United States Court of Appeals For the First Circuit
No. 23-1476
ROBERT NIGHTINGALE, on behalf of himself and all others similarly situated,
Plaintiff, Appellant,
v.
NATIONAL GRID USA SERVICE COMPANY, INC; FIRST CONTACT LLC; iQOR US INC.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Kayatta, Lipez, and Gelpí Circuit Judges.
Stephen Taylor, with whom Sergei Lemberg, Joshua Markovits, and Lemberg Law LLC were on brief, for appellant. David G. Thomas, with whom Angela Bunnell and Greenberg Traurig, LLP were on brief, for appellees.
July 9, 2024 KAYATTA, Circuit Judge. Robert Nightingale owed money
to National Grid. National Grid hired two debt collectors to
convince him to make good on the debt. The debt collectors called
Nightingale more than twice over each of several seven-day periods
throughout 2017 and 2018. This kind of badgering is unlawful under
the Massachusetts Consumer Protection Act, Mass. Gen. Laws ch. 93A
("chapter 93A").
Nightingale sued National Grid and the debt collectors
(collectively "Defendants") in state court under chapter 93A. He
alleged that the calls invaded his privacy and caused him emotional
distress. Nightingale also sought to certify a putative class of
Massachusetts residents whose privacy had been invaded by
similarly excessive calls on behalf of National Grid. Defendants
removed to federal district court. The district court declined to
certify a class, holding that the putative class did not comport
with the predominance requirement of Federal Rule of Civil
Procedure 23(b)(3). The district court thereafter granted summary
judgment to Defendants, finding that Nightingale had not
demonstrated a cognizable injury under chapter 93A.
We hold that Nightingale alleged cognizable injuries.
We therefore vacate the district court's grant of summary judgment.
Moreover, because the district court's injury analysis underpinned
its denial of class certification, we vacate that denial and remand
- 2 - for further proceedings consistent with this opinion. Our
reasoning follows.
I.
A.
Nightingale bought his gas and electricity from National
Grid. He last recalls paying National Grid in or around
November 2017. After that, he ran into financial difficulties and
stopped paying. In response, National Grid hired two debt
collectors -- First Contact and iQor -- to call Nightingale and
solicit payment. During 2017 and 2018, Nightingale repeatedly
received more than two calls from the collectors over each of
several seven-day periods.
Nightingale answered the debt collection calls
"[p]robably three or four times." When he did answer the phone,
he simply asked the debt collectors to stop calling. The calls
did not otherwise alter his daily routine. Nevertheless,
Nightingale found the calls "frustrat[ing]" and akin to
"harass[ment]." He found the calls especially upsetting because
they arrived close on the heels of his son's death. He did not
seek medical treatment for emotional distress, and the calls did
not cost him any money.1
1 Nightingale speculated that the calls may have indirectly cost him money by tying up his phone line and making it harder for prospective clients to reach him. But he did not provide any
- 3 - B.
In October 2018, Nightingale sued Defendants in state
court on behalf of himself and a putative class of Massachusetts
consumers. He alleged that the repeated debt collection calls had
caused him emotional distress, deprived him of the use of his
phone, and invaded his privacy.2 With respect to the class, he
advanced only the phone deprivation and privacy-related theories
of injury.3 Defendants removed to federal district court, and then
moved for summary judgment in October 2022.
Two months later, before the court ruled on the summary
judgment motion, Nightingale filed a motion to certify his proposed
class under Rule 23(b)(3). To support the class certification
motion, Nightingale offered call records maintained by both First
Contact and iQor. Each set of call records corresponded to a
specific "call campaign." For example, a call campaign might
target National Grid customers that were more than $2,500 in
arrears. Within each campaign, First Contact and iQor logged the
evidence for this assertion, and we can identify none in the record. 2 The district court concluded that the phone deprivation injury was not cognizable, and Nightingale does not challenge that decision here. So, when evaluating Nightingale's individual claims, we focus only on the emotional distress and privacy-related injuries. 3 Nightingale likewise does not press his phone deprivation theory of class-wide injury here. Instead, he focuses exclusively on the privacy-related theory. We follow suit.
