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Cameron v. South Jersey Pubs, Inc.

Superior Court of New Jersey, Appellate Division

July 11, 2019

ROBERT CAMERON on behalf of himself and all other similarly situated, Plaintiff-Appellant,
SOUTH JERSEY PUBS, INC., d/b/a TGI FRIDAY'S, INC., Defendant-Respondent.

          Argued January 23, 2019

          On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2106-14.

          Wesley G. Hanna argued the cause for appellant (Law Office of Sander D. Friedman, LLC, attorneys; Sander D. Friedman and Wesley G. Hanna, of counsel and on the briefs).

          Joseph A. Gallo argued the cause for respondent (McGivney, Kluger & Cook, PC, attorneys; Joseph A. Gallo and William D. Sanders, of counsel and on the brief).

          Before Judges Yannotti, Rothstadt and Natali.


          ROTHSTADT, J.A.D.

         In this appeal, we are asked to determine whether the Law Division properly denied plaintiff's motion for class certification under Rule 4:32-1(b)(2) where plaintiff's claims were similar to those considered by the New Jersey Supreme Court in Dugan v. TGI Fridays, Inc., 231 N.J. 24 (2017). In Dugan, the Court held that class certification under Rule 4:32-1(b)(3) was not appropriate based on a "price-inflation" theory. 231 N.J. at 34. The Dugan plaintiffs argued that TGI Friday's, Inc. (TGIF), the restaurant chain, violated the Consumer Fraud Act (CFA), N.J.S.A. 56:81-2.2 and 2.5, and the Truth in Consumer Contract, Warranty and Notice Act (TCCWNA), N.J.S.A. 56:12-14 to -18, by failing to disclose the prices it charged for beverages on its menus. Ibid. They claimed that TGIF was able to charge each member of the class, across the board, $1.72 more than the "fair" or "reasonable" prices that the market would bear if the prices had been disclosed on the menu. Ibid. The Court recognized this as a "price-inflation" theory of damages and held that (b)(3) class certification was not appropriate under the CFA or the TCCWNA because each class member's claim was dependent upon their individual dining experiences and, under the TCCWNA, the Legislature did not intend for the Act to impose substantial financial penalties for violations.

         We conclude that Dugan's holding did not require the denial of plaintiff's motion for (b)(2) certification in this case because the Court's concerns in Dugan were not relevant to plaintiff's application for (b)(2) certification. To hold otherwise, as suggested by our dissenting colleague, will not only "make it more difficult for a class of . . . defrauded consumers to act collectively in pursuit of a common remedy against a corporate wrongdoer," Dugan, 231 N.J. at 75 (Albin, J., dissenting), but also it will in fact slam the courthouse doors shut on them, rather than "open[ing] the . . . doors for those who cannot enter alone." Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 104 (2007).

         We granted plaintiff Robert Cameron individually, and on behalf of all others similarly situated, leave to appeal from the Law Division's order denying his motion for (b)(2) class certification. Plaintiff's complaint alleges that defendant South Jersey Pubs Inc., doing business as TGIF, violated the CFA and the TCCWNA by failing to list beverage prices on its menu. Plaintiff seeks monetary damages for himself as well as injunctive and declaratory relief for all individuals who received a menu and ordered a beverage from a menu without a price in one of defendant's two establishments during a specific time period. He specifically seeks permanent injunctive relief directing defendant to include beverage prices on its menus and a declaration that the failure to do so is an unlawful commercial practice under the CFA and a violation of the TCCWNA. On appeal, plaintiff argues that the motion judge erred in denying his motion for class certification because he satisfied the requirements for (b)(2) class certification. We agree and reverse the denial of (b)(2) class certification.


         We glean the following facts from the motion record. Defendant is a franchisee of TGIF and owns and operates two TGIF restaurants, one in Toms River and the other in Manahawkin. On August 1, 2012, plaintiff went to defendant's restaurant in Toms River.[1] He was given a menu, initially ordered a water, then his meal, and a beer, and then added a soda. He believed that all of this, plus tip, would cost about $20. After finishing his meal, plaintiff was presented with the bill and was shocked to see that he had been billed over "$5[] for a mass produced beer, and . . . close to . . . $3[] . . . for a soda." On his way out, plaintiff looked at a menu and noticed that the drink prices were not listed. Plaintiff stated that he never would have ordered the drinks if the prices were listed.

