NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3976-09T1 CHRISTOPHER WENGER and JENNIFER WENGER, on behalf of themselves and all others similarly situated, Plaintiffs-Respondents, v. CARDO WINDOWS, INC. d/b/a CASTLE THE WINDOWS PEOPLE and CASTLE WINDOWS CO., CASTLE "THE WINDOWS PEOPLE," ANTHONY CARDILLO, and JOHN BELMONTE, Defendants-Appellants. ______________________________________

Argued March 2, 2011 - Decided Before Judges Fuentes, Ashrafi and Nugent. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4924-07. Kenneth S. Goodkind argued the cause for appellants (Flaster/Greenberg, attorneys; J. Philip Kirchner and Mr. Goodkind, on the briefs). Henry P. Wolfe argued the cause for respondents (Galex Wolf, attorneys; Mr. Wolfe, Andrew R. Wolf, and Elliot M. Gardner, on the brief). PER CURIAM

February 1, 2012

A-3976-09T1 2

In this class action case, plaintiffs seek injunctive

relief and statutory civil penalties against defendants in

connection with the sale of residential windows. This is the

second time we have been asked to review the trial court's

decision concerning the certification of this class action. In

the first appeal, we affirmed in part and reversed in part the

trial court's grant of defendants' summary judgment motion and

dismissal of plaintiffs' complaint. Wenger v. Cardo Windows,

No. A-3076-07 (App. Div. March 16, 2009).

Specifically, we affirmed the court's dismissal of

plaintiffs' claims under the Consumer Fraud Act (CFA), N.J.S.A.

56:8-1 to -20, and its supplemental provisions, the Contractor's

Registration Act (CRA), N.J.S.A. 56:8-136 to -152, and the Home

Improvement Practices regulations, N.J.A.C. 13:45A-16.1 to -

16.2, and reversed the court's dismissal of the claims arising

under the Door-to-Door Home Repairs Sales Act of 1968 (DDHRSA),

N.J.S.A. 17:16C-95 to -103, the Federal Trade Commission (FTC)

"Cooling-Off Rule," 16 C.F.R. 429.1, the Home Repair Financing

Act (HRFA), N.J.S.A. 17:16C-93 to -103, and the Truth-in-

Consumer Contract Warranty and Notice Act (TCCWNA), N.J.S.A.

56:12-14 to -18. Wenger, supra, slip op. at 2. In this light,

we remanded for the court to reconsider its denial of

plaintiffs' motion for class certification. Id. at 3.

A-3976-09T1 3

On remand, plaintiffs renewed their motion for class

certification, this time limited to the legal bases we upheld in

our prior opinion. After hearing from counsel, the court

granted plaintiffs' motion for class certification. We denied

defendants' motion for leave to appeal the trial court's ruling

certifying the class. The Supreme Court summarily reversed our

decision and remanded for this court to decide whether the trial

court erred in granting class certification. Wenger v. Cardo

Windows, Inc., 201 N.J. 496 (2010). We now affirm.

I

The salient facts of this case were succinctly described by

our colleagues who made up the panel that decided the earlier

appeal:

In March 2007, plaintiffs received from defendant a postcard advertising the sale of replacement windows. Plaintiffs responded by calling defendant and requesting that a sales representative come to their Monroe Township home to demonstrate defendant's products. On March 17, 2007, one of defendant's salesmen went to plaintiffs' home to make the requested presentation. At the conclusion of the presentation, plaintiffs signed a "Purchase Agreement" in which they agreed to purchase twenty custom-made replacement windows for the price of $10,700. The sales representative offered plaintiffs the opportunity to borrow the entire purchase price of the windows and the cost of installation, to be repaid over a period of sixty months with interest, to