- 4 - date and time for each call, as well as "disposition codes"
describing each call's outcome. For instance, a code of "RIGHT
PARTY" would mean successful contact with the debtor, while
"CPMACHINE" would mean the caller connected to an answering machine
and then hung up.
Nightingale argued that these records could both
identify class members and demonstrate a common injury (i.e.,
receipt of excessive collection calls) affecting the entire class.
He therefore moved to certify the following class and sub-class:
Main Class
All persons residing in the Commonwealth of Massachusetts [as to whom], within four years prior to the filing of this action, Defendants initiated in-excess of two telephone calls regarding a debt within a seven-day period to their residence, cellular telephone, or other provided telephone number.
Sub-Class
All persons residing in the Commonwealth of Massachusetts [as to whom], within four years prior to the filing of this action, Defendants initiated in-excess of two telephone calls regarding a debt within a seven-day period to their residence, cellular telephone, or other provided telephone number pursuant to Program Codes NGR.USUT.FE.NER1BO or NGR.USUT.FE.NER5BO.4
4 The program codes here refer to National Grid customers that are, respectively, "in debt for 180 days or greater" and "in debt for 91–120 days."
- 5 - The court denied class certification. It held that
Nightingale's alleged class-wide privacy-related injury was
effectively a class-wide claim for intrusion upon seclusion, which
requires that a privacy invasion be substantial and unreasonable.
The court further concluded that determining whether the debt
collection calls substantially intruded upon a given debtor's
privacy would require an individualized, fact-specific inquiry.
Therefore, individual factual issues would predominate over common
factual issues, a gap that Nightingale's proffered call records
could not bridge.
Turning next to the merits of Nightingale's individual
claims, the district court granted summary judgment to Defendants.
It found that Nightingale (1) could not demonstrate an emotional
distress injury under chapter 93A without satisfying the
common-law elements of intentional infliction of emotional
distress, and (2) could not demonstrate a privacy-related injury
under chapter 93A without satisfying the common-law elements of
intrusion upon seclusion. Finally, it held that no reasonable
juror could conclude that Nightingale had satisfied the elements
of either tort.
Nightingale timely appealed both orders.
II.
We begin with the grant of summary judgment. Summary
judgment is appropriate if there is no genuine dispute of material
- 6 - fact, and the moving party is entitled to judgment as a matter of
law. See Fed. R. Civ. P. 56(c). We review a grant of summary
judgment de novo, examining the record in the light most favorable
to the non-moving party (here, Nightingale). In re Kupperstein,
61 F.4th 1, 6–7 (1st Cir. 2023).
To review the district court's summary judgment order,
we must apply the text and implementing regulations of chapter 93A.
Our analysis revolves around sections 2 and 9 of that statute.
Section 2 broadly proscribes "[u]nfair or deceptive acts or
practices in the conduct of any trade or commerce." Mass. Gen.
Laws ch. 93A, § 2(a). A debt collector violates section 2 by
"[i]nitiating a communication with any debtor via telephone,
either in person or via text messaging or recorded audio message,
in excess of two such communications in each seven-day period."
940 Mass. Code Regs. § 7.04(1)(f).
Section 9, in turn, creates a private cause of action
for any consumer that "has been injured" by an act or practice
barred by section 2. Mass. Gen. Laws ch. 93A, § 9(1). Section 9
encompasses economic injuries, as well as non-economic injuries
like emotional distress. Hershenow v. Enterprise Rent-A-Car Co.
of Bos., 840 N.E.2d 526, 532–33 & n.16 (Mass. 2006). There is,
however, no "per se" liability under section 9 of chapter 93A.
See Tyler v. Michaels Stores, Inc., 984 N.E.2d 737, 745–46 (Mass.
2013). In other words, a mere violation of section 2 does not
- 7 - automatically give rise to an actionable injury under section 9.
Instead, the plaintiff must identify a "distinct injury or harm,"
either economic or non-economic, "that arises from the claimed
unfair or deceptive act itself." Id. at 746.
The heart of the district court's summary judgment order
was its injury analysis, which Defendants embrace on appeal. In
essence, the district court concluded that cognizable injury under
chapter 93A extends no further than injury actionable at common
law, and that Nightingale had not produced sufficient evidence to
prove actionable injury at common law. We cannot endorse this
approach.
