Action Item: The New Jersey Appellate Division for the first time reviews the rapidly developing ascertainability doctrine and holds that the doctrine does not apply to low value consumer fraud class actions, setting the stage for potential review by the New Jersey Supreme Court.
While the ascertainability doctrine continues to develop in the Third Circuit (see e.g., Marcus v. BMW of N. Am., LLC, 687 F.3d 583 (3d Cir. 2012); Hayes v. Wal–Mart Stores, Inc., 725 F.3,d 349 (3d Cir. 2013); Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013); Byrd v. Aaron's, Inc., 2015 WL 1727613 (3d Cir. April 16, 2015), New Jersey's Appellate Division has made clear that low value consumer fraud class actions pending in its state courts are not subject to an ascertainability analysis. See Daniels v. Hollister Co., 2015 WL 2342917 (NJ App. Div. May 13, 2015) (affirming trial court's refusal to conduct an ascertainability analysis when determining whether to certify a class of low-value consumers).
Vincent Daniels, on behalf of himself and others similarly situated, brought suit against Hollister Co. alleging that the retail store had dishonored $25 gift cards despite representations that the gift cards would not expire. Relying on recent Third Circuit precedent, Hollister Co. opposed class certification by arguing that the class was not ascertainable.
The Appellate Division's decision to affirm class certification absent an ascertainability analysis was based largely on policy: "the class-action device's historic mission is caring for the smaller guy" and, in the case at bar, the class "consist[ed] of numerous individuals who have allegedly suffered small injuries." Id. (citations and internal quotation marks omitted). Due to the characteristics of the class, and the fact that the numerosity, commonality, typicality, and adequacy of representation requirements were fulfilled, the Appellate Division refused to disturb the lower court's holding.
Before concluding, the Appellate Division commented on the more recent Third Circuit decisions that have addressed this ascertainability requirement. The Court acknowledged that the ascertainability analysis is new and unsettled. See id. at *4 ("federal experimentation with the ascertainability doctrine seems far from over and, indeed, this doctrinal wave may have broken before ever cresting."). The Court also found the concurring and dissenting opinions in Carrera v. Bayer Corp., 727 F.3d 300 (3d. Cir. 2013) and Byrd v. Aaron's Co., 2015 WL 1727613 (3d Cir. April 16, 2015) to be persuasive, observing that "when the concept of ascertainability is applied inflexibly it becomes a device that serves to burden or eliminate nascent class actions without providing any social benefit." Id.
The Appellate Division did, however, clarify that its refusal to engage in an ascertainability analysis was confined to low-value consumer classes and noted that it "decline[d] to consider [the ascertainability analysis's] application in cases other than those involving low value consumer class actions because of the concept's novelty." Id.
Daniels is significant in that, for the first time, a New Jersey state court has addressed ascertainability head-on and held that the doctrine will not be applied to law value consumer fraud class actions. This decision has potentially taken away a strong argument from the class action defense bar in opposing motions for class certification in New Jersey state courts. Given the large number of low value consumer fraud class actions currently pending in New Jersey Superior Court, this issue may prove worthy of consideration by the New Jersey Supreme Court.
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