MOLLY HENRY & others [Note 1] vs. BOZZUTO MANAGEMENT COMPANY.

HAND, J. The plaintiffs, Molly Henry and Jon Henry, brought suit against the defendant, Bozzuto Management Company, alleging on behalf of themselves and "all others similarly situated" that the defendant had mishandled tenants' security deposits, violating G. L. c. 186, § 15B; 940 Code Mass. Regs. § 3.17; and G. L. c. 93A. The action, initiated in the Superior Court, was transferred to the Housing Court. Having stayed certain discovery in the case, a judge of the Housing Court denied the plaintiffs' motion for class certification and entered summary judgment in favor of the defendant on all claims. On appeal, the Henrys argue that the judge erred in denying the Henrys' motion for class certification, allowing the defendant's motion for summary judgment on the plaintiffs' claims under G. L. c. 186, § 15B (4) (iii) (G. L. c. 186 claims), and G. L. c. 93A, § 9 (G. L. c. 93A claims), and allowing the defendant's motion to quash the Henrys' deposition subpoena. We discern no error in the denial of the motion for class certification or in the allowance of the motion to quash; however, we conclude that the entry of summary judgment for the defendant on the plaintiffs' G. L. c. 186 and G. L. c. 93A claims was improper. We remand the case to the Housing Court for further proceedings consistent with this opinion, including the entry of judgment for the Henrys on the G. L. c. 186 claims. [Note 2]

Facts. The following facts are uncontested. In December, 2013, the Henrys entered into a one-year written lease with AvalonBay

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Communities, Inc. (AvalonBay), for an apartment in a building in Danvers (Danvers property). They completed a "Move-In/Move-Out Checklist" on AvalonBay's preprinted form. [Note 3] In addition to the first month's rent, the Henrys provided Avalonbay with a $1,250 security deposit.

During the Henrys' tenancy, Avalonbay sold the Danvers property. At the time that the Henrys signed another lease in September, 2014, the defendant managed the Danvers property. The Henrys' security deposit was carried over to the new tenancy without the completion of a new security deposit agreement.

The Henrys terminated their lease on September 1, 2015, prior to its contractual end date of December 17, 2015. By letter dated September 15, 2015, the defendant advised the Henrys that they owed a balance of $102.94 over the amount of their security deposit. The letter enclosed an unsigned spreadsheet titled "Move Out Statement," which identified certain charges and payments, including "damages" of $1,260, assessed against the Henrys at the time that they left the apartment. [Note 4] On October 3, 2015, Jon Henry contacted the defendant seeking a more detailed explanation of the damages to which the security deposit had been applied. In response, the defendant provided the Henrys with several photographs of the apartment condition after their move, an invoice for replacement carpet, and an invoice from a cleaning service. On October 7, 2015, thirty-six days after the Henrys' departure, the defendant sent them a copy of the "Move-In/Move-Out Checklist" that they had completed in 2013. But see G. L. c. 186, § 15B (4) (iii) (landlord required to provide tenant with itemized list of damages within thirty days of termination of tenancy). The form included notations concerning the "move-out condition" of the apartment, and a signature by a representative of "management," [Note 5] but it had not been signed by the Henrys.

As far as the record reveals, the Henrys had no additional contact with the defendant until nearly a year later. On October 6, 2016, the Henrys sent G. L. c. 93A, § 9 (3), demand letters to the defendant on behalf of themselves and a putative class of similarly

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situated former tenants seeking (1) return of three times the Henrys' security deposit, (2) return of three times the security deposits of each "similarly situated" person, and (3) the defendant's agreement not to commit "any further violations of [G. L. c.] 186, § 15B." The defendant made two efforts to settle the case: on November 7, 2016, [Note 6] the defendant offered to settle all claims for $2,500; on December 1, 2016, the defendant tendered a check made out to the Henrys for the full amount of the Henrys' demand to settle their individual claims, $3,875. [Note 7] Neither the settlement offer nor the tender addressed the Henrys' claims on behalf of others "similarly situated." The Henrys rejected both the offer and the tender.

