T.G.I. Friday's. Photo: Shutterstock.com

A New Jersey appeals court has granted class certification in a suit over TGI Friday's alleged failure to disclose beverage prices on its menus.

Thursday's 2-1 ruling comes nearly two years after the state Supreme Court rejected a bid for certification in a previous class suit over the alleged failure to disclose drink prices at TGI Fridays and other establishments.

The latest suit takes a different path to certification than Dugan v. TGI Fridays, the 2017 case where certification was denied by the state Supreme Court. Certification was granted in Thursday's decision on a motion for injunctive relief under Rule 4:32-1(b)(2), while the Dugan case unsuccessfully sought certification for damages and civil penalties under Rule 4:32-1(b)(3).

The present case also seeks monetary damages only on behalf of class representative Robert Cameron. That's a big change from the Dugan case, which sought damages on behalf of the entire class. Estimated damages could have topped $1 billion in the Dugan case, which targeted Carrabba's, OutbackSteakhouse, Bonefish Grill, Fleming's Prime Steakhouse and Wine Bar, and Cheeseburger in Paradise in addition to TGI Friday's.

The appeals court reversed a Burlington County Superior Court judge's ruling denying a motion for class certification in the present case. Judge John Harrington concluded that the denial of certification for damages claims in Dugan warrants a rejection of a claim for injunctive relief in the present case.

But Judges Garry Rothstadt and Arnold Natali Jr. said the plaintiff's motion for certification in the present case should not be denied because the Supreme Court's concerns in Dugan were “not relevant to the plaintiff's application for (b)(2) certification.” To hold otherwise would “make it more difficult for a class of defrauded consumers to act collectively in pursuit of a common remedy against a corporate wrongdoer,” Rothstadt and Natali said, citing the Dugan ruling.

The plaintiff, Robert Cameron, filed suit over a meal he ordered at a TGI Fridays in Toms River, including a beer and soda. When he saw the bill, he was shocked to learn the beer cost more than $5 and the soda almost $3. Observing that beverage prices were not printed on the menu, he claimed he would not have ordered the drinks if their prices were listed.

Cameron sought class certification under Rules 4:32-1(b)(2) and (b)(3) for claims under the Consumer Fraud Act and the Truth in Consumer Contract, Warranty and Notice Act. But he withdrew his motion for certification under (b)(3) the day after the Supreme Court denied certification under that rule in Dugan. He alleged that TGI Fridays did not list beverage prices on the menu because studies revealed that it could charge higher prices to patrons when prices are not disclosed.

The defendant in the suit is South Jersey Pubs, a franchisee that operates TGI Friday's restaurants in Toms River and Manahawkin. The suit sought injunctive and declaratory relief on behalf of all persons who dined at one of the defendant's restaurants, received a menu and ordered a beverage from a menu without a price in a specific time period. The suit seeks a permanent injunction directing the defendant to include beverage prices on its menus and a declaration that failure to do so is an unlawful commercial practice under the CFA and the TCCWNA.

Section (b)(2) applies when a single injunction or declaratory judgment would provide relief to every member of the class, but not when individual class members would be entitled to a different injunction or declaratory judgment against the defendant, Rothstadt and Natali said.

But Judge Joseph Yannotti, in his dissent, said the majority erred in concluding that the plaintiff satisfied the rules for class certification under (b)(2). Yannotti said the plaintiff may not have satisfied the cohesiveness requirement under (b)(2) because some class members might not be concerned about the price of beverages or might be return customers who know from past experience how much the defendant charges for beverages. Similarly, class members might not make the necessary showing under TCCWNA that they are aggrieved consumers based on their prior knowledge of drink prices at the defendant restaurant or on details of their interaction with a server, Yannotti said.

The plaintiff and class in the present case were represented by West Berlin attorney Sander Friedman and Wesley Hanna, who was formerly with Friedman's office but is now working for Burlington County. Friedman and Hanna also represented the plaintiff and class in the Dugan case.

“We're pleased with the result,” said Friedman. He was unsure whether the defendant would take the case to the Supreme Court but said he was “not concerned” about having the justices review the case.

Joseph Gallo of McGivney, Kluger & Cook in Florham Park, who represented defendant South Jersey Pubs, did not respond to a request for comment.