If you’re injured by a violation of the Consumer Fraud Act, the law requires you prove it was an unlawful action that caused a provable loss of money or property. The Act also refers to the term “ascertainable loss” which essentially means that you suffered a loss of money or property that is capable of being calculated with a reasonable degree of certainty because of the unlawful act. The NJ Supreme Court has defined actions for economic loss as actions for the recovery of damages for costs of repair, replacement of defective goods, inadequate value and compensation, loss of profits.
In other words, you cannot win your case without evidence to persuade a jury that it was the merchant’s CFA violation that caused you an ascertainable loss. Once a casual connection between the merchant’s unlawful practice(s) and your ascertainable loss is established, your case stands a good chance of winning. Caution, evidence of an ascertainable loss cannot be either (1) hypothetical or (2) speculative, rather your loss must be capable of being calculated or showing a reasonably accurate and fair basis for the loss, much like the law requires in a breach of contract case.
If a claimant proves a CFA violation at trial but fails to establish that they suffered ascertainable loss, the claimant is precluded from recovering treble damages, nevertheless a consumer-fraud plaintiff can recover reasonable attorneys’ fees, filing fees, and costs if that plaintiff can prove that the defendant committed an unlawful practice, even if the victim cannot prove economic loss and thus cannot recover treble damages…. Nevertheless the reason for this is that the fundamental purpose of the Act is that a victim who pursues legal action should be able to pursue consumer-fraud actions without experiencing personal financial hardship.
In a CFA case brought for treble damages, to recover fees and costs without a finding of ascertainable loss, the claimant must first persuade a judge that their case must go to a jury or trial judge without a jury. If the CFA claimant does not survive what is called summary judgment, they cannot recover any fees and costs. Likewise, if the case goes to trial but the CFA plaintiff’s case is dismissed by the trial judge at the close of their case and the merchant does not have to present its case to the jury, the claimant does not qualify for an award of fees and costs.
I know this page is difficult to understand. Eligibility for substantial money damages in a consumer fraud case is complex. If you have questions, please call Frederick P. Niemann, Esq. toll-free at (855) 376-5291 or email him fniemann@hnlawfirm.com. He welcomes your inquiries.
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