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Types of New Jersey Fraud Cases

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WHAT IS NEW JERSEY FRAUD?
Every New Jersey fraud essentially consists of one party obtaining an unfair advantage by some act or omission that is unconscientious or a violation of good faith. There are different types of New Jersey fraud. Two of the most common types of New Jersey fraud are common law New Jersey fraud and New Jersey consumer fraud and these are the types of New Jersey fraud discussed in this article.

WHAT IS COMMON LAW NEW JERSEY FRAUD?
“Common law New Jersey fraud” is a term for the type of New Jersey fraud that New Jersey Courts have recognized over time in the courts’ written decisions called “case law. Common law New Jersey fraud occurs when a person:
• represents a past or present fact as true when it is in fact false;
• with the intent to deceive the victim to whom the representation is made;
• the New Jersey fraud victim believes the representation to be true and acts or refrains from acting in justifiable reliance upon the representation; and
• the New Jersey fraud victim suffers damage as a result of the other person’s misconduct.

WHAT IS EQUITABLE NEW JERSEY FRAUD?
“Equitable New Jersey fraud” is different from legal New Jersey fraud because the victim of the New Jersey fraud seeks equitable relief -- relief originating in the doctrine of fairness rather than merely seeking to recover money for misconduct. Equitable New Jersey fraud occurs when a person:
• represents a past or present fact as true when it is in fact false;
• the New Jersey fraud victim believes the representation to be true and acts or refrains from acting in justifiable reliance upon the representation; and
• the New Jersey fraud victim suffers damage as a result of the other person’s misconduct.

WHAT IS NEW JERSEY CONSUMER FRAUD?
Often, a person has the right to rely on representations made by a seller of certain goods or services. New Jersey Consumer Fraud Act prohibits certain sellers of goods and services from committing certain types of conduct. There are three possible ways for a seller of goods or services who is subject to the restrictions of the New Jersey Consumer Fraud Act to violate the New Jersey Consumer Fraud Act. The first type of New Jersey Consumer Fraud Act violation involves affirmative acts – something that a person does voluntarily. Affirmative acts do not have to be physical acts, since they can also be any steps taken voluntarily by the person to advance a plan or design or to accomplish a purpose. Under the New Jersey Consumer Fraud Act, it is unlawful for certain sellers of goods or services to engage in any of the following type of affirmative acts:
• unconscionable commercial practice -- an activity in the public marketplace, which is basically unfair or unjust, which materially departs from standards of good faith, honesty in fact and fair dealing.
• deception – conduct or an advertisement which is misleading to an average consumer to the extent that it is capable of and likely to, mislead an average consumer. It does not matter that, at a later time, it could have been explained to a more knowledgeable and inquisitive consumer, nor need the conduct or advertisement actually have misled the consumer. It is not important that the seller may have acted in good faith. Instead, it is the capacity to mislead that is important.
• New Jersey fraud -- a perversion of the truth, a misstatement or a falsehood communicated to another person and creating the possibility that that other person will be cheated.
• false pretense -- an untruth knowingly expressed by a wrongdoer.
• false promise -- an untrue commitment or pledge, communicated to another person, to create the possibility that that other person will be misled.
• misrepresentation -- a statement made to deceive or mislead. An untrue statement, made about a fact which is important or significant to a sale or advertisement and which is communicated to another person to create the possibility that the other person will be misled.
The second type of New Jersey Consumer Fraud Act violation involves acts of omission – a failure to do something that the law requires be done. Omissions that violate the New Jersey Consumer Fraud Act consist of any of the following:
• knowing concealment of any material fact.
• suppression of any material fact.
• omission of any material fact.
The third type of New Jersey Consumer Fraud Act violation is the violation of a law passed by the New Jersey Legislature or the violation of a regulation adopted by the New Jersey Division of Consumer Affairs. These laws and regulations prohibit certain sellers of goods or services from performing certain kinds of conduct.

The New Jersey Consumer Fraud Act and the common law interpreting it include the following definitions:
• Person -- a human being or his or her legal representative, as well as a partnership, corporation, company, trust, business entity, association as well as his or her agent, employee, salesperson, partner, officer, director, member, stockholder, associate, trustee or beneficiary of a trust.
• Sale -- the transfer of ownership; rental; distribution; offer to sell, rent, or distribute and attempt to sell, rent or distribute, either directly or indirectly.
• Advertisement -- a notice designed to attract public attention. Advertisements may include the following modes of communication -- the attempt, directly or indirectly, by publication, dissemination, solicitation, endorsement, circulation or in any way to induce any person to enter or not enter into an obligation, acquire any title or interest in any merchandise, increase the consumption of any merchandise or make any loan.
• Merchandise -- objects, wares, goods, commodities, services or anything offered directly or indirectly to the public for sale. However, it is important to note that certain types of goods and services are not regulated by the New Jersey Consumer Fraud Act.
• Real estate -- land and if there is a building on it, that building as well.
• Knowingly – awareness that conduct is of a nature that it is practically certain that the conduct will cause a particular result. Therefore, a person acts with knowledge, consciously, intelligently, willfully or intentionally.
• Conceal -- to hide, secrete or withhold something from the knowledge of others or to hide from observation, cover or keep from sight or to prevent discovery of something.
• Concealment – withholding of something which one is bound or has a duty to reveal so that the one entitled to be informed remains ignorant.
• Suppress – to end a thing actually existing, to prohibit or put down or to prevent, subdue or forcibly end something. Suppression is the conscious effort to control or conceal unacceptable impulses, thought, feelings or acts.
• Purposely -- the actor’s conscious object to engage in conduct that is of a certain nature or causes a particular result and the actor is aware of hopes or believes that the attendant circumstances exist.
• Intent -- a design, resolve or determination with which a person acts. It only refers to the state of mind existing when an act is done or omitted.

HOW DO I RECOVER DAMAGES UNDER THE NEW JERSEY CONSUMER FRAUD ACT?
A person who is able to prove that a seller of goods or services committed a violation of the New Jersey Consumer Fraud Act which directly cause of the victim to suffer an ascertainable loss of money or property is entitled to receive an award of triple damages, attorney’s fees and litigation costs. In certain situations, a New Jersey consumer fraud victim may also be entitled to a refund or to cancel a New Jersey fraudulent debt. However, under the New Jersey Consumer Fraud Act, a New Jersey fraud victim is not entitled to recover pain and suffering damages.

