Jonathan M. Korn and Michael R. Darbee
In a recent case, the New Jersey Appellate Division addressed whether an Internet transaction between a New Jersey buyer and California seller exposed the seller to a New Jersey lawsuit initiated by the buyer.
The case, Jardim v. Overley, involved the sale of a vintage car. The seller, Overley, is a California resident. On May 2, 2018, he listed a 1960 Buick Invicta for sale on the website Hemmings.com, a marketplace used to list cars for sale. Overley explained in a certification that he is not in the business of selling cars and does not regularly conduct business over the Internet. The buyer, Jardim, is in the business of selling used cars and has an office in New Jersey. Jardim v. Overley, __ N.J. Super. __ (2019) (slip op. at 3–4).
On May 26, 2018, Jardim, through his business associate, e-mailed Overley and offered to purchase the car. In a series of e-mail and telephone communications over a two-day period, the parties negotiated and agreed on a purchase price. Once the price was set, the parties executed a bill of sale. Jardim arranged to have the car shipped from California to New Jersey, and on June 25, 2018, he received the car in New Jersey. Id. at 4–8.
When the car arrived, Jardim discovered that it was not in the condition Overley had advertised. He filed a lawsuit in the Law Division, alleging claims for breach of warranty, unjust enrichment, fraud, and consumer fraud. The trial court, however, dismissed Jardim’s claims for lack of personal jurisdiction over the seller. It reasoned that the parties’ contact was an isolated occurrence and that their negotiations did not create “sufficient minimum contacts with New Jersey to attach personal jurisdiction to Overley.” Id. at 8–9. Continue reading “Personal Jurisdiction and Internet Transactions”
Adrienne C. Rogove
In another blow to plaintiffs suing under New Jersey’s Truth-in-Consumer Contract, Warranty, and Notice Act (“TCCWNA”), the United States District Court for the District of New Jersey in Martinez-Santiago v. Public Storage, 2019 WL 1418118 (D.N.J. March 29, 2019), decertified a class of 160,000 members alleging that lease agreements with the Defendant Public Storage violated TCCWNA. Following the New Jersey Supreme Court’s decision last year finding that a consumer who is a party to a contract that fails to comply with New Jersey law, but who does not suffer any adverse consequences from the noncompliance, has failed to state a TCCWNA claim, United States District Judge Jerome Simandle decertified the class. The decision was based on an analysis of the Rule 23 requirements, where the Court held that the requirements of “typicality,” “predominance,” and “numerosity” under Rule 23 could not be met.
With respect to the typicality requirement, the Court found that the named plaintiff was one of “relatively few” customers who actually suffered an adverse consequence due to the form lease contract entered into with Public Storage. Since the vast majority of class members did not suffer an adverse consequence, the claims of the named plaintiff were not typical of the class members, and therefore the typicality requirement was not met.
The Court also found that the “predominance” requirement could not be met because questions of fact common to class members no longer predominated over questions affecting only individual claims. Finally, because discovery revealed that only 29 class members might be able to assert a viable claim under TCCWNA, the “numerosity” requirement of Rule 23 likewise could not be met.
The decision of the Court in Martinez-Santiago left only the named plaintiff with potentially viable claims, thereby continuing to chip away at the prospect of successful class action suits against corporate entities, and large attorneys’ fee awards to class action counsel, in suits where the class cannot meet the requirements of Federal Rule of Civil Procedure 23.
Adrienne C. Rogove
In a case alleging violations of federal securities laws by Cigna Corporation and certain of its officers, the Second Circuit Court of Appeals affirmed the dismissal of the complaint on the basis that the statements made by the defendants were simple, generic assertions about its regulatory policies and procedures upon which no reasonable investor would reasonably rely, and were therefore not materially misleading. Singh v. Cigna Corp., No. 17-3484-cv, (2d Cir. Mar. 5, 2019). Following Cigna’s acquisition of HealthSpring, a regional Medicare insurer, Cigna issued several public statements, including 10-K filings, concerning its commitment to regulatory compliance given the significant regulatory responsibilities involved in Medicare coverage. In its 2013 Form 10-K filed on February 27, 2014, Cigna said it had “established policies and procedures to comply with applicable requirements,” and that it “expect[ed] to continue to allocate significant resources” to compliance efforts. Id. at *5. In December 2014, Cigna published a pamphlet titled “Code of Ethics and Principles of Conduct,” which affirmed the importance of compliance and integrity:
[I]t’s important for every employee. . .to handle, maintain, and report on [Cigna’s financial] information in compliance with all laws and regulations. . .
[W]e have a responsibility to act with integrity in all we do, including any and all dealings with government officials.
