Opinion
DOCKET NO. A-5724-13T2
02-10-2016
BLS ELDERCARE PUBLISHING, L.L.C., BLS ELDERCARE FINANCIAL SOLUTIONS, and BARBARA L. STEINBERG, Plaintiffs-Appellants, v. NEW JERSEY DIVISION OF CONSUMER AFFAIRS, Defendant-Respondent.
Anthony M. Rainone argued the cause for appellants (Brach Eichler, L.L.C., attorneys; Mr. Rainone, of counsel and on the briefs; Danielle Y. Alvarez and Lindsay P. Cambron, on the briefs). David M. Reap, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, of counsel; Mr. Reap, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Higbee. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6124-14. Anthony M. Rainone argued the cause for appellants (Brach Eichler, L.L.C., attorneys; Mr. Rainone, of counsel and on the briefs; Danielle Y. Alvarez and Lindsay P. Cambron, on the briefs). David M. Reap, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, of counsel; Mr. Reap, on the brief). PER CURIAM
Plaintiffs appeal from a July 31, 2014 order denying their motion to quash an administrative subpoena and dismissing their complaint without prejudice. We now dismiss the appeal as moot because plaintiffs have since fully complied with the subpoena by producing responsive documentation.
The New Jersey Division of Consumer Affairs (the Division) initiated an investigation into whether plaintiffs violated the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, and other statutes and regulations. The Division served a subpoena on plaintiffs. In response, plaintiffs filed a motion to quash. The judge entered the order under review and rendered a written decision.
Plaintiffs filed a motion to stay, arguing that "[i]f [p]laintiffs are forced to comply with the [s]ubpoena while their appeal is pending, the subject matter of the appeal will be moot." (Emphasis added). The judge denied the motion.
Plaintiffs then filed an application seeking permission to file a motion for a stay on short notice. We granted that application, the parties filed their written submissions, and we denied the stay. In our order denying the stay, we indicated that plaintiffs failed to demonstrate a reasonable probability of success on the merits.
Plaintiffs filed an application with the Supreme Court seeking a stay on an emergent basis. Plaintiffs' counsel argued in the Supreme Court Intake Form that "[f]ailure to grant a stay, and thereby requiring [p]laintiffs-[a]ppellants to comply with the subpoena and produce documents, will moot the subject of the appeal." (Emphasis added). The Court denied plaintiffs' application.
On appeal, plaintiffs argue: (1) the appeal is not moot even though they have complied with the subpoena; (2) the judge made insufficient findings of fact and conclusions of law; and (3) the CFA does not apply to them, or, in the alternative, that the subpoena should be quashed as it is unconstitutional.
The Division has broad powers to investigate potential CFA claims pursuant to N.J.S.A. 56:8-3, which provides:
When it shall appear to the Attorney General that a person has engaged in, is engaging in, or is about to engage in any practice declared to be unlawful by this act, or when he believes it to be in the public interest that an investigation should be made to ascertain whether a person in fact has engaged in, is engaging in or is about to engage in, any such practice, he may:
(a) Require such person to file on such forms as are prescribed a statement or report in writing under oath or otherwise, as to all the facts and circumstances concerning the sale or advertisement of merchandise by such person, and such other data
and information as he may deem necessary;
(b) Examine under oath any person in connection with the sale or advertisement of any merchandise;
(c) Examine any merchandise or sample thereof, record, book, document, account or paper as he may deem necessary; and
(d) Pursuant to an order of the Superior Court impound any record, book, document, account, paper, or sample of merchandise that is produced in accordance with this act, and retain the same in his possession until the completion of all proceedings in connection with which the same are produced.
Our Supreme Court has acknowledged that the Attorney General has the power to "investigate consumer-fraud complaints." Cox v. Sears Roebuck & Co., 138 N.J. 2, 14-15 (1994).
[(Emphasis added).]
Here, the Attorney General is simply investigating a potential CFA claim. Plaintiffs' defenses to any claims flowing from the Attorney General's investigation are preserved for the future. We acknowledge plaintiffs' concern that the judge's written findings and conclusions may impact any future CFA claims; however, we conclude that such findings and conclusions do not constitute law of the case. Consequently, plaintiffs are free to raise all substantive defenses to any future CFA claims emanating from the subpoena in question. As a result, we need not reach the remaining contentions raised by plaintiffs.
Appeal dismissed as moot. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION