TCCWNA case law has continued to develop with no end in sight. Recently, courts have grappled with definitional questions that could impact the scope of the law and affect sellers of consumer goods and services.
A consumer who isn’t aggrieved…
Courts in the federal system are weighing TCCWNA’s “aggrieved consumer” requirement. Most recently, in Friest v. Luxottica Group S.p.A., the plaintiff argued that a glasses company violated the TCCWNA when it failed to disclose on its website that eye exams would be performed by independent optometrists. The District of New Jersey held that the plaintiff was not an “aggrieved customer” because he had not alleged that he had visited the defendant’s website or had an eye exam with the defendant.
In reaching its decision, the court looked to Wegner v. Bob’s Discount Furniture, LLC, a case where the District of New Jersey held that an “aggrieved consumer” is “one who is suffering the effects of a violation.” The decision in Wegner was appealed and is now before the Third Circuit. On November 23, 2016, the Third Circuit certified questions about the interpretation of “aggrieved consumer” to the New Jersey Supreme Court relevant to Wegner and another case. Hopefully the answers to these questions will illuminate the “aggrieved customer” requirement and provide guidance to retailers on this enigmatic aspect of TCCWNA.
…or not a consumer at all?
In Smerling v. Harrah’s, the Superior Court of New Jersey, Appellate Division, confronted whether TCCWNA applied to a promotional offer. The plaintiff had received a coupon in the mail from a casino — the defendant — that promised her “$15 BIRTHDAY CASH” on one of two dates: August 1 or August 10. The plaintiff went to the casino on August 9 and tried to claim her birthday cash after the clock struck midnight, but she was told she had to wait several hours, until 6 a.m., to claim it. After this unhappy birthday, the plaintiff filed suit, claiming a TCCWNA violation, a Consumer Fraud Act violation and breach of contract.
In reasoning that echoes earlier subjects of this blog, the trial court concluded that the plaintiff was a consumer because she had “paid” for the coupon by traveling to the casino at a certain time to collect her birthday cash, thus exchanging consideration. But the Appellate Division was not convinced by the trial court’s “expansive interpretation of ‘buy.’” Instead, it looked to the Plain Language Act, N.J.S.A. 56:12-1 et seq., and held that a purchase must be “for cash or on credit.” Thus, the plaintiff was not a consumer even though she had spent time and energy to receive her birthday cash.