                NOT FOR PUBLICATION WITHOUT THE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,




                                        2                                     A-3485-14T3
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

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.




                                          3                                 A-3485-14T3
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

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.




                                              4                                         A-3485-14T3
    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

              (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-



                                        5                                A-3485-14T3
20.

      C. The Amended Complaints.

      In   December     2011,     Dugan       filed     an    amended   complaint,

alleging that she purchased unpriced beverages at TGIF's Mount

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




                                          6                                A-3485-14T3
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

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.




                                         7                               A-3485-14T3
    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

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




                                      8                            A-3485-14T3
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

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-




                                                  9                                         A-3485-14T3
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

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


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




                                       10                              A-3485-14T3
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

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




                                       11                                    A-3485-14T3
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

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




                                                12                                       A-3485-14T3
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.

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.




                                    13                              A-3485-14T3
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

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




                                        14                                      A-3485-14T3
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

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




                                              15                                      A-3485-14T3
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

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.




                                           16                                A-3485-14T3
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

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-




                                        17                                    A-3485-14T3
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

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




                                          18                                  A-3485-14T3
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

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

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
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,

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




                                    20                             A-3485-14T3
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

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



                                  21                          A-3485-14T3
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

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).




                                         22                                   A-3485-14T3
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).

      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




                                          23                                   A-3485-14T3
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

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




                                               24                                    A-3485-14T3
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.




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