Opposition Brief — RENT-A-CENTER, INC. v. Perez, 127 S. Ct. 984 (2007) (No. 06-657)

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No. 06-657

In the

Supreme Court of the Bnited States

RENT-A-CENTER, INC.,

Petitioner,

v.

HILDA PEREZ, ON BEHALF OF HERSELF AND ALL

OTHERS SIMILARLY SITUATED,

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of New Jersey

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

MARK R. CUKER SETH R. LESSER

MICHAEL J. QUIRK Counsel of Record

WILLIAMS CUKER BEREZOFSKY LOCKS LAW FIRM

210 LAKE DRIVE EAST, SUITE 101 457 HADDONFIELD ROAD

CHERRY HILL, NJ 08002 CHERRY HILL, NJ 08002

(856) 667-0500 (856) 663-8200

WILLIAM A. RIBACK, ESQ.

527 COOPER STREET, 2"° FLOOR

CAMDEN, NJ 08102

(856) 342-9700

Counsel for Respondents

PRESET EI TEE OCDE OEE LEE NEIL LID ELSA DELLE ELE L EL! LEE LSC

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QUESTIONS PRESENTED

(1) Whether the Court has jurisdiction under 28 U.S.C. §

1257(a) to review the New Jersey Supreme Court’s

interlocutory decision below vacating a judgment for Petitioner

Rent-A-Center on purely _state-law grounds, ordering

reinstatement of Respondent Perez’s state-law claims, and

remanding for further proceedings on the merits in the state trial

court, where Rent-A-Center has moved for summary judgment

on state-law grounds.

(2) Whether Rent-A-Center preserved its federal due

process argument raised here when the state courts below never

addressed the argument and when Rent-A-Center made no

argument based on federal law in its state-court briefing prior

to its petition for rehearing in the New Jersey Supreme Court.

(3) | Whether the decision below violated Rent-A-Center’s

right to fair warning under the Fourteenth Amendment’s Due

Process Clause when it construed state consumer protection

statutes exactly as every lower state court did in previous cases,

including several where Rent-A-Center was a losing party and

chose to settle rather than appeal.

TABLE OF CONTENTS

Page(s)

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PPE PURI EPTUPMAUEEED owe ccsccscscccesececess iv

Cee eM ets baesscesceeversececces l

CONSTITUTIONAL AND STATUTORY

8 0 ]

