NOT FOR PUBLICATION WITHOUT THE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

ROBERT CAMERON on behalf of

themselves and all other

similarly situated,

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

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).

APPROVED FOR PUBLICATION

March 24, 2016

APPELLATE DIVISION

March 24, 2016
2 A-3485-14T3

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 decertify 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, 
3 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.
4 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. 
5 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-
6 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 
7 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.
8 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 
9 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 companyowned, 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-
10 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. 
11 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 
12 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 
13 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.
14 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 
15 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 
16 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. 
17 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 outof-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-
18 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 TGIFowned 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 
19 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 TGIFowned 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. 
20 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 "thirdparty payors to accord Vioxx preferred status in their 
21 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 TGIFowned 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 
22 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). 
23 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 
24 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 
25 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' crossappeal is dismissed. The matter is remanded to the trial court 

for further proceedings on plaintiffs' individual claims. We do 

not retain jurisdiction.