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ARBITRATION AGREEMENTS ARE NOT AUTOMATICALLY ENFORCEABLE

What exactly does this mean? The enforcement of arbitration is by no means automatic. The court is mandated to conduct an analysis, based on ordinary contract principles, to determine if the clause itself is enforceable as a clause in a contract. NAACP v. Foulke Management 421 N.J.Super 404 (App.Div. 2011).

New Jersey Courts have determined that arbitration provisions should be examined on a case by case basis and may only be enforced if they contain the appropriate attributes. See Rockel v. Cherry Hill Dodge 368 N.J.Super. 577 (App.Div. 2004). See also Grass v. Associates First Capital Court 346 N.J. Super. 42, 52 (App. Div. 2001).

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CARTON AND RUDNICK 788 SHREWSBURY AVENUE BUILDING 2, SUITE 204 TINTON FALLS, N.J. 07724 732-842-2070 FAX: 732-879-0213
ATTORNEYS FOR PLAINTIFFS.
OUR FILE NO.:

Paul Plaintiff,

Plaintiff,

Vs.
JOHN DOES 1-100,

Defendants. SUPERIOR COURT OF NEW JERSEY LAW DIVISION BERGEN COUNTY

DOCKET No.

CIVIL ACTION
COMPLAINT AND DEMAND FOR JURY

The plaintiff, Paul Plaintiff, by way of complaint against the defendants, states the following:
COUNT I 1. On or about June 2012, the plaintiff acquired the subject automobile from the defendant, John Doe. The Vehicle Identification Number is XXXXXXXX. As part of the transaction, the defendant dealership affirmatively misrepresented the condition of the vehicle, intentionally and willfully to the detriment of the plaintiff upon which the plaintiff relied causing the plaintiff damages. The defendant dealership knew or should have known that the vehicle was previously involved in an accident and/or sustained serious damage through a flood damage confirmed by XXXXXXX Infinity.
2. After the plaintiff purchased the car, he took the vehicle to an authorized Infiniti dealership, XXXXXXXX, and they provided the plaintiff with the service history which indicated the vehicle was previously in a flood. The defendant, XXXXXX, claimed they had no knowledge of the prior damage of the vehicle.
3. It is believed that the defendant, Infiniti of XXXXXXX, made affirmative misrepresentations of fact and/or material omissions of fact pertaining to the prior damage on the vehicle. An authorized Infiniti dealer had access to the service history and were clearly aware of the flood damage when they sold it at auction. They failed to make appropriate disclosures at auction and committed fraud and consumer fraud with regard to the plaintiff.
4. No privity of contract is required for a consumer fraud claim under the New Jersey Consumer Fraud Act between the plaintiff and the defendant, Infiniti of XXXXXXX. They subjected themselves to the jurisdiction of New Jersey on a general basis. The defendant, Infiniti of XXXXXXX, has sufficient expectations being named as a defendant in lawsuits in New Jersey.
5. Moreover, the auction which was run by the manufacturer, XXXXXX of North America, also had an obligation to make appropriate disclosures to a seller of the subject vehicle. And/or they had a responsibility to make sure that the selling dealer made appropriate disclosures to the plaintiff.
6. The plaintiff has sustained an ascertainable loss together with interest and costs of the suit.
WHEREFORE, the plaintiff demands judgment against the defendants jointly and severally together with interest and costs of the suit together with punitive damages.

JURY DEMAND
Plaintiff hereby demands a trial by a jury of six (6) jurors as to all issues raised in these pleadings.

DESIGNATION OF TRIAL COUNSEL Pursuant to the provisions of Rule 4:25-4, the Court is advised that JONATHAN RUDNICK, ESQ., is hereby designated trial counsel.

CERTIFICATION I hereby certify that, pursuant to R. 4:5-1(b)(2), this matter in controversy is not the subject of any other action pending in any Court or of a pending arbitration, nor is any action or arbitration proceeding contemplated.

CARTON & RUDNICK Attorneys for Plaintiff

BY:__________________________________ JONATHAN RUDNICK, ESQ.

Dated: November 20, 2012 Continue reading ›

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Free Drinks worth $58 million.