aie a eda cevesevsteveuvevese 3

RPP EERTE GP TPIS CADE 2c. ccc cece ccc s ee eeees 6

1. The Underlying Causes of Action ............. 6

2. The Prior State of Applicable New Jersey Law,

Including Decisions Against Rent-A-Center ..... 6

3. The New Jersey Supreme Court’s Decision .... 10

REASONS FOR DENYING THE PETITION ......... 14

I. The Court Lacks Jurisdiction to Review this

Interlocutory State-Court Decision. ............. 14

A. Because Judgment is Not Final, This Court Lacks

Jurisdiction Under 28 U.S.C. § 1257. .........5.. 14

B. The Cox Broadcasting Exceptions to Section 1257's

ii

Final Judgment Requirement Do Not Apply. ...... 15

I]. Rent-A-Center Waived Its Federal-Law Argument. . 17

A. This Court Will Not Address Federal Claims Not

Properly Raised in the State Courts. ............. 17

B. Rent-A-Center’s Newfound Due Process Argument

SPS bs cckesodebvecesaceusecesi eee 18

III. There is No Split of Authority on the Federal Due

Process Question. ...... bins sedabewenereeys 21

A. The Decision Below is Consistent With This

+ eee oo issu ch aoe eaes 22

1. This Court’s Due Process Decisions Do Not

Compel a Different Result. .......csccceveses 22

2. The Decision Below Does Not Conflict With

This Court’s Dicta in Landgraf............... 24

B. The Decision Below Does Not Conflict With Any

Other Courts’ Decisions. ... 2... cc ccwccccccsess 25

CAVGEY 4 oh cane wardens Goekc us hecree ceeat 27

lil

Table of Authorities

Cases

Adams v. Robertson, 520 U.S. 83 (1997) ........... 17, 20

Board of Directors of Rotary Int'l v. Rotary Club

of Demrte, 461 US. S37 (19ST) ic cc cc ccccvcees 17-18

Bouie v. City of Columbia, 378 U.S. 347 (1964) .. 22, 23, 24

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

(oR e rene pein Fea app ary nm er cnr ny 15, 16

Fischer v. Canario, 670 A.2d 516 (N.J. 1996) ......... 19

Girard Acceptance Corp. v. Wallace, 388 A.2d 582

(NS. 1976) ..... AE IO Ea ene aoe TORE eT 10

Green v. Continental Rentals, 678 A.2d 759

(NJ. Super. Ct., Ci. Div. F99G) . 0. ccc ccc eves 8,9, 25

Harper v. Virginia Dep't of Taxation, 509 U.S. 86

DRED ilne'o4 05k ban dew eRe ee ee ee ets eos 25, 27

Helton v. Fauver, 930 F.2d 1040 (3d Cir. 1991) ..... 25, 26

In re Suspension of DeMarco, 414 A.2d 1339

Eee SUE Ak ive by week ke Pa eas ko ce eas 19

Jefferson v. City of Tarrant, Ala., 522 U.S. 75

SEES 6b nu cdo ou's Wo we ee Ree ee eee 14

1V

Landgraf v. USI Film Products, 511 U.S. 244

NN ore oe eae ae 24, 25

Marbury v. Madison, 5 U.S. 137 (1803) .............. 27

Marks v. United States, 430 U.S. 188 (1977) .......... 24

Miller v. Colortyme, Inc., 518 N.W.2d 544

(Minn. 1994)...... LPERU RENO DEMS ee TURES 11

Moore v. Wyrick, 766 F.2d 1253 (8" Cir. 1985) ........ 26

People v. Caudillo, 580 P.2d 274 (Cal. 1978) .......... 26

People v. Martinez, 973 P.2d 512 (Cal. 1999) .......... 26

Radio Station WOW, Inc. v. Johnson, 326 U.S. 120

SE oo ep dk oh ig bk Es Rk 15, 18

Reynoldsville Casket Co. v. Hyde, 514 U.S. 749

CEE 5 veh PREP SH EAN RTT ONS E L E 24-5

Robinson v. Thorn Americas, Inc., No. CAM-L-

3697-94 (N.J. Super. Ct., Law Div.) ........ 8-9, 10, 25

Rogers v. Tennessee, 532 U.S. 451 (2001) ......... 23, 24

Saul v. Midlantic National Bank/South, 572 A.2d 650

(N.J. Super. Ct., App. Div. 1990) ........... 4; eto oe

Singer Co. v. Gardner, 323 A.2d 457 (N.J. 1974) ....... a

Sliger v. R.H. Macy & Co., Inc., 283 A.2d 904

eh ob eo ed pee hab ad abe ek ud dara ee 12,13

South Jersey Catholic School Teachers Org. v.

St. Teresa of the Infant Jesus Church

Elementary School, 696 A.2d 709 (N.J. 1997) ........ 20

State v. Churchdale Leasing, Inc., 577 A.2d 277

SU oan a mh eu es wan kee de heeded eka es 19

State v. Feaster, 877 A.2d 229 (N.J. 2005) ......... 20-21

State v. Livingston, 797 A.2d 153 (N.J. 2002) .......... 19

State v. Majors, 237 S.W. 486 (Mo. 1922) ............ 26

Steffenauer v. Mytelka & Rose, Inc., 210 A.2d 88

ae, eee, Ch, CO Bee, SGP occ ccevecs ces 12,13

United States v. Hoctor, 487 F.2d 883 (9" Cir. 1973) .... 26

United States v. Potts, 528 F.2d 883 (9" Cir. 1975) ..... 26

Webb v. Webb, 451 U.S. 493 (1981) .............. 19, 20

Constitutional Provisions

ee I OT sn a eed ee ee bee eos 20

Eb.2e, Re, BUNGE, DREW. occ acs ecenvecveesea i, 18, 2]

Statutes and Legislative Materials

pS ade 8 - ) Syren ny ary passim

Seats Ks FU AR Ee niet bcwardeveswenes Be toae

Pais ee CUE Tee PLUG E eis vcdecavecauewens 1-2, 6, 22

N.J. STAT. ANN. § 17:16C-41 ................ 2-3, 7, 11

Pl. SC FE PRED oi dice cae aeeseeeenes 6

Vii

RESPONDENT?’S BRIEF IN OPPOSITION

JURISDICTION

The New Jersey Supreme Court issued its decision on

March 15, 2006. The decision reversed a lower court judgment

for Petitioner Rent-A-Center and then remanded the case to the

state trial court “for reinstatement of [Respondent Hilda]

Perez’s complaint and for such further proceedings as are

warranted.” 38a. On remand, Rent-A-Center has moved for

summary judgment on state-law grounds. That motion is

pending. Since there is no final state court judgment or decree

for any party, and the parties are now litigating Perez’s state-

law claims in the state trial court, this Court lacks jurisdiction

under 28 U.S.C. § 1257(a). Moreover, the New Jersey Supreme

Court addressed no federal law question because none was

raised until Rent-A-Center petitioned for rehearing in that court.

The decision below thus does not draw into question any matter

of federal law. Accordingly, the Court lacks jurisdiction under

§ 1257(a) to review this interlocutory state court decision

addressing only matters of state law.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

New Jersey’s Retail Installment Sales Act provides in

relevant part:

“Retail installment contract” means any contract. . .

entered into in this State between a retail seller and a

retail buyer evidencing an agreement to pay the retail

purchase price of goods or services, which are

primarily for personal, family or household purposes,

or any part thereof, in two or more installments over

a period of time. This term includes a security

agreement, chattel mortgage, conditional sales

contract, or any other similar instrument and any

contract for the bailment or leasing of goods by which

the bailee or lessee agrees to pay as compensation a

sum substantially equivalent to or in excess of the

value of the goods, and by which it is agreed that the

bailee or lessee is bound to become, or has the option

of becoming, the owner of such goods upon full

compliance with the terms of such retail installment

contract.

N.J. STAT. ANN. § 17:16C-1(b) (emphasis added to language

omitted from Rent-A-Center’s petition).

A retail seller . . ., under the provisions of this act,

shall have authority to charge, contract for, receive or

collect a time price differential as defined in this act,

on any retail installment contract evidencing the sale

of goods or services in an amount or amounts as

agreed to by the retail seller... andthe buyer...on ~-

all .. . goods and services.

The retail installment contract may provide for an

increase, or may provide for a decrease, or both, in

the time price differential applicable to the contract.

No increase during the entire loan term shall result in

an interest rate of more than 6% per annum over the

rate applicable initially, nor shall the rate be raised

more than 3% per annum during any 12-month

period. The lender shall not be obligated to decrease

the interest rate more than 6% over the term of the

loan, nor more than 3% per annum during any 12-

month period. . . .

N.J. STAT. ANN. § 17:16C-41 (emphasis added to language

omitted from Rent-A-Center’s Petition).

New Jersey’s criminal usury statute provides in relevant

part:

[N]otwithstanding any law of this State which permits

as a maximum interest rate a rate or rates agreed to

by the parties of the transaction, any loan or

forbearance with an interest rate which exceeds 30%

per annum shall not be a rate authorized or permitted

by law...

N.J. STAT. ANN. § 2C:21-19 (emphasis added to language

omitted from Rent-A-Center’s petition).

INTRODUCTION

This case presents an interlocutory decision by a state’s

highest court that construed state statutes and then remanded for

proceedings on the merits of the plaintiff's state-law claims.