A-3976-09T1 4

which plaintiffs agreed by signing a document entitled "Castle Straight Talk Financing." The salesman provided plaintiffs with a copy of these two documents and a third document entitled Notice of Cancellation, before he left their home. On March 21, 2007, plaintiffs decided to cancel the transaction. They signed the Notice of Cancellation and mailed it to defendant. On or about March 29, 2007, more than a week after plaintiffs mailed the cancellation notice, one of defendant's representatives arrived at plaintiffs' home to measure the windows. Plaintiff was surprised by the man's arrival in light of the contract cancellation plaintiffs had mailed, but permitted him to enter their home. After taking measurements, the representative presented plaintiffs with several additional documents to sign. Plaintiff claimed to have signed the documents and asserts he was never provided with copies. The record does, however, contain a March 29, 2007 credit application to finance a $10,700 loan at an interest rate of 13.24% for sixty months. On April 5, 2007, plaintiff telephoned defendant and spoke with a representative, Anthony Cardillo, regarding the cancellation. Cardillo informed plaintiff that he could not cancel the contract. Over the telephone, Cardillo offered to reduce the price of the windows from $10,700 to $9,700. When plaintiff agreed to that change, Cardillo prepared and mailed to plaintiffs a document entitled Change Order. No other documents were mailed to plaintiffs. The Change Order listed a reduced contract price of $9,700 at an annual interest rate of 13.24%. Plaintiff executed the Change Order on April 7, 2007, and promptly mailed it back. Notably, the Change Order specified, "Customer agrees

A-3976-09T1 5

that he has not nor will not [sic] attempt to cancel this order." On April 10, 2007, a roofing contractor was performing work at plaintiffs' home. He informed plaintiffs that their bay windows should be replaced only with pre-constructed, single-unit bay windows. He also advised them that bay windows should be secured from the sides of the windows rather than from the top and bottom. That same day, plaintiff telephoned defendant and spoke to Cardillo about the advice he received from the roofer. Cardillo referred plaintiff to one of defendant's engineers, who informed plaintiff that defendant could not provide a one-piece, pre-constructed bay window and that defendant would install all the windows by screwing them into the top and bottom of the window frame. Immediately thereafter, plaintiff left a message for Cardillo informing him that he was canceling the contract. Plaintiff called Cardillo again the following morning, April 11, 2007. Plaintiff reiterated his earlier message that he was canceling the contract because defendant could not provide the appropriate bay windows and because the windows would be installed in an unacceptable manner. During that conversation, Cardillo agreed that plaintiffs could cancel the order for the six bay windows but he refused to accept the cancellation of the entire order. That same day, plaintiff sent a letter to defendant by regular and certified mail reiterating and confirming that he had canceled the order. In that letter, plaintiff requested copies of all the documents that were signed on March 29, 2007, but he never received a response. On April 24, 2007, defendant filed a small claims complaint against plaintiffs seeking $3,000 in damages for breach of contract.

A-3976-09T1 6

Plaintiffs filed an eight-count class action complaint in the Law Division on June 1, 2007, as well as a motion to transfer the small claims matter to the Law Division. In response, defendant dismissed its small claims complaint on June 18, 2007. On July 13, 2007, defendant filed a motion to dismiss plaintiffs' complaint, pursuant to Rule 4:6-2(e), for failure to state a claim upon which relief can be granted. Plaintiffs filed a motion for class certification on October 3, 2007. [Wenger, supra, slip op. at 3-6 (footnote omitted).]

On remand, the trial court followed our directive and

reconsidered its denial of plaintiffs' motion for class

certification. Applying the standard in Rule 4:32-1, the court

granted plaintiffs' motion and certified a class consisting of:

All persons who, at any time on or after December 31, 2005, received a transaction document from Defendants the same as or similar to the transaction documents given to Plaintiffs.

The court found plaintiffs had established the four general

prerequisites to class certification under Rule 4:32-1(a). In

addition, the court found that plaintiffs established the

appropriateness of injunctive relief under Rule 4:32-1(b)(2),

and satisfied the concerns indicated in Rule 4:32-1(b)(3). On

this latter point, the trial court found:

[A] class action is appropriate [here] because common questions of law or fact "predominate over any questions affecting only individual members" and the class

A-3976-09T1 7

action mechanism is "superior to other available methods for the fair and efficient adjudication of the controversy." The common nucleus of operative facts are that the Wengers and all class members allegedly received transaction documents from Defendants in connection with a home improvement that Plaintiffs claim violated DDHRSA, the FTC Cooling-Off Rule, and/or HICRA. Accordingly, common issues of fact and law predominate over any individual issue. Moreover, class certification is superior in this situation because a class action will cause an orderly and expeditious administration of the claims of the class and will foster economies of time, effort, and expense.

