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First, Judge Kaplan found that the nature of the putative-class claims would turn on individual proof. More specifically, a violation of 940 Code Mass. Regs. §§ 3.05(1) and 3.16(2) requires a showing that the defendant failed to disclose a material fact. As Judge Kaplan pointed out, “there is no statutory or regulatory requirement that used car dealers provide written disclosure of structural damage to buyers.” “If such a rule existed,” he noted, “there might be no need for individualized proof . . . [because] the nondisclosure would be material as a matter of law.” But in the absence of any such rule, “evidence would be necessary for each putative class member not only to determine the amount of damages, but whether a claimant suffered any damages at all and therefore could be a member of the class.” And there was “little evidence,” according to Judge Kaplan, “that the experience of the putative class members mirrored that of Cabrera,” whose car, according to Cabrera’s expert, was allegedly unsafe and not in merchantable condition when Cabrera purchased the car from Auto Max.

Second, Judge Kaplan found that “certification is . . . inappropriate because the class is not ascertainable.” “No Massachusetts appellate decision,” Judge Kaplan observed, “has yet specifically addressed the question of whether ascertainablity should be considered in determining whether a class may be certified under Rule 23 or c. 93A.” But he further noted that, under federal decisions, ascertainablity “is an implicit element that must be established before a class may be certified.” Quoting federal caselaw, Judge Kaplan wrote: “[t]o be ascertainable, all class members need not be identified at the outset; the class need only be determinable by stable and objective factors.” But when “class members [are] impossible to identify prior to individualized fact-finding and litigation, the class fails to satisfy one of the basic requirements for a class action under Rule 23.” 

Turning to the matter at hand, Judge Kaplan wrote:

In this case, while auction documents and Auto Max’s sales files identify the individuals who purchased cars that were labeled as having structural damage, those records are inadequate to identify which of those purchasers, if any, suffered a loss as a result of nondisclosure. Such a determination would require individualized fact finding regarding the circumstances of the sale, specifically whether the plaintiff had prior knowledge of the structural damage, whether the nature of the damage was material, and whether the sale price reflected that damage. Accordingly, certification is also inappropriate because the class is not ascertainable.

The Business Litigation Session of the Massachusetts Superior Court

Docket Number: 20186-01227-BLS1

Case Name: Carlos Cabrera, individually and on behalf of all others similarly situated v. Auto Max Preowned, Inc., and others

Date of Decision: June 14, 2019

Judge’s full name: Mitchell H. Kaplan, Justice of the Superior Court