                     NOT FOR PUBLICATION WITHOUT THE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-3756-15T2

SHIRLEY POLANCO, individually
and on behalf of all others
similarly situated,

           Plaintiff-Respondent/
           Cross-Appellant,

     v.

STAR CAREER ACADEMY, SC ACADEMY
HOLDINGS, INC. and SC ACADEMY,
INC.,

          Defendants-Appellants/
          Cross-Respondents.
_____________________________________

           Argued May 15, 2018 – Decided July 26, 2018

           Before Judges Fisher, Sumners and Natali.

           On appeal from Superior Court of New Jersey,
           Law Division, Camden County, Docket No.
           L-0415-13.

           David Jay argued the cause for appellants/
           cross-respondents (Greenberg Traurig, LLP,
           attorneys; David Jay, Jason H. Kislin and
           Paige S. Nestel, on the brief).

           Patricia V. Pierce and Thomas More Marrone
           argued   the   cause   for   respondent/cross-
           appellant (Greenblatt Pierce Funt & Flores,
           LLC, and MoreMarrone, LLC, attorneys; Patricia
            V. Pierce and Thomas More Marrone, on the
            brief).

            Joseph B. Schmit (Phillips Lytle, LLP) of the
            New York bar, admitted pro hac vice, argued
            the cause for intervenor Summer Street Capital
            Partners, LLC (John R. Altieri and Joseph B.
            Schmit, attorneys; Joseph B. Schmit, of
            counsel; John R. Altieri, on the brief).

            Laurence B. Orloff argued the cause for
            intervenors Andrew Kaplan and Quad Partners
            LLC (Orloff, Lowenbach, Stifelman & Siegel,
            PA, and Arthur H. Aufses III (Kremer Levin
            Naftalis & Frankel, LLP) of the New York bar,
            admitted pro hac vice, attorneys; Laurence B.
            Orloff, Xiao Sun and Arthur H. Aufses, III,
            on the brief).

            Stephen M. Orlofsky argued the cause for
            intervenors Gemini Investors IV, LP, Gemini
            Investors V, LP, James Rich and Robert Menn
            (Blank Rome LLP, attorneys; Stephen M.
            Orlofsky, David C. Kistler and Michael A.
            Iannucci, of counsel and on the brief).

PER CURIAM

     This    class    action   alleges   violations   of   the   New    Jersey

Consumer Fraud Act (Act), N.J.S.A. 56:8-1 to -20. After an adverse

jury verdict, defendants Star Career Academy, SC Academy Holdings.

Inc. and SC Academy, Inc. (Star) appeal from the final judgment

and several pre- and post-trial orders.         Star claims:

            POINT I

            THE TRIAL COURT'S REFUSAL TO INTERPRET THE
            [SURGICAL TECHNOLOGY] LAW ON SUMMARY JUDGMENT
            WAS REVERSIBLE ERROR.



                                     2                                 A-3756-15T2
            POINT II

            THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
            PRECLUDING STAR FROM PRESENTING EVIDENCE TO
            SHOW THAT PLAINTIFF HAD NOT ESTABLISHED THE
            ELEMENTS OF THE NJCFA CLAIM THAT SHE WAS
            ASSERTING ON BEHALF OF THE CLASS.

            A. IT WAS REVERSIBLE ERROR TO PRECLUDE
            STAR FROM PRESENTING JOBS EVIDENCE AND
            "REASONS FOR UNEMPLOYMENT EVIDENCE" TO
            SHOW THAT PLAINTIFF HAD NOT PROVEN HER
            NJCFA CLAIM.

            B. IT WAS REVERSIBLE ERROR TO PRECLUDE
            STAR FROM PRESENTING "VALUE" EVIDENCE TO
            SHOW THAT PLAINTIFF HAD NOT PROVEN HER
            NJCFA CLAIM.

            POINT III

            THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
            REFUSING TO DECERTIFY A CLASS EVEN THOUGH
            COMMON ISSUES DID NOT PREDOMINATE OVER
            INDIVIDUAL ONES.

     Plaintiff Shirley Polanco, individually and as the class

representative, seeks to affirm the final judgment, and she cross-

appeals claiming the court improperly reduced her statutorily

authorized attorney fee award.       She also appeals from the court's

order denying her motion for leave to file a second class action

complaint    to   add   intervenor       Andrew   Kaplan   (Kaplan)   and

unidentified defendants as parties. Specifically, she claims:




                                     3                           A-3756-15T2
          POINT I1

          THE TRIAL COURT COMMITTED REVERSIBLE ERROR
          WHEN IT DENIED PLAINTIFF'S TIMELY MOTION TO
          ADD A SINGLE INDIVIDUAL DEFENDANT, AND
          CORPORATE AND INDIVIDUAL "DOE" DEFENDANTS.
          THE COURT DENIED PLAINTIFF'S REQUEST MORE THAN
          ONE YEAR BEFORE TRIAL AND EVEN BEFORE CLASS-
          WIDE MERITS DISCOVERY HAD COMMENCED, DESPITE
          NO SHOWING OF ANY PREJUDICE TO THE PROPOSED
          INDIVIDUAL MUCH LESS TO ANY "DOE," WHOSE
          IDENTITY WAS UNKNOWN AT THAT STAGE.