WHAT IS NEW JERSEY REAL ESTATE FRAUD?
Consumer fraud occurs in a wide variety of situations involving real estate contracts. The New Jersey Consumer Fraud Act expressly includes real estate transactions within its scope. The New Jersey Consumer Fraud Act explains that it applies to the act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate or with the person’s subsequent performance regardless of whether any person has in fact been misled, deceived or damaged. The New Jersey Consumer Fraud Act is broad enough to include the activities of residential landlords, real estate brokers, real estate agents, real estate New Jersey home developers and the like. In residential real estate purchases, the New Jersey Consumer Fraud Act serves to protect many people in what is the greatest single purchase of their lifetime.

DOES THE NEW JERSEY CONSUMER FRAUD ACT APPLY TO COMMERCIAL REAL ESTATE PURCHASES?
It is unlikely that the purchase of a hotel is covered by the New Jersey Consumer Fraud Act.

DOES THE NEW JERSEY CONSUMER FRAUD ACT APPLY TO RESIDENTIAL APARTMENT RENTALS?
In certain situations, professional landlords may be held liable for consumer fraud. The following are situations where a professional landlord could be found responsible for violating the New Jersey Consumer Fraud Act:
• Using fraudulent practices to deceive a tenant to sign a lease.
• Fraudulently ending an ongoing tenancy.
• Raising a tenant's rent above rates set by applicable municipal rent control ordinances.

DOES THE NEW JERSEY CONSUMER FRAUD ACT APPLY TO HOMEOWNERS WHO SELL THEIR OWN HOME?
If a homeowner sells their own home and they don’t sell real estate frequently to make a profit, the New Jersey Consumer Fraud Act does not apply to the sale.

DOES THE NEW JERSEY CONSUMER FRAUD ACT APPLY TO CONDOMINIUM SALES?
If New Jersey sellers and marketers of condominium units commit fraud, they can be held responsible for violations of the New Jersey Consumer Fraud Act.

DOES THE NEW JERSEY CONSUMER FRAUD ACT APPLY WHEN BANKS SELL REAL ESTATE TO MAKE A PROFIT?
If a bank sells real estate to make a profit, they can be held responsible if they violate the New Jersey Consumer Fraud Act.

DOES THE NEW JERSEY CONSUMER FRAUD ACT APPLY TO REAL ESTATE BROKERS & THEIR EMPLOYEES: The New Jersey Consumer Fraud Act applies to real estate brokers and their employees. Real estate professionals may violate the New Jersey Consumer Fraud Act if they fail to tell a buyer about a defect that they know about but not readily observable to the buyer if the broker intentionally concealed the information intending for the buyer to rely on the concealment and the information is material to the sale. Real estate professionals may violate the New Jersey Consumer Fraud Act if they engage in affirmative misrepresentations or knowingly omit information about the property, even if the buyer hired their own inspector.

In certain situations, real estate professionals can avoid violations of the New Jersey Consumer Fraud Act, such as where they have no actual knowledge that the information they provide is false, misleading or deceptive and they make a reasonable and diligent inquiry to find out if the information they provide is false, misleading or deceptive.

Real estate professionals may violate the New Jersey Consumer Fraud Act when representing New Jersey home builders and New Jersey home developers in New Jersey real estate sales, such as where the real estate professionals give inaccurate information to New Jersey buyers about workmanship or fail to warn New Jersey buyers about certain facts.

NEW JERSEY REAL ESTATE BROKER, REAL ESTATE AGENT & REAL ESTATE SALESPERSON NEW JERSEY CONSUMER FRAUD ACT VIOLATION FAQS
• New Jersey real estate brokers, New Jersey real estate agents and New Jersey real estate salespersons are liable for New Jersey Consumer Fraud Act violations.
• New Jersey Consumer Fraud Act’s application to New Jersey real estate is crucial to public, because for most people, the purchase of home is the greatest single purchase of their lifetime.
• A New Jersey real estate broker, New Jersey real estate agent or New Jersey real estate salesperson may be liable to a buyer for nondisclosure of a defect if it was known to the former yet not readily observable to the buyer.
• To prove such a New Jersey Consumer Fraud Act violation, buyer must show that: (1) the New Jersey real estate broker intentionally concealed the information about the defect; (2) with the intention that buyer would rely on the concealment; & (3) that the information was material to the transaction.
• Independent investigation of real estate by a buyer’s own inspector or of a builder’s qualifications or representation of the buyer by counsel at closing shall not always foreclose a New Jersey Consumer Fraud Act claim.
• New Jersey real estate brokers, New Jersey real estate agents & New Jersey real estate salespeople have faced potential liability for affirmative misrepresentations or omissions even where the New Jersey Consumer Fraud Act claimants conducted an independent investigation of some type or were represented by counsel at closing.

EXAMPLES OF NEW JERSEY CONSUMER FRAUD ACT CASES INVOLVING NEW JERSEY REAL ESTATE BROKERS, REAL ESTATE AGENTS OR REAL ESTATE SALESPEOPLE
• A New Jersey real estate broker representing a builder developer of residential real estate allegedly failing to disclose off-site physical conditions known to the builder-developer and not readily observable by the home buyer which affected the habitability, use, or enjoyment of the property, thereby rendering the property substantially less desirable or valuable to the objectively reasonable buyer.
• The sales agent of a residential real estate developer was liable for the developer’s affirmative misrepresentations to home purchasers where the agent never verified the information provided by the developer and never established a procedure to confirm the veracity of its agent’s representations to prospective home purchasers.
• A New Jersey realtor’s describing an inexperienced builder who had a history of shoddy workmanship as having built hundreds of homes and being one of the best builders in the State who was noted for his attention to detail and craftsmanship and misrepresenting the quality of the homes the builder constructed.
• A New Jersey real estate agent for alleged failure to correct a statement by the seller that there had been no leaks or problems with the roof or ceiling when in fact prior roof repairs were performed to the property.
• New Jersey real estate agent allegedly characterized real estate’s termite infestation as “minimal” while another agent described the house as “riddled” with termites and the first agent allegedly had knowledge of the second agent’s statement. The real estate purchasers hired their own termite inspector but thereafter claimed that the first agent misrepresented the severity of a home’s termite problem.
• A New Jersey real estate broker’s alleged misrepresentation about the neighborhood in which a house is located.
• In a dispute involving responsibility for repair of a dam that has a foundation resting, in part, on two residential properties, responsibility for the dam became an issue in 2004, when the New Jersey Department of Environmental Protection (DEP) directed plaintiffs and one of the defendants to submit for its approval plans to remove or repair and maintain the dam. Plaintiffs brought a New Jersey Consumer Fraud Act claim against their realtors, asserting that until DEP contacted them, they did not know the dam was on their property or that they had any responsibility for it. The realtor unsuccessfully claimed that plaintiffs were unable to “establish that the alleged misrepresentation was a proximate cause of their injury. Their theory is that plaintiffs’ consultation with the attorneys prior to closing is an intervening cause.”

