KALOW & SPRINGUT, LLP v. COMMENCE CORPORATION, 1:07-cv-03442

Kalow sues Commence in a putative nationwide class action under CFAA and NJCFA for alleged time-bomb defect that disabled Commence software on March 20, 2006.
Kalow had used Commence software since 2000, integrating it for CRM, timekeeping, docketing, and calendaring, with data in a proprietary format.
Older software versions (including Kalow’s version 2000) were allegedly affected, while newer versions with patches were handled differently by Commence.
Commence allegedly provided a patch to newer versions but required an upgrade for older versions, pushing some users to purchase upgrades.
Plaintiff seeks class certification for All User Class and two subclasses (Non-Upgrade and Upgrade) based on networked users affected by the March 20, 2006 disruption; court denied certification without prejudice due to choice-of-law issues, among other factors.
Court notes that class certification standards require rigorous analysis of common issues, predominance, and superiority, with attention to potential damages distinctions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the proposed class satisfies predominance under Rule 23(b)(3).	Plaintiff argues common liability issues predominate due to the shared time-bomb theory.	Commence contends damages and individual circumstances predominate, undermining common questions.	Predominance not satisfied on this record; class certification denied without prejudice due to choice-of-law uncertainties.
Whether commonality supports certifying the class.	Plaintiff asserts a shared conduct and liability framework justifies common questions.	Defendant argues divergent facts regarding networked status and damages undermine commonality.	Commonality satisfied at this stage; focus remains on predominance and choice-of-law analysis.
Whether typicality is shown between Kalow and the class members.	Injury from the alleged time bomb arises from the same conduct; factual differences are tolerable.	Differences in versions and upgrade status could render Kalow atypical.	Typicality satisfied; injuries linked to the same alleged conduct despite version differences.
Whether Kalow and proposed counsel adequately represent the class.	Plaintiff shares common issues and has capable counsel with class-action experience.	No specific conflict or inadequacy identified.	Adequacy satisfied; representation deemed adequate.

In re Hydrogen Peroxide, 552 F.3d 305 (3d Cir. 2008) (guides rigorous analysis for Rule 23 certification and predominance)
In re Constar Int'l Inc. Sec. Litig., 585 F.3d 774 (3d Cir. 2009) (emphasizes that each Rule 23 component must be satisfied and predominance depends on class-wide proof of impact)
Baby Neal v. Casey, 43 F.3d 48 (3d Cir. 1994) (low threshold for commonality and typicality; injuries need not be identical)
In re Community Bank of Northern Virginia, 418 F.3d 277 (3d Cir. 2005) (supports predominance where a common fraudulent scheme applies to many class members despite individualized damages)
In re Flat Glass Antitrust Litig., 191 F.R.D. 472 (D.N.J. 1999) (illustrates predominance when damages vary but liability is common)