Erick Zanetich v. WalMart Stores East Inc

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 23-1996

____________

ERICK ZANETICH, on behalf of himself and those

similarly situated,

Appellant

v.

WAL-MART STORES EAST, INC., doing business

as Walmart Inc.; SAM’S EAST INC., doing business

as Sam’s Club Fulfillment Center

____________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 1:22-cv-05387)

District Judge: Honorable Christine P. O’Hearn

____________

Argued: March 6, 2024

____________

Before: JORDAN, PHIPPS, and FREEMAN, Circuit Judges

(Filed: December 9, 2024)

Justin L. Swidler [ARGUED]

SWARTZ SWIDLER

9 Tanner Street

Suite 101

Haddonfield, NJ 08033

Counsel for Appellant

Misha Tseytlin [ARGUED]

TROUTMAN PEPPER

227 W Monroe Street

Suite 3900

Chicago, IL 60606

Counsel for Appellees

___________

OPINION OF THE COURT

___________

PHIPPS, Circuit Judge.

In 2021, as part of its efforts to legalize and regulate

marijuana use “in a similar fashion to the regulation of alcohol

for adults,” New Jersey enacted the Cannabis Regulatory,

Enforcement Assistance, and Marketplace Modernization Act

– referred to herein as ‘CREAMMA.’ N.J. Pub. L. 2021, ch. 16

(amending N.J. Stat. §§ 18A, 24, 40, and 54). One of the

provisions of CREAMMA prohibits employers from refusing

to hire a job applicant for the use of cannabis. See N.J. Stat.

§ 24:6I-52(a)(1). CREAMMA, however, does not expressly

provide a private remedy for redressing employment

discrimination against cannabis users. And, in 2022, a retailer

in New Jersey rescinded an offer of employment to a job

applicant because he tested positive for cannabis.

2

Claiming that the retailer’s decision violated CREAMMA,

that job applicant initiated this two-count lawsuit individually

and on behalf of a putative class. The first count sought redress

on the theory that CREAMMA implies a remedy for violations

of its employment protections. The second count pursued a

claim for pre-employment discrimination in violation of public

policy. The retailer moved to dismiss both counts, and the

District Court granted that motion on the grounds that neither

presented a legally viable claim.

In this appeal, the job applicant challenges that ruling and

alternatively seeks certification to the New Jersey Supreme

Court of the state-law issues underlying both claims. On de

novo review of the District Court’s decision, we will affirm the

judgment of the District Court, and exercising our discretion,

we will not certify either question.

I. STATUTORY BACKGROUND

At least as far back as 1933, New Jersey criminalized the

use and possession of cannabis. See N.J. Pub. L. No. ch. 186,

arts. I–III (1933). That prohibition began to be relaxed in 2010

with the passage of legislation that exempted the medical use

of cannabis from criminal liability under New Jersey law. See

N.J. Pub. L. No. 2009, ch. 307 (codified at N.J. Stat. §§ 24:6I-

1–24:6I-16) (permitting limited medical use of cannabis for

“debilitating medical conditions”). In 2019, the New Jersey

Legislature broadened the medical-use exception and created a

state agency – the Cannabis Regulatory Commission – to

oversee the licensing and regulation of medical marijuana

distributors. See N.J. Pub. L. No. 2019, ch. 153 (codified as

amended at N.J. Stat. §§ 24:6I-1–24:6I-30, 26:2H-12.86,

30:6D5-b, 45:1-45.1, 45:9-27.16, 45:9-27.19, 45:11-49,

52:13D-13, 52:13D-17.2, 2C:35-18, 18A:40-12.22). Then, in

November 2020, through a ballot initiative, Garden State

3

voters, by a two-to-one margin,1 approved an amendment to

the New Jersey Constitution that legalized and regulated the

possession and use of marijuana by persons over age 21.

N.J. Const. art. IV, § VII, ¶ 13 (effective Jan. 31, 2021). But

cf. 21 U.S.C. § 812 (listing “marihuana” as a Schedule I

controlled substance); Schedules of Controlled Substances:

Rescheduling of Marijuana, 89 Fed. Reg. 44597-01, 44601

(proposed May 21, 2024) (to be codified at 21 C.F.R. pt. 1308)

(proposing a transfer of marijuana from Schedule I to

Schedule III).

Within a month of the effective date of that amendment, on

February 22, 2021, New Jersey enacted CREAMMA, which

provides a statutory grounding for the regulation of cannabis

in the state. See N.J. Pub. L. No. 2021, ch. 16. The New Jersey

Legislature announced and codified three broad purposes of

CREAMMA:

1. to adopt a new approach to our

marijuana policies by controlling

and legalizing a form of marijuana,

to be referred to as cannabis, in a

similar fashion to the regulation of

alcohol for adults . . .

2. [to] prevent the sale or distribution

of cannabis to persons under 21

years of age . . . [and]

3. to eliminate the problems caused

by the unregulated manufacturing,

distribution, and use of illegal

marijuana within New Jersey[.]

1

Official Results, New Jersey General Election (Nov. 3, 2020),

Public Question No. 1: Constitutional Amendment to Legalize

Marijuana [https://perma.cc/UZL6-XURQ].

4

N.J. Stat. § 24:6I-32(a)–(c).

The New Jersey Legislature also made a dozen factual

findings in support of CREAMMA. See id. § 24:6I-32(d)–(o).

Several of those related to law enforcement. For instance, the

Legislature found that CREAMMA “will divert funds from

marijuana sales from going to illegal enterprises, gangs, and

cartels,” id. § 24:6I-32(d), and that “[c]ontrolling and

legalizing cannabis for adults in a similar fashion to alcohol

will strike a blow at the illegal enterprises that profit from New

Jersey’s current, unregulated illegal marijuana market,” id.

§ 24:6I-32(h).2 Other findings addressed public health

concerns, such as the conclusion that “[a] controlled system of

cannabis manufacturing, distribution, and sales must be

designed in a way that enhances public health and minimizes

harm to New Jersey communities and families.” Id. § 24:6I-

32(l).3 In a similar vein, other findings focused on the

2

Several other findings also related to law enforcement,

specifically: that “New Jersey spends approximately $127

million per year on marijuana possession enforcement costs,”

N.J. Stat. § 24:6I-32(f); that “[c]ontrolling and legalizing

cannabis for adults in a similar fashion to alcohol will free up

precious resources to allow our criminal justice system to focus

on serious criminal activities and public safety issues,” id.

§ 24:6I-32(g); that “Black New Jerseyans are nearly three

times more likely to be arrested for marijuana possession than

white New Jerseyans, despite similar usage rates,” id. § 24:6I-

32(e); and that “New Jersey cannot afford to sacrifice public

safety and individuals’ civil rights by continuing its ineffective

and wasteful past marijuana enforcement policies,” id. § 24:6I-

32(o).

3

Other public health findings related to increased attention to

addressing substance use disorder. See N.J. Stat. § 24:6I-32(i)

(“New Jersey must strengthen its support for evidence-based,

drug use prevention programs that work to educate New

Jerseyans, particularly young New Jerseyans, about the harms

5

importance of preventing underage cannabis use. See id.

§ 24:6I-32(m) (finding that “[t]he legalized cannabis

marketplace in New Jersey must be regulated so as to prevent

persons younger than 21 years of age from accessing or

purchasing cannabis”); id. § 24:6I-32(k) (reasoning that

“[c]ontrolling and regulating the manufacturing, distribution,

and sales of cannabis will strengthen our ability to keep it along

with illegal marijuana away from minors”). Finally, one of the

factual findings related to the consequences of arrests for

marijuana, including the negative effects on future

employment:

A marijuana arrest in New Jersey can have a

debilitating impact on a person’s future,

including consequences for one’s job prospects,

housing access, financial health, familial

integrity, immigration status, and educational

opportunities . . . .

Id. § 24:6I-32(n).

In furtherance of those purposes and findings, CREAMMA

delegated significant authority to the Cannabis Regulatory

Commission. It conferred jurisdiction on the Commission over

“any person who buys, sells, cultivates, produces,

manufactures, transports, or delivers any cannabis or cannabis

items within this State.” Id. § 24:6I-34(a). Under

CREAMMA, the Commission also may “exercise all powers

incidental, convenient, or necessary to enable the Commission

to administer or carry out the provisions of [CREAMMA].” Id.

§ 24:6I-34(b)(5). And the Commission is to “oversee the

development, regulation, and enforcement of activities

of substance use disorder.”); id. § 24:6I-32(j) (“New Jersey

must enhance State-supported programming that provides

appropriate, evidence-based treatment for those who suffer

from the illness of substance use disorder.”).

6

associated with the personal use of cannabis.” Id. § 24:6I-

24(a)(2).

Also, as part of its overall approach to cannabis regulation,

CREAMMA prohibited two forms of employment

discrimination. First, it outlawed employment discrimination

based on a person’s use or non-use of cannabis:

No employer shall refuse to hire or employ any

person or shall discharge from employment or

take any adverse action against any employee

with respect to compensation, terms, conditions,

or other privileges of employment because that

person does or does not smoke, vape, aerosolize

or otherwise use cannabis items . . . .

Id. § 24:6I-52(a)(1). Second, it protected employees from

adverse employment actions based solely on a positive

cannabis drug test:

[A]n employee shall not be subject to any

adverse action by an employer solely due to the

presence of cannabinoid metabolites in the

employee’s bodily fluid from engaging in

conduct permitted under [CREAMMA].

Id.

CREAMMA also set express bounds for those employment

protections. They do not prevent employers from

“maintain[ing] a drug- and alcohol-free workplace.” Id.

§ 24:6I-52(b)(1)(a). Nor do those protections “require an

employer to permit or accommodate the use, consumption,

being under the influence, possession, transfer, display,

transportation, sale, or growth of cannabis or cannabis items in

the workplace.” Id. As a further limitation, CREAMMA made

explicit that its cannabis-related provisions should not be

7

construed to “amend or affect in any way any State . . . law

pertaining to employment matters.” Id. § 24:6I-55(a).

The Cannabis Regulatory Commission has exercised some,

but seemingly not the full extent, of its authority with respect

to CREAMMA’s employment protections. It has promulgated

regulations4 and issued guidance documents.5 One of those

guidance documents, issued in September 2022 to “all

employers,” explained that a positive drug test when combined

with evidence of impairment may justify an adverse

employment action:

A scientifically reliable objective testing method

that indicates the presence of cannabinoid

metabolites in the employee’s bodily fluid alone

is insufficient to support an adverse employment

action. However, such a test combined with

evidence-based documentation of physical signs

or other evidence of impairment during an

employee’s prescribed work hours may be

sufficient to support an adverse employment

action.

N.J. Cannabis Regul. Comm’n, Guidance on “Workplace

Impairment” 1 (2022) [https://perma.cc/25WT-DZWP]. The

Commission, however, has not taken any formal enforcement

action against employers who violate CREAMMA’s

employment protections.

