Bailiff: SJC-13173,
Charles Kingara
v. Secure Home Health Incorporated and others.
-: Attorney Moeslinger.
-: Good morning, Your Honors.
Raven Moeslinger on behalf of the appellant,
Charles Kingara.
May it please the court.
In classic litigation,
the most important interest that requires protection
is that of the absent class.
While there is a named plaintiff in a class case,
this court has described the absent class
as the real party in the interest.
Absent classes often consists of hundreds
or thousands of people whose rights are being adjudicated,
often without their direct input and knowledge,
so it is paramount that those individuals' rights,
consistent with due process, are protected.
This court has identified three actors
tasked with protecting class members' interests,
the named plaintiff, counsel, and the trial court judge.
As for counsel's obligation,
this court has identified a continuing obligation
to each class member,
whereas the majority of courts who have addressed the issue
have held that the council has a fiduciary duty
to class members, and that that duty arises
at the inception of the litigation.
Now, if there's a fiduciary duty
owed to absent class members,
there has to be concomitant authority
to act pursuant to that duty.
No court has spelled out specifically what actions
counsel can or should or must perform.
-: Counsel, counsel, can I?
I mean, yes,
but we gotta look at where we are in this case.
So, we have, you're representing one person.
You're bringing it as a putative class.
We haven't identified any other potential class members.
You know, right now,
it's sort of a figment of your imagination in certain ways.
You've not identified anyone.
You've had opportunities, I take it, for some discovery.
You've not come up with anybody,
so it's very premature to conclude
that this is even gonna be a class.
I mean, it's broad as a putative class,
but you're representing one party.
Your party dies, you don't even have
the personal representative authority to continue.
So, to give you sort of, you know,
this is different from cases where plaintiffs
have been identified or, you know,
it's clear that other people know about it.
As far as we know, this is just your case, right?
Your deceased client's case?
-: Well, Your Honor, what I would note is that
the reason, well, discovery hadn't really taken place,
because we were actually engaged
in class-wide settlement negotiations to resolve the case.
And then, second,
this court has not made that distinction before
when attempting to protect the rights
of putative class members.
And I would direct the court to its decision
in Chambers versus RDI Logistics Incorporated.
That's 476 MASS 95, 2016.
I was gonna address that later in my argument,
but I'll address it now.
That was a putative wage and hour class action,
and during the pendency of the class action
and before certification, the employer sent employees
who fell within the class definition letters
with $1,000 checks and releases of claims.
The plaintiff moved-
-: Yeah, but there you've got people who know about the case.
That's who we're worried about.
When there are people counting on you,
that's a whole different ball game than,
you know, you haven't identified anybody else
who even knows about this case.
-: Well, I think that would be, in most cases,
an impossible feat before taking discovery,
to have knowledge that other people know
about a putative class action.
And I don't believe that this court has ever held
that employees' rights can't be prejudiced
simply because the employees aren't aware
of a pending lawsuit.
-: Well, no, we focus on, I mean,
one, there's not a lot of case law out there,
but we focus on,
we give you some ability to push this idea
if we think there's prejudice out there,
but we don't want you using the court
as a solicitation device.
That's clear, meaning you're using the court
to sort of drum up business.
And that seems to be what you're doing here, isn't it?
-: Well, Your Honor, it is not.
Your Honor, we have a fiduciary duty
to absent class members
as soon as the case is filed as a class action.
The only way, if this case gets dismissed,
then the tolling
that those putative class members enjoyed ends.
-: And those, everybody can bring,
when your case ends, every single person
can bring an individual action,
or somebody else can bring a class action.
The only case who's over with is your deceased client,
and your personal representative
can hire someone else to proceed.
-: Well-
-: There's nobody prejudiced by
the fact that you can't get
the personal representative to hire you.
-: Well, Your Honor, I don't think
that a personal representative is an adequate solution
to protect the rights of absent class members.
-: You don't have any,
you haven't certified a class here.
You haven't identified another person who's harmed by this.
As far as we know, you're the only one, right?
-: Well, Your Honor, the courts don't,
many of the courts that have issued notice
before class certification
have issued notice when there's potential prejudice.
They haven't necessarily found actual prejudice.
-: Give me a case in which
there's nobody else out there identified.