         Thereafter, plaintiff filed his complaint.[2] On December 24, 2015, plaintiff filed an initial motion for class certification, but withdrew it on March 21, 2016. On September 13, 2017, he renewed his motion for class certification under Rules 4:32-1(b)(2) or (b)(3). Plaintiff sought a class of "[a]ll customers of . . . [defendant's] restaurants who purchased items from [a] menu that did not have a disclosed price" during the period from August 1, 2006 through the present date.[3] However, on October 5, 2017, a day after the Supreme Court issued its opinion in Dugan, plaintiff withdrew his motion for class certification under (b)(3) for damages and relied solely on class certification under (b)(2) for injunctive relief.

         While his renewed motion was pending, plaintiff filed an amended complaint in November 2017. In the amended complaint, plaintiff alleged that defendant violated the CFA and the TCCWNA based on its failure to list certain beverage prices on its menu. According to plaintiff, defendant's actions were contrary to N.J.S.A. 56:8-2.2 and N.J.S.A. 56:8-2.5.[4] Plaintiff also asserted claims for breach of contract and unjust enrichment. The complaint demanded monetary damages for plaintiff and a "proposed class . . . of all customers of . . . [defendant's] restaurants who purchased items from the menu that did not have a disclosed price[, ]" and declaratory and injunctive relief on behalf of himself and the class. Plaintiff specifically sought a declaration that "[d]efendant's practice . . . [was] unlawful" and an injunction to prevent "[d]efendant from continuing to offer beverages for sale without written price disclosures." Defendant filed an answer denying the allegations in the complaint.

         According to plaintiff, despite the age of the case, no discovery had been completed prior to the class certification motion being considered by the court. However, plaintiff relied upon discovery obtained in Dugan to support his complaint's factual contentions. Citing to that discovery, plaintiff alleged that TGIF intentionally developed a plan to not disclose beverage prices on its restaurants' menus as a form of "menu engineering," after it conducted various market studies that concluded by not disclosing prices, it could charge higher prices to its patrons.[5] Relying upon a deposition taken in Dugan from one of defendant's officers in this case, plaintiff alleged that defendant followed TGIF's procedure from 2008 through 2016 and he argued that defendant stopped doing so only to avoid being held liable in this litigation.

         On April 27, 2018, the motion judge heard argument and afterward denied plaintiff's (b)(2) class certification motion, placing his reasons on the record that day. Initially, the judge opined that the CFA "violations here [were] not clearly established[, ] which would warrant . . . injunctive relief," but that was "not dispositive." He also observed that the CFA was not "all about" a litigant being able to pursue "comprehensive injunctive proceedings brought on behalf of thousands . . . of individuals who are now being told they don't have to worry about whether they've been damaged . . . ." He also found that the purported class was "a large group of people. . . . [that was] hard to determine . . . ." According to the judge, injunctive relief was not necessary because it was "future oriented" and there was no "showing that any individual or members of the class would . . . suffer future . . . grievances. . . . [as] the whole purpose of an injunction is to avoid damages."

         Addressing the purported class, the judge found that it consisted of "thousands of . . . [people] who were just simply identified if [they] showed up [at defendant's establishment, ]" so the class was "generalized." He then turned back to the CFA and stated that in determining class certification under (b)(2), "you don't have to worry about predominance," as required by (b)(3), but found that "cohesiveness require[d] th[e] [c]ourt to search through the record . . . [and] the potential claims to determine whether . . . the interests of the individuals are so disparate and so lack[ing] of cohesion that it would make it inappropriate for a class action."