II

Defendants now appeal arguing that class certification was

improperly granted because the four prerequisites of Rule 4:32-

1(a) were not met. We disagree. Our analysis of the

requirements of Rule 4:32-1 will be guided by the overarching

public policy favoring class actions in cases involving the

adjudication of numerous claims arising from a common nucleus of

operative facts, for which the amount of recovery is so small

that it becomes impractical to litigate on a case-by-case basis.

United Consumer Fin. Servs. Co. v. Carbo, 410 N.J. Super. 280,

295 (App. Div. 2009) (citing Iliadis v. Wal-Mart Stores, Inc.,

191 N.J. 88, 103-06 (2007)).

Class action cases are governed by Rule 4:32-1 and must

satisfy the two-step process described therein. Gross v.

A-3976-09T1 8

Johnson & Johnson-Merck Consumer Pharms. Co., 303 N.J. Super.

336, 341 (Law Div. 1997). The party seeking certification must

first establish that the four prerequisites of Rule 4:32-1(a),

commonly referred to as "numerosity, commonality, typicality and

adequacy of representation" have been satisfied. Carroll v.

Cellco P'ship, 313 N.J. Super. 488, 494 (App. Div. 1998). Class

certification is thus appropriate

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.

[Rule 4:32-1(a).] If those prerequisites are met, the class applicant must then

satisfy one of the three alternatives for maintaining a class

action under Rule 4:32-1(b). Gross, supra, 303 N.J. Super. at

341.

"Class certification is a matter committed to the sound

exercise of the trial court's discretion." United Consumer,

supra, 410 N.J. Super. at 295. In order to overturn the

exercise of this discretionary authority, we must determine that

the trial court's decision rests upon clearly erroneous findings

of fact, an errant conclusion of law or an improper application

A-3976-09T1 9

of law to fact. Newton v. Merrill Lynch, Pierce, Fenner &

Smith, Inc., 259 F.3d 154, 165 (3d Cir. 2001).

Defendants argue that the Third Circuit's decision in In re

Schering Plough Corp. ERISA Litigation, 589 F.3d 585 (3d Cir.

2009), which was rendered after the trial court's ruling, set

forth "new guidance for trial courts faced with class

certification motions." Defendants claim that the trial court's

decision here is inconsistent with these purported new

guidelines. Plaintiffs maintain that Schering Plough did not

usher in any significant change in the law. We agree with

plaintiffs' position.

Schering Plough concerned an attempt to certify a class

under Fed. R. Civ. P. 23, the federal analog to New Jersey's

Rule 4:32-1. Schering Plough, supra, 589 F.3d at 591; Carroll,

supra, 313 N.J. Super. at 495. Writing for the court, Judge

Marjorie Rendell stated:

It is well established that "[a] class may be certified only if the court is 'satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.'" Beck v. Maximus, 457 F.3d 291, 297 (3d Cir. 2006) (quoting Gen. Tel. Co. Sw. v. Falcon, 457 U.S. 147, 161, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982)). The requirements "set out in Rule 23 are not mere pleading rules." [In re] Hydrogen Peroxide [Antitrust Litig.], 552 F.3d [305], 316 [(3d Cir. 2008)]. Unless each requirement of Rule 23 is actually met, a class cannot be certified. Id. at 320. As

A-3976-09T1 10

a result, "[a]n overlap between a class certification requirement and the merits of a claim is no reason to decline to resolve relevant disputes when necessary to determine whether a class certification requirement is met." Id. at 316. Accordingly, we have instructed district courts, where appropriate, to "'delve beyond the pleadings to determine whether the requirements for class certification are satisfied.'" Id. at 316 (quoting Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 167 (3d Cir. 2001)). . . . . Because "each requirement of Rule 23 must be met, a district court errs as a matter of law when it fails to resolve a genuine legal or factual dispute relevant to determining the requirements." Hydrogen Peroxide, 552 F.3d at 320. Thus, in reviewing the District Court's decision to certify the class, we must assess whether an adequately "rigorous analysis" was conducted to determine that each of the Rule 23 requirements was satisfied. Beck, 457 F.3d at 297. [In Schering Plough, supra, 589 F.3d at 595-96 (first and last alterations in original).]

