The TCCWNA, a 1981 New Jersey statute now having its moment in the spotlight after a recent Third Circuit decision called attention to it, bars businesses from including terms in consumer contracts or “notices” that are unenforceable because they violate “clearly established rights.” It also precludes use of statements that contractual disclaimers may be void in “some states,” without specifying exactly which are void in New Jersey. “Aggrieved consumers,” whatever that means, can sue for $100 each, making the statute very attractive to the class action bar.
Defendants in these cases have hit back with powerful, but different, motions to dismiss. The motions soon will be fully briefed, and courts then will wrestle with questions like these:
Is Spokeo available as a defense? Some defendants are arguing that their plaintiffs, in addition to not being “aggrieved,” did not suffer a “concrete and particularized injury” sufficient to confer Article III standing under the Supreme Court’s recent decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). The plaintiffs respond that their injury is “informational,” in that the TCCWNA entitled them to receive “clean” contracts or notices, which the defendants denied them.
Can non-New Jersey residents sue New Jersey-based companies under the TCCWNA? The plaintiff suing one New Jersey-based defendant lives in and made his online purchases from Connecticut. Will that court rule that New Jersey-headquartered corporations face potential nationwide liability under the TCCWNA?
Are forum choice provisions enforceable? One judge already has transferred a TCCWNA case to California pursuant to the defendant’s forum selection clause.