         Applying that standard, the judge concluded that there was no evidence of cohesiveness, especially here "where one consumer can go off and get . . . injunct[ive relief] without having some kind of proof of ascertainable loss as it applies to the remainder of the group." The judge distinguished this case from Laufer v. U.S. Life Ins. Co., 385 N.J.Super. 172, 188 (App. Div. 2006), in which we held, in part, that only a putative class plaintiff needs to demonstrate ascertainable loss under the CFA to maintain a (b)(2) class action for purported violations of the CFA. The judge stated that although the putative class plaintiff in Laufer was only required to demonstrate ascertainable loss, "ascertainable loss [was] evident in the remainder of the group."

         Relying on the Court's opinion in Dugan, the judge concluded that "if damage claims can't be subject to class action, then . . . injunctive [relief] can't be subject to class action because injunctive [relief] is secondary to the damage claims in the consumer protection world unless you're the Attorney General. Then you don't have to prove damages."

         The judge entered an order denying class certification on April 30, 2018. We granted plaintiff leave to appeal and later issued a stay pending appeal.


         On appeal, plaintiff contends that the motion judge erred and abused his discretion in not certifying the class based upon the judge's consideration of whether plaintiff is entitled to the relief demanded in his complaint, "the ultimate merits of the case," and the judge's perception that injunctive relief was not necessary because defendant alleged it voluntarily agreed to disclose beverage prices on its menus going forward. Moreover, plaintiff asserts that the judge incorrectly believed that in order to certify the class, plaintiff was bound to come forward with evidence that all putative class members sustained an ascertainable loss under the CFA. Finally, plaintiff argues that the motion judge "conflate[ed] cohesion and predominance."

         Defendant contends that the motion judge correctly denied class certification. The thrust of defendant's response is that proposed class members may have decided to purchase beverages from defendant on any given date for reasons totally unrelated to "the lack of menu pricing." According to defendant, "even if one assumes that patrons viewed the same menus, there is simply no way of knowing which individuals ordered beverages without knowing the prices in advance, and what information about prices they had even in the absence of menu pricing." Although not argued before the motion judge, it further argues to us that the individual nature of "[e]ach proposed class member's dining experience lacked the typicality and commonality necessary for class certification under [Rule] 4:32-1(a) due to the unlimited variations in customers' interactions with servers regrading beverage purchases." Citing to Dugan, defendant contends that the Court found that "there were too many individual variants among how individual patrons ordered beverages to find that 'common questions of law or fact' were 'predominant.'" In addition, defendant avers that in any event, plaintiff was not entitled to injunctive relief once he abandoned his claim for monetary damages.

         We review a trial court's order granting or denying class certification for an abuse of discretion. Dugan, 231 N.J. at 50. In determining whether the trial court has abused its discretion, we "'must ascertain whether the trial court has followed' the class action standard set forth in Rule 4:32-1." Ibid. (quoting Lee v. Carter-Reed Co., LLC, 203 N.J. 496, 506 (2010)). "Our role in this case is to review the trial courts' class certification decisions, not to act as a factfinder with respect to plaintiffs' substantive claims." Id. at 55 n.8.

         Applying that standard, we conclude that the motion judge mistakenly exercised his discretion by not correctly applying the requirements for (b)(2) certification of a class. The judge improperly held that an individual could not pursue injunctive relief under the CFA and determined cohesiveness by focusing upon the possible disparity between class members' dining experiences rather than whether the entire class could be afforded a remedy through a single injunction that would insure defendant's continued compliance with the law, if warranted. In our view, the facts of this case give rise to exactly the type of claims that (b)(2) class certification was intended to address.


         We begin our review by observing that certifying 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, 191 N.J. at 103 (quoting Califano v. Yamasaki, 422 U.S. 682, 700-01 (1979)). "[T]he class action is a device that allows 'an otherwise vulnerable class' or diverse individuals with small claims access to the courthouse," Lee, 203 N.J. at 518 (quoting Iliadis, 191 N.J. at 120), and thus, it "'should be liberally construed.'" Dugan, 231 N.J. at 46-47 (quoting Lee, 203 N.J. at 518).

