drinking glassConsumer protection laws allow the recovery of damages from businesses for various fraudulent or deceptive practices. These laws tend to define prohibited conduct in very general terms. Businesses that provide goods or services to the general public should be aware of the latest developments in consumer protection law in order to avoid unwitting liability for deceptive business practices. The New Jersey Supreme Court has agreed to hear two appeals of putative consumer class actions alleging deceptive pricing schemes against two restaurant chains. While these cases only directly involve alcohol sales, they demonstrate how major consumer complaints can arise from seemingly minor practices.

The New Jersey statutes at issue are the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 et seq., and the Truth in Consumer Contract Warranty and Notice Act (TCCWNA), id. at 56:12-14 et seq. Among the many acts prohibited by the CFA is the offered, attempted, or completed sale of retail goods without clearly stating “the total selling price.” Id. at § 56:8-2.5. The statute also prohibits “the knowing, concealment, suppression, or omission of any material fact,” when such an action is intended to induce a consumer to make a purchase. Id. at § 56:8-2. The TCCWNA prohibits businesses from offering or entering into contracts with consumers that “violate[] any clearly established legal right of a consumer,” including a consumer’s rights under the CFA. Id. at § 56:12-15. Both statutes allow individual consumers to sue for damages. Id. at §§ 56:8-2.11, 56:12-17.

When an individual consumer’s damages are not enough to make the time and expense of pursuing a claim worthwhile, multiple consumers with similar claims can file a class action on behalf of all similarly situated consumers. To obtain class certification, the plaintiffs must be able to establish four elements:  (1) that the class is sufficiently numerous that it would not be practical to join every plaintiff individually; (2) that all class members have factual or legal issues in common; (3) that the claims of the plaintiffs are typical of the rest of the class; and (4) that the plaintiffs can “fairly and adequately protect the interests of the class.” N.J.R.C. 4:32-1(a).

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New Jersey CapitolThe overall economic outlook for New Jersey is cautiously optimistic, at least according to some sources. The New Jersey Business & Industry Association (NJBIA) describes a gradual increase in “business confidence” in its annual Business Outlook Survey, but it also notes several downward trends. People are apparently leaving the state in substantial numbers, as are many businesses, resulting in fewer jobs and less income statewide. The NJBIA offers possible explanations for why this is happening and what might be done about it. The state is also taking steps to evaluate the situation. A bill that recently passed the New Jersey Senate, which is now awaiting action in the Assembly, would direct the New Jersey Department of Labor and Workforce Development (LWD) to conduct detailed surveys of businesses that are leaving the state.

In 2007, the New Jersey Legislature enacted the Millville Dallas Airmotive Plant Job Loss Notification Act, also known as the NJ WARN Act. P.L.2007, c.212; N.J. Rev. Stat. § 34:21-1 et seq. The law applies to employers that have done business in the state for over three years and that have at least 100 full-time employees. Covered employers are required to provide a notice, in a specified form, to any employee who is terminated as part of a “mass layoff” or to all employees who lose their jobs as a result of a “transfer of operations” or “termination of operations.” Id. at § 34:21-2. The law also directs the LWD’s response team, whose purpose is to assist laid off employees, to offer to consult with the business’ management and workers.

While the NJBIA’s 2017 Business Outlook survey shows optimism among business owners, another study published in early 2016 shows significant rates of “outmigration” by both residents and businesses. From 2005 to 2014, the NJBIA estimates that more than two million people moved away from New Jersey, and this cost the state about $18 billion in net revenue. It further estimates that the state has lost about 75,000 jobs and $11.4 billion in “lost economic activity.” Despite these grim statistics, other measurements seem much more hopeful. Another organization, for example, reported that home sales in New Jersey have increased by more than 30 percent since early 2015.

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cube-game-cube-instantaneous-speed-568192Government contracts are a major source of revenue for many businesses, both large and small. In order to prevent corruption, and to avoid the appearance of corruption, Congress, state legislatures, and city councils have enacted laws addressing the overlap of government contracts and political contributions, often known as “pay-to-play” (PTP) laws. Businesses and business owners who rely on government contracts for some or all of their revenue must be careful to avoid even unintentional violations of these laws. A recent decision by the New Jersey Appellate Division, in which a single political contribution cost a business eligibility for government contracts, illustrates this concern. Della Pello Paving, Inc. v. N.J. Dept. of Treasury, et al, Nos. A-3774-15T3, A-3784-15T3, slip op. (N.J. App., Feb. 9, 2017).

