DAVID L. FELIX VS. VOLKSWAGEN GROUP OF AMERICA,INC.EDUARDO DEANG VS. VOLKSWAGEN GROUP OF AMERICA, INC.(L-0053-16, UNION COUNTY AND L-0389-16, BERGEN COUNTYAND STATEWIDE)(CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0585-16T3
A-0586-16T3

DAVID L. FELIX and
LUIS M. FELIX,

Plaintiffs-Respondents,

v.

VOLKSWAGEN GROUP OF AMERICA,
INC.,

Defendant-Appellant,

and

JACK DANIELS VOLKSWAGEN,

Defendant.
______________________________________

EDUARDO DEANG,

Plaintiff-Respondent,

v.

VOLKSWAGEN GROUP OF AMERICA,
INC.,

Defendant-Appellant,

and

JACK DANIELS VOLKSWAGEN,
 Defendant.
______________________________________________

Argued May 23, 2017 – Decided July 17, 2017

Before Judges Messano, Espinosa and Suter.

On appeal from the Superior Court of New
Jersey, Law Division, Union County, Docket No.
L-0053-16, and Bergen County, Docket No. L-
0389-16.

Judson O. Littleton (Sullivan & Cromwell, LLP)
of the District of Columbia bar, admitted pro
hac vice, argued the cause for appellant
(Chase, Kurshan, Herzfeld & Rubin, P.C., and
Mr. Littleton, attorneys; Jeffrey L. Chase,
on the briefs).

Michael D. Power argued the cause for
respondents (Power & Associates, PC,
attorneys; Mr. Power, on the briefs).

PER CURIAM

We granted leave to appeal in these two cases and consolidated

the appeals because they present a common question of law. In

A-0585-16, defendant Volkswagen Group of America, Inc. (VW),

appeals from Judge Camille M. Kenny's order denying VW's motion

to dismiss the complaint filed by plaintiffs David L. and Luis M.

Felix; in A-0586-16, VW appeals from Judge Charles E. Powers'

order denying its motion to dismiss the complaint of plaintiff

Eduardo Deang. In both complaints, plaintiffs alleged VW

misrepresented its vehicles' high performance capabilities while

asserting each vehicle fully complied with federal emissions

2 A-0585-16T3
standards set by the Environmental Protection Agency (EPA). Both

complaints included causes of action for common law fraud and

violations of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -184 (the

CFA), and the Magnuson-Moss Warranty Federal Trade Commission

Improvement Act, 15 U.S.C.A. §§ 2301 to 2312 (the MMWA), and breach

of other implied warranties.

Before filing answers, VW moved to dismiss the complaints,

arguing they were expressly or impliedly preempted by provisions

of the Clean Air Act (the CAA), 42 U.S.C.A. §§ 7401 to 7671q. In

particular, VW cited 42 U.S.C.A. 7543(a), which provides in

pertinent part: "No State or any political subdivision thereof

shall adopt or attempt to enforce any standard relating to the

control of emissions from new motor vehicles or new motor vehicle

engines subject to this part." (Emphasis added). Judges Kenny

and Powers concluded the CAA did not preempt plaintiffs' state law

actions. We agree and affirm.1

1
In the Law Division, VW moved for relief on grounds other than
preemption, and it sought to compel arbitration of plaintiffs'
claims. The motion judges denied those requests. Judge Kenny's
order in the Felix matter generally denied VW's motion, but VW's
motion for leave to appeal only sought our review on federal
preemption grounds. VW did not seek leave to appeal from those
portions of Judge Powers' order in the Deang lawsuit that
specifically denied relief on other grounds.

3 A-0585-16T3
 I.

For purposes of our review, the allegations in plaintiffs'

complaints are treated "as uncontradicted[,] . . . accord[ed]

. . . all legitimate inferences . . . [and] accept[ed] . . . as

fact." Banco Popular N. Am. v. Gandi, 184 N.J. 161, 166 (2005).

The Felix plaintiffs purchased a 2014 Volkswagen Passat with 2.0-

liter diesel engine, and Deang purchased a 2010 Audi Q7 with a

3.0-liter diesel engine. VW marketed both vehicles as "Good Clean

Diesel Fun," because they "deliver[ed] performance" while "being

environmentally friendly," and the company represented "the

performance of the vehicle . . . [was] achieved and achievable

while complying with all vehicle emissions statutes, standards and

regulations of the United States."

