Hadis Nafar, on behalf of herself and all others similarly situated v. Hollywood Tanning Systems, Inc

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 08-3994
HADIS NAFAR, on behalf of herself
and all others similarly situated
v.
HOLLYWOOD TANNING SYSTEMS, INC.,
Appellant
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civil Action No. 2-06-cv-03826)
District Judge: Hon. Dennis M. Cavanaugh
Argued May 21, 2009
BEFORE: RENDELL, STAPLETON and ALARCON,*
Circuit Judges
(Opinion Filed: August 5, 2009)
Stephen M. Orlofsky (Argued)
Blank Rome
301 Carnegie Center - Third Floor
Princeton, NJ 08540
* Hon. Arthur L. Alarcon, Senior United States Circuit Judge for the Ninth Circuit, sitting
by designation.

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Jordana Cooper
Blank Rome
Woodland Falls Corporate Park
210 Lake Drive East, Suite 200
Cherry Hill, NJ 08002
Kit Applegate
53 Oxford Circle
Southampton, NJ 08088
Attorneys for Appellant
Jeffrey I. Carton (Argued)
Peter N. Freiberg
Meiselman, Denlea, Packman, Carton & Eberz
1311 Mamaroneck Avenue
White Plains, NY 10605
Attorneys for Appellee
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellee Hadis Nafar (“Nafar”) filed a class action complaint against appellant
Hollywood Tanning Systems, Inc. (“Hollywood Tans”), stating claims for violation of the
New Jersey Consumer Fraud Act (“NJCFA”), fraud, unjust enrichment, breach of
warranty, and injunctive relief, alleging that Hollywood Tans distorts the benefits of
indoor tanning and deceptively fails to provide adequate warnings concerning exposure to
ultraviolet (“UV”) light. The District Court granted Nafar’s motion for class certification.
We granted Hollywood Tans’ petition for interlocutory review under Fed. R. Civ. P.
23(f).

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The appeal presents four principal issues. First, we must determine whether the
District Court erred by not defining either the class or the class claims, as required by
Rule 23(c). We conclude that it did. Second, we must determine whether the District
Court erred by failing to conduct an adequate choice-of-law analysis when the potential
class members for this consumer fraud action hail from numerous states. We conclude
that it did. Third, we must determine whether the District Court erred by failing to
consider evidence suggesting that individual issues of fact and law regarding causation
predominate over common issues. We conclude that it did. Finally, we must determine
whether the District Court erred in failing to consider whether res judicata would apply to
potential personal injury claims, and therefore whether Nafar was an “adequate
representative” of the class. We conclude that it did.
I.
Hollywood Tans is the franchisor of a nationwide chain of indoor tanning salons.
Hollywood Tans is incorporated and has its principal place of business in New Jersey. It
manufactures the tanning booths, provides the computer software system, and creates the
marketing materials that its franchisees use. All these activities, and others, are
performed in New Jersey. During the time of the District Court proceedings, there were
approximately 300 Hollywood Tans franchise locations in twenty-one states.
Tanning booths emit and expose the user to UV light. They are regulated by the
Food and Drug Administration (“FDA”). FDA regulations require that each machine
bear a label that states:

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DANGER--Ultraviolet radiation. Follow instructions. Avoid
overexposure. As with natural sunlight, overexposure can cause eye and
skin injury and allergic reactions. Repeated exposure may cause premature
aging of the skin and skin cancer. WEAR PROTECTIVE EYEWEAR;
FAILURE TO MAY RESULT IN SEVERE BURNS OR LONG-TERM
INJURY TO THE EYES. Medications or cosmetics may increase your
sensitivity to the ultraviolet radiation. Consult physician before using
sunlamp if you are using medications or have a history of skin problems or
believe yourself especially sensitive to sunlight. If you do not tan in the
sun, you are unlikely to tan from the use of this product.
21 C.F.R. § 1040.20(d)(1)(i).
Hadis Nafar, a citizen of New Jersey, purchased a single tanning session in 2001 at
the Hollywood Tans salon in Warren, New Jersey. She alleges that she was told that the
tanning machine would block out harmful rays, “so I wouldn’t see the same effects as if I
went outside and tanned.” Appx. at 425-26. She also alleges that the only health risk she
was informed of was damage to her eyes. In April 2005, Nafar went to the Hollywood
Tans salon in Piscataway, New Jersey, where she purchased a membership package. She
tanned at least three times a week until March 2006. The only health related topic that
she discussed with the attendant in Piscataway was eyewear.
Nafar asserts claims against Hollywood Tans on behalf of a nationwide class of
individuals who purchased indoor tanning services. Her claims seek to remedy economic
injury allegedly caused by her decision to purchase tanning sessions either without being
adequately informed, or being misinformed, of the health risks associated with indoor
tanning. She testified that, had she known of the health risks, she would not have
purchased the tanning sessions. Nafar has disavowed any claim for personal injury on her
own behalf and on behalf of the class. The complaint was filed in New Jersey state court