I mean, I've read some of the cases cited.
There's usually people who become aware of this,
where it's a cause celebre.
Give me an example of a case where it's so premature,
it's so early in the process
and no one else has been identified
where notice is given out.
-: Well, Your Honor, the Seventh Circuit,
in Culver vs. City of Milwaukee issued notice
on grounds that, if the potential prejudice
was more than nil.
-: Yeah, but that's a case,
and I read Judge Posner's decision in that case.
He says this is the case
in which the police force is involved.
There are clearly people aware of this.
It's a big deal.
So it's not a case like this one,
which is an individual person.
That was a case where there was pretty clear
that other people were aware of it.
I mean, it was a police officer case, right?
-: Yes, Your Honor, but what I would,
I would point to cases in our brief,
there's one case, and the name is escaping me right now,
where the named plaintiffs ended up settling their case
before class certification,
and the court, and this is in a footnote,
the court issued notice.
It looked at all the circumstances and said, you know,
I don't think that anyone did anything wrong here
by resolving the case,
but we're still going to issue notice to the putative class,
you know, again, due to potential prejudice that may flow.
Your Honor, ultimately, this isn't really an issue
of soliciting new clients.
It's of giving people the notice
when they are potentially going to be prejudiced
by dismissal of a lawsuit.
I think, between sending out notice
and not sending out notice, the better result
is that the court issue notice to the putative class.
Again, it's consistent with due process
and ensures that any potential prejudice
from someone who may have found out about the lawsuit
or someone who simply doesn't know about their rights
can, you know, remedy that prejudice.
I mean, many courts, Your Honor, find that superior-
-: Can I ask you to identify the prejudice?
You're saying it's the lack of tolling.
Anything else?
-: Yes, Your Honor.
And also, if you look at the lawsuit
as it exists right now,
there is no representation for the putative class.
And so, they're not only missing,
not only is the present representation inadequate,
but they have no representation at all.
There's no one to vigorously prosecute the claims
on behalf of the putative class,
so I think, on those grounds alone, that is prejudice.
-: You brought up, Justice Wendlander, are you done?
Sorry.
So you brought up the example of the Culver case.
There, the Seventh Circuit was concerned that the lawyer
wasn't necessarily a good representative of the class,
because, you know, again,
sort of a lack of success in discovery,
a lack of success in identifying other clients,
a lot of motions that went nowhere.
Why should we be confident
that other class members want you?
You can't even identify,
you know, the personal representative.
You can't find the personal representative.
You can't get that person to hire you.
What makes us think you're gonna be
the right person to do this?
-: Well, Your Honor, we're not omniscient.
We don't know
the names and addresses a putative class members.
We don't have information.
The employer has that information,
but the named plaintiff and the class council
don't have that information at the outset of litigation,
and are not guaranteed to get that information
prior to the class certification.
So the idea that whether or not putative class members
ought to be-
-: Well, I think you spoke to your client
when you were hired.
I take it you asked your client who else works there,
you know?
Are they interested in joining this suit?
Don't we assume that level of interaction
between you and at least your client?
-: Well, I guess you'd be suggesting
that we would be engaged in
potentially soliciting new clients through our-
-: No, you're asking the court to basically solicit for you.
That's the thing that really gives me tremendous pause.
You're asking a court to send out a notice saying,
you know, basically, sue this defendant.
That adds the courts in perimeter
to your solicitation efforts in a significant way,
and that's what the cases caution
about this kind of notice about.
-: Well, Your Honor,
Rule 23D specifically tells the trial court
in order to ensure adequate representation
that one thing they can do is send out notice
to class members and invite them to intervene.
So this isn't some solicitation that I'm making up.
-: There's no class here.
-: Right, Your Honor, Rule 23D applies precertification,
and what I would, again,
I would point the court to its decision
in Chambers versus RBI Logistics, Incorporated.
-: That part I agree with,
that Rule 23D is broad enough maybe
to allow prior to the certification, but...
-: Well, Your Honor, then consistent with Rule 23D,
which specifically says that the trial court
can literally encourage people to intervene
and bring claims.
-: No, it doesn't encourage intervention and bringing claims.
That's not what the judiciary does.