In reality, VW had installed "defeat devices" on the vehicles.

This computer software allowed the cars to meet emissions standards

during testing, but, during the vehicle's normal operation, the

software interfered with emission controls, resulting in actual

emissions that exceeded EPA standards. In fall 2015, the EPA

issued formal Notices of Violation of the CAA to VW. Plaintiffs'

complaints cited VW's public acknowledgement of its actions and

alleged any repairs to "fix" the problem would result "in a

profound loss of vehicle performance" and "value."

4 A-0585-16T3
 Although not alleged in plaintiffs' complaints, we provide

some additional information, which was known to the motion judges,

is part of the appellate record and is largely undisputed. In

January 2016, the Department of Justice filed suit on behalf of

the EPA against VW in federal district court in the Northern

District of California. Ultimately, that litigation resulted in

a class action settlement approved by the court, which retained

jurisdiction "to enforce, administer and ensure compliance" with

the settlement. In re: Volkswagen "Clean Diesel" Mktg., Sales

Practices, & Prods. Liab. Litig., No. 15-MD-2672-CRB (JSC), 2016

U.S. Dist. LEXIS 14837 (N.D. Cal., Oct. 25, 2016) (2.0-liter

settlement), and 2017 U.S. Dist. LEXIS 76091 (N.D. Cal., May 17,

2017) (3.0-liter settlement). The attorneys advised us at oral

argument that plaintiffs have opted out of the settlement.

II.

Because the sole issue presented — whether the CAA preempts

plaintiffs' state-court actions — requires an interpretation of

federal law, our review is de novo. In re Reglan Litig., 226 N.J.

315, 327-28 (2016), cert. denied, U.S. , 137 S. Ct. 1434, 197

L. Ed. 2d 648 (2017); see also St. Peter's Univ. Hosp. v. N.J.

Bldg. Laborers Statewide Welfare Fund, 431 N.J. Super. 446, 462

(App. Div.) ("[T]he question of preemption is a legal issue that

we review de novo."), certif. denied, 216 N.J. 366 (2013).

5 A-0585-16T3
 "The doctrine of federal preemption finds its source in the

Supremacy Clause of the United States Constitution. . . . A state

law that conflicts with a federal statute is naturally preempted."

Reglan Litig., supra, 226 N.J. at 328 (citing Crosby v. Nat'l

Foreign Trade Council, 530 U.S. 363, 372, 120 S. Ct. 2288, 2294,

147 L. Ed. 2d 352, 361 (2000)). "When Congress legislates in a

field where states have traditionally exercised their historic

police powers, the preemption inquiry begins with the assumption

that Congress did not intend to supersede a state statute unless

that was [Congress's] clear and manifest purpose." Ibid.

(alteration in original) (internal quotation marks omitted)

(quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S. Ct.

2240, 2250, 135 L. Ed. 2d 700, 715 (1996)) (internal quotation

marks omitted). "Accordingly, '[t]he purpose of Congress is the

ultimate touchstone' of pre-emption analysis." Cipollone v.

Liggett Grp., Inc., 505 U.S. 504, 516, 112 S. Ct. 2608, 2617, 120

L. Ed. 2d 407, 422 (1992) (alteration in original) (quoting Malone

v. White Motor Corp., 435 U.S. 497, 504, 98 S. Ct. 1185, 1190, 55

L. Ed. 2d 443, 450 (1978)).

"Pre-emption may be either expressed or implied." Gade v.

Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98, 112 S. Ct. 2374,

2383, 120 L. Ed. 2d 73, 84 (1992). "Express preemption is

determined from an examination of the explicit language used by

6 A-0585-16T3
Congress." Gonzalez v. Ideal Tile Importing Co., 184 N.J. 415,

419 (2005) (citing Jones v. Rath Packing Co., 430 U.S. 519, 525,

97 S. Ct. 1305, 1309, 51 L. Ed. 2d 604, 613 (1977)), cert. denied,

546 U.S. 1092, 126 S. Ct. 1042, 163 L. Ed. 2d 857 (2006). "A

federal enactment expressly preempts state law if it contains

language so requiring." Bruesewitz v. Wyeth Inc., 561 F.3d 233,

239 (3d Cir. 2009), aff'd sub nom. Bruesewitz v. Wyeth L.L.C., 562

U.S. 223, 131 S. Ct. 1068, 179 L. Ed. 2d 1 (2011).

