This is an interlocutory appeal from an order of a Superior Court judge certifying a plaintiff class under Mass. R. Civ. P. 23, 365 Mass. 767 (1974). Three defendants, Glaxo Wellcome Inc. (Glaxo); Hoffmann-La Roche, Inc. (Roche); and Warner-Lambert Company (Warner-Lambert), sought review of the order, pursuant to G. L. c. 231, § 118, first par. A single justice of the Appeals Court denied the defendants' petition, but granted them leave to appeal from his denial to the full court. We transferred the case here on our own motion. We affirm the class certification order.
1. Background. The plaintiffs, John Weld, Jr., and Jeffrey A. Kelley, filed a civil action against several defendants, including CVS Pharmacy, Inc. (CVS), Merck & Co., Inc. (Merck), and the three defendants that have appealed. The subject matter of the complaint was a "patient compliance program" (program) devised by CVS whereby letters would be mailed to selected sets of its pharmacy customers at the behest of selected pharmaceutical manufacturers.
The program worked as follows. Each manufacturer provided CVS with specific selection criteria for a mailing. The selection criteria were designed to identify customers with particular medical conditions based on their prescription histories, or to identify customers who had filled prescriptions for drugs manufactured by the participating pharmaceutical companies. The manufacturers also provided CVS with the content of the letter that was to be sent to those customers who satisfied the criteria. CVS collected and scanned its pharmacies' databases according to the manufacturers' criteria. The actual merging of the letters with customers' names and addresses occurred at CVS corporate headquarters in Rhode Island and the offices of defendant Elensys, a database marketing company. The letters were printed on CVS letterhead and the name of the sponsoring manufacturer appeared at the bottom. Each letter recommended a different course of action including, for example, promoting the use of drugs manufactured by the sponsoring manufacturer ("switch letters"), reminding users of a specific drug to refill their prescriptions, or suggesting that recipients speak to their doctors about health risks associated with the medical condition for which they had purchased prescription drugs from CVS. CVS contracted independently with each manufacturer, who was each charged a fee based on the number of letters sent. These fees appear to have been the exclusive source of funding for the program.
The plaintiffs had had prescriptions filled at CVS pharmacies in Massachusetts. Sometime in 1997, Kelley, a diabetic, received
All the defendants maintained that the program was simply a method CVS devised to send its customers beneficial health and medical information. However, in response to negative media attention the program received in February, 1998, the filing of the original complaint, and an investigation by the Board of Registration in Pharmacy, CVS suspended the program. During discovery, CVS represented that it had voluntarily terminated the program.
Because money damages are not incidental to the relief sought by the proposed class and because rule 23 does not provide a mechanism by which plaintiffs can "opt out" of the class, the motion judge denied the plaintiffs' request for certification of a nationwide class of all CVS customers. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811 (1985). The judge also ruled that Weld lacked standing to raise a claim on behalf of the proposed class because he had not received any letter from CVS and therefore suffered no injury. See Doe v. The Governor, 381 Mass. 702, 705 (1980). Correspondingly, because Weld had no standing, his claim was deemed not typical of the class and he was precluded from serving as a plaintiff representative. Kelley, who did receive a letter, was determined to be a proper representative of a class of Massachusetts residents who actually received mailings. Members of that class make up approximately two per cent of CVS's customers in the Commonwealth.
2. Standard of review. The decision to grant or deny class
The defendants suggest that the judge abused his discretion because he certified the class without holding an evidentiary hearing. Although it is within a judge's discretion to hold an evidentiary hearing, there is no such requirement. See Fletcher v. Cape Cod Gas Co., 394 Mass. 595, 597 (1985) (no abuse of discretion where judge "conducted a hearing on the plaintiffs' motion for class certification [and] consider[ed] relevant factual materials submitted by the parties"). Here, the motion judge reviewed the pleadings, affidavits, briefs, and the earlier
3. Rule 23. Under rule 23, a plaintiff must show that (1) the class is sufficiently numerous to make joinder of all parties impracticable, (2) there are common questions of law and fact, (3) the claim of the named plaintiff representative is typical of the claims of the class, and (4) the named plaintiff will fairly and adequately represent the interests of the class. See Mass. R. Civ. P. 23 (a). In addition, a plaintiff must show that common questions of law and fact predominate over individualized questions, and that the class action is superior to other available methods for fair and efficient adjudication of the controversy.
The defendants do not contest the judge's determination that the plaintiffs satisfied the numerosity or commonality elements, but argue that the plaintiffs failed to meet their burden of proof on the elements of typicality under 23 (a), and the predominance and superiority requirements under 23 (b).