The Supreme Court of New Jersey held that Rent-A-Center’s

“rent-to-own” contracts with consumers for the installment

purchase of household goods were covered by New Jersey’s

Retail Installment Sales Act (“RISA”) and its 30% ceiling on

interest. In so ruling, the court entered no judgment for any

party. Nor did it address any federal law question since none

was raised until Rent-A-Center petitioned the court for

“

P

rehearing. Accordingly, this Court should not grant review to

address Rent-A-Center’s belated federal due process claim here

because (1) the Court lacks jurisdiction to review this

interlocutory state court decision; (2) the federal-law claim is

waived; and, (3) in any event, the decision below implicates no

factually supported federal law question.

Rent-A-Center’s claim that the decision below applying

RISA and its incorporation of the state’s usury ceiling to rent-

to-own sales was so unforeseeable as to violate its due process

right to fair notice is wholly unfounded. At the time this case

was filed in 2002:

@ Every New Jersey court that faced claims like Perez’s

here had ruled, as the New Jersey Supreme Court did

below, that rent-to-own contracts are installment sales

covered by RISA and/or that such sales are covered by

the state’s criminal usury ceiling;

two New Jersey courts had entered summary judgment

against Rent-A-Center itself or companies it owned on

one or both of these issues, whereupon Rent-A-Center

settled those cases instead of appealing the adverse

judgments it received; and

no New Jersey court had ever held that rent-to-own

contracts were exempt from RISA, or that RISA did

not cap interest rates, despite Rent-A-Center’s

contention that this was the settled law.

Viewed against this backdrop, Rent-A-Center’s claim of a due

process violation for lack of fair warning shows an ostrich-like

pretense. Decades of New Jersey law and Rent-A-Center’s own

litigation history belie the company’s assertion that the decision

below enacted a “sea change” by “announcing new and

unforeseeable state-law rules.” Pet. at i.

To the contrary, Rent-A-Center made a conscious business

decision to continue charging New Jersey customers exorbitant

interest rates after having multiple state courts hold these

charges unlawful, and afier paying significant sums to settle

those cases. In light of this state-law backdrop, Rent-A-

Center’s claim of a lack of fair warning creating a due process

violation is unfounded and implausible at best.

If applied to these facts, Rent-A-Center’s due process

theory would revolutionize this Court’s role in supervising

State-court adjudication of state-law matters. The decision

below confirmed New Jersey’s prior statutory and case-law.

Indeed, the only decisions that were reversed were those of the

lower courts in this case. A holding that this decision violated

Rent-A-Center’s due process right to fair notice under these

circumstances would create a federal constitutional question in

every case where a state’s highest court decides a question of

first impression, no matter how consistent that decision is with

statutory and prior lower-court case law. There is no support in

this Court’s or any other court’s precedent for such a sweeping

and seemingly boundless expansion of due process. Thus, there

also is no split of authority on the question presented that would

merit this Court’s review.

STATEMENT OF THE CASE

1. The Underlying Causes of Action

In 2002, Respondent Hilda Perez filed this case in the

Superior Court of New Jersey, Camden County, after Rent-A-

Center had initiated a collection action against her. Pet. App.

8a. Perez alleged that Rent-A-Center’s “rent-to-own” contracts

for installment purchases of household goods violated New

Jersey’s Retail Installment Sales Act (“RISA”), N.J. STAT.

ANN. §§ 17:16C-1, ef seg., and Consumer Fraud Act (“CFA”),

N.J. STAT. ANN. §§ 56:8-1, ef seg., by charging her interest in

excess of the state’s 30% usury ceiling that RISA incorporates.

Pet. App. 8a. She based her claims on the fact that Rent-A-

Center was charging her approximately double the cash price to

purchase these goods over time, representing annual interest

rates of 80% and higher. /d. 5a, 8a. Perez sought relief on

behalf of herself and a class of New Jersey consumers who

entered into these transactions with Rent-A-Center on or after

April 24, 1999. The class dated back to April 24, 1999 because,

as discussed below, that is when Rent-A-Center had finalized

a $60 million settlement of prior cases in which New Jersey

consumers asserted claims identical to those here, and Rent-A-

Center twice had summary judgment entered against it.

2. The Prior State of Applicable New Jersey Law,

Including Decisions Against Rent-A-Center

When Perez initiated this action in 2002, every New Jersey

court that had addressed either or both of the statutory claims

she made against Rent-A-Center agreed with her position that

(i) New Jersey’s RISA applies to rent-to-own contracts; and (ii)

RISA incorporates the state criminal usury statute’s 30% ceiling

on interest charges.

First, in Saul v. Midlantic National Bank/South, 572 A.2d

650 (N.J. Super. Ct. App. Div. 1990), New Jersey’s appellate

division held that the 30% criminal usury ceiling applies to

charges in installment purchase contracts. /d. at 652 n.1, The

court reached this conclusion despite also finding that state’s

lower civil usury limit did not apply to retail installment sales

under RISA (which covers such sales for up to $10,000) or

otherwise. /d. at 654-56.'

The basis for Saul’s distinction between these two usury

rules is found on the face of the applicable statutes. For retail

installment sales, RISA allows parties to contract “in an amount

or amounts as agreed to by the retail seller. . . and the buyer.”

N.J. STAT. ANN. § 17:16C-41. This preempts any application

of the civil usury statute where RISA applies. But New Jersey’s

criminal usury statuté+s-no# preempted because it contains a

savings clause stating that its higher ceiling applies

“notwithstanding any law of this State which permits as a

maximum interest rate a rate or rates agreed to by the parties

of the transaction.” N.J. STAT. ANN. § 2C:21-19(a). These

' Rent-A-Center tries to dismiss the appellate court’s

statement of law as a mere “suggestion in dicta,” (Pet. at 13

n.6), but provides no authority that recognizes a federal due

process right to rely on interpretations of state law that are

directly contrary to a state appellate court’s dicta. At the very

least, this “suggestion in dicta” put Rent-A-Center on notice

that its preferred interpretation of state law was not a sure thing.

7

preemption and savings provisions were simultaneously enacted

into the statutes in 1981. See Pet. App. 28a-32a.

