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Dugan v. TGI Fridays, Inc.

Supreme Court of New Jersey

October 4, 2017

DEBRA DUGAN, ALAN FOX, and ROBERT CAMERON on behalf of themselves and all others similarly situated, Plaintiffs-Appellants,
v.
TGI FRIDAYS, INC., CARLSON RESTAURANTS WORLDWIDE, INC., on behalf of themselves and all others similarly situated, Defendants-Respondents. ERNEST BOZZI, on behalf of himself and all others similarly situated, Plaintiff-Respondent,
v.
OSI RESTAURANT PARTNERS, LLC, T/A CARRABBA'S ITALIAN GRILL, et al., Defendants-Appellants.

          Argued April 4, 2017

         SYLLABUS

         This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity, portions of any opinion may not have been summarized.

          Dugan v. TGI Fridays, Inc. (A-92-15): On appeal from the Superior Court, Appellate Division, whose opinion is reported at 445 N.J.Super. 59 (App. Div. 2016) .

          Bozzi v. OSI Restaurant Partners, LLC (A-93-15): On appeal from the Superior Court, Appellate Division.

          Sander D. Friedman argued the cause for appellants in Dugan v. TGI Fridays, Inc., (A-92-15) (Law Office of Sander D. Friedman, attorneys; Sander D. Friedman and Wesley G. Hanna, on the briefs).

          Stephen M. Orlofsky argued the cause for respondents in Dugan v. TGI Fridays, Inc. (A-92-15) (Blank Rome and LeClair Ryan, attorneys; Stephen M. Orlofsky, David C. Kistler, Jeffrey L. O'Hara, and Matthew S. Schultz, of counsel and on the briefs).

          David G. McMillin argued the cause for amicus curiae Legal Services of New Jersey in Dugan v. TGI Fridays, Inc. (A-92-15) (Legal Services of New Jersey, attorneys; Melville D. Miller, Jr. and David G. McMillin on the brief).

          Michael A. Galpern argued the cause for amicus curiae New Jersey Association for Justice in Dugan v. TGI Fridays, Inc. (A-92-15) (Locks Law Firm, attorneys; Michael A. Galpern, Andrew P. Bell, and James A. Barry on the brief).

          Jeffrey S. Jacobson argued the cause for amicus curiae New Jersey Civil Justice Institute in Dugan v. TGI Fridays, Inc. (A-92-15) (Lowenstein Sandler and Kelley Drye & Warren, attorneys; Jeffrey S. Jacobson and Gavin J. Rooney on the brief) .

          Stephen M. Orlofsky argued the cause for appellants in Bozzi v. OSI Restaurant Partners, LLC (A-93-15) (Blank Rome and Briggs Law Office, attorneys; Stephen M. Orlofsky, David C. Kistler, Michael A. Iannucci, Norman W. Briggs, and Adrienne Chapman, of counsel and on the briefs).

          Donald M. Doherty, Jr. argued the cause for respondent in Bozzi v. OSI Restaurant Partners, LLC (A-93-15) (Law Office of Donald M. Doherty, attorneys; Donald M. Doherty, Jr. on the brief).

          Jonathan Romberg argued the cause for amicus curiae Seton Hall University School of Law Center for Social Justice in Dugan v. TGI Fridays, Inc. (A-92-15) and Bozzi v. OSI Restaurant Partners, LLC (A-93-15) (Seton Hall University School of Law Center for Social Justice, attorneys; Jonathan Romberg on the briefs).

          David R. Kott argued the cause for amicus curiae New Jersey Business & Industry Association in Dugan v. TGI Fridays, Inc. (A-92-15) and Bozzi v. OSI Restaurant Partners, LLC (A-93-15) (McCarter & English, attorneys; David R. Kott, Edward J. Fanning, Zane C. Riester, and Elizabeth K. Monahan, of counsel and on the briefs).

         PATTERSON, J., writing for the Court.

         In these consolidated appeals, the Court applies the class action certification standard of Rule 4:32-1. The plaintiffs allege that the defendant operators of New Jersey restaurants engaged in unlawful practices with respect to the disclosure of prices for beverages and seek relief under the Consumer Fraud Act (CF A), N.J.S.A. 56:8-1 to -206, and the Truth in Consumer Contract, Warranty and Notice Act (TCCWNA), N.J.S.A. 56:12-14 to -18.

