Consumer protection – Collection calls – ‘Injury’

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Where the plaintiff in a putative class action involving allegedly badgering phone calls made to debtors has moved to certify a question of law to the Supreme Judicial Court concerning whether there can be a per se violation of §2(a) of G.L.c. 93A by the initiation of more than two calls in a seven-day period, thereby constituting an “injury” under §9, that motion should be denied because the SJC has already answered that question in the negative.

“This putative class action involves allegedly badgering phone calls made to debtors in excess of the number of calls allowed by state regulations. Pending before the Court are the motions of plaintiff, Robert Nightingale (‘plaintiff’) 1) to certify a question of law to the Massachusetts Supreme Judicial Court (‘SJC’) pursuant to Mass. S.J.C. R. 1:03 and 2) for class certification pursuant to Fed.R.Civ.P. 23(b)(3). For the following reasons, both motions will be denied. …

“The area of law in which plaintiff seeks clarification is the Massachusetts Consumer Protection Act, Mass. Gen. L. 93A, §2(a) et seq. Under §2(a), businesses are forbidden from engaging in ‘[u]nfair or deceptive acts or practices in the conduct of any trade or commerce.’ By regulation, §2(a) has been interpreted to include contacting a debtor by telephone or other electronic means ‘in excess of two such communications in each seven-day period.’ 940 Mass. Code Regs. §7.04(1)(f). When a debt collector violates §2(a) in that manner, the Attorney General may bring enforcement actions against any person it believes to be in violation of the regulation, regardless of whether the violation resulted in harm. … Alternatively, an individual consumer may bring a private cause of action if that individual was ‘injured.’ …

“Plaintiff seeks certification to address the question of whether collection calls that were initiated in violation of the regulation but not received by the debtor constitutes an ‘injury’ that can form a basis for a private cause of action under §9. Plaintiff asserts that the First Circuit incorrectly implied that it does not and that such a conclusion conflicts with SJC precedent. After careful consideration of the parties’ arguments and briefing, however, the Court finds that it is unnecessary to certify plaintiff’s proposed questions of law to the SJC in this case. …

“… He would have this Court ask the SJC whether there can be a per se violation of §2(a) by the initiation of more than two calls in a seven-day period, thereby constituting an ‘injury’ under §9. As the First Circuit recognized the SJC has, however, already answered that question in the negative. …

“Applying that precedent, other sessions of this Court have similarly found that a violation of the applicable regulation, unmoored from allegations of a separate injury, cannot sustain a private cause of action under §9. …

“Because the First Circuit’s decision, the cases it cites and other available precedent sufficiently define the meaning of ‘injury’ for purposes of a Chapter 93A claim, the Court finds no absence of controlling precedent that would warrant certification of a question to the SJC. … Plaintiff’s motion to that effect will therefore be denied.”

Certification request

“Plaintiff further moves to certify a putative class under Fed. R. Civ. P. 23(b). …

“The primary concern with respect to plaintiff’s proposed class certification, assigned to this Court to address on remand, is whether plaintiff’s proposed class satisfies the predominance requirement of Rule 23 (b). …

“As a threshold matter, the regulation limits its scope to a ‘debtor.’ 940 Mass. Code Regs. 7.03. … Based upon uncontroverted evidence from defendants’ expert, the putative class here contains both residential and commercial accounts. Both criteria would, moreover, require manual, individualized review before it would be possible to ascertain the class.

“The scope of the regulation is further limited to those whose debts are ‘more than 30 days past due.’ … Determining the status of a debt, and thus ascertaining the class, would similarly require extensive, individualized, manual review that plaintiff’s own supporting exhibits concede would be exceedingly difficult to conduct.

“Finally, the regulation excludes a creditor’s communications, even if in excess of the restricted number of calls, provided the communication was made ‘in response to a request made by the debtor.’ … Plaintiff’s response is that such requests are uncommon but he does not explain how such persons could be exempted from the putative class nor rebut evidence proffered by defendants’ expert. Making that determination becomes all the more difficult in light of the more than 53,000 customer accounts associated with the putative class and 13,000 additional accounts associated with the putative sub-class.

“Although any one of these difficulties in establishing the putative class might not prevent certification, … their cumulative effect is dispositive of the predominance requirement. Defendants have a right to litigate the many foreseeable defenses they have under Chapter 93A. …”

Nightingale v. National Grid USA Service Company, Inc., et al. (Lawyers Weekly No. 02-066-25) (13 pages) (Gorton, J.) (Civil Action No. 19-12341-NMG) (Feb. 12, 2025).

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