*1 171 A.3d DUGAN, FOX, ON BE ALAN AND ROBERT CAMERON DEBRA SITUATED, OTHERS SIMILARLY HALF OF AND ALL THEMSELVES INC., NTIFFS-APPELLANTS, FRIDAYS, TGI v. PLAI WORLDWIDE, INC., BEHALF ON CARLSON RESTAURANTS SITUATED, SIMILARLY OF AND ALL OTHERS THEMSELVES BOZZI, BEHALF ERNEST ON DEFENDANTS-RESPONDENTS. SITUATED, OF SIMILARLY HIMSELF AND ALL OTHERS PARTNERS, PLAINTIFF-RESPONDENT, v. OSI RESTAURANT LLC, GRILL, AL., ET DEFEN CARRABBA’S ITALIAN T/A DANTS-APPELLANTS. Sept.Term 2015
A-92 Sept.Term A-93 077567and 077556 4, 2017 Argued April October Decided *8 Dugan appellants in argued for the cause D. Friedman Sander (Law (A-92-15) Inc., D. Sander Fried- Fridays, Office v. TGI Hanna, on Wesley G. man, Friedman and attorneys; Sander D. briefs). respondents Dugan in argued the cause for Orlofsky M. Stephen (A-92-15) (Blank Inc., Ryan, and LeClair Rome Fridays, v. TGI Kistler, Jeffrey L. Orlofsky, C. M. David attorneys; Stephen briefs). Schultz, of on the O’Hara, S. counsel and and Matthew argued Legal David G. McMillin for the cause amicus curiae (A-92-15) Jersey Dugan in Fridays, New v. TGI Services Inc. Miller, (Legal Jersey, attorneys; Services New Melville D. Jr. brief). on and David G. McMillin argued Galpem A. for
Michael the cause amicus curiae New (A- Dugan in Jersey Fridays, Association for Justice v. TGI Inc. 92-15) (Locks Firm, attorneys; Galpem, A. Law Michael Andrew brief). Bell, Barry A. on P. and James argued Jeffrey Jacobson for S. cause amicus curiae New (A- Inc., Jersey Dugan Civil v. TGI Fridays, Justice Institute 92-15) (Lowenstein Warren, Kelley Drye Sandler and attor- & brief). neys; Jeffrey Rooney S. Jacobson and Gavin J. on the Stephen Orlofsky argued for appellants M. the cause v. in Bozzi (A-93-15) (Blank Partners, LLC OSI Restaurant and Rome Office, Briggs attorneys; Stephen Orlofsky, Law M. David C. Kistler, Iannucci, Briggs, Michael A. Norman W. and Adrienne briefs), Chapman, of counsel on the Doherty, argued M. respondent Donald Jr. the cause for (A-93-15) (Law Partners, Bozzi v. OSI Restaurant LLC Office Doherty, attorneys; Doherty, Donald M. Donald M. on Jr. brief). Romberg argued for
Jonathan the cause amicus Seton curiae University Hall of Law for Dugan School Center Social Justice in (A-92-15) Fridays, v. Bozzi TGI Inc. v. OSI Restaurant (A-93-15) (Seton Partners, University LLC Hall School of Law Justice, attorneys; Romberg Center Social Jonathan on the briefs). argued R. Kott Jersey
David cause amicus curiae New Industry Fridays, Business & Association in v. TGI Inc. (A-92-15) Partners, (A-93-15) and Bozzi v. OSI Restaurant LLC (McCarter Kott, English, attorneys; & David R. Edward J. Riester, Monahan, Fanning, Zane C. and Elizabeth K. of counsel briefs). *9 opinion of the delivered the Court. JUSTICE PATTERSON allege appeals, In the the plaintiffs consolidated these Jersey engaged operators New in unlaw- defendant restaurants respect practices prices charged ful with to to the disclosure beverages. upon alcoholic customers for and non-alcoholic Based causation, plaintiffs loss different theories ascertainable and damages against the two relief actions demand other defen- - (CFA), Act Fraud N.J.S.A. 56:8-1 to dants under Consumer 206, They penalties, damages, seek civil and other relief under also Contract, Warranty and Act the Truth in Consumer Notice (TCCWNA), N.J.S.A. 56:12-14 to -18. case, trial certified as a class action each court the action Fridays, Dugan v.
pursuant to Rules 4:32-1 and 4:32-2. In TGI Inc., N.J.Super. 2016), (App. Div. panel of a Appellate Division reversed the trial court’s certification Appellate class. Division denied the defendant’s motion Partners, in Bozzi v. OSI LLC. We appeal leave Restaurant granted appeal in both actions. leave
Applying class action certification Rule 4:32-1 standard Dugan Fridays, Inc., v. hold the CFA we claim asserted TGI questions plaintiffs show that of law have failed to common issues, as Rule re- predominate and fact over individual 4:32-1 presenting loss quires. proof As an alternative to ascertainable Dugan class, plaintiffs to each of the causation as member demonstrate, millions, propose numbering in the for a class charged more than TGIF each member class $1.72 it prices charged that it have had “fair” “reasonable” would beverage prices our disclosed its on the menu. Because CFA theories, rejects “price-inflation” as the jurisprudence action such Dugan theory presented by incompatible plaintiffs, as with Dugan terms, have CFA’s we conclude that respect CFA claims. We predominance with to their established modify Appellate Division’s accordingly affirm the determina- purposes improperly tion that class was certified *10 the CFA claims in asserted that action and remand for a determi- plaintiffs’ nation of the individual CFA claims. respect
We reach a different conclusion with to the CFA claims by plaintiff asserted Bozzi Ernest in Bozzi v. OSI Restaurant Partners, Although general LLC. Bozzi asserts claims that the prices, allegations defendant restaurants failed to disclose his primarily focus specific pricing practice. on a alleges He that the defendant restaurants by increasing violated CFA price charged brand, to a customer for type, the same and volume restaurant, beverage in the course of the customer’s visit to the notifying without change. customer Bozzi’s counsel represents price-shifting that this supported claim is claimant- specific receipts showing that each making customer this claim charged brand, was prices for type, different the same and volume beverage in single the course visit to one of the defendant’s restaurants.
We hold that if Bozzi only class is redefined include claim, specific who customers make that CFA and the claim is accordingly, plaintiff limited Bozzi requirements has met the may attempt Rule 4:32-1 and prove that claim on behalf of the modify class. affirm We and the trial court’s as to determination claim in Bozzi CFA remand the certification of a class that is accordingly. limited respect
With to the claims based on the TCCWNA both appeals, we satisfy conclude have failed to predominance requirement of Rule 4:32-1. We therefore reverse the trial courts’ class certification determinations both cases respect with to those claims and remand for a determination of plaintiffs’ individual TCCWNA claims.
I. summary We our allegations procedural base of the factual history of complaints each action on the and the class certification presented record to the trial court in each case.
A. Dugan actions, v. TGI putative In the first two (Dugan Fridays, Inc., plain- Dugan and Alan Fox plaintiffs Debra tiffs) Inc. Fridays, against defendants TGI claims assert TGIF), Restaurants, Inc.,1 oper- (collectively, owners and Carlson Jersey. in New ators of TGIF restaurants practice maintained plaintiffs claim that TGIF Jersey men TGIF restaurants’ beverages in New offering certain They allege beverages.2 of those listing prices us without *11 commercial by engaging in unconscionable the TGIF violated CFA assert, among They also contrary to 56:8-2. practices N.J.S.A. claims, regulatory provision, N.J.S.A. TGIF violated a that other sell, for sale 56:8-2.5, offering or “mer selling, attempting to by point purchase.” The the price is not marked at chandise that Dugan on the the TCCWNA premise their claim under plaintiffs legal right of “clearly a a established allegation that TGIF violated offering beverages for responsibility of a seller” consumer selling price at notifying consumer of the total “without the sale 56:12-15; 56:8- (citing N.J.S.A. purchase.” N.J.S.A. point of the Dugan 2.5). damages, penalties, civil plaintiffs demand The the TCCWNA. other relief under Dugan Dugan was the sole original complaint, plaintiffs’
In the Dugan asserted class. representative putative plaintiff and in Mount that, restaurant company-owned to TGIF during visits a drinks, drinks, and Laurel, soft mixed purchased “unpriced she priced menus.” comprehensively otherwise off Defendants’ beer not made aware the alleged on each visit she was Dugan that defendant, Worldwide, Inc., which was named as Restaurants Carlson Restaurants, Inc. of Carlson the former name Dugan thirty-eight in New alleged TGIF restaurants there were thirty-four interrogatories there were Jersey. indicated that TGIF's answers twenty company-owned and Jersey, fourteen that were in New TGIF restaurants Dugan plaintiffs alleged complaint, operated franchises. In their were as restaurants, whether in all TGIF of the menus controls the content that TGIF company-owned or franchises. restaurants are those prices charged beverages presented for the until TGIF staff her original with a check. In her complaint, during she claimed charged visit to a restaurant TGIF she was for a beer at $2.00 charged bar and for $3.59 later the same brand beer after moving to a table.
Dugan alleged typical that her claims were of the claims of the class and asserted that requirements she met all for class sought certification under Rule 4:32-1. She of a certification consisting Jersey Friday’s “all customers New TGI who purchased from items the menu that did not have a disclosed price.”
