CRYSTAL SALVAS & another [Note 1] vs. WAL-MART STORES, INC.

MARSHALL, C.J. In this putative class action, the named plaintiffs are former employees of the defendant, Wal-Mart Stores, Inc. (Wal-Mart), who were paid by the hour (hourly employees). On behalf of themselves and others similarly situated they allege that Wal-Mart wrongfully withheld compensation for time worked and denied or cut short rest and meal breaks to which they were entitled. The plaintiffs appealed from a Superior Court judge's allowance of summary judgment on certain counts of their complaint and also filed an application for direct appellate review. The judge reported the case to the Appeals Court. See Mass. R. Civ. P. 64, as amended, 423 Mass. 1410 (1996), and G. L. c. 231, § 111. See also note 40, infra. Wal-Mart also filed an application for direct appellate review. We granted both applications.

In essence we are asked to determine (1) whether the judge

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abused his discretion by (a) allowing Wal-Mart's motion to exclude the testimony of the plaintiffs' principal expert, Dr. Martin Shapiro, as unreliable, and (b) allowing Wal-Mart's motion to decertify the class of approximately 67,500 current and former hourly workers employed by Wal-Mart in Massachusetts for more than a ten-year period [Note 2]; and (2) whether the judge erred in granting summary judgment to Wal-Mart on all of the plaintiffs' claims concerning meal breaks, as well as certain of the plaintiffs' claims under the payment of wages law, G. L. c. 149, § 148, for failure to compensate the plaintiffs for the time they worked. [Note 3]

For the reasons set forth below, we vacate the judge's orders. We conclude, inter alia, that the judge abused his discretion in allowing Wal-Mart's motions to exclude the testimony of the plaintiffs' expert and to decertify the class. We further conclude that the judge erred in granting partial summary judgment to Wal-Mart. We remand the case for the entry of an order certifying the class and for further proceedings consistent with this opinion.

1. Facts. [Note 4] Wal-Mart is a national mass-merchandising retail chain headquartered in Bentonville, Arkansas (home office), with stores located throughout Massachusetts. The operations of individual Wal-Mart stores, including payroll controls, are directed by corporate-wide policies established, disseminated, and carefully controlled by the home office. The central labor policies and payroll controls relevant to this litigation include the following.

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Wal-Mart policy required all hourly employees (called "associates" by Wal-Mart) to adhere to stringent timekeeping procedures, including clocking in and out at the beginning and end of each shift and at other prescribed times. Wal-Mart's uniform timekeeping requirements were communicated to hourly employees from their first day of work and consistently throughout their employment at Wal-Mart through, among other channels: an employee handbook intended for every hourly employee nationwide, [Note 5] oral and written materials presented in orientation sessions designed by the home office that newly hired hourly employees were required to attend, oral and written "coaching" (disciplinary) actions, and posters and other materials posted near store time clocks and elsewhere throughout Wal-Mart stores. [Note 6] The timekeeping instructions given to hourly employees embodied the substance of two corporate-wide Wal-Mart policy directives applicable uniformly to all hourly employees. The policy directives were known internally as PD-07 and PD-43. [Note 7] PD-07 provided that, unless otherwise required by State law, all hourly employees were entitled to one paid, fifteen-minute rest break for every three hours of consecutive time worked (to a maximum of two rest breaks), and an unpaid meal break of at least thirty minutes for work in excess of six consecutive hours. [Note 8] A version of

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PD-07 in effect until February 10, 2001, stated that hourly employees "whose break or meal period is interrupted to perform work would receive compensation for the entire period at their regular rate of pay and be allowed an additional break or meal period." [Note 9] Until that date, PD-07 required employees to clock in and out for both rest and meal breaks. Thereafter, employees were required to clock in and out for meal breaks but not for rest breaks. Neither PD-07 nor any other Wal-Mart policy directive has ever expressly permitted hourly employees to waive breaks.

PD-43 stated that hourly employees should never be required to work "off-the-clock," that is, work when the employee's hours are not being recorded for compensation. The same policy directive also generally prohibited employees from working overtime. PD-43 obligated store managerial personnel to investigate every instance where it was determined that an employee worked off-the-clock and to complete a working off-the-clock notice, to be signed by the supervisor or manager, the employees, and a "witness" who was required to be a salaried employee. Wal-Mart repeatedly warned its hourly employees that they would be subject to an escalating series of disciplinary "coaching," including termination, for violating company policy concerning breaks and off-the-clock work. [Note 10] The plaintiffs introduced numerous policy directives and other internal documents, as well as affidavits and deposition testimony, specifying that Wal-Mart's policies regarding work breaks (as well as its policies regarding off-the-clock

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work) were, in the words of an internal Wal-Mart memorandum, among the company's "non-negotiables." [Note 11]

The day-to-day responsibility for ensuring that hourly employees followed company timekeeping policies fell on individual store managers. [Note 12] For store managers, the responsibility for payroll came with considerable pressure from the home office to boost profits by, among other things, minimizing labor costs, one of the corporation's largest controllable expenses. [Note 13] Store managers were rewarded for keeping payroll costs low. Conversely, if they exceeded Wal-Mart's stringent labor cost guidelines, they might lose their bonuses or lose their jobs. According to documents proffered by the plaintiffs, Wal-Mart informed Massachusetts store managers of the precise margins by which their payrolls exceeded the labor cost guidelines and ordered the store managers to cut those payroll costs accordingly. [Note 14]

At least since 1989, senior Wal-Mart home office executives have been made aware that, despite the written policy directives to the contrary, store managers were sometimes "[a]ltering time cards to decrease reported payroll expenses" and "[i]nstructing associates to work off the clock . . . ." Further, at least since

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1998, the home office was aware that some hourly employees "are not receiving scheduled breaks and lunches." One Wal-Mart payroll audit, known as the "Shipley audit," dated July 17, 2000, surveyed 128 Wal-Mart stores nationwide. Among other things, the Shipley audit documented that in a two-week period, 127 "[s]tores were not in compliance with company and state regulations concerning the allotment of breaks and meals as 76,472 exceptions were noted."

