United States Court of Appeals 

For the First Circuit 

No. 16-1254 

SCOTT PHILLIPS, individually and on 

behalf of all others similarly situated, 

Plaintiff, Appellant, 

v. 

EQUITY RESIDENTIAL MANAGEMENT, L.L.C., 

Defendant, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Rya W. Zobel, U.S. District Judge] 

Before 

Lynch, Stahl, and Barron, 

Circuit Judges. 

 David Pastor, with whom Pastor Law Office LLP, Joshua N. 

Garick, Law Office of Joshua N. Garick, Preston W. Leonard, and 

Leonard Law Office PC were on brief, for appellant. 

 Craig M. White, with whom Baker & Hostetler LLP, Thomas H. 

Wintner, and Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. 

were on brief, for appellee. 

December 12, 2016 
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STAHL, Circuit Judge. This dispute arises out of a class 

action brought by Scott Phillips against his former landlord, 

Equity Residential Management, L.L.C. ("ERM"). Phillips alleged 

that ERM violated several provisions of the Massachusetts Security 

Deposit Law ("Security Deposit Law"), Mass. Gen. Laws ch. 186, 

§ 15B, relating to unlawful charges or deductions taken against 

his security deposit and ERM's failure to return the security 

deposit within thirty days after he moved out of his leased 

apartment. The purported class consisted of other former tenants 

of ERM-owned or managed apartments who also, since August 6, 2009, 

had these same grievances.1 As recompense, Phillips sought 

recovery under the Security Deposit Law's penalty provision, Mass. 

Gen. Laws ch. 186, § 15B(7), which includes, inter alia, the 

availability of treble damages. 

At summary judgment, the district court awarded Phillips 

a Pyrrhic victory: though he was entitled to recover his security 

deposit (less a small amount of holdover rent), the district court 

refused to apply Section 15B(7), and soon after denied his class 

 1 The purported class also consisted of two subclasses, a 

"Sworn Statement Subclass" and a "Cleaning Charge Subclass." These 

subclasses relate to Phillips's contention that ERM violated 

several different provisions of the Security Deposit Law and that 

his claims are typical of the claims of each subclass. The merits 

of Phillips's proposed class, however, are not before this court. 
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certification motion on mootness grounds.2 Phillips challenges 

these rulings on appeal, arguing that the district court should 

have ruled on his class certification motion before the parties' 

summary judgment motions, that his class certification motion 

should not have been dismissed as moot, and that he was entitled 

to recovery under Section 15B(7). 

Phillips's last contention is of particular importance, 

since the outcome turns on provisions of the Massachusetts Security 

Deposit Law that have not been interpreted by the Massachusetts 

Supreme Judicial Court ("SJC") in over three decades. See Mellor 

v. Berman, 454 N.E.2d 907, 910-13 (Mass. 1983). Generally, we 

must make an "informed prophecy" as to how the highest state court 

would rule on questions of that state's law. Ambrose v. New Eng. 

Ass'n of Schs. & Colls., Inc., 252 F.3d 488, 497-98 (1st Cir. 2001) 

("Our task . . . is to discern the rule the state's highest court 

would be most likely to follow under these circumstances, even if 

our independent judgment might differ."). The SJC's guidance in 

this area, however, is "sufficiently undeveloped . . . so as to 

make such prophetic action unwise," see Showtime Entm't, LLC v. 

Town of Mendon, 769 F.3d 61, 79 (1st Cir. 2014). For this reason 

and the others that follow, we certify a question regarding the 

 2 The district court determined that "Phillips no longer ha[d] 

a live individual case because all of his claims have been decided" 

and "[a]s a result, proceeding to class certification [would be] 

inappropriate." 
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relevant provisions of the Massachusetts Security Deposit Law to 

the SJC, and refrain from deciding the merits of Phillips's other 

claims until that question is resolved. See Mass. S.J.C. R. 1:03; 

see also, e.g., Easthampton Sav. Bank v. City of Springfield, 736 

F.3d 46, 48, 50-53 (1st Cir. 2013). 

I. 

 We recite the facts relevant to the certified question. 

Phillips and a friend, Sean Ostriker,3 entered into a written lease 

with ERM for an apartment located at Longview Place in Waltham, 

Massachusetts. The lease term lasted from July 20, 2012 to May 

19, 2013. In accordance with the lease, Phillips paid ERM a 

$750.00 security deposit prior to move-in, and he requested its 

return shortly after vacating the apartment on May 20, 2013. After 

receiving his request, ERM sent Phillips a signed Statement of 

Deposit Account ("SODA") listing charges against his security 

deposit totaling $968.08.4 The SODA credited $750.06 against this 

amount, reflecting Phillips's $750.00 security deposit and $0.06 

in accumulated interest, and claimed a balance due of $218.02. 