          A. THE LEGAL STANDARD APPLICABLE TO A
          MOTION FOR LEAVE TO AMEND.

          B. THE TRIAL COURT ABUSED ITS DISCRETION
          BY DENYING PLAINTIFF'S MOTION FOR LEAVE
          TO AMEND.

          POINT II

          THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
          CONNECTION WITH ITS FEE AWARD TO CLASS COUNSEL

          A. THE APPLICABLE LEGAL    STANDARD   FOR
          AWARDING FEES AND COSTS.

          B. THE REQUESTED FEES ARE APPROPRIATE
          UNDER THE RENDINE/WALKER2 FACTORS.

          1.   THE  TIME   SPENT  AND   RATES
          REQUESTED ARE REASONABLE.

          C. A 75% FEE ENHANCEMENT IS APPROPRIATE.




1
   We have renumbered plaintiff's appellate points for ease of
reference.
2
  Rendine v. Pantzer, 141 N.J. 292 (1995); Walker v. Giuffre, 209
N.J. 124 (2012).

                                4                          A-3756-15T2
      After a thorough review of the record, we affirm the court's

order denying Star's motion for summary judgment as genuine issues

of material fact existed with respect to Star's misrepresentations

and   omissions   regarding   its   "programmatic"      accreditation   for

surgical technologists.       But, because we agree with Star that

common questions of law or fact did not predominate over questions

affecting individual members as required by Rule 4:32-1(b)(3), we

vacate the court's order certifying the class.           We also conclude

that the court's evidentiary rulings in which it materially limited

Star from introducing evidence that was relevant to Star's defenses

under the Act and to challenge plaintiff's and the class members'

damages were erroneous and provide an independent basis to reverse

the jury’s verdict.

      Finally, because the court's decision denying plaintiff's

request to amend the pleadings to add new parties was based, in

large part, on the belated nature of the application we also vacate

that order as our opinion decertifying the class removes those

concerns.    Accordingly, we vacate the final judgment, and any

attorney fee award, and remand for proceedings in accordance with

this opinion.

                                    I.

      Star and its affiliates are owners of for-profit schools,

including   the    institution      at   issue   that    trains   surgical

                                     5                             A-3756-15T2
technicians (ST).3         Star's mission is to provide "performance-

based occupational training to prepare students for entry-level

employment" in various fields, including allied health fields.

      In   2011,     N.J.S.A.    26:2H-12.63          (the    ST   law)    was    passed

addressing five routes for employment as a surgical technologist

in a New Jersey health care facility.                   One route was successful

completion of a "nationally or regionally accredited educational

program for surgical technologists."                 N.J.S.A. 26:2H-12.63(a).           An

alternative route was to obtain a "certified surgical technologist

credential     administered       by        the    National    Board      of   Surgical

Technology and Surgical Assisting or its successor, or other

nationally     recognized       credentialing          organization."          N.J.S.A.

26:2H-12.63(b).

      There    are   two   types       of    higher     education      accreditation:

programmatic and institutional.                   The Commission on Accreditation

of Allied Health Education Programs (CAAHEP) and the Accrediting

Bureau of Health Education Schools (ABHES) are the only nationally

recognized accreditors of ST programs.                       Star did not receive

programmatic accreditation from CAAHEP or ABHES.                     The Accrediting

Commission of Career Schools and Colleges (ACCSC) is approved by

the   United    States     Department         of     Education     (USDOE)     to    give


3
   The terms surgical technician and surgical technologist are
used interchangeably in this opinion.

                                             6                                   A-3756-15T2
institutional     accreditation,       but   is    not       authorized     to     give

programmatic accreditation to an ST program.                        In August 2010,

ACCSC recognized Star as an accredited institution.

     Plaintiff enrolled in Star's ST program in July 2011.                         Her

tuition was $18,213.      While enrolled in the program, plaintiff

asked the director of Star's ST program whether the newly passed

ST law would affect her ability to gain employment as a ST.                        The

director assured her that graduating from Star's program would

qualify her under the ST law.           The director of externships for

Star's Clifton campus also told plaintiff that Star's ST program

was accredited.

     Other students questioned Star admissions officers as to how

the ST law would affect them.          Admissions officers discussed the

issues surrounding Star's program accreditation under the ST law

with their subordinates, but instructed them to "sell the program

as best as [they] could."

     A year after the ST law was enacted, an entire class of ST

students   withdrew    from   the   program       "in       protest"    because    the

Association      of   Surgical      Technologists            (AST),     a   national

organization     representing    the    profession,          told    them   that   the

program    was   worthless.      According        to    a    Star     administrator,

admissions officers gave inaccurate information to students on the

ST law and accreditation requirements.