Wal-Mart was also aware, during the class period, of allegations of "time shaving" by store managers. [Note 15] Two time-shaving techniques in particular feature prominently in this litigation. The first was the insertion by Wal-Mart supervisors of meal break periods into hourly employees' time records, allegedly when no meal break had in fact been taken. This effectively deprived hourly employees of compensation for the amount of time of the inserted meal break period. [Note 16], [Note 17] The second was a practice known as the "one-minute clock-out," in which a manager inserted a "clock-out" one minute after the hourly employee had clocked in (either for a shift, or on returning from a break) even though the employee had actually worked for longer than one minute. [Note 18], [Note 19]

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The plaintiffs, Crystal Salvas and Elaine Polion, averred that, as hourly employees at Wal-Mart during the class period, they worked off-the-clock and were denied rest and meal breaks. [Note 20] The plaintiffs augmented their affidavits with evidence from other hourly employees. [Note 21] This evidence includes, among other things, letters, records of telephone calls to an internal "grass roots" complaint hotline for hourly employees, and other communications to superiors from Massachusetts hourly employees in various Wal-Mart stores throughout the Commonwealth complaining about time-shaving practices and missed rest and meal breaks. [Note 22] Wal-Mart submitted countervailing affidavits from Massachusetts hourly employees stating that they did not work off-the-clock and were not denied rest or meal breaks. [Note 23]

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Some of the evidence proffered by the plaintiffs consists of an expert's analysis of Wal-Mart's business records, which were obtained by the plaintiffs through discovery from Wal-Mart's home office. See part 3, infra. As noted, the home office closely monitored the payroll activities of all of its stores, including its Massachusetts stores. For example, each store's electronic time clock, which was programmed and maintained by the home office, transmitted each employee's time clock punches to the home office every fifteen minutes. Wal-Mart required that payroll and timekeeping data be recorded on a uniform set of forms. Some of these forms factor into this litigation. Among these is Wal-Mart's time clock exception report (exception report), in effect after 2001. The exception report consists of a list of all hourly employees whose records revealed timekeeping anomalies, such as missed punches at the end of the day or an overly long or overly short lunch period. Managers at each Wal-Mart store are required to investigate every item generated by an exception report. If an exception report showed that an hourly employee had not taken a lunch or a rest break or had otherwise missed a punch, the manager was expected to inquire of the hourly employee and, if a punch or punches had been missed, to complete a time adjustment request (TAR) that both the hourly employee and the

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manager were required to sign, or later, to use an electronic time adjustment system.

Another report, the time clock archive report (archive report), recorded and transmitted to the home office the total number of times each hourly employee swiped in and out during every shift of each pay period, and tallied the hourly employee's total hours of work recorded for the pay period. Store managers were required to investigate and resolve any discrepancies appearing on the archive report before the payroll was finalized. Hourly employees were required to review and sign off on the accuracy of the archive report prior to receiving their paychecks. Wal-Mart's time clock punch error report (punch error report) also captured daily punch errors in hourly employees' timekeeping. The home office would not finalize daily store payroll until the errors on the punch error report were corrected. [Note 24] These reports, along with others, together comprise the business records analyzed by the plaintiffs' expert, Shapiro, as discussed more fully below.

2. Procedural history. On August 21, 2001, two former Wal-Mart hourly employees [Note 25] filed a complaint against Wal-Mart alleging multiple causes of action in implied-in-fact contract, tort, and Massachusetts wage statutes for wrongful failure to compensate hourly employees for time worked and to provide them with rest breaks and meal breaks to which they were entitled. [Note 26] The plaintiffs sought to represent a class of approximately 67,500 current and former Wal-Mart hourly employees who

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worked at forty-seven Wal-Mart stores in Massachusetts during the class period. In January, 2004, a Superior Court judge allowed the plaintiffs' motion to certify the class. [Note 27] See Mass. R. Civ. P. 23 (a) and (b), 365 Mass. 767 (1974). [Note 28]

Wal-Mart appealed from the decision to the Appeals Court. In June, 2004, a single justice of the Appeals Court vacated the class certification order and remanded the matter to the Superior Court. Among other things, the single justice concluded that the Superior Court judge had erroneously side stepped his obligation to determine whether the statistical proffer that the plaintiffs

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proposed as a justification to proceed on a class rather than an individual basis was "reliable enough to be admissible" and whether its admission would infringe Wal-Mart's rights of due process. [Note 29] The single justice faulted the motion judge for failing to "give careful consideration" to whether, in light of the tactical decision by the named plaintiffs to waive any claim under G. L. c. 149, § 148, [Note 30] in order to avoid removal to Federal Court, [Note 31] they could adequately represent the class. [Note 32]

Following the single justice's order, and after they claimed to have discovered new evidence of Wal-Mart's allegedly wrongful labor practices, the plaintiffs renewed a motion previously denied to amend their complaint a second time to add a claim for violation of G. L. c. 149, § 148. They also made a second

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motion for class certification. A second Superior Court judge allowed the motion to amend the complaint. [Note 33], [Note 34] On remand of the class certification issue, the judge who allowed the initial certification motion declined to revisit his findings concerning predominance and concluded that the plaintiffs had met their burden of proving the requirements for class certification for their claims under G. L. c. 149, § 148. Thus, in December, 2004, he again certified the class, now expanded to cover claims under § 148. [Note 35]

Two years later, on September 21, 2006, a third Superior Court judge allowed in part and denied in part a motion by Wal-Mart for partial summary judgment. Specifically, the judge allowed Wal-Mart's motion on all claims concerning missed, interrupted, or shortened meal periods, on the ground that, because meal breaks were unpaid, the plaintiffs would be unable to show harm for meal breaks that were shortened or eliminated. [Note 36] As for the claims predicated on missed, interrupted, or shortened rest breaks, the judge granted summary judgment on the counts alleging breach of the implied covenant of good

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faith and fair dealing (count three), unjust enrichment (count four), [Note 37] promissory estoppel (count five), and conversion (count six). In addition, the judge allowed Wal-Mart's motion to shorten the class period to between August 21, 1998, and December 31, 2005 (shortened class period), on the remaining § 148 claim (count nine), on the ground that defining the class period to begin earlier would violate the three-year statute of limitations under § 148. See G. L. c. 149, § 150. Thus, what remained of the plaintiffs' second amended complaint after summary judgment was (1) the breach of implied contract claim (count one) for failing to provide or compensate the plaintiffs for their earned rest breaks; (2) at the plaintiffs' election, the breach of implied contract claim (count two) or the unjust enrichment claim (count four) for failure to provide compensation for off-the-clock work, and (3) damages, including treble damages, (a) under G. L. c. 151, § 1A, [Note 38] for failure to pay overtime (count seven); (b) under G. L. c. 151, § 1, [Note 39] for failure to pay minimum wage (count eight); and (c) under G. L. c. 149, § 148, for failure to provide compensation for certain off-the-clock work, limited to the shortened class period (count nine).

On November 7, 2006, the same Superior Court judge who had ruled on the motion for partial summary judgment allowed

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an earlier filed motion by Wal-Mart to exclude the testimony of the plaintiffs' expert, Shapiro, and to decertify the class, a decision we discuss in detail below. The judge stayed both decisions pending resolution of the questions he reported to the Appeals Court. [Note 40] We granted both parties' application for direct appellate review.