TGIF Dugan’s complaint moved before trial court dismiss 4:6-2(e). for pursuant failure to a claim state Rule The trial Appellate court motion An panel denied the to dismiss. Division to appeal. granted denied TGIF’s motion leave We TGIF’s appeal summarily motion for leave remanded matter to an Appellate panel Division consideration of merits of appeal. opinion, panel unpublished Dugan concluded adequately pled had her CFA and TCCWNA claims and affirmed the trial court’s determination. then filed a first amended complaint, expanding allegations regarding her visits to her TGIF in Mount restaurant Laurel. *12 parties discovery. conducted depo- certification her
sition, Dugan during that admitted the to 2008 visit a TGIF paid prices restaurant she which different for two orders table, beverages identical at the bar and at the she did read beverage the section the She menu. stated that she did not receipt until realize later reviewed paid she her had she $2.00 for a paid beer at the bar and later for a $3.59 beer a table. Dugan stating later submitted a certification that she had looked at the many TGIF menu on occasions and expected pay price paid same the bar that she when she sat at a table. Among produced by the documents TGIF in discovery were Dugan by documents characterized training as mate- documents stated that servers rials TGIF servers. Those seating opened menus to customers. should hand customers Dugan plaintiffs produced
TGIF also what the characterize as argument Plaintiffs’ counsel stated at oral “market research.” analysis of those documents reflect a TGIF consultant’s consumer Dugan beverages in ordering restaurants. The behavior research demonstrates custom- plaintiffs contend that the market beverages if tendency expensive fewer ers’ to order less they than if beverage prices are listed the menu order Dugan by prices are unlisted. As the research described was of customers studied informed bever- plaintiffs, group one group was not. age prices visiting a restaurant and the other when beverage prices spent average of The customers informed prices whom per than the customers to were less visit $1.72 Dugan research, marketing Relying on not disclosed. position charge higher price is in plaintiffs claim that TGIF compelled by beverage price that it for a than the would be prices charge beverage if it its market forces to were disclose on restaurant menus. Dugan basis, plaintiffs stated their intention
On that putative class the same prove that each member of their suffered as a result unconscionable commer- ascertainable loss of $1.72 They by violations TGIF. practices regulatory cial committed figure global to calculate they indicated that would use the $1.72 damages for class. their entire
Relying proof of loss theory on that of classwide ascertainable causation, Dugan for class certification.3 Between the moved motion, filing of that filed a and the determination second allegations complaint, detailing her about her amended further restaurant, omitting specific visits to references to the the TGIF her, naming Fox as an additional prices charged TGIF summary judgment, which was denied the trial 3 TGIF cross-moved for court. *13 plaintiff representative.4 and class Fox visits described to TGIF alleged restaurants and that he would ordered or have different beverages during fewer one those visits he had been informed prices charged. about the that would be Dugan The trial court concluded that the satisfied had requirements granted the of Rule 4:32-1 and motion their for class certification. court in the persons The included class definition all 12, company-owned who visited a “from January TGIF restaurant 2014, 18, menu, to upon June purchased [TGIFJ’s relied and soda, unpriced an offered but beer or mixed drink.” The court granted plaintiffs’ later expand motion to the class providing for purposes definition to class. expand- notice As ed, by the class defined the trial court persons “[a]ll consisted who Jersey by [TGIF] visited a restaurant New owned (i.e. store) 12, company January from July [TGIF] owned 2004 to soda, purchased an unpriced offered but beer mixed drink.”5
After the trial court denied its motion for reconsideration and/or class, decertify to appeal to TGIF a motion for leave filed stay pending appeal. Appellate certification class notice An panel Division denied motions. TGIF before this moved Court stay. granted for leave to This appeal and Court leave appeal, stayed proceedings class notice and further trial before the court, Appellate remanded the matter Division for consideration of appeal. merits of complaint by The second amended included claims also asserted a third class Cameron, representative allegations plaintiff, Robert whose related to to a a visit excluding exclusively franchise-owned TGIF restaurant. After customers who restaurants, visited franchise TGIF the trial court dismissed Cameron's claims. represents company provide TGIF retained notice to the class certified the trial estimated the class consists of court thirteen to fourteen Dugan plaintiffs million members. state that number of class members estimate, may substantially may be less than that as the estimate reflect individu- repeat al customers' visits to TGIF restaurants. *14 40 court’s Appellate panel Division reversed the trial class
An Dugan Fridays, Inc., 445 v. TGI certification determination. 2016).6 N.J.Super. 59, 79, panel Div. The (App. 135 1003 A.3d Dugan failed to Rule 4:32- plaintiffs concluded the had meet of fact as to ... TGIF’s requirement 1’s “that common issues soda, purchased unpriced customers who beer or mixed drinks predominate pertain individual class members.” issues that over court panel 135 1003. that the trial had Id. at A.3d The held persons all who improperly pur in the class definition included soda, beer, unpriced “regardless an mixed drink chased they purchasing the bever whether reviewed the menu before ages” class who and had customers could therefore included conduct, loss as a result of unlawful establish an ascertainable requires. Ibid. as the CFA Dugan plaintiffs had also that the failed panel
The determined with predominance respect to establish Rule 4:32-1 their under The the need for panel claims. Id. at noted TCCWNA 77-79. inquiries ... to determine each class “[i]ndividualized whether beverage pricing” and to member was handed a menu that lacked damages 56:12-17. Id. at 79. Given its assess actual under N.J.S.A. finding predominance, panel not reach Rule on the issue of did requirements. other 4:32-1’s class certification Dugan appeal. 226 granted plaintiffs’ motion for leave We (2016). granted the motions 1084 We also N.J. A.3d Jersey Association Legal Jersey, Services of New New Justice, University of Law Social Hall School Center the Seton Justice, Institute, Jersey Civil Justice New the New as appear Association to amici Jersey Industry Business and curiae. for leave to file a panel filed motion noted that the scope on
cross-appeal, challenging limitations class. the trial court's N.J.Super. 70-71, Dugan, supra, light of its 1003. In class decision, cross-appeal. panel reach the did not certification
B. appeal putative The second before Court arose from another Partners, action, Bozzi v. OSI Restaurant The action LLC. plaintiff against Partners, was filed Bozzi OSI Restaurant LLC (OSI), that, entity according plaintiffs, control of maintains (Carrabba’s) Italian Grill Jersey. Carrabba’s restaurants in New complaint, In his solely initial Bozzi asserted claims based *15 pricing practices of OSI’s Carrabba’s restaurants. In his amended complaint, expanded his Bozzi claim to Jersey include other New owned, allegedly controlled, operat- restaurants that OSI has and ed, Steakhouse, Grill, including Outback Fleming’s Bonefish Prime Bar, Cheeseburger Steakhouse and Wine and in restau- Paradise rants. complaint, his amended Bozzi regulatory a CFA asserted alleged
violation on claim based OSI’s contravention of N.J.S.A. general 56:8-2.5 a alleged and more CFA claim based on OSI’s practice mislead[ing] “intentionally of through customers stealth price alleged adjustments.” He an ascertainable loss under the CFA on a based contention that customers who are uninformed beverage prices higher prices pay “depriv[ed] about ... and are legitimate expectation their of an objectively price.” reasonable sought injunction, Bozzi damages, treble and other under relief CFA, declaring a judgment the and he require that the satisfied claim, ments of pursuant his CFA to Declaratory Judgment the Act, pled TCCWNA, N.J.S.A. 2A:16-53. also He a claim under the 56:8-2.5, based on violation of sought OSI’s claimed N.J.S.A. and damages penalties civil under that statute.
Although Bozzi on the relied same statutes cited the plaintiffs, narrowly alleged focused on he more OSI’s practice increasing prices beverages in the course a customer’s change visit disclosing without that to the customer. indi- Bozzi’s allegations primarily vidual factual relate to a 2010 visit to a that, Maple Carrabba’s restaurant during Shade. He asserts visit, neither the restaurant’s menu nor or any placards displays prices disclosed drink signs, and that there no were
notices, indicating was on displays or that there a discount drink prices two Peroni beers in effect. asserts that he ordered He during his his check that meal and discovered when he received $3.25, According cost first beer cost the second $4.25. Bozzi, staff protested pricing disparity he a restaurant member, computer changes price who him that told “the charge policy to that it was restaurant’s certain times” and accordingly. customers trial a class
Bozzi moved court certification before his proposed, Bozzi pursuant Although to Rule had 4:32-1. charged “persons complaint, who were initial a subclass limited during prices trip to the for the same drinks a Defen- different establishment,” sought of a broader class dants’ he certification purchased bever- who visited an OSI restaurant customers age placard price. Bozzi’s menu table without offered expansive represented to the trial court counsel claim, necessary for which was definition was his TCCWNA allegation premised general on the failed disclose OSI menus. advised trial beverage prices on its restaurants’ He CFA, loss purposes the claimed ascertainable court that *16 loss,” practice of alleged on OSI’s “price was based differential beverage visit. prices for same on the same charging different to prove how not to the trial court he intended explain Counsel did He acknowl- loss causation on a classwide basis. ascertainable and challenge to claim that edged expected a later his OSI’s that he beverage charging prices for same alleged practice of different gave to a CFA violation. rise motion for class certification. granted trial court Bozzi’s
The (a) persons who: “[a]U class to include The court defined the Brands, Partners, LLC or Bloomin’ any visited OSI Restaurant present Inc.,7 to the Jersey, in from restaurant New 12/23/04 (b) date; or table offered on the menu purchased item and alleged The record role in the conduct at does not reveal issue. Bloomin' Brands Inc.’s relationship to OSI, or its placards price for no which was on the disclosed menu or table placard.” granted injunctive trial court also Bozzi’s motion for relief. prices
It “list ordered OSI to all the menus for all items menus,” prices any contained in to “list for their and items placard displayed display on a table similar available custom- ers,” days. granted stay proceedings within ten The court it, including injunction, anticipation before of OSI’s motion appeal for leave its orders. Appellate Division An appeal.
OSI moved before for leave to Appellate panel Division motion and OSI’s denied denied for motion reconsideration. granted appeal. motion for
We OSI’s leave N.J. (2016). granted A.3d 1084 also Hall We the motions the Seton University of Law School Center Social Justice and the New Jersey Industry appear Business and Association to as amici curiae.
II. A. Dugan Fridays, Inc., plaintiffs v. argue Appel- TGI that the panel’s diverged Division late decision from this Court’s class jurisprudence, certification which endorses class action device resolving disputes as a method of between with small for damages claims and institutional plain- defendants. The argue although tiffs questions there are individualized claims, must be questions resolved determine their common predominate. law fact They they prove can contend that their CFA TCCWNA claims the class as a whole because TGIF subjected strategy, all customers to a price-gouging they need present proofs of each customer’s interaction with the server *17 Dugan or motivation in purchasing beverage. plaintiffs argue damages that can be calculated for class as a whole damages apply to using methodology as would assess the same case. ordinary bad faith contract plaintiffs an individual properly panel Division re- Appellate that contends TGIF It maintains grant of class certification. trial court’s versed the prove that the class members plaintiffs cannot that the offending allegedly as a loss result an ascertainable suffered 56:8-19, demonstrating without required by N.J.S.A. practices, as claimant in a class estimated that loss each individual beverage purchases. TGIF million to fourteen involve thirteen TCCWNA, each class a claim under the that to establish contends given a that or she was required prove he would be member ques- menu, damages, that common individually prove and to questions predominate not over individual tions of law and fact do toas the TCCWNA.
