Author Archives: Thomas O'Grady

US Supreme Court in Washington DC in bright sunlight

What Impact Does Spokeo Have on TCCWNA?

The U.S. Supreme Court’s recent decision in Spokeo, Inc. v. Robins has, rightfully, attracted much attention in the world of class action litigation. The court reaffirmed that plaintiffs must possess Article III standing to bring suit in federal courts, clarifying that plaintiffs must allege a concrete injury as opposed to a mere statutory/procedural violation by a defendant. Defendants will rely on the decision to argue that plaintiffs are not able to allege or show any concrete injury with respect to many of the statutory based…

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NJ Court Considers Defendant’s Conduct, In Part, In Rejecting Ascertainability Doctrine

Class action practitioners and companies who have encountered class action lawsuits in recent years are undoubtedly aware of the ascertainability doctrine, which, particularly in the 3rd Circuit, has been successfully used to challenge class certification. The ascertainability doctrine requires that a class definition must be sufficiently definite so that it is administratively feasible for the court to determine whether a particular person is a member of the proposed class, and the identity of the class members must be identified by reference to objective criteria. Courts…

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Merely Reaching Trial On CFA Claim Does Not Guarantee Award of Fees

Surely, you haven’t forgotten our riveting post earlier this year involving the NJ Supreme Court’s consideration of a case concerning attorneys’ fees awardable in CFA claims.  In its decision yesterday in Perez v. Swim-Well Pools, et als., the court held that a trial court’s determination that plaintiff failed to demonstrate a bona fide ascertainable loss claim- whether on motion for summary judgment or on motion for involuntary dismissal at the close of plaintiff’s evidence at trial – barred plaintiff from recovering attorneys’ fees. A plaintiff…

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Why Can’t We Be Friends? — Facebook Account Deletion Cause for Adverse Inference Charge

A Magistrate Judge for the United States District Court of New Jersey recently ruled that a personal injury plaintiff’s deletion of his Facebook account, after it had been the subject of a discovery request, was cause for an adverse inference against the plaintiff. In Gatto v. United Air Lines, et al., the plaintiff claimed a permanent disability resulting from a 2008 accident in which he allegedly suffered injuries including a torn rotator cuff and torn medial meniscus.   In July 2011 during the subsequent litigation,…

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Appellate Court Finds NJ Consumer Fraud Act Claim Pre-Empted

A New Jersey Appellate Court has affirmed the dismissal of New Jersey Consumer Fraud Act (CFA) claims and a related claim for class certification.   In Rosen v. Continental Airlines Inc., the plaintiff’s complaint arose out of his alleged inability to use a headset purchased from the airline on an earlier flight, and the refusal of the airline to sell him a new headset and alcoholic beverages on a subsequent flight without a credit card.  (The plaintiff alleged that the airline’s  conduct constituted discrimination against…

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No Laughing Matter – Ascertainable Loss Under the CFA Revisited by NJ Supreme Court

A case involving alleged violations of the NJ Consumer Fraud Act (CFA),  described by the defense counsel to be so weak that he believed jurors were laughing during trial, is now before the state Supreme Court as to whether the plaintiffs are entitled to recover their attorneys’ fees and costs.  Specifically at issue is whether – and under what circumstances – a CFA defendant can be held liable for the plaintiff’s attorneys’ fees and costs when the claim is dismissed by the court after…

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I Paid How Much For That Drink?? – Court Finds Price Omission From Menu Not Actionable Under TCCNWA

A District Court of New Jersey Judge recently granted a Fed. R. Civ. P. 12(b)(6) motion to dismiss a putative class action brought against Applebee’s and IHOP, in which the plaintiff claimed that the defendants violated the NJ Truth in Consumer Contract Notice and Warranty Act (TCCNWA) by failing to disclose beverage prices on their menus. In Watkins v. Dineequity, Inc., et al. (11-cv-7182), the plaintiff based the complaint solely on the alleged TCCNWA violation.  TCCNWA (N.J.S.A. 56:12-14, et seq.) is a dangerous…

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Does The “I’m Just A Retailer” Defense Pass Muster?

Many product liability practitioners operate with the presumption that a seller of a product – while it may be named as a party defendant – ultimately will obtain a dismissal from the case so long as a financially solvent product manufacturer is identified and the seller did not sell a known defective product or otherwise take any action affecting the condition of the product. In other words, a product seller generally cannot be held vicariously liable.  However, the District of New Jersey decision, DeGennaro v.

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Help On the Way for Class Action Litigants in NJ?

Class action litigators generally recognize that most class actions rise and fall on the issue of class certification.  In New Jersey, the stakes are very high at the trial court level because a party seeking to challenge a ruling on class certification must litigate the matter to final judgment or request leave for interlocutory appeal, and interlocutory appeals are sparingly granted.    Given the expenses associated with class litigation, left with a choice of continuing the litigation or attempting to resolve, defendants frequently elect to settle…

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Picture Dims on Consumer Fraud Claims Against Panasonic

Judge Wigenton of the District of New Jersey dismissed consumer fraud claims against Panasonic finding that the allegations did not meet the heightened pleading standards of IqbalThe putative class action involved Panasonic Viera plasma televisions purchased in 2008-2009 which it was alleged contained a defect that caused a “rapid deterioration in the TV’s picture quality.”  This was the second bite at the apple for the plaintiffs who had their first complaint dismissed last July by the same judge.  The elements of a claim…

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