442 F.Supp.3d 443
D. Mass.2020Background
- Ioana and Alexander Conley rented an apartment at a Roseland-managed building from 2014–2018; leases allocated gas, hot water, and water/sewer charges to tenants via submetering.
- Roseland contracted RealPage to calculate and bill submetered utilities; tenants paid monthly through Roseland's portal.
- Deviations: RealPage applied a 40% deduction (rather than separately measuring) for non-tenant gas usage; Roseland failed to file required water/sewer certification with the local board of health until March 2018 (after tenants moved out).
- Roseland obtained a 2013 Maiden Board of Health variance permitting a master gas meter and allocation system; the Massachusetts DPH issued a 2013 memorandum claiming such variances were invalid, but Roseland was not afforded the regulatory notice/hearing required to revoke the variance.
- The Conleys sued (putative class) alleging Chapter 93A unfair/deceptive practices and negligent misrepresentation based on unlawful submetering; court denied class certification and granted summary judgment for Roseland and RealPage, dismissing remaining claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Class certification (predominance, typicality, adequacy) | Seek class of all tenants charged for submetered utilities; liability is uniform because submetering itself was unlawful | Defendants: individualized issues of causation, reliance, damages; named plaintiffs atypical and inadequate | Denied: common issues met, but named plaintiffs not typical/adequate for class because some class members may assert pecuniary-overcharge claims the Conleys disavow |
| Legality of gas submetering / effect of DPH memorandum | Variance invalid under DPH memo; if variance invalid, submetering unlawful and Chapter 93A triggers | Roseland: variance valid under local regulatory authority; DPH memo not binding and variance was not properly revoked (no required written notice/hearing) | Granted to defendants: variance remained valid and gas submetering lawful; DPH memo did not void variance |
| Water/sewer submetering compliance and Chapter 93A injury | Roseland failed to file required certification, making submetering unlawful and an unfair/deceptive act under Chapter 93A | Roseland: violation was technical, remedied promptly after notice; no separate, identifiable injury because tenants received the services bargained for | Judgment for defendants: regulatory breach was negligent/technical not Chapter 93A conduct; plaintiffs suffered no Chapter 93A injury (they received what they bargained for) |
| Negligent misrepresentation (false billing; reliance; pecuniary loss) | Monthly bills and collection constituted false information inducing payments when tenants legally owed nothing | Defendants: no actionable pecuniary loss because tenants received the utilities and rent/utility economics mean no net loss; reliance/causation insufficient | Judgment for defendants: negligent misrepresentation fails for lack of pecuniary loss; plaintiffs received contracted services |
Key Cases Cited
- Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 568 U.S. 455 (class predominance/cohesion standard)
- In re Asacol Antitrust Litig., 907 F.3d 42 (1st Cir.) (class certification and administrative feasibility of damages)
- Shaulis v. Nordstrom, Inc., 865 F.3d 1 (1st Cir.) (Chapter 93A injury/receipt of bargained-for goods)
- Bellermann v. Fitchburg Gas & Elec. Light Co., 475 Mass. 67 (2016) (regulatory violation does not alone establish Chapter 93A injury)
- Gossels v. Fleet Nat'l Bank, 453 Mass. 366 (negligent misrepresentation elements and pecuniary loss requirement)
- In re TJX Cos. Retail Sec. Breach Litig., 246 F.R.D. 389 (D. Mass.) (reliance/causation issues and class typicality/individualized defenses)