APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0450-05T1

INTERNATIONAL UNION OF OPERATING

ENGINEERS LOCAL #68 WELFARE

FUND,

Plaintiff-Respondent,

v.

MERCK & CO., INC.,

Defendant-Appellant.

________________________________________________________________

Argued January 31, 2006 – Decided

Before Judges Lefelt, R. B. Coleman

and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Atlantic

County, Docket No. L-3015-03.

Christopher G. Mirchie and John H.

Beisner argued the cause for

appellant (Dechert LLP, Attorneys;

Diane P. Sullivan and Richard

Jasaitis, III, on the brief).

Christopher A. Seeger argued the

cause for respondent, International

Union of Operating Engineers Local

#68 Welfare Fund (Seeger, Weiss,

LLP, attorneys; Mr. Seeger and

David R. Buchanan, on the brief).

Michael Dore argued the cause for

March 31, 2006

& Manufacturers of American

(Lowenstein Sandler, attorneys;

Mr. Dore and Rosemary E. Ramsay,

of counsel and on the brief).

Porzio, Bromberg & Newman, attorneys

for amicus curiae, Product Liability

Advisory Council, Inc. (Hugh F. Young,

Jr., of counsel; Anita Hotchkiss,

Linda Pissott and Michael Rowan, on

the brief).

Theodore M. Lieverman, of the Philadelphia

Bar, admitted pro hac vice, argued the cause

for amici curiae, AARP, American

Federation of State, County & Municipal

Employees, and Center For Medical

Consumers, Central New York Citizens In

Action, Citizen Action of New York,

Commonwealth Care Al/alliance, Inc.,

Florida Chain, Gray Panthers of Sacramento,

Health Care For All, Lynn Health Task

Force, Medicare Rights Center, New Jersey

Citizen Action, New Jersey PIRG Law &

Policy Center, Pennsylvania Employees

Benefit Trust Fund, Prescription Access

Litigation Project, United Senior Action

of Indiana, Elaine Kleinman, and Ronald

Martin (Spector, Roseman & Kodroff;

Hagens, Berman, Sobol, Shapiro;

and Christopher M. Cosley, attorneys;

Mr. Lieverman, Thomas M. Sobol, Steve W.

Berman, Elizabeth A. Fegan and Christopher

Cosley, on the brief).

The opinion of the court was delivered by

LEFELT, J.A.D.

Plaintiff, International Union of Operating Engineers Local

#68 Welfare Fund, is a joint union-employer Taft-Hartley trust

fund, organized and operating in New Jersey as a third-party

3

payor sponsoring a healthcare benefits plan, which provides

prescription drug coverage to its members and is administered by

Horizon Blue Cross/Blue Shield of New Jersey. Plaintiff accused

the maker of the prescription drug Vioxx, Merck & Co., a New

Jersey corporation, of misrepresenting the safety of Vioxx as

well as concealing information relating to serious health risks

associated with the drug thereby violating New Jersey's Consumer

Fraud Act (the Act), N.J.S.A. 56:8-1 to -20.

that, had Merck not committed fraud in violation of the Act, it

and all third-party payors in the United States would not have

paid to cover the high cost of Vioxx (also known as rofecoxib)

because its purported safety and cost-effectiveness would have

been revealed as false. We granted leave to appeal after Judge

Higbee certified a nationwide class of plaintiffs under R. 4:32-

1, thereby allowing plaintiff to sue Merck in New Jersey on

behalf of itself and all third-party payors in the fifty states

and the District of Columbia who have paid any person or entity

1

N.J.S.A. 56:8-1(d); Dreier Co. v. Unitronix Corp., 218 N.J.

Super. 260, 271-72 (App. Div. 1986); Hundred East Credit Corp.

v. Eric Schuster Corp., 212 N.J. Super. 350, 355-59 (App. Div.),

certif. denied, 107 N.J. 60 (1986) (corporations may sue as

"consumers" under the Act). We are uncertain whether plaintiff

Trust Fund is organized as a corporation. In any event, because

the issue is outside the scope of our grant of Merck's motion

seeking leave to appeal, we do not review Judge Higbee's prior

decision concluding that third-party payors are consumers under

the Act.

4

for the purchase of Vioxx since May 1, 1999, when Vioxx was

approved by the Federal Food & Drug Administration (FDA) for

"the relief of signs and systems of osteoarthritis [degenerative

joint disease], management of acute pain in adults, and

treatment of primary dysmenorrhea [difficult and painful

menstruation]."

I.

Before we address the specific class action questions

confronting us, we explain some of the basic facts, terms, and

concepts necessary to understand the dispute. Plaintiff alleges

that while attempting to market and sell Vioxx, Merck

fraudulently misrepresented and suppressed material information

regarding the drug and its comparative safety and efficacy as

compared with traditional competitors. According to plaintiff,

third-party payors across the nation were specifically targeted

with this false marketing, advertising, and promotion in an

attempt to justify the high cost that was being charged for the

new drug. Plaintiff claimed that Vioxx was introduced "at a

wholesale cost of approximately $72 for a 30-day supply. In

2

February 18, 2005, applies only to civil actions commenced on or

after that date. Pub. L. No. 109-2, §9, 119 Stat. 4 (2005).

Thus, the federal law does not apply to this complaint, which

was filed on October 30, 2003. (The medical definitions

bracketed in the quotation are from Stedman's Medical Dictionary

385, 895 (22nd Edition 1972)).

5

contrast, traditional [competitor pain medications] wholesaled

for $9.00 or less for the same 30-day supply."

Besides Taft-Hartley funds like plaintiff, third-party

payors of health benefit plans can be health maintenance

organizations (HMOs), self-insured employers, insurance

companies, and governments on the federal, state, and local

levels. The plaintiffs' class Judge Higbee approved consists of

all "third-party non-government payors [in all States and the

District of Columbia] who have paid any person or entity for the

purchase of [Vioxx]."

As with most health care plans that provide prescription

drug benefits, plaintiff's plan utilizes a drug "formulary,"

which lists prescription and non-prescription drugs and the

extent to which they are covered under the plan. For instance,

a drug listed on the formulary may be paid for in full or

partially by the plan while drugs not listed must be paid for

entirely by the patient.

To place drugs on the formulary, third-party payors rely

upon the services of prescription benefit managers, or PBMs.