Business activities covered by government contracts range from advertising campaigns in local markets to massive engineering operations. The associated fees can go from a few thousand to hundreds of millions of dollars. Any type of contract, and the processes of bidding and procurement, are covered by PTP and other anti-corruption laws. New Jersey’s PTP law was enacted in 2005 as an amendment to the Campaign Contributions and Expenditure Reporting Act. It seeks to address the “widespread cynicism” among the public caused by “[t]he growing infusion of funds donated by business entities into the political process at all levels of government.” N.J. Rev. Stat. § 19:44A-20.13.

The New Jersey PTP law bars anyone from eligibility for a contract worth more than $17,500 if they made political contributions in a state election within the previous eighteen months. It also bars eligibility for contracts of that size during the current or upcoming term of a governor or lieutenant governor for anyone who contributed to that person’s campaign or their party. Id. at § 19:44A-20.14. Business entities may avoid adverse consequences under this law by requesting “a full reimbursement” of any political contribution that would make them ineligible for a contract, provided they do so within thirty days of making the contribution. Id. at § 19:44A-20.20.
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Airbnb houseThe “sharing economy” has become a feature of daily life for millions of people around the country and in New Jersey. It primarily consists of technology companies that use mobile apps to allow people, at least in principle, to make certain exchanges. Two well-known types of sharing economy services are ride-sharing and home-sharing. These particular business models frequently conflict with established local businesses and local regulations. Ride-sharing companies like Uber and home-sharing companies like Airbnb have often resisted efforts by local governments to regulate them as taxi and hotel companies, respectively. A pair of bills pending in the New Jersey Legislature would impose regulations on home-sharing services. While not expressly classifying them as hotels, the bills would subject them to similar rules and taxes.

Home-sharing services allow homeowners to make their homes available for short-term rental. The home-sharing service acts as a sort of broker between users and homeowners. This type of service has managed to avoid many of the legal pitfalls that some ride-sharing companies have encountered, such as questions of whether drivers are independent contractors or employees. Where home-sharing companies have found trouble, however, is on the question of whether they should be regulated and taxed as hotels.

Hotels, motels, “bed & breakfast” operations, and other businesses providing overnight accommodations are subject to a variety of state and local regulations. New Jersey law imposes a seven percent State Occupancy Fee on rental rates charged by hotels and motels across the state. Most municipalities in New Jersey are also authorized to collect a Municipal Occupancy Tax of up to one percent of rental rates.

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stormtroopersIn closely held businesses, minority shareholders—generally meaning shareholders with less than 50 percent of the company’s voting shares—can easily find themselves at a disadvantage in disputes with majority shareholders. New Jersey’s Oppressed Shareholder Statute (OSS), N.J. Rev. Stat. § 14A:12-7 et seq., provides shareholders with a means to assert their rights when they suffer from bad-faith actions by other shareholders. They do not necessarily have to be in the minority to qualify as oppressed shareholders under the OSS, according to New Jersey courts. A recent decision illustrates how shareholders can benefit from this statute. RP v. SP, No. UNN-C-108-13, mem. op. (N.J. Super. Ct. Chanc. Div., Dec. 22, 2016).

Avoiding conflicts that lead to litigation is obviously the goal of any business owner. Still, it is useful to know which options are available should a company’s operating agreement fail to provide an adequate means for dealing with conflict. The OSS authorizes courts to intervene in a business for various reasons, with remedies ranging from the appointment of a custodian or provisional director to the dissolution of the business entity. If a corporation has no more than 25 shareholders, the OSS allows court intervention if “the directors or those in control…have acted oppressively or unfairly toward one or more minority shareholders in their capacities as shareholders, directors, officers, or employees.” N.J. Rev. Stat. § 14A:12-7(1)(c).

