NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2662-18T1

ELLEN BASKIN, KATHLEEN

O'SHEA, and SANDEEP TRISAL,

on behalf of themselves and all

others similarly situated,

Plaintiffs-Appellants,

v.

P.C. RICHARD & SON, LLC,

d/b/a P.C. RICHARD & SON,

and P.C. RICHARD & SON, INC.,

d/b/a P.C. RICHARD & SON,

Defendants-Respondents.

______________________________

Argued January 22, 2020 – Decided March 2, 2020

Before Judges Yannotti, Hoffman and Firko.

On appeal from the Superior Court of New Jersey, 

Law Division, Ocean County, Docket No. L-0911-18.

Chant Yedalian (Chant & Company) of the California 

Bar, admitted pro hac vice, argued the cause for 

appellants (Lite De Palma Greenberg LLC, and Chant 

Yedalian, attorneys; Bruce Daniel Greenberg and 

Chant Yedalian, on the briefs).

William Stephen Gyves argued the cause for 

respondents (Kelley Drye & Warren LLP, attorneys; 

APPROVED FOR PUBLICATION

March 2, 2020

APPELLATE DIVISION
A-2662-18T1 2

William Stephen Gyves, Glenn T. Graham, and Robert 

Nicholas Ward, on the brief).

The opinion of the court was delivered by

FIRKO, J.A.D.

Plaintiffs Ellen Baskin, Kathleen O'Shea, and Sandeep Trisal 

commenced this putative class action matter, asserting claims against 

defendants, P.C. Richard & Son, LLC and P.C. Richard & Son, Inc., 1 under the 

Fair and Accurate Credit Transactions Act (FACTA) of 2003, 15 U.S.C. §§ 

1681 to 1681x, which prohibits retailers who accept credit or debit cards from 

printing more than the last five digits of the card number or expiration date 

upon any receipt. We affirm the trial court's order finding that plaintiffs failed 

to establish that a class action was the superior means to resolve the claims, as 

required by Rule 4:32-1(b)(3).

We also affirm the trial court's order insofar as it dismissed the claims 

advanced by O'Shea and Trisal because they are New York residents and their 

claims arise out of sales transactions that occurred in New York. However, we 

reverse and remand the dismissal of the complaint as to Baskin because she is 

a New Jersey resident and her individual claim arises out of a transaction that 

occurred in this State.

1

 We refer to P.C. Richard & Son, LLC and P.C. Richard & Son, Inc. 

collectively as "defendants."
A-2662-18T1 3

I.

We discern the following facts from the motion record. O'Shea and 

Trisal initially filed their complaint as a class action lawsuit in the Southern 

District of New York in 2015.2 The New York complaint alleged O'Shea and 

Trisal received receipts from one of defendants' New York stores around

November 17, 2013 and on May 2, 2016 respectively, which included their 

credit or debit card's expiration dates and the last four digits3 of their card 

numbers in violation of FACTA. O'Shea and Trisal claimed defendants'

FACTA violations were willful because defendants:

1) knew of and were well informed about the law;

2) were informed by other entities of FACTA's 

truncation requirements and the prohibition on 

expiration dates;

3) knew their electric receipt printing equipment was 

outdated, but [decided to forgo] proper updates to 

avoid spending the money, time, and other resources 

required; and 

2

 O'Shea v. P.C. Richard & Son, LLC, No. 15 Civ. 9069, 2017 U.S. Dist. 

LEXIS 122424, at *2 (S.D.N.Y. Aug. 3, 2017).

3

 Plaintiffs alleged only the last four digits of their card numbers were 

disclosed, not five digits. Instead, their primary contention is defendants 

unlawfully printed the expiration dates of their cards on store receipts.
A-2662-18T1 4

4) were put on notice of their FACTA violations by

[p]laintiff O'Shea's letter and [c]omplaint.[4]

O'Shea and Trisal further alleged that printing their card expiration dates 

subjected them to "an increased risk of identity theft and credit [and/or] debit 

card fraud," even though neither one of them suffered identity theft or fraud. 

Defendants filed a motion to dismiss the federal action, which was granted. 

The federal court found O'Shea and Trisal could not prove a material risk of 

harm and therefore, they lacked standing to assert FACTA claims against

defendants.

O'Shea and Trisal joined Baskin in filing the complaint under review in 

the Law Division on April 27, 2018. Baskin alleged in her complaint that she 

received two credit/debit card receipts from defendants "on May 24, 2016[,] 

each of which contained, among other things, [her] card's expiration date, the 

last four digits of her card number, the brand of her card, her full name, her 

full physical address, and her telephone number[,]" from one of defendants'

retail stores located in Brick.

5

 Additionally, Baskin alleged she was exposed 

4

 O'Shea served affidavits with a cease and desist letter on November 2, 2015 

demanding that defendants comply with FACTA. A draft copy of the 

complaint was attached to the letter.

