RUBIN v. J. CREW GROUP, INC.
OPINION filed. Signed by Judge Freda L. Wolfson on 3/29/2017. (km)
*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
FRUMA RUBIN, on behalf of
himself and all others similarly
J. CREW GROUP, INC.,
Civ. Action No.16-2167 (FLW)
WOLFSON, District Judge:
Plaintiff Fruma Rubin (“Plaintiff”) brings this putative class action against
Defendant J. Crew Group, Inc. (“J Crew” or “Defendant”), for including certain
Truth in Consumer Contract, Warranty and Notice Act, N.J.S.A. 56:12-14, et seq.
(“TCCWNA” or the “Act”). In the instant matter, Defendant moves to dismiss
Plaintiff’s claims for, inter alia, lack of Article III standing, as well as statutory
standing. For the reasons that follow, Defendant’s motion is GRANTED.
For the purposes of this motion, the Court recounts the facts from the
Amended Complaint and takes them as true. J Crew owns and operates the
retail website “jcrew.com” (the “Website”), which Defendant uses to sell clothing
directly to consumers.
Amended Complaint (“Compl.”), ¶ 9.
provides a “Terms and Conditions” Section, which purportedly governs the use
of the site and “J. Crew’s services, applications, contents and products.” Id. at
According to the Complaint, the relevant provisions of the Terms and
Conditions at issue in this case are as follows:
IN NO EVENT SHALL J.CREW, ITS AFFILIATES OR ANY OF THEIR
RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR
CONTENT OR SERVICE PROVIDERS BE LIABLE TO YOU FOR ANY
DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL,
EXEMPLARY OR PUNITIVE DAMAGES, LOSSES OR CAUSES OF
ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT
NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM
OR IN ANY WAY RELATED TO THE USE OF, OR THE INABILITY TO
USE, OR THE PERFORMANCE OF THE SITE OR THE CONTENT
AND MATERIALS OR FUNCTIONALITY ON OR ACCESSED
THROUGH THE SITE, INCLUDING, WITHOUT LIMITATION, LOSS
OF REVENUE, OR ANTICIPATED PROFITS, OR LOST BUSINESS,
DATA OR SALES OR ANY OTHER TYPE OF DAMAGE, TANGIBLE
OR INTANGIBLE IN NATURE,
EVEN IF J.CREW OR ITS
REPRESENTATIVE OR SUCH INDIVIDUAL HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS
DO NOT ALLOW THIS LIMITATION OR EXCLUSION OF LIABILITY,
SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
You agree to defend, indemnify and hold J.Crew, its directors,
officers, employees, agents and affiliates harmless from any and all
claims, liabilities, damages, costs and expenses, including
reasonable attorneys’ fees, in any way arising from, related to or in
connection with your use of the Site, your violation of the Terms or
the posting or transmission of any materials on or through the Site
by you, including, but not limited to, any third-party claim that any
information or materials you provide infringes any third-party
Id. at ¶ 16.
Plaintiff alleges that through those terms, “Defendant impermissibly limits
its liabilities and obscures the effects of its disclaimers on New Jersey
[consumers].” Id. at ¶ 15. More specifically, Plaintiff alleges that Defendant’s
exculpatory and indemnification clauses impermissibly attempt to absolve itself
of all liability, and completely remove the duties J Crew owes to its customers.
Id. at ¶ 17. Plaintiff claims, for example, that “Defendant owes a legal duty to
the Plaintiff or any other consumer to ensure that there is no unreasonable risk
of harm while making purchases on its website, or while using Defendant’s
products.” Id. at ¶ 19. Plaintiff avers that the inclusion of those clauses violates
Plaintiff also alleges that Defendant wrongfully attempts to prevent
consumers from (1) “seeking punitive damage awards for damage incurred”; (2)
“seeking redress for violations of their internet commerce rights”; and (3)
pursuing any damages, including treble and statutory damages, attorney’s fees
and costs for any illegal actions engaged in by Defendant on its website.” Id. at
¶¶ 23-33. By including these limitations, Plaintiff alleges that Defendant has
violated the TCCWNA. Finally, Plaintiff accuses Defendant of violating the Act
by including the following statement: “SOME JURISDICTIONS DO NOT ALLOW
THIS LIMITATION OR EXCLUSION OF LIABILITY, SO SOME OF THE ABOVE
LIMITATIONS MAY NOT APPLY TO YOU.” Id. at ¶ 34. Plaintiff asserts that the
illegal placement of these provisions on the Website violated two separate
sections of the TCCWNA: N.J.S.A. 56:12-15 and -16, i.e., Count I and Count II,
Plaintiff avers that throughout the last six years, she has purchased
products from the Website for personal, family and household purposes. Id. at
¶ 13. As to her injury, Plaintiff explains that she has sustained “a concrete and
particularized injury by Defendant’s placement of numerous provisions within
its terms and conditions that violated [her] rights under New Jersey law.” Id. at
¶ 38. Plaintiff further alleges that she has suffered harm by Defendant’s failure
to “specify whether all of the terms stated [on the Website] applied or did not
apply in New Jersey.” Id. at ¶ 39.
