WATKINS v. DINEEQUITY, INC. et al

Filing 33

OPINION. Signed by Chief Judge Jerome B. Simandle on 08/28/2012. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

CANDICE WATKINS, on behalf of
herself, and all others
similarly situated,

HONORABLE JEROME B. SIMANDLE

Civil No. 11-7182 (JBS/AMD)
Plaintiff,
v.
OPINION
DINEEQUITY, INC., et al.,
Defendants.

APPEARENCES:
Wesley Glenn Hanna, Esq.
Sander D. Friedman, Esq.
LAW OFFICE OF SANDER D. FRIEDMAN, LLC
125 North Route 73
West Berlin, NJ 08091
Counsel for Plaintiff
John B. Kearney, Esq.
Christopher Neal Tomlin, Esq.
BALLARD SPAHR LLP
210 Lake Drive East
Suite 200
Cherry Hill, NJ 08002-1163
Counsel for Defendants
SIMANDLE, Chief Judge:
I.

INTRODUCTION
Plaintiff, Candice Watkins, brings a putative class action

against Defendants DineEquity, Inc. and Applebee’s
International, Inc. d/b/a Applebees Neighborhood Grill and Bar
(“Applebee’s”), d/b/a International House of Pancakes, LLC
(“IHOP”) (collectively, “Defendants”) seeking damages,

injunctive relief and other relief under New Jersey’s Truth in
Consumer Contract Warranty and Notice Act (“NJTCCWNA”).

In her

single-count Amended Complaint [Docket Item 20], Plaintiff
Watkins claims she is a consumer who has purchased soft drink
beverages and beers at Defendant’s Applebees’ and IHOP
restaurants in New Jersey that were offered on the menus without
prices; she alleges that offering such beverages for sale
without indicating the prices violates New Jersey law, in the
NJTCCWNA, and is contrary to clearly established New Jersey law
requiring point-of-purchase notice of an item’s selling price.
This action is before the Court on Defendants’ motion to dismiss
Plaintiff’s Amended Complaint for failure to state a claim
pursuant to Fed. R. Civ. P. 12(b)(6).

[Docket Item 22.]

As

will be explained below, Plaintiff has failed to state a prima
facie case for violation of NJTCCWNA.

The Court will dismiss

Count I without prejudice to Plaintiff’s right to seek leave to
file a curative amendment that states a claim for relief.

II.

FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY
Defendants own and operate restaurants, and Defendants’

restaurants “use menus created by or on behalf of DineEquity,
Applebee’s, and/or IHOP.”

Am. Compl. ¶¶ 4, 6.

The menus

Defendants provide to customers do not provide the prices of
“soda, beer, mixed drinks, wine, coffee, and ... other

2

beverages.”

Id. at ¶¶ 8, 9.

Ms. Watkins is a consumer who has

purchased food and beverages at Applebee’s and IHOP franchise
locations in New Jersey, and she has purchased beverages (soft
drinks and beers) despite the absence of prices on their menus.
Id. at ¶ 13.
On October 31, 2011, Ms. Watkins filed this action in the
Superior Court of New Jersey, Camden County-Law Division.
Notice of Removal ¶ 2.

Defendants subsequently removed the

action to this court based on diversity jurisdiction under 28
U.S.C. §§ 1332(d)(2)(A) 1 and (d)(6). 2

Id. at ¶ 8.

On March 12, 2012, Plaintiff filed an Amended Complaint
pursuant to Rule 15(a)(1)(A).
the instant motion to dismiss.

On April 9, 2012 Defendants filed
Briefing on the motion is now

complete and it is ripe for decision.

