United States Court of Appeals
For the First Circuit
No. 02-1760
JILL ANN SMILOW, on her own behalf and on behalf of all others
similarly situated,
Plaintiff, Appellant,
v.
SOUTHWESTERN BELL MOBILE SYSTEMS, INC., d/b/a CELLULAR ONE,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Lynch, Lipez, and Howard, Circuit Judges.
Edward F. Haber with whom Todd S. Heyman and Shapiro Haber &
Urmy LLP were on brief for appellant.
Marcus E. Cohn with whom Jonathan Sablone, John Pagliaro, and
Nixon Peabody LLP were on brief for appellee.
March 7, 2003
LYNCH, Circuit Judge. This is an appeal from a decision
decertifying a class action brought by and on behalf of wireless
phone customers of Cellular One, the doing-business name of
Southwestern Bell Mobile Systems, Inc. The putative class members
are Massachusetts and New Hampshire residents who were charged for
incoming calls despite having signed a standard form contract, used
mainly between August 1994 and February 1996, purportedly
guaranteeing free incoming call service.
Class representative Jill Ann Smilow brought suit in 1997 for
breach of contract and violations of Massachusetts General Laws
chapter 93A, §§ 2(a), 9, 11 (West 1997), and the Telecommunications
Act (TCA) of 1996, 47 U.S.C. § 201(b) (2000). The district court
first certified and then decertified the contract, ch. 93A, and TCA
classes. This court vacated the decertification order and
remanded; the district court subsequently reinstated its
decertification order, Smilow v. S.W. Bell Mobile Sys., Inc., No.
97-10307-REK (D. Mass. Apr. 10, 2002) (memorandum and order). We
reverse.
I.
Smilow and proposed class representative Margaret L. Bibeau
each signed a standard form contract for cellular telephone
services with Cellular One in 1995. The form contract says,
"Chargeable time for calls originated by a Mobile Subscriber Unit
starts when the Mobile Subscriber Unit signals call initiation to
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C1's facilities and ends when the Mobile Subscriber Unit signals
call disconnect to C1's facilities and the call disconnect signal
has been confirmed." The parties contest the meaning of
"originated." Smilow alleges that this language precludes Cellular
One from charging for incoming calls. It is undisputed that a
large group of Cellular One customers signed the same contract and
were subject to charges for incoming calls. The contract contains
an integration clause providing that changes must be in writing and
signed by both parties.
Smilow and Bibeau purport to represent a class of
Massachusetts and New Hampshire residents who subscribed for
Cellular One services under this contract. The potential class
members all signed the standard form contract, which was in broad
use from August 1994 to February 1996. They did have a variety of
rate plans and usage patterns. Some Cellular One customers paid a
flat fee for a fixed number of minutes each month and an additional
per-minute charge if they exceeded this fixed amount of air time
(for example, $40/month for the first 300 minutes/month and 10
cents/minute thereafter). Many Cellular One customers paid
different rates for day- and night-time calls.
Cellular One charged Smilow, Bibeau and the potential class
members for incoming as well as outgoing calls. Smilow received
just one incoming call; Bibeau received many incoming calls.
Cellular One invoices clearly indicate that customers are charged
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for incoming calls. The user guide mailed to new Cellular One
customers also states that the company charges for both incoming
and outgoing calls. Bibeau paid her invoices knowing she was being
charged for incoming calls.
II.
On February 11, 1997, Smilow, as a purported class
representative, filed suit in federal district court against
Cellular One for breach of contract and violations of ch. 93A and
the TCA. The district court had jurisdiction over the federal
claims under 28 U.S.C. § 1331 (2000) and over the state law claims
under 28 U.S.C. § 1367. The district court originally certified
the ch. 93A, breach of contract, and TCA classes on October 9,
1998.1 The district court rejected an initial attempt to decertify
the classes for Smilow's incoming-calls claims. The court, with
the approval of both parties, then filed a scheduling order on
November 23, 1999 bifurcating the liability and damages issues on
the incoming calls claims and providing that liability would be
litigated to conclusion before further discovery or other
activities concerning damages took place.