It allows, it protects the interests of
people who've been reasonably identified
as potentially prejudiced.
It doesn't,
we're not into what one of the courts described as barratry,
you know, or helping you get clients.
That's not what the court's supposed to do.
-: Well, Your Honor, I don't see this as an effort
to try to get new clients.
There is no other way to avoid prejudice
when a case gets dismissed
with respect to putative class members,
other than a new named plaintiff
when there is no other class representative.
That is the only way to guarantee
that prejudice does not flow to putative class members.
If there is another method, I'd love to hear it,
but that is the sole method by which you can ensure
that people maintain the same statute of limitations
they otherwise have.
So, Your Honor, I would like to
sort of get back to the argument.
First, just very briefly, as I'm now running out of time,
is that, again, if we have a fiduciary duty
to act in the best interest of putative class members,
then the court ought to recognize
at least some limited authority by which we can act
pursuant to that fiduciary obligation,
and at a minimum, Your Honor,
asks that the name,
inform the trial court that the named plaintiff has passed
and requests that a notice the issue to the putative class.
And what I would note is that a personal representative
isn't a good solution to this.
A personal representative does not,
the named plaintiff in a class case has an obligation
to do what's in the best interest of putative class members,
but a personal representative doesn't.
They don't have to participate in the case at all.
They don't have to hire counsel.
They don't have to do anything
to assist putative class members in any way at all.
Now, even if we don't have that authority,
then the trial court certainly does and has wide discretion
with respect to issuing notice.
Rule 23D, this court has called the trial court
the guardian of the absent parties' interests,
and Rule 23D gives the trial court
tools to effect that duty.
The court can, at any stage of the action,
may require such security and impose such terms
that shall fairly and adequately
protect the interests of the class.
And the rule explicitly gives the court
the discretion to do that.
And, Your Honor, with respect to potential prejudice,
again, if this case gets dismissed, the putative class
no longer gets a favorable statute of limitations.
They literally begin to lose wages
as a result of dismissal of the case,
and that is the kind of protection that,
it warrants at least the issuance of notice,
so that, you know, consistent with due process,
that we can protect the interests of putative class members.
And again, I would point the court to the-
-: I'm sorry, I'm gonna just stop you right there.
Whenever somebody says again, that means we've got it,
so thank you very much,
and I'm gonna turn to Attorney Scott.
-: Thank you, Your Honor.
Catherine Scott on behalf of defendant appellee
Secure Home Healthcare.
This is not a class action case up until-
-: Well, it is a class,
I mean, it's a putative class action,
and he is right that, you know,
there's some flexibility on notice,
even prior to certification.
I'm not saying there is any right here,
but you do have to come to terms with the fact
that you don't need a certified class
to have some rights, right?
-: Well, I think that our initial argument would be,
as you pointed out, that we do not think that Rule 23D
applied in these circumstances,
but I think, assuming for the purposes of argument
that it could, the rule could apply in some circumstances
to operate to give the judge discretion to issue notice
prior to class certification,
it would not be in these circumstances.
And it would be in circumstances,
as we have identified in our brief, you know,
extraordinary circumstances where there is some evidence
of substantial harm to the putative class members
should they not receive notice.
-: But how does...
Go ahead, Justice Wendlander, sorry.
-: Now, what about the prejudice
articulated by opposing counsel, which was,
well, the only one that I understood
was the tolling of the statute of limitations.
-: Right, my understanding of counsel's argument
is actually even more narrow than that,
which is that what isn't tolled
is certain individuals' abilities
to bring their own class actions,
should this one be dismissed under China Agritech.
So what happens in the event that this action is dismissed
is that their tolling resumes
from the day that the complaint was filed.
So they're in no worse position than they would be,
for example, if class certification were denied,
and there's no requirement that notice be sent out
in that circumstance as well.
The consideration would be whether there is some actual,
tangible prejudice to putative class members
who have knowledge about the case and who were relying on it
to protect their interests,
for some reason, not bringing their own claims.
We don't have that here.
We don't have any evidence of that.
They are simply no different than any other plaintiff
out there who has not brought their claim.
So, with respect to the individual statute of limitations,
I don't believe that there would be any prejudice
to an individual who is potentially a putative class member
under this action.
