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Thiedemann v. Mercedes-Benz USA.5/18/2005
owledge, indeed common sense, compels a conclusion that the value of the vehicle is impaired to a measurable, if presently unknowable degree." Ibid.
II.
The Legislature enacted the CFA in 1960 to address rampant consumer complaints about fraudulent practices in the marketplace and to deter such conduct by merchants. Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 11 (2004) (citing Cox v. Sears Roebuck & Co., 138 N.J. 2, 21 (1994)). As explained in Cox, supra, the CFA sets forth three general categories of unlawful acts: (1) affirmative acts; (2) knowing omissions; and (3) regulatory violations. 138 N.J. at 17. This matter concerns the first of those categories.
"Affirmative acts" were defined as unlawful practices that include unconscionable commercial practices, fraud, deception, false promise, false pretense, and misrepresentation. N.J.S.A. 56:8-2. See Miller v. Am. Family Publishers, 284 N.J. Super. 67, 75 (Ch. Div. 1995). In respect of such violations, intent is not a required element. N.J.S.A. 56:8-2. An "affirmative act" may be established by showing that a defendant's actions constituted one of the stated prohibited practices. See Cox, supra, 138 N.J. at 17-18.
It is a well-known fact that the CFA initially conferred enforcement power exclusively on the Attorney General. See Weinberg v. Sprint Corp., 173 N.J. 233, 247-48 (2002) (citations omitted). The Legislature armed the Attorney General with broad investigatory powers and the authority to seek injunctive and other relief necessary to make whole victims damaged by acts made unlawful under the CFA. Ibid. (discussing statutory powers and authority conferred). See also Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 472-73 (1988) (noting Attorney General's unbridled enforcement authority does not require proof of damages, thereby advancing CFA's protectionist purpose).
To augment the Attorney General's enforcement efforts, the CFA was amended, after a decade's worth of experience, to add a private right of action. L. 1971, c. 247, ยง 7. The private action allows a successful plaintiff to recover treble damages, reasonable attorneys' fees, and the fees and costs associated with filing suit. As codified, N.J.S.A. 56:8-19 provides that
ny person who suffers any ascertainable loss of moneys or property, real or personal, as a result of the use or employment by another person of any method, act, or practice declared unlawful under this act or the act hereby amended and supplemented may bring an action or assert a counterclaim therefor in any court of competent jurisdiction. In any action under this section the court shall, in addition to any other appropriate legal or equitable relief, award threefold the damages sustained by any person in interest. In all actions under this section, including those brought by the Attorney General, the court shall also award reasonable attorneys' fees, filing fees and reasonable costs of suit.
The 1971 amendment advanced the CFA's purposes by compensating victims for actual losses, punishing wrongdoers through awards of treble damages, and offering an incentive for attorneys to take a case even when only a relatively small loss may be involved. Wanetick v Gateway Mitsubishi, 163 N.J. 484, 490 (2000) (citing Lettenmaier v. Lube Connection, Inc., 162 N.J. 134, 139 (1999)). However, as noted in Meshinsky, supra, 110 N.J. at 473, additional proofs are required for a private cause of action above those imposed on the Attorney General. As a prerequisite to the right to bring a private action, a plaintiff must be able to demonstrate that "'he or she suffered an 'ascertainable loss . . . as a result of' the unlawful conduct.'" Weinberg, supra,
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