This past year, the plaintiffs’ bar has been aggressively pursuing class action claims under New Jersey’s Truth-in-Consumer Contract and Warranty Notification Act (“TCCWNA”), N.J.S.A. 56:12-14, et seq.—presumably because of its statutory damages and attorneys’ fees provisions. The TCCWNA—which was enacted in 1980—prohibits sellers from “offer[ing] to any consumer or prospective consumer or enter[ing] into any written consumer contract or giv[ing] or display[ing] any written consumer warranty, notice or sign” that “violates any clearly established legal right of a consumer.” N.J.S.A. 56:12-15. In the more than thirty cases filed this year in state and federal courts throughout the country alleging violations of TCCWNA, plaintiffs have sought an increasingly expansive application of the statute, which originally was intended “to prevent deceptive practices in consumer contracts by prohibiting the use of illegal terms or warranties” in those contracts. Kent Motor Cars, Inc. v. Reynolds & Reynolds Co., 25 A.3d 1027, 1044 (N.J. 2011). Notwithstanding this aggressive push by the plaintiffs’ bar, recent decisions of New Jersey trial and appellate courts have seemingly begun to chip away at attempts to expand TCCWNA beyond its intended purpose.1 Notably, the New Jersey Appellate Division’s ruling in Smerling v. Harrah’s Entm’t, Inc., No. A-4937-13T3, 2016 WL 4717997 (N.J. Super. Ct. App. Div. Sept. 9, 2016), is one such example.In Smerling, Harrah’s sent promotional birthday cash coupons to the plaintiff and 320,000 other individuals that were redeemable at limited times at its Atlantic City casino. 2016 WL 4717997 at *2. After Harrah’s declined to honor the promotion when the plaintiff attempted to redeem her cash coupon outside of the limited time period, she brought a class action complaint against Harrah’s, alleging violations of the New Jersey Consumer Fraud Act (“CFA”), TCCWNA, and breach of contract. Id. Harrah’s argued that the TCCWNA did not apply because the plaintiff was not a “consumer”, the promotional birthday coupon was not a “consumer contract”, and the language in the coupon did not violate any clearly established legal rights under the Act. Id. at *2.
Our previous QuickStudies highlighting important developments regarding TCCWNA can be found here: Doing Business in New Jersey? Your Website Terms & Conditions May be Plaintiffs’ Next Target, TCCWNA Class Action Tanked by Individualized Inquiries, and Businesses Take Note: New Jersey State and Federal Courts to Address the Uncertain Consumer Protection Landscape of TCCWNA.
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