Spade v. Select Comfort Corp.
| Decision Date | 16 April 2018 |
| Docket Number | A–57 September Term 2016,078611 |
| Citation | 232 N.J. 504,181 A.3d 969 |
| Parties | David SPADE and Katina Spade, h/w, individually and as a class representative on behalf of others similarly situated, Plaintiffs–Appellants, v. SELECT COMFORT CORP., d/b/a Sleep Number, Leggett & Platt Inc., Defendants–Respondents. Christopher D. Wenger and Eileen Muller, on behalf of themselves and those similarly situated, Plaintiffs–Appellants, v. Bob's Discount Furniture, LLC, Defendant–Respondent. |
| Court | New Jersey Supreme Court |
Lewis G. Adler argued the cause for appellants David Spade and Katina Spade (Lewis G. Adler and Law Office of Paul DePetris, attorneys; Lewis G. Adler and Paul DePetris, Turnersville, on the briefs).
Andrew R. Wolf, New Brunswick, argued the cause for appellants Christopher D. Wenger and Eileen Muller (The Wolf Law Firm, attorneys; Andrew R. Wolf and Henry P. Wolfe, North Brunswick, on the briefs).
Andrew S. Hansen of the Minnesota bar, admitted pro hac vice, argued the cause for respondent Select Comfort Corp. (Fox Rothschild, attorneys; Karen A. Confoy, Lawrenceville, on the brief, and Heidi A.O. Fisher, of the Minnesota bar, admitted pro hac vice, and Andrew S. Hansen, of the Minnesota bar, admitted pro hac vice, of counsel and on the briefs).
Brett D. Carroll of the Florida and Massachusetts bars, admitted pro hac vice, argued the cause for respondent Bob's Discount Furniture, LLC (Holland & Knight, attorneys; Brett D. Carroll, Sean C. Sheely, and Duvol M. Thompson, on the briefs).
James A. Barry, argued the cause for amicus curiae New Jersey Association for Justice (Locks Law Firm and Law Offices of Charles N. Riley, attorneys; James A. Barry, Michael A. Galpern, Cherry Hill, Andrew P. Bell, and Charles N. Riley, Cherry Hill, on the brief).
David R. Kott, argued the cause for amicus curiae New Jersey Business & Industry Association (McCarter & English, attorneys; David R. Kott, Edward J. Fanning, Newark, and Zane C. Riester, of counsel and on the brief).
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).
In 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:
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.
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.
Two 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:
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":
Another provision prohibits a seller from including certain language in a furniture contract or sales agreement:
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.
Plaintiffs David Spade and Katina Spade (Spade plaintiffs) assert that on or about April 25, 2013, they purchased furniture from a retail store owned and operated by defendant Select Comfort Corporation (Select Comfort).1 They allege that Select Comfort's sales contract included the following language prohibited by N.J.A.C. 13:45A–5.3(c) : a statement that the sale of certain products "are final," and a statement that as to certain categories of products, "[n]o returns will be accepted" or "[n]o returns or exchanges will be authorized or accepted." The Spade plaintiffs also allege that the sales contract that Select Comfort provided to them did not include language mandated by N.J.A.C. 13:45A–5.2(a) and N.J.A.C. 13:45A–5.3(a).
It is undisputed that the furniture ordered by the Spade plaintiffs was timely delivered to them on or about May 29, 2013. As the Third Circuit noted, "[t]he Spade plaintiffs experienced problems with their furniture, but it was initially delivered in a conforming manner."2
Plaintiffs Christopher D. Wenger and Eileen Muller (Wenger plaintiffs) allege that on November 28, 2013, they ordered furniture from a store owned by defendant Bob's Discount Furniture, LLC (Bob's Discount Furniture).3 They allege that the "sales document" provided by Bob's Discount Furniture included the following language:
You may cancel special orders within three (3) days after the order date (11/28/2013) and we will refund your Special Order deposit in full. If you cancel your special order later than...
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