Class Actions

Is It Time to Update Mass. R. Civ. P. 23?

Over the past 25 years, I have had the good fortune of getting to know and working with both plaintiff and defendant class action lawyers from many states, and to teach class action practice in dozens of local and national CLE programs and at a great law school. I also have represented clients in class action cases in many jurisdictions, both state and federal, including the state courts of Massachusetts. All of these experiences have given me the opportunity over an extended period to learn and reflect upon the varieties of class action practice.

When I speak with my counterparts from other states, one thing I tell them invariably makes their jaws drop — namely, that Massachusetts’ version of Rule 23 does not allow opt outs. I have not done an exhaustive review of all state class action rules, but based on my experience and my interactions with out-of-state class action lawyers, we seem to be the only state that does not permit class members to

Kingara v. Secure Home Health Care Inc. and the Precertification Powers of the Massachusetts Courts

The Backdrop

Class actions are like butterflies; they must undergo a metamorphosis before they fly. The transformation occurs when a court grants class certification. At that instant, what had started out as an individual lawsuit emerges as its own entity, with a number of legal consequences flowing from the change. Among them, plaintiff’s counsel becomes class counsel, representing and owing fiduciary duties to the entire class; the court also becomes a fiduciary, charged with its own responsibility for protecting absent class members (including, importantly, the duty to scrutinize proposed class settlements); and class members become represented parties, which triggers the ethical rules that limit or prohibit defense counsel from communicating with them.

The situation before class certification is different. Because the class does not yet exist, most courts recognize that the fiduciary duties of plaintiff’s counsel and the court to putative class members do not kick in (or, at least, not fully), and defense counsel is generally free to communicate directly with

Supreme Court Addresses Concrete Harm, Limits Standing in FCRA Class Action

On June 25, 2021, the Supreme Court issued its much-anticipated 5-4 ruling in TransUnion LLC v. Ramirez. In a 27-page decision by Justice Kavanaugh, the Court reversed the Ninth Circuit’s decision upholding the certification of a class of 8,185 consumers whom the credit reporting agency TransUnion had  mistakenly labeled as potential terrorists and drug traffickers. Of this consumer class, only 1,853 class members’ misleading credit reports had been provided to third-parties. The District Court had ruled that all class members had Article III standing to pursue their Fair Credit Reporting Act (FCRA) claims against TransUnion to recover statutory damages. A federal jury awarded the class $8.1 million in statutory damages and $52 million in punitive damages. On appeal, TransUnion challenged the award on the basis that the entire class lacked constitutional standing to recover. A divided panel of the Ninth Circuit affirmed in part.

The Court’s Decision

Taking up the question, the Court clarified its prior holdings concerning the

Tuition Refund Class Actions: Our ABA Podcast

Recently, my colleague Melanie Conroy and I delivered a podcast for the American Bar Association about the tuition refund class actions filed against universities in response to COVID-19 campus closures. We discuss the impact of COVID-19 on colleges and universities, the legal theories underlying the plaintiffs’ claims and likely defenses, the issues raised by anticipated motions for class certification, and some predictions about the progress and potential outcomes of the cases. A link to the podcast can be found here.

A Survey and Comparison of Federal and Maine Class Action Law

I’m pleased to say that I recently published an article, Class Actions: A Survey and Comparison of Federal Law and Maine State Law, that considers Maine class action law in light of federal law, particularly case law in the First Circuit.  While class actions are prevalent at the national level, the story thus far has been different in Maine – but that may be changing.

Since 2000, Maine courts have more frequently addressed class action issues. That trend could accelerate, given that plaintiffs may increasingly seek recourse to state courts if the Supreme Court is perceived to be taking a more hostile view of class actions. If this trend continues, Maine law regarding Rule 23 will continue to become more robust. It is likely that Maine law will continue to track federal class action law to some extent, though it has diverged—and may continue to diverge—to some extent as well.

The article provides a primer on the growing body

First Circuit Holds That College Does Not Owe Fiduciary Duties to Students, Rejects Data Privacy Class Action Claims

Practice area:

On March 25, 2020, the First Circuit Court of Appeals in Squeri v. Mount Ida College upheld the lower court’s dismissal of prospective and former Mount Ida College students’ claims against the college and its Board of Trustees arising from the college’s abrupt closure and sale of its campus to UMass Amherst in May 2018. No. 19-1624, 2020 WL 1445400 (1st Cir. Mar. 25, 2020). On appeal, the student plaintiffs urged the First Circuit to dramatically expand students’ ability to sue colleges under Massachusetts law, opening the door to new litigation risks for academic institutions. The First Circuit declined this invitation, noting that Massachusetts law does not allow for the broader theories of liability they sought to assert.

The students’ allegations against Mount Ida and the lower court’s dismissal of their claims

The students’ class action claims arose out of the college’s abrupt and permanent closure after six weeks’ notice to students that they would need to continue their studies

Two Courts of Appeals Issue Decisions Addressing Whether Bristol-Myers Squibb’s Personal Jurisdiction Holding Extends to Class Actions

We have previously written about the Supreme Court’s personal jurisdiction decision in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) and how the federal district courts were applying it.  Now, two Courts of Appeals have finally weighed in, issuing the very first appellate decisions addressing whether Bristol-Myers applies to class actions in federal courts.

In Molock v. Whole Foods Market Group, Inc., No. 18-7162, 2020 WL 1146733 (D.C. Cir. March 10, 2020), plaintiffs, current and former employees of Whole Foods, brought a putative class action seeking to recover alleged lost wages.  Defendant moved to dismiss and argued that the court lacked personal jurisdiction over the claims of nonresident putative class members.  The district court denied the motion, and Whole Foods appealed.  In a 2-1 decision, the D.C. Circuit held that the question of whether Bristol-Myers applied to class actions was premature and need not be addressed because no class had been certified and