Their statute of limitations would begin running
from the day that the complaint was filed.
They don't lose anything.
It's not as if they've lost the last three years,
it just begins running from the date
that the complaint was filed.
-: I'm confused how that would work practically.
So you're saying that if somebody else showed up right now
and stepped in, they would,
they would have the same toll,
everything would be tolled.
They would just step into the shoes of another,
but no one's gonna be notified,
so I'm confused how this is gonna work
as a practical matter.
-: I guess I'm confused as to which part,
if someone stepped into the class action,
or if someone brought another individual claim?
If someone brought another-
-: You're saying,
your opposing counsel is saying,
look, court, send out notice.
You know, to send out a notice that this thing
is gonna disappear, so that you can't basically free ride
off of me anymore because I've gone away.
And he does have a point.
You're not telling him who the other people are.
Now, that doesn't mean he can't figure out.
He shouldn't have been able to do that
through his own client, but at least somewhat,
at least to identify one or two other people.
But I do see a practical problem,
which is we don't know for sure
whether people are relying on him to keep this going,
and they're not being notified it's over.
So isn't there a potential prejudice there?
-: Well, I don't know about potential prejudice, Your Honor.
I think what the cases speak to
is whether there's actual prejudice,
whether there is actual evidence of putative class members
having relied on this action to protect their interests.
So, for example, we were talking about the Culver case.
I think if you look at the Culver case,
not only does it have all of the aspects
that you yourself were pointing out,
but it was also a class that had been certified
that was going to be decertified.
So there was some evidence
that there were putative class members
who knew about what was a class action
and what was no longer going to be a class action.
And if you compare those to the other cases
that we've cited in our brief,
such as Ballschmidt or Sapia, there is, in those cases,
the notice was denied because there was no evidence
that there was any prejudice to putative class members,
the same as here.
In the cases where notice was issued, there was, again,
ample evidence that putative class members
were relying on this action to protect their rights.
There was publicity both through the media and websites.
There were affidavits.
There were affidavits from council
saying that they had had discussions
with putative class members.
There was an acknowledgement from defense counsel
that putative class members knew.
So I think the question you're asking
is really whose burden is it at this stage of the action
to show that putative class members would be prejudiced?
And our argument is that it's the plaintiff's burden,
which brings us back to the initial issue,
which is there's no plaintiff.
There's no one to argue against.
There's no one to take discovery of.
We're essentially arguing with the court at this point
over whether notice is appropriate.
-: How about the cases, although neither side brings them up,
but the analogy where, you know,
the defendants buy off the one plaintiff, right?
The U.S. Supreme Court doesn't like that.
I know that no one's bought this person off, he died,
but is that different than, you know?
Again, why is that different?
-: I think the settlement cases are different.
I think they're different both
in sort of procedure of the case,
and they're different under Mass law versus federal law.
So I think, for Mass law,
when you're dealing with settlement, you know,
you have sort of, if you're settling the class,
you have no opt out.
So that would make sense that notice would go out,
because whoever that class is is bound to the settlement.
I think where you have an individual plaintiff
who's being bought off,
I think whether or not notice would be appropriate
in those cases would be on a case by case circumstance,
again, depending on how early it was in the action,
whether putative class members had notice,
whether they were relying on the named plaintiff
to protect their rights.
I think, you know, I think there could be circumstances
where notice might be appropriate,
but I don't think it's the same
as where you have a plaintiff who dies
before any discovery has taken place,
and before there's even any decision as to the merits
of the scope of the class.
-: So if this plaintiff dies,
and say we agree with you and we decide no notice goes out.
This plaintiff died, there's no personal representative,
so this class action, someone else is not precluded
from bringing a class action, right?
Even though there's no opt-out here.
If Mr. Moeslinger finds somebody new tomorrow,
he can bring a class action for that person, right?
Is that right or not?
-: I believe he could,
as long as the statute of limitations for that person
had not passed.
I think if the statute of limitations
for that individual had passed,
then they would not be able to be a representative
of a class under China Agritech,
but they would still have their individual claim,
so long as it was tolled based on this class action.
-: Okay, but again, remind me of how China whatever it is
works in this context.
So, again, Mr. Moeslinger's client dies.
He doesn't want to just represent the next person.
