There seems to be an increase in the number of reported lawsuits levied by plaintiffs against IHA members alleging that the Terms and Conditions of their online ecommerce websites violate New Jersey’s arcane Truth-in-Consumer Contract, Warranty and Notice Act (“TCCWNA”).
These lawsuits don’t have to prove there has been a loss or damage suffered by the consumer. Your company doesn’t have to be incorporated in the state of New Jersey or be domiciled in the state for this law to impact your exposure to a potential lawsuit. The claim simply asserts a mere technical violation of New Jersey and federal laws and regulations affecting consumer rights. IHA reached out to legal counsel and have obtained sample language that may circumvent a potential lawsuit. This sample language is appropriate for each member company’s Terms and Conditions section of their website.
The sample language reads:
THESE TERMS REQUIRE YOU TO ARBITRATE DISPUTES, WAIVE YOUR RIGHT TO A JURY TRIAL AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FOR ANY ALLEGED BREACH OF THESE TERMS TO THE FULLEST EXTENT PERMITTED BY LAW. Any dispute or claim relating in any way to these terms of use, this website, or any products or services sold or distributed by or through this website, will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims so qualify. The Federal Arbitration Act and federal arbitration law will apply to any arbitration conducted in connection with these terms and conditions, and any such arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the American Arbitration Association (“AAA”). To the fullest extent permitted by law, we each agree that any arbitration or other dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. You and [Insert Company Name] agree, to the fullest extent permitted by law, to waive any objection based on lack of personal jurisdiction, place of residence, improper venue or forum non-conveniens, and you agree to give up any right to a jury trial in any such arbitration or other dispute resolution proceeding.
None of this should be construed as legal advice and each of you should seek legal counsel to insure proper protection under the law for your particular situation. If you would like to read further into this issue, the authors of the sample language above, the law firm of Schiff Hardin who is IHA’s preferred law firm on this topic, has prepared some additional material which explains the situation in more detail.
If you would like to seek further legal advice from Schiff Hardin on this topic, you can reach out to either Joe Krasovec at +1-312-258-5639 or Dale Matschullat at +1-312-258-5507 or +1-404-514-4348.
