Sweeney v. Bed Bath & Beyond Inc.

REPLY BRIEF to Opposition to Motion

D.N.J.July 15, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY EDWARD SWEENEY, Individually and on Behalf of all Other Persons Similarly Situated, Plaintiff, v. BED BATH & BEYOND INC., Defendant. Civil Action: 2:16-cv-01927 ORAL ARGUMENT REQUESTED REPLY IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT Gregory T. Parks (admitted pro hac vice) Kristin M. Hadgis MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103-2921 (215) 963-5000 -and- Drew Cleary Jordan MORGAN, LEWIS & BOCKIUS LLP 502 Carnegie Center Princeton, NJ 08540-6241 (609) 919-6600 Case 2:16-cv-01927-KSH-CLW Document 34 Filed 07/15/16 Page 1 of 20 PageID: 242 i TABLE OF CONTENTS I. PLAINTIFF LACKS ARTICLE III STANDING TO BRING HIS CLAIMS ........................................................................................................2 II. PLAINTIFF IS NOT AN AGGRIEVED CONSUMER UNDER THE TCCWNA.............................................................................................6 III. THE NEW YORK CHOICE OF LAW CLAUSE IN THE TERMS OF USE IS NOT A WAIVER OF STATUTORY RIGHTS.........................................................................................................8 IV. THE TERMS OF USE DO NOT VIOLATE SECTION 15 OF THE TCCWNA...........................................................................................10 V. THE TERMS OF USE DO NOT VIOLATE SECTION 16 OF THE TCCWNA...........................................................................................12 VI. CONCLUSION ...........................................................................................15 Case 2:16-cv-01927-KSH-CLW Document 34 Filed 07/15/16 Page 2 of 20 PageID: 243 ii TABLE OF AUTHORITIES Page(s) CASES A. & M. Wholesale Hardware Co., Inc. v. Circor Instrumentation Tech., Inc., No. 13-0475, 2014 WL 714938 (D.N.J. Feb. 24, 2014).......................................9 Barrows v. Chase Manhattan Mortgage Corporation, 465 F. Supp. 2d 347 (D.N.J. 2006).......................................................................7 Castro v. Sovran Self Storage, Inc., 114 F. Supp. 3d 204 (D.N.J. 2015).....................................................................13 Church v. Accretive Health, Inc., No. 15-15708, 2016 WL 3611543 (11th Cir. July 6, 2016) .................................5 Com. of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173 (3d Cir. 1988) .................................................................................4 Estate of Reddert v. U.S., 925 F. Supp. 261 (D.N.J. 1996)........................................................................6, 7 Ex parte Van Winkle, 70 A.2d 167 (N.J. 1950) .......................................................................................6 Fed. Election Comm’n v. Akins, 524 U.S. 1 (1998)..................................................................................................5 Garfinkel v. Morristown Obstetrics, 168 N.J. 124 (2011) ..............................................................................................8 Gen. Motors Corp. v. New A.C. Chevrolet, Inc., 263 F.3d 296 (3d Cir. 2001) .................................................................................8 Gomes v. Extra Space Storage, Inc., No. 13-0929, 2015 WL 1472263 (D.N.J. Mar. 31, 2015) ..........................2, 3, 13 Howard Sav. Inst. v. Peep, 170 A.2d 39 (N.J. 1961) .......................................................................................6 Case 2:16-cv-01927-KSH-CLW Document 34 Filed 07/15/16 Page 3 of 20 PageID: 244 iii In re Nickelodeon Consumer Privacy Litig., No. 15-1441, 2016 WL 3513782 (3d Cir. June 27, 2016)....................................5 Kendall v. CubeSmart L.P., No. 15-6098, 2016 WL 1597245 (D.N.J. Apr. 21, 2016) ..................................13 Lee v. Am. Express Travel Related Servs., No. 07-4765, 2007 WL 4287557 (N.D. Cal. Dec. 6, 2007) .................................4 McGarvey v. Penske Auto Group, Inc., 486 F. App’x 276 (3d Cir. 2012) ........................................................................11 Mey v. Got Warranty, No. 5:15-CV-101 (N.D. W. Va. June 30, 2016), ECF No. 128 ...........................5 Miller v. Samsung Elecs. Am., Inc., 2015 WL 3965608 (D.N.J. June 29, 2015).....................................................9, 10 N. Bergen Rex Transp., Inc. v. Trailer Leasing Co., 730 A.2d 843 (N.J. 1999) .....................................................................................8 Nuzzi v. Aupaircare, Inc., 341 F. App’x 850 (3d Cir. 2009) ..........................................................................9 Pub. Citizen v. Dep’t of Justice, 491 U.S. 440 (1989)..............................................................................................5 Schunkewitz v. Prudential Sec. Inc., 99 F. App’x 353, 355 (3d Cir. 2004) ....................................................................9 Shelton v. Restaurant.com, Inc., 214 N.J. 419 (2013) ..............................................................................................6 Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016)......................................................................................1, 4 Venditto v. Vivint, Inc., N. 14-4357, 2015 WL 926203 (D.N.J. Mar. 2, 2015) ........................................14 Wenger v. Bob’s Discount Furniture, Inc., Civ. No. 14-7707 (D.N.J. Feb. 29, 2016) .............................................................7 Case 2:16-cv-01927-KSH-CLW Document 34 Filed 07/15/16 Page 4 of 20 PageID: 245 iv STATUTES Fair Debt Collection Practices Act, 15 U.S.C. § 1692 ..............................................5 Federal Advisory Committee Act, 5 U.S.C. App. 2 ..................................................5 N.J.S.A. § 56:12-15........................................................................................2, 10, 11 N.J.S.A. § 56:12-16...........................................................................................passim N.J.S.A. § 56:12-17....................................................................................................6 New Jersey Truth-in-Consumer Contract, Warranty and Notice Act, N.J.S.A. § 56:12-14, et seq. .........................................................................passim Telephone Consumer Protection Act, 47 U.S.C. § 227 .............................................5 OTHER AUTHORITIES U.S. Const. art. III ..........................................................................................2, 4, 5, 6 Case 2:16-cv-01927-KSH-CLW Document 34 Filed 07/15/16 Page 5 of 20 PageID: 246 Plaintiff’s Opposition does not and cannot remedy the three fundamental flaws in Plaintiff’s Complaint, namely that Plaintiff does not allege: (1) any harm, injury, or even challenges that have befallen him because of the Bed Bath & Beyond website Terms of Use he attempts to attack; (2) that he actually viewed or read the Terms of Use; or (3) that Bed Bath & Beyond ever attempted to enforce any of the allegedly illegal provisions against him. Recognizing that he does not claim any concrete injury