                                       7                                     A-3756-15T2
      In August 2012, John A. Calabria of the New Jersey Department

of   Health   (DOH)   issued    a    memorandum   addressing       programmatic

accreditation under the ST law that stated, "If a[n] [ST] program

is listed as accredited [by the USDOE] . . . , then it is compliant

with [the ST law]."      Two months after Calabria's memorandum, an

AST representative emailed Star that, to comply with the ST law,

programmatic accreditation was necessary and that an ST program

should only be considered regionally or nationally accredited for

purposes of the ST law if it was accredited by CAAHEP or ABHES.

Star's CEO and president disagreed with AST's understanding of the

ST   law,   explaining   that   it    was   sufficient    if   a    school   had

institutional accreditation rather than programmatic accreditation

and that accreditation by ABHES or CAAHEP was unnecessary.

      According to plaintiff, the National Center for Competency

Testing (NCCT) administered testing to graduates of ST programs,

but was not nationally recognized as required by N.J.S.A. 26:2H-

12.63(b).     NCCT recognized Star's ST program as approved for the

"tech in surgery-certified" certification exam; in other words,

graduates of the Star ST program were eligible for the exam.

However, because NCCT was not nationally recognized under the ST

law, they added a disclaimer to their website indicating that

their exam was not accepted in New Jersey.               Star's director of

clinical externships contacted NCCT asking them to remove the

                                       8                                A-3756-15T2
disclaimer and "stop making such a definitive statement that [the

NCCT certification] is not accepted" in New Jersey.

      Star also asked the DOH to confirm that Star's accreditation

from ACCSC met the requirements of the ST law.    Star represented

to DOH that its ST program was accredited by the ACCSC.    The DOH

responded, "A[n]    [ST] program offered in New Jersey that is

accredited by any accrediting agency recognized by the [USDOE]

meets the requirements of the [ST law]." However, while Calabria's

2012 memorandum reflected his understanding that institutional

accreditation was sufficient and programmatic accreditation was

not   necessary,     he   later   recognized   that   institutional

accreditation was not sufficient and programmatic accreditation

was necessary.     A supplemental memorandum reflecting Calabria's

change in knowledge was never issued.

      Despite uncertainty about whether Star's ST program met the

requirement of the ST law, Star continued to enroll students.      In

February 2014, Star began to provide current and prospective

students with a disclosure indicating that the law was in flux and

Star disagreed with any interpretation of the ST law finding that

its ST program did not comply with the law.

      Approximately three years after enrolling, plaintiff filed a

class action complaint naming Star as the sole defendant and

alleging that Star violated the Act by misrepresenting information

                                  9                         A-3756-15T2
about the accreditation of its ST program in connection with the

ST law.   Plaintiff specifically claimed Star failed to disclose:

           (a) the requirements and consequences of New
           Jersey's [ST] Law . . .;

           (b) that [Star] was not a nationally or
           regionally accredited educational program for
           surgical technologists within the meaning of
           the [ST] Law;

           (c) that [Star's] [ST] [p]rogram graduates
           would not be permitted to obtain a [ST]
           credential administered by the National Board
           of Surgical Technology and Surgical Assisting
           or   its  successor,   or  other   nationally
           recognized credentially organization;

           (d) that because the [Star] [ST] [p]rogram did
           not comply with the [ST] Law, [Star] [ST]
           Program graduates would not be permitted to
           be employed in the State of New Jersey as
           Surgical Technologists, under the terms of the
           [ST] law; and

           (e) that [Star's] [ST] [p]rogram did not
           otherwise qualify [p]laintiff and other [Star]
           students to practice surgical technology upon
           completion of the Program.

She also described her, and the other class members', ascertainable

loss as tuition and loan costs.        The proposed class was comprised

of "all individuals who were enrolled in [Star's] [ST] [p]rogram

for surgical technician training to take place in the State of New

Jersey as of June 29, 2011 and thereafter."

      Star filed two unsuccessful motions for summary judgment.             In

its   second   motion,   the   court   rejected   Star's   request    for    a


                                   10                                A-3756-15T2
definitive     interpretation    of    the     ST    statute   concluding   that

material factual questions existed surrounding Star's knowledge

of the ST law and the accreditation of its ST program.                The court

also denied Star's motion for reconsideration.

     Over Star's objection, the court certified a class consisting

of individuals enrolled in Star's ST program after June 29, 2011,

and appointed plaintiff class representative.                  The court denied

Star's subsequent motion to decertify the class.               We denied Star’s

motion for interlocutory review of that determination and its

motion for reconsideration.       The Supreme Court also denied Star's

motion.    Also, plaintiff's motion to amend the pleadings to add

various defendants was denied by the court as untimely.

     Prior to trial, the parties filed various in limine motions

surrounding the admissibility of evidence pertaining to class

members' employment, reasons for class members' unemployment, and

the value of the Star ST program degree.                 In finding that the

claims    of   the   class   addressed      Star's    misrepresentations     and

omissions,     rather   than   jobs,     the   court    precluded    Star   from

including the jobs, reasons for unemployment, and value evidence

for liability purposes.