1

Plaintiff is a citizen of New Jersey, Defendant DineEquity is
incorporated under the laws of Delaware with its principal place
of business in California, Defendant Applebee’s is incorporated
under the laws of Delaware and has its principal place of
business in Missouri, and Defendant IHOP is incorporated under
the laws of Delaware with its principal place of business in
California. Notice of Removal ¶¶ 4-7.
2

The Amended Complaint pertains to 96 restaurants in New
Jersey, which allegedly did not disclose beverage prices on
their menus. As such, the putative class contains more than one
hundred putative class members and at least $5 million in
controversy, and is therefore alleged to satisfy the
requirements of the Class Action Fairness Act of 2005, 28 U.S.C.
§ 1332 (d). Id. at ¶ 11.

3

III. DISCUSSION
A.

Standard for Motion to Dismiss

In deciding a defendant’s 12(b)(6) motion to dismiss, the
Court must “accept all factual allegations as true, construe the
complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the
complaint, the plaintiff may be entitled to relief.”

Phillips

v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)
(quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7
(3d Cir. 2002)).
Thus, “to survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”

Ashcroft v.

Iqbal, 565 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); see also Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
“While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a
plaintiff[] [must] provide the ‘grounds’ of his ‘entitle[ment]
to relief’ [beyond] labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S.
265, 286 (1986)).

4

Therefore, after Iqbal, when presented with a motion
to dismiss for failure to state a claim, district
courts should conduct a two-part analysis. First, the
factual and legal elements of a claim should be
separated. The District Court must accept all of the
complaint's well-pleaded facts as true, but may
disregard any legal conclusions.
Second, a District
Court must then determine whether the facts alleged in
the complaint are sufficient to show that the
plaintiff has a “plausible claim for relief.” In other
words, a complaint must do more than allege the
plaintiff's entitlement to relief. A complaint has to
“show” such an entitlement with its facts.
Fowler, 578 F.3d at 210-211 (citations omitted).

The Court will

thus look at Plaintiff’s single count to determine what would be
required for a plausible case then decide whether the alleged
facts are sufficient to satisfy the requirement.
B.

Count I: Truth in Consumer Contract Warranty and
Notice Act, N.J. Stat. Ann. 56:12-14 et seq.

Plaintiff’s sole asserted claim arises under the New Jersey
TCCWNA.

“The TCCWNA ... prohibits a seller from entering into a

contract with a consumer that includes any provision that
violates a federal or state law.”

Bosland v. Warnock Dodge,

Inc., 396 N.J. Super. 267, 278 (App. Div. 2007); see also Kent
Motor Cars, Inc. v. Reynolds and Reynolds Co., 207 N.J. 428, 457
(2011) (“The purpose of the TCCWNA ... is to prevent deceptive
practices in consumer contracts by prohibiting the use of
illegal terms or warranties in consumer contracts.”).
The statute provides in relevant part:
No seller, lessor, creditor, lender or bailee shall in
the course of his business offer to any consumer or

5

prospective
consumer
or
enter
into
any
written
consumer contract or give or display any written
consumer warranty, notice or sign . . . which includes
any provision that violates any clearly established
legal right of a consumer or responsibility of a
seller,
lessor,
creditor,
lender
or
bailee
as
established by State or Federal law at the time the
offer is made or the consumer contract is signed or
the warranty, notice or sign is given or displayed.
N.J. Stat. Ann. § 56:12-15.

A person who violates NJTCCWNA

“shall be liable to the aggrieved consumer for a civil penalty
of not less than $100.00 or for actual damages, or both at the
election of the consumer, together with reasonable attorney's
fees and court costs.”

N.J. Stat. Ann. § 56:12-17.

