November 26, 2013 – An attorney representing Restaurant.com says he will move for dismissal of the complaint in U.S. District Court against the Illinois company owned by two River North residents.

Michael R. McDonald has requested he be allowed to make oral arguments in early January but filed documents on Monday in support of his motion.

The dispute is over restaurant gift certificates RDC sells nationwide on its website. From 2006 to 2010, the certificates had expiration dates in possible violation of law in at least two states. In 2010, two residents of New Jersey, Larissa Shelton and Gregory Bohus, filed a federal lawsuit that was dismissed – a decision that was reversed three years later by the New Jersey Supreme Court. The higher court ruled the gift certificates were subject to laws originally intended for tangible property.

On November 4, 2013, a U.S. Court of Appeals clarified the ruling, saying that while no consumer fraud had occurred, the case could continue because the certificates violated New Jersey’s “Truth-in-Consumer Contract, Warranty and Notice Act.”

McDonald (left) argues that the decision “establishes a new rule of law” and should only be applied to future cases. “Applying the New Jersey Supreme Court’s novel decision retroactively,” he says, “would constitute a miscarriage of justice.”

Tens of thousands of gift certificates were sold by RDC from 2006 to 2010. A penalty of just $100 per occurrence could exceed $1 million.

“Restaurant.com could potentially be required to pay unprecedented sums for reasonably believing that the [state law] had no application to its Internet-based transactions involving intangible property.”

On Tuesday, Bruce Greenberg, an attorney for Shelton and Bohus, called the motion “utterly without merit” and said he “will vigorously oppose it.”

RDC is owned by Dr. Kenneth Chessick, a lawyer in Chicago, and his wife, Ellen Chessick, who is president of Marina Towers Condominium Association.

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