Have you ever tried to pound a square peg into a round hole? See Wenger v. Cardo Windows, Inc., 2012 WL 280254 (N.J. Super. -- App. Div. Jan. 31, 2012).
In Wenger, plaintiffs received a postcard advertising the sale of replacement windows for their home. They called and set up an appointment. A salesman visited and, at the conclusion of his presentation, plaintiffs signed a Purchase agreement for 20 windows at $10,700. They also signed a financing document to finance the cost over 60 months. They also received a Notice of Cancellation, which would allow them to cancel the order.
Plaintiffs reflected on the deal and signed and submitted the Notice of Cancellation. The seller wouldn't take "no" for an answer. It reduced the price and had plaintiffs sign some more forms. Plaintiffs then spoke to their roofing contractor, who said they needed single-unit bay windows that would be secured from the sides, not the top and bottom. The defendant wouldn't do that. So once again plaintiffs canceled the order.
The defendants sued plaintiffs in small claims court for $3,000. Plaintiffs brought a class action in New Jersey state court. Initially, the trial court dismissed claims under New Jersey's Consumer Fraud Act, Contractor's Registration Act, and Home Improvement Practices regulations, and the appellate division affirmed. But the appellate division had instructed the trial court to reconsider its dismissal of the claims under New Jersey's Door-to-Door Home Repairs Sales Act, Home Repair Financing Act, and Truth-in-Consumer Contract Warranty and Notice Act, as well as the FTC's "Cooling Off Rule." On remand, the trial court granted class certification on those causes of action. The appellate division refused to take the appeal, but the New Jersey Supremes instructed the court to do so. And so the appellate division came to consider whether class certification was proper.
The defendant had numerous arguments for why there was no commonality or predominance, and why plaintiffs failed the typicality and adequacy of representation tests. Simply put, plaintiffs were unlike most class members because they never paid any money or received any windows. There were numerous oral interactions, in addition to the paperwork. And there was the dispute on the type of windows plaintiffs needed.
The appellate division didn't care. It kept claiming that the case was about the forms that were signed and whether or not those complied with the statutes. The forms were the same, it reasoned, and thus the class could be certified. The court never discussed the commonality standard of Wal-Mart v. Dukes.
The defendant argued that the class action was not superior, since there was no Consumer Fraud Act claim and no class member could recover any actual damages; rather, the most they could recover would be $100 statutory damages. As such, the binding effect of the class judgment could harm class members with actual damages. The appellate division swatted this concern away with the observation that class members with actual damages could opt out and the maxim that class actions provide a useful mechanism for the recovery of low-dollar claims.
Interestingly, no one appeared to challenge the class definition itself, which was: "All person who . . . received a transaction document from Defendants the same or similar to the transaction documents given to Plaintiffs."
It will be interesting to see what, if anything, the New Jersey Supreme Court does with this case.