         "[I]n the context of consumer transactions, 'class actions should be liberally allowed . . . under circumstances that would make individual actions uneconomical to pursue.'" Daniels v. Hollister Co., 440 N.J.Super. 359, 363 (App. Div. 2015) (quoting Varacallo v. Massachusetts Mut. Life Ins. Co., 332 N.J.Super. 31, 45 (App. Div. 2000)). "In short, as the Court made clear in Iliadis, 'a class action "should lie unless it is clearly infeasible."'" Ibid. (quoting Iliadis, 191 N.J. at 103).

         Our courts have described "the class-action device's '"historic mission"' [as] caring for '"the smaller guy."'" Id. at 364 (quoting Iliadis, 191 N.J. at 104). A class action serves "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 363 (quoting Iliadis, 191 N.J. at 104).

         Significantly, it levels the "playing field" by "'equaliz[ing] the claimants' ability to zealously advocate their positions. That equalization principle "remedies the incentive problem facing litigants who seek only a small recovery." [T]he class action's equalization function opens the courthouse doors for those who cannot enter alone.'" Id. at 363-64 (second alteration in original) (quoting Iliadis, 191 N.J. at 104). "The class-action device was created not only to allow compensation for such small wrongs but also to deter future wrongdoing in the marketplace." Id. at 371-72.

         Rule 4:32-2(a) requires that a "court shall, at any early practicable time, determine by order whether to certify the action as a class action." A plaintiff bears the burden of establishing class status. Iliadis, 191 N.J. at 106. "[C]lass certification should not be denied based on the merits of a complaint, [but] some preliminary analysis is required. Carroll v. Cellco P'ship, 313 N.J.Super. 488, 495 (App. Div. 1998).

         When considering a motion by plaintiff for class certification, a court is required" to examine "'the claims, defenses, relevant facts, and applicable substantive law.'" Dugan, 231 N.J. at 49-50 (quoting Iliadis, 191 N.J. At 107). It "must 'accept as true all of the allegations in the complaint,' and consider the remaining pleadings, discovery . . ., and any other pertinent evidence in a light favorable to [the] plaintiff." Lee, 203 N.J. at 505 (first quoting Int'l Union of Operating Eng'rs Local No. 68 Welfare Fund v. Merck & Co., 192 N.J. 372, 376 (2007); then citing Iliadis, 191 N.J. at 96).

         The court "must undertake a 'rigorous analysis' to determine if the Rule's requirements have been satisfied." Dugan, 231 N.J. at 49 (citing Iliadis, 191 N.J. at 106-07). "Although class certification does not occasion an examination of the dispute's merits, a cursory review of the pleadings is nonetheless insufficient." Iliadis, 191 N.J. at 107 (citations omitted). In other words, a court considering a request for class certification must pierce the pleadings. Ibid. Nevertheless, at this stage, a court must "liberally indulge the allegations of the complaint [and] 'liberally construe[]' Rule 4:32-1 in favor of class certification" to achieve the goal that "a class action 'should lie unless it is clearly infeasible.'" Daniels, 440 N.J.Super. at 363-64 (second alteration in original) (quoting Iliadis, 191 N.J. at 103).


         To certify a class action, the putative class plaintiff must first establish the requirements in Rule 4:32-1(a). This Rule states:

(1) the class is so numerous that joiner 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 (4) the representative parties will fairly and adequately protect the interests of the class.

[R. 4:32-1(a).]

         These requirements are commonly referred to as "numerosity, commonality, typicality and adequacy of representation." Dugan, 231 N.J. at 47 (quoting Lee, 203 N.J. at 519). Once the named plaintiff has established the requirements in Rule 4:32-1(a)(1), he or she must also satisfy either Rule 4:32-1(b)(1), [6] (2), or (3).

         Although defendant here argues to us that plaintiff failed to satisfy the requirements of Rule 4:32-1(a)(1), plaintiff's alleged failure to do so was not argued before the motion judge and for that reason, the judge never addressed the contention. Because the issue was not addressed in the motion, we have no reason to consider it now. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Even if we did, we find no merit to defendant's contention as plaintiff's purported class met all of the requirements under Rule 4:32-1(a).