Second, following the 1981 amendments to these statutes,

in Green v. Continental Rentals, 678 A.2d 759 (N.J. Super. Ct.,

Law Div. 1994), the court held both that RISA applies

specifically to rent-to-own contracts and that it incorporates the

state’s 30% criminal usury ceiling. Green held that RISA was

enacted as remedial legislation meant to “protect consumers

from over-reaching by others” and “protect them from over-

extending their resources.” /d. at 764. As such, RISA required

the court “to look beyond form to identify the substance of the

transaction,” so that the customer’s ability to acquire ownership

meant that the transaction met RISA’s definition of an

installment sale. /d. Having found that these rent-to-own

transactions are in fact installment sales, the court held that the

difference between an item’s cash and installment price was

interest that was governed, as in Saul, by- the state’s 30% usury

ceiling on interest charges. /d. at 766.’

Third, following Green, similar lawsuits were filed against

several rent-to-own companies in New Jersey alleging, among

other things, that these transactions were subject to RISA and

violated the 30% interest-rate cap. In Robinson v. Thorn

? Rent-A-Center tries to dismiss Green in footnotes as

having “swam against the tide” of New Jersey law. (Pet. 10

n.4). Even if this were true (which it is not), that is no answer

to whether the existence of this published opinion deciding both

of these issues against a rent-to-own company gave Rent-A-

Center yet further notice that its preferred interpretation of these

laws could be wrong.

Americas, Inc., No. CAM-L-3697-94 (N.J. Super. Ct., Law

Div.), the court followed Green in granting summary judgment

for consumers and against Rent-A-Center (which owned the

defendant company) on RISA‘s application. See Pet. App. 87a-

91a. Robinson held, like Green, tixat rent-to-own transactions

are installment sales covered by RISA, id., and entered

judgment against Rent-A-Center for RISA violations that

resulted in over $100 million in damages. See Rent-A-Center,

Inc. Form 10-K405/A (April 28, 1999) at 13 (available at

http://edgar-online.com/1999/04/28/15/0000950134-99-

003298/Section19.asp). Rather than obtaining appellate review

of this judgment against it, Rent-A-Center chose to settle these

class claims for $48.5 million. Jd.

At the same time it settled Robinson, Rent-A-Center

settled, for an additional $11.5 million, two other New Jersey

cases where consumers raised identical claims against rent-to-

own companies it acquired. /d. at 15-16. In one of these cases,

Gallagher v. Crown Leasing Corp. (cited in Robinson, Pet.

App. at 86a, 88a), the New Jersey court held, as in Green, that

the rent-to-own transactions violated RISA and the applicable

usury cap. Rent-A-Center Form 10-K at 15. Gallagher also

granted the plaintiffs summary judgment as to liability on their

claim that rent-to-own transactions were subject to the 30%

usury limitation. /d. Rent-A-Center chose not to appeal these

adverse judgments. Instead, it made a business decision to

settle all of these cases at a cost of $60 million and to continue

making these high-interest sales in New Jersey despite the state

laws that were consistently being held to prohibit them?

> Rent-A-Center’s April 1999 Form 10-K disclosed in

all capital letters, to the company’s investors that pending

9

In sum, at the time Perez filed this action, multiple New

Jersey courts had held that rent-to-own transactions (including

those involving Rent-A-Center) are retail installment sales

governed by RISA and its usury cap on interest charges.

3. The New Jersey Supreme Court’s Decision

The New Jersey Supreme Court’s decision below echoed

these earlier rulings. In holding that RISA applies to rent-to-

own transactions, the court focused on the Act’s text, history,

and underlying purposes. The court found that RISA was

enacted in 1960 as “‘part of a package of laws designed to

protect consumers from overreaching by others, to protect

consumers from overextending their own resources and also to

promote the availability of financing to purchase various goods

and services.” Pet. App. 18a (quoting Girard Acceptance Corp.

v. Wallace, 388 A.2d 582 (N.J. 1978)).

As to RISA’s coverage, the court highlighted the Act’s

broad definition of “Retail installment contract” to “include[]

a security agreement, chattel mortgage. conditional sales

contract, or other similar instrument and any contract for the

bailment or leasing of goods,” where the bailee/lessee “is bound

to become, or has the option of becoming, the owner of such

goods.” Pet. App. 19a-22a (emphasis added). The court found

lawsuits in New Jersey and elsewhere, including Robinson and

Gallagher, “COULD HAVE A MATERIAL ADVERSE

EFFECT ON OUR FINANCIAL CONDITION AND OUR

BUSINESS OPERATIONS.” /d. at 10. Thus, Rent-A-Center

must have had notice of possible liability under RISA for usury

violations since it disclosed that very risk to its investors.

10

99 66

that the phrases “conditional sales,” “similar instruments,” and

“has the option of becoming the owner” were fully descriptive

of Rent-A-Center’s transactions. /d. 21a-22a, 24a-26a.* Citing

multiple prior New Jersey decisions, the court also found that

Rent-A-Center’s contracts were “similar in form to transactions

that had been judicially recognized as conditional sales” prior

to RISA’s enactment, and that RISA encompassed through its

statutory definition both a “conditional sale” and “any other

similar instrument.” Jd. 25a, 26a.

The court further held that any uncertainty should be

resolved to find coverage because of the Act’s broad remedial

purposes. /d. 22a-24a. In thus rejecting Rent-A-Center’s

primary argument that a customer’s right to cancel brought

these transactions outside the Act’s coverage, the court noted

that the Minnesota Supreme Court rejected this very argument

with regard to that state’s retail installment sales statute. Jd.

26a-27a (quoting Miller v. Colortyme, Inc., 518 N.W.2d 544,

549 (Minn. 1994) (case involving Rent-A-Center subsidiary)).

In finding the state’s 30% interest ceiling in its criminal

usury statute applicable under RISA, the New Jersey Supreme

Court again focused on the plain language and history of these

statutes. The court found that its “point of departure is the

language of the Act,” which uses the terms “interest” and “time

price differential” interchangeably, as did the court’s own

precedent. Pet. App. 28a (citing N.J. STA’. ANN. § 17:16C-41;

Singer Co. v. Gardner, 323 A.2d 457, 461 (N.J. 1974)). The

* Despite the court’s reliance on this exact statutory

language, Rent-A-Center chose to omit much of it from its

petition to this Court. Compare Pet. at 2, with Opp. at 2.