On the other hand,

[t]here are two forms of implied preemption —
field preemption and conflict preemption.
Field preemption applies where the scheme of
federal regulation is so pervasive as to make
reasonable the inference that Congress left
no room for the States to supplement it.
Conflict preemption applies where compliance
with both federal and state regulations is a
physical impossibility, or where state law
stands as an obstacle to the accomplishment
and execution of the full purposes and
objectives of Congress . . . .

[Reglan Litig., supra, 226 N.J. at 328-29
(citations omitted).]

VW argues the CAA both expressly and impliedly preempted

plaintiffs' claims.

Consideration of VW's preemption argument requires some

review of Title II of the CAA, 42 U.S.C.A. §§ 7521 to 7554, which

governs vehicle emissions and fuel standards. Title II requires

the EPA to test all new motor vehicles and engines and issue

7 A-0585-16T3
certificates of compliance, see 42 U.S.C.A. § 7525(a)(2); 40 C.F.R.

§§ 86.094-21 to -30 (2015) (regulating the certification process),

before a vehicle is introduced into commerce. 42 U.S.C.A. §

7522(a)(1). The CAA "provides a mechanism for the recall of

engines when the EPA finds previously certified engines do not

conform to emissions standards." Navistar, Inc. v. Jackson, 840

F. Supp. 2d 357, 359 (D.D.C. 2012); see also 42 U.S.C.A. §

7541(c)(1); 40 C.F.R. §§ 85.1801 to 1808 (2014). Title II also

requires a manufacturer to warrant that engines of new vehicles

are "designed, built, and equipped so as to conform at the time

of sale with the applicable regulations . . . , and . . . [are]

free from defects in materials and workmanship which cause such

vehicle or engine to fail to conform with applicable regulations

for its useful life." 42 U.S.C.A. § 7541(a)(1).

As noted, § 7543(a) prohibits any State or political

subdivision from "adopt[ing] or attempt[ing] to enforce any

standard relating to the control of emissions from new motor

vehicles or new motor vehicle engines subject to this part."

(Emphasis added). Congress enacted this section to ensure that

"vehicle manufacturers not be subject to 50 sets of requirements

relating to emissions controls which would unduly burden

interstate commerce." Jackson v GMC, 770 F. Supp. 2d 570, 577

(S.D.N.Y. 2011) (quoting H.R. Rep. No. 95-294, 95th Cong. (1977),

8 A-0585-16T3
as reprinted in 1977 U.S.C.C.A.N. 1077, 1388), aff’d sub nom.,

Butnick v. GMC, 472 F. App'x 80 (2d Cir. 2012). However, Title

II also contains a savings clause which provides "[n]othing in

this part shall preclude or deny to any State or political

subdivision thereof the right otherwise to control, regulate, or

restrict the use, operation, or movement of registered or licensed

motor vehicles." 42 U.S.C.A. § 7543(d).2

A.

VW argues Congress expressly preempted the field by

prohibiting any State action to enforce a "standard relating to

the control of emissions." 42 U.S.C.A. 7543(a). It argues the

Supreme Court has recognized that "relating to," as used in other

federal statutes, suggests "a broad pre-emptive purpose." Morales

v. Trans World Airlines, Inc., 504 U.S. 374, 383, 112 S. Ct. 2031,

2037, 119 L. Ed. 2d 157, 167 (1992). VW contends that plaintiffs'

2
The CAA also permits private citizen suits: "Nothing in this
section shall restrict any right which any person (or class of
persons) may have under any statute or common law to seek
enforcement of any emission standard or limitation or to seek any
other relief (including relief against the Administrator or a
State agency)." 42 U.S.C.A. § 7604(e)(1). Plaintiffs make no
specific argument regarding the effect of this provision on our
analysis. Moreover, at least one federal court has specifically
held that regarding "moving sources" of emissions, "although the
citizen suit provisions of § [7604] do not preempt . . . state
common law tort claims, the language of § [7543(a)] does so
expressly." Jackson, supra, 770 F. Supp. 2d at 578.