DOES THE NEW JERSEY CONSUMER FRAUD ACT APPLY TO NEW JERSEY HOME BUILDERS & NEW JERSEY HOME DEVELOPERS?
In certain situations, New Jersey home builders and New Jersey home developers may be held responsible for violating the New Jersey Consumer Fraud Act. For example, if a New Jersey home developer takes a deposit to build a new home and never begins construction nor returns the deposit, the developer may be responsible for violating the New Jersey Consumer Fraud Act. But there are also ways for New Jersey home builders and New Jersey home developers to avoid responsibility for New Jersey Consumer Fraud Act violations. For example, if New Jersey home builders and New Jersey home developers follow New Jersey laws about the disclosure of conditions outside the development, the New Jersey home builders and New Jersey home developers could avoid responsibility for consumer fraud.
NEW JERSEY ADVERTISING FRAUD

WHAT IS AN “ADVERTISEMENT” UNDER THE NEW JERSEY CONSUMER FRAUD ACT?
Under the New Jersey Consumer Fraud Act, an “advertisement" is:
• the attempt (such as by a notice designed to attract public attention);
• made directly or indirectly;
• by publication, dissemination, solicitation, indorsement or circulation; or
• in any other way to induce directly or indirectly any person to enter or not enter into any obligation or acquire any title or interest in any merchandise or to increase the consumption thereof or to make any loan.”

ARE THERE LIMITS TO HOLDING PUBLISHERS OF FRAUDULENT ADVERTISEMENTS LIABLE FOR NEW JERSEY CONSUMER FRAUD ACT VIOLATIONS?
There are limits to the types of affirmative misrepresentations that support New Jersey Consumer Fraud
Act Violations. For example, the New Jersey Consumer Fraud Act does not apply to the owner or
publisher of newspapers, magazines, publications or printed matter wherein such advertisement appears,
or to the owner or operator of a radio or television station which disseminates such advertisement
when they have no knowledge of the advertiser’s intent, design or purpose.

WHAT TYPES OF ADVERTISMENTS GENERALLY VIOLATE THE NEW CONSUMER FRAUD ACT?
It is the capacity of an advertisement to mislead, when considered from the standpoint of a reasonable consumer that marks advertisements as violating the New Jersey Consumer Fraud Act. For example, even if every sentence of a particular advertisement is literally true, the advertisement as a whole may be completely misleading if it lacks crucial information or is composed or intentionally printed in a way to mislead consumers. Claims that the language of an advertisement is actually accurate shall not constitute a defense to a New Jersey Consumer Fraud Act claim that, to ordinary readers, the advertisement’s overall impression is misleading and deceptive.

SOME ADVERTISEMENTS SPECIFICALLY VIOLATE THE NEW JERSEY CONSUMER FRAUD ACT
The New Jersey Consumer Fraud Act and its regulations specifically prohibit many types of false
advertising, including advertisements in the following businesses:

• Automotive Sales.
• Employment Services, Personnel Services & Temporary Help Services.
• Halal Food.
• Information Services.
• Menus & Restaurants.
• Prizewinning Sales.

When a business is required to follow the New Jersey Consumer Fraud Act or its regulation’s advertising
requirements and the business fails to do so, such as by omitting information required by the New Jersey
Consumer Fraud Act, the business can be held responsible for a New Jersey Consumer Fraud Act
violation without proof that the business intended to commit consumer fraud. For example, if an
automobile dealer mistakenly fails to include an automobile’s odometer reading in an advertisement for
the automobile’s sale, such conduct violates the New Jersey Consumer Fraud Act.

BAIT AND SWITCH ADVERTISING PROHIBITED BY THE NEW JERSEY CONSUMER FRAUD ACT
“Bait and switch” advertising deceives customers to visit a merchant’s store or to contact the merchant in the mistaken belief that the merchant intends to sell specific merchandise or services at a specific price. The New Jersey Consumer Fraud Act prohibits merchants from advertising merchandise or services as part of a plan or scheme not to sell the item or service as advertised or not to sell it at the advertised price. The following are some examples of bait and switch advertising that violates the New Jersey Consumer Fraud Act:

• a group health insurance plan promised to be a guaranteed-issue policy but the merchant refuses to accept the advertised deductible rate, instead demanding a higher deductible.
• debt relief services that allegedly include stopping sheriff's sales and repossessions but the merchant does not reveal the true nature of its services until after the consumer paid for the services.

ADVERTISEMENTS CONTAINING PRIZE NOTIFICATIONS
If a “prize” is truly a prize, it must strictly be a “gift” rather than something with moneymaking obligations attached to it. A merchant violates the New Jersey Consumer Fraud Act if they notify a person by any means, as part of an advertising plan or scheme, that the person won a prize and requiring the person to do an act, purchase any other item or submit to a sales promotion effort. Examples of prizewinning schemes that violate the New Jersey Consumer Fraud Act include the following:

• a merchant sends a New Jersey consumer a letter claiming they are a "sweepstakes prize winner", enclosing a flyer about the prizes, requiring the consumer to indicate their acceptance by forwarding a service charge in return for the prizes and making the resident an offer to purchase merchandise.
• A merchant offers the "prize" of a free vacation to a destination over a thousand miles away that contains a disclaimer that excludes transportation.