We consider first the judge's decision to allow Wal-Mart's motion to exclude the plaintiffs' expert and to decertify the class. We begin with the portion of that motion seeking to exclude Shapiro's expert testimony as unreliable.

3. The plaintiffs' expert witness. a. Standard of review. "If the process or theory underlying a scientific expert's opinion lacks reliability, that opinion should not reach the trier of fact." Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994). See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). [Note 41] We review the motion judge's decision to exclude the plaintiffs' expert witness for an abuse of discretion. Canavan's Case, 432 Mass. 304, 312 (2000) ("applying an abuse of discretion standard on appellate review will allow trial judges the needed discretion to conduct the inherently fact-intensive and flexible Lanigan analysis, while preserving a sufficient degree of appellate review to assure that Lanigan determinations are consistent with the law and supported by a sufficient factual basis in the particular case").

b. Shapiro's evidence. Shapiro, the plaintiffs' expert, is a

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professor of Psychology at Emory University with a doctorate in psychology and mathematics who works primarily in the area of statistics. He has testified as an expert on both sides in employment discrimination cases. He has spent "hundreds and hundreds" of hours, indeed by his own account "about fifty per cent" of his time for the preceding four and one-half years, on his work as a consultant and testifying expert in this case and approximately twenty other similar wage and hour claims against Wal-Mart. Shapiro reviewed Wal-Mart's timekeeper databases, described above, along with dozens of other related Wal- Mart data sources and records including documents detailing the codes and variables involved in Wal-Mart's databases, Wal-Mart policy documents, internal audit reports, depositions, and other materials. He produced a written report, which the plaintiffs submitted to the court, and testified at the evidentiary hearing.

Shapiro performed four tasks for the plaintiffs. First, he counted what was in the records Wal-Mart provided. Because many of the records Wal-Mart produced were in paper rather than electronic form, this was an enormous and expensive task. [Note 42] Second, Shapiro used standard statistical methods to extrapolate from the available data, primarily to account for data that were missing either because Wal-Mart did not retain the records or because the paper records it did produce were unreadable. [Note 43] Third, Shapiro multiplied the duration of each putative violation

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he identified in the database by the wage rate of the applicable individual hourly employee to arrive at figures representing the total damages that Wal-Mart would owe the plaintiff class if all the putative violations Shapiro counted were, indeed, violations requiring compensation.

Fourth, Shapiro offered his own expert opinions as to why various features of either the data themselves, the means by which they were collected, or both, should lead a fact finder to conclude that Wal-Mart had indeed deprived the plaintiffs of compensation, rest breaks, and meal breaks to the extent suggested by the data. For example, Shapiro noted that the missed breaks were not randomly distributed: more of the missed rest breaks were at busy, peak times in the afternoon rather than in the morning. Shapiro opined that this fact supported the plaintiffs' theory that "it is simply not true that people didn't swipe in and out for rest breaks"; rather, because of understaffing for example, hourly employees "systematically or generally didn't take certain rest breaks," generally at busy times. Shapiro similarly argued that the mechanics of how the various data were generated by timecard swipes and subsequent manager edits -- especially the processes Wal-Mart put in place for correcting any erroneous "exceptions" -- made it probable that Wal-Mart's records were by and large accurate, and that nearly all of the incidents of time shaving and missed rest and meal periods that the data appeared to suggest were, in fact, violations. [Note 44], [Note 45]

Shapiro performed each of these four tasks with respect to

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four distinct categories of data. (1) Shapiro counted so-called "one-minute clock-outs," in which a Wal-Mart manager or supervisor edited an hourly employee's time swipe records to clock the affected hourly employee out one minute after the hourly employee clocked in. [Note 46] (2) He counted the total number of missed and interrupted rest breaks appearing in the timekeeper data from August, 1995, through February, 2001; he also used a linear method of statistical estimation to arrive at an estimate of the number of rest breaks that were likely missed, if past trends continued, from February, 2001, when Wal-Mart stopped collecting the data, through the end of the class period. [Note 47] (3) He counted instances of off-the-clock work by cashiers, as measured by instances in which cashiers were not swiped in to work, according to the timekeeper databases, yet were in fact logged in to their cash registers, as recorded in a separate point-of-sale database. [Note 48] Finally,

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(4) Shapiro counted instances in which hourly employees did not swipe out for a meal break during their shift, but managers subsequently inserted a meal period of exactly thirty or sixty minutes into the shift. [Note 49]

Wal-Mart countered with its own expert, Denise Martin, senior vice president of National Economic Research Associates, Inc., who holds a doctorate in economics. Martin testified at the evidentiary hearing and prepared a report that was marked as an exhibit at that hearing. Martin reviewed Shapiro's analysis and made numerous criticisms, essentially concluding that one-minute clock-outs inserted by managers may reflect actual time worked [Note 50]; that inserted meal periods may reflect meals actually taken [Note 51]; that

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many of the missed rest breaks in the timekeeper data may not be what they appear because hourly employees may take rest breaks without swiping out [Note 52]; that in any event, some missed rest breaks may be voluntary [Note 53]; and that the purported off-the-clock work by cashiers that Shapiro identifies may simply mean that one hourly employee is working at the cash register "under another [hourly employee's] ID, either intentionally or inadvertently." [Note 54] Thus, Martin opined, Shapiro's estimate of alleged damages is speculative, unreliable and inaccurate: "Given the data he has available, it is impossible for him to identify properly any instances of missed or short rest breaks." His other estimates of alleged damages, she testified, are similarly unreliable.

c. Analysis. The motion judge, "accept[ing] Martin's criticisms of Shapiro's methodology," found that "the unreliability of Shapiro's opinions and, indirectly, of Wal-Mart's records do not provide an acceptable basis for supporting a finding of harm, with de minimis exceptions, to 67,500 members of the associate class" (emphasis added). He characterized the plaintiffs' claim and their use of Shapiro's expert opinion in the following way: "the plaintiffs will have Shapiro imbue Wal-Mart's records

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with the ability to speak for class members or qualifying representatives in identifying specific instances when they have been injured or harmed by Wal-Mart's actions or policies." The motion judge took the plaintiffs to be arguing, "with dependence largely on Shapiro, that the Wal-Mart records are so error free that they can be relied upon to identify specific associates who suffered missed breaks, time shaving, and off-the-clock work."

