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Supreme Court Rules Victory Under CFA Does Not Guarantee Award of Attorney Fees

The New Jersey Supreme Court recently ruled in Perez v. Professionally Green, LLC, et al. that a prevailing Plaintiff is not entitled to receive an award of attorney fees under the Consumer Fraud Act (CFA) if they cannot prove an ascertainable loss relating to the violation. It was a decision that slightly weakened New Jersey’s consumer fraud protections, which are amongst the strongest in the country.

The case involved a claim by a homeowner against a home improvement contractor regarding the installation of a swimming pool. The contractor failed to include a start or end date for the work in the contract as required by New Jersey law, and in violation of the CFA. However, the homeowner could not prove that they had suffered any damages as a result of the violation. For this reason the trial court decided not to award Plaintiff with attorney’s fees under the CFA. Plaintiff subsequently appealed the decision, and the Appellate Division reversed, holding that Plaintiff was entitled to attorney fees simply by the mere fact that they were able to prove a violation under the CFA. The Defendant contractor then petitioned the Supreme Court, which was granted.

The Supreme Court held in a unanimous decision that in addition to establishing a CFA violation, a private plaintiff must demonstrate that the violation resulted in an “ascertainable loss of moneys or property, real or personal.” If a plaintiff demonstrates both a violation and a resulting ascertainable loss, the CFA provides broad relief that may include an award of attorneys’ fees. However, when a trial court grants a defendant’s motion for involuntary dismissal of plaintiffs’ CFA claim due to the fact that no bona fide ascertainable loss claim exists within the meaning of N.J.S.A. 56:8-19, as they did here, then plaintiffs are not entitled to attorneys’ fees.

Here at Lieberman Blecher & Sinkevich our attorneys are well-versed in Consumer Fraud actions and have assisted many clients through the appeals process. Our attorneys are experienced with complex litigation, including issues that involve redevelopment, hazardous site remediation, underground storage tanks, and regulatory matters.

 

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