Current through Register 1531, September 27, 2024
(1)
Intervention. Any person or organization not originally a party to a complaint may move to intervene in a complaint, and shall be permitted to intervene, if, in the judgment of the Commission, that person or organization has a material interest in the outcome of the complaint, and asserts a claim or defense which has common questions of law or fact with the complaint.
(2)
Substitution, Joinder, or Amendment of Parties. The Commission may sua sponte, or upon motion of any party, make such substitution, joinder, or amendment of parties as justice or convenience may require. All parties shall be notified of any substitution, joinder or amendment.
(3)
Consolidation. The Commission may sua sponte, or upon motion of a party, order complaints involving a common question of law or fact to be consolidated for investigation, conciliation or public hearing.
(4)
Class Action.
(a) The Investigating Commissioner may grant permission or
sua sponte determine that a case shall proceed as an authorized class action at any time after a probable cause determination pursuant to 804 CMR 1.08(1)(f)1. or 3. and prior to certification to public hearing pursuant to 804 CMR 1.11 if the following prerequisites are met:
1. The class is so numerous that joinder of all members is impracticable;
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 claims or defenses of the class;
4. The representative parties shall fairly and adequately protect the interests of the class;
5. The public interest is served by a class proceeding; and
6. The parties are allowed an opportunity to submit briefs on the issue prior to a sua sponte determination.
(b) A class action shall be maintained if the prerequisites of 804 CMR 1.15(4)(a) are met, and the Investigating Commissioner finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to the other available methods for the fair and efficient adjudication of the controversy.
(c) The Investigating Commissioner may require such review and impose such terms as shall fairly and adequately protect the interests of the class on whose behalf the complaint is brought or defended. Whenever the representative party appears to the Investigating Commissioner inadequate to fairly protect the interests of absent individuals who may be bound by any Commission order, the Investigating Commissioner may, at any time prior to entry of the order certifying the class, amend the complaint to eliminate any reference to representation of absent persons. The Investigating Commissioner shall enter an order in such form as to affect only the parties to the action and those adequately represented.
(d) Respondent(s) or any person whose rights may be affected by the resolution of an authorized class action may challenge the class nature of the complaint before or within ten days' notice of certification to public hearing pursuant to 804 CMR 1.11 through a motion submitted to the Investigating Commissioner for a hearing concerning the validity of the class. The respondent or person challenging the authorized class action shall have the burden of showing by a preponderance of the evidence that the proposed class fails to satisfy the requirements of 804 CMR 1.15(4).
(e) An authorized class action shall not be withdrawn or modified without the approval of the Investigating Commissioner.
(f) In any case brought as a class action, the Commission may, when appropriate, order that all remedies shall apply to member(s) of the class.
(g) A party may appeal an order by the Investigating Commissioner certifying a class action to the Full Commission pursuant to 804 CMR 1.13(10)(a).
(5)
Counsel Required following Probable Cause. Following a probable cause determination pursuant to 804 CMR 1.08(1)(f)1. or 3., the case in support of the complaint shall be presented before the Commission by an attorney. Such attorney may either be a Commission attorney, or, at the discretion of the Commission, an attorney retained by the complainant. The determination whether to assign one of the Commission's attorneys to a pending matter shall be made at the discretion of the Investigating Commissioner in consideration of the public interest.
(6)
Private Representation. A complainant may have private counsel notwithstanding the assignment of one of the Commission's attorneys to a case, although in such case counsel for the Commission has exclusive authority to present the case in support of the complaint and represent the public interest.
(7)
Attorney Withdrawal.
(a) Prior to a conciliation conference held pursuant to 804 CMR 1.09, an attorney may, without leave of the Commission, withdraw from a matter by filing a written notice of withdrawal together with proof of service on their client and all other parties.
(b) Following the conciliation conference held pursuant to 804 CMR 1.09, an attorney may, without leave of the Commission, withdraw from a matter by filing a written notice of withdrawal which includes an appearance of successor counsel. Absent an appearance of successor counsel, an attorney shall obtain leave of the Investigating Commissioner to withdraw from a case. In deciding whether to allow the withdrawal of an attorney, the Investigating Commissioner's considerations may include, but are not limited to, the public interest necessary to assign one of the Commission's attorneys and the impact of a withdrawal on the timely, fair and efficient adjudication of the case.
(c) Unless there is appearance by successor counsel, every notice of withdrawal or request to withdraw filed under 804 CMR 1.15(7)(a) or (b) shall include current contact information for the party for whom representation is being withdrawn, including home and business address, email address and telephone number(s).
(d) Leave to withdraw without successor counsel shall be conditioned upon counsel's cooperation in the transfer of the matter to the Commission including, but not limited to, providing the Commission with all discovery conducted prior to withdrawal.
(8)
Enforcement by Private Counsel. The Commission may grant a motion by complainant's counsel to be the designated agent of the Commission for purposes of enforcement of a settlement agreement, consent order, subpoena or final order of the Commission provided that the interest of the complainant and the interest of the Commission are not in conflict. Designation of private counsel as agent of the Commission for purposes of enforcement shall be made in writing.
(9)
Attorney Signature.
(a) Every pleading, motion or document submitted by a party represented by counsel shall be signed by at least one attorney of record, in the individual attorney's name and shall include the attorney's address, electronic mail address and Board of Bar Overseers or Bar Registration number.
(b) The signature of an attorney constitutes certification that the signer has read the pleading, motion, or document; that based on the signer's knowledge, information and belief, it is grounded in fact and warranted by existing law or constitutes a good faith argument for the extension, modification, or revision of existing law; and is not interposed for any improper purpose, such as to harass or cause unnecessary delay or increase in the cost of the proceedings.
(c) Any pleading, motion or document submitted by counsel that is unsigned shall be stricken, unless it is signed promptly after the omission is brought to the attention of the attorney who submitted the document.
(d) If a pleading, motion, or other document submitted to the Commission fails to comply with the requirements within 804 CMR 1.15(9), the Investigating Commissioner, Hearing Commissioner assigned to the case may impose sanctions upon the attorney, the represented party, or both, including an order to pay reasonable expenses and attorney's fees incurred by the opposing party or the Commission as a result of the noncompliant document.
(10)
Notice of Appearance and Pro Hac Vice Notice. Attorneys representing clients at the Commission shall be a member in good standing of the bar of the Commonwealth of Massachusetts. If an attorney is not a member of the Massachusetts bar, in order to be admitted to represent a client pro hac vice, a motion for admission shall be filed in conformance with the following:
(a) The motion shall be signed and filed by a member in good standing of the Massachusetts bar on behalf of the attorney seeking admission pro hac vice.
(b) The motion shall be accompanied by an affidavit stating that the out of state attorney is a member of the bar in good standing in every jurisdiction where admitted to practice; there are no disciplinary proceedings pending; and the attorney is familiar with the Commission's regulations and the Massachusetts anti-discrimination laws.
