Still Fighting Over Dugan v. TGI Friday’s

Cameron v. South Jersey Pubs, Inc., 460 N.J. Super. 156 (App. Div. 2019). As discussed here, in Dugan v. TGI Friday’s, Inc., 231 N.J. 24 (2017), the Supreme Court rendered a split decision on class certification in two consolidated consumer action cases involving drink prices at TGI Friday’s restaurants. Those cases sought damage classes under Rule 4:32-1(b)(3). [Disclosure: My partner Susana Cruz Hodge and I filed an amicus brief in the Dugan cases on behalf of the Consumers League of New Jersey].

This case was a follow-on, in which only an injunctive relief class, under Rule 4:32-1(b)(2), was sought. The Appellate Division split 2-1 in favor of certifying the proposed class, with Judge Rothstadt authoring the majority opinion, in which Judge Natali joined. Judge Yannotti dissented.

The competing opinions took differing views of key precedents on “(b)(2)” class certification, including Weinberg v. Sprint Corp., 173 N.J. 233 (2002), and Laufer v. U.S. Life Ins. Co., 385 N.J. Super. 176 (App. Div. 2006). Judge Yannotti wrote the Appellate Division’s opinion in Dugan that the Supreme Court affirmed, and he believed that Dugan controlled. But in my view, Judge Rothstadt’s opinion was the more persuasive in its analysis and result. The outcome in Dugan, a damages case, does not require the same result in an injunctive class case like this one.

This appeal was before the Appellate Division on leave to appeal. So any effort to seek Supreme Court review must also be a motion for leave to appeal. If such review is sought and granted, the Supreme Court will be able to tell us all what, if anything, Dugan means for injunctive classes.