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RIKER DANZIG SCHERER HYLAND & PERRETTI LLP Brian E. O'donnell, Esq

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RIKER DANZIG SCHERER HYLAND & PERRETTI LLP Brian E. O'donnell, Esq RIKER DANZIG SCHERER HYLAND & PERRETTI LLP Brian E. O'Donnell, Esq. (Bar ID No. 018131989) Michael P. O'Mullan, Esq. (Bar ID No. 029681996) Headquarters Plaza One Speedwell Avenue Morristown, NJ 07962-1981 (973) 538-0800 Attorneys for Defendants, Lumber Liquidators, Inc. and Robert M. Lynch SUPERIOR COURT OF NEW JERSEY JARROD KAUFMAN, RACHEL LAW DIVISION: MIDDLESEX COUNTY KAUFMAN, WILLIAM QUICK and NANCY QUICK, on behalf of themselves and those similarly situated, DOCKET NO. L-5358-14 Plaintiffs, v. LUMBER LIQUIDATORS, INC. and Motion Date: February 20,2015 ROBERT M. LYNCH Defendants. DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS THE FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM Of Counsel: Brian E. O'Donnell Michael P. O'Mullan On the Brief: Jeffrey M. Beyer Casey A. Boyle TABLE OF CONTENTS PRELIMINARY STATEMENT ..................................................................................................... 1 STATEMENT OF FACTS & PROCEDURAL HISTORY ............................................................ 3 STANDARD OF REVIEW ............................................................................................................. 7 LEGAL ARGUMENT ..................................................................................................................... 9 I. PLAINTIFFS FAIL TO STATE A CLAIM THAT DEFENDANTS VIOLATED THE FURNITURE DELIVERY REGULATIONS, AND THEREFORE, PLAINTIFFS CANNOT ESTABLISH A PREDICATE ACT VIOLATION OF SECTION 56:12-15 OF THE TCCWNA ........................................................................................................... 10 A. The Furniture Delivery Regulations Do Not Apply to Hardwood Flooring ................................................................................................ 12 1. The Plain Language of the Furniture Delivery Regulations Does Not Include Hardwood Flooring Within the Definition of "Household Furniture" ................................................................................................... 13 2. The Regulatory History Of The Furniture Delivery Regulations Does Not Evidence An Intent That They Apply To Hardwood Flooring ...................................................................................................... 16 3. Applying The Furniture Delivery Regulations To Home Construction Materials - Like Hardwood Flooring - Would Be Unforeseeable, Unfair And Would Violate Lumber Liquidators' Due Process Rights ............................................................... 18 B. Plaintiffs Cannot Establish The Violation Of A "Clearly Established" Legal Right Of A Consumer Or Responsibility Of A Seller Under The Furniture Delivery Regulations ............................................................................. .20 C. Plaintiffs Allegations Involve The Omission Of Information From Invoices, Which Is Not Actionable Under The TCCWNA .......................... 23 II. PLAINTIFFS FAIL TO STATE A CLAIM THAT DEFENDANTS VIOLATED THE CFA, AND THEREFORE, PLAINTIFFS CANNOT ESTABLISH A PREDICATE ACT VIOLATION OF SECTION 56:12-15 OF THE TCCWNA ................................... .25 A. The Purchaser's Waiver Of "Indirect, Incidental Or Consequential Damages" Does Not Violate The CF A .................................................................................... 25 1 TABLE OF CONTENTS (CONTINUED) B. The Language Limiting A Purchaser's Remedy To The Amount Of The Invoice Price Does Not Violate The CF A ............................................................. 27 III. DEFENDANTS' INVOICES DO NOT CONTAIN ANY PROVISIONS REQUIRING A CONSUMER TO WAIVE HIS OR HER RIGHTS UNDER the TCCWNA, AND THUS DO NOT VIOLATE SECTION 56:12-16 OF THE TCCWNA ............................ 30 IV. DEFENDANTS' INVOICES DO NOT OTHERWISE VIOLATE SECTION 56:12-16 OF THE TCCWNA .......................................................................... 31 V. THE CLAIM ALLEGED AGAINST ROBERT M. LYNCH MUST BE DISMISSED IN ITS ENTIRETy ............................................................................................................ 33 CONCLUSION .............................................................................................................................. 36 11 TABLE OF AUTHORITIES Page(s) CASES Allen v. V and A Bros., Inc., 208 N.J. 114 (2011) ....................................................................... .34 Am. Leistritz Extruder Corp. v. Polymer Concentrates, Inc., 363 F. App'x 963 (3d Cir. 2010) ........................................................................................................................... 