4

See, e.g., N.J. Admin. Code §§ 17:30-1.1–17:30-20.10 (2023)

(“Personal Use Cannabis Rules”).

5

See, e.g., N.J. Cannabis Regul. Comm’n, Manufacturing and

Retailing of Ingestible Cannabis Products (2023)

[https://perma.cc/QV2D-G8FV].

8

II. FACTUAL BACKGROUND

(AS ALLEGED IN THE COMPLAINT)

In January 2022, less than a year after the enactment of

CREAMMA, New Jersey citizen Erick Zanetich applied for an

asset protection position at a Walmart facility in Swedesboro,

New Jersey. A week later, he was offered a job there – subject

to the condition that he take and pass a drug test. That

condition reflected a corporate policy – in effect even after

CREAMMA – under which all job applicants and employees

were ineligible for future employment upon testing positive for

drugs. Zanetich tested positive for cannabis, and his job offer

was rescinded.

III. PROCEDURAL HISTORY

Prompted by the rescission of his job offer, Zanetich filed

a two-count putative class-action complaint in the Superior

Court of Gloucester County against Walmart and one of its

affiliated corporations. For relief, Zanetich sought back pay,

front pay, punitive damages, and an injunction ordering

rescission of the corporate drug policy among other remedies,

but, as allowed by New Jersey law,6 his complaint did not

demand a sum certain. Walmart and the affiliated corporation

– neither of which has citizenship in New Jersey7 – removed

the case to federal court, invoking the District Court’s diversity

6

See N.J. Ct. R. 4:5-2 (“If unliquidated money damages are

claimed in any court, other than the Special Civil Part, the

pleading shall demand damages generally without specifying

the amount.”).

7

The entity doing business as Walmart is Walmart Stores East,

LLC, which has as its sole member Walmart, Inc., a Delaware

corporation with a principal place of business in Bentonville,

Arkansas. The affiliated corporation, Sam’s East, Inc., is a

citizen of Arkansas by incorporation and by its principal place

of business. For purposes of this opinion, they are both

referred to as ‘Walmart.’

9

jurisdiction on the grounds that Zanetich was not a citizen of

the same states as Walmart and the amount in controversy

exceeded $75,000. See 28 U.S.C. §§ 1332(a)(1), 1441(a),

1446(a), (c). Neither Zanetich nor the District Court contested

the plausibility of Walmart’s statements about the amount in

controversy, so no evidence-based showing was required to

perfect removal, and the District Court properly exercised

subject matter jurisdiction over this case. See Dart Cherokee

Basin Operating Co. v. Owens, 574 U.S. 81, 89 (2014) (“[A]s

specified in [28 U.S.C.] § 1446(a), a defendant’s notice of

removal need include only a plausible allegation that the

amount in controversy exceeds the jurisdictional threshold.

Evidence establishing the amount is required by [28 U.S.C.]

§ 1446(c)(2)(B) only when the plaintiff contests, or the court

questions, the defendant’s allegation.”); cf. 14B Charles Alan

Wright, Arthur R. Miller & Edward H. Cooper, Federal

Practice and Procedure § 3703 (5th ed. 2023) (“A removing

defendant who seeks to establish that the amount in

controversy is greater than the jurisdictional requirement does

not automatically concede that it is recoverable.”).

Although both of Zanetich’s claims rest on the same

underlying fact – the rescission of his job offer based on his

positive marijuana test – they rely on different legal theories.

Count I depends on the legal conclusion that CREAMMA

contains an implied remedy for violations of its pre-

employment protections. Count II hinges on the applicability

of New Jersey’s public policy employment exception to the

rescission of a job offer based on a positive drug test for

cannabis.

Walmart moved to dismiss both counts for a failure to state

a claim upon which relief can be granted by arguing that

neither legal theory was viable. See Fed. R. Civ. P. 12(b)(6).

Its arguments persuaded the District Court, which granted the

motion and dismissed the case. See Zanetich v. Wal-Mart

10

Stores E., Inc., 2023 WL 3644813, at *4–10 (D.N.J. May 25,

2023).8

Through a timely notice of appeal of that final decision,

Zanetich invoked this Court’s appellate jurisdiction, see

28 U.S.C. § 1291, and he now contends that the District Court

erred as a matter of law in dismissing both claims.

IV. DISCUSSION

A Rule 12(b)(6) motion tests the legal sufficiency of a

complaint under the plausibility pleading standard. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Kedra v.

Schroeter, 876 F.3d 424, 440–41 (3d Cir. 2017). In its motion

to dismiss, Walmart did not argue that any of Zanetich’s

allegations should be disregarded as conclusory or speculative,

so they are taken as true and all reasonable factual inferences

are drawn in Zanetich’s favor. See Lutz v. Portfolio Recovery

Assocs., LLC, 49 F.4th 323, 327–28 (3d Cir. 2022). But even

under that favorable reading of the complaint, Walmart

contends that Zanetich does not state a claim for relief as a

matter of law. And if there is no version of facts under which

Zanetich could state a claim, then his complaint necessarily

fails the plausibility standard. Compare Conley v. Gibson,

355 U.S. 41, 45–46 (1957), abrogated by Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 556–57 (2007), with Iqbal, 556 U.S.

at 678, and Twombly, 50 U.S. at 556–57.

8

Although the District Court’s order did not indicate whether

the dismissal was with or without prejudice, under the “default

rule” for involuntary dismissals it was with prejudice, Papera

v. Pa. Quarried Bluestone Co., 948 F.3d 607, 610 (3d Cir.

2020) (citing Fed. R. Civ. P. 41(b)).

11

A. Count I Was Properly Dismissed Because

CREAMMA Does Not Imply a Remedy for

Job Applicants Who Fail Drug Tests for

Cannabis.

To create a private cause of action, a law must provide not

only a private right but also a private remedy. See Alexander

v. Sandoval, 532 U.S. 275, 286–87 (2001); see also Gonzaga

Univ. v. Doe, 536 U.S. 273, 290 (2002) (declining to infer a

private cause of action from a statute that did not contain

“rights-creating language”). The dividing line between those

two components of a private cause of action has not always

been well defined. At the beginning of the Republic, rights

were understood to necessarily imply corresponding remedies

under the “general and indisputable rule, that where there is a

legal right, there is also a legal remedy by suit or action at law,

whenever that right is invaded.” Marbury v. Madison, 5 U.S.

(1 Cranch) 137, 163 (1803) (quoting 3 William Blackstone,

Commentaries *23); see also Middlesex Cnty. Sewerage Auth.

v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 24 (1981)

(Stevens, J., concurring in judgment) (“Since the earliest days

of the common law, it has been the business of courts to fashion

remedies for wrongs.”). Under that view, it would be “a

monstrous absurdity in a well organized goverment [sic], [if]

there should be no remedy, although a clear and undeniable

right should be shown to exist.” Kendall v. United States ex

rel. Stokes, 37 U.S. 524, 624 (1838). Thus, when a violation

of the statutory right caused an injury to a member of the class

“for whose especial benefit the statute was enacted, the right to

recover the damages from the party in default [was] implied.”

Tex. & Pac. Ry. Co. v. Rigsby, 241 U.S. 33, 39 (1916). This

view prevailed even into the mid-twentieth century, extending

beyond implying a damages remedy to allow an inference of

“any available remedy” from a private statutory right. Bell v.

Hood, 327 U.S. 678, 684 (1946); see also J. I. Case Co. v.

Borak, 377 U.S. 426, 433 (1964) (“It is for the federal courts

‘to adjust their remedies so as to grant the necessary relief’

where federally secured rights are invaded.” (quoting Bell,

327 U.S. at 684)).

12

But as statutes became more complex and allowed for

enforcement by administrative agencies, the implication of a

private remedy for a violation of a statutory right became less

automatic and more nuanced. See Merrill Lynch, Pierce,

Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 377 (1982); see

also Middlesex Cnty., 453 U.S. at 24–25 (Stevens, J.,

concurring in judgment). For instance, the Supreme Court

resisted implying remedies for “general regulatory

prohibition[s] enacted for the benefit of the public at large.”

Merrill Lynch, 456 U.S. at 376. It also declined to imply a

remedy from a statutory right when there were already

“elaborate enforcement provisions” in place. Middlesex Cnty.,

453 U.S. at 14. “[T]he far better course,” the Supreme Court

remarked, was for Congress to expressly identify a private

remedy or the lack thereof in rights-creating statutes. Cannon

v. Univ. of Chi., 441 U.S. 677, 717 (1979).

Even so, private remedies for statutory rights could still be

implied – they just could no longer be presumed. That new

rule came about in Cort v. Ash, 422 U.S. 66 (1975), a case

originating from this Circuit. There, the Supreme Court –

persuaded by the dissenting opinion of Judge Aldisert9 –

refused to presume that a private remedy should be implied for

violations of federal criminal law. Id. at 78–79; see also

Middlesex Cnty., 453 U.S. at 25 (Stevens, J., concurring in

judgment) (explaining that Cort “cut back on the simple

common-law presumption” that private remedies were

implied). In place of that presumption, the Supreme Court

9

See Cort, 422 U.S. at 79 (“Every criminal statute is designed

to protect some individual, public, or social interest . . . . To

find an implied civil cause of action for the plaintiff in this case

is to find an implied civil right of action for every individual,

social, or public interest which might be invaded by violation

of any criminal statute. To do this is to conclude that Congress

intended to enact a civil code companion to the criminal code.”

(quoting Ash v. Cort, 496 F.2d 416, 428–29 (3d Cir. 1974)

(Aldisert, J. dissenting) (ellipsis in original))).

13

announced a four-factor test for evaluating whether a private

remedy could be implied from a federal statutory right. Cort,

422 U.S. at 78. The first and most important factor examined

whether the statute provided a special benefit to a particular

class of persons. Id.10 The other factors evaluated the specific

legislative intent for a remedy, the statute’s broad purposes,

and federalism concerns. Altogether, the Cort test consisted of

the following four considerations:

(1) whether the plaintiff is “one of the

class for whose especial benefit

the statute was enacted”;

(2) whether there is “any indication

of legislative intent, explicit or

implicit, either to create such a

remedy or to deny one”;

(3) whether it is “consistent with the

underlying purposes of the

legislative scheme to imply such a

remedy for the plaintiff”; and

(4) whether the cause of action has

been “traditionally relegated to

state law, in an area basically the

concern of the States, so that it

would be inappropriate to infer a

cause of action based solely on

federal law.”

10

See also Cannon, 441 U.S. at 690 n.13 (“Not surprisingly,

the right- or duty-creating language of the statute” – “where the

language of the statute explicitly conferred a right directly on

a class of persons that included the plaintiff in the case” – “has

generally been the most accurate indicator of the propriety of

implication of a cause of action.”).

14

Id. (quoting in the first instance Rigsby, 241 U.S. at 39).

Applying that test, the Supreme Court refused to imply a

private remedy for a violation of a federal criminal statute. Id.

at 80–85.

