Spade v. Select Comfort Corp.

Annotate this Case

The United States Court of Appeals for the Third Circuit certified two questions of New Jersey law to the New Jersey Supreme Court arising from two putative class actions brought under the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA). Plaintiffs David and Katina Spade claimed that on or about April 25, 2013, they purchased furniture from a retail store owned and operated by defendant Select Comfort Corporation. They alleged that Select Comfort’s sales contract included the language prohibited by N.J.A.C. 13:45A-5.3(c). The Spades also alleged the sales contract that Select Comfort provided to them did not include language mandated by N.J.A.C. 13:45A-5.2(a) and N.J.A.C. 13:45A-5.3(a). The Third Circuit asked: (1) whether a violation of the Furniture Delivery Regulations alone constituted a violation of a clearly established right or responsibility of the seller under the TCCWNA and thus provided a basis for relief under the TCCWNA; and (2) whether a consumer who receives a contract that does not comply with the Furniture Delivery Regulations, but has not suffered any adverse consequences from the noncompliance, an “aggrieved consumer” under the TCCWNA? The New Jersey Supreme Court answered the first certified question in the affirmative and the second certified question in the negative.

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

David Spade v. Select Comfort Corp. (A-57-16) (078611)

Argued November 8, 2017 -- Decided April 16, 2018

PATTERSON, J., writing for the Court.

In this appeal, the Court addresses two questions of law certified by the United States Court of Appeals for
the Third Circuit.

The Third Circuit’s certified questions arise from two putative class actions brought under the Truth-in-
Consumer Contract, Warranty and Notice Act (TCCWNA),
N.J.S.A. 56:12-14 to -18. The plaintiffs in both actions
premise their TCCWNA claims on defendants’ alleged violations of N.J.A.C. 13:45A-5.2 and -5.3. Those
regulations, promulgated by the Attorney General under the authority of the Consumer Fraud Act (CFA),
N.J.S.A.
56:8-1 to -210, address the content of contracts of sale or sale orders for the delivery of household furniture.

The certified questions are:

1. Does a violation of the Furniture Delivery Regulations alone constitute a violation of a clearly
established right or responsibility of the seller under the TCCWNA and thus provides a basis for relief
under the TCCWNA?

2. Is a consumer who receives a contract that does not comply with the Furniture Delivery Regulations,
but has not suffered any adverse consequences from the noncompliance, an “aggrieved consumer”
under the TCCWNA?

In 1995, the Division of Consumer Affairs proposed and adopted regulations governing the delivery of
household furniture and furnishings, N.J.A.C. 13:45A-5.1 to -5.4. The regulations impose a series of delivery and
notice requirements on “[a]ny person who is engaged in the sale of household furniture for which contracts of sale or
sale orders are used for merchandise ordered for future delivery.” N.J.A.C. 13:45A-5.1(a).

Plaintiffs David Spade and Katina Spade (Spade plaintiffs) assert that they purchased furniture from a retail
store owned and operated by defendant Select Comfort Corporation (Select Comfort). They allege that Select
Comfort’s sales contract included language prohibited by N.J.A.C. 13:45A-5.3(c): a statement that the sale of
certain products “are final,” and a statement that as to certain categories of products, “[n]o returns will be accepted”
or “[n]o returns or exchanges will be authorized or accepted.” The Spade plaintiffs also allege that the sales contract
provided to them did not include language mandated by N.J.A.C. 13:45A-5.2(a) and N.J.A.C. 13:45A-5.3(a).

Plaintiffs Christopher D. Wenger and Eileen Muller (Wenger plaintiffs) allege that they ordered furniture
from a store owned by defendant Bob’s Discount Furniture, LLC (Bob’s Discount Furniture). They allege that the
“sales document” provided by Bob’s Discount Furniture included language that violates N.J.A.C. 13:45A-5.3(c),
which mandates a full refund in the event of a late delivery of the furniture ordered. The Wenger plaintiffs also
contend that the sales document did not entirely conform with N.J.A.C. 13:45A-5.2(a) and N.J.A.C. 13:45A-5.3(a)
because language required by those provisions appeared in a font different from the “ten-point bold face type” that
the regulations prescribe.

HELD: (1) The inclusion of language prohibited by N.J.A.C. 13:45A-5.3(c) in contracts of sale or sale orders for the
delivery of household furniture may alone give rise to a violation of a “clearly established legal right of a consumer or
responsibility of a seller” for purposes of the TCCWNA.
N.J.S.A. 56:12-15. (2) A consumer who receives a contract
that includes language prohibited by N.J.A.C. 13:45A-5.3(c), but who suffers no monetary or other harm as a result of
that noncompliance, is not an “aggrieved consumer” entitled to a remedy under the TCCWNA.
N.J.S.A. 56:12-17.
1
1. The TCCWNA is intended “to prevent deceptive practices in consumer contracts.” Dugan v. TGI Fridays, Inc.,
231 N.J. 24, 67 (2017). When it enacted the TCCWNA, the Legislature sought to require sellers to acknowledge clearly
established consumer rights, and to provide remedies for posting or inserting provisions contrary to law. A plaintiff
pursuing a TCCWNA cause of action must prove: that the defendant was a “seller, lessor, creditor, lender or bailee or
assignee of any of the aforesaid”; that the defendant offered or entered into a “written consumer contract or [gave] or
display[ed] any written consumer warranty, notice or sign”; that at the time that the written consumer contract is signed
or the written consumer warranty, notice or sign is displayed, that writing contains a 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; and that the plaintiff is an “aggrieved consumer.”
N.J.S.A. 56:12-15, -17. (pp. 13-15)

