NOT FOR PUBLICATION WITHOUT THE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 D aniel Greenberg and Chant Yedalian, on the brief s ).

William S tep hen Gyves argued the cause for respondents (Kelley Drye & Warren LLP, attorneys ; APPROVED FOR PUBLICATION

March 2, 2020

APPELL ATE DIVISIONA

- 2662

- 18T1 2 William Stephen Gyves, Glenn T. Graham , and Robert

N icholas 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. §§

1 681 to 16 8 1 x , 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 tha t 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

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

claims ar ise 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 date s and the last four digits 3 of their card

numbers in violation of FACTA. O ' Shea and Trisal claim ed defe ndants '

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 print ing 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 expirat ion dates of their cards on store receipts.A

- 2662

- 18T1 4 4) were p ut 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

.

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

harm and therefore, they lacked standing to assert FACT A claims against

defendants.

O ' Shea and Trisal join ed Baskin in filing the complain t 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 2 4, 2016[,]

each of which contained

, among other things, [her] card ' s expiration date, the

last four digits of he r 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 cardA

- 2662

- 18T1 5 to an increased risk of identity theft and credit/debit card fraud, although she

did not sustain a ny such damages

.

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

to whom [d]efendants, after Novemb er 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 com plaint allege d :

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 requ irements for class action certification, and

that New Jersey courts lacked personal jurisdiction over the m 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] th e 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,

defen dants 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, te chnical 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

ac tion suit for technical violations of a federal statute

— would be contrary to

relevant New Jersey law."

Accordingly, t he 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

. ' "

Additional ly , the court stated "[p]laintiffs have also not provided sufficientA

- 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 FAC TA 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 c ontained on the receipts, which puts [p]laintiffs ' claims at odds

with the l egislative 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 Jerse y lack ed 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, In c ., is a Delaware corporation , having a principal place of

busin ess in New York

. The court further reasoned that s ince defendants

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

basis to exercise personal jurisdiction over defendant s with regard to the

claims asserted in the complaint

. O n J anuary 17, 2019, the court entered aA

- 2662

- 18T1 8 memorializing order granting defendant s ' 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 cer tification under Rule

4:32

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

predominance or supe r iority 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 mea ns 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 tria l

court followed t he 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 a buse of discretion " arises when a decision is ' made without a

rational explanation, inexplicably departed from established policies, or restedA

- 2662

- 18T1 9 on an impermissible basis. ' " Flagg v. Essex Cty. Prosecutor

, 171 N.J. 561, 571

(2002) (quoting Acha c o s o

- 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 5 06)

.

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

p r er e quisites 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 pa rties will fairly and adequately protect the interests of the

class.

[ Ibid. ]

These four p r er e quisites are commonly "referred to as ' numerosity,

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

Ins. Co. in the City of New Yo rk , 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 judicialA

- 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, 43 6

(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) adju dications with respect to
individual members of the class that

would as a practical matter be dispositive

of the interests of the other members not

p arties 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 injuncti ve 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 cl ass 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 o f 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, 1 9 6 (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

t he 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

credi t 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

e nough[,]" 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 clas s members , and only vaguely stated that

there could be "thousands of people whose credit card information wasA

- 2662

- 18T1 13 exposed on improper receipts." Because plaintiffs here failed to sufficiently

articulate the size of the class, they did not meet this prerequisi te 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 t o

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, wh ichever 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 ana lysis 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 inapposit e because the

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

the TCPA . However , FACTA provide s 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 allow s

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; andA

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- 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 acti on 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 c an file

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

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

promptly. Ibid.

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

New Jersey ' s procedures sugges t s that the benefit of a class action has been

conferred on a litiga nt 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.

P laintif fs argue , however, that the potential to recover punitive damages

under 15 U.S.C. § 1681n(a)(2) elevate s their FACTA claim s beyond the

jurisdictional limit of small claims court because discovery and witnesses

would be necessary in order to determine punit ive 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

alleg ing violations of the Truth

- in

- Consumer Contract

, W arranty, 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. Sup er. at 292, 308.

The issue in Carbo

, however, was whether class certification sh ould be

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

civil penalties." Id. at 30 9 . Accepting reasoning f rom the federal courts, we

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

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 cour t 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.

Plaintiff s also rel y 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, ourA

- 2662

- 18T1 18 Court rejecte d 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 cost s 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, 56 1 (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 argueA

- 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 a ny 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 adjudicat e 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 decision s of the United States Supreme Court are binding on the courts of

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

-

3 (20 20 ). State courts are not boun d 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 per suasive effect. ForA

- 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 persu asive 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 Crupar

Weinmann 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 interpretat ions 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 o riginal) (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 c ourt decides ' whether

the proposed class is " sufficiently cohesive to warrant adjudication by

representation. " ' " Dugan , 231 N.J. at 4 8.

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 mone y

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, p laintiffs 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 qualitat ive 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 L ee , 203 N.J.

519

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

anal ysis 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 wh ether 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 provi de "sufficient evidence toA

- 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 l egislative 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 f

ound that plaintiffs had not pled sufficient facts to

establish the predominance f actor 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 adj udicate [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

p redominance 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 defendant s , and any

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

common nucleus of operative facts. T herefore, we conc lude 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 s tate ' 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 vestin g 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 (20 20 ).

Accordingly, New Jersey state courts refer "to federal law to interpre t 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 onlyA

- 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 jurisdict ion 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]ef endants.

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 s tate." Bristol

- Myers Squibb v. Superior Court , 137 S.

Ct. 1773, 1780 (2017) (quoting Goodyear , 564 U.S. at 919). " ' [O]nly a limitedA

- 2662

- 18T1 26 set of affiliations with a forum will render a defendant amenable to ' general

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

Plaintiffs argue t hat 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 f orums 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 jur isdiction 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 "c ontinuous and systematic" a s 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. Supe r. 590, 60 8 (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 tha t 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

the ir 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 S tate of New Jersey. Thus, the trial court

correctly found the New Jersey courts could not exercise general jur isdiction

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]e sidents. . . .

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 Bristol

Myers . 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 Bristol

Myers , 137 S. Ct. at 1780. Thus, specific jurisdiction is also lacking because the claim s 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 t hat 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 93 1 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 ' NewA

- 2662

- 18T1 29 York stores allegedly in violation of FACT A

. W e 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 f

rom one of defendants ' New Jersey stores. Hence, t he 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.