1] .

court noted that RISA was originally enacted in 1960 with a

10% limitation on the time price differential that could be

charged in retail installment sales. Pet. App. 28a. The court

also emphasized that when the New Jersey legislature repealed

this limitation in 1981, it did not do so in a vacuum. /d. 29a.

Rather, the legislature simultaneously (1) amended RISA to

replace the 10% time-price cap with the current provision

allowing interest “in an amount or amounts as agreed to by the

retail seller . . . and the buyer;” and (2) amended the state’s

criminal usury provision to make it applicable “notwithstanding

any law of this State which permits as a maximum interest rate

a rate or rates agreed to by the parties of the transaction.” /d.

29a-30a. Noting that RISA is one of several laws amended on

the same day to allow interest rates agreed to by parties, the

court held it is subject to the 30% usury ceiling. /d. 31a-32a.°

Finally, the New Jersey Supreme Court rejected Rent-A-

Center’s argument that prior New Jersey cases compelled it to

differentiate between time price differentials under RISA and

interest rates under the criminal usury statute. The court found

the pre-1981 cases of Sliger v. R.H. Macy & Co., Inc.,283 A.2d

904 (N.J. 1971), and Steffenauer v. Mytelka & Rose, Inc., 210

A.2d 88 (N.J. Super. Ct., Ch. Div. 1965), inapplicable because

they addressed the state’s civil usury statute and its application

to non-RISA contracts. Pet. App. 34a; see also Sliger, 283

> The New Jersey Supreme Court’s careful analysis of

RISA’s and the usury statute’s text and amendment history

should put to rest Rent-A-Center’s repeated and increasingly

shrill accusations that the court “announced two new rules of

law,” engaged in “outlandish judicial manipulation,” and

“radically changed the law of New Jersey.” Pet. at 3, 4, 14.

12

A.2d at 906 (finding civil usury statute inapplicable to

revolving credit account, which then fell outside RISA);

Steffenauer, 210 A.2d at 94 (finding civil usury statute

inapplicable to non-RISA commercial sale).° The court thus

did not overrule these cases, but found them inapposite. The

court also noted that Saul v. Midlantic Nat'l Bank, the only case

Rent-A-Center cited that post-dates the 1981 statutory

amendments at issue here, “actually holds that the criminal

usury statute is applicable to retail installment sales.” Pet. App.

34a (citing Saul, 572 A.2d at 652 n.1).

Having determined, purely as a matter of state law, that the

state’s RISA, Consumer Fraud Act, and 30% usury ceiling

apply to Remt-A-Center’s rent-to-own contracts, the New Jersey

Supreme Court vacated the Appellate Division’s judgment for

Rent-A-Center and remanded the case to the state trial court

“for reinstatement of Perez’s complaint and for such further

proceedings as are warranted.” /d. 38a.’

° Moreover, contrary to Rent-A-Center’s representation

that these cases represented a “tide” (Pet. at 10 n.4) of case law

on the application of New Jersey’s time-price doctrine,

Steffenauer itself recognized both that this doctrine could be

abrogated by the legislature and that this is precisely what the

legislature did in enacting RISA. 210 A.2d at 93-94.

” The court subsequently denied Rent-A-Center’s

motion for reconsideration. In granting the parties’ motions for

clarification, the court held that its judgment applied to Perez

and anyone who is part of a certified plaintiff class on remand,

but is otherwise prospective. Pet. App. 42a, 43a.

13

REASONS FOR DENYING THE PETITION

I. The Court Lacks Jurisdiction to Review this

Interlocutory State-Court Decision.

A. Because Judgment is Not Final, This Court Lacks

Jurisdiction Under 28 U.S.C. § 1257.

The Court lacks jurisdiction over Rent-a-Center’s petition.

This Court has jurisdiction to review “[flinal judgments or

decrees rendered by the highest court of a State in which a

decision could be had...” 28 U.S.C. § 1257(a). The decision

below is not a final judgment or decree. The New Jersey

Supreme Court reversed a grant of judgment for Rent-A-Center

and remanded the case “for reinstatement of Perez’s complaint

and for such further proceedings as are warranted.” Pet. App.

38a. Rent-A-Center now has moved the state trial court for

summary judgment against Perez on state-law grounds, arguing

that the New Jersey Supreme Court’s decision “merely

reinstated Plaintiff's complaint and left open on remand any

and all defenses to tiability that RAC may have.” Rent-A-

Center Memorandum to N.J. Superior Court, Camden County,

dated Sept. 22, 2006, at 3. Perez has moved for certification of

a plaintiff class. Both contested motions are pending in the

State trial court, and would be subject to later appeal. Since the

decision below reinstating Perez’s claims is interlocutory, this

Court does not have jurisdiction to review it.

Section 1257(a) establishes a “firm final judgment rule.”

Jefferson v. City of Tarrant, Ala., 522 U.S. 75, 81 (1997). This

means that a state court’s decision must be “final as an effective

determination of the litigation and not merely of interlocutory

14

or intermediate steps therein.” /d. Section 1257's requirement

of finality “‘is not one of those technicalities to be easily

scorned. It is an important factor in the smooth working of our

federal system.’” Jd. (quoting Radio Station WOW, Inc. v.

Johnson, 326 U.S. 120, 124 (1945)). The New Jersey Supreme

Court’s decision imposed no liability on Rent-A-Center (and

thus deprived it ofno property interest). Indeed, Rent-A-Center

is now arguing to the state trial court that it is entitled to

summary judgment. The decision below is thus interlocutory

and non-appealable under § 1257(a).

B. The Cox Broadcasting Exceptions to Section 1257's

Final Judgment Requirement Do Not Apply.

In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1974),

the Court recognized four circumstances that permit review

absent a final judgment. The first involves cases where “there

are further proceedings . . . yet to occur in the state courts but

where for one reason or another the federal issue is conclusive

or the outcome of further proceedings preordained.” /d. at 479.

