Hogan v. The InStore Group, LLC

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

PARADISE HOGAN, )

Individually and ) CIVIL ACTION NO.

on Behalf of All ) 17-10027-DPW

Other Persons )

Similarly Situated )

)

Plaintiff, )

)

v. )

)

THE INSTORE GROUP, LLC, )

)

Defendant. )

MEMORANDUM AND ORDER

January 11, 2021

TABLE OF CONTENTS

I. BACKGROUND ........................................................ 5

A. Factual Background ............................................ 5

1. InStore’s Business and Its Vendor Associates ................ 5

2. Mr. Hogan as an InStore Vendor Associate ................... 10

B. Procedural Background ........................................ 12

II. MOTION TO AMEND THE ORIGINAL COMPLAINT .......................... 14

A. Standard of Review ........................................... 14

B. Analysis ..................................................... 16

III. SUPPLEMENTAL JURISDICTION OVER THE FIRST AMENDED COMPLAINT ..... 20

A. Standard of Review ........................................... 20

B. Analysis ..................................................... 22

IV. MOTIONS FOR SUMMARY JUDGMENT .................................... 23

A. Standard of Review ........................................... 23

B. Threshold Matters ............................................ 24

1. Abandoned Claims ........................................... 24

2. Filing the Complaint with the Attorney General ............. 25

3. Demonstrating Damages ...................................... 27

C. The Massachusetts Definition of “Employee” ................... 28

1. Prong One: Free from Control and Direction ................. 33

a. Contractual Right of Control .............................. 34

b. Control in Fact ........................................... 36

2. Prong Two: Outside the Usual Course of Business ............ 44

a. InStore’s Course of Business .............................. 46

b. Whether Mr. Hogan’s Services Were Incidental or

Necessary ................................................. 50

3. Prong Three: Customary Engagement in an Independently

Established Trade .......................................... 59

V. CLASS CERTIFICATION .............................................. 60

A. Standard of Review ........................................... 61

B. Analysis ..................................................... 63

1. Fed. R. Civ. P. 23(a) ...................................... 63

a. Numerosity ................................................ 63

b. Commonality ............................................... 63

c. Typicality ................................................ 66

d. Adequacy .................................................. 67

2. Fed. R. Civ. P. 23(b): Predominance and Superiority ........ 69

VI. CONCLUSION ...................................................... 71

Paradise Hogan brought this action seeking damages for his

misclassification as an independent contractor by the Defendant

InStore Group, LLC (“InStore”), allegedly in disregard of his

status as a statutory employee. Mr. Hogan seeks to represent a

class of similarly situated plaintiffs — “vendor associates”1 —

who have worked on behalf of InStore in Massachusetts since

January 6, 2014.

Before me are (1) a motion [Dkt. No. 24] by Mr. Hogan for

leave to amend his Original Complaint; (2) a motion [Dkt. No.

25] by InStore for summary judgment; (3) a motion [Dkt. No. 31]

by Mr. Hogan for partial summary judgment (as to liability); and

(4) a motion [Dkt. No. 29] by Mr. Hogan for class certification.

The crux of the cross-motions for summary judgment is the

statutory standard under Massachusetts law for determining

whether InStore vendor associates are statutory employees. In

Part I, this Memorandum lays out the evidentiary record offered

by the parties and marks the procedural travel this case has

taken. In Part II, I accept the proposed First Amended

Complaint as the operative pleading for this lawsuit. In Part

III, I discuss how my allowance of Mr. Hogan’s motion to amend

1 “Vendor,” “merchandiser,” “retail associate” and “vendor

associate” are terms that the parties use interchangeably to

identify members of the putative plaintiff class. I will use

the term “vendor associate” in this Memorandum as a consistent

designator and fair description of the alleged class members.

the Original Complaint impacts the question of continued subject

matter jurisdiction in this case. After explaining in Part III

that I will continue to assert supplemental jurisdiction, I

address, in Part IV, the parties’ cross-motions for summary

judgment in light of the operative pleading, Mr. Hogan’s First

Amended Complaint. Finally, in Part V, I take up the question

of class certification for this litigation and solicit the

parties’ proposals for bringing the case to judgment on that

basis.

I. BACKGROUND

A. Factual Background

1. InStore’s Business and Its Vendor Associates

InStore contracts with retailers and manufacturers to

provide labor for certain retail services, including inventory

correction, order entry, display building, audits, surveys, and

rack placing. For example, InStore might bid on a specific

retail service that a retailer or manufacturer needs done, such

as an audit ensuring certain products are on the shelves or

providing demonstration of a product. If InStore wins the bid,

then it will contract with the client, negotiate the terms of

the contract – including payment terms and expectations for the

project – and advertise the specific project on its internal

website, Natural Insight, to vendor associates registered with

InStore.

Vendor associates are free to select the projects that they

want. InStore cannot force vendor associates to take a project.

However, InStore does at times solicit vendor associates to to

do so. Vendor associates can, and do, select as many or as few

projects as they want. Of course, vendor associates make more

money through InStore by selecting more projects.

Vendor associates must perform the selected merchandising

jobs for InStore’s clients during certain windows of time, and

some of the jobs require completion on certain dates, at certain

times, or during certain lengths of time. These dates and times

are specified by InStore’s clients. Natural Insight lists some

details about the assignments, including geographic location,

date, pay, estimated time to complete, and type of task.

InStore’s clients provide the duties and responsibilities for

each project – including the instructions and directions for how

the vendor associates are to perform the projects – and clients

provide materials for the projects if necessary. At times, the

vendor associates transport materials to or from merchandising

jobs for InStore clients. In these instances, InStore’s clients

will ship the materials to InStore; InStore then ships them to

the engaged vendor associate. InStore pays the cost of

shipping.

InStore’s vendor associates go to clients’ stores to

execute the clients’ listed retail projects. There are no

InStore representatives at the worksites. InStore only hears

that a vendor associate did not follow instructions if the

retailer or manufacturer informs InStore. InStore clients

regularly communicate with InStore about problems with a vendor

associate’s final performance, and they also communicate with

InStore about vendor associate’s conduct during performance.

Natural Insight tracks when a vendor associate has

completed a project.2 To be compensated, a vendor associate logs

on to Natural Insight, selects a project, performs the project,

completes a survey report, and submits an invoice. The survey

report involves nothing more than marking the project as

complete on Natural Insight and uploading a picture of the

completed job.

Both InStore and its clients have access to Natural

Insight. If a vendor associate fails to submit verification and

2 The parties agree that InStore uses Natural Insight to track

whether vendor associates have reported that they completed a

project. The parties dispute the characterization of InStore’s

intention in keeping track of completion. InStore argues that

it tracks only to trigger payment, and that it does not know

whether the project has actually been completed unless a client

reports that the project was not completed. Mr. Hogan argues

that InStore keeps track to verify for itself that the project

was completed. I view InStore’s intention in monitoring vendor

associates to be immaterial. See DaSilva v. Border Transfer of

Mass., Inc., 377 F. Supp. 3d 74, 94–95 (D. Mass. 2019) (DaSilva

III) (dismissing argument that control was not exerted by

putative employer because putative employer only acted based on

client demands). What matters is whether InStore exercised some

level of control over vendor associates by directing and

monitoring their completion of projects.

a photograph via Natural Insight, InStore will inform him that

he can get paid if he goes back and takes a photograph of the

completed job. Thus, a vendor associate who fails to submit a

survey on the same day that he performs a job would still get

paid so long as he eventually submits verification.3 InStore

does not pay vendor associates for travel time, does not

reimburse for mileage traveling to or from jobs, does not

reimburse for other expenses, does not pay for transporting

materials to or from jobs, does not provide sick leave, does not

pay taxes for the vendor associates, and does not provide any

employment benefits.

InStore provides vendor associates with a written general

policy, titled “The InStore Group Vendor Associate Dress Code

for ALL InStore Group Assignments”(“the Policy”). It applies to

“all Leads, Vendor Associates, and 3rd Party Vendor Associates

(VA’s).” The Policy provides, for example, that “[p]ants should

be ‘khaki’ type slacks,” and that “[c]aps” and “[s]horts are not

allowed.” The Policy also instructs that vendor associates

3 I note that Mr. Hogan contends InStore requires vendor

associates to complete the survey on the same date that they

perform a merchandising job. However, he does not cite any

evidence to support this statement. The record evidence

establishes the contrary. InStore’s Chief Executive Officer

Thomas Palombo, testified in response to a deposition question

asking “[w]hat happens if [vendor associates] don’t submit the

survey on the same day that they complete the visit” with a

single word: “Nothing.”

should “[a]lways report to work neat, clean and well groomed,

and in appropriate work attire,” and “should wear a name badge

at all times.” The name badge – which describes the wearer as a

“Vendor Associate” in the “Merchandising Division” of “The

InStore Group” – is provided by InStore for each project.

InStore clients can send a vendor associate home for not abiding

by the dress code Policy. In such a case, InStore would still

pay the vendor associate the agreed upon project rate once the

vendor associate completed the project. InStore would not pay

for the additional time the vendor associate needed to change

into attire conforming to the Policy.

The Policy also bans vendor associates from using personal

electronics while working on “resets”4 and includes specific

tools that InStore vendor associates must independently bring: a

pen, a digital camera or cell phone with a camera, a safety

boxcutter, and a printed ISG Store Worksheet (“the Worksheet”).

The cell phone with a camera is necessary to take pictures to

upload on Natural Insight showing that the project is complete.

InStore does not provide vendor associates with any tools,

supplies, or equipment.

The Worksheet is a custom work order that tells a vendor

associate what job to perform. Worksheets are written by

4 A reset occurs “when the product is taken off the shelf,

washed, and put back.”

InStore in conjunction with its clients and are used for all

jobs. The record is not clear about what content precisely is

included in the Worksheet. At a minimum, however, the Worksheet

identifies the assignment and the steps for invoicing the job.

2. Mr. Hogan as an InStore Vendor Associate

Mr. Hogan worked with InStore as a vendor associate and

performed retail merchandising services for InStore in

Massachusetts in 2015. He signed InStore’s “Independent

Contractor Vendor & Release Form” (the “Agreement”), a twelve-

month contract that automatically renewed unless notice was

given a month before the end of the contract’s term. However,

both InStore and its vendor associates could terminate the

Agreement at any point. The Agreement characterized Mr. Hogan

as a “self-employed independent contractor” and described his

duties as the provision of “in-store merchandising services to

retail stores.”

The Agreement provided that InStore’s role was to “assist

[Mr. Hogan] in marketing [his] services,” to “communicat[e]

information between a client and [Mr. Hogan],” and to manage Mr.