Id. at **4-5. In its 2014 Form 10-K, Cigna stated that it would “continue to allocate significant resources” to compliance. Id. at *6. The 10-K included a discussion of the difficulty of compliance in the regulatory environment given the “uncertainty surrounding legislation and implementation of national healthcare reform.” Id.
A 2015 audit of Cigna’s Medicare operations by the Centers for Medicare and Medicaid Services (“CMS”) revealed numerous regulatory violations. Cigna filed a Form 8-K disclosing the CMS audit conclusions and accompanying sanctions. Within several days, Cigna’s stock price fell substantially. Continue reading “Generic Representations of Regulatory Compliance Not Actionable under Federal Securities Laws”
Michael R. Darbee
On January 10, 2018, the New Jersey Supreme Court decided a case involving the enforceability of mandatory arbitration agreements in consumer contracts. In Kernahan v. Home Warranty Administrator of Florida, the Court held that a mandatory arbitration agreement in a home warranty contract was unenforceable because it lacked mutual assent.
The consumer sued her home warranty administrator and the home warranty administrator moved to dismiss, citing the mandatory arbitration provision in the parties’ contract. The trial court denied that motion and held the arbitration provision was unenforceable. The Appellate Division affirmed the trial court. The New Jersey Supreme Court affirmed the Appellate Division and held that the agreement was too contradictory and confusing to create mutual assent. Continue reading “New Jersey Supreme Court Weighs in on Arbitration Clauses in Consumer Contracts”
Adrienne C. Rogove
In Griffoul v. NRG Residential Solar Solutions, LLC and NRG Energy, Inc., the Appellate Division recently addressed the validity of an arbitration clause in a lease between the plaintiffs, residents of Elmwood Park and class representatives (“Plaintiffs”), and NRG Residential Solar Solutions (“NRG RSS”) doing business as NRG Home Solar (“NRG Residential”) and NRG Energy, Inc. (“NRG Energy”) (collectively, “Defendants”). A-5535-16T1 (App. Div. May 4, 2018). Plaintiffs filed a class action complaint against Defendants alleging violations of the New Jersey Consumer Fraud Act (“CFA”) and the Truth-in-Consumer Contract, Warranty and Notice Act (“TCCWNA”) based on particular provisions in the lease. The lease required NRG Residential to install solar systems on Plaintiffs’ properties, which would provide electricity to their homes, and which would be connected to the utility’s electrical transmission grid.
Defendants filed a motion to compel arbitration pursuant to an arbitration clause in the lease. In pertinent part, the lease provided:
“[A]ny dispute, disagreement or claim between you and NRG RSS arising out of or in connection with this Lease, or the Solar System…shall be submitted to final and binding arbitration…YOU AND NRG RSS AGREE THAT BY ENTERING INTO THIS LEASE, YOU AND WE ARE WAIVING THE RIGHT TO A JURY TRIAL. IN ADDITION, EACH PARTY MAY BRING CLAMS AGAINST THE OTHER PARTY ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.”
Defendant NRG Energy also moved to dismiss the CFA claim for failure to plead it with particularity as required by Rule 4:5-8(a), and to dismiss the TCCWNA claim on the basis that NRG Energy was not a party to the lease agreement. Continue reading “Appellate Division Compels Arbitration of Consumer Fraud and TCCWNA Claims and Dismisses Class Claims”
Stephen M. Orlofsky and Ethan M. Simon
The Third Circuit certified to the New Jersey Supreme Court two questions about the interplay between New Jersey’s furniture delivery regulations and the state’s Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA). In Spade v. Select Comfort Corp., — A.3d —, 2018 WL 1790394 (N.J. Apr. 16, 2018), the court answered. In so doing, it expanded the reach of TCCWNA, which is intended to “prevent deceptive practices in consumer contracts.” Id. at *7. The act prohibits merchants from offering and entering into written contracts with consumers that include “any provision that violates any clearly established 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.” Id. Continue reading “Must Consumer Suffer Adverse Consequence in Order to Sue under TCCWNA?”
Jeffrey N. Rosenthal and Ethan M. Simon
To quote classicist author Edith Hamilton from her book The Roman Way to Western Civilization, “The comedy of each age holds up a mirror to the people of that age, a mirror that is unique.” Nowhere is that statement truer than when discussing the comedic genius of the hit animated television series South Park, now approaching its twenty-second season.
In its 2006 Primetime Emmy Award-winning episode “Make Love, Not Warcraft,” South Park delved into video gamers’ obsession with the wildly-popular PC game World of Warcraft. One of the show’s plotlines focused on a player whose in-game character had become so powerful the game’s developer had to devise a way to stop him. The developer’s solution: give another player the legendary “Sword of a Thousand Truths,” a unique item that might even the odds.
