The core provision of the TCCWNA, § 56:12-15, reads, in relevant part: “No seller … shall … offer to any consumer or prospective consumer or enter into any written consumer contract or give or display any written consumer warranty, notice or sign … which includes any provision that violates any clearly established legal right of a consumer or responsibility of a seller … as established by State or Federal law at the time the offer is made or the consumer contract is signed or the warranty, notice or sign is given or displayed.” (Note that the law is specifically applicable to contracts offered to “consumers” (i.e., those purchasing goods or services primarily for personal, family, or household use) and B2B sites offering commercial goods or services would not obviously fall under the auspices of the TCCWNA.)
Notably, the TCCWNA applies to “prospective consumers,” as well as actual customers, and violation requires only that a retailer “offer” a contract or “display” any notice that fails to comport with the TCCWNA’s requirements. A showing of actual damages is not required. As a result, the purported classes in the new wave of suits generally encompass all visitors to the applicable defendant’s website during the statute-of-limitations period preceding the suit. (Some complaints identify the period as six years, ostensibly based on New Jersey’s limitation for contract suits, while others vaguely reference the opening measurement for the class period only as the “applicable statement of limitations.”)
Adding to the appeal for the plaintiffs’ bar, § 56:12-17 of the TCCWNA grants a private cause of action and allows for both statutory damages and the recovery of attorneys' fees: "Any person who violates the provisions of this act shall be liable to the aggrieved consumer for a civil penalty of not less than $100.00 or for actual damages, or both at the election of the consumer, together with reasonable attorney’s fees and court costs."
The most recent spat of cases follow two significant holdings in TCCWNA jurisprudence that were issued at the end of 2015. First, a TCCWNA case against Public Storage, challenging several clauses of its standard storage-locker lease agreement for New Jersey rental properties, had its class certified in November 2015 (after previously surviving a motion to dismiss).[FN1] Then, in December, the Third Circuit reversed the dismissal of a TCCWNA claim arising out of a vehicle warranty agreement that required the consumer to waive recovery of attorneys’ fees.[FN2]
What Can A Website Do?
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FN1: Martinez-Santiago v. Public Storage; 312 F.R.D. 380 (D.N.J. Nov. 17, 2015).
FN2: Johnson v. Wynn’s Extended Care, Inc., 2015 U.S. App. LEXIS 21682 (3rd Cir. Dec. 15, 2015).
FN3: Silkowski v. Apple Inc., No 5:16-cv-02338 (N.D.Cal. filed Apr. 28, 2016); Schleifer v. Avis Rent a Car System, LLC, No. 2:16-cv-02090 (D.N.J. filed Apr. 15, 2016); Sweeney v. Bed Bath & Beyond LLC, No. 2:16-cv-01927 (D.N.J. filed Apr. 6, 2016); Martinez v. Burlington Stores Inc., No. 1:16-cv-02064 (D.N.J. filed Apr. 13, 2016); Roldan v. Toys R US, Inc., No. 2:16-cv-01929 (D.N.J. filed Apr. 6, 2016); Nahas v. L Brands, Inc., No. 2:16-cv-02107 (D.N.J. filed Apr. 15, 2016).