Massachusetts Decisions

Massachusetts Supreme Judicial Court Reverses Denial of Motion to Compel Arbitration, Holds Grubhub Drivers Must Arbitrate Employment Claims

On July 27, 2022, in Archer v. Grubhub, the Massachusetts Supreme Judicial Court considered whether Grubhub delivery drivers within the Commonwealth are exempt from arbitration under Section 1 of the Federal Arbitration Act (FAA). FAA Section 1 exempts “seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” The SJC joined numerous other courts in determining such drivers are not a class of transportation workers exempt from the FAA and that the electronic arbitration agreements with class action waivers among the drivers and Grubhub are binding. The ruling reversed the Superior Court judge’s denial of Grubhub’s motion to compel arbitration.

Section 1 of the FAA Does Not Exempt Grubhub Drivers

At the heart of the case was an electronic agreement among the plaintiff drivers and Grubhub that was executed through an online portal through which the plaintiffs had to activate a hyperlink titled “Arbitration Agreement” with an option to view the text of the

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

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

Campbell-Ewald in Massachusetts

On March 6th, in Silva v. Todisco Services, Inc., Judge Kenneth Salinger, sitting in the Business Litigation Session of the Massachusetts Superior Court, held that a defendant’s tendering of the maximum amount of damages a plaintiff might recover in a putative class action did not moot either the plaintiff’s individual claims or the claims of putative class members. In rejecting defendant’s “pick-off” attempt, Judge Salinger aligned Massachusetts state court practice with federal case law, including the United States Supreme Court’s decision in Campbell-Ewald v. Gomez, and subsequent federal decisions. His reasons for doing so, while perhaps consistent with Massachusetts precedent, were somewhat different from the federal court rationale and could have unintended consequences.

In Campbell-Ewald, the Supreme Court held that an unaccepted offer of judgment does not moot a named plaintiff’s claim, and therefore cannot prevent a putative class action from moving forward. The Court based its decision on principles of contract law

Bellerman v. Fitchburg Gas & Electric Light Co. – Lack of Injury in Massachusetts Consumer Claims

In 2014, we posted about the Massachusetts Supreme Judicial Court’s decision in Bellermann v. Fitchburg Gas & Electric Light Co.  In that case, plaintiffs sought relief under the Massachusetts consumer protection statute, G.L. c. 93A, because of the defendant utility’s alleged failure properly to prepare and plan for a major winter storm, and its allegedly deceptive communications made to consumers before and during the storm.  The SJC affirmed the trial court’s denial of class certification because plaintiffs could not establish that defendant’s conduct caused similar injury to consumers on a class-wide basis.

On remand, plaintiffs filed a renewed motion for class certification relying on a different liability theory – that they had suffered economic injury by overpaying for a level of emergency preparedness, required by Department of Public Utility regulations, which the defendant allegedly failed to provide.  This time a different trial court judge certified two classes under this diminution-in-value theory (a business customers class and a residential customers class), but

Bellermann v. Fitchburg Gas & Electric Light Company: Massachusetts SJC Upholds Denial of Class Certification In Consumer Case Against Utility

Practice area:

In December 2008, a major ice storm caused massive and lengthy power outages in several towns in Massachusetts.  Twelve residential and business customers of Fitchburg Gas and Electric Light…