         In the first of the two putative class actions, Dugan v. TGI Fridays. Inc., plaintiffs Debra Dugan and Alan Fox (Dugan plaintiffs) claim that TGI Fridays, Inc. and Carlson Restaurants, Inc. (collectively, TGIF), maintained a practice of offering certain beverages in menus without listing their prices in violation of the CFA and the TCCWNA. The Dugan plaintiffs contend that market research TGIF produced in discovery demonstrates that customers informed of beverage prices spent an average of $ 1.72 less on beverages than the customers to whom the prices were not disclosed. On that basis, the Dugan plaintiffs stated their intention to prove that each member of their putative class suffered the same ascertainable loss of $1.72 as a result of unconscionable commercial practices and regulatory violations. They would use the $1.72 figure to calculate global damages for their entire class.

         Dugan moved for class certification. The trial court granted the motion; an Appellate Division panel reversed. 445 N.J. Super 59 (App. Div. 2016). The panel concluded that the Dugan plaintiffs had failed to meet Rule 4:32-l's requirement that common issues of fact predominate over issues that pertain to individual class members as to either the CFA or the TCCWNA claim. The Court granted leave to appeal. 226 KI 543 (2016).

         The second putative class action, Bozzi v. OSI Restaurant Partners, LLC, was filed by plaintiff Ernest Bozzi against OSI Restaurant Partners, LLC (OSI), an entity that has allegedly owned, controlled and operated a number of restaurants in New Jersey. Although Bozzi relied on the same statutes cited by the Dugan plaintiffs, he focused more narrowly on OSFs alleged practice of increasing the prices of beverages in the course of a customer's visit without disclosing that change. Bozzi's individual factual allegations relate to a restaurant visit during which he ordered two Peroni beers and discovered when he received his check that the first cost $3.25, and the second $4.25. According to Bozzi, he protested the disparity to a staff member, who told him that "the computer changes the price at certain times" and that it was the restaurant's policy to charge customers accordingly.

         Bozzi moved for certification of a class pursuant to Rule 4:32-1. The trial court granted the motion and defined the class to include "[a] 11 persons who: (a) visited any OSI Restaurant Partners, LLC or Bloomin' Brands, Inc. restaurant in New Jersey, from 12/23/04 to the present date; and (b) purchased an item offered on the menu or table placards for which no price was disclosed on the menu or table placard." OSI moved for leave to appeal. An Appellate Division panel denied that motion. The Court granted leave to appeal. 226 N.J. 543 (2016).

         HELD: Because CFA class action jurisprudence rejects "price-inflation" theories, such as the theory presented by the Dugan plaintiffs, as incompatible with the CFA's terms, the Dugan plaintiffs have not established predominance with respect to their CFA claims. Bozzi's allegations focus primarily on a specific pricing practice. If the Bozzi class is redefined to include only customers who make that specific CFA claim, and the claim is limited accordingly, plaintiff Bozzi has met the requirements of Rule 4:32-1 and may attempt to prove that claim on behalf of the class. As to the TCCWNA claims in both appeals, plaintiffs have failed to satisfy the predominance requirement of Rule 4:32-1.

         1. Rule 4:32-1 prescribes the standard for the determination of a motion to certify a class. Subsection (a) imposes four initial requirements, frequently termed numerosity, commonality, typicality and adequacy of representation, in order for a class to be certified. If the plaintiff satisfies Rule 4:32-l(a)'s requirements, the court then considers the standard of Rule 4:32-l(b)(3), which allows class actions to be maintained if "the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." (pp. 22-28)

         2. The CFA was enacted to provide relief to consumers from fraudulent practices in the market place. In addition to generally alleging unconscionable commercial practices under N.J.S.A. 56:8-2, the Dugan plaintiffs and Bozzi allege that the defendant restaurants committed a regulatory violation by contravening N.J.S.A. 56:8-2.5. Under that section of the CFA, it is an "unlawful practice" "to sell, attempt to sell or offer for sale any merchandise at retail unless the total selling price of such merchandise is plainly marked by a stamp, tag, label or sign either affixed to the merchandise or located at the point where the merchandise is offered for sale." To prevail under the CFA, a plaintiff must not only prove that unlawful conduct by defendant, but must also demonstrate an ascertainable loss by plaintiff and a causal relationship between the unlawful conduct and the ascertainable loss. (pp. 28-33)

