New Jersey Lemon Law Lawyer Blog

Expedited Consumer Arbitration

September 18, 2009 | Jonathan Rudnick

Expedited Consumer Arbitration in the American Arbitration Association

It is well-known that a majority of dealerships, whether big or small, use standard arbitration agreements contained in all their contracts. Frequently, dealers who use arbitration agreements in various places and various documents such as a buyer’s order, a warranty, a retail installment sales contract or a generalized and completely separate consumer arbitration agreement.

Generally, the arbitration clauses permit a selection of various “neutral” entities to resolve the dispute. The three most frequently used arbitration forums are the National Arbitration Forum, American Arbitration Association and JAMS. It is now unlikely as a result of recent developments that anybody will be using the National Arbitration Forum to resolve these disputes. This will be subject to a later post. Both JAMS and the American Arbitration Association have specialized, expedited, consumer arbitrations for those who enter into a retail installment sales contract and wish to arbitrate a dispute against the dealer. Both the American Arbitration Association and JAMS have specific consumer due process protocols to assure that consumers get a “fair shot” in litigating their claims against the dealer.

DAMAGED AND FRAME-DAMAGED CARS

August 28, 2009 | Jonathan Rudnick

DAMAGED AND FRAME-DAMAGED CARS

It is a common question that is asked frequently: does a seller of a motor vehicle or an automobile have the obligation to disclose that the vehicle was damaged even slightly, less than frame damage? Is there a separate obligation based on the nature and extent of the damage? Is it relevant that there was frame damage? The New Jersey law in the subject is mostly a matter of common sense. If the seller of an automobile or vehicle knows that a vehicle was damaged, he has the obligation to make material disclosures to the person to whom he is selling the car if he thinks that the disclosure of the information would make a difference in the purchasing decision. This is what makes a material disclosure relevant.

There are certain exceptions to this rule for the disclosure of damages on damaged cars where the legislator has promulgated or passed various laws requiring certain disclosures. As an example, New Jersey law requires disclosure of advertised automobiles where there is damage in excess of $1,000. This number varies by state. Nonetheless, the New Jersey Consumer Fraud Act has taken the more ethical approach and applied it to the sale of goods. The law in the State of New Jersey is no longer buyer beware but rather seller beware. Therefore, the seller of an automobile has the obligation to make sure that all representations pertaining to the sale of specific automobile are correct. As an example, if the seller tells a buyer that a vehicle has not been damaged, has not been in an accident, is in good shape or makes certain representation as to the condition of the vehicle, he has an obligation to make sure that this representation is true and accurate. The New Jersey Consumer Fraud Act does not have any intent requirement for affirmative misrepresentations. This means that if a seller of an automobile says the vehicle has not been damaged or has not been in an accident and ultimately it turns out that the vehicle was in an accident despite the seller of the automobile not being aware of same, there is liability under the New Jersey Consumer Fraud Act which applies triple damages, attorney fees and costs.

Best Buy Mistake in Advertising TV for $9.99

August 12, 2009 | Jonathan Rudnick

Is Best Buy required to honor their advertisement selling TVs for $9.99?

Stories on the internet indicate that Best Buy probably made a mistake in placing a very expensive television for sale for $9.99.

If you have purchased or attempted to purchase one of these TVs and Best Buy refuses to honor the advertisement please call this office for a free consultation.

Breach of Warranty: Car Warranty Claims

August 12, 2009 | Jonathan Rudnick

Goods to be merchantable must be at least (a) pass without objection in the trade under the contract description; and (b) in the case of fungible goods, are of fair average quality within the description; and (c) are fit for the ordinary purposes for which such goods are used; and (d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and (e) are adequately contained, packaged, and labeled as the agreement may require; and (f) conform to the promises or affirmations of fact made on the container or label, if any.

The issue whether a defect existing at the time of sale substantially affecting the value of the collateral creates a breach the implied warrant of merchantability. See 26 Am Jur Proof of Fact 1 Section § 7. Elements of merchantable quality-“Fair average”. The issue is not whether the car can be driven but whether the reduced value has a remedy under the UCC. The answer must be yes? Why would the Code leave those purchasing defective goods without a remedy? The Code reflects the intent that warranties can be created in many ways, both express and implied. N.J.S.A. 12A:2-313. The Uniform Commercial Code should be liberally construed and applied to promulgate its underlying purposes and policies. Matter of Maple Contractors, Inc., 172 N.J.Super. 348, 411 A.2d 1186 (L.1979). The codes basic concept of damages is based on reduction of value. D’Ercole Sales, Inc. v. Fruehauf Corp., 206 N.J.Super. 11, 21, 501 A.2d 990, 995 (App.Div.1985). Does it make sense that the code measures damages analyzing value then leaves a consumer without remedy for purchasing collateral with a defect where the value is reduced by the cost to repair the goods? In Spring Motors v. Ford Trucks 98 N.J. 555, 590 (1985) the claim was that the goods had a reduced value and there were also expenses for repairs, as in the current case.

