409
CHAPTER 32
NEW JERSEY
A. Scope of the Statute and Elements of a Cause of Action
The New Jersey Consumer Fraud Act (NJCFA)1 prohibits “any
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, in connection with the
sale or advertisement of any merchandise or real estate.”2 Such acts are
declared unlawful without regard to “whether or not any person has in fact
been misled, deceived or damaged.”3
The Act’s definition of “person” includes natural persons, business
entities, and agents or employees,4 and its definition of “sale” reaches
rental or distribution in addition to sales.5 The NJCFA applies to sales of
real estate or sales of merchandise,6 and merchandise only covers offers
made directly or indirectly “to the public.”7 Business entities are
“consumers” within the intent of the Act when they purchase goods for
their own use.8
To state a NJCFA claim, a plaintiff must allege three elements: (1)
unlawful conduct, (2) an ascertainable loss, and (3) a causal relationship
between the defendant’s unlawful conduct and the plaintiff’s ascertainable
loss.9 With respect to the first element, “unlawful conduct” may be divided
“into three categories: affirmative acts, knowing omissions, and regulatory
violations.”10 An “affirmative act” prohibited by the NJCFA includes
1. N.J. STAT. ANN. §§ 56:8-1 through 56:8-226.
2. Id. § 56:8-2.
3. Id.
4. Id. §56:8-1(d).
5. Id. §56:8-l(e).
6. Id. § 56:8-2.
7. Id. § 56:8-1(c).
8. See, e.g., Marascio v. Campanella, 689 A.2d 852 (N.J. Super. Ct. App. Div.
1997); Hundred East Credit Corp. v. Eric Schuster Corp., 515 A.2d 246
(N.J. Super. Ct. App. Div. 1986).
9. Int’l Union of Operating Eng’rs. v. Merck & Co., 929 A.2d 1076, 1086
(N.J. 2007) (citing N.J. Citizen Action v. Schering- Plough Corp., 84 2 A. 2d
174, 176 (N.J. Super. Ct. App. Div. 2003)).
10. Int’l Union of Operating Eng’rs, 929 A.2d at 1086.
4
10 State Consumer Protection Law
unconscionable commercial practices, fraud, deception, false pretense,
false promise, or misrepresentation.11 An “unconscionable commercial
practice” is one that breaches “the standard of conduct contemplating . . .
good faith, honesty in fact and observance of fair dealing.”12 This term “i s
an amorphous concept obviously designed to establish a broad business
ethic.”13 In addition to the NJCFA’s broad prohibition of unconscionable
and deceptive acts, the statute also enumerates many specific unlawful acts
or practices related to particular areas of consumer sales. For example, the
NJCFA includes provisions addressing, among other conduct, going-out-
of-business sales, gift cards, food labeling, toy safety, information
services, the sale and warranty of used vehicles, and pet purchases.14
Of note, a breach of contract or breach of warranty, without
aggravating circumstances, is “not per se unfair or unconscionable.”15 Nor
does the NJCFA prohibit a merchant from charging an allegedly
“excessive” price, unless accompanied by unlawful conduct:
We live in a capitalist society in which prices are ordinarily established
by the marketplace rather than by a government agency or the courts.
Sellers of goods and services generally may charge whatever the marke t
will bear so long as they do not engage in deceptive or other unfair sales
practices.16
11. Thiedmann v. Mercedes-Benz USA, LLC, 872 A.2d 783, 791 (N.J. 2005).
12. Turf Lawnmower Repair, Inc. v. Bergen Record Corp., 655 A.2d 417, 429
(N.J. 1995) (internal quotations and alterations omitted).
13. Id.
14. See, e.g., N.J. STAT. ANN. §§ 56:8-1 through 56:8-226.
courts interpreting the NJCFA have concluded that it is not unconscionable
or deceptive for a manufacturer to fail to disclose that its product might
degrade over time or break after the warranty expires. Viking Yacht Co. v.
Composite One LLC, 385 F. App’x 195, 200-01 (3d Cir. 2010) (g el
maker’s failure to disclose gel would degrade over time not actionable
under NJCFA where maker made no representation that gel would not
1004 (N. J. Super. Ct. App. Div. 2006) (manufacturer’s or seller’s failure
to tell purchaser that vehicle part may break down or require repair after
warranty period expires cannot constitute violation of NJCFA).
Ct. App. Div. 2009) (to constitute consumer fraud proscribed by NJCFA,
business practice in question must be misleading and stand outside norms
of reasonable business practice in that it will victimize the average
consumer; charging federal court deponent transcription rate in excess of
state court rate not unlawful) (citations omitted). But an “excessive price”
