In this putative class action, the named plaintiffs are former employees of the defendant, Wal-Mart Stores, Inc. (Wal-Mart), who were paid by the hour (hourly employees). On behalf of themselves and others similarly situated they allege that Wal-Mart wrongfully withheld compensation for time worked and denied or cut short rest and meal breaks to which they were entitled. The plaintiffs appealed from a Superior Court judge's allowance of summary judgment on certain counts of their complaint and also filed an application for direct appellate review. The judge reported the case to the Appeals Court. See Mass. R. Civ. P. 64, as amended, 423 Mass. 1410 (1996), and G. L. c. 231, § 111. See also note 40, infra. Wal-Mart also filed an application for direct appellate review. We granted both applications.
In essence we are asked to determine (1) whether the judge
For the reasons set forth below, we vacate the judge's orders. We conclude, inter alia, that the judge abused his discretion in allowing Wal-Mart's motions to exclude the testimony of the plaintiffs' expert and to decertify the class. We further conclude that the judge erred in granting partial summary judgment to Wal-Mart. We remand the case for the entry of an order certifying the class and for further proceedings consistent with this opinion.
PD-43 stated that hourly employees should never be required to work "off-the-clock," that is, work when the employee's hours are not being recorded for compensation. The same policy directive also generally prohibited employees from working overtime. PD-43 obligated store managerial personnel to investigate every instance where it was determined that an employee worked off-the-clock and to complete a working off-the-clock notice, to be signed by the supervisor or manager, the employees, and a "witness" who was required to be a salaried employee. Wal-Mart repeatedly warned its hourly employees that they would be subject to an escalating series of disciplinary "coaching," including termination, for violating company policy concerning breaks and off-the-clock work.
The day-to-day responsibility for ensuring that hourly employees followed company timekeeping policies fell on individual store managers.
At least since 1989, senior Wal-Mart home office executives have been made aware that, despite the written policy directives to the contrary, store managers were sometimes "[a]ltering time cards to decrease reported payroll expenses" and "[i]nstructing associates to work off the clock . . . ." Further, at least since
Wal-Mart was also aware, during the class period, of allegations of "time shaving" by store managers.
Another report, the time clock archive report (archive report), recorded and transmitted to the home office the total number of times each hourly employee swiped in and out during every shift of each pay period, and tallied the hourly employee's total hours of work recorded for the pay period. Store managers were required to investigate and resolve any discrepancies appearing on the archive report before the payroll was finalized. Hourly employees were required to review and sign off on the accuracy of the archive report prior to receiving their paychecks. Wal-Mart's time clock punch error report (punch error report) also captured daily punch errors in hourly employees' timekeeping. The home office would not finalize daily store payroll until the errors on the punch error report were corrected.
2. Procedural history. On August 21, 2001, two former Wal-Mart hourly employees
Wal-Mart appealed from the decision to the Appeals Court. In June, 2004, a single justice of the Appeals Court vacated the class certification order and remanded the matter to the Superior Court. Among other things, the single justice concluded that the Superior Court judge had erroneously side stepped his obligation to determine whether the statistical proffer that the plaintiffs
Following the single justice's order, and after they claimed to have discovered new evidence of Wal-Mart's allegedly wrongful labor practices, the plaintiffs renewed a motion previously denied to amend their complaint a second time to add a claim for violation of G. L. c. 149, § 148. They also made a second
Two years later, on September 21, 2006, a third Superior Court judge allowed in part and denied in part a motion by Wal-Mart for partial summary judgment. Specifically, the judge allowed Wal-Mart's motion on all claims concerning missed, interrupted, or shortened meal periods, on the ground that, because meal breaks were unpaid, the plaintiffs would be unable to show harm for meal breaks that were shortened or eliminated.