B. Partners, LLC, asks the Court OSI In Bozzi v. OSI Restaurant OSI con- grant of certification. court’s the trial reverse that, questions predominate over finding common that tends claim, the trial plaintiffs’ CFA issues in the resolution individual prove that OSI’s ignored requirement court prevail under in order an ascertainable loss conduct caused predicated solely claim is argues It that Bozzi’s 56:8-19. N.J.S.A. that Bozzi’s beverage prices alleged shift” “secret OSI’s diverges from causation theory loss and of ascertainable individual class. OSI asserts applies to other members theory that must each claimant liability under the TCCWNA to establish with a menu that violated provided or she was show that he necessity of damages and that consequently sustained law and precludes claims effec- TCCWNA individual determinations Finally, argues case. OSI action in this management of a class tive granted injunctive relief. should have trial court construe N.J.S.A. 56:8-2.5 should that the Court Bozzi contends beverages on menus post prices that restaurants to mandate change. proposes He prices if inform consumers placards and *18 (1) expansive asserting three class definitions: an class alternative claim, consisting a all TCCWNA of who an customers visited OSI (2) menu; presented restaurant and with a a more were limited class, claim, asserting consisting all a CFA of customers who restaurant; (3) purchased beverage unpriced at an OSI and the class, claim, asserting consisting a narrowest CFA of customers paid beverage who during for the a prices different same visit prove represents an OSI restaurant. Bozzi that to ascertainable class, rely receipts loss for of latter on members the he intends showing paid prices that customers different for the same bever- age during visit. the same restaurant
C. Legal Amicus of contends that Jersey curiae Services New class certification is the vindication of low-income consum- essential Dugan plaintiffs ers’ small asserts that claims. It the met the predominance requirement of Rule the CFA 4:32-1 because does reliance, require not omission from prices that the of TGIF menus gave CFA, of of purposes rise to an causation for the inference beverage offering prices and that of the menus without satisfied “provision” requirement the of the TCCWNA. Jersey
Amicus curiae New Association for Justice contends that Dugan practices generally of TGIF the CFA and the violate TCCWNA, satisfying requirement predominance thus of Rule claim, purposes liability 4:32-1 for and distinctions among damages claims of class should not members defeat class certification in that case. University
Amicus curiae Hall School Law Seton Center alleged practice Social Justice contends because TGIF’s including marketing not on prices drink the menu re- and Dugan discovery, search position disclosed in are a present and proof collective ascertainable loss causation. It may contends that the entire demonstrate ascertainable loss on price charged based the difference between the that TGIF price charged pricing that it have had it would not instituted scheme, or, alternatively, based the difference between the University price charged price. Hall reasonable Seton argues, in School of Law for Social Justice both Center Bozzi, appro- plaintiffs’ claims are even more TCCWNA priate for than their claims because classwide resolution CFA require proof ascertainable loss causa- TCCWNA does *19 tion. argues Jersey
Amicus Civil Justice Institute that a curiae New certify pursue to a court should a class action claim under never that, minimum, is evidence at a all the TCCWNA unless there allegedly offending members received and reviewed the class contemplates It TCCWNA individual contract. contends penalty of civil of litigation prospect and that the a and an award attorneys’ provides a fees under the TCCWNA sufficient incentive aggrieved bring actions. for consumers to individual Jersey Industry Business Association Amicus curiae New adopt barring for the urges the Court to a rule class certification litigation of claims. It contends that the TCCWNA’s TCCWNA ample penalty provisions provide incentives individual civil unduly litigation provisions punitive are when and that those imposed large on behalf a class of claimants.
III.
A
usual
exception
“class action is ‘an
rule
litigation
by
is
named
conducted
behalf
the individual
”
Stores, Inc.,
103,
88,
parties only.’
v.
191 N.J.
Iliadis Wal-Mart
(2007)
Yamasaki,
682,
v.
442 U.S.
(quoting
47 496, (2010) 518, supra, Iliadis, (quoting 203 4 561 N.J. A.3d 710). N.J. at 922 A.2d rules, putative a considering
Pursuant our court trial court “shall, time, early practicable class action at an determine and, action,” order whether the action certify as class if granted, defining certification enter order “the class and the claims, or appointing issues defenses” and class counsel. R. 4:32-2(a). prescribes
Rule 4:32-1 standard the determination (a) of a certify imposes motion a class. Subsection that Rule requirements, four frequently “numerosity, initial com termed monality, typicality adequacy representation,” in order for a supra, Lee, (citing class to be certified. 203 N.J. A.3d 561 Action, 412, 424-25, In re Cadillac V8-6-4 N.J. Class (1983)). provides: The Rule (a) Class Action. more General to a One or members of a class Prerequisites may (1) sue be sued as on behalf of all if class is parties so representative only (2) joinder of members is numerous all there are impracticable, questions *20 (3) class, law or common to the fact the claims or defenses of the representative (4) of or class, are the claims defenses of and the parties typical the representative will the of the class. parties fairly protect interests adequately 4:32—1(a).] [R. 4:32-l(a)’s plaintiff requirements,
If the satisfies Rule the court 4:32—1(b)(3): then considers the of standard Rule (b) An Class Actions action be maintained as if the Maintainable. a class action may (a) paragraph of satisfied, are and in addition: prerequisites (3) the finds of court that the law or fact common to the members of questions affecting
the class predominate members, over individual any questions only that a class action is to other available for the methods fair and efficient superior adjudication findings of the The factors to the include: controversy. pertinent (A) controlling the of in interest of members the class the individually actions; or
prosecution defense of separate (B) litigation concerning the extent and nature any controversy against class; commenced or members of the already (C) concentrating litigation or in of the desirability undesirability in forum; claims particular 48 (D) management be in the class encountered the difficulties likely
action. 4:32—1(b)(3), predominance
To determine under Rule ‘sufficiently is proposed class cohesive court “whether the decides ” Iliadis, supra, by representation.’ 191 adjudication to warrant Prods., 108, v. (quoting 922 Amchem Inc. Wind N.J. A.2d 710 at 591, 2231, 2249, 689, sor, 623, L.Ed.2d S.Ct 138 712 521 U.S. 117 4:32—1(b)(3) (1997)). showing “that there does not demand Rule or that common issues is an ‘absence individual issues all dispose dispute,’ [are] of the or ‘that issues identical entire in among [is] members or each class member affected ” supra, 520, Lee, 4 203 precisely same manner.’ N.J. at A.3d Iliadis, supra, (alterations (quoting 191 at original) N.J. 561 710). 108-09, that the plaintiff A.2d Nor must a demonstrate 922 of common the number of individual issues. issues exceeds number N.J.Super. Co., 31, 45, 332 752 v. Mass. Mut. Life Ins. Varacallo 2000). (App. A.2d Div. 807 “ however, factor, predominance is ‘far more de 4:32—1(a)(2)’srequirement ques be
manding’
that there
than Rule
NYT
class.” Castro v.
Televi
tions of law fact common
2006)
sion,
N.J.Super.
608,
601,
(App. Div.
A.2d
384
895
1173
Prods., supra,
624,
2250,
at
(quoting
49
Operating Eng’rs
Int’l Union of
Local
68
v.
No.
Fund
Welfare
Co., Inc.,
372,
(2007).
390-91,
Merck
192 N.J.
original) (quoting 509). denying class certification granting an order
When whether court must ascertain “appellate appeal, on reviewed forth in set class action standard has followed” the the trial court Lee, supra, 506, general, In 4 561. 203 N.J. at A.3d Rule 4:32-1. court’s class action determination a trial appellate court reviews 438-39, Cadillac, supra, 461 93 N.J. at See for abuse discretion. its discretion (determining trial court abused whether A.2d 736 N.J.Super. 29, GPU, Inc., 13, class); 851 v. 371 certifying Muise 2004) (reviewing trial court’s determination (App. Div. 799 A.2d discretion); for abuse of not warranted was that class certification Rules, Verniero, comment 2.2.3 Court N.J. Current Pressler & (2017). (b)(3) R. 4:32-1
IV.
A.
law,
we review
and our case
In
with Rule 4:32-1
accordance
of a class for the determination
certification
trial court’s
the Court.
appeals
two
before
claims asserted
each
CFA
law
substantive
inquiry, we review the
step in that
As an initial
supra,
Iliadis,
191
plaintiffs’ CFA claims. See
governs
determining class
107,
(finding
court
An “unlawful
the CFA
(1)
(2)
act;
omission;
(3)
knowing
arise from an affirmative
a
or
a
regulation.
violation of an administrative
v.
Thiedemann Mer
USA, LLC,
234, 245,
(2005);
cedes-Benz
183 N.J.
In generally alleging addition to unconscionable commercial 56:8-2, practices under N.J.S.A. and Bozzi allege that the defendant regulatory restaurants committed a by contravening violation N.J.S.A. 56:8-2.5. Under that section of CFA, sell, practice” it is an “unlawful attempt “to or sell selling any the total offer sale merchandise retail unless stamp, tag, price plainly by of such is label merchandise marked sign point or or either affixed to the merchandise located at the 56:8-2.5; is N.J.S.A. see where the merchandise offered sale.” Johnny Popper, Inc., N.J.Super. 580, 588-89, also re 2010) (concurring (App. Div. with Division Consumer A.2d 257 listing practice car Affairs’ determination that used dealer’s affixing prices only price building, in its rather than vehicle list vehicles, listing prices to them near violated N.J.S.A. vehicles 56:8-2.5). provision plaintiffs’ CFA and That central appeals. claims in these TCCWNA CFA, only prove prevail plaintiff
To
must not
under the
defendant,”
by
“an
“unlawful conduct
but must also demonstrate
relationship
plaintiff’
loss
and “a causal
between
ascertainable
D’Agostino,
loss.”
the unlawful conduct and the ascertainable
Bosland, supra,
supra,
(quoting
216 N.J.
N.J.S.A. 56:8-19’s causation
requirement
element—the
plaintiff prove
that he or she suffered an ascertainable loss
“method,
“as a result of’ the
prac
defendant’s unlawful
act
supra,
Lee,
equivalent
tice”—is “not
reliance.”
The CFA loss elements ascertainable and causation are the parties’ dispute focus of regarding predominance Rule 4:32-1 appeals. these
B. 1. statutory language jurisprudence Guided de fining 56:8-19, private cause action under N.J.S.A. we review Dugan Appellate Division panel’s plain determination that the 4:32—1(b)(3) predominance tiffs failed demonstrate under Rule respect with to their CFA claims. purposes analysis,
For
of our
we assume the truth of the
*25
TGIF,
plaintiffs’ allegation
by
research,
prompted
that
its market
prices
beverages
declined to list
for its
on its
menus
order
Lee, supra,
beverage
increase its
from
revenue
sales. See
203 N.J.
Iliadis,
505,
561;
supra,
96,
at
4 A.3d
55
Dugan plaintiffs
represent
they
present
The
do not
that
can
proof
every
individualized
that
claimant
in their multi-million-
purchased
expensive
member class would have
fewer or less
all,
beverages, or
him or
of
none at
had TGIF informed
her
Instead,
law,
beverage
citing
prices.8
they
of contract
breach
propose
proofs
They
classwide
of
loss and causation.
ascertainable
predicate
finding
of
loss
seek
a uniform
ascertainable
they
causation on the
what
contend would be
difference between
beverages
prices
“fair” or
prices
“reasonable”
and the
that
actually charged. Although
TGIF
in-
TGIF’s market
research
only
subjects, plaintiffs
of
volved
a small number
consumer
seek
beverage purchases
extend the results of that
to the
research
Dugan
urge
plaintiffs
their entire class.9 The
the Court
to con-
8
dissenting colleague's
We do not share our
conclusion that
have
Dugan
post
79,
proven a CFA violation in
case. See
at
(attributing
"cynical corporate policy
profiteering
violating"
TGIF
a
from
CFA); post
83,
(contending
"corpo-
at
We
considered
Corp.,
94,
165 N.J.
754 A.2d
setting in
v. i-Stat
action
Kaufman
(2000). Kaufman,
allegedly “purchased
plaintiff class
secondary
prices that had
markets at attractive
securities
misrepresentations and
artificially
by
issuer’s
affected
an
been
97,
plaintiffs sought
prove
Id. at
Rejecting
plaintiffs’
theory,
the Kaufman
fraud-on-the-market
we noted that
in certain federal securities-fraud class
may collectively prove
actions
reliance based
evidence that the
price
defendant’s fraudulent conduct
affected
of the securities
103-08,
(citing
at issue. Id. at
Basic Inc. v. Levin
son,
(1988)).
