                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-3629-13T3

VINCENT DANIELS, individually
and on behalf of a class,            APPROVED FOR PUBLICATION

         Plaintiff-Respondent,             May 13, 2015

    v.                                  APPELLATE DIVISION


HOLLISTER CO., a Delaware
Corporation,

         Defendant-Appellant.

____________________________________________

         Argued October 21, 2014 – Decided May 13, 2015

         Before Judges Fisher, Accurso and Manahan.

         On appeal from the Superior Court of New
         Jersey, Law Division, Ocean County, Docket
         No. L-2310-12.

         Brian J. Murray (Jones Day) of the Illinois
         bar, admitted pro hac vice, argued the cause
         for appellant (Grossman, Heavey & Halpin,
         P.C., and Mr. Murray, attorneys; Richard A.
         Grossman, of counsel and on the briefs; Mr.
         Murray, on the briefs).

         James Shedden (Shedden Law) of the Illinois
         bar, admitted pro hac vice, argued the cause
         for respondent (Flitter Lorenz, P.C., and
         Mr. Shedden, attorneys; Cary L. Flitter,
         Theodore E. Lorenz and Andrew M. Milz, of
         counsel and on the brief; Mr. Shedden and
         Vincent L. DiTommaso (DiTommaso Lubin, P.C.)
         of the Illinois bar, admitted pro hac vice,
         on the brief).
     The opinion of the court was delivered by

FISHER, P.J.A.D.

     We     granted    leave       to     appeal          an    order      granting     class

certification1 to consider whether the trial judge correctly held

plaintiff    was     not    required       to        show      the    class   members      are

"ascertainable."           Although        we        doubt     the    "ascertainability"

doctrine     adopted       by     some     federal           courts     should      ever     be

incorporated into our jurisprudence, we conclude in this matter

of first impression that "ascertainability" must play no role in

considering    the     certification            of    a     low-value      consumer     class

action and, therefore, affirm.

     Plaintiff commenced this lawsuit on behalf of himself and

others    similarly    situated          against       defendant        Hollister     Co.,    a

clothing    retailer       with    outlets       throughout          the   United     States.

1
 Orders granting or denying class certification are not
appealable as of right; an aggrieved party must move for leave
to appeal pursuant to Rule 2:5-6(a).     We recognize, however,
that the decision to grant or deny class certification often has
a profound effect on the litigation.       Accordingly, we will
hereafter, as a general matter, liberally indulge applications
for leave to appeal: (1) "when a denial of class status
effectively ends the case (because, say, the named plaintiff's
claim is not of a sufficient magnitude to warrant the costs of
stand-alone litigation)"; (2) "when the grant of class status
raises the stakes of the litigation so substantially that the
defendant likely will feel irresistible pressure to settle"; and
(3)   when  permitting  leave   to  appeal   "will  lead   to  a
clarification of a fundamental issue of law."        Waste Mgmt.
Holdings, Inc. v. Mowbray, 208 F.3d 288, 293 (1st Cir. 2000);
see also Blair v. Equifax Check Servs., Inc., 181 F.3d 832, 834-
35 (7th Cir. 1999).



                                            2                                        A-3629-13T3
Plaintiff alleges that in or around December 2009, defendant

conducted a promotion by which customers purchasing at least $75

of merchandise were given a $25 gift card for use in its stores

and on its website.            Plaintiff alleges that even though these

transferable       gift    cards      possessed    "no       expiration       date,"

defendant      voided    all   outstanding     cards    on   January    30,     2010.

Plaintiff      alleges     a   gift    card,    which    stated    it     had    "no

expiration date," was dishonored when presented by him at one of

defendant's stores in New Jersey on January 22, 2011.

       Claiming in-store signs during the promotion asserted that

"$25 gift card expires 1/30/10," but also acknowledging some

cards expressly stated they had "no expiration date," and others

were silent in that regard, defendant admits that as January 30,

2010 approached it "sent emails to customers who had registered

their email addresses to remind them of the upcoming expiration

date."         Notwithstanding       defendant's   factual      assertions,        we

review    an    order     granting     class   certification      by    according

plaintiff "every favorable view" of the complaint. Iliadis v.

Wal-Mart Stores, Inc., 191 N.J. 88, 96 (2007) (quoting Riley v.