beyond the type of bare procedural violation rejected by the Supreme Court in Spokeo, Inc. v. Robins, 130 S. Ct. 1540 (2016), Plaintiff attempts to argue that he sustained an “informational injury” because the Terms of Use contained provisions that would confuse a consumer and would not provide the information required by New Jersey law. But without alleging that he saw the Terms of Use at issue here, he cannot plausibly claim that he was somehow confused by a lack of information. Plaintiff also lacks statutory standing under the TCCWNA because he is not an “aggrieved consumer.” Despite recounting in great detail the history of the TCCWNA and the words of its sponsors, at the very end of his Opposition, Plaintiff astonishingly asks the Court to simply ignore the word “aggrieved” in the statute so that he—someone who has not had his “personal pecuniary or property rights” adversely affected or “suffered the effects of a violation”—can maintain this lawsuit. Case 2:16-cv-01927-KSH-CLW Document 34 Filed 07/15/16 Page 6 of 20 PageID: 247 2 Moreover, Plaintiff cannot escape the clear and enforceable choice of law provision in the Terms of Use providing that they are to be governed by and interpreted according to New York law, rendering the New Jersey TCCWNA inapplicable here. Plaintiff’s claims challenging certain contractual provisions fall squarely within the choice of law clause and his attempt to argue that this is a waiver of statutory rights is unconvincing at best. Finally, Plaintiff cannot plausibly allege that the Terms of Use violate Sections 15 and 16 of the TCCWNA. As to Section 15, it is only by cherry- picking words in the Terms of Use and using them out of context that Plaintiff is able to put forth a misconstrued argument that they apply to anything other than the use of Bed Bath & Beyond’s website. Plaintiff is also unable to cite to any “clearly established” law that prohibits the allegedly offending terms here. And, the two specific provisions that Plaintiff complains of as violating Section 16 do not actually include any language that is offensive to Section 16. For these reasons, Bed Bath & Beyond respectfully requests the Court dismiss Plaintiff’s Complaint with prejudice. I. Plaintiff Lacks Article III Standing to Bring His Claims Plaintiff cites to this Court’s decision in Gomes v. Extra Space Storage, Inc., and suggests that it found that merely alleging a violation of the TCCWNA is enough to establish Article III standing. No. 13-0929, 2015 WL 1472263 (D.N.J. Case 2:16-cv-01927-KSH-CLW Document 34 Filed 07/15/16 Page 7 of 20 PageID: 248 3 Mar. 31, 2015). But Gomes demonstrates exactly the point that a plaintiff must have suffered some real injury to have standing under the TCCWNA. In Gomes, the plaintiff entered into a contract with a storage company to store some of his personal property. The storage company then allegedly overcharged the plaintiff $18 and thereafter proceeded to sell the plaintiff’s personal property at an auction allegedly in violation of New Jersey law. According to the plaintiff, all of this happened because of what he contended to be illegal provisions in the contract that violated the TCCWNA. Gomes, 2015 WL 1472263, at *1-2. With respect to the sale of his property, he alleged that in violation of the TCCWNA, the storage company sold his property for $445.86 and deducted excess amounts owed of $290.82 and remitted to him only $155.04 for property he claimed to be worth $8,747. Id. Clearly, that plaintiff had suffered some alleged harm based on the use of the allegedly illegal contractual provisions to overcharge him and sell his property. Id. at *6-7 (finding that plaintiff suffered an injury in fact because defendants’ enforcement of the allegedly illegal provisions caused plaintiff harm). By contrast, there is no allegation at all that Bed Bath & Beyond enforced the allegedly illegal contract terms against Plaintiff, let alone that any harm or anything bad at all happened to Plaintiff as a result. Plaintiff merely claims that the Terms of Use, by their very existence, violate the TCCWNA. This type of bare Case 2:16-cv-01927-KSH-CLW Document 34 Filed 07/15/16 Page 8 of 20 PageID: 249 4 allegation of a statutory violation alone is insufficient to confer Article III standing. See Spokeo, 136 S. Ct. at 1549 (“Article III standing requires a concrete injury even in the context of a statutory violation.”); see also Lee v. Am. Express Travel Related Servs., No. 07-4765, 2007 WL 4287557, at *2, 5 (N.D. Cal. Dec. 6, 2007) (concrete harm as contemplated by the injury in fact requirement does not arise from words that “are just ‘out there’ and have not had any recognizable impact on plaintiffs”). Lacking any allegation of any misfortune that befell him, Plaintiff relies on the idea that there was an “informational injury” here.1 That is, he claims that the TCCWNA is “an information forcing statute” that was intended to prevent confusion among New Jersey consumers when they saw provisions in a proposed or actual contract that misstated their rights. (Opp. at 10.) Presumably, the TCCWNA would then “force” the seller to disclose additional information. The problem with this argument is that Plaintiff does not allege that he even saw the 1 As a threshold matter, Plaintiff’s argument that he sustained an “informational injury” appears nowhere in Plaintiff’s Complaint. Plaintiff does not allege in the Complaint that he read the Terms of Use, let alone that he was deprived of certain information as a result of being “displayed and/or offered the ‘Terms of Use.” (Compl. ¶ 12.) For this reason alone, the Court should decline to consider Plaintiff’s new argument that he sustained an informational injury. See Com. of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (“[I]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss.”) (citation and quotations omitted). Case 2:16-cv-01927-KSH-CLW Document 34 Filed 07/15/16 Page 9 of 20 PageID: 250 5 Terms of Use. He therefore cannot claim that he was somehow confused by a lack of information or that, had the Terms of Use been different, he would have had some additional “information.” For these reasons, the two U.S. Supreme Court decisions cited by Plaintiff addressing the adequacy of an “informational injury” for purposes of Article III standing are inapposite because the plaintiffs in those cases actually sought and were denied statutorily guaranteed information. See Fed. Election Comm’n v. Akins, 524 U.S. 1, 15-16, 24-25 (1998) (finding group of voters suffered injury under Article III when they asked for and were denied information from the Federal Election Committee); Pub. Citizen v. Dep’t of Justice, 491 U.S. 440, 449 (1989) (determining whether public interest group had standing to sue after they requested and were denied access to meeting minutes that were required to be produced under the Federal Advisory Committee Act).2 Because Plaintiff here did not read the Terms of Use or otherwise sustain any injury from them or any lack of information contained therein, Plaintiff lacks 2 The post-Spokeo cases cited by Plaintiff are similarly inapposite. See