Saturday, April 9, 2022

FYI: MA SJC Holds Attorney for Deceased Named Putative Class Plaintiff Could Not Act for Putative Class

The Massachusetts Supreme Judicial Court (SJC), the state's highest court, recently held that:


(1) The attorney for a named putative class plaintiff who is deceased does not have authority to act on behalf of the deceased plaintiff absent a motion by the deceased's legal representative; and


(2) In limited circumstances, trial courts may sua sponte order notice to putative class members prior to certification only when absent notice the putative class members would face significant prejudice.


A copy of the opinion is available at:  Link to Opinion


This matter involved a five-count complaint asserting both individual and putative class allegations.


Prior to the plaintiff's counsel filing for class certification, the plaintiff died. Plaintiff's counsel then filed a motion to (1) order notice to putative class members informing the members of plaintiff's death and inviting them to join the action; (2) order the defendant to identify the names and addresses of putative class members; and (3) extend case deadlines to allow for a substituted class representative and completion of discovery.


Defendant opposed the motion on the basis that Plaintiff's counsel had no authority to act on behalf of Plaintiff or any other putative class member.  Nevertheless, the motion was granted and Defendant filed a petition for interlocutory relief.


Under Massachusetts law, class actions are governed by Mass. R. Civ. P. 23. As this rule was written in light of Fed. R. Civ. P. 23, the SJC noted that case law construing the Federal rule was analogous. Chambers v. RDI Logistics, Inc., 476 Mass. 95, 111 (2016).


The Court first addressed "[w]hether a deceased plaintiff's attorney ha[d] the authority to act on the deceased plaintiff's behalf prior to class certification, and before any motion to certify a class had been filed, and without motion by the plaintiff's legal representative to substitute as a party to the putative class action."


The SJC held that Plaintiff's counsel lacked authority to act on behalf of deceased Plaintiff or the putative class. An attorney's authority to act on behalf of a client is terminated on that client's death. Kelley v. Neilson, 433 Mass. 706, 710 n.8 (2001) (attorney's authority to act on behalf of client "expired on her death"). Therefore, the SJC found that the attorney of a deceased plaintiff, absent a motion by the deceased's legal representative, may not act on behalf of the deceased. See Federal Ins. Co. v. Ronan, 407 Mass. 921, 923 n.6 (1990), quoting Turner v. Minasian, 358 Mass. 425, 427 (1970) ("On the death of the client there is no legal representative before the court and counsel's authority was automatically terminated by his death…. No effective action can be taken until a legal representative is made a party" [alterations omitted]).


The SJC noted that, although "counsel for a class has a continuing obligation to each class member," Spence v. Reeder, 382 Mass. 398, 409 (1981), counsel's authority to act on behalf of a certified class is not necessarily terminated on the death of the named plaintiff. See Id., Bartle v. Berry, 80 Mass. Pp. Ct. 372, 386 (2011), quoting Parker v. Anderson, 667 F.2d 1204, 1211 (5th Cir. 1982). However, as the putative class in the instant matter was not yet certified, the Court held that any relationship between the putative class and Plaintiff's counsel would be too attenuated to vest in counsel an obligation to act on behalf of the class.


The SJC also held that Plaintiff's counsel was not in the position to act on behalf of anyone whose interests had been implicated in the putative class action as Plaintiff's counsel:  (1) had not moved for class certification, (2) had failed to located Plaintiff's personal representative; and (3) had failed to identify other potential members of the putative class that could serve as the class representative.


Finally, the SJC noted that while attorneys sometimes act as officers of the court, see, e.g., ABA Formal Op. 95-397 (Sept. 18, 1995), allowing Plaintiff's counsel to act as an officer of the court in this instance would be to allow counsel to utilize the courts as an "instrument of client solicitation."


The SJC next turned to the question of whether the trial court had "the power to order, sua sponte, notice to the putative class members under Mass. R. Civ. P. 23(d)." The SJC held that the trial judge had the power to order notice if the putative class members would otherwise face significant prejudice.


The Court first examined the plain language of Mass. R. Civ. P. 23 (d) which the SJC found vested the trial court with discretionary power to order notice during class actions. The Court further noted this reading was supported by federal case law.


The SJC also found that the discretion given under rule 23 (d) could be exercised sua sponte as Mass. R. Civ. P. 23(d) does not refer to any necessary request for relief. Cf. Mass. R. Civ. P. 15(d), 365 Mass. 761 (1974).


Finally, the SJC held that this discretion could be exercised prior to class certification, if there is a finding of significant prejudice. See Marian Bank v. Electronic Payment Servs., Inc., U.S. Dist Ct., No SLR (D. Del. Mar. 12, 1999).


The Court relied on its duty to "fairly and adequately protect the interests of the class in whose behalf the action [was] brought or defended." Thus, the SJC concluded that ordering notice under Mass. R. Civ. P. 23 (d) prior to class certification is a clear abuse of discretion if the court has not found that putative class members would face significant prejudice absent such notice.


Accordingly, the SJC reversed the lower court's order, and remanded the case for further proceedings consistent with its opinion.




Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
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Chicago, Illinois 60602
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