iStockphoto.com

A judge in Middlesex County has granted class certification in a suit claiming Guaranteed Subpoena Service Inc. effectively overcharged customers in connection with reimbursement checks issued to the subjects of subpoenas.

Superior Court Judge J. Randall Corman on June 22 denied a defense motion to dismiss and granted the plaintiff’s motion to certify the class, according to the attorneys in the case, Vetter v. Guaranteed Subpoena Service.

The suit asserts that Guaranteed Subpoena Service, and co-defendants Constable Office of New Jersey and Philip Geron, charged customers for “attendance fees” paid to each subpoenaed party for efforts to comply with the subpoena. Such fees are in addition to the standard process service fee. State law requires that subpoena subjects be paid attendance fees to compensate them for their efforts in complying with the demands.

The defendants deny wrongdoing.

The suit claims that, in cases where a subpoena subject fails to cash the check for the attendance fee, Guaranteed didn’t give refunds to the subpoena-issuing customer. According to the suit, subpoena subjects who receive such payments, generally between $2 and $10, often fail to cash the check, which is printed with a notice that it is valid for 30 days instead of the typical 90. The suit claims that the defendants keep those funds instead of reimbursing customers when checks aren’t cashed.

The sole named plaintiff is Anthony Vetter, who, through counsel, retained Guaranteed Subpoena Service to serve a subpoena duces tecum upon the Bayonne Municipal Court in connection with a case then pending in Hudson County Superior Court, according to the suit. The Constable Office allegedly issued a check for the $10 “attendance fee” on Aug. 13, 2013, that was provided to the Bayonne Municipal Court along with the subpoena. Vetter paid the $59.95 service fee and the $10 attendance fee, but, he claims, Guaranteed never notified him that the check to Bayonne was not cashed.

The suit brings claims on behalf of Vetter and all others in New Jersey who from June 2010 to the present were billed by the defendants in cases where checks were not cashed but no reimbursement was made.

The suit brings claims under the New Jersey Consumer Fraud Act for unconscionable commercial practices, deception, false promises and misrepresentation, and also brings a claim for unjust enrichment.

Gerald Clark of the Clark Law Firm in Belmar represents Vetter, and has his own dispute with Guaranteed. Clark said a billing dispute with the company shortly followed his filing of the Vetter suit in August 2016. Clark said he was notified by phone that his firm had an outstanding bill to Guaranteed for $4,075 and paid the $1,609 of those charges that he deemed to be valid in February 2017.

Clark later claimed in a court document that Guaranteed filed SLAPP suits (strategic lawsuits against public participation) against his firm and Vetter.

But the defendants’ lawyer, Jarrid Kantor of Antonelli Kantor in Union, said the actions Guaranteed filed were essentially counterclaims seeking the Clark Law Firm’s allegedly unpaid balance. The actions were dismissed after Clark made his payment, though Guaranteed doesn’t consider the balance fully satisfied, according to Kantor.

As for the denial of dismissal and grant of class certification, Kantor said he will move for reconsideration and, if the motion is denied, would seek to appeal.

Kantor said the defendants’ position is that the named plaintiff did not suffer an ascertainable loss because Bayonne returned the uncashed check to Clark, who kept it but did not seek a refund.

Kantor said he argued before Corman that certification was not warranted because Clark, in addition to being plaintiffs counsel, would also be the leading fact witness in the case, creating a conflict. He also contended that the circumstances of potential class members and their payments for the attendance fees would not be similar enough to meet the typicality standard for class actions, he said.

Kantor added that Guaranteed continues to honor its checks long after the 30-day deadline imprinted on the face. “Guaranteed stands behind the fact that every check that’s out there is an open obligation,” he said.