Two Class Action Decisions by the Appellate Division

Kennedy v. Weichert Co., 474 N.J. Super. 541 (App. Div. 2023). As Judge Messano’s opinion in this putative class action case recounted, this matter involves whether commissioned real estate salespeople are independent contractors or employees, and the interplay among provisions of the Real Estate Brokers and Salesmen Act, N.J.S.A. 45:15-1 et seq. (“Brokers Act”), the Wage Payment Law, N.J.S.A. 34:11-4.1 et seq., and the “ABC test” for employees vs. independent contractors under the Unemployment Compensation Law, N.J.S.A. 43:21-19(i)(6)(A), (B), and (C). The case has already been to the Supreme Court once, as the Court granted leave to appeal in November 2021. But because the Legislature in January 2022 amended the Brokers Act , the Court vacated its grant of leave to appeal and remanded the matter to the Appellate Division “to consider the impact of [that] new legislation, L. 2021, c. 486, in the first instance.”

In this opinion, the Appellate Division held that under that amendment, which was to be applied retroactively, “the Brokers Act forecloses application of the ABC test.” The panel “also conclude[d], however, that the written agreement [between a salesperson and the real estate broker who holds the salesperson’s license] required by Section 3.2(a) of the Brokers Act is a factor, but not the sole factor, in determining the employment status of a fully commissioned real estate salesperson.” The Appellate Division thus affirmed, as modified, the Law Division’s denial of a defense motion to dismiss the case, and remanded to that court for further proceedings to develop a record on which the employee vs .independent contractor issue can be determined. This case may be headed back to the Supreme Court.

A piece of trivia: this appears to be the first opinion in which Judge Messano is designated as “C.J.A.D.,” as opposed to “P.J.A.D.” His title was changed last year from “Presiding Judge for Administration” to “Chief Judge,” as discussed here.

Robey v . SPARC Group, LLC, 474 N.J. Super. 593 (App. Div. 2023). In a relatively rare published per curiam opinion, the Appellate Division reversed a Law Division dismissal of this consumer case, brought under the Consumer Fraud Act, N.J.S.A. 56:8-1 et seq. (“CFA”), and the Truth in Consumer Contract, Warranty, and Notice Act, N.J.S.A. 56:12-14 et seq. (“TCCWNA”). Plaintiffs asserted that defendant “falsely advertised clothing at two of its Aeropostale stores as being discounted when, in fact, according to plaintiffs, the clothing had never been sold in those stores at a higher price.”

The Law Division ruled that plaintiffs had not shown an “ascertainable loss,” as required by the CFA, or that they were “aggrieved consumers,” as the TCCWNA mandates, since they purchased the product for the exact price advertised. Applying de novo review to that legal issue, the Appellate Division disagreed and reversed.

But the panel members differed as to what measure of loss applied. Judges Geiger and Fisher maintained that “the value of discounts that defendant offered and plaintiffs accepted but that, in fact, had no value” could be recovered if plaintiffs and the class proved their case. Judge Berdote Byrne, however, in a separate concurring opinion, would have limited plaintiffs to their out of pocket losses rather than benefit of the bargain.

Though this opinion was issued per curiam, it appears to have been written by Judge Fisher. The opinion states that Judge Geiger “did not participate at oral argument but join[ed] the opinion with counsel’s consent,” so he would not authored the opinion. And Judge Berdote Byrne wrote a separate concurrence, as discussed above. Though the Third Circuit has issued opinions in which the author of the majority decision also wrote a separate opinion, as occurred (for example) here, the Appellate Division has not had such a practice. Whether the “per curiam” designation was attached because Judge Fisher reached retirement age and is serving on the Appellate Division on recall, or for some other reason, is not clear.