BOSTON HARTFORD STAMFORD NEW YORK

Overview of the Truth-in-Consumer Contract, Warranty and Notice Act (“TCCWNA”) § Enacted in 1980 to deter sellers from discouraging consumers from enforcing their legal rights by including provisions in consumer contracts that violate their rights § Establishes no substantive consumer rights § “Any person who violates the provisions of this act shall be liable to the aggrieved consumer for a civil penalty of not less than $100. . . . ” 2

TCCWNA: A Unique Statute § TCCWNA is a unique statute, in that it requires virtually no proofs to establish a cause of action. If interpreted too broadly, it can lead to draconian results: – A statutory penalty of $100 per violation is available to all class members, even in the absence of any harm – Liability can be imposed for including a provision in a consumer contract that violates even an obscure regulation that is irrelevant to the transaction at issue; – It does not require a showing of reliance on the part of the consumer; permitted even if the consumer was not mislead or did not rely on the alleged TCCWNA violation; 3

TCCWNA: A Unique Statute (ctd. ) – There is no apparent need for defendant to have any intent to harm the consumer -- a wholly innocent mistake can arguably support a TCCWNA violation across a broad class, even for a mistake as insignificant as a typo; – There is no apparent need to prove causation, as TCCWNA conceivably allows a consumer to recover even if the consumer or class was not damaged by the contractual provision, notice, or terms, which the consumer contends violated an established right; – Defendant can arguably be exposed to both damages under the CFA and the $100 statutory penalty for the same conduct, thereby permitting double recovery. 4

TCCWNA § Contains five sections: – Section 14, which is the introduction; – Sections 15 and 16, which regulate the content of consumer contracts and warranties; – Section 17, which creates a right of action for aggrieved consumers; and – Section 18, which provides that Section 17 does not limit other causes of action. 5

Sections 15 and 16 – Violations § No seller may offer to any consumer, or enter into any written consumer contract, or give or display any written consumer warranty, notice or sign, which includes any provision that violates any “clearly established legal right” of a consumer or responsibility of a seller as established by law. § Consumer contracts may not state that any terms or provisions are void, unenforceable or inapplicable in some jurisdictions without specifying whether they are void, unenforceable or inapplicable in New Jersey. 6

And then …. . 7

Plaintiffs’ Bar -8 -

What is Happening Now § The (mis)use of TCCWNA as a potential vehicle for broad class action claims has only just been realized. § The organized plaintiffs’ bar has increasingly relied on TCCWNA as a purported basis for class actions because of its vagueness and broad scope. 9

Flood of Class Action Suits • In in the past twelve months, 64 class actions have been filed in New Jersey state and federal courts by plaintiffs alleging TCCWNA violations. • 45 of these 65 TCCWNA class actions have been filed by the same eleven law firms. • These six law firms and lawyers have each filed at least 4 TCCWNA class actions in the past year: • The Clark Law Firm (11); The Wolf Law Firm (6); The Zemel Law Firm (5); Lewis Adler, Esq. (5); Avi Naveh, Esq. (4); Robert Berg, Esq. (4) -10 -

Duplicative Plaintiffs Filing Class Actions § These lawsuits often involve nearly identical complaints, and the same plaintiffs. For example: – Alan Brahamsha is the named plaintiff in three TCCWNA actions filed on the same day by the same lawyer, against Redbox Automated Retail LLC, Supercell Oy, and Starbucks Corporation; – Aaron Rubin, Fay Rubin, and/or Fruma Rubin are the named plaintiffs in three TCCWNA lawsuits filed against Inuit Inc. , Saks Direct Inc. , and J Crew Group, Inc. ; – Ryan Russell is the named plaintiff in three TCCWNA lawsuits filed by the same law firm, against Advance Auto Parts Inc. , Clawfoot Supply LLC, and Croscill -11 Home;

