A recent published case with a unique set of circumstances serves as a reminder that for a plaintiff to prevail and secure treble damages under the Consumer Fraud Act (CFA), not only must the plaintiff show that the defendant committed unlawful conduct, that plaintiff must also be able to demonstrate that he suffered an ascertainable loss.
The plaintiffs in Gupta v. Asha Enterprises, LLC, __ N.J. Super.__ (App.Div. 2011) had unquestionably been quite specific when they ordered vegetable samosas from the defendant Indian restaurant for take-out; they were being purchased for a group of individuals who were strict vegetarians. When the time came for the plaintiffs to pick up their order, they were handed a tray indicating the samosas were, in fact, vegetarian, and were reassured of the “vegetarian nature of the food.”
Notwithstanding their abundance of care, plaintiffs were served and began to consume meat-filled samosas. The Indian restaurant was insistent that the samosas were vegetarian, however the plaintiffs returned to verify the samosas’ content. Once there, an employee of the Indian restaurant confirmed that is was he who was mistaken; the samosas contained meat. The Indian restaurant then prepared an order of vegetable samosas for the plaintiffs and delivered it to them without additional payment.
The plaintiffs brought their complaint alleging that consumption of the meat contained in the samosas caused them spiritual injuries resulting in damages. The motion judge subsequently granted the defendants’ motion to dismiss.
On appeal, plaintiffs argued that the motion judge erred in her dismissal of their CFA claim. The appellate panel agreed, noting that the CFA specifically forbids “act[s] constituting misrepresentation of food.” However, the panel declined to recognize the plaintiffs’ spiritual loss and need to travel to India to undergo a purification ritual as an ascertainable loss cognizable under the CFA, which requires evidence of loss of “moneys or property.” Because the Indian restaurant provided the plaintiffs with an order of vegetable samosas, the plaintiffs were demonstrably made whole, and the panel explicitly declined to recognize a spiritual loss in the absence of any supporting precedent.