MATTHEW M. K. STEIN is an associate in the Boston office of
Skadden, Arps, Slate, Meagher & Flom LLP. Any opinions
expressed in this article are his, and not necessarily those of
Skadden Arps or its clients. The author would like to thank David
Clancy, a partner in Skadden Arps' Boston office, for his thoughts
and advice in this area.
People don't always realize that
claims for G.L. c. 93A violations brought on behalf of a putative
class are not certified under Mass. R. Civ. P. 23. Nope. Instead,
they're certified under chapter 93A's special class-action
provision -- G.L. c. 93A, § 9(2) -- which the Supreme Judicial
Court has said does not require a showing of predominance or
superiority (although the trial court does possess a degree of
discretion to consider those issues).1 And, after
Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance
Co.,2 that might be the case in federal court too.
(This is undecided. The only court that appears to have been asked
to decide it declined to do so.)3
So, thinking about a proposed chapter 93A class action, what's an
attorney to do?
Save money. Live better. Go to Wal-Mart. Specifically,
Wal-Mart Stores, Inc. v. Dukes.4
In Wal-Mart, the U.S. Supreme Court raised the bar for
commonality under Rule 23(a)(2). Justice Antonin Scalia explained
that commonality is directed at a classwide issue: "That common
contention, moreover, must be of such a nature that it is capable
of classwide resolution - which means that determination of its
truth or falsity will resolve an issue that is central to the
validity of each one of the claims in one
Wal-Mart matters to chapter 93A claims because § 9(2)
requires proof that a common question satisfies Rule 23(a)'s
commonality requirement without proof that it
predominates.6 Therefore Wal-Mart implicitly
imposes a type of predominance on that class-certification analysis
by requiring a common question that drives the litigation.
(Obviously Wal-Mart addresses only the federal version of
Rule 23. But given that the SJC has said that § 9(2) incorporates
all of Rule 23(a)'s requirements, it would be a distinction too far
to say that Wal-Mart's clarification of Rule 23(a)'s
commonality requirement doesn't apply to § 9(2), especially as
Massachusetts courts have looked to federal court interpretations
of their Rule 23 for guidance.)7
Consider Campbell v. Glodis,8 a case
challenging the alleged use of excessive force on behalf of a class
of inmates in a county jail. On a motion-to-dismiss record, Judge
Garry Inge found commonality because "[a]ll potential class members
have an interest in the subject matter of this suit and a right to
the same relief," although "the interests of all the potential
class members are not identical, since the circumstances
surrounding each alleged use of excessive force
Had Wal-Mart applied, the court would have been required
to find something more: that "a classwide proceeding [would]
generate common answers apt to drive the resolution of the
litigation."10 Simply finding the common interest and
common right to relief would not have been enough.
A 2007 Superior Court decision, Holzman v. General Motors
Corp., demonstrates how Wal-Mart could apply to
class-certification rulings under § 9(2). There, Judge Thomas
Billings denied certification on claims that GM vehicles included
an allegedly defective jack on commonality grounds (among others).
The judge explained -- with reasoning predicting Scalia's -- that
there was no commonality because the common question would not
inevitably lead to a common answer:
The problem is well illustrated if one attempts to visualize the
verdict form that the judge presiding over the trial of a class
action in this case would employ. Were the warranty claim
susceptible of a single, class-wide special question -- "Were the
23 jack models owned or leased by members of the class
unmerchantable?" -- the attractions of class-action treatment would
On the evidence I have heard, however, one might reasonably
predict a question from the jury shortly after it retired to
deliberate, along the lines of, "To answer 'yes' or 'no' on
unmerchantability, must we find that all of the 23 jacks
were, or were not, unmerchantable?" To answer affirmatively would
presume what the evidence before me did not suggest: that the
answer is necessarily the same for all 23 jacks, or for all 80
Class certification was therefore denied under both Rule 23 and §
Holzman and Campbell show how important the
commonality inquiry is on class certification decisions under Rule
23 or § 9(2) -- an inquiry that is more important under § 9(2)
given that it does not impose a predominance requirement (although,
as noted, the trial court has discretion to consider predominance).
Wal-Mart's clarification of that inquiry should drive
courts and counsel to take a harder look at whether the proposed
common questions or issues drive the litigation. So save money,
live better, and find a common answer to the question of the
1See, e.g., Moelis v. Berkshire
Life Ins. Co., 451 Mass. 483, 489-490 (2008); Fletcher v.
Cape Cod Gas., Co., 394 Mass. 595, 605 (1985).
2130 S. Ct. 1431 (2010)
3See Donovan v. Philip Morris USA, Inc., No.
06-12234-DJC, 2012 WL 957633 at *29 (D. Mass. Mar. 21, 2012).
4131 S. Ct. 2541 (2011).
5Id. at 2551.
6See Moelis, 451 Mass. at
7See, e.g., Brophy v.
Sch. Comm. of Worcester, 6 Mass. App. Ct. 731, 735
828 Mass. L. Rptr. 465, 2011 WL 2736502
(Worcester Super. Ct. May 27, 2011).
9 Id. at *3
10 Wal-Mart, 131 S. Ct. at 2551
(internal quotation marks and citation omitted).
11 No. 021368, 2007 WL 4098913, at *10 (Middlesex
Super. Ct. Nov. 6, 2007).