The Third Circuit certified to the New Jersey Supreme Court two questions about the interplay between New Jersey’s furniture delivery regulations and the state’s Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA). In Spade v. Select Comfort Corp., — A.3d —, 2018 WL 1790394 (N.J. Apr. 16, 2018), the court answered. In so doing, it expanded the reach of TCCWNA, which is intended to “prevent deceptive practices in consumer contracts.” Id. at *7. The act prohibits merchants from offering and entering into written contracts with consumers that include “any provision that violates any clearly established right of a consumer or responsibility of a seller … as established by State or Federal law at the time the offer is made or the consumer contract is signed.” Id.

Spade concerns two sets of plaintiffs. According to the pleadings, David and Katrina Spade purchased furniture from Select Comfort. The sales contract stated that the sale of certain products was “final” and that for certain products, “[n]o returns will be accepted.” Id. at *4. The Spades’ furniture was delivered on time and in conformity with the contract, but the Spades alleged in a putative class action that this language violated N.J.A.C. 13:45A-5.3(c), which holds unlawful any sales agreement “that contains any terms, such as ‘all sales final,’ ‘no cancellations’ or ‘no refunds’ … Any contract or sales agreement which contains such a provision shall be null and void and unenforceable.” Id. at *4-5. The Spades also alleged that the sales contract did not contain the boldface language mandated by N.J.A.C. 13:45A-5.2(a), that “The merchandise you have ordered is promised for delivery to you on or before (insert date or length of time agreed upon).” Id. at *4.

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