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and removed by Hollywood Tans to the District Court.
The parties conducted class discovery. Both parties retained experts who
conducted surveys with respect to consumers’ views about the health risks associated
with indoor tanning. The expert surveys were designed to determine the level of
awareness among consumers of the health risks associated with indoor UV tanning, and
the impact of that awareness, if any, on the decision to use indoor tanning services.
It is undisputed that Hollywood Tans’ tanning booths contain the labels required
by the FDA. The Hollywood Tans labels, however, omit the words “Avoid
overexposure” and add the word “possible” before “allergic reactions.” Nafar admitted
that she never read the labels but testified that, had she understood the “overexposure” in
the label to apply to her tanning at Hollywood Tans, she would have decided not to tan.
She further alleges that the franchisees are required to purchase a software system which
includes electronic copies of a standard release form and the “Employee Training
Manual,” which contains a “Questions & Answers” form. None of these documents,
according to Nafar, disclosed the adverse health effects of indoor ultraviolet light
exposure.
Following the close of class discovery, Nafar moved to certify the class under Rule
23(b)(2) and 23(b)(3). The class she sought to certify was a nationwide class of people
who purchased indoor UV tanning services from Hollywood Tans since June 2000, with
no exceptions other than for persons associated with Hollywood Tans. She sought to

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certify for class treatment all her claims, except for the common law fraud claim which
she withdrew. The District Court granted the motion.
II.
We review a district court’s decision to certify a class for abuse of discretion.
Beck v. Maximus, Inc., 457 F.3d 291 (3d Cir. 2006). This includes an inquiry as to
whether the district court has found that each of the prerequisites of Rule 23 are met
based upon “a rigorous analysis” of the “factual and legal allegations” in the case. In re
Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 309 (3d Cir. 2008) (quoting Gen. Tel.
Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982); Newton v. Merrill Lynch, Pierce, Fenner
& Smith, Inc., 259 F.3d 154, 166 (3d Cir. 2001)).
A. Defining the class, class claims, and issues
“An order that certifies a class action must define the class and the class claims,
issues, or defenses, and must appoint class counsel under Rule 23(g).” Fed. R. Civ. P.
23(c)(1)(B). After the 2003 amendments to Rule 23, we addressed the Rule 23(c)(1)(B)
requirements, holding that “Rule 23(c)(1)(B) requires district courts to include in class
certification orders a clear and complete summary of those claims, issues, or defenses
subject to class treatment.” Wachtel v. Guardian Life Ins. Co. of America, 453 F.3d 179,
184 (3d Cir. 2006). We noted that most district court opinions fell short of this standard.
We concluded that:
[T]he proper substantive inquiry for an appellate tribunal reviewing a
certification order for Rule 23(c)(1)(B) compliance is whether the precise
parameters defining the class and a complete list of the claims, issues, or
defenses to be treated on a class basis are readily discernible from the text

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either of the certification order itself or of an incorporated memorandum
opinion.
Id. at 185.
Applying this standard to the order at issue, we determined in Wachtel that the
order neglected to define the claims, issues or defenses to be treated on a class basis, even
though it did contain statements that touched on categories of common issues and claims
in analyzing commonality and predominance.
It is conceivable that we could cobble together the various statements
quoted above and reach a general inference as to some categories of issues
that the District Court believes are appropriate for class treatment. As we
have discussed at length, however, that level of direction in a certification
order is insufficient under Rule 23(c)(1)(B).
Id. at 189.
Reading the District Court’s opinion and order, it is apparent that the parameters
defining the class and a complete list of the claims, issues, and defenses to be treated on a
class basis are not readily discernible from the text. Nowhere does the Court expressly
define the class or list the class claims and issues. In the “commonality” discussion, the
Court does state that Nafar has asserted “no less than six common issues of law and fact”
and then provides some examples. Appx. at 19-20. However, this is not a complete list
of the claims and issues. Nor does the Court conclude which issues will apply
specifically to the class. It is also true that the Court concludes that Hollywood Tans “has
provided a generalized defense that could apply to the majority, or entire, class” in the
“typicality” discussion, but the Court does not discuss what this defense is. Appx. at 22.
In the “predominance” discussion, the Court concludes that the NJCFA will apply to the

