                            NOT FOR PUBLICATION WITHOUT THE
                           APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be bin ding 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-5391-18T1

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

       Plaintiff-Appellant,

v.

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

     Defendants-Respondents.
______________________________

                Argued telephonically May 18, 2018 –
                Decided July 17, 2020

                Before Judges Sumners, Geiger and Natali.

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

                Thomas M. Marrone argued the cause for appellant
                (Greenblatt Pierce Funt & Flores, LLC, and
                MoreMarrone LLC, attorneys; Patricia V. Pierce and
                Thomas M. Marrone, on the brief).
             David Jay argued the cause for respondents (Greenberg
             Traurig LLP, attorneys; David Jay, Jason Harris Kislin
             and Paige S. Nestel, on the brief).

PER CURIAM

       This case returns to us on leave granted and after remand proceedings

directed by our previous opinion in which we reversed the trial court's class

certification ruling. See Polanco v. Star Career Acad., No. A-3756-15 (App.

Div. July 26, 2018) (slip op.). We also reversed the jury's verdict and attendant

attorneys' fee award. Id. at 9.

       In that decision, we concluded that the trial court improperly granted class

certification because common issues of fact did not predominate over the

specific issues relating to the individuals comprising the proposed class. Id. at

5-6.   In this regard, we stated that "the individualized factual inquiries

surrounding [defendants'] misrepresentations and the nexus between those

misrepresentations and omissions and the class members' ascertainable loss

compels decertification." Id. at 7. We also determined that although the court

divided the class into sub-groups "to analyze the total paid by the class in

relation to the differing circumstances of certain class members," this division

"demonstrate[d] the significant individualized issues related to the nexus




                                                                           A-5391-18T1
                                         2
between [defendants'] misrepresentations and the class members' damages." Id.

at 8.

        Despite our decision to decertify the class, we stated that "our decision

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

to address [defendants'] purported misrepresentations and omissions . . . for

those who have paid tuition fees or other ascertainable losses." Id. at 9. To this

end, we noted that "[s]uch a class action may further the goals of judicial

economy, cost-effectiveness, convenience, and consistent treatment of class

members, Iliadis[ v. Wal-Mart Stores, Inc., 191 N.J. 88, 104 (2007)]," but that

the proposed class did not "satisfy the relevant Rules governing class actions."

Polanco, slip op. at 7. Plaintiff did not seek Supreme Court review of our

decision.

        On remand, plaintiff again moved for class certification, and after hearing

oral arguments, the court denied her motion in a June 7, 2019 order. On appeal,

plaintiff raises the following argument:

              THE     TRIAL    [COURT]   ERRONEOUSLY
              CONCLUDED THAT INDIVIDUAL DAMAGES
              EVIDENCE WAS REQUIRED TO ESTABLISH
              "LIABILITY-ONLY"    AND    ERRONEOUSLY
              DECLINED TO CERTIFY A "LIABILITY-ONLY"
              CLASS ACTION ON THIS BASIS



                                                                           A-5391-18T1
                                         3
            A.    LIABILITY MAY BE ESTABLISHED ON A
                  CLASSWIDE BASIS

            1.    STAR'S    NONDISCLOSURE                       AND
                  UNCONSCIONABLE PRACTICE

            2.    MATERIALITY

After reviewing the record in light of the contentions advanced on appeal, we

affirm the court's order denying class certification as we conclude the court did

not abuse its discretion when it determined common questions of law or fact

failed to predominate over questions affecting individual members and that a

class action was not "superior to other available methods for the fair and

efficient adjudication of the controversy" as required by Rule 4:32-1(b)(3).1

                                     I.

      We assume familiarity with the underlying facts which are set forth in

Polanco, slip op. at 5-12, and briefly recount them to provide necessary context

for our opinion. Defendants are owners of for-profit schools, including the

institution at issue, Star Career Academy (Star), that trains surgical technicians




1
   The parties have limited the issues on appeal to the predominance and
superiority issues of Rule 4:32-1(b)(3). As such, we do not address the
remaining requirements for maintaining a class action prescribed by Rule 4:32-
1.
                                                                          A-5391-18T1
                                          4
(ST).2     Defendants' mission is to provide "performance-based occupational

training to prepare students for entry-level employment" in various fields,

including allied health fields.