According to plaintiff's expert, "roughly 95% of all patients

with drug coverage receive benefits administered through [PBMs].

PBMs manage approximately 70% of the 3 billion prescriptions

filed in the United States each year[.]" In particular, in

6

2002, 65% of the prescriptions that were handled by PBMs were

processed by four dominant companies: Merck-Medco (22%), Advance

PCS (18%), Walgreen's Health Initiatives (13%), and Express

Scripts (12%)."

The PBMs use pharmacy and therapeutics committees (P&T

Committees) to develop and maintain the formulary of approved

drugs. The P&T Committees consist of actively practicing

physicians, pharmacists, and other healthcare professionals.

Although the P&T Committees may operate in different fashion and

perhaps even consider some different information, the overriding

goals are to evaluate a drug's effectiveness, safety, and cost.

Merck's expert pointed out that different drug prescription

plans often provide different levels of coverage and benefits

for the same drug. For example, when disclosures occurred

regarding potential cardiovascular risks associated with Vioxx,

some plans moved Vioxx from the tier it shared with Celebrex, a

competitor of Vioxx, to a higher tier, thus increasing the

patient co-pay for Vioxx, and discouraging its use. Other plans

recommended additional restrictions such as requiring prior

authorization and still others made no changes following the

disclosure of the cardiovascular risks associated with Vioxx.

In any event, Merck voluntarily withdrew Vioxx from the

market on September 30, 2004. The company's decision was

7

effective immediately and ostensibly based, at least in part, on

a three-year clinical trial that disclosed "an increased risk

for confirmed cardiovascular events, such as heart attack and

stroke, beginning after 18 months of treatment in the patients

taking Vioxx compared to those taking [a] placebo." Thus, this

appeal involves the time period from May 1999, when the drug was

introduced, until it was withdrawn at the end of September 2004.

II.

Basically, the issue framed for review by Merck's

interlocutory appeal is whether Judge Higbee properly certified

a nationwide class in this matter and correctly found that the

common issues among all members of the class predominated and

that resolution of the entire consumer fraud dispute was subject

to New Jersey's Act.

Preliminarily, before we detail the principles governing

class actions in New Jersey, we note that our review standard

focuses on whether the judge has abused her discretion. Muise

v. GPU, Inc., 371 N.J. Super. 13, 29-30 (App. Div. 2004). Thus,

for example, Judge Higbee's decisions certifying the nationwide

class of plaintiffs and finding that common issues of law and

fact predominate are reviewed on this basis. See In re Cadillac

V8-6-4 Class Action, 93 N.J. 412, 436-39 (1983). The judge's

legal decisions, however, including her choice of New Jersey law

8

to govern the entire class, is reviewed de novo. See Manalapan

Realty v. Tp. Comm., 140 N.J. 366, 378 (1995).

As another preliminary matter, we note, as did the motion

judge, that class certification should generally not be denied

based on the complaint's merits. Olive v. Graceland Sales

Corp., 61 N.J. 182, 189 (1972). In fact, plaintiff's

allegations must be considered to be true and accorded "every

favorable view." Delgozzo v. Kenny, 266 N.J. Super. 169, 181

(App. Div. 1992) (quoting Blackie v. Barrack, 524 F.2d 891, 901

n.17 (9th Cir. 1975), cert. denied, 429 U.S. 816, 97 S. Ct. 57,

50 L. Ed. 2d 75 (1976), and Riley v. New Rapids Carpet Center,

61 N.J. 218, 223 (1972)). The question is not whether plaintiff

can prevail on its claims, but whether the prosecution and

defense of these claims are best addressed on a class-wide

basis. Riley, supra, 61 N.J. at 226-28. Thus, in reviewing

Judge Higbee's decision, we assume that plaintiff will be able

to prove the serious and extensive allegations of fraud

allegedly perpetrated by Merck.

Under New Jersey's class action rules, there are four

general prerequisites to such an action: "(1) the class is so

numerous that joinder of all members is impracticable, (2) there

are questions of law or fact common to the class, (3) the claims

or defenses of the representative parties are typical of the

9

claims or defenses of the class," and finally, "(4) the

representative parties will fairly and adequately protect the

interests of the class." R. 4:32-1(a).

Besides satisfying the general prerequisites, the class

action applicant must also meet an additional requirement. See

R. 4:32-1(b)(1),(2) and (3). Here, the additional requirement

at issue is whether "the questions of law or fact common to the

members of the class predominate over any questions affecting

only individual members, and that a class action is superior to

other available methods for the fair and efficient adjudication

of the controversy." R. 4:32-1(b)(3).

There is no challenge in this appeal to Judge Higbee's

finding that the trial of this matter presents common questions

of law and fact. These common questions include, for example,

whether Merck committed consumer fraud; whether Merck concealed

or suppressed material information concerning Vioxx's safety and

efficacy; whether Merck engaged in deceptive or misleading

promotional campaigns designed to induce P&T Committees to place

Vioxx on their formularies and have third-party payors pay for

the drug; and whether, as a result of Merck's misrepresentations

and omissions, third-party payors were damaged.

In fact, Merck and the amici curiae supporting its

position, including Pharmaceutical Research & Manufacturers of

10

America and Product Liability Advisory Council, Inc., do not

challenge, on appeal, Judge Higbee's determination that the

proposed class meets any of the general prerequisites to a class

action under R. 4:32-1(a). They do not contest numerosity of

parties, common questions of law or fact, typicality of the

claims or defenses, or adequate representation of the class by

plaintiff. Ibid.

Instead Merck, supported by the amici, challenges only

whether the trial judge correctly found that common questions

predominate and that a class action would be superior to other

methods of adjudicating this controversy. R. 4:32-1(b)(3). In

support of its position, Merck argues that the consumer fraud

laws of the various third-party payors' home states must be

applied to evaluate their claims of fraud against Merck and that

each third-party payor must separately establish causation and

ascertainable loss. According to Merck, therefore, the common

questions do not predominate over questions affecting each

individual third-party payor, certification of the class must be

reversed, and regular trial procedures utilized to dispose of

each third-party payor's claims. See Saldana v. City of Camden,

252 N.J. Super. 188, 196-97 (App. Div. 1991).

Plaintiff, along with the American Association of Retired

Persons and other amici, strongly disagree with Merck's position

11

and contend that the common issues do predominate and that a

class action is the preferred method of resolving this dispute.