On September 15, 2000, the district court held an "evidentiary
hearing" on plaintiffs' motion to substitute Bibeau as a new class
representative. Cellular One had opposed this motion partly on the
1
It later dismissed one of Smilow's claims, the "rounding-up"
breach of contract claim. That claim is not appealed.
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grounds that, because common issues of fact did not predominate
among the class members, neither Bibeau nor any other individual
could properly represent the class. Both parties stated that they
regarded the evidentiary record as adequate to allow the court to
rule on plaintiffs' motion and did not wish to make additional
submissions on this issue. Nonetheless, the district court issued
a memorandum and order on December 1, 2000 extending the time
period to submit evidence on the designation of Bibeau as a new
class representative.
On March 22, 2001, the district court granted defendants'
pending motion to decertify the "incoming call" class, on the
grounds that common issues of fact do not predominate.2 Smilow v.
S.W. Bell Mobile Sys., Inc., 200 F.R.D. 5, 9 (D. Mass. 2001). The
court explained its conclusion that individual issues predominated
as follows:
Proof that many persons (even if not as many as 275,000)
were billed for and paid charges for incoming calls in many
months is not enough to show that any specific amount of
damages could properly be found by a finder of facts at trial,
or that any aggregate amount could properly be found. Proof
of charges and payments is not evidence of harm or an amount
2
Plaintiffs had opposed decertification, saying that
individualized determinations would be unnecessary to establish
damages. They argued that the detailed billing history of Ms.
Bibeau produced by Cellular One, and submitted with plaintiffs'
memoranda, supported their contention that damages, causation, and
liability could be established using a mechanical process. If
there were a question regarding the need for individualized damages
hearings, plaintiffs argued, then they were entitled to discovery
on this issue. Plaintiffs contended that, in any event, common
issues predominated on the claim for ch. 93A statutory damages.
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of harm on the basis of which damages could be awarded in the
face of (i) a strong likelihood that services were received in
return for the billed payments and (ii) lack of admissible
evidence to rebut that strong likelihood.
Plaintiffs' assertions that causation will turn out to be
"a common issue," and that the amount of damages calculable
from defendant's records will "not be reasonably disputable,"
are not likely to be consistent with the record in this case
after further discovery, regardless of how much longer the
court allows for further discovery. To be a "common issue" in
the relevant sense, the issue must be one that does not
require separate dispute resolution processes for different
individuals who are said to have claims in "common."
Id. at 8. The court held that additional discovery would not
enable plaintiffs to show that common issues predominate for
causation and damages. The court opined that separate damages
hearings would be required for individual plaintiffs because (1)
"services were received in return for the billed payments" and (2)
particular class members had different plans and usage patterns.
Although the opinion and order purported to decertify all incoming-
call class claims, it contained no reasoning about the ch. 93A or
TCA claims.
In its March 22 opinion, the court also denied Bibeau's motion
to become a designated class representative. Id. at 6. The
district court provided little explanation of its decision to
deny the motion to designate Bibeau as a class representative.
It merely observed that the motion was "inadequately supported
on the record before the court and thus also not effective to
defeat the defense motion to decertify." Id.
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Plaintiffs sought discretionary appellate review of the
decertification order, pursuant to Fed. R. Civ. P. 23(f). On July
12, 2001, this court vacated the entire March 22, 2001
decertification order, noting that the district court had not
addressed the ch. 93A claim. Smilow v. S.W. Bell Mobile Sys.,
Inc., No. 01-8001, slip op. at 1-2 (1st Cir. July 12, 2001).
After remand and additional written submissions and oral
argument on the issue, the district court decertified the class for
the contract, ch. 93A, and TCA claims. Smilow, No. 97-10307-REK,
slip op. at 9 (D. Mass. Apr. 10, 2002).3 The district court
reinstated its March 22, 2001 decertification order, quoting the
order at length and stating that its earlier reasoning was correct.
