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Attorneys give motion to dismiss Restaurant.com suit one last defense 25-Jan-14 – Attorneys threw one last punch at opposition to their motion to dismiss the federal lawsuit against Restaurant.com. Two New Jersey residents, Larissa Shelton and Gregory Bohus, are suing on behalf of themselves and others over gift certificates they purchased from the Illinois company that had expiration dates and a disclaimer in violation of New Jersey law. A U.S. Court of Appeals ruled last November that while that is not consumer fraud, the case could continue in U.S. District Court because the certificates violated New Jersey’s “Truth-in-Consumer Contract, Warranty and Notice Act.” In a reply brief filed on Tuesday, Michael McDonald, Damian Santomauro, and Caroline Oks reiterated that the plaintiffs did not actually lose any money. They were still able to use their gift certificates, the attorneys claim. The dispute is over “alleged technical violations” of the consumer contract act. “This class action is boldly premised upon the theory that [Shelton and Bohus] became entitled to damages at the moment they purchased online gift certificates from Restaurant.com,” writes the defense team. A big question for the court to decide is whether decisions by the New Jersey Supreme Court and the appellate court can be applied retroactively or if they are intended for new cases only. The difference could be $1 million in fines against RDC, which is owned by two River North residents.
The attorneys also point out that commercial ventures like RDC were enabled by technology that developed after the New Jersey legislature adopted the consumer contract law. “We do not know whether the legislature specifically envisioned certificates or coupons like the ones Restaurant.com offers and meant to impose a $100 penalty per occurrence in such cases.” Dr. Kenneth Chessick, a lawyer in Chicago, and his wife, Ellen Chessick, who is president of Marina Towers Condominium Association, own RDC.
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