Amici further argue that Merck seeks to "defeat class

certification" solely to "make it less likely that class members

will be able to effectively and efficiently challenge [Merck's]

conduct in any court."

We explain our disagreement with Merck's position by first

addressing in Part III, whether individual causation or

ascertainable loss proof requirements override the predominance

of the common questions of law and fact that all parties agree

are present. We then address in Part IV whether the trial court

correctly held that the New Jersey Consumer Fraud Act shall

apply to all claims of the entire nationwide class.

III.

New Jersey's Act was enacted "to protect [the consumer]

against fraudulent and unconscionable practices in the sale of

consumer goods and services." Marascio v. Campanella, 298 N.J.

Super. 491, 500 (App. Div. 1997). The Act imposes liability

upon 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[.]" N.J.S.A. 56:8-2.

12

Unlawful practices under the Act "fall into three general

categories: affirmative acts, knowing omissions, and regulation

violations." Cox v. Sears Roebuck & Co., 138 N.J. 2, 17 (1994).

If the alleged violation is an affirmative act, it is not

necessary to prove that the defendant intended to commit the

unlawful act. Id. at 17-18; see Fenwick v. Kay Am. Jeep, Inc.,

72 N.J. 373, 378 (1977) (concluding that intent is not required

when defendant affirmatively omits information required to be

disclosed by regulation). If the alleged violation involves an

omission, as contrasted with an affirmative act, then the

plaintiff must show that the defendant acted with knowledge and

intended to commit the deception. Cox, supra, 138 N.J. at 18.

While not involved in this case, any violation of a regulation

does not require a showing of intent as the violation

constitutes strict liability. Ibid. "The capacity to mislead

is the prime ingredient of all types of consumer fraud." Id. at

17 (citing Fenwick, supra, 72 N.J. at 378).

The Act is intended to be applied liberally, Lemelledo v.

Beneficial Mgmt. Corp. of Am., 150 N.J. 255, 268 (1997), and

"has three main purposes: to compensate the victim . . . ; to

punish the wrongdoer through the award of treble damages . . .;

and, by way of the counsel provision, to attract competent

counsel to counteract the community scourge of fraud[.]"

13

Lettenmaier v. Lube Conn., 162 N.J. 134, 139 (1999) (internal

citations omitted). Thus, the Act seeks "not only to make whole

the victim's loss, but also to punish the wrongdoer and to deter

others from engaging in similar fraudulent practices." Furst v.

Einstein Moomjy, Inc., 182 N.J. 1, 12 (2004) (citing Cox, supra,

138 N.J. at 21). "The available legislative history

demonstrates that the Act was intended to be one of the

strongest consumer protection laws in the nation." New Mea

Const. Corp. v. Harper, 203 N.J. Super. 486, 501-02 (App. Div.

1985) (citing Skeer v. EMK Motors, Inc., 187 N.J. Super. 465,

471-73 (App. Div. 1982) (internal quotations omitted)).

Furthermore, we prefer that consumer fraud class actions

"be liberally allowed where consumers are attempting to redress

a common grievance under circumstances that would make

individual actions uneconomical to pursue." Varacallo v. Mass.

Mut. Life Ins. Co., 332 N.J. Super. 31, 45 (App. Div. 2000).

The purpose of class certification is to "save time and money

for the parties and the public and to promote consistent

decisions for people with similar claims." In re Cadillac,

supra, 93 N.J. at 430-31 (citing Fed. R. Civ. P. 23 Advisory

Committee Note, 39 F.R.D. 98, 102-03 (1966)). There is also

"little doubt that the New Jersey Legislature intended its

Consumer Fraud Statute to apply to sales made by New Jersey

14

sellers even if the buyer is an out-of-state resident and some

aspect of the transaction took place outside New Jersey." Boyes

v. Greenwich Boat Works, Inc., 27 F. Supp. 2d 543, 547 (D.N.J.

1998).

The Act permits recovery, however, only by persons, whether

or not New Jersey residents, who suffer "any ascertainable

loss." N.J.S.A. 56:8-19. "As a prerequisite to the right to

bring a private action," under the Act, "a plaintiff must be

able to demonstrate that 'he or she suffered an 'ascertainable

loss . . . as a result of the unlawful conduct.'" Theidemann v.

Mercedes-Benz, 183 N.J. 234, 246 (2005) (internal citations and

quotations omitted)).

Here, Merck claims that Judge Higbee erred in certifying

the class action because each plaintiff "would have to establish

that Merck's alleged misrepresentations and omissions caused

individual doctors to prescribe Vioxx and individual P&T

Committees to include Vioxx on health plan formularies." The

class action litigation format is inferior to individual

lawsuits, according to Merck, because all of the P&T Committees

relied on differing factors in reaching their conclusions on

formulary placement.

To establish consumer fraud in this case, plaintiff must

prove either that Merck affirmatively misrepresented a fact

15

material to the placement of Vioxx on a formulary or that Merck

omitted a material fact knowing and intending that others would

rely on the omission to place the drug on their formularies.

See Fenwick, supra, 72 N.J. at 377. Proof of actual reliance

upon the fraud by P&T Committees or third-party payors would not

be necessary. The Act permits a private civil action by "[a]ny

person who suffers any ascertainable loss . . . as a result of

the use or employment by another person of any method, act, or

practice declared unlawful under this act[.]" N.J.S.A. 56:8-19.

While common law fraud "requires proof of reliance[,]

consumer fraud requires only proof of a causal nexus between the

[misrepresentation or] concealment of the material fact [by a

defendant] and the loss," suffered by "any person." Varacallo,

supra, 332 N.J. Super. at 43; N.J.S.A. 56:8-2; see also Gennari

v. Weichert Co. Realtors, 148 N.J. 582, 607-08 (1997). It is

not necessary to prove that each class member specifically

relied upon Merck's omissions or misrepresentations. See Union

Ink Co. v. AT&T Corp., 352 N.J. Super. 617, 646 (App. Div.),

certif. denied, 174 N.J. 547 (2002).

Plaintiff must prove only that its ascertainable loss was

"attributable to conduct made unlawful by the [Act]."

Thiedemann, supra, 183 N.J. at 246 (citing Meshinsky v. Nichols

Yacht Sales, Inc., 110 N.J. 464, 472-73 (1988) (citing Daaleman

16

v. Elizabethtown Gas Co., 77 N.J. 267, 271 (1978))); N.J.S.A.