Hogan’s payments by “prepar[ing] and submit[ting] invoices on

[Mr. Hogan’s] behalf to clients.” Mr. Hogan did not pay any fee

for services by InStore. The “details” of Mr. Hogan’s projects

and “evaluat[ions]” of his work were to come from the InStore

client. The Agreement further provided that Mr. Hogan’s

employment was not exclusive, that he had the right to accept or

decline engagements offered by InStore, and that he could market

his services through means other than InStore. No one at

InStore told Mr. Hogan that he could not work for other

companies while he was performing services for InStore. In

fact, during the period of his Agreement with InStore, Mr. Hogan

worked as a vendor associate for at least one InStore

competitor.

Beyond the standards provided in the Policy, no one at

InStore communicated any performance expectation – including any

sales expectation – to Mr. Hogan.

In the period between April and September 2015, Mr. Hogan

selected fewer than nine projects,5 consisting of 32.75 reported

hours of total work, for which he was paid $324.50.6 Even though

Mr. Hogan was compensated for two jobs that he did not actually

5 The parties dispute whether Mr. Hogan worked seven projects, or

eight projects. For the purposes of the motions before me, the

dispute is not material.

6 The accounting for Mr. Hogan’s work is somewhat confused in the

record before me. Mr. Hogan contends that he “reported 32.75

hours of work and InStore paid him for approximately 27 hours.”

While InStore states that “at least one” of Mr. Hogan’s

submitted project entries was for training, it does not engage

with the question of accounting for the unpaid hours, but

instead moves on to assert that Mr. Hogan was paid for two

projects that he did not actually perform. This is a contention

that Mr. Hogan does not dispute. In any event, as discussed in

Section IV.B.1.b, infra, the precise damages need not be

resolved at the partial motion for summary judgment stage when

only the legal issue of liability is being contested.

perform, no one at InStore disciplined him for failing to

perform those projects. In fact, there were no consequences

from InStore. Mr. Hogan received $12 per hour for each project

he performed for InStore, except for one job. Upon arriving at

a given project, Mr. Hogan would communicate with the client

manager and would occasionally receive materials from the

client.

Mr. Hogan never purchased workers’ compensation insurance

nor general liability insurance of any kind; he never used or

purchased any tools or supplies for InStore projects; he did not

declare any income from his earnings from InStore projects on

his 2015 tax return; and, as relevant to his claims under Mass.

Gen. Laws ch. 149, he did not file a wage complaint with the

Massachusetts Attorney General as directed by Mass. Gen. Laws

ch. 149, § 150 before initiating this action.

B. Procedural Background

Mr. Hogan filed his Original Complaint against InStore in

this Court on January 6, 2017, “individually and on behalf of

himself and all other similarly situated persons.” The Original

Complaint alleged six separate claims against InStore: (1) a

violation of the federal Fair Labor Standards Act (“FLSA”), 29

U.S.C. §§ 201 et seq.; (2) violations of Mass. Gen. Laws ch.

149, §§ 148, 148B(a), 150; (3) breach of contract; (4) unjust

enrichment; (5) quantum meruit; and (6) breach of the covenant

of good faith and fair dealing.

On November 17, 2017, after InStore answered the Original

Complaint, Mr. Hogan filed a motion for leave to file a First

Amended Complaint, seeking to add Karen Cherelli, a member of

the putative class, as a named plaintiff.

The proposed First Amended Complaint effectively abandoned

various causes of action in the Original Complaint, except those

arising from alleged violations of Massachusetts wage and hour

law. Mr. Hogan mischaracterizes the proposed First Amended

Complaint as “separat[ing]” his original Claim II into two

claims: one, a violation of Mass. Gen. Laws ch. 149; and the

other, a violation of Mass. Gen. Laws ch. 151. The ch. 151

claim is new to this litigation.7

A week after Mr. Hogan moved for leave to file his First

Amended Complaint, InStore filed a motion for summary judgment.

It later opposed the motion to amend the Original Complaint. On

7 InStore contests Mr. Hogan’s characterization of this proposed

amendment in his First Amended Complaint as separating Claim II

of the Original Complaint into two claims, because Claim II of

the Original Complaint only alleged violations of ch. 149.

InStore is correct. Mr. Hogan’s proposed Claim I within the

proposed First Amended Complaint is simply a recitation of his

previous Claim II in the original Complaint. His new Claim II

as stated in the First Amended Complaint asserts for the first

time a violation of ch. 151, the Massachusetts minimum wage law.

Nevertheless, for purposes of the travel of this litigation to

this point, the distinctions between ch. 149 and ch. 151 are

immaterial. Both turn on the definition of “employee” under

Massachusetts wage and hour law.

the same day that InStore moved for summary judgment, Mr. Hogan

filed a motion for partial summary judgment, seeking to

establish InStore’s liability under Massachusetts General Laws

ch. 149, §§ 148, 148B(a), 150, and a motion for class

certification.

As appears below, I will treat the First Amended Complaint

as the operative pleading and will maintain supplemental

jurisdiction over what is now a case in which only state claims

are asserted. After concluding, as a matter of law, that

InStore cannot prove Mr. Hogan’s services were outside of

InStore’s usual course of business, I will deny InStore’s motion

for summary judgment and grant Mr. Hogan’s cross-motion for

partial summary judgment as to liability. In that posture, I

take up my reasons for granting Mr. Hogan’s motion for class

certification and direct the parties to develop an approach and

schedule for bringing this class action to final judgment.

II. MOTION TO AMEND THE ORIGINAL COMPLAINT

A. Standard of Review

Under Rule 15 of the Federal Rules of Civil Procedure, a

party may amend his complaint “as a matter of course” within 21

days after service of an answer or motion to dismiss. Fed. R.

Civ. P. 15(a)(1). Following the 21-day period, a party may only

amend its pleading if the opposing party consents or if the

court grants leave to do so. See Fed. R. Civ. P. 15(a)(2).

Here, Mr. Hogan filed his Original Complaint on January 6,

2017. InStore filed its answer on March 10, 2017. Mr. Hogan’s

motion for leave to amend the Original Complaint was not filed

until over eight months later, on November 17, 2017, and, in the

absence of InStore’s consent — which was not forthcoming — this

requires my grant of leave.

Briefly stated, Mr. Hogan seeks to add a named plaintiff,

to drop most of his claims, and to add a new cause of action.

Because InStore opposed the motion, albeit after moving for

summary judgment on the Original Complaint, I will at this point

take up whether to grant Mr. Hogan leave to file his First

Amended Complaint and treat it as the operative pleading before

proceeding further in addressing motions in this case.

A court must “freely give” leave to amend when justice so

requires. Fed. R. Civ. P. 15(a)(2). While Rule 15 “reflects a

liberal amendment policy,” a “district court enjoys significant

latitude in deciding whether to grant leave to amend.” ACA Fin.

Guar. Corp. v. Advest, Inc., 512 F.3d 46, 55 (1st Cir. 2008).

Courts may consider whether there has been “undue delay, bad

faith or dilatory motive . . . , undue prejudice to the opposing

party . . . [and] futility of amendment.” Id. at 56 (alteration

in original) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

The further the parties are along in discovery, the higher the

risk of undue prejudice to the opposing party. Particular

prejudice follows where a motion to amend requires “a re-opening

of discovery with additional costs . . . and a likely major

alteration in trial tactics and strategy.” Steir v. Girl Scouts

of the USA, 383 F.3d 7, 12 (1st Cir. 2004) (quoting Acosta-

Mestre v. Hilton Int’l of P.R., Inc., 156 F.3d 49, 52 (1st Cir.

1998)).

Rule 20(a)(1) of the Federal Rules of Civil Procedure

provides for joinder of plaintiffs so long as “they assert any

right to relief jointly, severally, or in the alternative with

respect to or arising out of the same transaction” and “any

question of law or fact common to all plaintiffs will arise in

the action.” Fed. R. Civ. P. 20(a)(1). Rule 21 of the Federal

Rules of Civil Procedure provides that “[o]n motion or on its

own, the court may at any time, on just terms, add or drop a

party.” Fed. R. Civ. P. 21. As more specifically pertinent to

class actions, a district court has “wide discretion” to allow

new class representatives to be added so long as the proposed

named plaintiffs are represented by capable counsel and do not

have conflicts with the class. In re Pharm. Indus. Average

Wholesale Price Litig., 277 F.R.D. 52, 59 (D. Mass. 2011).

B. Analysis

In this case, fact discovery was scheduled to close on

October 13, 2017, with expert discovery set to be completed by

November 10, 2017. Summary judgment motions and motions for

class certification were due on November 24, 2017.

On October 13, 2017, the day that fact discovery closed,

Mr. Hogan filed a motion to extend the deadlines in the

scheduling order. Mr. Hogan’s motion said he anticipated

needing more time potentially to add defendants, to amend the

Original Complaint based on the deposition of Thomas Palombo,

InStore’s Chief Executive Officer and Rule 30(b)(6) designated

witness, and to receive discovery from requests that he had

apparently served on InStore as late as October 10, 2017. I

denied that motion to extend on October 27, 2017.

Mr. Hogan’s proposed First Amended Complaint would now add

Karen Cherelli, already a member of the putative class, as a

named plaintiff, and it would eliminate the federal question

claims asserted in the Original Complaint under the Fair Labor

Standards Act, 29 U.S.C. §§ 201 et seq., and, in conventional

diversity claims under common law causes of action in Counts

III-VI. The First Amended Complaint would also expressly

include a cause of action under Mass. Gen. Laws ch. 151, the

Massachusetts minimum wage law. See supra note 7.

Mr. Hogan’s timing was problematic. He waited until

discovery had closed to seek to amend the Original Complaint,

and the reason provided for adding Ms. Cherelli — that she did

not retain Plaintiff’s counsel until November 2017 — does little

to justify the belated timing. Presumably, because Mr. Hogan

sought class certification of those similarly situated to

himself, his counsel was, at a minimum, constructively aware of

Ms. Cherelli before November 2017.

In addition to Mr. Hogan’s disingenuous explanation for his

belated addition of a second named plaintiff, he misrepresents

his proposed First Amended Complaint as solely for substantive

purposes a separation of Claim II in his Original Complaint.

Instead of a simple separation of Claim II into two component

parts, Mr. Hogan has added a new claim, for a violation of a

separate state statute. His failure to acknowledge or account

for this addition, coupled with his pretextual failure to

acknowledge lack of compliance with Mass. Gen. Laws ch. 149,

§ 150, as discussed in Section IV.B.1.a. infra, is, at best,

indifference to his duty of candor with the court.

Finally, Mr. Hogan seeks these amendments after discovery

has closed, notwithstanding the fact that it was clearly

apparent from my denial of his midnight motion to extend

deadlines that I was unwilling to allow more time for discovery.

