                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-3485-14T3



DEBRA DUGAN, ALAN FOX, and
                                           APPROVED FOR PUBLICATION
ROBERT CAMERON on behalf of
themselves and all other                        March 24, 2016
similarly situated,
                                              APPELLATE DIVISION
     Plaintiffs-Respondents/
     Cross-Appellants,

v.

TGI FRIDAYS, INC., CARLSON
RESTAURANTS WORLDWIDE, INC.,
on behalf of themselves and
all others similarly situated,

     Defendant-Appellant/
     Cross-Respondents.

__________________________________________

         Argued February 23, 2016 – Decided March 24, 2016

         Before   Judges       Yannotti,      Guadagno     and
         Vernoia.

         On appeal from Superior Court of New Jersey,
         Law Division, Burlington County, Docket No.
         L-0126-10.

         Stephen M. Orlofsky argued the cause for
         appellants/cross-respondents (Blank Rome,
         L.L.P., and LeClair Ryan, attorneys; Mr.
         Orlofsky, David C. Kistler, Jeffrey L.
         O'Hara, and Matthew S. Schultz, on the
         briefs).

         Sander D. Friedman argued          the cause for
         respondents/cross-appellants       (Law Office of
            Sander D. Friedman, LLC, attorneys;                          Mr.
            Friedman and Wesley G.   Hanna, on                           the
            briefs).

      The opinion of the court was delivered by

YANNOTTI, P.J.A.D.

      Defendants      TGI     Fridays,      Inc.      and     Carlson         Restaurants

Worldwide, Inc. (collectively, TGIF) appeal, on leave granted,

from an order entered by the Law Division on February 13, 2015,

denying their motion to reconsider class certification and de-

certify the class or, in the alternative, to revise the class

definition. Plaintiffs Debra Dugan, Alan Fox and Robert Cameron

cross-appeal from the court's order certifying the class. For

the reasons that follow, we reverse on the appeal, dismiss the

cross-appeal,       and   remand    the    matter      to    the   trial       court    for

further proceedings on plaintiffs' individual claims.

                                           I.

      We begin our discussion with a summary of the relevant

procedural    history       and   facts,       as   revealed      in    the    record    on

appeal.

      A. The Complaint.

      On January 12, 2010, Dugan filed a putative class-action

complaint    against      TGIF     alleging         that    the    restaurant       chain

violated the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -184,

and   the   Truth    in   Consumer    Contract         Warranty        and    Notice    Act

(TCCWNA), N.J.S.A.          56:12-14 to         -18, by: (1) failing to list



                                           2                                     A-3485-14T3
prices for beer, mixed drinks, and soft drinks on its restaurant

menus; and (2) engaging in an unconscionable commercial practice

by charging different prices for the same beverage, depending

upon where in the restaurant the beverage was served.

    Dugan      alleged       that   she    had     been   a    patron    of    TGIF's

corporate-owned restaurant in Mount Laurel and was aggrieved by

TGIF's   failure   to    disclose         the    price    of   beverages      on    the

restaurant's menus. Dugan claimed she became aware of the prices

after she had consumed the beverages and was presented with a

check. Dugan also claimed that on December 5, 2008, she was

charged $2.00 for a beer at the bar and later charged $3.59 for

the same beer at a table in the restaurant.

    The     proposed     plaintiff         class       consisted    of   all        TGIF

customers who had "purchased items from the menu that did not

have a disclosed price." The proposed defendant class consisted

of the thirty-eight TGIF restaurants in New Jersey, some of

which are corporate-owned, and some of which were are operated

as a franchise of TGIF.

    B. TGIF's Motion to Dismiss.

    In June 2010, TGIF filed a motion to dismiss the complaint

for failure to state a claim upon which relief could be granted.

The judge entered an order denying the motion. We denied TGIF's

motion   for   leave    to    appeal      from   the    judge's    order,     but   the

Supreme Court later granted TGIF's motion and summarily remanded



                                           3                                  A-3485-14T3
the     matter       to    this       court       for    consideration       of       TGIF's

interlocutory appeal. We affirmed the trial court's order in an

unpublished opinion. Dugan v. TGI Fridays, Inc., No. A-3098-10

(App. Div. Oct. 25, 2011) (slip op. at 20).