On November 7, 2006, the same Superior Court judge who had ruled on the motion for partial summary judgment allowed
We consider first the judge's decision to allow Wal-Mart's motion to exclude the plaintiffs' expert and to decertify the class. We begin with the portion of that motion seeking to exclude Shapiro's expert testimony as unreliable.
3. The plaintiffs' expert witness. a. Standard of review. "If the process or theory underlying a scientific expert's opinion lacks reliability, that opinion should not reach the trier of fact." Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994). See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
b. Shapiro's evidence. Shapiro, the plaintiffs' expert, is a
Shapiro performed four tasks for the plaintiffs. First, he counted what was in the records Wal-Mart provided. Because many of the records Wal-Mart produced were in paper rather than electronic form, this was an enormous and expensive task.
Fourth, Shapiro offered his own expert opinions as to why various features of either the data themselves, the means by which they were collected, or both, should lead a fact finder to conclude that Wal-Mart had indeed deprived the plaintiffs of compensation, rest breaks, and meal breaks to the extent suggested by the data. For example, Shapiro noted that the missed breaks were not randomly distributed: more of the missed rest breaks were at busy, peak times in the afternoon rather than in the morning. Shapiro opined that this fact supported the plaintiffs' theory that "it is simply not true that people didn't swipe in and out for rest breaks"; rather, because of understaffing for example, hourly employees "systematically or generally didn't take certain rest breaks," generally at busy times. Shapiro similarly argued that the mechanics of how the various data were generated by timecard swipes and subsequent manager edits — especially the processes Wal-Mart put in place for correcting any erroneous "exceptions" — made it probable that Wal-Mart's records were by and large accurate, and that nearly all of the incidents of time shaving and missed rest and meal periods that the data appeared to suggest were, in fact, violations.
Shapiro performed each of these four tasks with respect to
Wal-Mart countered with its own expert, Denise Martin, senior vice president of National Economic Research Associates, Inc., who holds a doctorate in economics. Martin testified at the evidentiary hearing and prepared a report that was marked as an exhibit at that hearing. Martin reviewed Shapiro's analysis and made numerous criticisms, essentially concluding that one-minute clock-outs inserted by managers may reflect actual time worked
c. Analysis. The motion judge, "accept[ing] Martin's criticisms of Shapiro's methodology," found that "the unreliability of Shapiro's opinions and, indirectly, of Wal-Mart's records do not provide an acceptable basis for supporting a finding of harm, with de minimis exceptions, to 67,500 members of the associate class" (emphasis added). He characterized the plaintiffs' claim and their use of Shapiro's expert opinion in the following way: "the plaintiffs will have Shapiro imbue Wal-Mart's records
This was error in two respects. First, in the liability phase of this putative class action, it is not the representative plaintiffs' burden to identify every "specific" instance in which a member of the plaintiff class has been "injured or harmed by Wal-Mart's actions or policies." Rather, the plaintiffs' burden is to prove by a preponderance of the evidence that Wal-Mart engaged in an over-all, class-wide practice of time shaving, denying or discouraging rest breaks or meal breaks, and requiring off-the-clock work by its hourly employees. See part 4(c), infra. Cf. International Bhd. of Teamsters v. United States, 431 U.S. 324, 360 (1977) (evidence of "each person" harmed by general policy not required in order to prove that over-all policy existed). See generally part 4, infra. Second, the plaintiffs are not using Shapiro to "imbue" Wal-Mart's business records with evidentiary value the records do not already possess. The motion judge's decision to exclude Shapiro's testimony as unreliable turns fundamentally on his conclusion that "[t]he time records of Wal-Mart are not adequate of themselves to establish entitlement to compensation in a case like this . . . ." This formulation misstates the test. The question is not whether Wal-Mart's records are dispositive evidence, conclusively establishing liability and damages "of themselves." Rather, the test is whether the business records are admissible evidence, probative of Wal-Mart's liability. If so, then Shapiro's efforts to count and summarize them — the first of the four pieces of evidence offered by Shapiro, as delineated above — are similarly admissible unless his methods of counting and summarizing those records are themselves unreliable.
