In this episode, John Maher speaks with attorney Michael Forrest of Mazow McCullough about class action lawsuits in Massachusetts. Forrest explains the key requirements for class certification—numerosity, commonality, typicality, adequacy, predominance, and superiority—and how these criteria affect whether a case can move forward. He discusses common types of class actions, such as consumer protection, wage and hour, and landlord-tenant cases, and clarifies the role and responsibilities of a class representative. The conversation also touches on the benefits and potential drawbacks for individuals joining a class action, as well as emerging trends related to damages and class member identification in modern litigation.
John Maher: Hi, I’m John Maher. I’m here today with attorney Michael Forrest of the Law Office of Mazow McCullough. Today we’re talking about class actions in Massachusetts. Welcome, Michael.
Michael Forrest: Oh, good morning, John. How are you?
What are the Requirements for a Class Action Lawsuit in Massachusetts?
Maher: Good, thanks. So Michael, can you explain the basic requirements for a class action lawsuit to be certified here in Massachusetts?
Forrest: Sure. I think it’s important to take a step back and just look at what a class action itself is first, just because that will make more sense to the requirement. But in a class action, typically what you have is, it needs one person who says, “I’m going to represent the interests of many other people.”
So, it could be for a small infraction of the law, it could be for a large infraction, but what happens is they look to have the court aggregate those claims into a single claim. In order to do that, the court has certain requirements, strict requirements, and they vary from Massachusetts, or state to state. In Massachusetts, they’re pretty straightforward.
So, the first one is that you have numerosity, and that’s this idea that you have enough people to fulfill the requirements of the class. And there’s no magic number on that. In Massachusetts we’ve seen 42 somewhat be a number that the courts have wrestled or used as a benchmark for how many people, but I’ve seen them as well with six people in an employment class. So, that’s the first requirement, is the number of people that you have.
The second requirement, in Massachusetts, is that you have this common issue. So, you need to have a common issue that runs through all of the class members. It may be the wrong itself, typically it is the wrong itself. And moving into that, the next one will be typicality. Again, all of these individuals need to be looking for a similar or typical type of relief toward this common wrong.
And then fourth, in this first set of categories that you have to fulfill, is adequacy. And adequacy just means that the counsel that you’ve chosen and yourself are adequate to serve the interests of the class, you have no ulterior motives, you don’t have any self-serving interests. That you’re there for everybody in the class. So, those are your first four requirements that are necessary.
In Massachusetts, there’s a consumer protection statute that allows you to authorize class action. And under that statute, those are the four requirements you have to meet. However, under the rules of the civil procedure, which are a little more stringent in Massachusetts, there are two more requirements. So, the claim that you bring to the court has to predominate.
In other words, the claim itself has to be predominant to individual issues which may arise, so that the court doesn’t have to deal with overly burdensome individual issues. Courts wrestle with that because oftentimes there are damages issues, and the courts try to ascertain, “How can we decide damages? How can we find the members of the class?
And by doing that, does that create too many individual issues?” So, when you bring a class action, what you want to do is you want to make sure that you have facts that run through the course of the case, and that these individualized issues aren’t going to cause problems down the road at class certification.
What Are the Individualized Issues in a Class Action Case
Maher: So, individualized issues would be that like the damages that somebody is suffering, one person might have damages that are way more than what another person might have, something like that? So, that would make it difficult to have everybody grouped together, am I understanding that right?
Forrest: So, the law looks at damages and says, oftentimes will say, “Individualized damages will not defeat this certification.” However, you do have courts that maybe misinterpret that rule and believe that individualized damages predominate over the common issue. Another thing that you’ll see is issues of liability. So, courts will say, “There’s too many issues of liability, too many individual acts of liability that we have to go through. So, therefore there will be no class certification.”