With that said, none of the amendments would appear to

prejudice InStore. Most of Mr. Hogan’s claims have now been

abandoned, and the remaining claims — even though one is newly

formulated — do not appear to require additional discovery. For

her part, Ms. Cherelli is alleged to have “held precisely the

same position” as Mr. Hogan and to have “identical” claims to

him. Assuming these representations are accurate, it does not

appear that adding Ms. Cherelli as a named plaintiff would

require any more discovery than if she were simply to remain an

unnamed member of the putative class. While it would be

necessary to learn something about her to determine whether she

is a properly named plaintiff, the practical reality is that –

so long as she was a vendor associate for InStore in

Massachusetts sometime after January 6, 2014 – she fits within

the terms of the proposed class.8 To the degree that any

discovery would be necessary, it would be no more arduous than

the discovery necessary to determine whether Ms. Cherelli is

properly a member of the class. InStore’s liability does not

8 Five months after Mr. Hogan moved to amend his Original

Complaint to add Ms. Cherelli as a named plaintiff, Ms. Cherelli

filed a separate, identical action – alleging the same claims,

the same facts, the same putative class, and with the same

counsel – against InStore in Massachusetts state court.

Cherelli v. InStore Grp., LLC, No. 1881CV00556, 2018 WL 1306393

(Mass. Super. filed Feb. 26, 2018). InStore removed the action

to federal court on April 13, 2018, Cherelli v. InStore Grp.,

LLC, No. 1:18-cv-10717-DPW (D. Mass. filed Apr. 13, 2018), where

Ms. Cherelli found herself once again assigned to this session

by operation of this court’s relatedness rules. While Hogan and

Cherelli would ordinarily be consolidated as duplicative

litigation, Ms. Cherelli crafted her complaint to evade federal

subject matter jurisdiction ab initio by choosing, unlike Mr.

Hogan, not to assert federal claims at the outset. On that

basis, the parties in Cherelli have engaged over whether remand

to the state court is necessary. In a separate Memorandum

issued today in the Cherelli matter, I dispose of Cherelli by

dismissing it as a matter of federal law. Cherelli, slip op.,

2021 WL _____ (D. Mass. Jan. 8, 2021).

change based on whether Ms. Cherelli is a named plaintiff or

simply a class member. Thus, I will grant the motion to amend

despite its timing infirmities.9

III. SUPPLEMENTAL JURISDICTION OVER THE FIRST AMENDED COMPLAINT

Although not addressed by the parties, the question arises

– in light of the newly operative pleading – whether I have

jurisdiction over the state law claims before me. In his

Original Complaint, Mr. Hogan alleged a violation of the FLSA,

29 U.S.C. §§ 201 et seq., which unquestionably provided this

Court with original jurisdiction over that federal claim and

supplemental jurisdiction over the related state law claims.

See 28 U.S.C. § 1367(a). However, since Mr. Hogan has abandoned

his claim under the FLSA in his First Amended Complaint, I now

must determine whether I should continue to exercise

supplemental jurisdiction over the remaining Massachusetts state

law claims asserted.

A. Standard of Review

Dismissal of a plaintiff’s federal claims does not

automatically divest a federal court of jurisdiction. Under 28

U.S.C. § 1367(c), the matter is discretionary: a “district

9 I evaluate the remaining motions before me in light of the

First Amended Complaint and with the understanding that both Mr.

Hogan and Ms. Cherelli are now named Plaintiffs. Since there

has been no discovery regarding Ms. Cherelli, however, I refer

to Mr. Hogan specifically when discussing facts relevant to the

Plaintiffs.

court[] may decline to exercise supplemental jurisdiction over a

claim . . . if . . . the district court has dismissed all claims

over which it has original jurisdiction.” 28 U.S.C. § 1367(c)

(emphasis added). Thus, “the termination of the foundational

federal claim does not divest the district court of power to

exercise supplemental jurisdiction but, rather, sets the stage

for an exercise of the court’s informed discretion.” Roche v.

John Hancock Mut. Life Ins. Co., 81 F.3d 249, 256–57 (1st Cir.

1996) (citing 28 U.S.C. § 1367(c)(3)).

The First Circuit has instructed that “it is an abuse of

discretion” for a district court to exercise supplemental

jurisdiction “unless doing so would serve ‘the interests of

fairness, judicial economy, convenience, and comity.’” Wilber

v. Curtis, 872 F.3d 15, 23 (1st Cir. 2017) (quoting Desjardins

v. Willard, 777 F.3d 43, 45 (1st Cir. 2015)). The First Circuit

has also observed that it would be an abuse of discretion to

retain jurisdiction over a pendent state law claim “when that

state law claim presents a substantial question of state law

that is better addressed by the state courts.” Id.

For example, in Roche, the First Circuit affirmed a

decision of a district court to retain state law claims after

the federal claims had been dismissed. Roche, 81 F.3d at 256–

57. The Court of Appeals found that the district court had

properly considered those state law claims despite the dismissal

of the federal claims supporting jurisdiction, because:

The litigation had matured well beyond its nascent

stages, discovery had closed, the summary judgment

record was complete, the federal and state claims were

interconnected, and powerful interests in both

judicial economy and fairness tugged in favor of

retaining jurisdiction.

Id. at 257. Within this rubric, the district court’s approach

must be “pragmatic,” and “each case must be gauged on its own

facts.” Id. Moreover, it is not uncommon for a federal court

to retain jurisdiction over state-law claims despite the “early

demise of all foundational federal claims.” Rodriguez v. Doral

Mortg. Corp., 57 F.3d 1168, 1177 (1st Cir. 1995).

B. Analysis

This case is analogous to Roche. Mr. Hogan filed his

Original Complaint in federal court on January 6, 2017 – nearly

four years ago. Cross-motions for summary judgment have been

fully, and extensively, briefed. Discovery was completed three

years ago. Moreover, the case has grown more complex with the

sprouting of an identical complaint in a later-filed case by Ms.

Cherelli in state court now removed to federal court. Because

Mr. Hogan’s Original Complaint was first filed in federal court,

if I were to decline supplemental jurisdiction, the litigation

would begin anew before a more substantially burdened

Massachusetts state court. The issue of employee classification

raised by the dispositive motions at hand, however, may be

readily addressed by me; indeed, the issue “form[ed] part of the

same case or controversy” as did Mr. Hogan’s abandoned federal

claims and does not present a substantial question of state law

that would necessarily require state court forum for

adjudication. 28 U.S.C. § 1367(a).

In the exercise of my discretion, I find that it serves the

interests of judicial economy and the convenience of the parties

for me to exercise supplemental jurisdiction.

I will proceed to consider in the following Part the merits

of the parties’ respective positions regarding the definition of

“employee” under Massachusetts wage and hour law — and by

implication the unaddressed question relevant to whether an

amendment to the Original Complaint should be permitted when it

would in any event be futile. As my grant of Plaintiff’s motion

for partial summary judgment makes clear, I do not find the

amendment futile.

IV. MOTIONS FOR SUMMARY JUDGMENT

A. Standard of Review

Summary judgment is proper where “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A

‘genuine’ issue is one that could be resolved in favor of either

party, and a ‘material fact’ is one that has the potential of

affecting the outcome of the case.” Sensing v. Outback

Steakhouse of Fla., LLC, 575 F.3d 145, 152 (1st Cir. 2009)

(quoting Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19

(1st Cir. 2004)).

The moving party bears the burden of showing “an absence of

evidence to support the nonmoving party’s case.” Celotex Corp.

v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has

met its burden, the non-moving party “must set forth specific

facts showing that there is a genuine issue for trial.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)

(quoting Fed. R. Civ. P. 56(e)).

I view the evidence in the light most favorable to the

nonmoving party and construe all reasonable inferences in that

party’s favor. See Rochester Ford Sales, Inc. v. Ford Motor

Co., 287 F.3d 32, 38 (1st Cir. 2002). When, as here, I am

presented with cross-motions for summary judgment, I must

“consider each motion separately, drawing all inferences in

favor of each non-moving party in turn.” Green Mtn. Realty

Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014) (quoting D & H

Therapy Assocs., LLC v. Bos. Mut. Life Ins. Co., 640 F.3d 27, 34

(1st Cir. 2011)).

B. Threshold Matters

1. Abandoned Claims

InStore moved for summary judgment on the Original

Complaint filed by Mr. Hogan, explicitly requesting that I grant

the motion as to the claims that Mr. Hogan has abandoned. Since

I will grant the motion to amend the Original Complaint, I

discuss in this Section only the reasons that I will decline to

grant summary judgment to InStore based on the proposed First

Amended Complaint without addressing the claims in Mr. Hogan’s

Original Complaint that he has chosen to abandon.

2. Filing the Complaint with the Attorney General

InStore argues that because Mr. Hogan failed to file the

complaint with the Attorney General before commencing this

action, I should grant its motion for summary judgment.10 Ch.

149 provides:

An employee claiming to be aggrieved by a violation of

section[] . . . 148B [of Chapter 149] . . . may, 90 days

after the filing of a complaint with the attorney

general, . . . 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, for any damages incurred, and for any lost wages

and other benefits.

10 InStore observes that Mr. Hogan’s Original Complaint

misrepresented that he had already complied with Mass. Gen. Laws

ch. 149, § 150 and filed a “Non-Payment of Wages and Workplace

Complaint Form” with the Massachusetts Office of the Attorney

General. Apparently no such complaint was filed with the

Attorney General until September 2017, and Mr. Hogan does not

dispute the fact he did not file a complaint with the Attorney

General before commencing the current action with his Original

Complaint. Mr. Hogan never addresses the reason for this

apparently false assertion, and, in fact, he again asserts,

without evidence, in his First Amended Complaint that “prior

[sic] initiating this litigation,” he filed a complaint for both

Ms. Cherelli and himself with the Massachusetts Attorney

General.

Mass. Gen. Laws ch. 149, § 150 (emphasis added). The procedural

requirements under § 150 apply to claims brought under ch. 151,

§ 1 as well because ch. 151 is “predicated on [the plaintiff’s]

claim of misclassification under [ch.] 149, § 148B.” Depianti

v. Jan-Pro Franchising Int’l, Inc., 990 N.E.2d 1054, 1060 n.10

(Mass. 2013).

The language of the statute seems to require that, before

filing a civil action under the Massachusetts independent

contractor statute, an individual must first submit the

complaint to the Massachusetts Attorney General and then wait 90

days before commencing suit. However, the Supreme Judicial

Court has held that failure to follow this requirement does not

deprive a court of jurisdiction to consider claims under Mass.

Gen. Laws ch. 149, §§ 148, 148B(a), and 150, so long as “the

Attorney General is notified of the suit during its pendency.”

Depianti, 990 N.E.2d at 1062.

Mr. Hogan finally got around to submitting a complaint to

the Attorney General on September 29, 2017, some 51 days before

asking leave to substitute his First Amended Complaint. That

filing with the Attorney General was sufficient to comply with

the Supreme Judicial Court’s interpretation of this statutory

predicate for a private action under Massachusetts wage and hour

law. The belated submission of the Original Complaint to the

Attorney General provides no reason to dismiss Mr. Hogan’s

lawsuit at this point.

3. Demonstrating Damages

InStore claims that damages are “an essential element” of

Mr. Hogan’s contentions under the Massachusetts wage and hour

law and seeks summary judgment on the basis that Mr. Hogan has

produced no evidence of any damages.