2. The Third Circuit’s first certified question asks whether a violation of N.J.A.C. 13:45A-5.2 or -5.3 alone constitutes
a violation of a clearly established legal right of a consumer or a responsibility of a seller under the TCCWNA, and
therefore provides a basis for relief under the TCCWNA. In these appeals, all plaintiffs allege that defendants included
in their sales documents language constituting an affirmative misrepresentation, contrary to N.J.A.C. 13:45A-5.3(c).
Because those allegations are present in both appeals, the Court does not reach the question of whether a seller’s
omission of a provision required by N.J.A.C. 13:45A-5.2 or -5.3 would give rise to a TCCWNA claim. Nothing in
either the TCCWNA’s plain language or its legislative history suggests that the inclusion of language in a contract or
other writing that violates a regulation cannot be the basis for a claim under
N.J.S.A. 56:12-15. Moreover, accepting
regulations as a source of law in the application of N.J.S.A. 56:12-15’s “clearly established” standard furthers the
TCCWNA’s consumer-protection objectives. Although the CFA generally describes unlawful commercial practices
that give rise to a cause of action, the Legislature envisioned that the Attorney General would specifically identify
unlawful practices in particular commercial markets, and that such regulations would constitute law. New Jersey
decisions also acknowledge that a TCCWNA violation may be premised on the violation of a regulation. N.J.A.C.
13:45A-5.3(c) is plainly the source of a “clearly established legal right of a consumer or responsibility of a seller”
within the meaning of
N.J.S.A 56:12-15. The regulation carries the force of law; indeed, a violation “shall be subject to
the sanctions contained in” the CFA. N.J.A.C. 13:45A-5.4. Moreover, N.J.A.C. 13:45A-5.3(c)’s prohibition on
misleading refund terms in furniture-sales contracts provides unambiguous direction to furniture sellers. Accordingly, a
furniture seller’s inclusion in a consumer sales contract or agreement of language prohibited by N.J.A.C. 13:45A-5.3(c)
may alone constitute a violation of a “clearly established legal right of a consumer or responsibility of a seller” under

N.J.S.A. 56:12-15, and thus may provide a basis for relief under the TCCWNA. (pp. 16-20)

3. The Third Circuit’s second certified question asks whether a consumer who receives a contract containing provisions
that violate one of the regulations at issue, but who has suffered no adverse consequences as a result of the contract’s
noncompliance with the regulation, constitutes an “aggrieved consumer,” as that term is used in
N.J.S.A. 56:12-17.
“The TCCWNA does not specifically define what makes a 'consumer’ an 'aggrieved consumer’ for purposes of
N.J.S.A. 56:12-17,” Dugan,
231 N.J. at 69, and the Third Circuit’s request to define an “aggrieved consumer” raises a
question of first impression for the Court. In the provision of the TCCWNA that defines a statutory violation, the word
“consumer”—unmodified by the term “aggrieved”—broadly denotes “any individual who buys, leases, borrows, or
bails any money, property or service which is primarily for personal, family or household purposes.”
N.J.S.A. 56:12-
15. In the TCCWNA’s remedial provision, however, the Legislature chose a more precise term: “aggrieved
consumer.”
N.J.S.A. 56:12-17. The Legislature clearly intended to differentiate between “consumers and prospective
consumers”—the broad category of people whom the Legislature seeks to shield from offending provisions—and
“aggrieved consumers” entitled to a remedy under the TCCWNA. If “aggrieved consumer” were construed to mean
nothing more than a “consumer” to whom a contract or other writing is offered, given or displayed, the term
“aggrieved” would be superfluous. That word distinguishes consumers who have suffered harm because of a violation
of
N.J.S.A. 56:12-15 from those who have merely been exposed to unlawful language in a contract or writing, to no
effect. That harm is not limited to injury compensable by monetary damages. Proof of harm resulting from contract
language prohibited by
N.J.S.A. 56:12-15 may warrant a civil penalty under
N.J.S.A. 56:12-17, even if the harm is not
compensable by damages. In the setting of these appeals, if a consumer has entered into a sales contract containing a
provision that violated N.J.A.C. 13:45A-5.3, but his or her furniture was delivered conforming and on schedule, and he
or she has incurred no monetary damages or adverse consequences, that consumer has suffered no harm. Such a
consumer is not an “aggrieved consumer” under
N.J.S.A. 56:12-17. (pp. 20-27)

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in JUSTICE PATTERSON’s opinion.

2
SUPREME COURT OF NEW JERSEY
A-
57 September Term 2016
078611

DAVID SPADE and KATINA SPADE,
H/W, individually and as a
class representative on
behalf of others similarly
situated,

Plaintiffs-Appellants,

SELECT COMFORT CORP., d/b/a
SLEEP NUMBER, LEGGETT & PLATT
INC.,

Defendants-Respondents.

CHRISTOPHER D. WENGER and
EILEEN MULLER, on behalf of
themselves and those
similarly situated,

Plaintiffs-Appellants,

BOB’S DISCOUNT FURNITURE, LLC,

Defendant-Respondent.

Argued November 8, 2017 – Decided April 16, 2018

On certification of questions of law from
the United States Court of Appeals for the
Third Circuit.

Lewis G. Adler argued the cause for
appellants David Spade and Katina Spade
(Lewis G. Adler and Law Office of Paul
DePetris, attorneys; Lewis G. Adler and Paul
DePetris, on the briefs).

1
Andrew R. Wolf argued the cause for
appellants Christopher D. Wenger and Eileen
Muller (The Wolf Law Firm, attorneys; Andrew
R. Wolf and Henry P. Wolfe, on the briefs).

Andrew S. Hansen of the Minnesota bar,
admitted pro hac vice, argued the cause for
respondent Select Comfort Corp. (Fox
Rothschild, attorneys; Karen A. Confoy, on
the brief, and Heidi A.O. Fisher, of the
Minnesota bar, admitted pro hac vice, and
Andrew S. Hansen, of the Minnesota bar,
admitted pro hac vice, of counsel and on the
briefs).

