The impact of Wal-Mart Store, Inc. v. Dukes on 93A claims

Issue August 2012 By Matthew M. K. Stein

People don't always realize that claims for G.L. c. 93A violations brought on behalf of a putative class are not certified under Mass. R. Civ. P. 23. Nope. Instead, they're certified under chapter 93A's special class-action provision -- G.L. c. 93A, § 9(2) -- which the Supreme Judicial Court has said does not require a showing of predominance or superiority (although the trial court does possess a degree of discretion to consider those issues).1 And, after Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co.,2 that might be the case in federal court too. (This is undecided. The only court that appears to have been asked to decide it declined to do so.)3

So, thinking about a proposed chapter 93A class action, what's an attorney to do?

Save money. Live better. Go to Wal-Mart. Specifically, Wal-Mart Stores, Inc. v. Dukes.4

In Wal-Mart, the U.S. Supreme Court raised the bar for commonality under Rule 23(a)(2). Justice Antonin Scalia explained that commonality is directed at a classwide issue: "That common contention, moreover, must be of such a nature that it is capable of classwide resolution - which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke."5

Wal-Mart matters to chapter 93A claims because § 9(2) requires proof that a common question satisfies Rule 23(a)'s commonality requirement without proof that it predominates.6 Therefore Wal-Mart implicitly imposes a type of predominance on that class-certification analysis by requiring a common question that drives the litigation. (Obviously Wal-Mart addresses only the federal version of Rule 23. But given that the SJC has said that § 9(2) incorporates all of Rule 23(a)'s requirements, it would be a distinction too far to say that Wal-Mart's clarification of Rule 23(a)'s commonality requirement doesn't apply to § 9(2), especially as Massachusetts courts have looked to federal court interpretations of their Rule 23 for guidance.)7

Consider Campbell v. Glodis,8 a case challenging the alleged use of excessive force on behalf of a class of inmates in a county jail. On a motion-to-dismiss record, Judge Garry Inge found commonality because "[a]ll potential class members have an interest in the subject matter of this suit and a right to the same relief," although "the interests of all the potential class members are not identical, since the circumstances surrounding each alleged use of excessive force differ."9

Had Wal-Mart applied, the court would have been required to find something more: that "a classwide proceeding [would] generate common answers apt to drive the resolution of the litigation."10 Simply finding the common interest and common right to relief would not have been enough.

A 2007 Superior Court decision, Holzman v. General Motors Corp., demonstrates how Wal-Mart could apply to class-certification rulings under § 9(2). There, Judge Thomas Billings denied certification on claims that GM vehicles included an allegedly defective jack on commonality grounds (among others). The judge explained -- with reasoning predicting Scalia's -- that there was no commonality because the common question would not inevitably lead to a common answer:

The problem is well illustrated if one attempts to visualize the verdict form that the judge presiding over the trial of a class action in this case would employ. Were the warranty claim susceptible of a single, class-wide special question -- "Were the 23 jack models owned or leased by members of the class unmerchantable?" -- the attractions of class-action treatment would be apparent.

On the evidence I have heard, however, one might reasonably predict a question from the jury shortly after it retired to deliberate, along the lines of, "To answer 'yes' or 'no' on unmerchantability, must we find that all of the 23 jacks were, or were not, unmerchantable?" To answer affirmatively would presume what the evidence before me did not suggest: that the answer is necessarily the same for all 23 jacks, or for all 80 jack-vehicle combinations.11

Class certification was therefore denied under both Rule 23 and § 9(2).

Holzman and Campbell show how important the commonality inquiry is on class certification decisions under Rule 23 or § 9(2) -- an inquiry that is more important under § 9(2) given that it does not impose a predominance requirement (although, as noted, the trial court has discretion to consider predominance). Wal-Mart's clarification of that inquiry should drive courts and counsel to take a harder look at whether the proposed common questions or issues drive the litigation. So save money, live better, and find a common answer to the question of the litigation.

Matthew K. Stein is an associate in the Boston office of Skadden, Arps, Slate, Meagher & Flom LLP. Any opinions expressed in this article are his, and not necessarily those of Skadden Arps or its clients. The author would like to thank David Clancy, a partner in Skadden Arps' Boston office, for his thoughts and advice in this area.

1See, e.g., Moelis v. Berkshire Life Ins. Co., 451 Mass. 483, 489-490 (2008); Fletcher v. Cape Cod Gas., Co., 394 Mass. 595, 605 (1985).
2130 S. Ct. 1431 (2010)
3See Donovan v. Philip Morris USA, Inc., No. 06-12234-DJC, 2012 WL 957633 at *29 (D. Mass. Mar. 21, 2012).
4131 S. Ct. 2541 (2011).
5Id. at 2551.
6See Moelis, 451 Mass. at 489.
7See, e.g., Brophy v. Sch. Comm. of Worcester, 6 Mass. App. Ct. 731, 735 (1978).
828 Mass. L. Rptr. 465, 2011 WL 2736502 (Worcester Super. Ct. May 27, 2011).
9 Id. at *3
10 Wal-Mart, 131 S. Ct. at 2551 (internal quotation marks and citation omitted).
11 No. 021368, 2007 WL 4098913, at *10 (Middlesex Super. Ct. Nov. 6, 2007).