       We held that Dugan had alleged sufficient facts to support

a claim under the CFA, specifically a violation of                                N.J.S.A.

56:8-2.5, which mandates point-of-sale disclosure of the price

of merchandise at retail, and N.J.S.A. 56:8-2, which declares

certain unconscionable commercial practices to be unlawful. Id.

at 12-14. We also held that Dugan pled sufficient facts to show

that she sustained an ascertainable loss, and that TGIF's alleged

unlawful conduct was the cause of her loss. Id. at 14-18.

       We     stated,     "At   the    very    least,      if    proven,    Dugan       would

logically have lost the benefit of a $2.00 beer and paid $1.59

more    for    the   privilege        of   moving       from    the   bar   to   a    nearby

table." Id. at 17. We added that the measure of out-of-pocket

loss,    which    is      "typically       applied      when    [a]   misrepresentation

induces a consumer to pay a higher price than is reasonable," is

the difference between the price paid and the actual value of

the property acquired. Ibid.

       We also held that the facts as alleged in the complaint

were sufficient to support a claim that TGIF's alleged failure

to include prices on its menus caused the loss. Id. at 17-18. We

noted that, in her complaint, Dugan had not expressly alleged



                                              4                                      A-3485-14T3
                (1) that she looked at the menu, discerned
                the absence of prices, and assumed a
                reasonable price lower than what she was
                eventually   charged,   or   (2)   that she
                purchased a beer at the bar, actually
                noticed that it cost two dollars, and then
                decided to buy another at a table on the
                assumption the price would be the same.

                [Id. at 17.]

      We observed that the lack of such facts might result in the

grant of summary judgment in favor of TGIF, but at that stage of

the litigation, Dugan's complaint had to be reviewed with some

indulgence. Id. at 18. We concluded that Dugan had alleged facts

establishing       a     sufficient    factual       "link     between    the   alleged

unconscionable commercial practices and her purported injury."

Ibid.

      We also determined that Dugan had alleged sufficient facts

to state a claim under the TCCWNA. We found that Dugan was a

"consumer" as that term is defined in N.J.S.A. 56:12-15. Id. at

18-20.     We    found    that   Dugan    had      alleged     TGIF   offered     her    a

contract that included a provision which allegedly violated the

CFA, and "the affirmative act that may trigger [liability under]

the TCCWNA is the offer encompassed by TGIF's menu." Id. at 19-

20.

      C. The Amended Complaints.

      In    December       2011,      Dugan       filed   an    amended    complaint,

alleging that she purchased unpriced beverages at TGIF's Mount




                                              5                                 A-3485-14T3
Laurel restaurant on at least two occasions. Dugan claimed that

on one occasion she purchased two mixed drinks. On the other

occasion, Dugan purchased a beer at the bar, and then purchased

a beer and a soft drink at a table in the restaurant. Dugan

claimed she was not aware of the costs of the beverages until

after    she    had    consumed     the   drinks   and   was    presented     with    a

check.

      In March 2013, a second amended complaint was filed adding

Fox      and        Cameron   as      plaintiffs         and     putative      class

representatives.         Fox claimed that in June 2007, he ordered two

unpriced mixed drinks at TGIF's corporate-owned restaurant in

Cherry Hill. He alleged that if he had known the prices he would

be charged for the drinks, he would "have ordered something

different and certainly would not have ordered two [drinks]."

Cameron alleged that in August 2012, he ordered an unpriced beer

and soda at TGIF's franchise-operated restaurant in Toms River.