First, as a general matter, Massachusetts law clearly
rejects the broad assertion that the elements of a chapter 93A
claim must track those of analogous common-law claims. In Slaney
v. Westwood Auto, Inc., a plaintiff sued under chapter 93A,
alleging that an automobile dealership had failed to disclose
defects in a car he bought. 322 N.E.2d 768, 771 (Mass. 1975).
The Massachusetts Supreme Judicial Court found that the plaintiff
did not need to prove actual reliance on the dealer's alleged
misrepresentations, because there was a difference between a
"[chapter] 93A cause of action [and] a common-law action for deceit
and fraud." Hershenow, 840 N.E.2d at 534 n.20 (citing Slaney, 322
N.E.2d at 779); see also Slaney, 322 N.E.2d at 779 ("[T]he
- 8 - definition of an actionable 'unfair or deceptive act or practice'
goes far beyond the scope of the common law action for fraud and
deceit."). Put simply, Slaney made clear that injury under
chapter 93 is not coextensive with injury at common law.
Second, chapter 93A's treatment of emotional damages
undermines the suggestion that such damages are only available
when the defendant's unlawful conduct satisfies the elements of
intentional infliction of emotional distress. As already noted,
section 9(1) permits an action for "damages" by any person "who
has been injured by . . . any method, act or practice declared to
be unlawful by section [2]." Mass Gen. Laws ch. 93A, § 9(1).
Section 9(3), in turn, authorizes up to treble damages in cases of
"willful or knowing" or "bad faith" violations. Id. §§ 9(3)–(3A).
This bifurcated remedial structure shows that baseline emotional
damages are still available when the defendant's violation of
chapter 93A is not intentional. A showing of intentionality simply
entitles the plaintiff to treble damages.
Finally, even if we assume that the scope of compensable
injury at common law should inform our interpretation of
chapter 93A, Defendants' position is still untenable. Again, we
can use emotional distress as an example. The common law does not
limit the recovery of emotional distress damages to cases in which
the defendant intended that distress. See, e.g., 86 C.J.S. Torts
§ 55 (2024) ("A plaintiff may recover damages for emotional
- 9 - distress . . . where the defendant's conduct infringed on some
legally protected interest apart from causing the claimed
distress"). Rather, damages for emotional distress are routinely
recoverable in actions where the defendant otherwise breaches a
legal duty to the plaintiff. These can range from intentional
tort actions, see 1 Mass. Proof of Cases Civil § 13:2 (2023)
(collecting emotional damage awards in intentional tort cases), to
actions for negligent operation of a motor vehicle, see Dziokonski
v. Babineau, 380 N.E.2d 1295, 1303 (Mass. 1978).
Of course, the common law may -- in some cases --
foreclose recovery for negligible emotional distress unaccompanied
by any physical manifestation. For instance, a Massachusetts
plaintiff cannot recover for negligent infliction of emotional
distress without showing "physical harm manifested by objective
symptomatology." Payton v. Abbott Labs, 437 N.E.2d 171, 181 (Mass.
1982). But by providing for $25 nominal damages under chapter 93A,
Massachusetts clearly opted to provide a remedy not uniformly
available at common law. See Mass Gen. Laws ch. 93A, § 9(3).
The only authority Defendants cite to support their more
constrained theory of chapter 93A injury is Haddad v. Gonzalez,
576 N.E.2d 658 (Mass. 1991).5 Haddad involved a chapter 93A claim
and a separate claim for intentional infliction of emotional
5 Defendants also cite several federal district court cases that relied on Haddad.
- 10 - distress. Id. at 659. But that case did not say that a plaintiff
must prove the elements of intentional infliction of emotional
distress to recover emotional damages under chapter 93A. Instead,
Haddad held that if a plaintiff has already demonstrated the
elements of intentional infliction of emotional distress, then the
plaintiff may -- in certain circumstances -- use chapter 93A as a
vehicle for obtaining treble damages. Id. at 664–68.
