United States Court of Appeals

For the First Circuit

No. 23-1043

DHANANJAY PATEL, SAFDAR HUSSAIN, VATSAL CHOKSHI, DHAVAL PATEL, 

and NIRAL PATEL, on behalf of themselves and all others 

similarly situated,

Plaintiffs, Appellants,

v.

7-ELEVEN, INC.,

Defendant, Third-Party Plaintiff, Appellee,

MARY CADIGAN; ANDREW BROTHERS,

Defendants,

DP MILK STREET INC.; DP JERSEY INC.; DP TREMONT STREET INC.; 

DPNEWTO1,

Third-Party Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Montecalvo, Selya, and Thompson,

Circuit Judges.

Shannon Liss-Riordan, with whom Michelle Cassorla and

Lichten & Liss-Riordan, P.C. were on brief, for appellants 

Dhananjay Patel, Safdar Hussain, Vatsal Chokshi, Dhaval Patel, and 

Niral Patel.
David C. Kravitz, Deputy State Solicitor, with whom 

Douglas S. Martland, Assistant Attorney General, Peter N. Downing, 

Assistant Attorney General, and Kate Watkins, Assistant Attorney 

General, were on brief, for the Commonwealth of Massachusetts, 

amicus curiae.

Norman M. Leon, with whom Patricia C. Zapata, DLA Piper 

LLP, Matthew J. Iverson, and Nelson Mullins Riley & Scarborough 

LLP were on brief, for appellee 7-Eleven.

August 29, 2023
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PER CURIAM. Plaintiffs, who collectively comprise a 

putative class of franchisees, have been classified as independent 

contractors of their franchisor, Defendant 7-Eleven, Inc. ("7-

Eleven"). Wishing instead to be classified as employees, 

Plaintiffs sued 7-Eleven for violations of Massachusetts wage 

laws. 

For the second time now, this case presents a novel 

question of Massachusetts law. To be specific, resolving the 

present appeal will require us to consider what is meant, in the 

context of a franchise arrangement, by "performing any service" as 

that phrase is used in the Massachusetts Independent Contractor 

Law ("ICL"), Mass. Gen. Laws ch. 149, § 148B(a) -- an issue which 

the Massachusetts Supreme Judicial Court ("SJC") has not squarely 

addressed.

Accordingly, as "[t]he SJC is the final arbiter of 

Massachusetts law," Genereux v. Raytheon, Co., 754 F.3d 51, 57 

(1st Cir. 2014), we certify this unresolved question to that court, 

pursuant to SJC Rule 1:03.

BACKGROUND

As the SJC is already familiar with this case, we provide 

an abridged version of the factual and procedural history.

Plaintiffs are owners and operators of 7-Eleven 

franchises in Massachusetts. Each franchisee relationship with 7-

Eleven is governed by a franchise agreement ("the Franchise 
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Agreement"), which Plaintiffs signed in order to establish each 

franchise location. The Franchise Agreement (which is materially 

the same between each individual Plaintiff and 7-Eleven) details 

the many obligations franchisees owe 7-Eleven, including (among 

many other things) holding themselves out to the public as 

independent contractors, participating in required trainings, 

manning their convenience stores 24 hours per day in 7-Elevenapproved uniforms, buying particular inventory from particular 

vendors, and using a designated system for payroll. Both upfront 

and throughout their franchisor-franchisee relationship, 

franchisees agree to pay various costs. Of note is the "7-Eleven 

Charge," which is approximately 50 percent of the store's gross 

profits owed to 7-Eleven. As a percentage of the store's gross 

profits (as opposed to a flat rate), the exact amount of the 7-

Eleven Charge depends on the store's performance. For each 

franchisee, 7-Eleven establishes and maintains a bank account, 

where the store's gross profits are held and from which the 7-

Eleven Charge is paid. After the 7-Eleven Charge is paid, 7-

Eleven "agree[s] to . . . pay" each franchisee the remaining gross 

profits as weekly draw. 

