In the Tropicana Orange Juice multidistrict litigation (MDL), plaintiffs’ bid for class certification has been rejected due to the need for individualized proofs and inability to ascertain class members. On January 22, 2018, U.S. District Judge William J. Martini (DNJ) denied class certification in the multidistrict litigation, In re Tropicana Orange Juice Marketing and Sales Practices Litigation. The lawsuit claimed that “Tropicana Pure Premium” (TPP) orange juice was mislabeled and misbranded as “100% pure and natural” because the juice contains undisclosed natural flavoring in violation of FDA standards of identity for pasteurized orange juice. Plaintiffs also attacked the marketing of TPP as “pure, natural and fresh from the grove” as demonstrably false given the added flavoring. The MDL judge, however, concluded that plaintiffs’ common law and N.J. Consumer Fraud Act (“CFA”) claims were “plainly unsuitable for class certification” because each claim “requires individualized proof.” Plaintiffs argued that their unjust enrichment claim was uniform because it focused on the TPP label and consumers uniformly paid for pasteurized orange juice that they did not receive. But the court held that defendant would be unjustly enriched only if a consumer did not receive the benefit of the bargain for which she paid, thus...
Author: Michael R. McDonald
Class Certification of TCCWNA Claims Dealt a Serious Blow by NJ Supreme Court in Dugan v. TGI Fridays and Bozzi v. Restaurant Partners, LLC
On October 4, 2017, the Supreme Court of New Jersey dealt a subtle but serious blow to “no injury” TCCWNA class actions. In consolidated appeals, Dugan v. TGI Fridays and Bozzi v. Restaurant Partners, LLC, the plaintiffs had argued that the defendant restaurant operators violated the plaintiffs’ clearly established rights by failing to list prices for beverages on their menus, that the restaurants were required to plainly mark the prices, and that when the restaurants’ employees presented menus to customers (class members), they “offered” contracts that violated the New Jersey Consumer Fraud Act (“CFA”) and the Truth-in Consumer Contract, Warranty and Notice Act (“TCCWNA”). However, the Court concluded that class certification was not appropriate because individual, rather than common, issues would predominate in proving TCCWNA’s “aggrieved consumer” and “clearly established legal right” requirements. The fundamental take-away from the Supreme Court’s analysis of TCCWNA’s “aggrieved consumer” requirement is that simply demonstrating that a consumer contract offends TCCWNA does not establish liability under the Act, because “[b]y its very terms, TCCWNA . . . does not apply when a defendant fails to provide the consumer with a required writing.” Rather, “at a minimum, a claimant must prove that he or she was...
Since the United States Supreme Court decided Spokeo, Inc. v. Robins in May 2016, lower courts have struggled to consistently determine whether a plaintiff has standing to sue in federal court, which, as the Spokeo court explained, “requires a concrete injury even in the context of a statutory violation.” That is, even when Congress has made something unlawful and authorized an award of statutory damages for the unlawful act, the mere violation of that law is not itself sufficient to confer standing to sue under Article III of the U.S. Constitution. But precisely what is required to demonstrate sufficient “injury” under Article III remains unclear after Spokeo, especially in the data-breach and data-privacy contexts. In Gubala v. Time Warner Cable, Inc., however, a unanimous Seventh Circuit decision, authored by Judge Posner, held that the defendant’s possible failure to comply with a requirement contained in the Cable Communications Policy Act (requiring the destruction of personally identifiable information (“PII”) if the information is no longer necessary for the purpose for which it was collected) did not afford the plaintiff Article III standing to sue for violation of the statute where his personal information was not released or disseminated in any way. The plaintiff...
California District Court Dismisses Facebook’s TCCWNA “Website Terms and Conditions” Lawsuit in Light of Valid Choice-of-Law Provision
New Jersey’s Truth-in-Consumer Contract, Warranty, and Notice Act (“TCCWNA”) ushered in a wave of class actions last year, targeting various provisions in retailers’ websites “terms and conditions.” Broadly speaking, the TCCWNA prohibits “consumer contracts” from containing language that violates any “clearly established legal right[s].” New Jersey courts have not been alone in adjudicating these cases, however, as a number of similar lawsuits have been brought in other jurisdictions, including California federal district courts. For example, on September 7, 2016, the Central District of California dismissed the complaint in Candelario v. Rip Curl, Inc. on standing grounds, holding that because the plaintiff’s “only connection to the Terms and Conditions appears to be her decision to read them” and because her complaint essentially alleged only “bare procedural violation[s]” of the TCCWNA – without more – she could not satisfy “the injury-in-fact requirement of Article III.” Even more recently, although on different grounds, the Northern District of California dismissed a “website terms and conditions” class action against Facebook. In Palomino v. Facebook, Inc., as in Candelario, the plaintiffs alleged that the social media company’s website terms and conditions violated the TCCWNA because of “provisions that purport to ‘1) disclaim liability for claims brought for...
Nordic Naturals Vindicated Again with Third Circuit Affirming Class Action Dismissal and Granting Sanctions for Frivolous Appeal under FRAP 38
On September 14, 2016, in a precedential opinion, the Third Circuit upheld the dismissal of a serial, pro se attorney’s class action lawsuit against international dietary supplement manufacturer Nordic Naturals, Inc., which asserted label-related claims under the N.J. Consumer Fraud Act. Notably, the Third Circuit also entered a separate order, which granted Nordic’s motion for sanctions under Federal Rule Appellate Procedure 38 for Plaintiff’s frivolous appeal.
Owners and operators of e-commerce websites should be aware of an eruption in threatened and filed class actions against online retailers under the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (“TCCWNA”). The TCCWNA was enacted decades ago, as the New Jersey Supreme Court has explained, to “prohibit businesses from offering or using provisions in consumer contracts, warranties, notices and signs that violate any clearly established right of a consumer.” Yet, as laudable as this goal may be, with the potential for class-wide statutory penalty damages, the brevity and breadth of the statute has led to a tidal wave of litigation now targeting terms and conditions within e-commerce websites—an application of the law that could not have even been conceived of when the TCCWNA was passed in 1981.
In its most recent pronouncement on arbitration clauses, the New Jersey Supreme Court confirmed that it is for the Court, and not an arbitrator, to determine whether the parties have agreed to arbitrate consumer fraud claims in the absence of a clear delegation clause to the contrary. In Morgan v. Sanford Brown Inst., the New Jersey Supreme Court reversed an order of the Appellate Division holding that arbitrability was for the arbitrator to decide, finding that under Atalese v. U.S. Legal Servs. Grp. and First Options of Chi., Inc. v. Kaplan, the agreement to delegate arbitrability to an arbitrator must, as with the other arbitration provisions, clearly inform the average consumer of the rights he or she is giving up.
In the thick of a torrent of litigation, mostly class actions, premised upon purportedly unlawful contractual provisions under the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (“TCCWNA”) – a statute that permits “no-injury” claims – the District of New Jersey has reaffirmed a bright-line rule concerning this law: Omissions don’t trigger liability.
Class actions brought under the New Jersey Truth-in-Consumer Contract, Warranty, and Notice Act (“TCCWNA”) are on the rise. This year alone, Wal-Mart, J. Crew, Avis, Toys R Us, and Apple – among many others – have been sued under this unique state statute that prohibits certain types of unlawful provisions in consumer contracts and other documents. In the past decade, courts have continued to expand the scope of this law – from the New Jersey Supreme Court, which, in 2013, instructed lower courts to construe the statute broadly, to the District of New Jersey, which, in 2014, allowed a TCCWNA class action to go forward against contracts containing commonly-worded exculpatory and indemnification provisions.