On December 9, 2016, the Henrys filed suit in the Superior Court on behalf of themselves and a putative class of others "similarly situated." The complaint alleged violations of G. L. c. 186, § 15B (2) (c), as "per se unfair and deceptive practices" under 940 Code Mass. Regs. § 3.17(4)(e) (count I); [Note 8] violations of G. L. c. 186, § 15B (4), as "per se unfair and deceptive practices" under 940 Code Mass. Regs. § 3.17(4)(f) and (g) (count II); and violations of G. L. c. 93A for the practices alleged in the first two counts (count III). The plaintiffs' claims for relief included the return of three times all plaintiffs' unlawfully retained security deposits; trebled nominal damages of at least twenty-five dollars for each plaintiff; injunctive relief requiring the defendant to cease violation of G. L. c. 186, § 15B; and attorney's fees and costs.

Procedural history. Following both motion practice in the Superior Court and a petition to a single justice of this court, the defendant removed the action to the Housing Court. At a case management conference, the parties stipulated in writing to a

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discovery schedule. The schedule included deadlines for document requests, interrogatories, and requests for admissions, as well as for motions for summary judgment and class certification, but did not provide for noticing or taking depositions before the motions referred to in the stipulation were decided. [Note 9] The parties exchanged written discovery. In responding to the defendant's request for admissions, each of the Henrys affirmed, under the pains and penalties of perjury, that they knew of other "similarly situated" tenants and of how the defendant produced its documents and correspondence.

On June 7, 2018, the Henrys served the defendant with a deposition notice pursuant to Mass. R. Civ. P. 30 (b) (6), 365 Mass. 780 (1974); the attached schedule A identified thirty-nine topics of inquiry and sought information about at least twenty-two properties managed by the defendant, and about "all other similarly situated" tenants. The defendant moved to quash the subpoena; the Henrys objected. The judge held a hearing on the motion to quash (which, due to a scheduling error, plaintiffs' counsel did not attend), [Note 10] afterward staying all depositions pending further court order. After another hearing in August, 2018, at which the Henrys' attorney did appear, the judge again stayed all depositions pending further order of the court -- from the hearing transcript, we conclude that the judge intended to revisit the stay, if necessary, after the resolution of the parties' motions for class certification and summary judgment.

The plaintiffs filed their motion for class certification and the defendant filed its motion for summary judgment; each side opposed the motion of the other. After a January 28, 2019, hearing on both motions, the judge denied the plaintiffs' motion for class certification and, citing Phillips v. Equity Residential Mgt., L.L.C., 478 Mass. 251 (2017), and Kohl v. Silver Lake Motors, Inc., 369 Mass. 795 (1976), allowed the defendant's motion for summary judgment, dismissing the Henrys' complaint. The plaintiffs appealed from the judgment.

Discussion. 1. Class certification. We first consider the Henrys' challenge to the denial of their motion for class certification pursuant to G. L. c. 93A. See G. L. c. 93A, § 9A (2). Acknowledging that our review of motions for class certification under

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G. L. c. 93A, § 9 (2), is "tempered by the 'public policy of the Commonwealth [which] strongly favors G. L. c. 93A class actions,'" we are also mindful of the fact that a judge is afforded broad discretion in ruling on a motion for class certification. Bellermann v. Fitchburg Gas & Elec. Light Co., 475 Mass. 67, 71 (2016), quoting Feeney v. Dell Inc., 454 Mass. 192, 200 (2009). Reviewing for an abuse of that discretion, we discern none. See Layes v. RHP Props., Inc., 95 Mass. App. Ct. 804, 821 (2019).

"A plaintiff will prevail on her motion for certification under c. 93A upon showings that (1) she was 'entitled to seek relief under c. 93A for . . . injuries resulting from the defendant[s' alleged] unfair or deceptive act or practice'; (2) the 'assertedly unfair or deceptive act or practice that caused [her] injuries "caused similar injury to numerous other persons similarly situated"'; and (3) the plaintiff 'would "adequately and fairly represent[ ] such other persons."'" Layes, 95 Mass. App. Ct. at 822, quoting Bellermann, 475 Mass. at 72. See G. L. c. 93A, § 9 (2). The plaintiff bears the burden of providing "'information sufficient to enable the motion judge to form a reasonable judgment that the class meets the requirements" of Mass. R. Civ. P. 23, as amended, 471 Mass. 1491 (2015), and G. L. c. 93A, § 9 (2), although it does "not bear the burden of producing evidence sufficient to prove that the requirements have been met' (emphasis added; citation omitted)." [Note 11] Layes, supra, quoting Kwaak v. Pfizer, Inc., 71 Mass. App. Ct. 293, 297 (2008).

