Plaintiff’s class action lawyers have recently “discovered” New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act (the “TCCWNA”), N.J.S.A. § 56:12-14, et seq. The reasons for the popularity of consumer class actions predicated on the TCCWNA are readily obvious. First, the statute provides for statutory damages and attorneys’ fees to consumers even where actual financial loss or injury cannot be established. Second, there is no “exception” in the law for a seller’s good faith effort to comply with the statute. And third, the Act applies to consumers and “prospective” consumers.
Fortunately, there are steps your company can take to lessen its risks of class action exposure predicated on this statute. A review or “audit” of your online “Terms” should be conducted. That review or “audit” should include:
There appear to be three primary differences between the California and Delaware laws. First, while the California law protects “consumers” – that is, persons who purchase goods or services online – the Delaware law has a broader reach as it protects “users,” defined as any individual that uses an internet website, online or cloud computing service, online application, or mobile application. Second, the California law covers commercial websites or online services, while the new Delaware law also covers cloud computing services and mobile applications. Third, California defines the “Operators” to whom the law applies as any person or entity that owns a website or online service that collects and maintains personally identifiable information from consumers residing in California, while the Delaware law applies to any “person who owns an internet website, online or cloud computing service, online application, or mobile application” that collects personally identifiable information through the internet about users residing in Delaware.