Although defendants argue that Schering Plough set a new

standard for deciding class certification motions, the court

relied on and quoted numerous previous cases, some as old as

1982, in stating the standard. Indeed, we have recognized the

"rigorous analysis" standard and cited the same United States

Supreme Court case as did the Third Circuit in Schering Plough.

Carroll, supra, 313 N.J. Super. at 495 ("The Supreme Court has

A-3976-09T1 11

held that a class action may be certified only if the trial

court has undertaken a 'rigorous analysis'" of the applicable

rule (citing Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147,

161, 102 S. Ct. 2364, 2372, 72 L. Ed. 2d 740, 752 (1982))).

Several years later, our Supreme Court cited Carroll and General

Telephone in noting that a certifying court "must undertake a

'rigorous analysis'" to determine if the class certification

rule's requirements have been satisfied. Iliadis, supra, 191

N.J. at 106-07. This is the same standard set forth in Schering

Plough.

Defendants further maintain that new ground was broken in

that "Schering instructs courts to delve beyond the pleadings to

determine whether, based on the actual facts of the case, each

requirement for certification is satisfied." While that is an

accurate reading of Schering Plough, see 589 F.3d at 596, it

does not constitute a new requirement. Regarding the "rigorous

analysis" standard, our Supreme Court has stated:

That scrutiny requires courts to look "beyond the pleadings [to] . . . understand the claims, defenses, relevant facts, and applicable substantive law." [Carroll, supra, 313 N.J. Super. at 495.] Although class certification does not occasion an examination of the dispute's merits, Olive v. Graceland Sales Corp., 61 N.J. 182, 189, 293 A.2d 658 (1972); see also Castano v. Am. Tobacco Co., 84 F.3d 734, 744 (5th Cir. 1996) (noting "unremarkable proposition that the strength of a plaintiff's claim should

A-3976-09T1 12

not affect the certification decision"), a cursory review of the pleadings is nonetheless insufficient. "The 'rigorous analysis requirement' means that a class is not maintainable merely because the complaint parrots the legal requirements" of the class-action rule. [Iliadis, supra, 191 N.J. at 107 (first alteration in original).]

Because Schering Plough broke no new legal ground after the

decision to grant this class certification, the question before

us is "whether an adequately 'rigorous analysis' was conducted

to determine that each of" Rule 4:32-1's requirements were

satisfied. Schering Plough, supra, 589 F.3d at 596.

Typicality

Defendants first argue that the "typicality" requirement of

Rule 4:32-1(a)(3) was not met. We discussed the legal

considerations regarding the typicality requirement in Laufer v.

U.S. Life Insurance Company:

The claims of a putative class representative are typical if they "have the essential characteristics common to the claims of the class." [In re Cadillac V8-6-4 Class Action, 93 N.J. 412, 425] (quoting 3B James W. Moore et al., Moore's Federal Practice § 23.06-2 (2d ed. 1982)). "Since the claims only need share the same essential characteristics, and need not be identical, the typicality requirement is not highly demanding." 5 James W. Moore, et al, Moore's Federal Practice, § 23.24[4] (3d ed. 1997). "If the class representative's claims arise from the same events, practice, or conduct, and are based on the same legal

A-3976-09T1 13

theory, as those of other class members, the typicality requirement is satisfied." Moore, supra, § 23.24[2]. "[C]ases challenging the same unlawful conduct which affects both the named plaintiffs and the putative class usually satisfy the typicality requirement irrespective of the varying fact patterns underlying the individual claims." Baby Neal v. Casey, 43 F.3d 48, 58 (3d Cir. 1994). "Actions requesting declaratory and injunctive relief to remedy conduct directed at the class[,]" which is the primary relief sought in a class action brought under Rule 4:32-1(b)(2), "clearly fit this mold." [385 N.J. Super. 172, 180-81 (App. Div. 2006) (all but first alteration in original).]

A "proper consideration" of typicality includes

three distinct, though related, concerns: (1) the claims of the class representative must be generally the same as those of the class in terms of both (a) the legal theory advanced and (b) the factual circumstances underlying that theory; (2) the class representative must not be subject to a defense that is both inapplicable to many members of the class and likely to become a major focus of the litigation; and (3) the interests and incentives of the representative must be sufficiently aligned with those of the class. [Schering Plough, supra, 589 F.3d at 599.]

