's finding that,

considering GLF's treatment of its employee handbook, that

handbook was not confidential and, thus, the defendants'

subsequent use of that handbook did not give rise to a violation

of c. 93A. See Augat, Inc. v. Aegis, Inc., 409 Mass. 165, 169-

14

The judge concluded that "almost everything" in the FMP

databases -- including the organizational system and file

structure -- belonged to GLF's clients and not the firm. In so

holding, the judge employed a "thought experiment," likening the

FMP databases to a hypothetical paper filing system that a firm

might have created in "the pre-electronic age of litigation."

Such a system might include indexed binders, subfolders, and

indices to make it "easy to locate items within those voluminous

materials and work product memoranda" so the firm could use the

same materials to defend the same clients in future cases. The

judge reasoned that, if the clients paid the firm for its work

to develop and maintain the system, a client leaving the firm

"would be entitled to take with [it] not only all of [its]

litigation-related documents and work product gathered and

created on its behalf, but also the file structure and indices

the client had paid the old firm to create and maintain for it."

To be sure, a departing client was entitled to its own

client file under Mass. R. Prof. C. 1.16 (e), as appearing in

471 Mass. 1396 (2015) (rule 1.16).10 See Malonis v. Harrington,

170 (1991), S.C., 417 Mass. 484 (1994) ("the extent of measures

taken by the employer to guard the secrecy of the information"

is relevant to whether that information is confidential

[citation omitted]).

10 We cite to the version of the rule in effect when the

attorney defendants left GLF. We understand this version of the

rule to have encompassed materials in electronic form.

15

442 Mass. 692, 701 (2004) ("a discharged attorney must take all

reasonable steps to protect the[ir] client's interests,

including surrendering papers and property to which the client

is entitled"). The organizational system developed by the

attorney defendants while they were employed at GLF to

streamline their practice does not fit squarely into the type of

materials the rule required be transferred, however.11 While we

agree with the trial judge that a lawyer is not free to provide

client material to a departing client in an organizational mess,

the departing client is not entitled to the entire databases

11The rule required a lawyer to make available to a former

client, on request,

"all papers, documents, and other materials the client

supplied to the lawyer.

"all pleadings and other papers filed with or by the court

or served by or upon any party.

"all investigatory or discovery documents except those for

which the client is then obligated to pay under the fee

agreement but has not paid, including but not limited to

medical records, photographs, tapes, disks, investigative

reports, expert reports, depositions, and demonstrative

evidence."

Rule 1.16 (e) (1)-(3). The rule also required a lawyer to

provide copies of the lawyer's "work product." Rule

1.16 (e) (4), (5). Work product was defined as "documents and

tangible things prepared in the course of the representation of

the client by the lawyer or at the lawyer's direction by his or

her employee, agent, or consultant. . . . Examples of work

product include without limitation legal research, records of

witness interviews, reports of negotiations, and

correspondence." Rule 1.16 (e) (6).

16

that were developed to efficiently represent multiple clients

defending against similar claims, even if that client paid for

some portion of GLF's time creating and updating those

databases.12 Indeed, the fields and layouts of the FMP databases

were not part of the individual client files, and were included

so information could be searched across different clients.

Thus, we conclude that the finding that each departing client

was entitled to the "indexing, cross-linking, database

structure, and other organization that they had paid GLF to

create and maintain for them" was clear error.

12This conclusion is consistent with the interpretation by

the American Bar Association (ABA), of the analogous model

rules:

"Upon the termination of a representation, a lawyer is

required under Model Rules 1.15 and 1.16(d) to take steps

to the extent reasonably practicable to protect a client's

interest, and such steps include surrendering to the former

client papers and property to which the former client is

entitled such as materials provided to the lawyer, legal

documents filed or executed, and such other papers and

properties identified in this opinion. A client is not

entitled to papers and property that the lawyer generated

for the lawyer's own purpose in working on the client's

matter. However, when the lawyer's representation of the

client in a matter is terminated before the matter is

completed, protection of the former client's interest may

require that certain materials the lawyer generated for the

lawyer's own purpose be provided to the client."

ABA Standing Committee on Ethics and Professional Responsibility

Formal Op. 471, at 7 (2015). Examples of the types of materials

generated for a lawyer's own purpose that may be turned over for

active cases include internal notes and memoranda for which no

final product has yet emerged. See id. at 6.

17

GLF did not provide exported copies of the entire FMP

databases to the defendants, but instead supplied information

pulled from the databases, saved in portable document format

(.pdf) and Microsoft Word documents.13 To use that information

in the same way they did at GLF, the attorney defendants would

have been required to rebuild the databases and reenter the data

record-by-record. Instead, Misiura used the copied materials

"to find and access discovery materials, investigatory

materials, case history summaries, or other materials" while at

CMBG3. This evidence was adequate to establish that the

defendants used the copied materials to compete with GLF, which

was unfair and deceptive as a matter of law. See Augat, Inc. v.

