Class Action Complaint (part 4)

COUNT III Class Action CLASS ACTION WAIVER  
1. Plaintiff reasserts the facts as set forth CLASS DEFINITION: All those consumers purchasing a car from the defendants in the past six years and signed class action waiver.
2.           TIME PERIOD: At a minimum from the date of the transaction to the same date 6 years earlier this period is applicable to the class persons who had a car repaired by the defendants.  However, the defendant dealer has been concealing certain information and as such the class period could be greater.
3.           NUMEROSITY:  The members of the proposed class, being geographically disbursed and numbering in hundreds or thousands, are so numerous that joining all of them is impracticable.
4.            TYPICALITY:  Plaintiffs’ claims are typical of class members claims, as the individual plaintiff purchased a vehicle from the defendant. The plaintiff, by proving her claim, will be able to presumptively prove the claims of all class members.
5.           ADEQUACY OF REPRESENTATION: Plaintiffs’ can and will adequately represent and protect the class interest of the class and has no interest that conflicts with or are antagonistic to the interest of the class members. Plaintiffs have retained attorneys who are compete and experienced in consumer fraud and class action litigation. No conflict exists between plaintiffs and the other class members because:
A.             The claims of the named plaintiffs are typical of the absent class members claims;
 
B.             Any claims which plaintiffs assert against the defendant are solely related to the individual transaction as hereinafter alleged can be resolved without any prejudice to the class members. Such claims can be effectively severed, tried separately or otherwise effectively and efficiently case managed by the trial court. Such separate claims are set forth in previous counts of the complaint listed hereto.
 
C.            All questions of law or fact regarding the liability of the defendant are common to the class and are overwhelmingly predominant over any individual issues, which may exist.
 
 D.            Without class representation provided by plaintiffs virtually no class members would receive legal representation or redress for their injuries.
 
E.             Plaintiff’s counsel has the necessary financial resources to adequately and vigorously litigate this class action.
  
F.             Plaintiffs and class counsel are aware of the fiduciary responsibilities to class members and determined diligently to discharge those duties by vigorously seeking the maximum possible class recovery.
 
6.           QUESTIONS OF LAW AND FACT:  Virtually all  the issues of law and fact in this class action are common issues to the class that include the following:
Virtually, all the issues of law and fact in this class are common issues to the class that include the following: (a) What standard documents are used and do they contain class action waivers? 

7.       SUPERIORITY:  Class action is superior to any other available method for fair and efficient adjudication of this controversy given;
A.             Questions of Law and Fact overwhelmingly predominate over any individual questions that may arise, resulting in enormous economies to the Court and parties in litigating the common issues on a class wide instead of a repetitive individual basis.
 
B.             The relative small size of each class member’s individual damage claim, which is too small to make an individual litigation an economically viable alternative, such that as a practicable matter there is no alternative means of adjudication in the class action;
 
C.            Few class members have any interest in individually controlling the prosecution of separate actions;
 
D.             Despite the relatively small size of individual class member claims, their aggregate volume, coupled with economies of scale inherent in litigating similar claims on a common basis, will enable this class action to be litigated on a cost-effective basis, especially compared with repetitive individual litigation;
 
E.             No unusual difficulties are likely to be encountered in management of the class action.

8. N.J.S.A. 56:12-15. Consumer contract, warranty, notice or sign; violation of legal right of consumer or responsibility of seller, lessor, etc.; prohibition; exemptions.
No seller, lessor, creditor, lender or bailee shall in the course of his business offer to any consumer or prospective consumer or enter into any written consumer contract or give or display any written consumer warranty, notice or sign after the effective date of this act which includes any provision that violates any clearly established legal right of a consumer or responsibility of a seller, lessor, creditor, lender or bailee as established by State or Federal law at the time the offer is made or the consumer contract is signed or the warranty, notice or sign is given or displayed. Consumer means any individual who buys, leases, borrows, or bails any money, property or service which is primarily for personal, family or household purposes. (Emphasis added).

9. The defendants had the plaintiff sign a contract that forfeits their right to pursue a class action in either arbitration or Superior Court and done so in violation of N.J.S.A. 56:8-12 and existing case law. The statutory damages are $100 plus fees and cost for each class member.

WHEREFORE, the plaintiffs demand against the defendant together with interest and costs of the suit with punitive damages.

JURY DEMAND Plaintiff hereby demands a trial by a jury of six (6) jurors as to all issues raised in these pleadings.
DESIGNATION OF TRIAL COUNSEL Pursuant to the provisions of Rule 4:25-4, the Court is advised that JONATHAN RUDNICK, ESQ., is hereby designated trial counsel.
CERTIFICATION I hereby certify that, pursuant to R. 4:5-1(b)(2), this matter in controversy might arguably be considered the subject of a pending arbitration, filed with AAA. That matter was filed for individual claims, while this matter is for class action claims.
CARTON & RUDNICK Attorneys for Plaintiffs

BY:__________________________________ JONATHAN RUDNICK, ESQ.