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entire class, but Nafar does not limit her claims to those arising under the NJCFA, so this
is not a complete list of the claims.
On remand, the District Court should comply with the Rule 23(c) requirements as
explained by this Court in Wachtel.
B. Choice of law analysis as it relates to the class claims
In the context of class action certification, the Supreme Court has stated that a
district court “may not take a transaction with little or no relationship to the forum and
apply the law of the forum in order to satisfy the procedural requirement that there be a
‘common question of law.’” Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 821 (1985).
A court “must apply an individualized choice of law analysis to each plaintiff’s claims.”
Georgine v. Amchem Prod., Inc., 83 F.3d 610, 627 (3d Cir. 1996) (citing Shutts, 472 U.S.
at 823). In a diversity case, the forum state’s choice of law rules govern. See Gen. Star
Nat. Ins. Co. v. Liberty Mut. Ins. Co., 960 F.2d 377, 379 (3d Cir. 1992).
Since the District Court’s decision in this case, the New Jersey Supreme Court has
adopted a new framework for resolving conflict of law disputes arising out of tort claims.
In P.V. v. Camp Jaycee, both the trial court and the Appellate Division applied New
Jersey’s flexible “governmental interests” test to a claim filed by a New Jersey resident
against a New Jersey charity in which the child alleged he was sexually abused at the
charity’s camp in Pennsylvania. 962 A.2d 453 (N.J. 2008). The New Jersey Supreme
Court noted that it has traditionally denominated its conflicts approach as a governmental
interest analysis, but has continuously resorted to the Second Restatement in resolving

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conflict disputes arising out of tort. The Court declined to apply the traditional flexible
governmental interest test to the tort claim, instead opting to apply the Second
Restatement’s “most significant relationship” test and the corresponding choice of law
factors included in the Second Restatement. Id. at 455; see Agostino v. Quest Diagnositcs
Inc., 256 F.R.D. 437 (D.N.J. 2009) (applying New Jersey’s most significant relationship
test to plaintiffs’ tort and breach of contract claims in class action).
New Jersey’s most significant relationship test consists of two prongs. The first
prong of the analysis requires a court to examine the substance of the potentially
applicable laws in order to determine if an actual conflict exists. In Agostino, applying
the most significant relationship test to a NJCFA claim, the Court concluded that actual
conflicts exist between the NJCFA and the consumer protection laws of other states,
noting a number of differences among the states’ laws. 256 F.R.D. at 461-62 (citing Elias
v. Ungar’s Food Prod., Inc., 252 F.R.D. 233, 247 (D.N.J. 2008); Fink v. Ricoh Corp.,
839 A.2d 942 (N.J. Super. Ct. Law Div. 2003)).
The second prong of the most significant relationship test requires the Court to
weigh the factors enumerated in the Restatement section corresponding to the plaintiffs’
cause of action. See Agostino, 256 F.R.D. at 462. In Agostino, the plaintiffs were seeking
to assert claims under the NJCFA, and the Court applied the conflict of laws analysis of
Restatement Section 148 for claims sounding in fraud or misrepresentation. Id. Under
Section 148(1) of the Restatement:
When the plaintiff has suffered pecuniary harm on account of his
reliance on the defendant’s false representations and when the plaintiff’s

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action in reliance took place in the state where the false representations
were made and received, the local law of this state determines the rights and
liabilities of the parties unless, with respect to the particular issue, some
other state has a more significant relationship under the principles stated in
§ 6 to the occurrence and the parties, in which event the local law of the
other state will be applied.
Restatement (Second) of Conflict of Laws § 148 (1971). “This Section recognizes that
the state in which a prospective plaintiff acted in reliance on a defendant’s fraud is
presumed to have the predominant relationship to the parties and the issues in the
litigation.” Agostino, 256 F.R.D. at 462.
The Court in Agostino concluded that the plaintiffs received the allegedly false
bills in their home states and likely paid the amount by making a payment from their
respective home states. Although the purportedly illegal billing practices may have
emanated from the defendants’ home state of New Jersey, they were directed at each
plaintiff’s home state. The Court found that there was a strong presumption under
Section 148 that the consumer fraud law of each class plaintiff’s home state should apply
to his respective claim, and further that nothing in the analysis of the principles delineated
in Section 6 of the Restatement rebuts the presumption that each prospective plaintiff’s
home state has the most significant interest in litigating its residents’ claims. The Court
rejected the plaintiffs’ claim that the NJCFA should apply nationwide, instead finding
that each state has an overwhelming interest in seeing its own consumer protection statute
govern in cases where residents were victims of fraud perpetrated within the state’s
borders. Id. at 463.
Agostino’s Restatement Section 6 analysis did not change its conclusion that each