Indeed, Massachusetts's intermediate appellate court has
rejected the argument that Haddad imported the elements of
intentional infliction of emotional distress into section 9 of
chapter 93A. See Wilson v. Transworld Sys., Inc., No. 13-P-1455,
2014 WL 4187532, at *3 n.4 (Mass. App. Ct. Aug. 26, 2014) ("The
Haddad plaintiff explicitly claimed intentional infliction of
emotional distress. Recent cases . . . suggest a more permissive
approach to injury for purposes of [chapter] 93A."). And this
makes sense, given the clear mismatches between the two causes of
action. For example, while emotional injury under chapter 93A
"need not be severe," id. at *3, a claim for intentional infliction
of emotional distress requires "severe" distress, Polay v.
McMahon, 10 N.E.3d 1122, 1128 (Mass. 2014).
In sum, the district court erred when it concluded that
Nightingale could not prove a cognizable injury under section 9 of
chapter 93A without satisfying the elements of analogous
common-law torts.
- 11 - B.
Defendants insist that they can win even without their
more constrained theory of injury. They argue that even under a
more generous standard, Nightingale has failed to allege a
cognizable injury. We disagree.
1.
As an initial matter, Defendants argue that both of
Nightingale's theories of injury are impermissible "per se
theories." Recall that there is no per se liability under
section 9 of chapter 93A, because a section 9 injury must be
"distinct . . . from the claimed unfair or deceptive act itself."
Tyler, 984 N.E.2d at 746. A plaintiff cannot claim injury under
section 9 merely by pointing to a violation of section 2. But
according to Defendants, that is precisely what Nightingale is
doing here. In their view, section 2 was only violated when
Nightingale received the unwanted debt collection calls.
Therefore, Nightingale cannot claim that receipt of the unwanted
calls was also his injury under section 9.
This argument rests on a flawed premise. The section 2
violation did not occur when Nightingale received the excessive
calls. It occurred when Defendants initiated them. The plain
text of the applicable regulation makes this clear. Under
Massachusetts law, a debt collector violates section 2 when it
"[i]nitiat[es] a communication with any debtor via
- 12 - telephone . . . in excess of two such communications in each
seven-day period." See 940 Mass. Code Regs. § 7.04(1)(f) (emphasis
added). According to the Supreme Judicial Court, a debt collector
"initiates" a communication "every time it attempts to contact a
debtor's telephone to convey information." Armata v. Target Corp.,
99 N.E.3d 788, 793 (Mass. 2018).
To be sure, as Defendants point out, the Armata court
acknowledged the Massachusetts Attorney General's guidance that
"unsuccessful attempts . . . to reach a debtor via telephone may
not constitute initiation of communication if the creditor is truly
unable to reach the debtor or leave a message for the debtor."
Id. at 792 (emphasis added) (quoting Off. of the Mass. Att. Gen.,
Guidance with Respect to Debt Collection Regulations (2013),
https://perma.cc/V4Q8-Y39E). For instance, the court noted that
a collector does not "initiate" a communication within the meaning
of the regulation if the debtor "do[es] not answer and [his]
voicemail or answering system is not set up." Id. at 793.
Defendants seize on this language: If "initiation" of a call does
not occur when the caller is "unable" to reach the debtor, then
initiation is not distinct from the section 9 injury of receipt.
Rather, initiation requires receipt. So, in Defendants' view, the
section 2 violation is not distinct from the section 9 injury at
all.
- 13 - But the Attorney General's guidance does not entirely
(or even mostly) eliminate the distinction between initiation and
receipt. Even under that guidance, there are many circumstances
in which a collector can unlawfully "initiate" a call without
causing an injury (i.e., receipt) under section 9. All that
matters is that the debtor be "able to" receive the call, even if
he ultimately does not. Id. at 793–94. For example, a caller
could opt out of leaving a voicemail, even though it is possible
to do so. Id. at 796 n.14 ("The Attorney General's guidance
provides no exemption for those who voluntarily choose not to leave
voicemail messages."). Or a caller could leave a voicemail that
the debtor never listens to. In either case, the collector has
still "initiated" an unlawful call. But the collector has not
caused any injury, because the call was never received. The
section 2 violation can therefore exist without a corresponding
section 9 injury.
More broadly, we do not read Tyler as rejecting the
possibility that injury can play a dual role, serving as both an
element of a violation and a basis for seeking redress for that
violation. For example, civil battery in Massachusetts requires
an "intentional touching 'that [is] offensive to the victim.'"