Although the plaintiffs bear the burden of establishing that the class meets the requirements of rule 23, this burden must be construed within the framework of the broad discretion judges
(a) Typicality. The judge ruled that Weld failed to satisfy the typicality requirement because, having suffered no injury, he lacked standing to raise any claim. The defendants argue that, by extension, Kelley fails to satisfy the typicality requirement because the letter he received from CVS was sponsored only by Merck. They contend that, as Kelley's alleged injury is not the result of their conduct, his claim is not typical of the class. See Carpenter v. Suffolk Franklin Sav. Bank, 370 Mass. 314, 317 (1976).
Typicality is established when there is "a sufficient relationship... between the injury to the named plaintiff and the conduct affecting the class," and the claims of the named plaintiff and those of the class "are based on the same legal theory." 1 H. Newberg, Class Actions § 3.13, at 3-76 (3d ed. 1992). This alignment of claims and legal theories ensures that the named plaintiff, in "pursu[ing] his or her own self-interest... will advance the interests of the class members." Id. at § 3.13, at 3-75. A plaintiff representative normally satisfies the typicality requirement with "an allegation that the defendant acted consistently toward the [representative and the] members of a putative class." Fletcher v. Cape Cod Gas Co., supra at 606. See Spear v. H.V. Greene Co., 246 Mass. 259, 266 (1923).
That standing and typicality are related concepts becomes most clear in a situation such as the one presented here. One might argue that Kelley lacks standing to raise these particular claims against these particular defendants, or one might instead argue that Kelley is not typical of the class because his direct claims are against CVS and Merck, while the unnamed members of the class have, variously, claims against Glaxo, Roche and Warner-Lambert.
The Supreme Court has held that, because art. 3 of the United States Constitution limits the jurisdiction of Federal courts to actual cases and controversies, a plaintiff who lacks standing and who, therefore, has no case or controversy, cannot invoke the Federal rules to bring a claim on behalf of a class. See Warth v. Seldin, 422 U.S. 490, 501 (1975). State courts, however, are not burdened by these same jurisdictional concerns and, consequently, may determine, particularly when class actions are involved, that concerns other than standing in its most technical sense may take precedence. See Carpenter v. Suffolk Franklin Sav. Bank, supra at 318 ("State courts need not become enmeshed in the Federal complexities and technicalities and are free to reject procedural frustrations in favor of just and expeditious determinations ..."). See also Cedar Crest Funeral Home, Inc. v. Lashley, 889 S.W.2d 325, 329 (Tex. Ct. App. 1993) ("In class actions the requirement that the named representative plaintiff have a personal stake in the form of a direct injury is less compelling on jurisdictional grounds [because] the class itself is the real party in interest"). Cf. School Comm. of Brockton v. Massachusetts Comm'n Against Discrimination, 423 Mass. 7, 14-15 (1996) (teachers' union, which alleged no injury, was proper plaintiff representative to pursue equitable relief on behalf of teachers). We therefore
Whether Kelley can satisfy the rule 23 (a) typicality requirement involves two related, but distinct inquiries: (1) whether the claims and legal theories of Kelley and the class are sufficiently related and (2) whether there is a link among the defendants sufficient to permit the class action to proceed against all defendants.
The judge ruled, and we agree, that Kelley's claim and those of the class are based on a single course of conduct engaged in by CVS in the implementation of its patient compliance program. Kelley and every member of the certified class were CVS pharmacy customers whose prescription drug profiles were scanned according to pharmaceutical manufacturers' selection criteria without their knowledge or consent, which scanning resulted in a letter being sent. The content of the letter, the medical condition of the letter recipient, and the pharmaceutical drug use profile that triggered the sending of the letter are, for purposes of the typicality requirement, irrelevant. The conduct about which Kelley complains is identical to the conduct affecting the class, and the legal theories under which he is pursuing relief are the same as those that might be pursued by the class. Cf. Baltimore Football Club, Inc. v. Superior Court, 171 Cal.App.3d 352, 359 & n.3 (1985) (plaintiff failed to satisfy typicality requirement where his alleged injury was merely "similar to those of other parties at the hands of other defendants").