The Cort test was not particularly long-lived at the federal

level. As early as 1988, one Justice believed that it had been

effectively overruled. See Thompson v. Thompson, 484 U.S.

174, 189 (1988) (Scalia, J., concurring in judgment). And in

2001, the Supreme Court more formally narrowed the inquiry

for implying a private remedy to an analysis of statutory text

and structure. See Sandoval, 532 U.S. at 288. It reaffirmed

that text-and-structure approach a year later. See Gonzaga,

536 U.S. at 286. And by 2007, this Court had observed that

“[a]lthough Cort has never been formally overruled,

subsequent decisions have altered it virtually beyond

recognition.” Wisniewski v. Rodale, Inc., 510 F.3d 294, 299

(3d Cir. 2007).

Nevertheless, while the Cort test was in vogue, the New

Jersey Supreme Court addressed a question similar to the one

presented in Cort: whether a private remedy could be implied

from a penal law. See In re State Comm’n of Investigation,

527 A.2d 851, 852–54 (N.J. 1987). To resolve that issue, the

New Jersey Supreme Court used the Cort test as a guide, and

it adopted a modified version of that test for implying a remedy

from a state statutory right. Id. at 854. Using that modified

Cort test – consisting of the first three factors, but not the

fourth, as the identified federalism concerns are not pertinent

to a state statute – the New Jersey Supreme Court reached a

similar conclusion to the one in Cort: a private remedy could

not be implied from the penal statute. Id. at 854–56. Thus, like

the United States Supreme Court, New Jersey courts are

“reluctant to infer a statutory private right of action where the

[New Jersey] Legislature has not expressly provided for such

action.” R.J. Gaydos Ins. Agency, Inc. v. Nat’l Consumer Inc.,

773 A.2d 1132, 1142 (N.J. 2001). But, unlike the United States

Supreme Court, the New Jersey Supreme Court has not

15

replaced its modified Cort test with a text-and-structure

approach. See Jarrell v. Kaul, 123 A.3d 1022, 1029

(N.J. 2015); R.J. Gaydos, 773 A.2d at 1143; see also In re State

Comm’n of Investigation, 527 A.2d at 854.

Despite these meaningful jurisprudential differences, a

federal court sitting in diversity is obligated to apply state

substantive law, as determined by the choice-of-law rules of

the forum state. See Klaxon Co. v. Stentor Elec. Mfg. Co.,

313 U.S. 487, 494 (1941) (holding that “in diversity cases the

federal courts must follow conflict of laws rules prevailing in

the states in which they sit”); SodexoMAGIC, LLC v. Drexel

Univ., 24 F.4th 183, 204 (3d Cir. 2022). And with New Jersey

as the forum state, there is no dispute that its choice-of-law

rules would require the application of New Jersey substantive

law – as opposed to federal law or the substantive law of either

Delaware or Arkansas, where Walmart has citizenship.11

Under an assessment of New Jersey substantive law based on

a prediction of how its Supreme Court would rule, see Repola

v. Morback Indus., Inc., 934 F.2d 483, 489 (3d Cir. 1991), it is

appropriate to apply New Jersey’s modified Cort test to

determine whether a private remedy may be inferred from the

rights that CREAMMA established, see Borough of Longport

v. Netflix, Inc., 94 F.4th 303, 307 (3d Cir. 2024) (applying the

modified Cort test to ascertain whether the New Jersey Cable

Television Act implies a private remedy). That predictive

11

Even under a formal choice-of-law analysis, when the

conduct and the injury occur in the same state, New Jersey

presumes that the substantive law of that state will govern. See

P.V. ex rel. T.V. v. Camp Jaycee, 962 A.2d 453, 460

(N.J. 2008); see also Calabotta v. Phibro Animal Health Corp.,

213 A.3d 210, 218–19, 225–26 (N.J. Super. Ct. App.

Div. 2019); Restatement (Second) of Conflict of Laws

§ 146(d) (Am. Law Inst. 1971). Here, where both the conduct

and the injury occurred in New Jersey, there is no reason to

consider rebutting the presumptive application of New Jersey

substantive law.

16

judgment is informed, in part, by federal caselaw interpreting

the first three Cort factors because the New Jersey Supreme

Court and New Jersey intermediate appellate courts have relied

on federal cases in applying the modified Cort test. See In re

State Comm’n of Investigation, 527 A.2d at 854 (relying on

federal cases in applying New Jersey’s modified Cort test);

Miller v. Zoby, 595 A.2d 1104, 1108–09 (N.J. Super. Ct. App.

Div. 1991) (same).

Applying these principles to this case, Zanetich will have

an actionable claim under his first count if, under the modified

Cort test, CREAMMA implies a private remedy.

1. The First Cort Factor: Conferral of a

Special Benefit on a Particular Class

To satisfy the first Cort factor – conferral of a special

benefit on a particular class – a statute must, by the

“unmistakabl[e] focus” of its own text, benefit a “particular

class . . . whose welfare [the legislature] intended to further.”

California v. Sierra Club, 451 U.S. 287, 294 (1981); see also

Am. Tel. & Tel. Co. v. M/V Cape Fear, 967 F.2d 864, 870

(3d Cir. 1992) (declining to imply a right of action because

“the statute [did] not clearly and exclusively articulate a right

in that particular class of plaintiff”). A statute that functions as

a “general regulatory scheme” for the “benefit [of] the public

at large” does not confer a special benefit on a particular class.

Sierra Club, 451 U.S. at 297–98; see also Cort, 422 U.S. at 79–

80 (holding that “a bare criminal statute[] with absolutely no

indication that civil enforcement of any kind was available to

anyone” did not confer a special benefit on any particular

class); In re State Comm’n of Investigation, 527 A.2d at 853–

56 (holding that a statute criminalizing breaches of

confidentiality obligations in law enforcement investigations

did not confer a special benefit upon the subjects of the

investigation whose information was disclosed in violation of

the confidentiality provisions). Likewise, a statute that

provides a benefit – even one of great value – to some

incidental, unidentified class does not meet the special-benefit

17

standard. See Sierra Club, 451 U.S. at 294 (explaining that

interpreting “especial beneficiary” to mean “any person who

would be ‘especially harmed’ by” a violation of the act would

“make[] this factor meaningless”); Cort, 422 U.S. at 80

(rejecting an implied remedy when the protection of a

particular class was a “subsidiary purpose” of the legislation).

And even a statute that benefits a particular class does not

confer a special benefit when the benefit to that class is

subordinate to the one provided to another readily defined

class. See Rauch v. United Instruments, Inc., 548 F.2d 452,

458–59 (3d Cir. 1976) (refusing to imply a statutory remedy

for aircraft owners because the “principal beneficiaries” of the

statute were air travelers and airplane crews – not aircraft

owners); R.J. Gaydos, 773 A.2d at 1147 (holding that despite

a textual basis for identifying insurance agents as beneficiaries,

they were “not members of the class for whose special benefit

[the statute] was enacted” because the purpose of the statute

was “to benefit New Jersey auto insureds, not insurance

agents”); see also Jarrell, 123 A.3d at 1029–30 (holding that a

state statute requiring physicians to maintain malpractice

insurance did not confer a special benefit on patients injured

by noncompliant physicians).

Applied here, Zanetich must demonstrate that CREAMMA

specially benefits job applicants like himself who test positive

for cannabis use. But CREAMMA does not do that.

CREAMMA’s first employment protection prohibits

adverse employment actions because a person “does or does

not smoke, vape, aerosolize or otherwise use cannabis items.”

N.J. Stat. § 24:6I-52(a)(1) (emphasis added). By protecting

both users and non-users of cannabis, this provision sweeps

very broadly, as every member of the public is either a cannabis

user or a cannabis non-user. And without an unmistakable

textual focus on cannabis users in particular, this provision

does not confer a special benefit on any particular class. See

18

Cannon, 441 U.S. at 690–64; see also In re State Comm’n of

Investigation, 527 A.2d at 854.12

CREAMMA’s second protection shields employees from

adverse employment actions based solely on a positive drug

test for cannabis. See N.J. Stat. § 24:6I-52(a)(1). While that

provision may have an unmistakable textual focus on

employees with positive cannabis test results, the clause by its

own terms applies only to current employees – not prospective

employees. So, as a job applicant, Zanetich is outside of the

particular class that this protection may specially benefit.

For these reasons, CREAMMA does not confer a special

benefit on job applicants who test positive for cannabis, and

the first, most important Cort factor is not met here.

2. The Second Cort Factor: Legislative

Intent to Provide a Remedy

The second Cort factor examines the explicit or implicit

legislative intent to provide a remedy. See Cort, 422 U.S. at

78. The Cort test was formulated at a time when legislative

history was among the touchstones of reading statutes. See

Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 373–74 (2012). And in applying

its second factor, the Supreme Court considered primarily

legislative history. See, e.g., Merrill Lynch, 456 U.S. at 377;

Cannon, 441 U.S. at 694. Here, however, Zanetich identifies

no legislative history for CREAMMA that indicates an

12

Our dissenting colleague argues that the first Cort factor is

nonetheless satisfied because this provision benefits only the

employable public, not the entire public. But even that

distinction still leaves a very broad class – all legally

employable persons – such that this provision constitutes a

general regulatory scheme and not legislation with an

unmistakable focus on a particular class. See Jarrell, 123 A.3d

at 1029–30; R.J. Gaydos, 773 A.2d at 1147.

19

intention to provide a private remedy for a prospective

employer’s failure to hire a job applicant based on a positive

drug test for cannabis. At most, the legislative history states

that “an employer would not be permitted to refuse to hire or

employ a person, or discharge or take any adverse action

against an employee because that person or employee does or

does not use cannabis items.” Appropriations Committee

Report on A.21, Nov. 19, 2020, at 20 [https://perma.cc/63Z6-

R8VQ]. But that statement addresses the private rights

conferred by CREAMMA; it does not announce a legislative

intention to provide a private remedy for their violation.

The second Cort factor also allows for consideration of

implied legislative intent. See Cort, 422 U.S. at 78. Zanetich

contends that the lack of an alternative mechanism for

enforcement of CREAMMA’s employment protections

implies a legislative intent to provide remedy for those rights.

That argument fails on several levels.

Zanetich’s assertion overreads New Jersey precedent. It is

a near certainty that New Jersey courts will not regard the

second Cort factor as satisfied when there is an alternative

enforcement mechanism. See, e.g., R.J. Gaydos, 773 A.2d at

1148. But the inverse is not equally true. Rather, the absence

of an alternative enforcement mechanism does little to suggest

a legislative intention to provide a private remedy. It could be

that New Jersey simply did not intend to provide one. Applied

here, where there already two spheres of silence with respect

to a private remedy (the lack of a statutory remedial provision

and the absence of express legislative history), the additional

omission of an alternative enforcement mechanism for

CREAMMA’s employment protections does little, if anything,

to establish a legislative intent to create a private remedy.