     The jury returned a $2.969 million verdict in favor of the

class.    In accordance with the Act, the court trebled the damages

and entered final judgment, plus interest, in the amount of

                                       11                               A-3756-15T2
$9,091,941.35.   Pursuant to plaintiff's motion for attorneys' fees

and costs, the court awarded the class $1.7 million in attorneys'

fees.

                              II.

     Star argues in its first point that the court twice erred in

refusing to grant its motions for summary judgment and, more

specifically, to interpret the ST law in its favor.    We disagree

and conclude that the summary judgment record established the

existence of genuine and material factual questions that precluded

summary judgment.

     In ruling on a summary judgment motion, a trial court must

"consider whether the competent evidential materials presented,

when viewed in the light most favorable to the non-moving party,

are sufficient to permit a rational factfinder to resolve the

alleged disputed issue in favor of the non-moving party."     Brill

v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).        An

appellate court reviews a grant of summary judgment de novo, using

the same standard as the trial court.    Turner v. Wong, 363 N.J.

Super. 186, 198-99 (App. Div. 2003).      Thus, we must determine

whether a genuine issue of material fact is present and, if not,

evaluate whether the trial court's ruling on the law was correct.

Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162,

167 (App. Div. 1998).   To assess whether the facts in the motion

                                12                          A-3756-15T2
record created a genuine and material dispute, we briefly discuss

the elements and principles underpinning the Act.

     The Act is to be construed broadly to meet its remedial

purpose and root out consumer fraud.       Lemelledo v. Beneficial

Mgmt. Corp. of Am., 150 N.J. 255, 264 (1997).    The Supreme Court

has emphasized that it is the "capacity to mislead [that] is the

prime ingredient of all types of consumer fraud."     Cox v. Sears

Roebuck & Co., 138 N.J. 2, 17 (1994).   See also Fenwick v. Kay Am.

Jeep, Inc., 72 N.J. 372, 378 (1977).

     The Act provides treble damages when a person suffers an

"ascertainable loss" as a result of:

          [t]he act, use or employment by any person of
          any   unconscionable   commercial   practice,
          deception, fraud, false pretense, false
          promise, misrepresentation, or the knowing,
          concealment, suppression, or omission of any
          material fact with intent that others rely
          upon   such   concealment,   suppression   or
          omission, in connection with the sale or
          advertisement of any merchandise or real
          estate. . . .

          [N.J.S.A. 56:8-2.]

     Thus, a claim under the Act is comprised of three elements:

"(1) unlawful conduct . . .; (2) an ascertainable loss . . .; and

(3) a causal relationship between the defendants' unlawful conduct

and the plaintiff's ascertainable loss."   Int'l Union of Operating

Eng'rs Local No. 68 Welfare Fund v. Merck & Co., Inc., 192 N.J.


                               13                           A-3756-15T2
372, 389 (2007) (quoting N.J. Citizen Action v. Schering-Plough

Corp., 367 N.J. Super. 8, 12-13 (App. Div. 2003)).                           Unlawful

practices under the Act fall into three categories: affirmative

acts, knowing omissions, and regulation violations.                   Cox, 138 N.J.

at 17.

      To suffer an ascertainable loss, a plaintiff must "suffer a

definite, certain and measurable loss, rather than one that is

merely theoretical."         Bosland v. Warnock Dodge, Inc., 197 N.J.

543, 558 (2009).      "The certainty implicit in the concept of an

'ascertainable' loss is that it is quantifiable or measurable."

Ibid. (quoting Thiedemann v. Mercedes-Benz U.S., LLC, 183 N.J.

234, 248 (2005)).      Moreover, the ascertainable loss requirement

has been understood generally in terms making it equivalent to

"any lost 'benefit of [the] bargain.'"                  Ibid. (alteration in

original) (quoting Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 11-

13 (2004)).

      The ST law provides five routes for an individual to become

eligible   to    "practice    surgical       technology   in     a        health   care

facility."      N.J.S.A. 26:2H-12.63.         Only two have relevance here:

the   successful     completion       of    "a     nationally        or    regionally

accredited      educational    program       for    surgical     technologists,"

N.J.S.A.   26:2H-12.63(a),      and    the    maintenance       of    a    "certified

surgical technologist credential administered by the National

                                       14                                      A-3756-15T2
Board    of   Surgical      Technology    and      Surgical     Assisting      or   its

successor,       or    other     nationally          recognized        credentialing

organization," N.J.S.A. 26:2H-12.63(b).

       According to Star, it is undisputed that it possessed a

credential from ACCSC, a "nationally recognized credentialing

organization," ibid., and therefore Star graduates, by the clear

and unambiguous language of the ST statute (as informed and

supported by the relevant legislative history) were eligible to

take    any   necessary     licensing    exam      and   otherwise      practice      as

surgical technologists.          Thus, Star argued before the court and

before us that it could not have violated the Act because it did

not misrepresent its ability for its graduates to be certified as

surgical technologists.