Shapiro's methods for reconstructing and summarizing the contents of Wal-Mart's records are uncontested.
In excluding even the portion of Shapiro's report and testimony that consisted of counting data found in Wal-Mart's own business records, the motion judge acted not on the basis of any challenge to Shapiro's methodology, but essentially on his view that the records themselves were insufficiently reliable.
Wal-Mart's business records at issue in this case satisfy all of the requirements to be afforded the usual presumption of reliability. Both the timekeeper records and the point-of-sale register records were "made in good faith in the regular course of business" before this action began. G. L. c. 233, § 78. The digital records of hourly employees' card-swipes and their supervisors' subsequent insertions and amendments were all made "at the time of such act, transaction, occurrence or event or within a reasonable time thereafter." Wal-Mart has relied on these records for purposes of compensating its hourly employees, evaluating its store managers, and presumably reporting its payroll expenditures to the Commonwealth, to the Federal government, and to its own shareholders in the form of financial results.
This presumption of reliability is not irrebuttable. Wal-Mart may, through admissible evidence at trial, challenge the veracity of its own records, just as it may challenge the conclusions that Shapiro and the plaintiffs draw from those records.
Wal-Mart's criticisms of the remaining portions of Shapiro's expert testimony go to the weight of the evidence, not its admissibility. Wal-Mart's expert essentially argues that, for a series of reasons, not all of the putative violations Shapiro identifies are actual violations; she contends that accounting for a series of additional factors, variables, and data sources would undercut Shapiro's conclusions. As the United States Supreme Court stated in a case involving statistical regression analysis: "Normally, failure to include variables will affect the analysis' probativeness, not its admissibility." Bazemore v. Friday, 478 U.S. 385, 400 (1986). "There may, of course, be some regressions so incomplete as to be inadmissible as irrelevant; but such was clearly not the case here." Id. at 400 n. 10. Here, the evidence at issue does not involve statistical regression, but a similar principle applies: any failure to take account of additional factors affects the probativeness, rather than the admissibility, of Shapiro's evidence. It cannot be said that Shapiro's analysis of Wal-Mart's data is so incomplete as to be "irrelevant" to the question of Wal-Mart's class-wide liability, or, in the event that the fact finder concludes Wal-Mart is liable, to the question of damages. Any failure of Shapiro to account for the factors Martin identifies may render his analysis "less probative than it otherwise might be," id. at 400, but would not render his analysis inadmissible.
4. Class certification. a. Standard of review. A judge has broad discretion to certify or decertify a class. Our review asks only whether that discretion has been abused. Weld v. Glaxo Wellcome Inc., 434 Mass. 81, 84-85 (2001). Indicia of an abuse of discretion include errors of law or judicial action that is "arbitrary, unreasonable, or capricious . . . such as when a judge grants class status on the basis of speculation or generalization regarding satisfaction of the requirements of rule 23, or denies class status by imposing, at the certification stage, the burden of proof that will be required of the plaintiffs at trial." Id. at 85. See Smilow v. Southwestern Bell Mobile Sys., Inc., 323 F.3d 32, 37 (1st Cir. 2003) (District Court abuses its discretion "when it relies significantly on an improper factor, omits a significant factor, or makes a clear error of judgment in weighing the relevant factors" or "if the court adopts an incorrect legal rule").