Rather, the lack of an express statutory remedial provision and

the absence of legislative history are consistent with the

conclusion that the New Jersey Legislature did not intend to

create a private remedy.

20

Zanetich’s argument loses additional traction because

CREAMMA’s employment protections may be enforced by

alternative means. It is true that the provision Zanetich

identifies, which grants the Cannabis Regulatory Commission

jurisdiction over “any person who buys, sells, cultivates,

produces, manufactures, transports, or delivers any cannabis or

cannabis items within [New Jersey],” N.J. Stat. § 24:6I-34a,

does not seem to extend to all employers. But that provision is

not the sole source of the Commission’s authority. Other

provisions grant the Commission the power to “oversee[] the

development, regulation, and enforcement of activities

associated with the personal use of cannabis,” id. § 24:6I-

34(d)(1)(a), and “[t]o investigate and aid in the prosecution of

every violation of the statutory laws of this State relating to

cannabis and cannabis items and to cooperate in the

prosecution of offenders before any State court of competent

jurisdiction,” id. § 24:6I-34(b)(3). Through those other

provisions, the Commission’s jurisdiction extends to cannabis-

related employment matters. Consistent with that

understanding, the Commission issued its guidance document

about cannabis-related employment actions to “all employers.”

N.J. Cannabis Regul. Comm’n, Guidance on “Workplace

Impairment” (2022) [https://perma.cc/25WT-DZWP].

Zanetich emphasizes the lack of employment-related

enforcement actions by the Commission, but that does little to

satisfy the second Cort factor. Enforcement decisions are

discretionary, see Heckler v. Chaney, 470 U.S. 821, 838

(1985), and the absence of enforcement activity against

employers may reflect the Commission’s relative priorities

instead of a lack of legal authority to initiate such proceedings.

Thus, the Commission’s post-enactment enforcement inaction

is not particularly revealing of the pre-enactment intention of

the New Jersey Legislature.

In addition, none of the factual findings codified in

CREAMMA reveal a legislative intent to create a private

remedy for cannabis-related employment discrimination.

21

Those findings address primarily law enforcement and public

health concerns. See N.J. Stat. § 24:6I-32(d)–(o). And the sole

finding with respect to employment pertains to the negative

effect a prior marijuana arrest may have on a person’s job

prospects. See id. § 24:6I-32(n). That expression of legislative

sympathy for the effects of prior marijuana arrests lends

support to CREAMMA’s employment protections, but even

that statement does not reveal a legislative intent to create a

private remedy for cannabis-related employment

discrimination.

Finally, the far stronger inference from the legislative

silence regarding a private remedy for cannabis-related

employment discrimination is that the Legislature did not

intend to provide one. Although New Jersey voters

overwhelmingly supported amending the state Constitution to

permit the legalization and regulation of marijuana, the

Legislature in enacting CREAMMA did not provide a remedy

for violating that statute’s cannabis-related employment

protections. Rather, CREAMMA stated expressly that its

cannabis-related provisions should not be construed to “amend

or affect in any way any State . . . law pertaining to

employment matters.” Id. § 24:6I-55(a). Against that

backdrop, the lack of an express remedy is better understood

as a deliberate choice not to provide a remedy rather than an

oversight of an intended remedy. See R.J. Gaydos, 773 A.2d

at 1142 (explaining that “New Jersey courts [are] reluctant to

infer a statutory private right of action”); Burns ex rel. Burns

v. Care One at Stanwick, LLC, 258 A.3d 368, 376 (N.J. Super.

Ct. App. Div. 2021) (explaining that courts “assume the

Legislature is ‘thoroughly conversant with its own legislation

and the judicial construction of its statutes’” (quoting Brewer

v. Porch, 249 A.2d 388, 391 (N.J. 1969))).

That conclusion is reinforced by the New Jersey

Legislature’s comparative responsiveness in enacting

safeguards against other forms of employment discrimination.

For instance, as originally enacted in 1945, New Jersey’s Law

22

Against Discrimination prohibited employment discrimination

on the basis of “race, creed, color, and national origin or

ancestry” and provided an express private cause of action for

violations of those protections. N.J. Pub. L. No. 1945, ch. 169.

Since then, New Jersey has amended the statute nine times to

add fourteen protected classes. See N.J. Pub. L. No. 1962,

ch. 37 (liability for military service); N.J. Pub. L. No. 1970,

ch. 80 (marital status or sex); N.J. Pub. L. No. 1972, ch. 114

(physical disability); N.J. Pub. L. No. 1977, ch. 96

(nationality); N.J. Pub. L. No. 1981, ch. 185 (blood type and

hereditary cellular traits); N.J. Pub. L. No. 1992, ch. 146

(affectional or sexual orientation and familial status); N.J. Pub.

L. No. 1996, ch. 126 (genetic information); N.J. Pub. L.

No. 2006, ch. 100 (gender identity or expression); N.J. Pub. L.

No. 2013, ch. 220 (pregnancy). New Jersey separately created

causes of action for other forms of employment discrimination,

including discrimination based on tobacco use. See N.J. Stat.

§§ 34:6B-1, 34:6B-3 (authorizing a cause of action for

violations of the statutory prohibition on discrimination on the

basis of tobacco usage); see also id. §§ 34:19-3, 34:19-5

(creating a cause of action for violation of New Jersey

Conscientious Employee Protection Act, a whistleblower

statute); id. §§ 34:11-56.2, 34:11-56.8 (creating a cause of

action for violation of statute prohibiting gender-based pay

discrimination). But even with that statutory framework in

place and the repeated exercise of legislative willpower to

protect other classes, at no time – not even after the 2020

amendments to its Constitution – has New Jersey created an

express cause of action for employment discrimination based

on cannabis use. Accordingly, it is more likely that if the New

Jersey Legislature intended for CREAMMA to be privately

enforced, it would done so expressly, as it has in so many other

contexts, instead of “leav[ing] the matter to the happenstance

of future judicial construction.” R.J. Gaydos, 773 A.2d at 1144

(quoting Miller, 595 A.3d at 1108).

In sum, the second Cort factor is not satisfied here: there is

no express statement of a legislative intention to provide a

23

private remedy for cannabis-related employment

discrimination, and the inferences from the legislative silence

weigh strongly against implying such an intention.

3. The Third Cort Factor: Advancing the

Principal Purposes of CREAMMA

The third Cort factor examines whether implying a private

cause of action would further “the underlying purpose of the

legislative scheme.” Cannon, 441 U.S. at 703; see also Cort,

422 U.S. at 84 (examining whether the requested remedy

would advance “the primary congressional goal”). Here, the

New Jersey Legislature memorialized the three underlying

purposes of CREAMMA in statutory text. See N.J. Stat.

§ 24:6I-32(a)–(c). Yet, as explained below, none of those is

furthered by implying a private cause of action for rescission

of a job offer based on a failed cannabis test.

The first underlying purpose of CREAMMA was to

regulate cannabis “in a similar fashion to the regulation of

alcohol for adults.” Id. § 24:6I-32(a). But New Jersey does

not provide a private cause of action for employment

discrimination based on the consumption or non-consumption

of alcohol. Thus, for parity with alcohol regulation, a private

remedy for loss of employment based on cannabis use should

not be inferred.

The second stated purpose for CREAMMA was to “prevent

the sale or distribution of cannabis to persons under 21 years

of age.” Id. § 24:6I-32(b). But implying a private remedy for

rescission of a job offer based on a failed cannabis drug test

does not advance that purpose.

The third principal purpose also counsels against

recognizing a private remedy for employment related cannabis

discrimination. As codified, that purpose was “to eliminate the

problems caused by the unregulated manufacturing,

distribution, and use of illegal marijuana within New Jersey.”

Id. § 24:6I-32(c). But implying a cause of action for positive

24

cannabis use does not further that purpose, and it may actually

impede it. Were a cause of action to exist for a failed cannabis

test regardless of whether the cannabis used was legal or

illegal, courts would be protecting and compensating users of

illegal cannabis.

In sum, the third Cort factor provides no basis for inferring

a private remedy for CREAMMA’s cannabis-related

employment protections.

4. Balancing the Cort Factors

Ordinarily, once the Cort factors have been assessed

individually, they are weighed against each other to ascertain

whether a private remedy can be implied from a private

statutory right. See R.J. Gaydos, 773 A.2d at 1143 (instructing

courts to weigh Cort factors). But such balancing is not

necessary here because each of the Cort factors counsels

against implying a private remedy: (i) CREAMMA does not

specially benefit job applicants who fail cannabis drug tests;

(ii) there was not a legislative intent to imply a remedy for job

applicants who fail cannabis drug tests; and (iii) implying a

remedy for job applicants who fail cannabis drug tests is

inconsistent with CREAMMA’s stated purposes.13

13

In addition to each individual factor counseling against

implying a private remedy, their combined effect reinforces

this result. For instance, under Cort factor three, creating a

private right of action could perversely incentivize use of

unregulated cannabis. That fear comports well with the notion

that the Commission is responsible for enforcing

CREAMMA’s employment protections. As a state agency, the

Commission likely would not use its powers to vindicate the

employment rights of users of illegal cannabis. This mutually

reinforcing understanding of the Cort factors allows for the

enforcement powers Zanetich argues must exist, but without

the risk of perverse incentives that may arise from implying a

25

As a final effort to validate his first count, Zanetich argues

that regardless of the Cort test, New Jersey courts readily imply

remedies for employment statutes. His argument rests on three

cases, but those provide little help. The only case decided by

the New Jersey Supreme Court, Lally v. Copygraphics,

428 A.2d 1317 (N.J. 1981) (per curiam), recognized a

common-law cause of action for a “retaliatory firing

attributable to the filing of a workers’ compensation claim,” id.

at 1318. The rationale for that ruling was that the New Jersey

workers’ compensation statute prohibits retaliatory firings, and

so there must be a remedy because “[i]f the Legislature had

wanted to foreclose a judicial cause of action, it would have

done so expressly.” Id. at 1318–19. That conclusion fits nicely

within the pre-Cort jurisprudence in which a right was

presumed to create a remedy. See, e.g., Marbury, 5 U.S.

(1 Cranch) at 163. Indeed, Lally was decided before New

Jersey adopted the modified Cort test. See In re State Comm’n

of Investigation, 527 A.2d at 852–54. But with New Jersey’s

subsequent adoption of a modified Cort test, the rationale of

Lally for implying a remedy has lost its force. See R.J. Gaydos,

773 A.2d at 1143.

The same can be said of Zanetich’s reliance on Peper v.

Princeton University Board of Trustees, 376 A.2d 535 (N.J.

Super. Ct. App. Div. 1977), rev’d, 389 A.2d 465 (N.J. 1978).

In that case, which was reversed on other grounds, the

Appellate Division of the Superior Court of New Jersey relied

on an unequivocal statutory mandate proscribing sex-based

employment discrimination to allow a claim to proceed in

court. Id. at 539–40. But Peper has no persuasive force

because it too precedes New Jersey’s adoption of the modified

Cort test.