This was error in two respects. First, in the liability phase of this putative class action, it is not the representative plaintiffs' burden to identify every "specific" instance in which a member of the plaintiff class has been "injured or harmed by Wal-Mart's actions or policies." Rather, the plaintiffs' burden is to prove by a preponderance of the evidence that Wal-Mart engaged in an over-all, class-wide practice of time shaving, denying or discouraging rest breaks or meal breaks, and requiring off-the-clock work by its hourly employees. See part 4(c), infra. Cf. International Bhd. of Teamsters v. United States, 431 U.S. 324, 360 (1977) (evidence of "each person" harmed by general policy not required in order to prove that over-all policy existed). See generally part 4, infra. Second, the plaintiffs are not using Shapiro to "imbue" Wal-Mart's business records with evidentiary value the records do not already possess. The motion judge's decision to exclude Shapiro's testimony as unreliable turns fundamentally on his conclusion that "[t]he time records of Wal-Mart are not adequate of themselves to establish entitlement to compensation in a case like this . . . ." This formulation misstates the test. The question is not whether Wal-Mart's records are dispositive evidence, conclusively establishing liability and damages "of themselves." Rather, the test is whether the business records are admissible evidence, probative of Wal-Mart's liability. If so, then Shapiro's efforts to count and summarize them -- the first of the four pieces of evidence offered by Shapiro, as delineated above -- are similarly admissible unless his methods of counting and summarizing those records are themselves unreliable.

Shapiro's methods for reconstructing and summarizing the contents of Wal-Mart's records are uncontested. [Note 55] Martin's criticisms are directed elsewhere, primarily at the fourth category of

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evidence Shapiro provided, as outlined above: his independent expert opinion that all the violations apparent on the face of the data, such as the missed rest breaks, are, indeed, violations to be compensated. Martin also challenges certain of Shapiro's statistical extrapolations to cover missing data -- part of the second category of evidence Shapiro provided. She does not challenge Shapiro's extensive technical project of recreating Wal-Mart's timekeeper databases from paper backups and counting certain of the data. Nor does she challenge Shapiro's calculations in the third category of evidence he provided, in which he multiplied the putative violations by hourly employees' wage rates to arrive at figures for what the damages would be if all those putative violations were to be compensated.

In excluding even the portion of Shapiro's report and testimony that consisted of counting data found in Wal-Mart's own business records, the motion judge acted not on the basis of any challenge to Shapiro's methodology, but essentially on his view that the records themselves were insufficiently reliable. [Note 56] This was error. Business records have a special place in our law of evidence. By statute, business records are admissible even when they would otherwise be inadmissible "hearsay or self-serving" if "the entry, writing or record was made in good faith in the regular course of business and before the beginning of the civil or criminal proceeding . . . and that it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter." G. L. c. 233, § 78. Courts necessarily rely on the accuracy of business records that satisfy these requirements. "Reliability is presumed because entries in these records are routinely made by those charged with the responsibility of making accurate entries and are relied on in the course of doing business." Commonwealth v. LaPlante, 416 Mass. 433, 442 (1993). Courts attach this presumption of reliability to business records because businesses themselves rely on their accuracy. "Such entries are dealt with . . . in the most important

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undertakings of mercantile and industrial life. They are the ultimate basis of calculation, investment, and general confidence in every business enterprise. . . . It would seem that expedients which the entire commercial world recognizes as safe could be sanctioned, and not discredited, by courts of justice." Wingate v. Emery Air Freight Corp., 385 Mass. 402, 410 (1982) (Liacos, J., concurring), quoting 5 J. Wigmore, Evidence § 1530, at 452 (Chadbourn rev. ed. 1974). [Note 57]

Wal-Mart's business records at issue in this case satisfy all of the requirements to be afforded the usual presumption of reliability. Both the timekeeper records and the point-of-sale register records were "made in good faith in the regular course of business" before this action began. G. L. c. 233, § 78. The digital records of hourly employees' card-swipes and their supervisors' subsequent insertions and amendments were all made "at the time of such act, transaction, occurrence or event or within a reasonable time thereafter." Wal-Mart has relied on these records for purposes of compensating its hourly employees, evaluating its store managers, and presumably reporting its payroll expenditures to the Commonwealth, to the Federal government, and to its own shareholders in the form of financial results.

This presumption of reliability is not irrebuttable. Wal-Mart may, through admissible evidence at trial, challenge the veracity of its own records, just as it may challenge the conclusions that Shapiro and the plaintiffs draw from those records. [Note 58] But the records themselves, and the portions of Shapiro's testimony that

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consist of reconstructing and counting those records in an uncontestedly reliable fashion, are admissible.

Wal-Mart's criticisms of the remaining portions of Shapiro's expert testimony go to the weight of the evidence, not its admissibility. Wal-Mart's expert essentially argues that, for a series of reasons, not all of the putative violations Shapiro identifies are actual violations; she contends that accounting for a series of additional factors, variables, and data sources would undercut Shapiro's conclusions. As the United States Supreme Court stated in a case involving statistical regression analysis: "Normally, failure to include variables will affect the analysis' probativeness, not its admissibility." Bazemore v. Friday, 478 U.S. 385, 400 (1986). "There may, of course, be some regressions so incomplete as to be inadmissible as irrelevant; but such was clearly not the case here." Id. at 400 n.10. Here, the evidence at issue does not involve statistical regression, but a similar principle applies: any failure to take account of additional factors affects the probativeness, rather than the admissibility, of Shapiro's evidence. It cannot be said that Shapiro's analysis of Wal-Mart's data is so incomplete as to be "irrelevant" to the question of Wal-Mart's class-wide liability, or, in the event that the fact finder concludes Wal-Mart is liable, to the question of damages. Any failure of Shapiro to account for the factors Martin identifies may render his analysis "less probative than it otherwise might be," id. at 400, but would not render his analysis inadmissible. [Note 59] Wal-Mart's motion to exclude Shapiro's testimony should not have been allowed.

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We turn now to the judge's decision allowing Wal-Mart's motion to decertify the class.

4. Class certification. a. Standard of review. A judge has broad discretion to certify or decertify a class. Our review asks only whether that discretion has been abused. Weld v. Glaxo Wellcome Inc., 434 Mass. 81, 84-85 (2001). Indicia of an abuse of discretion include errors of law or judicial action that is "arbitrary, unreasonable, or capricious . . . such as when a judge grants class status on the basis of speculation or generalization regarding satisfaction of the requirements of rule 23, or denies class status by imposing, at the certification stage, the burden of proof that will be required of the plaintiffs at trial." Id. at 85. See Smilow v. Southwestern Bell Mobile Sys., Inc., 323 F.3d 32, 37 (1st Cir. 2003) (District Court abuses its discretion "when it relies significantly on an improper factor, omits a significant factor, or makes a clear error of judgment in weighing the relevant factors" or "if the court adopts an incorrect legal rule").