      In the second amended complaint, Dugan alleged that she had

ordered unpriced soft drinks, mixed drinks and beer at various

TGIF restaurants over the previous six years. She claimed TGIF's

practice       of    making   an    affirmative     offer       for   the   sale     of

beverages without posting prices facilitated the sale of "more

beverages at a given price point than would be feasible if the

prices     were       disclosed."    She    claimed      that    this   was    "menu

engineering," which was "an intentional and carefully planned



                                           6                                A-3485-14T3
act"   designed   to   "exploit   consumer   psychology   and   manipulate

consumer perceptions."

       D. Discovery.

       Dugan was deposed and testified that on December 5, 2008,

she ordered a beer at the bar at TGIF's Mount Laurel restaurant,

while waiting with her friends for a table. Dugan conceded that

she did not review the menu at the bar, or review the price of

the beer indicated on the receipt before she paid the bar bill.

Dugan then ordered another beer and a soda while seated at a

table in the restaurant. She conceded that she did not read the

beverage section of the menu, did not review the final bill

before she paid it, and had no expectation of what the cost of a

beer or soda would be.

       When she returned home, Dugan reviewed the receipts. Dugan

learned that she had paid $2.00 for the beer at the bar, which

was what she said was the "happy-hour price." She paid $3.59 for

the beer at the table. She also paid what she characterized as a

"steep" price for a soda.

       Dugan later submitted a certification to the trial court,

in which she stated that she had looked at the beverage section

of the TGIF menu on many occasions. Dugan asserted that she had

expected to pay the same price for a beer at the bar and at a

table in the restaurant.

       At his deposition, Fox testified that on June 26, 2007, he



                                     7                            A-3485-14T3
ordered three mixed drinks at the company-owned TGIF in Cherry

Hill. In his answers to interrogatories, Fox explained that he

ordered the drinks because he had had "a bad day" and wanted to

"adjust" his "attitude." Prices for the drinks were not listed

on the menu. Fox testified that he "went ballistic" when he

received the bill because he had not realized that each drink

cost $6.99. Fox said he expected to pay about $5.75 per drink.

    Fox returned with his wife to the TGIF in Cherry Hill in

January 2013 and ordered two mixed drinks and a beer. Prices for

the drinks were not listed on the menu. Fox testified that,

based on the placement of the drinks on the menu, he thought

TGIF was running a special on mixed drinks.

    In response to Fox's query, the server told him that the

mixed    drinks    cost    $7.00      and   a   beer   costs    $5.00.    When    Fox

received the bill, he discovered that one mixed drink cost $7.19

and the other cost $8.20. The beer cost $5.29. Fox testified

that he thought the prices of the mixed drinks were a little

high. He stated that he was dissatisfied "with the deception"

perpetrated by TGIF.

    In    its     answers       to   interrogatories,     TGIF    indicated      that

fourteen of the TGIF restaurants in New Jersey are company-

owned,    including       the    restaurants     in    Cherry    Hill    and   Mount

Laurel. Twenty restaurants are franchise-operations, including

the Toms River restaurant. All corporate-owned and franchise-run



                                            8                              A-3485-14T3
restaurants       in    New        Jersey    use    the    same     menus,    which      were

provided by and are subject to Carlson's approval. TGIF stated

that    in   accord         with    the    "customary      practice      within    the     bar

restaurant industry," the company-owned restaurants do not list

the    prices    for        beer,   soda    and    mixed       drinks   on   their     menus.

However,     a    franchisee          could       post    beverage      prices    if     TGIF

authorized it to do so.

       E. Class Certification.

       In    late      2012,        plaintiffs      filed       a   motion     for      class

certification,         and     TGIF       thereafter      filed     a   cross-motion       for

summary judgment. The judge denied TGIF's motion for summary

judgment, and granted plaintiffs' motion to certify the class.

The judge found that plaintiffs had met the requirements for a

class    action        in    Rule     4:32-1(a),         and    demonstrated      both     the

predominance of the common issues and superiority of a class

action over other trial techniques, as required by Rule 4:32-

1(b).

       The judge defined the class as all persons who visited a

company-owned TGIF restaurant "from January 12, 2004 to June 18,

2014, relied upon [TGIF's] menus, and purchased an offered but

unpriced soda, beer or mixed drink." The defendant class was

limited to the fourteen company-owned TGIF restaurants in New

Jersey.