The final case that Zanetich invokes, Winslow v. Corporate

Express, Inc., 834 A.2d 1037 (N.J. Super. Ct. App. Div. 2003),

private remedy for violations of CREAMMA’s employment

protections.

26

is also distinguishable. The court in Winslow concluded that a

private cause of action could be implied for an employee and

against the employer for failure to provide updated notice of

the method for calculating the employee’s commission. Id. at

1042–43. But beyond citations to Lally and Peper, the only

authority that the court invoked for that proposition, Mulford

v. Computer Leasing, Inc., 759 A.2d 887 (N.J. Super. Ct. Law

Div. 1999), relied on two Cort factors – special benefit and

statutory purpose – albeit without attribution to Cort, id. at 891.

Thus, Mulford, and by extension Winslow, are best understood

as implicit applications of the modified Cort test, as opposed

to separate rules for an implied remedy in employment

disputes. And if doubts remained about New Jersey’s

dedication to Cort, they should have evaporated upon the New

Jersey Supreme Court’s subsequent reliance on the modified

Cort test. See Jarrell, 123 A.3d at 1029; R.J. Gaydos,

773 A.2d at 1143.

In sum, New Jersey remains committed to its modified Cort

test, and none of the factors under that test are met here.

Accordingly, the District Court did not err in dismissing

Count I of Zanetich’s claim.

B. New Jersey’s public policy exception to at-

will employment does not apply here.

Zanetich bases his second count on New Jersey’s common-

law public policy exception to at-will employment, first

recognized in Pierce v. Ortho Pharmaceutical Corp., 417 A.2d

505, 512 (N.J. 1980). For the reasons below, that exception

protects only employees – not job applicants – and thus it does

not encompass claims for failure to hire in violation of public

policy.

The New Jersey Supreme Court decided Pierce against the

backdrop of its common-law doctrine of at-will employment.

Under that doctrine, “in the absence of a contract, an employee

may be fired for any reason, be it good cause, no cause, or even

morally-wrong cause.” D’Agostino v. Johnson & Johnson,

27

Inc., 628 A.2d 305, 311 (N.J. 1993). The plaintiff in Pierce

was an at-will employee who, as a medical doctor subject to

the Hippocratic Oath, expressed concerns about her

employer’s work on the development of a new drug because

one of the ingredients, saccharin, was controversial. See

Pierce, 417 A.2d at 507–08. While her constructive discharge

would have been permissible under the at-will employment

doctrine, the doctor sought an exception to permit a claim of

termination in violation of public policy. See id. at 508; see

also Tartaglia v. UBS PaineWebber Inc., 961 A.2d 1167, 1180

(N.J. 2008) (explaining that the claim in Pierce was “in the

nature of constructive discharge”).

In considering that modification to its common law, the

New Jersey Supreme Court acknowledged that employees,

especially those subject to ethical or professional codes of

conduct, may be duty-bound by those codes to refrain from

performing certain tasks. Pierce, 417 A.2d at 512. It then

weighed the employers’ interests in “knowing they can run

their businesses as they see fit as long as their conduct is

consistent with public policy” against the employees’ interest

in “knowing they will not be discharged for exercising their

legal rights” and the public’s interests in “employment

stability” and in “discouraging frivolous lawsuits by

dissatisfied employees.” Id. at 511. After balancing those

interests, the New Jersey Supreme Court created an exception

to its at-will employment doctrine to permit at-will employees

to bring claims in contract and tort for wrongful termination

when the termination resulted from the employee’s compliance

with an expressly stated “clear mandate of public policy.” Id.

at 512; cf. id. (emphasizing that the exception does not extend

to an employee’s refusal to perform work based on the

employee’s “personal morals”). In ultimately resolving the

dispute, however, the New Jersey Supreme Court determined

that the terminated doctor did not qualify for the exception

because “the Hippocratic Oath does not contain a clear

mandate of public policy that prevented [her] from continuing

her research on [the new drug].” Id. at 514.

28

Over time, New Jersey courts have recognized other

violations of public policy that suffice for Pierce claims. See

Mehlman v. Mobil Oil Corp., 707 A.2d 1000, 1008–10

(N.J. 1998) (collecting cases); see also Ballinger v. Del. River

Port Auth., 800 A.2d 97, 109–10 (N.J. 2002). But each of

those instances has involved claims for wrongful termination

brought by former employees, not failure-to-hire claims

brought by job applicants.14 Thus, as articulated in Pierce, the

exception allows only claims by employees: “an employee has

a cause of action for wrongful discharge when the discharge is

contrary to a clear mandate of public policy.” Pierce, 417 A.2d

at 512 (emphasis added).

Finally, a federal court’s prediction of state law also

requires a sensitivity “to the doctrinal trends of the state . . .

and the policies which inform[ed] the prior adjudication[] by

the state courts.” Zamboni v. Stamler, 847 F.2d 73, 81 (3d Cir.

1988) (alterations in original) (quoting Becker v. Interstate

Props., 569 F.2d 1203, 1206 (3d Cir. 1977)). Even so, there is

no realistic likelihood that the New Jersey Supreme Court

would expand Pierce to permit failure-to-hire claims by

prospective employees. Any expansion of Pierce to cover

prospective employees would require a rebalancing of the

relevant interests. See MacDougall v. Weichert, 677 A.2d 162,

167 (N.J. 1996) (emphasizing that the Pierce exception was

recognized “only after balancing the interests of the employee,

the employer, and the public”); Hennessey v. Coastal Eagle

Point Oil Co., 609 A.2d 11, 20 (N.J. 1992) (“A ‘clear mandate

of public policy’ must be one that on balance is beneficial to

the public.”). Under such a rebalancing, at least one of the

interests that favored recognition of the Pierce exception – the

public’s interest in employment stability – would not be

present because preventing firings promotes employment

14

See, e.g., Ballinger, 800 A.2d at 109; Mehlman, 707 A.2d at

1001–02; Barratt v. Cushman & Wakefield of N.J., Inc.,

675 A.2d 1094, 1098 (N.J. 1996); Young v. Schering Corp.,

660 A.2d 1153, 1155 (N.J. 1995) (all current employees).

29

stability while preventing the rescission of job offers does not.

In addition, on two occasions, New Jersey courts have

considered and rejected extending Pierce to failure-to-hire

claims. See Sabatino v. Saint Aloysius Par., 672 A.2d 217, 240

(N.J. Super. Ct. App. Div. 1996) (holding that the Pierce

exception did not extend to failure-to-hire claims brought by a

prospective employee); see also Lerner v. City of Jersey City,

2019 WL 1468735, at *4 (N.J. Super. Ct. Apr. 2, 2019)

(“[F]ailure to hire is not a cause of action that is recognized

under Pierce.” (citing Sabatino, 672 A.2d at 240)). On another

occasion, the New Jersey Supreme Court has declined to

extend Pierce claims to independent contractors for the same

reason: they lack the same interest in employment stability as

current employees. See MacDougall, 677 A.2d at 166

(“[Pierce] is designed to protect employees . . . . It does not

protect independent contractors[.]”).

For further perspective, federal courts have characterized

the Pierce exception as covering claims brought by employees

or former employees – not job applicants. See Conoshenti v.

Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 149 (3d Cir. 2004)

(“The Pierce doctrine is about wrongful discharge.”);

Lawrence v. Nat’l Westminster Bank of N.J., 98 F.3d 61, 73 (3d

Cir. 1996) (“[T]he paradigmatic dismissal giving rise to a

public policy cause of action is the termination of an employee

in retaliation for the employee’s refusal to act contrary to

public policy.”); cf. Zamboni, 847 F.2d at 82 (acknowledging

that the Pierce doctrine may apply to claims by employees

wrongfully demoted or suspended). And New Jersey courts

have favorably cited those cases for their interpretation of

Pierce. See, e.g., Mehlman, 707 A.2d at 1009 (citing Zamboni,

874 F.2d at 83); see also Cluney v. Mon-Oc Fed. Credit Union,

2006 WL 2128985, at *18 (N.J. Super. Ct. App. Div. 2006)

(citing Conoshenti, 364 F.3d at 148–50).

For these reasons, New Jersey has not permitted and likely

would not permit Zanetich to pursue a claim for failure-to-hire

in violation of public policy.

30

C. Zanetich’s Remaining Challenges Lack

Merit.

Zanetich raises two additional arguments. He contends that

the District Court, upon dismissing his complaint, should have

allowed him to make curative amendments. He also seeks

certification of the two dispositive issues to the New Jersey

Supreme Court. Neither of those arguments succeeds.

1. The District Court Was Not

Required to Allow a Curative

Amendment.

Zanetich asserts that because this is a civil rights case, the

District Court was required to dismiss his complaint without

prejudice and allow an opportunity for curative amendment.

But this Court’s willingness to permit an opportunity for

curative amendment is limited to cases involving federally

recognized civil rights. See Fletcher-Harlee Corp. v. Pote

Concrete Contractors, Inc., 482 F.3d 247, 251, 253 (3d Cir.

2007); Dist. Council 47, Am. Fed’n of State, Cnty. & Mun.

Emps. v. Bradley, 795 F.2d 310, 316 (3d Cir. 1986); but cf.

Iqbal, 556 U.S. at 687 (not requiring an opportunity to amend

in a dismissed federal civil rights case); Leatherman v. Tarrant

Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163,

168–69 (1993) (ruling that federal courts could not impose a

heightened pleading standard in conflict with the Federal Rules

of Civil Procedure for federal civil rights cases). And in this

case, Zanetich seeks to vindicate his civil rights under New

Jersey law, not federal law. Thus, the District Court was not

under an obligation to allow an opportunity for curative

amendment. See LabMD, Inc. v. Bobak, 47 F.4th 164, 192–93

(3d Cir. 2022) (explaining that the rule allowing an opportunity

for curative amendment does not apply outside the context of

a federal civil rights case).

31

2. This Case Does Not Merit

Certification to the New Jersey

Supreme Court.

Zanetich also requests that the challenges to the viability of

both of his claims be certified to the New Jersey Supreme

Court. See 3d Cir. L.A.R. 110.1 (allowing certification of

questions to state supreme courts that allow such certification);

N.J. R. App. Prac. 2:12A-1 (permitting the New Jersey

Supreme Court to accept certified questions from the Third

Circuit). But certifying an issue to a state supreme court is an

act of judicial discretion, see 3d Cir. L.A.R. 110.1, and here

none of the common considerations associated with the

exercise of that discretion counsels strongly in favor of

certification.

