Walsh Pizzi O'Reilly Falanga LLP

By: Marc D. Haefner

In a recent opinion, the New Jersey Supreme Court held that trial courts may not “deprive litigants of their right to a jury trial as a sanction for failure to comply with procedural rules.”  Williams v. American Auto Logistics, (A-10-15) (N.J. 2016).

In Williams, a pro se plaintiff bringing suit in New Jersey’s Special Civil Part – the equivalent of small claims – lost his jury right as a sanction for failing to provide jury instructions prior to trial.  The Supreme Court reasoned that “[l]oss of a constitutional right should not be wielded as a penalty” and thus “procedural defects in a litigant’s case cannot trump our constitutional mandate.”  The Supreme Court was careful to emphasize that its ruling did not extend the right to a jury to cases where is was previously unknown.  Id. at 7.  Further, the ruling did not mean that a party could not waive the right to a jury either deliberately or through failing to seek a jury in the manner required by the Court Rules.  Id. at 8.  Finally, the Supreme Court reminded trial courts, whether in Special Civil Part or Law Division, that they have to control their dockets and may, in appropriate circumstances, sanction litigants for noncompliance with the Court Rules, including, in the most egregious circumstances, dismissing the case with prejudice.  Id.  However, the Court concluded removing a party’s “constitutionally protected right to a jury trial” was not among the “panoply of sanctions” available to trial court.  Id. at 9.

For more information about the Williams case or about Walsh’s Business & Commercial Litigation Practice, please contact Marc Haefner at mhaefner@walsh.law or at (973) 757-1013.

By: Peter J. Pizzi

The New Jersey Truth-in-Consumer Contract, Warranty, and Notice Act (TCCWNA), N.J.S.A.  56:12-14, et seq. went into effect in 1981. After over thirty years on the books, however, the TCCWNA has recently given rise to a wave of consumer class actions. The TCCWNA was enacted to address concerns about consumer contracts, warranties, notices and signs that include provisions which violate consumers’ rights. As a result, the TCCWNA provides that a business may be held liable if it asks a consumer or prospective consumer to enter into a contract, or otherwise gives or displays to a consumer or prospective consumer any warranty, notice or sign, “which includes any provision that violates a clearly established legal right of a consumer.” N.J.S.A. 56:12-15.  The TCCWNA provides consumers with the ability to recover $100 per violation, without the need to establish actual injury, and also provides for recovery of actual damages, attorneys’ fees and costs. N.J.S.A. 56:12-17.

With proof of actual injury not required for a TCCWNA claim, plaintiff class action law firms have filed an increasing number of putative class actions based upon the statute.  In the past year, approximately forty class actions have been filed alleging violations of the TCCWNA against such businesses as Wal-Mart, Target, TOYS ‘R’ US, Burlington Coat Factory, Bed Bath & Beyond, the New Jersey Devils and others. The sudden onslaught of cases has left the courts divided on the requirements for liability under the statute as well as the criteria for class certification.

In late July 2016, the New Jersey Supreme Court granted leave to appeal in two related cases – Dugan v. TGI Fridays, Inc. and Bozzi v. OSI Restaurant Partners, LLC – involving class certification criteria for TCCWNA claims based upon the omission of drink prices on restaurant menus. In Dugan, New Jersey’s intermediate appellate court in March 2016 reversed the trial court and concluded that the putative class plaintiffs failed to meet the class action “predominance” requirement because “individualized inquiries” would be required to determine whether, for example, “each class member was handed a menu that lacked beverage pricing.” 135 A.3d 1003, 1014 (N.J. Super. Ct. App. Div. 2016), petition for leave to appeal granted, A-92-15, No. 077567 (N.J. July 26, 2016). Therefore, the Court concluded that plaintiffs failed to “establish[] that issues of fact common to the members of the class predominate over issues that only affect individual class members.”

Despite apparently similar facts, in the earlier case Bozzi v. OSI Restaurant Partners, LLC, a different appellate panel came to the opposite conclusion, declining to grant a restaurant chain’s appeal from the trial court’s ruling certifying a class of plaintiffs alleging violations of the TCCWNA resulting from drink menus without prices. No. L-001324-11 (N.J. Super. Ct. Law Div. Dec. 16, 2011), petition for leave to appeal granted, A-92-15, No. 077556 (N.J. July 26, 2016).

Faced with opposite outcomes in these similar TCCWNA class action cases, the New Jersey Supreme Court is now poised to address whether “class certification [is] appropriate . . . where plaintiffs allege that defendant violated the [CFA] and the [TCCWNA] by failing to include drink prices on its menu.”  The Supreme Court’s decision in these two appeals will be significant for businesses operating in New Jersey, as it is likely to provide guidance about the criteria for class certification in TCCWNA actions and shape TCCWNA jurisprudence generally.

For additional information, please contact Peter J. Pizzi at (973) 757-1011