       The    court,   in   denying   Star's       second     motion    for    summary

judgment, considered interpretation of the ST Law irrelevant,

stating that the critical issue was whether, beginning in 2011,

Star     representatives        failed        to     disclose     the    widespread

disagreement with its interpretation of the ST law.

       We agree that in light of the significant evidence submitted

by      plaintiff      establishing           that       Star     made        material

misrepresentations to students regarding the lack of programmatic

accreditation and its failure to inform its students that it was

aware of concerns regarding Star's lack of such accreditation, it

                                         15                                    A-3756-15T2
was unnecessary for the court to interpret N.J.S.A. 26:2H-12.63

for plaintiff's consumer fraud claim to survive summary judgment. 4

     Factual questions abound in the summary judgment record on

this point.      For example, employees of Star acknowledged that

Star's   ST   program   lacked   program       accreditation    and     Star    was

unprepared      to    seek   such   accreditation.        Also,       in     sworn

certifications, students of Star's ST program alleged that Star

failed to disclose that relevant organizations and members of the

healthcare field questioned Star's compliance with the ST law.

The summary judgment record also established that Star attempted

at multiple times to thwart the AST from publicly interpreting the

ST statute as requiring programmatic accreditation.

     From these facts we conclude that an individual seeking an

education from a for-profit school like Star has the inherent

right to know, prior to enrollment, that the school does not hold

both programmatic and institutional credentials if for no other

reason   than    to   give   students    the    choice   to    attend      another

institution that possesses both accreditations.                  Students who

attend Star and similar vocational institutions are primarily



4
   We note that for reasons not sufficiently explained in the
record, and despite the undisputed controversy regarding the
interpretation of the ST law, Star never sought declaratory relief
in accordance with N.J.S.A. 2A:16-50 to -62.


                                    16                                     A-3756-15T2
interested in obtaining a degree to advance their professional

careers and increase their earning potential.         That Star was not

programmatically credentialed, giving plaintiff all reasonable

inferences from the summary judgment record, influenced certain

potential employers of Star graduates. In light of these concerns,

it is not unreasonable to conclude that a student deciding to

enroll at Star, if informed that it did not have programmatic

approval, would elect to enroll elsewhere and thus we cannot ignore

that Star's potential and "capacity to mislead" plaintiff on this

point is of material concern.        Cox, 138 N.J. at 17.5    Also, while

the record contains allegations of multiple misrepresentations

made by Star to certain class members unrelated to its programmatic

accreditation     —   which    affects     the    propriety    of     class

certification, as discussed in Section III — based on just these

genuine   and   material   factual   questions,   summary    judgment    was

appropriately denied.




5
  We note that the record contains evidence that such alternatives
did   exist  for   students   interested  in   becoming   surgical
technologists.    Indeed, Bergen Community College's surgical
technology program possessed both programmatic and institutional
accreditation.

                                     17                             A-3756-15T2
                               III.

     Star also argues that the court improperly certified the

class because common issues did not predominate over individual

ones. We agree.

     Class   actions   are   governed   by   Rules   4:32-1   and   -2.

Specifically, Rule 4:32-1(a) dictates:

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

     New Jersey courts "have consistently held that the class

action rule should be liberally construed."      Myska v. New Jersey

Mfts. Ins. Co., 440 N.J. Super. 458, 475 (App. Div. 2015).            In

order to bring a class action lawsuit, it is well established that

the named representative must individually possess standing to

bring their claims.    Rosen v. Continental Airlines, Inc., 430 N.J.

Super. 97, 107 (App. Div. 2013).

     Regarding the commonality of questions of law or fact, "[a]ll

of the factual and legal questions in the case need not be

identical for all of the proposed class members."     Goasdone v. Am.

Cyanamid Corp., 354 N.J. Super. 519, 528 (Law Div. 2002).             In


                                 18                            A-3756-15T2
fact, "a single common question" satisfies the requirement of Rule

4:32-1(a)(2).      Id. at 529.     The threshold for commonality of

questions of law or fact is relatively low.       Ibid.

     In addition to the requirements of Rule 4:32-1(a), a class

action may be maintained when "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."      R. 4:32-1(b)(3).     The

proposed   class    must   be    "sufficiently   cohesive   to   warrant

adjudication by representation."        Illiadis v. Wal-Mart Stores,

Inc., 191 N.J. 88, 108 (2007) (quoting Amchem Prods. v. Windsor,

521 U.S. 591, 623 (1997)).       The court should conduct a pragmatic

assessment of numerous factors, including:

           [T]he significance of the common questions .
           . . [which] involves a qualitative assessment
           of the common and individual questions rather
           than a mere mathematical quantification of
           whether there are more of one than the other.
           . . . [W]hether the "benefit" of resolving
           common   and   presumably   some   individual
           questions through a class action outweighs
           doing so through "individual actions." . . .
           [W]hether a class action presents "a common
           nucleus of operative facts."