       On September 5, 2014, the judge granted TGIF's motion to



                                               9                                     A-3485-14T3
dismiss Cameron as a class representative. The judge found that

Cameron   did    not   fit     within   the       class    definition       since       he

allegedly ordered unpriced beverages at a franchise-owned TGIF.

The judge also extended the cut-off time for claims to July 14,

2014, the date Carlson sold the TGIF chain of restaurants to new

owners, who were not named in the complaint.1

      F. Motions to redefine the class, and for Reconsideration
      or Decertification of the Class.

      In November 2014, plaintiffs filed a motion to amend the

class   definition     for   purposes       of    preparing      notices     to    class

members. Plaintiffs sought to remove the requirement that the

class member "relied upon" TGIF's menu, and to define the class

as any customer who purchased an unpriced beverage during the

relevant time period. The judge granted the motion and found

that the class members need not show reliance to pursue claims

under the CFA and TCCWNA.

      On December 23, 2014, the judge entered an order approving

the   notices    for   class    members.         The   order     also    changed       the

definition of the class to include: "All persons who visited [a]

TGI   Friday's   restaurant      in   New    Jersey       that   is     owned     by   TGI

Friday's (i.e. company owned store) from January 12, 2004 to

July 14, 2014, and purchased an offered but unpriced soda, beer


1 The new owners are           Sentinel      Partners,      LLC,      and   TriArtisan
Capital Partners, LLC.




                                        10                                      A-3485-14T3
or mixed drink."

      In January 2015, TGIF filed a motion to reconsider class

certification and decertify the class or, in the alternative, to

revise the class definition. By order entered February 13, 2015,

the     judge        denied     the     motions.     The     judge        ordered       class

notification to begin on February 20, 2015.

      G. The Appeal and Cross-Appeal.

      TGIF filed a motion with this court for leave to appeal the

trial court's orders of December 23, 2014 and February 13, 2015,

and   to      stay    class       notification.      We    denied     TGIF's      motions.

Thereafter, the Supreme Court stayed class notification, granted

TGIF's motion for leave to appeal, summarily remanded the matter

to this court for consideration of the merits of the appeal, and

stayed further trial court proceedings pending a decision on the

appeal.

      On      appeal,      TGIF    argues    that    the    trial     court      erred     by

denying       its     motion       to   reconsider        class    certification          and

decertify       the     class      because    plaintiffs         failed    to    meet     the

requirements         for   maintaining       a    class    action    under       the    court

rules. In the alternative, TGIF argues that the trial court

erred    by    refusing       to   revise    the    definition       of    the    class    to

require       that    each    class     member     has    read    TGIF's    menu       before

purchasing an unpriced beverage.

      In      their    cross-appeal,         plaintiffs      argue    that       the    trial



                                             11                                     A-3485-14T3
court   erred   by    limiting    the    class    to    persons    who   purchased

unpriced     beverages       at   TGIF's         company-owned      restaurants;

excluding purchasers of coffee, tea and miscellaneous beverages

from the class; and excluding persons who purchased unpriced

soda, beer and mixed drinks after July 14, 2014.

                                        II.

    We     begin     our   analysis     with   the     general    standards   that

govern our review of the trial court's certification order, and

the requirements       in our court rules for maintaining a class

action.

    The decision on whether to certify a class rests in the

sound discretion of the trial court. Lee v. Carter-Reed Co.,

L.L.C., 203 N.J. 496, 506 (2010). In making that decision, the

trial court must accept as true the allegations in the complaint

and cannot decide "the ultimate factual issues underlying the

plaintiff's cause of action." Id. at 505 (quoting Riley v. New

Rapids Carpet Ctr., 61 N.J. 218, 223 (1972) (internal quotation

marks omitted)).