56:8-19. It is not necessary that the wrongful conduct be the

sole cause of the loss, but merely that it be a cause.

Varacallo, supra, 332 N.J. Super. at 48.

As Judge Higbee explained, plaintiff alleged "that Merck

has engaged in a long-term, widespread, uniform pattern of

deception to cover up known adverse side effects of Vioxx in

order to gain a profit" by obtaining a favorable position on

drug formularies. Among the various means employed to

accomplish this goal, plaintiff alleges that defendant avoided

studies revealing the negative side effects of Vioxx, engaged in

"heavy-handed negotiating tactics with the FDA in order to get

approval for Vioxx, and even us[ed] threats and intimidation

tactics to silence[] critics in the medical profession." It was

these allegations, according to the judge, that "suggest[ed] the

elements of fraud pervaded every aspect of Merck's actions in

developing and marketing Vioxx."

Plaintiff argues that Merck's fraud induced P&T Committees

to place Vioxx on healthcare plans' formularies, thereby

encouraging physicians to prescribe the medication for patients,

which resulted eventually in the ultimate payment for the

prescribed drug by plaintiff third-party payors. Although the

17

causal chain appears somewhat elongated, we cannot say that the

alleged fraud was not a cause of the third-party payors' loss.

Because P&T Committees commonly consider information

supplied by drug-makers, no P&T Committee could have been

completely isolated from Merck's extensive development and

marketing efforts. Assuming plaintiff can prove the alleged

fraud, it would be unlikely for Vioxx to have received the same

treatment by P&T committees absent the wrongful conduct. Even

for "open" formularies, which automatically include any FDAapproved

drug, the P&T Committee must still choose the drug's

placement on the formulary or whether to impose any prescription

preconditions to establish the extent to which the plan would

cover the cost of the drug.

Once Vioxx was placed on a drug formulary and assigned to a

tier, as Judge Higbee noted, "the third-party payor would be

contractually obligated to pay for the drug if a plan

participant received a prescription for it." Thus, even though

other causes for the third-party loss may be germane, the

fraudulently induced placement of the drug on the formulary was

at least one of the causes for the loss.

Under these circumstances, plaintiff may establish a

sufficient nexus between the alleged fraud and ascertainable

loss by showing via expert proof that, for example, Merck's

18

overarching scheme of omissions and misrepresentations about

Vioxx allowed the company to achieve more favorable placement on

the formularies than it otherwise might have. Alternatively,

plaintiff could present expert proof that absent Merck's

misconduct, Vioxx would not have been on the market at all.

Therefore, it would not be necessary to prove causation

individually.

Merck further claims Judge Higbee "erred in concluding that

each individual class member's 'ascertainable loss' attributable

to Merck's conduct could be established through common, classwide

proof." Ascertainable loss means "either out-of-pocket

loss or a . . . loss in value[.]" Thiedemann, supra, 183 N.J.

at 248. Ascertainable loss "has been broadly defined as more

than a monetary loss" and encompasses situations where "a

consumer receives less than what was promised." Union Ink Co.,

supra, 352 N.J. Super. at 646 (citing Miller v. Am. Fam.

Publishers, 284 N.J. Super. 67, 89-91 (1995)).

Here, it is alleged that Merck represented to doctors,

patients, third-party payors, and health care plans alike, that

Vioxx was not only safe, but superior to other available painkillers

because of its improved gastrointestinal protection. In

reality, Vioxx was not appreciably better than other, less

expensive, competitors and actually posed significant additional

19

cardiovascular risks. Plaintiff thus suffered a "loss in value"

when, on behalf of its participants, it paid for a drug with

serious health risks that Merck did not disclose, rather than

choosing, based on full and truthful information, to select

competitors' products instead.

In short, when third-party payors paid for Vioxx, they got

something less valuable than what was paid for and what had been

promised. This loss is not dependent on any injury to

individual patients who were prescribed Vioxx and also is not a

disguised "fraud-on-the-market" theory, as argued by Merck.

Compare N.J. Citizen Action v. Schering-Plough Corp., 367 N.J.

Super. 8, 16 (App. Div.), certif. denied, 178 N.J. 249 (2003).

Although the amounts of loss may differ among putative

class members, plaintiff can prove ascertainable loss by

classwide expert opinion. Individual variations in the amount

of ascertainable loss would not render a class action inferior

to individual lawsuits because common questions of liability and

the fact of ascertainable loss predominate. Muise, supra, 371

N.J. Super. at 46; Delgozzo, supra, 266 N.J. Super. at 190.

Such complications as average manufacturer price, wholesale

acquisition cost, rebates and other benefits such as dispensing

fees, stocking discounts, and buy back programs, which were

raised by amici, may be considered, if necessary, in the remedy

20

portion of the trial. Damages "may be determined on a

classwide, or aggregate, basis . . . where the computerized

records of the particular industry, supplemented by claims

forms, provide a means to distribute damages to injured class

members in the amount of their respective damages." In re

NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493, 526

(S.D.N.Y. 1996). Once aggregate damages are ascertained, a

mechanism can easily be established to calculate whatever

damages are due individual class members. See e.g., In re Visa

Check/MasterMoney Antitrust Litig., 280 F.3d 124, 141 (2d Cir.

2001) (collecting cases that describe management tools available

to address individualized damages issues that might arise in a

class action).

Therefore the common issues of law and fact relating to

whether Merck committed consumer fraud remain predominant

despite plaintiff's need to prove causation and ascertainable

loss. See Varacallo, supra, 332 N.J. Super. at 42 (finding

predominance requires an analysis of plaintiff's underlying

theory of liability and the "predictable defenses to the legal

claims"); Saldana, supra, 252 N.J. Super. at 197. We remain

convinced that the "common nucleus of operative facts"

predominates over questions affecting only individual members of

the class. Varacallo, supra, 332 N.J. Super. at 42 (citing In

21

re Cadillac, supra, 93 N.J. at 431 (quoting 7A Wright & Miller,

Federal Practice & Procedure § 1778 at 53 (1972))). And we move

on to decide which state's law must be applied to this dispute.

IV.