In order to bring a claim under NJTCCWNA, a plaintiff must
demonstrate (1) the plaintiff is a consumer within the statute’s
definition 3; (2) the defendant is a seller, lessor, creditor,
lender or bailee; (3) the defendant (a) offers or enters into a
written consumer contract, or (b) gives or displays any written
consumer warranty, notice, or sign; and (4) the offer or written
contract, warranty, notice or sign included a provision that
violates any clearly established legal right of a consumer or
responsibility of a seller.
The critical issues in this case are (1) whether a
restaurant menu constitutes an “offer” or a “written consumer

3

“Consumer means any individual who buys, leases, borrows, or
bails any money, property or service which is primarily for
personal, family or household purposes.” N.J. Stat. Ann. §
56:12-15.
6

contract, warranty, notice or sign”; and (2) whether the
omission of prices from a menu falls under the statute’s
language prohibiting the inclusion of a provision(s) that
violate a consumer’s clearly established legal rights.
1. The Parties’ Arguments
Defendants argue Ms. Watkins has failed to raise a legally
cognizable claim under NJTCCWNA.

Defendants advance three

independent reasons to support dismissal.

First, a restaurant

menu is neither a consumer contract nor a warranty, notice or
sign.

Second, NJTCCWNA only covers the inclusion of provisions

that violate legal rights, not mere omissions.

Finally, as a

matter of law, Defendants did not violate a clearly established
legal right.
Ms. Watkins states that N.J Stat. Ann. § 56:8-2.5, part of
New Jersey’s Consumer Fraud Act (“CFA”), requires sellers “of
any merchandise at retail” to “plainly mark[] [merchandise] by a
stamp, tag, label or sign either affixed to the merchandise or
located at the point where the merchandise is offered for sale”
with the total price of the merchandise.

Plaintiff then argues

that N.J. Stat. Ann. 56:8-2.5 “can only be read as requiring
restaurants to price items offered on their menus,” and that by
omitting certain beverage prices from their menus, Defendants
violated a legal responsibility.

Additionally, Plaintiff

contends that menus are functionally contracts, warranties,

7

notices and signs.

Consequently, Ms. Watkins asserts that

Defendants are subject to NJTCCWNA because (1) menus constitute
contracts, warranties, notices and signs, and (2) omitting
certain beverage prices from menus violates a responsibility of
the seller established under state or federal law.
2. Statutory Interpretation Under New Jersey Law
The basis for this Court’s jurisdiction is diversity of
citizenship and the Class Action Fairness Act of 2005.

When

sitting in diversity, a federal court must apply the substantive
law of the state of whose law governs the action.

Jaasma v.

Shell Oil Co., 412 F.3d 501, 507 n.5 (3d Cir. 2000) (citing
Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1373 n.15 (3d
Cir. 1996)).

In the instant case, Ms. Watkins alleges

Defendants’ New Jersey franchise locations have engaged in
conduct violative of New Jersey law.

As such, New Jersey

substantive law controls, and this Court must predict how the
New Jersey Supreme Court would decide the issue.

Specialty

Services Intern., Inc. v. Continental Gas Co., 609 F.3d 223, 237
(3d Cir. 2010) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64,
78-80 (1938)).

However, where, as here, the state Supreme Court

has not ruled on the specific issue before the federal court,
the federal court can consider, but not give persuasive effect
to, lower court opinions and other reliable data.

Berrier v.

Simplicity Mfg., Inc., 563 F.3d 38, 45 (3d Cir. 2009) (citing

8

Nationwide Insurance Co. v. Buffetta, 230 F.3d 634, 637 (3d Cir.
2000)).
Under New Jersey Law, statutory construction begins with
the plain language of the statute.

Miah v. Ahmed, 179 N.J. 511,

520 (2004) (citing Merin v. Maglaki, 126 N.J. 430, 434 (1992)).
“In the absence of contrary legislative intent, such language
should be given its ordinary meaning.”

Id.

(citation omitted).

Clear and unambiguous statutory language is enforced as written.
Id.

The legislative history and the statute’s remedial

objectives are also relevant to statutory interpretation when no
single plain meaning is clear.

Id. at 521-22.

More specifically, “[i]n construing [NJ]TCCWNA on a motion
to dismiss, the court must determine if the Legislature intended
to prohibit the conduct alleged,” and the analysis starts with
the statute’s language.