New Rapids Carpet Ctr., 61 N.J. 218, 223 (1972)); see also Lee

v. Carter-Reed Co., 203 N.J. 496, 518 (2010); Int'l Union of

Operating Eng'rs. Local No. 68 Welfare Fund v. Merck & Co., 192

N.J.   372,     376   (2007)    (hereafter     "Merck").       Accordingly,       we




                                         3                                A-3629-13T3
proceed   on   the   assumption   that   the   facts   contained   in    the

complaint are true and that, as of January 30, 2010, defendant

began and will continue to dishonor $25 gift cards given out in

December 2009 despite representations at the time that the gift

cards would not expire.

    Our courts not only liberally indulge the allegations of

the complaint but also "liberally construe[]" Rule 4:32-1 in

favor of class certification.       Iliadis, supra, 191 N.J. at 103

(quoting Delgozzo v. Kenny, 266 N.J. Super. 169, 179 (App. Div.

1993)).    In Varacallo v. Massachusetts Mutual Life Insurance

Co., 332 N.J. Super. 31, 45 (App. Div. 2000), we said that in

the context of consumer transactions, "class actions should be

liberally allowed . . . under circumstances that would make

individual actions uneconomical to pursue."            In short, as the

Court made clear in Iliadis, "a class action 'should lie unless

it is clearly infeasible.'"        191 N.J. at 103 (quoting Riley,

supra, 61 N.J. at 225).

    In addition to this liberal approach, courts tasked with

determining whether a class should be certified must focus on

the Rule's purposes, which our Supreme Court described in the

following way:

           Unitary     adjudication     through     class
           litigation    furthers   numerous    practical
           purposes, including judicial economy, cost-
           effectiveness,     convenience,     consistent



                                    4                              A-3629-13T3
              treatment of class members, protection of
              defendants from inconsistent obligations,
              and allocation of litigation costs among
              numerous, similarly-situated litigants.

              [Iliadis, supra, 191 N.J. at 104.]

Of   further     importance      is    the     Court's     admonition      that     the

decision to certify a class should be guided by the policy that

favors an even playing field:

              In such disputes, where the claims are, in
              isolation, "too small . . . to warrant
              recourse to litigation," the class-action
              device equalizes the claimants' ability to
              zealously advocate their positions.     That
              equalization    principle    "remedies   the
              incentive problem facing litigants who seek
              only a small recovery." [T]he class action's
              equalization function opens the courthouse
              doors for those who cannot enter alone.

              [Ibid. (quoting In re Cadillac V8-6-4 Class
              Action, 93 N.J. 412, 435 (1983) and Muhammad
              v. Cnty. Bank of Rehoboth Beach, Del., 189
              N.J. 1, 17 (2006), certif. denied, 549 U.S.
              1338, 127 S. Ct. 2032, 167 L. Ed. 2d 763
              (2007)).]

In   short,    the   class-action       device's       "'historic     mission'"      is

caring   for    "'the    smaller      guy.'"       Ibid.      (quoting     Marvin    E.

Frankel,   Amended      Rule    23    From   a   Judge's      Point   of    View,    32

Antitrust L.J. 295, 299 (1966)).

      There is no doubt that the certified class in question

consists   of    numerous      individuals       who   have    allegedly    suffered

small injuries.         In his written opinion, the trial judge noted

defendant's concession that "over $3,000,000 worth of $25 gift



                                         5                                   A-3629-13T3
cards were voided."           In fact, there is no dispute that all

requirements         expressly     mentioned              in      Rule        4:32-1(a)        –

"numerosity,         commonality,         typicality,             and        adequacy        of

representation," Lee, supra, 203 N.J. at 519; Cadillac, supra,

93 N.J. at 424-25 – are present.

      Defendant      nevertheless       argues      class        certification         should

not   have    been   permitted     because      of    an        element      it     claims   is

embedded in the Rule's interstices – ascertainability.                                    This

alleged implicit element, recognized by some federal courts in

construing Federal Rule of Civil Procedure 23, insists that "the

class    must   be     currently    and    readily         ascertainable            based     on

objective     criteria."         See,   e.g.,       Marcus        v.    BMW    of    N.   Am.,

L.L.C., 687 F.3d 583, 593 (3d Cir. 2012).