         3. The Dugan plaintiffs seek to predicate a uniform finding of ascertainable loss and causation on the difference between what they contend would be "fair" or "reasonable" prices for beverages and the prices that TGIF actually charged. New Jersey case law has consistently rejected "price-inflation" theories-closely related to fraud on the market theories-as a substitute for proof of ascertainable loss or causation in CFA claims. A "fair" or "reasonable" price derived from the per-visit expenditures of marketing research subjects is no substitute for proof of the actual claimants' ascertainable loss and causation. The Dugan plaintiffs failed to establish predominance with respect to their CFA claim. The panel properly reversed the certification of a class with respect to that claim, (pp. 34-49)

         4. Bozzi focused on a category of OSI restaurant customers: customers who, in the course of a single visit to an OSI restaurant, were charged different prices for beverages of the same brand, type, and volume. Bozzi has met the requirements for class certification with respect to his CFA claim, if the class is thus limited. The Court therefore reverses the trial court's class certification order and remands for the certification of a redefined class, (pp. 50-55)

         5. The second claim asserted by the putative classes in both appeals is based on the TCCWNA. To obtain a remedy under the TCCWNA, a plaintiff must be an "aggrieved consumer"-a consumer who satisfies the elements of the TCCWNA. N.J.S.A. 56:12-17. To be found liable under the TCCWNA, a defendant must have violated a "clearly established legal right" or "responsibility." N.J.S.A. 56:12-15. Plaintiffs contend that by failing to list prices for beverages on the menus, the restaurants failed to meet their "clearly established" legal responsibilities under N.J.S.A. 56:8-2.5; they contend that the statute required defendants to "plainly mark" the beverages that they sold "by a stamp, tag, label or sign" in the location where the beverages were offered for sale. (pp. 56-61)

         6. Plaintiffs have not met the predominance requirement with respect to their TCCWNA claims in either appeal. TCCWNA addresses "contracts], " "warrantees], " "notice[s], " and "sign[s]" and does not apply when a defendant fails to provide the consumer with a required writing. N.J.S.A. 56:12-15. Accordingly, a claimant who does not, at a minimum, prove that he or she received a menu cannot satisfy the elements of TCCWNA and is not an "aggrieved consumer." The trial courts improperly granted class certification as to plaintiffs' TCCWNA claims, (pp. 62-67)

         In Dugan v. TGI Fridays Inc.. the judgment of the Appellate Division is AFFIRMED and MODIFIED. In Bozzi v. OSI Restaurant Partners, LLC, the trial court's class certification determination is AFFIRMED in part and REVERSED in part. The matters are remanded to the trial courts for proceedings consistent with this opinion.

          JUSTICE ALBIN, DISSENTING, states that TGIF is in violation of the CFA, and the only remaining issue is whether the CFA violation caused an ascertainable loss to the class of TGIF patrons. Justice Albin finds that the $1.72 constitutes, on average, an ascertainable loss per person causally related to TGIF's unlawful practice of not disclosing prices. Justice Albin also disagrees that plaintiffs have failed to make out a claim under the TCWWNA. According to Justice Albin, the majority's decision will make it more difficult for a class of many thousands of defrauded consumers to act collectively in pursuit of a common remedy against a corporate wrongdoer.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, FERNANDEZ-VINA, and TIMPONE join in JUSTICE PATTERSON'S opinion. JUSTICE ALBIN filed a separate, dissenting opinion. JUSTICE SOLOMON did not participate.

          OPINION

          PATTERSON, JUSTICE

         In these consolidated appeals, the plaintiffs allege that the defendant operators of New Jersey restaurants engaged in unlawful practices with respect to the disclosure of prices charged to customers for alcoholic and non-alcoholic beverages. Based upon different theories of ascertainable loss and causation, plaintiffs in the two actions demand damages and other relief against defendants under the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -206. They also seek damages, civil penalties, and other relief under the Truth in Consumer Contract, Warranty and Notice Act (TCCWNA), N.J.S.A. 56:12-14 to -18.