NEW JERSEY DIVISION OF CONSUMER AFFAIRS NEW JERSEY CONSUMER FRAUD ACT ADVERTISING PRACTICES REGULATIONS
The New Jersey Division of Consumer Affairs adopted rules to regulate merchants’ general advertising practices. Those rules contain the following definitions:

• "Advertisement" -- any attempt by an advertiser, other than by use of a price tag,
catalog or any offering for the sale of a motor vehicle subject to the requirements of the New Jersey Administrative Code (specifically, N.J.A.C. 13:45A-26A), to directly or indirectly induce the purchase or rental of merchandise at retail, appearing in any newspaper, magazine, periodical, circular, in-
store or out-of-store sign or other written matter placed before the consuming public, or
in any radio broadcast, television broadcast, electronic medium or delivered to or
through any computer.

• "Advertiser" -- any person as defined by the New Jersey Consumer Fraud Act who, in the ordinary course of business, is engaged in the sale or rental of merchandise at retail and who placed, either directly or through an advertising agency, an advertisement before the public.

• "Catalog" -- a multi-page solicitation in which a seller offers goods for sale or rental for a seasonal or specified period of time, from which consumers can order goods directly without going to the seller's place of business. An advertising circular, distributed through inclusion in a newspaper, representing a seller's partial offering of goods for sale or rental for a period of time not to exceed two weeks, shall not be considered a catalog.

• "Closeout sale" -- a sale in which an advertiser offers for sale at a reduced price items of merchandise remaining at one or more specified locations which the advertiser will not have available for sale within a reasonable period of time after all such items have been sold.

• “Factory outlet" -- an establishment owned by a manufacturer that is used primarily to offer, at retail, the manufacturer's products directly to the consumer for his or her own use and not for resale.

• "Fictitious former price" -- an artificially inflated price for an item or items of merchandise established for the purpose of enabling the advertiser to subsequently offer the item or items at a large reduction.

• "Former price or price range" in a price reduction advertisement -- an advertised price or price range for an item of merchandise that has been offered or sold by the advertiser in his or her trade area or competitors in their trade area.

• "Home appliance" -- any electrical, mechanical or thermal article produced or distributed for sale to a consumer for use in or around a permanent or temporary household or residence including, but not limited to, air conditioners, cameras, computers, dehumidifiers, dishwashers, dryers, electric blankets, electronic games, fans, freezers, motorized kitchen aids, ovens, radios, ranges, refrigerators, stereo equipment, televisions and washers.

• "Merchandise" -- any objects, wares, goods, commodities, services or anything offered directly or indirectly to the public for sale or rental at retail.

• "Multi-tiered pricing" -- a form of offer where the price of merchandise or the extent of a
discount is contingent upon the consumer's merchandise selections, such as the number of units
purchased, the purchase of other merchandise pursuant to the terms of the advertiser's offer, or
the total dollar amount of the consumer's order, for example, "Buy two cans of soda, get a third
can at half price."

• "Percentage-off discount" -- an offer to sell merchandise expressed in terms of a percentage reduction or range of percentage reductions in price, such as "10% off" or "25% to
50% off."

• "Point of display" -- a location within a retail establishment where an item of merchandise is displayed for the purpose of selection by the consumer with the intention of purchase.

• "Point of sale" -- any location in a retail establishment where purchases of merchandise are totaled by a scanner and payment is made by a consumer.

• "Point of sale discount" -- a price reduction which, although it is advertised or posted at the point of display, is automatically applied to reduce the retail price of the merchandise at the time it is scanned for consumer purchase, or a price reduction manually entered through a cash reduction or similar device, then scanned for consumer purchase.

• "Price advertisement" -- any advertisement in which a specific dollar price is stated with regard to specific advertised merchandise.

• "Price reduction advertisement" -- an advertisement which in any way states or suggests directly or indirectly that merchandise is being offered or made available for sale at a price less than that at which it has been routinely sold or offered for sale in the past or at which it will be sold or offered for sale in the future. The following words and terms or their substantial equivalent, when used in any advertisement except when used exclusively as part of the advertiser's corporate, partnership or trade name, shall be deemed to indicate a price reduction advertisement: sale, discount, special savings, price cut, bargain, reduced, prices slashed, clearance, regularly, usually, cut rate, originally, formerly, warehouse or factory clearance, buy one get one free, at cost, below cost, wholesale.

• "Rain check" -- a written statement issued by an advertiser allowing the purchase of designated merchandise at a previously advertised price.

• "Scanner" -- an electronic system that employs a laser bar code reader to retrieve product identity, price and other information stored in computer memory.

• "Targeted discount" -- a price reduction on merchandise which reduction is restricted to customers designated by the advertiser, such as those who possess a card or other device bearing a scanner-readable code issued by the advertiser, a particular type of credit card, or some other device which, when read by the scanner, shall apply the discount at the time of purchase.

• "Trade area" -- that geographical area in which an advertiser solicits or makes a substantial number of sales.

The New Jersey Division of Consumer Affairs’ New Jersey Consumer Fraud Act advertising regulations apply to the following advertisements:

• uttered, issued, printed, disseminated or distributed within the State of New Jersey concerning goods and services advertised as available at locations exclusively within the State of New Jersey.
• issued, printed, disseminated or distributed to any substantial extent within the State of New Jersey concerning goods and services advertised as available at locations within the State of New Jersey and outside the State of New Jersey (except radio and television broadcasts).
• issued, printed, disseminated or distributed primarily within the State of New Jersey concerning goods and services advertised as available at locations exclusively outside the State of New Jersey (except radio and television broadcasts).
• Any radio and television broadcasts uttered, issued, disseminated or distributed primarily within the State of New Jersey and outside the State of New Jersey or at locations exclusively outside the State of New Jersey.

