                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2102-19T1

LESROY E. BROWNE,
on behalf of himself and
those similarly situated,

          Plaintiff-Appellant,

v.

CAPITAL ONE BANK (USA), N.A.
and CAVALRY SPV I, LLC,

          Defendants-Respondents.


                   Argued telephonically June 2, 2020 –
                   Decided July 20, 2020

                   Before Judges Yannotti, Hoffman, and Currier.

                   On appeal from an interlocutory order of the Superior
                   Court of New Jersey, Law Division, Middlesex County,
                   Docket No. L-5583-15.

                   Bharati Olga Sharma argued the cause for appellant
                   (The Wolf Law Firm LLC, and Kim Law Firm, LLC,
                   attorneys; Bharati Olga Sharma and Andrew R. Wolf,
                   on the briefs).
            Brian D. Schmalzbach (McGuireWoods LLP) of the
            Virginia bar, admitted pro hac vice, argued the cause
            for respondents (McGuireWoods LLP, attorneys; Philip
            Andrew Goldstein, on the brief).

PER CURIAM

      On leave granted, we consider plaintiffs'1 appeal from a December 10,

2019 order which denied reconsideration of a prior order denying class

certification. In this matter, plaintiffs sought statutory damages under the New

Jersey Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA),

N.J.S.A. 56:12-14 to -18.      Because it is unclear whether the trial court

considered the issue of harm under the TCCWNA and other statutory

requirements for certification under Rule 4:32-1(b)(3), we reverse and remand

for reconsideration of the motion for class certification.

      In 2006, Browne opened a credit card account for his personal use with

defendant Capital One Bank (U.S.), N.A. (Capital One). In 2010, Capital One

mailed Browne an updated Customer Agreement that contained the terms and

conditions applicable to his use of the credit card. The Customer Agreement

contained the following terms pertinent to this appeal:

            The Law that Applies to Your Agreement.


1
  We refer to Lesroy Browne and the putative class members collectively as
"plaintiffs."
                                                                        A-2102-19T1
                                        2
            We make decisions to grant credit and issue you a
            [c]ard from our offices in Virginia. This Agreement
            will be interpreted using Virginia law. Federal law will
            be used when it applies.

            You waive any applicable statute of limitations as the
            law allows. Otherwise, the applicable statute of
            limitations period for all provisions and purposes under
            this Agreement (including the right to collect debt) will
            be the longer period provided by Virginia or the
            jurisdiction where you live. If any part of this
            Agreement is found to be unenforceable, the remaining
            parts will remain in effect.

                  ....

            Assignment.

            This Agreement will be binding on, and benefit, any of
            your and our successors and assigns.

                  ....

            We may transfer your Account and this Agreement to
            another company or person without your permission
            and without prior notice to you. They will take our
            place under this Agreement. You must pay them and
            perform all of your obligations to them and not us. If
            you pay us after you are informed or learn that we have
            transferred your Account or this Agreement, we can
            handle your payment in any way we think is reasonable.
            This includes returning the payment to you or
            forward[ing] the payment to the other company or
            person.

      Browne defaulted on his payments in October 2010. Capital One "charged

off" Browne's account in 2012. Thereafter, Capital One assigned its rights, title

                                                                         A-2102-19T1
                                       3
and interest in Browne's account, along with other charged-off Capital One

credit card accounts, to defendant Calvary SPV I, LLC (Calvary) in July 2014.2

       On May 22, 2015, Cavalry, as assignee of Capital One, filed a collection

action against Browne for the unpaid balance of $4022.70 on his credit card and

attorney's fees. The complaint included a copy of the Customer Agreement. In

Browne's answer, he raised fourteen affirmative defenses, including the

assertion that Calvary's claims were "barred by the applicable statute of

limitations."