9 A-0585-16T3
complaints are, in reality, attempts to enforce EPA's emission

standards, because to succeed, plaintiffs must prove VW's vehicles

exceeded those standards. We disagree.

In Cipollone, supra, 505 U.S. at 523-24, 112 S. Ct. at 2621,

120 L. Ed. 2d at 427, the Court explained that consideration of

whether the plaintiff's state law claims were preempted by the

Cigarette Labeling and Advertising Act (the Labeling Act), 15

U.S.C.A. §§ 1331 to 1341, required examination of "the legal duty

that is the predicate" of the particular claim and whether it

falls within the scope of the preemption provision. Accordingly,

the Court analyzed each claim in light of the Labeling Act's

provision that expressly prohibited states from requiring a health

warning to appear on all cigarette advertisements and containers.

Id. at 514, 112 S. Ct. at 2616, 120 L. Ed. 2d at 421.

Although the plurality found certain claims were preempted,

the Court found two claims could go forward. First, the

plaintiff's breach of express warranty claim was not preempted

because "[a] manufacturer's liability for breach of an express

warranty derives from, and is measured by, the terms of that

warranty. . . . [T]he 'requirement[s]' imposed by an express

warranty claim are not 'imposed under State law,' but rather

imposed by the warrantor." Id. at 525, 112 S. Ct. at 2622, 120

L. Ed. 2d at 428 (second alteration in original) (emphasis in the

10 A-0585-16T3
original); see also Am. Airlines, Inc. v. Wolens, 513 U.S. 219,

228-29, 115 S. Ct. 817, 824, 130 L. Ed. 2d 715, 725-26 (1995)

(concluding the preemption provision of the Airline Deregulation

Act, 49 U.S.C.A. § 41713(b)(1), did not bar plaintiffs' breach of

contract claim because the "terms and conditions airlines offer

and passengers accept are privately ordered obligations and . . .

do not amount to a State's enact[ment] or enforce[ment] [of] any

law, rule, regulation, standard, or other provision having the

force and effect of law" (alterations in original) (internal

quotations and citation omitted)).

Second, the Court held the plaintiff's fraudulent

misrepresentation claim, based on allegedly false statements of

material fact made in advertisements, could proceed because the

claims were not predicated on duties regarding smoking and health,

which were presumptively preempted, but rather on a more general

duty not to deceive. Cipollone, supra, 505 U.S. at 528-29, 112

S. Ct. at 2623-24, 120 L. Ed. 2d at 430-31.

Similarly, in Altria Group, Inc. v. Good, 555 U.S. 70, 72-

73, 129 S. Ct. 538, 541-42, 172 L. Ed. 2d 398, 403-04 (2008), the

plaintiffs contended the defendant cigarette manufacturer

fraudulently marketed "light" cigarettes suggesting they were less

dangerous than regular cigarettes. The defendant invoked the

preemption clause prohibiting states from requiring additional

11 A-0585-16T3
statements relating to smoking and health. Ibid. The Court

concluded, as did the plurality in Cipollone, that the phrase in

the Labeling Act's preemption provision "'based on smoking and

health' fairly but narrowly construed does not encompass the more

general duty not to make fraudulent statements." Id. at 87, 129

S. Ct. at 549, 172 L. Ed. 2d at 412. As a result, the Court held

the Labeling Act's preemption provision did not preempt the

plaintiffs' state-law fraud claim. Ibid.

VW argues these cases are not persuasive because the language

of the CAA's preemption provision is broader and reflects

Congress's intent to foreclose plaintiffs' state actions.

However, in In re Caterpillar, Inc., No. 1:14-cv-3722, 2015 U.S.

Dist. LEXIS 98784, at *43 (D.N.J. July 29, 2015), the federal

district court cited Cipollone and Wolens in interpreting the

preemptive reach of § 7543(a) of the CAA.3 There, the class

action plaintiffs alleged their diesel engine vehicles with an

emissions control system designed to comply with EPA standards

were defective, causing the vehicles to experience repeated engine

3
We note that Rule 32.1(a) of the Federal Rules of Appellate
Procedure does "not prohibit or restrict the citation of federal
judicial opinions, orders, judgments, or other written
dispositions that have been: (i) designated as 'unpublished,'
'not for publication,' 'non-precedential,' 'not precedent,' or the
like; and (ii) issued on or after January 1, 2007."