One of those considerations is the likelihood of resolving

an uncertain legal issue. See United States v. Defreitas,

29 F.4th 135, 141 (3d Cir. 2022). But here, neither question

suffers from a high degree of uncertainty. For the first issue,

New Jersey unequivocally uses a modified Cort test for

ascertaining whether a state statute implies a private remedy,

see R.J. Gaydos, 773 A.2d at 1143, and application of that test

is straightforward. For the second issue, New Jersey state

courts have not indicated any willingness to extend the Pierce

exception to failure-to-hire claims by job applicants. See

Sabatino, 672 A.2d at 240. Thus, if instead of being removed

to federal court, this case would have remained in the New

Jersey court system, it is unlikely that the reasoning for the

decision or the outcome would be different. Accordingly, the

degree of uncertainty is not great enough to justify

certification.

Another common consideration in the certification decision

is the importance of the question to be certified. See Defreitas,

29 F.4th at 142. The issues here, however, do not involve

questions of state constitutional law, nor are they particularly

transcendental. The first question is one of statutory

construction localized to CREAMMA. The second issue seeks

32

to allow a claim that has been the subject of very few,

seemingly only one, reported New Jersey state-court decision

in the past forty-plus years. See Sabatino, 672 A.2d at 240; cf.

Lerner, 2019 WL 1468735, at *4. For these reasons, if this

case would have remained in the state-court system, it is

unlikely that the New Jersey Supreme Court would exercise

discretionary jurisdiction over a petition to review either of the

two issues on which certification is sought. See N.J. Ct. R.

2:12-4 (explaining that review by Supreme Court of New

Jersey is granted only if the issue is of “general public

importance” or the appellate decision conflicts with other

precedent).

Considerations of judicial economy also disfavor

certification. See Defreitas, 29 F.4th at 142. The certification

process takes additional time. And that time would not be well

spent if the New Jersey Supreme Court declines certification.

But even if the New Jersey Supreme Court were to accept

certification, as helpful as its decision may be, it would likely

rest on principles that have been known for decades: New

Jersey uses a modified version of the Cort test, and New Jersey

courts have not exhibited any willingness to extend the Pierce

exception to include claims by job applicants. So, while

authoritative statements of state law are always welcome, it is

unnecessary to delay resolution of these issues in favor of the

possibility of certification, which does not appear to be an

efficient use of the time and other resources of the Justices of

the New Jersey Supreme Court.

V. CONCLUSION

For the foregoing reasons, we will affirm the District

Court’s judgment.

33

FREEMAN, Circuit Judge, concurring in part and dissenting

in part.

In 2020, New Jersey citizens voted to amend their State

Constitution to legalize the recreational use of marijuana. The

month after that constitutional amendment took effect, the New

Jersey legislature enacted the Cannabis Regulatory,

Enforcement Assistance, and Marketplace Modernization Act

(CREAMMA). CREAMMA regulates marijuana

manufacture, sales, personal use, and consumer protections in

New Jersey. As relevant here, it prohibits employers from

refusing to hire job applicants solely due to their personal use

of marijuana. However, CREAMMA does not expressly

permit a prospective employee who is not hired because of

cannabis use to seek redress in court. In the absence of such

an express cause of action, we must determine whether the

statute contains an implied cause of action.

To do so, we apply New Jersey law. Because New

Jersey’s Supreme Court has not addressed this precise issue,

we must predict how it would rule. Fortunately, several New

Jersey authorities guide our path. Following that path, I predict

that the New Jersey Supreme Court would discern an implied

cause of action for failure to hire in violation of CREAMMA.

The District Court concluded otherwise, and the

majority of this Court does the same (albeit for different

reasons). I read the New Jersey authorities differently. At a

minimum, I would certify this question of law to the New

Jersey Supreme Court—the “most appropriate forum” to weigh

the public policy interests underlying CREAMMA’s

employment protections. See United States v. Defreitas, 29

1

F.4th 135, 142 (3d Cir. 2022). Thus, I respectfully dissent from

Sections IV.A and IV.C.2 of the majority opinion.

Additionally, while I concur in the majority’s

conclusion that the District Court had diversity jurisdiction to

hear this case, I reach that conclusion without including

punitive damages in the amount in controversy. Walmart bears

the burden of proving jurisdiction. And, contrary to the

jurisdictional statements it made in its notice of removal,

Walmart now asserts that punitive damages are unavailable to

Zanetich as a matter of New Jersey law. Unsurprisingly,

Zanetich disagrees. But we need not resolve that dispute

because this matter satisfies the amount-in-controversy

requirement even without punitive damages. For the benefit of

future cases, I explain how I reach that conclusion where the

amount in controversy is based on a prospective employee’s

relatively modest hourly wage.

I

28 U.S.C. § 1332(a) restricts a federal district court’s

diversity jurisdiction to “civil actions where the matter in

controversy exceeds the sum or value of $75,000.” And

“federal diversity jurisdiction is generally determined based on

the circumstances prevailing at the time the suit was filed.”

Auto-Owners Ins. Co. v. Stevens & Ricci, Inc., 835 F.3d 388,

395 (3d Cir. 2016) (citation omitted); Angus v. Shiley Inc., 989

F.2d 142, 145 (3d Cir. 1993) (determining the amount in

controversy based on the allegations in a complaint that was

later removed to federal court).

When determining whether the amount in controversy

exceeds $75,000, the Court “generally accept[s] a party’s good

2

faith allegation of the amount in controversy,” Columbia Gas

Trans. Corp. v. Tarbuck, 62 F.3d 538, 541 (3d Cir. 1995),

“unless it appears to a legal certainty that plaintiff was never

entitled to recover the jurisdictional amount,” Kaufman v.

Allstate, 561 F.3d 144, 151 (3d Cir. 2009). The “party who

urges jurisdiction on a federal court bears the burden of proving

that jurisdiction exists.” Boyer v. Snap-On Tools Corp., 913

F.2d 108, 111 (3d Cir. 1990).

This case began in June 2022 when Zanetich sued

Walmart in state court. He sought back pay, front pay, and

punitive damages for his alleged harms, but he did not specify

the amount in controversy.

Walmart removed the matter to federal court in

September 2022 and asserted federal jurisdiction based on the

parties’ diversity of citizenship. It in notice of removal, it

alleged that, together, Zanetich’s demands for front pay, back

pay, and punitive damages satisfy the amount-in-controversy

requirement. First, it calculated back pay of approximately

$24,000 as of the date of removal. (It relied on Zanetich’s offer

letter providing a start date of February 7, 2022, and a salary

of $19.85 per hour for a 40-hour work week.) Second, it stated

that Zanetich’s front-pay demand could exceed the amount of

back pay. By way of example, it stated that front pay

calculated for one year would exceed $41,000. Third, it

asserted that Zanetich’s demand for punitive damages placed

even more money in controversy, resulting in an amount over

$75,000.

Later, in a letter brief to us, Walmart argued that

punitive damages are unavailable to Zanetich. It invoked our

case law holding that punitive damages are not included in the

3

amount-in-controversy analysis where they are “patently

frivolous and without foundation,” such as when “they are not

permitted under state substantive law.” Huber v. Taylor, 532

F.3d 237, 244 (3d Cir. 2008) (cleaned up). It also cited New

Jersey law stating that punitive damages are available only

where the plaintiff proves his harm was caused by actions the

defendant took with malice or wanton and willful disregard of

foreseeable harm. N.J. Stat. Ann. § 2A:15-5.12. According to

Walmart, nothing in Zanetich’s complaint plausibly satisfies

this standard.

For the purposes of our jurisdictional analysis, I accept

Walmart’s current position that punitive damages are

unavailable. But the amount in controversy plausibly exceeds

$75,000 based on back pay and front pay alone.

Although Auto-Owners guides us to assess the

circumstances “at the time of the complaint’s filing,” 835 F.3d

at 396, the back-pay calculation is not limited to lost wages that

had accrued through June 2022 when Zanetich filed his

complaint.1 Nor is that calculation limited to lost wages

through the date when Walmart removed this case to federal

court. See Angus, 989 F.2d at 145. Rather, we consider the

amount of back pay Zanetich plausibly could accrue between

his would-be start date at Walmart and a judgment in his favor.

See Foley v. Devaney, 528 F.2d 888, 889 n.1 (3d Cir. 1976)

(per curiam) (deeming the amount in controversy “to exceed

$10,000 although the claimed benefits do not yet total that

1

“Front pay refers to future lost wages accruing after a jury’s

verdict, whereas back pay refers to lost wages already accrued

as of that date.” Donelson v. Dupont Chambers Works, 20

A.3d 384, 388 n.9 (N.J. 2011).

4

sum”) (citing Aetna Cas. & Surety Co. v. Flowers, 330 U.S.

464 (1947); Cuevas v. Wentworth Grp., No. A-3079-11T3,

2014 WL 4494166, at *23 (N.J. Super. Ct. App. Div. Sept. 15,

2014) (“Back pay is measured from the date of discharge to the

date of the verdict” (citing Gimello v. Agency Rent-A-Car Sys.,

594 A.2d 264, 279 (N.J. Super. Ct. App. Div. 1991))). We also

consider the front pay Zanetich plausibly could win if he

prevails. See Donelson, 20 A.3d at 388 n.9 (“[f]ront pay refers

to future lost wages accruing after a jury’s verdict”).2

On this record, and given the uncertain amount of time

for which Zanetich could be entitled to back and front pay, I

cannot say with legal certainty that the amount in controversy

from future damages was below § 1332(a)’s threshold when

Zanetich filed his complaint.

2

At least three of our sister circuits consider damages in this

same way when assessing the amount-in-controversy

requirement. See Chavez v. JP Morgan Chase & Co., 888 F.3d

413, 417 (9th Cir. 2018) (“If a plaintiff claims at the time of

removal that her termination caused her to lose future wages,

and if the law entitles her to recoup those future wages if she

prevails, then there is no question that future wages are ‘at

stake’ in the litigation. . . . That the amount in controversy is

assessed at the time of removal does not mean that the mere

futurity of certain classes of damages precludes them from

being part of the amount in controversy.”); Ashford v.

Aeroframe Servs., LLC, 96 F.4th 783, 797 n.8 (5th Cir. 2024)

(concluding that, “although past wages due may be negligible,

future lost wages [and] future benefits lost” can satisfy the

amount in controversy) (cleaned up); Andrews v. E.I. Du Pont

De Nemours & Co., 447 F.3d 510, 515 (7th Cir. 2006)

(including “lost wages (past and future)” when assessing the

amount in controversy).

5

II

“Our role in diversity cases is to apply state law.”

Sheridan v. NGK Metals Corp., 609 F.3d 239, 253 (3d Cir.

2010). Because we lack “a definitive ruling” by the New

Jersey Supreme Court on the issue in this case, “we must

predict how that court would rule if faced with the issue.”

Meyer v. Cuna Mut. Ins. Soc., 648 F.3d 154, 164 (3d Cir. 2011)

(citation omitted). We make that prediction by “look[ing] to

decisions of state intermediate appellate courts . . . as well as

to analogous decisions, considered dicta, scholarly works, and

any other reliable data tending convincingly to show how the

highest court in the state would decide the issue at hand.” Id.

(cleaned up).

