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Peterson v. BASF Corp.3/11/2003
would merely have to include those crops on the EPA label, send a letter to the state departments of agriculture with a small fee, and ask that the additional crops be included on the state registration.
Next, BASF challenges the farmers' theory that, had the farmers known that Poast and Poast Plus had been registered with the EPA for the same uses, they would have been able to force BASF to lower the price of Poast to a fair price for minor crop use and "would not have stood idly by and paid inflated prices to BASF." BASF first contends that the farmers cannot force it to sell Poast at the price that they want. But this is not what the farmers contended. Instead, the issue here was whether such sales were based on fraud and thus were unlawful.
BASF also contends that the farmers are asserting that they have a right to engineer an illegal, concerted, horizontal boycott to drive down the price of Poast. See F.T.C. v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411, 110 S. Ct. 768 (1990) (holding that where members of bar association agreed to stop representing indigent criminal defendants until government increased their compensation, this was a per se unlawful restraint of trade). But there was no evidence in this case of such an illegal "boycott." Instead, the evidence showed that the farmers discussed their individual decisions not to purchase BASF products.
BASF also contends that, assuming the "proposed boycott" was not illegal, New Jersey law does not support the farmers' "right to boycott" or "fraud on the market" theory. But the cases cited by appellant BASF are distinguishable. See, e.g., Kaufman v. I-Stat Corp., 754 A.2d 1188, 1189 (N.J. 2000) (addressing common-law fraud claim); Jiries v. BP Oil, 682 A.2d 1241, 1243-44 (N.J. Super. Ct. Law Div. 1996) (holding plaintiff failed to show ascertainable loss).
BASF next contends that the farmers failed to produce evidence to establish a causal link between BASF's conduct and an ascertainable loss. Again, the standard we must apply is whether the verdict can be sustained on any reasonable theory of evidence. Pouliot, 582 N.W.2d at 224.
In Peterson I, this court recognized that an ascertainable loss may be shown by the farmers' lost opportunity to refuse to purchase Poast due to BASF's fraud. 618 N.W.2d at 824-25. Here, the farmers assert they showed causation by evidence that they lost the opportunity to protest, petition for relief from governmental agencies, litigate, or simply make an intelligent, informed decision on whether to refuse to buy the more expensive Poast. They presented testimony from various witnesses, including the class representatives, that upon learning of BASF's fraudulent scheme, they engaged in or recommended just such activities. The jury again had evidence from which it could and did find causation. BASF has not shown that it has met the standards for JNOV.
II.
BASF next seeks JNOV on the jury's award of damages for the crop years 1992 and 1995-1996. As discussed above, the standard for JNOV is whether the verdict can be sustained on any reasonable theory of the evidence. Pouliot, 582 N.W.2d at 224.
In awarding damages under the NJCFA, the goals of the act are twofold. Cox, 647 A.2d at 463. First, the act "is clearly remedial in that it seeks to compensate a victim's loss." Id. Second, it serves as a deterrent, because it punishes the wrongdoer by awarding the victim treble damages, attorney fees, and costs. Id. " n determining whether plaintiff has established a loss under the Act, we are guided by but not bound to strict contract principles." Id. at 463-64.
BASF first argues that this court must reduce the portion of
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