Class Representative

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

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