         In 2011, the New Jersey Legislature passed N.J.S.A. 26:2H-12.63 (the ST

law), which addressed five routes for employment as a surgical technologist in

a New Jersey health care facility including successful completion of a

"nationally or regionally accredited educational program for surgical

technologists," N.J.S.A. 26:2H-12.63(a), or obtaining 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. Defendants did not receive programmatic accreditation from either

nationally recognized accreditor of ST programs. In August 2010, it received

accreditation from the Accrediting Commission of Career Schools and Colleges

(ACCSC), which is approved by the United States Department of Education




2
  We use the terms surgical technician and surgical technologist interchangeably
for purposes of our opinion.
                                                                         A-5391-18T1
                                        5
(USDOE)     to   give   institutional   accreditation,   but   not   programmatic

accreditation, to an ST program.

      Plaintiff enrolled in defendants' ST program in July 2011. Her tuition was

$18,213. While enrolled in the program, plaintiff asked the director of the 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 the program

would qualify her under the ST law, and the director of externships for

defendants' Clifton campus also told plaintiff that defendants' ST program was

accredited. Other students also questioned admissions officers as to the effect

of the ST law, and those officers discussed the accreditation issues with their

subordinates but instructed them to "sell the program as best [they] could."

      The 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. Thereafter, in August 2012, the New

Jersey Department of Health (DOH) issued a memorandum stating that "[i]f a[n]

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

with [the ST law]." Defendants sought to confirm whether its accreditation by

the ACCSC met the requirements of the ST law, and the DOH responded that


                                                                          A-5391-18T1
                                         6
"[an] [ST] program offered in New Jersey that is accredited by any accrediting

agency recognized by the [USDOE] meets the requirements of the [ST law]."

      Despite uncertainty about whether the ST program met the requirements

of the ST law, defendants continued to enroll students. In February 2014,

defendants began to provide current and prospective students with a written

disclosure indicating that the law was in flux and defendants disagreed with any

interpretation of the ST law finding that its ST program did not comply with the

law. That disclosure stated:

            It has recently come to our attention that the [DOH] is
            considering revising its formal interpretation of the
            [ST] [l]aw. The [DOH]'s new proposed interpretation
            would require students to complete a program that
            maintains specialized accreditation in order to work as
            surgical technologists in New Jersey. Although Star's
            surgical technology program is approved by ACCSC,
            the program does not currently hold specialized
            accreditation.

      As noted, plaintiff filed a class action complaint naming Star and alleging

that Star violated the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -20

(CFA), by misrepresenting information about the accreditation of its ST program

in connection with the ST law. Plaintiff's proposed class consisted of "all

individuals who were enrolled in the [ST] [p]rogram for surgical technician

training to take place in the State of New Jersey as of June 29, 2011 and


                                                                         A-5391-18T1
                                       7
thereafter." Over Star's objection, the court certified that class and appointed

plaintiff class representative.   It also denied Star's subsequent motion to

decertify the class.

      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 (collectively, jobs evidence), and the value of the

ST program degree (value evidence). Star sought to introduce jobs evidence

which would have established that members of the class were employed as STs

or in related fields and value evidence which would have proven that for many

graduates the Star diploma was not worthless. It also attempted to introduce

evidence establishing 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. 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 and value evidence for liability purposes.

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

accordance with the CFA, the court trebled the damages and entered final

judgment, plus interest, in the amount of $9,091,941.35. Pursuant to plaintiff's

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


                                                                         A-5391-18T1
                                       8
attorneys' fees. As noted, in our prior opinion, we reversed the trial court's

determination to grant class certification, and accordingly reversed the jury's

verdict and the attorneys' fee award.

      On remand, plaintiff presented three alternative proposed classes: 1) a

class with two sub-classes of students enrolled after December 20, 2011, who

paid tuition or incurred student loans, the only difference being whether the

students had signed the February 2014 disclosure; 2) a liability-only class of

students enrolled after December 20, 2011, who paid tuition or incurred student

loans, with the court managing individual damages claims to be presented in

separate actions filed with the court pursuant to a court-managed mass action

program; and 3) two liability and damages sub-classes of students enrolled after

December 20, 2011, who paid tuition or incurred student loans, differing

according to whether the students signed the 2014 disclosure.