5

 15 U.S.C. § 1681c(g)(1) provides: "Except as otherwise provided in this 

subsection, no person that accepts credit cards or debit cards for the 

transaction of business shall print more than the last [five] digits of the card 
A-2662-18T1 5

to an increased risk of identity theft and credit/debit card fraud, although she 

did not sustain any such damages.

The class plaintiffs sought to represent was described as: "All consumers 

to whom [d]efendants, after November 17, 2013, provided an electronically 

printed receipt at the point of a sale or transaction at any of [d]efendants'

physical store locations, on which receipt [d]efendants printed the expiration 

date of the consumer's credit card or debit card." The complaint alleged:

Defendants have willfully violated [FACTA] and 

failed to protect [p]laintiffs and others similarly 

situated against identity theft and debit card fraud by 

printing the expiration date of the card and the last 

four digits of the card number on receipts provided to 

credit card and debit card cardholders transacting 

business with [d]efendants. This conduct is in direct 

violation of FACTA.

Defendants filed a motion to dismiss on September 5, 2018, claiming 

plaintiffs could not satisfy the requirements for class action certification, and 

that New Jersey courts lacked personal jurisdiction over them in this matter. 

In support of their motion to dismiss, defendants also argued plaintiffs' New 

Jersey action was an attempt at "a second bite [of] the FACTA class action 

apple." Specifically, defendants contend that the federal court dismissed 

O'Shea and Trisal's complaint because the alleged FACTA violations were 

number or the expiration date upon any receipt provided to the cardholder at 

the point of the sale or transaction." (Emphasis added).
A-2662-18T1 6

technical in nature and did not result in actual injury. Similarly, in this case, 

defendants contend that plaintiffs did not sustain any harm, such as identity 

theft, credit or debit card fraud, or that any third party ever came into 

possession of the sales receipts or credit card information. Defendants argued 

that under New Jersey law, technical violations of FACTA should not be 

adjudicated as a class action. They therefore sought to have plaintiffs'

complaint dismissed.

Plaintiffs opposed the motion. On November 30, 2018, the trial court 

conducted oral argument on defendants' motion to dismiss. The court 

addressed the motions in a written opinion dated January 17, 2019. The court 

determined, "certifying a class for these [p]laintiffs—persons who have alleged 

no concrete harm and yet are seeking a robust remedy in the form of a class 

action suit for technical violations of a federal statute—would be contrary to 

relevant New Jersey law."

Accordingly, the trial court concluded that plaintiffs failed to satisfy the 

numerosity requirement under Rule 4:32-1(a) because they did not assert a 

potential class number "except to contend that there could be 'thousands of 

people whose credit card information was exposed on improper receipts.'"

Additionally, the court stated "[p]laintiffs have also not provided sufficient 
A-2662-18T1 7

evidence to support a claim that the class is so numerous that joinder of all 

members is impracticable . . . ."

In finding plaintiff failed to establish any harm, the trial court stated:

Plaintiffs allege that it is the violation of FACTA 

itself that has caused damage to the consumer, but 

[p]laintiffs fail to allege that they were victims of 

identity theft, credit or debit card fraud, or that any 

third party ever came into possession of the sales 

receipts or the credit card information contained on 

the receipts, which puts [p]laintiffs' claims at odds 

with the legislative purpose of FACTA and points to 

an overall lack of demonstrable damages in the case of 

these particular [p]laintiffs. As a result, the alleged 

liability of [d]efendants would need to be determined 

on the facts on an individual basis, especially if other 

consumers who received the allegedly violative 

receipts actually were victims of identity theft or other 

instances of fraud.

In addition, the trial court found New Jersey lacked personal jurisdiction 

over O'Shea and Trisal's claims because they are New York residents, P.C. 

Richard & Son, LLC, is a New York limited liability company, and P.C. 

Richard & Son, Inc., is a Delaware corporation, having a principal place of 

business in New York. The court further reasoned that since defendants 

maintained their principal place of business in New York, the court had no 

basis to exercise personal jurisdiction over defendants with regard to the 

claims asserted in the complaint. On January 17, 2019, the court entered a 
A-2662-18T1 8

memorializing order granting defendants' motion to dismiss as to all three 

plaintiffs.

On appeal, plaintiffs argue that: (1) the trial court erred in finding that 

plaintiffs could not meet the requirements of class certification under Rule

4:32-1; (2) the trial court erred in finding that plaintiffs could not satisfy the 

predominance or superiority requirements of Rule 4:32-1(b)(3) and the 

numerosity requirement of Rule 4:32-1(a); (3) the trial court erred in 

dismissing the action in its entirety; and (4) the trial court erred in finding it 

lacked personal jurisdiction over defendants.