When considering a nationwide class, one of the major

concerns in the predominance determination is "which state's law

should apply to each member of the class." Fink v. Ricoh Corp.,

365 N.J. Super. 520, 568 (Law Div. 2003). "[V]ariations in

state law may overwhelm common issues and preclude a finding of

predominance." Carroll v. Cellco P'ship, 313 N.J. Super. 488,

496 (App. Div. 1998) (citation omitted). In effect, by having

to instruct the jury on the law of numerous states, the class

action is often rendered unmanageable, and certification

defeated. Id. at 496-97 (discussing cases involving state law

variances that presented insurmountable obstacles to class

certification).

To determine which law applies in a multi-state dispute, we

"employ a flexible 'governmental interest' analysis to determine

which state has the greatest interest in governing the specific

issue that arises in the underlying litigation." Erny v. Estate

of Merola, 171 N.J. 86, 94 (2002) (citing Fu v. Fu, 160 N.J.

108, 117-18 (1999)). The broad common issue arising in this

litigation is whether Merck committed consumer fraud in

22

marketing and advertising Vioxx, which caused loss to thirdparty

payors.

The first step in applying the governmental interest test

to this issue is "to determine whether there is an actual

conflict between the laws of the states involved." Erny, supra,

171 N.J. at 100 (citing Gantes v. Kason Corp., 145 N.J. 478, 484

(1996) and Veazey v. Doremus, 103 N.J. at 244, 248 (1986)). If

a conflict exists regarding a pertinent issue, the second step

is to "identify the governmental policies underlying the law of

each state and how those policies are affected by each state's

contacts to the litigation and to the parties." Veazey, supra,

103 N.J. at 248. It is "the qualitative, not the quantitative,

nature of a state's contacts [that] ultimately determines

whether its law should apply." Ibid. We will usually apply a

particular State's law when doing so "will advance the policies

that the law was intended to promote." Pfizer v. Employers Ins.

of Wausau, 154 N.J. 187, 198 (1998).

When applying the first step of the governmental interest

test, Judge Higbee analyzed the consumer fraud laws of every

state and the District of Columbia and found that "there are

sufficient variations between the laws of the varying states and

[New Jersey's Act] to constitute an actual conflict." This

23

determination is eminently correct. See Fink, supra, 365 N.J.

Super. at 570-84.

Indeed, both parties concede that a conflict exists. For

example, New Jersey allows and often encourages private class

actions for consumer fraud while several other states prohibit

private class action consumer fraud suits. E.g., Miss. Code

Ann. § 75-24-15(4); S.C. Code Ann. § 39-5-140(a); Ala. Code § 8-

19-10(f). Our law finds actionable fraud in connection with the

sale of goods or services for commercial or business uses,

whereas some states "confine their consumer fraud statute

remedies to items purchased 'primarily for personal, family or

household purposes.'" Fink, supra, 365 N.J. Super. at 572

(citing Mo. Ann. Stat. § 407.025(1); 73 P. S. § 201-9.2; Miss.

Code Ann. § 75-24-15(4)). Some states require proof that the

defendant willfully or knowingly made false representations

"with specific intent to deceive," while New Jersey does not

requires such a showing. Fink, supra, 365 N.J. Super. at 576.

Furthermore, variations exist in the award of damages,

especially the decision or ability of a court to award punitive

or treble damages. Id. at 579-84.

Because there are conflicts present, we proceed to the

second step and "identify the governmental policies underlying

the law of each state and how those policies are affected by

24

each state's contact to the litigation and to the parties."

Veazey, supra, 103 N.J. at 248; see Restatement (Second) of

Conflict of Laws § 6(2)(c) (1971). Notably, if the state's

contacts with the litigation "are not related to the policies

underlying its law, then that state does not possess an interest

in having its law apply." Veazey, supra, 103 N.J. at 248.

In performing the governmental-interest analysis in tort

actions, which include consumer fraud cases, see Holmin v. TRW,

Inc., 330 N.J. Super. 30, 35 (App. Div. 2000), we generally

consider the contacts set forth in § 145 of the Restatement

(Second) Conflict of Laws. Erny, supra, 171 N.J. at 102-03; Fu,

supra, 160 N.J. at 122. These contacts are the place of injury;

where the conduct causing injury occurred; the domicile,

residence, nationality, place of incorporation, and place of

business of the parties; and where the relationship, if any,

between the parties is centered. Erny, supra, 171 N.J. at 102-

03 (citing Fu, supra, 160 N.J. at 125 (citing Restatement,

supra, § 145 (2))).

When dealing with fraud and misrepresentations, the

Restatement provides additional guidance. Restatement, supra,

§ 148. This provision informs that "[w]hen the plaintiff's

action in reliance took place in whole or in part in a state

other than that where the false representations were made," as

25

is the case here, there are several relevant contacts to

determine which state "has the most significant relationship to

the occurrence and the parties." Id. § 148 (2)(a)-(f). The

Restatement enumerates six contacts. The first four include, in

pertinent part: "(a) the place . . . where the plaintiff acted

in reliance upon the defendant's representations, (b) the place

where the plaintiff received the representations, (c) the place

where the defendant made the representations, (d) the . . .

place of incorporation and place of business of the parties."

Ibid. The remaining two contacts enumerated in the Restatement

are: "(e) the place where a tangible thing which is the subject

of the transaction between the parties was situated at the time,

and (f) the place where the plaintiff is to render performance

under a contract which he has been induced to enter by the false

representations of the defendant." Ibid.

Comment j to § 148 of the Restatement provides the "general

approach" that if a plaintiff acts in reliance upon a

defendant's representations in a particular state, that state's

law will usually apply "with respect to most issues," if certain

other conditions are met. For example, if, in addition to

relying on a defendant's representations, the plaintiff received

the defendant's representations, or is domiciled or has its

principal place of business there, or "this state is the place

26

where the plaintiff was to render at least the great bulk of his

performance under his contract with the defendant," then that

state "will usually be the state of applicable law." Id. § 148

comment j.

Merck argues that each of the significant relevant contacts

referenced in the Restatement's § 148(2)(a)-(f), pertaining to

misrepresentation, except for Merck's place of incorporation and

initiation of the alleged fraud, occurred in the state where

each prospective plaintiff third-party payor conducts business.

Thus, Merck asserts that New Jersey cannot possibly be the State

with the strongest interests over this litigation.