           [Lee v. Carter-Reed Co., L.L.C., 203 N.J. 496,
           519-20 (2010) (citations omitted).]




                                   19                            A-3756-15T2
      A plaintiff need not show an "absence of individual issues

or   that   the    common   issues     dispose    of   the   entire    dispute."

Illiadis, 191 N.J. at 108.           The basic question is "whether the

potential class, including absent members, seeks 'to remedy a

common legal grievance.'"        In re Cadillac V8-6-4 Class Action, 93

N.J. 412, 431 (1983) (quoting 3B James W. Moore et al., Moore's

Federal Practice ¶ 23.45[2] at 23-332 (1982)).

      Among the concerns related to certifying a class based upon

violations of the Act are the inherent individualized causation

inquiries related to the class' ascertainable loss.                  As recently

observed by the Third Circuit, the "fact of damage," separate and

apart from the amount of damages, is "an element of liability

requiring plaintiffs to prove that they have suffered some harm

traceable    to    the   defendant's    conduct    —   in    other    words,   the

'ascertainable loss' and 'causal relationship' requirements under

the [Act]."       Harnish v. Widener Univ. Sch. of Law, 833 F.3d 298,

305 (3d Cir. 2016).6        At the class certification stage, and while

analyzing predominance, a court must "formulate some prediction

as to how specific issues will play out" and may not rely upon a

"mere 'threshold showing' that a proposed class-wide method of


6
   As Rule 4:32 is modeled after Federal Rule of Civil Procedure
23, construction of the federal rule has been described as
"helpful, if not persuasive, authority." Muise v. GPU, Inc., 371
N.J. Super. 13, 31 (App. Div. 2004).

                                       20                                 A-3756-15T2
proof is 'plausible in theory.'"             Id. at 304 (quoting In re

Hydrogen Peroxide, 552 F.3d 305, 311, 321, 325 (3d Cir. 2008)).

Also, "[a]lthough the computation of damages among the members of

the class would differ, [and] this factor alone is not sufficient

in itself to justify dismissal of a class action," Lusky v. Capasso

Bros., 118 N.J. Super. 369, 373 (App. Div. 1972), a class "'must

first demonstrate economic loss' — that is, the fact of damage —

'on a common basis,'" Harnish, 833 F.3d at 306 (quoting Newton v.

Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 189 (3d

Cir. 2001)).

      In Morgan v. Markerdowne Corp., 201 F.R.D. 341, 345 (D.N.J.

2001),   the   court   found    that    individualized   causation    issues

precluded class certification based on a consumer fraud claim.              In

that case, the putative class alleged that the defendant, a

computer training school, made numerous misrepresentations about

the school's job-placement rate and the ability of students to

obtain employment.      Ibid.    Specifically, the class alleged that

the   school   made    misrepresentations     through    oral   statements,

brochures, and false alumni testimonials.         Ibid.

      The court acknowledged that, although proof of reliance is

not required under the Act, the plaintiff was still required to

establish that an ascertainable loss was caused by an unlawful

action attributable to the defendant.           Id. at 350.     In denying

                                       21                            A-3756-15T2
class certification, the court concluded that many of the proposed

class members "suffered no ascertainable loss whatsoever" because

they found work after attending the school and, thus, "typicality,

commonality, and predominance" failed to exist.           Ibid.     The court

further explained that, as to those class members who suffered an

ascertainable loss as a result of unemployment, they too could not

maintain a class action as they "[could not] speak with one voice

in declaring an unlawful practice of [the defendant] to be the

cause of such loss" because of the varying misrepresentations and

reasons for enrollment.     Ibid.

      Here, the individualized factual inquiries surrounding Star's

misrepresentations and the nexus between those misrepresentations

and omissions and the class members' ascertainable loss compels

decertification.

      Plaintiff's complaint alleged that Star misrepresented and

failed to disclose the requirements of the ST law in relation to

Star's ST program.    As noted, the class was subsequently defined

as   "all   individuals   who   were     enrolled   in   [Star's]   Surgical

Technology Program for surgical technicians training to take place

in the State of New Jersey as of June 29, 2011 and thereafter."

At a hearing on Star's motion for reconsideration, plaintiff's

counsel confirmed the narrow scope of the class stating that the

"case is about" the "fact that Star didn't notify [the class

                                    22                                A-3756-15T2
regarding] . . . potential issues about how the statute was being

interpreted" and the "failure of Star to . . . make everybody

aware . . . [t]hat [Star] was stuck in this muddle of . . . what

[the ST law] means."    In terms of damages, counsel explained that

the class pursued an "expectation interest[s]" theory in terms of

the value of the education they thought they were receiving, which

was to be numerically based upon the tuition paid.