Before applying these principles to the decertification order, we describe it in some detail.
b. Decertification order. The decertification order was predicated on the judge's finding that the plaintiffs had failed to demonstrate the predominance of common over individual issues, as required by rule 23 (b). The judge concluded that the factual record demonstrated that the class was "likely to consist of a not insubstantial number" of hourly employees who were not harmed by Wal-Mart. In reaching his conclusion, the judge focused principally on the reliability of Wal-Mart's payroll records described above, and on Shapiro's expert testimony. The judge reasoned that, although the payroll records indicated how an hourly employee's work time was recorded, they were mute as to the reasons a particular hourly employee recorded time as he or she did. In light of affidavits submitted by Wal-Mart from several Massachusetts hourly employees stating that they had shortened or omitted break periods for reasons having nothing to do with Wal-Mart's alleged wrongdoing, see note 23, supra, the judge said that individual inquiries of each hourly employee would be
c. Predominance. Rule 23 (b) calls for the plaintiff to demonstrate, among other things, "that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members." The predominance requirement seeks to ensure, in part, that the economies of class action will be realized in the particular litigation. See 2 A. Conte & H.B. Newberg, Class Actions § 4.24, at 154 (4th ed. 2002) (Newberg) ("Judicial economy factors and advantages over other methods for handling the litigation as a practical matter underlie
"The predominance test expressly directs the court to make a comparison between the common and individual questions involved in order to reach a determination of such predominance of common questions in a class action context." Newberg, supra at § 4.23, at 154. At the pretrial stage, the burden is on the moving party to prove that they have satisfied the predominance requirement. That burden, as we have often stated, is of a different order than the party's burden of proof at trial. At the pretrial class action stage, the plaintiffs must "provid[e] information sufficient to enable the motion judge to form a reasonable judgment that the class meets the requirements of rule 23; they do not bear the burden of producing evidence sufficient to prove that the requirements [of rule 23] have been met." Weld v. Glaxo Wellcome Inc., supra at 87. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974). If a plaintiff satisfies this certification burden, then "neither the possibility that a plaintiff will be unable to prove his allegations, nor the possibility that the later course of the suit might unforeseeably prove the original decision to certify the class wrong, is a basis for declining to certify a class which apparently satisfies the Rule." Weld v. Glaxo Wellcome Inc., supra at 84-85, quoting Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 1975), cert. denied, 429 U.S. 816 (1976); Weld v. Glaxo Wellcome Inc., supra at 92, quoting Waste Mgt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 (1st Cir. 2000) (plaintiff must prove that "sufficient constellation of common issues bind class members together"); Spear v. H.V. Greene Co., 246 Mass. 259, 266 (1923) ("The persons suing as representatives of a class must show by the allegations of their bill that all the persons whom they profess to represent have a common interest in the subject matter of the suit and a right and interest to ask for the same
Because the salient inquiry is whether the plaintiffs' claims are "sufficiently cohesive to warrant adjudication by representation," no rote formula can determine whether the plaintiffs have met their certification burden on the question of predominance (emphasis added). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1977). See Weld v. Glaxo Wellcome Inc., 434 Mass. 81, 92 (2001). The judge must engage in "an individualized, pragmatic evaluation of the relationship between and the relative significance of the common and individual issues." In re Relafen Antitrust Litig., 231 F.R.D. 52, 70 (D. Mass. 2005), quoting In re Relafen Antitrust Litig., 218 F.R.D. 337, 343 (D. Mass. 2003). Class certification may be appropriate where common issues of law and fact are shown to form the nucleus of a liability claim, even though the appropriateness of class action treatment in the damages phase is an open question. See Smilow v. Southwestern Bell Mobile Sys., Inc., 323 F.3d 32, 40 (1st Cir. 2003), quoting Blackie v. Barrack, supra at 905 ("The amount of damages is invariably an individual question and does not defeat class action treatment").
d. Analysis. We first consider the issues of fact. The evidence offered by the plaintiffs in support of class certification included not only the payroll evidence and expert evidence provided by Shapiro, but additional nonpayroll, nonexpert materials such as documents and materials that Wal-Mart distributed to its hourly employees and other information that the judge grouped into seven broad categories (collectively, additional material), which we set forth in the margin below.