 3 Ostriker moved out of the apartment in December 2012 and 

arranged for one of Phillips's fraternity brothers, Gil Jacobs, to 

take his place. Jacobs moved into the apartment in February 2016. 

Jacobs, however, moved out in April 2013, leaving Phillips as the 

sole tenant. 

4 The charges included unpaid rent, a late payment fee, 

apartment and carpet cleaning charges, a carpet replacement 

charge, and an "Other Phys Damages" charge. 
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 On August 6, 2013, Phillips filed a class action 

complaint against ERM in Massachusetts Superior Court. He alleged 

that ERM had violated the Security Deposit Law by: (1) not 

providing him, within thirty days of his vacating the apartment, 

sufficiently detailed written evidence of damages for which funds 

were deducted from his security deposit, (2) not providing him 

with an itemized list of damages sworn to under the pains and 

penalties of perjury, and (3) impermissibly deducting certain 

cleaning charges from his security deposit. ERM removed the case 

to the United States District Court for the District of 

Massachusetts based on diversity of citizenship, see 28 U.S.C. § 

1332(d), and counterclaimed for the $218.02 balance outlined in 

the SODA. 

 Soon after, both Phillips and ERM moved for summary 

judgment. The district court found that ERM did not comply with 

Mass. Gen. Laws ch. 186, § 15B(4)(iii), which required ERM to 

provide Phillips with "an itemized list of damages" sworn to "under 

pains and penalties of perjury." Phillips v. Equity Residential 

Mgmt., No. 13-12092, 2015 WL 12733438, at *3 (D. Mass. Dec. 14, 

2015). This failure, the court concluded, also resulted in a 

second violation under a separate provision of the Security Deposit 

Law since Phillips did not receive the required "itemized list of 

damages . . . in compliance with the provisions of [Section 15B]" 
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within thirty days after the termination of his tenancy.5 Id. 

(quoting Mass. Gen. Laws ch. 186, § 15B(6)(b)). Based on this 

second violation, the district court held that ERM forfeited its 

right to retain any part of Phillips's security deposit. Id.; see 

also Mass. Gen. Laws ch. 186, § 15B(6) (stating that a lessor 

"shall forfeit [the] right to retain any portion of [a tenant's] 

security deposit for any reason" if the lessor violates any 

provision of Section 15B(6)). 

 Phillips nonetheless insisted that ERM's Section 

15B(6)(b) violation resulted in a third Security Deposit Law 

violation under Mass. Gen. Laws ch. 186, § 15B(6)(e). That 

provision provides that a lessor must "return to the tenant the 

security deposit or balance thereof to which the tenant is entitled 

after deducting therefrom any sums in accordance with the 

provisions of this section, together with any interest thereon, 

within thirty days after termination of the tenancy." Id. 

 The alleged Section 15B(6)(e) violation, Phillips 

continued, activated yet another Security Deposit Law provision, 

Mass. Gen. Laws ch. 186, § 15B(7). Section 15B(7) awards tenants 

 5 Phillips emailed ERM to request the return of his security 

deposit on May 28, 2013. He claims that ERM sent him his SODA 

detailing the charged damages to the apartment in "late May or 

Early June," though the record suggests that it was mailed that 

same day. Phillips's father, a guarantor of his son's lease, later 

sent an email to ERM on June 23, 2013 (thirty-four days after 

Phillips had vacated the apartment) asserting that the SODA did 

not comply with Section 15B's requirements. 
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"three times the amount of [their] security deposit or balance 

thereof to which the tenant is entitled plus interest at the rate 

of five per cent from the date when such payment became due, 

together with court costs and reasonable attorney's fees" if the 

lessor or his agent fails to comply with clauses (a), (d), or (e) 

of Section 15B(6). Id. 

 The district court, however, refused to entertain 

Phillips's argument, finding that ERM only violated Section 

15B(6)(e) because of its violation of Section 15B(6)(b). Phillips, 

2015 WL 12733438, at *4. Under Phillips's reading of the statute, 

the court reasoned, any violation of Section 15B(6)(b) would result 

in a violation of Section 15B(6)(e), making Section 15B(6)(b) 

redundant. Id. Since Section 15B(6)(b) is not listed in Section 

15B(7), the district court also inferred that Section 15B(6)(b) 

was excluded from its list "by deliberate choice." Id. at *3. 