485 U.S.
108 S.Ct.
[accepting fraud on the market as of reliance in proof a New common-law Jersey preventing forum-shopping, action fraud would undercut the interest public *28 reliance, weaken our law of indirect and run to the direction of the contrary policy Legislature Congress. regarding We decline to our law expand satisfaction the reliance element of a on fraud action the basis a economic theory complex that has not been proven. satisfactorily [Id. 118, at 754 1188.] A.2d Union, supra, applied
In International
principle
we
in the
setting
plaintiffs
of a
claim which
CFA
in
had the burden of
causation,
proving
loss and
ascertainable
but not reliance. 192 N.J.
392,
There,
representative
at
Noting in a theory fraud-on-the-market was “rejected being any ... inappropriate as in context other than litigation,” federal securities fraud a accept, we declined to as proof, plaintiffs’ of classwide theory method price “that the 58 as a
charged higher for Vioxx was than it been result should have marketing campaign.” We observed of defendant’s fraudulent Ibid. damages argues that it be to demonstrate classwide should [pllaintiff permitted single pricing through of a on of the use who would about the effect opine expert marketing campaign engaged. in extent that plaintiff which defendant To the single intends on a to establish effect place rely expert price demonstration of an loss or of a causal nexus ascertainable place proof damages, however, between defendant’s acts and the claimed plaintiff’s proofs That would indeed be of fraud on the would fail. proof theory equivalent CFA market, a we have not extended to claims. theory [Id. 1076.] at 929 A.2d 392, similarly rejected con representatives’ courts have class
Other
proven for
loss
causation
be
tentions
ascertainable
could
theory that
unlawful
a class in a CFA case on the
the defendants’
sold,
affect
practices
charge
goods
more
enabled them
supra,
Action,
ing every member of
class. In N.J.
Citizen
putative
in which
panel affirmed the
of a
class action
dismissal
plaintiffs
price
asserted
on the
inflation
a “fraud
market
theory,”
allegation
allegedly
fraudu
based
that defendant’s
pay
marketing caused class members
lent direct-to-consumer
N.J.Super.
12-14,
prices.”
“artificially inflated
an inflated a vehicle price loss: this inflated constituted the entire class’s ascertainable Though terms, couched different advances the same “price-inflation” plaintiff rejected of [N.J. Action], He for the lease a that we Citizen claims he paid theory navigation all roads vehicle that he to contain a that had and expected system higher highways have a for the less effective and, therefore, he must paid price coverage Adopting did not of this of theory which contain full road. every product in the alter the of causation CFA loss would “fundamentally concept ascertainable
59
rights
Legislature
context,” and would
afford
citizens
that the
effectively
private
has
reserved for the
General.
expressly
Attorney
(quoting
[Id.
123,
Action, supra,
N.J.Super.
Affirming certify the district court’s decision not to the Third Circuit concluded that improperly the district court had plaintiffs theory proof labeled classwide “fraud-on-the- theory plaintiffs’ accurately market” contention was more *30 Citing theory.” at 312-13. Inter- “price-inflation Id. as a described Jersey consumer- and Delaware Union and other New national law, “immaterial found distinction the Third Circuit fraud case recognize theory either courts have refused the state because context.” Id. at 313. fraud outside the federal securities Dugan similarly predicate a classwide plaintiffs seek The “price-inflation” on a causation finding of loss and ascertainable pricing that TGIF’s unlawful theory, premised on the contention postu- overcharge They its customers. practices empowered it to beverage prices off leaving its policy of its by virtue late that beverage prices its market menu, across to inflate TGIF was able reducing without customer demand. the Third Union and in International
As we determined
Hamish,
theory
proposed price-inflation
Circuit decided
in this CFA
loss and causation
not
ascertainable
does
establish
may
be able
establish
plaintiffs
class action case. Individual
showing
they
not
by
would
causation
loss and
ascertainable
money
spent
beverages or would have
less
purchased
have
Dugan plaintiffs
of their cost. The
they been informed
them had
however,
causation,
loss and
cannot establish ascertainable
higher
they
beverage
than
prices were
demonstrating that TGIF’s
prices on its restaurant
its
had TGIF listed
would have been
per-visit
from the
price derived
or “reasonable”
A “fair”
menus.
subjects is no substitute
marketing
research
expenditures
loss and causation.
ascertainable
proof of
actual claimants’
globally
establish those
theory does
price-inflation
Plaintiffs’
class of restaurant
vast and varied
for the
of the CFA
elements
Dugan
seek certification.10
for which the
customers
who cannot establish
plaintiffs suggest
of the class
that members
from the class
and excluded
and causation can be identified
loss
ascertainable
However, plaintiffs'
process.
is to demonstrate
post-verdict
burden
claims
predomi-
proven
issues
with common
can be
members' CFAclaims
that the class
law,
they
rely on
questions
cannot
nating
of fact
over individual
competent proof in a fair trial. See
process
post-verdict
as
substitute
claims
distinguish
appeals
than to
these
from
Other
this Court’s deci
*31
plaintiffs
sion in
single
International Union
the
on a
because
relied
case, post
43,
620,
expert
dissenting
in that
at
our
171 A.3d
colleague
authority clearly establishing
does not address the
that
plaintiffs’ price-inflation theory
give
proof
cannot
to
rise
classwide
Union, supra,
loss
Int’l
192
ascertainable
and causation.
N.J. at
391-92,
1076;
Action, supra,
N.J.Super.
929 A.2d
N.J. Citizen
367
Dabush, supra,
N.J.Super.
12-14,
174;
123,
at
842 A.2d
378
874
1110;
Harnish, supra,
Instead,
also
at 309-13.
see
833 F.3d
colleague
holding
rejection
our
global
mischaracterizes our
as a
actions,
refuting
proposition
statistical
in
thus
evidence
class
40-42,
simply
that we
Post at
A.3d 620.
do
assert.
171
regard,
dissenting colleague
In that
our
on
relies
three deci
Tyson Foods,
Supreme
opinion
sions: the
United States
Court’s
Bouaphakeo,
U.S. -, -,
1036, 1046,
Inc. v.
577
136 S.Ct.
194
124,
(2016),
L.Ed.2d
court
134-35
and two federal district
deci
Litigation,
(S.D.N.Y.
sions, In re Scotts EZ
Tyson judgment of a appeal Foods was an in favor a class of processing alleged meat that plant employees who the defendant Act, employer Fair Labor 29 U.S.C.A. violated the Standards -209, § by faUing pay employees 201 to overtime the they spent donning doffing time that protective equipment. and at -, Rejecting 577 U.S. 136 S.Ct. at at 133. L.Ed.2d verdict, jury’s challenge Supreme the defendant’s to the Court properly permitted plaintiffs held that the trial court had rely employee testimony, recordings expert’s an video and study regarding average donning time that “various and doffing at -, plant. activities took” in defendant’s Id. (b)(3) (requiring finding superior R. 4:32-1 that action is method "for the adjudication controversy").
fair
efficient
plaintiffs’
S.Ct. at
194 L.Ed.2d at
use
fact and
132.
Tyson
expert testimony in
the time con-
Foods
demonstrate
donning
doffing
simply
activities
issue is
sumed
theory
plaintiffs
that
price-inflation
to the
unrelated
proof
as
seek to assert
a classwide substitute
ascertain-
requires.
able loss and causation that the CFA
district court’s decision in Scotts EZ Seed arose
The federal
Dugan:
setting very
from
consumer claims
different
premised
advertising
on New York and California false
law.
There,
plaintiffs
against
contentions
the defen-
asserted two
growing
grass
capable of
dant manufacturer of
advertised as
seed
“nobody
grass
able
“50%
with Half Water”:
was
Thicker
Seed,”
grow grass
“paid
that the
had
using EZ
allegedly
inappropriate premium for EZ
based on
Seed
Scotts’
*32
50% thicker
at 408-09. The district court
false
claim.” 304 F.R.D.
alleged
advertising
falsity
held that
of
contested
claim was
the
the
subject
governing
generalized proof,
to
that under the
New
plaintiffs’
on
proven
York
based
statute harm could be
classwide
purchase
product”
payment
premi-
or
of a
alleged
a “worthless
of
The
claim.”
at 409.
district
um “based on the false 50% thicker
Id.
advertising statute not to
court construed
false
the California
to
require
proof of
causation as
causation “because
individualized
likely
by
than not
commonly proved
class
is
each
member
more
materiality”
(quoting
Id. at 410
Guido v.
of the false claim.
[the]
(C.D.
2012)).
L’Oreal, USA, Inc.,
Thus,
284 F.R.D.
Cal.
of
that common issues
fact and
the
court’s determination
district
in
EZ
derived from the contention
predominated
law
Scotts
Seed
damaged by an economic
every
of the class was
member
would not have
but
the false
decision that he or she
made
be,
alleged
at mini-
advertising:
product
of a
a
purchase
the
advertised,
mum,
entirely
or
worthless.
incapable
performing
of
as
choice—allegedly prompted by a
consumer
Ibid. That uniform
directly
of
single
advertising claim
material to the value
the
false
disparate
class
stark contrast to the
members’
product—stands in
beverages
in the
case.
at restaurants
purchase
decisions to
Finally,
dissenting colleague
our
on
involving
a
relies
decision
Goldemberg, supra,
alleged mislabeling,
2. apply We standard Rule 4:32-1 the CFA claims Partners, asserted in Bozzi v. purposes OSI Restaurant LLC. For inquiry, regard- we assume the truth of Bozzi’s allegations ing alleged practices testimony OSI’s and his regarding his bever- Lee, supra, purchases See N.J.
age
at an OSI restaurant.
561;
supra,
96,
Iliadis,
191 N.J. at
A.2d 710.