    We review a trial court's order on class certification for

abuse of discretion. Id. at 506. However, we apply a de novo

standard of review when evaluating a trial court's decision on a

question of law. Int’l Union of Operating Eng'rs Local No. 68

Welfare Fund v. Merck & Co., Inc., 192 N.J. 372, 386 (2007); see

also Beegal v. Park W. Gallery, 394 N.J. Super. 98, 111 (App.



                                         12                               A-3485-14T3
Div. 2007) (trial court's legal determinations relevant to class

certification are reviewed de novo).

    Under    our   court   rules,     the    party    seeking    class    action

certification must first satisfy the general prerequisites for

maintaining a class action in Rule 4:32-1(a), which provides

that:

            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.

These   factors    are     commonly        referred    to   as    numerosity,

commonality,   typicality    and    adequacy     of   representation.        Lee,

supra, 203 N.J. at 519.

    The party seeking class certification also must meet the

criteria of Rule 4:32-1(b), which requires, among other things,

that the court find "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). This subsection of the

rule requires "the party seeking certification [to] demonstrate

both predominance of the common issues and superiority of a



                                      13                                 A-3485-14T3
class action over other trial techniques." Muise v. GPU, Inc.,

371 N.J. Super. 13, 30 (App. Div. 2004).

    To    establish      predominance,           a    plaintiff         must       demonstrate

that "the proposed class is 'sufficiently cohesive to warrant

adjudication by representation.'"                    Iliadis      v. Wal-Mart Stores,

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

521 U.S. 591, 623, 117 S. Ct. 2231, 2249, 138 L. Ed. 2d 689, 712

(1997). In determining whether a plaintiff has satisfied this

requirement,       the   trial    court          should      "conduct          a    pragmatic

assessment of various factors," including an inquiry as to: 1)

"the 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"; 2) "whether the benefit of

resolving    common      and     presumably           some       individual          questions

through a class action outweighs doing so through individual

actions";    and    3)   "whether       a   class      action       presents         a    common

nucleus of operative facts."                Lee,      supra, 203         N.J.       at 519-20

(citation and internal quotation marks omitted).

    The court also must determine whether a class action is

superior to other trial techniques. Id. at 520. This decision

"involves    considerations        of       fairness        to    the    putative             class

members     and    the   defendant,          and      the        'efficiency'            of    one

adjudicative method over another." Ibid. (citing In re Cadillac



                                            14                                           A-3485-14T3
V8-6-4 Class Action, 93          N.J. 412, 436 (1983)). Finally, the

court must consider the manageability of a class action. Ibid.

"Managing a state-wide class action almost always will be a

difficult undertaking because '[c]omplexity is an inherent trait

of class litigation.'" Ibid. (quoting Iliadis, supra, 191 N.J.

at 117-18).

    In making the predominance, superiority and manageability

assessment,      "a   certifying    court     must     undertake   a   'rigorous

analysis'   to    determine    if   the     Rule's    requirements     have   been

satisfied."      Iliadis,     supra,    191    N.J.     at    106-07   (citation

omitted). The certifying court "must understand and analyze the

'claims, defenses, relevant facts,             and applicable substantive

law' in determining whether a class action: (1) presents common

issues of fact and law that predominate over individual ones,

(2) is a superior means of achieving efficient and just results,

and (3) is manageable." Lee, supra, 203 N.J. at 505-06 (quoting

Iliadis, supra, 191 N.J. at 107).

                                       III.

    TGIF      contends      plaintiffs        failed     to     establish      the

predominance requirement of Rule 4:32-1(b)(3) with regard to the

claims under the CFA.

    A CFA claim brought by a consumer "requires proof of three

elements: '1) unlawful conduct by defendant; 2) an ascertainable

loss by plaintiff; and 3) a causal relationship between the



                                       15                                A-3485-14T3
unlawful     conduct      and       the     ascertainable               loss.'"        Manahawkin

Convalescent       v.    O'Neill,         217    N.J.       99,    121        (2014)      (quoting

Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 557 (2009)). "'A

plaintiff who proves all three elements may be awarded treble

damages, "attorneys" fees, filing fees and reasonable costs of

suit.'" Id.        at 121 (quoting N.J.S.A. 56:8-19).