Thus, the district court limited Phillips recovery to $647.58.6 

This appeal followed. 

II. 

A federal court is permitted to certify questions to the 

SJC "if there are involved in any proceeding before it questions 

 6 The amount reflects the district court's holding that 

Phillips was entitled to recover his $750.00 security deposit, but 

nonetheless owed ERM $102.42 in holdover rent since Phillips 

conceded that he stayed in the apartment one day past the date on 

which he had agreed to vacate. Id. at *5. 
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of law of [Massachusetts] which may be determinative of the cause 

then pending in the certifying court and as to which it appears to 

the certifying court there is no controlling precedent in the 

decisions of this court." Mass. S.J.C. R. 1:03; see also In re 

Engage, Inc., 544 F.3d 50, 52-53 (1st Cir. 2008); Bos. Gas Co. v. 

Century Indem. Co., 529 F.3d 8, 13-15 (1st Cir. 2008).7 We conclude 

that this case meets those requirements. 

To start, issues of state law are determinative. If the 

SJC concludes that a violation of Section 15B(6)(b) does not also 

constitute a violation of Section 15B(6)(e) for Section 15B(7) 

purposes, then that answer shall be determinative as to Phillips's 

personal claim. In other words, Phillips will only receive "the 

full measure of relief [he] seek[s]" if the SJC agrees with his 

position that Section 15B(7) is invoked in such circumstances. 

See Easthampton Sav. Bank, 736 F.3d at 50; see also Bos. Gas Co., 

 7 Although neither party requested certification, "we have 

the discretion to certify questions to the SJC sua sponte." 

Easthampton Sav. Bank, 736 F.3d at 50 n.4. At oral argument, we 

asked the parties whether certification on this issue was 

appropriate. Neither party objected to certification, though both 

questioned the judicial economy of sending Phillips's $750 claim 

to the SJC. Still, both parties conceded that certification might 

be "appropriate" and a "viable option." Regardless, the SJC "has 

previously answered questions certified even over the objections 

of both parties." Id. (citing Knapp Shoes, Inc. v. Sylvania Shoe 

Mfg. Corp., 649 N.E.2d 1101, 1101-02 (Mass. 1994) (answering 

certified question); and Knapp Shoes, Inc. v. Sylvania Shoe Mfg. 

Corp., 15 F.3d 1222, 1224 (1st Cir. 1994) (noting objections to 

certification)). 
- 9 - 

529 F.3d at 15 (certifying questions to the SJC that were 

"determinative of the scope" of the plaintiff's claim). 

Meanwhile, we have interpreted the SJC's second 

requirement that there be no controlling precedent as preventing 

certification "in cases when 'the course [the] state court[] would 

take is reasonably clear.'" Easthampton Sav. Bank, 736 F.3d at 51 

(alterations in original) (quoting In re Engage, 544 F.3d at 53). 

The course that a state court would take is not reasonably clear 

when a case "presents a close and difficult legal issue." Id. As 

we will explain, such is our current predicament. 

The district court's interpretive methodology admittedly 

has a certain intuitive appeal: the Massachusetts Legislature 

deliberately excluded Sections 15B(6)(b) and (c) from Section 

15B(7)'s list, suggesting that violations of these provisions are 

excused from the Security Deposit Law's enhanced penalties. 

Similarly, if violations of Section 15(6)(b) also necessarily 

constituted violations of Section 15B(6)(e), both sections may 

lose their independent meaning. See Blum v. Holder, 744 F.3d 790, 

803 (1st Cir. 2014) ("Avoidance of redundancy is a basic principle 

of statutory interpretation."). 

The Security Deposit Act's recognized purpose and 

legislative history, however, complicate matters. The SJC has 

noted that the Security Deposit Law "manifest[s] a concern for the 

welfare of tenants . . . who, as a practical matter, are generally 
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in inferior bargaining positions and find traditional avenues of 

redress relatively useless." Mellor, 454 N.E.2d at 912 (internal 

citation and quotation marks omitted). Nonetheless, some 

Massachusetts courts emphasize that "the purpose of § 15B is seen 

not to be arbitrarily penal; rather, the 'underlying goal [is to 

establish] an "equitable relationship"' between tenants and 

landlords." Castenholz v. Caira, 490 N.E.2d 494, 497 (Mass. App. 

