New Jersey Companies Face Significant Class Action Risks When Using Limiting or Exculpatory Language in Consumer Contracts

New Jersey Companies Face Significant Class Action Risks When Using Limiting or Exculpatory Language in Consumer Contracts
Summary
A federal judge in Camden, N.J., recently granted class certification in a case brought under the Truth in Consumer Contract, Warranty and Notice Act (“TCCWNA”). The class is made up of individuals who signed lease agreements with the defendant, Public Storage, for storage units since at least 2007. The TCCWNA makes it unlawful for a seller to offer or enter into a written consumer contract “which includes any provision that violates any clearly established legal right of a consumer or responsibility of a . . . [consumer]” as established by state or federal law at the time the contract is signed.  The contract at issue had four such questionable provisions.
 
This case arose when the plaintiff’s friend allegedly slipped on an icy patch in front of the plaintiff’s Public Storage space. The friend sued Public Storage for negligence. Public Storage sued the plaintiff pursuant to the indemnity provision in the rental agreement. That case eventually settled and was dismissed. Thereafter, the plaintiff brought a class-action lawsuit against Public Storage alleging violations of the TCCWNA. 
 
The plaintiff alleges that four provisions in the lease agreement with Public Storage violate the TCCWNA, by (1) requiring consumers to hold the defendant harmless for injuries or damage to property for any reason, including but not limited to the Public Storage’s own negligence and/or recklessness; (2) requiring consumers to indemnify Public Storage for any loss arising out of consumers or their invitees’ use of the facility; (3) improperly limiting consumers’ rights to raise defenses in lawsuits arising from the lease agreement; and (4) improperly stating that some provisions may be invalid without specifying which provisions are unenforceable in New Jersey. The court found that the proposed class met the standard for class certification because Public Storage’s conduct of entering into a lease agreement with these provisions was common to all class members, each class member was harmed in the same way, and class issues and questions predominated. 
 
This decision serves to highlight the significant class action risks a company faces when using limiting or exculpatory language in its contracts with consumers. TCCWNA’s statutory damage provision provides plaintiffs’ attorneys with significant incentives to bring putative class actions based on allegedly improper consumer notices or contracts. Companies who utilize consumer contracts and notices should consult with New Jersey based attorneys who can adequately apprise them of the risks TCCWNA and other New Jersey consumer protection statutes pose. 
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