Church v. Accretive Health, Inc., No. 15-15708, 2016 WL 3611543, at *3 (11th Cir. July 6, 2016) (injury in fact satisfied where debtors reviewed collection letter that violated FDCPA for failing to set forth that letter was for purposes of debt collection); In re Nickelodeon Consumer Privacy Litig., No. 15-1441, 2016 WL 3513782, at *7 (3d Cir. June 27, 2016) (injury in fact satisfied where plaintiffs suffered from an unauthorized disclosure of private information); Mey v. Got Warranty, No. 5:15-CV-101 (N.D. W. Va. June 30, 2016), ECF No. 128 (injury in fact satisfied where telemarketer violated the Telephone Consumer Protection Act by invading consumers phones without consent, depleting minutes the consumer had paid for, and causing the consumer to incur charges for the calls). Case 2:16-cv-01927-KSH-CLW Document 34 Filed 07/15/16 Page 10 of 20 PageID: 251 6 an injury in fact for Article III standing. II. Plaintiff Is Not an Aggrieved Consumer Under the TCCWNA Under the plain language of the TCCWNA, an action like this one is only available to an “aggrieved consumer.” N.J.S.A. § 56:12-17. Plaintiff waits until the last pages of his brief to address Bed Bath & Beyond’s threshold argument that Plaintiff is not an “aggrieved consumer” and therefore lacks statutory standing under the TCCWNA. Plaintiff’s response is to essentially ask the Court to ignore the plain language of the TCCWNA and read “aggrieved consumer” to mean “consumer.” (Opp. at 39) (relying on Shelton v. Restaurant.com, Inc., 214 N.J. 419 (2013) to argue that the court “never suggested that the term ‘aggrieved consumer’ means anything different from a ‘consumer’”). Plaintiff’s suggestion that the Court ignore a word in the TCCWNA is against the most fundamental concepts of statutory interpretation. See Estate of Reddert v. U.S., 925 F. Supp. 261, 270 (D.N.J. 1996) (rejecting estate’s argument as failing to “comport with basic statutory interpretation principles” by asking the court to ignore the word “or”). Presumably, the New Jersey legislature knew that the courts of New Jersey have long understood an “aggrieved” individual to mean one “whose personal or pecuniary interests or property rights, have been injuriously affected.” Ex parte Van Winkle, 70 A.2d 167, 174 (N.J. 1950) (emphasis added); see also Howard Sav. Case 2:16-cv-01927-KSH-CLW Document 34 Filed 07/15/16 Page 11 of 20 PageID: 252 7 Inst. v. Peep, 170 A.2d 39, 41 (N.J. 1961). Thus, some injury is required to be an “aggrieved consumer” and Plaintiff has none. In this vein, Plaintiff cites Barrows v. Chase Manhattan Mortgage Corporation for the idea that the TCCWNA does not require a plaintiff to plead monetary damages. 465 F. Supp. 2d 347, 362 (D.N.J. 2006). But in Barrows, the contractual provision that the plaintiff challenged had been invoked and used against the plaintiff to the plaintiff’s detriment.3 Id. at 352-53. Thus, while the plaintiff in Barrows may not have suffered monetary harm, he did claim that the statutory provision had been used against him in a way that damaged his interests. Here, Plaintiff does not allege that any of the contractual provisions he challenges were ever used against him. Moreover, in all of the TCCWNA cases cited throughout both parties’ briefs, no court has ever allowed a TCCWNA case to proceed where the challenged contractual provision was not actually used against the plaintiff in some way detrimental to the plaintiff’s interests. In fact, Judge Sheridan recently dismissed a TCCWNA claim where the Plaintiff was not an “aggrieved consumer” because he was not “a party whose personal pecuniary or property right has been adversely affected by another person’s action,” or “one [] suffering the effects of a violation.” See Transcript of Opinion at 14-15, Wenger v. 3 The court in Barrows ultimately dismissed plaintiff’s TCCWNA claim after finding among other reasons that the allegedly illegal terms were not in a consumer contract. Barrows, 465 F. Supp. 2d at 362. Case 2:16-cv-01927-KSH-CLW Document 34 Filed 07/15/16 Page 12 of 20 PageID: 253 8 Bob’s Discount Furniture, Inc., Civ. No. 14-7707 (D.N.J. Feb. 29, 2016), attached as Ex. A to Declaration of Drew Cleary Jordan in Support of Defendant’s Reply Brief. Thus, even if the court accepts Plaintiff’s claim that monetary damages are not necessary, Plaintiff must be aggrieved and he is not. III. The New York Choice of Law Clause in the Terms of Use is Not a Waiver of Statutory Rights Contrary to Plaintiff’s assertion, Bed Bath & Beyond does not argue that Plaintiff waived the TCCWNA. Bed Bath & Beyond believes that the contract Plaintiff is complaining about here—the Terms of Use—is governed by New York law under simple choice of law principles. See Gen. Motors Corp. v. New A.C. Chevrolet, Inc., 263 F.3d 296, 331 n.21 (3d Cir. 2001) (enforcing contractual choice of law provision); see also N. Bergen Rex Transp., Inc. v. Trailer Leasing Co., 730 A.2d 843, 847 (N.J. 1999) (recognizing that New Jersey courts will uphold contractual choice of law provisions). In an attempt to escape the clear choice of law clause in the Terms of Use, Plaintiff first cites a case that addresses the waiver of statutory rights rather than a choice of law clause. Garfinkel v. Morristown Obstetrics, 168 N.J. 124, 132 (2011). Garfinkel, however, addressed whether a Plaintiff had waived statutory rights and did not involve a choice of law clause at all. The only other cases Plaintiff cites are those where courts held that the choice of law provision in a Case 2:16-cv-01927-KSH-CLW Document 34 Filed 07/15/16 Page 13 of 20 PageID: 254 9 contract applied to disputes about the contract itself, but perhaps not to other issues. See Nuzzi v. Aupaircare, Inc., 341 F. App’x 850, 851-52 (3d Cir. 2009); A. & M. Wholesale Hardware Co., Inc. v. Circor Instrumentation Tech., Inc., No. 13- 0475, 2014 WL 714938, at *3-4 (D.N.J. Feb. 24, 2014). For example, in Nuzzi, the Third Circuit held that the choice of law clause applied to “disputes involving a contract term, a condition of employment, or some other element of the contract itself” but not to her claim for employment discrimination. Nuzzi, 341 F. App’x at 853 (emphasis added). Here, Plaintiff’s TCCWNA challenge is one that directly challenges the validity and effect of Terms of Use itself. That issue must be decided under the New York law specified in the Terms of Use. See Schunkewitz v. Prudential Sec. Inc., 99 F. App’x 353, 355 (3d Cir. 2004) (“New Jersey conflict of laws principles clearly recognize the validity and enforceability of choice-of-law provisions in contracts”) (citation omitted). Moreover, Plaintiff cites no case in which a Court permitted a TCCWNA claim to go forward despite the contract at issue containing a valid choice of law clause as the Terms of Use do here. The only case to address that situation is Judge Salas’s decision in Miller v. Samsung Elecs. Am., Inc., cited by Bed Bath & Beyond, in which the Court dismissed the TCCWNA claim because the contract at issue was governed by another state’s law. See 2015 WL 3965608, at *11-12 Case 2:16-cv-01927-KSH-CLW Document 34 Filed 07/15/16 Page 14 of 