         Here, it is obvious that the putative class meets the Rule's requirements. The members of the class are far too numerous for individual joinder.

The common issue of law among all class members is that [defendant] does not list its beverage prices in violation of N.J.S.A. 56:8-2.5. The common issue of fact is that all members of the class suffer from [defendant's alleged] unlawful practice of not listing beverage prices. The loss suffered by patrons resulting from [the alleged] violation of the CFA is dispersed over the entire class of beverage purchasers, with individual patrons incurring greater or lesser losses.
[Dugan, 231 N.J. at 82 (Albin, J. dissenting).]

         The class members' claims "'arise from the same events, practice, or conduct, and are based on the same legal theory, as those of other class members . . . . '" Laufer, 385 N.J.Super. at 180-81 (citation omitted). The unlawful conduct alleged here is a violation of the CFA and the TCCWNA arising from the failure to list beverage prices on menus given to plaintiff and the putative class members. Finally, plaintiff can adequately represent the class even if his "interests" are not "identical" to all class members, as he does "'not have interests antagonistic to those of the class.'" Id. at 182 (quoting Delgozzo v. Kenny, 266 N.J.Super. 169, 188 (App. Div. 1993)).


         The dispute here focused on only whether plaintiff, seeking only injunctive relief, was entitled to (b)(2) class certification, which is different than the (b)(3) certification considered by the Court in Dugan, where the claim was for damages and civil penalties. "Though classes certified under . . . (b)(3) and . . . (b)(2) all proceed as 'class actions,' the two subsections actually create two remarkably different litigation devices." Shelton v. Bledsoe, 775 F.3d 554, 560 (3d Cir. 2015).[7]

         Under (b)(3),

[i]f th[e] initial requirements [of Rule 4:32-1(a)] are satisfied, the court then considers whether "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."
[Pisack v. B & C Towing, Inc., 455 N.J.Super. 225, 250 (App. Div.), leave to app'l granted, 235 N.J. 477 (2018) and 236 N.J. 24 (2018) (quoting R. 4:32-1(b)(3)).]

         "Predominance exists if 'the proposed class is "sufficiently cohesive to warrant adjudication by representation."'" Ibid. (quoting Dugan, 231 N.J. at 48). "To establish predominance, . . . a 'plaintiff does not have to show that there is an "absence of individual issues or that the common issues dispose of the entire dispute," or "that all issues [are] identical among class members or that each class member [is] affected in precisely the same manner."'" Ibid. (alterations in original) (quoting Lee, 203 N.J. at 520).

         Proof of predominance under (b)(3) is not a requirement for (b)(2) certification. Gates v. Rohm & Haas Co., 655 F.3d 255, 263-64 (3d Cir. 2011).[8] Under (b)(2), class certification is warranted if "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." R. 4:32-1(b)(2). Certification under (b)(2) is appropriate where one injunction can remedy the harmful conduct. See MacNeil v. Klein, 141 N.J.Super. 395, 412-13 (App. Div. 1976) (observing that (b)(2) class certification would be inappropriate to remedy adverse but disparate jail conditions in different counties). Whether (b)(2) certification is appropriate therefore "turns on the precise nature of the remedy sought." Goasdone v. Am. Cyanamid Corp., 354 N.J.Super. 519, 532 (Law Div. 2002). See also Shelton, 775 F.3d at 561.

         Section (b)(2) applies "when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011).

         "[T]he key to the (b)(2) class is the 'indivisible nature of the injunctive or declaratory remedy warranted-the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.'" Shelton, 775 F.3d at 561 (quoting Wal-Mart, 564 U.S. at 360). The issue at the point of deciding class certification is not whether plaintiff has proven his or the class members' entitlement to injunctive relief, see Sheppard v. Twp. of Frankford, 261 N.J.Super. 5, 10 (App. Div. 1992) (stating that nonexclusive factors, if established, would warrant a permanent injunction), but rather whether the relief, if warranted, would provide a remedy for the entire class.