Eight years later, South Park lambasted so-called “freemium” games in its Primetime Emmy Award-nominated episode “Freemium Isn’t Free.” This episode, too, took a hard look at gaming culture, paying particular attention to “freemium games”—in which players can play a videogame for free, but to obtain certain desirable upgrades or items they must pay real-world money. In this episode, an eight-year-old character spent thousands of dollars on freemium upgrades, much to his father’s chagrin.
Not surprisingly, South Park’s observations about videogame culture were right: gamers will place a premium on certain virtual items, and are eager to spend big money to get them.
To read the full article, please click here.
“Loot Boxes in Videogames: Gambling by Any Other Name?” by Jeffrey N. Rosenthal and Ethan M. Simon was published in The Legal Intelligencer on April 24, 2018.
David C. Kistler, Michael A. Iannucci, and Richard Wolf
In deciding a motion to dismiss under Rule 12(b)(6) in a putative class action, the United States District Court for the District of New Jersey recently addressed, among other things, what is quickly becoming a hot button issue: whether claims under the New Jersey Consumer Fraud Act (“CFA”) and New Jersey Truth-in-Consumer Contract, Warranty, and Notice Act (“TCCWNA”) can be asserted by non-New Jersey residents. In Morcom v. LG Electronics USA, Inc., Judge Claire C. Cecchi answered this question in the negative, dismissing the CFA and TCCWNA claims asserted by a class representative from Washington State while allowing the same claims asserted by a New Jersey class representative to proceed. Continue reading “District of New Jersey Allows Consumer Fraud Act Claim to Proceed for New Jersey Resident, Dismisses Claim for Non-Resident”
In a March 16, 2017 decision, the United States Court of Appeals for the Ninth Circuit affirmed the dismissal of a putative consumer class action against Anheuser-Busch Companies, LLC. In this action, plaintiffs alleged that the labeling on defendant’s “Rita” malt beverages (including Bud Light Lime-a-Rita) was misleading and asserted claims for false advertising, omission, and breach of warranty under California law. Plaintiffs alleged that use of the word “Light” was misleading because the products contained considerably more calories and carbohydrates per ounce than other Budweiser products. The Ninth Circuit was called upon to review the District Court’s dismissal of the action with prejudice under Rule 12(b)(6).
In affirming the District Court, the Ninth Circuit held that “no reasonable consumer would be deceived by the label on the carton into thinking that ‘Bud Light Lime Lime-a-Rita,’ which the label calls a ‘Margarita With a Twist,’ is a low calorie, low carbohydrate beverage, or that it contains fewer calories or carbohydrates than a regular beer.” The Ninth Circuit noted that the label makes clear that the product is “not a normal beer” and that the label picture shows a bright green drink served over ice in a margarita glass. According to the Ninth Circuit, comparable products would include a hypothetical Budweiser Lime-a-Rita product (as opposed to a Bud Light) or a tequila margarita, both of which would contain more calories and carbohydrates than the product at issue. For these reasons, the Ninth Circuit dismissed both the false advertising and omission claims.
While this decision is not binding in New Jersey, New Jersey businesses should take note of the Ninth Circuit’s reasoning regarding what constitutes a comparable product for purposes of consumer deception.
Jaret N. Gronczewski
The New Jersey Appellate Division in Garmeaux v. DNV Concepts, Inc. t/a The Bright Acre, No. A-1400-14T1, held that a prevailing plaintiff in a Consumer Fraud Act (“CFA”) case is entitled to recover attorneys’ fees expended to defend an intertwined counterclaim. The opinion, which addressed an issue of first impression for the court, has been approved for publication. The court also reaffirmed that New Jersey law does not impose a proportionality requirement on fee awards.
The plaintiffs in Garmeaux sued Bright Acre in connection with services rendered to replace their gas fireplace in 2010. According to the plaintiffs’ testimony, Bright Acre introduced them to co-defendant James Risa, who was slated to perform the installation services for the new fireplace. At the time, Risa had worked at Bright Acre for approximately 20 years. Risa, however, also owned and operated his own independent company called Professional Fireplace Services. In March 2010, Risa provided a $3,700 estimate to the plaintiffs for installation services. And Bright Acre provided a sales order for $2,450 in August 2010. In September 2010, the plaintiffs made a payment to Professional Fireplace Services toward the $3,700 installation fee. Work began in late October 2010. Continue reading “Appellate Division Holds That Consumer Fraud Act Plaintiffs Can Recover Attorneys’ Fees Expended in Defense of Counterclaim”