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plaintiff’s home state had the most significant interest in the litigation. In the first
instance, it is for the District Court here to consider the Section 6 factors as they relate to
the facts of this claim on remand. However, we have been referred to no Section 6
considerations that would appear to rebut the presumption that each prospective
plaintiff’s home state has the most significant interest in litigating its residents’ claims.
See Agostino, 256 F.R.D. at 463 (The New Jersey Supreme Court has articulated five
principles underlying Section 6: “(1) interstate comity, (2) the interests of the parties, (3)
the interests underlying the substantive body of law, (4) the interests of judicial
administration, and (5) the competing interests of the states.”) (internal quotation marks
and citation omitted).
In determining that the Rule 23(b)(3) requirements were met, the District Court in
this case determined that common questions of law predominate because the NJCFA
applied to the claims of all members of the national class:
The NJCFA will apply to all class members because this particular law
governs Defendant’s behavior and uniform policies. New Jersey has a
strong interest in this litigation because the case’s outcome will likely affect
Defendant’s nationwide behavior. . . . Indeed, the NJCFA is one of this
nation’s strongest consumer protection laws and its application will not
frustrate other states’ consumer protection laws.
Appx. at 25.
On remand, the District Court should conduct a choice of law analysis under New
Jersey’s most significant relationship test, looking to the Restatement and Agostino. If
the District Court concludes that each plaintiff’s home state law should apply, the Court
should then determine whether common questions of law nevertheless predominate and

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whether a class action would be a superior method of adjudication.
C. The Rule 23(b)(3) predominance factor
Certification under Rule 23(b)(3) is permissible only when the court “finds that the
questions of law or fact common to class members predominate over any questions
affecting only individual members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).
The twin requirements of Rule 23(b)(3) are known as predominance and superiority. In
re Hydrogen Peroxide, 552 F.3d at 310. This Court has recently explained the
predominance inquiry:
Predominance ‘tests whether proposed classes are sufficiently cohesive to
warrant adjudication by representation,’ Amchem, 521 U.S. at 623, 117
S.Ct. 2231, a standard ‘far more demanding’ than the commonality
requirement of Rule 23(a), id. at 623-24, 117 S.Ct. 2231, ‘requiring more
than a common claim,’ Newton, 259 F.3d at 187. ‘Issues common to the
class must predominate over individual issues....’ In re Prudential Ins. Co.
Am. Sales Practice Litig., 148 F.3d 283, 313-14 (3d Cir.1998). Because the
‘nature of the evidence that will suffice to resolve a question determines
whether the question is common or individual,’ Blades v. Monsanto Co.,
400 F.3d 562, 566 (8th Cir.2005), ‘a district court must formulate some
prediction as to how specific issues will play out in order to determine
whether common or individual issues predominate in a given case.’ In
re New Motor Vehicles Can. Exp. Antitrust Litig., 522 F.3d 6, 20 (1st
Cir.2008) [ ] (quoting Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d
288, 298 (1st Cir.2000)). [FN omitted]. ‘If proof of the essential elements
of the cause of action requires individual treatment, then class certification
is unsuitable.’ Newton, 259 F.3d at 172. Accordingly, we examine the
elements of plaintiffs’ claim ‘through the prism’ of Rule 23 to
determine whether the District Court properly certified the class. Id. at
181.
In re Hydrogen Peroxide, 552 F.3d at 310-11 (emphasis added).
The District Court concluded that common issues in this class action would