20 PageID: 255 10 (D.N.J. June 29, 2015) (dismissing TCCWNA claim because Florida law applied to dispute and TCCWNA claim exists only under New Jersey law).4 The same result follows here. IV. The Terms of Use Do Not Violate Section 15 of the TCCWNA Plaintiff’s Opposition does nothing to remedy the fact that the Terms of Use are neither a consumer contract as required under the TCCWNA, nor violate any “clearly established law” under Section 15. Plaintiff can only support his position that they are a “consumer contract” by cherry-picking provisions that use the words “order” or “products” and using them out of context to obscure the plain intent of the Terms. (Opp. at 27-28.) But when read as a whole, the Terms of Use make clear that they apply to a website visitor’s use of the website, regardless of whether the visitor actually makes a purchase: We hope you enjoy using the Site. Because of the unique and exciting nature of the Internet . . . we need to point out to you some legal rules . . . as they apply to your visit here and use of our Site. . . . By using this Site, you agree to accept these terms and conditions . . . . If you do not agree with our terms and conditions, please do not use our Site. (Opp., Ex. C. at 1.) As the Terms plainly apply to a visitor’s use of the website, and not to the purchase of real or personal property, the Terms are not a “consumer contract” and Plaintiff’s claims fail for this reason alone. 4 Plaintiff’s only response to Miller is that the Court was “mistaken[]” on how to treat a TCCWNA claim for choice of law purposes. (Opp. at 21.) Case 2:16-cv-01927-KSH-CLW Document 34 Filed 07/15/16 Page 15 of 20 PageID: 256 11 Even if the Terms of Use were a consumer contract (which they are not), Plaintiff still fails to show that they violate clearly established law. In fact, Plaintiff’s Opposition makes clear that New Jersey law on exculpatory clauses is far from settled. See Opp. at 32-33 (arguing that certain New Jersey decisions on the enforceability of exculpatory clauses were “wrongly decided,” or are valid in “other circumstances”). As quickly as Plaintiff can point to a decision showing that exculpatory clauses are unenforceable, Bed Bath & Beyond can provide a decision where they are. This is hardly the type of wrongdoing that falls “squarely within prohibited conduct under state or federal law” that is required to make out a TCCWNA violation. McGarvey v. Penske Auto Group, Inc., 486 F. App’x 276, 281 (3d Cir. 2012). Moreover, in response to Bed Bath & Beyond’s arguments that Plaintiff has not identified any case stating that online ecommerce terms of use like those at issue here are a “clearly established” violation of applicable law, Plaintiff can only make the unsupported assertion that laws that apply to “brick and mortar retailer[s]” must also apply to an online retailer’s website Terms of Use. (Opp. at 32.) Plaintiff’s own position reinforces that where the violation of a right is unclear, the right is not “clearly established” and the court must dismiss the TCCWNA action. Because Plaintiff fails to supply a clearly established law that the Terms violated, his TCCWNA claim under Section 15 should be dismissed.5 5 In any event, the Bed Bath & Beyond Terms of Use contain a provision limiting Case 2:16-cv-01927-KSH-CLW Document 34 Filed 07/15/16 Page 16 of 20 PageID: 257 12 V. The Terms of Use Do Not Violate Section 16 of the TCCWNA Plaintiff’s argument that two particular provisions in the Terms of Use violate Section 16 of the TCCWNA should be rejected because: (1) they do not include language that is offensive to Section 16 and (2) the “exception” language in the Disclaimer and Limitation of Liability section is exempt from Section 16 because it applies to warranties. The first provision that Plaintiff challenges is a standard severability clause stating that “[i]f any provision of this agreement is unlawful, void or unenforceable, it will not affect the validity and enforceability of any remaining provisions.” (Opp., Ex. C at 1.) This language does not implicate Section 16 because it does not suggest that any provision of the Terms of Use is unenforceable in some states. Rather, it acts as a standard severability clause, which protects certain of the provisions in the event that other portions are unenforceable under New York law, which governs the contract. At least one federal court in New Jersey has held that a standard severability clause does not implicate Section 16 of the enforceability of the Terms to the extent permitted by state law. (Opp., Ex. C at 3.) Plaintiff contends that this provision, which applies “with respect to this site or its contents,” does not apply to the exculpatory provision because it is contained in a paragraph above the exculpatory provision paragraph. This argument is unavailing. Both the exculpatory provision and the provision limiting the enforceability of the Terms fall under the section “Disclaimer and Limitation of Liability.” Following Plaintiff’s logic, only sentences repeated in every paragraph in a section apply in full force to the section it is contained in. He provides no support for this position and thus his argument should be rejected. Case 2:16-cv-01927-KSH-CLW Document 34 Filed 07/15/16 Page 17 of 20 PageID: 258 13 the TCCWNA. See Castro v. Sovran Self Storage, Inc., 114 F. Supp. 3d 204, 213 (D.N.J. 2015) (“Plaintiff’s interpretation of [Section 16] suggests that any standard severability clause implicates the statute. This reading ignores the context of the phrase ‘in some jurisdictions’ creates for application of the statute and cannot be correct.”). Also contrary to Plaintiff’s assertion, the Terms of Use do not “contemplate use in multiple jurisdictions” because they expressly state that they are governed by New York law. Compare Opp., Ex. C at 3 (“These terms and conditions . . . shall be governed and interpreted according to the laws of the State of New York . . . .”); with Kendall v. CubeSmart L.P., No. 15-6098, 2016 WL 1597245, at *9 (D.N.J. Apr. 21, 2016) (finding that lease agreement “contemplates use in multiple jurisdictions” where it stated that “[t]his Lease shall be governed by and construed and enforced in accordance with the laws of the state where the Property is located.”) (emphasis added); and Gomes, 2015 WL 1472263, at *7 (rental agreement provided that self-storage facility “is operated in accordance with the state and local laws governing self-storage facilities, which are incorporated by reference herein”). The other language Plaintiff challenges as violating Section 16 also fails because it relates to warranties and Section 16 “shall not apply to warranties.” Case 2:16-cv-01927-KSH-CLW Document 34 Filed 07/15/16 Page 18 of 20 PageID: 259 14 N.J.S.A. § 56:12-16. The challenged language appears as an “exception” in a section relating to claims for breach of warranty and clearly relates to damages caused by such breaches. In Venditto v. Vivint, Inc., a case acknowledged by Plaintiff, the court held that a provision in an alarm agreement stating that “[w]e are not liable for consequential or incidental damages” fell