       In September 2015, Browne filed a class action complaint and jury

demand against Capital One and Cavalry on behalf of himself and a class of

similarly situated consumers. 3 The proposed class under Rule 4:32-1(b)(3)

consisted of all consumers who resided in or were otherwise citizens of New

Jersey on the date the complaint was filed, who were issued a Customer

Agreement containing a "The Law that Applies to Your Agreement" term at any

time within six years prior to the date the complaint was filed, and whose



2
  In a certification supporting defendants' opposition to plaintiffs' motion for
certification, Calvary asserted it owned 17,370 Capital One accounts as of May
25, 2017. Of those accounts, 511 were in litigation, and 2273 accounts were
reduced to judgment.
3
    The two actions were consolidated in Middlesex County in February 2016.
                                                                        A-2102-19T1
                                       4
consumer account was assigned to Cavalry. The proposed class excluded class

members "who filed for Chapter 7 Bankruptcy relief and received a discharge in

Chapter 7 Bankruptcy up to and including the date the class is certified."

       Plaintiffs alleged the Customer Agreement term at issue – "The Law that

Applies to Your Agreement" – violated the TCCWNA. The complaint asserted

defendants were liable to the putative class under the TCCWNA as "the seller,

lessor, creditor, lender or bailee that issued the Capital One Customer

Agreement and/or as the assignee of the Capital One Customer Agreement."

       Plaintiffs further alleged the Customer Agreement: (1) "fail[ed] to inform

the consumer whether the purported waiver of the statute of limitations is

permitted by law in New Jersey"; (2) "does not set forth the applicable statute

of limitations in Virginia, which inhibits the cardholder from comparing the

Virginia statute of limitations to the statute of limitations in the cardholder's

jurisdiction"; and (3) "does not set forth the applicable statute of limitations in

New Jersey, which inhibits a cardholder from New Jersey from comparing the

Virginia statute of limitations to the statute of limitations in New Jersey."

       Virginia's statute of limitations for collection actions is three years for

unwritten contracts and five years for written contracts. Va. Code Ann. § 8.01-

246.   New Jersey's statute of limitations for contract actions is six years,


                                                                           A-2102-19T1
                                        5
regardless of whether a contract is written or unwritten. N.J.S.A. 2A:14-1.

Therefore, Browne asserted the applicable statute of limitations was material to

his defense of the collection action because Cavalry's complaint was filed more

than three years after Browne became delinquent in his payments.

      Browne and each member of the putative class sought the $100 minimum

statutory civil penalty permitted under the TCCWNA and reasonable attorneys'

fees and costs.

      Plaintiffs initially moved for class certification in November 2016 but

withdrew the application after the parties agreed to engage in settlement

discussions. When mediation was unsuccessful, plaintiffs refiled their motion

in April 2017. Thereafter, Browne was deposed.

      During his deposition, Browne testified that he recalled receiving the

Customer Agreement in the mail. Although he did not think he read the whole

agreement, he recalled reading the section in which he agreed to waive the

applicable statute of limitations. He said the language violated the TCCWNA

because he was not provided "sufficient information to be able to make a proper

decision as to . . . the statutes of limitation here in New Jersey and Virginia."

He clarified that he could not decide whether to sign the Customer Agreement




                                                                         A-2102-19T1
                                       6
because he did not know how long the statute of limitations was in New Jersey

or Virginia.

      Browne stated he signed the Customer Agreement but did not have a

specific recollection of doing so. He admitted his use of the credit card meant

he accepted the terms of the Customer Agreement. Browne was unsure if he

had incurred any monetary damages arising from defendants' TCCWNA

violation.

      Although the court heard oral argument on the second class certification

motion, the application was later withdrawn without prejudice. Thereafter, the

court issued several case management orders, further discovery took place, and

settlement discussions continued.

      When the settlement negotiations failed again, plaintiffs filed a third

motion for class certification in November 2017. 4 Defendants opposed the

motion, relying on the Supreme Court's decision in Dugan v. TGI Friday's, Inc.,

231 N.J. 24 (2017). In the alternative, defendants requested the court stay any

decision pending the Supreme Court's ruling in Spade v. Select Comfort Corp.,

232 N.J. 504 (2018).



4
  In all three applications, plaintiffs moved for class certification under Rule
4:32-1(b)(3).
                                                                        A-2102-19T1
                                       7
      After the Court issued its decision in Spade,5 the trial court permitted the

parties to submit supplemental briefing and heard oral argument on the

application. Defendants argued that Browne and the members of the putative

class could not establish they were aggrieved consumers under the TCCWNA

as articulated in Dugan and Spade.