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predominate because (1) all legal issues would be governed by the NJCFA, and
(2) because “Defendant’s alleged misrepresentations and omission concerning the
negative consequences related to indoor tanning are alleged to be uniform.” A. at 26.
Once the District Court determines which state consumer fraud laws will apply to various
members of the proposed class, it must examine the elements of the causes of action
provided by those laws to determine whether common or individual issues will
predominate. We take this opportunity to comment on the District Court’s
“predominance” analysis under New Jersey law, realizing that on remand New Jersey’s
statutory scheme will be implicated at least as to the claims of Nafar and Hollywood
Tans’ other New Jersey customers.
The NJCFA imposes liability on any person who uses: “‘any unconscionable
commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or
the knowing, concealment, suppression, or omission of any material fact with intent that
others rely upon such concealment, suppression or omission.’” Internat’l Union of
Operating Eng’rs Local No. 68 Welfare Fund v. Merck & Co., Inc., 929 A.2d 1076, 1086
(N.J. 2007) (quoting N.J.S.A. 56:8-2). “[T]o state a CFA claim, a plaintiff must allege
three elements: (1) unlawful conduct; (2) an ascertainable loss; and (3) a causal
relationship between the defendants’ unlawful conduct and the plaintiff’s ascertainable
loss.” Id. (internal quotation marks, alterations and citation omitted).
The third prong could be viewed as requiring inquiry into individual class
member’s motivations. However, the District Court cited cases holding that a defendant’s

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common course of conduct alone may support a finding of predominance under the
NJCFA, see, e.g., Varacallo v. Massachusetts Mutual Life Ins. Co., 752 A.2d 807 (N.J.
Super. Ct. App. Div. 2000); Elias v. Ungar’s Food Prod., Inc., 252 F.R.D. 233, 238
(D.N.J. 2008). It thus concluded that “common questions of law predominate because
New Jersey law is central to this litigation.” A. 25. However, this reasoning minimizes
the complexity of the issue. Indeed, evidence of plaintiffs’ conduct relevant to the
causation issue cannot be ignored without comment in a predominance analysis. This is
because the Supreme Court of New Jersey has held that individual issues regarding
plaintiff’s behavior may, in certain cases, defeat predominance in a NJCFA class action,
despite the uniformity of a defendant’s misrepresentations or omissions. See Internat’l
Union, 929 A.2d at 1087. On remand, the District Court should carefully consider these
views in deciding the “predominance” issue under New Jersey law.
Hollywood Tans insists that the District Court did not resolve the factual disputes
regarding the extent to which class members knew of some or all of the health risks and
the extent to which that would have altered their decisions. Nafar responds that “a
rigorous analysis” of the evidence demonstrates that the class members have
predominantly common beliefs as to the health effects of indoor tanning and react in a
resoundingly similar manner to information material to their purchasing decision.
Appellee’s Br. at 34. She also contends that it will not be necessary to resolve those
issues.
While Nafar may be correct, the District Court did not conduct “a rigorous

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1
We note that since the District Court did not define the class we cannot be certain that
this is the class definition. However, that is the class as defined by Nafar in her motion
for class certification, which the District Court granted.
15
analysis” of the evidence to reach its conclusion, as In re Hydrogen Peroxide requires.
As we have noted, it commented on nothing other than the uniformity of the defendant’s
misrepresentations and omissions. Hollywood Tans has presented arguments and expert
evidence in support of the position that individual issues predominate and the District
Court has not addressed them. On remand, the Court should consider the evidence
presented, resolve any disputes relevant to the predominance issue, and consider the
elements of the underlying claims to determine if individual issues predominate over
common issues of fact and law.
D. Adequate representation of a class, which does not exclude individuals with personal
injury claims, by a named plaintiff only claiming economic harm
Hollywood Tans points out that the class proposed by Nafar includes all
individuals who purchased tanning services from Hollywood Tans and does not exclude
people who may have personal injury claims, even though Nafar expressly disclaims any
claims based on personal injuries and personal injury claims would not be pursued in the
class litigation.1 Hollywood Tans contends that it was error for the District Court to find
that Nafar adequately represented the interests of the class without any analysis of
whether disavowing claims for personal injury, arising from the same conduct challenged
in this case, would adversely affect members of the class. Hollywood Tans stresses that a
claim for economic damages arising out of a particular set of facts or a particular wrong,

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once litigated, can operate to bar a claim for personal injury arising out of the same facts
or wrong. Hollywood Tans insists that, when a plaintiff in a class action decides to split
her claim, the named plaintiff’s strategy implicates important interests of the class that
must be carefully considered by the district court. It was therefore an abuse of discretion,
in Hollywood Tans’ view, to certify the class without considering these important issues
affecting adequacy.
In this action, Nafar alleges that Hollywood Tans misrepresented and omitted
material facts about the health risks associated with indoor tanning. She alleges that, had
she known those facts, she would not have used Hollywood Tans’ services and therefore,
as a result of Hollywood Tans’ conduct, she suffers economic harm in the form of dues
and fees paid to Hollywood Tans for the services. Other class members may also allege
that they would not have used Hollywood Tans’ services had they known about the health
risks, and that they suffered both economic harm and harm in the form of personal injury
because the tanning services they used at Hollywood Tans resulted in the exact health
risks that Hollywood Tans failed to warn them about. These claims appear to arise from
the same set of facts and transactions. By seeking only partial relief, Nafar may be
engaging in claim splitting, which is generally prohibited by the doctrine of res judicata.
See, e.g., Krueger v. Wyeth, Inc., 2008 WL 481956, at *2, 4 (S.D.Cal. Feb. 19, 2008)
(noting that by leaving the class open to those who suffered personal injury but not
pursuing damages for personal injuries, the plaintiff was engaging in claim-splitting,
which the Court determined was a compelling reason to deny class certification because