Smith v. Vangaurd Dealer Services,

L.L.C., 2010 WL 5376316 *2 (N.J. Super. Ct. App. Div. Dec. 21,
2010) (citations omitted).
3. Whether a restaurant menu constitutes an offer
for a consumer contract or a written consumer
contract, warranty, notice or sign
a. Offer of a written contract
Among other things, the NJTCCWNA pertains to a seller who
“in the course of his business [makes an] offer to any consumer
or prospective consumer . . . which includes any provision that
violates any clearly established legal right of a consumer . . .

9

as established by state or federal law at the time the offer is
made . . . .”

N.J. Stat. Ann. § 56:12-15.

From the wording of

the statute, it seems clear that an offer need not blossom into
a full-fledged consumer contract to be actionable, so long as
the offer includes a provision that violates a clearly
established state or federal legal right of a consumer.
A restaurant menu would appear to suffice as an offer by
the restaurant to provide the consumer with the listed food or
beverage.

In the restaurant context, Black’s Law Dictionary’s

definition of an “offer” seems particularly apt: “The act or
instance of presenting something for acceptance.”
Dictionary 1189 (9th ed. 2009).

Black’s Law

The recent unpublished

Appellate Division opinion, Dugan v. TGI Friday’s, Inc., 2011 WL
5041391 (N.J. Super. App. Div. Oct. 25, 2011), discussed below,
assumed that a restaurant menu was an “offer,” referring to the
“offer encompassed by TGIF’s menu.”

Id. at *8.

This Court,

likewise, assumes that a restaurant menu constitutes an “offer”
for purposes of the TCCWNA.
b. Written consumer contract
Courts interpreting the statute have found that NJTCCWNA
applies to contracts, warranties, notices and signs.

DeHart v.

U.S. Bank, N.A., 811 F. Supp. 2d 1038, 1051 (D.N.J. 2011).
Defendants claim NJTCCWNA, plainly read, covers four
particular documents: written contracts, warranties, notices, or

10

signs.

While Defendants concede a menu may contain one element

of a contract, an offer, they argue a menu is “merely a list of
food dishes and beverages” and lacks the contract elements
acceptance and consideration.

Defs.’ Mot. to Dismiss 10.

Ms. Watkins argues NJTCCWNA represents remedial consumer
protection legislation, and, as such, is entitled to liberal
construction to advance its beneficial purposes.

Under this

approach, Plaintiff claims a menu constitutes a contract.
The question of whether a restaurant menu constitutes a
contract has not been expressly addressed by New Jersey Courts. 4
The Court does not need to decide this issue because it is
convinced the menu at issue can adequately fit within NJTCCWNA’s
coverage of offers, as discussed above, and alternatively
notices and signs, as discussed below.
c. Warranty
Defendant argues a menu is not a warranty because it is
merely a list of items offered by a restaurant and not a promise
that some aspect of the contract is guaranteed by the seller.
Plaintiff asserts that a restaurant menu is a list of
promises/warranties.

To support this claim, Plaintiff quotes

4

As a point of comparison, the check presented by a restaurant
to a consumer at the end of the meal may be more easily defined
as a written consumer contract. The check contains each item
offered by the restaurant and accepted by the consumer, the
consideration in terms of the beverages and food provided, as
well as the price of each item and the total amount owed.
11

the “SkinnyBee™ Margarita” description from an Applebee’s menu,
“This refreshing drink boasts Hornitos™ 100% Agave tequila and
around 100 calories.”

Plaintiff asserts that the description is

an example of a warranty conveyed by Defendant’s menu.

Pltff.’s

Brief in Opposition at 11, Ex. N.
New Jersey finds an “express warranty” may be established
by “any description of the goods which is made part of the basis
of the bargain ....”

N.J. Stat. Ann. 12A:2-313. This definition

is consistent with Black’s Law Dictionary, which defines
“warranty” as “an express or implied promise that something in
furtherance of the contract is guaranteed by one of the
contracting parties; esp., a seller’s promise that the thing
being sold is as represented or promised.”