Before applying these principles to the decertification order, we describe it in some detail.

b. Decertification order. The decertification order was predicated on the judge's finding that the plaintiffs had failed to demonstrate the predominance of common over individual issues, as required by rule 23 (b). The judge concluded that the factual record demonstrated that the class was "likely to consist of a not insubstantial number" of hourly employees who were not harmed by Wal-Mart. In reaching his conclusion, the judge focused principally on the reliability of Wal-Mart's payroll records described above, and on Shapiro's expert testimony. The judge reasoned that, although the payroll records indicated how an hourly employee's work time was recorded, they were mute as to the reasons a particular hourly employee recorded time as he or she did. In light of affidavits submitted by Wal-Mart from several Massachusetts hourly employees stating that they had shortened or omitted break periods for reasons having nothing to do with Wal-Mart's alleged wrongdoing, see note 23, supra, the judge said that individual inquiries of each hourly employee would be

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required to determine whether Wal-Mart was at fault. He surmised, relying on Secretary of Labor v. DeSisto, 929 F.2d 789 (1st Cir. 1991) (DeSisto), that the plaintiffs might have been able to overcome Wal-Mart's showing that common issues would not predominate had they presented a trial plan that included "testimony of witnesses representative of the different positions held in each of the forty-seven Massachusetts stores covering the entire class period who could make the case of violations experienced by all class members" by offering "first-hand" testimony of such violations. [Note 60], [Note 61] Absent the presentation of such a trial plan, he concluded, the plaintiffs had failed to meet their burden of proving that the number of uninjured class members would be de minimis, as he concluded was required by Aspinall v. Philip Morris Cos., 442 Mass. 381 (2004). Thus, at the heart of the plaintiffs' appeal is the question whether they have met their burden of proof under the predominance requirement of rule 23 (b). We now take a closer look at that requirement.

c. Predominance. Rule 23 (b) calls for the plaintiff to demonstrate, among other things, "that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members." The predominance requirement seeks to ensure, in part, that the economies of class action will be realized in the particular litigation. See 2 A. Conte & H.B. Newberg, Class Actions § 4.24, at 154 (4th ed. 2002) (Newberg) ("Judicial economy factors and advantages over other methods for handling the litigation as a practical matter underlie

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the predominance and superiority requirements for class actions . . ."). We recognize that questions of predominance under rule 23 (b) "introduce a highly discretionary element" into a motion judge's decision. Fletcher v. Cape Cod Gas Co., 394 Mass. 595, 601 (1985), quoting Baldassari v. Public Fin. Trust, 369 Mass. 33, 40 (1975). That discretion, however, "must be exercised in accord with the purposes sought to be achieved by class actions." Sniffin v. Prudential Ins. Co., 11 Mass. App. Ct. 714, 723 (1981).

"The predominance test expressly directs the court to make a comparison between the common and individual questions involved in order to reach a determination of such predominance of common questions in a class action context." Newberg, supra at § 4.23, at 154. At the pretrial stage, the burden is on the moving party to prove that they have satisfied the predominance requirement. That burden, as we have often stated, is of a different order than the party's burden of proof at trial. At the pretrial class action stage, the plaintiffs must "provid[e] information sufficient to enable the motion judge to form a reasonable judgment that the class meets the requirements of rule 23; they do not bear the burden of producing evidence sufficient to prove that the requirements [of rule 23] have been met." Weld v. Glaxo Wellcome Inc., supra at 87. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974). If a plaintiff satisfies this certification burden, then "neither the possibility that a plaintiff will be unable to prove his allegations, nor the possibility that the later course of the suit might unforeseeably prove the original decision to certify the class wrong, is a basis for declining to certify a class which apparently satisfies the Rule." Weld v. Glaxo Wellcome Inc., supra at 84-85, quoting Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 1975), cert. denied, 429 U.S. 816 (1976); Weld v. Glaxo Wellcome Inc., supra at 92, quoting Waste Mgt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 (1st Cir. 2000) (plaintiff must prove that "sufficient constellation of common issues bind class members together"); Spear v. H.V. Greene Co., 246 Mass. 259, 266 (1923) ("The persons suing as representatives of a class must show by the allegations of their bill that all the persons whom they profess to represent have a common interest in the subject matter of the suit and a right and interest to ask for the same

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relief against the defendants. It is not essential that the interest of each member of the class be identical in all aspects with that of the plaintiffs").

Because the salient inquiry is whether the plaintiffs' claims are "sufficiently cohesive to warrant adjudication by representation," no rote formula can determine whether the plaintiffs have met their certification burden on the question of predominance (emphasis added). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1977). See Weld v. Glaxo Wellcome Inc., 434 Mass. 81, 92 (2001). The judge must engage in "an individualized, pragmatic evaluation of the relationship between and the relative significance of the common and individual issues." In re Relafen Antitrust Litig., 231 F.R.D. 52, 70 (D. Mass. 2005), quoting In re Relafen Antitrust Litig., 218 F.R.D. 337, 343 (D. Mass. 2003). Class certification may be appropriate where common issues of law and fact are shown to form the nucleus of a liability claim, even though the appropriateness of class action treatment in the damages phase is an open question. See Smilow v. Southwestern Bell Mobile Sys., Inc., 323 F.3d 32, 40 (1st Cir. 2003), quoting Blackie v. Barrack, supra at 905 ("The amount of damages is invariably an individual question and does not defeat class action treatment").

d. Analysis. We first consider the issues of fact. The evidence offered by the plaintiffs in support of class certification included not only the payroll evidence and expert evidence provided by Shapiro, but additional nonpayroll, nonexpert materials such as documents and materials that Wal-Mart distributed to its hourly employees and other information that the judge grouped into seven broad categories (collectively, additional material), which we set forth in the margin below. [Note 62] The plaintiffs argue that the additional material alone, absent payroll records or Shapiro's

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testimony, is sufficient to meet their pretrial certification burden on the issue of predominance. We need not resolve that question, because we have determined, as described above, that it was an abuse of discretion to exclude Shapiro's testimony. Nonetheless, we discuss the additional material offered by the plaintiffs to explain why, in combination with Shapiro's testimony, this evidence amply demonstrates that common issues of fact predominate for purposes of rule 23 (b).

In this case the plaintiffs have asserted contract, tort, and

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statutory claims, all predicated on the allegation that Wal-Mart engaged in "a uniform and systematic scheme of wage abuse against [its] hourly paid associates in the Commonwealth of Massachusetts." With little comment, the judge dismissed the additional material as insufficiently specific to Massachusetts and thus inadequate to meet the plaintiffs' certification burden. This was error.

We agree with the judge's observation that the great bulk of the additional material concerned Wal-Mart's national, corporate-wide labor policies and practices that make no specific reference to Massachusetts. Other material submitted by the plaintiffs, such as the Shipley Audit, does not focus in any significant way on the Commonwealth. But neither does any of this material, either directly or indirectly, exempt Massachusetts stores or Massachusetts hourly employees from labor and payroll directives imposed nationally by the home office. Because the gravamen of the plaintiffs' claims is that Massachusetts hourly employees were subjected to Wal-Mart's nationwide, uniform, wrongful actions, the dearth of specific references to Massachusetts in the additional material is not fatal to class certification.