Brett D. Carroll of the Florida and
Massachusetts bars, admitted pro hac vice,
argued the cause for respondent Bob’s
Discount Furniture, LLC (Holland & Knight,
attorneys; Brett D. Carroll, Sean C. Sheely
and Duvol M. Thompson, on the briefs).

James A. Barry argued the cause for amicus
curiae New Jersey Association for Justice
(Locks Law Firm and Law Offices of Charles
N. Riley, attorneys; James A. Barry, Michael
A. Galpern, Andrew P. Bell, and Charles N.
Riley, on the brief).

David R. Kott argued the cause for amicus
curiae New Jersey Business & Industry
Association (McCarter & English, attorneys;
David R. Kott, Edward J. Fanning, and Zane
C. Riester, of counsel and on the brief).

Gavin J. Rooney submitted a brief on behalf
of amicus curiae the New Jersey Civil
Justice Institute (Lowenstein Sandler,
attorneys; Gavin J. Rooney and Naomi D.
Barrowclough, of counsel and on the brief).

Bruce D. Greenberg submitted a brief on
behalf of amicus curiae Consumers League of
New Jersey (Lite DePalma Greenberg,
attorneys; Bruce D. Greenberg, of counsel
and on the brief, and Susana Cruz Hodge, on
the brief).

2
Christopher J. Michie and Christopher J.
Dalton submitted a brief on behalf of amicus
curiae Commerce and Industry Association of
New Jersey (Clark Michie and Buchanan
Ingersoll & Rooney, attorneys; Christopher
J. Michie, Bruce W. Clark, Christopher J.
Dalton, and Jinkal Pujara, on the brief).

Drew Cleary Jordan submitted a brief on
behalf of amicus curiae New Jersey Retail
Merchants Association (Morgan, Lewis &
Bockius, attorneys; Drew Cleary Jordan and
Kristin M. Hadgis on the brief, and Gregory
T. Parks, of the Pennsylvania bar, admitted
pro hac vice, on the brief).

Michael P. Daly and Matthew J. Fedor
submitted a brief on behalf of amicus curiae
The Retail Litigation Center, Inc. (Drinker
Biddle & Reath, attorneys; Michael P. Daly,
Matthew J. Fedor, Meredith C. Slawe, Kathryn
E. Deal, Jenna M. Poligo, and Andrew B.
Joseph, of counsel and on the brief).

Benjamin D. Morgan submitted a brief on
behalf of amicus curiae Tailored Brands,
Inc. (Archer & Greiner and Armstrong
Teasdale, attorneys; Benjamin D. Morgan, on
the brief, Charles W. Steese, of the
Colorado, Arizona and Iowa bars, admitted
pro hac vice, and Douglas N. Marsh, of the
Colorado and Illinois bars, admitted pro hac
vice, of counsel and on the brief).

JUSTICE PATTERSON delivered the opinion of the Court.

In this appeal, we address two questions of law certified

by the United States Court of Appeals for the Third Circuit to

this Court. The Third Circuit’s certified questions arise from

two putative class actions brought under the Truth-in-Consumer

Contract, Warranty and Notice Act (TCCWNA),
N.J.S.A. 56:12-14 to

3
-18. The plaintiffs in both actions premise their TCCWNA claims

on defendants’ alleged violations of N.J.A.C. 13:45A-5.2 and -

5.3. Those regulations, promulgated by the Attorney General

under the authority of the Consumer Fraud Act (CFA),
N.J.S.A.

56:8-1 to -210, address the content of contracts of sale or sale

orders for the delivery of household furniture.

The certified questions are:

1. Does a violation of the Furniture Delivery
Regulations alone constitute a violation of a
clearly established right or responsibility
of the seller under the TCCWNA and thus
provides a basis for relief under the TCCWNA?

2. Is a consumer who receives a contract that
does not comply with the Furniture Delivery
Regulations, but has not suffered any adverse
consequences from the noncompliance, an
“aggrieved consumer” under the TCCWNA?

We answer the first certified question in the affirmative

and the second certified question in the negative. We hold that

the inclusion of language prohibited by N.J.A.C. 13:45A-5.3(c)

in contracts of sale or sale orders for the delivery of

household furniture may alone give rise to a violation of a

“clearly established legal right of a consumer or responsibility

of a seller” for purposes of the TCCWNA.
N.J.S.A. 56:12-15. We

further hold that a consumer who receives a contract that

includes language prohibited by N.J.A.C. 13:45A-5.3(c), but who

suffers no monetary or other harm as a result of that

4
noncompliance, is not an “aggrieved consumer” entitled to a

remedy under the TCCWNA.
N.J.S.A. 56:12-17.

In 1995, pursuant to
N.J.S.A. 56:8-4, the Division of

Consumer Affairs proposed and adopted regulations governing the

delivery of household furniture and furnishings, N.J.A.C.

13:45A-5.1 to -5.4. See
17 N.J.R. 3575 (Sept. 18, 1995). The

regulations impose a series of delivery and notice requirements

on “[a]ny person who is engaged in the sale of household

furniture for which contracts of sale or sale orders are used

for merchandise ordered for future delivery.” N.J.A.C. 13:45A-

5.1(a).

N.J.A.C. 13:45A-5.1(a) requires the seller to either

“[d]eliver all of the ordered merchandise by or on the promised

delivery date,” or “[p]rovide written notice to the consumer of

the impossibility of meeting the promised delivery date.” That

written notice, which must be provided to the consumer prior to

the delivery date in the event that the seller does not meet the

agreed-upon delivery schedule, “shall offer the consumer the

option to cancel said order with a prompt, full refund of any

payments already made or to accept delivery at a specified later

time.” Ibid.

5
Two of the regulations prescribe specific language that

must appear in contract forms or sales documents in “ten-point

bold face type” with information specific to the transaction to

be added by the seller. N.J.A.C. 13:45A-5.2, -5.3. First,

contract forms or sales documents for furniture sales must

include the following statement:

The merchandise you have ordered is promised
for delivery to you on or before (insert date
or length of time agreed upon).

