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Thursday, November 21, 2019

N.J. legislation could alter class action litigation in the state

By Jessica Karmasek | May 4, 2016

New Jersey State House | Lowlova / Wikimedia Commons

TRENTON, N.J. (Legal Newsline) - A measure introduced in the New Jersey Legislature this year has the potential to save class action litigants both time and money, sponsors of the legislation say.

The legislation, S1845, would allow a person involved in a class action lawsuit to immediately appeal to the Appellate Division of the Superior Court as to the certification or decertification of the class.

In addition, an appeal of a decision of the Appellate Division of the Superior Court concerning class certification or decertification may be taken to the New Jersey Supreme Court in the same manner as a final judgment of the Appellate Division.

An appeal stays all other proceedings in the Superior Court pending resolution of the appeal, according to the legislation, which was introduced in the state Senate March 7. The bill was referred to the Senate Judiciary Committee, where it has remained since.

“Under the existing system, litigants who wish to challenge a determination as to class certification must either request leave to file an interlocutory appeal or litigate the matter to a final judgment,” the bill states.

“If a motion for leave to file an interlocutory appeal is not granted, the litigant is generally left with a choice between incurring the expense of litigating the matter to a final judgment or settling the case without the benefit of a judicial ruling.”

Sen. Peter J. Barnes III, a Democrat, was S1845’s primary sponsor. However, Barnes stepped down late last month to take a judgeship.

Assemblyman John S. Wisniewski and Assemblywoman Nancy J. Pinkin, both Democrats, are the primary sponsors for A1911, an identical bill that was introduced in January. It also has been held up in a judiciary committee.

Wisniewski said efficiency is the driving force behind the proposed change.

“Right now, at the beginning of the process, if you fight the certification of the class and you’re not successful, that isn’t considered a final decision subject to being appealed,” explained Wisniewski, who serves as deputy speaker and has his own law firm in Sayreville, N.J. “So then you have to litigate the entire matter. Then, at the end, you’re given leave to appeal.

“Hypothetically, should your appeal be successful, you will now have expended lots of time and money when you didn’t really need to.”

Several other states, he pointed out, including Connecticut, Florida, Ohio, Oklahoma and Texas, currently permit interlocutory appeals as of right of determinations as to class certification.

“For businesses, especially, money and time are interchangeable,” Wisniewski said. “We’re not only talking about the overhead aspect of having to pay for the attorneys involved in the litigation, but also the uncertainty that pending litigation can create.”

He noted that the legislation does not deprive anyone of an opportunity to be heard.

“They can still seek certification,” he said. “But this allows the issue of certification to be heard and potentially disposed of prior to litigating the case.”

A similar bill was introduced last session, but failed to move through both houses.

Wisniewski said the legislature will resume with committee hearings soon. It’s his hope to get the legislation through both houses and on the governor’s desk before lawmakers break for the summer, he said.

“I don’t believe a majority of states are there yet,” he said of the proposed change. “But I do see it as a growing movement, simply based on the practicality.”

He continued, “I know some would argue that forcing a party to litigate a class action suit brings about a quicker settlement, and I get that. Settlements usually are in everyone’s best interest.

“But why should anyone settle if they believe the lawsuit was brought in error in the first place?”

From Legal Newsline: Reach Jessica Karmasek by email at

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