An advertiser, a manufacturer, an advertising agency and the owner or publisher of a newspaper, magazine, periodical, circular, billboard or radio or television station acting on behalf of an advertising seller is an advertiser within the meaning of these regulations when they prepare or place an advertisement for publication. However, such an entity is not liable for a New Jersey Consumer Fraud Act violation when they reasonably rely on data, information or materials supplied by an advertising seller for whom the advertisement is prepared or placed or when the violation is caused by an act, error or omission beyond the entity's control, including but not limited to the advertising seller’s post-publication performance. Even though an advertisement is prepared or placed for publication by another entity, the advertiser on whose behalf the advertisement was placed may be liable for a New Jersey Consumer Fraud Act violation related to the regulations. An advertiser is not liable for a New Jersey Consumer Fraud Act violation related to the regulations if the advertiser shows by a preponderance of evidence that the failure to comply resulted from the actions of persons other than the advertiser which were not or should not have been reasonably anticipated by the advertiser; or that such failure was the result of a labor strike or a natural disaster (fires, floods, earthquakes, etc.).

The following advertising practices by a merchant violate the New Jersey Division of Consumer Affairs’ New Jersey Consumer Fraud Act advertising regulations:

• Failure to maintain and offer for immediate purchase advertised merchandise in a quantity sufficient to meet reasonably anticipated consumer demand. If an advertisement states a specific period of time during which merchandise will be available for sale, a sufficient quantity of such merchandise shall be made available to meet reasonably anticipated consumer demand during that period. If no stated period appears in the advertisement, a sufficient quantity of merchandise shall be made available to meet reasonably anticipated consumer demand during three consecutive business days from the advertisement’s effective date. However, this requirement does not apply to merchandise advertised:
o On an in-store sign only with no corresponding out-of-store sign;
o As being available in a specific quantity; or
o As being available in a "limited supply," pursuant to a "closeout sale" or pursuant to a "clearance sale" if such offering meets the definition of a closeout sale; or if represented as permanently reduced.
• Failure to specifically designate within an advertisement which merchandise possess special or limiting factors as to price, quality, condition or availability. Examples of such failures include:
o Failure to specifically designate which merchandise items are offered below cost, if any amount less than all advertised items are below cost, when a statement of below cost sales is stated in an advertisement;
o The failure to specifically designate which merchandise items, if any, are damaged or in any way less than first quality condition;
o The failure to specifically designate merchandise as floor models, discontinued models or one of a kind, when applicable;
o The failure to clearly designate or describe the retail outlets at which advertised merchandise will or will not be available but that information isn’t required for in-store advertisements.
• The failure to conspicuously post notice of advertised merchandise, on the business premises to which the advertisement applies, in proximity to the advertised merchandise or at all entrances to the business premises. This notice may consist of a copy of the advertisement or take the form of a tag attached to the merchandise or any sign with such terms as "sale," "as advertised," "20% off."
• In any price advertisement in which a home appliance is offered for sale, failure to disclose the:
o manufacturer's name or the merchandise trade name.
o the model or series number.
o such other information as may be necessary to clearly distinguish the advertised item from other similar merchandise produced by the same manufacturer.
• Use of any type, size, location, lighting, illustration, graphic depiction or color resulting in the obscuring of any material fact.
• Use of the terms "Public Notice," "Public Sale" or words or terms of similar meaning in any advertisement offering merchandise for sale, where such sale is not required by court order or by operation of law, other than a sale conducted by an auctioneer on behalf of a non-business entity.
• Describing the advertiser through the use of the terms "warehouse," "factory outlet," "discount," "bargain," "clearance," "liquidators," "unclaimed freight," or other words or terms of similar meaning, whether in the advertiser's corporate, partnership or trade name or otherwise, where such terms do not reflect a bona fide description of the advertiser so described.
• If the advertiser provides a raincheck for an advertised item unavailable for immediate purchase, the failure to:
o Honor or satisfy such raincheck within 60 days of issuance unless an extension of such time period is agreed to by the holder thereof.
o Give written or telephonic notice to the holder thereof when the merchandise is available and hold such merchandise for a reasonable time after giving such notice, for all merchandise with an advertised price greater than $15 per unit.
o Offer a raincheck to all customers who are unable, due to the unavailability thereof, to purchase the advertised merchandise during the period of time during which the merchandise has been advertised as available for sale.
• False or misleading representations of facts concerning the reasons for, existence or amounts of price reductions, the nature of an offering or the quantity of advertised merchandise available for sale.
• Failure to substantiate through documents, records or other written proof any claim made regarding the safety, performance, availability, efficiency, quality or price of the advertised merchandise, nature of the offering or quantity of advertised merchandise available for sale. These records shall be made available upon request for inspection by the New Jersey Division of Consumer Affairs or its designee at the advertiser's regular place of business or central office in New Jersey, or, at the advertiser's option, the New Jersey Division of Consumer Affairs’ designated offices, for a period of 90 days following the advertisement’s effective date.
• Direct or indirect use of a comparison to a suggested retail price, inventory price, invoice price or similar terms that directly or indirectly compare or suggest the comparison between the cost of supply and the price at retail for the advertised merchandise.
• Use of the term "cost," "wholesale" or other similar terms to describe an advertised price where such price is not equal to or less than the price per unit paid by the advertiser to the manufacturer or distributor of the merchandise. In the computation of the price per unit of the advertised merchandise, freight may be included if the advertiser pays for same and is not reimbursed therefore, but handling and all overhead or operating expenses shall be excluded.

When merchants use a fictitious former price, they violate the New Jersey Consumer Fraud Act. A former price or price range or the amount of reduction is fictitious if unable to be substantiated, based upon proof:
• Of a substantial number of sales of the advertised merchandise or comparable merchandise of like grade or quality made within the advertiser's trade area in the regular course of business at any time within the most recent 60 days during which the advertised merchandise was available for sale prior to or which were in fact made in the first 60 days during which the advertised merchandise was available for sale following the advertisement’s effective date;
• That the advertised merchandise or comparable merchandise of like grade or quality, was actively and openly offered for sale at that price within the advertiser's trade area in the regular course of business during at least 28 days of the most recent 90 days before or after the advertisement’s effective date; or
• That the price does not exceed the supplier's cost plus the usual and customary mark-up used by the advertising merchant in the actual sale of the advertised merchandise or comparable merchandise of like grade or quality in the recent regular course of business.