         In each case, the trial court certified the action as a class action pursuant to Rules 4:32-1 and 4:32-2. In Dugan v. TGI Fridays, Inc., 445 N.J.Super. 59 (App. Div. 2016), an Appellate Division panel reversed the trial court's certification of a class. The Appellate Division denied the defendant's motion for leave to appeal in Bozzi v. OSI Restaurant Partners, LLC. We granted leave to appeal in both actions.

         Applying the class action certification standard of Rule 4:32-1 to the CFA claim asserted in Dugan v. TGI Fridays, Inc., we hold that plaintiffs have failed to show that common questions of law and fact predominate over individual issues, as Rule 4:32-1 requires. As an alternative to presenting proof of ascertainable loss and causation as to each member of the class, the Dugan plaintiffs propose to demonstrate, for a class numbering in the millions, that TGIF charged each member of the class $1.72 more than the "fair" or "reasonable" prices that it would have charged had it disclosed its beverage prices on the menu. Because our CFA class action jurisprudence rejects "price-inflation" theories, such as the theory presented by the Dugan plaintiffs, as incompatible with the CFA's terms, we conclude that the Dugan plaintiffs have not established predominance with respect to their CFA claims. We accordingly modify and affirm the Appellate Division's determination that the Dugan class was improperly certified for purposes of the CFA claims asserted in that action and remand for a determination of the individual plaintiffs' CFA claims.

         We reach a different conclusion with respect to the CFA claims asserted by plaintiff Ernest Bozzi in Bozzi v. OSI Restaurant Partners, LLC. Although Bozzi asserts general claims that the defendant restaurants failed to disclose prices, his allegations focus primarily on a specific pricing practice. He alleges that the defendant restaurants violated the CFA by increasing the price charged to a customer for the same brand, type, and volume of beverage in the course of the customer's visit to the restaurant, without notifying the customer of the change. Bozzi's counsel represents that this price-shifting claim is supported by claimant-specific receipts showing that each customer making this claim was charged different prices for the same brand, type, and volume of beverage in the course of a single visit to one of the defendant's restaurants.

         We hold that if the Bozzi class is redefined to include only customers who make that specific CFA claim, and the claim is limited accordingly, plaintiff Bozzi has met the requirements of Rule 4:32-1 and may attempt to prove that claim on behalf of the class. We modify and affirm the trial court's determination as to the CFA claim in Bozzi and remand for the certification of a class that is limited accordingly.

         With respect to the claims based on the TCCWNA in both appeals, we conclude that plaintiffs have failed to satisfy the predominance requirement of Rule 4:32-1. We therefore reverse the trial courts' class certification determinations in both cases with respect to those claims and remand for a determination of plaintiffs' individual TCCWNA claims.

         I.

         We base our summary of the factual allegations and procedural history of each action on the complaints and the class certification record presented to the trial court in each case.

         A.

         In the first of the two putative class actions, Dugan v. TGI Fridays, Inc., plaintiffs Debra Dugan and Alan Fox (Dugan plaintiffs) assert claims against defendants TGI Fridays, Inc. and Carlson Restaurants, Inc.[1] (collectively, TGIF), owners and operators of TGIF restaurants in New Jersey.

         The Dugan plaintiffs claim that TGIF maintained a practice of offering certain beverages in New Jersey TGIF restaurants' menus without listing the prices of those beverages.[2] They allege that TGIF violated the CFA by engaging in unconscionable commercial practices contrary to N.J.S.A. 56:8-2. They also assert, among other claims, that TGIF violated a regulatory provision, N.J.S.A. 56:8-2.5, by selling, attempting to sell, or offering for sale "merchandise that is not price marked at the point of purchase." The Dugan plaintiffs premise their claim under the TCCWNA on the allegation that TGIF violated a "clearly established legal right of a consumer or responsibility of a seller" by offering beverages for sale "without notifying the consumer of the total selling price at the point of purchase." (citing N.J.S.A. 56:12-15; N.J.S.A. 56:8-2.5) . The Dugan plaintiffs demand damages, civil penalties, and other relief under the TCCWNA.