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2
Claim splitting may also be prohibited under New Jersey’s “entire controversy
doctrine”:
In determining whether successive claims constitute one controversy for
purposes of the [entire controversy] doctrine, the central question is whether
the claims against the different parties arise from related facts or the same
transaction or series of transactions. It is the core set of facts that provides
the link between distinct claims against the same or different parties and
triggers the requirement that they be determined in one proceeding. One
measure of whether distinct claims are part of an entire controversy is
whether parties have a significant interest in the disposition of a particular
claim, one that may materially affect or be materially affected by the
disposition of that claim. The test for whether claims are “related” such that
they must be brought in a single action under the New Jersey entire
controversy doctrine ... [is] as follows: if parties or persons will, after final
judgment is entered, be likely to have to engage in additional litigation to
conclusively dispose of their respective bundles of rights and liabilities that
derive from a single transaction or related series of transactions, the omitted
components of the dispute or controversy must be regarded as constituting
17
the plaintiff was an inadequate class representative under the current class definition);
Small v. Lorillard Tobacco Co. Inc., 252 A.D.2d 1, 11 (N.Y. App. Div. 1998) (under New
York’s transactional approach to res judicata, by only seeking economic recovery the
plaintiffs would preclude other potential class members’ chances of bringing potential
claims for personal injury and emotional distress, and noting that the ability to opt out of
the class was insufficient to protect the rights of putative class members who would want
to seek remedies other than those chosen by the representatives); see also In re Methyl
Tertiary Butyl Ether (“MTBE”) Prod. Liability Litig., 209 F.R.D. 323, 339-40 (S.D.N.Y.
2002); Clay v. American Tobacco, Co., 188 F.R.D. 483, 494 (S.D.Ill. 1999); Pearl v.
Allied Corp., 102 F.R.D. 921, 923-24 (E.D.Pa. 1984); Feinstein v. Firestone Tire and
Rubber Co., 535 F. Supp. 595, 606 (S.D.N.Y.1982). 2 But see Aspinal v. Philip Morris,

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an element of one mandatory unit of litigation.
Fornarotto v. American Waterworks Co., Inc., 144 F.3d 276, 279 (3d Cir. 1998) (quoting
DiTrolio v. Antiles, 662 A.2d 494, 502 (N.J. 1995)).
18
813 N.E.2d 476, 488 n.19 (Mass. 2004) (the plaintiffs did not seek damages for personal
injuries, but the Court rejected the defendants’ argument that principles of claim
preclusion might operate to harm the interests of future class members who may wish to
assert personal injury claims in a future action).
Regardless of whether Nafar is correct that the personal injury claims would be
based on different facts and therefore would not be precluded by res judicata, the District
Court failed to consider this very important issue in assessing the adequacy of
representation requirement. For that reason the Court should consider, on remand, New
Jersey’s doctrines regarding preclusion, whether other states’ preclusion doctrines would
apply, the specific claims and facts alleged here, and whether any potential future claims
by class members with personal injury would be at risk of being barred by res judicata.
The District Court may, of course, consider redefining the class, as suggested at argument
before us, to exclude personal injury claimants if it determines that this would avoid any
potential res judicata preclusion and would satisfy the other requirements of Rule 23.
VI.
The order of the District Court certifying a class will be vacated. On remand, if
Nafar continues to seek class certification, the District Court will (1) define the class and
the class claims and issues as required by Rule 23(c) and explained in Wachtel; (2)

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conduct a choice-of-law analysis under New Jersey’s most significant relationship test;
(3) consider the evidence related to consumer knowledge and actions to determine
whether individual issues of “causation” would predominate; and (4) address whether res
judicata would apply to bar potential personal injury claims and, if so, whether that fact
renders Nafar an inadequate class representative.

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