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 engaged in a deceptive act or practice by representing its device as a pain-free, hands-free, one-time treatment.

The Court Rejects Plaintiffs’ Motion for Issue Class Certification

In its application of Rule 23, the Court agreed with Cynosure that, even if every issue was decided in plaintiffs’ favor, “those conclusions would not advance the litigation because the factfinder would still need to evaluate the entirety of each sales transaction to determine the customer’s baseline knowledge about [the device] and their interpretations of the representations made by the Cynosure sales representatives.”  No. 17-CV-11435-DJC, 2019 WL 3719404, at *7 (D. Mass. Aug. 7, 2019). The Court acknowledged the growing circuit-court split concerning whether “issue classes” under Rule 23(c)(4) must satisfy the predominance requirement of Rule 23(b)(3) as to the class as a whole or only as to the specific issues being certified. Id. at *10. Without speculating how the First Circuit might resolve the issue, the Court reasoned that plaintiffs could not satisfy even the lowest standards that require issue classes to “materially advance the litigation or promote judicial economy.” Id. at *7. That is because, even if the Court had resolved all common questions in favor of plaintiffs, it would be necessary to conduct hundreds of individualized trials on causation and damages. Id. Without information about each individual class member’s communications, knowledge, and reliance, decisions on liability would not be possible.

In addition, setting aside issue class standards, plaintiffs had failed to show commonality, typicality, and adequacy under Rule 23(a). For commonality, plaintiffs failed to present evidence showing which, if any, class members received the marketing materials and representations cited in the complaint. Id. at *8-9. As to typicality, the circumstances surrounding each medical device purchase varied over the four-year class period. Variations even among proposed representatives demonstrated that “no ‘typical’ case is presented by these plaintiffs, such that class certification would be appropriate.”  Id. at *9. Concerning adequacy, because there were inconsistencies in the alleged representations made to each class member, plaintiffs could not show that their interests were representative of those of the rest of the proposed class. Id. at *10.

The Court Considers Plaintiffs’ Deceptive Marketing Claims and Grants Summary Judgment in Favor of Cynosure

The decision is instructive not only for its careful treatment of class certification but for its discussion of Chapter 93A class action claims based on purportedly deceptive marketing and sales practices. As the Court found in this case, these allegations raise “the threshold question of whether [the defendant] ever made such a representation to the putative class member,” and are thus ill-suited for class treatment. Id. This is why “most courts hold that certification is not appropriate when the plaintiffs’ claims are based on oral representations, which, by their nature, tend to be particularized.” Id. (quoting Rothwell v. Chubb Life Ins. Co. of Am., 191 F.R.D. 25, 30 (D.N.H. 1998)).

The Court also parsed the affirmative defense contained in Section 11 of Chapter 93A, which applies to commercial transactions. As acknowledged by the First Circuit, Section 11 excuses a defendant from liability under Chapter 93A when the transactions in question did not occur “primarily and substantially within the Commonwealth.” Id. at *11 (quoting Fishman Transducers, Inc. v. Paul, 684 F.3d 187, 197 (1st Cir. 2012); Mass. Gen. L. c. 93A, § 11). On the summary judgment record, “each Plaintiff is located outside of Massachusetts, conducts their business outside Massachusetts, executed its purchase agreement outside Massachusetts and met with Cynosure sales representatives, who were not based in Massachusetts, outside of Massachusetts.” Id. at *12. In addition, plaintiffs did not show that they ever received marketing materials created in Massachusetts and never traveled to Massachusetts in connection with their purchase of the device. For these reasons, the “center of gravity of the circumstances alleged to violate the statute” fell outside of Massachusetts, an affirmative defense that warranted granting Cynosure’s motion for summary judgment on the Chapter 93A claim. Id. at 11 (citing Kuwaiti Danish Comput. Co. v. Dig. Equip. Corp., 438 Mass. 459, 473 (2003)).

Judge Casper’s well-reasoned and thorough 34-page analysis of the class certification standards set forth in Rule 23 and the defenses to Chapter 93A liability make it a must-read for class action practitioners in Massachusetts.

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