II.

We begin by addressing plaintiffs' contention that the trial court erred by 

finding that class certification is not the superior means of adjudicating the 

technical violations of FACTA alleged in the complaint, an issue that the New 

Jersey courts have not yet addressed. In reviewing the grant or denial of a 

class action certification, an appellate court must ascertain whether the trial 

court followed the applicable standards set forth in Rule 4:32-1 and whether it 

abused its discretion in doing so. Lee v. Carter-Reed Co., 203 N.J. 496, 505 

(2010).

An abuse of discretion "arises when a decision is 'made without a

rational explanation, inexplicably departed from established policies, or rested
A-2662-18T1 9

on an impermissible basis.'" Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571

(2002) (quoting Achacoso-Sanchez v. Immigration and Naturalization Serv.,

779 F.2d 1260, 1265 (7th Cir. 1985)). In determining whether the trial court

has abused its discretion, we "'must ascertain whether the trial court has

followed' the class action standard set forth in Rule 4:32-1." Dugan v. TGI

Fridays, Inc., 231 N.J. 24, 50 (2017) (quoting Lee, 203 N.J. at 506).

In order to proceed as a class action, plaintiffs must satisfy the general

prerequisites of Rule 4:32-1(a), which state:

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.

[Ibid.]

These four prerequisites are commonly "referred to as 'numerosity, 

commonality, typicality, and adequacy of representation.'" Laufer v. U.S. Life 

Ins. Co. in the City of New York, 385 N.J. Super. 172, 180 (App. Div. 2006).

Plaintiffs that satisfy subsection (a) of Rule 4:32-1 must also fulfill one 

of the three requirements of subsection (b), which examine the interests of the 

class members and the "effect of class certification on efficient judicial 
A-2662-18T1 10

management . . . ." Myska v. N.J. Mfrs. Ins., 440 N.J. Super. 458, 475 (App. 

Div. 2015) (quoting In re Cadillac V8-6-4 Class Action, 93 N.J. 412, 436

(1983)). 

Rule 4:32-1(b) states that a class action may be certified if:

(1) the prosecution of separate actions by or against

individual members of the class would create a risk

either of:

(A) inconsistent or varying adjudications

with respect to individual members of the

class that would establish incompatible

standards of conduct for the party

opposing the class, or

(B) adjudications with respect to

individual members of the class that

would as a practical matter be dispositive

of the interests of the other members not

parties to the adjudications or

substantially impair or impede their

ability to protect their interests; or

(2) the party opposing the class has acted or refused to

act on grounds generally applicable to the class,

thereby making appropriate final injunctive relief or

corresponding declaratory relief with respect to the

class as a whole; or

(3) the court finds that 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. The factors pertinent to the findings

include:
A-2662-18T1 11

(A) the interest of members of the class in

individually controlling the prosecution or

defense of separate actions;

(B) the extent and nature of any litigation

concerning the controversy already

commenced by or against members of the

class;

(C) the desirability or undesirability in

concentrating the litigation of the claims

in the particular forum; and

(D) the difficulties likely to be

encountered in the management of a class

action.

"In short, 'the movant must demonstrate both the predominance of the common

issues and the "superiority" of a cause of action over other available trial

techniques.'" Myska, 440 N.J. Super. at 475 (quoting Saldana v. City of

Camden, 252 N.J. Super. 188, 196 (App. Div. 1991)).

On appeal, plaintiffs argue that the trial court erred by denying class 

certification. Plaintiffs contend that the court erred by finding that they did 

not satisfy the superiority and predominance requirements of Rule 4:32-

1(b)(3). They also contend that the court erred by dismissing the matter at the 

pleading stage. We disagree. We conclude that the trial court properly applied 

the requirements in Rule 4:32-1 and did not err by denying class certification

at the pleading stage.
A-2662-18T1 12

In this case, plaintiffs are asserting claims under FACTA. The purpose 

of FACTA "is to ensure that consumers suffering from any actual harm to their 

credit or identity are protected while simultaneously limiting abusive lawsuits 

that do not protect consumers but only result in increased cost to business and 

potentially increased prices to consumers." Credit and Debit Card Receipt 

Clarification Act of 2007, Pub. L. No. 110-241, § (2)(b), 121 Stat. 1565, 1566 

(2008). The Act's further purpose is "to prevent criminals from obtaining 

access to consumers' private financial and credit information in order to reduce 

identity theft and credit card fraud." Id. at § (2)(a)(1), 121 Stat. at 1565.