If the former price specifically refers to a time in the remote past during which it was offered, it shall be deemed fictitious unless substantiated pursuant to the regulations. (either New Jersey Administrative Code 13:45A-9.6.(b) 1 or 3). Examples of the use of fictitious pricing include the following:

• Merchant A is a retailer of Brand X fountain pens which cost him $5.00 each. Merchant A’s usual markup is 50 percent over cost (Merchant A’s regular retail price is $7.50). To subsequently offer an unusual "bargain," Merchant A temporarily raises the price of Brand X pens to $10.00 each, realizing that Merchant A will only be able to sell a few pens, if any, at this inflated price. But Merchant A does not care because Merchant A intends to maintain that price for only a few days and "cuts" the artificially inflated price of $10.00 to the usual price--$7.50--at which time Merchant A advertises: "Terrific Bargain: X Pens, Were $10, Now Only $7.50." The advertised "bargain" is not genuine but instead is a fraud.
• Merchant A advertises Brand X pens as having a "Retail Price $15.00, My Price $7.50," when, in fact, only a few small suburban boutique-type stores in the area charge $15.00. All of the larger outlets, like Merchant A's, located in and around the main shopping areas charge approximately $7.50. This advertisement id deceptive because the price charged by the small suburban boutique or specialty stores have no real significance to Merchant A's customers, to whom the advertisement of "Retail Value $15.00" would suggest a prevailing and not merely an isolated and unrepresentative price in the area in which they shop.
• Merchant A advertises Brand X pen as "Comparable Value $15.00" when only a small number of unrepresentative specialty stores in the trade area offer Brand Y, an essentially similar pen, for that price. This is a related form of misleading advertising since the price of the comparable merchandise (Brand Y), which is cited for comparison, is not representative of the price for Brand Y being charged by representative retail outlets in Merchant A's trade area.

UNASSEMBLED MERCHANDISE ADVERTISEMENTS THAT VIOLATE THE NEW JERSEY CONSUMER FRAUD ACT
Merchants advertising unassembled merchandise for sale with pictures or illustrations of the merchandise assembled must explain that the merchandise is being sold unassembled. Otherwise, the merchants violate the New Jersey Consumer Fraud Act.

NEW JERSEY CONSUMER FRAUD ACT VIOLATIONS FOR SELLING MERCHANDISE WITHOUT A TAG OR LABEL
The New Jersey Consumer Fraud Act requires merchants selling or attempting to sell or offer for retail sale merchandise unless its total sale price is plainly marked by a stamp, tag, label or sign that is either affixed to the merchandise or located at the point where the merchandise is offered for sale. For each day that the merchant fails to so mark each group of identical merchandise, the merchant is liable for a separate violation of the New Jersey Consumer Fraud Act.

SOLICITATIONS OF FUNDS OR CONTRIBUTIONS AND REPRESENTATIONS OF SALE OF MERCHANDISE ON BEHALF OF CHARITIES, NONPROFIT ORGANIZATIONS OR HANDICAPPED PERSONS VIOLATING THE NEW JERSEY CONSUMER FRAUD ACT
The New Jersey Consumer Fraud Act prohibits merchants from soliciting funds or contributions or selling or offer for sale any merchandise or services by telephone or otherwise and to misrepresent or falsely lead customers to believe that the merchant is acting as or for any charitable or nonprofit organization or that a contribution to or purchase from the merchant shall substantially benefit handicapped persons.

GOING OUT OF BUSINESS SALES VIOLATING THE NEW JERSEY CONSUMER FRAUD ACT
The New Jersey Consumer Fraud Act prohibits merchants from advertising merchandise for sale as a "going out of business sale" or in similar terms for more than ninety days or to advertise more than one such sale in 360 days, with the latter period beginning on the first day of the sale. Each day that a merchant commits the violation constitutes a separate violation of the New Jersey Consumer Fraud Act.

RESTAURANT ADVERTISING AND FOOD MENU MISREPRESENTATIONS VIOLATING THE NEW JERSEY CONSUMER FRAUD ACT
The New Jersey Consumer Fraud Act prohibits merchants from misrepresenting on any menu or other posted information or advertisement, the identity of any food or food products to its patrons or to eating establishment customers. Under the regulations, “eating establishments” subject to the regulations include the following:
• Restaurants;
• Hotels;
• Cafes;
• Lunch counters; or
• other places where food is regularly prepared and sold for consumption either on or off the premises.

However, the term “eating establishments” exclude retail food stores or grocery stores which don’t have facilities for consuming food or food products on their premises. The following conduct by merchants subject to these regulations violate the New Jersey Consumer Fraud Act:
• descriptions that are false or misleading in any way;
• description omitting information, thereby making the description false or misleading in any way;
• served, sold or distributed under the name of another food or food product; or
• claims to be or is represented as a food or food product for which a definition of identity and standard of quality has been established by custom and usage and it fails to conform to it.

UNIT PRICE DISCLOSURES REQUIRED BY THE NEW JERSEY CONSUMER FRAUD ACT
The Unit Price Disclosure Act (“UPDA”) is a supplement to the New Jersey Consumer Fraud Act regulating merchants’ disclosure of unit prices. The UPDA provides the following definitions:
• "Consumer commodity" -- merchandise, wares, article, product, comestible or commodity of any kind or class produced, distributed or offered for retail sale for consumption by individuals other than at the retail establishment or for use by individuals for purposes of personal care or in the performance of services rendered within the household and which is consumed or expended in the course of such use.
• "Director" -- the Director of the New Jersey Division of Consumer Affairs.
• "Price per measure" -- the retail price of a consumer commodity expressed per such unit of weight, standard measure or standard count as the Director shall designate by regulation.
• "Person" -- any natural person, partnership, corporation or other organization engaged in the sale, display or offering for sale of consumer commodities at retail from one or more retail establishments whose combined total floor area exceeds 4,000 square feet or whose combined total annual gross receipts from the sale of consumer commodities in the preceding year exceed $2 million.

It is a violation of the New Jersey Consumer Fraud Act for merchants to expose or offer for sale at retail any consumer commodities, except those exempted by the Director, unless the commodities are plainly marked by a stamp, tag, label or sign at the point of display with the price per measure of such consumer commodity.

