US District Court – Mass

Ascertainability & In re Nexium – The Side-Effects Continue

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As various contributors to this blog have noted (here, here, and here), a divided panel of the First Circuit adopted a “loose” approach to the ascertainability requirement in In re Nexium Antitrust Litigation.  Specifically, while acknowledging that “the definition of [a] class must be ‘definite,’” the majority concluded that this requirement could be satisfied by a claims process by which class members would submit affidavits to show that they were injured.  According to the majority, such a process would be sufficiently feasible and protective of the defendants’ Seventh Amendment and due process rights.  Judge Kayatta authored a vigorous dissenting opinion, noting the “limitations of using affidavits in the manner proposed by the majority.”

Recently, the District of Massachusetts relied on In re Nexium to find that a proposed class was sufficiently ascertainable under similar circumstances.  In that case, In re Asacol Antitrust Litigation, end-payor purchasers of

Romulus v. CVS Pharmacy, Inc.: Meal Periods, Ascertainability, and the Importance of Removal.

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In Romulus v. CVS Pharmacy, Inc., five former Shift Supervisors brought a putative class action against CVS under the Massachusetts Wage Act, contending they were required to work through their unpaid breaks.  Specifically, the plaintiffs alleged that they were required to remain in the store during their breaks when they were the only managerial employees on duty, were interrupted to handle transactions when necessary, and were nonetheless not paid for their time.  In a 12-page opinion issued last week, United States District Judge Rya Zobel denied the plaintiffs’ request for class certification, finding they failed to satisfy the requirements of commonality and predominance under Rule 23.

Although CVS policy required a member of management to be present in the store at all times during operating hours, the policy also provided employees with one unpaid 30-minute meal break for each six or eight-hour shift, and instructed employees that, in the event their meal period was interrupted, they should notify their manager to

District of Massachusetts Grapples with Campbell-Ewald’s Unanswered Questions

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Chief Judge Saris and Judge Sorokin of the District of Massachusetts recently tackled questions left unanswered by the Supreme Court’s opinion earlier this year in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016) (see Don Frederico’s prior post for a full discussion of Campbell-Ewald).

In South Orange Chiropractic Center, LLC v. Cayan LLC, 2016 WL 1441791, No. 15-13069 (D. Mass. April 12, 2016), the defendant, seeking to slip through the door left ajar by Campbell-Ewald, sought to deposit $7,500 with the court, providing the named plaintiff in a putative Telephone Consumer Protection Act (TCPA) class action with full relief. In addition, the defendant agreed to have judgment entered against it for allegedly sending plaintiff an unsolicited fax in violation of the TCPA, to pay for costs, to be enjoined from future conduct as to plaintiff or others, and to preserve evidence, and presented the plaintiff with a stand-alone settlement agreement,