WAIVER OF CONSUMER FRAUD CLAIMS AND CONSUMER ARBITRATION

August 8, 2009 | Jonathan Rudnick

WAIVER OF CONSUMER FRAUD CLAIMS AND CONSUMER FRAUD
The litigation in this case arises out of the plaintiff’s allegations that the defendant committed fraud and consumer fraud with regard to the performance of a home improvement contract. See Cox v. Sears, 92 N.J. 1 (1994). The defendant now relies upon arbitration clause and move to have the case dismissed. The arbitration clause provides the following:
Any dispute, controversy or claim arising out of or relating to this contract at the option of Care Temp may be submitted to binding arbitration with the American Arbitration Association and judgment on award may be entered in any amount entered in any court or company jurisdiction The arbitration clause as written is unenforceable under New Jersey law as promulgated by the New Jersey Supreme Court. In Garfinkel v. Morristown Obstetrics and Gynecology Associates, 168 N.J. 124 (2001), the court refused to enforce an arbitration agreement because the arbitration agreement failed to specifically include a waiver of statutory rights. The Supreme Court held that without the specific waiver of statutory rights, the agreement could not be said to encompass those statutory rights in the context of an arbitration clause. In Garfinkel, the court refused to force the plaintiff to arbitrate their statutory law against discrimination claims because the arbitration agreement specifically failed to include a waiver of statutory rights.

Class Actions and Typicality: Consumer Fraud

August 1, 2009 | Jonathan Rudnick

Plaintiffs’ Claims Are Typical of the Class
The New Jersey Supreme Court has stated that the typicality requirement is sometimes equated with the fourth requirement of adequacy of representation. Delgozzo, supra, 266 NJ Super. at 186. Typicality ensures that the representative plaintiffs’ interests are similar enough to the absent members so that the absent members will be adequately and fairly represented. Claims are typical if they “have the essential characteristics common to the claims of the class.” In re Cadillac, supra, 93 N.J. at 425. It does not mean, however, that they must be “identical.” Delgozzo, supra, 266 Super. at 187; see also Eisenberg, supra, 766 F. 2d at 786 (explaining that typicality is present where the factual circumstances of the class representatives are not “markedly different” from other members of the class); Weiss v. York Hospital, 745 F. 2d 786, 810 (3′ Cir. 1984); cert. denied, 470 U.S. 1060 (1985) (observing that plaintiff’s claims are typical if they arise from same events or practices or courses of conduct that give rise to the claims of other class members); De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7′ Cir. 1983) (explaining that claims are typical if they arise from same event or practice or course of conduct that give rise to other class members and are based on same legal theories); 3 H Newberg, Newberg on Class Actions §3.13 (3d ed.1992).
As explained by the Third Circuit in Baby Neal, supra,”‘ factual differences will not render a claim atypical if the claim arises from the same event or practice or course of conduct that gives rise to the claims of the class members, and if it is based on the same legal theory.'” 43 F. 3d at 58 (citation omitted); see also Eisenberg, 766 F 2d at 786 (holding that plaintiffs were typical because their “case was that these were identical investments, prepared by the same defendants, and containing the same alleged omissions and misrepresentations”). While the focus is on the relatedness of the plaintiffs’ claims and those of the class members, the harm suffered by the named plaintiffs may differ in degree from that suffered by other members of the class so long as the harm suffered is of the same type. See Delgozzo, supra, 266 NJ Super. at 187.

Where to Sue a Car Dealership? Part II

July 15, 2009 | Jonathan Rudnick

New Jersey courts should be especially accommodating to their own citizens seeking justice at home. “An action by or against a resident will ordinarily not be dismissed as being in an inconvenient forum….” Gore v. United States Steel Corp., 15 N.J. 301, 311 (1954). Although domestic residence is not decisive, “there is a strong presumption in favor of retaining jurisdiction where the plaintiff is a resident who has chosen his [or her] home forum.” It is only in those exceptional cases where a weighing of all of the many relevant factors, of which residence is but part, decisively establishes that there is available another forum where trial will best serve the convenience of the parties and the ends of justice, that the doctrine is ever invoked. See In re Vioxx Litigation 395 N.J.Super. 358, (App.Div. 2007). In Mastroneada v. Occidental Hotels Management 391 N.J.Super. 261 (App.Div 2007) the Appellate affirmed the trial court’s decision to permit the plaintiff’s selection of New Jersey as the forum for an accident occurring in Mexico based on this principle.

The plaintiff does not dispute the list of factors for the court to review, which are as follows:

Private interest factors

Where Can you Sue a Car Dealership?