Here, in addressing the typicality requirement, the trial

judge stated:

The Plaintiffs' claims arise from the same course of conduct that has given rise to the claims of the class. All claims are for the

A-3976-09T1 14

same alleged violations of TCCWNA, DDHRSA, HICRA,[1] and the FTC Cooling-Off Rule stemming from Defendants' use of standardized form transaction documents for home improvement sales. Since the class representatives have essentially identical claims and common interests to those of the Class the named representatives satisfy the typicality requirement.

Defendants argue that plaintiffs' claims are not typical to

the claims of the rest of the class because the trial court "has

dismissed several of them as to [p]laintiff only."2 They

maintain that because the trial court correctly dismissed

plaintiffs' CFA and related claims on the basis that plaintiffs

did not suffer an ascertainable loss, the other class plaintiffs

will now be "precluded in the future from even considering such

a claim if all [defendants'] customers are lumped into a class

represented by [p]laintiff."

Defendants' position does not withstand scrutiny. After

upholding the trial court's dismissal of plaintiffs' CFA claims,

we remanded for the court to determine whether a class should be

certified to prosecute the claims that survived defendants'

1 In our first opinion we dismissed the HICRA claims. It appears, however, that the judge meant to refer to the HRFA, which was not dismissed by the first appellate panel. Because this inadvertent error appears several times in the trial court's decision, we will hereafter denote the correct law in brackets [HRFA], where appropriate. 2 Defendants make a similar argument concerning adequacy of representation.

A-3976-09T1 15

summary judgment motion. Neither the trial court's ruling nor

our earlier opinion precluded the putative class members from

instituting individual suits or another class action suit based

on violations of the CFA if they suffered any actual damages.

This is not a Schering Plough scenario, in which the proposed

representative plaintiff might have been subject to a unique

defense that might defeat her claim, but to which the other

plaintiffs would not be subject. See Schering Plough, supra,

589 F.3d at 599-600. The trial court here simply certified the

class regarding claims other than those based on the consumer

fraud claims that were common to both the representative

plaintiffs and class members.

Conflict of Interest

Defendants next argue that the trial court did not assess

the facts that made plaintiffs' claims unique and atypical of

the class. Specifically, defendants argue that plaintiffs were

not customers of defendants and thus "neither purchased products

nor received a lifetime warranty" from defendants. According to

defendants, plaintiffs interests are "in conflict with and

antagonistic to" the other class members. The other class

members' "paramount interest" is "the preservation of

[defendants'] vitality and their lifetime window service and

product warranties."

A-3976-09T1 16

Defendants maintain that because plaintiffs did not

purchase any windows, they have no interest in whether

defendants' "business [falls] under the weight of the TCCWNA

penalties sought in their complaint," thus making the interests

of the plaintiffs and the class members insufficiently aligned.

According to defendants, the trial court improperly relied on

the assertion in plaintiffs' complaint that defendants used

similar forms to consummate sales transactions with other

members of the purported class.

Defendants' arguments are not supported by the record. The

trial court addressed the distinction between plaintiffs as non-

purchasers, and the other class members as purchasers, of

defendants' windows. The court rejected defendants' argument

because plaintiffs and "the proposed class seek statutory

damages for violations of consumer protection laws." The court

found that plaintiffs' claims and those of the proposed class

"do not stem from the actual purchase transaction, but rather

the alleged violation of TCCWNA, DDHRSA, [HRFA], and the FTC

Cooling-Off Rule."

We agree with the trial court. Plaintiffs' claims were not

premised on the actual purchase of windows; they claimed that

the documents they were presented with in the course of

attempting to purchase windows from defendants violated various

A-3976-09T1 17

consumer protection laws. An actual purchase is not a

prerequisite to the application of any of these laws. As the

trial court noted, defendants admitted to using the same

"Purchase Agreement" approximately 1000 times and the same

"Notice of Cancellation" approximately 20,000 times.3

The trial court limited the class to persons who "received

a transaction document from Defendants the same as or similar to

the transaction documents given to Plaintiffs." By definition,

if the documents were not the same or similar, the persons

receiving them could not become a member of the class.

