Spade v. Select Comfort Corp.

181 A.3d 969, 232 N.J. 504
CourtSupreme Court of New Jersey
DecidedApril 16, 2018
DocketA–57 September Term 2016; 078611
StatusPublished
Cited by79 cases

This text of 181 A.3d 969 (Spade v. Select Comfort Corp.) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Spade v. Select Comfort Corp., 181 A.3d 969, 232 N.J. 504 (N.J. 2018).

Opinion

Gavin J. Rooney, submitted a brief on behalf of amicus curiae the New Jersey Civil Justice Institute (Lowenstein Sandler, attorneys; Gavin J. Rooney and Naomi D. Barrowclough, Roseland, of counsel and on the brief).

Bruce D. Greenberg, Newark, submitted a brief on behalf of amicus curiae Consumers League of New Jersey (Lite DePalma Greenberg, attorneys; Bruce D. Greenberg, of counsel and on the brief, and Susana Cruz Hodge, Newark, on the brief).

Christopher J. Michie and Christopher J. Dalton, Newark, submitted a brief on behalf of amicus curiae Commerce and Industry Association of New Jersey (Clark Michie and Buchanan Ingersoll & Rooney, attorneys; Christopher J. Michie, Bruce W. Clark, Princeton, Christopher J. Dalton, and Jinkal Pujara, Newark, on the brief).

Drew Cleary Jordan, Princeton, submitted a brief on behalf of amicus curiae New Jersey Retail Merchants Association (Morgan, Lewis & Bockius, attorneys; Drew Cleary Jordan and Kristin M. Hadgis, on the brief, and Gregory T. Parks, of the Pennsylvania bar, admitted pro hac vice, on the brief).

Michael P. Daly, and Matthew J. Fedor, Florham Park, submitted a brief on behalf of amicus curiae The Retail Litigation Center, Inc. (Drinker Biddle & Reath, attorneys; Michael P. Daly, Matthew J. Fedor, Meredith C. Slawe, Kathryn E. Deal, Jenna M. Poligo, and Andrew B. Joseph, Florham Park, of counsel and on the brief).

Benjamin D. Morgan, Haddonfield, submitted a brief on behalf of amicus curiae Tailored Brands, Inc. (Archer & Greiner and Armstrong Teasdale, attorneys; Benjamin D. Morgan, on the brief, Charles W. Steese, of the Colorado, Arizona and Iowa bars, admitted pro hac vice, and Douglas N. Marsh, of the Colorado and Illinois bars, admitted pro hac vice, of counsel and on the brief).

JUSTICE PATTERSON delivered the opinion of the Court.

*971**508In this appeal, we address two questions of law certified by the United States Court of Appeals for the Third Circuit to this Court. The Third Circuit's certified questions arise from two putative class actions brought under the Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA), N.J.S.A. 56:12-14 to -18. The plaintiffs in both actions premise their TCCWNA claims on defendants' alleged violations of N.J.A.C. 13:45A-5.2 and - 5.3. Those regulations, promulgated by the Attorney General under the authority of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -210, address the content of contracts of sale or sale orders for the delivery of household furniture.

The certified questions are:

*9721. Does a violation of the Furniture Delivery Regulations alone constitute a violation of a clearly established right or responsibility of the seller under the TCCWNA and thus provides a basis for relief under the TCCWNA?
**5092. Is a consumer who receives a contract that does not comply with the Furniture Delivery Regulations, but has not suffered any adverse consequences from the noncompliance, an "aggrieved consumer" under the TCCWNA?

We answer the first certified question in the affirmative and the second certified question in the negative. We hold that the inclusion of language prohibited by N.J.A.C. 13:45A-5.3(c) in contracts of sale or sale orders for the delivery of household furniture may alone give rise to a violation of a "clearly established legal right of a consumer or responsibility of a seller" for purposes of the TCCWNA. N.J.S.A. 56:12-15. We further hold that a consumer who receives a contract that includes language prohibited by N.J.A.C. 13:45A-5.3(c), but who suffers no monetary or other harm as a result of that noncompliance, is not an "aggrieved consumer" entitled to a remedy under the TCCWNA. N.J.S.A. 56:12-17.

I.

A.

In 1995, pursuant to N.J.S.A. 56:8-4, the Division of Consumer Affairs proposed and adopted regulations governing the delivery of household furniture and furnishings, N.J.A.C. 13:45A-5.1 to - 5.4. See 17 N.J.R. 3575 (Sept. 18, 1995). The regulations impose a series of delivery and notice requirements on "[a]ny person who is engaged in the sale of household furniture for which contracts of sale or sale orders are used for merchandise ordered for future delivery." N.J.A.C. 13:45A-5.1(a).

N.J.A.C. 13:45A-5.1(a) requires the seller to either "[d]eliver all of the ordered merchandise by or on the promised delivery date," or "[p]rovide written notice to the consumer of the impossibility of meeting the promised delivery date." That written notice, which must be provided to the consumer prior to the delivery date in the event that the seller does not meet the agreed-upon delivery schedule, "shall offer the consumer the option to cancel said order with a prompt, full refund of any payments already made or to accept delivery at a specified later time." Ibid.

**510Two of the regulations prescribe specific language that must appear in contract forms or sales documents in "ten-point bold face type" with information specific to the transaction to be added by the seller. N.J.A.C. 13:45A-5.2, - 5.3. First, contract forms or sales documents for furniture sales must include the following statement:

The merchandise you have ordered is promised for delivery to you on or before (insert date or length of time agreed upon).
[ N.J.A.C. 13:45A-5.2(a) (boldface in original).]

Second, such forms or documents "shall conspicuously disclose the seller's obligations in the case of delayed delivery in compliance with N.J.A.C. 13:45A-5.1" and "shall contain, on the first page of the contract form or sales document, the following notice":

If the merchandise ordered by you is not delivered by the promised delivery date, (insert name of seller) must offer you the choice of (1) canceling your order with a prompt, full refund of any payments you have made, or (2) accepting delivery at a specific later date.
[ N.J.A.C. 13:45A-5.3(a) (boldface in original).]

*973Another provision prohibits a seller from including certain language in a furniture contract or sales agreement:

It shall be unlawful for any person to use any contract or sales agreement that contains any terms, such as "all sales final," "no cancellations" or "no refunds," which violate or are contrary to the rights and responsibilities provided for by this rule. Any contract or sales agreement which contains such a provision shall be null and void and unenforceable.
[ N.J.A.C. 13:45A-5.3(c).]

Finally, N.J.A.C. 13:45A-5.4 declares that "any violation of the provisions of this subchapter shall be subject to the sanctions" set forth in the CFA.

B.

1.

Plaintiffs David Spade and Katina Spade (Spade

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Cite This Page — Counsel Stack

Bluebook (online)
181 A.3d 969, 232 N.J. 504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spade-v-select-comfort-corp-nj-2018.