OTHER ADVERTISEMENTS VIOLATING THE NEW JERSEY CONSUMER FRAUD ACT
Aside from the specific regulations and subsections of the New Jersey Consumer Fraud Act that
expressly prohibit certain types of advertising, a consumer may allege that an advertisement violates
Section 2 of the New Jersey Consumer Fraud Act. Under Section 2, there are two different types of New
Jersey Consumer Fraud Act Violations.

The first type of violations involve affirmative acts. Under the New Jersey Consumer Fraud Act, it is unlawful for certain sellers of goods or services to engage in any of the following type of affirmative acts:
• unconscionable commercial practice -- an activity in the public marketplace, which is basically unfair or unjust, which materially departs from standards of good faith, honesty in fact and fair dealing.
• deception – conduct or an advertisement which is misleading to an average consumer to the extent that it is capable of and likely to, mislead an average consumer. It does not matter that, at a later time, it could have been explained to a more knowledgeable and inquisitive consumer, nor need the conduct or advertisement actually have misled the consumer. It is not important that the seller may have acted in good faith. Instead, it is the capacity to mislead that is important.
• fraud -- a perversion of the truth, a misstatement or a falsehood communicated to another person and creating the possibility that that other person will be cheated.
• false pretense -- an untruth knowingly expressed by a wrongdoer.
• false promise -- an untrue commitment or pledge, communicated to another person, to create the possibility that that other person will be misled.
• misrepresentation -- a statement made to deceive or mislead. An untrue statement, made about a fact which is important or significant to a sale or advertisement and which is communicated to another person to create the possibility that the other person will be misled.

The second type of Section 2 violations New Jersey Consumer Fraud Act involves acts of omission – a failure to do something that the law requires be done. Omissions that violate the New Jersey Consumer Fraud Act consist of any of the following:
• knowing concealment of any material fact.
• suppression of any material fact.
• omission of any material fact.

When a consumer claims that a merchant violates the New Jersey Consumer Fraud Act by committing
either an affirmative act or an act of omission, it is usually a factual question if the advertisement is
misleading to the average consumer. Deception or unconscionability in advertising is gauged by the
advertisement’s tendency to mislead the consumer. If the possibility of consumer deception is present in
the advertisement, proof that the consumer was actually misled or deceived is unnecessary. The issue
isn’t how the allegedly deceptive advertisement might be understood by a knowledgeable, sophisticated
consumer but instead, whether the advertisement is misleading to the average consumer. However,
there are some situations where the advertisements may be so obviously deceptive that a court could find
a violation of the New Jersey Consumer Fraud Act.

The following are examples of advertisements violating section 2 of the New Jersey Consumer Fraud Act:

• Advertisement for consumer financial help services where the merchant provided no meaningful assistance but instead charged consumers approximately $200 just for referring the consumers to a bankruptcy attorney, when the consumers could receive such referrals for free from other services.

• An automotive dealership’s using the term “dealer invoice” in an automobile advertisement, when the term had no clear meaning to the average consumer.

• Advertisement describing windows as “insulated aluminum windows” could be found misleading to the average consumer when describing windows with insulated glass and uninsulated aluminum frames.

• Contact lenses advertisement failing to explain that additional professional services not included in the advertised price were required for most customers.

• A cell phone service provider’s advertisement that its wireless service was so reliable that "you
can make your wireless phone your only phone."

• A drugstore chain’s advertisement claiming "the lowest and best prices" on pharmaceuticals and a best-price guarantee to "meet or beat" its competitors' prescription prices, when the chain encouraged its pharmacists to charge more than the chain’s stated retail price to customers that were unlikely to challenge the prices.

NEED HELP WITH YOUR NEW JERSEY CASE?
Handling your New Jersey case wrong from the beginning may only cost you more money and time in the end!! Do it right the first time by seeking legal advice from a competent New Jersey lawyer!
Let the Law Office of Paul DePetris help you with your New Jersey case. Not all New Jersey cases require you to pay expensive legal fees to get legal help.

WHY SHOULD NEW JERSEY PRO SE PLAINTIFFS AND NEW JERSEY PRO SE DEFENDANTS SEEK HELP FROM A NEW JERSEY LAWYER?
Handling your New Jersey case wrong from the beginning may only cost you more money and time in the end!! Do it right the first time by seeking legal advice from a competent New Jersey lawyer!
Many New Jersey pro se plaintiffs and New Jersey pro se defendants make the mistake of not consulting a New Jersey lawyer before filing New Jersey Court papers only to later learn that the New Jersey pro se plaintiffs and New Jersey pro se defendants made serious mistakes that could cause them to lose their New Jersey case. Let the Law Office of Paul DePetris help you with your New Jersey case.

CAN I RELY ON NEW JERSEY COURT PERSONNEL FOR LEGAL ADVICE?
New Jersey Court employees cannot give you “free” legal advice and a New Jersey Court judge may refuse to let you claim that you were right in taking an action (or in deciding not to take action) because you relied on advice from such employees. Most New Jersey Court employees are not trained New Jersey attorneys and therefore, they may not know what advice to give you. Working at the New Jersey Court as a non-judge is not the same as practicing law.

CAN I RELY ON NEW JERSEY COURT FORMS PROVIDED BY THE NEW JERSEY COURT?
The New Jersey Court usually provides certain types of New Jersey Court legal forms to the public and those forms are often very helpful. However, beware relying on New Jersey Court forms provided by the New Jersey Court – the New Jersey Court forms are often deceptively simple, while New Jersey cases often are much more complex than they first appear to be. There is simply no substitute for a competent New Jersey attorney licensed to practice law in New Jersey who has experience handling New Jersey cases. New Jersey Court forms don’t talk and New Jersey Court forms and their directions rarely, if ever, cover every possible situation, set of facts or legal issue that may arise in a New Jersey case. Each New Jersey case has its own particular legal issues and therefore, its own challenges. If you can afford a competent New Jersey attorney, it is best to have the New Jersey attorney prepare your New Jersey Court paperwork for you.