12 A-0585-16T3
failures and shutdowns. Id. at *2-3. The plaintiffs further

claimed the defendant manufacturer knew of the defects. Id. at

*3.

Although the court found the "plain wording" of § 7543(a) to

be "specific and unambiguous," it also concluded the "provision

does not foreclose all state common law actions involving alleged

defects in engines manufactured and sold to comply with applicable

emissions standards." Id. at *30. Distinguishing the case before

it from others that interpreted section 7543(a), the court

concluded:

Plaintiffs' claims which seek enforcement of
express and implied warranties for defects in
the Engines' emissions systems, as well as
those based on consumer fraud and negligent
design, are hardly comparable to efforts by
state and local governments to adopt or
enforce emissions standards or to require
additional certifications or inspections
prior to sale.

[Id. at *34-35 (emphasis added).]

VW argues Caterpillar is distinguishable because the

plaintiffs' claims there sought damages for defective engines and

did not "relat[e] to the control of emissions." 42 U.S.C.A.

7543(a). It argues two other cases, Jackson, supra, 770 F. Supp.

2d at 570, and In re Detroit Diesel Corp. v. Attorney General of

New York, 709 N.Y.S.2d 1 (App. Div. 2000), are more persuasive.

13 A-0585-16T3
 In Jackson, the plaintiffs alleged the manufacturers of

diesel buses violated the emissions standards set by the EPA and

negligently failed to warn them about the dangers of the diesel

engine exhaust fumes. Jackson, supra, 770 F. Supp. 2d at 572.

The Jackson court interpreted the phrase "relating to" in § 7543(a)

as reflecting an "expansive intent" and reasoned the CAA preempted

any "enforcement actions that have any 'connection with or

reference to' the control of emissions from motor vehicles." Id.

at 576-77 (quoting Morales, supra, 504 U.S. at 383-84, 112 S. Ct.

at 2037, 119 L. Ed. 2d at 167). Therefore, "a state common law

tort action that questions whether a defendant complied with

standards promulgated under the CAA is an example of a state

attempting to enforce the CAA, and is therefore subject to

preemption." Id. at 575.

In Detroit Diesel, supra, 709 N.Y.S.2d at 3, the court

considered whether the CAA preempted a suit brought by New York's

Attorney General against the manufacturer of heavy-diesel engines

equipped with a defeat devices in the context of the manufacturer's

motion to quash a subpoena duces tecum. The court concluded §

7543(a) was "intended to have a broad preemptive effect," id. at

7, such that "[s]tates are barred from providing their own

regulatory or judicial remedies for conduct prohibited or arguably

prohibited by Federal law," id. at 8. The court also determined

14 A-0585-16T3
any common law claims were preempted because they sought "to use

[New York's] common law to penalize the manufacturers for producing

engines which failed to comply with the Federal standards

promulgated pursuant to the CAA. In doing so, the Attorney General

[was] attempting to enforce those standards, and . . . he is

expressly preempted from pursuing those claims." Id. at 9.

We acknowledge that the plaintiffs' claims in Caterpillar

centered on defective engines that violated express and implied

warranties and failed "to perform as an engine at all."

Caterpillar, supra, at *33. Those claims are not precisely the

same as plaintiffs' claims in these cases. However, we find

Jackson, which alleged direct violations of EPA standards as a

predicate for claims of personal injuries, to be entirely

distinguishable. The Detroit Deisel court's overly expansive

reading of § 7543(a), combined with the thinly-veiled nature of

the Attorney General's enforcement action, limits the persuasive

power of that opinion.

Instead, we follow the more persuasive reasoning advanced by

courts in two other cases, Counts v. GM, L.L.C., No, 16-cv-12541,

2017 U.S. Dist. LEXIS 20277 (E.D. Mich. Feb. 14, 2017), and In re

Volkswagen "Clean Diesel" Litigation, 94 Va. Cir. 189 (Cir. Ct.