      In     arguing    the   trial       judge      erred        in      granting        class

certification, defendant contends that the defined class2 "fails

the     ascertainability      requirement           and        violates       due    process"

because      defendant     will     have       no     ability          "to     test       class

2
 The order in question describes the class as:    "Persons who
possess [defendant's] promotional gift cards in hard copy
stating 'no expiration date' that were issued as part of the
2009 promotion and that were voided by [defendant] on or after
January 30, 2010, and persons who discarded such cards because
they were told that the cards expired or had been voided, but
not persons who received a refund of the expired balance on
their cards, not persons who lost their cards, not persons who
discarded their cards for reasons other than having been told
that the cards expired or had been voided, and not persons who
gave their cards to somebody else."



                                           6                                          A-3629-13T3
membership,"      because    "absent      class    members"      will    have   no

"opportunity to opt-out," and because the preclusive effect of

any judgment will be unknowable and unenforceable.                      Defendant

claims our courts have recognized this doctrine but, even if

that were not so, we should now recognize and apply it.                         We

disagree on both scores.

       We conclude, as did the trial judge, that our courts have

never    viewed    Rule     4:32-1   as     requiring     that    a     class   be

"ascertainable" as a condition for certification.                     Defendant's

contrary argument relies on Iliadis, where, in a footnote, it is

stated that class certification:

           presupposes the existence of a properly
           defined class.     Thus, "[e]ven before one
           reaches the four prerequisites for a class
           action, there must be an adequately defined
           class."    Richard L. Marcus & Edward F.
           Sherman,   Complex   Litigation:   Cases  and
           Materials on Advanced Civil Procedure 231
           (4th ed. 2004).    "[T]he proposed class must
           be sufficiently identifiable without being
           overly broad. The proposed class may not be
           amorphous, vague, or indeterminate and it
           must be administratively feasible to deter-
           mine whether a given individual is a member
           of the class." White v. Williams, 208 F.R.D.
           123, 129 (D.N.J. 2002) (quotations and
           internal citation omitted).

           [Iliadis, supra, 191 N.J. at 106 n.2.]

This footnote, however, is inapposite.             It simply emphasized the

need for a clear definition of the contours of the class; it

says    nothing    about     whether       the    class   members       must    be



                                       7                                 A-3629-13T3
ascertainable before certification may be permitted.                          In fact,

the word "ascertainable" does not appear in the opinion.

      Those federal courts that found "ascertainability" silently

residing    within   Federal     Rule    of    Civil    Procedure        23   so   held

because    they   believed      this    judge-made      doctrine:        "eliminates

'serious administrative burdens that are incongruous with the

efficiencies expected in a class action' by insisting on the

easy identification of class members"; "protects absent class

members by facilitating the "'best notice practicable'" required

by   federal    rules;   and    "protects      defendants        by    ensuring    that

those   persons    who   will    be    bound    by   the       final    judgment    are

clearly     identifiable."         Marcus,      supra,         687     F.3d   at    593

(citations omitted).       This "ascertainability" doctrine, however,

is   different    from   the    requirement      that      a    class    be   properly

defined, as the Third Circuit recognized when it later held that

"the question of ascertainability" in Marcus was "analyzed . . .

separately from the question of whether the class was properly

defined."      Shelton v. Bledsoe, 775 F.3d 554, 560 (3d Cir. 2015).

So, while defendant trumpets the Iliadis footnote as proof our

Supreme Court adopted "ascertainability" as a requirement for

class actions commenced pursuant to our own Rule, in fact, the

footnote's language is premised on the Court's examination of

what is required to properly define a class without imposing on




                                         8                                    A-3629-13T3
plaintiff the obligation of then showing that all class members

are identifiable.    Accordingly, we reject defendant's contention

that the "ascertainability" doctrine has already been recognized

by our courts.

    We also dispense with the argument that we should hold the

"ascertainability" doctrine is implicitly contained within Rule

4:32-1.

    First,    as   already    observed,    our    Supreme     Court   has     not

recognized the doctrine despite discussing the requirements for

class   certifications   at     length    in   Lee,   Merck    and    Iliadis.3

Nothing in those decisions remotely suggests that anything other

than the Rule's expressed requirements are relevant, and nothing

in those decisions suggests the Rule's requirements are to be

interpreted   with   anything    other    than   liberality     in    favor    of

certification.