The court then dismissed the ch. 93A claim class action on two
grounds. First, the court held that the class members would fall
into two groups: those who waived actual damages in favor of
statutory damages of $25 and those who claimed actual damages. The
court fell back on its original reasoning as to why the fact that
actual damages could be easily calculated by computer was
irrelevant. Second, the court held that individual issues
predominated on causation. Here, it relied on its earlier
rationale that, whatever the common contractual language, "services
3
The district court had allowed limited discovery, which
included permitting plaintiffs a circumscribed deposition of Susan
Quintiliani, a Cellular One business analyst responsible for
helping oversee the firm's billing system.
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were received in return for the billed payments." Although the
district court purported to be addressing issues of causation, it
again referred to supposed individual differences in the damages
calculations to show why causation had no common issues.
The district judge also denied plaintiffs' renewed motion to
designate Bibeau as a class representative on the grounds that she
had not "suffered the same injury as the class." Id. at 9.
Plaintiffs again appealed. This court granted plaintiffs
permission to appeal pursuant to Fed. R. Civ. P. 23(f).4
III.
A. Standard of Review
Orders certifying or decertifying a class are reviewed for
abuse of discretion. Califano v. Yamasaki, 442 U.S. 682, 703
(1979). A district court abuses its discretion when it relies
significantly on an improper factor, omits a significant factor, or
makes a clear error of judgment in weighing the relevant factors.
4
Rule 23(f) provides this court with discretion to hear an
interlocutory appeal of a district court order certifying or
decertifying a class. This court will normally grant Rule 23(f)
review when a class decertification ruling, apparently premised on
an abuse of discretion by the district court, would have the
practical effect of compelling a party to abandon a potentially
meritorious claim. Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d
288, 293-94 (1st Cir. 2000); accord Blair v. Equifax Check Servs.,
Inc., 181 F.3d 832, 834-35 (7th Cir. 1999); see 16 C.A. Wright,
A.R. Miller & E.H. Cooper, Federal Practice & Procedure § 3931, at
75 (2d ed. Supp. 2002); see also Fed. R. Civ. P. 23 advisory
committee's note ("Permission is most likely to be granted . . .
when, as a practical matter, the decision on certification is
likely dispositive of the litigation."). That is the situation
here.
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See Schubert v. Nissan Motor Corp., 148 F.3d 25, 30 (1st Cir.
1998). An abuse of discretion also occurs if the court adopts an
incorrect legal rule. Waste Mgmt. Holdings, Inc. v. Mowbray, 208
F.3d 288, 295 (1st Cir. 2000). Here the district court abused its
discretion in decertifying the contract class and the ch. 93A
class.5
B. Class certification
1. General Standards
A district court must conduct a rigorous analysis of the
prerequisites established by Rule 23 before certifying a class.
Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982). To obtain class
certification, the plaintiff must establish the four elements of
Rule 23(a) and one of several elements of Rule 23(b). Amchem
Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997). The Rule 23(a)
elements are (1) numerosity, (2) commonality, (3) typicality, and
(4) adequacy of representation. Id. at 613. From its earlier
certification order the district court necessarily concluded that
5
We quickly dispose of Cellular One's initial contention that
the only issue before us is the district court's holding that
common issues would not predominate in a ch. 93A claim for
statutory damages. The district court's March 22, 2001 opinion
decertified the contract, TCA, and ch. 93A classes. This court's
July 12, 2001 judgment vacated the first decertification order in
its entirety; it did not affirm on (or address) the breach of
contract or TCA classes or the ch. 93A actual damages class theory.
The April 10, 2002 order, which reinstated the March 22, 2001
order, again decertified the contract, TCA, and ch. 93A classes.
All issues from the April 10, 2002 order are now before us.
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the Rule 23(a) elements had been met.6
The district court decertified on the basis of its analysis of
Rule 23(b)(3), which requires, in pertinent part:
that the questions of law or fact common to the members
of the class predominate over any questions affecting
only individual members, and that a class action is
superior to other available methods for the fair and
efficient adjudication of the controversy.
The district court examined the predominance, but not the
superiority, requirement of Rule 23(b)(3).
