Much has been written this year about the explosion of class actions and demand letters alleging that common contract provisions such as limitations of liability and severability clauses violate the decades-old Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA). And not without good reason, as the allure of attorney fees and aggregate statutory damages of $100 for every technical violation has made the TCCWNA the flavor-of-the-month for the plaintiffs’ bar in New Jersey and beyond.
A number of trial courts have started to push back on this trend by dismissing claims due to their inconsistency with the plain language of TCCWNA, which among other things requires that private plaintiffs be both “consumers” and “aggrieved” by an alleged violation. But even if those defense victories are eventually affirmed on appeal, the TCCWNA is unlikely to retreat back into obscurity any time soon. On the contrary, there is every indication that the current wave of litigation could grow into something even bigger, and could eventually eclipse the Consumer Fraud Act as the go-to weapon in consumer class actions. Businesses should therefore redouble their efforts to minimize any arguable alleged exposure.
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