Court,
prove
assert that he
this
Bozzi
could
Before
did
proposed class
loss
causation on behalf of his
ascertainable
theory
theory
through
price-inflation
such as the
the use
a
Dugan. Instead,
category
he focused
a
of OSI
in
asserted
original
his
com
customers
as a subclass in
restaurant
identified
who,
single
of a
visit to
OSI
in the course
plaint; customers
restaurant,
prices
beverages
for
charged
were
different
that,
brand,
discovery,
in
type,
represents
volume. Bozzi
same
prices
class
produced receipts documenting
paid
each
OSI
price-shifting claim and that he is there
who makes the
member
charged
two
position
prove
each claimant
fore in a
OSI
beverage
single
in a
visit. Bozzi also
prices for the same
different
were
can
that class members
unaware
states that he
demonstrate
price, they
be
purchasing
beverage
at one
would
that after
beverage.
charged
subsequent
or
more
a second
analysis,
do not
purposes
For
class certification
we
determine
give
if
price-shifting allegations,
proven,
Bozzi’s
would
whether
yet
challenged in
That claim has not
been
rise
a CFA violation.
motion,
summary judgment
and the merits
a motion to dismiss or
Iliadis,
appeals.
in
of that claim are not before the Court
these
supra,
710;
v. Graceland Sales
191 N.J.
922 A.2d
Olive
Corp.,
(1972).
182, 189,
only
61 N.J.
With (a). requirements of Rule 4:32-1 The the four class satisfies ounces, pints may beverage or half- of a measured “volume'' be pints, or in other units. *34 clearly claim, includes claimants.12In numerous Bozzi’sCFA there questions relating common pricing are fact practices OSI’s question and at least one common increasing the law—whether price beverage during of a a customer’s restaurant visit without informing practice the customer constitutes unlawful under allegations N.J.S.A. 56:8-2. When the class’s are to the limited claim, price-shifting typical CFA Bozzi’s claim of the claims class; by supported by receipt, asserted Bozzi contends during Shade, a 2010 visit to the Carrabba’s Maple restaurant beers, charged prices he was two different for Peroni the second price higher Finally, the first. than the record indicates that “the representative parties fairly adequately will protect the inter- 4:32—1(a). ests of the class.” R. limited,
As Bozzi’s CFA claim also satisfies Rule 4:32- 1(b)(3)’s predominance requirement.13 With the assistance of records, claimant-specific both parties position will be in a determine the dates and locations of the visits at may issue and be identify able to prices. the reasons the inconsistent if Even discovery proves price disparity alleged by class single corporate policy derived not from a but from restaurant- specific happy pricing practices, hour or other may the trial court position practices be in a disputed to evaluate the on a restaurant- by-restaurant plaintiffs prove If practice basis. an unlawful under CFA, evidence, receipts, in combination with may other support finding of ascertainable loss and causation. trial clearly court would be confronted with the task of adjudicating 12During argument, proposed oral Bozzi’s counsel stated that the con- sixty-three sists of two hundred thousand OSI restaurant customers. isIt unclear applies by whether that estimate to the entire class certified the trial court or to price-shifting more limited class of claimants who assert the CFA claim. regarding predominance Bozzi's contention is limited to claimants who can brand, they paid prices type, demonstrate that different for the same and volume beverage any in the same visit to an OSI He restaurant. has not identified proving method ascertainable loss and causation for other members of the class certified the trial court. *35 questions of does questions, but the existence individual
individual
Lee, supra,
finding
predominance.
203 N.J.
preclude a
of
See
526-28,
notwithstanding
(finding predominance
561
at
A.3d
Cadillac, supra,
at
questions);
93 N.J.
430-
of individual
existence
(same).
35,
Such fair efficient provide superior method “for the and class action Iliadis, 4:32—1(b)(3); controversy.” also adjudication R. see supra, 114-15, (noting superiority inquiry 191 N.J. at A.2d 710 of of available methods consideration alternative involves informed issue, action comparison of fairness of class adjudication of each methods, efficiency comparison of of each and alternative method). claim involves modest individ price-shifting CFA Bozzi’s forum. brought in an alternative unlikely to be ual claims that are (“[T]he Iliadis, supra, class 191 N.J. at See for those opens the courthouse doors equalization function action’s alone.”). efficiently Those claims would not be who cannot enter basis. on an individual resolved will not of class as limited
Importantly,
certification
respond
plain-
deprive
opportunity
evaluate
OSI
appears that
representation,
Bozzi’s
it
allegations. Based on
tiffs’
indicating
and when each
parties
documents
where
have
brand, type,
same
disparate prices
charged
was
member
visit. OSI will be
beverage on
restaurant
the same
and volume
allegations
practices
plaintiffs’
of unlawful
position
in a
to contest
prices imposed
individual
respect to the
CFA with
under the
summary judg-
may argue in a
It
at various times.
restaurants
trial,
beverage
motion,
given
that a
restaurant’s
ment
and/or
not violate the
practices as a whole did
pricing or the restaurants’
compromising the
may
without
A limited class
be certified
CFA.
class action
proposed
Bozzi’s
CFA
proceeding.
fairness
superiority.
requirement of
4:32-l’s
meets Rule
sum,
requirements for class certification
Bozzi has met the
claim,
to claimants
if the class
limited
respect to his CFA
with
beverages of the same
prices for
charged different
who were
brand, type, and volume in
the course
the same restaurant visit.
We therefore reverse
trial court’s class
certification order and
Muise, supra,
remand
the certification of a redefined class. See
Super.
19, 64,
(affirming
371 N.J.
All who ordered more than one persons brand, the same type, during single volume Partners, visit to OSI Restaurant or Bloomin’ LLC, Brands, Inc., restaurant in date, New from 2004 to the Jersey January present *36 charged higher beverage and were for a second or of the same price subsequent during brand, and volume visit, ordered the same without notice of the type, change in prices. remand, certify solely On the trial court should the class purpose for of pursuing upon claims CFA based the defendant alleged practice charging restaurants’ a customer different prices brand, beverages during for type, the same and volume visit.14 the same restaurant
V.
A.
statutory
by
putative
The second
claim asserted
in both appeals
classes
is
based
the TCCWNA. That statute
in
prevent deceptive
was enacted
“to
practices
1981
in consumer
Cars,
Reynolds
Reynolds Co.,
contracts.”
Motor
Kent
Inc. v.
&
injunction, requiring
The trial court should also vacate the
OSI restaurants
beverages
following
to include
menus,
for all
on its
that was entered
its
prices
challenged
certification of the class based on the claims
that
entire class. OSI
injunction
argument
in this
and Bozzi offered no
appeal,
support
injunctive
Following
trial court’s
relief.
certification
the more limited class set
injunctive
above,
forth
the trial court
consider
relief
may
any application
made on behalf of that class.
(2011).
428, 457,
Legislature
The
observed
A.3d 1027
207 N.J.
[f)ar
signs contain
contracts, warranties, notices and
provisions
too
consumer
many
though
rights
Even
these
are
provisions
which
violate the
of consumers.
clearly
legally
contract,
notice
unenforceable, their
inclusion in a
warranty,
invalid or
very
thinking
sign
enforceable, and for this
into
are
or
deceives a consumer
they
rights.
to enforce his
the consumer often fails
reason
(1980).]
[Sponsor's
Statement A. 1660
reflects,
Legislature
history
legislative
As the TCCWNA’s
rights
merely imposed
but
recognize any
consumer
new
“did
clearly
con
acknowledge
established
obligation
on sellers
inserting
or
posting
rights
provided remedies
sumer
Restaurant.com,
Inc., 214
contrary to
Shelton v.
provisions
law.”
-16);
(2013)
419, 432,
(citing
N.J.S.A. 56:12-15
A.3d 544
N.J.
620, 641,
Indus., L.P.,
Alloway
149 N.J.
v.
Marine
see also
Gen.
(1997) (setting
purpose
provisions of
forth
The TCCWNA his offer bailee shall in the course of business lessor, creditor, lender or seller, No into consumer or or enter written consumer consumer prospective any any sign or after the give notice or written consumer warranty, contract or display any that violates any clearly of this act which includes any provision effective date legal right lessor, seller, creditor, or of a consumer responsibility established at the time the offer is State or Federal law or bailee as established lender sign given signed or or the notice consumer contract is warranty, or the made displayed. [N.J.S.A. 56:12-15.] against range a defendant imposes a of remedies TCCWNA statute: who violates the *37 aggrieved to the of be liable violates the this act shall who provisions Any person damages, or for or both less than actual for civil of not consumer a penalty $100.00 together fees with and court consumer, of reasonable attorney’s the election civil in a court of the consumer in a action This be recoverable costs. may against jurisdiction of the consumer or as a counterclaim by part competent assignee aforesaid, who or creditor, lender or bailee seller, lessor, any right to to the court aggrieved shall have the petition him. A consumer also [N.J.S.A. 56:12-15] and the a contract which violates provisions terminate void the contract. in its discretion court may [N.J.S.A, 56:12-17.] to the class are relevant requirements of the TCCWNA Two First, in to appeals. order on these issues raised certification
69 remedy TCCWNA, obtain a plaintiff under the a must be an “aggrieved consumer”—a consumer who satisfies elements the TCCWNA. N.J.S.A. 56:12-17. The “con TCCWNA defines leases, borrows, sumer” “any buys, as individual who any or bails money, property or is primarily personal, service which for family or purposes.” household N.J.S.A. 56:12-15. specifically TCCWNA does define what makes a “con “aggrieved purposes
sumer” an
consumer”
of N.J.S.A. 56:12-
however,
settings,
17.
several
courts have
examined
interac
parties
tion between the
nature of
or
the contract
other
writing
plaintiff
in
order
whether a
determine
entitled
See, e.g.,
relief
under
TCCWNA.
Manahawkin Convalescent v.
O’Neill,
(2014)
99, 125-26,
N.J.
