Over the past few years, we’ve been highlighting the unique danger New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA) poses to our state’s businesses. Four of the five matters we are currently involved with as an organization are TCCWNA cases.
What is TCCWNA?
TCCWNA is designed to provide consumers a quick and easy way to enforce their legal rights. The Act does not create any new rights, it just provides consumers with an additional way to enforce their already existing rights.
The Act forbids any seller, lessor, creditor, lender or bailee from violating “any clearly established legal right of a consumer or responsibility of a seller, lessor, creditor, lender or bailee as established by State or Federal law” when they enter into a written contract with a consumer or give or display any “warranty, notice or sign” to a consumer.
If a business violates TCCWNA (which necessarily means they violated some other legal right since the law creates no new rights), it is on the hook for $100 or actual damages, plus reasonable attorneys’ fees and court costs. Consumers may also petition a court to void a contract that violates TCCWNA.
Why is TCCWNA a problem?
Although the law is supposed to apply only to money, property, and services, used for personal, family or household purposes, the court has repeatedly expanded the applicability of the law by interpreting “consumer,” “property,” and “warranty, notice or sign” very broadly.
The idea that TCCWNA lawsuits are “consumer protection” suits is laughable. In the vast majority of TCCWNA lawsuits filed today, the alleged harms are trivial technicalities, and the plaintiffs have suffered no actual harm. The only clear beneficiaries of these lawsuits are the attorneys who bring them.
What are we doing about TCCWNA?
We think it is time for the courts to bring some clarity to the undefined terms in the TCCWNA statute, so the law can no longer be used to file abusive lawsuits. We are currently involved in four different TCCWNA cases.
Spade v. Select Comfort; Wenger v. Bob’s Discount Furniture. In April 2017, the New Jersey Supreme Court announced that it will answer the following certified questions about New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA):
Is a consumer who receives a contract that does not comply with the Delivery of Household Furniture and Furnishings Regulations (Furniture Delivery Regulations), N.J.A.C. 13:45A-5, but has not suffered any adverse consequences from the noncompliance, an “aggrieved consumer” under the Truth-in-Consumer Contract Warranty and Notice Act (TCCWNA), N.J.S.A. 56:12-17; and, does a violation of the Furniture Delivery Regulations alone constitute a violation of a clearly established right or responsibility of the seller under the TCCWNA and thus provide a basis for relief under the TCCWNA?
The court’s answer will provide clarity not only to the Third Circuit, which is looking for guidance as it decides the cases David Spade v. Select Comfort Corp. and Christopher Wenger v. Bob’s Discount Furniture, LLC, but to everyone.
Clarifying what the terms “aggrieved consumer” and “clearly established legal right” mean will go a long way toward ensuring that this statute does what it was designed to do, protect consumers, without being a tool that attorneys can use to troll for lawsuits against well-meaning businesses.
Kaufman v. Lumber Liquidators. Is Hardwood Flooring “Household Furniture?” The New Jersey Civil Justice Institute partnered with the United States Chamber of Commerce to file a friend of the court brief in a lawsuit that will answer this question. As you may have guessed, this lawsuit is about much more than flooring. This lawsuit could greatly expand, or put the brakes on, out-of-control regulatory enforcement litigation under TCCWNA.
Dugan v. TGI Friday’s, Inc. The plaintiffs in this class action claim a restaurant’s failure to clearly post prices in the menu on all drink items violates New Jersey’s Consumer Fraud Act (CFA) and TCCWNA. The New Jersey Civil Justice Institute filed an amicus curiae brief in this case because many of the terms in the TCCWNA statute remain unclear.
Barbarino v. Paramus Ford. Right now, we are seeing a lot of TCCWNA cases being brought against businesses who offer warranties or terms of service that say something like “void where prohibited” or “unless prohibited by law” without specifying if there are any terms void in New Jersey. In our brief in this case, we argue that plaintiffs should have to prove they were actually harmed by such a contract or warranty, not just that one existed.
We also argue that such phrases are situational, not jurisdictional, and ruling otherwise would force businesses to incorporate a treatise on New Jersey contract law into every contract, warranty, sign, etc.
Gavin Rooney of Lowenstein Sandler and Jeff Jacobson of Kelly Drye & Warren LLP provided NJCJI members with an update on these cases and other TCCWNA action during a recent NJCJI teleforum. An edited version of that teleforum is now available for anyone who is interested in the subject.
If you would like to join our effort to reform TCCWNA, and bring common sense back to our legal system, please contact Alida Kass, NJCJI’s Chief Legal Counsel.