Gallagher v. South Shore Hosp., 197 N.E.3d 885, 911 (Mass. App.
Ct. 2022) (quoting Commonwealth v. Cohen, 771 N.E.2d 176, 178
(Mass. App. Ct. 2002)). Thus, in a battery action, offensive
- 14 - physical contact is both an element of the claim and the injury
that permits the plaintiff to seek redress. The plaintiff's injury
flows inexorably from the underlying tortious conduct. By the
same token, we do not read Tyler to say that there is no chapter 93A
liability in cases where a section 2 violation inexorably causes
a section 9 injury, such as when a call is only "initiated" upon
the debtor's decision to answer it. Rather, we read Tyler as
holding that no liability attaches in cases where a bare section 2
violation causes no injury at all, such as when the debtor does
not know about the unlawful call in the first place. So, even if
Defendants were correct (and they are not) that an excessive call
is only "initiated" when it is "received," their argument would
still fail. The mere fact that many calls initiated in violation
of section 2 inexorably cause a section 9 injury does not strip
debtors who receive these unwelcome calls of any recourse under
chapter 93A.
We therefore conclude that Nightingale has alleged more
than a per se theory of liability. That, though, is not the end
of our business. The fact that Nightingale's alleged injuries are
distinct from Defendants' section 2 violation does not necessarily
render those injuries cognizable. To determine whether the
injuries are cognizable, we must examine each theory of injury --
invasion of privacy and emotional distress -- in turn.
- 15 - 2.
In Tyler, a merchant unlawfully recorded a consumer's
personal identification information (i.e., her zip code), used
that information "in conjunction with other
commercially[ ]available databases to find her address and
telephone number," and then sent her "unsolicited and unwanted
marketing materials." 984 N.E.2d at 739. The merchant's unlawful
recording of the consumer's zip code violated section 2 of
chapter 93A. Id. at 740. And the merchant's subsequent mailing
of marketing materials to the plaintiff caused an injury under
section 9, because "receipt of unwanted marketing material as a
result of [unlawful recording of personal identification
information] represents an invasion of the consumer's personal
privacy causing injury or harm worth more than a penny." Id. at
746 n.20. Accordingly, the plaintiff had alleged a cognizable
injury under section 9.
The logic from Tyler applies here. Defendants initiated
excessive debt collection calls, which violated section 2. See
940 Mass. Code Regs. § 7.04(1)(f). The parties agree that
Nightingale received some of those unlawful calls. And like
Tyler's receipt of unwanted marketing materials, Nightingale's
receipt of the calls was an "invasion of [his] personal privacy
causing injury or harm worth more than a penny." 984 N.E.2d at
- 16 - 746 n.20. So, Nightingale has also established a cognizable
privacy-related injury under section 9.
Defendants offer three unconvincing rejoinders.
First, they reiterate the argument that Nightingale
advances an impermissible per se theory of injury. We have already
discussed why that argument fails.
Second, Defendants argue that Nightingale has not shown
an appreciable or significant invasion of privacy. For instance,
Nightingale rarely picked up the calls, and did not allege that
the calls disrupted his routine in any way. But this argument
again ignores Tyler. That case made clear that mere receipt of
unwanted communications causes a cognizable privacy-related injury
under section 9, assuming such receipt stems from a section 2
violation. See id. at 746 n.20. To be sure, if Nightingale could
produce additional facts showing that the calls severely invaded
his privacy, then he might be entitled to something more than
nominal damages. But under Massachusetts law, which we must apply,
this added severity would only affect the size of Nightingale's
award, not his entitlement to one in the first place.
Third, Defendants argue that because Nightingale is a
debtor, he has a reduced privacy interest under Massachusetts law.
True enough. See Schlesinger v. Merrill Lynch, Pierce, Fenner &
Smith, Inc., 567 N.E.2d 912, 915 n.6 (Mass. 1991) (noting that a
debtor "knows that [a] creditor may take action to collect the
- 17 - debt and thus has a lower expectation of privacy than [a] person
who receives unsolicited [sales] calls"). But the regulation
against excessive debt collection calls balances any diminished
privacy interest against Nightingale's right to be free from
creditor harassment. That is why creditors may call him twice
every seven days, but no more. See 940 Mass. Code Regs.