(analyzing
217
A.2d 7 Act, Sales N.J.S.A. 17:16C- right Retail Installment lished” under N.J.Super. 278-80, 50); Bosland, supra, 942 933 A.2d 396 prima proof that defendant presented facie (holding plaintiff registration buyers for vehicle fee dealership overcharged car “clearly regulation estab violated consumer contravention right). lished” accordingly requires a standard “clearly established” contract!,] “written
case-specific whether a consumer evaluation responsibili sign” legal right or warranty, ... or violates a notice by or law at the “clearly “State Federal ty that was established” signed or the or consumer contract is made time the offer given displayed.” or 56:12-15. warranty, sign is N.J.S.A. or notice results, depending on the inquiry may give to different That rise see, e.g., Ibid.; offer, contract, warranty. Mattson timing of the Co., F.Supp.3d (D.N.J. 2015) 393 v. Aetna Life Ins. statutory right subjected not to be (ruling plaintiffs asserted allegedly “clearly when subrogation was not established” claim sent). offending notices were
B.
trial courts
backdrop,
consider whether the
Against that
we
predominance requirement when
properly applied Rule 4:32-1’s
by
by
plaintiffs and
proposed
they certified the classes
respective TCCWNA claims.15We
adjudication
of their
Bozzi
presentation
restaurant’s
not determine whether
defendant
do
issue,
Jersey
by
Civil
raised
amici curiae New
broader
We do not reach the
Industry
by
Jersey
but not
Association
Business
Justice Institute and New
granted
a method of
any party,
should ever be
as
class certification
whether
Lazo,
9, 25,
a menu gives that omits rise to a TCCWNA claim. however, predominance In inquiry, beyond plead look we ings legal plaintiffs’ factual examine the bases supra, Lee, 526-28, TCCWNA claim. See 203 N.J. A.3d 561 claim); Iliadis, supra, (applying predominance standard CFA (establishing 191 N.J. requirements A.2d 710 Hy predominance analysis); in class certification see also In re drogen Litig., (3d Peroxide Antitrust 552 F.3d 310-12 Cir. 2008) case). (analyzing predominance in context antitrust appeals, plaintiffs by failing these contend that to list menus, prices beverages on the the defendant restaurants plaintiffs’ “clearly legal rights violated established” and defendants “clearly legal failed to meet responsibilities their established” 56:8-2.5; they under N.J.S.A. required contend that the statute “plainly beverages defendants to mark” they “by a sold stamp, tag, sign” beverages label or in the location where the were offered for sale. Plaintiffs assert that when defendant restau employees rants’ presented putative menus to members class, they TCCWNA “offer[ed]” contracts that violated N.J.S.A. damages 56:8-2.5 those consumers. Plaintiffs seek an award of imposition per and the violation civil penalties on defen $100 alleged dants violation. each TCCWNA
We conclude have not predomi met the requirement respect nance of Rule 4:32-1 with to their TCCWNA First, claims in appeal. requirement either plaintiff that a be “aggrieved pursue consumer” order to claim TCCWNA gives range questions regarding rise to a of individual the interac tion By very between the customer and the server this case. its terms, “contracts],” “warrantees],” the TCCWNA addresses “no tice[s],” “sign[s]” apply and does not when a defendant fails to 56:12-15; provide writing. required the consumer with a N.J.S.A. Session, N.J.Super. 520, 540-41, see also Jefferson Loan Co. v. 2008). Here, 169 (App. writing Div. plain on which that, rely tiffs is the restaurant menu. Plaintiffs at a concede minimum, prove or presented claimant must that he she was visit to restaurant during his or her the defendants’ with a menu liability TCCWNA. the defendant’s under the to establish in order receipts or customer cannot be resolved inquiry That critical liability accept plaintiffs theory of if we Even other documents. TCCWNA, testimony of the individual claimant under the necessary prove plaintiff would be another witness “aggrieved requirements and is thus an statute’s satisfies the consumer.” bur- suggestion, they cannot meet their
Contrary to plaintiffs’ that TGIF by presenting evidence the TCCWNA den under The train- to customers.16 to hand menus servers were instructed any *40 plaintiffs rely prove do not that ing on which documents menu, much demonstrate the received a less individual consumer putative of any single member the between critical interaction Moreover, agree offending menu. we do allegedly and the post-verdict process claims plaintiffs the that the with determining an element that provides forum for appropriate an TCCWNA, TCCWNA. Under the liability essential to under the at trial. prove the statute’s elements plaintiffs have the burden 56:12-15, N.J.S.A. -17. minimum, not, prove that at a
Accordingly,
who does
a claimant
satisfy
elements
or she
a menu cannot
he
received
In that critical
“aggrieved
consumer.”
and is not
TCCWNA
dissenting colleague
plaintiffs
entitled to an inference
Our
contends that
are
policy
patrons
corporate
received
complied
and that
TGIF's servers
with
"that
predominance inquiry, we do not
In the
menus.'' Post at
Second,
question
whether the defendant restaurants
“clearly
legal right”
violated
established
a “clearly
or
established
legal
...
responsibility”
specter
disparate
raises the
for
results
different members
the class. The
published
sole
con
decision
struing
56:8-2.5,
plaintiffs’
source of
“right,”
asserted
N.J.S.A.
dealership’s
car
addresses
used
sale of
posting
vehicles without
prices
Johnny
or
dealership’s
their
near them in the
lot. In re
Popper, Inc., supra,
N.J.Super.
No
TGIF’s “clearly under N.J.S.A. 56:8-2.5 not were claims, brought established” before they rights their those responsibilities were confirmed when an Appellate panel Division affirmed denial the trial court’s of TGIF’s motion to in an dismiss that, unpublished They decision. contend of the wake that decision, application N.J.S.A. 56:8-2.5’s to restaurant was menus “clearly purposes established” for of the TCCWNA. decision, however,
In its Appellate Division did not Dugan plaintiffs’ hold that TGIF violated the “clearly established” right meaning panel of within the the TCCWNA. The determined Dugan pled of only plaintiff adequately that violations the CFA 4:6—2(e); it and the TCCWNA under the lenient standard Rule all, [Dugan] any, properly prove can or “[w]hether noted fairly is not before us.” Even if that decision could be rights clearly plaintiffs’ to establish under N.J.S.A. construed Dugan 56:8-2.5, plaintiffs’ apply it not to all members of the would class, plaintiffs’ request which at was to include claimants defined present. have who restaurants from 2004 to the Plaintiffs visited respect of their predominance with to that element established TCCWNA claim.
Moreover,
lacking beverage prices
if
to
even
a menu
were
“contract,”
“sign”
“warranty,”
or
within the
constitute a
“notice”
TCCWNA,
was
meaning of
it is far from
that the statute
clear
As the
apply
plaintiffs
as
contend that
it should.
intended
Dugan
concede,
prove
plaintiffs
if
that each
were
million
visits
a member
the thirteen
fourteen
restaurant
warranting a
plaintiff
gave
rise to a TCCWNA violation
$100,
amounting
penalty
penalties
liable for
civil
TGIF would be
court could
than a billion
Plaintiffs assert that the
to more
dollars.
generally
4:49-1;
R.
penalty by
remittitur. See
see
reduce
(2016)
Grp.,
v.
226 N.J.
Accordingly, that in both v. TGI we hold Partners, LLC, plaintiffs have not Bozzi v. OSI Restaurant purposes class certification standard met Rule 4:32—1’s *42 claims, TCCWNA improperly granted and the trial courts class certification as to those claims.
VI. Fridays Inc., In v. modify TGI affirm and we Appellate judgment concerning Division’s class certification. We remand the matter to the trial for court the determination of the by plaintiffs Dugan individual CFA and claims TCCWNA asserted and Fox. Partners, LLC,
In Bozzi part v. OSI Restaurant we affirm in part and in reverse the trial court’s class certification determina- tion. We remand the matter to the trial court for the certification definition, of a class with a revised class as set forth in this opinion, solely purposes plaintiffs’ claim CFA based alleged price-shifting OSI’s practice, the determination the individual claim by plaintiff TCCWNA asserted Bozzi. LaVECCHIA,
CHIEF JUSTICE RABNER and JUSTICES FERNANDEZ-VINA, join TIMPONE JUSTICE opinion. PATTERSON’S separate, dissenting opinion.
JUSTICE ALBIN filed a JUSTICE participate. SOLOMON did not ALBIN, dissenting. JUSTICE
Today’s denying plaintiffs right decision to proceed with a class-action against Fridays, lawsuit TGI Inc. and Carlson Restau- TGIF) rants, (collectively, Inc. is at odds with of this decades jurisprudence steepens path Court’s justice for consum- ers with small claims. The decision will it make more difficult for a many class of thousands of collectively defrauded consumers to act pursuit of a remedy against common corporate wrongdoer. knowing violation of Jersey the New Consumer Fraud Act (CFA), -206, N.J.S.A. 56:8-1 to beverage prices TGIF does not list pursues on its policy menus. TGIF this knows—through because it *43 average, on pay, will more study—that $1.72 a consumer its own Plaintiffs placed menus. beverage prices if are per meal TGIF, in violation of listing beverage prices allege by not 56:8-2.5, patrons TGIF illicit benefit while reaped an N.J.S.A. sure, charge is free to loss. To TGIF be suffered an ascertainable so, all comply—like it must if it does it wishes. But whatever the law. restaurants—with economic wherewithal single not have the
A consumer does However, giant claim. against corporate over litigate $1.72 banding together in a similarly consumers defrauded thousands against” corpo- gain equality a defiant “a measure class action 496, 517-18, Co., 203 N.J. adversary. v. Carter-Reed Lee rate (2010). presented a have majority, I believe Unlike jurispru- our class-action theory CFA and legal under the viable most light favorable Looking the evidence dence. engaged in an uncon- stage, at this TGIF plaintiffs, as we must loss to an ascertainable practice that caused scionable commercial per loss to be meal has calculated that patrons. $1.72 its TGIF has conclud- beverage prices on menus. TGIF are not listed when exceeding purchases make that uninformed consumers ed Thus, paid. each class would have price they otherwise “fair” what the loss is the difference between member’s ascertainable paid had patron would have TGIF what the patron paid in fact sale, required by N.J.S.A. point of as beverage prices at the listed 56:8-2.5. reality. is no stark There setting us lies a before rights of to vindicate the for a class action substitute
reasonable complaints not be individual patrons. will victimized There TGIF’s majority’s loss of to recover a $1.72. in small claims court filed of the class court’s certification to overthrow the trial decision holding judicial TGIF account- no action that there will be ensures given has TGIF a majority also wrongdoing. The for its able violating CFA and unde- to continue perverse incentive advantage competitor served over that comply restaurants with our consumer-fraud laws. respectfully
I therefore dissent.
I. A. TGIF, Plaintiffs against alleging filed a class-action lawsuit systematic engaged the chain restaurant in a scheme to violate pursuit higher profits.1 Consumer Act Plaintiffs Fraud claim *44 deliberately beverage that TGIF list on prices does not its menus higher pay prices induce[ ] “to to than for consumers reasonable beverages.” beverage prices TGIF those does not list its on menus, 56:8-2.5, notwithstanding requires N.J.S.A. which that the “selling merchandise, price” including beverages, and be food “plainly point ... at the marked where the is merchandise offered for sale.”2 25, 2011, per opinion
In a
curiam
on
Appel-
issued October
the
declared,
law,
Division
TGIF’s
late
as
failure
matter
beverage prices
list
on its
rejecting
violates
In
menus
the CFA.
argument,
TGIF’s
Appellate
engages
Division
“TGIF
stated:
legal gymnastics
attempt
in
in a
us
futile
convince
that bever-
ages are not
within
in
embraced
the definition of merchandise
Court,
At
argument
N.J.S.A. 56:8-2.5.”
oral
before this
TGIF
by
Appellate
ruling.
conceded that
it was bound
Division’s
ruling
controlling
Because that
is the
law
not contested
Court,
only
before this
TGIF is
violation of
in
the CFA. The
remaining
is whether
issue
the CFA violation—the failure to list
stage,
allegations
complaint
At this
in the
evidence
record
be
must
light
plaintiffs,
seeking
in the
viewed
most favorable to
who
class
are
certifica-
Lee, supra,
tion.