The ABA Journal reported that an attorney in Chicago who made a claim against Southwest Airlines pertaining to a change or modification to a free drink coupon policy which resolved the lawsuit at a value up to almost $60 million.

According to ABA Journal, the class action suit which was filed by Mr. Levitt alleging that Southwest Airlines breached the agreement with their customers pertaining to whether or not the airline would agree to honor $5 drink vouchers without expiration dates. According to the ABA Journal, the settlement is based on an estimate of $29 million to $58 million.
Initially, the drink vouchers were provided to customers who purchased special Business Select seats with the airline.

If this claim were filed in the New Jersey state courts, there also would be an allegation of fraud or consumer fraud. It is not clear whether such allegation was made in this particular case. Under New Jersey law under the Consumer Fraud Act, the petitioners of the class action would be seeking treble damages or basically cancellation of the expiration dates of the coupons.

Southwest Airlines disputed allegations in the case and representatives stated that they were very confident that if the case were litigated, Southwest would have prevailed.
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INTERROGATORIES FOR DEALER
1. When did this defendant acquire the subject vehicle?

2. While the vehicle was in the possession of the defendant was the car ever damaged, if so explain how, the amount of damage and how it was fixed, and by whom.

3. Did this defendant ever inspect the vehicle, if so when, why, and the results?

4. Describe all service performed in this car and attach all repair orders
5. List all conversation between the parties and all testimony you will use at the trial
6. List all pre delivery services and products purchased by the plaintiff, list price and documents indicating that the plaintiff agreed to purchase the product and all conversations supporting the claim that plaintiff agreed to purchase the product or service.

7. Was the plaintiff ever told that the car had not been in an accident, and of so by whom?
8. How much money was forwarded to the MFGR to have the car certified?

9. List each employee who was involved in any way with this transaction
10. Explain the certification process and attach all documents supporting same
11. List selling prices for vehicles set forth in demand for documents number 12 .
12. Who was the used car manager who inspected the plaintiff’s vehicle and where is his report?

13. When the dealership acquired the plaintiff’s car did they own a paint thickness meter and if so was it used on the plaintiff’s vehicle?

14. If not why?
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New Jersey is a notice state which means there are very liberal pleading requirements for most claims BUT some specificity is required for fraud. The following is an example of a complaint that was filed against a car dealership in New Jersey.

CARTON AND RUDNICK 788 SHREWSBURY AVENUE BUILDING 2, SUITE 204 TINTON FALLS, N.J. 07724 732-842-2070 FAX: 732-879-0213

ATTORNEYS FOR PLAINTIFFS.

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DEMAND FOR DOCUMENTS

1. Entire deal jacket 2. Any letters received from anyone acting on the plaintiff’s behalf 3. Invoice 4. All repair orders for this car 5. All insurance estimates and damage reports for this car 6. Deal Recap 7. Expert reports 8. Documents to be used at trial 9. Entire service history 10. All documents used in the certification process 11. Communication with the MFGR regarding the final certification and transmittal any proceeds sent to the MFGR.
12. VINS of all of the certified used cars that were sold by the dealership in the one year before the plaintiff’s transaction that either had 1) an accident/damage reported in CARFAX or 2) known damage to the car before the sale to the customer.
13. VINS of all of the certified used cars that were sold by the dealership in the one year before the plaintiffs transaction 14. If you are going to assert that the damage (alleged) done to the plaintiffs vehicle has no effect on the value or the selling price of the car please bring all records for any vehicle that was sold by the dealership with ANY damage disclosed and/or accident on CARFAX.
15. Any advertisement for the plaintiff’s vehicle 16. Book out sheet for the plaintiff’s vehicle to the financing source 17. Copies of any and all GALVES , NADA or any manuals used by the used car manager or any dealer employee to value used cars 18. Copy of the certification manual applicable to the plaintiffs car 19. Website material pertaining to the quality of certified used cars 20. Dealer license 21. Dealer bond Continue reading ›

Contact Information
788 Shrewsbury Ave
Building 2, #204
Tinton Falls, NJ 07724
Phone: (732) 709-7277Fax: (732) 879-0213

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