2. The Predominance Requirement
The district court's decertification of the classes for the
contract, ch. 93A, and TCA claims, as well as its denial of the
motion to substitute a new class representative, all rested on
fundamental errors of law and fact. Once these errors are
corrected, it becomes clear that common issues as to both liability
and damages predominate on the elements of the breach of contract
and ch. 93A claims. We first consider the contract claim.
a. Breach of Contract Claim
The first error was initially contained in the following
statement from the district court's March 22, 2001 opinion
decertifying the class:
Proof of charges and payments is not evidence of harm or an
amount of harm on the basis of which damages could be awarded
in the face of (i) a strong likelihood that services were
received in return for billed payments and (ii) lack of
6
Southwestern Bell does not argue that any Rule 23(a)
requirements were not met.
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admissible evidence to rebut that strong likelihood.
Smilow, 200 F.R.D. at 8. In its April 10, 2002 memorandum and
order after remand, the district court repeated this language and
stated that it thought this analysis correct.
From this statement we understand the district court to have
believed that the defendant would be entitled to payment for
incoming calls on a theory of quantum meruit even if plaintiffs
were to prevail on their breach of contract claim. Under the
doctrine of quantum meruit, one who renders goods or services in
the absence of an enforceable contract may be entitled to payment
for those services to the extent the recipient benefitted from
them. See, e.g., Meng v. Trs. of Boston Univ., 693 N.E.2d 183, 187
n.4 (Mass. App. Ct. 1998). "If the plaintiff is entitled to
recover on a contract, he cannot recover in quantum meruit."
Marshall v. Stratus Pharms., Inc., 749 N.E.2d 698, 703 n.6 (Mass.
App. Ct. 2001). Though we do not decide the question here, it
would similarly seem that where a defendant is clearly not due
payment under the terms of an enforceable contract, such defendant
cannot claim a right to payment under quantum meruit. "Where . .
. there is an enforceable express or implied in fact contract that
regulates the relations of the parties or that part of their
relations about which issues have arisen, there is no room for
quasi contract." A.L. Corbin, Corbin on Contracts § 1.20 (J.M.
Perillo ed., rev'd ed. 1993).
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The district court's reliance on the doctrine of quantum
meruit led it to overlook questions of law and fact common to all
class members. As plaintiffs' brief says, "The plaintiffs' claims
are based entirely on a standard form contract which the defendant
used with every member of the class." The common factual basis is
found in the terms of the contract, which are identical for all
class members. The common question of law is whether those terms
precluded defendant from charging for incoming calls.
Cellular One's waiver defense is also common to the class.
"[A]ffirmative defenses should be considered in making class
certification decisions." Mowbray, 208 F.3d at 295. Again, both
the factual basis for and the legal defense of waiver present
common issues for all class members.7 All class members received
a user guide and monthly invoices showing that defendant charged
the class members for the incoming calls.
Even in the unlikely event that individual waiver
determinations prove necessary, the proposed class may still
satisfy the predominance requirement. See id. at 296. Courts
traditionally have been reluctant to deny class action status under
Rule 23(b)(3) simply because affirmative defenses may be available
against individual members. E.g., 6A Fed. Proc., L. Ed. § 12:248,
7
At oral argument defendant first advanced and then wisely
withdrew the argument that oral representations made by sales
representatives to potential customers would vary the contract
terms by customer and so defeat commonality. The contract contains
an integration clause.
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Defenses to Individual Members' Claims (2002) (citing cases); 32B
Am. Jur. 2d Federal Courts § 2018 & n.1 (2002) (citing cases); see,
e.g., Hoxworth v. Blinder, Robinson & Co., 980 F.2d 912, 924 (3d
Cir. 1992) ("Given a sufficient nucleus of common questions, the
presence of the individual issue of compliance with the statute of
limitations has not prevented certification of class actions in
securities cases.") (internal quotation omitted); Cameron v. E.M.
Adams & Co., 547 F.2d 473, 478 (9th Cir. 1976) (same). See
generally Mowbray, 208 F.3d at 295 (identifying statute of
limitations as an affirmative defense).
