The Courts continue to interpret the Consumer Fraud Act in such a way that limits the remedial nature of the act. Courts have been strictly applying breach of contract principles to the damages analysis. The issue is: what is the ascertainable loss that is recoverable under the act? The Court has been requiring a benefit of the bargain analysis. As an example, if you buy a product that costs you $100 and it is worth $40 your damages are $60. Or maybe you purchased the product for $100 and you sold it for $60; then your damages would be $40.
Here is the problem: the New Jersey Consumer Fraud Act is not breach of contract and should not be analyzed as a breach of contract. The Act was in addition to the remedies that already existed. So let’s answer this: why are the breach of contract damages the same as fraud damages? I don’t know. This analysis gives the defendant the benefit of his improper conduct. Why should the defendant get to keep the profit or get any benefit of the sale? I don’t know. Why does the plaintiff have to pay for experts, costs that are not reimbursed under the Act, and not be able to afford to pursue the claim? I don’t know.
I do have an answer that makes sense.