         In the Dugan plaintiffs' original complaint, Dugan was the sole plaintiff and representative of the putative class. Dugan asserted that, during visits to a company-owned TGIF restaurant in Mount Laurel, she purchased "unpriced soft drinks, mixed drinks, and beer off Defendants' otherwise comprehensively priced menus." Dugan alleged that on each visit she was not made aware of the prices charged for the beverages until TGIF staff presented her with a check. In her original complaint, she claimed that during a visit to a TGIF restaurant she was charged $2.00 for a beer at the bar and later charged $3.59 for the same brand of beer after moving to a table.

         Dugan alleged that her claims were typical of the claims of the class and asserted that she met all of the requirements for class certification under Rule 4:32-1. She sought certification of a class consisting of "all customers of New Jersey TGI Friday's who purchased items from the menu that did not have a disclosed price."

         TGIF moved before the trial court to dismiss Dugan's complaint for failure to state a claim pursuant to Rule 4:6-2(e). The trial court denied the motion to dismiss. An Appellate Division panel denied TGIF's motion for leave to appeal. We granted TGIF's motion for leave to appeal and summarily remanded the matter to an Appellate Division panel for consideration of the merits of the appeal. In an unpublished opinion, the panel concluded that Dugan had adequately pled her CFA and TCCWNA claims and affirmed the trial court's determination. Dugan then filed a first amended complaint, expanding her allegations regarding her visits to the TGIF restaurant in Mount Laurel.

         The parties conducted class certification discovery. In her deposition, Dugan admitted that during the 2008 visit to a TGIF restaurant in which she paid different prices for two orders of identical beverages at the bar and at the table, she did not read the beverage section of the menu. She stated that she did not realize until she later reviewed her receipt that she had paid $2.00 for a beer at the bar and later paid $3.59 for a beer at a table. Dugan later submitted a certification stating that she had looked at the TGIF menu on many occasions and expected to pay the same price at the bar that she paid when she sat at a table.

         Among the documents produced by TGIF in discovery were documents characterized by the Dugan plaintiffs as training materials for TGIF servers. Those documents stated that servers seating customers should hand opened menus to customers.

         TGIF also produced what the Dugan plaintiffs characterize as "market research." Plaintiffs' counsel stated at oral argument that those documents reflect a TGIF consultant's analysis of consumer behavior in the ordering of beverages in restaurants. The Dugan plaintiffs contend that the market research demonstrates customers' tendency to order less expensive or fewer beverages if beverage prices are listed on the menu than they order if the prices are unlisted. As the research is described by the Dugan plaintiffs, one group of customers studied was informed of beverage prices when visiting a restaurant and the other group was not. The customers informed of beverage prices spent an average of $1.72 less per visit than the customers to whom the prices were not disclosed. Relying on the marketing research, the Dugan plaintiffs claim that TGIF is in a position to charge a higher price for a beverage than the price that it would be compelled by market forces to charge if it were to disclose its beverage prices on restaurant menus.

         On that basis, the Dugan plaintiffs stated their intention to prove that each member of their putative class suffered the same ascertainable loss of $1.72 as a result of unconscionable commercial practices and regulatory violations committed by TGIF. They indicated that they would use the $1.72 figure to calculate global damages for their entire class.

         Relying on that theory of classwide proof of ascertainable loss and causation, Dugan moved for class certification.[3] Between the filing and the determination of that motion, Dugan filed a second amended complaint, further detailing her allegations about her visits to the TGIF restaurant, omitting references to the specific prices that TGIF charged her, and naming Fox as an additional plaintiff and class representative.[4]Fox described visits to TGIF restaurants and alleged that he would have ordered different or fewer beverages during one of those visits had he been informed about the prices that would be charged.

         The trial court concluded that the Dugan plaintiffs had satisfied the requirements of Rule 4:32-1 and granted their motion for class certification. The court included in the class definition all persons who visited a company-owned TGIF restaurant "from January 12, 2004 to June 18, 2014, relied upon [TGIFJ's menu, and purchased an offered but unpriced soda, beer or mixed drink." The court later granted the Dugan plaintiffs' motion to expand the class definition for purposes of providing notice to the class. As expanded, the class defined by the trial court consisted of "[a]11 persons who visited a [TGIF] restaurant in New Jersey that is owned by [TGIF] (i.e. company owned store) from January 12, 2004 to July 14, 2014, and purchased an offered but unpriced soda, beer or mixed drink."[5]

         After the trial court denied its motion for reconsideration and/or to decertify the class, TGIF filed a motion for leave to appeal class certification and to stay class notice pending appeal. An Appellate Division panel denied the motions. TGIF moved before this Court for leave to appeal and for a stay. This Court granted leave to appeal, stayed class notice and further proceedings before the trial court, and remanded the matter to the Appellate Division for consideration of the merits of the appeal.