Second are cases in which “the federa! issue, finally decided by

the highest court in the State, will survive and require decision

regardless of the outcome of future state-court proceedings.”

Id. at 480. Third are cases where “the federal claim has been

finally decided, with further proceedings on the merits in the

state courts to come, but in which later review of the federal

issue cannot be had, whatever the ultimate outcome of the

case.” Jd. at 481. The final exception arises where (1) “the

federal issue has been finally decided in the state courts . . . and

where reversal of the state court on the federal issue would be

preclusive of any further litigation on the relevant cause of

action;” and (2) “a refusal immediately to review the state-court

15

decision might seriously erode federal policy.” /d. at 482-83.

None of these circumstances is present here.

The first three Cox Broadcasting exceptions do not apply

because there are still disputed issues concerning liability and

damages before the state trial court on which either party could

prevail, and on which a losing party could appeal. On remand,

Rent-A-Center is arguing that it is entitled to judgment on state-

law grounds because Perez allegedly did not pay interest in

excess of the applicable usury limit. Since the due process

question raised here is not “conclusive” in these state court

proceedings, and their outcome is not “preordained,” id. at 479,

the first Cox exception does not apply. Nor does the second

exception apply since, if Rent-A-Center prevails on its pending

state-law defenses, the federal-law claim would not “survive

and require decision.” /d. at 480. Likewise, the third Cox

exception does not apply because there exists no state-law bar

to a later appeal by either party, as there is in many criminal

cases, id. at 481, in the event of an adverse judgment.

Finally, the fourth Cox exception is inapplicable here for

two reasons. First, a reversal of the state court on Rent-A-

Center’s federal due process claim would not be preclusive of

all further litigation, id. at 482-83, because Perez asserts claims

for injunctive relief that implicate the prospective application

of the decision below, which Rent-A-Center’s due process

claim does not challenge. Second, and more fundamentally,

this is not a case where “a refusal immediately to review the

state-court decision might sertously erode federal policy.” /d.

at 483. Cox applied this exception where a pending damages

judgment involving an unresolved First Amendment question

could deter the present exercise of constitutionally protected

16

speech rights. /d. at 485-86. Here, requiring a final state-court

judgment poses no such threat to any federal policy. Under the

decision below, there is at present no injunction against any

conduct by Rent-A-Center. Nor has any liability been imposed

against Rent-A-Center that would deprive it of property with or

without due process. Moreover, the possibility of a later

damages judgment does not affect any present exercise of

federally-protected rights because Rent-A-Center’s federal-law

argument does not challenge the decision’s prospective

application. Nor could it, since there is no constitutional right

to charge consumers exorbitant interest rates.

In sum, there is no basis in this case to depart from Section

1257’s imposition of a “firm final judgment rule.” The Court

thus lacks jurisdiction, and the petition should be denied.

Il. Rent-A-Center Waived Its Federal-Law Argument.

A. This Court Will Not Address Federal Claims Not

Properly Raised in the State Courts.

In reviewing state court judgments under 28 U.S.C. §

1257, this Court adheres to the general rule that it “will not

consider a petitioner’s federal claim unless it was either

addressed by, or properly presented to, the state court that

rendered the decision” under review. Adams v. Robertson, 520

U.S. 83, 86 (1997). Where a petitioner failed to raise its federal

law claim until its petition for rehearing to the state supreme

court, the claim is waived. As the Court explained in Adams,

“we have generally refused to consider issues raised clearly for

the first time in a petition for rehearing when the state court is

silent on the question.” /d. at 89; see alse Board of Directors

17

of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 550

(1987) (“Appellants did not present the issues squarely to the

state courts until they filed their petition for rehearing with the

Court of Appeal.”); Radio Staton WOW, 326 U.S. at 128

(“Questions first presented to the highest State court on a

petition for rehearing come too late for consideration here. . .”).

Since this is precisely what Rent-A-Center did in-the state court

proceedings below, its belated federal due process argument

comes “too late for consideration here.”

B. Rent-A-Center’s Newfound Due Process Argument

is Waived.

Rent-A-Center first argued that a judgment against it

would violate the Fourteenth Amendment’s Due Process Clause

in its petition for rehearing to the New Jersey Supreme Court.

Prior to that, its only reference to “due process” was a single

sentence in a brief that gave no citation to federal law, and

relied exclusively on state-court authority that itself identified

no federal law. Because Rerit-A-Center did not give the state

courts below the required opportunity to consider its federal due

process argument raised here, the argument is waived.

Rent-A-Center’s federal due process argument was neither

addressed by nor properly presented to the New Jersey courts.

Nowhere in their opinions or orders did these courts address

any due process argument. Where the state’s highest court is

silent, “the aggrieved party bears the burden of .

demonstrating that the state court had ‘a fair opportunity to

address the federal question that is sought to be presented

18

here.’” Jd. at 87 (quoting Webb v. Webb, 451 U.S. 493, 501

(1981)). Rent-A-Center cannot carry this burden.*

Prior to its rehearing petition, Rent-A-Center’s only

mention of “due process” to the New Jersey Supreme Court or

Appellate Division (which address the same briefs) was the

following:

Because it is a criminal statute, any ambiguities in

N.J.S.A. 2C:21-19 must be construed strictly in favor

of those accused of violating the law. State v.

Livingston, [797 A.2d 153, 158 (NJ. 2002)).

Otherwise, due process rights are violated. State v.

Churchdale Leasing, Inc., {557 A.2d 277, 287 (N.J.

1989)].

Pet. App. 93a-94a. Neither Rent-A-Center nor the state court

cases it cited in making this argument anywhere identify the

U.S. Constitution’s Due Process Clause or cases applying it.

See, e.g., Churchdale Leasing, 557 A.2d at 287 (“At the heart

of the rule requiring strict construction of criminal statutes is

the principle of due process. /n re Suspension of DeMarco,

{414 A.2d 1339, 1345 (N.J. 1980)]” (which likewise identifies

no federal law)).