within the Section 16 exception for warranties because “when read in the context of [that section of the agreement]—as a whole—the limitation on consequential damages necessarily relates to a claim for breach of warranty.” Venditto No. 14-4357, 2015 WL 926203, at *12 (D.N.J. Mar. 2, 2015). Similarly, here, the “exception” language appears immediately after language disclaiming warranties with respect to the Bed Bath & Beyond website. When read in the context of the section as a whole, it is clear that this language is excluding damages relating to such breaches of warranty. Plaintiff’s overly-narrow and hyperliteral position that the statement itself must refer to a warranty in order to fall within the Section 16 exception is unsupported by the law and contrary to the court’s holding in Venditto. See id. (“[T]he Court finds that its inclusion of a limitation on indicidental and consequential damages necessarily relates to the warranty at issue in Section 5 . . . and, in particular, a claim for breach of that warranty.”). Because the challenged language is either a Case 2:16-cv-01927-KSH-CLW Document 34 Filed 07/15/16 Page 19 of 20 PageID: 260 15 standard severability clause or relates to warranties, Plaintiff has not plausibly alleged a violation of Section 16 of the TCCWNA. VI. CONCLUSION For each of the reasons stated above, the Court should dismiss Plaintiff’s Complaint with prejudice. Dated: July 15, 2016 Respectfully submitted, MORGAN, LEWIS & BOCKIUS LLP /s/ Drew Cleary Jordan Drew Cleary Jordan 502 Carnegie Center Princeton, NJ 08540-6241 609.919.6676 drew.jordan@morganlewis.com Gregory T. Parks (admitted pro hac vice) Kristin M. Hadgis 1701 Market Street Philadelphia, PA 19103-2921 215.963.5000 gregory.parks@morganlewis.com kristin.hadgis@morganlewis.com Attorneys for Defendant Bed Bath & Beyond Inc. Case 2:16-cv-01927-KSH-CLW Document 34 Filed 07/15/16 Page 20 of 20 PageID: 261 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY EDWARD SWEENEY, Individually and on Behalf of all Other Persons Similarly Situated, Plaintiff, v. BED BATH & BEYOND INC., Defendant. Civil Action: 2:16-cv-01927 Document Filed Electronically DECLARATION OF DREW CLEARY JORDAN DREW CLEARY JORDAN, of full age, hereby declares as follows: 1. I am an attorney at law of the State of New Jersey and am authorized to practice before this Court. I am an associate with the law firm Morgan Lewis & Bockius, LLP, attorneys for Defendant Bed Bath & Beyond Inc. (“Bed Bath & Beyond”). I submit this declaration in support of the Reply in Support of Defendant’s Motion to Dismiss Plaintiff’s Complaint. 2. Attached hereto as Exhibit A is a true and accurate copy of the Court’s Opinion on Motions to Dismiss filed in Wenger v. Bob’s Discount Furniture, Inc., Civ. No. 14-7707 (D.N.J. Feb. 29, 2016) (ECF No. 73). I hereby declare under the penalty of perjury that the foregoing statements made by me are true and correct. Date: July 15, 2016 /s/ Drew Cleary Jordan Drew Cleary Jordan Case 2:16-cv-01927-KSH-CLW Document 34-1 Filed 07/15/16 Page 1 of 1 PageID: 262 EXHIBIT A Case 2:16-cv-01927-KSH-CLW Document 34-2 Filed 07/15/16 Page 1 of 17 PageID: 263 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 United States District Court Trenton, New Jersey 1 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ______________________________ CHRISTOPHER WENGER, et al, PLAINTIFFS Vs. CIVIL NO. 14-7707 (PGS) BOB'S DISCOUNT FURNITURE, INC., DEFENDANT ______________________________ ______________________________ DAVID & KATINA SPADE, et al, PLAINTIFFS Vs. CIVIL NO. 15-1826 (PGS) SELECT COMFORT CORP., et al, DEFENDANTS ______________________________ FEBRUARY 29, 2016 CLARKSON S. FISHER COURTHOUSE 402 EAST STATE STREET TRENTON, NEW JERSEY 08608 B E F O R E: THE HONORABLE PETER G. SHERIDAN U.S. DISTRICT COURT JUDGE DISTRICT OF NEW JERSEY COURT'S OPINION ON MOTIONS TO DISMISS Certified as true and correct as required by Title 28, U.S.C. Section 753 /S/ Francis J. Gable FRANCIS J. GABLE, C.S.R., R.M.R. OFFICIAL U.S. REPORTER (856) 889-4761 Case 3:14-cv-07707-PGS-LHG Document 73 Filed 03/08/16 Page 1 of 16 PageID: 702Case 2:16-cv-01927-KSH-C W Document 34-2 Filed 07/15/16 Page 2 of 17 PageID: 264 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 00:01 00:02 00:03 00:03 00:04 United States District Court Trenton, New Jersey 2 THE COURT: So, this matter comes before the Court on two putative class actions, each of which is subject to a Rule 12 motion to dismiss for failure to state a claim. Both complainants allege a violation of the New Jersey Household Furniture and Furnishing Regulations, N.J.A.C. (13:45A-5.1), and allege a violation of the Consumer Fraud Act (N.J.S.A. 56:8-1). In addition, both seek a civil penalty ($100 per class member) as provided in the Truth-in-Consumer Contract, Warranty and Notice Act (N.J.S.A. 56:8-1) (TCCWNA). On November 16, 2015, I heard oral argument in the Spade case and decided the motion at that hearing. After my decision I had second thoughts, so a conference call with the parties was initiated and the Court requested the plaintiff to file a motion for reconsideration regarding the Court's order granting judgment on the pleadings (ECF No. 39). Plus, other issues should be addressed: (1) whether plaintiffs have Article III standing; (2) whether plaintiffs are "aggrieved" under TCCWNA; and (3) issues regarding attorneys' fees. Thereafter, the Court informally combined the two cases for purposes of oral argument. (See, January 20, 2016.) (ECF No. 67)(ECF No. 46). Spade v. Select Comfort. On January 12, 2015, plaintiff commenced this civil action complaint in the Superior Court, Ocean County, and the matter was removed to this Court on March 11, 2015 based on Case 3:14-cv-07707-PGS-LHG Document 73 Filed 03/08/16 Page 2 of 16 PageID: 703Case 2:16-cv-01927-KSH-C W Document 34-2 Filed 07/15/16 Page 3 of 17 PageID: 265 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 00:05 00:05 00:06 00:06 00:07 United States District Court Trenton, New Jersey 3 diversity. The only counts remaining against Select Comfort are Counts 1 and 2. Count 1 alleges a violation of TCCWNA, and Count 2 alleges a violation of the Consumer Fraud Act. By way of background, Select Comfort designs, and markets and supports a line of adjustable firmness mattresses, branded as Sleep Number® Bed, as well as bases and bedding accessories. The action arising out of plaintiff's purchase of a Sleep Number® Bed on or about April 25, 2013. Plaintiff paid Select Comfort approximately $9,378.48 for the bed's purchase, including an adjustable base, which allows customers to raise and lower the head and foot portions of the mattress with a remote control. On or about May 29, 2013, the plaintiffs took delivery of the bed. After delivery, plaintiffs experienced two distinct issues: One, operation of the bed's mattress was poor, including a shifting problem, that Select Comfort attempted to repair twice; and, two, a loud cracking sound emanating from the base, which defendant also attempted to repair. Plaintiffs also allege that only one side of the bed responded to the remote control. After a series