The trial court in this case declined to certify under M.R.C.P. 23 a class of Wal-Mart employees alleging missed meal and rest breaks. In doing so, the trial judge invoked the so-called de minimis exception to the requirement of class-wide injury for consumer class actions under G. L. c. 93A. The de minimis exception, commonly understood as arising from the Court’s decision in Aspinall v. Phillip Morris Cos., 442 Mass. 381 (2004), as characterized by Justice Cordy in his dissenting opinion in that case, would permit a class to be certified under c. 93A even though some class members have not been injured.
NELF, in an amicus brief filed in Salvas on behalf of itself and the Associated Industries of Massachusetts, argued in support of Wal-Mart that this purported de minimis rule under c. 93A’s class action provision was inapplicable to this Rule 23 certification. NELF argued further that the de minimis exception was no longer viable even for c. 93A class actions after the Court’s decision in Hershenow v. Enterprise Rent-A-Car Co., 445 Mass. 802 (2006), confirming that consumers must have suffered actual injury to recover under c. 93A. NELF explained that this substantive requirement may not be avoided through the mere procedural device of a class action.
Apparently persuaded on this point, the SJC in Salvas rejected the common interpretation of its Aspinall decision as having created a de minimis exception to the requirement of class-wide injury for certification under c. 93A. The Court explained that it found certification proper in Aspinall because, since the suit alleged economic harm and class members “alleged that they purchased the [purportedly light] cigarettes at a price that was higher than it would have been had the true properties of the cigarettes been honestly advertised,” there was an adequate showing that all class members had, in fact, been injured. The Court further noted that its majority opinion in Aspinall “does not mention a ‘de minimis’ requirement” and proceeded to reject a de minimis test in the context of Rule 23 certifications. While the Court’s decision raises other concerns, discussed at NELF’s October 2008 Board meeting, its rejection of a de minimis standard for either c. 93A or Rule 23 class certifications provides welcome clarification.