As of January 22, 2017, Mr. Millar is no longer accepting new clients.

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MICHAEL MILLAR, ESQ.

Consumer Protection Lawyer

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Consumer Protection

“Many of us have heard the Latin phrase caveat emptor: ‘let the buyer beware.’ That statement allows little relief to a customer. That statement does not reflect current law in New Jersey.”New Jersey Pattern Jury Charge for Consumer Fraud Claims

THE NEW JERSEY CONSUMER FRAUD ACT:

WHY YOU NEED TO KNOW ABOUT IT

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If you rent, buy or sell goods, services or real estate in New Jersey, you should be aware of its consumer protection laws. The most well known of these laws is the New Jersey Consumer Fraud Act (the "CFA" - N.J.S.A. 56:8-1 et seq.).

Although the name of the act – the Consumer Fraud Act – implies that someone must commit a “fraud” in order to be found liable, that is not necessarily the case.

The traditional concept of fraud requires, among other things, that someone make an intentional misrepresentation of fact (i.e., tell a lie). Traditional fraud is covered by the CFA. However, there are many unintentional, negligent acts that may also be considered "fraud" under the CFA. For example, if a salesperson tells you that they are selling you a box with two dozen widgets - because that is what the box says - and it turns out that there are only 18 widgets in the box - the salesperson may have committed consumer fraud even though the salesperson had no reason to know that her statement was untrue when she made it. Thus, the salesperson's negligent misrepresentation results in consumer fraud liability. Because consumer fraud does not require intentional wrongdoing, it makes proving consumer fraud much easier than proving a traditional fraud. Note that in addition to affirmative misrepresentations, a CFA violation may be established by a technical violation of certain administrative code provisions or the intentional concealment of facts that were material to the transaction.

Not only is proving consumer fraud much easier than proving traditional fraud, but the penalties may be more severe. Under the CFA, if there is a finding of liability, it is mandatory that the defendant pay three times ("treble") the actual damages incurred by the plaintiff and that defendant pay the plaintiff’s attorney fees. So, for example, if after a trial a defendant is found to have violated the CFA, and the plaintiff has proven damages of $10,000, then the defendant is required to pay $30,000 (three times the $10,000) – plus the defendant will have to pay the plaintiff's attorney's fees, which may be another $30,000 or more. Given the large amount of damages that can be awarded in a CFA case, a plaintiff has a great deal of leverage when it comes to negotiating an early settlement.

Whether you are a potential plaintiff or a defendant in a consumer fraud action, you need an experienced attorney to represent your interests. You need someone who understands the various ways that a CFA claim can be proven and the defenses that can be asserted to defeat or limit CFA claims.

Mr. Millar has been handling consumer fraud claims for more than ten years and has been involved in over 125 consumer fraud cases.

If you have a questions concerning whether you have a consumer fraud claim, or if you have had a consumer fraud claim asserted against you, you should contact Mr. Millar today. The initial consultation is free.
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In a Nutshell: The New Jersey Consumer Fraud Act

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(1) What is consumer fraud?



Consumer fraud is "any unconscionable commercial practice, deception, fraud, false pretense, false promise or misrepresentation" in connection with the sale of goods, services or real estate. N.J.S. 56:8-2.

The statute defines the word "sale" to include not only a traditional sale of goods or services but also rentals and distribution. Thus, a lease agreement for an apartment or office space maybe subject to the Consumer Fraud Act. 49 Prposepct Street Tenants Assoc. v. Sheva Gardens, Inc., 227 N.J.Super. 449 (App. Div. 1988). Further, a "sale" need not be completed. The definition includes "offers" and "attempts" to sell, rent or distribute goods or services. See N.J.S. 56:8-1(e).

The New Jersey Consumer Fraud Act provides that are three ways in which an act of consumer fraud may be committed:

a. Affirmative Misrepresentation.

An affirmative misrepresentation is a statement of fact that is untrue. It does not matter whether the party making the statement knew that it was untrue. If the statement is untrue, then it is consumer fraud. Thus unlike traditional concepts of fraud which require an intentional misrepresentation (i.e., a "lie"), consumer fraud may be a negligent, unintentional misrepresentation.

b. Knowing Omission.

Consumer fraud can be the "knowing concealment, suppression or omission of any material fact." N.J.S. 56:8-2. A knowing omission occurs when a party knows a fact that is important to the transaction but fails to disclose it to you.

c. Violation of Certain Laws.