[N.J.A.C. 13:45a-5.2(a) (boldface in
original).]

Second, such forms or documents “shall conspicuously

disclose the seller’s obligations in the case of delayed

delivery in compliance with N.J.A.C. 13:45A-5.1” and “shall

contain, on the first page of the contract form or sales

document the following notice”:

If the merchandise ordered by you is not
delivered by the promised delivery date,
(insert name of seller) must offer you the
choice of (1) canceling your order with a
prompt, full refund of any payments you have
made, or (2) accepting delivery at a specific
later date.

[N.J.A.C. 13:45A-5.3(a) (boldface in
original).]

Another provision prohibits a seller from including certain

language in a furniture contract or sales agreement:

It shall be unlawful for any person to use any
contract or sales agreement that contains any
terms, such as “all sales final,” “no

6
cancellations” or “no refunds,” which violate
or are contrary to the rights and
responsibilities provided for by this rule.
Any contract or sales agreement which contains
such a provision shall be null and void and
unenforceable.

[N.J.A.C. 13:45A-5.3(c).]

Finally, N.J.A.C. 13:45A-5.4 declares that “any violation

of the provisions of this subchapter shall be subject to the

sanctions” set forth in the CFA.

Plaintiffs David Spade and Katina Spade (Spade plaintiffs)

assert that on or about April 25, 2013, they purchased furniture

from a retail store owned and operated by defendant Select

Comfort Corporation (Select Comfort).1 They allege that Select

Comfort’s sales contract included the following language

prohibited by N.J.A.C. 13:45A-5.3(c): a statement that the sale

of certain products “are final,” and a statement that as to

certain categories of products, “[n]o returns will be accepted”

or “[n]o returns or exchanges will be authorized or accepted.”

The Spade plaintiffs also allege that the sales contract that

Select Comfort provided to them did not include language

mandated by N.J.A.C. 13:45A-5.2(a) and N.J.A.C. 13:45A-5.3(a).

1 We derive our summary of the Spade plaintiffs’ allegations
from the complaint and its exhibits in the record.
7
It is undisputed that the furniture ordered by the Spade

plaintiffs was timely delivered to them on or about May 29,

2013. As the Third Circuit noted, “[t]he Spade plaintiffs

experienced problems with their furniture, but it was initially

delivered in a conforming manner.”2

Plaintiffs Christopher D. Wenger and Eileen Muller (Wenger

plaintiffs) allege that on November 28, 2013, they ordered

furniture from a store owned by defendant Bob’s Discount

Furniture, LLC (Bob’s Discount Furniture).3 They allege that the

“sales document” provided by Bob’s Discount Furniture included

the following language:

2 The Spade plaintiffs allege that on two unspecified dates
following delivery, they found defects in the furniture sold by
Select Comfort. They assert that after unsuccessful attempts to
repair the defects, they retained counsel to revoke their
acceptance of the delivery pursuant to
N.J.S.A. 12A:2-608, and
that Select Comfort has not resolved the parties’ dispute over
the alleged defects. Select Comfort represents that the Spade
plaintiffs did not contact it to complain about the furniture
until several months after the furniture was delivered and
accepted. It asserts that two components of the furniture were
replaced in accordance with the applicable warranty, and that
plaintiffs’ warranty claim was resolved. In light of the Third
Circuit’s statement that the Spade plaintiffs’ furniture was
timely delivered in a conforming condition, the parties’ dispute
is irrelevant to our consideration of the certified questions.
See Delta Funding Corp. v. Harris,
189 N.J. 18, 35 (2006) (“The
purpose of the certification process is to answer the question
of law submitted pursuant to Rule 2:12A, not to resolve [the
parties’] factual differences.”).

3 We derive our summary of the Wenger plaintiffs’ allegations
from the complaint and its exhibits in the record.
8
You may cancel special orders within three (3)
days after the order date (11/28/2013) and we
will refund your Special Order deposit in
full. If you cancel your special order later
than three (3) days after the order date
(11/28/2013), we will refund your Special
Order Deposit less the Special Order fee.

The Wenger plaintiffs assert that this language violates

N.J.A.C. 13:45A-5.3(c), because that regulation mandates a full

refund in the event of a late delivery of the furniture ordered.

The Wenger plaintiffs also contend that the sales document did

not entirely conform with N.J.A.C. 13:45A-5.2(a) and N.J.A.C.

13:45A-5.3(a) because language required by those provisions

appeared in a font different from the “ten-point bold face type”

that the regulations prescribe.4

Although the record does not reveal the date on which Bob’s

Discount Furniture delivered the furniture ordered by the Wenger

plaintiffs, it is undisputed that the furniture was timely

delivered.

The Spade plaintiffs filed a putative class action in the

Law Division, naming Select Comfort and the manufacturer of the

4 The Wenger plaintiffs also allege that a “brochure/folder”
provided by Bob’s Discount Furniture violated N.J.A.C. 13:45A-
5.2(a) and N.J.A.C. 13:45A-5.3(a), because it advised the
consumer that when the store’s delivery team “is ready to leave
your home, we will ask you to confirm that your delivery was
totally satisfactory, or, if there was a problem, to immediately
speak with a Customer Care representative.”
9
furniture that they ordered, Leggett & Platt, as defendants.

The Spade plaintiffs asserted a claim under the TCCWNA, based on

alleged violations of N.J.A.C. 13:45A-5.2 and -5.3 on behalf of

“all other persons similarly situated to plaintiffs who were

issued/received contracts of the same kind and in the same way

as plaintiffs.”5 The action was removed to the United States

District Court for the District of New Jersey, based on 28

U.S.C. §§ 1332(a) and (d).

The Wenger plaintiffs also filed a putative class action in

the Law Division. They asserted TCCWNA claims against Bob’s

Discount Furniture based on alleged violations of N.J.A.C.

