January 9, 2014 – An attorney for two New Jersey residents suing an Illinois company owned by two River North residents says the company’s motion to dismiss the federal lawsuit against it is an attempt to “end-run” rulings of a U.S. Court of Appeals and the New Jersey Supreme Court.

Henry P. Wolfe filed a brief on Tuesday urging the U.S. District Court in New Jersey not to dismiss his lawsuit against Restaurant.com, which has admitted selling gift certificates with one-year expiration dates and a disclaimer in violation of New Jersey law.

The lawsuit was dismissed in 2010 but brought back to life last year by novel court rulings that have changed the way gift certificates are sold throughout the nation.

An attorney for RDC is arguing that the rulings should only apply to future cases. Applying them retroactively, says Michael R. McDonald, “would constitute a miscarriage of justice.”

“Now that Restaurant.com has been caught and may be held liable under the New Jersey Truth-in-Consumer Contract, Warranty, and Notice Act,” writes Wolfe (left), “Restaurant.com protests that holding it accountable would be ‘unfair.’”

By RDC’s reasoning, argues Wolfe, “any application of an existing law to new circumstances is automatically a ‘new case rule’ and would create a ‘one free bite’ defense with respect to virtually any law. There is simply no basis for such a remarkable proposition.”

The unanimous New Jersey Supreme Court ruling, upheld by a U.S. Court of Appeals, says Wolfe, is a “thorough and carefully reasoned opinion” supporting the suit. Dismissing it now, he says, would be “a de-facto reversal of the rulings.”

(Right) Dr. Kenneth Chessick, a lawyer in Chicago, and his wife, Ellen Chessick, who is president of Marina Towers Condominium Association, own RDC. Photo: NIU Today.

Suing are Larissa Shelton, who purchased ten $25 gift certificates for various New Jersey restaurants, and Gregory Bohus, who bought one $10 gift certificate. Tens of thousands of gift certificates were sold by RDC in potential violation of law. A penalty of just $100 per occurrence could exceed $1 million.

A hearing is scheduled in federal court on January 21.

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