In this case the plaintiffs have asserted contract, tort, and
We agree with the judge's observation that the great bulk of the additional material concerned Wal-Mart's national, corporate-wide labor policies and practices that make no specific reference to Massachusetts. Other material submitted by the plaintiffs, such as the Shipley Audit, does not focus in any significant way on the Commonwealth. But neither does any of this material, either directly or indirectly, exempt Massachusetts stores or Massachusetts hourly employees from labor and payroll directives imposed nationally by the home office. Because the gravamen of the plaintiffs' claims is that Massachusetts hourly employees were subjected to Wal-Mart's nationwide, uniform, wrongful actions, the dearth of specific references to Massachusetts in the additional material is not fatal to class certification.
The plaintiffs present the additional materials, including policy directives, employee handbooks, and the like, as evidence of an implied-in-fact contract or enforceable promise concerning work breaks and off-the-clock work. See LiDonni, Inc. v. Hart, 355 Mass. 580, 583 (1969) ("In the absence of an express agreement, a contract implied in fact may be found to exist from the conduct and relations of the parties"). The judge found these general corporate materials (among other things) sufficiently specific to the contract issue to survive a challenge on summary judgment. They are no less persuasive on the issue of class certification, where all members of the class were unarguably the beneficiaries of identical terms of employment. The necessary bridge to liability in Massachusetts is provided by the sworn and unsworn statements of Massachusetts hourly employees and managers about missed and shortened breaks and uncompensated work.
The judge nevertheless concluded that class treatment was not warranted on the liability issues because no Massachusetts
In short, the essential factual questions of liability in this case — Did a contract or agreement exist? On what terms? Did Wal-Mart breach the contract or agreement? — rest on a "sufficient constellation of common issues [to] bind class members together" for purposes of certification. Waste Mgt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 (1st Cir. 2000). See Weld v. Glaxo Wellcome Inc., 434 Mass. 81, 91 (2001) (certification of plaintiff class appropriate where "[a]lthough the contracts . . . appear to have been the product of independent, parallel negotiations, every contract created largely identical contractual obligations . . . and the program appears to have been administered in a substantially similar manner across the board"); Sniffin v. Prudential Ins. Co., 11 Mass.App.Ct. 714, 724 (1981) (class action appropriate where, among other things, common questions "are so tightly interwoven in the dispute that they directly affect its resolution"); Smilow v. Southwestern Bell Mobile Sys., Inc., supra (predominance requirement met where
Many of the judge's conclusions concerning the insufficiency of the additional material to demonstrate predominance, and the arguments advanced by Wal-Mart on this point, are more properly directed to questions of damages than to questions of liability. As we noted above, classes may be certified for the purpose of determining liability even where individual inquiries may be necessary on the issue of damages. See Smilow v. Southwestern Bell Mobile Sys., Inc., supra at 40, quoting Blackie v. Barrack, 524 F.2d 891, 905 (9th Cr. 1975) ("The amount of damages is invariably an individual question and does not defeat class action treatment"). See also International Bhd. of Teamsters v. United States, 431 U.S. 324, 361 (1977) (authorizing "additional proceedings after the liability phase of the trial to determine the scope of individual relief"). Where damages issues are likely to require more individualized treatment, a judge has available a number of creative methods of managing questions of remedy in a manner that protects the defendant's rights while redressing harms to individual plaintiffs. See generally Newberg, supra at § 4:32, at 287-288 ("Courts have developed several innovative management techniques to eliminate or minimize court burdens arising from management difficulties posed by class actions. With reference to problems of complexity or numerousness of individual questions remaining in a class action, courts have pointed to or have agreed to use devices such as conditional class certification[,]. . . limitation of the class to particular issues[,] . . . bifurcated trials for liability and damages, common proof of class damages, use of special masters or magistrates, use of liaison and lead counsel for the parties, class recovery distribution techniques involving cy pres notions, and monitoring procedures for time expended by class counsel to avoid duplication or excessiveness of hours"). The judge should have recognized the availability of these alternatives before essentially denying thousands of potentially meritorious, yet small, claims.