13:45A-5.1, -5.2 and -5.3, and sought certification of the

following class:

All New Jersey consumers who purchased
household furniture or furnishings for future
delivery from Defendant at any time on or
after the day six years prior to the day this
Complaint was filed, using a sales document
the same as or similar to the sales document
used in the transaction with Plaintiffs that
contains the following sentence: ”The
Merchandise that you have ordered is promised
for delivery to you on or before _____” and
where the delivery date in the blank space at
the end of the sentence was not filled in.

5 The district court dismissed the Spade plaintiffs’ claims
against Select Comfort based on the CFA and the Magnuson Moss
Warranty-Federal Trade Commission Improvement Act, 15 U.S.C.
§§ 2301 to 2312. It also dismissed the Spade plaintiffs’ claims
against Leggett & Platt. None of those claims are relevant to
the Third Circuit’s certified questions.
10
Bob’s Discount Furniture removed the action to the United

States District Court for the District of New Jersey pursuant to

28 U.S.C. §§ 1332(a) and (d). The district court denied the

Wenger plaintiffs’ motion to remand.

In Spade, Select Comfort filed a motion for judgment on the

pleadings. Fed. R. Civ. P. 12(c). In Wenger, Bob’s Discount

Furniture filed a motion to dismiss the complaint for failure to

state a claim upon which relief can be granted. Fed. R. Civ. P.

12(b)(6).

After consolidating the cases, the district court granted

both motions in accordance with the standard of Fed. R. Civ. P.

12(b)(6). Citing the plain language of
N.J.S.A. 56:12-17, the

district court held that in order to be an “aggrieved consumer”

entitled to relief under the TCCWNA, a plaintiff would be

required to demonstrate that he or she “suffer[ed] the effects

of a violation” of the regulation at issue. It concluded that

because N.J.A.C. 13:45A-5.2 and -5.3 exist to “foster timely

delivery of conforming furniture” -- an objective achieved by

the defendant sellers in both cases -- none of the plaintiffs

constituted an “aggrieved consumer” for purposes of the TCCWNA.

The district court accordingly dismissed both complaints.

The Spade plaintiffs and the Wenger plaintiffs appealed the

district court’s judgment. After briefing, the Third Circuit

panel determined that the appeals raised important and

11
unresolved questions of New Jersey law. Pursuant to Rule 2:12A-

3, the Third Circuit certified the questions to this Court.

We accepted the questions as posed by the Third Circuit.6

We also granted the applications of the New Jersey Association

for Justice, the Consumers League of New Jersey, the Retail

Litigation Center, Inc., the New Jersey Retail Merchants

Association, the New Jersey Business and Industry Association,

the New Jersey Civil Justice Institute, the Commerce and

Industry Association of New Jersey, and Tailored Brands, Inc.,

to appear as amici curiae.

II.

To answer the Third Circuit’s certified questions, we apply

familiar principles of statutory construction. The Legislature

instructs that in its statutes, “words and phrases shall be read

and construed with their context,” and that such words and

phrases “shall, unless inconsistent with the manifest intent of

the legislature or unless another or different meaning is

expressly indicated, be given their generally accepted meaning,

6 The Third Circuit designated its question regarding the
definition of an “aggrieved consumer” under
N.J.S.A. 56:12-17 as
its first question, and its question concerning a “clearly
established legal right of a consumer or responsibility of a
seller” under
N.J.S.A. 56:12-15 as its second question. Because

N.J.S.A. 56:12-15 defines a TCCWNA violation and
N.J.S.A. 56:12-
17 prescribes the remedy for such a violation, we answer the
questions in reverse order.
12
according to the approved usage of the language.”
N.J.S.A. 1:1-

Accordingly, “[t]he starting point of all statutory

interpretation must be the language used in the enactment.”

DCPP v. Y.N.,
220 N.J. 165, 178 (2014); accord Acoli v. State

Parole Bd.,
224 N.J. 213, 227 (2016). We construe the words of

a statute “in context with related provisions so as to give

sense to the legislation as a whole.” N. Jersey Media Grp.,

Inc. v. Township of Lyndhurst,
229 N.J. 541, 570 (2017) (quoting

DiProspero v. Penn,
183 N.J. 477, 492 (2005)).

“If the plain language leads to a clear and unambiguous

result, then our interpretative process is over.” Johnson v.

Roselle EZ Quick LLC,
226 N.J. 370, 386 (2016) (quoting

Richardson v. Bd. of Trs., PFRS,
192 N.J. 189, 195 (2007)). We

rely on extrinsic evidence of legislative intent “only when the

statute is ambiguous, the plain language leads to a result

inconsistent with any legitimate public policy objective, or it

is at odds with a general statutory scheme.” Shelton v.

Restaurant.com, Inc.,
214 N.J. 419, 429 (2013).

The TCCWNA is intended “to prevent deceptive practices in

consumer contracts.” Dugan v. TGI Fridays, Inc.,
231 N.J. 24,

67 (2017) (quoting Kent Motor Cars, Inc. v. Reynolds & Reynolds

Co.,
207 N.J. 428, 457 (2011)). When it enacted the TCCWNA in

13
1981, the Legislature acknowledged the presence of legally

invalid provisions in “[f]ar too many consumer contracts,

warranties, notices and signs,” which acted to “deceive[] a

consumer into thinking [the provisions] are enforceable,” and

deterred consumers from enforcing their legal rights. Sponsor’s

Statement to A. 1660 2 (1980). In the TCCWNA, the Legislature

sought not to confer new legal rights, but to require sellers

“to acknowledge clearly established consumer rights,” and to

“provide[] remedies for posting or inserting provisions contrary

to law.” Shelton,
214 N.J. at 432; see also Governor’s

Statement on Signing A. 1660 (Jan. 11, 1982) (noting that TCCWNA

would “strengthen[] provisions of the Consumer Fraud Act”).