Now, Defendant moves to dismiss Plaintiff’s Complaint based on a lack of
standing, as required by Article III of the Constitution, and by TCCWNA itself.
Article III Standing
Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of a
complaint for lack of standing. Fed. R. Civ. P. 12(b)(1); see also Society Hill
Towers Owners' Ass'n v. Rendell, 210 F.3d 168, 175 (3d Cir. 2000). Article III of
the Constitution limits the jurisdiction of federal courts to “Cases” and
“Controversies.” Lance v. Coffman, 549 U.S. 437, 439 (2007). Indeed, “[s]tanding
to sue is a doctrine rooted in the traditional understanding of a case or
controversy.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). “The standing
inquiry . . . focuse[s] on whether the party invoking jurisdiction had the requisite
stake in the outcome when the suit was filed.” Constitution Party of Pa. v. Aichele,
757 F.3d 347, 360 (3d Cir. 2014) (quoting Davis v. FEC, 554 U.S. 724, 734
(2008)) (alterations original).
To show standing, a plaintiff must establish: “(1) an injury-in-fact, (2) a
sufficient causal connection between the injury and the conduct complained of,
and (3) a likelihood that the injury will be redressed by a favorable decision.” In
re Nickelodeon Consumer Privacy Litig., 827 F.3d 262, 272 (3d Cir. 2016) (quoting
Finkelman v. Nat’l Football League, 810 F.3d 187, 193 (3d Cir. 2016)) (internal
quotations and citations omitted). “The plaintiff, as the party invoking federal
jurisdiction, bears the burden of establishing these elements.” Spokeo, 136 S.
Ct. at 1547 (citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990)). “Where,
as here, a case is at the pleading stage, the plaintiff must ‘clearly . . . allege facts
demonstrating’ each element.” Id. (quoting Warth v. Seldin, 422 U.S. 490, 518
(1975)) (footnote omitted).
To allege injury-in-fact, “a plaintiff must claim the invasion of a concrete
and particularized legally protected interest resulting in harm that is actual or
imminent, not conjectural or hypothetical.”
Nickelodeon, 827 F.3d at 272
(quoting Finkelman, 810 F.3d at 193) (internal quotations omitted). A harm is
“concrete” only “if it is ‘de facto’; that is, it must actually exist”—it cannot be
merely “abstract.” Id. (quoting Spokeo, 136 S. Ct. at 1548). Moreover, a harm
need not be tangible, to be “concrete.” To determine whether an “intangible”
consideration should focus on whether the purported injury “has a close
relationship to a harm that has traditionally been regarded as providing a basis
for a lawsuit in English or American courts.” Spokeo, 136 S. Ct. at 1549 (citation
omitted). In that connection, “Congress may ‘elevat[e] to the status of legally
cognizable injuries concrete, de facto injuries that were previously inadequate in
law.’” Spokeo, 136 S. Ct. at 1549 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555,
578 (1992)) (alteration original).
Importantly, in the context of a statutory violation, allegations of a “bare
procedural violation [under the statute], divorced from any concrete [or
substantive] harm” cannot satisfy the injury-in-fact requirement. Spokeo, 136
S. Ct. at 1549 (citing Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009)
(“[D]eprivation of a procedural right without some concrete interest that is
affected by the deprivation . . . is insufficient to create Article III standing”)).
Stated differently, not every “bare” violation of a right granted by a statute is
inherently injurious. Rather, such a violation must result in a “concrete” harm.
That requirement remains in circumstances where a statute “purports to
authorize [a] person to sue to vindicate [a statutory procedural] right.”
Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997) (“It is settled that Congress cannot
erase Article III’s standing requirements by statutorily granting the right to sue
to a plaintiff who would not otherwise have standing”).