      On appeal, however, plaintiff appears to limit her argument to the claim

that the court erroneously denied class certification because it should hav e

certified a "liability only" class. At oral argument in the trial court and before

us, plaintiff explained that the proposed liability class could obtain a liability

judgment and each plaintiff could thereafter prove its damages in a separate

proceeding or before a court appointed master.


                                                                          A-5391-18T1
                                        9
      The court denied plaintiff's renewed class certification motion and

explained that in order to establish the elements of a claim under the CFA,

plaintiff was obligated to prove a "nexus between the fraud and the loss." The

court also noted that in Polanco we permitted defendants to present jobs

evidence and value evidence and because defendants were therefore allowed to

raise individual defenses regarding the nature of the misrepresentation and the

causal relationship to plaintiff's ascertainable loss, the resulting individualized

inquiries prevented plaintiff from satisfying the predominance requirement of

Rule 4:32-1(b)(3).

      The court also reasoned that a liability only class failed to meet the

superiority requirement of the Rule as such a class would result in multiple

damages mini-trials where defendants could similarly raise individual defenses

in each matter. The court determined such a procedure would be inefficient and

a waste of resources. This appeal followed.

                                      II.

      We review a trial court's order granting or denying class certification for

an abuse of discretion. Dugan v. TGI Fridays, Inc., 231 N.J. 24, 50 (2017).

"Rule 4:32 vests in the trial court substantial control over management of a class

action." In re Cadillac V8-6-4 Class Action, 93 N.J. 412, 437 (1983); see also


                                                                           A-5391-18T1
                                       10
Little v. Kia Motors Am., Inc., ___ N.J. ___, ___ (2020) (slip op. at 39). 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." Dugan, 231 N.J. at 50 (quoting Lee v. Carter-Reed Co., L.L.C., 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.

      Plaintiff argues that the court abused its discretion in denying the liability

only class because the court mistakenly believed that such a class would require

individual inquiries into causation and damages and the presentation of jobs and

value evidence for each claim.        Plaintiff contends that the jobs and value

evidence have nothing to do with whether defendant withheld or misrepresented

material information on a class-wide basis with respect to the fact that its ST

program was not programmatically accredited. Plaintiff further maintains that

defendant's violation of the CFA can be established without addressing

causation and damages, because instead, the only inquiry should be whether

defendant misrepresented or failed to disclose material information.             We

disagree.




                                                                            A-5391-18T1
                                        11
      We initially note that plaintiff essentially only briefed the issues relating

to the liability only class, contrary to appellate practice to brief all issues, see

Oasis Therapeutic Life Ctrs., Inc. v. Wade, 457 N.J. Super. 218, 234 n.12 (App.

Div. 2018) (declining to consider an issue not briefed by the parties), and it is

not for the court to propose an acceptable class, see Cameron v. S. Jersey Pubs.,

Inc., 460 N.J. Super. 156, 177 (App. Div. 2019) ("A plaintiff bears the burden

of establishing class status."). In any event, we have considered the subclasses

proposed and conclude they too fail to satisfy the predominance and superiority

elements for the reasons stated.

      In order to certify a class, the putative class plaintiff must first establish

the requirements in Rule 4:32-1(a), which provides:

            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. N.J. Mfrs. Ins. Co., 440 N.J. Super. 458, 475

(App. Div. 2015) (quoting Lee, 203 N.J. at 519). This is especially true when


                                                                            A-5391-18T1
                                        12
the allegations are based in consumer fraud, and in those types of cases, "a court

should be slow to hold that a suit may not proceed as a class action." Riley v.

New Rapids Carpet Ctr., 61 N.J. 218, 228 (1972).

      To establish commonality of questions of law or fact, all factual and legal

questions need not be identical for proposed class members. Iliadis, 191 N.J. at

108-09. Rather, "[a] single common question" satisfies the requirement of Rule

4:32-1(a)(2). Goasdone v. Am. Cyanamid Corp., 354 N.J. Super. 519, 529 (Law

Div. 2002). In fact, 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 only

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.'" Iliadis, 191 N.J. at 108 (quoting Amchem

Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997)). The court should conduct a

pragmatic assessment of numerous factors, including:

            the significance of the common questions . . . [which]
            involves a qualitative assessment of the common and

                                                                          A-5391-18T1
                                       13
            individual questions rather than a mere mathematical
            quantification of whether there are more of one than the
            other[,] . . . whether the "benefit" of resolving common
            and presumably some individual questions through a
            class action outweighs doing so through "individual
            actions[,]" . . . [and] whether a class action presents a
            "common nucleus of operative facts."

