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Massachusetts Appeals Court Holds a Claim for Violation of the Statute Prohibiting the Unauthorized Use of One’s Name, Portrait or Picture Does Not Require Quantifiable Damages to Survive Summary Judgment

Posted on: June 21st, 2021

By: Nancy Reimer, Victoria Fuller and Lori Eller

In Tedeschi-Freij vs. Percy Law Group, P.C., et al., the Massachusetts Appeals Court held a plaintiff need not show evidence of quantifiable damages to survive a motion for summary judgment on a claim for the unauthorized use of her name in violation of (1) M.G.L. c. 214, § 3A (Unauthorized Use of Name, Portrait or Picture of Person); and (2) the Massachusetts Consumer Protection Statute, M.G.L. c. 93A.

There, the plaintiff-attorney, Suzanne G. Tedeschi-Freij (“Tedeschi”) joined Percy & Teixeira, P.C., in 2000. While Tedeschi was advertised as a partner at the firm, and the firm’s name was changed to Percy, Tedeschi, & Associates, P.C., her equity position was never formalized. In 2012, Tedeschi left the firm and requested her name be removed from the firm name. Despite Tedeschi’s repeated requests, Percy changed the firm name with the Secretary of State’s office but continued to advertise the firm as “Percy, Tedeschi, & Associates, P.C.” until 2018. Perry stopped using Tedeschi’s name only after receiving a bar complaint concerning the unauthorized use of Tedeschi’s name, but even then failed to fully remove it from all advertisements.

The Appeals Court held Tedeschi did not need to establish quantifiable damages to avoid summary judgment on her claim for violation of M.G.L. c. 214, § 3A. The Appeals Court followed other jurisdictions in holding nominal damages were presumed in cases involving the infringement on the right to control the use of one’s identity.

In addition, the Appeals Court held Tedeschi’s claim fell outside the intra-enterprise exception to c. 93A, because no joint venture between Tedeschi and Percy ever formalized. The Appeals Court further noted it was unclear whether Tedeschi was asserting a claim for violation of c. 93A § 9 or § 11, but that if it were under § 11, she would be obligated to prove that she suffered or will suffer “loss of money or property,” which would be fatal to the claim. The Court further held if the claim was asserted pursuant to § 9, her claim would not be fatal as that section provides nominal damages.

Lawyers, particularly those in smaller firms, should take care to remove an attorney’s name from the firm name and all associated advertising when that attorney has left the firm. Failure to do so may result in legal action or a bar complaint against the remaining partners.

For more information, please contact Nancy Reimer at [email protected], Victoria Fuller at [email protected], or Lori Eller at [email protected].

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