InStore cites Somers v. Converged Access, Inc. for the

proposition that plaintiffs bringing wage claims under

Massachusetts state law must prove damages. But Somers was

clear that “a legislative purpose behind the independent

contractor statute is to protect employees from being deprived

of the benefits enjoyed by employees through their

misclassification.” 911 N.E.2d at 749. Under the Massachusetts

statute, employers cannot find a “safe harbor” in the

contention, for example, that they would have paid an employee

less had they been aware that an individual was not an

independent contractor. Id.

The Supreme Judicial Court has sought to ensure that

employers do not enjoy a “windfall” by misclassifying employees

as independent contractors. Id. If Mr. Hogan is properly

classifiable as an “employee,” he

will be entitled under [Gen. Laws] c. 149, § 150, to

“damages incurred,” including treble damages for “any

lost wages and other benefits.” The “damages incurred”

will include any wages and benefits the plaintiff proves

he was denied because of his misclassification as an

independent contractor, including the holiday pay,

vacation pay, and other benefits that he would have been

entitled to as a[n] . . . employee.

Id. at 751; see also Awuah v. Coverall N. Am., Inc., 740 F.

Supp. 2d 240, 242 (D. Mass. 2010) (rejecting putative employer’s

argument that plaintiff “cannot prove any statutory wage damages

because it is undisputed that he received at least the minimum

wage, never worked overtime, and never submitted a workers'

compensation claim”).

To the extent InStore argues that Mr. Hogan would

ultimately have to prove damages to be entitled to recovery, I

do not disagree. However, damages are not an element of the

statutory scheme for liability. Rather, “section 148B is a

strict liability statute and a plaintiff need not be exploited

to seek recovery under it.” Beck v. Mass. Bay Techs., Inc., No.

CV 16-10759-MBB, 2017 WL 4898322, at *7 (D. Mass. Sept. 6,

2017). Violation of the liability provisions of the statute are

sufficient; trial on the issue of damages raises separate

issues.

C. The Massachusetts Definition of “Employee”

Mass. Gen. Laws ch. 149 § 148B(a) “establishes a standard

to determine whether an individual performing services for

another shall be deemed an employee or an independent contractor

for purposes of [Massachusetts] wage statutes.” Chambers v. RDI

Logistics, Inc., 65 N.E.3d 1, 7 (Mass. 2016) (quoting Somers,

911 N.E.2d at 747). The statute provides that “an individual

performing any service . . . shall be considered to be an

employee under [chapters 149 and 151] unless” all three

following requirements are met:

(1) the individual is free from control and direction

in connection with the performance of the service,

both under his contract for the performance of service

and in fact; and

(2) the service is performed outside the usual course

of the business of the employer; and,

(3) the individual is customarily engaged in an

independently established trade, occupation,

profession or business of the same nature as that

involved in the service performed.

Mass. Gen. Laws ch. 149, § 148B(a) (emphasis added).

Consideration of the status of a person performing services

begins with recognition that, under the requirements of §

148B(a), Massachusetts law effectively “presumes that ‘an

individual performing any service’ is an employee and therefore

is entitled to the benefits of the Massachusetts wage and

overtime laws.” Ruggiero v. Am. United Life Ins. Co., 137 F.

Supp. 3d 104, 112 (D. Mass. 2015) (quoting Depianti, 990 N.E.2d

at 1066). In other words, if the employer “does not prove all

three prongs, the individual must be classified as an employee.”

Id.11 “Whether the defendant has carried its burden under §

11 Although Mass. Gen. Laws ch. 149, § 148B(a) by its own terms

undertakes to define who, among those providing services, is an

“employee,” it is often referred to as the “independent

contractor statute,” apparently because one who is not an

employee and provides services would be deemed an independent

148B(a) — on facts that are undisputed — is a question of law.”

Id. at 113.

The Supreme Judicial Court has observed that

A legislative purpose behind the independent contractor

statute is to protect employees from being deprived of

the benefits enjoyed by employees through their

misclassification as independent contractors.

Somers, 911 N.E.2d at 749. The Massachusetts Attorney General,

in providing interpretive guidance, has cautioned that “no prong

should be read so broadly as to render the other factors of the

test superfluous.” An Advisory Memorandum from the Attorney

General’s Fair Labor Division on M.G.L. c. 149, § 148B, 2008/1,

at 6 (“Att’y Gen. Advisory”).12

It bears noting that under the FLSA, and the law of many

other states, “the relationship between the service performed

and the usual course of the enterprise’s business is simply one

among many factors to be considered.” Schwann v. FedEx Ground

Package Sys., Inc., 813 F.3d 429, 438 (1st Cir. 2016). The

Massachusetts statute’s “usual course of business” prong is

“something of an anomaly” because that prong dictates that “any

contractor outside the protection of Massachusetts wage and hour

law.

12 Because the Attorney General is charged with enforcing

Massachusetts wage and hour laws, courts must accord substantial

deference, “at least where it is not inconsistent with the plain

language of the statutory provisions.” Sebago v. Bos. Cab

Dispatch, Inc., 28 N.E.3d 1139, 1149–50 (Mass. 2015) (quoting

Smith v. Winter Place LLC, 851 N.E.2d 417, 421 (Mass. 2006)).

person who performs a service within the usual course of the

enterprise’s business [is] an employee for state wage law

purposes.” Id.

Mr. Hogan also now claims – dependent on his being an

employee under § 148B(a) – that InStore failed to pay him a

minimum wage, in violation of Mass. Gen. Laws ch. 151, § 1.

Chapter 151 requires employers to ensure that, no matter how

employees are paid, they receive at least the minimum wage. See

Mass. Gen. Laws ch. 151, § 1. To meet this objective, chapter

151 requires employers to track each employee’s hours to ensure

compliance with the minimum wage law, id. § 15, and to provide

employees time-and-a-half for any hours worked beyond a forty-

hour work week, id. § 1A. The viability of Mr. Hogan’s

substantive claim under chapter 151 turns on his claim of

misclassification under section 148B(a). See Mass. Gen. Laws

ch. 149, § 148B(a); see also note 10, supra.

With this overview, I now address each of the arguments

that InStore mounted against the ch. 149 claim — and, mutatis

mutandis, to the named plaintiffs’ claims under ch. 151.13

13 Neither party has directly briefed Mass. Gen. Laws ch. 151 –

which was added to this action in the Plaintiffs’ First Amended

Complaint – in addressing the cross-motions for summary judgment

before me. However, further briefing is unnecessary because §

148B(a) “determines the viability of plaintiffs’ substantive

claims brought under chapters 149 and 151.” Chebotnikov v.

LimoLink, Inc., No. 14-CV-13475-FDS, 2017 WL 2888713, at *7 (D.

Mass. July 6, 2017). If InStore prevails on its argument that

In Massachusetts, whether an individual providing services

is to be classified not as a statutory employee but rather as an

independent contractor is governed by Mass. Gen. Laws ch. 149

§ 148B(a). See Somers, 911 N.E.2d at 739. Under this

provision, employees are afforded the protection of wage and

hour laws, but independent contractors are not. See Sebago v.

Bos. Cab Dispatch, Inc., 28 N.E.3d 1139, 1146 (Mass. 2015).

Under § 148B(a), the plaintiff will be considered an

employee and alternatively not be deemed an independent

contractor unless the employer proves all three of the following

factors:

(1) the individual is free from control and direction

in connection with the performance of the service both

under his contract for the performance of service and

in fact; and

(2) the service is performed outside the usual course

of the business of the employer; and,

(3) the individual is customarily engaged in an

independently established trade, occupation,

profession or business of the same nature as that

involved in the service performed

Mass. Gen. Laws ch. 149 § 148B(a). It bears emphasizing that

this test is conjunctive; failure to meet any one of the three

prongs precludes a finding of independent contractor status and

Mr. Hogan is an independent contractor, it “must necessarily

prevail” against Plaintiffs’ arguments under chapter 151 as

well. Ruggiero v. Am. United Life Ins. Co., 137 F. Supp. 3d

104, 111 (D. Mass. 2015). By the same token, if Mr. Hogan

prevails on the argument that vendor associates are properly

classified as employees, then his ch. 151 claim may proceed as

well.

results in a finding that the person providing services is a

statutory employee.

There is “no question that the independent contractor

statute is a remedial statute.” Monell v. Bos. Pads, LLC, 31

N.E.3d 60, 67 (Mass. 2015). As a remedial statute, it is

construed broadly to “promote the accomplishment of its

beneficent design.” Id. (quoting Case of Sellers, 898 N.E.2d

494, 499 (Mass. 2008)). The bar set for employers to prove that

workers are independent contractors is quite demanding.

1. Prong One: Free from Control and Direction

The first prong requires that the putative employer

demonstrate that vendor associates, like Mr. Hogan, were “free

from control and direction . . . both under [their] contract[s]

for the performance of service and in fact.” Mass. Gen. Laws

ch. 149 § 148B(a) (emphasis added). The inquiry generally turns

on whether the “worker’s activities and duties [were] actually .

. . carried out with minimal instruction,” using their own

methods, except as to the result of their labor. Sebago, 28

N.E.3d at 1149 (alteration in original) (quoting Att’y Gen.

Advisory). The first prong itself “contains a conjunctive test

under which [Mr. Hogan] need only prevail on one branch” —

either as a matter of contract or as a matter of fact. DaSilva

v. Border Transfer of MA, Inc., 296 F. Supp.3d 389, 400 (D.

Mass. 2017) (DaSilva II).

Minimal instruction does not require “that a worker be

entirely ‘free from direction and control from outside forces.’”

Athol Daily News v. Bd. of Rev. of the Div. of Emp’t and

Training, 786 N.E.2d 365, 371 (Mass. 2003). Rather, the

question “has always been” whether the worker has “the right to

control the details of the performance,” id., and in this

connection, evaluation is necessary regarding “freedom from

supervision ‘not only as to the result to be accomplished but

also as to the means and methods that are to be utilized in the

performance of the work,’” id. (quoting Maniscalco v. Dir. of

the Div. of Emp’t Sec., 97 N.E.2d 639, 640 (Mass. 1951)).

I begin by construing InStore’s contractual right to

control the performance of its vendor associates and, then

consider the level of control it exerted in fact as disclosed in

the record before me.

a. Contractual Right of Control

InStore argues that the Agreement signed between the

parties clearly provides that Mr. Hogan and other vendor

associates are independent contractors.14

14 Mr. Hogan contends that InStore “retained the right to

control” the services of retail associates through its internal

Policy. However, since this Policy is neither a signed contract

nor integrated by reference into the Agreement, I consider it

under my analysis of Control in Fact.

