March/April 2009 - Boston Bar Association

the First Circuit and elsewhere, that the applicability of the
statute of limitations precluded certification due to the
need for individualized inquiry. 11
Finally, though patterned after its federal counterpart,
Massachusetts Rule 23 does not include the portions of the
federal rule calling for certification of a class as soon as
practicable after the commencement of an action. Thus, the
Massachusetts rule can readily accommodate the application
of the demands emerging in the recent federal certification
decisions, as it allows for further prior development
of a record and thus sets the stage for the court to assess
the merits in deciding whether certification is appropriate.
The decision in Kwaak v. Pfizer, Inc. rejecting certification
of a proposed class of Listerine purchasers fits this model.
See 881 N.E.2d 812, 818-19 (Mass. App. Ct. 2008). There,
the court concluded, even for claims under Chapter 93A,
that there was insufficient information in the record to
indicate the similarity of exposure, deception, and causation
of defendant’s advertising campaign, in a manner
similar to the Second Circuit’s later decision in McLaughlin.
Kwaak underscores that, even where plaintiffs might be
able to satisfy the higher pleading standards that apply
following Iannacchino, plaintiffs’ ability to prove injury and
causation on a class-wide basis remains subject to scrutiny
at class certification. In this regard, the reasoning of
federal decisions such as New Motor Vehicles could well
prove influential, especially where establishing injury
requires a novel or complex theory.
Conclusion
Though the modern federal Rule 23 was promulgated to
provide an antidote to the perceived shortcomings of de
minimis non curat lex — the principle that the law is not
concerned about very small or trifling matters — federal
courts appear to be growing more cognizant of the potential
shortcomings of the rule itself. As a result, federal
courts have become more exacting when considering
whether to permit class actions to proceed. Though it
remains to be seen whether Massachusetts courts will fully
embrace that trend, a number of recent Massachusetts
decisions appear to be moving gradually in the same
direction. n
e n d n o t e s
1. See Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982).
2. See 522 F.3d at 24. As discussed in New Motor Vehicles, prior First
Circuit decisions addressing the need for an inquiry into the merits
include In re PolyMedica Corp. Secs. Litig., 432 F.3d 1, 6 (1st Cir. 2005);
Tardiff v. Knox County, 365 F.3d 1, 4-5 (1st Cir. 2004); Smilow v. Sw. Bell
Mobile Sys., Inc., 323 F.3d 32, 38 (1st Cir. 2003); and Waste Mgmt. Holdings,
Inc. v. Mowbray, 208 F.3d 288, 298 (1st Cir. 2000). For a recent discussion
of the positions taken among federal circuits on examining the merits, see
William B. Rubenstein, “Rigorous Analysis and Class Certification,” Am.
Bar Ass’n 12th Annual Inst. on Class Actions, at D-1-8 (2008).
3. 522 F.3d at 25.
4. Id. at 17.
5. Id. at 8. In the wake of New Motor Vehicles in the First Circuit,
parties will presumably begin to contest the issue of whether a matter
requires a “novel” or “complex” theory of injury and thus triggers the
“searching inquiry” requirement. It is likely that this issue will be litigated
not only at class certification, but when the court sets a schedule and
enters a case management order defining the parameters for discovery.
Ultimately, New Motor Vehicles may thus raise the stakes for both
plaintiffs and defendants in certain cases even prior to the parties’
opportunity to test the class’s viability at the motion for class certification.
Plaintiffs may shoulder a greater burden to prevail on the motion under
New Motor Vehicles, but this protection for defendants may come at the
price of more burdensome discovery for both sides before class
certification may be reached.
6. See, e.g., In re Bridgestone/Firestone, Inc. Tires Prods. Liab. Litig.,
288 F.3d 1012, 1019-20 (7th Cir. 2002). But see In re Pharm. Ind. Average
Wholesale Price Litig., 252 F.R.D. 83, 106 (D.Mass. 2008) (certifying
multi-state class insofar as claims related to consumer protection statutes
without a reliance requirement, finding that common questions in that
case did predominate over questions affecting individual members).
7. See, e.g., Castano v. Am. Tobacco Co., 84 F.3d 734, 745 (5th Cir. 1996)
(“[A] fraud class action cannot be certified when individual reliance will
be an issue.”); In re TJX Cos. Retail Sec. Breach Litig., 246 F.R.D. 389, 395
(D.Mass. 2007) (collecting authorities, and denying motion for certification
by class of issuing banks asserting claims related to retailer’s data
breach, concluding on banks’ negligent misrepresentation and related
M.G.L. c. 93A claims that “[p]roving the element of reliance will
necessarily involve individual questions of fact, and the issuing banks will
be unable to invoke a presumption of reliance on the part of class
members.”). But see Klay v. Humana, Inc., 382 F.3d 1241, 1258-59 (11th
Cir. 2004) (common questions of law and fact concerning fraud-based
RICO claims predominated over individual issues specific to each
plaintiff).
8. Some have suggested that the Second Circuit’s holding in McLaughlin
was called into question by the Supreme Court’s subsequent decision
in Bridge v. Phoenix Bond & Indemn. Co., 128 S.Ct. 2131 (2008), which
held that first-party reliance is not an element of a claim under the
Racketeer Influenced and Corrupt Organizations Act (“RICO”) predicated
on mail or wire fraud. Importantly, however, Bridge did not dispense with
the RICO’s reliance requirement altogether. See id. at 2144 (“[N]one of
this is to say that a RICO plaintiff who alleges injury ‘by reason of’ a
pattern of mail fraud can prevail without showing that someone relied on
the defendant’s misrepresentations.”) (emphasis added). As commentators
have observed, unlike in Bridge, where there was reliance on the
defendant’s fraud by a third party, proving reliance by the plaintiff still
will be a necessity in many consumer class actions. See, e.g., Donald R.
Frederico, “Consumer Class Actions: An Unauthorized Biography,” Am.
Bar Ass’n 12th Annual Inst. on Class Actions, at C-6-7 (2008).
9. 522 F.3d. 220.
10. See 452 Mass. 337, 367-68 (2008).
11. See 451 Mass. 483, 490-91 (2008) (citing, inter alia, Waste Mgmt.
Holdings, Inc. v. Mowbray, 208 F.3d 288, 295 (1st Cir. 2000)).
16 Boston Bar Journal • March/April 2009