       However, as Star predicted, and what was borne out at trial,

the class' claims under the Act devolved into a multitude of

individualized inquiries.      Indeed, plaintiff's counsel argued at

trial that, "[t]his case is not limited to what Star said about

the [ST] [l]aw or didn't say about the [ST] [l]aw. It's broader

than   that."     Counsel   elaborated   that,   rather   than   a    single

fraudulent scheme, in addition to the issues surrounding the ST

law, Star failed to advise the class about: (1) their ineligibility

to sit for the necessary certification test; (2) Star's "sham

externship program" that failed to enable eligibility for the NCCT

certification; and (3) Star's failure to "come clean" about its

job statistics.

       Consistent with this expansive nature of the class, the

parties stipulated at trial (after Star twice objected to class

certification) that the class consisted of certain sub-groups: 219

members who did not pay tuition due to government grants (group

                                  23                                 A-3756-15T2
one); 125 members who ceased attending Star prior to the passage

of the ST law (group two); 150 members who began attending Star

on or after Star issued its disclosure to current and prospective

ST students (group three); 162 members who were dismissed or

voluntarily withdrew from the Star ST program (group four); and

99 members who graduated from Star's ST program and found jobs

with the ST field (group five).           The sub-groups were formed to

analyze "the impact of total amounts paid based on certain facts

and circumstances of specific class members."7

     The   class      claims     thus     pertained     to      an     array       of

misrepresentations and omissions surrounding the ST law and Star's

ST program, externship program, and job statistics in violation

of the Act.   A class based upon these disparate series of alleged

misrepresentations      simply    cannot     satisfy     the         predominance

requirement      of    Rule      4:32-1(b)(3)         because         innumerable

individualized    inquiries    are   necessary   to     address       the    causal




7
   Although plaintiff based its damages claim on the tuition paid
by the class, counsel repeatedly claimed during trial that the
class member also sustained damages based on the wasted time spent
in the Star ST program. No evidence, other than the paid tuition,
was submitted to quantify that alleged loss and which class members
sustained it.


                                     24                                     A-3756-15T2
connection between Star's actions and the class' ascertainable

loss.8

     We acknowledge that a plaintiff need not show an "absence of

individual issues or that the common issues dispose of the entire

dispute." Illiadis, 191 N.J. at 108.   But here the class seeks to

address differing actions on the part of Star that require us to

consider on an individualized basis the causal connections between

Star's varying violations under the Act and the wildly different

class members' ascertainable losses. The individualized inquiries

necessary to evaluate the CFA claim include: (1) whether each

category of misrepresentation or omission actually occurred; (2)

what precise misrepresentation or omission was communicated to

each class member; and (3) whether each class member suffered an

ascertainable   loss   that    was     caused   by   the   alleged



8
   Any doubt regarding the broad scope of the class as ultimately
constituted is answered by reviewing the first question of the
verdict sheet in which the jurors were permitted to impose
liability upon Star upon finding it "engaged in either . . . an
unconscionable commercial practice of affirmative representation
regarding getting plaintiffs to enroll or to remain enrolled in
defendant's surgical technology program or a knowing concealment
of material information made with the intent to deceive regarding
getting plaintiffs to enroll or to remain enrolled in the
defendant's surgical technology Program."   That question invited
the jurors to find liability on behalf of the class exactly as
plaintiff sought — not on a common question that predominated but
on a host of disparate misrepresentations with different
consequences concerning the causative loss, if any, to certain
class members.

                               25                          A-3756-15T2
misrepresentation or omission.          Similar to the class in Morgan,

the present class "cannot speak with one voice in declaring an

unlawful practice" of Star to be the cause of their losses.                   By

way of example, sub-group three of the class — those who enrolled

after Star's disclosure surrounding the ST law and its lack of

program accreditation — demonstrates the significant causation and

ascertainable loss barriers precluding class certification because

this group admittedly enrolled after Star addressed in February

2014, or at least attempted to address, the concerns underlying

the class' initial misrepresentation claims.

      While we acknowledge the court divided the class into the

aforementioned sub-groups to analyze the total paid by the class

in   relation   to   the   differing    circumstances   of   certain     class

members, in our view that segregation nevertheless demonstrates

the significant individualized issues related to the nexus between

Star's misrepresentations and the class members' damages.                  And,

although the class members' damage calculations may differ, see

Lusky 118 N.J. Super. at 373, our concerns relate to the fact that

the class, as evidenced by the sub-groups, cannot "demonstrate

economic loss . . . on a common basis,"        Harnish, 833 F.3d at 306.9


9
   The court's final judgment further illustrates the defective
nature of the class. That order directs distribution of over nine
million dollars "to the [c]lass [m]embers on a pro rata basis."
Thus, damages could be awarded to class members who were not harmed

                                       26                              A-3756-15T2
     While we find that the class must be decertified, our decision

should not be interpreted to conclude that a class is not an

appropriate vehicle to address Star's purported misrepresentations

and omissions surrounding the ST law for those who have paid

tuition fees or other ascertainable losses.    Such a class action

may further the goals of judicial economy, cost-effectiveness,

convenience, and consistent treatment of class members, Iliadis,

191 N.J. at 104.   However, any certified class must satisfy the

relevant Rules governing class actions.   That simply did not occur

here.

