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Member News — Riker Danzig Announces the NJ Supreme Court Declines to Revisit TCCWNA Decision
June 20th, 2018

Morristown-based law firm Riker Danzig Scherer Hyland & Perretti LLP announced that the New Jersey Supreme Court has declined to hear an appeal by plaintiffs against its client Lumber Liquidators in a putative class action alleging violations of the state’s Furniture Delivery Regulations and the Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA).  The New Jersey Appellate Division had affirmed the 2015 decision of the New Jersey Superior Court, Law Division, Middlesex County to dismiss the proposed class action against Lumber Liquidators, a national hardwood flooring distributor.  This case involved questions of first impression concerning the application of the Furniture Delivery Regulations to distributors of a construction materials, as well as the scope of the TCCWNA.

Under TCCWNA, sellers of consumer products are prohibited from inserting illegal terms or warranties in their contracts, and are also prohibited from violating any “clearly established” right of a consumer.  Plaintiffs had contended that Lumber Liquidators violated the TCCWNA because their invoices did not contain certain language that is required to be included in invoices provided by “sellers of household furniture and furnishings,” pursuant to New Jersey’s Regulations Governing the Delivery of Household Furniture and Furnishings.  At the motion to dismiss stage, Riker Danzig’s team had argued that, as a seller of hardwood flooring, Lumber Liquidators was not subject to the Furniture Delivery Regulations, given that neither the plain text of the Regulations, nor any regulatory or judicial authority, gave any indication that hardwood flooring fit within the definition of “household furniture” contained in the Regulations. Superior Court Judge Andrea G. Carter concurred, establishing that sellers of hardwood flooring do not fall within the definition of delivering “household furniture,” and the Court therefore did not have to consider the question of whether a consumer’s right to receive invoices containing the language required by the Furniture Delivery Regulations is itself a “clearly established” right with respect to delivery of hardwood flooring.

Equally significant, the trial court also rejected plaintiffs’ argument that Lumber Liquidators’ limitation of remedy provision – under which the purchaser agrees to waive consequential damages and agrees that his or her remedy in connection with the transaction is limited to the price of the goods purchased – in any way violated the TCCWNA.  As Riker Danzig explained in its motion to dismiss, the limitation of remedy clause contained in the invoices is a standard provision that is expressly permitted under the New Jersey Uniform Commercial Code (“UCC”), and nowhere did the provision purport to limit a consumer’s ability to seek the statutory remedies afforded under either the TCCWNA or the CFA.

Riker Danzig Co-Chairman Brian O’Donnell, who led the Riker Danzig team for Lumber Liquidators, said this case provides significant clarification concerning the scope of both the Furniture Delivery Regulations and the TCCWNA.  “Some courts in recent years have read the scope of the statute expansively to place additional burdens on businesses, even when their contractual provisions are otherwise lawful under New Jersey law.  The Court’s denial of the plaintiffs’ certification petition, which leaves in place the lower courts’ dismissal of plaintiffs’ complaint, shows that the bounds of TCCWNA are not limitless, and that the statute cannot be used to turn lawful contractual provisions into TCCWNA violations by creative plaintiffs’ attorneys.”

Working with O’Donnell on the case were Riker Danzig partner Michael O’Mullan, counsel Jeffrey Beyer and associate Casey Boyle.

For over 135 years, Riker Danzig Scherer Hyland & Perretti LLP has focused on providing high-quality legal services to the business community.  Headquartered in Morristown, New Jersey, the Firm has additional offices in Trenton and New York. Riker Danzig has earned a national reputation for expertise in trial and appellate litigation, insurance, commercial law and bankruptcy and, in addition, has highly-respected practices in products liability, environmental law, employment law, family practice, tax and trusts and estates, corporate law and mergers & acquisitions, governmental affairs, public utilities, real estate and intellectual property.

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