TGIF does not rather, proper is not a vehicle its is that a class action defense However, by practices. by patrons victimized TGIF’s be used consumer, defrauded, costly litiga- engage in if cannot single even most, Only through a dollars. involving, at several over a sum tion similarly of small claims aggregates action that thousands class proceed. lawsuit patrons a viable defrauded can B. certification, plaintiffs rely support application In its analyzed con- marketing commissioned TGIF on studies study, pricing.3 In TGIF tested responses to one sumer menu thirty restaurants—fifteen by patrons pricing decisions made not. on and fifteen did beverage prices menus that listed prices alcohol are study that when statistical revealed TGIF’s on a menus, average per customer loses on placed $1.72 TGIF down” to the patrons informed “traded study, In meal. price they could afford. optimal “think- studies, price “fair” TGIF determined other *45 with and without alcoholic purchase meals price
twice” for the price at apparently, is the beverages. price, The “think-twice” because patrons’ purchases and decline go off in heads which bells From thresholds.” their “check not want exceed consumers do beverage prices on placing not beauty of perspective, the TGIF’s not patrons do is that uninformed in violation the CFA menus price and the “fair” purchases have exceeded know when their price. “think-twice” reached the Partners, specializes a firm that with Simon-Kucher & TGIF consulted leading pricing consultan- strategies world’s
pricing refers to itself as "the and Partners, Pricing, http://www.simon-kucher.com/en/ cy." & Simon-Kucher 14, 2017). (last Sept. pricing visited through TGIF study commonly learned what is known—that an pricing informed consumer will rational make decisions. Be- pricing cause experienced restaurants “with alcohol on the menu a [per-person average] down,” guests as [$]1.72 decline traded TGIF corporate pricing made the that “alcohol decision will not be words, placed on the In menu.”4 other TGIF that it determined pay did to conform to law that it profitable was more capitalize ignorance patrons. its From own TGIF’s analysis statistical comes the calculation loss to its ascertainable patrons gain itself. passing requiring N.J.S.A. 56:8-2.5 price that the of an marked,” “plainly
item Legislature be empower intended to knowledge. pursued, consumers with TGIF has and continues to pursue, cynical a corporate policy of profiteering violating from that statute.
II.
The
Act
Consumer Fraud
makes it unlawful for a business to
engage in
practice,”
an “unconscionable commercial
N.J.S.A. 56:8-
2,
merchandise,
such
selling
including
as
beverages,
food and
sale,
listing
price
without
when it is offered for
N.J.S.A. 56:8-2
“provides private
.5.5 The Act
cause of action to consumers who
by
are
practices
marketplace.”
victimized
fraudulent
in the
Gonza
Corp.,
(2011).
lez v. Wilshire Credit
207 N.J.
or located at the where the merchandise is offered for sale.” *46 inadequate to Attorney General—perhaps due resources— - powers, to see N.J.S.A. 56:8-3 not exercise his enforcement does -20, here, -11, -18,
8, compel as to chain to -15 to restaurants by statute. price-listing requirements with mandated comply prove satisfy that a business plaintiff three elements A must must plaintiff show liable consumer fraud. is practice,” that engaged in “an she suffered an business unlawful loss,” causally is the “ascertainable loss” “ascertainable supra, Gonzalez, 576, practice. at N.J. to the unlawful related 561); Lee, supra, (quoting 203 N.J. at see 25 A.3d proofs, If she is plaintiff succeeds her also N.J.S.A. 56:8-19. relief, damages, equitable treble legal entitled and/or attorneys’ fees. N.J.S.A. 56:8-19. reasonable that, study average, establishes on TGIF’s own commissioned beverages per purchased paid more meal patrons $1.72 who TGIF prices if on menus. they have had been listed TGIF than would constitutes, per loss average, on an ascertainable That $1.72 meal, practice of causally unlawful person, per related TGIF’s supra, 561; Lee, 4 A.3d disclosing See 203 N.J. prices. not also N.J.S.A. 56:8-19.6 see
According study, money complies if with will it to the TGIF lose prices its If TGIF by listing beverage on menus. the CFA law, It its options. then has two can maintain conforms to the it rather pricing, consumers will trade down and informed current as pegged what TGIF has purchase drinks that exceed than prices for patrons per will meal. it can set price pay Or “fair” patrons beverages at which will trade and meals rates scenario, if TGIF the consumer benefits Under down. either of the CFA. follows the mandate they allege complaint, plaintiffs’ that TGIF's second amended designed beverages prices ... offering to ...
practice certain without charge slightly prices on some drinks without excessive [TGIF] enable sales; charging grossly prices losing practice of excessive [TGIF's] facilitate charging price different discrimination on other and facilitate and/or drinks: arbitrary product prices criterifa]. for the based undisclosed same
81
Thus,
patrons
purchase
by
TGIF’s
who
drinks are victimized
beverage prices
the
unlawful omission
on
the
menus. TGIF sets
pricing
beverages
its
overall
of meals and
based on its decision
CFA,
beverage prices
to list
on
Importantly,
menus.
under the
merely
practice
have
show that the unlawful
caused
Lee, supra,
561;
522,
the
loss.
ascertainable
See
4
N.J. at
A.3d
Operating Eng’rs
Int’l Union of
Local No. 68
v.
Welfare Fund
Co.,
372,
(2007).
389,
Merck &
192 N.J.
III. only A class is permit large action vehicle that will patrons number of together defrauded TGIF to band and Lee, supra, prosecute equal a lawsuit on with terms TGIF. See 517-18, correctly N.J. at A.3d 561. The trial court certified purchased unpriced the class customers who non- alcoholic and beverages company-owned alcoholic Jersey New TGIF restau- January rants July between 2014 because the requirements for class certification under Rule 4:32-1 have been met. dispute:
Certain
are not in
beverage-
issues
class of TGIF
purchasing
joinder
members,
is
consumers
too numerous for
of all
4:32—1(a)(1);
questions
R.
“there are
of law or fact common to the
class,”
4:32—1(a)(2);
R.
there are claims
“typical”
and defenses
class,
4:32—1(a)(3);
representative
R.
party
fairly
“will
class,”
4:32-1(a)(4).
adequately protect
the interests of the
R.
however,
disagree,
parties
questions
whether “the
of law
or fact common to
members of the class predominate
any
over
questions affecting only individual members” and whether “a class
superior
action is
to other available methods for the fair and
adjudication
4:32—1(b)(3).
controversy.”
efficient
See R.
rule, predominance
our court
Under
does not mean that “all
among
[must]
issues
be identical
class members.” Iliadis v. Wal-
Stores, Inc.,
88, 108,
(2007).
Mart
191 N.J.
the entire
manner.” Id. at
precisely
the same
[is]
affected
member
Indeed,
108-09,
that individual
it is almost certain
The common issue
beverage prices in violation of N.J.S.A. 56:8-2.5.
not list its
does
of
class suffer
is that all members
the
common issue of fact
The
listing beverage prices. The
practice of not
from TGIF’s unlawful
violation of the
patrons resulting from TGIF’s
loss suffered
beverage purchasers,
of
dispersed
the entire class
CFA is
over
greater
losses.
patrons incurring
or lesser
with individual
is not unusual
must made
loss determinations
be
That individual
Lee, supra,
in
the class-action
example,
in
For
class actions.
pill
was
dietary supplement
called Relacore
alleged that a
lawsuit
through
mass-
Jersey
various
of New
consumers
sold to thousands
504, at
in violation of
CFA. 203 N.J.
marketing deceptions
predomi-
of law and fact
found that common issues
A.3d 561. We
nated,
concerning each
notwithstanding
questions
that individual
528,
at
to
Id.
loss had
be addressed.
class member’s ascertainable
questions would
recognized that the individual
561. We
purchased by a class
of Relacore
number
bottles
“[t]he
include
bottle,
was
member,
a refund
price of each
and whether
corporate
from
could come
That information
received.” Ibid.
purchase.
proof
through
or
a customer’s
records
defendant’s
not
questions posed” did
that “the individual
Ibid. We concluded
Ibid.
present
“insuperable
obstacle.”
supra,
Iliadis,
of a
the certification
Similarly, in
we addressed
Stores,
alleged
Inc. who
hourly employees of Wal-Mart
class of
statutory right to rest
they
their contractual and
were denied
96,
that the
We held
191 N.J.
A.2d 710.
and meal breaks.
met,
though certain individual
predominance prong was
even
questions persisted,
including:
employee
how much time each
off-the-clock;
worked
employees
“whether
worked off-the-clock
expectation
compensation;
with the
damages
how much in
employees
presence
suffered.” Id. at
922 A.2d
The
710.
those issues
not
did
defeat
certification of
class
because
common
qualitatively
significant.
issues were
more
Id. at 112—
13,
are more in difficult than those faced Lee and cases, As Iliadis. was true those the common issues of law and predominate any fact over individual ones. addition, unquestionably “superior” any a action fairly adjudicating
other means of against claims TGIF. The many patrons defrauded will file actions small claims court supra, Lee, monetary to recover minor their See losses. 203 N.J. Lee, A.3d 561. As discovery we noted in “[t]he costs, fees, litigation including expert-witness a make lawsuit against corporate adversary a costly determined undertaking.” A “provide[s] Ibid. class action group persons, diffuse whose litigate claims small individually, are too opportunity engage in power.” collective action and balance scales Id. *49 528-29, Moreover, 4 likely at A.3d 561. will TGIF not reverse its corporate policy disregard of just willful if of the CFA a few Here, patrons they overpaid. seek relief the small amounts will there be a class action or no all. action at
IV. A. patrons The statistical establishing evidence that suffer a com- by mon ascertainable loss TGIF’s beverage of prices nondisclosure on menus from type comes TGIF’s own of files. The statistical foreign jurisprudence. evidence offered here to our Tyson Foods, Bouaphakeo, In Inc. v. the United States Su preme approved representative Court of use a statistical or
84 workers, they that of who claimed
sample members a class wages, basis for a class-action on to establish the were shorted their 1046, -, -, 1036, 194 136 law suit. 577 U.S. S.Ct. (2016). 124, case, Tyson employees of 134-35 In L.Ed.2d the Fair Labor Standards Act brought a class action under Foods 219, (FLSA), employer claiming §§ 29 that their U.S.C.A. 201 rightful wages they the time them their overtime denied at -, donning doffing equipment. Id. expended protective and 1041, Tyson at at 129. Foods contended 136 S.Ct. L.Ed.2d gear employees protective worn rendered variance spent employee any calculation time each impossible uniform taking gear, employees’ putting on “the off the therefore on sufficiently similar to be resolved a classwide were not claims 1042-43, 1046, at -, at at 194 L.Ed.2d Id. 136 S.Ct. basis.” 134-35. disagreed. plaintiffs to Supreme permitted The Court Court average analysis
rely expert on that determined statistical necessary protective employees change into taken for time -, 1044-45, gear. 133. Id. at 136 S.Ct. at L.Ed.2d facility, employee in the did similar worked same “each Because experiences work, policy,” of a paid the same and was under was as to employees “probative representative subset at -, S.Ct. at of all them.” Id. experiences L.Ed.2d 137. analysis to calculate dam market research
Courts have allowed premium price a based consum ages for misrepresentation about its resulting company’s paid ers from setting Inis re product. example in the class action One such Litigation, 2015). (S.D.N.Y. EZ 304 F.R.D. Scotts Seed brought case, York class action in California New consumers laws, alleging that Scotts’ respective state consumer under their as with half the water description grass of their “50% thicker (internal ordinary misleading. at 404-05 was Id. compared to seed” omitted). stage, plaintiffs’ At class certification quotations *50 to isolate the damages specifically a presented model expert money—or “price additional amount of premium”—that consum paid alleged misrepresentation. ers on based Id. at 414. The States District Court held proposed United that the model satis showing damages fied the standard for on could be measured Moreover, a 415. classwide basis. Id. at while the Scotts Court emphasized that under the federal expert standard an was not “perform required to analyses his stage,” the class certification point compelling it did to evidence that provided had been support of price premium, the actual existence a including suggesting premium “internal documents existence based Goldemberg [allegedly on the false at 414. claim].” Id. See also v. Cos., Johnson & Johnson Consumer 317 F.R.D. 396-97 (S.D.N.Y. 2016) (holding damages measurable classwide basis presented portion price where had model that isolates company’s alleged misrepresentations attributable to about its products).