To that end, the TCCWNA provides that

[n]o seller, lessor, creditor, lender or
bailee shall in the course of his business
offer to any consumer or prospective consumer
or enter into any written consumer contract or
give or display any written consumer warranty,
notice or sign after the effective date of
this act 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.S.A. 56:12-15.]

The TCCWNA authorizes the award of a civil penalty,

damages, attorneys’ fees, and costs to an “aggrieved consumer”:

14
Any person who violates the provisions of this
act 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
attorneys’ fees and court costs. This may be
recoverable by the consumer in a civil action
in a court of competent jurisdiction or as
part of a counterclaim by the consumer against
the seller, lessor, creditor, lender or
bailee or assignee of any of the aforesaid,
who aggrieved him. A consumer also shall have
the right to petition a court to terminate a
contract which violates the provisions of
[N.J.S.A. 56:12-15] and the court in its
discretion may void the contract.

[N.J.S.A. 56:12-17.]

A plaintiff pursuing a TCCWNA cause of action must prove

four elements: first, that the defendant was a “seller, lessor,

creditor, lender or bailee or assignee of any of the aforesaid”;

second, that the defendant offered or entered into a “written

consumer contract or [gave] or display[ed] any written consumer

warranty, notice or sign”; third, that at the time that the

written consumer contract is signed or the written consumer

warranty, notice or sign is displayed, that writing contains a

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; and

finally, that the plaintiff is an “aggrieved consumer.”

N.J.S.A. 56:12-15, -17.

15
C.

Against that backdrop, we consider the Third Circuit’s

first certified question: whether a violation of N.J.A.C.

13:45A-5.2 or -5.3 alone constitutes a violation of a clearly

established legal right of a consumer or a responsibility of a

seller under the TCCWNA, and therefore provides a basis for

relief under the TCCWNA.

The Spade plaintiffs, the Wenger plaintiffs, and amici

curiae the New Jersey Association for Justice and the Consumers

League of New Jersey, argue that any violation of N.J.A.C.

13:45A-5.2 or -5.3 violates a “clearly established legal right

of a consumer or responsibility of a seller” under
N.J.S.A.

56:12-15. Defendants contend that, in general, administrative

regulations cannot give rise to a “clearly established” legal

right or responsibility for purposes of the TCCWNA. Amicus

curiae the Retail Litigation Center, Inc., argues that a

consumer asserting that a seller violated N.J.A.C. 13:45A-5.2 or

-5.3 must also show ascertainable loss under the CFA to

demonstrate a violation of a “clearly established” legal right

or responsibility. Amicus curiae the New Jersey Civil Justice

Institute urges the Court not to deem an omission of required

language, or the appearance of such language in an incorrect

font, to give rise to a cause of action under
N.J.S.A. 56:12-15.

16
Amici curiae the Commerce and Industry Association of New Jersey

and Tailored Brands, Inc., assert that only the contravention of

well-recognized requirements should constitute a violation of a

“clearly established” legal right or responsibility under

N.J.S.A. 56:12-15. The remaining amici curiae take no position

on this issue.

In these appeals, all plaintiffs allege that defendants

included in their sales documents language constituting an

affirmative misrepresentation, contrary to N.J.A.C. 13:45A-

5.3(c), a regulation that prohibits potentially misleading

language concerning the availability of a refund. Because those

allegations are present in both appeals, we need not reach the

question of whether a seller’s omission of a provision required

by N.J.A.C. 13:45A-5.2 or -5.3 would give rise to a TCCWNA

claim. We address only those allegations of an affirmative

violation of N.J.A.C. 13:45A-5.3(c).

Nothing in either the TCCWNA’s plain language or its

legislative history suggests that the inclusion of language in a

contract or other writing that violates a regulation cannot be

the basis for a claim under
N.J.S.A. 56:12-15. In the TCCWNA,

the Legislature did not limit the term “State or Federal law” to

statutes, as it could have done with a minor revision of the

TCCWNA’s text.

17
Moreover, accepting regulations as a source of law in the

application of N.J.S.A. 56:12-15’s “clearly established”

standard furthers the TCCWNA’s consumer-protection objectives.

The Legislature not only included affirmative acts and knowing

omissions in the category of consumer fraud violations, but also

“impose[d] strict liability” for regulatory violations,

regardless of the defendant’s intent. Cox v. Sears Roebuck &

Co.,
138 N.J. 2, 18 (1994). It did so because “parties subject

to the regulations are assumed to be familiar with them, so that

any violation of the regulations, regardless of intent or moral

culpability, constitutes a violation of the [CFA].” Id. at 18-

19. Although the CFA generally describes unlawful commercial

practices that give rise to a cause of action,
N.J.S.A. 56:8-2,

the Legislature envisioned that the Attorney General would

specifically identify unlawful practices in particular

commercial markets, and that such regulations would constitute

law. See
N.J.S.A. 56:8-4 (“To accomplish the objectives and to

carry out the duties prescribed by [the CFA], the Attorney

General . . . may . . . promulgate such rules and regulations .

. . as may be necessary, which shall have the force of law.”).

Accordingly, the content of contracts and other writings

used in commercial transactions is typically addressed in

regulations, rather than statutes. See, e.g., N.J.A.C. 13:45A-

16.2(a)(12)(ii) (requiring all home improvement contracts for

18
purchase price in excess of $500.00 to include “[a] description

of the work to be done and the products and materials to be used

or installed in performance of the contract”); N.J.A.C. 13:45A-

26B.2(a)(2) (requiring motor vehicle sellers to itemize charges

for pre-delivery services “in at least 10-point type, on the

sales document”).

Our decisions also acknowledge that a TCCWNA violation may

be premised on the violation of a regulation. In Bosland v.

Warnock Dodge, Inc.,
396 N.J. Super. 267, 278-79 (App. Div.