      On June 29, 2018, the court denied the motion for class certification. In

its oral decision, the court stated:

             I just want to capture one portion of [defendants']
             opposition . . . with regard to the requirements for class
             certification.

             Specifically with the Supreme Court's decisions in
             Dugan and Spade/Wenger this is where the [c]ourt
             wants to focus. . . .

             The defendant asserts the [c]ourt should deny class
             certification because without undertaking highly
             individualized inquiries[,] plaintiff cannot prove that
             each class member is an aggrieved consumer as
             required by N.J.S.A. 56:12-17.

             Under TCCWNA, only [an aggrieved] consumer . . .
             can bring a claim. . . .
             Certainly the Supreme Court in Spade/Wenger defined
             what an aggrieved consumer constitutes.               The
             defendant asserts that in Dugan the plaintiff sought to
             certify a class challenging the restaurant['s] practice of
             omitting beverages prices from the menus as violating

5
   Spade was consolidated with the appeal in Wenger v. Bob's Discount
Furniture, LLC, No. 16-1572 (3d Cir. 2016). Spade, 232 N.J. at 508.
                                                                          A-2102-19T1
                                         8
[a] clearly established legal right of the putative class
and . . . the Supreme Court denied [class] certification
because . . . there was no way to prove that each
member had received a menu . . . .

Here the defendant asserts that the plaintiffs could not
in that case prove receipt of the menus through
circumstantial evidence such as server training
materials or customer receipts and that Dugan also
recognized an interaction requirement.

[Defendants contend plaintiffs must show p]roof of the
plaintiff[s'] interact[ion] with the alleged offending
writing and the particular provisions of that writing.
Further, the defendant asserts that with regard to the
Spade/Wenger decision like in Dugan[,] addressing the
receipt interaction here would require the [c]ourt to
analyze the particular circumstances surrounding each
putative class member[']s individual TCCWNA claim.

At a minimum the [c]ourt would need to determine who
received the customer agreement, actually read it, and
specifically th[e] part . . . that read . . . the law that
applies to your agreement.

The defendant also asserts that under [Spade/Wenger]
the class could only constitute aggrieved consumers[,]
that is consumers who have actual harm[,] [to] obtain a
remedy under TCCWNA.

Here although the defendants assert that it can be
beyond a monetary claim[;] the defendant points out
. . . at most the claims that the language at issue
hampered . . . plaintiff's ability to determine the
applicable statute of limitations, but the plaintiff has
shown nothing regarding the effect [of] [h]is supposed
inability to do so.


                                                             A-2102-19T1
                            9
            Well, the [c]ourt feels that this . . . would be an
            aggrieved consumer in terms of the ability to determine
            the applicable statute of limitations.

            I mean, that is a right that cannot be minimized. Where
            the [c]ourt had difficulty with this present application
            seeking class certification is that other portion under
            Dugan and that is the proofs that would be required as
            to individual plaintiffs and whether or not then under
            that analysis under Dugan and under Spade/Wenger
            whether or not a class certification can be made at this
            time.

            It's for that reason[] . . . that the [c]ourt . . . is denying
            this present application for class certification and
            invites the plaintiffs to seek to renew their motion when
            they can address the issues raised by the [c]ourt as a
            result of the Spade/Wenger decision and also Dugan.

            So at this time, the motion for class certification is
            denied. I will ask the special master to schedule a
            conference if that will assist [the plaintiffs] in getting
            . . . to seek class certification again and whether they
            need any class certification discovery in that regard.

            I know you've had discovery, but I don't know if there
            is anything else that you would need to address the
            concerns the [c]ourt has in granting class certification
            at this time.

      On January 8, 2019, plaintiffs moved for reconsideration of the court's

June 29, 2018 decision. On December 10, 2019, the court denied the motion for

reconsideration without prejudice for failing to provide a copy of the transcript

of the June decision. On the same day, plaintiffs' counsel wrote a letter to the


                                                                             A-2102-19T1
                                        10
court advising that the transcript of the June decision was previously provided

in a February 22, 2019 supplemental certification.