      An    ascertainable       loss       "is       one   that        is    'quantifiable       or

measurable,'       not    'hypothetical              or    illusory.'"            D'Agostino     v.

Maldonado,     216      N.J.   168,       185    (2013)          (quoting         Thiedemann     v.

Mercedes-Benz USA, L.L.C., 183 N.J. 234, 248 (2005)). A consumer

may establish an ascertainable loss if he or she suffers an out-

of-pocket loss. Lee, supra, 203 N.J. at 522. Furthermore, the

consumer     must       "demonstrate            that       he     or        she    suffered      an

ascertainable loss 'as a result of' the unlawful practice." Id.

at    522    (quoting      N.J.S.A.         56:8-19             (emphasis         added)).      The

statutory     phrase     "as    a    result          of"   connotes          a    "causal    nexus

requirement." Bosland, supra, 197 N.J. at 557-58.

      Here, plaintiffs allege they suffered ascertainable losses

as a result of TGIF's alleged unlawful conduct, specifically,

its failure to list prices on its menus for certain beverages.

Plaintiffs allege         TGIF's practice                 violates N.J.S.A.            56:8-2.5,

and    constitutes        an    unconscionable               commercial            practice      in

violation     of     N.J.S.A.       56:8-2.          However,      in        order   to     obtain

damages, each plaintiff must show that he or she sustained an



                                                16                                        A-3485-14T3
ascertainable loss and that the alleged unlawful conduct caused

the loss.

      In this case, plaintiffs failed to show that common issues

of fact as to whether TGIF's customers who purchased unpriced

soda, beer or mixed drinks predominate over issues that pertain

to individual class members. The class definition approved by

the trial court assumes that any patron at a TGIF company-owned

restaurant who purchased those beverages sustained an out-of-

pocket loss "as a result of" TGIF's failure to list prices for

these items on the menu. The court's analysis fails for several

reasons.

      The class definition erroneously includes all persons who

purchased an unpriced soda, beer or mixed drink regardless of

whether they reviewed the menu before purchasing the beverages.

However, a person cannot establish that he or she sustained an

ascertainable      loss   caused   by   TGIF's     alleged   unlawful   conduct

unless that person reviewed the beverage section of the menu

before making the purchase. If a person did not look at the

beverage section of the menu, TGIF's failure to list prices on

the   menu   had   no     causal   nexus     to   the   person's   decision    to

purchase a particular beverage.

      Furthermore, based upon this record, we must assume some

persons who purchased a soda, beer or mixed drink at a TGIF-

owned restaurant in the period at issue made decisions as to



                                        17                              A-3485-14T3
whether to order those beverages that had nothing whatsoever to

do with whether the prices were listed on the menu. For example,

a patron may have asked the price before ordering a soda, beer,

or mixed drink. If so, the patron would have been informed of

the price of the beverage before purchasing it.

      In    this   regard,   we   note   that    Fox   claims     one   of    TGIF's

servers misinformed him of the prices of certain beverages that

he purchased. There is, however, no evidence that TGIF's servers

routinely misinformed customers as to the prices of beverages,

or   that    it    was   TGIF's   practice      to   have   its    servers       tell

customers one price and charge them a higher price later. In any

event, Fox's experience confirms that some TGIF patrons ask the

price of a beverage before purchasing it.

      In addition, some of the persons who purchased a soda, beer

or mixed drink at company-owned TGIF restaurants in the relevant

period may have previously patronized one of TGIF's restaurants

and knew the prices that would be charged for these beverages.

Patrons also may have assumed the prices they would be charged

based on prices charged in other restaurants. Thus, the absence

of menu pricing for soda, beer and mixed drinks would not have

had any effect upon the decisions of these patrons to purchase

these beverages.

