The Jersey Lawyer is back with some good news for New Jersey consumers.
On February 19, 2009, the Supreme Court of New Jersey (New Jersey’s highest court), handed down a decision that is a huge victory for New Jersey consumers. In Bosland v. Warnock Dodge, Inc., et al. (Feb. 19, 2009), the Supreme Court held that a consumer does not need to ask for a refund from a merchant who has overcharged the consumer before the consumer can sue under New Jersey’s Consumer Fraud Act.
The Consumer Fraud Act (“CFA”) makes the use of any “unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing concealment, suppression, or omission of any material fact” by a merchant an unlawful practice. The major benefits to consumers of the Consumer Fraud Act are that if a merchant is found to have violated the act, that merchant must pay to the consumer triple damages and the consumer’s attorneys’ fees and costs.
Prior to the enactment of the CFA, when a merchant used an unconscionable commercial practice to deceive a consumer, the damage to the consumer was often so small that it was not worth it to the consumer to bring a lawsuit. Many times, an attorney’s fees would amount to much more than the amount the consumer lost as a result of the merchant’s fraudulent practice. The CFA solved this problem by providing that a merchant found to have violated the CFA would be liable to pay the consumer three times the damages the consumer suffered, and the merchant would also have to pay the consumer’s reasonable attorneys’ fees. As a result, a consumer can now hire a consumer fraud lawyer to represent them against a merchant, even if the damages suffered by the consumer are minor.
In Bosland v. Warnock Dodge, Inc., et al., plaintiff Rhonda Bosland purchased a new car from defendant Warnock Dodge. The invoice given to Ms. Bosland from the car dealer contained a $117 “registration fee.” Ms. Bosland later learned that the actual registration fee charged by the Motor Vehicle Commission was less than the “registration fee” charged by the dealer. At the time of the sale, the purpose of the extra charge was not disclosed to Ms. Bosland. Instead of asking the dealer for a refund, Ms. Bosland filed a lawsuit against the dealer under, among others, the CFA.
The dealer filed a Motion for Summary Judgment with the lower court, seeking dismissal of Ms. Bosland’s consumer fraud claim. The basis for the dealer’s motion was the fact that Ms. Bosland did not seek a refund directly from the dealer before filing the lawsuit. The lower court agreed with the dealer and dismissed Ms. Bosland’s claim under the CFA. Ms. Bosland appealed to the New Jersey Superior Court, Appellate Division. The Appellate Division disagreed with the lower court and reversed the decision to dismiss Ms. Bosland’s claim under the CFA. The dealer then filed an appeal with the New Jersey Supreme Court.
The Supreme Court agreed with the Appellate Division that a consumer is not required to seek a refund directly from the merchant before filing suit under the CFA. The Supreme Court determined that only three elements are required for a consumer to bring a claim under the CFA: (1) that the defendant engaged in conduct that is prohibited by the CFA; (2) that the plaintiff suffered an ascertainable loss; and (3) that the plaintiff’s loss was caused by the defendant’s conduct. When the New Jersey legislature enacted the CFA, it did not put anything in the language of the statute that would require the consumer to first seek a refund directly from the merchant before filing suit. Therefore, no such requirement exists.
The Court rejected the dealer’s argument that Ms. Bosland did not suffer an ascertainable loss or that any loss suffered by Ms. Bosland was not caused by any unlawful activity on the part of the dealer because she could have gotten a full refund from the dealer without filing a lawsuit. The Supreme Court reasoned that if they were to accept the dealer’s arguments, they would be creating hurdles within the CFA that would go against the Legislature’s intent to create broad protection for consumers.
This case is an important one for New Jersey consumers. If you have been a victim of an unlawful or unconscionable business practice by any merchant, a New Jersey consumer fraud lawyer may be able to help you regardless of whether you demanded a refund directly from the merchant.
Elizabeth, New Jersey Personal Injury and Workers’ Compensation Lawyers
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