Here, the plaintiffs sought class certification pursuant to G. L. c. 93A, § 9 (2), based on their contention that the defendant systematically engaged in practices that violated the security deposit laws, including G. L. c. 186, § 15B, and 940 Code Mass. Regs. § 3.17, and the consumer protection statute, G. L. c. 93A.

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While, as we discuss infra, the plaintiffs provided factual support for some of their individual claims, they failed to make the required showing of numerosity; they did not offer anything more than argument and speculation about whether and how the defendant's practices in handling tenants' security deposits affected anyone else. There was, accordingly, no evidentiary showing that any other person was affected as the plaintiffs were, let alone that there were numerous such persons. See Weld v. Glaxco Wellcome, Inc., 434 Mass. 81, 86 (2001), citing Makuc v. American Honda Motor Co., 835 F.2d 389, 394 (1st Cir. 1987) (where plaintiff could not produce evidence that even one other person was injured by defective axle, plaintiff's contention as to size of class was purely speculative). Cf. Gammella v. P.F. Chang's China Bistro, Inc., 482 Mass. 1, 11-15 (2019) (judge abused discretion in concluding plaintiff did not satisfy numerosity requirement given plaintiff's showing of thousands of instances of nonpayment to hundreds of employees, as well as absence of record-keeping justifying nonpayment). This was insufficient to support their claim to represent any class. In our view, the judge not only acted within his discretion in denying the defendant's motion for class certification under these circumstances; he was constrained to do so.

2. Summary judgment. We next consider the Henrys' challenge to the entry of summary judgment against them on the G. L. c. 186 claims and the G. L. c. 93A claims. [Note 12] We review the grant of a motion for summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in the nonmovant's favor. See Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680 (2016).

a. Claims under G. L. c. 186, § 15B. As to the G. L. c. 186 claims, there is no real dispute that the defendant failed to return any part of the Henrys' $1,250 security deposit within thirty days of the termination of the plaintiffs' tenancy, nor that it failed to satisfy the statutory requirement that it "provide to the tenant within such thirty days an itemized list of damages, sworn to by the lessor or his agent under pains and penalties of perjury, itemizing in precise detail the nature of the damage and of the

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repairs necessary to correct such damage, and written evidence, such as estimates, bills, invoices or receipts, indicating the actual or estimated cost thereof." G. L. c. 186, § 15B (4) (iii). The sanction for those violations is forfeiture by the landlord of the entire security deposit. [Note 13] See G. L. c. 186, § 15B (6) (b); Castenholz v. Caira, 21 Mass. App. Ct. 758, 762-763 (1986). There is likewise no dispute that, having received the Henrys' October 6, 2016, demand letter, the defendant responded with two attempts to settle the Henrys' claims before they filed their complaint. First, on November 7, 2016, the defendant offered double the amount of the security deposit; next, on December 1, 2016, the defendant tendered, unconditionally, triple the deposit, with interest. Both the offer and the tender exceeded the amount of damages that the Henrys, individually, could have recovered at trial under § 15B. See Phillips, 478 Mass. at 255. The Henrys rejected both the offer and the tender. The judge did not explicitly state the ground on which he granted summary judgment for the defendant; we discern from his order that he concluded that the defendant had made a reasonable tender to resolve the case, and that the tender defeated the plaintiffs' claims.

The Henrys argue that it was error to enter summary judgment against them, at least in part, due to the fact that none of the defendant's settlement efforts provided relief to the putative class, other than the Henrys. The Henrys also contend that, in any event, their individual claims were not mooted by the defendant's offer and tender of more than the amount that the Henrys, individually, could recover under § 15B.