The Agreement – titled the “Independent Contractor Vendor

Agreement & Release Form” – provided that Mr. Hogan was a “self-

employed independent contractor.” The Agreement further

provided that Mr. Hogan “underst[ood] that all details

concerning a client engagement are specified by the client (not

The InStore Group, LLC.), that the services [Mr. Hogan]

perform[s] are evaluated by the client (not The InStore Group,

LLC.) and that The InStore Group, LLC.’s involvement in a

project is limited exclusively to communicating information

between a client and [Mr. Hogan].” Finally, the Agreement is

“nonexclusive,” and provides that Mr. Hogan “always [has] the

right to market [his] services through means other than The

InStore Group, LLC.”

That Mr. Hogan signed an Agreement classifying him as an

independent contractor does not dictate the outcome of my legal

analysis. See Ruggiero, 137 F. Supp. 3d at 114 (looking past

the face of the contract to “the actual relationship between the

parties”). “[M]isclassification does not turn on how the

parties contractually label their relationship.” DaSilva v.

Border Transfer of MA, Inc., 377 F. Supp. 3d 74, 94 (D. Mass.

2019) (DaSilva III).

In the final analysis, interpretation of the Agreement’s

terms does not, as a matter of law, resolve the question of

control. Further analysis of control as a matter of fact is

necessary.

b. Control in Fact

Mr. Hogan argues that InStore exerted control in fact over

its vendor associates through its general Policy, titled “The

InStore Group Vendor Associate Dress Code for ALL InStore Group

Assignments.” Mr. Hogan points to the portions of the Policy

relating to (1) a dress code,15 (2) a ban on the use of

electronics during “reset” projects, (3) a name tag, and (4) a

list of required tools. Mr. Hogan also argues that InStore

exerted control over vendor associates by (5) mandating projects

be completed within specific blocks of time, (6) providing

instructions for performing each assignment in an ISG Worksheet,

and (7) requiring the submission of a performance survey and

photograph.

In turn, InStore argues that it is not responsible for the

Policy (1, 2, 3, 4), but merely collected the preferences of its

clients into one simplified guide. InStore argues that it did

not effectively (5) mandate vendor associates complete projects

within specific times, because vendor associates were free to

15 InStore argues that Mr. Hogan has abandoned his argument that

InStore’s dress code Policy exerted actual control over the

vendor associates. InStore cites no basis to support this

assertion, and I see no reason to exclude Mr. Hogan’s arguments

as they relate to the Policy.

choose the projects they wanted to complete. InStore also

disputes that the Worksheets (6) provided instructions on how to

complete the projects. InStore does not dispute that vendor

associates were required to (7) submit a final certification and

photograph demonstrating completion of the job.

The Policy states that, among other things, T-shirts, denim

pants, shorts, open toe shoes, and caps are “not allowed.” The

dress code further states that vendor associates should

“[a]lways report to work . . . in appropriate work attire.”

Included in the project materials that vendor associates receive

for each assignment is a name badge, which the Policy instructs

“should [be worn] . . . at all times.” The name tag identifies

a vendor associate as a “Vendor Associate” in the “Merchandising

Division” of “The InStore Group.” Additionally, the Policy

indicates that “no” personal electronics “are allowed on the

sales floor . . . [and] may be used only during break times.”

Finally, the Policy specifies tools that vendor associates

“need[] for ALL ISG Assignments,” including a printed InStore

Worksheet, a pen, a safety box cutter, and a digital camera or

cellphone. The Policy notes that “[i]t is important that

[vendor associates] follow these instructions for a successful

assignment and to avoid payment delays.” InStore provided this

Policy to all its staff and independent contractors.

Beginning with the Policy, InStore assigns the specific

level of control regarding the dress code, required name tag,

and ban on personal electronics to its contracts with clients,

not to its own direct control of the vendor associates. InStore

contends that its clients – not InStore – have asserted the

preferences described in the Policy. InStore argues that it

merely “collected dress code recommendations from [its] clients”

to avoid providing vendor associates a “phonebook” of

regulations specific to each client. The case law however is

clear that why InStore “controls its [vendor associates] . . .

is irrelevant to the inquiry under Prong A.” DaSilva III, 377

F. Supp. 3d at 94. See supra note 2. Regardless of why, the

Policy was compiled and authored by InStore. In so doing,

InStore issued a company policy purporting to bind “all Team

Leads, Regular Vendor Associates, and 3rd Party Vendor

Associates.”

InStore next argues that it did not enforce the Policy

provisions. InStore contends that the Policy was merely a

“recommendation,” and that InStore had no authority to enforce

it. This argument is unavailing as well. As an initial matter,

it is the “[r]ight [to] control rather than the exercise of it”

that is legally determinative. Rainbow Dev., LLC v. Mass. Dep’t

of Indus. Accidents, No. SUCV2005-00435, 2005 WL 3543770, at *3

(Mass. Super. Nov. 17, 2005) (quoting Case of Dermott, 186 N.E.

231, 233 (Mass. 1933)). The logic of that approach is coherent:

simply because an employer asserts in hindsight that a policy

was never applied does not mean that the policy did not

influence the behavior of workers governed by that policy.

InStore’s Policy expressly applied to all vendor associates, and

the record does not reflect that any of the vendor associates

would have reason to believe that it did not apply to them. Cf.

Carey v. Gatehouse Media Mass. I, Inc., 94 N.E.3d 420, 426 n.12

(Mass. App. 2018) (rejecting the putative employer’s assertion

“that there was no evidence it had actually imposed [penalty]

charges” provided by the written agreement with its workers as

“immaterial for summary judgment purposes”). Under InStore’s

approach, putative employers could establish any number of

internal guidelines and policies purporting to restrict their

workers’ conduct, but sub silentio abstain from aggressively

enforcing such policies, to avoid classifying their workers as

employees, no matter the effect that the policies had in

practice on their workers.

I decline to conflate the lack of InStore supervisory

presence at client locations with a lack of enforcement of the

Policy. If, as InStore admits, InStore clients can point to the

Policy and demand compliance from vendor associates, then

InStore’s Policy is enforceable and being enforced. This is so,

even if InStore is not the direct voice of enforcement. See

Rainbow Dev., 2005 WL 3543770, at *3 (dismissing defendant’s

argument that “because all of the work performed is done off-

site, there is no control over the performance of the worker”).

Moreover, InStore admits that clients could call InStore to

mediate complaints regarding compliance with the Policy. Mr.

Palombo, InStore’s Chief Executive Officer, testified that if

vendor associates used their phones during projects, clients

could and “would just call [InStore] and tell [InStore] . . .

please don’t do that anymore,” and InStore would relay the

client complaint to InStore’s “operations” arm. However,

InStore does not impose any punishments on vendor associates for

client complaints.16

16 Mr. Palombo testified as follows:

Q. [What if a vendor associate] were using their iPod?

A. On reset, . . . [the clients] want people working.

They don’t want people sitting around, going outside,

to dilly – because you’re working – you may be working

in an aisle with five or six other vendors, and if

you’re not there, then you’re not – that vendor’s work

is sitting – holding – may be holding someone else up,

so that’s why retailers require staying off the phone,

guys. They give them the cigarette break, go do your

thing, whatever, but when it’s work time, they want

people in the store performing the assignment on a

reset; especially reset. All other times there is no

policy.

Q. That would be bad for InStore Group’s business, right?

A. They would just call us and tell – tell – please don’t

do that anymore.

Q. What would you do once they did that?

A. I would say, hey, guys, you know, if – please be careful on

the phone. I would tell operations, listen, I talked to –

I talked to Winn-Dixie, and they said, you know, try to use

InStore concedes that its Policy was enforceable by

clients. If a client sent a vendor associate home to change,

the vendor associate was not paid for the time the vendor

associate spent changing into attire in compliance with the

Policy. That the Policy was enforceable, and indeed enforced,

by InStore is evidenced by the fact that, in other

circumstances, InStore compensated vendor associates when

InStore determined that a client had caused a delay in the

vendor associate’s completion of a project. Notably, this

compensation did not extend to circumstances where clients

caused a delay by enforcing the Policy.

I conclude that InStore evidenced the exercise of control

over its vendor associates through its Policy requirements of

(1) a dress code; (2) a ban on vendor associates’ use of

personal technology during jobs; and (3) its requirement that a

name tag be worn.

Turning to (4), the list of required tools in the Policy,

InStore disputes that vendor associates were required to bring

anything more than a camera. The InStore Policy states that a

box cutter and a printed Worksheet are required tools. However,

the Worksheet could be accessed online, and the box cutter may

the cell phones on break. That’s all. It’s not – it’s not

like you’re going to get thrown out of – you’re not going

to – we’re not going to lose an account over it.

not be needed for specific types of projects, and, if needed,

could potentially be retrieved from the client on site if the

vendor associate came without one. On this record, I find the

question whether these “tool” requirements evidence control to

be a disputed issue of material fact.

With respect to Mr. Hogan’s argument that InStore (5)

controlled his hours by requiring that vendor associates

complete various merchandising projects on certain dates, at

certain times, or during certain lengths of time, I find that

this argument fails simply because it is undisputed vendor

associates had the power to select which and how many projects

they would undertake. This power residing with the vendor

associates included the power to select the projects according

to the blocks of time predetermined for their completion.

InStore did not assert control over Mr. Hogan by communicating

these project specifications. The vendor associates were free

to control what project, and, hence, what project specifications

they would perform.

InStore disputes that it (6) provided instructions for

completing assignments in the ISG Worksheet. InStore concedes

that it writes the Worksheets in conjunction with its clients

but contends that the worksheets “are separate and apart from

instructions for each project.” Rather, InStore argues, the

Worksheets merely indicate the “assignment and . . . how [the

vendor associate] can invoice [InStore].” I find that in this

respect there is a genuine issue of material fact whether

Worksheets providing instructions on how to perform the jobs

evidence control.

Finally, InStore does not dispute that vendor associates

were required to (7) submit a final certification and photograph

demonstrating completion of the job.

In sum, there remain issues of material fact on the record

before me whether (4) the box cutter and a printed Worksheet

were required tools, and whether (6) the Worksheets provided

instructions controlling the performance of vendor associates.

At the same time, on this record, I have found as a matter of

law that (5) InStore did not assert control over vendor

associates by listing projects with date parameters for

completion.

With respect to portions (1), (2), and (3) of the Policy, I

have indicated in the past that incidents of workplace direction

such as a uniform to be worn by a worker “standing alone, is not

enough to impinge significantly on [a worker’s] control of his

operations.” Ruggiero, 137 F. Supp. 3d at 116. I am similarly

not satisfied that (7) submission of a perfunctory check-box

survey and photo of completed performance17 does much work to aid

Mr. Hogan’s case.

Drawing the several findings from the summary judgment

motion before me together, I conclude that whether vendor

associates were free from InStore’s control cannot be determined

on this record as a matter of law.18

2. Prong Two: Outside the Usual Course of Business

The critical point in the parties’ dispute concerns Prong

Two, which asks whether “the service is performed outside the

usual course of the business of the employer.” Mass. Gen. Laws

ch. 149 § 148B(a). When determining whether the services

performed by InStore vendor associates are outside the usual

course of InStore’s business, the Supreme Judicial Court has

evaluated two factors: (A) what is the usual course of business

of the employer, and (B) what are the services performed by the

worker. See Sebago, 28 N.E.3d at 1151-52 (comparing the “usual

course of business” of the employer against the business of its

workers).