      Plaintiffs allege, based on certain marketing studies and

tests, that TGIF patrons will spend an average of $1.72 more on



                                         18                                  A-3485-14T3
beverages if the prices are not listed on the menu.2 However,

even if this allegation is proven, it would not establish that

all persons who purchased soda, beer and mixed drinks at TGIF-

owned restaurants spent more on these beverages because prices

were not listed on the menus. As we have explained, a patron may

have chosen to purchase a particular beverage on a specific date

for any number of reasons that have nothing to do with the lack

of menu pricing.

    We also note that Dugan claims she was charged $2.00 for a

beer at the bar and was later charged $3.59 for the same beer at

a table in the restaurant. Dugan asserts that the bar price was

the price charged during "happy hour." Although Dugan may have

been misled to believe she would be charged the "happy hour"

price for both drinks, that may not be so as to other patrons

who made similar purchases.

    We are therefore convinced that, with respect to the claims

under the CFA, the trial court erroneously found that issues of

fact common to members of the class predominate over issues that

affect individual class members. The court therefore erred by

allowing these claims to be maintained as a class action.

    The decision in International Union of Operating Engineers,



2 We note that TGIF asserts that plaintiffs have misinterpreted
the studies and tests. TGIF also asserts that there is no
evidence that TGIF acted or relied upon these studies and tests.



                               19                           A-3485-14T3
supra, 192 N.J. 372, supports our conclusion. In that case, the

plaintiff, a third-party payor of a healthcare benefits plan,

brought an action against the defendant, the manufacturer of the

prescription     drug   Vioxx,   alleging   it   violated   the    CFA    by

engaging in a fraudulent marketing campaign that induced "third-

party   payors    to    accord   Vioxx   preferred   status   in      their

formularies." Id. at 381.

    In reversing the grant of class certification, the Supreme

Court found that although each proposed class member received

the same information from the defendant, the class members did

not react "in a uniform or even similar manner." Id. at 390. The

Court stated that each third-party payor

          made individualized decisions concerning the
          benefits that would be available to its
          members for whom Vioxx was prescribed. The
          evidence      about      separately       created
          formularies,     different    types    of    tier
          systems, and individualized requirements for
          approval or reimbursement imposed on various
          plans' members and, to some extent, their
          prescribing    physicians,    are   significant.
          That   evidence     convinces    us   that    the
          commonality of defendant's behavior is but a
          small piece of the required proofs. Standing
          alone, that evidence suggests that the
          common   fact    questions    surrounding    what
          defendant knew and what it did would not
          predominate.

          [Id. at 391.]

    Here, the "commonality" of TGIF's alleged unlawful conduct

is but "a small piece of the required proofs." Ibid. As we have




                                    20                             A-3485-14T3
explained, there are numerous reasons why customers at TGIF-

owned restaurants may have purchased a soda, beer or mixed drink

in the relevant period, and whether the absence of menu pricing

caused      those    customers     to    sustain      an   ascertainable          loss

cognizable under the CFA. Therefore, we conclude the court erred

by permitting plaintiffs to maintain a class action for the CFA

claims.

      Our    decision   in   the   earlier     appeal      does    not    require    a

different     conclusion.      There,     we   held    that       Dugan   had     pled

sufficient facts to state a claim under the CFA, noting that the

appeal involved review of the denial of a motion to dismiss for

failure to state a claim, and the complaint had to be "parsed

generously." Dugan v. TGI Fridays, Inc., supra, slip op. at 18.

We   held    that,   viewing     the    complaint     indulgently,        Dugan    had

stated a claim under the CFA.

      However, we did not hold that all persons who purchased an

unpriced soda, beer or mixed drink at a TGIF-owned restaurant

necessarily sustained an ascertainable loss that was caused by

TGIF's alleged unlawful conduct. We also specifically declined

to address the issue of whether the matter should be certified

as a class action. Id. at 21-22.

                                        IV.

      TGIF further argues that plaintiffs failed to establish the

predominance requirement of Rule 4:32-1(b)(3) with respect to



                                         21                                 A-3485-14T3
the claims under TCCWNA.

      The   purpose      of    the   TCCWNA       "is    to    prevent   deceptive

practices      in   consumer    contracts        by   prohibiting    the   use    of

illegal terms or warranties in consumer contracts." Kent Motor

Cars, Inc. v. Reynolds & Reynolds Co., 207 N.J. 428, 457 (2011).