         An Appellate Division panel reversed the trial court's class certification determination. Dugan v. TGI Fridays, Inc., 445 N.J. Super 59, 79 (App. Div. 2016) .[6] The panel concluded that the Dugan plaintiffs had failed to meet Rule 4:32-1's requirement "that common issues of fact as to . . . TGIF's customers who purchased unpriced soda, beer or mixed drinks predominate over issues that pertain to individual class members." Id. at 74. The panel held that the trial court had improperly included in the class definition all persons who purchased an unpriced soda, beer, or mixed drink "regardless of whether they reviewed the menu before purchasing the beverages" and had therefore included in the class customers who could not establish an ascertainable loss as a result of unlawful conduct, as the CFA requires. Ibid.

         The panel also determined that the Dugan plaintiffs had failed to establish predominance under Rule 4:32-1 with respect to their TCCWNA claims. Id. at 77-79. The panel noted the need for "[i]ndividualized inquiries ... to determine whether each class member was handed a menu that lacked beverage pricing" and to assess actual damages under N.J.S.A. 56:12-17. Id. at 79. Given its finding on the issue of predominance, the panel did not reach Rule 4:32-1's other class certification requirements.

         We granted the Dugan plaintiffs' motion for leave to appeal. 226 N.J. 543 (2016). We also granted the motions of Legal Services of New Jersey, the New Jersey Association for Justice, the Seton Hall University School of Law Center for Social Justice, the New Jersey Civil Justice Institute, and the New Jersey Business and Industry Association to appear as amici curiae.

         B.

         The second appeal before the Court arose from another putative class action, Bozzi v. OSI Restaurant Partners, LLC. The action was filed by plaintiff Bozzi against OSI Restaurant Partners, LLC (OSI), an entity that, according to plaintiffs, maintains control of Carrabba's Italian Grill (Carrabba's) restaurants in New Jersey. In his initial complaint, Bozzi asserted claims based solely on the pricing practices of OSI's Carrabba's restaurants. In his amended complaint, Bozzi expanded his claim to include other New Jersey restaurants that OSI has allegedly owned, controlled, and operated, including Outback Steakhouse, Bonefish Grill, Fleming's Prime Steakhouse and Wine Bar, and Cheeseburger in Paradise restaurants.

         In his amended complaint, Bozzi asserted a CFA regulatory violation claim based on OSI's alleged contravention of N.J.S.A. 56:8-2.5 and a more general CFA claim based on OSI's alleged practice of "intentionally mislead[ing] customers through stealth price adjustments." He alleged an ascertainable loss under the CFA based on a contention that customers who are uninformed about beverage prices pay higher prices and are "depriv[ed] ... of their legitimate expectation of an objectively reasonable price." Bozzi sought an injunction, treble damages, and other relief under the CFA, and a judgment declaring that he satisfied the requirements of his CFA claim, pursuant to the Declaratory Judgment Act, N.J.S.A. 2A:16-53. He also pled a claim under the TCCWNA, based on OSI's claimed violation of N.J.S.A. 56:8-2.5, and sought damages and civil penalties under that statute.

         Although Bozzi relied on the same statutes cited by the Dugan plaintiffs, he focused more narrowly on OSI's alleged practice of increasing the prices of beverages in the course of a customer's visit without disclosing that change to the customer. Bozzi's individual factual allegations relate primarily to a 2010 visit to a Carrabba's restaurant in Maple Shade. He asserts that, during that visit, neither the restaurant's menu nor any placards or displays disclosed drink prices and that there were no signs, notices, or displays indicating that there was a discount on drink prices in effect. He asserts that he ordered two Peroni beers during his meal and discovered when he received his check that the first beer cost $3.25, and the second cost $4.25. According to Bozzi, he protested the pricing disparity to a restaurant staff member, who told him that "the computer changes the price at certain times" and that it was the restaurant's policy to charge customers accordingly.