Thus, standing based on a violation of a statutorily created right turns on
whether such a right is substantive or merely procedural. A “procedural right”
is defined as “[a] right that derives from legal or administrative procedure; a right
that helps in the protection or enforcement of a substantive right.” In re Michaels
Stores, Inc., No. 14-7563, 2017 U.S. Dist. LEXIS 9310, at *17 n.12 (D.N.J. Jan.
24, 2017) (quoting Landrum v. Blackbird Enters., LLC, No.16-0374, 2016 U.S.
Dist. LEXIS 143044, at *3 (S.D. Tex. Oct. 3, 2016)) (internal citations omitted)
(alteration original). On the other hand, a “substantive right” is “[a] right that
can be protected or enforced by law; a right of substance rather than form.” Id.
(citing Landrum, 2016 U.S. Dist. LEXIS 143044, at *3) (internal citations omitted)
(alteration original). “To the extent that a violation of the procedural right has
no effect on the substantive right, the bare procedural violation does not cause
an injury of the sort that, alone, would support standing.” 1 Id. (citing Landrum,
2016 U.S. Dist. LEXIS 143044, at *3).
Here, Defendant argues that Plaintiff lacks standing because nowhere in
the Complaint does Plaintiff explain that she saw or read the language upon
which her claims are based, that she relied upon the language to her detriment,
or that she suffered any kind of adverse impact because of it. Absent these facts,
Defendant maintains that Plaintiff has not alleged any concrete or particularized
harm. In response, Plaintiff argues that because Defendant’s website subjected
In Landrum, the court provided an example to clarify the sometimesconfusing difference between a procedural and substantive violation:
Consider a hypothetical statute requiring building managers to
notify occupants in the event of a fire in a timely manner via a
loudspeaker using specific language. Now imagine that, during a
fire, a manager effectively communicates a warning to an occupant
in a timely manner but does so in person, after which the occupant
escapes unharmed. The occupant was subjected to a bare,
procedural violation. If, however, another occupant was never
warned but smelled smoke and safely exited the building, the latter
occupant was subject to a substantive violation of his right to be
timely notified, albeit without independent, “tangible” harm. In the
latter case, a statutory remedy would be appropriate. In the former
case, only the manner in which the warning was to be delivered (i.e.,
the procedure) failed to meet statutory guidelines. The underlying
right, the right to be timely notified in the event of a fire, was
Landrum, 2016 U.S. Dist. LEXIS 143044, at *9–10.
Plaintiff to false and deceptive misrepresentations in contravention of the
TCCWNA, Plaintiff has alleged sufficient statutory violations to establish
standing under Spokeo. Put differently, Plaintiff posits that so long as she pleads
a violation under the TCCWNA, she has statutory standing to sue. Plaintiff’s
position, however, cannot be reconciled with Spokeo.
Since Spokeo, only a few district court decisions have dealt with Article III
standing-related issues in the context of the TCCWNA. But, at least two courts
within this district have specifically addressed whether a plaintiff has standing
to sue based upon purported TCCWNA violations through terms and conditions
of an online website. See Hite v. Lush Internet Inc., No. 16-1533, 2017 U.S. Dist.
LEXIS 40949 (D.N.J. Mar. 23, 2017); Hecht v. Hertz Corp., No. 16-1485, 2016
U.S. Dist. LEXIS 145589 (D.N.J. Oct. 20, 2016).
defendant Lush Internet, Inc. constituted a consumer contract with exculpatory
provisions that violate the TCCWNA. Hite, 2017 U.S. Dist. LEXIS 40949, at *1.
The defendant argued that although plaintiff purchased products from the
website, plaintiff had not alleged that she had read or been harmed by the Terms
of Use, and therefore, she lacked standing as an “aggrieved consumer” under the
Finding defendant’s position persuasive, the court, citing Spokeo,
simply do not bind her as a matter of contract law. Because Plaintiff
does not seek to vindicate any underlying rights secured by the
accord with what she believes New Jersey law requires, not to
actually bring a suit or recover damages which she believes are
her, she cannot claim harm from their existence in a hidden corner
of the Lush website. Based upon the allegations in the Amended
Complaint, the harm that Plaintiff has suffered from the allegedly
Id. at *19.
The Hecht court reached the same result.