* Rent-A-Center suggests (Pet. at 14) that the New

Jersey Supreme Court implicitly addressed its due process

argument by making the ruling prospective as to other parties.

Under New Jersey law, however, prospective application of a

cuurt’s ruling is a matter of discretion that “is not answered by

any constitutional mandate.” Fischer v. Canario, 670 A.2d

516, 521 (NJ. 1996).

19

Rent-A-Center’s passing invocation of “due process”

without citing any federal law did not preserve the argument

raised here. As the Court found in Adams v. Robertson:

(T]he passing invocations of ‘due process’ . . . fail to

cite the Federal Constitution or any cases relying on

the Fourteenth Amendment, but could have just as

easily referred to the due process guarantee of the

Alabama Constitution, see Ala. Const., § 13 (1901),

and thus they did not meet our minimal requirement

that it must be clear that a federal claim was

presented.

520 U.S. at 89 n.3 (citations omitted) (emphasis in original); see

also Rotary Int'l, 481 U.S. at 550 n.9 (“This casual reference to

a federal case, in the midst of an unrelated a:gument, is

insufficient to inform a state court that it has been presented

with a claim subject to our appellate jurisdiction . . .”); Webb v.

Webb, 451 U.S. 493 (1981) (lower court brief referencing “full

faith and credit” in one sentence without citation “would not

suffice to establish that petitioner’s claim was based on the

Federal Constitution.”).’

” The New Jersey courts impose the same requirement

of substantive argument to preserve an issue. South Jersey

Catholic School Teachers Org. v. St. Teresa of the Infant Jesus

Church Elementary School, 696 A.2d 709, 721 (N.J. 1997)

(“Issues that are raised but are not supported with arguments are

deemed waived.”). Moreover, although the New Jersey

Constitution does not contain an express due process clause,

“the right to due process is implicit in [its] Article L-Paragraph

I,” recognizing “Natural and unalienable rights.” State v.

20

Because Rent-A-Center did not timely present its federal

due process argument for the New Jersey courts to consider, the

argument is waived and the petition should be denied.

Ili. There is No Split of Authority on the Federal Due

Process Question.

Rent-A-Center’s argument (Pet. 16-28) that the decision

below conflicts with decisions by this and other appellate courts

applying the Fourteenth Amendment’s Due Process Clause is

based on the erroneous assertion that the New Jersey Supreme

Court announced “new and unforeseeable rules.” The state of

the law in New Jersey when this case was filed in 2002

demonstrates that this assertion is baseless. As discussed

above, the New Jersey Supreme Court reached its holding that

RISA and the state’s 30% usury ceiling apply to rent-to-own

contracts by construing a 25-year old statutory scheme in light

of its text, legislative history, and underlying remedial purposes.

In doing so, the court overruled no precedent. Instead, it

echoed the holdings of every lower state court case that

previously had addressed these questions. Rent-A-Center itself

was a party in interest-in~several of those cases and,

notwithstanding those rulings, made a conscious business

decision in 1999 to continue making high-interest rent-to-own

_ Sales in New Jersey, including those at issue here. This

backdrop demonstrates why Rent-A-Center’s claim of a lack of

fair warning giving rise to a split of authority on a federal due

process question utterly fails.

Feaster, 877 A.2d 229, 238 n.3 (N.J. 2005).

21

A. The Decision Below is Consistent With This Court’s

Cases.

1. This Court’s Due Process Decisions Do Not

Compel a Different Result.

First, the decision below does not conflict with Bouie v.

City of Columbia, 378 U.S. 347 (1964). Bouie held that a state

court’s construction of a criminal trespass statute in affirming

a conviction violated the defendant’s due process right of fair

warning where this interpretation was “clearly at variance with

the statutory language,” and “has not the slightest support in

prior South Carolina decisions.” /d. at 356. Bouie first found

that the state trespass statute’s prohibition of “[e]ntry on lands

of another after notice prohibiting same,” id. at 349 n.1, was

“admirably narrow and precise.” /d. at 351. But Bouie then

found that the state court’s interpretation of the statute to apply

to the act of remaining on lands after being asked to leave

violated the criminal defendants’ due process right to fair

warning because, in the 95 years since it was enacted, “the

South Carolina cases construing the statute uniformly

emphasized the notice-before-entry requirement, and gave not

the slightest indication that that requirement could be satisfied

by proof of the different act of remaining on the land after being

told to leave.” Jd. at 356-57.

The state of the law in New Jersey prior to the decision

below was diametrically opposite that in Bouie. New Jersey’s

civil consumer protection statute governing retai! installment

sales is worded broadly to apply to “a security agreement,

chattel mortgage, conditional sales contract, or any other

similar instrument,” N.J. STAT. ANN. § 17:16C-1(b) (emphasis

22

added), Rent-A-Center’s omission of this language from its

petition notwithstanding. ‘ This statute’s provision allowing

charges in amounts agreed to by the parties was enacted in

tandem with a provision making the state’s criminal usury

ceiling appiicable “notwithstanding any law of this State which

permits as 2 maximum interest rate a rate or rates agreed to by

the parties of the transaction.” N.J. STAT. ANN. § 2C:21-19.

Moreover, unlike in Bouie, Rent-A-Center had ample

notice that these statutes applied to its rent-to-own contracts

because at least four New Jersey courts previously held that

these are retail installment sales and/or that the criminal usury

ceiling governs such sales. Moreover, as detailed above at 8-9,

Rent-A-Center was a party in interest in several of these cases,

each of which it chose to settle at a considerable cost rather than

appeal. This case thus would only be akin to Bouie if Mr.

Bouie had twice before been charged with trespass for identical

conduct, lost and paid fines to settle both of these cases under

precedent addressing identical conduct, and only then on the

third time around tried to challenge these laws for failing to

give him fair notice.