A. Numerosity

Although plaintiffs argue that the trial court erred in declaring that they

did not establish the numerosity requirement of Rule 4:32-1(a), the federal

courts indicate that "[a]s a general rule, . . . classes of [twenty] are too small,

classes of [twenty to forty] may or may not be big enough depending on the

circumstances of each case, and classes of [forty] or more are numerous

enough[,]" to satisfy the numerosity factor for class actions. In re Toys "R"

Us, 300 F.R.D. 347, 367-68 (C.D. Cal. 2013) (quoting Ikonen v. Hartz

Mountain Corp., 122 F.R.D. 258, 262 (S.D. Cal 1988)). Plaintiffs failed to 

name the number of potential class members, and only vaguely stated that 

there could be "thousands of people whose credit card information was 
A-2662-18T1 13

exposed on improper receipts." Because plaintiffs here failed to sufficiently 

articulate the size of the class, they did not meet this prerequisite to forming a 

class action.

B. Superiority

Analysis of the superiority requirement "necessarily implies a

comparison with alternative procedures, and mandates assessment of the

advantages and disadvantages of using the class[]action device in relation to

other methods of litigation." Local Baking Prods., Inc. v. Kosher Bagel 

Munch, Inc., 421 N.J. Super. 268, 275-76 (App. Div. 2011) (quoting Iliadis v.

Wal-Mart Stores, Inc., 191 N.J. 88, 114 (2007)).

Recognizing that there is no controlling precedent on FACTA class 

action claims in New Jersey, the trial court applied the reasoning in Local 

Baking to the current case. In Local Baking, we granted the defendant's 

motion to dismiss an action brought under the Telephone Consumer Protection 

Act (TCPA) of 1991, 47 U.S.C. § 227, which prohibits the use of facsimile 

machines, computers, or other devices to send unsolicited advertisements. Id.

at 271.

The TCPA allows a claimant to recover actual damages, or $500 for each 

technical violation of the Act, whichever is greater. 47 U.S.C. § 227(b)(3). In 

determining whether the plaintiffs met the superiority prong of Rule 4:32-
A-2662-18T1 14

1(b)(3), we held that "a class action suit is not a superior means of adjudicating 

a TCPA suit[,]" agreeing with the trial court's analysis that small claims courts 

eliminate the need for class action treatment of TCPA claims. Local Baking, 

421 N.J. Super. at 280.

On appeal, plaintiffs argue that Local Baking is inapposite because the 

TCPA does not require a violation to be willful in order to seek recovery under 

the TCPA. However, FACTA provides for attorney fee-shifting, thereby

indicating that Congress did not intend for such claims to be brought by pro se 

litigants in small claims courts. Moreover, plaintiffs argue that FACTA allows 

for claims to be brought for willful and negligent violations of the law.

15 U.S.C. § 1681n(a) authorizes claimants to recover for any willful 

violation of the act "in an amount equal to the sum of[:]"

(A) any actual damages sustained by the

consumer as a result of the failure or

damages of not less than $100 and not

more than [$1000]; or

(B) in the case of liability of a natural

person for obtaining a consumer report

under false pretenses or knowingly

without a permissible purpose, actual

damages sustained by the consumer as a

result of the failure or [$1000], whichever

is greater;

(2) such amount of punitive damages as the court may

allow; and
A-2662-18T1 15

(3) in the case of any successful action to enforce any

liability under this section, the costs of the action

together with reasonable attorney's fees as determined

by the court.

[(Emphasis added).]

15 U.S.C. § 1681o provides, regarding negligent noncompliance:

(a) In general. Any person who is negligent in failing

to comply with any requirement imposed under this

title . . . with respect to any consumer is liable to that

consumer in an amount equal to the sum of[:]

(1) any actual damages sustained by the

consumer as a result of the failure; and

(2) in the case of any successful action to

enforce any liability under this section,

the costs of the action together with

reasonable attorney's fees as determined

by the court.

[(Emphasis added).]

In comparing FACTA with the TCPA, the former, according to 15 

U.S.C. §1681n(a)(1)(A), limits plaintiffs' claims to $1000 individually, 

allowing them to recover in our small claims section, where the jurisdictional 

limit is $3000. See R. 6:1-2(a)(2). In the Local Baking analysis of the TCPA, 

we noted that "by imposing a statutory award of $500, a sum considerably in 

excess of any real or sustained damages, Congress has presented an aggrieved 

party with an incentive to act in his or her own interest without the necessity of 

class action relief." 421 N.J. Super. at 280.
A-2662-18T1 16

The reasoning in Local Baking applies here, because the $1000 damage 

limit for willful violations of FACTA is comparable to the limited damages 

available under the TCPA. As we noted in Local Baking, litigants can file 

complaints in the small claims court, and they can do so without an attorney. 

Ibid. An answer is not needed, and the trial court can address the complaint 

promptly. Ibid.

We further concluded that "[t]he combination of the TCPA's design and 

New Jersey's procedures suggests that the benefit of a class action has been 

conferred on a litigant by the very nature of the procedures employed and 

relief obtained. The cost of litigating for an individual is significantly less 

than the potential recovery." Id. at 280-81.

