On November 7, 2023, the New Jersey Civil Justice Institute (NJCJI) and the United States Chamber of Commerce appeared before the New Jersey Supreme Court as amici in support of the defendant in a consumer class action lawsuit, Robey v. SPARC Group LLC. The plaintiffs alleged that SPARC’s Aeropostale stores in New Jersey falsely advertised goods as being “50%-70% off,” without ever selling those goods at higher prices. They sought to keep the purchased goods and receive three times what they paid as damages under the New Jersey Consumer Fraud Act (CFA). Additionally, they brought a $100-per-violation claim under New Jersey’s Truth-in-Consumer Contract, Warranty, and Notice Act (TCCWNA).
A central issue was whether consumers who agreed to pay $25 for a sweatshirt and received it at that price suffered any “ascertainable loss,” a required element of a consumer fraud claim. NJCJI and the Chamber argued that no such loss occurred since buyers received what they expected. They cited N.J.A.C. § 13:45-9.8(b), which states retailers offering percentage-off discounts for goods below $100 are not required to disclose the basis of the discount.
The Justices expressed difficulty with the ascertainable loss issue during oral arguments, questioning precedential analogies proposed by plaintiff's counsel and considering whether buyers received exactly what they paid for. The Court also examined regulatory interplay concerning TCCWNA claims.
NJCJI anticipates an opinion in the coming months and thanked Jeffrey S. Jacobson of Faegre Drinker Biddle Reath LLP for his representation.
On November 8, 2023, Alex Daniel from NJCJI appeared before the New Jersey Supreme Court as amicus curiae in Padilla v. Young Il An. This case addressed whether owners of vacant commercial lots must maintain deteriorating public sidewalks abutting their property.
In Stewart v. 104 Wallace Street, Inc., 87 N.J. 146 (1981), it was established that commercial property owners could be liable for injuries from deteriorating sidewalks due to their economic benefits from public sidewalks and ability to maintain them.
In Padilla, defendants owned a vacant lot in Camden with no business activities or improvements. The plaintiff slipped on a deteriorating sidewalk abutting this lot and claimed negligence by the defendants for failing to repair it. Both lower courts ruled against imposing liability on vacant property owners.
During oral arguments, questions focused on defining commercial activity for sidewalk liability purposes and insurance coverage availability for vacant properties' owners. The Court showed concern over fairness in imposing duties on landowners without income-generating activities or open access to public use but struggled with delineating liability limits.
Based on these discussions, it appeared likely that NJCJI's position would influence limiting landowners' liability where minimal business activity exists.