Here, TGIF’s internal documents loss determined the attribut- beverage prices. able when it did not list consumers The market Goldemberg analysis by experts conducted in Scotts and are comparable justify the market research used TGIF its not listing beverage prices.
B. studies, on marketing apparently Based its TGIF made a busi- beverage ness decision not to prices higher list for the sake of profits, notwithstanding policy that its violated CFA. Certain- ly, sufficiently compelling statistical that was clear evidence guide shaping TGIF in its policy equally business relevant in this class-action practice suit to establish that TGIF’s unlawful average per person, per caused an ascertainable loss on of $1.72 meal.
Plaintiffs have established that common issues of law fact predominate over individual ones and that a class action is not only superior only but is the for vindicating vehicle vehicle rights aggrieved patrons.
86
V.
theory—a
advancing a “fraud-on-the-market”
not
Plaintiffs are
60,
cases. Ante at
171
theory
applies in securities
typically
market,
stocks
price
the
open securities
A.3d 620. In an
Speiser,
v.
806
depends
material information. Peil
on all available
1986).
(3d
1154,
theory
1160
The fraud-on-the-market
F.2d
Cir.
misleading
by
statement
recognizes
the issuance
a material
Inc. v.
of its stock.
Basic
company
pricing
will influence the
See
a
Levinson,
978, 989,
194,
241-42,
224,
99
108 S.Ct.
L.Ed.2d
485 U.S.
(1988).
case,
stock
premise,
on that
a securities-fraud
215
Based
they
showing that
purchasers
pursue a
claim without
can
fraud
misrepresentations.
on
Ibid. Under the fraud-on-the-
relied
applies to
presumption of
approach, a
reliance
market
rebuttable
misrepresen
satisfy
requirement
defendant’s
the causal
between
fraudulently
of the stock
plaintiffs purchase
tation and
989-92,
243, 244-47,
99 L.Ed.2d
price. Id. at
108 S.Ct.
inflated
Corp.,
not allow the
we did
at 216-18.
Kaufman v. i-Stat
“prove
action to
the element
plaintiffs in a common-law fraud
presumption
on
market.” 165
through
of a fraud
reliance
(2000)
added).
94, 97, 118,
(emphases
N.J.
plaintiff prove an ascertainable than it should have been as a higher was charged for Vioxx price marketing campaign.” 192 N.J. at fraudulent of defendant’s result There, single plaintiff 1076. “a intended use expert opine pricing who would about the effect on of the market ing campaign engaged.” (emphasis in which defendant Ibid. add ed).
Here, plaintiffs rely “single expert” do not on a to establish the Instead, price statutory plain- effect of TGIF’s violation. See ibid. presented study tiffs have commissioned TGIF that calcu- *52 patrons beverage loss to prices lates the ascertainable its when on study are not own is listed menus. TGIF’s as direct offered and, stage, procedural at this is a evidence entitled to deference as statistically by patrons. accurate calculation of the loss incurred Although light must the evidence be viewed in the most favorable plaintiffs, majority negative to the draws inferences to cast doubt validity study. Significantly, merely on the of this TGIF’s case is stage, plaintiffs the are to intro- class-certification and entitled expert-witness testimony duce to further bolster claims of their study. loss ascertainable based TGIF’s Moreover, majority suggesting is if is mistaken it that the See, e.g., protect price CFA gouging. does not consumers from 56:8-33(b) scalping N.J.S.A. (prohibiting ticket at exorbitant rates).7 price of purpose requiring The of that the be merchandise pursuant point listed of sale to N.J.S.A. is to 56:8-2.5 allow making purchases. consumers to make informed decisions In- deed, history legislative very of N.J.S.A. 56:8-2.5 makes this Sponsor’s (1972) (“Consumers point. See A. Statement to right a price they have all purchase to know the of items wish to .... price Clear indication of the of all will merchandise aid in 56:8—33(b) provides: N.J.S.A. person registered purchase No other than a ticket broker shall resell or with place resell intent to a ticket admission to a a entertainment at $3.00, price premium maximum excess 20% the ticket whichever greater, plus registered lawful taxes. No ticket broker shall resell or purchase place to a with the intent resell ticket for admission to a premium price paid acquire entertainment at a in excess of 50% of the
ticket, plus lawful taxes. discriminatory practices capricious pricing sales preventing merchants,”). greater number victims of a CFA
Additionally, right remedy. to a fact that The not diminish violation should pa- of victimized large discrete class presented plaintiffs have less, more, compelling for class case this case makes trons certification.
VI. plaintiffs majority’s conclusion that have disagree with the I also Contract, out a claim under Truth-in-Consumer make failed (TCCWNA), Warranty Act N.J.S.A. 56:12-14 to -18.8 Notice satisfy of a presented the four elements Plaintiffs have evidence (1) they are Plaintiffs have established TCCWNA claim.9 (3) (2) seller; menus, consumers; displays TGIF which TGIF is a TCCWNA; sign purposes a written notice or constitute (4) pricing on beverage the menus violates the omission N.J.S.A. 56:12-15. state law—N.J.S.A. 56:8-2.5. See “aggrieved are not custom- majority plaintiffs contends 56:12-17, pursuant positing have N.J.S.A. er[s]” *53 showing patrons TGIF evidentiary met of not the threshold 69-70, given purchasing their Ante at were menus before meals. conclusion, majority denies A.3d 620. To reach that the to be drawn of the most favorable inferences plaintiffs the benefit requiring its to hand each corporate policy TGIF’s of servers from is that TGIF’s stage, menu. At this the fair inference customer a Dugan case, 8Although here the the reason- the discussion is directed toward ing apply equally and conclusion to the Bozzi case. provides: N.J.S.A. 56:12-15 any his consumer or No ... course of business offer seller shall the .., sign display any ... prospective ... or or written notice consumer any legal right clearly any provision established which includes violates by responsibility ... as State or of a seller established of a consumer or signed is is or the consumer contract Federal law at the time the offer made given displayed. sign ... or or notice is or complied corporate policy servers with patrons and that received menus. Plaintiffs have satisfied showing their burden of that the patrons class of aggrieved here meets the definition of customers. Additionally, majority finding has erred in that TGIF’s obligation beverage pricing display clearly was not established statute, point-of-sale the CFA’s N.J.S.A. 56:8-2.5. Ante at 71- plain simple statutory A.3d 620. The language clearly required is beverage prices indicates that TGIF to list on its prohibits menus. N.J.S.A. 56:8-2.5 of sale with- “merchandise” price point out a any sale. Merchandise “include[s] wares, commodities, objects, goods, offered, anything or services 56:8—1(c). directly indirectly public or to the sale.” N.J.S.A. Clearly, beverages goods, least, are very beverages and at the “anything description meet the public offered ... to the Ibid, added). (emphasis sale.” TGIF did not have to for a wait published opinion by this Court to reach this common-sense conclusion. case, Appellate expressed this Division its confidence legislature
“if beverage intended excise sales restaurants ..., sweep from the CFA it plain have so in would done language necessity without degree advanced in either logic words, linguistics.” divining In other meaning Significantly, “merchandise” not rocket science. party no has argued us before that N.J.S.A. 56:8-2.5 does not mandate that a beverage restaurant list on its prices menus.
Incredibly, majority hints that N.J.S.A. 56:8-2.5 not may apply beverages by true, to the sale restaurants. If that were require N.J.S.A. 56:8-2.5 post would any restaurants to meal prices. merchandise, statutory Under the definition of is no there logical beverage distinction between food and served restau- hamburger rants. It cannot that a be is merchandise but a milkshake is not. *54 majority
The notes that it is unaware of Attorney whether the to compel General has taken action beverage restaurants to list pricing pursuant on to menus N.J.S.A. 56:8-2.5. Ante at a Attorney to enforce CFA 620. failure of the General The however, complying is is not that a restaurant
provision, evidence Indeed, power to individuals with the with law. the CFA vests general separate mecha- private attorneys as enforcement act as Court, Steinberg, supra, 361, 142 This 226 N.J. at A.3d 742. nism. meaning of moreover, authority to construe the has the ultimate 56:8-2.5, Appellate any if is doubt about the there N.J.S.A. majority certified interpretation, should have Division’s majority Bozzi class- Why remanded the separately. has the issue question if is a proceedings there for further certification case beverage prices on their place must about whether restaurants letting economy certainly is not advanced menus? Judicial support a statutory authority no proceed if is class action there claim. why Bozzi majority explain in the
Additionally, does injunction, which mandated it trial court’s case vacated the right beverage prices on menus. The list restaurants OSI comply with the compelling those restaurants equitable relief dependent was not requirements of N.J.S.A. 56:8-2.5 price-listing right equitable The See N.J.S.A. 56:8-19. on class certification. requires disclo- only on whether N.J.S.A. 56:8-19 depended relief menus, majority an issue that beverage prices sure trial court’s though it overturns the refuses to address even Last, to small claims application if of TCCWNA injunction. curiae, instrument, argued by amici is blunt an as this case too this issue. Legislature proper forum to address VII. rights major blow to consumer majority’s is a decision The decision ensures in both the CFA and TCCWNA. advanced of our by TGIF’s violation patrons victimized that thousands Additionally, meaningful remedy. no laws have consumer-fraud corporate policy of its has incentive to alter now little TGIF compliance with N.J.S.A. CFA. TGIF’s ignoring provisions point beverage prices be listed requirement that 56:8-2.5’s *55 may depend sale well Attorney whether the General exercis- powers es his to enforce our consumer-fraud laws.
For expressed, respectfully the reasons I dissent.