Consumer Fraud: Misrepresentations
Consumer Fraud: Misrepresentations
What is a misrepresentation under New Jersey's Consumer Fraud Act:
An “affirmative act” is something done voluntarily by a person. It includes not merely physical acts, but also any steps taken voluntarily by a person to advance a plan or design, or to accomplish a purpose. “False promise” is an untrue commitment or pledge (which is communicated to another person) to create the possibility that that other person will be misled. Model Civil Jury Charge 4.43 http://www.judiciary.state.nj.us/civil/charges/4.43.pdf The defendant’s intent is not pertinent as good faith is not a defense to an affirmative representation. Cox v. Sears, 138 NJ 1, 16 (1994).
There are many cases that address what is considered ocnsumer fraud under New Jersey law.
The following are examples of affirmative representation that were actionable.
A cellular service provider’s advertisement that its service was so reliable that “you could make your wireless phone your only phone” Union Ink Company v. ATT Corp, 352 N.J.Super 617, 644 (App.Div 2002). A real estate agent’s statement that the termite problem was minimal when it was not. Byrne v. Weichert Realtors, 290 N.J.Super 126, 134 (App.Div 1996). Misrepresenting the mileage on a Corvette. Cuesta v. Classic, 358 N.J.Super 512 (App.Div. 2003). See also Cogar v. Monmouth Toyota 331 N.J.Super 137 (App.Div 1997)(odometer case)
In Ji v. Palmer, 33 N.J. Super. 451 (App. Div 2000) the sellers agent of a certain apartment building represented to the purchasers that the certificate of occupancy was sufficient to rent the unit as a multi family when in fact the unit was zoned single family and could not be utilized as a multi family dwelling. It was admitted that this was a mistaken belief by the seller’s agent but was determined to be actionable. The Appellate Division specifically determined that the seller’s agent intent was irrelevant under the CFA.
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