Aegis, Inc., 409 Mass. 165, 172-173 (1991), S.C., 417 Mass. 484

(1994) (employee who plans to leave and compete with employer

"may not carry away certain information"); Jet Spray Cooler,

Inc. v. Crampton, 361 Mass. 835, 839 (1972), S.C., 377 Mass. 159

(1979) ("although an employee may carry away and use general

skill or knowledge acquired during the course of his employment,

he may be enjoined from using or disclosing confidential

information so acquired" [citation omitted]). GLF was harmed by

that use of the copied materials, and it is thus entitled to

13Whether such production complied with GLF's ethical

obligations under rule 1.16 is beyond the scope of this appeal.

18

judgment in its favor on the c. 93A claim. This matter must be

remanded for entry of a new judgment and an assessment of

damages.14

c. Damages. To provide guidance on remand, we note that,

where an employee misuses confidential materials to compete with

a former employer, the appropriate measure of damages is "the

defendant's profits realized from his tortious conduct, the

plaintiff's lost profits, or a reasonable royalty." Curtiss-

Wright Corp. v. Edel-Brown Tool & Die Co., 381 Mass. 1, 12

(1980). In this scenario, a plaintiff is ordinarily "entitled

to the profit he would have made had his secret not been

unlawfully used, but not less than the monetary gain which the

defendant reaped from his improper acts." Specialized Tech.

Resources, Inc. v. JPS Elastomerics Corp., 80 Mass. App. Ct.

841, 850 (2011), quoting Jet Spray Cooler, Inc., 377 Mass. at

170. Even if the scope of the monetary loss is difficult to

quantify, disgorgement of profits still is an appropriate remedy

for a defendant's misuse of confidential information. See

Specialized Tech. Resources, Inc., supra. Yet, to the extent

the attorney defendants here dispute that they profited from

GLF requested that the matter be assigned to a different

14

judge in the event of a remand. We decline to direct

reassignment of the case, particularly given the limited nature

of the issues to be decided on remand.

19

their misuse of the copied materials, GLF should be permitted on

remand to present expert evidence establishing damages based on

a reasonable royalty rate.15 If GLF is unable to prove a

specific loss and the defendants made no actual profits on the

misuse of the copied materials, that may be the appropriate

method of assessing damages. See Curtiss-Wright Corp., supra at

11 & n.9; Jet Spray Cooler, Inc., supra at 171 n.10.

The judge also must assess the appropriate amount to award

for attorney's fees. Based on the undisputed facts underpinning

the attorney defendants' c. 93A violation, we conclude that GLF

established that the violation was "willful or knowing," such

that it is entitled to multiple damages.16 G. L. c. 93A, § 11.

See Renovator's Supply, Inc. v. Sovereign Bank, 72 Mass. App.

Ct. 419, 431 (2008) (judge's credibility determinations on issue

whether conduct was willful are entitled to "special

deference").

2. Contempt. GLF also challenges the judge's decision not

to impose sanctions for the defendants' violations of the

15Although the trial judge concluded that GLF waived this

issue, we disagree. GLF sought to admit expert evidence on the

issue prior to both trials and, in both instances, its motion

was denied.

16Additionally, on remand, the judge may consider whether

any or all of the $1,925 that GLF incurred in prelitigation

attorney's fees is recoverable under c. 93A.

20

injunctions. We review that decision for an abuse of discretion

and discern none. See Wong v. Luu, 472 Mass. 208, 220 (2015).

The judge's decision was amply supported by his findings that

the defendants were in compliance with the injunctions at the

time of the second trial, their violations were inadvertent, and

they had not used the wrongfully-retained materials after the

injunctions issued. See Labor Relations Comm'n v. Salem

Teachers Union, Local 1258, MFT, AFT, AFL-CIO, 46 Mass. App. Ct.

431, 435 (1999) ("sanctions in civil contempt proceedings may be

employed for either or both of two purposes: to coerce the

defendant into compliance with the court's order, and to

compensate the complainant for losses sustained" [quotation and

citation omitted]).

Conclusion. So much of the judgment dated March 6, 2023,

as entered in favor of the defendants under G. L. c. 93A, § 11,

is reversed, and that claim is remanded for entry of a new

judgment in favor of GLF and for a determination of damages,

21

attorney's fees, and costs.17 In all other respects, the

judgment is affirmed.

So ordered.

By the Court (Rubin, Desmond,

& Hand, JJ.18),

Clerk

Entered: April 4, 2025.

17As the prevailing party on a claim under G. L. c. 93A,

§ 11, GLF is entitled to appellate attorney's fees. Within

fourteen days of the date of this decision, GLF may submit an

application for appellate attorney's fees and costs with

supporting documentation, in accordance with Fabre v. Walton,

441 Mass. 9, 10–11 (2004). The defendants will have fourteen

days thereafter after in which to file a response.

18 The panelists are listed in order of seniority.

22