The third basis for responsibility under the New Jersey Consumer Fraud Act involves either a specific-situation statute or administrative regulations enacted to interpret the Act itself. Such statutes and regulations define specific conduct prohibited by law.

Specific situation statutes cover approximately 40 topics including, but not limited to, selling food as kosher or halal when it is not, home improvement contracts, junk faxes, gym memberships and children's toys and products. See N.J.S. 56:8-1 through 56:8-195

d. Ascertainable Loss.

Once a party establishes a violation of the New Jersey Consumer Fraud Act, the party must then establish that he or she has an "ascertainable loss" related to the act of consumer fraud.

By "ascertainable loss", the law means any type of damage that is quantifiable or measurable. Thiedemann v. Mercedes-Benz, USA, LLC, 183 N.J. 234 (2005). It does not have to be a loss that you have already experienced, but may include a future out of pocket expense that you will be required to make. Cox v. Sears Roebuck & Co., 138 N.J. 2 (1995).


(2) What are the penalties for a violation of the New Jersey Consumer Fraud Act?



a. Treble Damages.

If a jury or a court determines that a party has committed an act of consumer fraud, then that party must pay three times (3X) the amount of damages awarded to the other party. See N.J.S.A. 56:8-19. For example, if a party is found to have caused $50,000 in damages, under the Consumer Fraud Act that party must pay $150,000 in damages. Note that trebling of damages is mandatory. The court has no discretion on this point.

It should be noted that insurance policies do not cover fraud claims – including consumer fraud claims. Thus, although an insurance company may defend a party in a lawsuit that includes a claim for consumer fraud, the insurance company likely will not pay the treble damages or attorney fees awarded under the Consumer Fraud Act.

b. Attorney Fees.

If a party prevails on a claim under the New Jersey Consumer Fraud Act, then the other party must pay the first party's attorney fees. See N.J.S.A. 56:8-19. In some cases, the attorney fees are more than the damages. At one point in time, New Jersey courts permitted an award of attorney fees even where the plaintiff had not damages. However, recent case law established that attorney fees may be awarded only after a plaintiff proves both a violation of the CFA and damages caused the violation. See Perez v Professionally Green, LLC, 215 N.J. 388 (2013).

Note that, like all awards of attorney fees, a Court has discretion to award only "reasonable" attorney fees so that a plaintiff may not be reimbursed all of his or her attorney fees

C. Refunds.

The issue of whether a consumer is entitled to a refund of money paid to a seller of goods or services that has violated the consumer fraud act is presently unsettled. See N.J.S.A. 56:8-2.11. Some courts have ruled that among the remedies available to a consumer is the remedy of a refund. See, for example, Artistic Law & Landscape Co., Inc. v. Smith, 381 N.J.Super. 75 (App. Div. 2005). However, at least one recent Appellate Division decision has opined that refunds only apply to certain CFA violations limited to eating establishments (restaurants) - and not to all CFA violations generally. See Logatto v. Lipksy, 2013 WL 3716871 (N.J. App. Div.). Thus, until the New Jersey Supreme Court decides the issue, it is unclear whether a consumer is entitled to refund for any violation of the CFA.


(3) Who May Be Found Liable Under the New Jersey Consumer Fraud Act?



a. Persons.

The Consumer Fraud Act has an expansive definition of who is defined as a "person". Under the Consumer Fraud Act a "person" includes natural persons, business entities such as corporations, LLCs, and partnerships, and agents, employees, salespersons, partners, officers, directors, members, stockholders, associate and trustees. N.J.S. 56:8-1(d).

b. Individual Liability of Company Owners, Employees and Agents.

The Consumer Fraud Act's expansive definition of "person" has far reaching consequences for owners, officers, employees and agents of a business. It essentially means that the "limited liability" that one expects from a business entity may not apply and one may be held personally liable for actions taken on behalf of the business.

It has long been settled law that an agent or employee of a company who deals directly with the public can be held personally responsible for any affirmative misrepresentation or intentional omission of a material fact. See e.g., Gennari v. Weichert Co. Realtors, 148 N.J. 582, 608-610 (1997) (holding agent liable under the CFA for affirmative misrepresentations made in connection with services provided to a business).