of unsuccessful attempts to repair by Select Comfort and the vendor, plaintiff retained counsel. Plaintiff's lawyer wrote a letter to the defendants in October 24, 2014. The letter indicated plaintiff revoked acceptance and requested that the defendant remove the bed, provide a Case 3:14-cv-07707-PGS-LHG Document 73 Filed 03/08/16 Page 3 of 16 PageID: 704Case 2:16-cv-01927-KSH-C W Document 34-2 Filed 07/15/16 Page 4 of 17 PageID: 266 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 00:07 00:08 00:09 00:10 00:47 United States District Court Trenton, New Jersey 4 refund and pay attorneys fees. The defendant agreed to pay a full refund in the amount paid for the mattress and bed, but the attorneys fees were not paid. Despite the settlement, plaintiff sued Select Comfort alleging breach of TCCWNA and the Consumer Fraud Act by failing to comply with the New Jersey Household Furniture Regulations. Select Comfort counters that it substantially complied with the above Household Furniture Regulations because it timely delivered the bed, it provided a refund for the defective bed delivered, and plaintiffs cannot demonstrate any loss because the plaintiffs are not aggrieved as the TCCWNA requires because the purchase of the mattress had already been refunded. Wenger v. Bob's. Plaintiffs placed an order for one tan Westbury love seat, and one petite red chest at Bob's Monmouth Junction store on November 25, 2013. The furniture was purchased under plaintiff Eileen Muller's name, however, plaintiff Christopher Wenger, Muller's son, paid for the furniture. At the time of the sale, plaintiff was given a document containing Bob's policies regarding refunds, cancellation, service and warranties. Within the sales documents received by the Mullers, there is a form that shows the items purchased and the dates to be delivered. On that sheet it shows the Westbury tan love Case 3:14-cv-07707-PGS-LHG Document 73 Filed 03/08/16 Page 4 of 16 PageID: 705Case 2:16-cv-01927-KSH-C W Document 34-2 Filed 07/15/16 Page 5 of 17 PageID: 267 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 00:48 00:11 00:12 00:13 00:13 United States District Court Trenton, New Jersey 5 seat will be delivered on December 4, 2013, and the petite red chest was taken with them from the store on 11/25/2013. From reading this document it is very clear when delivery will occur. However, the format does not match the terms of the regulation. The plaintiff carried the chest from the store that day, and the love seat was to be delivered. The total price for both items was $778.94. Plaintiff received the furniture on time and it was conforming. Despite the timely delivery of the love seat, plaintiffs claim that Bob's violated their legal rights as consumers in six ways: (1) The provision of the sale document states "The merchandise that you have ordered is promised for delivery to you on or before _____"; and leaving the blank space empty is contrary to the mandatory language required by the Furniture Regulations at N.J.A.C. 13:45A-5.2; (2) the provision in the sales document states "The merchandise that you have ordered is promised for delivery to you on or before ______"; and that clause is not in ten-point bold face as required by the Furniture Delivery Regulations of (N.J.A.C. 13:45A-5.2(a)); (3) the provision in the sales document which states "If the merchandise ordered by you is not delivered by the promised delivery date, Bob's Discount Furniture must offer the choice of (1) cancelling your order with a prompt full Case 3:14-cv-07707-PGS-LHG Document 73 Filed 03/08/16 Page 5 of 16 PageID: 706Case 2:16-cv-01927-KSH-C W Document 34-2 Filed 07/15/16 Page 6 of 17 PageID: 2 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 00:14 00:14 00:14 00:15 00:16 United States District Court Trenton, New Jersey 6 refund of any payment you have made, or (2) accepting delivery at a specific later date; and that language is not in ten-point bold face type as required by the regulations (N.J.S.A. 13:45A-5.3(a)); (4) The provision in the sales document which provides only for partial refund if a special order item is cancelled later than three days after it was ordered is contrary to the requirement that a full and prompt refund be given if the ordered merchandise is not delivered by the promised delivery date as mandated by the Furniture Regulations (N.J.A.C. 13:45A-5.1(b)); (5) The provision in the sales document which provides the consumers are not entitled to a full refund of a special order which is cancelled later than three days after it was ordered is contrary to the requirements (N.J.A.C. 13:45A-5.1(b)), and therefore violates the Furniture Regulations at N.J.A.C. 13:45A-5.3(c); and (6) The provision in the sales document that requires a consumer to contact a consumer customer care representative if there is a problem with the delivery of home furniture without notifying that a consumer has the option of obtaining a prompt refund or accepting delivery at a later specified later date if the delivered goods are nonconforming is contrary to the Furniture Delivery Regulations (N.J.A.C. 13:45A-5.1(e)(1)). Case 3:14-cv-07707-PGS-LHG Document 73 Filed 03/08/16 Page 6 of 16 PageID: 707Case 2:16-cv-01927-KSH-C W Document 34-2 Filed 07/15/16 Page 7 of 17 PageID: 269 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 00:17 01:43 01:44 01:44 00:17 United States District Court Trenton, New Jersey 7 Although Spade is a motion for judgment on the pleadings, and Wenger is a motion to dismiss for failure to state a claim under FRCP 12(b)(6), the standard is nearly identical. Turbe v. Government of Virgin Islands, 938 F.2d 427, 428 (3d. Cir. 1991). On a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), the Court is required to accept as true all allegations in the complaint, and all reasonable inferences that can be drawn therefrom, and to view them in a light most favorable to the non-moving party. That's Oshiver v. Levin, 38 F.3d 1380, 1384 (3d. Cir. 1994). To survive a motion to dismiss a complaint must contain sufficient factual matter, accepted as true to "state a claim to relief that is plausible on its face." That's Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also, Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007). In order to survive a motion to dismiss, the complaint must allege facts that give rise to a plausible claim, and raise the right to relief above the speculative level. That's Ashcroft, 556 U.S. 662, 664; and Twombly, 550 U.S. 544, at 555. The question is whether the claimant can prove any set of facts consistent with his or her allegations that will entitle him or her to relief, not whether that person will ultimately prevail. That's Semerenko v. Cendant, Corp., 223 F.3d 165, 177 (cert. denied 531 U.S. 1149, 2001). Analysis. Case 3:14-cv-07707-PGS-LHG Document 73 Filed 03/08/16 Page 7 of 16 PageID: 708Case 2:16-cv-01927-KSH-C W Document 34-2 Filed 07/15/16 Page 8 of 17 PageID: 270 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 00:18 00:18 00:19 00:19 00:20 United States District Court Trenton, New Jersey 8 The Court will address the claims of both plaintiffs first by addressing the Furniture Delivery Regulations, then working back through the Consumer Fraud Act and TCCWNA. Furniture Delivery Regulations. The Division of Consumer Affairs within the Department of Law and Public Safety promulgated the Furniture Delivery Regulations sometime prior to 1995. Evidently "delay or non-delivery of household furniture that has been ordered is one of the most frequent complaints reported to the Division." 