Plaintiffs argue, however, that the potential to recover punitive damages 

under 15 U.S.C. § 1681n(a)(2) elevates their FACTA claims beyond the 

jurisdictional limit of small claims court because discovery and witnesses 

would be necessary in order to determine punitive damages. Plaintiffs also 

assert that litigants may file in small claims court "without an attorney," but

the potential allowance for attorney's fees and punitive damages removes 

FACTA claims from the small claims court $3000 jurisdictional recovery 

limit.
A-2662-18T1 17

We are also mindful of our decision in United Consumer Fin. Servs. Co. 

v. Carbo, 410 N.J. Super. 280, 294 (App. Div. 2009). In that case, we 

concluded that a class action was the superior method of adjudicating claims

alleging violations of the Truth-in-Consumer Contract, Warranty, and Notice

Act, N.J.S.A. §§ 56:12-14 to -18. Carbo involved 16,845 class members, who

were each awarded a civil penalty of $100, for an aggregate civil penalty of

$1,664,500. Carbo, 410 N.J. Super. at 292, 308.

The issue in Carbo, however, was whether class certification should be

denied because "the potential for a large award [was] based upon aggregated

civil penalties." Id. at 309. Accepting reasoning from the federal courts, we

declined to allow dismissal of the class action on such a theory. Ibid.; see

Murray v. GMAC Mortg. Corp., 434 F.3d 948, 953 (7th Cir. 2006); Parker v.

Time Warner Entm't Co., 331 F.3d 13, 22 (2d. Cir. 2003).

Here, the trial court did not deny class certification based on the

potential for a large award of aggregate damages. Rather, the court held that a

class action is not a superior means of adjudicating plaintiffs' FACTA claims. 

Thus, plaintiffs' reliance on Carbo is misplaced.

Plaintiffs also rely on Lee and Delgozzo v. Kenny, 266 N.J. Super. 169

(App. Div. 1993), to support their position that a class action is the superior

mode of litigation. In Lee, a New Jersey Consumer Fraud Act (CFA) case, our
A-2662-18T1 18

Court rejected defendant's "argument that its refund policy provided every

dissatisfied purchaser a superior alternative to a lawsuit." 203 N.J. at 529. 

The Court found that it was unlikely that thousands of claimants would file

individual actions regarding a product that costs about $40. Id. at 528. 

"[M]ost importantly," the Court found class action was superior to the 

company's refund policy and thousands of individuals' small claims because 

the Court previously held that "a refund policy–particularly in the case of 

small claims–would not immunize a merchant from a CFA claim." Id. at 529 

(citing Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 561 (2009)).

In Delgozzo, another CFA case, we reversed the trial court's denial of 

class certification because the trial court failed to explain why the proposed 

class of 35,000 individuals "would be 'unruly' to an extent beyond that which 

would exist in any class action[,]" and it never addressed the factors expressly 

listed in Rule 4:32-1(b)(3). Id. at 193, 195. In a CFA case, trial courts must

consider "the very real possibility that failure to certify the class could result in 

the end of the litigation," and should "be of particular concern with respect to" 

the superiority inquiry. Id. at 192 (citing In re Cadillac, 93 N.J. at 435-36).

Both Lee and Delgozzo present legal and factual issues not present in

this case. Here, defendants do not assert that any company policy provides a

superior method of resolving plaintiffs' claims, as in Lee, and instead argue
A-2662-18T1 19

that individual actions in the small claims section is the appropriate means to

resolve the claims. Moreover, in Delgozzo, the trial court did not analyze the

factors under Rule 4:32-1(b)(3), and class certification will not prevent

plaintiffs or any other member of the putative class from pursuing an

individual claim.

In support of their argument that a class action would be the superior

means to adjudicate the FACTA claims of the putative class, plaintiffs rely on

several federal cases. Toys "R" Us, 300 F.R.D. at 365 (finding class action 

was superior where defendant printed more than 29,000,000 noncompliant 

receipts nationwide, including, 2,074,428 noncompliant receipts in California); 

Engel v. Scully & Scully, Inc., 279 F.R.D. 117, 130 (S.D.N.Y. 2011) (finding 

class action was superior where 3000 to 5000 noncompliant receipts were 

issued).

However, "[o]n questions of federal constitutional law and statutory law, 

only decisions of the United States Supreme Court are binding on the courts of 

this state." Pressler & Verniero, Current N.J. Court Rules, cmt. 3.5 on R. 1:36-

3 (2020). State courts are not bound by lower federal court opinions, including 

the Circuit Court of Appeals. Ibid.; see generally Ryan v. Am. Honda Motor 

Co., 186 N.J. 431, 436 (2006). "Nonetheless, [reported] federal opinions, 

including district court decisions, may have significant persuasive effect. For 
A-2662-18T1 20

example, as a matter of comity, a [s]tate court will give weight to a lower 

federal court's interpretation of federal law." Ibid.; see, e.g., Royster v. N.J. 