In Hecht, the plaintiff, like
Plaintiff in this case, brought suit against defendant Hertz based upon certain
terms on Hertz’s online website, which the plaintiff alleged were in violation of
the TCCWNA. Hecht, 2016 U.S. Dist. LEXIS, at *3. In particular, the plaintiff
complained that the website neglected to identify whether New Jersey is one of
the jurisdictions where an exception applies to the website’s general provision
that price, rate and availability of products or services are subject to change
without notice. Id. at *4. Relying on Spokeo, the court found that the plaintiff
failed to allege any concrete harm sufficient to meet Article III standing. Rather,
among other reasons, the court explained that the plaintiff’s purported injuries
were merely bare statutory violations, because he did not allege whether any of
the website’s provisions are in fact unenforceable or invalid in New Jersey. Id.
at *7. The court stressed that “there can be no concrete harm resulting from a
situation where a [p]aintiff did not know whether the provisions were ‘void,
unenforceable or inapplicable to reservations made by New Jersey citizens,’ but
these provisions ultimately were enforceable, i.e., [p]laintiff was able to access
the full panoply of benefits offered.” Id.
Another decision, Candelario v. RIP Curl, Inc., No. 16-963, 2016 U.S. Dist.
LEXIS 163019 (C.D. Cal. Sept. 7, 2016), sheds additional light on the standing
analysis that I must undertake, here. The plaintiff, in Canderlario, sued
defendant Rip Curl for violating the TCCWNA, because she was “exposed” to Rip
Curl’s website that included various terms and conditions which were allegedly
not in compliance with New Jersey law. Id. at *3-4. The court found that the
plaintiff lacked standing based upon Spokeo, since she failed to allege any harm
that resulted from the website’s purported violations of the TCCWNA.
instance, while the plaintiff claimed that the website “barred” her from bringing
a claim under the New Jersey Products Liability Act, the court nonetheless
dismissed the plaintiff’s TCCWNA claims for her failure to allege that the clothing
purchased from the website was dangerous, or that the plaintiff was in any way
harmed by those clothes. In essence, the court held that no standing could be
found because the plaintiff had not alleged that she was actually injured by
defendant. Id. at *6. The court explained:
The FAC alleges that the Terms and Conditions are illegal because
they strip her ability to bring claims arising from “unreasonable risk
of harm;” injuries sustained from dangerous products; harm from
the illegal acts of third party hackers; and punitive damages for
malicious, wanton, or willful creation of unreasonable risk of harm
by Defendant. Yet nowhere in the FAC does Plaintiff allege that she
actually has a claim against Defendant which falls into any of the
aforementioned categories. If such a claim has not accrued, Plaintiff
cannot have an “actual or imminent” injury.
Id. (internal citations omitted).
In short, what each of these courts has held is that without an underlying
concrete harm, a plaintiff may not base his/her complaint solely on allegations
of wrongdoing predicated on TCCWNA violations. To illustrate, if a consumer
alleges that the terms and conditions of an online retailer’s website violated the
TCCWNA by excluding punitive damages in suits, that consumer would not have
standing to bring a TCCWNA claim without also asserting an injury inflicted by
the retailer that could entitle him/her to punitive damages at the outset. Absent
that underlying harm, under Spokeo, the consumer’s alleged TCCWNA violation
is merely procedural. Because Plaintiff’s TCCWNA claims in this case are pled
in such a without any claim of injury, I find that she lacks standing to sue.
“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); 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 . . . shall in the course of his business offer to any consumer
or prospective consumer or enter into any written 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 . . . 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
The Act further provides that “[n]o consumer contract,
warranty, notice or sign, as provided for in this act, shall contain any provision
by which the consumer waives his rights under this act. Any such provision shall
be null and void.”
The statute establishes damages for
“aggrieved consumers,” and states that the rights accorded under this law “are
hereby declared to be in addition to and cumulative of any other right, remedy
or prohibition accorded by common law, Federal law or statutes of this State.”
N.J.S.A. 56:12-17 and -18. In other words, the TCCWNA does not “recognize
any new consumer rights but merely impose[s] an obligation on sellers to
acknowledge clearly established consumer rights.” Shelton v. Restaurant.com,
214 N.J. 419, 432 (2013).
To state a claim under the TCCWNA, a plaintiff must allege each of the
following: (1) the plaintiff is a consumer within the statute’s definition; (2) the
defendant is a seller; (3) the defendant offers a consumer contract or gives or
displays any written notice or sign; and (4) the contract, notice or sign includes
a provision that “violate[s] any legal right of a consumer” or responsibility of a
seller. Mattson v. Aetna Life Ins. Co., 124 F. Supp. 3d 381, 392-93 (D.N.J. 2015)
(citing Watkins v. DineEquity, Inc., 591 Fed. Appx. 132, 135 (3d Cir. 2014)).