Although “New Jersey courts have been reluctant to

infer a statutory private right of action where the Legislature

has not expressly provided for such action,” they have an

established method for discerning when it is appropriate to do

so. R.J. Gaydos Ins. Agency, Inc. v. Nat’l Consumer Ins. Co.,

773 A.2d 1132, 1143 (N.J. 2001). They consider “whether: (1)

plaintiff is a member of the class for whose special benefit the

statute was enacted; (2) there is any evidence that the

Legislature intended to create a private right of action under

the statute; and (3) it is consistent with the underlying purposes

of the legislative scheme to infer the existence of such a

remedy.” Id. And when they weigh these factors, their

“primary goal has almost invariably been a search for the

underlying legislative intent.” Id. (citation omitted).

The New Jersey Supreme Court adopted these factors

from the United States Supreme Court’s decision in Cort v.

Ash, 422 U.S. 66 (1975). See R.J. Gaydos., 773 A.2d at 1143.

6

As the majority opinion details, Cort no longer governs federal

law on implied causes of action. Maj. Op. at 13–16. Federal

courts instead look to the text and structure of the statute. Id.

at 15. But that is of no moment here because “the essence of

diversity jurisdiction is that a federal court enforces State law

and State policy.” DiAnoia Eatery, LLC v. Motorists Mut. Ins.

Co., 10 F.4th 192, 209 (3d Cir. 2021). Were it otherwise, we

would undermine the Erie doctrine, “which requires federal

courts to treat diversity claims so as to discourage forum

shopping and to reach results identical to the state courts.”

Edelson v. Soricelli, 610 F.2d 131, 135 (3d Cir. 1979).3

My examination of New Jersey authority leads me to

predict that the New Jersey Supreme Court would recognize an

implied private right of action for Zanetich to enforce

CREAMMA’s employment protections.

A. Factor One

New Jersey’s first implied-private-right-of-action factor

asks whether “plaintiff is a member of the class for whose

3

The District Court stated that its analysis of the implied-

private-right-of-action question “is guided by federal courts’

reluctance to interpret a state statute to create a private right of

action where a private right of action is not expressly stated in

the statute.” Zanetich v. Wal-Mart Stores East, Inc., No. 1:22-

cv-05387, 2023 WL 3644813, at *5 (D.N.J. May 25, 2023)

(emphasis added). But when exercising diversity jurisdiction,

federal courts have no more or less reluctance to find an

implied private right of action than the state’s courts have. We

must apply the relevant state’s substantive law with the goal of

rendering the judgment the state’s courts would have entered

but for the removal to federal court.

7

special benefit the statute was enacted.” R. J. Gaydos, 773

A.2d at 1143. Here, Zanetich sued under CREAMMA’s

employment-protection provision. The relevant text states that

“[n]o employer shall refuse to hire or employ any person or

shall discharge from employment or take any adverse action

against any employee with respect to compensation, terms,

conditions, or other privileges of employment because that

person does or does not smoke, vape, aerosolize or otherwise

use cannabis items . . . .” N.J. Stat. Ann. § 24:6I-52(a)(1).4 So

it benefits any person who has suffered a refusal to hire or any

employee who has suffered an adverse employment action

because of use or nonuse of cannabis.

Zanetich alleges in his complaint that Walmart refused

to hire him due to his use of cannabis. Taking this well-pleaded

allegation as true, Zanetich is a member of the class for whose

special benefit the statute was enacted.

The majority concludes otherwise. It reasons that this

provision was not enacted to protect people like Zanetich

because it “protect[s] both users and non-users of cannabis,” so

it “sweeps very broadly, as every member of the public is either

a cannabis user or a cannabis non-user.” Maj. Op. at 18. But

that reasoning elides key language in the statute.

CREAMMA’s employment protection applies to any person

whom an employer “refuse[s] to hire or employ . . . or . . .

discharge[s] from employment or take[s] any adverse action

4

Elsewhere, CREAMMA clarifies that it does not prevent

employers from “maintain[ing] a drug-and alcohol-free

workplace or require an employer to permit or accommodate

the use” or consumption of cannabis “or intoxication by

employees during work hours.” N.J. Stat. Ann. § 24:6I-

52(b)(1)(a).

8

against” because of cannabis use or nonuse. N.J. Stat. § 24:6I-

52(a)(1). That is a select class: it includes only people who

have been denied employment because of cannabis use or

nonuse, or whose employment has been adversely affected

because of cannabis use or nonuse. It does not include the

countless people whose cannabis use or nonuse has led to no

adverse effects on their employment or prospective

employment.

CREAMMA’s legislative history confirms that its

employment protection was intended to benefit a limited class

of people that includes Zanetich. See Jarrell v. Kaul, 123 A.3d

1022, 1030 (N.J. 2015) (consulting legislative history to

discern whether the legislature intended to imply a cause of

action). According to the New Jersey Assembly’s

Appropriations Committee, CREAMMA provides “consumer

and employee protections” designed for “individuals” who face

a “penalty in any manner, or deni[al of] any right or privilege,

including but not limited to . . . disciplinary action by a

business . . . solely for engaging in conduct with respect to

personal use cannabis activities as permitted under

[CREAMMA].” NJ Assemb. Approp. Comm. Statement,

220th Legislature, re A.B. No. 21, Jan. 22, 2021 (emphasis

added).

This conclusion is further supported by a New Jersey

appellate court decision. In Winslow v. Corporate Express,

Inc., New Jersey’s intermediate appellate court addressed

whether the state’s Wage Payment Law contains an implied

private cause of action. 834 A.2d 1037, 1043 (N.J. Super. Ct.

App. Div. 2003). That law required an employer to provide

notice before changing pay rates. Id. at 1041–42. The court

determined that “employees are the obvious special

9

beneficiaries” of that law. Id. at 1043. It also noted that, in the

absence of an express cause of action, New Jersey “courts have

readily found an implied private right of action in statutes

enacted to protect employees from wrongful conduct by

employers.” Id. at 1043. As the majority rightly notes, the

Winslow court reached this conclusion through an “implicit

application[] of the modified Cort test,” as adopted by the New

Jersey Supreme Court. Maj. Op. at 27. And the class protected

by the Wage Payment Law in Winslow is broader than the class

protected by CREAMMA’s employment protection. See Maj.

Op. at 18–19 (opining that the class at issue here is too broad

to satisfy the first implied-private-cause-of-action factor).

Instead of relying on the numerous federal court

decisions discussed in the majority opinion, see Maj. Op. at

17–19, I am guided by the text of CREAMMA’s employment

provision and New Jersey authority. Those sources persuade

me that CREAMMA’s employment provision was created to

protect a class of people that includes Zanetich.

B. Factor Two

The second factor asks whether “there is any evidence

that the Legislature intended to create a private right of action

under the statute.” R.J. Gaydos, 773 A.2d at 1143. In seeking

the legislature’s intent, we must be mindful that the New Jersey

Supreme Court has found a “clear legislative intent to construe

CREAMMA and its companion bills broadly and robustly so

as to achieve their remedial purposes.” State v. Gomes, 288

A.3d 825, 841 (N.J. 2023); Young v. Schering Corp., 660 A.2d

1153, 1158 (N.J. 1995) (“Where the Legislature’s intent is

remedial, a court should construe a statute liberally”).

10

On the same day that the legislature enacted

CREAMMA (including the employment protection at issue in

this case), it enacted a separate employment protection

forbidding any current or potential employer from making an

adverse employment decision based solely on an applicant’s

prior marijuana arrest, charge, conviction, or adjudication of

delinquency. N.J. Stat. Ann. § 34:6B-21 (hereafter “Prior

Marijuana Prosecution Law”). The legislature specified that

“nothing set forth in this section shall be construed” as

“authorizing a private cause of action by an aggrieved person”

alleging a violation of the Prior Marijuana Prosecution Law’s

employment protection. N.J. Stat. Ann. § 34:6B-21(c).

The legislature’s express foreclosure of a private cause

of action under the Prior Marijuana Prosecution Law—but not

for CREAMMA’s employment-protection provision enacted

that very day—is telling. It mirrors the circumstances in

Coleman v. Martinez, 254 A.3d 632 (N.J. 2021). Coleman

involved a New Jersey statute immunizing licensed clinical

social workers from suit. Id. at 647. When a non-clinical

social worker sought immunity under that statute, the New

Jersey Supreme Court observed that the legislature passed two

different statutes during the same legislative session: one

concerned clinical social workers and the other concerned non-

clinical social workers. Id. Based on the proximity of those

legislative actions, the court remarked, “[W]e assume that the

legislature knew precisely what it was doing when it” extended

immunity to one group and not the other. Id. “Indeed, statutes

that deal with the same matter or subject should be read in pari

materia and construed together as a unitary and harmonious

whole[,] . . . especially . . . when the statutes in question were

passed in the same session.” Id. (cleaned up). It concluded,

“Had the legislature intended to confer immunity on licensed

11

social workers, it would have stated so, and if the failure to

provide immunity to social workers was an oversight, any

corrective measure must be taken by the Legislature.” Id.

Applying this principle here, I assume the legislature

knowingly foreclosed a private cause of action under the Prior

Marijuana Prosecution Law’s employment protections and

opted—on that same day—not to do so for CREAMMA’s

similar protections.

Further, when assessing whether the legislature implied

a cause of action, the New Jersey Supreme Court and Appellate

Division often invoke the principle that “[i]f the legislature had

wanted to foreclose a judicial cause of action, it would have

done so expressly.” Lally v. Copygraphics, 428 A.2d 1317,

1319 (N.J. 1981); Young v. Schering Corp., 660 A.2d 1153,

1159 (N.J. 1995) (quoting this statement from Lally in a

wrongful discharge case); Campione v. Adamar of New Jersey,

714 A.2d 299, 309 (N.J. 1998) (“The absence of any express

provision for a cause of action[,] . . . however, does not

necessarily mean that the Legislature intended that no such

actions should exist”); Boldt v. Corresp. Mgmt., Inc., 726 A.2d

975, 982 (N.J. Super. Ct. App. Div. 1999) (“If the Legislature

intended to foreclose plaintiffs . . . from seeking the relief

sought here, it would have explicitly limited the availability of

that remedy or relief.” (citing Lally, 428 A.2d 1317); Muise v.

GPU, Inc., 753 A.2d 116, 164 (N.J. Super. Ct. App. Div. 2000)

(holding “a court can consider all judicial remedies” and “a

legislative intent to defeat them will be inferred only if the

Legislature has explicitly limited the availability of that

remedy or relief” (citing Campione, 714 A.2d 299)).

12

Even Walmart acknowledges that the New Jersey

Supreme Court “seemingly appl[ied] a presumption in favor of

implied causes of action” in Lally. Walmart Br. at 34. But

Walmart argues (and the majority agrees) that CREAMMA

lacks an implied private cause of action because the statute

contains other enforcement mechanisms, including potential

regulatory action by the Cannabis Regulatory Commission

(“CRC”). Id.; Maj. Op. at 21.