2007), aff’d on other grounds,
197 N.J. 543 (2009), the

Appellate Division recognized a TCCWNA claim based on alleged

violations of automotive sales practices regulations promulgated

pursuant to the CFA. We noted in Dugan that courts applying

N.J.S.A. 56:12-15 “assess whether the CFA or another consumer

protection statute or regulation clearly prohibited the

contractual provision or other practice that is the basis for

the TCCWNA claim.”
231 N.J. at 69; see also Kent Motor Cars,

207 N.J. at 457-58 (affirming dismissal of defendant’s claims

against insurer in TCCWNA action based on violation of

automotive sales regulations governing font size in sales

contract). There is, in short, no support in the TCCWNA or in

case law for the proposition that regulations cannot serve as

the source of a consumer’s “clearly established legal right” or

a “responsibility of a seller” under
N.J.S.A. 56:12-15.

19
N.J.A.C. 13:45A-5.3(c) is plainly the source of a “clearly

established legal right of a consumer or responsibility of a

seller” within the meaning of
N.J.S.A 56:12-15. The regulation

carries the force of law; indeed, a violation “shall be subject

to the sanctions contained in” the CFA. N.J.A.C. 13:45A-5.4.

Moreover, N.J.A.C. 13:45A-5.3(c)’s prohibition on misleading

refund terms in furniture-sales contracts provides unambiguous

direction to furniture sellers. The regulation generally bars

terms in furniture sales contracts or sales agreements “which

violate or are contrary to the rights and responsibilities” set

forth in the regulations, and provides specific examples of

prohibited language: “'all sales final,’ 'no cancellations’ or

'no refunds.’” N.J.A.C. 13:45A-5.3(c). The regulation is

simple and clear.

Accordingly, we conclude that a furniture seller’s

inclusion in a consumer sales contract or agreement of language

prohibited by N.J.A.C. 13:45A-5.3(c) may alone constitute a

violation of a “clearly established legal right of a consumer or

responsibility of a seller” under
N.J.S.A. 56:12-15, and thus

may provide a basis for relief under the TCCWNA.

The Third Circuit’s second certified question requires that

we determine whether a consumer who receives a contract

containing provisions that violate one of the regulations at

20
issue, but who has suffered no adverse consequences as a result

of the contract’s noncompliance with the regulation, constitutes

an “aggrieved consumer,” as that term is used in
N.J.S.A. 56:12-

17.

“The TCCWNA does not specifically define what makes a

'consumer’ an 'aggrieved consumer’ for purposes of N.J.S.A.

56:12-17.” Dugan,
231 N.J. at 69. In several decisions, we

have evaluated TCCWNA claims without squarely addressing the

question posed by the Third Circuit in this case. See id. at

71-72 (reversing certification of TCCWNA class because “a

claimant who does not, at a minimum, prove that he or she

received a menu cannot satisfy the elements of the TCCWNA and is

not an 'aggrieved consumer’”); Manahawkin Convalescent v.

O’Neill,
217 N.J. 99, 125-26 (2014) (affirming dismissal of

TCCWNA claim predicated on alleged violation of prohibition on

Medicaid or Medicare-certified nursing homes requiring third-

party guarantees of payment as condition of resident admission

or retention); Shelton,
214 N.J. at 435 (“[T]he phrase

'primarily for personal, family or household purposes’ in

N.J.S.A. 56:12-15 cannot be interpreted to exclude intangible

property from the scope of the TCCWNA.”). The Third Circuit’s

request that we define an “aggrieved consumer” thus raises a

question of first impression for this Court.

21
The Spade plaintiffs, the Wenger plaintiffs, amicus curiae

the New Jersey Association for Justice, and amicus curiae the

Consumers League of New Jersey urge an expansive definition of

“aggrieved consumer.” They argue that any consumer who is

offered or enters into a contract or other writing that violates

N.J.A.C. 13:45A-5.2 or -5.3, either by inclusion of an offending

provision or omission of a required provision, is an “aggrieved

consumer” under
N.J.S.A. 56:12-17, whether or not he or she has

consequently suffered harm. Defendants in both appeals and

amici curiae the Retail Litigation Center, Inc., the New Jersey

Retail Merchants Association, the New Jersey Business and

Industry Association, the New Jersey Civil Justice Institute,

the Commerce and Industry Association of New Jersey, and

Tailored Brands, Inc., maintain that in order to be an

“aggrieved consumer,” a plaintiff must demonstrate an adverse

consequence caused by an unlawful provision in a contract or

other writing.

We find ample evidence of the Legislature’s intent in the

TCCWNA’s plain language to resolve this question of statutory

interpretation. In the provision of the TCCWNA that defines a

statutory violation, the word “consumer” -- unmodified by the

term “aggrieved” -- broadly denotes “any individual who buys,

leases, borrows, or bails any money, property or service which

is primarily for personal, family or household purposes.”

22 N.J.S.A. 56:12-15. The Legislature prohibited any “seller,

lessor, creditor, lender or bailee” from including an unlawful

provision in any “written consumer contract” offered to “any

consumer or prospective consumer,” or entered into with such a

“consumer or prospective consumer,” or in “any written consumer

warranty, notice or sign.” Ibid. Thus, when it defined the

conduct barred by the TCCWNA, the Legislature chose expansive

language to describe the consumers and potential consumers whom

the statute was enacted to protect.

In the TCCWNA’s remedial provision, however, the

Legislature chose a more precise term: “aggrieved consumer.”

N.J.S.A. 56:12-17. The Legislature clearly intended to

differentiate between “consumers and prospective consumers” --

the broad category of people whom the Legislature seeks to

shield from offending provisions -- and “aggrieved consumers”

entitled to a remedy under the TCCWNA.