State Police, 439 N.J. Super. 554, 570 n.7 (App. Div. 2015).6

Far more persuasive is the reasoning of the federal court that held

O'Shea and Trisal failed to state a claim under FACTA and dismissed their 

complaints seeking class certification. O'Shea, 2017 U.S. Dist. 122424 at *16. 

The federal court relied on Crupar-Weinmann v. Paris Baguette Am., Inc., 861 

F.3d 76, 81 (2d. Cir. 2017), which held that the printing of a credit or debit 

card expiration date did not "pose a material risk of harm." The CruparWeinmann court reasoned:

Congress expressly observed that the inclusion of

expiration dates did not raise a material risk of 

identity theft, presumably to curtail the hundreds of 

lawsuits [that] were filed [after FACTA's passage] 

alleging that the failure to remove the expiration date 

was a willful violation . . . even where the account 

number was properly truncated[, and n]one of these 

lawsuits contained an allegation of harm to any 

consumer's identity. Congress could not have been 

clearer in stating that [t]he purpose of this Act is to 

ensure that consumers suffering from any actual harm 

to their credit or identity are protected while 

simultaneously limiting abusive lawsuits that do not 

protect consumers but only result in increased cost to 

6

 Moreover, "[w]here there is no New Jersey case law relevant to a class 

certification issue, 'our courts have consistently looked to the interpretations 

given the federal counterpart for guidance.'" Laufer, 385 N.J. Super. at 183 

(quoting Delgozzo, 266 N.J. Super. at 188).
A-2662-18T1 21

business and potentially increased prices to 

consumers.

[Id. at 81-82 (alterations in original) (internal citations 

and quotations omitted).]

"[T]he printing of an expiration date on an otherwise properly redacted receipt 

does not constitute an injury in fact sufficient to establish . . . standing to bring 

a claim alleging a bare procedural violation of FACTA." Id. at 82.

C. Predominance

Plaintiffs next argue that the trial court erred by determining sua sponte 

they failed to meet the predominance requirement of Rule 4:32-1(b)(3). "To 

determine predominance under Rule 4:32-1(b)(3), the court decides 'whether 

the proposed class is "sufficiently cohesive to warrant adjudication by 

representation."'" Dugan, 231 N.J. at 48.

The "predominance requirement" of Rule 4:32-1(b)(3) "is more 

demanding than the commonality requirement." Muise v. GPU, Inc., 371 N.J. 

Super. 13, 37 (App. Div. 2004). It "requires an evaluation of the legal issues 

and the proof needed to establish them." In re Cadillac, 93 N.J. at 430. "As a 

matter of efficient judicial administration, the goal is to save time and money 

for the parties and the public and to promote consistent decisions for people 

with similar claims." Ibid.
A-2662-18T1 22

Plaintiffs correctly point out that "Rule 4:32-1(b)(3) does not demand a 

showing 'that there is an "absence of individual issues or that the common

issues dispose of the entire dispute," or "that all issues [are] identical among 

class members or that each class member [is] affected in precisely the same 

manner."'" Ibid. (alterations in original) (quoting Lee, 203 N.J. at 520). 

Additionally, plaintiffs need not "demonstrate that the number of common 

issues exceeds the number of individual issues." Ibid. (citing Varacallo v. 

Mass. Mut. Life Ins., 332 N.J. Super. 31, 45 (App. Div. 2000)).

This factor, however, requires "a qualitative assessment of the common 

and individual questions rather than a mere mathematical quantification of 

whether there are more of one than the other." Ibid. (quoting Lee, 203 N.J. 

519-20). Whether the issue of predominance is found involves "a close 

analysis of the facts and law." Ibid. (quoting Iliadis, 191 N.J. at 109). The 

courts must first consider "the number and, more important[ly], the 

significance of common questions must be considered." Iliadis, 191 N.J. at 

108.

Next, the "court must decide whether the 'benefit from the determination 

in a class action [of common questions] outweighs the problems of individual 

actions.'" Ibid. (alteration in original) (quoting In re Cadillac, 93 N.J. at 430). 

The trial court found that plaintiffs did not provide "sufficient evidence to 
A-2662-18T1 23

support a claim that . . . the alleged class has been damaged in such a way that 

would be representative of the whole." This lack of information "puts 

[p]laintiffs' claims at odds with the legislative purpose of FACTA and points

to an overall lack of demonstrable damages in the case of these particular 

[p]laintiffs." Finally, there must be a "common nucleus of operative facts[,]" 

to establish predominance. Ibid. (quoting In re Cadillac, 93 N.J. at 431).