26 Bader v. Administrator of Veterans Affairs for Dep't of U.S. Army, 470 F.Supp. 1240 (D.N.J. 1979) ................................................................................................ 8 Camden County Energy Recovery Associates, L.P. v. New Jersey Dep't of Environmental Protection, 320 N.J. Super. 59, 726 A.2d 968 (App. Div. 1999), affd, 170 N.J. 246, 786 A.2d 105 (2001) ...................................................................................... 8, 34 County of Warren v. State, 409 N.J. Super. 495, 978 A.2d 312 (App. Div. 2009) ......................... 8 Cox v. Sears Roebuck & Co., 138 N.J. 2, 647 A.2d 454 (1994) ................................................... 19 Daidone v. Buterick Bulkheading, 191 N.J. 557 (2007) ............................................................... .13 DiNicola v. Watchung Furniture's Country Manor, 232 N.J. Super. 69 (App. Div. 1989) ........... 22 DiProspero v. Penn, 183 N.J. 477, 874 A.2d 1039 (2005) ...................................................... 13, 16 F.C.C. v. Fox Television Stations, Inc., 132 S.Ct. 2307, 183 L.Ed.2d 234 (2012) ................ .18, 19 Furst v. Einstein Moomjy, Inc., 182 N.J. 1 (2004) ....................................................................... .22 Glen Pointe Associates v. Township of Teaneck, 10 N.J. Tax 380 (1989) ................................... 15 Harrison v. PPG Indus., Inc., 446 U.S. 578, 588 (1980) ............................................................... 14 In re Liquidation ofIntegrity Ins. Co., 193 N.J. 86,94,935 A.2d 1184, 1189 (2007) .................... 8 Jefferson Loan Co. v. Session, 397 N.J. Super. 520 (App. Div. 2008) ................................... 23, 24 Johnson Bros. Boat Works v. Conrad, 58 N.J. Super. 324, 156 A.2d 175 (Ch. Div. 1959) .......... 15 Kanter ex reI. Estate of Schwartz v. Equitable Life Assur. Soc. of U.S., Docket No. 07-4361 (JBS), 2011 WL 1325143 (D.N.J. Mar. 31, 2011) ................................... 8 Kent Motor Cars, Inc. v. Reynolds & Reynolds Co., 207 N.J. 428, 457 (2011) .......................... 34 Matter of Health Care Admin. Bd., 83 N.J. 67,415 A.2d 1147 (1980) ........................................ .18 iii TABLE OF AUTHORITIES (CONTINUED) McGarvey v. Penske Auto Group, Inc., 486 Fed.Appx. 276 (3d Cir. 2012) ................................ .21 McGarvey v. Penske Auto. Group, Inc., Docket No. 08-5610,2011 WL 1325210 (D.N.J. Mar. 31, 2011) .................................... 20, 21 McGovern v. Rutgers, 211 N.J. 94,47 A.3d 724 (2012) ................................................................. 8 Milgram v. Comfort Direct, Inc., Docket No. A-0360-07T2, 2008 WL 4702810 (App. Div. Oct. 28, 2008) .............................. 22 New Jersey Freedom Organization v. City of New Brunswick, 7 F.Supp.2d 499 (D.N.J. 1997) ................................................................................................ 19 Okolita v. BBK Group., Inc., Docket No. A-4672-12T4, 2014 WL 4997381 (App. Div. Oct. 8,2014) ............................... .35 Palmucci v. Brunswick Corp., 311 N.J. Super. 607, 710 A.2d 1045 (App. Div. 1998) ......... 28, 29 Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 563 A.2d 31 (1989) ............ 7 Robert Wood Johnson Univ. Hosp. at Hamilton, Inc. v. SMX Capital, Inc., No. 12-CV- 7049 JAP, 2013 WL 4510005 (D.N.J. Aug. 26, 2013), appeal dismissed (Jan. 6,2014) ....... .26 San Filippo v. Bongiovanni, 961 F.2d 1125 (3d Cir. 1992) .......................................................... 18 Sauro v. L.A. Fitness Int'l, LLC, No. CIV. 12-3682 JBS/AMD, 2013 WL 978807 (D.N.J. Feb. 13, 2013) .................................................................................................. 26, 27, 30 Scheidt v. DRS Technologies, Inc., 424 N.J. Super. 188,36 A.3d ........................................... 8, 36 Scola v. Bd. of Ed. of Town of Montclair, 77 N.J.L. 73 (1908) ................................................... .15 Shelton v. Restaurant.com, Docket No. 10-824 (JAP)(DEA), 2014 WL 3396505 (D.N.J. July 10, 2014) .............................................................................................................. 22 Soto v. Scaringelli, 189 N.J. 558, 917 A.2d 734 (2007) ............................................................... .14 State v. Cameron, 100 N.J. 586,498 A.2d 1217 (1985) ............................................................... .18 State v. Hudson Furniture Co., 165 N.J. Super. 516 (App. Div. 1979) ........................................ .19 Watkins v. DineEquity, Inc., Docket No. CIV. 11-7182 JBS/AMD, 2012 WL 3776350 (D.N.J. Aug. 29, 2012), affd, Docket No. 13-1359,2014 WL 5786603 (3d Cir. Nov. 7, 2014) .............................................................................................................. 24 Williams v. Wilson, Docket No. A-5735-12T3, 2014 WL 2533820 (App. Div. June 6, 2014) .............................. .35 IV TABLE
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