Here, Plaintiff alleges that the Terms and Conditions of J Crew’s Website
violate the TCCWNA in the following ways:
1. Defendant’s exculpatory and indemnification clauses impermissibly
attempt to absolve itself of all liability, and completely remove the
duties it owes to consumers in violation of New Jersey law. Compl.,
¶ 17 (“In no event shall J.Crew, its affiliates or any of their respective
directors, officers, employees, agents or content or service providers
be liable to you for any direct, indirect, special, incidental,
consequential, exemplary or punitive damages, losses or causes of
action (whether in contract or tort, including, but not limited to,
negligence or otherwise) . . . . .”).
2. The Terms and Conditions deny rights, responsibilities and
remedies under the New Jersey Punitive Damages Act. Id. at ¶¶ 23
3. The Terms and Conditions deny rights, responsibilities and
remedies to consumers damaged by failure to provide internet
security and notice under various New Jersey statutes, such as New
Jersey Consumer Fraud Act. Id. at ¶¶ 27- 30.
4. The Terms and Conditions also deny rights, responsibilities and
remedies to consumer to obtain attorney’s fees and costs, which “go
directly against the New Jersey Consumer Fraud Act, the TCCWNA,”
and others. Id. at ¶¶ 31-32.
5. The Terms and Conditions violate the Act because “certain
limitations of lability may not apply to Plaintiff in some jurisdiction
without making clear whether such limitations are valid in New
Jersey.” Id. at ¶ 34.
Conspicuously absent from Plaintiff’s Complaint, however, is any
underlying injuries that Plaintiff has suffered as a result of purchasing
Defendant’s merchandise or using the J Crew Website. Plaintiff merely alleges
that she has made purchases from the Website. In fact, Plaintiff does not even
aver that she viewed or relied on the Terms and Conditions that are alleged to be
violative of the TCCWNA. And, the Complaint is solely based on claims arising
out of the TCCWNA. Therefore, there is no indication that Plaintiff had a claim
against Defendant which the Terms and Conditions prevented her from bringing.
In that regard, the genesis of Plaintiff’s lawsuit “is seeking only to bring the Terms
[and Conditions] into accord with what she believes New Jersey law requires, not
to actually bring a suit or recover damages which she believes are unlawfully
barred” by those Terms. Hite, 2017 U.S. Dist. 40949, at *19. Indeed, contrary
to Plaintiff’s position, Spokeo recognized that “Congress’ role in identifying and
elevating intangible harms does not mean that a plaintiff automatically satisfies
the injury-in-fact requirement whenever a statute grants a person a statutory
right and purports to authorize that person to sue to vindicate that right.”
Spokeo, 136 S. Ct. at 1549. This is precisely what Plaintiff has done in her
Complaint — plead only procedural statutory violations under the TCCWNA.
Hence, Plaintiff has not alleged any concrete harm in accordance with Spokeo.
See Hecht, 2016 U.S. Dist. LEXIS 145589, at *6 (finding that the plaintiff alleging
suit under TCCWNA Section 16 did not have standing because he “does not
allege that he even viewed (let alone, relied upon to his detriment)” the website
Nevertheless, in an attempt to salvage standing post-Spokeo, Plaintiff
argues that she has suffered informational injury. According to Plaintiff, because
she was subject to “false” information and did not receive the statutorily
mandated disclosures, she has standing to bring suit to vindicate her rights
under the TCCWNA. However, as a threshold issue, nowhere in the Complaint
does Plaintiff allege that she suffered any informational injury.
connection, there are no allegations in the Complaint explaining that type of
harm as a result of the purported TCCWNA violations. In fact, Plaintiff has not
alleged that she saw or read the Terms and Conditions on the Website, let alone
that she was deprived of certain information. Based on this pleading failure,
Plaintiff has not established any informational injury sufficient to confer
standing. 2 See Candelario, 2016 U.S. Dist. LEXIS 163019, at *7-8 (rejecting
plaintiff’s theory of informational harm in the context of bare, procedural
TCCWNA violations); Hecht, 2016 U.S. Dist. LEXIS 145589, at *9 (rejecting the
plaintiff’s claim that he suffered a concrete injury under the TCCWNA because
he was “kept in the dark” regarding the applicability of certain provisions on a
website. The court reasoned that “[p]laintiff does not allege that he even viewed
either of these sections of Hertz’s website.”); Hite, 2017 U.S. Dist. LEXIS, at *20
(finding that because the plaintiff did not read, or generally agreed to, the terms
on a website, “she lacks standing to contest the actual provisions of [those
At the eleventh hour, Plaintiff submits a letter to the Court attempting to
distinguish the facts of this case from Hite. See Letter dated March 28, 2017.