The plaintiffs present the additional materials, including policy directives, employee handbooks, and the like, as evidence of an implied-in-fact contract or enforceable promise concerning work breaks and off-the-clock work. See LiDonni, Inc. v. Hart, 355 Mass. 580, 583 (1969) ("In the absence of an express agreement, a contract implied in fact may be found to exist from the conduct and relations of the parties"). The judge found these general corporate materials (among other things) sufficiently specific to the contract issue to survive a challenge on summary judgment. They are no less persuasive on the issue of class certification, where all members of the class were unarguably the beneficiaries of identical terms of employment. The necessary bridge to liability in Massachusetts is provided by the sworn and unsworn statements of Massachusetts hourly employees and managers about missed and shortened breaks and uncompensated work.

The judge nevertheless concluded that class treatment was not warranted on the liability issues because no Massachusetts

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law requires paid rest breaks and no Wal-Mart policy forbids hourly employees from waiving breaks. The error was twofold. First, the absence of Massachusetts law on work breaks, while relevant to statutory claims, does not resolve the question whether Wal-Mart contractually or otherwise promised breaks to its hourly employees. Second, the waiver issue was a factual matter that the judge should have reserved to the jury. The judge acknowledged in his decertification order that "there exist no Wal-Mart policies allowing a waiver of rest breaks and, in fact, that there were policies in place, including disciplinary, which were intended to discourage associates from not taking their earned rest breaks." Wal-Mart's evidence that some Massachusetts hourly associates felt free to skip or shorten their breaks points to a disputed issue of material fact with regard to an affirmative defense (waiver) that Wal-Mart might offer. See Smilow v. Southwestern Bell Mobile Sys., Inc., 323 F.3d 32, 39 (1st Cir. 2003) ("Even in the unlikely event that individual waiver determinations prove necessary, the proposed class may still satisfy the predominance requirement. . . . Courts traditionally have been reluctant to deny class action status under Rule 23 (b) (3) simply because affirmative defenses may be available against individual members" [citation omitted]).

In short, the essential factual questions of liability in this case -- Did a contract or agreement exist? On what terms? Did Wal-Mart breach the contract or agreement? -- rest on a "sufficient constellation of common issues [to] bind [] class members together" for purposes of certification. Waste Mgt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 (1st Cir. 2000). See Weld v. Glaxo Wellcome Inc., 434 Mass. 81, 91 (2001) (certification of plaintiff class appropriate where "[a]lthough the contracts . . . appear to have been the product of independent, parallel negotiations, every contract created largely identical contractual obligations . . . and the program appears to have been administered in a substantially similar manner across the board"); Sniffin v. Prudential Ins. Co., 11 Mass. App. Ct. 714, 724 (1981) (class action appropriate where, among other things, common questions "are so tightly interwoven in the dispute that they directly affect its resolution"); Smilow v. Southwestern Bell Mobile Sys., Inc., supra (predominance requirement met where

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"common factual basis is found in the terms of the contract, which are identical for all class members").

Many of the judge's conclusions concerning the insufficiency of the additional material to demonstrate predominance, and the arguments advanced by Wal-Mart on this point, are more properly directed to questions of damages than to questions of liability. As we noted above, classes may be certified for the purpose of determining liability even where individual inquiries may be necessary on the issue of damages. See Smilow v. Southwestern Bell Mobile Sys., Inc., supra at 40, quoting Blackie v. Barrack, 524 F.2d 891, 905 (9th Cr. 1975) ("The amount of damages is invariably an individual question and does not defeat class action treatment"). See also International Bhd. of Teamsters v. United States, 431 U.S. 324, 361 (1977) (authorizing "additional proceedings after the liability phase of the trial to determine the scope of individual relief"). Where damages issues are likely to require more individualized treatment, a judge has available a number of creative methods of managing questions of remedy in a manner that protects the defendant's rights while redressing harms to individual plaintiffs. See generally Newberg, supra at § 4:32, at 287-288 ("Courts have developed several innovative management techniques to eliminate or minimize court burdens arising from management difficulties posed by class actions. With reference to problems of complexity or numerousness of individual questions remaining in a class action, courts have pointed to or have agreed to use devices such as conditional class certification[,] . . . limitation of the class to particular issues [,] . . . bifurcated trials for liability and damages, common proof of class damages, use of special masters or magistrates, use of liaison and lead counsel for the parties, class recovery distribution techniques involving cy pres notions, and monitoring procedures for time expended by class counsel to avoid duplication or excessiveness of hours"). The judge should have recognized the availability of these alternatives before essentially denying thousands of potentially meritorious, yet small, claims. [Note 63] See, e.g., Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997), quoting Kaplan,

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Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv. L. Rev. 356, 497 Prefatory Note (1967) (class actions protect "the rights of groups of people who individually would be without effective strength to bring their opponents into court at all"); Fletcher v. Cape Cod Gas Co., 394 Mass. 595, 603 (1985) ("We recognize that in some instances even one common question of law or fact may be found to predominate over individual questions so as to warrant certification of a class action"); Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 105 (2007), quoting Amchem Prods., Inc. v. Windsor, supra ("The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights").

There was a further respect in which the judge erred: in decertifying the class the judge made several errors of law. See Waste Mgt. Holdings, Inc. v. Mowbray, supra at 295 ("An abuse of discretion . . . occurs [in class certification orders] if the court adopts an incorrect legal rule"). The judge concluded, among other things, that DeSisto, supra, required, in the absence of allegedly reliable corporate records proving liability, that in order to maintain a class action, the plaintiffs' trial plan had to include "testimony from witnesses representative of the different positions held in each of the forty-seven Massachusetts stores covering the entire class period who could make the case of violations experienced by all class members." We disagree. [Note 64]

DeSisto was brought pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq. (2000). As the judge acknowledged, the FLSA contains specific provisions and a distinct jurisprudence governing when a plaintiff may bring an FLSA action in a representative capacity. See 29 U.S.C. § 216(b); DeSisto, supra at 792 n.1 (discussing representativeness

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in FLSA litigation). Thus the case cannot fairly be read to establish any precedent in Massachusetts concerning class actions under our rule 23. [Note 65] Nor has the case been cited, to our knowledge, by an appellate court in other class certification litigation under rule 23, much less to hold that a class action plaintiff seeking to carry his burden of proof under rule 23 or its equivalent must produce a trial plan containing testimony from witnesses with first-hand knowledge of every shift in every position at every store in the class during the class period.