Granted, the New Jersey Supreme Court has stated that,

“[w]hen the Legislature has expressly created specific

remedies, a court should always hesitate to recognize another

unmentioned remedy.” Jarrell v. Kaul, 123 A.3d 1022, 1030

(N.J. 2015) (emphasis added). But I discern no express

specific remedy for violations of this CREAMMA

employment protection. As the majority acknowledges, the

CRC’s “jurisdiction, supervision, duties, functions, and powers

. . . extend to any person who buys, sells, cultivates, produces,

manufactures, transports, or delivers any cannabis or cannabis

items within this State.” N.J. Stat. Ann. § 24:6I-34(a).

Walmart participates in none of those activities. So the

legislature has not expressly empowered the CRC to remedy

Walmart’s violation of CREAMMA’s employment protection.

And although the CRC has the power “[t]o investigate and aid

in the prosecution of every violation of the statutory laws of

this State relating to cannabis,” N.J. Stat. Ann. § 24:6I-

34(b)(3), that power only extends within the CRC’s

jurisdiction, id. at 24:6I-34(b) (listing what “[t]he duties,

functions and powers of the commission shall include”).

Again, that jurisdiction does not extend to Walmart.

The CRC’s own interpretation of CREAMMA accords

with mine. The CRC explains its function as “writing and

13

enforcing the regulations that direct the sales, purchases, and

business activities related to cannabis in New Jersey.”

Cannabis Regulatory Commission, Frequently Asked

Questions, available at https://perma.cc/M36U-GXLU. That

includes “impos[ing] fines or other sanctions on licensed

cannabis business[es] that violate regulations.” Id.5 But the

CRC “does not perform any law enforcement duties or regulate

unpermitted or unlicensed entities in any way[.]” Id. It is

undisputed that Walmart is not permitted or licensed to have a

cannabis business in New Jersey. Therefore, the CRC’s

position is that it does not enforce any laws against Walmart.

Because the New Jersey Supreme Court “places great weight

on the interpretation given to a statute by the agency charged

with its enforcement,” Clowes v. Terminix Intern., Inc., 538

A.2d 794, 803 (N.J. 1988), I cannot agree with the majority’s

view that the CRC’s powers to investigate and to aid

prosecution extend to Walmart’s employment actions.6

5

A licensed cannabis business is “a person or entity registered

to do business in New Jersey that holds a conditional or annual

cannabis business license or a testing laboratory license.” N.J.

Admin. Code § 17:30-1.2.

6

Even if the CRC’s jurisdiction extended to Walmart’s

conduct in this case, I disagree that this would end the inquiry

on the legislative-intent factor. See Maj. Op. at 20 (opining

that there is “near certainty” that New Jersey courts would

determine that the presence of an alternative enforcement

mechanism resolves the second factor). Although New Jersey

courts hesitate to recognize another unmentioned remedy, that

hesitation can yield to “strong indicia of a contrary legislative

intent.” Jarrell, 123 A.3d at 1030 (citation omitted). And New

Jersey courts have recognized implied private causes of action

14

In sum, I view the legislative-intent factor in Zanetich’s

favor. This is consistent with the New Jersey Supreme Court’s

understanding of the “clear legislative intent to construe

CREAMMA and its companion bills broadly and robustly,”

Gomes, 288 A.3d at 841, and the legislature’s decision not to

foreclose a private right of action for CREAMMA’s

employment protections.

to enforce employment protections in statutes that expressly

permit administrative sanctions. See, e.g., Boldt, 726 A.2d at

982 (determining that, “[w]hile the Department [of Health]

retains the jurisdictional authority to sanction those that violate

the rule” at issue, plaintiffs had a private right of action to

enforce a regulation where they sought “money damages, a

remedy not available at the agency level”); Muise, 753 A.2d at

129 (“[A] court can consider all judicial remedies, including

damages, which are beyond the agency’s authority[.]”);

Mulford v. Computer Leasing, Inc., 759 A.2d 887, 891 (N.J.

Super. Ct. 2003) (discerning a private cause of action “as a

remedy in addition to the penal and administrative sanctions

and administrative wage collection proceedings, provided by

other sections thereof”).

The New Jersey Supreme Court has discerned no

legislative intent to authorize a private cause of action “in a

statutory scheme that already contains civil penalty

provisions,” R.J. Gaydos, 773 A.2d at 1145; where “a bare

criminal statute” contains “absolutely no indication that civil

enforcement of any kind was available to anyone,” In re State

Comm’n of Inv., 527 A.2d 851, 854 (N.J. 1987); and where a

statute contains an “elaborate regulatory scheme” for

controlling the target of the private suit, Campione, Inc., 714

A.2d at 310. None of those conditions is present here.

15

C. Factor Three

The third factor asks whether “it is consistent with the

underlying purposes of the legislative scheme to infer the

existence of [a private] remedy.” R.J. Gaydos, 773 A.2d at

1143. I predict that the New Jersey Supreme Court would say

it is.

In enacting CREAMMA, the legislature sought to

“adopt a new approach to [New Jersey’s] marijuana policies by

controlling and legalizing . . . cannabis . . . for adults.” N.J.

Stat. Ann. § 24:6I-32(a). That control and legalization was

“designed to eliminate the problems caused by the unregulated

manufacturing, distribution, and use of illegal marijuana within

New Jersey,” id. § 24:6I-32(c), “in a way that enhances public

health and minimizes harm to New Jersey communities and

families,” id. § 24:6I-32(l). As Zanetich argues, New

Jerseyans will be less likely to access the lawful, controlled

system of cannabis sales the state has established if employers

can, without consequence, refuse to hire them for participating

in that system. This supports a conclusion that CREAMMA’s

broad remedial purposes are served by recognizing a private

right of action here. See Bortz v. Rammel, 376 A.2d 1261, 1266

(N.J. Super. Ct. App. Div. 1977) (determining that a private

right of action is consistent with the statutory goal of

“assur[ing] prospective and continuing compliance” with

construction codes); Parks v. Pep Boys, 659 A.2d 471, 478

(N.J. Super. Ct. App. Div. 1995) (concluding that a private

right of action helps “assure[] the . . . effectiveness” of a

“statute [that] requires certain conduct”); see also R.J. Gaydos,

773 A.2d at 1144 (citing Parks and Bortz as examples where

courts inferred private rights of action).

16

D. Balance of Factors

After New Jersey courts consider the three implied-

private-right-of-action factors, they weigh these factors with

the primary goal of discerning the legislature’s intent. R.J.

Gaydos, 773 A.2d at 1143. In my view, each factor supports

Zanetich having an implied private right to enforce

CREAMMA’s employment protection. Thus, no weighing is

necessary. I predict that the New Jersey Supreme Court would

recognize this cause of action. I respectfully dissent from the

majority’s conclusion to the contrary.

III

As is now plain, the question in this case is whether

CREAMMA gives a prospective employee who is not hired

because of cannabis use a private right of action to sue his

would-be employer. The New Jersey Supreme Court is best

suited to answer that question, so I would certify the question

to that court.

Before our Court certifies a question of law to a state’s

highest court, we consider certain factors. One is whether “the

relevant question’s eventual resolution [is] unclear and

control[s] an issue in the case.” United States v. Defreitas, 29

F.4th 135, 142 (3d Cir. 2022). The question at issue here

controls whether Zanetich can proceed with his lawsuit. And

the various opinions in Zanetich’s case demonstrate that the

eventual resolution of this question is debatable.

The majority and I would resolve the question

differently. The majority’s reasoning also differs from the

17

District Court’s. See Zanetich, 2023 WL 3644813, at *5

(determining that “the First Cort factor weighs in favor of

finding an implied cause of action”).7 And the New Jersey

legal authorities seem to contradict each other in ways material

to the question before us. Compare Miller v. Zoby, 595 A.2d

1104, 1108 (N.J. Super. Ct. App. Div. 1991) (“the fact that no

general cause of action . . . has been created is to us some

reliable evidence that the legislature neither intended to create

such a cause of action by silence or desired the judiciary to

create one by implication”), with Boldt, 726 A.2d at 982 (“If

the Legislature intended to foreclose plaintiffs . . . from seeking

the relief sought here, it would have explicitly limited the

availability of that remedy or relief.”). This counsels in favor

of certification.

Another factor is the importance of the question to be

certified.8 Defreitas, 29 F.4th at 142. For instance, when a

question involves important public policy choices or value

judgments, a state’s high court is the appropriate tribunal. See

id. Additionally, when an issue is likely to recur, it “should be

certified for an immediate and dispositive resolution.” Id.

7

The District Court also posited that we might find the

question in this case suitable for certification to the New Jersey

Supreme Court. Zanetich, 2023 WL 3644813, at *10 n.4.

8

The majority observes that this case does not involve

questions of state constitutional law and the issues are not

“particularly transcendental.” Maj. Op. at 32. When we

consider certification, it is proper to consider whether the

question is one of state constitutional law. Defreitas, 29 F.4th

at 142. However, transcendentalism—however that term may

be defined—is beyond our ken.

18

The importance factor also counsels in favor of

certification. Zanetich’s case arises in the wake of a watershed

statewide referendum in which New Jerseyans opted to

legalize the personal use of marijuana by adults. Effectuating

the will of the voters required the legislature to balance private

and administrative enforcement mechanisms. The New Jersey

Supreme Court—not this Court—should resolve the

ambiguities about how the legislature conducted that

balancing. Permitting the state high court to do so would

support cooperative judicial federalism. See id.

This issue is also likely to recur. For decades, New

Jersey employers have administered drug tests as a condition

of employment in jobs as varied as salespeople, law

enforcement officers, funeral home directors, and custodians.9

Given the sheer number of employment relationships

potentially impacted by CREAMMA’s employment

protections, the issue in this case is likely to arise again.

A third factor is the timeliness of the request for

certification. Defreitas, 29 F.4th at 142. Zanetich filed his

action in state court, where he could have appealed an adverse

ruling to a New Jersey appellate court. Zanetich could not seek

certification immediately after Walmart removed the action to

federal court. See N.J. Ct. R. 2:12A–1 (permitting submissions

9

See Jevic v. Coca Cola Bottling Co. of New York, No. CIV.

A. 89-4431, 1990 WL 109851 (D.N.J. June 6, 1990)

(salesperson); Policemen’s Benev. Ass’n of New Jersey, Loc.

318 v. Washington Twp. (Gloucester Cnty.), 850 F.2d 133 (3d

Cir. 1988) (police officers); Wild v. Carriage Funeral

Holdings, Inc., 227 A.3d 1206 (N.J. 2020) (funeral director);

Small v. Rahway Bd. of Educ., No. CV 17-1963, 2018 WL

615677 (D.N.J. Jan. 26, 2018) (custodian).

19

of certified questions of law from this Court but not from

federal district courts). He sought certification at his first

opportunity to do so—in his brief to this Court.

For all these reasons, I would certify the question of law

in this case to the New Jersey Supreme Court.

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