Hunton Retail Law Resource

The tidal wave of New Jersey Truth-in-Consumer Contract, Notice and Warranty Act (“TCCWNA”) cases may finally slow to a trickle: a long-awaited decision from the New Jersey Supreme Court came down Monday, April 16, 2018, that will likely have broad repercussions on who has standing to sue under the statute.

TCCWNA is a New Jersey state statute that, in short, prohibits consumer documents from containing provisions that violate clearly established rights or responsibilities. See N.J. Stat. Ann. § 56:12-15. The statute limits standing to “aggrieved consumers,” but up until Monday, that term had not been defined. See N.J. Stat. Ann. §56:12-17. Questions about what constitutes an “aggrieved consumer” percolated up in two cases in the U.S. District Court for the District of New Jersey, which were consolidated and are now on appeal in front of the Third Circuit. The Third Circuit certified two questions of law to the New Jersey Supreme Court, one of which related to the definition of an “aggrieved consumer.” Multiple TCCWNA cases have been stayed pending the court’s decision.

In Spade v. Select Comfort Corp., the New Jersey Supreme Court found that “the term ‘aggrieved consumer’ denotes a consumer who has suffered some form of harm as a result of the defendant’s conduct,” and therefore held that, for the purposes of TCCWNA, “an ‘aggrieved consumer’ is a consumer who has been harmed by a violation of N.J.S.A. 56:12-15.” No. 078611, 2018 WL 1790394, at *11 (N.J. Apr. 16, 2018). The court was quick to caution that harm does not necessarily require money damages, and that TCCWNA’s statutory damages provision clearly contemplates actions by aggrieved consumers who did not necessarily suffer monetary damage. Id. The court also held that New Jersey state regulations can form the basis of a TCCWNA action, as regulations have the force of law. Id. at *9.

TCCWNA is not dead: it is still on the books and still has an aggressive $100 civil penalty per violation. However, the New Jersey Supreme Court’s decision definitively lays to rest the question of whether a plaintiff who suffers no harm may bring a case under TCCWNA, and we can expect to see fewer cases alleging no harm filed under the statute. Read together with past precedents, it may also be more difficult for plaintiffs to successfully bring a class action under TCCWNA, as questions of standing under the new “aggrieved consumer” definition will now be in play.

Read the full alert.