The Henrys' briefing assumes the ongoing viability of the putative class. With the Henrys' appellate challenge to the denial of their motion for class certification now resolved against them, however, we revisit the effect of the defendant's tender of settlement on the Henrys' individual claims. In doing so, we consider other courts' recognition that in making a tender -- which requires production of the entire amount owed, and imports an admission of liability -- and not a conditional settlement offer, a defendant "provides the plaintiff with the relief she seeks" and, thus, eliminates any "actual controversy." See Joiner vs. SVM

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Mgt., LLC, Ill. Supreme Ct., No. 124671, slip op. at 15 (Feb. 21, 2020) ("tender," where defendant produces entire amount owed and admits liability, eliminates any live controversy and requires dismissal of plaintiff's claims). Cf. Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 156 (2016) (plaintiff's claims not mooted by offer of judgment, as parties remained adverse where plaintiff rejected defendant's settlement offer and defendant denied liability). We conclude that where, as here, the Henrys are limited to their individual claims under G. L. c. 186, § 15B (4) (iii), the defendant's tender of the full amount recoverable under § 15B in response to the Henrys' demand for return of the security deposit made the Henrys whole as to their claims under that section. It appears, accordingly, that there is no further dispute to be litigated between the Henrys and the defendant under G. L. c. 186, and the defendant has conceded the Henrys' individual claims. While we recognize that the judge was not required to dismiss the Henrys' claims as moot, [Note 14] we conclude that in the absence of any dispute to be litigated on the Henrys' G. L. c. 186 claims, judgment should have been entered for the Henrys on those claims. [Note 15] Accordingly, summary judgment should not have been entered for the defendant but, instead, for the Henrys, in the amount of the tender -- here, $3,875. [Note 16] See BourgeoisWhite, LLP v. Sterling Lion, LLC, 91 Mass. App. Ct. 114, 118-119 (2017), and cases cited (reversing summary judgment in favor of defendant and ordering new judgment to enter in favor of plaintiff).

The Henrys cite to both Massachusetts and Federal case law in support of their argument that their rejection of the defendant's

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offer equal to their maximum recovery under § 15B insulates those claims from mootness. We conclude that the facts of this case are distinguishable from those on which the Henrys rely because, here, the Henrys' class claims were correctly foreclosed.

We consider the Supreme Judicial Court's recent decision in Gammella, on which the Henrys rely heavily in their briefing. There, the plaintiff, individually and on behalf of a class, asserted claims against his employer for violations of the Wage Act, G. L. c. 149, § 150, and the minimum fair wage law, G. L. c. 151, § 20. See Gammella, 482 Mass. at 2, 4. After the trial court judge denied the plaintiff's motion for class certification, but before the plaintiff appealed from that ruling, the defendant tendered settlement in an amount greater than the amount that the plaintiff could have recovered at trial for his individual claims. See id. at 6-7. A judge allowed the defendant's motion to dismiss the plaintiff's individual claims on the grounds that the plaintiff had obtained "complete relief as to his individual claims . . . and accordingly those claims are moot." Id. at 8. On appeal, the Supreme Judicial Court reversed both the denial of the motion for class certification and the dismissal of the plaintiff's individual claims, see id. at 21, determining -- in that context, where the plaintiff's class claims had not been foreclosed -- that "the suit of a plaintiff who rejects a defendant's tender offer is not rendered moot," [Note 17] id. at 19. The same distinctions exist with respect to the other cases on which the Henrys rely. See Cantell v. Commissioner of Correction, 475 Mass. 745, 753-754 & n.16 (2016) (plaintiff inmates' individual

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claims based on their placement in "special management unit" not moot, despite individual plaintiffs' release from those units, because "the alleged wrongs set out in the amended complaint continue to affect the putative class"); Wolf v. Commissioner of Pub. Welfare, 367 Mass. 293, 293-294, 300 (1975) (plaintiff's individual claims for failure to make timely replacement of benefits not moot, despite department's replacement of named plaintiff's checks, where plaintiff might continue to represent class of others similarly situated). [Note 18]

In each of these cases, the plaintiff's class action claims had been resurrected on appeal; to moot the plaintiff's individual claims in that context would deprive the class of its named representative, potentially complicating the ability of the class to pursue its claims, and ultimately "frustrat[ing] the objectives of class actions." Gammella, 482 Mass. at 19-20, quoting Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 339 (1980) (Roper). The Henrys are positioned differently -- having appealed and lost on their attempt to certify a class, they retain an interest only in their individual claims. [Note 19] The defendant has tendered the maximum recovery to which the Henrys could have been entitled; as

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a result, there remains nothing to litigate with respect to their claims under § 15B.