         Bozzi moved before the trial court for certification of a class pursuant to Rule 4:32-1. Although Bozzi had proposed, in his initial complaint, a subclass limited to "persons who were charged different prices for the same drinks during a trip to the Defendants' establishment, " he sought certification of a broader class of customers who visited an OSI restaurant and purchased a beverage offered on the menu or table placard without a price. Bozzi's counsel represented to the trial court that the expansive class definition was necessary for his TCCWNA claim, which was premised on the general allegation that OSI failed to disclose beverage prices on its restaurants' menus. He advised the trial court that for purposes of the CFA, the claimed ascertainable loss was a "price differential loss, " based on OSI's alleged practice of charging different prices for the same beverage on the same visit. Counsel did not explain to the trial court how he intended to prove ascertainable loss and causation on a classwide basis. He acknowledged that he expected a later challenge to his claim that OSI's alleged practice of charging different prices for the same beverage gave rise to a CFA violation.

         The trial court granted Bozzi's motion for class certification. The court defined the class to include "[a] 11 persons who: (a) visited any OSI Restaurant Partners, LLC or Bloomin' Brands, Inc.[7] restaurant in New Jersey, from 12/23/04 to the present date; and (b) purchased an item offered on the menu or table placards for which no price was disclosed on the menu or table placard."

         The trial court also granted Bozzi's motion for injunctive relief. It ordered OSI to "list all prices in the menus for all items contained in their menus, " and to "list prices for any items displayed on a table placard or similar display available to customers, " within ten days. The court granted a stay of proceedings before it, including the injunction, in anticipation of OSI's motion for leave to appeal its orders.

         OSI moved before the Appellate Division for leave to appeal. An Appellate Division panel denied that motion and denied OSI's motion for reconsideration.

         We granted OSI's motion for leave to appeal. 226 N.J. 543 (2016). We also granted the motions of the Seton Hall University School of Law Center for Social Justice and the New Jersey Business and Industry Association to appear as amici curiae.

         II.

         A.

         In Dugan v. TGI Fridays, Inc., plaintiffs argue that the Appellate Division panel's decision diverged from this Court's class certification jurisprudence, which endorses the class action device as a method of resolving disputes between plaintiffs with small claims for damages and institutional defendants. The Dugan plaintiffs argue that although there are individualized questions that must be resolved to determine their claims, common questions of law and fact predominate. They contend that they can prove their CFA and TCCWNA claims for the class as a whole because TGIF subjected all customers to a price-gouging strategy, and they need not present proofs of each customer's interaction with the server or motivation in purchasing a beverage. The Dugan plaintiffs argue that damages can be calculated for the class as a whole using the same methodology as would apply to assess damages in an individual plaintiff's ordinary bad faith contract case.

         TGIF contends that the Appellate Division panel properly reversed the trial court's grant of class certification. It maintains that the Dugan plaintiffs cannot prove that the class members suffered an ascertainable loss as a result of the allegedly offending practices, as required by N.J.S.A. 56:8-19, without demonstrating that loss for each individual claimant in a class estimated to involve thirteen to fourteen million beverage purchases. TGIF contends that to establish a claim under the TCCWNA, each class member would be required to prove that he or she was given a menu, and to individually prove damages, and that common questions of law and fact do not predominate over individual questions as to the TCCWNA.

         B.

         In Bozzi v. OSI Restaurant Partners, LLC, OSI asks the Court to reverse the trial court's grant of class certification. OSI contends that, in finding that common questions predominate over individual issues in the resolution of plaintiffs' CFA claim, the trial court ignored the requirement that plaintiffs prove that OSI's conduct caused an ascertainable loss in order to prevail under N.J.S.A. 56:8-19. It argues that Bozzi's claim is predicated solely on OSI's alleged "secret shift" of beverage prices and that Bozzi's individual theory of ascertainable loss and causation diverges from the theory that applies to other members of the class. OSI asserts that to establish liability under the TCCWNA each claimant must show that he or she was provided with a menu that violated the law and consequently sustained damages and that the necessity of individual determinations of the TCCWNA claims precludes effective management of a class action in this case. Finally, OSI argues that the trial court should not have granted injunctive relief.