Ct. 1986) (alteration in original) (quoting McGrath v. Mishara, 

434 N.E.2d 1215, 1222 (Mass. 1982)). 

Mellor similarly traces the gradual evolution of the 

Security Deposit Law: 

In 1969, § 15B merely stated that a lessor might 

not require a security deposit in an amount in 

excess of two months' rent. One year later the 

Legislature added a penalty of double damages for 

the wilful withholding of a tenant's security 

deposit. The requirement in the multiple damages 

provision of a wilful violation was deleted by the 

Legislature in 1972 and has remained omitted 

despite substantial changes in the form of the 

legislative controls on security deposits. The 

deletion of the requirement of a finding of bad 

faith was not accidental. 

454 N.E.2d at 912-13 (citations omitted). 

Later changes to the statutory framework further 

subjected landlords to larger potential monetary penalties (i.e., 

Section 15B(7)). Massachusetts Security Deposit Law, ch. 979, 

sec. 1, § 15B(7), 1977 Mass. Acts 1418, 1418-25 (1978). The 

Legislature, however, also identified a landlord's obligations 
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under the Security Deposit Act with more specificity and limited 

Section 15B(7)'s application to only certain of those violations. 

Id. 

One potential reading of Section 15B's evolution 

suggests that the legislature wished to empower tenants, but in a 

limited and balanced way. Nonetheless, certain Massachusetts 

courts view the history differently and suggest that the 

Legislature's significant interest in compliance with Section 

15B's requirements warrants a broad application of its penalty 

provision. See Taylor v. Beaudry, 971 N.E.2d 313, 318 (Mass. App. 

Ct. 2012) (Taylor II) ("[T]he Legislature thought the deterrent 

effect of [these] suits . . . was necessary to ensure all landlords 

return security deposits on time and in full compliance with the 

statute."). 

As previously mentioned, the SJC has not provided 

guidance on these provisions of the Security Deposit Law in 33 

years. See Mellor, 454 N.E.2d at 907. And in the guidance 

provided, the SJC has not opined on how or whether a lessor's 

noncompliance with Section 15B(4)(iii) might lead to violations of 

Sections 15B(6)(b) and (e) and subsequent penalties under Section 

15B(7). See id. at 909 n.4, 913 (declining to consider the issue 

and limiting its inquiry to whether a lessor's good faith mitigated 

against awarding damages under Section 15B(7)). 
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Despite this lack of clarity, the district court made 

its ruling notwithstanding two Massachusetts state court decisions 

construing the interplay between Sections 15B(6)(b), (6)(e), and 

(7). See Taylor v. Beaudry, 914 N.E.2d 931, 933-36 (Mass. App. 

Ct. 2009) (Taylor I), review denied 920 N.E.2d 44 (Table) (Mass. 

2009); Carter v. Seto, 2005 Mass. App. Div. 62, 2005 WL 1383337, 

at *4-5 (Mass. App. Div. 2005), aff'd, 849 N.E.2d 925 (Table) 

(Mass. App. Ct. June 29, 2006), review denied, 853 N.E.2d 1059 

(Table) (Mass. 2006). 

In Taylor I, a tenant vacated his apartment on August 

31, 2007. 914 N.E.2d at 932. By mail postmarked October 1, 2007, 

the landlord sent the tenant a check covering his security deposit 

and accrued interest, minus charges for cleaning and repairs to 

the tenant's apartment. Id. Accompanying the check was an undated 

letter detailing the charges, but the letter was not signed under 

the pains and penalties of perjury as required by Section 

15B(4)(iii). Id. In response, the tenant filed a complaint 

claiming that the landlord had violated Section 15B(6)(b) by not 

providing him with an itemized list of damages in compliance with 

the provisions of Section 15B, and therefore had forfeited any 

right to the entire security deposit. Id. The tenant also claimed 

that the landlord had violated Section 15B(6)(e) because the 

landlord did not return any portion of the security deposit within 
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thirty days after the end of his tenancy.8 Accordingly, the tenant 

sought a judgment for three times the total amount of his deposit, 

plus interest, costs, and reasonable attorney's fees, pursuant to 

Section 15B(7). Id. 

The court concluded that the landlord's conduct had 

triggered Section 15B(7), and stated that Section 15B(6)(e)'s 

"statutory obligation to return the deposit is clear, as is the 

time within which the deposit must be returned." Id. at 416. It 

went on, however, to declare that "failure to return the security 

deposit, less any amounts that § 15B(4)(iii) permits the landlord 

to retain, within [thirty days] subjects the landlord to" Section 

15B(7) damages. Id. at 417. 