In this case, the burden the judge imposed on the plaintiffs would be both onerous and unproductive in light of overwhelming evidence that all of the class members -- people who staff the grill counter, receivers, cashiers, and so on -- were subject to the identical terms and conditions regarding breaks and off-the-clock work, which (according to company policy) were to be followed stringently.

Additionally, citing Aspinall v. Philip Morris Cos., 442 Mass. 381 (2004), the judge concluded that the plaintiffs had failed to demonstrate that the number of uninjured class members was "de minimis." See id. at 398 n.21; id. at 405 (Cordy, J., dissenting). The judge's reliance was misplaced. In the Aspinall case, a class of Massachusetts consumers brought an action under G. L. c. 93A, §§ 2 and 9 (2), against the manufacturer of a so-called "light cigarette." [Note 66] They alleged that the defendant deceptively marketed the cigarettes as delivering lower amounts

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of tar and nicotine than regular cigarettes, when in fact the defendant knew that few, if any, smokers would derive such benefits from its product. Id. at 383 n.4. We concluded that class certification was proper where the class harm claimed was economic, that is, where members of the class alleged that they purchased the cigarettes at a price that was higher than it would have been had the true properties of the cigarettes been honestly advertised. Id. at 397-398. Parenthetically, we distinguished the case from those in which the defendant's marketing claims could be objectively tested, such as claims to produce certain health benefits. In the latter cases, we suggested, individual determinations might be necessary to prove individual harm, and class action treatment might not be appropriate. Id. at 397 n.19, 398 n.21. The dissent in Aspinall noted agreement with the court that "class certification should not be impeded by the presence of a de minimis number of uninjured class members who are difficult to identify with specificity." Id. at 405 (Cordy, J., dissenting). The court's opinion does not mention a "de minimis" requirement.

The dicta in the Aspinall case cited by the judge does not, either directly or by necessary implication, graft a separate, de minimis test onto rule 23 class actions to narrow or solidify the traditional analysis of predominance that we discussed above. One of the great strengths of the rule 23 class action device is its plasticity. Case-by-case considerations of practicality and fairness have enabled rule 23 certification decisions to adapt appropriately to a variety of contexts, even within the same litigation. See generally Newberg, supra at § 4:32 (listing techniques for managing class actions). By undercutting that intended flexibility, a bright-line de minimis requirement would vitiate the purpose of class actions. [Note 67] See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997); Newberg, supra at § 4.36 at 314

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("Class actions were designed not only to compensate victimized group members, but also to deter violations of the law, especially when small individual claims are involved"); Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 105 (2007), quoting Riley v. New Rapids Carpet Ctr., 61 N.J. 218, 225 (1972) (noting that restrictive readings of class-action rule that require individual suits for small individual losses result in "no deterrence to further aggressions"). [Note 68]

For all of the above reasons, we conclude that the judge abused his discretion in allowing Wal-Mart's motion to decertify the class.

5. Meal periods. The motion judge reported his decision to grant partial summary judgment to Wal-Mart on "all aspects of the plaintiffs' complaint regarding meal periods." See note 40, supra. The plaintiffs' allegation that Wal-Mart deprived class members of their meal periods comprised two legal claims: a statutory claim, based on G. L. c. 149, § 100, [Note 69] and a contract claim.

a. Statutory claim. As to the statutory claim, the motion judge correctly found that G. L. c. 149, § 100, which requires that employers provide employees who work six hours or more with a thirty minute meal period, does not create a private right

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of action. The statute creates no explicit private right of action. Although § 100 is silent about the methods by which it may be enforced, an earlier section in the chapter, G. L. c. 149, § 2, provides: "The attorney general shall, except as otherwise specifically provided, enforce the provisions of this chapter, and shall have all necessary powers therefor." [Note 70] Certain sections of G. L. c. 149 do specifically provide for private rights of action, but § 100 does not. Thus G. L. c. 149, § 150, authorizes employees claiming to be aggrieved by violations of certain sections -- specifically §§ 148, 148B, 150C, 152, and 152A (relating to wages) -- to "institute and prosecute in his own name and on his own behalf, or for himself and for others similarly situated, a civil action for injunctive relief and any damages incurred, including treble damages for any loss of wages and other benefits." This provision does not, however, mention § 100.

Where the Legislature has not expressly provided for a private right of action, we may nonetheless infer an implied private right of action unless the Legislature explicitly prohibits us from doing so. Loffredo v. Center for Addictive Behaviors, 426 Mass. 541, 544-545 (1998). Here, the Legislature's express language providing for enforcement by the Attorney General, "except as otherwise specifically provided," combined with its specific provision of a private right of action for certain other sections of G. L. c. 149, but not for § 100, weighs heavily against recognizing a private right of action under § 100. See id. at 547, quoting Transamerica Mtge. Advisors, Inc. v. Lewis, 444 U.S. 11, 19 (1979) ("where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it").

The plaintiffs argue that finding no implied right of action in § 100 would "render the statute ineffective": "Not only will the underlying purpose of [§] 100 best be served if employees are able to protect their right to obtain meal periods, it is highly unlikely that employees will come forward to report violations if there is no remedy for those wrongs."

b. Contract claim. The lack of a statutory private right of action presents no bar to the plaintiffs' claim that Wal-Mart violated

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a contractual duty to provide meal periods to the plaintiff class. As discussed above, the question whether a contract existed at all between Wal-Mart and its hourly employees, and the further question of what specific terms any such contract contained, are questions of fact to be resolved by the fact finder at trial. [Note 71] If Wal-Mart was, in fact, obligated by contract to provide meal breaks to the plaintiff class and Wal-Mart breached its contract by failing to provide such meal breaks, then the class members were harmed and may be awarded damages equal to the value of the bargained-for benefit of which they have been deprived. Pierce v. Clark, 66 Mass. App. Ct. 912 (2006), quoting VMark Software, Inc. v. EMC Corp., 37 Mass. App. Ct. 610, 611 n.2 (1994) ("The long-established general rule for breach of contract recovery . . . is that the wronged party should receive the benefit of his bargain . . ."). Restatement (Second) of Contracts § 347 comment a (1981) ("Contract damages are ordinarily based on the injured party's expectation interest and are intended to give him the benefit of his bargain by awarding him a sum of money that will, to the extent possible, put him in as good a position as he would have been in had the contract been performed").