For the reasons that I have already set forth in this Opinion, I do not find
Plaintiff’s arguments persuasive. Of note, Plaintiff attaches a generic printout
from the Website that indicates that a consumer agrees to the Terms and
Conditions of the Website when placing an order. But, nowhere in the Complaint
does Plaintiff allege these facts, and Plaintiff may not amend the Complaint
through a letter. See Bell v. City of Phila., 275 Fed. Appx. 157, 160 (3d Cir. 2008)
(“[a] plaintiff may not amend his complaint through arguments in his brief . . .
.”). Even if the Court were to consider this printout, it is not sufficient to
establish informational injury, because there are still no allegations that Plaintiff
actually read the allegedly violative terms on the Website, relied on them, and
felt the resultant effects. As such, this case is no different than Hite.
Finally, Plaintiff seems to suggest that language, e.g., Terms and
Conditions on the Website, that violates a statute is actionable, because its mere
presence causes injury – regardless of whether she has seen it, read it, or
suffered the effects of it.
This is exactly the type of non-particularized and
hypothetical injury against which Spokeo cautioned.
The cases upon which
Plaintiff relies for her proposition do not help her cause. Indeed, none of those
cases support Plaintiff’s position in this regard, because in those cases, the
plaintiffs actually sought and were denied statutorily required information, or
suffered injury because of unauthorized disclosure of private information. See,
e.g., Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982)(finding that the
plaintiff had standing to sue under the Fair Housing Act because he actively
sought information regarding apartment rentals, and he was subjected to
misrepresentations as a result); Public Citizen v. Dep’t of Justice, 491 U.S. 440
(1989)(holding that plaintiff-advocacy organizations had standing to sue because
they sought information allegedly subject to disclosure under the Federal
Advisory Committee Act); Federal Elec. Comm’n v. Akins, 524 U.S. 11
(1998)(finding that a group of voters had standing when they challenged the
Federal Election Committee’s refusal to require the disclosure of information
mandated by the Federal Election Campaign Act of 1971); In re Nickelodeon, 827
F.3d at 272 (finding that the plaintiffs had standing to bring suit under Video
Privacy Protection Act when they suffered from an alleged unauthorized
disclosure of private information). 3 Accordingly, I find that Plaintiff has failed to
satisfy Article III standing.
Substantively, Defendant seeks to dismiss Plaintiff’s Complaint based on
statutory standing under the TCCWNA.
In that respect, the parties argue
whether Plaintiff is an “aggrieved consumer” within the definition of the Act,
which dispute raises substantially similar issues as those raised under Article
III standing. However, because Plaintiff lacks constitutional standing, which is
a threshold question, I need not address Defendant’s argument on statutory
standing predicated upon New Jersey law. 4 See Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 94-95 (1998).
The Court is aware that there are numerous class actions filed in this
district based upon similar TCCWNA violations alleged in this case. While the
intent of the New Jersey legislature in enacting the TCCWNA is to provide
additional protections for consumers in this state from unfair business practices,
I also do not find persuasive Plaintiff’s reliance on the line of cases that
have found standing when a plaintiff brought suit under the Federal Debt
Collection Practices Act. See, e.g., Safdieh v. P & B Capital Grp., No. 14-3947,
2015 U.S. Dist. LEXIS 61680 (D.N.J. May 12, 2015); Church v. Accretive Health,
Inc., No. 15-15708, 2016 U.S. App. 12414 (11th Cir. Jul. 6, 2016). Unlike this
case, those decisions stand for the proposition that consumers have standing to
sue when they are subjected to unfair debt collection practices from collectors.
Here, while Plaintiff has alleged that the Website violated certain provisions of
the TCCWNA, she has not alleged that she, herself, was subjected to those
I note that the definition of an “aggrieved consumer” has been the subject
of multiple decisions issued by federal and state courts. Because the New Jersey
Supreme Court has not weighed in on this issue, understandably, there are
uncertainties with regards to how courts should apply this term.
the passage of the Act is not intended, however, for litigation-seeking plaintiffs
and/or their counsel to troll the internet to find potential violations under the
TCCWNA without any underlying harm. In such instances, standing would be
lacking. For the foregoing reasons, Defendant’s motion to dismiss is GRANTED;
Plaintiff’s Complaint is dismissed without prejudice.
DATED: March 29, 2017
Freda L. Wolfson
Freda L. Wolfson
United States District Judge
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