      On December 11, 2019, the court vacated its December 10, 2019 order

and entered a new order denying the motion for class certification. The judge

wrote on the order:

            Plaintiff waited approximately six months to file this
            motion for reconsideration. The court invited this
            motion in the event plaintiff sought discovery as
            contemplated by the court's June 29, 2018 ruling. No
            discovery has been conducted. The court relies, and
            adopts herein, by reference, its decision of June 29,
            2018. This motion is untimely.

      On December 31, 2019, plaintiff filed a motion for leave to file an

interlocutory appeal. We granted the motion. During the pendency of the

appeal, plaintiff filed a motion before the trial court for leave to file an amended

class action complaint. The trial court granted the motion. Thereafter, plaintiff

filed an amended class action complaint, adding a claim for injunctive relief and

seeking class certification under Rules 4:32-1(b)(2) and (b)(3).6

      On appeal, plaintiffs argue the trial court erred in denying the motion for

reconsideration because the court misconstrued Dugan in its application of the



6
  During oral argument on the appeal, plaintiffs' counsel advised they intended
to pursue class certification under Rules 4:32-1(b)(2) and (b)(3).
                                                                            A-2102-19T1
                                        11
"interaction" requirement in the June 2018 ruling. In addition, plaintiffs contend

the court further erred in its determination that the reconsideration motion was

untimely.

      We can quickly dispose of the second argument.           The order denying

plaintiffs' motion for class certification was an interlocutory order. Despite the

denial of class certification, Browne still retained his individual claims.

      Under Rule 1:7-4(b), a motion for reconsideration of an interlocutory

order is determined pursuant to Rule 4:42-2. An interlocutory order is "subject

to revision at any time before the entry of final judgment in the sound discretion

of the court in the interest of justice." R. 4:42-2; cf. R. 4:49-2 (providing that a

motion for reconsideration of a final order must be filed within twenty days of

service of the order); Sullivan v. Coverings & Installation, Inc., 403 N.J. Super.

86, 96 (App. Div. 2008) (noting that "the time prescriptions set forth in Rule

4:49-2 apply to final judgments and orders, not interlocutory orders, which are

reviewable at any time" until final judgment).

      Moreover, the June 29, 2018 order permitted plaintiffs to conduct

additional discovery and renew their motion for class certification. The court

did not set deadlines for the renewal of the motion. The motion was not

untimely.


                                                                              A-2102-19T1
                                        12
      We turn then to plaintiffs' contention that the trial judge erred in denying

class certification because she misconstrued the "interaction" requirement under

Dugan and failed to consider facts showing class members interacted with the

Customer Agreement. We review the court's order for an abuse of discretion.

Dugan, 231 N.J. at 50.

      Specifically, plaintiffs contend that, under Dugan and Spade, to establish

a violation of the TCCWNA, Browne and the putative class members must

demonstrate only that they received the Customer Agreement, not that they

"actually read" the Customer Agreement and "The Law that Applies to Your

Agreement" provision.       Plaintiffs assert the evidence that the Customer

Agreement was mailed to class members is sufficient to prove receipt of and

interaction with the Customer Agreement. Furthermore, once Browne and the

class members opened credit card accounts with Capital One, and used their

credit cards, they established a contractual relationship and accepted the terms

of the Customer Agreement.

      In addition, plaintiffs allege that individualized inquiries are not necessary

to prove the actual harm requirement under Spade. Browne claims he was

harmed because the language of the Customer Agreement did not inform him

whether New Jersey law permitted the waiver of a statute of limitations defense.


                                                                            A-2102-19T1
                                       13
Because it was unclear whether and how to defend himself in the collection

lawsuit, Browne contends he was forced to hire counsel.

      Defendants reassert that Browne and each class member must show they

"received the document, read it, and acted or failed to act to his or her detriment

because of the alleged failure to disclose." (emphasis omitted). They contend

a putative class member could establish harm only by proving that he or she

suffered an adverse effect as a result of reading (i.e., interacting with) the "Law

that Applies to Your Agreement" provision. Defendants maintained they would

need to conduct individualized inquiries of each putative class member as to

whether he or she received and read – interacted – with the Customer

Agreement.

