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Supreme Court of New Jersey
April 4, 2017, Argued; October 4, 2017, Decided
A-92 September Term 2015, A-93 September Term 2015, 077567 and 077556
[**625] [*34] JUSTICE PATTERSON delivered the opinion of the Court.
In these consolidated appeals, the plaintiffs allege that the defendant operators of New Jersey restaurants engaged in unlawful practices with respect to the disclosure of prices charged to customers for alcoholic and non-alcoholic beverages. Based upon different theories of ascertainable loss and causation, plaintiffs in the two actions demand damages and other relief against defendants under the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -206. They also seek damages, civil penalties, and other relief under the Truth in Consumer Contract, Warranty and Notice Act (TCCWNA), N.J.S.A. 56:12-14 to -18.
In each case, the trial court certified the action as a class action pursuant to Rules 4:32-1 and 4:32-2. In Dugan v. TGI Fridays, Inc., 445 N.J. Super. 59, 135 A.3d 1003 (App. Div. 2016), an Appellate Division panel reversed the trial court's certification of a class. The Appellate Division denied the defendant's motion for leave to appeal in Bozzi v. OSI Restaurant [***4] Partners, [**626] LLC. We granted leave to appeal in both actions.
Applying the class action certification standard of Rule 4:32-1 to the CFA claim asserted in Dugan v. TGI Fridays, Inc., we hold that plaintiffs have failed to show that common questions of law and fact predominate over individual issues, as Rule 4:32-1 requires. As an alternative to presenting proof of ascertainable loss and causation as to each member of the class, the Dugan plaintiffs propose to demonstrate, for a class numbering in the millions, that TGIF charged each member of the class $1.72 more than the "fair" or "reasonable" prices that it would have charged had it disclosed its beverage prices on the menu. Because our CFA class action jurisprudence rejects "price-inflation" theories, such as the theory presented by the Dugan plaintiffs, as incompatible with the CFA's terms, we conclude that the Dugan plaintiffs have not established predominance with respect to their CFA claims. We accordingly modify and affirm the Appellate Division's determination that the Dugan class was improperly certified for purposes of [*35] the CFA claims asserted in that action and remand for a determination of the individual plaintiffs' CFA claims.
We reach a different [***5] conclusion with respect to the CFA claims asserted by plaintiff Ernest Bozzi in Bozzi v. OSI Restaurant Partners, LLC. Although Bozzi asserts general claims that the defendant restaurants failed to disclose prices, his allegations focus primarily on a specific pricing practice. He alleges that the defendant restaurants violated the CFA by increasing the price charged to a customer for the same brand, type, and volume of beverage in the course of the customer's visit to the restaurant, without notifying the customer of the change. Bozzi's counsel represents that this price-shifting claim is supported by claimant-specific receipts showing that each customer making this claim was charged different prices for the same brand, type, and volume of beverage in the course of a single visit to one of the defendant's restaurants.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
231 N.J. 24 *; 171 A.3d 620 **; 2017 N.J. LEXIS 975 ***
DEBRA DUGAN, ALAN FOX, AND ROBERT CAMERON ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS, v. TGI FRIDAYS, INC., CARLSON RESTAURANTS WORLDWIDE, INC., ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, DEFENDANTS-RESPONDENTS. ERNEST BOZZI, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-RESPONDENT, v. OSI RESTAURANT PARTNERS, LLC, T/A CARRABBA'S ITALIAN GRILL, ET AL., DEFENDANTS-APPELLANTS.
Prior History: Bozzi v. Osi Rest. Partners, LLC, 226 N.J. 543, 145 A.3d 1084, 2016 N.J. LEXIS 804 (July 20, 2016)Dugan v. TGI Fridays, Inc., 445 N.J. Super. 59, 135 A.3d 1003, 2016 N.J. Super. LEXIS 45 (App.Div., Mar. 24, 2016)
beverage, prices, restaurant, consumer, menus, ascertainable loss, class action, customers, predominance, class certification, plaintiffs', causation, patrons, damages, trial court, class member, certification, questions, practices, notice, merchandise, claimant, visits, unlawful practice, classwide, purchases, purposes, common issue, meal, member of the class
Civil Procedure, Special Proceedings, Class Actions, Governments, Courts, Rule Application & Interpretation, Class Actions, Certification of Classes, Prerequisites for Class Action, Prerequisites for Class Action, Commonality, Predominance, Antitrust & Trade Law, Consumer Protection, Deceptive & Unfair Trade Practices, State Regulation, Superiority, Pleadings, Complaints, Requirements for Complaint, Pleading & Practice, Appeals, Standards of Review, Abuse of Discretion, Appellate Review, Regulated Practices, Private Actions, False Advertising, Private Actions, Costs & Attorney Fees, Evidence, Burdens of Proof, Allocation, Remedies, Trials, Jury Trials, Province of Court & Jury, Contracts Law, Remedies, Damages