The choice of law analysis, however, is not a simple

tabulation of contacts and "[n]o definite rules as to the

selection of the applicable law can be stated." Ibid. As the

Restatement points out "any rule of choice of law, like any

other common law rule, represents an accommodation of

conflicting values." Restatement, supra, §6 comment c. Our

analysis must be geared toward determining how the contacts

relate to and affect the governmental policies underlying each

state's statute. Erny, supra, 171 N.J. at 103 (citing Fu,

supra, 160 N.J. at 119).

As Merck argues, plaintiff's principal place of business is

a contact "of substantial significance when the loss is

27

pecuniary in its nature." Restatement, supra, § 148 comment i.

This is so because the state of the victim's residence will bear

the social consequences of the victim's loss. Ibid.; see Fu,

160 N.J. at 131. However, "the place of loss does not play so

important a role in the determination of the law governing

actions for fraud and misrepresentation as does the place of

injury in the case of injuries to persons or to tangible

things." Restatement, supra, § 148 comment c.

"[W]hen the primary purpose of the tort rule involved is to

deter or punish misconduct, the place where the conduct occurred

has peculiar significance." Id. § 145 comment e. With such a

law, seeking to deter or punish misconduct, "the state where the

conduct took place may be the state of dominant interest and

thus that of most significant relationship." Id. § 145 comment

c. "The place where the defendant made his false

representations . . . is as important a contact in the selection

of the law governing actions for fraud and misrepresentation as

is the place of the defendant's conduct in the case of injuries

to persons or tangible things." Id. § 148 comment c.

New Jersey's contacts with this dispute are both extensive

and weighty. Besides having the plaintiff class representative

organized and operating in New Jersey, Merck is a New Jersey

corporation with its corporate home located in this state.

28

Vioxx was primarily developed in New Jersey. Scientific

research, studies, and presentations relating to the safety of

Vioxx and its clinical studies were conducted in this State.

The ultimate decision-making power regarding Vioxx's marketing

and development was exercised in New Jersey.

The fraud allegedly was conceived of and executed from New

Jersey. Merck's senior-level committee in charge of overseeing

the "broad development of [its] products," including Vioxx, and

providing "a final sign-off on plans and activities related to

the product," met in New Jersey. This group is allegedly

connected to deliberate suppression and/or misrepresentation of

damaging information concerning Vioxx. In addition, a board of

scientific advisors expressed its concerns to Merck in New

Jersey. Manipulation of clinical studies allegedly took place

in New Jersey as well. It was this manipulation that aimed to

spur sales of the drug and, in part, hide its risks. Thus, the

claimed misrepresentations and omissions in the marketing and

advertising of the drug all emanated largely from New Jersey.

By contrast, the contacts each prospective member of the

plaintiffs' class has had with this litigation relate to receipt

of the alleged fraudulent communications and the resulting

economic loss. Merck undoubtedly sent representatives and

various communications from New Jersey, and perhaps elsewhere,

29

to the states of various third-party payors. However, once

Vioxx was added to the various formularies, the third-party

payors had no choice but to pay for any Vioxx prescription in

accordance with their formularies. The prescription process was

controlled by health care providers who are not part of this

litigation. Plaintiff, on behalf of the class, is claiming only

economic loss resulting from Merck's alleged fraud. There are

no out-of-state-resident-plaintiffs who had Vioxx prescribed and

suffered some adverse physical or mental consequence. There are

no disabled plaintiffs who may become dependent on any state's

welfare system or other safety net program.

New Jersey's interests in this litigation, in our opinion,

far outweigh the interests of all other states. All consumer

fraud laws in the nation are designed to protect consumers to

some degree. "Their differences do not represent competing or

conflicting resolutions of a particular policy issue. Rather

[the laws] reflect a legislative determination to attack the

same evil." Boyes, supra, 27 F. Supp. 2d at 548.

This litigation seeks to place no obligations on any other

state's businesses. Instead, third-party payors from other

states may be compensated for losses suffered allegedly because

of Merck's fraud. No state has an interest in denying its own

citizens recovery while protecting a foreign New Jersey

30

corporation when the conduct at issue took place, to a

significant degree, in New Jersey. "Application of New Jersey

law will not undermine [other states'] interest[s] in

compensating [their] injured residents because that interest is

not actually implicated or compromised by allowing a [consumer

fraud] action brought by [non-residents of New Jersey] to

proceed against" a New Jersey corporation. Gantes, supra, 145

N.J. at 497-98. In short, Merck has not established how denying

a putative plaintiff relief against a New Jersey corporation

would further the concerns of any given state's consumer

protection law.

Merck cites Heindel v. Pfizer Inc., 381 F. Supp. 2d 364

(D.N.J. 2004), as apposite and reaching the exact opposite

conclusion we come to herein. In Heindel, plaintiffs brought a

consumer class action, along with several other claims, "on

behalf of the purchasers and users of Celebrex and Vioxx,

claiming that they [were] entitled to recover economic damages

they sustained due to Defendants' 'unconscionable marketing

conduct.'" Id. at 367. Many of plaintiffs' fraud and class

action claims, which sought application of New Jersey law to the

entire class, were similar to those advanced herein. The

31

federal judge in Heindel, however, rejected plaintiffs' argument

and found that Pennsylvania law applied.

Heindel is distinguishable from the instant dispute. In

Heindel, plaintiffs' physicians had prescribed Vioxx to

plaintiffs who purchased, paid for, and ingested the drug in

Pennsylvania. Physician involvement was particularly

significant because Pennsylvania had adopted the learned

intermediary doctrine, which limits the liability of

prescription drug manufacturers and "reflects the determination

by the Pennsylvania courts to preserve the primacy of the

physician's role in making treatment decisions for Pennsylvania

patients." Id. at 378. In the instant case, Merck has not

demonstrated that another state applies an equally weighty

doctrine as Pennsylvania's learned intermediary doctrine to the

purchases made by third-party payors, who obviously have not

ingested the drug.

3

established that its "employees stationed in Pennsylvania had

responsibility for much of the interaction with the FDA

regarding Vioxx"; the Merck department of research "responsible

for collecting adverse events and reporting them to the FDA is

also" in Pennsylvania; the national headquarters of the Merck

division which marketed Vioxx was in that state and it was in

"charge of training its U.S.-based professional representatives"

responsible for advertising Vioxx; and a Merck committee

"responsible for the drafting and editing" of a Vioxx circular

was "comprised of employees located in both Pennsylvania and New

Jersey." Heindel, supra, 381 F. Supp. 2d at 376-77.

