The case concerned an alleged illusory discount. The plaintiffs claimed that a retailer sold clothing at a purportedly discounted price, but that the displayed original price was never offered. The core question for the Supreme Court was whether the plaintiffs suffered an “ascertainable loss” or were “aggrieved”—in other words, was their injury sufficient to state viable causes of action under New Jersey pleading standards? The plaintiffs claim they were deprived of the benefit of the bargain, which would have been receiving an item of higher value, but with an expectation and urgency that the item was being offered a steep discount. The plaintiffs sought to certify a class of consumers asserting claims under the CFA, TCCWNA, and other common law causes of action, but the trial court dismissed the complaint, holding the consumers did not suffer the requisite “ascertainable loss” under the CFA or requisite violation of a “clearly established legal right” under TCCWNA.
The intermediate appellate court reversed the trial court, holding the plaintiffs sufficiently alleged that they were denied the benefit of their bargain because they did not receive the value of the discount that misled them into purchasing the items in the first place. But in its majority decision, the Supreme Court held that the consumers did not suffer an out-of-pocket-loss, nor were they deprived of the benefit of their bargain, hence they had no “ascertainable loss.” Justice Solomon reasoned that the consumers purchased non-defective and conforming goods with no “measurable disparity between the product they reasonably thought they were buying and what they ultimately received.” Because the consumers did not incur any additional costs or receive defective items, the Court held that they failed to allege an “ascertainable loss” because their injury was not “quantifiable and measurable.”
While disclaiming any holding that “ascertainable loss” under the CFA and status as an “aggrieved person” under TCCWNA are coextensive standards, Justice Solomon held that the defect with the plaintiffs’ CFA claim was likewise fatal to their TCCWNA claim. That is, the consumers were not monetarily aggrieved for TCCWNA purposes and, since they did not allege any non-monetary harm, they could not state a TCCWNA claim. The plaintiffs common law claims were dismissed for the same reason.
Finally, the majority held that without an ascertainable loss, the named plaintiffs could not represent a class of similarly situated consumers seeking injunctive relief under the CFA. Justice Solomon reaffirmed that although consumers have a private right of action under the CFA, they must nonetheless suffer an ascertainable loss caused by a defendant’s allegedly unlawful conduct in order to bring a suit in the first place. Notably, the Supreme Court emphasized that while consumers must allege an ascertainable loss to state a viable a claim, the New Jersey Office of the Attorney General is not bound by such a requirement.
In the dissent, Justice Fasciale adopted a diametrically opposed view of the case. Hypothesizing an exaggerated version of the facts to make the alleged losses more tangible (Judge Fasciale expounded on a hypothetical luxury coat being offered at a false 70% discount with a false original price of $1,000), the minority opined that dismissal of the plaintiff’s complaint amounted to “fail[ure] to uphold important and long-standing remedial principles that have guided … [CFA] cases for decades.” While the majority focused on the lack of out-of-pocket losses and conforming nature of the products purchased, the minority honed in on the plaintiff’s expectations, which were to receive products worth approximately $59.95 (the advertised, but false, original price) at a bargain price of $23.98 (the illusory discount price), and opined that the ascertainable loss should be computed as $35.97, representing the difference between the quality of product the plaintiffs thought they were buying versus what they actually received. According to the dissent, this theory was sufficient to allege the element of “ascertainable loss” and survive a motion to dismiss.
The majority’s opinion appears to follow a trend across the country, with courts reigning in legislatively crafted consumer claims. Almost echoing recent Supreme Court of the United States precedent, the majority held that the plaintiffs in Robey lacked an ascertainable loss under the CFA and were not aggrieved under TCCWNA, because their injuries were not both “quantifiable and measurable.” This summation sloganizes an already robust body of case law concerning what constitutes an actionable injury under the CFA and TCCWNA; it also brings to mind the Supreme Court of the United States’ TransUnion LLC v. Ramirez decision from June 25, 2021, in which Justice Brett Kavanaugh, writing for a 5-4 majority, coined a slogan for Article III standing: “no concrete harm, no standing.” Even the dissent authored by Justice Fasciale in Robey appears to follow the same themes mentioned by Justice Clarence Thomas and Justice Elena Kagan in their dissents in Ramirez: “Even assuming that this Court should be in the business of second-guessing private rights, this is a rather odd case to say that Congress went too far. TransUnion’s misconduct here is exactly the sort of thing that has long merited legal redress.”
The main takeaways from Robey are not novel in New Jersey. The Supreme Court largely reaffirmed and clarified existing standards for CFA and TCCWNA claims, as well as certain gatekeeping aspects for bringing consumer class actions. That said, the majority put a finer point on the existing precedent, and plaintiffs seemingly have slightly higher bars to clear than before. Yet, while the plaintiffs’ claims failed to survive a motion to dismiss in this instance, small changes to the allegations could survive a similar motion in the future. A plaintiff may include non-monetary harms to their allegations to sustain their TCCWNA “aggrieved” status, as well as include allegations about the purchased product’s disparate quality to make the lost expectation more tangible and perceptible, rather than relying purely on economic losses, as an attempt to distinguish their claims and side step the Supreme Court’s ruling here. So, while this clearly pro-business decision from the Supreme Court of New Jersey will undoubtedly be cited and relied up by defendants going forward, consumers may still have plenty of arrows left in their quiver to enforce the provisions of the CFA and TCCWNA in private law suits.
