VINCENT DANIELS, individually and on behalf of a class, Plaintiff-Respondent,
HOLLISTER CO., a Delaware Corporation, Defendant-Appellant
Argued: October 21, 2014.
Approved for Publication May 13, 2015.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2310-12.
Brian J. Murray ( Jones Day ) of the Illinois bar, admitted pro hac vice, argued the cause for appellant ( Grossman, Heavey & Halpin, P.C., and Mr. Murray, attorneys; Richard A. Grossman, of counsel and on the briefs; Mr. Murray, on the briefs).
James Shedden ( Shedden Law ) of the Illinois bar, admitted pro hac vice, argued the cause for respondent ( Flitter Lorenz, P.C., and Mr. Shedden, attorneys; Cary L. Flitter, Theodore E. Lorenz and Andrew M. Milz, of counsel and on the brief; Mr. Shedden and Vincent L. DiTommaso ( DiTommaso Lubin, P.C. ) of the Illinois bar, admitted pro hac vice, on the brief).
Before Judges FISHER, ACCURSO and MANAHAN. The opinion of the court was delivered by FISHER, P.J.A.D.
[440 N.J.Super. 361] FISHER, P.J.A.D.
We granted leave to appeal an order granting class certification to consider whether the trial judge correctly held plaintiff [440 N.J.Super. 362] was not required to show the class members are " ascertainable." Although we doubt the " ascertainability" doctrine adopted by some federal courts should ever be incorporated into our jurisprudence, we conclude in this matter of first impression that " ascertainability" must play no role in considering the certification of a low-value consumer class action and, therefore, affirm.
Plaintiff commenced this lawsuit on behalf of himself and others similarly situated against defendant Hollister Co., a clothing retailer with outlets throughout the United States. Plaintiff alleges that in or around December 2009, defendant conducted a promotion by which customers purchasing at least $75 of merchandise were given a $25 gift card for use in its stores and on its website. Plaintiff alleges that even though these transferable gift cards possessed " no expiration date," defendant voided all outstanding cards on January 30, 2010. Plaintiff alleges a gift card, which stated it had " no expiration date," was dishonored when presented by him at one of defendant's stores in New Jersey on January 22, 2011.
Claiming in-store signs during the promotion asserted that " $25 gift card expires 1/30/10," but also acknowledging some cards expressly stated they had " no expiration date," and others were silent in that regard, defendant admits that as January 30, 2010 approached it " sent emails to customers who had registered their email addresses to remind them of the upcoming expiration date." Notwithstanding defendant's factual assertions, we review an order granting class certification by according plaintiff " every favorable view" of the complaint. Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 96, 922 A.2d 710 (2007) (quoting Riley v. New Rapids Carpet Ctr., 61 N.J. 218, 223, 294 A.2d 7 (1972)); see also Lee v. Carter-Reed Co., 203 N.J. 496, 518, 4 A.3d 561 (2010); Int'l Union [440 N.J.Super. 363] of Operating Eng'rs. Local No. 68 Welfare Fund v. Merck & Co., 192 N.J. 372, 376, 929 A.2d 1076 (2007) (hereafter " Merck " ).
Accordingly, we proceed on the assumption that the facts contained in the complaint are true and that, as of January 30, 2010, defendant began and will continue to dishonor $25 gift cards given out in December 2009 despite representations at the time that the gift cards would not expire.
Our courts not only liberally indulge the allegations of the complaint but also " liberally construe" Rule 4:32-1 in favor of class certification. Iliadis, supra, 191 N.J. at 103, 922 A.2d 710 (quoting Delgozzo v. Kenny, 266 N.J.Super. 169, 179, 628 A.2d 1080 (App.Div. 1993)). In Varacallo v. Massachusetts Mutual Life Insurance Co., 332 N.J.Super. 31, 45, 752 A.2d 807 (App.Div. 2000), we said that in the context of consumer transactions, " class actions should be liberally allowed . . . under circumstances that would make individual actions uneconomical to pursue." In short, as the Court made clear in Iliadis, " a class action 'should lie unless it is clearly infeasible.'" 191 N.J. at 103, 922 A.2d 710 (quoting Riley, supra, 61 N.J. at 225, 294 A.2d 7).
In addition to this liberal approach, courts tasked with determining whether a class should be certified must focus on the Rule 's purposes, which our ...