Therefore, the plaintiffs and the potential class members'

claims were based on the same practice or conduct of providing

customers with documents that allegedly violated an identified

set of consumer protections statutes and regulations.

Adequacy of Representation

Defendants next argue that plaintiffs are not adequate

class representatives. We again disagree.

Under Rule 4:32-1(a)(4), the class representative must be

able to "fairly and adequately protect the interests of the

class." Although courts consider the adequacy of both the named

representative and the class counsel, Laufer, supra, 385 N.J.

3 Defendants also admit in their appellate brief that they used "similar versions" of the Purchase Agreement and Notice of Cancellation for the relevant time period.

A-3976-09T1 18

Super. at 181, defendants here do not contest the adequacy of

class counsel.

The determination whether a putative class representative can fairly and adequately protect the interests of the class is closely related to the requirement of typicality. See In re Cadillac, supra, 93 N.J. at 425, 461 A.2d 736. To satisfy this requirement, "the plaintiff must not have interests antagonistic to those of the class." Delgozzo v. Kenny, 266 N.J. Super. 169, 188, 628 A.2d 1080 (App. Div. 1993) (quoting In re Asbestos Sch. Litig., 104 F.R.D. 422, 430 (E.D. Pa. 1984)). However, this does not mean that "the interests of the class representative and the absentee class members [must] be identical." Moore, supra, § 23.25[4][b][i]. "[T]he named representative only needs to be adequate[.]" [Id. at 182 (alterations in original).]

Here, the trial court found plaintiffs could adequately

represent the class despite their "non-customer" status, because

both customers and those who received the sales pitch were

allegedly aggrieved by defendants' violation of the TCCWNA,

DDHRSA, HRFA and FTC Cooling-Off Rule. As we have previously

discussed, the dismissal of plaintiffs' consumer fraud claims

does not render them inadequate to represent the class.

Defendants nevertheless argue that plaintiffs are not

adequate class representatives because their claims are

antagonistic to the other class members. According to

defendants, plaintiffs do not have any "financial stake" in

A-3976-09T1 19

defendants' products and lifetime warranties or in the continued

survival of the company in order to service those warranties.

This is in contrast with those persons who actually purchased

windows and relied on the warranties. In defendants' view,

plaintiffs merely seek to "maximize their recovery of statutory

penalties and their attorney's award of counsel fees," contrary

to the interests of the rest of the class, because if plaintiffs

are successful, there is a "prospect" that defendants "will be

driven out of business and rendered unable to service the

warranties of class members."

This argument is self-serving and unsustainable.

Defendants have not provided any supporting documentation

showing that the cost of litigation will drive them out of

business. Without this support, any potential insolvency issue

has no bearing on whether plaintiffs can adequately protect the

class. This class is intended to represent and enforce the

legal rights of persons who were subjected to unlawful

commercial practices. We discern no basis to conclude the trial

court abused its discretion in certifying the class.

Numerosity

Defendants argue the trial court erred in finding

plaintiffs satisfied the numerosity requirement of Rule 4:32-

1(a). We disagree.

A-3976-09T1 20

Rule 4:32-1(a)(1) requires the class to be "so numerous

that joinder of all members is impracticable." There is no

magic number to this determination. The number of class members

is "not wholly dispositive of the analysis," W. Morris

Pediatrics, P.A. v. Henry Schein, Inc., 385 N.J. Super. 581, 595

(Law. Div. 2004) (citing Liberty Lincoln Mercury, Inc. v. Ford

Mktg. Corp., 149 F.R.D. 65, 73 (D.N.J. 1993)), aff’d, No. A-

3595-04 (App. Div. Mar. 30, 2006), and plaintiffs do not have

"to show the exact size of the class in order to satisfy

numerosity." Ibid. "Rather, an equal part of the inquiry

centers around whether 'the difficulty and or inconvenience of

joining all members of the class calls for class

certification.'" Id. at 596 (quoting Lerch v. Citizens First

Bankcorp, Inc., 144 F.R.D. 247, 250 (D.N.J. 1992)).