    Second, federal experimentation with the ascertainability

doctrine seems far from over and, indeed, this doctrinal wave

may have broken before ever cresting.            Only a few circuits have

expressly adopted it,4 and the Third Circuit, which produced the


3
 We observed earlier that the word "ascertainability" does not
appear in Iliadis; the word also makes no appearance in either
Lee or Merck.
4
 See EQT Prod. Co. v. Adair, 764 F.3d 347, 358-59 (4th Cir.
2014); Little v. T-Mobile U.S.A., Inc., 691 F.3d 1302, 1304
                                                 (continued)


                                     9                                 A-3629-13T3
Marcus/Hayes/Carrera trilogy on which defendant relies,5 appears

quite   unsettled.       For    example,        in   a   case   decided   after     the

trilogy, the court expressly held that "ascertainability is not

a requirement for certification of a (b)(2)[6] class seeking only

injunctive and declaratory relief."                  Shelton, supra, 775 F.3d at

563.      The    final   act    of    the       trilogy    –    disagreement     about

rehearing en banc in Carrera, supra, 727 F.3d 300, set forth in

Carrera v. Bayer Corp., No. 12-2621, 2014 U.S. App. LEXIS 15553

(3d Cir. May 2, 2014) – demonstrates further uncertainty about

the    scope    and   application     of    the      doctrine    in   class   actions

brought pursuant to Federal Rule of Civil Procedure 23(b)(3),

the    federal    counterpart    to    Rule       4:32-1(b)(3),       which   applies

here.    And the rollback of the doctrinal wave may be seen in an

even more recent opinion; in concurring in a judgment reversing

an order that denied certification on ascertainability grounds,

Circuit Judge Rendell observed that "the lengths to which the

majority goes in its attempt to clarify what our requirement of


(continued)
(11th Cir. 2012); John v. Nat'l. Sec. Fire & Cas. Co., 501 F.3d
443, 445 (5th Cir. 2007); In re Initial Pub. Offerings Sec.
Litig., 471 F.3d 24, 30 (2d Cir. 2006).
5
 This trilogy consists of Marcus, to which we have already
referred, Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013),
and Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349 (3d Cir. 2013).
6
 This abbreviation refers to Federal Rule of Civil Procedure
23(b)(2), the federal counterpart to Rule 4:32-1(b)(2).



                                           10                                 A-3629-13T3
ascertainability       means,     and    to   explain      how   this   implicit

requirement fits in the class certification calculus, indicate

that the time has come to do away with this newly created aspect

of Rule 23 in the Third Circuit."             Byrd v. Aaron's Inc., No. 14-

3050, 2015 U.S. App. LEXIS 6190, at *39 (3d Cir. Apr. 16, 2015).7

     The concerns expressed by Circuit Judges Ambro and Rendell,

in Carrera and Byrd, respectively, seem more in tune with our

Supreme Court's description of the policies governing the class-

action device in Lee, supra, 203 N.J. at 517-21, Merck, supra,

192 N.J. at 382-85, and Iliadis, supra, 191 N.J. at 103-05, than

those   that    generated   the      ascertainability      doctrine.     Indeed,

their   views    are    more    in    line    with   the    guiding     principle


7
 We are mindful that Byrd and the opinions in favor of and
against rehearing en banc in Carrera are not "published."
Nevertheless, Rule 1:36-3, which prohibits our citation to
"appellate opinions not approved for publication," except in
defined circumstances, has not been understood as applying to
unpublished opinions from other jurisdictions.        The Rule's
prohibition is based on the concept declared in the first
sentence of Rule 1:36-3 that "unpublished opinion[s]" are not to
be cited because they are not precedential.     Because decisions
of the federal courts of appeals are not binding on this court
regardless of whether they are published, see In re Contest of
Nov. 8, 2011, 210 N.J. 29, 45 (2012), we do not interpret Rule
1:36-3 as precluding our citation to unpublished opinions of the
federal courts of appeals.      Moreover, we cite to Byrd and
Carrera not because we view them as either precedential or non-
precedential but merely to shed light on a judicially-created
doctrine that defendant believes should be transplanted in this
jurisdiction.    We find these unpublished federal decisions
highly relevant in seeking an understanding of how or to what
extent this doctrine is being applied elsewhere.



