Ascertainable Loss Under the Consumer Fraud Act

The plaintiff has sustained an ascertainable loss.  The Consumer Fraud Act is remedial legislation and as such should be LIBERALLY CONSTRUED. In Miller v. American Family Publishers, 284 N.J.Super 67, 91 ( Ch Div 1995) the Court held that for their money, they received something less than, and different from, what they reasonably expected in view of defendant's presentations. That is all that was required to establish "ascertainable loss," and was sufficient to withstand defendant's motion for summary judgment.  In Miller the plaintiffs claimed that the defendants sales literature was, literally true, but inherently misleading in the fashion it was presented.

The plaintiff's claims were as follows:

• Throughout defendant's soliciting literature is a constant plea and demand for an immediate response. That pattern is characterized by such statements as "URGENT: ··· MAIL AT ONCE"; "RETURN YOUR ADDRESS LABEL RIGHT NOW"; "TIME IS RUNNING OUT····" And those phrases, with almost infinite variations, are repeated in virtually every piece of solicitation material.
  
• Plaintiffs' second claim of misrepresentation is based on defendant's advising many sweepstakes participants that they are "FINALIST(S)!" in defendant's multimillion dollar contest.
  
• The third alleged misrepresentation cited by plaintiffs refers to solicitation material which threatens to "drop" a participant from the sweepstakes if he or she does not subscribe to one of defendant's magazine. The message is obviously designed to alarm and induce action. It is not subtle! Id at 84-88.

In concluding that the plaintiff has sustained an ascertainable loss the Miller Court explained:

That hypothesis seems to be a clear example of what one would normally believe the term "ascertainable loss" should encompass. If one sets out to purchase two things, and for the price paid receives only one, the conclusion seems inescapable that there has been an "ascertainable loss." Indeed, defendants submit no argument as to why that seemingly obvious conclusion should be rejected.

Although no New Jersey case has squarely addressed the issue, several courts outside this State which have dealt with the question-most notably the Supreme Court of Connecticut-have reached conclusions consistent with this reading of the term "ascertainable loss." Id at 88.

In short, too satisfy the 'ascertainable loss' requirement, a plaintiff need prove only that he has purchased an item partially as a result of an unfair or deceptive practice or act and that the item is different from that for which he bargained. Id at 89.

To give effect to the legislative language describing the requisite loss for private standing under the CFA, and to be consistent with Weinberg, a private plaintiff must produce evidence from which a fact finder could find or infer that the plaintiff suffered an actual loss. At the time of summary judgment that evidence must be sufficient to present a genuine issue for the fact finder. Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 248 (2005) Implicit in the concept of an "ascertainable" loss is that it is quantifiable or measurable. Moreover, it need not yet have been experienced as an out-of-pocket loss to the plaintiff. See, e.g., Cox, v. Sears 138 N.J. at 22-23 (1994)

The recent Supreme Court decision in Thiedemann has reaffirmed the reasoning the Court endorsed in Miller :

We do not suggest that a benefit-of-the-bargain claim cannot support an ascertainable loss sufficient to allow a CFA claim to proceed to the fact finder; rather, it is the quality of the proofs that will determine a claim's viability. Sufficient proof of an ascertainable loss in respect of the "lost bargain" was present, for example, in Talalai v. Cooper Tire & Rubber Co., 360 N.J.Super. 547, 562-63, (Law Div. 2001) (finding prima facie presentation of ascertainable loss in CFA claim based on loss of bargain where defendant allegedly was producing defective tires and removing visible evidence of defects, requiring plaintiffs either to pay for expert examination of safety of tires or for replacement tires), and Miller v. American Family Publishers, supra, 284 N.J.Super. at 88-90, 663 A.2d 643 (finding sufficient demonstration of ascertainable loss based on loss of bargain where plaintiffs were deceived into believing they were purchasing both magazine subscription and participation in defendant's sweepstakes with enhanced likelihood of winning, but purchases were unrelated to sweepstakes). To the extent that plaintiffs note the acceptance of other benefit-of-the-bargain prima facie claims, they include matters that involved causes of action different from the CFA, with its "ascertainable loss" requirement. See, e.g., In re Cadillac V8-6-4 Class Action, 93 N.J. 412, 423, 461 A.2d 736 (1983)(common law fraud); General Motors Acceptance Corp. v. Jankowitz, 216 N.J.Super. 313, 320-21, 523 A.2d 695 (App.Div.1987) (Magnuson-Moss Act). That difference aside, the records in the aforementioned cases revealed evidence that the defective conditions in the motor vehicles in dispute were ongoing either because the defect could not be remedied or the manufacturer or dealer refused to correct the condition.

In an ordinary breach of contract case, the function of damages is simply to make the injured party whole and the courts do not assess penalties against the breaching party, however, the goals of the Act are different.  Although one purpose of the legislation is clearly remedial in that it seeks to compensate victim's loss the Act also punishes wrong doers by awarding a victim treble damages, attorney's fees, filing fees and costs.  In that sense, the act serves as a deterrent.  Therefore, in determining whether the plaintiff has established a loss under the Act, we are guarded by, but not bound by, too strict contract principles.  Thus an improper debt or lien against a consumer may constitute a loss under the Act because a consumer is not obligated to pay an indebtedness arising out of conduct that violates the Act. There is no requirement to prove the exact amount of the loss so long as it is ascertainable or measurable.  Miller v. American Family Publishing, 284 N.J.Super 67, 88  (App.Div. 1995).