Id. at 1725 (9th ed.

2009).
Whether or not a specific product description appearing on
a menu is a warranty need not be decided here because it is
immaterial to Plaintiff’s claim.

Ms. Watkins is not claiming

that she was served a beverage that varied from the menu
description.
d. Notice and Sign
“Notice” and “sign” appear in NJTCCWNA alongside “contract”
and “warranty.”

These words cannot be defined in isolation.

Rather, “[t]he meaning of words [used in a statute] may be
indicated and controlled by those [words] with which they are

12

associated.”

Ahmed, 179 N.J. at 521 (quoting Germann v.

Matriss, 55 N.J. 193, 220 (1970)).

However, the inclusion of

the terms “notice” and “sign,” words inarguably more inclusive
than “contract” and “warranty,” demonstrates the legislature’s
intent for NJTCCWNA to provide broader consumer protection.
Defendants’ interpretation of “notice” and “sign” as having
narrow legal applications 5 is contrary to the New Jersey courts’
policy of construing remedial legislation “liberally in favor of
consumers.”

Cox v. Sears Roebuck, 138 N.J. 2, 15 (1994).

Plaintiff argues for a more general definitions of “notice” and
“sign,” and argues that a restaurant menu falls within both
definitions.

The Court agrees with Plaintiff.

As a noun, “notice” is generally defined as “a written or
printed announcement.”

Merriam-Webster.com (2012),

http://www.m-w.com/dictionary/notice.

And “sign,” as a noun, is

generally defined as “a display (as a lettered board or a
configuration of neon tubing) used to identify or advertise a
place of business or a product”; or, “a posted command, warning,
or direction.”

Merriam-Webster.com (2012), http://www.m-

5

Defendants define “notice” as “a warning, announcement or
notification required by law.” Defendants then use the phrase
“required by law” to argue that the legislature could not have
intended the word “notice,” in the context of the statute, to
cover the more general understanding of the term. Additionally,
Defendants dismiss that a restaurant menu could constitute a
“sign” under NJTCCWNA because menus are typically given to
individual consumers and are not posters, billboards, or public
notifications.
13

w.com/dictionary/sign.

It is not a stretch to imagine that the

general, broader understandings of notice and sign are relevant
to the NJTCCWNA because they are capable of containing the type
of illegal provisions NJTCCWNA seeks to prohibit.
In passing the NJTCCWNA, the New Jersey Legislature was
concerned with contracts, warranties, notices or signs that
include illegal provisions intended to “deceive[] a consumer
into thinking that they are enforceable” and to result in the
consumer failing to enforce his rights.

L. 1981, c. 454,

Sponsor’s Statement to Assembly Bill No. 1660 (N.J. 1981).
Additionally, “the NJTCC[WNA] can be violated if a contract[,]
[] warranty [or notice or sign] simply contains a provision
prohibited by state or federal law, and it provides a remedy
even if the plaintiff has not suffered actual damages.”
McGarvey v. Penske Automotive Group, Inc., 639 F. Supp. 2d 450,
458 (D.N.J. 2009) (quoting Barrow v. Chase Manhattan Mortg.
Corp., 465 F. Supp. 2d 347, 362 (D.N.J. 2006)).
Moreover, interpreting “notice” and “sign” broadly enough
to encompass a restaurant menu is consistent with the liberal
construction afforded other pieces of remedial legislation to
provide broad protections for New Jersey consumers.