Common Types of Class Action Lawsuits in Massachusetts
Maher: Okay. What are some common types of class action lawsuits that are filed in Massachusetts, and are there challenges for each type
Forrest: Of course, yeah. Consumer protection under, I mentioned before, there’s a Consumer Protection Act in Massachusetts that actually creates, by statute, a vehicle to bring the class action claim on behalf of consumers. So, you’ll oftentimes in Massachusetts, when you see a class action brought, particularly against a business, you’ll oftentimes see that claim through the Consumer Protection Act. Simultaneously, they’ll oftentimes, you’ll also have other types of claims against the business, and you’ll still move for that class under the Massachusetts rule.
So, you do see a lot of consumer class action, you also see a lot of employment class actions across the board, both in Massachusetts and federally. Wage and hour class actions are collective actions that you have to opt into, depending on the forum you’re in. Landlord tenant class actions in Massachusetts, tend to be very prevalent, because there are many landlords to who impermissible or legal leases. So, we see a lot of those.
What is a Class Representative?
Maher: What is a class representative? What do they do, and what are their duties in terms of a class action lawsuit?
Forrest: I know we discussed before this idea that when a class action representative comes to us to decide that they want to represent somebody, they have a duty to the class. And that duty means that you look at the interests of all of the individual that may or may not be a part of your class, and you look out for their interest, maybe over your individual interest.
So, oftentimes in consumer claims, you’ll see businesses try to pick off a putative representative. So, they’ll offer a larger sum of money, hoping that the person will go away. Oftentimes in a consumer class action, the putative rep will forgo that offer of money, and still move forward for the interest of the class. So, that’s one of the ideas we talk about when there’s a duty there.
The other things that are always important to remember is you are entering into the legal system, and you’re going to have certain duties. So, there are duties for a representative. You may be required to answer discovery, you need to be available to your attorneys, and you may have to sit for a deposition at some point. But that’s usually the role and the burden that sits on a class representative.
How is the Class Representative Determined?
Maher: So, is the class representative the first person who brings this case to a lawyer and gets this filed? Or is it sometimes somebody that shows up weeks or months into the process?
Forrest: Usually, for us, it would be somebody who brings the issue. Oftentimes there may be, particularly in data breaches recently, you’ll have several firms file a case at the same time. And so, if you’re one of those first cases, it’s usually because somebody came directly to you. It’s not the type of thing where you piggyback on somebody else’s case.
Pros and Cons of a Class Action Lawsuit
Maher: Okay. What are the potential benefits and drawbacks of participating in a class action lawsuit for individuals in Massachusetts?
Forrest: Sure. So, from a representative’s point of view, we briefly discussed, there is a benefit of obtaining relief for the class. You may also stop a practice to obtain injunctive relief. On the burden side, as we discussed for that representative, there’s discovery. There may be a deposition at some point. As far as the class themselves, there’s oftentimes notice, or there’s always a notice sent out to class members.
And when that notice is received, a lot of times people either throw it in the garbage, but they should pay more attention because oftentimes there’s some sort of equitable relief in there, there’s monetary relief. In the case of data breaches, oftentimes there’s expanded credit monitoring. So, there are benefits to opting into being part of a class.
Recent Trends in Class Action Suits in Massachusetts
Maher: And what are some of the recent trends or developments in class action litigation in Massachusetts? And are those trends likely to impact future cases?
Forrest: So, I think one of the trends that we’re seeing goes back to that predominance issue. In the issue of predominance, you often have people or judges who wrestle with this issue of individualized damages. So there’s still a lot of talk around this idea of damages. How do we determine damages? How do we determine who’s a class members? So, I think moving forward, as the court starts to, or continues to wrestle with this, at least from our perspective, they go back to the understanding that individualized damages don’t defeat predominance, and we can still move forward with these class cases. But that’s where I see a real picking point right now in the industry itself.
Maher: All right. Well, that’s all really great information, Michael. Thanks again for speaking with me today.
Forrest: Thank you very much, John. Have a great day.
Maher: You too. And for more information, you can visit the Mazow McCullough website at helpinginjured.com, or call (978)744-8000.