17 Indeed, this “requirement” was apparently so perfunctory that

Mr. Hogan was, as a matter of fact, paid by InStore for two

projects he never completed.

18 Mr. Hogan suggests that the vendor associates were tracked by

secret shoppers during audits, but he provides no evidence of

such practices or of any link to InStore (as distinguished from

InStore’s clients). As a result, his suggestion plays no

evidentiary role in evaluating the summary judgment record.

The first inquiry is not genuinely at issue here, because

it is undisputed that Mr. Hogan provides retail services to

InStore. Rather, InStore argues that Mr. Hogan’s provision of

retail services is distinct and incidental to InStore’s usual

course of business, which it claims is the coordination of

retail services. Since InStore nominally disputes Mr. Hogan’s

characterization of its usual course of business, I must

determine the reality of InStore’s “actual business operations,”

not just its “own definition of its business.” Sebago, 28 N.E.

3d at 1152; id at 1150 (noting that, although defendants

“advertise[d] themselves as providing taxicab services,” this

fact “d[id] not override the realities of the radio

associations’ actual business operations”). I turn now to my

specific determinations concerning record evidence of whether

Mr. Hogan’s services were necessary as opposed to incidental to

InStore’s business.

Overall, I observe it is a matter of law whether the

services performed by Mr. Hogan were in the usual course of

InStore’s retail merchandising business. See Awuah v. Coverall

N. Am., Inc., 707 F. Supp. 2d 80, 82 (D. Mass. 2010); Martins v.

3PD, Inc., No. 11-cv-11313-DPW, 2013 WL 1320454, at *1 (D. Mass.

Mar. 28, 2013).

a. InStore’s Course of Business

The Supreme Judicial Court has recognized that “a purported

employer’s own definition of its business is indicative of the

usual course of that business.” Sebago, 28 N.E.3d at 1150. That

being said, the Supreme Judicial Court has also been clear that

“employers may not circumvent the Wage Act or other laws

affecting employee compensation by creating illusory

distinctions in the services they provide.” Id. at 1155.

Mr. Hogan argues that InStore’s business is — as is his

work — in retail services. InStore contends that it does not

actually perform retail services, but rather, “connects

retailers and manufacturers seeking vendor associate services

with independent contractor vendor associates seeking to perform

such services.”

At the same time, InStore holds itself out to the public as

an “On-Demand,” “nationwide full-service retail merchandising

organization[].” InStore states that it achieves its “retail

merchandising mission . . . [by] deploy[ing] [its] retail

associates in stores across America, to execute merchandising

initiatives that grow our customers’ sales, profits, and

independent market share.” Indeed, InStore promises to “match

the right individual to every customer retail assignment.” And

during six years of submitting its annual corporate filing with

the North Carolina Secretary of State’s Office, InStore

described its business as “retail services.” See Carey, 94

N.E.3d at 425 (noting the putative employer’s annual corporate

filing as a factor in determining the defendant’s course of

business).

Independent of its public marketing and regulatory

reporting, InStore has acknowledged in discovery in this case

that it is a retail services company. Its Chief Executive

Officer, Mr. Palombo, testified that InStore’s business was

“retail services.” Similarly, InStore contends in its papers

that it “contracts with retailers . . . and manufacturers . . .

to provide labor for certain retail services.” In short, retail

services, “both internally and publicly, appear to form the

foundation of its business.” 3PD, 2013 WL 1320454, at *14.

Moreover, inspection of InStore’s “actual business

operations” reinforces those descriptions. Sebago, 28 N.E. 3d

at 1152. InStore bids on projects advertised by retailers and

manufacturers; once they are selected, InStore contracts with

clients to provide labor for the project; and InStore then

advertises the client’s project details, pay, location, and time

parameters on Natural Insight. InStore also contracts with

vendor associates who select as many, and which, assignments as

they choose among the listed projects. When vendor associates

complete projects, they are paid by the client through InStore.

Notably, InStore generates revenue from vendor associates.

InStore makes money when vendor associates complete projects

and, if a vendor associate fails to perform a job for InStore’s

client, InStore “lose[s] the money,” according to its Chief

Executive Officer, Mr. Palombo.

Nevertheless, InStore insists that its usual course of

business consists merely of “facilitating the connection between

retailers or manufacturers and contract vendor associates,” and

is distinct from Mr. Hogan’s actual provision of retail

services. Specifically, InStore argues that Mr. Hogan’s

services were outside the scope of its usual business because

InStore has no employees who perform merchandising services. In

other words, because InStore does not treat any of its vendor

associates as employees, it declares that its vendor associates

are not, in fact, employees. However, InStore cannot rely on

this circular reasoning to argue “that it did not provide

[retail] services because those services were provided by third

parties when the question at issue is whether those third

parties were employees of [InStore].” 3PD, 2013 WL 1320454, at

*15. Moreover, the question is not whether InStore has

employees performing Mr. Hogan’s role, but rather the question

is, if InStore were to hire employees, would its employees

“perform the same services as those whom the Agreement terms as

‘independent contractors.’” Rainbow Dev., LLC, 2005 WL 3543770,

at *3. Undoubtedly, the answer is yes.

Increasingly in the gig economy, the coordination and the

provision of services are two sides of the same coin. So it is

here. Cf. Cunningham v. Lyft, Inc., No. 1:19-cv-11974-IT, 2020

WL 2616302, at *10 (D. Mass. May 22, 2020) (finding that “[t]he

‘realities’ of Lyft’s [carpool] business are no more merely

‘connecting’ riders and drivers than a grocery store’s business

is merely connecting shoppers and food producers, or a car

repair shop’s business is merely connecting car owners and

mechanics”), appeal filed on other grounds, No. 20-1567 (1st

Cir. June 17, 2020) (interlocutory appeal pursued whether

rideshare drivers are a “class of workers engaged in foreign or

interstate commerce” exempt from the Federal Arbitration Act, 9

U.S.C. § 1, and whether the district court had jurisdiction over

the motion to compel arbitration); Mass. Delivery Ass’n v.

Coakley, 769 F.3d 11, 21 n.4 (1st Cir. 2014) (rejecting the

argument that couriers were independent contractors working

outside the course of the putative employer’s business simply

because “one performs the deliveries and the other arranges the

deliveries”). The Supreme Judicial Court has resoundingly

rejected the “false dichotomy between the administrative and

operational aspects of their business.” Sebago, 28 N.E.3d at

1148. I conclude as a matter of law that the reality of

InStore’s business model is providing retail services.

b. Whether Mr. Hogan’s Services Were Incidental or

Necessary

The second factor in the usual course of business inquiry

is “whether the service the individual is performing is

necessary to the business of the employing unit or merely

incidental.” Sebago, 28 N.E.3d at 1150 (quoting Att’y Gen.

Advisory). A service is necessary to the purported employer’s

business if it is “an essential part of the employer’s

business.” 3PD, 2013 WL 1320454, at *13 (quoting Att’y Gen.

Advisory).

The Supreme Judicial Court has given the following examples

of services performed within the usual course of an employer’s

business:

[A]rt instructor services performed on a “regular or

continuous” basis within an art museum, musicians

performing as a “usual and customary” activity at a “beer

bar,” and an organist playing music as a “usual part of”

a funeral home's business.

Carey, 94 N.E.3d at 426 (quoting Athol Daily News, 786 N.E.2d at

372). Although “essential” requires a direct connection to the

putative employer’s core business, “a service need not be the

sole, principal, or core product that a business offers its

customers, or inherently essential to the economic survival of

that type of business,” to be within the usual course of that

business. Id. at 426.

The Supreme Judicial Court has further developed the

definition of necessary and incidental through its analysis of

two contrasting Illinois cases: Parks Cab Co. v. Annunzio, 107

N.E.2d 853 (Ill. 1952) and O’Hare-Midway Limousine Serv., Inc.

v. Baker, 596 N.E.2d 795 (Ill. App. Ct. 1992). See generally

Sebago, 28 N.E.3d at 1150–51.

In Parks Cab Co., the putative employer owned no cabs and

leased its taxicab medallions to its drivers for a flat fee on a

weekly basis. Parks Cab Co., 107 N.E.2d at 853-54. The putative

employer was “not concerned” with the drivers’ endeavors because

“[i]ts business [was] the leasing of taxicab licenses, and in

that business the drivers render[ed] no services for it.” Id. at

855.

By contrast, in O’Hare-Midway Limousine Serv., Inc., the

drivers leased limousines from the putative employer and

transported customers for fares; the drivers were required to

remit a percentage (sixty percent) of the fares back to the

limousine company. 596 N.E. 2d at 797. The putative employer

was held to have “establish[ed] a financial interdependence”

with the limousine drivers, because the drivers “picked up

customers who had ‘booked’ limousine services” with the owner,

and the owner received “a percentage of their commissions.” Id.

at 797.

From its analysis of Parks Cab Co. and O’Hare-Midway

Limousine Serv., Inc., the SJC observed that the definition of a

necessary service turns on whether the purported employer’s

business is dependent on the success of the service provided by

the “employee.” Sebago, 27 N.E. 3d at 1151.

InStore’s vendor associates are more like the limousine

drivers in O’Hare-Midway than like the taxi drivers in Parks Cab

Co. InStore actively solicits retailers and manufacturers for

its vendor associates to provide retail services. InStore deals

directly with clients, drawing up and negotiating contracts

before any involvement from vendor associates. Retailers and

manufacturers wishing to obtain retail services work directly

with InStore, which lists client projects on Natural Insight and

recruits vendor associates to perform such projects via email.

Like the limousine service in O’Hare-Midway, InStore books

client jobs for its vendor associates.

Second, unlike the taxi drivers in Parks Cab Co., the

vendor associates pay no flat fee to InStore, but rather are

paid by InStore for each project. InStore is paid in turn by

the client and takes a commission from the project. In no case

does the client pay the vendor associate directly. Clients may

provide specific instructions relating to performance and

complaints about performance directly to InStore, but it is

InStore that conveys this information to the vendor associates.

In short, InStore is not a wholesaler that takes little

interest in whether and how its vendor associates perform.

InStore deals directly with potential clients in selling the

very retail services that vendor associates provide; it deals

directly with clients in writing Worksheets and project

descriptions; it deals directly with clients in mediating

complaints regarding non-compliance with client conduct

requirements and performance complaints; and it deals directly

with clients in accepting payments, which it conveys to the

vendor associates less its commission.

InStore’s citation to a pair of cases governed directly by

Massachusetts law, American Zurich Insurance Co. v. Department

of Industrial Accidents, No. 05-3469, 2006 WL 2205085 (Mass.

Super. Ct. June 1, 2006) and Ruggiero, is unavailing.