32

In further support of its position, Merck cites products

liability and personal injury cases that found New Jersey's

deterrent interests to have been outweighed by the compensation

interest of the putative class members' home states. E.g.,

Deemer v. Silk City Textile Mach. Co., 193 N.J. Super. 643, 649

(App. Div. 1984).

Our Supreme Court, however, has found to the contrary. In

Gantes, supra, 145 N.J. at 478, the decedent, a Georgia

resident, "was killed at work when she was struck in the head by

a moving part of a shaker machine" manufactured by a New Jersey

corporation with its principal place of business in New Jersey.

Id. at 482. Her survivors brought a wrongful death action that

would have been timely under New Jersey's statute of

limitations. However, it was barred under Georgia's statute of

repose and dismissed on this ground by the trial court. We

affirmed, but, after applying the governmental-interest test,

the Supreme Court reversed holding that New Jersey's statute of

limitations applied.

The court noted that Georgia's statue of repose was enacted

to counter the problems associated with open-ended liability by

"serv[ing] the dual purposes of stabilizing insurance

underwriting and eliminating stale claims." Id. at 486.

However, these policy concerns were not implicated because

33

Georgia was found to have "no contacts with the defendant

manufacturer or with this lawsuit." Id. at 494. As such, there

was no "governmental interest that must be protected by applying

its statute of repose to foreclose this suit in New Jersey."

Ibid. Moreover, the plaintiff's status as a Georgia domiciliary

"[did] not implicate the policies of its [law], which is

intended only to unburden Georgia courts and to shield Georgia

manufacturers." Id. at 496.

Instead, "New Jersey's policy in deterring tortious conduct

of manufacturers" constituted a "substantial interest to be

weighed against Georgia's interest in compensation of its

resident plaintiffs." Ibid. Failure to apply Georgia's statute

of repose, would "not undermine Georgia's interest in

compensating its injured residents because that interest is not

actually implicated or compromised by allowing a productsliability

action brought by Georgia residents to proceed against

a non-Georgia manufacturer." Id. at 497-98.

It has been questioned whether Deemer, which found our

deterrent interests outweighed by other states' compensation

interests, has any continuing precedential value after Gantes.

See Eugene Scoles et al., Conflict of Laws 920 (4th ed. 2004).

In any event, we have recently followed Gantes in another

products liability action.

34

In Rowe v. Hoffman-La Roche Inc., ___ N.J. Super. ___ (App.

Div. 2006) (slip op. at 1-30), a Michigan resident sued a New

Jersey drug company for failing to warn of the "dangers and

adverse health risks associated with Accutane," a drug designed

to treat acne. The drug company claimed a Michigan statute,

finding the warning adequate as a matter of law, required

dismissal of the plaintiff's suit. We held applicable New

Jersey's law, which provides only a rebuttable presumption that

the warning was adequate. In that case, in the face of an

argument similar to Merck's in this case, we noted that "the

Michigan Legislature may have intended to create a more

hospitable commercial atmosphere, to encourage drug

manufacturers to locate in that state, thereby creating jobs and

related economic benefits." (Slip op. at 23 n.5). We found

that Michigan's interests were "not impeded by a ruling that

rejects application of Michigan's statute to [a New Jersey based

company]." Ibid. Instead, this state's "strong governmental

interest in deterring the manufacture of unsafe products within

its borders, substantially outweighs the countervailing Michigan

contacts and governmental interests." Id. at 30.

Just as our product liability cases have a "strong interest

in deterrence," Gantes, supra, 145 N.J. at 490, it can be argued

that our Consumer Fraud Act has at least as strong or perhaps an

35

even stronger deterrence goal. See Furst, supra, 182 N.J. at

11-12; Lettenmaier, supra, 162 N.J. at 139; Cox, supra, 138 N.J.

at 21.

"The legislature enacted the CFA in 1960 to address rampant

consumer complaints about fraudulent practices in the

marketplace and to deter such conduct by merchants."

Thiedemann, supra, 183 N.J. at 245 (citing Furst, supra, 182

N.J. at 11) (citing Cox, supra, 139 N.J. at 21)). The Act, "in

allowing for private suits in addition to actions instituted by

the Attorney General, contemplates that consumers will act as

'private attorneys general.'" Lemelledo, supra, 150 N.J. at 268

(noting the "strong and sweeping legislative remedial purpose

apparent in the CFA.").

The Act punishes wrongdoers with mandatory "treble

damages." Lettenmaier, supra, 162 N.J. at 139 (citing Roberts

v. Cowgill, 316 N.J. Super. 33, 45 (App. Div. 1998)). Unlike

punitive damages in tort actions, which can only be awarded upon

proofs establishing that a defendant's conduct was malicious or

wanton and willful, see N.J.S.A. 2A:15-5.12 and Nappe v.

Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 49 (1984),

any ascertainable loss under the Act is trebled. Obviously, the

trebling of damages is not designed to fairly compensate an

injured party. Instead, the Act reflects a very strong policy

36

to deter wrongdoing, Cox, supra, 138 N.J. at 21, and encourage

"truth and fair dealing in the market place." Feinberg v. Red

Bank Volvo, Inc., 331 N.J. Super. 506, 512 (App. Div. 2000).

The Act also awards attorney's fees, filing fees, and costs.

See generally Skeer, supra, 187 N.J. Super. at 469-73. These

awards are additional evidence of the strong deterrent goal

present in the Act. Cox, supra, 138 N.J. at 21; Grubbs v.

Knoll, 376 N.J. Super. 420, 449 (App. Div. 2005).

Despite New Jersey's strong interest in preventing

deception by its corperations, Merck relies upon several out-ofstate

cases to assert that Judge Higbee's ruling "contradict[s]

an extraordinary wide body of law rejecting efforts to certify

nationwide classes by finding the law of a single state

applicable to all class members' claims." We either do not find

these cases analogous or disagree that their conclusions should

be applied to this litigation. E.g., In the Matter of:

Bridgestone/Firestone Inc., Tires Prods. Liab. Litig., 288 F.3d

1012, 1016 (7th Cir. 2002) (rejecting nationwide products

liability class action brought on behalf of owners of tires or

cars manufactured by defendants because Indiana was "a lex loci

delicti state [that] in all but exceptional cases applies the

law of the place where the harm occurred" in contrast to states

like New Jersey that apply the governmental interest test); In

37

re Rezulin Prods. Liab. Litig., 210 F.R.D. 61, 64, 70-72

(S.D.N.Y. 2002) (rejecting New Jersey law for a nationwide class

of products liability plaintiffs who allegedly would not have

taken Rezulin had the defendants adequately disclosed its risks

because each state has important interests in ensuring that its

citizens are compensated for injuries, that product sale

standards are complied with, and that physician and pharmacist

conduct are regulated); In re Consol. Parlodel Litig., 22 F.