There was a further respect in which the judge erred: in decertifying the class the judge made several errors of law. See Waste Mgt. Holdings, Inc. v. Mowbray, supra at 295 ("An abuse of discretion . . . occurs [in class certification orders] if the court adopts an incorrect legal rule"). The judge concluded, among other things, that DeSisto, supra, required, in the absence of allegedly reliable corporate records proving liability, that in order to maintain a class action, the plaintiffs' trial plan had to include "testimony from witnesses representative of the different positions held in each of the forty-seven Massachusetts stores covering the entire class period who could make the case of violations experienced by all class members." We disagree.
DeSisto was brought pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq. (2000). As the judge acknowledged, the FLSA contains specific provisions and a distinct jurisprudence governing when a plaintiff may bring an FLSA action in a representative capacity. See 29 U.S.C. § 216(b); DeSisto, supra at 792 n. 1 (discussing representativeness
In this case, the burden the judge imposed on the plaintiffs would be both onerous and unproductive in light of overwhelming evidence that all of the class members — people who staff the grill counter, receivers, cashiers, and so on — were subject to the identical terms and conditions regarding breaks and off-the-clock work, which (according to company policy) were to be followed stringently.
Additionally, citing Aspinall v. Philip Morris Cos., 442 Mass. 381 (2004), the judge concluded that the plaintiffs had failed to demonstrate that the number of uninjured class members was "de minimis." See id. at 398 n. 21; id. at 405 (Cordy, J., dissenting). The judge's reliance was misplaced. In the Aspinall case, a class of Massachusetts consumers brought an action under G. L. c. 93A, §§ 2 and 9 (2), against the manufacturer of a so-called "light cigarette."
The dicta in the Aspinall case cited by the judge does not, either directly or by necessary implication, graft a separate, de minimis test onto rule 23 class actions to narrow or solidify the traditional analysis of predominance that we discussed above. One of the great strengths of the rule 23 class action device is its plasticity. Case-by-case considerations of practicality and fairness have enabled rule 23 certification decisions to adapt appropriately to a variety of contexts, even within the same litigation. See generally Newberg, supra at § 4:32 (listing techniques for managing class actions). By undercutting that intended flexibility, a bright-line de minimis requirement would vitiate the purpose of class actions.
For all of the above reasons, we conclude that the judge abused his discretion in allowing Wal-Mart's motion to decertify the class.
5. Meal periods. The motion judge reported his decision to grant partial summary judgment to Wal-Mart on "all aspects of the plaintiffs' complaint regarding meal periods." See note 40, supra. The plaintiffs' allegation that Wal-Mart deprived class members of their meal periods comprised two legal claims: a statutory claim, based on G. L. c. 149, § 100,
a. Statutory claim. As to the statutory claim, the motion judge correctly found that G. L. c. 149, § 100, which requires that employers provide employees who work six hours or more with a thirty minute meal period, does not create a private right
Where the Legislature has not expressly provided for a private right of action, we may nonetheless infer an implied private right of action unless the Legislature explicitly prohibits us from doing so. Loffredo v. Center for Addictive Behaviors, 426 Mass. 541, 544-545 (1998). Here, the Legislature's express language providing for enforcement by the Attorney General, "except as otherwise specifically provided," combined with its specific provision of a private right of action for certain other sections of G. L. c. 149, but not for § 100, weighs heavily against recognizing a private right of action under § 100. See id. at 547, quoting Transamerica Mtge. Advisors, Inc. v. Lewis, 444 U.S. 11, 19 (1979) ("where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it").
