Even With Common Questions, Chapter 93A Deceptive Marketing Claims Are Ill-Suited for Class Treatment

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Earlier this month, in Plastic Surgery Associates, SC v. Cynosure, Inc., United States District Judge Denise Casper denied plaintiffs’ motion for class certification and allowed Cynosure’s motion for summary judgment on claims arising from the marketing of a medical device intended to reduce body fat. The decision provides a searching and instructive analysis of the standards for class certification under Fed. R. Civ. P. 23, particularly for claims under Massachusetts’s consumer protection law, Mass Gen. L. c. 93A (“Chapter 93A”).

In Cynosure, plaintiffs purported to represent a class of all U.S.-based purchasers and lessees of the same medical device over a four-year period. Over 1,400 customers, mostly plastic surgeons and medical spas, had purchased the device for approximately $165,000 each. Plaintiffs each claimed they were harmed by the alleged deceptive marketing of the devices. Invoking Rule 23(c)(4), plaintiffs asked the Court to certify four issues for their Chapter 93A claim, including whether Cynosure

The District of Massachusetts Declines to Strike FCRA Class Claims in McIntyre v. RentGrow, Inc.

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In McIntyre v. RentGrow, Inc., No. 18-cv-12141-ADB, the District of Massachusetts recently denied a defendant’s motion to dismiss or to strike class claims in a putative Fair Credit Reporting Act (“FCRA”) action. The plaintiff’s complaint asserted FCRA claims on behalf of a nationwide class of tenants allegedly harmed by the defendant’s tenant screening reports that purportedly contained inaccurate and outdated eviction information.

The Court Declines to Dismiss or Strike FCRA Class Allegations

Under FCRA § 1681e(b), a defendant violates the Act if it reports inaccurate information about a consumer due to a failure to follow reasonable procedures to ensure accuracy, causing harm to the consumer. The complaint alleged that the defendant’s purchase of eviction information that was not updated, with knowledge of the errors, resulted in inaccurate screening reports that unfairly harmed thousands of tenants. The Court determined that the class claims in the complaint met the requirements of Rule

Class Action Settlements and the Importance of Clarity

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Most class actions resemble three-act plays. In the first act, the players are adversaries – fighting to kill the case or keep it alive, and if kept alive, to keep it limited to a solitary dispute or allow it to burgeon into the combined claim of large numbers of absent parties. If the case survives these early scenes, it proceeds to Act II, in which the cast members pause to see whether they can negotiate a resolution. In cases that are mediated, Act II often extends beyond the mediation sessions and does not end until a Settlement Agreement is signed. Act III begins upon execution of the Settlement Agreement. As the matter approaches its denouement, the parties’ interests come into alignment, as both sides work together to gain court approval.

Occasionally disputes develop over whether the case was resolved in Act II. This can occur when no Settlement Agreement has been signed but one side claims that the negotiations resulted in a binding oral agreement. Although

Class Action Update from the U.S. Supreme Court’s 2018-2019 Term

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The 2018-2019 term of the U.S. Supreme Court opened with a newly configured court in which Justice Kavanaugh joined as an Associate Justice following the retirement of Justice Kennedy. Since October of last year, the Court has heard 69 argued appeals, several of which arose from class action litigation. Over the past nine months, the Court has addressed issues relating to class action practice concerning arbitration provisions, federal removal statutes, consumer antitrust law, FDA preemption, and the equitable tolling of interlocutory appeals. Although presented with class action questions related to cy pres awards, data privacy litigation standing, issue class certification, securities laws, and TCPA claims, the Court declined to resolve these issues. Reflective of the Court’s decisions this term at large, rulings were unanimous or sharply divided along ideological lines, with the Court declining to hear a number of controversies. The below summary provides an overview of class action decisions by the Court this term, including recent remands and certiorari decisions.

With Massachusetts’ Consumer Data Privacy Bill Still Under Consideration, Student Data Privacy Class Action Fails In Federal Court

As we have recently reported, the Massachusetts legislature is currently considering a comprehensive data privacy law that would create a private right of action for consumers who allege a violation of any provision of the proposed law. Last week, a Massachusetts federal court dismissed a data privacy class action, concluding that the plaintiffs failed to state an actionable claim under existing law. The decision draws into sharp relief the potential impact of the proposed legislation. The case demonstrates how the data privacy bill, if enacted, could open a new avenue for individuals to sustain private actions based on alleged data privacy violations that courts have previously found do not entitle plaintiffs to relief.