Here, the trial judge found that plaintiffs had not pled sufficient facts to 

establish the predominance factor because

[t]he potential disparate nature of damages that may or 

may not have been suffered by consumers who 

received [noncompliant] receipts would require courts 

to adjudicate [d]efendants' liability on a case by case 

basis as such claims may not be representative of the 

entire class. It is this type of indispensable case by 

case determination that cuts directly against the 

purpose of Rule 4:32-1's class certification 

predominance and superiority prongs.

We agree with the trial court that the sheer amount of uncertainties in 

respect of the amount of potential FACTA claims against defendants, and any 

harm that arose from such violations, renders it difficult to determine a 

common nucleus of operative facts. Therefore, we conclude that the trial court 

did not err in finding plaintiffs failed to establish the predominance factor of 

Rule 4:32-1(b)(3).
A-2662-18T1 24

III.

Next, plaintiffs argue that the trial court erred by finding it did not have 

personal jurisdiction to entertain the complaints of Baskin, O'Shea, and Trisal. 

We conclude the court correctly found that it could not exercise general 

jurisdiction over defendants and lacked specific jurisdiction to consider the

claims of O'Shea and Trisal. We also conclude that the court erred by finding 

it did not have specific jurisdiction to consider Baskin's claims against 

defendants.

Our state's "long-arm statute 'provides for jurisdiction coextensive with 

the due process requirements of the United States Constitution.'" Koch v. 

Pechota, 744 Fed. Appx. 105, 110 (3d. Cir. 2018) (quoting Miller Yacht Sales, 

Inc. v. Smith, 384 F.3d 93, 96 (3d. Cir. 2004)). Rule 4:4-4(b)(1), our long-arm 

statute, "has been construed as vesting New Jersey's courts with jurisdiction 

over non-residents to the outer limits permitted by due process." Pressler & 

Verniero, Current N.J. Court Rules, cmt. 3.1.1 on R. 4:4-4 (2020). 

Accordingly, New Jersey state courts refer "to federal law to interpret the 

limits on personal jurisdiction." Koch, 744 Fed. Appx. at 110 (citing IMO 

Indus., Inc. v. Kiekert AG, 155 F.3d 254, 259 (3d. Cir. 1998)).

Personal jurisdiction over a defendant may be exercised through general 

jurisdiction or specific jurisdiction. Plaintiffs contend the trial court only 
A-2662-18T1 25

addressed the issue of specific jurisdiction, not whether general jurisdiction 

applied. Our review of the record shows the trial court did address general 

jurisdiction:

In this case, [d]efendant P.C. Richard & Son, LLC is a 

New York limited liability company. Defendant P.C. 

Richard & Son, Inc. is a Delaware corporation. Both 

entities maintain their principal place[s] of business in 

New York. Thus, [d]efendant P.C. Richard & Son, 

LLC is subject to general jurisdiction in New York 

and [d]efendant P.C. Richard & Son, Inc. is subject to 

general jurisdiction in both Delaware and New York. 

As general jurisdiction does not exist in this case, this 

[c]ourt would need to be able to exercise specific 

jurisdiction over [d]efendants.

General jurisdiction over a corporation exists where "the corporation is 

fairly regarded as at home[,]" such as its domicile, place of incorporation, or 

principal place of business. Goodyear Dunlop Tires Operations, S.A. v. 

Brown, 564 U.S. 915, 924 (2011). "[A] corporation's operations in a forum 

other than its formal place of incorporation or principal place of business may 

be so substantial and of such a nature as to render the corporation at home in" 

another state. Daimler AG v. Bauman, 571 U.S. 117, 139 n.19 (2014).

A court that has general jurisdiction over a defendant "may hear any

claim against that defendant, even if all the incidents underlying the claim 

occurred in a different state." Bristol-Myers Squibb v. Superior Court, 137 S. 

Ct. 1773, 1780 (2017) (quoting Goodyear, 564 U.S. at 919). "'[O]nly a limited 
A-2662-18T1 26

set of affiliations with a forum will render a defendant amenable to' general 

jurisdiction in that state." Ibid. (quoting Daimler, 571 U.S. at 137).

Plaintiffs argue that defendants conduct more than twenty-five percent 

of their business in New Jersey, and generate nearly twenty-five percent of 

their revenue from sales in New Jersey, thereby establishing general 

jurisdiction. While Goodyear did not hold that the only forums in which a 

corporation may be subjected to general jurisdiction are where it is 

incorporated, or where it maintains its principal place of business, the United 

States Supreme Court also rejected the premise of "approv[ing] the exercise of 

general jurisdiction in every [s]tate in which a corporation 'engages in a 

substantial, continuous, and systematic course of business.'" Daimler, 571 

U.S. at 138. The proper inquiry is, therefore, "whether that corporation's 

'affiliations with the [s]tate are so "continuous and systematic" as to render [it] 

essentially at home in the forum State.'" Ibid. (alteration in original) (quoting 

Goodyear, 564 U.S. at 919).