In a fairly recent case, the New Jersey Supreme Court ruled that company management can be held personally liable to a plaintiff under the Consumer Fraud Act where management participated in an activity for the company that was a regulatory violation. In Allen v. V and A Brothers, Inc., 208 N.J. 114 (2011), the Court ruled that both employees and officers of a corporation may be individually liable under the Consumer Fraud Act for actions taken for the company. In that case, the defendants were landscapers subject to home improvement contractor law and regulations. They were alleged to have committed several regulatory violations including the failure to obtain a written contract, the failure to obtain final approvals before accepting final payment and the failure to obtain the homeowner's consent to modifications to designs and plans for the project. The trial court had dismissed the claims against the corporate employees and officers. The Appellate Division upheld the trial court. The Supreme Court reversed both lower courts. The Supreme Court opined that principals of a business may be individually liable if they set policies that are in violation of the Consumer Fraud Act. Thus, under the New Jersey Consumer Fraud Act, the owner of a company who sets a policy that unwittingly violates a statute or regulation may not have "limited liability" and instead may be personally liable for business decisions.

c. Businesses as Consumer Fraud Plaintiffs

The expansive definition of who is a "person" means not only that businesses may be sued for consumer fraud but also that a business may bring consumer fraud claims against others.

d. Exceptions.

Although the Consumer Fraud Act is expansive and covers many transactions and many "persons", it does have its limits.

First, as a general rule, in order to be subject to the CFA, a transaction must involve a sale of goods, services or real estate to the general public. Thus, the sale of specialized equipment to a business may not be covered by the Consumer Fraud Act. This is a fact sensitive question that is decided on a case-by-case basis. For example, a retail store that buyers wholesale lots of inkjet cartridges for resale to the general public may not be consumer fraud because the wholesale transaction did not involve a sale to the public. However, if the same business bought a lot of inkjet cartridges for use in its own office printers, then it may be subject to the Consumer Fraud Act because the business was acting as a consumer in the transaction. Papergraphics International, Inc. v. Correa, 389 N.J.Super. 8 (App. Div. 2006).

Second, New Jersey courts have created a special "learned professional exemption" to the Consumer Fraud Act. See Neveroski v. Blair,141 N.J.Super. 365 (App. Div. 1976); Macedo v. Dello Russo, 178 N.J. 340,344-345 (2004) ("Thus, today, forty years after the CFA was enacted, our jurisprudence continues to identify learned professionals as beyond the reach of the Act so long as they are operating in their professional capacities"). Pursuant to the learned professional exemption, doctors, lawyers, architects, accountants, engineers and other licensed professionals for providing services pursuant to their license. Note, however, that if a licensed professional provides services outside the scope of his or her license, then he or she may be liable under the Consumer Fraud Act. For example, if an architect were to make representations to a prospective buyer of a home in order to induce the buyer to purchase the home, the architect might have CFA liability because selling homes is not within the scope of an architect's license. Blatterfein v. Larken, 323 N.J.Super. 167 (App. Div. 1999).

Finally, not all breach of contract actions, or the failure to make warranty repairs, involve a Consumer Fraud Act violation. Cox v. Sears Roebuck & Co., 138 N.J. 2 (1994) ("[A] breach of warranty, or any breach of contract, is not per se unfair or unconscionable . . . and a breach of warranty alone does not violate a consumer protection statute."); D'Ercole Sales, Inc. v. Frehauf Corp., 206 N.J.Super. 11, 23 (App. Div. 1985) (holding that breach of warranty for malfunctioning tow truck and refusal to repair was not unconscionable practice).
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HOME IMPROVEMENT FRAUD AND SUPERSTORM SANDY

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Superstorm Sandy was the worst natural disaster to hit New Jersey in more than 50 years. Tens of thousands of homes were destroyed or damaged. Those affected by the storm are now rebuilding. There are many good, hard working people who have come to our area to work as contractors to help in the effort to “Restore the Shore” and other areas of our State. As in any human endeavor, there will always be a few “bad apples” - those who are either not competent to do the work or who intentionally misrepresent what they can or will do.

The New Jersey Consumer Fraud Act (the “CFA”) contains very strict regulations regarding home improvements contracts. The CFA provides that a home improvement contractor who violates the Act must pay your attorney fees and three times your actual damages.

If you have had work performed on your home, and you have questions about the contractor or the work performed by the contractor, you should contact Mr. Millar. He has extensive experience litigating cases under the CFA.

If you are a business trying to comply with the CFA, Mr. Millar can help you ensure that your contract complies with the law. Mr. Millar can help you with contract disputes and can also defend against any CFA claims brought against your business.

The initial consultation is free.
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As of January 22, 2017, Mr. Millar is no longer accepting new clients.

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MICHAEL MILLAR, ESQ.
98 East Water Street, Toms River, NJ 08753
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