The most contested section of the CFA involves unconscionable commercial practices and fraud claims. The law specifies prohibited acts by any person regarding the following:
- an unconscionable commercial practice;
- deception,
- fraud;
- false pretense;
- false promise;
- misrepresentation; or
- the knowing concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission.
Each of these violations is an unlawful practice and any one of these acts can serve as a basis for bringing a CFA case.
So What Makes Something Under the CFA “Unconscionable”?
“Unconscionability” even though it is used many times in the CFA is not specifically defined under the Act. The result has been that the courts have adopted a judicial phrase called “a broad business ethic” standard which is intended “to balance the interests of the public and the seller.”
What qualifies under the “unconscionability test” “is highly fact-specific and applied on a case-by-case basis.” One legal commentator states it must be deceptive or misleading enough that it goes beyond a reasonable business standard or practice that will likely injure the average consumer.
Exaggerated Claims May or May Not Be a CFA Violation
What is an actionable vs. non-actionable statement? Some statements are clearly not believable and are not actionable (i.e., “order my online education program and double your I.Q.”, or “take this supplement twice a day to look like Arnold Schwarzenegger”). The CFA seeks to distinguish between obvious exaggerations vs. those communications/statements that are actionable. Exaggeration(s) or overstatement(s) expressed in broad and/or vague language are generally not actionable because they include highly speculative claims and language as opposed to specific, detailed factual statements. Statements that are not actionable are those that an average consumer would interpret to be unbelievable. To be actionable, the statement must be “misleading” and cause a hypothetical average consumer to act. Note the law’s reference to an “average consumer”. You may ask yourself who qualifies as an average consumer? The law leaves that answer up to a judge or jury if a case is filed.
Can Opinions Be Found to Violate the CFA?
In some cases, yes, an opinion can offend the CFA. What is the distinction between a representation of fact and an opinion?
Statements made (whether verbal or in writing) concerning matters that are not susceptible of personal knowledge are generally regarded as expressions of opinion: Qualified statements (i.e., “in my opinion”) are not statements of fact.
But when a merchant makes a clearly misleading statement of opinion which is intended for the consumer to clearly rely upon its accuracy to his or her detriment, that statement may support a CFA claim.
Confused about the law, have questions regarding a consumer fraud matter? Then please call Frederick P. Niemann, Esq. toll-free at (855) 376-5291 or email him fniemann@hnlawfirm.com. He welcomes your inquiries and is very easy to talk to.
Fredrick P. Niemann Esq.
Consumer Fraud Act Attorney Serving These New Jersey Counties:
Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County,
Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County,
Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, Warren County