      In addition, defendants contend there are other barriers to class

certification requiring the denial of plaintiffs' motion. They assert there are

individualized issues regarding their debt-related compulsory counterclaims and

setoff defenses that would predominate over common questions.

      Furthermore, defendants argue the trial court would need to assess the

affirmative defenses of all 13,192 putative class members with outstanding

balances. And, if a class were certified, many class members would suffer "a




                                                                           A-2102-19T1
                                       14
net loss," making class certification an inferior method of adjudicating their

claims.7

      When considering a motion 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 v. Wal-Mart Stores, Inc., 191 N.J. 88,

107 (2007)).    The court "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 v. Carter-

Reed Co., LLC, 203 N.J. 496, 505 (2010) (citations omitted).

      Although the court "must undertake a 'rigorous analysis'" to determine if

the requirements of Rule 4:32-1 have been satisfied, Dugan, 231 N.J. at 49

(quoting Iliadis, 191 N.J. at 106-07), the court must also "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 v. Hollister Co., 440 N.J. Super. 359, 363 (App.

Div. 2015) (second alteration in original) (quoting Iliadis, 191 N.J. at 103).




7
  Because, under the Customer Agreement, class members would be liable for
defendants' collection expenses, attorney's fees and court costs, defendants
assert many members would incur a "net loss."
                                                                              A-2102-19T1
                                         15
      To certify a class action, the putative class plaintiff must first establish the

requirements stated under Rule 4:32-1(a):

             (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 (4) the representative parties
             will fairly and adequately protect the interests of the
             class.

      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), (2) or (3).

      On appeal, defendants have not argued plaintiffs did not meet the Rule

4:32-1 requirements of numerosity, commonality, typicality and adequacy of

representation. The court did not address those conditions in its June 2018

decision. We consider then only whether plaintiff satisfied the prerequisites for

class certification under Rule 4:32-1(b)(3), which requires the court to consider

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


                                                                              A-2102-19T1
                                        16
            to other available methods for the fair and efficient
            adjudication of the controversy.

To determine predominance under Rule 4:32-1(b)(3), a court determines

whether the proposed class is "sufficiently cohesive to warrant adjudication by

representation." Dugan, 231 N.J. at 48 (quoting Iliadis, 191 N.J. at 108).

      Here, plaintiffs allege "The Law that Applies to Your Agreement"

provision in the Customer Agreement violated the TCCWNA. We are guided

by several recent Supreme Court decisions.

      The TCCWNA was enacted "to prevent deceptive practices in consumer

contracts." Dugan, 231 N.J. at 67-68 (quoting Kent Motor Cars, Inc. v. Reynolds

& Reynolds Co., 207 N.J. 428, 457 (2011)). The statute provides that it is

unlawful for a "seller, lessor, creditor, lender or bailee" to "offer to any

consumer[8] . . . or enter into any written consumer contract . . . which includes

any provision that violates any clearly established legal right of a consumer . . .

as established by State or Federal law at the time the offer is made or the

consumer contract is signed . . . ." N.J.S.A. 56:12-15. Any person who violates

the TCCWNA "shall be liable to the aggrieved consumer for a civil penalty of



8
  TCCWNA defines "consumer" as "any individual who buys, leases, borrows,
or bails any money, property or service which is primarily for personal, family
or household purposes." N.J.S.A. 56:12-15.
                                                                           A-2102-19T1
                                       17
not less than $100.00 or for actual damages, or both . . . together with reasonable

attorney's fees and court costs." N.J.S.A. 56:12-17.

      To prevail on a TCCWNA claim, a plaintiff must prove four elements:

            first, that the defendant was a "seller, lessor, creditor,
            lender or bailee or assignee of any of the aforesaid";
            second, that the defendant offered or entered into a
            "written consumer contract or [gave] or display[ed] any
            written consumer warranty, notice or sign"; third, that
            at the time that the written consumer contract is signed
            or the written consumer warranty, notice or sign is
            displayed, that writing contains a provision that
            "violates any clearly established legal right of a
            consumer or responsibility of a seller, lessor, creditor,
            lender or bailee" as established by State or Federal law;
            and finally, that the plaintiff is an "aggrieved
            consumer."