         The mere fact that a defendant has allegedly voluntarily desisted from the challenged conduct is not a reason for denying an injunction or therefore (b)(2) certification. A "tardy attempt of defendant to lend an appearance of observance of plaintiff's rights will avail it nothing. An injunction may issue 'to prevent an anticipated or threatened injury, either to protect against a repetition of unlawful conduct or to guard against reasonably apprehended misconduct or infringement of legal right.'" Sheahan v. Upper Greenwood Lake Prop. Owners Ass'n., 36 N.J.Super. 133, 136 (App. Div. 1955) (quoting Hoffmann-LaRoche, Inc., v. Weissbard, 11 N.J. 541, 551 (1953)).

         A party who invokes (b)(2) for class certification must be seeking declaratory or injunctive relief and the defendant must have acted or refused to act on grounds generally applicable to the class. This latter requirement is generally referred to as the need for cohesiveness. Amchem. Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997). "Because there is no right to opt out from such a class, and because significant individual issues in a[ ](b)(2) class might present manageability issues and undermine the value of utilizing the class action mechanism, . . . such classes must be cohesive." Shelton, 775 F.3d at 561.

         "In the context of a (b)(2) application, cohesiveness is considered 'a natural consequence' of the second requirement." Goasdone, 354 N.J.Super. at 531 (citing Santiago v. City of Philadelphia, 72 F.R.D. 619, 627 (E.D. Pa. 1976)). "Cohesiveness requires a certain 'homogeneity' of the claims of the class members. . . . [which] has been described as the 'essence' of a (b)(2) class action." Id. at 533 (citations omitted). In other words, there must be a "strong commonality of interests." Gates, 655 F.3d at 264.

         Nevertheless, "a class action may be maintained under . . . (b)(2) even though defendant's conduct is not damaging to every member of the class. What is important is that the relief sought by the named plaintiffs should benefit the entire class." Laufer, 385 N.J.Super. at 183 (citations and internal quotation marks omitted). "Injuries remedied through (b)(2) actions are really grouped, as opposed to individual injuries." Shelton, 775 F.3d at 561 (quoting Barnes v. Am. Tobacco Co., 161 F.3d 127, 143 n.18 (3d Cir. 1998)). Therefore,

[i]n order to determine if the class meets the requirement of cohesiveness under (b)(2), the court must analyze the legal and factual issues involved in the specific case, and determine if the claims of class members can more sensibly be adjudicated as a group or if the case would essentially break down into litigation of individual claims due to the presence of significant individual issues.
[Goasdone, 354 N.J.Super. at 536.]

         For example, in Laufer, the plaintiff filed a class action against an insurance company for violations of the CFA. 385 N.J.Super. at 176. The plaintiff alleged the insurance company violated the CFA by sending notices to its insureds stating they had nursing home coverage, when in fact, they did not. Id. at 176-78. Plaintiff sought monetary damages on behalf of herself, and injunctive and declaratory relief on behalf of a class of individuals who were also sent the notices. Id. at 178. The plaintiff sought "an injunction compelling defendants to send written notice to all class members, notifying them in plain and prominent language that they do not, and have not had, nursing home coverage, and notifying them that the [c]ourt has declared" the representations violated the CFA. Ibid.

         We affirmed the Law Division's decision to certify the class under (b)(2). Id. at 184. In doing so, we observed that the notices "were sent to all policyholders" and "the limited injunctive relief sought . . . would clearly 'benefit the entire class.'" Id. at 183-84 (quoting Baby Neal v. Casey, 43 F.3d 48, 59 (3d Cir. 1994)). Therefore, we implicitly found that plaintiff's claims were cohesive because everyone was at least sent the notice. See id. at 184.

         Although certain individuals may not have opened or relied upon the notice, the "limited injunctive relief sought," namely a notice indicating that the insured did not have nursing home benefits, would affect the class in the same way. In deciding Laufer, we held that injunctive relief for the class was proper even though there was no realistic possibility that the named ...

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