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Thiedemann v. Mercedes-Benz USA.5/18/2005
173 N.J. at 237 (citations omitted). The limiting nature of the requirement allows a private cause of action only to those who can demonstrate a loss attributable to conduct made unlawful by the CFA. Meshinsky, supra, 110 N.J. at 473 (citing Daaleman v. Elizabethtown Gas Co., 77 N.J. 267, 271 (1978)). When last we were asked to ignore the statutory distinction between CFA actions brought by the Attorney General and the actions a private plaintiff may bring, and to abrogate the requirement of an ascertainable loss for a private suit, we declined. See Weinberg, supra, 173 N.J. 250-51 (stating " n effect, the Act permits only the Attorney General to bring actions for purely injunctive relief").
That said, undergirding Weinberg's analysis was the understanding that the prima facie proofs necessary for a private cause of action under the CFA must be applied compatibly with the CFA's remedial nature. See id. at 251. Thus, Weinberg established that in order to proceed with a CFA claim, a private plaintiff only need present a bona fide claim for an ascertainable loss, defined as a loss that is capable of withstanding a motion for summary judgment because it "raises a genuine issue of fact requiring resolution by the factfinder." Id. at 253. Stated differently, a plaintiff may be able to proffer proof of a loss that, although disputed, nonetheless would be sufficient to send the matter to the factfinder. Id. at 251. Although the proof may not be accepted ultimately by the trier of fact for a host of reasons (and, thus, the plaintiff ultimately may not succeed in garnering an award of damages), that possibility does not render the plaintiff without standing to pursue the private CFA cause of action. Ibid. Weinberg held that it is not only the "plaintiff who successfully proves ascertainable loss may have access to the [CFA's] remedies of equitable relief and attorneys' fees." Ibid. (emphasis added).
III.
A.
There is little that illuminates the precise meaning that the Legislature intended in respect of the term "ascertainable loss" in our statute. See Furst, supra, 182 N.J. at 11 (stating that " e neither can ascribe a plain meaning to the term ascertainable loss, nor find legislative history that sheds direct light on those words"). "Ascertain" is defined as "to make (a thing) certain; establish as a certainty; determine with certainty;" and "ascertainable," the adjective, is similarly defined as "capable of being ascertained." Webster's Third New International Dictionary 126 (1981). To give effect to the legislative language describing the requisite loss for private standing under the CFA, and to be consistent with Weinberg, a private plaintiff must produce evidence from which a factfinder could find or infer that the plaintiff suffered an actual loss. At the time of summary judgment that evidence must be sufficient to present a genuine issue for the factfinder.
In cases involving breach of contract or misrepresentation, either out-of-pocket loss or a demonstration of loss in value will suffice to meet the ascertainable loss hurdle and will set the stage for establishing the measure of damages. See, e.g., Furst, supra, 182 N.J. at 13 (applying loss in value to consumer in breach of contract case). That said, a claim of loss in value must be supported by sufficient evidence to get to the factfinder. To raise a genuine dispute about such a fact, the plaintiff must proffer evidence of loss that is not hypothetical or illusory. It must be presented with some certainty demonstrating that it is capable of calculation, although it need not be demonstrated in all its particularity to avoid summary judgment.
The certainty implicit in the concept of an "asce
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