27 N.J.R. 3566(a) (September 18, 1995) (Proposal Number PRN 2000-327). The purpose of the Furniture Delivery Regulations is to "enable the Division to continue its task force and operation to secure compliance, and to respond to consumer complaints." Id. (Social Impact Section.) As promulgated under the Consumer Fraud Act, the Division may also seek sanctions where there are "serious or persistent violators." Id. The regulations impose contract conditions upon the sellers of furniture. The regulations require that the seller: "(1) deliver all of the ordered merchandise by or on the promised delivery date; or provide written notice of the impossibility of meeting the promised date, the notice shall offer the consumer the option to cancel said order with a prompt refund or to accept delivery at a specified later time, said notice shall be provided prior Case 3:14-cv-07707-PGS-LHG Document 73 Filed 03/08/16 Page 8 of 16 PageID: 709Case 2:16-cv-01927-KSH-C W Document 34-2 Filed 07/15/16 Page 9 of 17 PageID: 271 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 00:20 00:21 00:21 00:22 00:23 United States District Court Trenton, New Jersey 9 to the delivery date." (N.J.A.C. 13:45A-5.1.) (2) The contract or sales document must show the date of the order and contain the following sentence in bold type: "The merchandise you have ordered is promised for delivery to you on or before _____, and then in parentheses (insert date or length of time agreed upon), and it shall not be be preprinted. (N.J.A.C. 13:45A-5.2). (3) The contract or sales document shall conspicuously disclose the seller's obligation in the case of delayed delivery on the first page of the contract form or sales document in bold type: "If the merchandise ordered by you is not delivered by the promised date (insert name of seller) must offer you the choice of (1) cancelling your order with a prompt full payment of any payment you have made; or (2) accepting delivery at a specified later date." (4) Any contract or sales document that contains the term "all sales final" or "no cancellations", or "no refunds", is deemed null and void and unenforceable. N.J.A.C. 13:45A-5.3. And lastly, (5) any violations are subject to "sanctions contained in the Consumer Fraud Act." Spade/CFA. Case 3:14-cv-07707-PGS-LHG Document 73 Filed 03/08/16 Page 9 of 16 PageID: 710Case 2:16-cv-01927-KSH-C W Document 34-2 Filed 07/15/16 Page 10 of 17 PageID: 272 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 00:23 00:24 00:25 00:25 00:26 United States District Court Trenton, New Jersey 10 Plaintiffs contend that although they received their furniture in a timely fashion, the sales contract at issue did not contain the requisite language under the Furniture Regulations, and therefore they have suffered violations of the CFA. In order to plead a violation of the CFA, Spade must allege: (1) unlawful conduct by the defendant (a deceptive practice); (2) an ascertainable loss on the part of the plaintiff; and (3) a causal relation between the defendant's unlawful practice and plaintiff's ascertainable loss. Hoffman v. Hampshire Labs, 405 N.J. Super 105, 113 (App. Div. 2009). Given that the regulation states that the failure to comply with any provision of the Furniture Regulations constitutes a deceptive practice (N.J.A.C. 13:45A-5.1(c)), plaintiff must still show there was an ascertainable loss in order to meet the standards of a bona fide claim. An ascertainable loss includes actual money paid, as well as an estimate of damages calculated within a reasonable degree of certainty. Berg v. Reaction Motors, 37 N.J. 396, 404 (1962.) Once a plaintiff has proven an ascertainable loss by a defendant's failure to comply with the CFA, it is entitled to compensation for said loss. Cox v. Sears Roebuck & Co., 138 N.J. 2, at 22 (1994). If a plaintiff proves that unlawful practice under the CFA and an ascertainable loss has occurred, then an award of treble damages and attorneys fees are mandatory. N.J.S.A. 56:8-19. The Court finds that the Spade's complaint fails to Case 3:14-cv-07707-PGS-LHG Document 73 Filed 03/08/16 Page 10 of 16 PageID: 711Case 2:16-cv-01927-KSH-C W Document 34-2 Filed 07/15/16 Page 11 of 17 PageID: 273 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 00:26 00:28 00:29 00:29 00:29 United States District Court Trenton, New Jersey 11 allege a cause of action under the CFA for violations of the Furniture Regulations because Spade has not shown any ascertainable loss. Plaintiff's allegations focus on their dissatisfaction with the product itself and not with delayed delivery. Generally, the Furniture Regulations only apply where there is untimely delivery. Dinikola v. Watchung Furniture, 232 N.J. Super 69, 72 (App. Div. 1989; cert. denied 117 N.J. 126 (1990)). Therefore, the requirements under the CFA are not implicated by the allegations in the complaint. Plaintiffs did not suffer any losses due to their untimely delivery, and a defective bed was reclaimed and a refund was issued. There is no ascertainable loss and there is no delayed delivery issue. The plaintiff indicates that although there was no ascertainable loss attorneys fees should be included as such. The Court disagrees. Attorneys fees are reimbursable under the CFA only as a consequence of a proven Consumer Fraud Act violation where there is an ascertainable loss. Here, there is no such loss or violation, and, as such, attorneys fees are not awarded. Moreover, the regulations relied upon by plaintiff state that the seller's obligation is to make a "prompt full payment of any payment you have made." This was done. N.J.A.C. 13:45A-5.3 Wenger/CFA. With regard to the CFA, the rationale is similar to Case 3:14-cv-07707-PGS-LHG Document 73 Filed 03/08/16 Page 11 of 16 PageID: 712Case 2:16-cv-01927-KSH-C W Document 34-2 Filed 07/15/16 Page 2 of 17 PageID: 274 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 00:30 00:30 00:30 00:31 00:32 United States District Court Trenton, New Jersey 12 Spade. The plaintiff concedes that he has no loss and the furniture was timely delivered. Moreover, the delivery dates were provided within the sales document, but the bold type was not used and the dates were not placed on the first page as required by the regulations. Absent any ascertainable loss, a CFA claim has not been shown. In both cases, the sellers complied with the spirit of the regulations to deliver furniture timely, and it is unfair to punish such conduct over use of form language. TCCWNA. A pivotal issue is whether plaintiffs can assert the claim under TCCWNA without any ascertainable loss. The law in this Circuit has been split on the matter. In the District of New Jersey, a 2015 case stated