In light of the undisputed fact that the defendant violated G. L. c. 186, § 15B (4) (iii), and given the defendant's tender, we conclude that judgment should have entered for the Henrys on count II in the amount of the tender, $3,875, plus statutory interest.

b. Claims under G. L. c. 93A, § 9. We agree with the Henrys that the defendant was not entitled to summary judgment on the G. L. c. 93A claims.

Chapter 93A, § 9 (1), provides a remedy for, inter alia, "[a]ny person . . . who has been injured by another person's use or employment of any method, act or practice declared to be unlawful by [G. L. c. 93A] section two." We accept, as the Henrys argued in the Housing Court, and as they contend on appeal, that the defendant's failure to comply with G. L. c. 186, § 15B (4) (iii), [Note 20] was an unfair and deceptive practice for the purposes of c. 93A, and thus a violation of G. L. c. 93A, § 2. See G. L. c. 93A, § 2 (a) (declaring unlawful "unfair or deceptive acts or practices in the conduct of any trade or business"); 940 Code Mass. Regs. § 3.17(4)(f), (g) (defining certain violations of G. L. c. 186, § 15B, as per se "unfair or deceptive practices"). See also Casavant v. Norwegian Cruise Line Ltd., 460 Mass. 500, 504 (2011) (violation of regulation constituted unfair or deceptive act as matter of law); 940 Code Mass. Regs. § 3.16(3) (act or practice that "fails to comply with existing statutes, rules, regulations or laws, meant for the protection of the public's health, safety, or welfare promulgated by the Commonwealth or any political subdivision thereof intended to provide the consumers of this Commonwealth protection" constitutes per se violation of G. L. c. 93A, § 2). But see Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 165, 174 (2013) (violation of regulatory code "will be a violation of c. 93A, § 2 [a], only if the conduct leading to the violation is both unfair or deceptive and occurs in trade or

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commerce").

In order to prevail on a claim for damages under § 9, the plaintiff must also prove a causal connection between the unfair or deceptive act or practice and a resulting injury. See G. L. c. 93A, § 9 (1) (requiring causal relationship between unfair and deceptive act and plaintiff's "injur[y]"); Hershenow v. Enterprise Rent-A-Car Co. Of Boston, Inc., 445 Mass. 790, 799 (2006). "[T]o meet the injury requirement under G. L. c. 93A, § 9 (1) . . . , a plaintiff must have suffered a 'separate, identifiable harm arising from the [regulatory] violation' that is distinct 'from the claimed unfair or deceptive conduct itself.'" Bellermann, 475 Mass. at 73, quoting Tyler v. Michaels Stores, Inc., 464 Mass. 492, 503 (2013). See Exhibit Source, Inc. v. Wells Ave. Business Ctr., LLC, 94 Mass. App. Ct. 497, 501 (2018) (tenant who claimed breach of lease contract "harmed" for purposes of G. L. c. 93A, § 11, by landlord's "considered and intentional" failure to return unused portion of tenant's security deposit).

The plaintiffs' primary brief makes no reference to any injury caused to the Henrys by the defendant's violations of G. L. c. 186, § 15B. [Note 21] Nonetheless, we conclude that the defendant's retention of the Henrys' security deposit for more than thirty days after the termination of the Henrys' tenancy, [Note 22] given the defendant's failure to comply with § 15B (4) (iii), resulted in an injury for the purposes of G. L. c. 93A. The defendant's failure to comply with § 15B resulted in the Henrys' being unjustifiably deprived of the use of money that belonged, under the statute, to them. Indeed, the defendant's inclusion of interest in its settlement offer suggests that the defendant recognized as much. In the face of this showing, the defendant was not entitled to summary judgment on the Henrys' G. L. c. 93A claims. See Bulwer, 473 Mass. at 680.