CAN I HANDLE A NEW JERSEY CASE MYSELF?
Many New Jersey pro se plaintiffs and New Jersey pro se defendants can and do successfully handle New Jersey cases, from filing the first paperwork to the collection of a New Jersey Court judgment. However, many other New Jersey pro se plaintiffs and New Jersey pro se defendants also make mistakes that lead to the dismissal of their New Jersey cases or that result in the entry of a New Jersey Court money judgment against them. The greater the money at stake, the greater the reason to consider using the services of a competent attorney licensed to practice law in New Jersey to handle part or all of the New Jersey case. The following are reasons to use an attorney to handle part or all of your New Jersey case:
• New Jersey Court fees often change
• New Jersey Court rules often change
• New Jersey Court employees cannot give you “free” legal advice and a New Jersey Court judge may refuse to let you claim that you were right in taking an action (or in deciding not to take action) because you relied on advice from such employees
• New Jersey Court forms available on websites may not cover every situation you may face in Court
• each New Jersey case has its own particular legal issues and therefore, its own challenges
• it is very common for New Jersey pro se plaintiffs and New Jersey pro se defendants to file inadequate or incorrect New Jersey Court complaints that result in the New Jersey Court complaints or answers to New Jersey Court complaints being rejected by the New Jersey Court or being dismissed by the New Jersey Court after filing and before or after trial because of procedural deficiencies.
• it is not uncommon for judges to get very frustrated by an unrepresented party’s lack of preparation or ignorance of the facts or law of the New Jersey case.
• a Court has the power to punish unprepared New Jersey plaintiffs and New Jersey defendants, such as by throwing their New Jersey case out of Court or limiting what they can present at the New Jersey Court trial.
• New Jersey has many published cases, laws, regulations, Court rules and rules of evidence that can be very tricky to understand and that can be used to prevent you from doing much of what you want to do at the New Jersey Court trial.
• it is very common for Courts to refuse to allow a party to use or refer to documents or items at the New Jersey Court trial that the person themselves never prepared. Often New Jersey plaintiffs and New Jersey defendants stumble into New Jersey Court with a video, photograph, bill or affidavit or other form of written statement, thinking they are going to use it as proof that they lost money or that they are not responsible for someone else’s damages, only to have a New Jersey Court judge tell the New Jersey plaintiffs and New Jersey defendants that it is not going to even consider such items or documents.
• without the proper preparation, items and documents may never be considered by the New Jersey Court. Also, if there are any legal issues to be dealt with at the New Jersey Court trial, you must be prepared to argue them, which may require you to refer to Court rules, evidence rules, laws, regulations or published cases.
• you cannot show up at the New Jersey Court expecting the judge hearing your New Jersey case to explain Court rules, evidence rules, Court procedure or the details of the law that applies to your New Jersey case. The judge hearing your New Jersey case is not permitted to give you legal advice.

It is important to remember that even if you have an attorney, you could lose your New Jersey case. Hiring an attorney to handle part or all of your New Jersey case does not guarantee your success. However, it may provide what is needed to win your New Jersey case or to avoid certain mistakes.

DOES THE LAW OFFICE OF PAUL DEPETRIS HAVE EXPERIENCE HANDLING NEW JERSEY CASES?
Yes. Paul DePetris has performed the following tasks:
• handled New Jersey cases for plaintiffs and defendants across New Jersey, from Bergen County New Jersey to Cumberland County New Jersey, including representations of individuals, small businesses and large corporations.
• settled New Jersey cases for plaintiffs and defendants across New Jersey.
• reviewed many New Jersey Court settlement agreements.
• enforced many New Jersey Court settlement agreements.
• provided New Jersey pro se plaintiffs and New Jersey pro se defendants with New Jersey Court legal advice and prepared New Jersey Court legal forms
• prepared and filed many New Jersey Court complaints
• tried New Jersey Court jury trials
• mediated many New Jersey cases
• argued New Jersey Court motions
• handled New Jersey Court proof hearings
• handled New Jersey Court post judgment collection proceedings

Mr. DePetris has appeared before the Superior Court of New Jersey in the following counties:
• Atlantic County New Jersey Court
• Bergen County New Jersey Court
• Burlington County New Jersey Court
• Camden County New Jersey Court
• Cape May County New Jersey Court
• Cumberland County New Jersey Court
• Essex County New Jersey Court
• Gloucester County New Jersey Court
• Hudson County New Jersey Court
• Mercer County New Jersey Court
• Middlesex County New Jersey Court
• Monmouth County New Jersey Court
• Morris County New Jersey Court
• Ocean County New Jersey Court
• Passaic County New Jersey Court
• Salem County New Jersey Court
• Somerset County New Jersey Court
• Sussex County New Jersey Court
• Union County New Jersey Court
• Warren County New Jersey Court

IN WHAT NEW JERSEY COUNTIES WILL THE LAW OFFICE OF PAUL DEPETRIS HANDLE NEW JERSEY CASES?
The Law Office of Paul DePetris offers to handle and help individuals and businesses with New Jersey Court Claims cases in North, Central and Southern New Jersey, including cases in the following New Jersey counties:
• Atlantic County New Jersey Court
• Bergen County New Jersey Court
• Burlington County New Jersey Court
• Camden County New Jersey Court
• Cape May County New Jersey Court
• Cumberland County New Jersey Court
• Essex County New Jersey Court
• Gloucester County New Jersey Court
• Hudson County New Jersey Court
• Mercer County New Jersey Court
• Middlesex County New Jersey Court
• Monmouth County New Jersey Court
• Morris County New Jersey Court
• Ocean County New Jersey Court
• Passaic County New Jersey Court
• Salem County New Jersey Court
• Somerset County New Jersey Court
• Sussex County New Jersey Court
• Union County New Jersey Court
• Warren County New Jersey Court

WHAT IF I DON’T HAVE ENOUGH MONEY TO HIRE AN ATTORNEY TO HANDLE MY NEW JERSEY CASE FROM BEGINNING TO END?
In many situations, the Law Office of Paul DePetris offers alternatives to handling New Jersey cases for an hourly fee, such as by offering to handle your New Jersey case up to trial for a fixed fee or to help you handle your New Jersey case by yourself. Such flexible methods may allow you to keep the amount legal fees you spend on your New Jersey case to a fixed sum, while providing you the help you need to handle your New Jersey case. For a no obligation phone consultation about what the Firm might be able to do for you, call Mr. DePetris at 609-714-2020 or send an email to Mr. DePetris.
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