After Plaintiffs filed suit for alleged violations of 

the Massachusetts ICL, Mass. Gen. Laws ch. 149, § 148B, the 

Massachusetts Wage Act, Mass. Gen. Laws ch. 149, § 148, and the 

Massachusetts Minimum Wage Law, Mass. Gen. Laws ch. 151, §§ 1, 7, 
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both parties eventually moved for summary judgment. The district 

court ruled in 7-Eleven's favor and, in so doing, determined that 

the Massachusetts test for independent contractor 

misclassification conflicted with the Federal Trade Commission's 

("FTC") franchise regulations known as the "Franchise Rule" and 

could, therefore, not be applied. A timely appeal followed, and 

this court certified the following question of law to the SJC:

"Whether the three-prong test for independent contractor status 

set forth in Mass. Gen. Laws ch. 149 § 148B applies to the 

relationship between a franchisor and its franchisee, where the 

franchisor must also comply with the FTC Franchise Rule." Patel

v. 7-Eleven, Inc., 8 F.4th 26, 29 (1st Cir. 2021). Answering our 

question, the SJC concluded that the ICL applies to franchisorfranchisee relationships and does not conflict with the FTC's 

Franchise Rule. Patel v. 7-Eleven, Inc., 489 Mass. 356, 357 

(2022). 

Back in the district court on remand, the parties moved 

for summary judgment (again), and the district court ruled in favor 

of 7-Eleven (again). This time, the district court concluded that 

the three-prong Massachusetts ICL test did not apply because 

Plaintiffs failed to surpass the ICL's threshold inquiry, which 

requires "performing any service" to the putative employer.1 In 

1 The district court began its analysis here, following the 

SJC's lead in Patel. In addition to answering our certified 
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reaching that conclusion, the district court determined that 

Plaintiffs "are not paid for any services performed for 7-Eleven" 

and that it is Plaintiffs who "pay franchise fees to 7-Eleven in 

exchange for a variety of services to support the franchisee." 

Another timely appeal followed.

THE ISSUES

With the facts and procedural history squared away, we 

now turn to the issues before us on appeal. The Massachusetts ICL 

provides that "an individual performing any service" is presumed 

to be an employee (and thereby entitled to the protections of 

Massachusetts wage laws), unless the putative employer satisfies 

the three prongs of the Massachusetts test for independent 

contractor misclassification, commonly known as the "ABC" test. 

Mass. Gen. Laws ch. 149, § 148B. The instant appeal concerns that 

threshold inquiry -- namely, whether Plaintiffs "perform[] any 

service" for 7-Eleven.

The parties do not agree on much, but they do rest their 

arguments on the same set of cases. Chief among them is the SJC's 

decision in Sebago v. Bos. Cab Dispatch, Inc., 471 Mass. 321 

question, the SJC in Patel took our invitation to provide further 

guidance that might resolve this case. 489 Mass. at 369. Among 

the guidance provided was the SJC's instruction that the threshold 

inquiry "is not satisfied merely because a relationship between 

the parties benefits their mutual economic interests," nor is it 

satisfied through "required compliance with Federal or State 

regulatory obligations." Id. at 370.
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(2015), which they each contend controls the outcome of this 

appeal. To understand the parties' arguments, some background on 

Sebago is helpful.

There, taxicab drivers brought misclassification claims 

against three sets of defendants: (1) medallion owners, who leased 

their taxicabs and medallions2 to the drivers, thus enabling them 

to drive at regulated flat-rates; (2) radio associations, who 

dispatched the drivers and who maintained a network of corporate 

clients who would take rides with the drivers in exchange for cashredeemable vouchers through the radio association; and (3) a garage 

that serviced the taxicabs and equipment. Id. at 323–26, 330–31. 

As to the medallion owners, the SJC concluded that the value those 

owners derived from their lessor-lessee relationship with the 

drivers did not suffice, without more, to qualify as a service 

provided to the medallion owners that would render the drivers 

employees under the ICL. See id. 329-31. The SJC determined, 

however, that a question of material fact existed as to whether 

the drivers provided other services, such as driving taxicabs with 

advertising space leased by the medallion owners (because driving 

such taxicabs would "increase[] the value and facilitate[] the 

sale of advertising space"), that might establish an employment 

relationship. See id. As to the radio associations, the SJC 

2 Medallions are the licenses an owner of a taxicab must 

obtain for each such taxicab. Sebago, 471 Mass. at 323.
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determined that the drivers did perform services, because "[t]he 

revenue flowing to the radio association through the voucher 

program [with its corporate clients] . . . directly depende[d] on 

the drivers' work of transporting passengers." Id. at 331. 

Finally, as to the garage, the SJC explained that the drivers 

performed no services because the garage did "not lease taxicabs, 

maintain corporate voucher accounts, or belong to a radio dispatch 

association," rather earning its revenue "from setting up and 

servicing taxicabs" generally and "from credit card companies for 

repairs made to credit card machines installed in taxicabs." Id.