See

Jefferson Loan Co., Inc. v. Session, 397 N.J. Super. 520, 534535 (App. Div. 2008) (interpreting the term “unconscionability”
liberally “to effectuate the public purpose of the CFA”)

14

(citations omitted); Gennari v. Weichart Co. Realtors, 148 N.J.
582, 604-607 (N.J. 1997) (liberally construing the intent
requirement for an affirmative act or misrepresentation under
the CFA); Cox, 138 N.J. at 15 (liberally construing “unlawful
act” in the context of the CFA); New Mea Constr. Corp. v.
Harper, 203 N.J. Super. 486, 502 (App. Div. 1985) (reversing and
remanding to the Law Division because, liberally construed, the
CFA can be applied to the factual circumstances of the case).
The Court finds a restaurant menu fits within the
definition of a notice or sign, or both, as presented in the
NJTCCWNA context of a consumer transaction because a restaurant
menu is a written document that announces menu items and
identifies the specific food and beverage products offered for
sale by the restaurant.

The restaurant’s bill of fare, whether

on a blackboard or a card handed to the customer, fits the
meanings of a notice and a sign.
In summary, the Court holds that a restaurant menu may be
considered an offer, a notice and a sign for NJTCCWNA purposes.
4. Whether the omission of prices from a menu falls
under the statute’s language prohibiting the
inclusion of a provision(s) that violate a
consumer’s legal rights
Defendants argue that the text of the NJTCCWNA, the
legislative history, and the cases that have applied the
NJTCCWNA indicate the statute applies solely to illegal terms

15

and provisions that are included, in writing, in the statutorily
significant documents.

Under Defendants’ interpretation,

omissions do not trigger NJTCCWNA.
On the other hand, Ms. Watkins argues NJTCCWNA applies to
both inclusions and omissions.

Under Plaintiff’s approach, the

determination turns not on inclusion or omission, but simply
whether there has been a violation of a “clearly established
legal right of the consumer or responsibility of a seller as
established by State or Federal law.”

N.J. Stat. Ann. 56:12-15.

Plaintiff claims Dugan v. TGI Friday’s, Inc. stands for the
proposition that price omissions from a restaurant menu can
trigger a NJTCCWNA claim. In Dugan, TGI Friday’s charged the
plaintiff $2.00 for a Coors Lite at the bar and then $3.59 for
the same beverage after she moved to a nearby table.

2011 WL

5041391 *1 (N.J. Super. Ct. App. Div. Oct 25, 2011).

The

Appellate Division declared, “[Plaintiff’s] grievance revolves
around the undisclosed price differential for the same product .
. . .”

Id.

Additionally, the plaintiff in Dugan brought two

counts, one under the New Jersey Consumer Fraud Act (“CFA”),
N.J. Stat. Ann. § 56:8-1 et seq., and a second under NJTCCWNA.
To prove her CFA claim, the plaintiff needed to sufficiently
allege three elements: (1) unlawful conduct by defendant, (2) an
ascertainable loss by plaintiff, and (3) a causal relationship

16

between the unlawful conduct and the ascertainable loss.

Id. at

*6.
In ruling on whether the plaintiff’s complaint adequately
alleged an ascertainable loss, the Appellate Division focused
exclusively on the price differential between the bar price
($2.00) and the table price ($3.59) of the Coors Lite: “At the
very least, if proven, [plaintiff] would logically have lost the
benefit of a $2.00 beer and paid $1.59 more for the privilege of
moving from the bar to a nearby table.
out-of-pocket loss.”

This is an objective

Id. at *7.

The unconscionable practice giving rise to CFA liability in
Dugan was not the omission of a price term in the table menu.
If that were the case, the Appellate Division would not have
parsed the underlying CFA claim as it did.

The Dugan decision

made the important assumption that Mrs. Dugan was claiming that
there was a “secret switch” of prices from the $2.00 beer at the
bar to the undisclosed $3.59 beer on the table menu.

Id. at *7.

The “ascertainable loss” required for the CFA was seen as the
difference of $1.59 between what she originally paid and the
undisclosed amount charged for her second beer.

Id.

The

omission of a price on the table menu was evidence of the
“secret switch” of which she complained, but it was the
misleading switch, not the omission, that was the crux of her
claim.

The Appellate Division then concluded that because the

17

plaintiff alleged facts sufficient to support a CFA claim,
“[t]hose allegations are therefore sufficient to establish a
potential” NJTCCWNA violation.

