In our first article , we introduced the fundamentals of the TCCWNA, a New Jersey statute that imposes liability on retailers and others who include statements in their contracts or notices that violate consumer rights. Approximately 35 years old, the statute was enacted to protect consumers from falling prey to unenforceable contractual provisions that may quell consumer rights. Now, with the ever-expanding reach of internet sales has come a corresponding increase in the reach of the TCCWNA not possibly conceived of by its drafters. The TCCWNA now reaches online retailers operating from anywhere in the country, provided a consumer in New Jersey purchases the retailer’s goods or services.

Because the TCCWNA provides for statutory damages ($100 per violation), in addition to actual damages, attorneys fees and costs, plaintiffs have sought to bring these cases as class actions. The defense bar, of course, has responded in kind, raising a series of challenges to these actions. As we discussed , defendants have seen some early successes defeating TCCWNA claims by challenging the plaintiffs’ standing to bring these claims, but the law on Article III standing remains uncertain in a post-Spokeo world. In this article, we introduce another potential defense to TCCWNA claims: the inclusion of mandatory arbitration clauses and class action waivers in online retail contracts and notices.

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