            [Spade, 232 N.J. at 516 (alterations in original)
            (quoting N.J.S.A. 56:12-15, -17).]

      The Spade Court sharpened the term "aggrieved consumer," defining it as

"a consumer who has suffered some form of harm as a result of the defendant's

conduct." Id. at 522 (citations omitted). "In the absence of evidence that the

consumer suffered adverse consequences as a result of the defendant's regulatory

violation, a consumer is not an 'aggrieved consumer' for purposes of the

TCCWNA."       Id. at 524.     The Court cautioned that "harm" or "adverse

consequences" does not necessarily mean that the plaintiff must have incurred

"monetary damages." Id. at 523. The Court stated:

                                                                           A-2102-19T1
                                       18
             Proof of harm resulting from contract language
             prohibited by N.J.S.A. 56:12-15 may warrant a civil
             penalty under N.J.S.A. 56:12-17, even if the harm is not
             compensable by damages.

             In the absence of evidence that the consumer suffered
             adverse consequences as a result of the defendant's
             regulatory violation, a consumer is not an "aggrieved
             consumer" for purposes of the TCCWNA.

             [Id. at 524.]

      In reviewing the court's decision against that backdrop, we cannot discern

whether the court found Browne and the putative class demonstrated harm

sufficient to deem them "aggrieved consumers" under the TCCWNA.

Therefore, we are constrained to reverse and remand for reconsideration of

plaintiffs' motion.

      In her oral decision on June 29, 2018, the judge recited defendants'

arguments.    Specifically, she noted defendants contended Browne, as the

putative class representative, could not prove each class member was an

aggrieved consumer under N.J.S.A. 56:12-17 "without undertaking highly

individualized inquiries." She referred to defendants' assertion that plaintiffs

would have to prove that each class member interacted with the "alleged

offending writing and the particular provisions of that writing." She then stated:

"At a minimum the [c]ourt would need to determine who received the customer


                                                                          A-2102-19T1
                                       19
agreement, actually read it, and specifically th[e] part . . . that read . . . the law

that applies to your agreement." It is unclear whether the court is still referring

to defendants' arguments or making a finding on the "interaction" requirement

or referring to the predominance requirement under Rule 4:32-1(b)(3).

      The judge continued to refer to defendants' arguments in her next

sentence, noting their assertion that, under the TCCWNA, the putative class can

only constitute aggrieved consumers who have incurred actual harm. The judge

stated, "Well, the [c]ourt feels that this . . . would be an aggrieved consumer in

terms of the ability to determine the applicable statute of limitations."

      That statement seems to be a finding that defendants' conduct violated the

TCCWNA, but as stated, that is not sufficient to find plaintiffs are aggrieved

consumers. Furthermore, the court did not address the second requirement under

Spade – whether plaintiffs suffered any adverse consequences or harm from the

violation.

      On     remand,   the   court    should    consider   plaintiffs'   motion    for

reconsideration of the June 2018 decision anew. The analysis must include a

determination whether class certification is appropriate under Rule 4:32-1 to

determine whether plaintiffs are aggrieved consumers under the TCCWNA. The

court should specifically address whether the court would be required to


                                                                              A-2102-19T1
                                         20
undertake individualized inquiries to determine whether the putative class

members "interacted" with the disputed contract term, and whether the putative

class members sustained any actual harm or adverse consequences as a result of

the claimed TCCWNA violation, as required by Spade.

      The court must also determine the issue of predominance under Rule 4:32-

1(b)(3) – whether common questions of law and fact predominate over

individual questions.   Because the court permitted plaintiffs to amend its

complaint to add an injunctive class, on remand the court must determine

whether plaintiffs have satisfied class certification under both Rules 4:32-

1(b)(2) and (b)(3).

      Reversed and remanded for further proceedings in accordance with this

decision. We do not retain jurisdiction.




                                                                      A-2102-19T1
                                      21