         Bozzi contends that the Court should construe N.J.S.A. 56:8-2.5 to mandate that restaurants post prices for beverages on menus or placards and inform consumers if prices change. He proposes three alternative class definitions: (1) an expansive class asserting a TCCWNA claim, consisting of all customers who visited an OSI restaurant and were presented with a menu; (2) a more limited class, asserting a CFA claim, consisting of all customers who purchased an unpriced beverage at an OSI restaurant; and (3) the narrowest class, asserting a CFA claim, consisting of customers who paid different prices for the same beverage during a visit to an OSI restaurant. Bozzi represents that to prove ascertainable loss for members of the latter class, he intends to rely on receipts showing that customers paid different prices for the same beverage during the same restaurant visit.

         C.

         Amicus curiae Legal Services of New Jersey contends that class certification is essential to the vindication of low-income consumers' small claims. It asserts that the Dugan plaintiffs met the predominance requirement of Rule 4:32-1 because the CFA does not require reliance, that the omission of prices from TGIF menus gave rise to an inference of causation for purposes of the CFA, and that the offering of menus without beverage prices satisfied the "provision" requirement of the TCCWNA.

         Amicus curiae New Jersey Association for Justice contends that the practices of TGIF in Dugan generally violate the CFA and the TCCWNA, thus satisfying the predominance requirement of Rule 4:32-1 for purposes of the liability claim, and that distinctions among the damages claims of class members should not defeat class certification in that case.

         Amicus curiae Seton Hall University School of Law Center for Social Justice contends that because of TGIF's alleged practice of not including drink prices on the menu and the marketing research disclosed in discovery, the Dugan plaintiffs are in a position to present collective proof of ascertainable loss and causation. It contends that the entire class may demonstrate ascertainable loss based on the difference between the price that TGIF charged and the price that it would have charged had it not instituted a pricing scheme, or, alternatively, based on the difference between the price charged and a reasonable price. Seton Hall University School of Law Center for Social Justice argues, in both Dugan and Bozzi, that the plaintiffs' TCCWNA claims are even more appropriate for classwide resolution than their CFA claims because the TCCWNA does not require proof of ascertainable loss or causation.

         Amicus curiae New Jersey Civil Justice Institute argues that a court should never certify a class action to pursue a claim under the TCCWNA unless there is evidence that, at a minimum, all class members received and reviewed the allegedly offending contract. It contends that the TCCWNA contemplates individual litigation and that the prospect of a civil penalty and an award of attorneys' fees under the TCCWNA provides a sufficient incentive for aggrieved consumers to bring individual actions.

         Amicus curiae New Jersey Business and Industry Association urges the Court to adopt a rule barring class certification for the litigation of TCCWNA claims. It contends that the TCCWNA's civil penalty provisions provide ample incentives for individual litigation and that those provisions are unduly punitive when imposed on behalf of a large class of claimants.

         III.

         A "class action is 'an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.'" Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 103 (2007) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01, 99 S.Ct. 2545, 2557, 61 L.Ed.2d 176, 192 (1979)). The class action device "furthers numerous practical purposes, including judicial economy, cost-effectiveness, convenience, consistent treatment of class members, protection of defendants from inconsistent obligations, and allocation of litigation costs among numerous, similarly-situated litigants." Id. at 104. In light of those objectives, our courts have "consistently held that the class action rule should be liberally construed." Lee v. Carter-Reed Co., 203 N.J. 496, 518 (2010) (quoting Iliadis, supra, 191 N.J. at 103).

         Pursuant to our court rules, a trial court considering a putative class action "shall, at an early practicable time, determine by order whether to certify the action as a class action, " and, if certification is granted, enter an order defining "the class and the class claims, issues or defenses" and appointing class counsel. R. 4:32-2(a).

         Rule 4:32-1 prescribes the standard for the determination of a motion to certify a class. Subsection (a) of that Rule imposes four initial requirements, frequently termed "numerosity, commonality, typicality and adequacy of representation, " in order for a class to be certified. Lee, supra, 203 N.J. at 519 (citing In re Cadillac V8-6-4 Class Action, 93 N.J. 412, 424-25 (1983)). The Rule provides:

(a) General Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and ...

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