Superior Court of Massachusetts, Suffolk, Business Litigation Session
Siew-Mey Tam, on Behalf of Herself and Others Similarly Situated et al.
Federal Management Co., Inc. et al No. 135570
December 1, 2016
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR
DECERTIFICATION OF CLASS ACTION
P. Leibensperger, Justice
December 16, 2015, this court (Brieger, J.) allowed a motion
to certify a class of current and former employees of Federal
Management Co., Inc. (" Federal") alleging the
failure of Federal to pay them for overtime hours worked. The
class of employees certified was " all current and
former Property Managers" employed by Federal from
January 1, 2005, to the present. The Court carefully
reviewed each of the prerequisites for class certification
under Mass.R.Civ.P. 23 and found that they were satisfied.
Among other findings, the Court concluded that on the
pre-discovery record plaintiffs, Siew-Mey Tam and Mary Jane
Raymond, were adequate representatives of a class of
approximately 40 current or former property managers.
Defendants took an interlocutory appeal of the class
certification order. The Appeals Court affirmed. Following
the certification, discovery by both sides ensued, including
the depositions of the named plaintiffs.
and the individual defendants, now move to decertify the
class based, principally, on the ground that discovery has
shown that Tam and Raymond are not adequate class
representatives. Defendants also take the opportunity to ask
the Court to re-visit all of the other criteria for class
certification. For the reasons stated below, the motion will
Class Cert. Order, Judge Brieger noted that the facts of this
case are relatively straightforward and undisputed. Federal
manages seventeen residential, commercial and retail
properties, providing building operations, financial
administration, leasing and regulatory compliance services.
For each property Federal employs a property manager who may
have anywhere from two to seventeen employees reporting to
her/him. Raymond was employed by Federal as a property
manager from February 1990 to March 2011. Tam was employed by
Federal as a property manager from May 2005 to May 2012.
Raymond allege that they were paid a salary and an annual
bonus, but no additional amount for overtime hours worked.
According to the Class Cert. Order, Tam and Raymond
acknowledge that upon inquiring to Federal about overtime
pay, Federal informed them that, as property managers, they
were exempt from the legal requirement to pay overtime. That
is because they were allegedly employed, as described in the
pertinent statute, G.L.c. 151, § 1A, " as a bona
fide executive, or administrative or professional person
earning more than eighty dollars per week." Plaintiffs
now contest that categorization. They assert that they should
proceed as a class consisting of all persons employed by
Federal as property managers to challenge Federal's
position that they are exempt employees.
Class Cert. Order, the court rejected plaintiffs'
argument that they were entitled to class treatment under a
" similarly situated" theory based on the language
in G.L.c. 149, § 150 and c. 151, § 1B. Instead, the
court analyzed whether plaintiffs met the requirements for a
class action under Mass.R.Civ.P. 23. The court discussed each
element required for class certification and concluded that
class certification was appropriate. The court also noted
that discovery might affect the class certification calculus.
For example, defendants' argument that some putative
class members may be barred by the statute of limitations was
deferred for consideration " [i]n light of ongoing
discovery." Class Cert. Order, p. 7 n.7. Also, with
respect to the " commonality" requirement, the
court noted that " Federal contends that Plaintiffs'
common law claims fail to satisfy the 'commonality'
requirement because not all of the individual Property
Managers seeking to be joined to the potential class
performed the exact same duties as the other property
managers. In light of ongoing discovery such arguments are
better addressed at the summary judgment stage. Here, the
court assesses only whether Plaintiffs have made the baseline
showing for class certification under Rule 23." Class
Cert. Order, p. 8 n.8.
appealed the certification of the class. On February 9, 2016,
the Appeals Court denied defendants' petition. The court
wrote " I discern no error in the judge's careful
exercise of her 'broad discretion to certify or decertify
a class.' The factual bases alleged by the defendants to
support decertification are appropriate subjects for
continued discovery, properly consigned to the judge's
superintendence of the case, and may provide the basis for
additional motions at an appropriate time." (Citation
21, 2016, the parties appeared before the court (Ames, J.).
The purpose of the hearing was to determine the substance of
class notice and process. Defendants used the occasion to
bring before the court the deposition of Tam that had been
taken on May 26, 2016. Defendants alleged that Tam's
deposition testimony was grossly and materially inconsistent
with her affidavit that had been submitted to the court in
connection with plaintiffs' motion to certify the class.
The court agreed that the deposition testimony " calls
into credibility essential issues that were considered by the
court in certification." Transcript, June 21, 2016, p.
1-32. As a result, the court stayed the issue of class notice
and gave leave to defendants to serve and file a motion to
decertify the class.
this action was transferred to the Business Litigation
Session. On September 23, 2016, defendants filed their motion
for decertification. Oral argument was heard on the motion on
October 26, 2016.
provided as Exhibit F to the Affidavit of Michael C. Birch a
copy of the Affidavit of Siew-Mey Tam, dated September 5,
2014, submitted by plaintiffs in support of their motion to
certify the class. Next to the paragraphs of the Affidavit,
defendants inserted citations to Tam's deposition
testimony that contradict or concede as error or as
unsupported, key portions of the Affidavit. I have reviewed
the deposition testimony cited by defendants.
Affidavit, Tam stated that she did not interview, select,
train or supervise any employees. In her deposition, however,
she testified that she did interview potential employees, and
supervise and evaluate the performance of employees. When
confronted with her Affidavit, she admitted that her
statements in the Affidavit were not true. In her Affidavit,
Tam stated that she was not responsible for preparing and/or
planning the budget for her property. In her deposition,
however, she testified that she did prepare budgets. She
admitted in her deposition that her Affidavit was "
wrong" and " incorrect." These are two
significant examples of numerous other inconsistencies in her
Affidavit as compared to her deposition.
class certification, it was also important to know whether
other property managers employed by Federal were similarly
situated with Tam such that their factual presentation would
be common to all property managers. In her Affidavit, Tam
averred that " all" property managers regularly
worked more than 40 hours per week and their duties did not
include the exercise of discretion and independent judgment.
Specifically, she stated that property managers did not carry
out major assignments, formulate, affect, interpret or
implement policies or operating practices and were not
involved in planning long or short-term business objectives.
In her deposition, however, Tam admitted that she ...