July 8, 2009 | Jonathan Rudnick

Under the relevant due process inquiry, the forum state’s exercise of jurisdiction must be reasonable, which is measured by the “minimal contacts” doctrine, a threshold requirement for specific personal jurisdiction. Hanson v. Denckla, 357 U.S. 235, 251, 78 S.Ct. 1228, 1238, 2 L.Ed.2d 1283, 1296 (1958); International Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Waste Management, supra, 138 N.J. at 119-20, 649 A.2d 379; Lebel, supra, 115 N.J. at 322, 558 A.2d 1252. Minimal contacts requires “that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson, supra, 357 U.S. at 253, 78 S.Ct. at 1240, 2 L.Ed.2d at 1298. Under a specific jurisdiction analysis, the minimum contacts inquiry must focus on “the relationship among the defendant, the forum, and the litigation.” Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2579, 53 L.Ed.2d 683, 698 (1977); Lebel, supra, 115 N.J. at 323, 558 A.2d 1252.

In applying the “minimum contacts” test, we focus on the relationship among the defendant, the forum, and the litigation. The “minimum contacts” requirement is satisfied so long as the contacts resulted from the defendant’s purposeful conduct and not the unilateral activities of the plaintiff. This “purposeful availment” requirement ensures that a defendant will not be hauled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts. The question is whether the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being hauled into court there. Lebel v. Everglades Marina, Inc., 115 N.J. 317, 323-24, 558 A.2d 1252 (1989)

Both the Appellate Division and the New Jersey Supreme Court have held that the seller of retail goods in another state is subject to the jurisdiction of the State of New Jersey. The Supreme Court specifically held in Lebel v. Everglades Marina, Inc., 115 N.J. 317 (1989) that, “In comparison, the marketer of a big ticket luxury item that accomplishes the sale by solicitation of out-of-state buyer in the buyer’s state can fairly be expected to contemplate that a breach of contract will expose it to a suit in the forum of the buyer. We thus find this does not offend our notions of substantial justice and fair play to ask the seller of this special order, Luxury Vessel, to account for its negotiations of the transaction in a New Jersey court.”

Class Actions & Common Questions of Facts

July 4, 2009 | Jonathan Rudnick

Courts construing R. 4:32-1(b)(3) have repeatedly stressed that the Rule only requires a predominance of common questions, not an identity of all issues. See, e.g., Fiore v. Hudson County Employees Pension Comm.,151 N.J. Super. 524, 528 (App. Div. 1977); Lusky v. Capasso Bros., 118 N.J. Super. 369, 372 (App. Div.), certif. denied, 60 N.J. 466 (1972). In Delgozzo, supra, the Appellate Division stated that a court may certify a class “even though individual questions, such as degree of damages due a particular class member, or reliance by individual class members on defendants’ alleged misrepresentations, may remain following resolution of the common questions.” 266 N.J. Super. at 181; Strawn v. Canuso, 140 N.J. 43, 67 (1995) (certifying class of landowners). Despite these instructions, defendants’ opposition offers nothing more than a hodgepodge of the typical and over-used arguments that class certification is inappropriate because generalized individual questions and affirmative defenses exist, a position routinely rejected by the New Jersey Supreme Court.

For example, in Iladis v. Wal-Mart Stores, Inc., 191 N.J. 88 (2007), the plaintiff moved to certify a class of current and former New Jersey employees of Wal-Mart for unpaid work. Before the Supreme Court, Wal-Mart argued that the trial court’s and Appellate Division’s decisions denying class certification should be affirmed because of numerous individual issues, including, but not limited to, “whether particular employees voluntarily missed rest and meal breaks; why employees who worked off-the clock did not avail themselves of the curative time-clock procedure; how much time was worked off-the-clock; whether employees worked off-the clock with the expectation of compensation; and how much in damages employees suffered, if any.” Id. at 112.

In reversing the lower courts, the Court focused on Wal-Mart’s common course of conduct towards its employees. See id. at 111-12 (describing common factual, legal and evidentiary issues). It determined that, even though there were numerous and material individual issues of fact, they did not prevent or foreclose a finding of predominance or that class certification was inappropriate. Id. at 112. In particular, the Court relied upon its earlier decision in In re Cadillac, supra. As explained by the Iliadis Court:

Truecar.com: A Consumer’s Site

June 30, 2009 | Jonathan Rudnick

Recently, I was surfing the internet and discovered a site through news releases that is actually very useful.

The site is truecar.com and the basic underpinnings of this site are the consumers’ ability to access purchase information for vehicles. Apparently truecar.com has the availability of some sort of database or survey information pertaining to what people have paid for various vehicles as well as the extras. It then provides some sort of analysis – maybe a regression analysis – as to the appropriate or average price for these vehicles. With this site, you get information pertaining to what the market is bearing for a particular vehicle with particular options. Since most individuals do not have the ability to go to auctions or have the access to information that dealerships have, I would say that the availability of this information at truecar.com would be essential, if it is in fact accurate. I have no knowledge whether or not this information is accurate or the source of their information. However, the basic concept underlying truecar.com I completely support because it assists consumers in providing them with more information on their purchasing decision. If you are buying a car, it would seem to be a reasonable resource to avail yourself of, to have as much as if not more knowledge than the dealership pertaining to the pricing practices or pricing patterns of a particular car in a particular market. With regard to information, more is always better.