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About a month ago we posted on a New Jersey intermediate appellate decision, Hoffman v. Hampshire Labs, 963 A.2d 849 (N.J. Super. A.D. 2009(, that interpreted the “ascertainable loss” requirement of the state’s consumer fraud act (“CFA”) as requiring the purportedly aggrieved consumer to invoke a money-back guarantee before bringing suit. We viewed the “takeaway” from Hoffman as that a plaintiff had to seek a refund (at least where there was such a guarantee) in order to bring suit.
Maybe we shouldn’t go coloring outside the lines. After all, as we posted last year, the New Jersey Supreme Court in Sinclair v. Merck & Co., 948 A.2d 587, 590 (N.J. 2008), held that CFA was subsumed by the state’s product liability act and thus did not provide a separate cause of action.
Anyway, two weeks later, we’ve now discovered (we get sent good news, but not bad news, it seems), the New Jersey Supreme Court held that, generally, a request for a refund is not a prerequisite to bring suit under the CFA:

In theory, there may be circumstances in which requiring a pre-suit demand for relief might be appropriate or in which a consumer’s failure to seek a refund or other remedy in advance of turning to the courts for relief should operate to limit the recovery otherwise available under the CFA. Nevertheless, because the language and the intent of the statute are clear and its purposes are plain, we consider the concerns raised by defendant and by amici to be matters that call for an examination and a weighing of public policy considerations not within the language of the CFA itself. As such, they are for the Legislature, and not for this Court, to entertain.

Bosland v. Warnock Dodge, Inc., ___ A.2d ___, 2009 WL 414336, at *10 (N.J. Feb. 19, 2009). Whether there’s anything left of Hoffman in the limited circumstance of an express money-back guarantee, we don’t know, but this ruling pretty well kills the general proposition that a request for a refund is inherent in the concept of “ascertainable loss.”
Anyway, since our Hoffman post might steer our readers wrong, given subsequent precedent, we felt an obligation to steer them right.
One other thing, though. As we mentioned earlier, the N.J. Supreme Court also took an appeal in the McDarby case, which notoriously features a judge-made exception to the Product Liability Act that the legislature did not see fit to create. We hope the Court, in deciding McDarby, keeps the same of legislative deference in mind when to apply it would gore a plaintiff’s, as opposed to a defendant’s, ox.