that: "An action pursuant to TCCWNA that relies on an alleged violation of the Consumer Fraud Act must also meet the requirements of a CFA claim, including the requirement that plaintiff suffered an ascertainable loss." Wilson v. Kia, 2015 WL 9903540 at *3-5 (D.N.J. June 25, 2015). Two more recent cases in this District that stand for the same proposition are Mladenov v. Wegmans, 2015 WL 5023484 at *15-16 (D.N.J. August 26, 2015) and Mattson v. Aetna Life Company, 2015 WL 5090528 at *9-10 (D.N.J. August 31, 2015). In Mattson, the court stated that: A TCCWNA claim grounded in a CFA violation cannot proceed unless the CFA claim cause of action is stated, and plaintiffs Case 3:14-cv-07707-PGS-LHG Document 73 Filed 03/08/16 Page 12 of 16 PageID: 713Case 2:16-cv-01927-KSH-C W Document 34-2 Filed 07/15/16 Page 13 of 17 PageID: 275 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 00:33 00:34 00:36 00:36 00:37 United States District Court Trenton, New Jersey 13 could not sustain their CFA claim partly because their alleged damages were "illusory". Plaintiff responds that these cases are in conflict with other prior authority; such as McGarvey v. Pensky, 639 F.Supp.2d 450, 457 (D.N.J. 2009) (reconsideration granted at 2010 WL 1379967) (rev'd on other grounds at 486 Fed. Appx. 276, 279 (3d. Cir. 2012)); see also, Arcand v. Brothers, 2010 WL 390733 (D.N.J. 2010, *13). In those cases, plaintiff claims the TCCWNA "provides a remedy even if the plaintiff has not suffered any actual damages." Id. The Court disagrees with the Arcand and the McGarvey cases, based on a different statutory interpretation. The Court looks at the TCCWNA statute. Within the TCCWNA statute there is a section entitled "Violations; civil liability to aggrieved consumer: Action termination of contract." That section states: "Any person who violates the provisions of this Act shall be liable to the aggrieved consumer for civil penalty of not less than $100 or actual damages or both at the election of the consumer together with reasonable attorneys fees and costs. This may be recoverable by a consumer in a civil action in a court of competent jurisdiction or as part of a counterclaim by the consumer against the seller, lessor, creditor, lender, bailee or assigner any of the aforesaid, who aggrieved him; consumer shall have the right to petition the court to Case 3:14-cv-07707-PGS-LHG Document 73 Filed 03/08/16 Page 13 of 16 PageID: 714Case 2:16-cv-01927-KSH-C W Document 34-2 Filed 07/15/16 Page 14 of 17 PageID: 276 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 00:38 00:39 00:40 00:40 00:41 United States District Court Trenton, New Jersey 14 terminate a contract which violates the provision of Section 2 of this Act, and the court in its discretion may void the contract." (N.J.S.A. 56:12-17.) Since the statute requires that the party must be "aggrieved" to create a TCCWNA cause of action, the use of the word "aggrieved" must be determined. Plaintiffs argue differently. They state that this disjunctive language suggests that the legislature intended there be a penalty even if the plaintiff did not suffer any actual damage. I look at it differently. So, the Court must determine the definition of aggrieved consumer through the usual rules of statutory construction. As the Third Circuit notes: "In deciding questions of statutory interpretation, we begin with the text of the statute itself." Watkins v. DineEquity, 591 Fed. App'x 132, 135 (3d Cir. 2014). And Circuit Judge Vanaskie reasoned in that case, "New Jersey courts 'subscribe to the statutory words their ordinary meaning and significance and read them in context with related provisions, so as to give sense to the legislation as a whole.'" Id., (quoting DiProspero v. Penn, 183 N.J. 477 (N.J. 2005)). In adopting Judge Vanaskie's rationale, this Court looked to the ordinary definition of an aggrieved party. Aggrieved party is "one entitled to a remedy, especially a party whose personal pecuniary or property rights have been adversely affected by another person's action." See, Blacks Case 3:14-cv-07707-PGS-LHG Document 73 Filed 03/08/16 Page 14 of 16 PageID: 715Case 2:16-cv-01927-KSH-C W Document 34-2 Filed 07/15/16 Page 15 of 17 PageID: 277 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 00:42 00:43 00:44 00:44 00:45 United States District Court Trenton, New Jersey 15 Law Dictionary. Use of that definition is consistent with at least one New Jersey case, wherein the court determined that the word aggrieved party "refers to one suffering from the effect of a violation of the act." See, Cameron v. Monkey Joe's Big Nut Co., 2008 WL 6084192 at *5 (N.J. Super. Ct. 2008). In these cases, Wenger and Spade, both defendants provided delivery dates and timely delivered the merchandise, and in Spade the plaintiff received a refund for the defective furniture. All of the actions of the defendants are in accordance with the spirit of the Household Furniture Regulations, but may not have met the written requirements appropriately. However, if you look at common sense and the purpose behind the rule, it is to foster timely delivery of conforming furniture, which was done in both cases. As such, the Court does not see, when interpreting the statute, that either plaintiff was an aggrieved consumer. Plaintiffs dispute same. They allege that there's one brief statement in the legislative history indicating that a seller may be responsible even if the consumer was not injured (see, Statement to Assembly Commerce Committee). To utilize such a statement for legislative history undermines the plain meaning rule of statutory construction which the courts utilize. Where the language of the statute is clear, there is no need to look outside of the statute to its Case 3:14-cv-07707-PGS-LHG Document 73 Filed 03/08/16 Page 15 of 16 PageID: 716Case 2:16-cv-01927-KSH-C W Document 34-2 Filed 07/15/16 Page 16 of 17 PageID: 278 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 00:45 00:46 United States District Court Trenton, New Jersey 16 legislative history in order to determine the statute's meaning. See, Kim, Yule. Statutory Interpretation: General Principles and Recent Trends, Washington, D.C., dated August 31, 2008, available at UNT Digital Library, http://digital.library.unt.edu/ark:/67531/metadc26119/. Last visited Feb. 2, 2016. Here, "aggrieved consumer" is one who is suffering the effects of a violation. That interpretation is not ambiguous, and therefore the language of the statute should apply. Since neither plaintiff is an aggrieved consumer, the TCCWNA counts are dismissed. An appropriate order shall be entered. Case 3:14-cv-07707-PGS-LHG Document 73 Filed 03/08/16 Page 16 of 16 PageID: 717Case 2:16-cv-01927-KSH-C W Document 34-2 Filed 07/15/16 Page 17 of 17 PageID: 2 9 CERTIFICATE OF SERVICE I hereby certify that the Reply In Support of Defendant Bed Bath & Beyond Inc.’s Motion to Dismiss Plaintiff’s Complaint was served via electronic mail on all counsel of record on July 15, 2016. Date: July 15, 2016 /s/ Drew Cleary Jordan Drew Cleary Jordan Case 2:16-cv-01927-KSH-CLW Document 34-3 Filed 07/15/16 Page 1 of 1 PageID: 280