The Mount Ida College Plaintiffs Alleged Data Privacy Violations but Could Not Sustain their Class Claims

In this recent and closely watched case, Squeri v. Mount Ida College, brought on behalf of a putative class of former and

Yan v. ReWalk Robotics, Ltd.: No Substitute for Standing in the District of Massachusetts

On May 16, 2019, the District of Massachusetts denied a lead plaintiff’s motion to amend a complaint that sought to overcome standing deficiencies of the original class representative by adding a new named plaintiff. The Court dismissed the putative class action without prejudice, holding that if a class action has only one representative, and that party does not have standing, the Court lacks jurisdiction over the case and cannot permit the lead plaintiff substitution.

In Yan v. ReWalk Robotics, Ltd., lead plaintiff Wang Yan brought a putative class action for alleged violations of the Securities Act of 1933 and the Exchange Act of 1934 in connection with the company’s 2014 initial public offering. In a class action complaint filed in 2017, Yan claimed that ReWalk concealed material information in its IPO documents concerning a failure to comply with FDA regulations and continued to make materially false statements after the IPO. In August 2018, the Court granted the

Lamps Plus, Inc. v. Varela: Class Arbitration Must Be Expressly Authorized

Class arbitration came back before the Supreme Court this term in Lamps Plus, Inc. v. Varela.  Today, the Supreme Court issued a 5-4 decision in Lamps Plus, holding that, under the Federal Arbitration Act, “courts may not infer from an ambiguous agreement that parties have consented to arbitrate on a classwide basis.”  Rather, class arbitration must be expressly authorized by contract.

The facts of Lamps Plus are straightforward.  An employee had signed an arbitration agreement upon being hired to work for Lamps Plus.  After a data breach, the employee sued Lamps Plus in federal court.  Lamps Plus filed a motion to compel individual arbitration, and the district court granted the motion to compel but authorized arbitration on a class basis.  The Ninth Circuit affirmed, reasoning that the arbitration provision was ambiguous as to class arbitration and must be construed against the employer under California’s contra proferentem rule that ambiguities in a contract must be

Massachusetts SJC: Rule 23 Governs Wage Act Claims, Rejected Offers of Judgment Do Not Moot Claims, and More

Every now and then a case comes along that rewards us class action nerds with an embarrassment of riches. Gammella v. P.F. Chang’s China Bistro, Inc., decided last week by the Massachusetts Supreme Judicial Court, is one such case. In it, the Court addressed a number of important class certification issues, some unique to Massachusetts law, and some that have close federal procedural analogues. And its resolution of those issues offers something to both plaintiffs and defendants.

Gammella is a wage and hour case. Plaintiff brought a claim under the Massachusetts Wage Act and the minimum fair wage law for his employer’s alleged violations of the “reporting pay” provision of Massachusetts regulations which, the Court explains, “requires employers to pay employees three hours’ wages at no less than the minimum wage if they report for a scheduled shift of three or more hours but are involuntarily dismissed before they have worked three hours.” He alleged that, on numerous occasions, he reported to work at

A Class Settlement Checklist

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Having heard good things about it for years, last month I finally got around to reading Dr. Atul Gawande’s book, The Checklist Manifesto, and have begun to give some thought regarding its application to class action practice. Proposed class action settlements are currently occupying much of my time, and my usual practice when drafting the settlement agreements is to draw upon lengthy agreements I have negotiated before.  However, after reading Dr. Gawande’s opus, it occurred to me that a short, simple checklist would likely be a helpful tool in considering the most commonly recurring terms of class action settlements. With the book as inspiration, I offer the following as a first, high-level attempt at a simple class settlement checklist, one which can be expanded, refined, and otherwise improved upon. Each item on the checklist is followed by a little clarification of what it entails. Taken together, the items represent the basic provisions of many class action settlements, but each case is different, and settlements of