He wants to create a new class.
Is he able to do that?
Or does the China case somehow get in the way of that?
-: I don't think he does, as long as he has a plaintiff
who the statute of limitations on their claims have not run.
-: He can bring that case-
-: Without the tolling, correct.
-: Right, he can bring a class action,
but he has to start,
he doesn't have the benefit of your tolling
from your earlier class action,
or does he have the benefit of it?
-: For the purposes of the class action, he does not.
That person has the benefit for their individual claims,
but not for the class action.
I also think that China Agritech-
-: Well, but again, so what is the status
if, again, Mr. Moeslinger finds a new client
after we dismiss this, that class,
he can bring a class action for that client.
He can bring a class action.
It's just the statute of limitations is defined
for that class over again, right?
-: Right, correct.
And that person would maintain their individual claims
if they wanted to bring an individual action
and they were a part of this class.
They could argue they were a part of this class,
this putative class, dating back to 2016.
-: From what I understand, there's other, well, maybe,
does this record contain,
there's some record evidence
that there are other class actions here.
They're not against your client though, is that right?
-: That's correct.
There's at least one other that we're aware of
where Mr. Kingara was also the named representative.
And the reason that's included in the record, Your Honor,
is because it was part of the record in our case
for the argument made to the superior court judge
in support of issuing notice in this case.
I see my time is running out,
so I'll just sum up.
So we would argue that what the superior court did
in this matter is not only intrusive and disruptive
to Secure Home Health's business operations,
but is unprecedented under both state and federal law.
Because there is no party on the plaintiff's side,
the court is essentially acting as an advocate
for alleged class members in a case that has no plaintiff,
where there's been no discovery or other evidence
on the merits or the proper scope of the class,
no motion for class certification, and in fact,
only the barest allegations that class certification
would be appropriate in this matter.
If you look at the complaint itself,
which is that appendix,
eight and nine, paragraphs-
-: Just to put a fine point on it,
you're saying that the judge abused his or her discretion.
-: Well, I think it's a bit more complicated than that,
because we're answering the two certified questions-
-: Yeah, but you're arguing about prejudice to your client.
That's not my standard of review.
I'm trying to figure out what my standard is under Rule 23D.
-: Yes, I believe that 23D,
it would be an abuse of discretion,
whether or not if the judge issued notice
prior to class certification where there was no plaintiff.
And we would argue that it was,
especially where there's no evidence of prejudice,
where there was no hearing, no findings,
nothing except a filed complaint and an answer.
-: One thing that's a little tricky for us
is we've got certified questions here, right?
-: Yes, Your Honor. -: The certified questions,
you could still win,
but the certified questions sort of
limit the discretion of judges a lot.
If we adopted, for example,
your view that you have to have a certified class
in order to give notice, that's a big deal.
And that seems inconsistent with the case law,
because in certain circumstances
where we have identified potential plaintiffs,
there is prejudice.
So shouldn't we be answering the question that, yes,
in certain circumstances you can give notice, but not here.
That was the error.
Is that?
I mean, I know you want to sort of win big here,
but winning big is not necessarily,
that's requiring us to reverse some stuff out,
some of our case law, isn't it?
-: I'm not sure that's true.
I mean, as far as I'm concerned,
the Massachusetts case law on 23D,
most of that, Chambers, for example,
and the superior court cases that we cite,
that involves the first sentence of 23D,
with respect to whether the court can issue
a protective order for communications,
council's communications to putative class members
if it's abusive, if there's some harm,
or if there's some misleading communications.
It's quite different than what we have here.
I do think that, in these circumstances,
it's pretty clear that Rule 23D would not apply,
where you have a pre-certification putative class action
with no plaintiff.
And so, I think these circumstances are quite different.
I think, for purposes of argument and looking at Chambers,
there might be some circumstances
where it might be appropriate for a court to say,
hey, there have been these misleading communications.
We need to mitigate this.
Something needs to be sent out to putative class members
to do that, and again, the court would take a heavy hand
in managing the action,
which is really the purpose of Rule 23D,
to make sure that the putative class action is proceeding
on a balanced ground.
And I don't think that's what happened here,
but for purposes of your argument,
there might be some circumstances where communications,
notices to putative class members might be appropriate.