Instead, where common issues otherwise predominated, courts
have usually certified Rule 23(b)(3) classes even though individual
issues were present in one or more affirmative defenses. See,
e.g., In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124,
138-40 (2d Cir. 2001); Hoxworth, 980 F.2d at 924; Cameron, 547 F.2d
at 477-78. After all, Rule 23(b)(3) requires merely that common
issues predominate, not that all issues be common to the class. In
re Prudential Ins. Co. of Am. Sales Practices Litig., 148 F.3d 283,
315 (3rd Cir. 1998); see 5 J.W. Moore, Moore's Federal Practice §
23.46[.1], at 23-206 to 23-207 (3d ed. 1997 & Supp. 2002). If,
moreover, evidence later shows that an affirmative defense is
likely to bar claims against at least some class members, then a
court has available adequate procedural mechanisms. In re Visa
Check/MasterMoney Antitrust Litig., 280 F.3d at 141 (describing
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procedural options and collecting authorities); 1 H. Newberg & A.
Conte, Newberg on Class Actions § 4.26, at 4-91 to 4-97 (3d ed.
1992) (same). For example, it can place class members with
potentially barred claims in a separate subclass, 29A Fed. Proc.,
L. Ed. 70:411 & n.69, Predominance of Common Issues (2002) (citing
cases); see Fed. R. Civ. P. 23(c)(4)(B), or exclude them from the
class altogether, In re Visa Check/MasterMoney Antitrust Litig.,
280 F.3d at 141; 6A Fed. Proc., supra, § 12:248 & n.6 (citing
cases).
Cellular One argues that even if there are common questions of
law and fact, the district court did not abuse its discretion by
decertifying the class because individual issues predominate on
damages. This is largely an issue of whether plaintiffs could use
a computer program to extract from Cellular One's computer records
information about individual damages. The district court viewed
this question as mostly beside the point and its decertification
orders rested mainly on other grounds.
The individuation of damages in consumer class actions is
rarely determinative under Rule 23(b)(3). Where, as here, common
questions predominate regarding liability, then courts generally
find the predominance requirement to be satisfied even if
individual damages issues remain. In re Visa Check/MasterMoney
Antitrust Litig., 280 F.3d at 139; Bogosian v. Gulf Oil Corp., 561
F.2d 434, 456 (3d Cir. 1977); Gold Strike Stamp Co. v. Christensen,
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436 F.2d 791, 798 (10th Cir. 1970); 5 Moore, supra, § 23.46[2][a],
at 23-208 & n.11 (collecting additional cases); 4 Newberg & Conte,
supra, § 18.27, at 18-89; see Blackie v. Barrack, 524 F.2d 891, 905
(9th Cir. 1975) ("The amount of damages is invariably an individual
question and does not defeat class action treatment.").8
There is even less reason to decertify a class where the
possible existence of individual damages issues is a matter of
conjecture. See Mowbray, 208 F.3d at 298-99. Common issues
predominate where individual factual determinations can be
accomplished using computer records, clerical assistance, and
objective criteria -- thus rendering unnecessary an evidentiary
hearing on each claim. See Roper v. Consurve, Inc., 578 F.2d 1106,
1112 (5th Cir. 1978), aff'd on other grounds sub nom., Deposit
Guar. Nat'l Bank v. Roper, 445 U.S. 326 (1980); 5 Moore, supra, §
23.46[3], at 23-210 & n.18 (collecting cases holding that class
certification is appropriate where damages are calculable by
mathematical formula).
Still, the parties here dispute whether it will be possible to
establish breach, causation, and damages using a mechanical
process. Cellular One argues that Smilow has not shown that she
could use defendant's computer records either to distinguish the
8
Courts have denied class certification where these
individual damages issues are especially complex or burdensome.
See 5 Moore, supra, § 23.46[2][b], at 23-209 & n.17. That does not
appear to be the case here.
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subset of incoming call recipients who exceeded their monthly
allotment of "free" minutes or to calculate how much extra each
class member was charged as a result of receiving incoming calls.