Carter presented a similar factual scenario but was more 

explicit in its reasoning. In that case, tenants sued under 

Section 15B after receiving a letter from their previous landlord 

stating that they could recover only $270.22 of their $2,150.00 

security deposit. Carter, 2005 WL 1383337, at *2. The letter, 

which itemized the damages charged against the security deposit, 

was not signed under the pains and penalties of perjury and did 

not include any repair bills or estimates to substantiate these 

 8 The court noted that "[a]t some point shortly after 

receiving the [tenant's] complaint, the landlord returned to the 

tenant the balance of the security deposit." Id. However, "the 

record [was] clear that [the landlord] did not return the balance 

within thirty days following termination of the tenancy." Id. at 

412-13. 
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charges. Id. Unlike in Taylor I, the letter was dated only 

nineteen days after the tenants relinquished possession of the 

apartment. Id. at *1-2. 

The court ultimately determined that the letter was 

noncompliant with Section 15B(4)(iii) and that the landlord's 

"failure to submit a properly sworn itemized list of security 

deposit deductions within the time mandated by the statute resulted 

in a forfeiture of [the landlord's] right to retain any portion of 

the security deposit." Id. at *4. The landlord was therefore 

required to return the full amount of the security deposit within 

thirty days of the termination of the tenancy and did not do so, 

resulting in a violation of Section 15B(6)(e). Id. The court 

then awarded the tenants damages pursuant to Section 15B(7). Id. 

Given Taylor I and Carter's factual similarities to the 

current case, these two decisions raise a measure of doubt that 

the SJC would agree with the district court's interpretation. 

Thus, although the statutory provisions to be applied in this case 

are readily apparent, "the application of those [statutes] is 

difficult, and the outcome far from certain." See Easthampton 

Sav. Bank, 736 F.3d at 51. 

Nonetheless, "[t]hat a legal issue is close or difficult 

is not normally enough to warrant certification, or else diversity 

cases would regularly require appellate proceedings in two 

courts." Bos. Gas Co., 529 F.3d at 15. Additional factors, 
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including "the dollar amounts involved, the likely effects of a 

decision on future cases, and federalism interests," guide our 

decision of whether to certify questions to the SJC. See 

Easthampton Sav. Bank, 736 F.3d at 52. 

Though Phillips's individual claim may revolve around a 

relatively small $750.00 security deposit, the outcome of the case 

has the potential to impact a large swath of current and future 

tenancies throughout Massachusetts. See id. (certifying questions 

to SJC partly because the outcome of the case "ha[d] the potential 

to impact thousands of outstanding and future mortgages" across 

Massachusetts). The many residential landlords operating in the 

Commonwealth, meanwhile, rely on interpretations of these 

important provisions of the Security Deposit Law when structuring 

their business activities. The case also involves interpretation 

of a state statute governing an area of traditional state 

authority. See Conille v. Sec'y of Hous. & Urban Dev., 840 F.2d 

105, 111 (1st Cir. 1988) (stating that "the area of landlordtenant law . . . typically has been the province of state courts 

and legislatures."). Certifying questions about these issues thus 

"promotes 'strong federalism interests.'" Easthampton Sav. Bank, 

736 F.3d at 53 (quoting Real Estate Bar Ass'n for Mass., Inc. v. 

Nat'l Real Estate Info. Servs., 608 F.3d 110, 119 (1st Cir. 2010)). 
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III. 

For the above reasons, we certify the following question 

of Massachusetts law to the SJC: 

1. With respect to the Massachusetts Security 

Deposit Law, Mass. Gen. Laws ch. 186, § 15B, 

when a lessor violates the terms of Section 

15B(4)(iii), does the lessor's 

corresponding violation of Section 

15B(6)(b), which "forfeit[s] his right to 

retain any portion of the security deposit 

for any reason," id. § 15B(6), also 

constitute a violation of Section 15B(6)(e) 

-- ""fail[ing] to return to the tenant the 

security deposit or balance thereof to 

which the tenant is entitled . . . within 

thirty days after termination of the 

tenancy" -- thereby triggering the 

statute's treble damages provision, Section 

15B(7)? 

 We would also welcome any other comments that the SJC 

may wish to offer on any relevant aspects of Massachusetts law. 

The Clerk of this court is directed to forward to the SJC, under 

the official seal of this court, a copy of the certified question 

and our opinion in this case, along with copies of the parties' 

briefs and appendices. We retain jurisdiction over this appeal 

pending resolution of the certified question. 

So ordered.