/>iThis summer, the First Circuit revived a privacy class action based on debt collection practices. In Nightingale v National Grid USA Service Company, the district court granted summary judgment in favor of the defendants and denied class certification. On appeal, the First Circuit vacated and remanded, focusing its analysis on (1) whether the Plaintiff alleged a cognizable injury and (2) whether the injuries alleged met the predominance requirement to certify the putative class. In both instances, the First Circuit determined that, because the answer was yes, the case should proceed before the district court.
Background on the Nightingale Case
Robert Nightingale owed money to National Grid, which enlisted two debt collection services, First Contact and iQor, to collect his debt. Under Chapter 93A, Section 2 of the Massachusetts Consumer Protection Act, a debt collection service is not allowed to initiate communication with a debtor more than twice in one 7-day period. After months of allegedly excessive calls from debt collectors, Nightingale brought a putative class action suit against National Grid, First Contact, iQor for privacy-related injuries and emotional distress under Chapter 93A and sought to certify a class of all residents of Massachusetts to whom the defendants initiated excessive calls.
In two separate decisions, the District Court of Massachusetts granted summary judgment to the defendants, holding that Nightingale had not pled a cognizable injury under Chapter 93A, and denied class certification for lack of predominance. In its opinion, authored by Judge Kayatta, the First Circuit vacated the denial of certification and remanded the decision back to the District Court under an “abuse of discretion” standard of review.
The First Circuit’s Analysis of Cognizable Injury, Vacating the District Court’s Summary Judgment Decision
To establish a cognizable injury under Chapter 93A, Section 9 of the Massachusetts Consumer Protection Act, a plaintiff must first claim an “unfair or deceptive act” prohibited in Section 2. Next the plaintiff must identify a “distinct injury or harm” that “arises from” the claimed act. According to the First Circuit’s analysis, the Section 2 violation occurred when the debt collector initiated communication with the debtor via telephone—when the debtor was “able to” to receive the call. With a Section 2 violation established, the Court held that “the mere receipt of unwanted communication causes a cognizable privacy-related injury under Section 9.”
Interestingly, the First Circuit’s opinion in Nightingale does not broach whether a concrete, injury-in-fact had occurred pursuant to Article III, solely analyzing cognizable injuries under Section 9, Chapter 93A. Article III constitutional standing was not an argument emphasized by the parties in their briefing on appeal, which instead focused on the statutory construction of Chapter 93A itself in concert with the Massachusetts Supreme Judicial Court’s guidance in the 2013 decision Tyler v. Michaels Stores, Inc. In Tyler, the SJC explained that a per se statutory violation of Section 2 itself is not sufficient injury because the statute’s “has been injured” requirement is an “identifiable harm” separate from the underlying statutory violation, memorializing a departure from Leardi v. Brown. Perhaps, in the Court’s view, a Plaintiff who alleges a cognizable injury under the exacting formula of Section 9, Chapter 93A de facto alleges an Article III injury-in-fact by demonstrating more than a mere procedural violation, obviating the need for duplicative discussion.
Because Cognizable Injury Underpinned Denial of Class Certification for Predominance, the First Circuit Remands
Under Federal Rule 23(b), to certify a class, a plaintiff must show that “questions of law or fact common to class members predominate over any questions affecting only individual class members.” And to establish predominance, as set forth in In re Asacol Antitrust Litig., a Court must be able to “deal with dissimilar class member claims in a manner that is not “inefficient or unfair.”
In Nightingale, the District Court denied class certification on predominance grounds, claiming that Nightingale’s invasion of privacy claim under Section 9 of 93A would require “individualized factual inquiries into the severity of the intrusion of each class member’s privacy.” The First Circuit determined “mere receipt” of excessive calls against the proposed class members was “common proof” that the “Defendants invaded each class member’s privacy.”
This result stands in marked contrast to In re Asacol. In this antitrust suit, the plaintiffs alleged that the manufacturer of a drug prevented generic versions of the drug from entering the market. The issue of predominance arose because roughly ten percent of the class members would not have switched to a lower-cost generic version of the drug even if it was available. Rule 23 does not require every class member to demonstrate standing when a class is certified (which would “put the cart before the horse”) but does require a “reasonable and workable plan” for identifying class members that does not “cause individual inquiries to overwhelm common issues.” Since “injury-in-fact [would] be an individual issue” the First Circuit reversed the lower court’s grant of certification.
Understanding the Court’s analysis of what constitutes a cognizable injury (whether under Chapter 93A or Article III) is crucial to squaring predominance in In re Asacol with Nightingale. In In re Asacol, the court found that the plaintiffs had demonstrated a concrete injury (lost money due to the generic drug being excluded from the market) but not the class they sought to certify. Contrastingly, in Nightingale, the class that Nightingale sought to certify consisted wholly of consumers for whom there were records of excessive calls, leading the First Circuit to vacate the district court’s denial. This razor-thin distinction accounts for the drastically different outcomes in the two cases, despite compelling questions raised by the defendants concerning individualized questions about the occurrence and circumstances of each alleged invasion of privacy.
Conclusion
The First Circuit’s Nightingale decision is an intriguing example of the ways a federal court may recognize a cognizable injury without conducting an analysis into Article III constitutional standing and how that analysis becomes crucial to establishing predominance to certify a putative class. It will be interesting to take stock in future cases of how the Nightingale decision shapes plaintiffs’ efforts to tether their injury strictly to the confines of Chapter 93A according to a definition that assumes predominance, and whether defendants will meet this framing by raising a separate, and potentially more exacting, Article III constitutional standing challenge, including whether predominance assumptions are warranted.