The plaintiffs' expert, Erik Buchakian, says he could
fashion a computer program that would extract from Cellular One's
records (1) a list of customers who received incoming calls during
the class period; (2) a list of customers who paid extra during the
class period because they were billed for incoming calls; and (3)
actual damages for each class member during the class period.
Buchakian had access to more than adequate materials --
including a sample computer tape and the deposition of
defendant's expert -- and has more than adequate expertise --
degrees in business and computer science and thirteen years of
relevant work experience. The affidavits of defendant's
expert, Susan Quintiliani, are consistent with Buchakian's
conclusions.
If later evidence disproves Buchakian's proposition, the
district court can at that stage modify or decertify the class, see
Gen. Tel. Co., 457 U.S. at 160 ("Even after a certification order
is entered, the judge remains free to modify it in light of
subsequent developments in the litigation."), or use a variety of
management devices, In re Visa Check/MasterMoney Antitrust Litig.,
280 F.3d at 141; 1 Newberg & Conte, supra, § 4.26, at 4-91 to 4-97.
Indeed, even if individualized determinations were necessary to
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calculate damages, Rule (23)(c)(4)(A) would still allow the court
to maintain the class action with respect to other issues. See,
e.g., In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d at
141; Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1197 (6th
Cir. 1988); Jenkins v. Raymark Indus., Inc., 782 F.2d 468, 470-71
(5th Cir. 1986).
Consideration of the policy goals underlying Rule 23(b)(3)
also supports class certification. The class certification
prerequisites should be construed in light of the underlying
objectives of class actions. S.S. Partridge & K.J. Miller, Some
Practical Considerations for Defending and Settling Products
Liability and Consumer Class Actions, 74 Tul. L. Rev. 2125, 2129
(2000); see Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th
Cir. 1997); see also Fed. R. Civ. Pro. 23(b)(3) advisory
committee's note (construing predominance as a prerequisite for
obtaining economies of scale). Rule 23(b)(3) is intended to be a
less stringent requirement than Rule 23(b)(1) or (b)(2). See
Amchem Prods., Inc., 521 U.S. at 615 ("Framed for situations in
which class-action treatment is not as clearly called for as it is
in Rule 23(b)(1) and (b)(2) situations, Rule 23(b)(3) permits
certification where class suit may nevertheless be convenient and
desirable.") (internal quotations omitted). The core purpose of
Rule 23(b)(3) is to vindicate the claims of consumers and other
groups of people whose individual claims would be too small to
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warrant litigation.9 See id. at 617 ("While the text of Rule
23(b)(3) does not exclude from certification cases in which
individual damages run high, the Advisory Committee had dominantly
in mind vindication of the rights of groups of people who
individually would be without effective strength to bring their
opponents into court at all.") (internal quotations omitted); Mace,
109 F.3d at 344 ("The policy at the very core of the class action
mechanism is to overcome the problem that small recoveries do not
provide the incentive for any individual to bring a solo action
prosecuting his or her rights. A class action solves this problem
by aggregating the relatively paltry potential recoveries into
something worth someone's (usually an attorney's) labor."); see
also Roper, 445 U.S. at 338 n.9 ("A significant benefit to
claimants who choose to litigate their individual claims in a
class-action context is the prospect of reducing their costs of
litigation, particularly attorney's fees, by allocating such costs
among all members of the class who benefit from any recovery.").
In this case, the claims of most if not all class members are
too small to vindicate individually. Smilow, for example, received
9
Classes such as this one that are made up of consumers are
especially likely to satisfy the predominance requirement. See
Amchem Prods., Inc., 521 U.S. at 625 (observing that the
predominance requirement is especially likely to be satisfied in
consumer fraud and antitrust actions); see also P. Venugopal, Note,
The Class Certification of Medical Monitoring Claims, 102 Colum. L.
Rev. 1659, 1683-84 (2002) (observing that the "sufficient level of
predominance is not high" for class action suits vindicating the
rights of consumers who purchased defective products).
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just a single incoming call and so can obtain only minimal contract
damages.
