Last month, we wrote about a New Jersey statute—the Truth-in-Consumer Contract, Warranty and Notice Act (the TCCWNA)—that, among other things, seeks to impose liability on online sellers when they sell to New Jersey consumers. Generally, the act prohibits sellers (including online sellers) from including any provisions in certain writings, the most common of which are contracts (including clickwrap agreements), notices, and terms and conditions, that violate “any clearly established legal right of a consumer or responsibility of a seller … as established by State or Federal law.”
The plaintiff’s claim is typically that the seller failed to disclose a consumer right or misleadingly disclaimed the seller’s obligation. As one can imagine, these claims are primed for the plaintiffs bar to bring as putative class actions, among other reasons, because a contract need not be executed for a seller to have potentially violated the statute. Therefore, class actions key off of potentially thousands of different consumers’ viewing of a website. But does the TCCWNA statute have teeth in a post- Spokeo world in which injury is required for Article III standing?
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