The plaintiffs argue that finding no implied right of action in § 100 would "render the statute ineffective": "Not only will the underlying purpose of [§] 100 best be served if employees are able to protect their right to obtain meal periods, it is highly unlikely that employees will come forward to report violations if there is no remedy for those wrongs."
b. Contract claim. The lack of a statutory private right of action presents no bar to the plaintiffs' claim that Wal-Mart violated
The motion judge concluded that "given the undisputed fact that meal periods are unpaid, a missed meal period does not result in economic damages." Therefore, he reasoned, absent any independent private right of action under G. L. c. 149, § 100, there can be no contract claim for missed meal periods. He therefore allowed Wal-Mart's motion for summary judgment on this issue. However, merely because meal periods are unpaid, it does not follow that they have no value. To an hourly employee at Wal-Mart, the opportunity to stop work and eat a meal in peace during a busy workday may constitute a benefit of significant value. Wal-Mart argues that any employees who were made to work through their meal breaks were paid for that work, and so were unharmed by any breach of contract. Essentially, Wal-Mart's
The monetary value of a meal break cannot be held as a matter of law to be zero. Rather, the value of this putative contractual benefit is a question of fact to be resolved by the fact finder. Like any other party deprived of the benefit of their bargain, the plaintiffs should be awarded damages that are "the equivalent in money for the actual loss sustained by the wrong of another." F.A. Bartlett Tree Expert Co. v. Hartney, 308 Mass. 407, 412 (1941). Summary judgment to Wal-Mart should not have entered on all matters relating to meal periods.
6. Statute of limitations. In his summary judgment order, the judge concluded that the three-year statute of limitations provision of G. L. c. 149, § 150, barred the plaintiffs from bringing any claims under G. L. c. 149, § 148, for unpaid wages resulting from one-minute clock-outs and unauthorized insertions of meal periods that predate August 21, 1998. See Malapanis v. Shirazi, 21 Mass.App.Ct. 378, 383 (1986) ("On an appropriate record, summary judgment may be granted on the question whether a particular statute of limitations has run"). The plaintiffs assert that the limitations period should be equitably tolled under either a theory of fraudulent concealment or the discovery rule, because class members could not have known of Wal-Mart's time-shaving practices prior to the publication of the New York Times article on April 4, 2004, that exposed the practices. See note 33, supra. We agree with the judge that the plaintiffs have failed to make their case with respect to fraudulent concealment. However, we conclude that the plaintiffs have shown a disputed issue of material fact on the question whether equitable tolling is appropriate under the discovery rule.
As to the plaintiffs' theory of fraudulent concealment, "[w]hen a defendant fraudulently conceals a cause of action from the knowledge of a plaintiff, the statute of limitations is tolled under G. L. c. 260, § 12, for the period prior to the plaintiffs' discovery of the cause of action." Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 519 (1997).
In the alternative, the plaintiffs invoke the discovery rule. In essence, they claim that the time shaved from individual hourly employees' pay generally was sufficiently small that a reasonable person in the position of a class member would not know or could not reasonably have been expected to know that he was being denied compensation. See Koe v. Mercer, 450 Mass. 97, 101 (2007), quoting Bowen v. Eli Lilly & Co., 408 Mass. 204, 205-206 (1990) ("Under [the] discovery rule, the statute of limitations starts when the plaintiff discovers, or reasonably should
The reasonable person standard does not take into account "[i]ndividual variations in judgment, intellect, or psychological health . . . unrelated to the complained-of conduct . . . . The reasonable person who serves as the standard in this evaluation, however, is not a detached, outside observer assessing the situation without being affected by it. Rather, it is a reasonable person who has been subjected to the conduct which forms the basis for the plaintiff's complaint." Id. Generally the question whether a plaintiff in a particular position knew or should have known of the defendant's wrongful conduct is for the fact finder. See Doe v. Creighton, 439 Mass. 281, 283-284 (2003) ("The question when the plaintiff knew or should have known that the defendant's actions were the cause of her injuries is one of fact. . ."). Here, the factual issue is not so clear cut as to remove it from the fact finder's consideration. See Kourouvacilis v. General Motors Corp., supra.