                                        11                               A-3629-13T3
described      by    the   Supreme   Court      of    the   United      States.       "The

policy at the very core of the class action mechanism" was the

desire "to overcome the problem that small recoveries do not

provide the incentive for any individual to bring a solo action

prosecuting his or her rights" and the mechanism "solves this

problem        by    aggregating     the        relatively       paltry      potential

recoveries          into   something       worth          someone's      (usually         an

attorney's) labor."             Amchem Prods., Inc. v. Windsor, 521 U.S.

591, 617, 117 S. Ct. 2231, 2246, 138 L. Ed. 2d 689, 709 (1997)

(quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th

Cir. 1997)).          Accordingly, we agree with the concurring and

dissenting judges in Carrera and Byrd that when the concept of

ascertainability is applied inflexibly it becomes a device that

serves    to    burden     or   eliminate       nascent     class     actions     without

providing      any    societal    benefit.8          We   find   that    this     federal

doctrine as urged here imposes far too heavy a burden on class

certification where the purported injuries to class members are

8
 In his dissent in Carrera, Circuit Judge Ambro, the author of
Marcus, argued the panel had lost sight of the intended
flexibility that gave birth to this judicially-created doctrine.
Carrera, supra, 2014 U.S. App. LEXIS 15553, at *6-9. We agree.
It should not be overlooked that the class-action mechanism has
equitable roots, see Hansberry v. Lee, 311 U.S. 32, 41, 61 S.
Ct. 115, 118, 85 L. Ed. 22, 27 (1940); Iliadis, supra, 191 N.J.
at 103, and the hallmark of equity is its flexibility, see Crane
v. Bielski, 15 N.J. 342, 349 (1954); Thompson v. City of
Atlantic City, 386 N.J. Super. 359, 375 (App. Div. 2006), aff’d
in part, modified in part, 190 N.J. 359 (2007).



                                           12                                     A-3629-13T3
so    minimal     as   to    preclude         the   likelihood     they    would     be

individually asserted.              Although we have misgivings about the

ascertainability doctrine's use at the certification stage in

any class action, we decline to consider its                        application in

cases    other    than      those    involving      low    value    consumer    class

actions because of the concept's novelty.

      Ascertainability, as defined by defendant, is particularly

misguided       when   applied       to   a      case   where     any    difficulties

encountered in identifying class members are a consequence of a

defendant's own acts or omissions.                  Had defendant obtained the

identities of consumers when giving out $25 gift cards, the

problems it now offers as grounds for upending certification

would not exist.         Allowing a defendant to escape responsibility

for     its   alleged       wrongdoing         by   dint     of    its    particular

recordkeeping policies – an outcome admittedly un-troubling to

some federal courts9 – is not in harmony with the principles

governing class actions.             See Byrd, supra, 2015 U.S. App. LEXIS

6190,    at     *50    (Rendell,      J.,      concurring)      (recognizing       that

"[w]ithout      the    class   action       mechanism,     corporations      selling

small-value items for which it is unlikely that consumers would

9
 See Marcus, supra, 687 F.3d at 593 (observing, in referring to a
number of unpublished district court opinions, "[s]ome courts
have held that where nothing in company databases shows or could
show whether individuals should be included in the proposed
class, the class definition fails").



                                            13                               A-3629-13T3
keep    receipts   are   free     to    engage    in    false    advertising,

overcharging,      and   a    variety       of    other    wrongs     without

consequence").     In the final analysis, "ascertainability" does

not benefit the chief goal of our court rules – the fair and

efficient    administration     of     justice;     the    Third    Circuit's

experiences suggest the doctrine is practically unworkable in

application and is being exploited by defendants in unsuitable

cases to evade liability.         See Hughes v. Kore of Ind. Enter.,

Inc., 731 F.3d 672, 677 (7th Cir. 2013) (recognizing that "when

what is small is not the aggregate but the individual claim . .

. that's the type of case in which class action treatment is

most needful[,]" and emphasizing that a                class action "has a

deterrent as well as a compensatory objective").