“Control,” in this context, refers to control of the corporation’s voting stock. A “minority shareholder” can include not only a shareholder with a minority of shares but also one who “does not have control of the corporate shares with respect to voting rights.” Berger v. Berger, 249 N.J. Super. 305, 317 (1991). A minority shareholder, under this definition, can also be an “oppressed shareholder” under the OSS, regardless of whether they actually own a minority of shares. Balsamides v. Perle, 313 N.J. Super. 7, 16 (1998).

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contractNew Jersey businesses that provide online services, sell goods online, or otherwise interact with their customers via the internet should be aware of some recent developments involving New Jersey consumer protection law. Two pending consumer class actions are seeking a broad application of the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA), N.J. Rev. Stat. § 56:12-14, et seq. While neither case has produced a final ruling, they have the potential to significantly affect businesses with an online presence, specifically in relation to the terms and conditions of website user agreements. Specific provisions could cause a business to violate state law, even inadvertently. Exactly when and how this might happen depends on multiple factors, including the nature of the business and the goods or services it provides.

Businesses often include agreements on their websites as a means of clarifying the business relationship—if any—established when someone visits the site and limiting their liability in various circumstances. A good business attorney will tell you that presenting an agreement in this manner is generally a good idea, but the reality is that almost no one ever reads these agreements before agreeing to them. When a consumer is presented with a contract that they cannot negotiate, essentially on a “take it or leave it” basis, courts tend to scrutinize the terms of those contracts very closely. The TCCWNA provides additional protections for consumers in this situation.

Under the TCCWNA, businesses may not use consumer contracts containing any “provision that violates any clearly established legal right of a consumer,” nor may a contract omit any legal “responsibility of a seller, lessor, creditor, lender or bailee.” N.J. Rev. Stat. § 56-12-15. This is a highly ambiguous restriction. The general rule in New Jersey has been not to bother contractual clauses that have no impact beyond the parties themselves. “Exculpatory clauses in private agreements that do not adversely affect the public interest are generally sustained.” Kane v. U-Haul Int’l Inc., 218 Fed. Appx. 163, 165 (3d Cir. 2007). A few recent cases may have changed this principle somewhat.

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The internet offers seemingly infinite possibilities for businesses to connect with their customers and reach out to new ones. It also gives consumers nearly unlimited ways to communicate with businesses and also with other consumers about businesses. Websites like Yelp enable consumers to post reviews of businesses for the public to see. Many businesses take negative reviews as a sign that they need to reconsider some aspect of their operations. A few, however, have taken a more assertive stance by attempting to bar customers entirely from posting negative reviews. A law passed by Congress and signed by President Obama in late 2016, the Consumer Review Fairness Act (CRFA) of 2016, prohibits businesses from using form contracts that purport to restrict consumers’ ability to post negative or critical reviews, commonly known as “gag clauses” or “non-disparagement clauses.”

1 starsAt first glance, a contract prohibiting someone from posting negative reviews to a site like Yelp, while possibly allowing positive reviews, might seem to violate the free speech guarantee of the First Amendment. This is not entirely accurate, though, since the prohibition comes from a contract between two private parties—a business and its customer. The First Amendment, simply stated, only prohibits the government from imposing content-based restrictions on speech. A private party, such as a restaurant or retail store, is legally permitted to eject a customer for almost any reason, including offensive speech.

One exception to the First Amendment’s free speech protection is defamatory speech. This is a statement made to the public that is false, that causes harm to the subject of the statement, and that the person making the statement knows or should know is false. A spoken defamatory statement is known as slander, and a written one is called libel. A customer who posts a negative review of a business that contains false information could be liable to the business for damages in a defamation lawsuit. The CRPA does not concern itself with this type of situation but instead with contractual clauses that prohibit both truthful and false negative reviews.

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HackCybersecurity is a critically important concern for businesses of all sizes and in all sectors of the economy. The growth of various electronic data systems, not to mention the internet, has brought almost countless new risks from hackers and others, who use new technologies to perpetrate traditional crimes like theft. Businesses that collect and maintain consumers’ personal information must be particularly careful, since cybersecurity breaches can affect their customers’ financial interests as well as their own. The New York State Department of Financial Services (DFS) announced new proposed cybersecurity regulations several months ago for businesses in the financial sector. The proposed regulations, which are reportedly the first of their kind in the country, would require covered businesses to undertake extensive measures to safeguard their data.