§ 7.04(1)(f). Once Nightingale receives excessive collection
calls, the caller has caused a privacy-related injury under
section 9. Nightingale's reduced privacy interest is not a
get-out-of-jail-free card that allows debt collectors to violate
chapter 93A with impunity.
We therefore find that Nightingale has demonstrated a
cognizable privacy-related injury under section 9 for purposes of
summary judgment. The district court's contrary conclusion was
legal error.
3.
Nightingale also claims injury in the form of emotional
distress. In his deposition testimony, Nightingale broadly
averred that he found the repeated debt collection calls
"frustrat[ing]" and "harassing." Defendants argue that
Nightingale did not state a cognizable emotional distress injury,
because he did not allege "measurable emotional distress." In
other words, Defendants seem to suggest that an emotional distress
injury is not cognizable under chapter 93A without "corroborating
- 18 - testimony or medical or psychological evidence concerning the
manifestations of [Nightingale's] alleged emotional distress."
We disagree. Defendants identify no Massachusetts case
law suggesting that emotional injuries must be "measurable" to be
cognizable under chapter 93A. Defendants point only to Tyler's
statement that it "seem[ed] unlikely" that the merchant's unlawful
conduct in that case caused the plaintiff "measurable emotional
distress." 984 N.E.2d at 746 n.20. But the Tyler court was
discussing damages, not liability. That is, the court said that
an emotional injury must be "measurable" before a plaintiff can
receive actual damages, rather than a statutory nominal damages
award of $25. Id. (citing Mass. Gen. Laws ch. 93A, § 9(3)). It
never said that an emotional injury must be "measurable" to be
cognizable in the first place.
On the contrary, under both Tyler and its progeny, an
injury can be cognizable under chapter 93A even if it is not
measurable for damages purposes. See Hershenow, 840 N.E.2d at 533
n.18 (noting that chapter 93A's option of $25 nominal damages
"eliminates the need to quantify an amount of actual damages if
the plaintiff can establish a cognizable loss caused by a deceptive
act") (emphasis added); cf. Tyler, 984 N.E.2d at 746 n.20 (awarding
nominal damages for invasion of privacy, because even though the
plaintiff's underlying injury was not "measurable," it was
nevertheless "worth more than a penny").
- 19 - Other Massachusetts case law also cuts against
Defendants' position. The Massachusetts Appeals Court's decision
in Wilson is instructive. That case involved repeated debt
collection calls, which the plaintiff only answered a "few times."
2014 WL 4187532, at *1. The plaintiff testified that the calls
caused her emotional distress, because they were "aggressive,"
"threatening," and "intimidat[ing]." Id. at *4. The court first
noted that an emotional distress injury under chapter 93A need not
be "easily quantified." Id. at *3. It then found that the
plaintiff's testimony that she felt "intimidated" by the
collection caller was "sufficient to support a finding that each
call [the plaintiff] received from [the defendant] . . . caused
[the plaintiff] emotional distress." Id. at *4. Thus, Wilson
stands for the proposition that emotional injury is cognizable
under chapter 93A even if it is not "easily quantified" or
corroborated by evidence other than the plaintiff's testimony.
Defendants try to distinguish Wilson. But they offer
little more than superficial factual distinctions between Wilson
and this case, such as the fact that the debt collector in Wilson
spoke in a "threatening" manner and called from anonymous numbers.
Id. at *2–4. Defendants never explain how their proposed rule --
that a chapter 93A plaintiff must, via corroborating evidence,
show a "measurable" manifestation of emotional injury -- is
consistent with Wilson's statements that a chapter 93A emotional
- 20 - injury need not be "easily quantified" and can rest entirely on
the plaintiff's own testimony. Id. at *3–4.
To be sure, there are other circumstances in which a
claim for emotional injury will require corroborating evidence
beyond the plaintiff's testimony. Again, under Massachusetts tort
law, a plaintiff cannot recover for mere negligent infliction of
emotional distress without showing "physical harm manifested by
objective symptomatology." Payton, 437 N.E.2d at 181. But there
is nothing in either the statutory text or Massachusetts case law
to suggest that such a showing must be made to recover damages
under chapter 93A. Indeed, the provision for nominal damages of
$25 recognizes that chapter 93A damages will often be small and
hard to measure.