For the same reasons, the decision below does not conflict

with Rogers v. Tennessee, 532 U.S. 451 (2001). Rogers upheld

a state court’s admittedly retroactive change to a state-law rule

imposing criminal liability, and rejected a strict application of

ex post facto rules to the due process limits on state courts as

“unworkable.” /d. at 461. Instead, Rogers held that Bouie was

limited to cases involving “interpretations of criminal statutes

... that are ‘unexpected and indefensible by reference to the

law which had been expressed prior to the conduct in issue.’”

Id. (quoting Bouie, 378 U.S. at 354). That is not what occurred

23

here. The decision below reflects the plain language of the state

statutes at issue and echoes the nearly-unanimous view of lower

state courts in applying these statutes. Indeed, the only opinions

that were overturned were those of the lower courts in this case.

Rent-A-Center’s invocation of Rogers and Bouie thus misses

the mark far and wide.

Similarly, Marks v. United States, 430 U.S. 188 (1977),

addressed a change to First Amendment precedent that

“undeniably relaxes” the standards limiting criminal obscenity

prosecutions. Marks held that this expansion of criminal

liability could not be applied retroactively given the “special

care” for providing fair warning in the regulation of expression

that implicates the First Amendment. /d. at 195-96. Here, there

was no change in controlling precedent. The New Jersey

Supreme Court distinguished all of the prior state court cases

Rent-A-Center cites here, without overruling any of them.

Moreover, Rent-A-Center’s high-interest sales here do not

implicate any of the First Amendment concerns that warranted

“special care” in Marks. These decisions thus do not conflict.

2. The Decision Below Does Not Conflict With

This Court’s Dicta in Landgraf.

In Landgraf v. USI Film Products, 511 U.S. 244 (1994),

the only case Rent-A-Center cites that involves civil liability,

the Court merely recognized a presumption against retroactivity

in construing ambiguous statutes. /a. at272. At the same time,

Landgraf found that “the constitutional impediments to

retroactive civil legislation are now modest.” /d. (emphasis in

original). This is even more true of state court adjudication.

See, e.g., Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 753

24

(1995) (a party’s claim of reliance, “often present when prior

law is overruled - -is the very sort that this Court {has] found

insufficient to deny retroactive application of a new legal

rule.”); Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 100

(1993) (noting the “freedom state courts may enjoy to limit the

retroactive operation of their own interpretations of state law.”).

In any event, Landgraf cannot possibly conflict with the

decision below because the New Jersey Supreme Court did not

announce any new or unforeseeable rule of law.

The decision below thus does not conflict with any of this

Court’s due process decisions.

B. The Decision Below Does Not Conflict With Any

Other Courts’ Decisions.

The decision below likewise does not conflict with the

lower court cases Rent-A-Center cites. In Helton v. Fauver,

930 F.2d 1040 (3d Cir. 1991), the court on habeas corpus

review addressed a state high court’s ex post facto construction

of a statute that expanded criminal liability for juveniles after

all lower state court cases had rejected this expansion. /d. at

1048. Helton found this “unforeseeable departure from

precedent” to violate due process. J/d.; see also id. at 1047 (“In

short, the language of the statute, together with the line of cases

interpreting it in the New Jersey state courts, could not have put

Helton on notice of, or made reasonably foreseeable, the shift

in direction and the change in the law effected by the New

Jersey Supreme Court.”’). Here, in stark contrast, the decision

below is consistent with the repeated decisions of the lower

New Jersey courts in the Saul, Green, Robinson, and Gallagher

cases discussed herein. In light of these cases, the decision

25

below can hardly be called “unforeseeable,” and thus does not

conflict with Helton.

The remaining cases Rent-A-Center cites all involve

explicit reversals of precedent that expand the scope of criminal

liability. See Moore v. Wyrick, 766 F.2d 1253, 1257 (8 Cir.

1985) (“Answering this question in the affirmative, the

Missouri Supreme Court explicitly overruled its prior decision

in [State v. Majors 237 S.W. 486 (Mo. 1922)]}); United States

v. Potts, 528 F.2d 883, 886 (9" Cir. 1975) (“Our decision today,

overruling [United States v. Hoctor, 487 F.2d 270 (9" Cir.

1973)], undoubtedly expands the scope of potential criminal

liability . . .”); People v. Martinez, 973 P.2d 512, 521 (Cal.

1999) (“Our overruling of [People v. Caudillo, 580 P.2d 274

(Cal. 1978)] raises the further question whether today’s holding

may be applied retroactively to defendant.”). Here, by contrast,

the New Jersey Supreme Court imposed no criminal liability on

Rent-A-Center and overturned none of its own precedent. This

decision thus did not deprive Rent-A-Center of fair warning as

to its potential civil liability to New Jersey consumers, and does

not conflict with any of the cases cited in Rent-A-Center’s

petition.

That there is no conflict of authority on the due process

question presented is hardly surprising. Rent-A-Center’s claim

of a lack of fair warning from a state supreme court decision ©

that overturns no precedent and follows every prior lower state

court case addressing the precise questions before it would

create a bottomless expansion of the concept of due process. A

finding that the decision below violates the Fourteenth

Amendment would compel the same result in every case where

a state court decides a question of first impression. This would

26

force every state court facing an allegedly novel question of law

to issue a prospective advisory opinion, a practice the

Constitution arguably prohibits for federal courts. See Harper,

509 U.S. at 107-08 (Scalia, J. concurring) (it is “‘the province

and duty of the judicial department to say what the law is,’ not

what the law shall be.”) (quoting Marbury v. Madison, 5 U.S.

137 (1803)). There is no split of authority because the question

presented lacks any basis in fact.

CONCLUSION

For all of the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

MARK R. CUKER SETH R. LESSER ~

MICHAEL J. QUIRK Counsel of Record

WILLIAMS CUKER BEREZOFSKY LOCKS LAW FIRM

210 LAKE DRIVE EAST, SUITE 101 457 HADDONFIELD ROAD

CHERRY HILL, NJ 08002 CHERRY HILL, NJ 08002

(856) 663-8200

WILLIAM A. RIBACK, Esq.

527 COOPER STREET, 2”° FLOOR

CAMDEN, NJ 08102

Counsel for Respondent

December 8, 2006

27

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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