            [Lee, 203 N.J. at 519-20 (citing Iliadis, 191 N.J. at
            108).]

      A plaintiff need not show an "absence of individual issues or that the

common issues dispose of the entire dispute." Iliadis, 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, 93 N.J. at 431 (citation

omitted). In this regard,

            [p]laintiffs' burden at the class certification stage is not
            to prove [each] element of [the cause of action],
            although in order to prevail on the merits each class
            member must do so. Instead, the task for plaintiffs at
            class certification is to demonstrate that [each] element
            of [the cause of action] is capable of proof at trial
            through evidence that is common to the class rather
            than individual to its members.

            [In re Hydrogen Peroxide Antitrust Litig., 552 F.3d
            305, 311-12 (3d Cir. 2008).3]



3
  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).
                                                                           A-5391-18T1
                                       14
      In Harnish v. Widener Univ. Sch. of Law, 833 F.3d 298 (3d Cir. 2016),

the proposed class consisted of law students claiming they paid higher tuition

because of the defendant law school's allegedly misleading graduate

employment statistics. The court stated:

            [A]n individual question is one where members of a
            proposed class will need to present evidence that varies
            from member to member, while a common question is
            one where the same evidence will suffice for each
            member to make a prima facie showing [or] the issue is
            susceptible to generalized, class-wide proof.

            [Id. at 304.]

      The CFA sets forth three general categories of unlawful conduct:

affirmative acts; knowing omissions; and regulatory violations.        Pollack v.

Quick Quality Rests., Inc., 452 N.J. Super. 174 (App. Div. 2017). To prevail

under the CFA, a plaintiff must show unlawful conduct by a defendant, an

ascertainable loss by a plaintiff and a causal relationship between the two.

Dugan, 231 N.J. at 51. Although "the Attorney General does not have to prove

that the victim was damaged by the unlawful conduct, a private plaintiff must

show that he or she suffered an 'ascertainable loss.'" Meshinsky v. Nichols

Yacht Sales, Inc., 110 N.J. 464, 473 (1988) (quoting N.J.S.A. 56:8-2); see also

Weinberg v. Spring Corp., 173 N.J. 233, 251 (2002) ("[T]he plain language of



                                                                          A-5391-18T1
                                      15
the [CFA] unmistakably makes a claim of ascertainable loss a prerequisite for a

private cause of action . . . .").

      The CFA 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.]

      An ascertainable loss must be 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 USA, LLC, 183 N.J. 234, 248 (2005)). It does

not have to involve out-of-pocket expenses but, instead, can include a lost

benefit of the bargain as well. Ibid. (quoting Furst v. Einstein Moomjy, Inc.,

182 N.J. 1, 11-13 (2004)).

      The loss must be quantifiable even if it has not been experienced as an

out-of-pocket loss. Hoffman v. AsSeenOnTV.com, Inc., 404 N.J. Super. 415,

                                                                          A-5391-18T1
                                           16
426 (App. Div. 2009). An ascertainable loss occurs when a plaintiff receives

something less than, and different from, what he or she reasonably expected in

view of defendant's presentations. Kleinman v. Merck & Co., Inc., 417 N.J.

Super. 166, 182 (Law Div. 2009). Damages are the "difference between the

value of the product as represented and the actual value of the product received."

Id. at 183.

      In Morgan v. Markerdowne Corp., 201 F.R.D. 341, 350 (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 representations 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 CFA, the plaintiff was still required to establish that an ascertainable

loss was caused by an unlawful action attributable to the defendant. Ibid. In

denying 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


                                                                           A-5391-18T1
                                       17
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.