We therefore find that Nightingale stated a cognizable
emotional distress injury under chapter 93A for purposes of
summary judgment.6
6 Defendants also suggest that Nightingale had to present expert testimony to show that the excessive calls caused his "increased levels of stress." But we doubt that a jury would require medical expert testimony to reasonably infer the causal relationship between persistent and excessive debt collection calls and Nightingale's feelings of "harass[ment]" and "stalking." Cf. Cady v. Marcella, 729 N.E.2d 1125, 1132 (Mass. App. Ct. 2000) (holding that jury did not require a medical expert to explain the self-evident connection between plaintiffs' loss of half their house and the resulting physical symptoms of emotional distress).
- 21 - C.
In summary, we find that Nightingale (1) did not advance
an impermissible per se theory of injury under chapter 93A;
(2) offered proof of cognizable privacy-related injuries under
section 9 of chapter 93A; and (3) offered proof of cognizable
emotional distress injuries under section 9 of chapter 93A. We
therefore vacate the district court's grant of summary judgment to
Defendants.
III.
We now proceed to the district court's denial of class
certification. We review class certification orders for abuse of
discretion. In re Asacol Antitrust Litig., 907 F.3d 42, 51 (1st
Cir. 2018). A 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." Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 37
(1st Cir. 2003). A district court also abuses its discretion when
it "adopts an incorrect legal rule." Id.
To obtain class certification under Rule 23(b)(3), a
plaintiff must show, among other things, that "questions of law or
fact common to class members predominate over any questions
affecting only individual members." Fed. R. Civ. P. 23(b)(3).
This requirement is called the "predominance" requirement. The
predominance inquiry tests whether the court can deal with
- 22 - dissimilar class member claims in a manner that is not "inefficient
or unfair." In re Asacol Antitrust Litig., 907 F.3d at 51 (citing
Richard A. Nagareda, Class Certification in the Age of Aggregate
Proof, 84 N.Y.U. L. Rev. 97, 107 (2009)). As we have explained:
Inefficiency can be pictured as a line of thousands of class members waiting their turn to offer testimony and evidence on individual issues. Unfairness is equally well pictured as an attempt to eliminate inefficiency by presuming to do away with the rights a party would customarily have to raise plausible individual challenges on those issues.
Id. at 51–52.
Here, the district court denied class certification on
predominance grounds. Specifically, the court found that even if
Nightingale's submitted call logs could prove that Defendants
called each class member too many times, they could not prove that
the resultant privacy violations rose to the level of intrusion
upon seclusion, which requires an "unreasonable and substantial or
serious" invasion of the plaintiff's privacy. See Polay, 10 N.E.3d
at 1126. Thus, individualized factual inquiries into the severity
of the intrusions on each class member's privacy would predominate
over common issues, rendering class certification inappropriate.
As our preceding discussion explains, the district
court's analysis rested on an "incorrect legal rule." Smilow, 323
F.3d at 37. The district court assumed that each class member
would need to demonstrate the elements of intrusion upon seclusion
- 23 - to establish liability. That is not the case. Under Tyler, mere
receipt of the unwanted debt collection calls would constitute a
cognizable invasion of privacy under section 9. 984 N.E.2d at 746
n.20. Thus, Nightingale's submitted call logs -- which purport to
demonstrate when a class member was called, how many times they
were called, and (importantly) the outcomes of those calls -- might
serve as "common proof" that Defendants invaded each class member's
privacy.
Whether that is so, we need not -- and do not -- decide
here. For now, it is enough to vacate the denial of class
certification, and to remand to the district court for (1) further
fact-finding on the sufficiency of the call records as "common
proof" of class-wide legal and factual issues; and
(2) consideration of any remaining class certification factors,
including the core certification requirements of Rule 23(a) and
the remaining requirements of Rule 23(b)(3).
IV.
For the foregoing reasons, the district court's grant of
summary judgment to Defendants is vacated. The district court's
denial of class certification is also vacated, and the case is
remanded for further proceedings consistent with this opinion. The
parties shall bear their own costs.
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