Duplicative Plaintiffs Filing Class Actions (ctd. ) – Darla Braden is the plaintiff in two cases filed by the same lawyer against both Staples and TTI Floor North America; – Lucia Candelario is the named plaintiff in two TCCWNA actions filed by the same lawyer, against Vita-Mix Corporation and Whirlpool Corporation; – Blane Friest is the named plaintiff in two TCCWNA lawsuits -– one in state court and one in federal court –- against Luxottica Group Spa; – Norris Hite is the named plaintiff in two lawsuits filed by the same lawyer, against Lush Cosmetics and The Finish Line Inc. ; – Bronwyn Nahas is the named plaintiff in two suits filed by the same lawyer against Hatworld Inc. and L Brands Inc. 12

Website Terms of Use claims § Plaintiffs’ attorneys have been asserting TCCWNA claims based on website Terms of Use § Provisions that have been the bases upon which such TCCWNA claims have been made include: – Exculpatory, indemnity and severability clauses – Clauses that allegedly violate the Punitive Damages Act or Product Liability Act – Clauses disclaiming liability for third-party acts, such as hacking/data breaches 13

Manufacture of claims example § Real provision on website Terms: – This disclaimer of liability also applies to any damages or injury caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operations or transmission, computer virus, communication line failure, theft or destruction or unauthorized access to, alteration of, or use of record, whether for breach of contract, tortious behavior, negligence or any other cause of action. 14

Manufacture of claims example (cont’d) § Cherry picking of language: – This disclaimer of liability also applies to any [for] damages or injury caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operations or transmission, computer virus, communication line failure, theft or destruction or unauthorized access to, alteration of, or use of record, whether for breach of contract, tortious behavior, negligence or any other cause of action. 15

Manufacture of claims example (cont’d) § Plaintiff’s final edited disclaimer of liability: – “liability. . . [for] damages or injuries caused by any failure of performance. . . breach of contract, tortious behavior, negligence or any other cause of action. ” 16

Pending TCCWNA Class Actions – Terms of Use Claims § Braden v. TTI Floor and Candelario v. Vita-Mix – fully briefed and awaiting decision in District of New Jersey – Plaintiffs claim the website Terms of Use violate TCCWNA – Defendants argue that: • Plaintiffs have no standing under Spokeo • The Terms are not a consumer contract, notice, or sign under TCCWNA • Plaintiffs are not aggrieved consumers under the statute • There is no violation of a clearly established legal right § Candelario v. Rip Curl – motion to dismiss granted by Central District of California 17

Smerling v. Harrah’s § Caesars plans to ask the NJ Supreme Court to overturn the judgment against it in a class action over an allegedly misleading casino promotion. § Plaintiff was issued a $15 voucher for use at Harrah’s Resort as part of the Caesars Total Rewards customer loyalty program, but were unable to use it as the specific time they tried because of limits on its usage. § The Smerlings alleged violations of the Consumer Fraud Act and TCCWNA, based on making the birthday offer only available during certain hours, when the promotion said the only requirements were to present a Total Rewards card and ID. 18

Smerling v. Harrah’s § The Appellate Division recently gave its decision: § First, it held plaintiff did not meet the definition of “consumer” because she did not “buy, lease, borrow or bail anything. ” Driving to the casino to redeemd did not count becauase “[t]his expansive interpretation of ‘buy’ would render the Act’s conditions for application. . . virtually meaningless. ” § It also held that the “Birthday Cash” coupon was not a “consumer contract, ” because it “did not require the payment of any cash and plaintiff did not ‘buy’ the offer with cash or on credit. ” 19

Smerling v. Harrah’s § The Court therefore reversed the summary judgment finding and vacated the class certification and fee orders. § Take away: Only actual purchasers can bring claims under the TCCWNA — not “prospective” purchasers — and the law does not apply to coupons. 20

What to do if you are sued or receive a claim 21

First step: Know your opponent § The first step is understanding who is on the other side. § Plaintiffs’ firms do not practice law in the traditional sense. – They often are in the business of investigating and manufacturing claims. § This is especially true in cases involving alleged TCCWNA violations related to Terms and Conditions on corporate websites. 22