        Initially, we note that plaintiff fails to cite a single case to support her

apparent argument that a CFA claim may be proven in a class action without

establishing causation and ascertainable loss. In fact, the cases plaintiff cites,

and every New Jersey CFA case that addresses this issue, all stand for the

proposition that a CFA claim requires proof of an unlawful act, causation and

an ascertainable loss. See, e.g., Varacallo v. Mass. Mut. Life Ins. Co., 332 N.J.

Super. 31, 43 (App. Div. 2000) (stating that consumer fraud requires proof of

causal nexus between concealment of material fact and loss).

        Further, plaintiff incorrectly suggests that once she establishes defendant

committed an unlawful act, each member of the class may proceed to establish

his or her own ascertainable loss. But to find liability under the CFA, more is

needed than just the finding of an unlawful act. There can be no liability under




                                                                            A-5391-18T1
                                        18
the CFA without a showing of an unlawful act, an ascertainable loss and a causal

relationship between the two. 4

      We also reject plaintiff's reliance on Iliadis, 191 N.J. at 108, for the

proposition that any remainder issues, especially when they are related to

damages, should not stand in the way of class certification. Although it is true

that "[t]he quantum of damages is invariably an individual question and does

not defeat class action treatment," Blackie v. Barrack, 524 F.2d 891, 905 (9th

Cir. 1975), plaintiff confuses the amount of damages with establishing the

existence of damages, which is a necessary element of a CFA claim. As the

Harnish court explained:

            [W]hen courts speak of "damages," they are often
            referring to two distinct concepts: the "fact of damage"
            and the measure/amount of damages. The fact of
            damage, often synonymous with "injury" or "impact,"
            is frequently 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 [CFA]. Only if the fact of
            damage is established does a court reach the question

4
  We note that with respect to the alleged wrongful act, plaintiff claims that
defendants admitted at trial "that Star's [ST] programs in New Jersey did not
have 'program accreditation'" and that its CEO testified that it would "be a lie to
say that they have program accreditation." However, we noted in our prior
opinion that "genuine issues of fact existed with respect to Star's
misrepresentations and omission regarding its 'programmatic' accreditation for
surgical technologists." Polanco, slip op. at 2.
                                                                           A-5391-18T1
                                       19
            of remedy and the exact calculation of each plaintiff's
            damages. "While obstacles to calculating damages may
            not preclude class certification, the putative class must
            first demonstrate economic loss"—that is, the fact of
            damage—"on a common basis."

            [Harnish, 833 F.3d at 305-06 (alteration in original)
            (quoting Newton v. Merrill Lynch, Pierce, Fenner &
            Smith, Inc., 259 F.3d 154, 187-89 (3d Cir. 2001)).]

      We conclude plaintiff's liability only class fails to satisfy the

predominance element of Rule 4:32-1(b)(3). Like plaintiff's earlier proposed

class, the CFA allegations in the proposed liability only class still require

numerous individualized inquiries rendering class certification improper.

Plaintiff's claims primarily center on defendants' failure to disclose accurately

its accreditation status and the attendant ascertainable loss allegedly caused by

way of tuition expenditures and diminished job opportunities. Even were we to

assume a wrongful act occurred, however, the proposed class cannot "speak with

one voice" on those issues. See Morgan, 201 F.R.D. at 350; Little, ___ N.J. at

___ (slip op. at 42-43) (concluding that the trial court properly decertified the

class where it "found no single factual pattern" and the record "demonstrated the

disparate experiences of individual class members").

      In our prior opinion, we concluded the court improperly precluded

defendant from introducing jobs and value evidence. Contrary to plaintiff's


                                                                         A-5391-18T1
                                      20
argument, those proofs are relevant to plaintiff's proposed liability class, and its

proposed subclasses, as it relates directly to the causation and ascertainable loss

elements of plaintiff's CFA claim. Indeed, the jobs evidence established that

numerous members of plaintiff's proposed class obtained employment in the

health care field and those who failed to do so were unsuccessful for disparate

reasons.

      So too with respect to the value evidence. Those proofs established that

many proposed class members obtained value from their Star degree and thus

the question of the value of the degree requires extensive individualized

inquiries and is not answered merely by plaintiff's request for tuition

reimbursement, as that remedy suggests the degree without ST certification was

valueless, a fact heavily disputed by defendant and which requires highly

individualized inquiries to resolve.