New York law currently requires state agencies and private businesses to notify the state’s attorney general of any cybersecurity breaches that result in the release of “private information” to unauthorized persons. “Private information” includes information that may be used to identify a particular individual and that includes details like a Social Security number, a driver’s license or other identification number, or information that could enable access to a credit card or another financial account. N.Y. State Tech. L. § 208, N.Y. Gen. Bus. L. § 899-AA. State law does not currently impose affirmative obligations on businesses to protect private information or to guard against cybersecurity breaches.

The governor announced the proposed DFS regulation in mid-September 2016. The regulation, which will be codified in Title 23 of the New York Codes, Rules, and Regulations (NYCRR), applies to any business or organization under the jurisdiction of the New York Banking Law, Insurance Law, or Financial Services Law. 23 NYCRR § 500.01(c) (proposed). It requires “covered entities” to perform a risk assessment on a periodic basis, initially to identify cybersecurity needs and vulnerabilities, and subsequently “to respond to technological developments and evolving threats.” Id. at § 500.09.

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penguinDigital technology enables businesses to store information electronically, without the need for expansive file cabinets and storage facilities, and to transmit data quickly and efficiently. It also exposes businesses to the risk of data breaches, which expose consumers to risks like identity theft. The Federal Trade Commission (FTC) recently issued guidelines regarding compliance with two major federal statutes that protect consumers and their privacy:  the Health Insurance Portability and Accountability Act (HIPAA) of 1996, Pub. L. 104-191, 110 Stat. 1936 (Aug. 21, 1996); and the Federal Trade Commission Act (FTC Act) of 1914, 15 U.S.C. § 41 et seq.

HIPAA is a comprehensive law dealing with various aspects of health insurance, but it is perhaps best known to the public for its provisions regarding medical information privacy. The statute directed the Department of Health and Human Services (HHS) to present “detailed recommendations on standards with respect to the privacy of individually identifiable health information” to several Congressional committees. Pub. L. 104-191 § 264, 110 Stat. 2033. HHS developed a set of standards and procedures from this, commonly known as the Privacy Rule, found at 45 C.F.R. Part 164.

In a very general sense, the Privacy Rule only applies to health care providers, insurers, and related businesses, described as “covered entities.” 45 C.F.R. 160.103. The Rule also applies, however, to “business associates,” defined to include any “subcontractor that creates, receives, maintains, or transmits” PHI. Id. This definition can apply to many types of businesses besides medical professionals and health care providers.

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meetingThe owners of a corporation, typically known as shareholders or stockholders, are shielded from individual liability for corporate debts. This is one of the main purposes of organizing a business venture as a corporation. Protection from liability is not absolute, however, and courts can “pierce the corporate veil” to hold shareholders individually liable for a variety of reasons under both statutes and common law. New York’s Business Corporations Law includes a provision that allows courts to hold the “10 largest shareholders” of a corporation liable for unpaid wages owed to the corporation’s employees. N.Y. Bus. Corp. L. § 630. The New York Legislature amended the law in 2016 to ensure that it applies equally to domestic and foreign corporations.

Shareholders, as a matter of general legal principle, may not be held individually liable for the corporation’s debts as long as any actions by the shareholders are reasonable and directed toward the benefit of the corporation. Self-dealing by a shareholder, the use of a corporation by a shareholder as an “alter ego,” or acts that are illegal or grossly negligent may result in individual liability. A wide array of court decisions have identified circumstances in which courts may pierce the corporate veil. Certain situations also allow courts to hold all shareholders or a distinct group of shareholders strictly liable for corporate debts.

Section 630 effectively imposes a strict liability standard on a group of corporate shareholders. An employer with a claim for unpaid wages must serve written notice on a shareholder, either within 180 days of being terminated or 60 days after reviewing the corporation’s shareholder records. The statute identifies the 10 largest shareholders based on “the fair value of their beneficial interest as of the beginning of the period during which the unpaid services…are performed.” N.Y. Bus. Corp. L. § 630(a). These shareholders are jointly and severally liable for the amount of unpaid wages.

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