Second Step: Consider Your Options § Evaluate possible “exit strategies. ” – Option One: pre-answer motions to dismiss and motions to strike the class claims – Option Two: early pre-class settlement to reduce media attention, especially if the proposed changes to the Terms and Conditions are modest and can be done without significant impact to the underlying business – Option Three: attempt to ignore 23

One: File a Motion to Dismiss § The recent U. S. Supreme Court case, Spokeo v. Robins, suggests that plaintiffs in these cases may not have standing. § Spokeo held in the context of a statute with a similar statutory penalty provision that statutory standing alone – without concrete and particularized harm – does not confer statutory standing. § This may be a basis for dismissing TCCWNA claims made without any actual harm alleged. 24

Class Certification § If a motion to dismiss is unsuccessful, moving to strike the class certification may be an option. § Ascertainability (Carrera) is an issue for plaintiffs. § Different individual experiences with the website may also be an issue for plaintiffs. § In Dugan v. TGIF, the NJ Appellate Division concluded, with regard to the TCCWNA claims, that plaintiffs failed to establish that issues of fact common to members of the class predominated over issues affecting only individual class members. 25

TCCWNA – Not Suitable For Class Certification § Class certification of TCCWNA claims brought by plaintiffs alleging entitlement to the statutory penalty is inappropriate because: – Class certification in this context is not superior to individual action. Individuals can efficiently and easily bring small claims actions in the Special Civil Part, without the need for the class action vehicle. – If certification is permitted, individual inquiry will still be required to determine each plaintiff’s exposure to the notice, sign, terms, or other writing at issue. – The Plain Language Act also supports limiting certification of TCCWNA claims in these types of cases. 26

Dugan v. TGIF and Bozzi v. OSI Restaurant Partners, Inc. § The NJ Supreme Court will consider questions of statutory interpretation of TCCWNA within the context of class certification in two related appeals – Dugan v. TGIF, Inc. and Bozzi v. OSI Restaurant Partners, LLC. § The main question is if class certification is appropriate where plaintiffs allege violations of CFA and TCCWNA because of the failure to include drink prices on menus. § Given that certifiability of TCCWNA classes is crucial to the viability of present and future litigations, the decision will likely be significant in determining the future of TCCWNA. 27

Two: Settlement § Considering settlement – There may be some financial appeal in resolving a claim in infancy, as litigation costs will likely exceed the price of settlement. – One approach is to offer a lump sum payment in exchange for the release of individual claims. – Given the likely large target base, Plaintiff might accept a nuisance sum in settlement. 28

Settlement (cont’d) – An individual settlement will not result in a release of all potential claims, namely those of absent putative class members – only binding on the single individual. – Ethics rules limit ability to foreclose Plaintiff’s firm from bringing future suits against the company. – A pre-certification settlement does not provide any long-term security. 29

Three: Ignore 30

What to Do to Prevent TCCWNA Claims 31

Proactive Review of Terms of Use § Review and update your Terms and Conditions and other web-based advertising and social media campaigns so they are less likely to draw the attention of plaintiffs’ firms. § HOW: – Remove overly broad limitations of liability – Remove geographic “void where prohibited” language – Be proactive 32

Proactive Review of Terms of Use (cont’d) § Your Terms and Conditions should accurately reflect your current products and offerings, and any updates in the law. § Less is more – focus on what you need. § Regularly revising your website’s Terms and Conditions also makes it more difficult for plaintiffs’ lawyers to argue that a nationwide class has been equally exposed to the same terms for an extended period of time. 33

Tips to Consider in Revising Terms of Use § Include affirmative acceptance before website visitors can access and use your website. § Be clear that the Terms of Use apply ONLY to the use of the website and not to the purchase or use of products. § Do not disclaim or indemnify against personal injury. § Focus on website use; not product-related terms. 34

Add Roadblocks § Add enforceable arbitration agreement. § Add class action waiver. § Add forum selection clause and choice of law clause. 35

QUESTIONS? 36