A Rarity: The Supreme Court Will Answer Questions Certified to it by the Third Circuit

Rules 2:12A-1 et seq. provide a procedure under which the Third Circuit Court of Appeals can certify a question of law to the Supreme Court of New Jersey “if the answer may be determinative of an issue in litigation pending in the Third Circuit and there is no controlling appellate decision, constitutional provision, or statute in this State.”  The Supreme Court need not, however, accept the certified question and may reformulate the question if it does choose to consider the issue raised.

The Supreme Court has agreed to accept two questions certified to it by the Third Circuit in Shelton v. Restaurant.com, Inc.  [Disclosure:  I am co-counsel for the plaintiffs in Shelton, having come into the case after the District of New Jersey granted defendant’s motion to dismiss plaintiffs’ complaint for failure to state a claim].  The questions involve issues under New Jersey’s Truth in Consumer Contract, Warranty, and Notice Act, N.J.S.A. 56:12-14 to -18 (“TCCWNA”).  TCCWNA is a statute that was enacted in 1981 to enhance the consumer protections afforded by the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 et seq.

The case involves a claim that Restaurant.com’s gift certificates for use at various restaurants under terms set by those restaurants violate multiple consumer protection statutes, including TCCWNA.  The certified questions ask whether TCCWNA applies to “both tangible and intangible property, or is its scope limited to ony tangible property,” and whether “the purchase of a gift certificate which is issued by a third-party internet vendor and is contingent, i.e., subject to particular conditions that must be satisfied in order to obtain its face value, qualify as a transaction for ‘property … which is primarily for personal, family or household purposes’ so as to come within the definition of a ‘consumer contract’ under section 15 of the TCCWNA.”  The district court had dismissed plaintiffs’ TCCWNA claim on the grounds that TCCWNA did not apply to intangible property (a category into which the district judge found that Restaurant.com’s gift certificates fell), and that the fact that Restaurant.com’s gift certificates are redeemable only by third party restaurants, on terms set by them, took those gift certificates outsde of TCCWNA’s coverage.

The certified question procedure became effective on January 3, 2000.  Since that time, the Supreme Court has agreed to answer certified questions in fewer than ten cases.  Shelton promises to be an interesting application of the certified questions procedure.