2016,) both of which involved manufacturers' installation of

defeat devices.

15 A-0585-16T3
 In Counts, the court concluded that "to the extent

[p]laintiffs are suing GM for manufacturing a vehicle that emits

'more than a certain amount of [NOx or particulate emissions]' in

violation of EPA regulations or that is not equipped with properly

functioning and federally required 'emission-control technology,'

their claims [were] preempted by the CAA." Counts, supra, at *35

(second alteration in original). However, citing Caterpillar and

In re Volkswagen, the court concluded that the plaintiffs' claims

of fraud and misrepresentation were

not, as GM contends, contingent on proving
that GM is in noncompliance with EPA emissions
regulations. There can be no doubt that
proving noncompliance would bolster
Plaintiffs' claims, but Plaintiffs need not
make that showing to prevail. Accordingly,
Plaintiffs' claims are not preempted by the
[CAA].

[Id. at *41.]

Similarly, in In re Volkswagen, supra, 94 Va. Cir. at 189-

90, the plaintiffs raised essentially the same claims about VW

vehicles as do plaintiffs in these two appeals. The court rejected

VW's preemption argument, reasoning,

On their face, Plaintiffs' fraud and
[statutory consumer fraud] claims do not rely
on emissions violations or enforcement to make
out their claims. Instead Plaintiffs' claims
rely upon allegedly false promises of
compliance, efficiency, and new technology; or
concealment of the fact that compliance
testing was being circumvented. Although

16 A-0585-16T3
 Plaintiffs reference the EPA violation notice
in support of their allegations of falsehood
and concealment, their claims ultimately rest
on and seek remediation of injuries arising
from misrepresentations and concealment of
material facts made to (or hidden from) the
Plaintiffs about the compliance, efficiency,
and technology of their vehicles. This is
distinguished from the claims in Jackson and
Detroit Diesel, which sought to recover for
injuries from the alleged noncompliance
itself, or alleged fraud based on statements
or representations made to federal regulators
by manufacturers in procuring emissions
compliance certificates.

Plaintiffs' lack of reliance on emissions
standards is further revealed when one
considers whether Plaintiffs even need to
assert lack of compliance in raising their
fraud and [statutory consumer fraud] claims.
Plaintiffs point to advertising materials and
news releases promising not only compliance
with regulations, but also describing new
technologies developed by [VW] and offering
improved fuel economy. Plaintiffs also point
to [VW]'s public statement that it had been
"dishonest" to consumers in such advertising.
As such, and although emissions compliance or
lack thereof may be further proof of deceit,
it is the deceit about compliance, rather than
the need to enforce compliance, that is the
gravamen of Plaintiffs' claims.

[Id. at 196-97.]

Similarly, in the cases before us, plaintiffs do not seek to

enforce an EPA emission standard or force the manufacturer to

adopt a different emission standard. It may well be that

plaintiffs will prove their vehicles failed to comply with EPA

emission standards, something VW has publicly acknowledged, but

17 A-0585-16T3
the gravamen of plaintiffs' complaint centers on VW's alleged

deceitful, fraudulent practices, and its alleged breach of a duty

not to mislead consumers. We conclude § 7543(a) does not expressly

preempt plaintiffs' causes of action.

We also conclude that the CAA does not impliedly preempt

plaintiffs' complaints. Implied preemption occurs either when

"the scheme of federal regulation is 'so pervasive as to make

reasonable the inference that Congress left no room for the States

to supplement it,'" or when "compliance with both federal and

state regulations is a physical impossibility." Gade, supra, 505

U.S. at 98, 112 S. Ct. at 2383, 120 L. Ed. 2d at 84 (citations

omitted).

We agree with the analysis of the Caterpillar court, i.e.,

that "the savings clause suggests that Congress did not intend to

occupy the entire field of motor vehicle regulation. Instead, the

[savings clause] explicitly contemplates continued state

involvement in the regulation of motor vehicles." Caterpillar,

supra, at *48. Furthermore, because plaintiffs' claims do not

hinge on compliance with EPA standards, there can be no direct

conflict with the federal regulatory scheme that requires

compliance with those standards. Id. at *51-53.

Affirmed.

18 A-0585-16T3