American Zurich is factually inapposite. The Massachusetts

Superior Court Judge there refused to disturb a decision of the

Department of Industrial Accidents (DIA) that fifteen artisan

workers were not part of a licensed home improvement

contractor’s usual course of business. The case is thus

procedurally different.

Additionally, it bears emphasizing that the Superior Court

was confined to the administrative record and bound to a

deferential standard of review: whether the DIA’s determination

was "unsupported by substantial evidence," or was "arbitrary or

capricious, an abuse of discretion, or otherwise not in

accordance with the law." Am. Zurich, 2006 WL 2205085, at *2

(quoting Mass. Gen. Laws ch. 30A, § 14(7)). Notably, this

deference was applicable to the weight given to the putative

employer’s testimony, which the DIA Trial Examiner had found

credible. Id. at 3. That alone is sufficient to distinguish

the case at hand.

Moreover, several workers in American Zurich specifically

asserted to the court that they were independent contractors,

id. at *5, which dramatically contrasts with this case where Mr.

Hogan, for himself and on behalf of other vendor associates,

expressly seeks the protection of employee classification.

Finally, American Zurich specifically distinguished cases where

“a worker whose services form a regular and continuing part of

the employer’s business” and who lack “an independent business”

for channeling the benefits of employment. Id. at *4. That is

the case now before me, which arises in the summary judgment

context where I do not weigh credibility or defer to other

agencies charged with doing so.

In Ruggiero, I considered whether an insurance agent who

sold insurance and annuity products for two insurance agencies

had been improperly classified as an independent contractor.

Ruggiero, 137 F.Supp. 3d at 107. There, I found that the

putative employers were “not in the business of selling

insurance products directly; [they were] in the business of

determining which products to make available, structuring and

drafting the policies, obtaining regulatory approval for these

policies, and investing the policy premiums.” Id. at 118

(original emphasis omitted).

In Ruggiero, I identified two categories of Massachusetts

cases challenging a worker’s classification:

[T]here are cases in which the defendants equip the

plaintiffs with the tools, resources, and opportunity to

sell or provide the defendants’ products, often earning

a commission or percentage of the sales, and essentially

franchising their business; and . . . there are cases in

which the defendants merely give the plaintiffs a

license or a product and leave the plaintiffs to their

own devices to make a profit from it.

Ruggiero, 137 F. Supp. 3d at 119. The latter category is

typified by cases where the employer’s “business is not directly

dependent on the success of the [workers’] endeavors.” Id. at

120 (quoting Sebago, 28 N.E.3d at 1151). I found that the

insurance agent in Ruggiero fell into the latter category

because, as relevant here, the putative employer “could still

produce insurance products without [sales] agents.” Id. at 119.

In contrast, this case is akin to the franchising characterized

by the former category.

As a threshold matter, I note InStore does not argue that

it could continue as a company without vendor associates.

Second, InStore does not leave vendor associates “to their

own devices to make a profit” from InStore’s services, Ruggiero,

137 F. Supp. 3d at 119; rather, InStore was involved in directly

selling retail services through its internal sales division.

Ruggiero dealt with “business arrangements where the

manufacturer does not engage in direct sales but instead

empowers individuals to engage in their own, separate businesses

that involve – but do not consist exclusively of – the sale of

the manufacturer’s products.” Id.

Third, InStore was continually engaged at every stage of

the relationship between vendor associate and client. InStore

published and hosted client projects on Natural Insight; it

sometimes recruited vendor associates by email for certain

projects; it provided vendor associates unique Worksheets per

project; it sometimes shipped tools or supplies to vendor

associates in preparation of client projects, and it paid for

shipping; it authored a general conduct and dress code Policy

for vendor associates and received inquiries from vendor

associates about the Policy; it addressed complaints from vendor

associates about client delays; and it distributed payments to

vendor associates after verifying completion of projects.

InStore also mediated client complaints about vendor

associates’ noncompliance with the Policy and about vendor

associates failing to perform their assignments; it wrote

Worksheets in conjunction with clients; and it accepted payments

from clients following vendor associates’ completion of

projects. Cf. Sebago, 28 N.E.3d at 1149 (taxicab drivers

provided services to radio associations where vouchers from

associations’ corporate clients were submitted to drivers as

payment, and associations gave drivers amount equal to fare and

tip minus a “‘processing’ fee”). The record before me

establishes that InStore followed an internal “policy” to pay

vendor associates more if a project went longer than the

estimated number of hours and InStore had determined that the

client, not the vendor associate, was at fault for a delay in

completion. In short, at every stage of the process, InStore

mediated work supplied from its retail associates to its

clients.

Fourth, as discussed, InStore generates revenue as a result

of successful completion of projects by its vendor associates.

InStore cannot claim to outsource the very core of its business

offering. See, e.g., Rainbow Dev., 2005 WL 3543770, at *3

(individuals who provide detailing and conditioning services for

cars were engaged in the same business as employer that

administered and coordinated these services); 3PD, 2013 WL

1320454, at *15 (rejecting an employer’s “attempt to separat[e]

. . . executive and managerial functions . . . [as] insufficient

to take the service provided by workers outside the course of a

business” (internal quotation marks omitted)).

InStore complains that interpreting the Massachusetts

independent contractor statute to extend coverage to Mr. Hogan

is a “result [that] defies logic.” Such a holding would allow

Mr. Hogan to be an employee of InStore and simultaneously an

employee of an InStore competitor such that Mr. Hogan was an

employee of multiple employers while performing projects at the

same retail site. But InStore essentially asks me to mold the

Massachusetts wage statute to fit its preferences for the retail

services industry. Whatever the wisdom of the Massachusetts

statute, the text is clear, and it makes no exception for

employers simply because they are participants in the

conventional gig economy.

Mr. Hogan and the other vendor associates were engaged in

the “exact business [the employer] engaged in; [the employer]

merely provides administration. Without services of the workers,

[the employer] would cease to operate.” 3PD, 2013 WL 1320454,

at *14 (alterations in original) (quoting Rainbow Dev., LLC,

2005 WL 3543770, at *3). I find as a matter of law that Mr.

Hogan was providing services in InStore’s usual course of

business: retail services.

3. Prong Three: Customary Engagement in an Independently

Established Trade

While my finding on the second prong is sufficient to

dispose of the summary judgment issues presented by the parties’

cross-motions, for completeness I briefly address the third

prong.

The Massachusetts employee definition statute requires the

defendant to prove that the “the individual is customarily

engaged in an independently established trade, occupation,

profession or business of the same nature as that involved in

the service performed.” Mass. Gen. Laws ch. 149, § 148B(a). As

the Supreme Judicial Court has stated, the question under the

third prong is whether “the worker is capable of performing the

service to anyone wishing to avail themselves of the services

or, conversely, whether the nature of the business compels the

worker to depend on a single employer for the continuation of

the services.” Sebago, 28 N.E.2d at 1153 (quoting Athol Daily

News, 786 N.E.2d at 373).

In this case, Mr. Hogan had the right to contract with

other companies like InStore to engage in merchandising

services. It is undisputed that Mr. Hogan could work for other

merchandising companies.19 Thus, he did not depend on InStore

19 I note that on January 6, 2017, the same day he filed the

Original Complaint in this litigation, Mr. Hogan filed a

separate lawsuit in this court against a different company, SPAR

for all his jobs, nor did he have to; the nature of the business

was to pick and choose projects that he wanted to do on his own

schedule. Accordingly, as to this prong, I find as a matter of

law that InStore has met its burden.

* * * * *

Since I have found, as a matter of law, that InStore cannot

establish that Mr. Hogan, or any vendor associate, performed

services outside of InStore’s course of business, I find that

Mr. Hogan and all InStore’s vendor associates are appropriately

classified as employees. Accordingly, I will grant summary

judgment for Mr. Hogan as to the classification issue under

Mass. Gen. Laws chs. 149 and 151 and conversely deny summary

judgment to InStore.

V. CLASS CERTIFICATION

On the now operative pleading, the First Amended Complaint,

Mr. Hogan moves as he did in his Original Complaint, to certify

a class of “all individuals who have worked as ‘vendors’ or

‘vendor associates’ for InStore Group, LLC in Massachusetts

Group, Inc., alleging violations of the Massachusetts

independent contractor statute stemming from hiring him as a

“merchandiser” “in or about May 2015.” Complaint ¶ 40, Hogan v.

SPAR Grp., Inc., No. 1:17-cv-10024-LTS, 2017 WL 11219176 (D.

Mass. filed Jan. 6, 2017). Judge Sorokin granted final approval

of a class action settlement in that matter for $250,000. Id.,

slip op. at 3 (D. Mass. Oct. 15, 2019).

since January 6, 2014,” as to all counts. InStore opposes class

certification.

A. Standard of Review

Federal Rule of Civil Procedure 23(a) allows class

certification when (1) the class is so numerous that joinder of

all members is impractical; (2) there are questions of law or

fact common to the class; (3) the claims or defenses of the

representative parties are typical of the class; and (4) the

representative parties will fairly and adequately protect the

interests of the class. Fed. R. Civ. P. 23(a). In addition,

plaintiffs must establish one of the three requirements in Fed.

R. Civ. P. 23(b).

Mr. Hogan proceeds under Rule 23(b)(3), which requires that

common questions of law or fact “predominate over any questions

affecting only individual members,” and that “a class action is

[a] superior . . . method[]” of adjudicating the case. Fed. R.

Civ. P. 23(b)(3). Relevant considerations under Rule 23(b)(3)

include:

(A) the class members’ interests in individually

controlling the prosecution or defense of separate

actions; (B) the extent and nature of any litigation

concerning the controversy already begun by or against

class members; (C) the desirability or undesirability of

concentrating the litigation of the claims in the

particular forum; and (D) the likely difficulties in

managing a class action.

Fed. R. Civ. P. 23(b)(3).

Mr. Hogan has the initial burden of showing that his

proposed class satisfies Rule 23’s requirements. See In re

Nexium Antitrust Litig., 777 F.3d 9, 27 (1st Cir. 2015).

If the parties dispute factual premises at this stage, I

may “probe behind the pleadings,” In re New Motor Vehicles

Canadian Exp. Antitrust Litig., 522 F.3d 6, 17 (1st Cir.

2007) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S.

147, 160 (1982)), to “‘formulate some prediction as to how

specific issues will play out’ in order to assess whether

the proposed class meets the legal requirements for

certification,” id. (quoting Waste Mgmt. Holdings, Inc. v.

Mowbray, 208 F.3d 288, 298 (1st Cir. 2000)). District

courts have “broad discretion when determining issues of

class certification,” Grace v. Perception Tech. Corp., 128

F.R.D. 165, 167 (D. Mass. 1989), but must conduct “a

rigorous analysis of the prerequisites established by Rule

23,” Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 38

(1st Cir. 2003).

Massachusetts wage and hour laws are contemplated as giving

rise to class claims under Mass. Gen. Laws chs. 149 and 151.

