Salvas v. Wal-Mart Stores

(Massachusetts Supreme Judicial Court)

• Opposing inappropriate Class Actions

In this case before the Massachusetts Supreme Judicial Court NELF and AIM, appearing as amici in support of Wal-Mart, seek limitation or reversal of the Court’s so-called de minimis exception to the requirement that plaintiffs demonstrate class-wide injury to obtain class certification.  This exception was enunciated by the Court in the case of Aspinall v. Philip Morris Co., 442 Mass. 381 (2004), under the Massachusetts Consumer Protection Act, G. L. c. 93A.  The Wal-Mart case is not a consumer action, but rather an employment case alleging breach of implied contract and violation of the Massachusetts Wage-Hour Law, G. L. c. 149, in connection with missed or shortened meal and rest breaks.  Nonetheless, the trial judge invoked and addressed Aspinall’s de minimis exception in his decision denying class certification.  NELF and AIM argue that the exception should not apply in this case because there is no proof of virtually class-wide injury and, more generally, because the exception should not be applied outside the context of Chapter 93A, which has unique standards for class certification, to class actions governed instead by Rule 23 of the Massachusetts Rules of Civil Procedure.  Amici argue that strict enforcement of Rule 23 certification requirements is necessary to prevent abuse of class actions to extort settlements or even obtain damage awards far in excess of a defendant’s actual liability.  Amici further suggest that Aspinall’s de minimis exception is no longer viable even for class actions under Chapter 93A, given the Court’s decision in Hershenow v. Philip Morris Co., 445 Mass. 790 (2006),  that plaintiffs must have suffered actual injury to recover under that statute.  As amici explain, class certification is merely a procedural device and cannot change the substantive requirements of a cause of action.  Accordingly, it is unclear how even a consumer class could be certified, post-Hershenow, where some of the class members were not injured.