7-Eleven insists that its relationship with Plaintiffs 

is more akin to the lessor-lessee relationship between the 

medallion owners and drivers, which the SJC said did not satisfy 

the threshold inquiry of performing any service. In other words, 

7-Eleven argues that Plaintiffs here pay it "for the rights and 

tools [Plaintiffs] need[] to operate [their] own [franchises]." 

It also distinguishes itself from the radio associations, arguing 

that "the [r]adio [a]ssociations sold a service to their own 

customers and then paid the [d]rivers to perform it," whereas 7-

Eleven does not pay Plaintiffs for the performance of any 

obligation -- an argument adopted by the district court.

Plaintiffs flatly disagree, contending that their 

relationship with 7-Eleven mirrors that between the drivers and 

the radio associations. In their view, just as "[t]he revenue 
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flowing to the radio association" was "directly dependent on the 

drivers' work of transporting passengers," id., the revenue 

flowing to 7-Eleven necessarily fluctuates depending on how well 

each store performs from month to month. 

In the mix are also the views of the Commonwealth of 

Massachusetts, represented here by the Massachusetts Attorney 

General as an amicus curiae in support of Plaintiffs. Not only 

does the Commonwealth agree with Plaintiffs' comparison to the 

radio associations, but it also highlights "that the threshold 

burden is modest" and contends that the district court erred in 

its application of that inquiry by considering the supposed 

services the putative employer (here, 7-Eleven) performs for the 

putative employees (here, Plaintiffs). Finally, as the statutory 

phrase "performing any service" is left undefined, the 

Commonwealth, after analyzing the plain language of the ICL and 

its legislative history, offered several distinct definitions of 

the phrase.3

3 Relying on dictionaries, the Commonwealth provided 

definitions for each word making up the statutory phrase 

"performing any service." The Commonwealth defined "perform" as 

"to begin and carry through to completion; do" and "to take action 

in accordance with the requirements of; fulfill," while defining 

"any" as "one or some, regardless of sort, quantity, or number." 

As to "service," the Commonwealth provided four definitions: (1) 

"employment in duties or work for another"; (2) "an act of 

assistance or benefit to another or others; favor"; (3) "an act 

done for the benefit or at the command of another"; and (4) "action 

or use that furthers some end or purpose: conduct or performance 

that assists or benefits someone or something." 
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Pulling it all together, it is evident that this appeal 

turns on what entails "performing any service" as used in the ICL. 

While certainly helpful on this score, we do not consider the 

analysis in Sebago (or the other Massachusetts precedent cited by 

the parties4) to be outcome-determinative, at least without further 

instruction from the SJC. We, accordingly, believe it prudent to 

give the SJC the first opportunity to provide the answer to this 

question of state law, notwithstanding the tools at our disposal 

for resolving it ourselves. This is particularly true here where, 

as we noted before, "the ICL impacts untold sectors of workers and 

business owners across the Commonwealth" and the policy 

considerations at play do not squarely favor a particular outcome. 

Patel, 8 F.4th at 29.

CERTIFICATION

In light of the forgoing, we certify the following 

question5 to the Massachusetts SJC: 

(1) Do Plaintiffs "perform[] any service" for 7-Eleven, 

within the meaning of Mass. Gen. Laws ch. 149, § 148B, 

where, as here, they perform various contractual 

obligations under the Franchise Agreement and 7-Eleven 

receives a percentage of the franchise's gross profits? 

4 See, e.g., Patel, 489 Mass. at 370; Jinks v. Credico (USA) 

LLC, 488 Mass. 691 (2021); Ruggiero v. Am. United Life Ins. Co., 

137 F. Supp. 3d 104 (D. Mass. 2015); Da Costa v. Vanguard Cleaning 

Sys., Inc., No. 15-04743, 2017 WL 4817349 (Mass. Super. Ct. Sept. 

29, 2017). 

5 We are grateful to the parties and the Commonwealth for 

their briefing and input as to which question or questions should 

be certified to the SJC.
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We would welcome any further guidance from the SJC on any other 

relevant aspect of Massachusetts law that it believes would aid in 

the proper resolution of the issues presented here. 

The clerk of this court is directed to forward to the 

Massachusetts SJC, under the official seal of this court, a copy 

of the certified question, this opinion, the district court's 

opinion, and the merits briefs and appendices filed by the parties. 

We retain jurisdiction over this case pending resolution of this 

certified question.