                                 IV.

     Star also argues that the court committed reversible error

by precluding it from introducing evidence at trial related to:

jobs that class members held (jobs evidence); efforts of class

members to get positions (reasons for unemployment evidence); and

the value of the Star diploma to members of the class (value

evidence).   We agree.   We address this issue because it serves as

an independent basis to reverse the jury's verdict and to provide

guidance with respect to any future trial proceedings.

     A court's evidentiary rulings are entitled to substantial


and despite the absence of predominant class issues.     Such an
award is inconsistent with class action compensation principles.
See Lewis v. Casey, 518 U.S. 343, 349 (1996).


                                 27                         A-3756-15T2
deference.   Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202

N.J. 369, 374 (2010).     A court's determination to admit evidence

will not be reversed absent a finding of abuse of discretion.

State v. Wakefield, 190 N.J. 397, 491 (2007). Under that standard,

substantial latitude is afforded to a trial court in deciding

whether to admit evidence, and "an appellate court should not

substitute its own judgment for that of the trial court, unless

the trial court's ruling was so wide of the mark that a manifest

denial of justice resulted."     Id. at 491 (quoting State v. Brown,

170 N.J. 138, 147 (2001)).

     Star maintains that the court erred in failing to permit jobs

evidence which would have established that members of the class

were employed as surgical technologists or in related fields. Star

also argues that the court erred in not admitting value evidence

that would have proven that for many graduates the Star diploma

was not worthless.      Star also sought to establish that its ST

program compared positively with other similar programs and that

its graduates were employed in jobs similar to the graduates of

other programs.

     The court admitted jobs evidence only in relation to Star's

reporting requirements and reasons for unemployment evidence only

to assess class members' credibility.          Value evidence was deemed

largely   inadmissible.     We   find   that    the   jobs,   reasons   for

                                  28                               A-3756-15T2
unemployment, and value evidence were relevant to the materiality

of the purported misrepresentations, the issue of causation under

the CFA and to the quantum of any damages.   We therefore conclude

that the court abused its discretion in failing to admit such

evidence.

     N.J.R.E. 401 defines relevant evidence as evidence "having a

tendency in reason to prove or disprove any fact of consequence

to the determination of the action."   Unless otherwise prohibited,

"all relevant evidence is admissible."   N.J.R.E. 402.

     First, regardless of whether the class sought damages based

upon out-of-pocket expenses or an expectation theory, the value

evidence was directly relevant to mitigate the class' damages.

Indeed, such evidence could have established what plaintiff and

the class received in return for attending Star's program.       The

class cannot seek damages based upon the tuition paid to Star

while precluding Star from establishing that the education had

some value.

     The jobs evidence established that members of the class were

working as surgical technologists or in related fields and was

relevant to the mitigation of the class' damages.   It also tended

to "prove or disprove" whether Star's actions caused the class to

suffer an ascertainable loss. And, the reasons for unemployment

evidence directly related to the causation issue under the Act as

                               29                           A-3756-15T2
it would have permitted Star to demonstrate that certain members

of the class withdrew or were dismissed from the ST program for

reasons unrelated to the ST law.

     Plaintiff successfully thwarted the introduction of this

evidence by maintaining that its damages theory was based on the

class members' loss of tuition not lost wages or other job related

damages and therefore the case was fundamentally different than

the damages sought in Harnish or Markerdowne. But a party's stated

theory of a case cannot serve as the basis to preclude an adverse

party from introducing evidence to defend a claim, particularly

when the evidence has the tendency in reason "to prove or disprove

any fact of consequence to the determination of the action."

N.J.R.E. 401.   Here, the excluded evidence related to materiality,

causation and ascertainable loss.          We acknowledge a trial court's

authority   under   N.J.R.E.   403    to    exclude    otherwise   relevant

evidence.   However, our review of the trial record leads us to

conclude that the preclusion of the value, jobs, and reasons for

unemployment evidence resulted in a manifest denial of justice.

                                      V.

     We also vacate the court's order denying plaintiff's motion

to amend the complaint to add new parties.            The court's decision

to deny plaintiff's request to amend was largely based on the

belated nature of the application as it was filed after the initial

                                     30                             A-3756-15T2
summary judgment motion and after the class was certified and

shortly before the then scheduled trial date. As we have vacated

both the class certification order and the jury verdict, those

concerns no longer exist.    Accordingly, plaintiff may refile the

motion to amend on remand.    We do not pass on the merits of any

such application.

    Finally, because we have vacated the final judgment, which

incorporated the jury's verdict and the award of attorney's fees

under the Act, we need not address plaintiff's challenges to the

court's fee award.

    Affirmed in part, reversed and vacated in part and remanded

for trial proceedings consistent with this opinion.     We do not

retain jurisdiction.




                                31                         A-3756-15T2
