If you’re injured by a violation of the Consumer Fraud Act, the law requires you to prove that 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 repair and replacement costs, for the inadequate value of defective goods, for compensation, and for 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; your loss must be capable of being calculated or show 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 is that the Act’s fundamental purpose is to ensure that a victim pursuing legal action can bring consumer fraud claims without incurring 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 should go to a jury or to a 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. at (732) 863-9900 or email him at 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