In ruling on the defendant's summary judgment motion, the judge implicitly determined that the defendant's settlement offer was reasonable for the purposes of G. L. c. 93A, § 9, and, citing to Kohl, concluded that the offer therefore "defeat[ed] the [G. L. c.] 93A claim[s]." [Note 23] Without deciding whether a determination of

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the settlement offer's reasonableness was premature, see Whelihan v. Markowski, 37 Mass. App. Ct. 209, 213 (1994), quoting Kohl, 369 Mass. at 803 (where judge found violation of G. L. c. 93A, he was "next" required to determine whether defendants limited liability through reasonable settlement offer), we disagree with the judge to the extent that he determined that a reasonable settlement offer "defeats" a G. L. c. 93A claim. The effect of such an offer is to limit the defendant's liability for damages, costs, and fees under G. L. c. 93A, § 9, not to extinguish the claims themselves. See G. L. c. 93A, § 9 (3) ("Any person receiving [a G. L. c. 93A] demand for relief who, within thirty days of the mailing or delivery of the demand for relief, makes a written tender of settlement which is rejected by the claimant may . . . limit any recovery to the relief tendered if the court finds that the relief tendered was reasonable in relation to the injury actually suffered by the [claimant]"). The defendant has asserted that any relief here should be limited to the relief tendered in its reasonable settlement offer (or its subsequent tender). Should the Henrys prevail on their individual G. L. c. 93A claims against the defendant, the judge shall address this in the first instance on remand. See G. L. c. 93A, § 9 (3).

3. Motion to quash (protective order). The Henrys argue that the judge erred in allowing the defendant's motion for a protective order [Note 24] and in "staying all discovery." [Note 25] We review the judge's ruling allowing the defendant's motion for a protective

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order for an abuse of discretion. See Chambers v. RDI Logistics, Inc., 476 Mass. 95, 110 (2016); Merles v. Lerner, 391 Mass. 221, 226 (1984).

A judge may issue a protective order "[u]pon motion . . . and for good cause shown." Mass. R. Civ. P. 26 (c), as amended, 474 Mass. 1401 (2016). The defendant's "good cause" for seeking to forestall the deposition at issue here until after the motion for class certification had been decided is readily apparent -- through counsel, the parties had drafted a joint discovery schedule that made no reference to noticing depositions before the judge heard argument on any motions for summary judgment and class certification. [Note 26] See Mass. R. Civ. P. 29, 365 Mass. 780 (1974) (parties permitted to "modify the procedures provided by these rules for other methods of discovery"). We discern no abuse of discretion in the judge's implicit determination that the Henrys had stipulated that no depositions would be noticed unless and until the class action was certified, nor in the judge's ruling that held the parties to the terms of their agreement. "[A] party may not disregard a stipulation given by him, nor can he revoke or escape from it at his will. His consent, once made a part of the record, binds him until he is relieved from it by judicial action." Kalika v. Munro, 323 Mass. 542, 543 (1948) (consent to adoption). Our review of the hearing transcript indicates that the judge weighed the parties' stipulation in his ruling staying depositions pending further court order and "[took] into account considerations of efficiency and economy," Matter of Roche, 381 Mass. 624, 637 (1980). See Mass. R. Civ. P. 26 (c).

Finally, to the extent that the Henrys argue that in allowing the defendant's motion for a protective order, the judge improperly foreclosed their ability to obtain the discovery that they needed to establish the existence of a class of similarly-situated persons, we are not persuaded. As we have noted, supra at note 25, contrary to the Henrys' representation, the judge did not stay "all discovery" when he allowed the motion for protective order; he merely continued his earlier stay of deposition practice. Nothing in the judge's order, or in the parties' discovery stipulation, prevented the Henrys from seeking discovery relating to the existence of other possible class members through the use of other discovery tools, including interrogatories, requests for production of documents,

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and requests for admissions. [Note 27] The judge did not abuse his discretion. See Chambers, 476 Mass. at 110.

Conclusion. As to count II (G. L. c. 186, § 15B [4], claims), the judgment is reversed, and judgment shall enter for the Henrys on that count in the amount of $3,875, plus statutory interest. As to count III (G. L. c. 93A, § 9, claims), the judgment is vacated, and the case is remanded to the Housing Court for further proceedings consistent with this opinion. The judgment is otherwise affirmed.

So ordered.