See Mass. Gen. Laws ch. 149 § 150 (workers pursuing

misclassification claims may do so for “others similarly

situated”); id. ch. 151 § 20 (same). And this right to pursue

class-wide relief for violations of the Massachusetts Wage Act

Law and Independent Contractor Law is further protected by the

statutory preclusion of waiver of these rights: “No person shall

by a special contract with an employee or by any other means

exempt himself from” Section 150. Id. ch. 149 § 148.

B. Analysis

1. Fed. R. Civ. P. 23(a)

a. Numerosity

Rule 23(a)(1) requires a finding that “the class is so

numerous that joinder of all members is impracticable.” InStore

has, so far, identified over 200 vendor associates during the

applicable time period; this sufficiently renders joinder

impracticable. See Overka v. Am. Airlines, Inc., 265 F.R.D. 14,

18 (D. Mass. 2010) (district court may “draw reasonable

inferences . . . to find the requisite numerosity” (quoting

McCuin v. Sec’y of Health & Human Servs., 817 F.2d 161, 167 (1st

Cir. 1987)). InStore does not contest numerosity. I find that

Mr. Hogan has satisfied the requirements of Rule 23(a)(1).

b. Commonality

Rule 23(a)(2) requires a finding that “there are questions

of law or fact common to the class.” The thrust of the inquiry

is not “the raising of common ‘questions’ . . . but rather, the

capacity of a class-wide proceeding to generate common answers

apt to drive the resolution of the litigation.” Wal-Mart

Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (quoting

Nagareda, Class Certification in the Age of Aggregate Proof, 84

N.Y.U. L. Rev. 97, 132 (2009)). In other words, the class

claims must depend upon the resolution of “an issue that is

central to the validity of each one of the claims in one

stroke.” Id. Commonality is generally satisfied where class

claims arise out of a uniform company policy or practice. See

Garcia v. E.J. Amusements of N.H., Inc., 98 F. Supp. 3d 277, 286

(D. Mass. 2015) (“Wage claims involving system-wide practices or

policies are appropriate for class treatment because

establishing liability for one employee necessarily establishes

liability for the entire class.”).

That the second prong of § 148B(a) presents common

questions of law and fact has been found beyond dispute in this

action as a matter of law. This prong asks whether retail

services were in the usual course of InStore’s business. The

parties agree that vendor associates performed retail services.

The putative class is composed of “all individuals who have

worked as ‘vendors’ or ‘vendor associates’ for InStore.”

Accordingly, there are common issues of law and fact, and

evidence common to the class, for the second prong of the §

148B(a) test.

InStore contends that there are too many individualized

questions regarding “directions and orders from the retailer or

manufacturer,” and whether vendor associates were “subject to

on-site supervision by InStore clients.” However, Mr. Hogan

does not purport to rely on the involvement of InStore clients

in decision making; rather, Plaintiffs rely on InStore’s own

actions, involving client observations, in exerting control over

vendor associates’ methods and means of performance – such as

the ISG Worksheet, the general Policy, and the survey and

photograph requirements for demonstrating completion of jobs.

Even if liability were not established by the second prong of §

148B(a), Mr. Hogan would be permitted to develop the differences

in damages discovery.

There is also a sufficient showing of commonality deriving

from the first prong of § 148B(a). The undisputed facts show

that InStore relied on the same vendor associate Agreement and

applied the same general Policy to its vendor associates. These

documents are precisely the kind of “general polic[ies]”

contemplated by the Supreme Court in Wal–Mart that lend a case

to class litigation treatment. 564 U.S. at 353 (quoting Gen.

Telephone Co. of Sw. v. Falcon, 457 U.S. 147, 159 n.15 (1982)).

This is sufficient to justify proceeding to damages discovery

under class treatment.

InStore argues that Plaintiffs will have to evaluate each

individual service that the putative plaintiffs performed, and

whether that specific performance was necessary or incidental to

InStore’s usual course of business. As discussed above, I

reject InStore’s attempt to manufacture a genuine dispute of

material fact over the distinction between retail services and

retail merchandising services. They are, as InStore concedes,

“interchangeable” industry terms. Moreover, I have already

found that, as a matter of law, vendor associates performed

services within InStore’s usual course of business.

Mr. Hogan has therefore satisfied his burden of showing

that Count I (the employee classification wage payment claim) of

the First Amended Complaint relies on common evidence. Count II

(the minimum wage claim) is dependent on Count I. Determination

of the employment status of vendor associates will “resolve

[the] issue that is central to the validity” of Count II “in one

stroke.” Wal-Mart, 564 U.S. at 350. Although there may be some

individual issues regarding the amounts of damages, these are

not questions that trouble a determination of commonality.

Natchitoches Parish Hosp. Serv. Dist. v. Tyco Int'l, Ltd., 247

F.R.D. 253, 264 (D. Mass. 2008) (“[C]ommonality[] does not

require ‘that all putative class members share identical

claims.’” (quoting In re Warfarin Sodium Antitrust Litig., 391

F.3d 516, 531–32 (3d Cir. 2004)).

c. Typicality

The third prong of Rule 23(a) requires that the named

plaintiffs’ claims or defenses be “typical of the claims or

defenses of the class.” The Supreme Court has explained that

“[a] class representative must be part of the class and ‘possess

the same interest and suffer the same injury’ as the class

members.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625-26

(1997) (quoting East Tex. Motor Freight Sys., Inc. v. Rodriguez,

431 U.S. 395, 403 (1977)). However, “perfect symmetry of

interest is not required.” Matamoros v. Starbucks Corp., 699

F.3d 129, 138 (1st Cir. 2012). Rather, it is enough if “the

claims or defenses of the class and the class representative

arise from the same event or pattern or practice and are based

on the same legal theory.” In re Relafen Antitrust Litig., 231

F.R.D. 52, 69 (D. Mass. 2005) (quoting In re Terazosin

Hydrochloride Antitrust Litig., 220 F.R.D. 672, 686 (S.D. Fla.

2004)).

InStore contends that Plaintiffs are not typical of the

class because Mr. Hogan “specialized in demonstrations of

goods,” which accounts for only a small portion of InStore’s

business in Massachusetts. Even indulgint the questionable

assertion that Mr. Hogan could have developed a specialization

as a result of the fewer than nine projects that he performed, I

find Mr. Hogan typical of the class.

d. Adequacy

Rule 23(a)(4) requires that “the representative parties

will fairly and adequately protect the interests of the class.”

To satisfy this inquiry, Mr. Hogan must show (1) that his

“interests . . . will not conflict with the interests of any of

the class members,” and (2) that his “counsel . . . is

qualified, experienced and able to vigorously conduct the

proposed litigation.” Andrews v. Bechtel Power Corp., 780 F.2d

124, 130 (1st Cir. 1985). “Only conflicts that are fundamental

to the suit and that go to the heart of the litigation prevent a

plaintiff from meeting the Rule 23(a)(4) adequacy requirement.”

Matamoros, 699 F.3d at 138 (quoting 1 WILLIAM B. RUBENSTEIN, NEWBERG

CLASS ACTIONS § 3:58 (5th ed. 2012)). In fact, the demonstration

of inadequacy of proposed named plaintiffs is quite demanding,

because “to forestall class certification the intra-class

conflict must be so substantial as to overbalance the common

interests of the class members as a whole.” Id. There is no

such intra-class conflict here.

InStore suggests that Mr. Hogan is not an adequate class

representative because he failed to file a complaint with the

Attorney General before bringing this action. I have already

explained in Part IV.B.1. supra why I will allow the case to go

forward despite the deficiency. InStore’s concern is not enough

to defeat certification. Moreover, Mr. Hogan’s counsel has been

deemed adequate in previous cases in this Court, and, although

confronted with a degree of sloppiness in submissions by his

counsel in this case, I do not view those specific instances of

substandard performance to evidence disablingly inadequate

performance in this context. I find that the named Plaintiff(s)

can adequately represent the class.

2. Fed. R. Civ. P. 23(b): Predominance and Superiority

Rule 23(b)(3) permits class treatment where common

questions of law “predominate” over individual questions, and “a

class action is [a] superior . . . method” of adjudicating the

case. It requires “merely that common issues predominate, not

that all issues be common to the class.” Smilow, 323 F.3d at 39.

In particular, “courts generally find the predominance

requirement to be satisfied even if individual damages issues

remain.” Id. at 40. This inquiry turns on considerations of

efficiency in judicial administration. See Otte ex rel. Estate

of Reynolds v. Life Ins. Co. of N. Am., 275 F.R.D. 50, 58 (D.

Mass. 2011).

I disagree with InStore’s assessment that there is a

unacceptable risk of mini-trials as to each class member. The

central issue of classification as a statutory employee —

irrespective of correlative attributes of an independent

contractor — predominates. Ultimately, the plaintiff class must

show (1) that, during their terms as vendor associates with

InStore, they were entitled to protection as “individuals” under

the Wage Act; (2) that InStore cannot establish all three prongs

of the Massachusetts Wage Statute, and thus that they were

misclassified as independent contractors, rather than as

employees; (3) that they did not receive their required minimum

wages and benefits under ch. 151; and (4) that they suffered a

measure of damages.

The showings under (1) through (3) rely on common evidence,

which predominates over individualized issues identified by the

Defendant. In Part IV.C., supra, I have already found that Mr.

Hogan has made that showing as a matter of law. The showing

under (4) will require a modest degree of individualized inquiry

into each class member’s deductions, but this fact “does not

alone defeat predominance.” DaSilva II, 296 F.Supp. 3d at 406;

see also Garcia, 98 F.Supp. 3d at 291 (“Calculating the precise

amount of damages owed to each class member may also require

some individualized inquiry. But this task also does not stand

in the way of class certification.”). Indeed, “[d]ue to the

unique nature of employment classification claims, ‘[b]oth the

United States Supreme Court and the Massachusetts Supreme

Judicial Court have expressed a strong preference for rendering

decisions on the classification of employees on [a] class wide

basis.” 3PD, 2013 WL 1320454, at *9 (quoting De Giovanni v.

Jani-King Int’l, Inc., 262 F.R.D. 71, 85–86 (D. Mass. 2009)).

Given the common evidence and common issue of employment

classification under InStore’s policies, a class action is the

superior method for adjudicating this case. Accordingly, I will

allow Mr. Hogan’s motion for class certification.

VI. CONCLUSION

For the reasons set forth in detail above,

I GRANT Mr. Hogan’s Motion [Dkt. No. 24] for Leave to Amend

his Original Complaint, and, on the First Amended Complaint, I

GRANT his Motion [Dkt. No. 31] for partial summary judgment

establishing statutory employee status;

I GRANT his Motion [Dkt. No. 29] for Class Certification;

and

I DENY InStore’s Motion [Dkt. No. 25] for Summary Judgment.

The parties shall submit on or before January 25, 2021 a

status report with a proposed scheduling order designed to bring

this case to final judgment.

/s/ Douglas P. Woodlock_________

DOUGLAS P. WOODLOCK

UNITED STATES DISTRICT JUDGE