      For example, as noted, the value evidence established that members of the

putative class had widely divergent experiences and individual inquiries would

be required to determine what loss, if any, they had suffered that was caused by

defendant's alleged misrepresentation. In this regard the trial record reveals that

of the 1135 class members: 162 students withdrew or were dismissed from the

program for a variety of reasons having nothing to do with the ST law; 219


                                                                            A-5391-18T1
                                        21
students paid no tuition or fees because of grants and scholarships; 125 students,

including plaintiff, completed the program, withdrew, or were dismissed before

the ST law was passed; 150 students signed the 2014 disclosure; and 99

graduates got jobs in the healthcare field upon graduation. As such, the court

correctly declined to certify the liability only class, as plaintiff presented it,

because there was no presentation of a class-wide ascertainable loss caused by

an unlawful act.5

                                       III.

      For similar reasons, we conclude the court did not abuse its discretion

when it determined the proposed liability only class failed to meet Rule 4:32-

1(b)(3)'s superiority requirement.    That requirement necessarily "implies a

comparison with alternative procedures." Iliadis, 191 N.J. at 114. "[A] class

action must be better than, not merely as good as, other methods of

adjudication." Carroll v. Cellco P'ship, 313 N.J. Super. 488, 509-10 (App. Div.

1998).




5
  We also note that plaintiff failed to provide any expert evidence on the value
of a Star degree. See Thiedemann, 183 N.J. at 244 (affirming summary
judgment on plaintiffs' CFA claim where plaintiffs failed to "present any expert
evidence to support an inference of loss in value").
                                                                          A-5391-18T1
                                       22
      A proper analysis of whether a class action is the superior method of

adjudication requires "(1) an informed consideration of alternative available

methods of adjudication of each issue, (2) a comparison of the fairness to all

whose interests may be involved between such alternative methods and a class

action, and (3) a comparison of the efficiency of adjudication of each method."

Iliadis, 191 N.J. at 114-15. The class members' "lack of financial wherewithal"

is an "important factor" in the superiority analysis.         Ibid.    As far as

manageability, denial of class status due to manageability concerns is disfavored

because complexity is an inherent trait of class litigation. Id. at 117-20. Courts

should not, however, overemphasize management considerations when

contrasted with judicial economy, small claims access, and deterrence goals.

Ibid. Courts should use ingenuity to conduct the litigation and guarantee the

rights of both sides. Ibid. Also, courts may craft remedies for class litigation,

including altering or amending the certification of a class, subdividing a class

or maintaining class status with respect to only particular issues. Ibid.

      Further, when courts consider alternatives to class actions, those

considerations can involve "individual actions, coordinated individual actions,

test or model cases, and consolidated individual actions." 2 Newberg on Class

Actions § 4:85 (4th ed. 2002). In Carroll, the court considered "the use of test


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cases, whereby one or more class members litigate the case with defendant's

agreement that defendant would be collaterally estopped by adverse findings of

fact when the remaining members bring suit." 313 N.J. Super. at 510-11. Also,

Rule 4:38-1 permits the court in its discretion to order the consolidation of

actions.

      Even were we to agree that defendants' alleged CFA violation occurred

and could be addressed on a class-wide basis, for the reasons previously

expressed, the court would still need to conduct in excess of 100 separate mini-

trials addressing the individualized damages claims. These proceedings would

not be like a forensic auditing of the claims, but rather a series of adjudicatory

proceedings in which the proposed class member would be required to establish

causation and ascertainable loss. The court clearly considered the difficulties in

conducting "hundreds of mini-trials" to address the differing claims and rejected

plaintiff's proposal, a result we determine was not an abuse of discretion.6




6
   In this regard, defendants note that "[n]umerous opt-outs from the original
class action have prosecuted their individual claims for those amounts during
the same timeframe, with speedier and more efficient results." See, e.g.,
Guzman v. SC Acad. Holdings, Inc., No. A-3028-17 (slip op. at 5) (N.J. Super.
App. Div. Apr. 18, 2019) (noting that twelve individual students of defendants'
ST program who did not receive notice of the Polanco class brought individual
actions which were consolidated).
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                                       24
      To the extent we have not addressed any of plaintiff's arguments it is

because we have concluded they lack sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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