Defendants are neither incorporated in New Jersey, nor do they have 

their principal place of business here. This court has noted the incredible 

difficulty of establishing "general jurisdiction [over a corporation] in a forum 

other than the place of incorporation or principal place of business." Dutch 

Run-Mays Draft, LLC v. Wolf Block, LLP, 450 N.J. Super. 590, 608 (App. 
A-2662-18T1 27

Div. 2017) (alteration in original) (quoting Chavez v. Dole Food Co., 836 F.3d 

205, 223 (3d. Cir. 2016)).

The proper inquiry for general jurisdiction is "'an appraisal of a 

corporation's activities in their entirety'; '[a] corporation that operates in many 

places can scarcely be deemed at home in all of them.'" Id. at 603 (alteration 

in original) (quoting BNSF Ry. v. Tyrell, 137 S. Ct. 1549, 1559 (2017)). 

Continuous activity within a state is insufficient "to support the demand that 

the corporation be amenable to suits unrelated to that activity." Id. at 599.

As previously stated, P.C. Richard & Son, LLC is a New York limited 

liability company and P.C. Richard & Son, Inc. is a Delaware corporation. 

Plaintiffs' assertion that defendants' New Jersey locations are "very close" to 

their New York headquarters is unconvincing. Defendants certified that they 

conduct business in New York, New Jersey, Pennsylvania, and Delaware. 

They clearly cannot be considered to be "at home" in all four states. 

Moreover, defendants also certified that more than three-quarters of their 

business is conducted outside of the State of New Jersey. Thus, the trial court 

correctly found the New Jersey courts could not exercise general jurisdiction 

over defendants.

The trial court also held that New Jersey state courts do not have specific 

jurisdiction over defendants in this matter. The court found:
A-2662-18T1 28

O'Shea and Trisal are New York [r]esidents. . . . 

O'Shea and Trisal's claims arise out of receipts they 

each received at [d]efendants' New York stores. 

While [d]efendants do operate numerous retail stores 

in New Jersey, this fact by itself does not meet the 

requirements of specific jurisdiction under BristolMyers. Specifically, . . . O'Shea and Trisal fail to 

allege that the claims they have asserted against 

[d]efendants "aris[e] out of or relat[e]" to 

[d]efendants' operations in New Jersey. See BristolMyers, 137 S. Ct. at 1780. Thus, specific jurisdiction 

is also lacking because the claims alleged do not have 

any connection with [d]efendants' contacts in New 

Jersey as the forum state. Therefore, notwithstanding 

this [c]ourt's principal ruling that class certification in 

this matter is not appropriate under Rule 4:32-1, the 

[c]ourt finds that it may not properly exercise personal 

jurisdiction over the non-resident [p]laintiffs' claims.

In order for specific jurisdiction to exist, "there must be 'an affiliation

between the forum and the underlying controversy, principally, [an] activity or

an occurrence that takes place in the forum [s]tate and is therefore subject to

the [s]tate's regulation.'" Bristol-Myers, 137 S. Ct. at 1780 (alteration in

original) (emphasis added) (quoting Goodyear, 564 U.S. at 919). When no

such connection exists, specific jurisdiction is not achieved "regardless of the

extent of a defendant's unconnected activities in the [s]tate." Id. at 1781; see

Goodyear, 564 U.S. at 931 n.6.

The trial court correctly found that O'Shea and Trisal's claims are wholly

unrelated to any action or injury caused by defendants in New Jersey. O'Shea

and Trisal are New York residents who made purchases at defendants' New
A-2662-18T1 29

York stores allegedly in violation of FACTA. We discern no error in the trial

court's dismissal of the complaint as to O'Shea and Trisal.

IV.

Finally, plaintiffs argue, and defendants concede, that Baskin's

complaint should be reinstated and proceed as an individual action. Rule 4:32-

2(f)(4) permits the court to "make appropriate orders" to amend pleadings "to

eliminate therefrom allegations as to representation of absent persons, and that

the action proceed accordingly . . . ."

Baskin is a New Jersey resident with an alleged FACTA claim

emanating from one of defendants' New Jersey stores. Hence, the trial court

erred in dismissing Baskin's complaint and barring her from proceeding

individually.

Accordingly, we conclude that the trial court correctly denied class

certification and properly dismissed O'Shea and Trisal's claims. However, we

reverse the dismissal of Baskin's claims and reinstate the complaint as to her

individual claims only.

Affirmed in part, reversed and remanded in part. We do not retain

jurisdiction.