While New Jersey waits for guidance from the Supreme Court in Perez v. Professionally Green, LLC, (A-66-11) on key issues relating to state’s Consumer Fraud Act (“CFA”), the Appellate Division recently reaffirmed the principle that in order to have standing to sue under the CFA (N.J.S.A. 56:8-19), a consumer must suffer an “ascertainable loss of moneys or property” as a result of a CFA violation. Weinberg v. Sprint Corp., 173 N.J. 233, 250 (2002).
Plaintiff in Depolink Court Reporting & Litigation Services v. Rochman, commenced a collection action against defendant attorney for the cost of a deposition transcript that defendant ordered but then refused to pay for. Defendant filed a third-party complaint against the collection agency that plaintiff retained alleging various claims and violations. Amongst those violations was a violation of the CFA based upon the collection agency’s conduct in attempting to collect defendant’s debt. That claim was subsequently dismissed on summary judgment and defendant appealed.
The Appellate Division did not substantively address the conduct by the collection agency, but upheld the dismissal of the defendant’s CFA claims based upon the fact that even if the collection agency made any misrepresentations, those misrepresentations were not in connection with the sale of merchandise to the defendant, and defendant suffered no “ascertainable loss”. The Court recognized that even though the CFA is “one of the strongest consumer protection laws in the nation”, with a “history of constant expansion of consumer protection”, a consumer’s standing to recover under the CFA is not without limits. see Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 555 (2009). Although undefined by the CFA, the Depolink Court addressed the long-standing principles behind the term “ascertainable loss”, including: to make a thing certain; establish as a certainty; establishing quantifiable or measurable damages; the evidence of loss must not be hypothetical or illusory; mere inconvenience to a consumer is not enough under the Act; and that non-economic damages are not recoverable under the CFA.
In the interim, while the state waits for the Supreme Court’s decision in Perez v. Professionally Green, LLC, it remains, that in order to have standing to sue under the CFA, a consumer must suffer an “ascertainable loss ” as a result of a CFA violation.
Sidebar: In Perez the Supreme Court is considering whether a plaintiff can recover attorneys’ fees and costs when they prove a technical violation of the CFA, but their claim is ultimately dismissed as a matter of law for failing to show an “ascertainable loss”. The Supreme Court heard oral argument on January 14, 2013.