In this case the plaintiffs presented evidence from former Wal-Mart managerial and payroll personnel in Massachusetts and elsewhere that they personally inserted meal breaks or one-minute clock-outs in hourly employees' time records or witnessed others doing so. They submitted documents attesting to Wal-Mart's awareness over many years that the problem of time shaving was widespread.
We do not agree with the judge, or with Wal-Mart, that application of the discovery rule necessitates an individual inquiry about what each class member knew or should have known about Wal-Mart's alleged knowledge or condoning of time-shaving practices. The reasonable person test is an objective test. See Doe v. Creighton, supra at 283. Thus it presumptively operates as to all class members on the question of equitable tolling, even though a more individualized inquiry may be required on the question of damages.
7. Conclusion. We vacate the order allowing Wal-Mart's motion to exclude the plaintiffs' expert and decertify the class. We vacate the portions of the judge's order granting partial summary judgment to Wal-Mart that were reported to the Appeals Court. We remand the case to the Superior Court for entry of an order certifying the class and further proceedings consistent with this opinion.
In addition, the plaintiffs submitted posters, memoranda to employees, and other materials disseminated throughout the class period reminding hourly employees that they were required to follow company policy concerning breaks and overtime. We do not, of course, pass on the admissibility or credibility of this material at trial, which Wal-Mart vigorously contests through, among other materials, countering affidavits, which we discuss below. Wal-Mart contends that employees could, in fact, choose to waive their breaks. See note 53, infra.
Nearly all of the affidavits of current hourly employees submitted by Wal-Mart include the statement (or minor variations thereof): "Before speaking with the attorney for Wal-Mart, I was informed that they represented Wal-Mart and did not represent me. I was also told that I did not have to answer any questions and could stop the interview at any time. I was informed that the interview was purely voluntary and that if I did not wish to speak, there would be no impact on my job." The plaintiffs claim that when they deposed "a random selection of those affiants, each such witness recanted the statements drafted by Wal-Mart's defense counsel" and testified that he or she had been "intimidated" into signing. We do not need to resolve the question whether these affidavits should have been struck for the reasons stated in note 3, supra.
Rule 23 (b) provides: "An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy."
Separately, as detailed below, Shapiro used additional statistical techniques in certain instances. Where data were available only for a portion of the class period, he used that data to make an estimate regarding the remainder of the class period; and in one instance, he used a sample of twenty-five Massachusetts Wal-Mart stores to draw conclusions about all forty-seven Massachusetts stores.
Although not relevant for purposes of deciding the issues here, Shapiro used a seven-day period because of the requirement of G. L. c. 149, § 148, that wages be paid "within seven days of the termination of the pay period during which the wages were earned," or sooner depending on the number of days worked by the employee. Shapiro's calculation was challenged by Wal-Mart's expert.
Shapiro noted and interpolated a total of 4,911,737 missed rest breaks, with a monetary value of $9,935,594, during the period from August 21, 1995, through February 8, 2001 (from the start of the putative class period to the date of the policy change regarding clocking in for rest breaks). See note 9, supra. Shapiro estimated that from 2001 to 2005, if the slow rate of decline continued, there would have been 6,297,913 missed rest breaks with a monetary value of $15,288,184.
Shapiro estimated a total figure of $423,010 for the lost wages due to off-the-clock work by cashiers during the putative class period.
Before taking account of the TARs, Shapiro estimated, the monetary value of the inserted meal periods was $94,779.
More broadly, the motion judge would have preferred that Shapiro "legitimize [his] methodology" by "conducting an investigation into whether the records correspond to the reality of the system Wal-Mart had in place," an investigation that, the motion judge suggested, might take the form of "representative inquiries" of class members Shapiro could randomly select from the class list. Additional investigation of the kind suggested might be probative. But any criticism of Shapiro on the ground that he did not employ additional potential investigative methodologies the judge might have preferred be undertaken again goes to the weight of the evidence, not its admissibility.