The motion judge concluded that "given the undisputed fact that meal periods are unpaid, a missed meal period does not result in economic damages." Therefore, he reasoned, absent any independent private right of action under G. L. c. 149, § 100, there can be no contract claim for missed meal periods. He therefore allowed Wal-Mart's motion for summary judgment on this issue. However, merely because meal periods are unpaid, it does not follow that they have no value. To an hourly employee at Wal-Mart, the opportunity to stop work and eat a meal in peace during a busy workday may constitute a benefit of significant value. Wal-Mart argues that any employees who were made to work through their meal breaks were paid for that work, and so were unharmed by any breach of contract. Essentially, Wal-Mart's

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argument is that only wages have value, and that other bargained-for benefits that may be part of an employment contract, such as meal breaks or indeed any form of unpaid leave, are valueless. We decline to reach such a sweeping conclusion.

The monetary value of a meal break cannot be held as a matter of law to be zero. Rather, the value of this putative contractual benefit is a question of fact to be resolved by the fact finder. Like any other party deprived of the benefit of their bargain, the plaintiffs should be awarded damages that are "the equivalent in money for the actual loss sustained by the wrong of another." F.A. Bartlett Tree Expert Co. v. Hartney, 308 Mass. 407, 412 (1941). Summary judgment to Wal-Mart should not have entered on all matters relating to meal periods.

6. Statute of limitations. In his summary judgment order, the judge concluded that the three-year statute of limitations provision of G. L. c. 149, § 150, barred the plaintiffs from bringing any claims under G. L. c. 149, § 148, for unpaid wages resulting from one-minute clock-outs and unauthorized insertions of meal periods that predate August 21, 1998. See Malapanis v. Shirazi, 21 Mass. App. Ct. 378, 383 (1986) ("On an appropriate record, summary judgment may be granted on the question whether a particular statute of limitations has run"). The plaintiffs assert that the limitations period should be equitably tolled under either a theory of fraudulent concealment or the discovery rule, because class members could not have known of Wal-Mart's time-shaving practices prior to the publication of the New York Times article on April 4, 2004, that exposed the practices. See note 33, supra. We agree with the judge that the plaintiffs have failed to make their case with respect to fraudulent concealment. However, we conclude that the plaintiffs have shown a disputed issue of material fact on the question whether equitable tolling is appropriate under the discovery rule.

As to the plaintiffs' theory of fraudulent concealment, "[w]hen a defendant fraudulently conceals a cause of action from the knowledge of a plaintiff, the statute of limitations is tolled under G. L. c. 260, § 12, for the period prior to the plaintiffs' discovery of the cause of action." Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 519 (1997). [Note 72] Absent a fiduciary or other special

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duty, which the plaintiffs do not here assert, active fraud is ordinarily required to prove fraudulent concealment. See Geo. Knight & Co. v. Watson Wyatt & Co., 170 F.3d 210, 215-216 (1st Cir. 1999) (applying Massachusetts law). Wal-Mart presented evidence that its hourly employees had a "myriad of ways to determine whether they'd been properly paid." These included checking their hours at the time clock or in the personnel office, checking the payroll archive report that hourly employees were required to sign prior to receiving their paychecks, checking their total hours and pay on their pay stubs, and (later in the class period) checking and adjusting their hours on the electronic time adjustment system. Wal-Mart also submitted affidavits from several hourly employees attesting that they regularly kept track of their hours, compared their personal records with Wal-Mart records, and, if they noticed inaccuracies, had them corrected by Wal-Mart. The plaintiffs, as the judge noted, did not dispute that hourly employees had access to the means of checking payroll. Rather, they alleged that Wal-Mart fraudulently concealed its allegedly wrongful practices by never providing hourly employees with information about or training to detect payroll discrepancies. This allegation, supported only thinly on summary judgment by references to brief statements in a handful of employees' affidavits, was not sufficient to create a disputed issue of material fact concerning fraudulent concealment. Geo. Knight & Co. v. Watson Wyatt & Co., supra. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).

In the alternative, the plaintiffs invoke the discovery rule. In essence, they claim that the time shaved from individual hourly employees' pay generally was sufficiently small that a reasonable person in the position of a class member would not know or could not reasonably have been expected to know that he was being denied compensation. See Koe v. Mercer, 450 Mass. 97, 101 (2007), quoting Bowen v. Eli Lilly & Co., 408 Mass. 204, 205-206 (1990) ( "Under [the] discovery rule, the statute of limitations starts when the plaintiff discovers, or reasonably should

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have discovered, 'that [he] has been harmed or may have been harmed by the defendant's conduct' "); Riley v. Presnell, 409 Mass. 239, 245 (1991) ("Only if a reasonable person in the plaintiff's position would have been able to discern the harm or the cause of the harm will the cause of action accrue and the limitations period begin to run"). Wal-Mart argues that its employee affidavits represented what the reasonable Wal-Mart employee would or should have known.

The reasonable person standard does not take into account "[i]ndividual variations in judgment, intellect, or psychological health . . . unrelated to the complained-of conduct . . . . The reasonable person who serves as the standard in this evaluation, however, is not a detached, outside observer assessing the situation without being affected by it. Rather, it is a reasonable person who has been subjected to the conduct which forms the basis for the plaintiff's complaint." Id. Generally the question whether a plaintiff in a particular position knew or should have known of the defendant's wrongful conduct is for the fact finder. See Doe v. Creighton, 439 Mass. 281, 283-284 (2003) ("The question when the plaintiff knew or should have known that the defendant's actions were the cause of her injuries is one of fact . . ."). Here, the factual issue is not so clear cut as to remove it from the fact finder's consideration. See Kourouvacilis v. General Motors Corp., supra.

In this case the plaintiffs presented evidence from former Wal-Mart managerial and payroll personnel in Massachusetts and elsewhere that they personally inserted meal breaks or one-minute clock-outs in hourly employees' time records or witnessed others doing so. They submitted documents attesting to Wal-Mart's awareness over many years that the problem of time shaving was widespread. [Note 73] And they argue that, given that most class members made the minimum wage and had small amounts of time allegedly shaved from their records, the individual losses

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may have been too small to be readily detectable. [Note 74] We conclude that in the circumstances of this case, this evidence is sufficient to send to the jury the factual question whether a reasonable hourly employee would or should have known that time was being shaved from their paychecks, even though some hourly employees may have monitored their paychecks very closely.

We do not agree with the judge, or with Wal-Mart, that application of the discovery rule necessitates an individual inquiry about what each class member knew or should have known about Wal-Mart's alleged knowledge or condoning of time-shaving practices. The reasonable person test is an objective test. See Doe v. Creighton, supra at 283. Thus it presumptively operates as to all class members on the question of equitable tolling, even though a more individualized inquiry may be required on the question of damages.

7. Conclusion. We vacate the order allowing Wal-Mart's motion to exclude the plaintiffs' expert and decertify the class. We vacate the portions of the judge's order granting partial summary judgment to Wal-Mart that were reported to the Appeals Court. We remand the case to the Superior Court for entry of an order certifying the class and further proceedings consistent with this opinion.

So ordered.