Id. at *8.

The unconscionable

commercial practice was sufficiently plead to consist of
switching the price of the beverage in the same restaurant from
a lower amount to a higher amount without disclosure, in
violation of the CFA.
The plaintiff in Dugan claimed TGI Friday’s violated N.J.
Stat. Ann. 56:8-2.5, which provides:
It shall be unlawful practice for any person to sell,
attempt to sell or offer for sale any merchandise at
retail unless the total selling price of such
merchandise is plainly marked by stamp, tag, label or
sign either affixed to the merchandise or located at
the point where the merchandise is offered for sale.
The “affirmative act” is relevant to a CFA claim because
“to succeed on a CFA claim a plaintiff must satisfy three
elements of proof,” one of which is unlawful conduct by the
defendant.

Id. at *6.

This element may be satisfied by showing

the “claimed CFA violation is the result of a defendant’s
affirmative act.”

Id. (citations omitted).

The Appellate Division ultimately concluded, “Dugan has
alleged sufficient facts to establish that the offer violated
the CFA.

Those allegations are therefore sufficient to

establish a potential violation of the [NJ]TCCWNA.”

18

Id. at *8.

In the instant case, in her Amended Complaint, Ms. Watkins
is not pursuing relief under the CFA, nor has she alleged any
price differential or unconscionable practice of switching
prices upward.

Moreover, the Amended Complaint is void of

numeric data, which could assist the Court in determining
whether Ms. Watkins suffered an “objective out-of-pocket loss”
relevant to a CFA claim.

Thus, it does not appear Ms. Watkins

would succeed on a CFA claim under the Dugan rubric, nor has she
pled one.

Ms. Watkins raised only a single count under the

NJTCCWNA.

Under this count she has alleged Defendants’ failure

to include prices for certain beverages on their menus is itself
actionable under NJTCCWNA.
Returning to the NJTCCWNA, a plain reading of the phrase
“which includes any provision” can lead only to the conclusion
that the New Jersey legislature intended the NJTCCWNA to cover
inclusions.

Finding that a plain reading of “includes” also

covers its inverse, “omits,” impermissibly reads in more
prohibited conduct than is provided by the statute, even under a
liberal construction approach.

In drafting the NJTCCWNA, the

legislature targeted written documents presented by sellers to
consumers or potential consumers and sought to protect consumers
who might read an illegal provision, be deceived by the
provision, and then fail to enforce their rights.

19

To illustrate the types of seller conduct it sought to
prohibit, the New Jersey Legislature provided a list of such
provisions:
Examples of such provisions are those that deceptively
claim that a seller or lessor is not responsible for
any damages caused to a consumer, even when such
damages are the result of the seller’s or lessor’s
negligence. These provisions provide that the consumer
assumes all risk and responsibilities, and even agrees
to defend, indemnify and hold harmless the seller from
all liability. Other provisions claim that a lessor
has the right to cancel the consumer contract without
cause and to repossess its rental equipment from the
consumer’s premises without liability for trespass.
Still other provisions arbitrarily assert the consumer
cannot cancel the contract for any cause without
punitive
forfeiture of
deposits
and
payment
of
unfounded damages. Also, the consumer’s rights to due
process is often denied by deceptive provisions by
which he allegedly waives his right to receive legal
notices, waives process of law in the repossession of
merchandise and waives his rights to retain certain
property exempted by State or Federal law from
creditor’s breach.
L. 1981, c. 454, Sponsor’s Statement to Assembly Bill No. 1660
(N.J. 1981).

By using the verbs “claim,” “provide,” and

“assert” and specifying which legal rights can be affected, the
legislature appears to target only provisions included in the
document that actively seek to mislead consumers as to specific
rights.

The Sponsor’s Statement included no examples of

deceptive omissions that were envisioned as falling within the
scope of the statute.
New Jersey case law supports the proposition that the
NJTCCWNA prohibits the inclusion of illegal provisions, but does

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not address omissions.