Here, the trial court found that the numerosity element was

satisfied as defendants admitted that they used the same

Purchase Agreement approximately 1000 times, and the same Notice

of Cancellation form approximately 20,000 times. Despite this,

defendants argue that plaintiffs "failed to provide evidence

that all of these forms violated the relevant statutes." That

argument was implicitly rejected by this court in our earlier

decision, where we found enough evidence to withstand summary

judgment as to whether the forms used by defendants violated

A-3976-09T1 21

various statutes. The class certified by the trial court

included only those persons who signed the same or similar

forms.

Defendants estimate that between 1000 and 20,000 people

signed at least one of the standardized forms that underlie

plaintiffs' claims. Classes have been certified with

significantly fewer members. In Riordan v. Smith Barney, 113

F.R.D. 60, 62 (N.D. Ill. 1986), the class included twenty-nine

members; in Saldana v. City of Camden, 252 N.J. Super. 188, 193

(App. Div. 1991), the class consisted of eighty-one members; and

in Delgozzo v. Kenny, 266 N.J. Super. 169, 184 (App. Div. 1993),

the class included "35,000 purchasers throughout the United

States and Canada." The 20,000 clearly identified persons who

signed the same or similar contracts at issue here were

sufficient to satisfy the numerosity requirement of Rule 4:32-

1(a)(1).

Commonality

Rule 4:32-1(a)(2) requires that there be "questions of law

or fact common to the class." Defendants contend that because

some of their customers did not pursue financing, plaintiffs did

not show that the proposed class received the same financing

disclosures or used the same financing documents as plaintiffs,

A-3976-09T1 22

and thus, the commonality requirement of Rule 4:32-1(a)(2) was

not met.

Under the federal rule, "'a single common question is

sufficient.'" Delgozzo, supra, 266 N.J. Super. at 185 (quoting

In re Asbestos Sch. Litig., 104 F.R.D. 422, 429 (E.D. Pa. 1984),

aff'd in part and vacated in part sub nom., In re Sch. Asbestos

Litig., 789 F.2d 996 (3d Cir.), cert. denied sub nom., Celotex

Corp. v. Sch. Dist of Lancaster, 479 U.S. 852, 107 S. Ct. 182,

93 L. Ed. 2d 117 (1986)). "However, simply alleging the same

theory of recovery for all class members does not guarantee the

existence of legal or factual commonality." W. Morris

Pediatrics, supra, 385 N.J. Super. at 600. "The existence of

individual questions concerning class members does not

necessarily defeat the commonality requirement." Kleiner v.

First Nat'l Bank of Atlanta, 97 F.R.D. 683, 692 (N.D. Ga. 1983).

In finding the commonality requirement satisfied, the trial

judge stated:

[T]he issue is whether Defendants' standardized form transaction documents facially violate the [Home Repair Financing Act (HRFA)], the New Jersey Door-to-Door Home Repairs Sales Act (DDHRSA), and the FTC Rule Concerning Cooling-Off Period for Sale Made at Homes or at Certain Other Locations ("The FTC Cooling-Off Rule"). The proposed class definition includes only customers that received form transaction documents that were the same or similar to the form transaction documents given to the

A-3976-09T1 23

plaintiffs. Therefore, identical questions of law and fact apply to all class members.

The putative class members all signed the "Purchase

Agreement" and the "Cancellation Notice," which provisions are

claimed to violate consumer protection laws, thus providing

clear common questions to resolve. The fact that some potential

plaintiffs signed financing documents and others did not is a

factor that can be accommodated within the class action by

altering or amending the class to subdivide it if appropriate.

R. 4:32-2(a) and (d). It does not show a lack of commonality

amongst the claims. The trial judge thus correctly determined

that the commonality requirement was satisfied.

III

In addition to showing that the requirements of Rule 4:32-

1(a) have been met, plaintiffs must show they meet one of three

requirements under Rule 4:32-1(b). Plaintiffs' case here is

based on meeting the requirements of Rule 4:32-1(b)(3).

Defendants argue plaintiffs did not meet these requirements. We

again disagree.

Rule 4:32-1(b)(3) states that a class action may be

maintained if

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

A-3976-09T1 24

methods for the fair and efficient adjudication of the controversy. The factors pertinent to the findings include:

(A) the interest of members of the class in individually controlling the prosecution or defenses 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.