Having concluded that the relationship with CVS provides a sufficient nexus between Kelley's claims and those of the unnamed members of the class, we turn to the question whether a sufficient nexus exists between CVS and the defendants. There are several types of connective links that courts have determined are sufficient to permit a plaintiff such as Kelley to represent a class against individual multiple defendants (as distinguished from a defendant class), where not all of the defendants had
Sometimes referred to as the "juridical links doctrine," the analysis is analogous, though not identical, to that required under Mass. R. Civ. P. 20, 365 Mass. 766 (1974), governing permissive joinder. See Moore v. Comfed Sav. Bank, supra at 838; La Mar v. H & B Novelty & Loan Co., 489 F.2d 461, 466 (9th Cir. 1973). See generally Henderson, Reconciling the Juridical Links Doctrine with the Federal Rules of Civil Procedure and Article III, 67 U. Chi. L. Rev. 1347 (2000). The juridical links doctrine under rule 23, like joinder under rule 20 (a), is a procedural device that permits collective adjudication of related claims, not a substantive rule that results in joint or several liability. See Kabatchnick v. Hanover-Elm Bldg. Corp., 331 Mass. 366, 369 (1954); Baughman v. State Farm Mut. Auto. Ins. Co., 88 Ohio St.3d 480, 486 (2000). That the letter Kelley received was sponsored by Merck and not by Glaxo, Roche or Warner-Lambert, may be a defense these defendants can assert against Kelley's right to recover from them, Kabatchnick v. Hanover-Elm Bldg. Corp., supra, but in the circumstances of this case, that potential defense does not make Kelley's claims atypical.
(b) Predominance. The defendants additionally contend that the plaintiffs have failed to establish that common questions of law or fact will predominate, as required by rule 23 (b). Analogizing to Fletcher v. Cape Cod Gas Co., 394 Mass. 595, 603 (1985), they argue that the determination of liability and damages in this case turns on individualized questions regarding the content of each letter, the customer's medical condition, and the subjective emotional reaction of each customer to the letter received. The analogy is inapt.
The plaintiffs in Fletcher sought damages for injuries resulting from exposure to urea-formaldehyde foamed-in-place insulation (UFFI). The defendants were the UFFI manufacturers and individual contractors who installed the insulation throughout Cape Cod. We recognized that common questions of fact did not predominate because the plaintiffs' exposure to UFFI was the result of separate contracts with various installers into different
Here, by contrast, liability may be established without reference to the precise content of each letter or precise reaction of each letter recipient. Because the alleged injuries were the result of the single course of conduct
Even if, as the defendants contend, an individualized inquiry is necessary to determine damages for invasion of privacy under G. L. c. 214, § 1B, for each letter recipient, a dispute we need not resolve, such a necessity at the damages stage does not preclude class certification where all other requirements are met. See In re One Bancorp Sec. Litig., 136 F.R.D. 526, 533 (D. Me. 1991).
(c) Superiority of class action over other methods of
The defendants argue, however, that certifying a class in a mass tort is outcome determinative because it gives plaintiffs an unfair advantage, which will force them to settle.
This is not a mass tort. Mass torts fall into three broad classes: mass accidents, toxic environmental torts and product liability claims. See 3 H. Newberg, Class Actions § 17.06, at 17-16 (3d ed. 1992). They involve large plaintiff classes whose members have suffered severe personal injury or death, alleging claims grounded in negligence having the potential for industry-breaking liability. See, e.g., Amchem Prods. v. Windsor, 521 U.S. 591 (1997) (asbestos litigation); Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir. 1996) (tobacco); Matter of Rhone-Poulenc Rorer Inc., 51 F.3d 1293 (7th Cir.), cert. denied sub nom. Grady v. Rhone-Poulenc Rorer Inc., 516 U.S. 867 (1995) (blood banks). See also 3 H. Newberg, Class Actions, supra. The wrong alleged in this case, by contrast, involves an offensive commercial practice, see e.g., Baldassari v. Public Fin. Trust, 394 Mass. 33 (1975), rather than an allegedly harmful
We find much to commend the position recently taken by the United States Court of Appeals for the First Circuit regarding concerns that class status may be outcome determinative. Construing the recent amendment to Fed. R. Civ. P. 23, which permits an interlocutory appeal from a certification order, the court held that, in addition to showing that a certification order may force them to settle, the defendant must "demonstrate some significant weakness in the class certification decision." See Waste Mgt. Holdings, Inc. v. Mowbray, supra at 295. This approach makes good sense: it furthers the policy behind class actions by not inserting additional barriers to certification beyond those already required under the rule, yet provides a framework for judges to consider the effect of certification, ensuring that this factor be accorded appropriate, secondary weight. See id.
A judge deciding a motion for class certification may consider the fact that denial of class status may effectively terminate a proceeding, or the fact that the grant of class status may, in the defendants' view, pressure them to settle. These factors alone, however, should not be determinative of a motion to certify a class. Nor does refusal to consider these factors constitute an abuse of discretion. Plaintiffs and defendants who seek interlocutory review of such orders must show that the judge, for example, sacrificed the purpose of the class action rule by focusing too narrowly on one requirement, or failed to consider a factor entitled to substantial weight. See Carpenter v. Suffolk Franklin Sav. Bank, 370 Mass. 314, 317-320 (1976).
As Federal District Court Judge Skinner noted, "It has been the tradition of the common law to adapt. There is a limit to a court's capacity to deal with major social problems, but this