“[L]egislative language must not, if reasonably avoidable,

be found to be inoperative, superfluous or meaningless.” Carter

v. Doe (In re N.J. Fireman’s Ass’n Obligation),
230 N.J. 258,

274 (2017) (alteration in original) (quoting State v. Regis,
208 N.J. 439, 449 (2011)). If “aggrieved consumer” were construed

to mean nothing more than a “consumer” to whom a contract or

other writing is offered, given or displayed, the term

“aggrieved” would indeed be superfluous. We interpret that word

23
so as to give it significance; it distinguishes consumers who

have suffered harm because of a violation of
N.J.S.A. 56:12-15

from those who have merely been exposed to unlawful language in

a contract or writing, to no effect.

As reference sources contemporaneous to the TCCWNA’s

enactment reflect,7 the term “aggrieved consumer” denotes a

consumer who has suffered some form of harm as a result of the

defendant’s conduct. See Black’s Law Dictionary 60 (5th ed.

1979) (defining “aggrieved party” as “[o]ne whose legal right is

invaded by an act complained of, or whose pecuniary interest is

directly affected by a degree or judgment,” and “aggrieved” to

denote “[h]aving suffered loss or injury; damnified; injured”);

Oxford English Dictionary 255 (2d ed. 1989) (observing that

“aggrieve” was “rarely used” except “[i]n the passive to be

aggrieved: to be injuriously affected, to have a grievance or

cause of grief[;] 2. [t]o afflict oneself, to grieve, to feel

7 In construing legislative language, we may consider the usage
of that language at the time of a statute’s enactment. See,
e.g., Sandifer v. U.S. Steel Corp., 571 U.S.___,
134 S. Ct. 870,
877-79 (2014) (relying on dictionary definitions in use at time
of statute’s enactment to define “clothes” and “changing” in
order to determine whether “the donning and doffing of
protective gear” qualifies as “changing clothes” within the
meaning of Fair Labor Standards Act); Perrin v. United States,

444 U.S. 37, 42 (1979) (“A fundamental canon of statutory
construction is that, unless otherwise defined, words will be
interpreted as taking their ordinary, contemporary, common
meaning. Therefore, we look to the ordinary meaning of the term
'bribery’ [in the Travel Act, 18 U.S.C. § 1952,] at the time
Congress enacted the statute in 1961.” (citation omitted)).
24
grief, 3. [t]o make more grave or serious; to aggravate,

exaggerate”); Webster’s Third New International Dictionary 41

(3d ed. 1981) (defining “aggrieved” to mean “1. troubled or

distressed in spirit[;] 2. showing grief, injury, offense,

having a grievance, specifically suffering from an infringement

or denial of legal rights”). Thus, an “aggrieved consumer” is a

consumer who has been harmed by a violation of
N.J.S.A. 56:12-

15.

We do not, however, view that harm to be limited to injury

compensable by monetary damages. The Legislature clearly

envisioned that an “aggrieved consumer” is not necessarily a

consumer entitled to an award of damages; it provided for “a

civil penalty of not less than $100.00 or . . . actual damages,

or both at the election of the consumer.”
N.J.S.A. 56:12-17.

The TCCWNA thus contemplates that a consumer may be entitled to

a remedy notwithstanding the absence of proof of monetary

damages. Ibid.; see also Bohus v. Restaurant.com, Inc.,
784 F.3d 918, 930 (3d Cir. 2015) (“We cannot disregard the

Legislature’s choice to award statutory damages in the absence

of actual damages.”); Shelton,
214 N.J. at 432-43 (describing

Assembly Commerce, Industry and Professions Committee’s decision

to change language providing for statutory remedy “from civil

'damages’ of not less than $100 to a civil 'penalty’ of not less

than $100”).

25
Thus, a consumer may be “aggrieved” for purposes of

N.J.S.A. 56:12-17 if he or she has suffered harm as a result of

the defendant’s inclusion of prohibited language in a contract

or other writing even if that harm is not a basis for a damages

award. If, for example, a furniture seller fails to timely

deliver a consumer’s furniture, and the consumer would have

sought a refund had he or she not been deterred by the “no

refunds” language prohibited by N.J.A.C. 13:45A-5.3, that

consumer may be an “aggrieved consumer” entitled to a civil

penalty under
N.J.S.A. 56:12-17. If an untimely delivery and

misleading “no refunds” language leave a consumer without

furniture needed for a family gathering, the consumer may be an

“aggrieved consumer” for purposes of
N.J.S.A. 56:12-17. Proof

of harm resulting from contract language prohibited by
N.J.S.A.

56:12-15 may warrant a civil penalty under
N.J.S.A. 56:12-17,

even if the harm is not compensable by damages.

In the absence of evidence that the consumer suffered

adverse consequences as a result of the defendant’s regulatory

violation, a consumer is not an “aggrieved consumer” for

purposes of the TCCWNA. In the setting of these appeals, if a

consumer has entered into a sales contract containing a

provision that violated N.J.A.C. 13:45A-5.3, but his or her

furniture was delivered conforming and on schedule, and he or

she has incurred no monetary damages or adverse consequences,

26
that consumer has suffered no harm. Such a consumer is not an

“aggrieved consumer” under
N.J.S.A. 56:12-17.

III.

In sum, we construe the TCCWNA to recognize an affirmative

violation of N.J.A.C. 13:45A-5.3(c), by virtue of the inclusion

of language prohibited by that regulation in a contract of sale

or sale order for the delivery of household furniture, to

constitute a violation of a “clearly established legal right of

a consumer or responsibility of a seller.”
N.J.S.A. 56:12-15.

We interpret
N.J.S.A. 56:12-17 to require a consumer to show

that he or she has suffered harm, even if that harm does not

warrant an award of damages, as a result of a violation of

N.J.S.A. 56:12-15, in order for that consumer to constitute an

“aggrieved consumer” for purposes of the TCCWNA.
N.J.S.A.

56:12-17.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE PATTERSON’s
opinion.

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