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Smilow v. Sw. Bell Mobile Sys. - 323 F.3d 32 (1st Cir. 2003)


A district court must conduct a rigorous analysis of the prerequisites established by Fed. R. Civ. P. 23 before certifying a class. To obtain class certification, the plaintiff must establish the four elements of Fed. R. Civ. P. 23(a) and one of several elements of Fed. R. Civ. P. 23(b). The Fed. R. Civ. P. 23(a) elements are (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation.


Class representative Jill Ann Smilow (“Smillow”) alleged that Southwestern Bell Mobile Systems, Inc. (“Bell”) breached its contract when it charged the consumer and others similarly situated for incoming calls on their cellular phone service. The district court granted Bell's motion to decertify the "incoming call" class on the grounds that common issues of fact did not predominate. Smillow appealed.


Was Willow able to establish a valid basis for the decertification of Bell?




The United States Court of Appeals disagreed and found that the district court's decertification of the classes as well as its denial of the motion to substitute a new class representative, rested on fundamental errors of law and fact. The common question of law was whether the terms in the contract precluded the company from charging for incoming calls. Bell’s waiver defense was also common to the class. With regard to the claims under Mass. Gen. Laws ch. 93A, even if the class could not show actual damages under ch. 93A, they could obtain statutory damages if liability was established. The hypothetical conflict between a statutory damages group and an actual damages group provided no basis for decertification. Because Swillow did not address the decertification of the class in the TCA claim that issue was waived. The judgment was reversed and the matter was remanded to the trial court.

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