See Smith, 2010 WL 5376316 (N.J. Super.

Ct. App. Div. Dec. 21, 2010) (consumer warranty contained a
provision that violated the Magnuson-Moss Warranty Act); United
Consumer Financial Services, Co. v. Carbo, 410, N.J. Super. 280
(App. Div. 2009) (retail installment sales contract contained a
provision that violated the Retail Installment Sales Act);
Jefferson Loan Co., 397 N.J. Super. 520 (App. Div. 2008)
(“Nothing in the TCCWNA suggests that it applies to the mere
failure or omission to send a notice to a consumer, even when
the notice is otherwise required by another law.”); Bosland, 396
N.J. Super. 267 (App. Div. 2007) (retail buyer’s order included
an undisclosed documentary service fee in violation of New
Jersey’s Consumer Fraud Act).
A similar conclusion can be reached by reviewing NJTCCWNA
cases in the United States District Court for the District of
New Jersey, each of which examined statements included in the
document rather than omissions therefrom.

See DeHart v. U.S.

Bank, N.A. ND, 811 F. Supp. 2d 1038, 1051-52 (D.N.J. 2011)
(payoff notices allegedly included excessive fees in violation
of NJTCCWNA); McGarvey v. Penske Automotive Group, 639 F. Supp.
2d 450 (D.N.J. 2009), vacated on other grounds Civ. No. 08-5610,
2010 WL 1379967 (D.N.J. March 29, 2010) (limited warranty
contained a provision that violated the Magnuson-Moss Warranty
Act); Rivera v. Washington Mutual Bank, 637 F. Supp. 2d 256

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(D.N.J. 2009) (finding plaintiffs failed to state a claim under
NJTCCWNA because they did not “identif[y] which provisions of
either document allegedly violate a clearly established right .
. . or responsibility . . . .”); Feder v. Williams-Sonoma
Stores, Inc., Civ. No. 2-11-03070, 2011 WL4499300 *3 (D.N.J.
Sept. 26, 2011) (“Even if the credit card transaction form
constitutes a written consumer contract, plaintiff has not
alleged that this ‘contract’ contains a written provision that
violates State or Federal law.”).
“In construing TCCWNA on a motion to dismiss, the court
must determine if the Legislature intended to prohibit the
conduct alleged.”
omitted).

Smith, 2010 WL 5376316 *2 (citations

One searches in vain for any legislative indication

that the TCCWNA was addressing omissions in addition to
inclusions.

Because omitting certain prices from restaurant

menus does not pose the same risk of misleading a consumer into
failing to enforce her legal rights as an affirmative
misrepresentation, the Court finds the New Jersey Legislature
did not intend NJTCCWNA to apply to price omission.
5.

Whether the omission of prices from menus in New
Jersey violates either a clearly established
legal right of the consumer or responsibility of
the seller.

The Court has found that the mere omission of a beverage
price on a restaurant menu in the circumstances alleged in the

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case does not state a claim under the TCCWNA, because this
statute governs the statements that are included in, not omitted
from, a consumer contract or offer to contract.

The Court

therefore declines to rule on whether the omission of prices
from menus violates either a “clearly established legal right of
the consumer” or a “clearly established legal ... responsibility
of the seller” under other provisions of New Jersey law.

Even

if such omission were actionable under other provisions, such
omission does not give rise to a claim under the TCCWNA.

IV.

CONCLUSION
For the reasons expressed in this Opinion, The Court grants

Defendants’ motion for dismissal under Rule 12(b)(6) for failure
to state a claim for which relief can be granted.

Plaintiff’s

Amended Complaint is dismissed without prejudice to Plaintiff’s
right to seek leave to file a second amended complaint within
twenty-one (21) days of the entry of the accompanying order,
correcting the deficiencies therein consistent with this
Opinion.

The accompanying order shall be entered.

August 28, 2012
DATE

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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