The TCCWNA provides in relevant part that:

            No seller . . . shall in the course of his
            business    offer   to    any   consumer   or
            prospective consumer or enter into any
            written consumer contract . . . or display
            any written . . . notice or sign . . . which
            includes any provision that violates any
            clearly   established   legal  right    of  a
            consumer or responsibility of a seller . . .
            as established by State or Federal law at
            the time the offer is made . . . or the . .
            . notice or sign is given or displayed.

            [N.J.S.A. 56:12-15.]

The   TCCWNA    also    provides     that       any   person   who   violates    the

statute shall be liable to an aggrieved consumer for a civil

penalty of not less than $100, actual damages, or both at the

consumer's election, in addition to reasonable attorneys' fees

and court costs. N.J.S.A. 56:12-17.

      The TCCWNA does not create any new consumer rights, rather

"[t]he   rights,       remedies,     and    prohibitions       conferred   by    the

TCCWNA are 'in addition to and cumulative of any other right,

remedy or prohibition accorded by common law, Federal law or

statutes of this State.'" Shelton v. Restaurant.com, Inc., 214

N.J. 419, 428 (2013) (quoting N.J.S.A. 56:12-18).



                                           22                              A-3485-14T3
    In     the   earlier       appeal,       we    held     that    Dugan          had    alleged

sufficient facts to state a claim under the TCCWNA. Dugan v. TGI

Fridays,    Inc.,    supra,       slip      op.    at   18-20.      We    found          that    the

omission of prices from TGIF's menu qualified as an "affirmative

act" under the TCCWNA because that practice violated N.J.S.A.

56:12-15. Id. at 19. We also found that Dugan was a "consumer"

under    the   statute,       and     that    "the      affirmative           act    that       may

trigger the TCCWNA is the offer encompassed by TGIF's menu." Id.

at 20.

    Here,        TGIF      argues      that        plaintiffs          cannot        establish

predominance       under      Rule    4:32-1(b)(3)           for    the       TCCWNA       claims

because    "each    individual         class        member      will     be    required           to

demonstrate      that    he    or     she    was     provided       with       a    menu        that

violates the law[.]"

    Plaintiffs allege that TGIF instructs its servers to hand

opened menus to all patrons.                 However, if TGIF gave its servers

such instructions, they may not have been always followed. For

example, a server may have forgotten to provide the menu to a

customer, or a patron may have told the server a menu was not

required.      Individualized            inquiries          would      be      required           to

determine      whether     each      class    member      was      handed      a     menu       that

lacked beverage pricing.

    Furthermore,           claims      for        "actual     damages"         pursuant           to

N.J.S.A. 56:12-17 would necessarily involve individual inquiries



                                             23                                           A-3485-14T3
to determine whether each class member sustained a loss caused

by    the   absence     of    beverage      pricing      on   TGIF's       menus.     Those

inquiries would be similar to the individual inquiries required

to    determine       whether       the    class     members        sustained       losses

recoverable under the CFA.

       We   therefore    conclude         that    with   regard     to     their    claims

under the TCCWNA, plaintiffs have not established that issues of

fact common to the members of the class predominate over issues

that only affect individual class members. We conclude the court

erred   by   allowing        plaintiffs      to    maintain     a   class     action      to

pursue these claims.

       In view of our decision, we need not consider TGIF's other

arguments     regarding       the    class       certification,       or    plaintiff's

contention     that     the     court     erred     by   excluding         certain     TGIF

patrons and purchases from the class.

       Accordingly, the trial court's orders of December 23, 2014

and   February    13,    2015,      are    reversed,      and   plaintiffs'         cross-

appeal is dismissed. The matter is remanded to the trial court

for further proceedings on plaintiffs' individual claims. We do

not retain jurisdiction.




                                            24                                     A-3485-14T3