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, supra, 93 N.J. at 430. A plaintiff must

show that "the issues common to the class outweigh those that

are not." Debra F. Fink, D.M.D., MS, P.C. v. Ricoh Corp., 365

N.J. Super. 520, 568 (Law Div. 2003). "Even where the

individual issues are fewer than common issues, it is the

significance of the uncommon issues that sways the pendulum."

Ibid. "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." In re Cadillac, supra, 93 N.J. at 430.

A-3976-09T1 25

The trial judge found that the common questions of law or

fact predominated because the "common nucleus of operative facts

are that the Wengers and all class members allegedly received

transaction documents from Defendants in connection with a home

improvement that Plaintiffs claim violated the DDHRSA, the FTC

Cooling-Off Rule, and/or [HRFA]." He also found that "class

certification is superior in this situation because a class

action will cause an orderly and expeditious administration of

the claims of the class and will foster the economies of time,

effort, and expense."

Defendants characterize plaintiffs' class as "overbroad,"

containing "myriad individual legal and factual issues."

Defendants thus argue that "individual actions would be a more

efficient method of adjudicating any alleged statutory or

regulatory violations." Despite these generalized claims,

defendants have not come forward with specific examples of the

type of disparate facts or law that may be at issue. By

contrast, the record shows that the claims of the potential

class members would all be based on their signing the same or

similar standardized forms, provided by defendants in violation

of various statutory provisions. The alleged statutory

violations are the same as to all plaintiffs. The contracts

A-3976-09T1 26

signed were the same or similar in all cases. The common issues

clearly predominate over any undefined individual claims.

Defendants also argue that some of the potential members

would be negatively impacted by the formation of the class

because they may have suffered actual damages, and plaintiffs'

class action suit only seeks injunctive relief and the

assessment of the $100 statutory penalty. Defendants' curious

concern that some potential class members would lose their right

to pursue claims against them is unfounded. Potential class

members will have the right to opt-out of this class action and

pursue their own claims individually, if they believe they are

entitled to actual damages. R. 4:32-2(b)(2)(E).

The Supreme Court has noted:

One frequent characteristic of a consumer class action is that the individual claims involve too small an amount to warrant recourse to litigation. Thus, the wrongs would go without redress . . . . A consequence of certification of a class action is the equalization of the ability of the parties to prepare and pay for the advocacy of their rights. Furthermore, certification can aid the efficient administration of justice by avoiding the expense, in both time and money, of re-litigating similar claims. [In re Cadillac, supra, 93 N.J. at 435.]

Here, the claims of each individual plaintiff would be

small, possibility as small as $100 each. It is doubtful any

A-3976-09T1 27

plaintiff would undergo the time and expense of a lawsuit to

enforce his or her rights for $100. The cost of litigation

would exceed the benefit of the recovery. This is exactly the

sort of claim class actions are designed to address. Public

policy also favors a class action in this setting. A great deal

more judicial resources would be expended in managing and trying

thousands of Small Claims or Special Civil Part cases.

IV

Finally, defendants argue that under N.J.S.A. 56:12-4,

"punitive damages in class action suits brought under this act

are limited to $10,000." Because statutory penalties are

punitive damages, defendants argue, the numerous claimants will

have to divide the maximum $10,000 penalty between them, which

would result in "pocket change," certainly much less than the

$100 statutory minimum to which they were entitled. This

argument is based on the faulty premise that N.J.S.A. 56:12-4 is

part of the TCCWNA. The statute cited by defendant is part of

the Plain Language Act, N.J.S.A. 56:12-1 to -13, and is separate

from the TCCWNA at issue here, which is codified at N.J.S.A.

56:12-14 to -18. Bosland v. Warnock Dodge, Inc., 396 N.J.

Super. 267, 279 (App. Div. 2007), aff'd, 197 N.J. 543 (2009).

To summarize, the trial judge conducted a rigorous analysis

and correctly found that the common issues predominated over

A-3976-09T1 28

individual questions and the class action offered a superior

method for a fair and efficient adjudication. The remaining

arguments raised by defendants lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

The trial court's decision granting plaintiffs' motion for

class certification is affirmed. The case is remanded for such

further proceedings as be warranted. We do not retain

jurisdiction.