       In rejecting the applicability of the "ascertainability"

doctrine when certifying class actions when members are numerous

consumers with small injuries, we are guided by the very reason

the    class-action   mechanism    was      created.      As    Justice   Albin

expressed for the Court in Lee:

            At times, a large number of individuals may
            have valid claims related to consumer fraud
            or some other wrong, but those claims in
            isolation are "too small . . . to warrant
            recourse to litigation." The perpetrator of
            that fraud or wrong also may be a corporate
            entity that wields enormous economic power.
            A class action permits "claimants to band
            together" and, in doing so, gives them a
            measure of equality against a corporate



                                       14                             A-3629-13T3
             adversary, thus providing "a procedure to
             remedy a wrong that might otherwise go
             unredressed." In short, the class action is
             a   device   that   allows   "an   otherwise
             vulnerable class" of diverse individuals
             with small claims access to the courthouse.
             In addition, a class action furthers other
             policy goals, including "judicial economy,"
             "consistent treatment of class members," and
             "protection of defendants from inconsistent
             [results]."

             [203 N.J. at 517-18 (citations omitted).]

As   noted    earlier,   the    class-action      device    was    intended     to

empower "the smaller guy," Iliadis, supra, 191 N.J. at 104, who

lacks either the incentive to sue for a small recovery or the

strength to take on a corporate giant in litigation.                     This has

been the predominant theme of all our Supreme Court's decisions

in this field.         We therefore decline the invitation to water

down – if not eliminate – the availability of the class-action

device   to     low-value       consumers   by     appending        an    onerous

requirement     that   serves    no   equitable    purpose    and    cannot     be

located in Rule 4:32-1.

      Even if ascertainability was relevant to some degree at

this stage and in this case, we would find it poses no obstacle

to   class    certification.10        Defendant    offers    the    specter     of


10
 Defendant has raised legitimate concerns about the preclusive
effect of a final judgment in class actions when class
membership is uncertain. These concerns, however, are outweighed
at the certification stage by the benefits provided by class
                                                     (continued)


                                       15                                A-3629-13T3
"extensive and individualized fact-finding or 'mini-trials'" in

identifying class members, or that membership might ultimately

be determined solely on the basis of the purported member's "say

so."     Marcus, supra, 687 F.3d at 593-94.                     This seems to us at

most a matter of concern at the claims administration stage, not

a ground for rejecting class certification.                      And even then, the

argument        does   not    pose      a        very       compelling     ground      for

decertification.        See Iliadis, supra, 191 N.J. at 117 (observing

that "[d]enial of class status due to manageability concerns is

disfavored and, 'in view of the public interest involved in

class actions, should be the exception rather than the rule'"

(citations omitted)).           The record on appeal does not suggest

that future identification problems cannot be overcome through

the application of some ingenuity, if necessary.                          Instead, the

record    reveals      that   defendant          identified      and     canceled     over

$3,000,000 worth of gift cards.                   Are not the many individuals

still      in     possession     of         cancelled          gift      cards     easily

ascertainable?         Is there a need for objective evidence other

than a member's presentation of such a card?                          To be sure, the

other    part     of   the    defined       class       –    those    individuals      who

discarded a $25 gift card "because they were told that the cards


(continued)
status, at least in the low value consumer class actions we
address.



                                            16                                   A-3629-13T3
expired or had been voided" – may need to show more, perhaps

through   submission   of   an   affidavit;   it   has   not   been    shown,

however, how such a process unfairly hampers the defense.                   See

Boundas v. Abercrombie & Fitch Stores, Inc., 280 F.R.D. 408,

417-18 (N.D. Ill. 2012).

     To demand more of plaintiff at this stage is to impose

nothing other than an artificial barrier to the court's ability

to render justice in a situation that suggests – in assuming, as

we must,11 the truth of plaintiff's allegations – that defendant

defrauded or deprived thousands upon thousands of a benefit once

extended.   Consumers may very well have purchased more than $75

of defendant's merchandise because of the lure of a $25 gift

card, and this bargain was arguably snatched away by defendant's

unilateral cancellation of the gift card at a later date.                   The

class-action device was created not only to allow compensation

for such small wrongs but also to deter future wrongdoing in the

marketplace.   Hughes, supra, 731 F.3d at 677.




11
 To be clear, we only assume for present purposes what it                    is
that plaintiff alleges.    Defendant has suggested a number                  of
factual grounds that may eventually demonstrate it engaged in                no
wrongdoing. This, however, is neither the time nor the place                 to
resolve their dispute.



                                    17                                A-3629-13T3
    The order granting class certification is affirmed and the

matter   remanded   for   further   proceedings.   We   do   not    retain

jurisdiction.




                                    18                             A-3629-13T3