Overall, we find that common issues of law and fact
predominate here. The case turns on interpretation of the form
contract, executed by all class members and defendant. See W.D.
Henderson, Reconciling the Juridical Links Doctrine with the
Federal Rules of Civil Procedure and Article III, 67 U. Chi. L.
Rev. 1347, 1373-74 (2000) (the fact that prospective class members
signed nearly identical consumer contracts might, in itself,
satisfy the predominance requirement).
b. The Ch. 93A Class
The decertification of the ch. 93A class is similarly flawed:
it also rests on the premise that individual inquiries would be
required because "services were received" for the charges on
incoming calls.
As plaintiffs' brief says, "the Ch. 93A claim is not an oral
misrepresentation claim, but [is] based on the same standard form
contract which was signed by all class members." See generally
Anthony's Pier Four, Inc. v. HBC Assoc., 583 N.E.2d 806, 821 (Mass.
1991) ("[C]onduct in disregard of known contractual arrangements
and intended to secure benefits for the breaching party constitutes
an unfair act or practice for ch. 93A purposes."). Cellular One
points to law to the effect that a mere breach of contract is not
a ch. 93A violation. See Whitinsville Plaza, Inc. v. Kotseas, 390
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N.E.2d 243, 251 (Mass. 1979). That defense, though, argues for,
not against, the commonality of liability issues. Plaintiffs
disclaim any intent to rely on oral misrepresentations, and must
adhere to that position or risk losing class status.10
Our prior discussion is adequate to dispose of any argument
that decertification would be required because of a need for
individual damages determinations. Since Smilow can compute actual
damages using a computer program, we need not address plaintiffs'
argument that common issues would predominate only on a claim for
statutory damages, and not on a claim for individual damages.11 As
to statutory damages, the Supreme Judicial Court has held that
plaintiffs who cannot show actual damages under ch. 93A may
nonetheless obtain statutory damages if liability is established.
Leardi v. Brown, 474 N.E.2d 1094, 1101-02 (Mass. 1985) (awarding
statutory damages under ch. 93A § 9(3)). This too supports class
10
We doubt that defendants will rely on oral representations.
If its sales representatives, familiar with the terms of the
contract, represented that there would be a charge for incoming
calls without notifying the consumers that the contract language
could be read differently, that could be viewed as evidence in
plaintiffs' favor of an unfair or deceptive act. If the sales
representatives represented that there would be no charge for
incoming calls and the customer was charged, then that is also
evidence in plaintiffs' favor.
11
Section 9 allows plaintiffs to recover the greater of actual
damages or twenty-five dollars; Section 11 allows plaintiffs to
recover actual damages. Both sections allow plaintiffs to recover
double or treble damages if the violations were willful or knowing
or if the refusal to grant relief upon demand was made in bad
faith. Mass. Gen. Laws ch. 93A, §§ 9(3), 11.
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certification.
We are left with the district court's concern that any ch. 93A
class would be composed of two groups: a statutory damages group
and an actual damages group. But plaintiffs' position is that
should any conflict develop between the two groups, the action
would seek only statutory damages, class members would be given
notice to that effect, and those who wish to pursue individual
claims for actual damages could opt-out. We agree this is an
option and, in this context, the hypothetical conflict provides no
basis for decertification.
c. The Telecommunications Act Claim
Though the district court decertified the class for all
claims, Smilow's appellate briefs and oral argument completely
ignore its TCA claim. Issues raised on appeal in a perfunctory
manner (or not at all) are waived. Ryan v. Royal Ins. Co., 916
F.2d 731, 734 (1st Cir. 1990). Smilow has therefore waived her
argument that the district court improperly decertified the class
in the TCA claim. See Penobscot Indian Nation v. Key Bank, 112
F.3d 538, 563 (1st Cir. 1997).
IV.
We reverse the orders decertifying the class under the
contract and ch. 93A theories. On remand, there should be
reconsideration of the denial of class representative status to
Bibeau. To the extent the denial rested on the decertification of
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the class, this opinion disposes of that ground. Costs are awarded
to plaintiffs. So ordered.
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