Supp. 2d 320, 324 (D.N.J. 1998) (rejecting New Jersey law for

sixteen plaintiffs from a variety of states who brought multiple

products liability actions alleging that they were injured as a

result of taking a drug manufactured by the defendant because

the critical issues "rest[ed] upon testimony and other evidence

from each Plaintiff's treating physicians" located in the home

states of each plaintiff); In re Ford Motor Co. Ignition Switch

Prods. Liab. Litig., 174 F.R.D. 332, 348 (D.N.J. 1997)

(rejecting Michigan's law for a products liability class action

involving approximately 23 million vehicles that were

manufactured and distributed by defendant Ford Motor Co. because

of the interest each state has in "protecting its consumers from

in-state injuries caused by foreign corporations" and in

determining the scope of recovery for its citizens); Avery v.

State Farm Mut. Auto Ins. Co., 216 Ill. 2d 100, 187, 835 N.E. 2d

38

801, 854 (2005) (rejecting plaintiff policyholders' nationwide

class action, which alleged that defendant insurance company's

claims practices violated Illinois consumer fraud law, because

"the overwhelming majority of circumstances relating to the

disputed transactions . . . occurred outside of Illinois for the

out-of-state plaintiffs.").

It is true, as alleged by Merck, that certification of a

nationwide class action with application of one state's law to

all claims is rare. See 52 Am. J. Comp. L. 919, 988-990, Choice

of Law in the American Courts in 2004: Eighteenth Annual Survey.

Merck's claim that Judge Higbee's action is totally

unprecedented, however, is overstated.

In Wershba v. Apple Computer, Inc., 91 Cal. App. 4th 224,

110 Cal. Rptr. 2d 145 (Ct. App.), pet. denied, 2001 Cal. LEXIS

8019 (Cal. Nov. 14, 2001), for example, a class action similar

to the one advanced here was certified. Like New Jersey, the

California court found its "consumer protection laws [] among

the strongest in the country." Id. at 242. Because the claimed

fraud emanated from California, that state's "'more favorable

laws may properly apply to benefit nonresident plaintiffs when

their home states have no identifiable interest in denying such

persons full recovery.'" Id. at 243 (quoting Clothesrigger, Inc.

v. GTE Corp. et. al., 191 Cal. App. 3d 605, 612-16, 236 Cal.

39

Rptr. 605, 607-11 (Ct. App. 1987) (noting that the trial court

"erred in stating that California has no interest in providing

nonresident plaintiffs greater protection than their home states

provide.")).

In Clark v. TAP Pharmaceutical Prods., Inc., 343 Ill. App.

3d 538, 798 N.E. 2d 123 (Ct. App. 2003), as another example,

plaintiff claimed that "as a result of the defendants'

fraudulent marketing and sales scheme, he, along with thousands

of individuals and entities who paid copayment or deductible

amounts for beneficiaries under Medicare, overpaid for the

prescription drug Lupron, which is used to treat prostate

cancer." Id. at 542. The Illinois appellate court affirmed

certification of a nationwide class of "'[a]ll individuals or

non-ERISA third-party payor entities in the United States who

paid any portion of the 20% co-payment or deductible amount for

beneficiaries under the Medicare Part B for Lupron during the

period 1993 through the present[.]'" Id. at 543.

The court noted that "[t]he practical effect of applying

Illinois law to the present case is to control conduct within

the boundaries of Illinois, namely, the reporting by the

defendants, headquartered in Illinois, of a deceptively inflated

price for Lupron to uniformly defraud Medicare and its

beneficiaries." Id. at 546-7; see also, e.g., Perry v.

40

Household Retail Servs., Inc., 953 F. Supp. 1378, 1382-83 (M.D.

Ala. 1996)(holding that Illinois Consumer Fraud Act applied to

all non-Illinois members of the class "because Illinois had a

substantial interest in seeing that companies operating in the

state operate lawfully"); In re Badger Mountain Irrigation Dist.

Sec. Litig., 143 F.R.D. 693, 699-700 (W.D. Wash. 1992) (applying

Washington law to claims of nonresident plaintiffs was

appropriate due to strong state policy, defendant's contacts

with state, and ability of unnamed class members to opt out).

V.

Accordingly, we agree with Judge Higbee that, based upon

the evidence she had before her, New Jersey law may properly be

applied to the entire plaintiff class, as this state has the

most significant relationship to the alleged fraud and the

parties. Furthermore, the judge did not abuse her discretion in

certifying the nationwide class of third-party payors who paid

for Vioxx, in accordance with the drug's placement on their

formularies, between May 1999 and 2004. In addition, the judge

correctly rejected the contention that fifty statewide classes

or a multitude of individual actions on the same issue involving

thousands of third-party payors would be a superior method of

adjudicating this claim.

41

Given the confluence of New Jersey contacts and interest,

choosing New Jersey as the site for this nationwide class action

is not unconstitutionally "arbitrary or unfair." Phillips

Petroleum Co. v. Shutts, 472 U.S. 797, 821-822, 105 S. Ct. 2965,

2979, 86 L. Ed. 2d 628, 648 (1985). This State's strong

interest is present across the entire class, and the common

proofs offered on behalf of all members of the class will

predominate at trial with respect to the consumer fraud issues.

See In re NASDAQ, supra, 169 F.R.D. at 517.

Though undoubtedly presenting complex management problems,

a class action in this matter, would be a relatively inexpensive

solution to "accomplish the greatest possible good for the

greatest possible number of" third-party payors who have common

problems and complaints with Merck. Kugler v. Romain, 58 N.J.

522, 538 (1971). Such litigation would promote "efficient

judicial administration, . . . save time and money for the

parties and the public[,] and [] promote consistent decisions

for [third party payors] with similar claims." In re Cadillac,

supra, 93 N.J. at 430 (citing Fed.R.Civ.P. 23 The Advisory

Committee Note, 39 F.R.D. 98, 102-03 (1966)).

Affirmed.