ASSEMBLY, No. 2044

STATE OF NEW JERSEY

217th LEGISLATURE

 

PRE-FILED FOR INTRODUCTION IN THE 2016 SESSION

 

 

Sponsored by:

Assemblyman  REED GUSCIORA

District 15 (Hunterdon and Mercer)

Assemblyman  PARKER SPACE

District 24 (Morris, Sussex and Warren)

Assemblyman  JOSEPH A. LAGANA

District 38 (Bergen and Passaic)

 

Co-Sponsored by:

Assemblywoman Oliver and Assemblyman Wimberly

 

 

 

 

SYNOPSIS

     Eliminates awarding of attorneys' fees, filing fees, and costs of suit for certain technical violations of consumer fraud act.

 

CURRENT VERSION OF TEXT

     Introduced Pending Technical Review by Legislative Counsel.

  

An Act concerning the awarding of attorneys' fees in certain actions and amending P.L.1971, c.247.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    Section 7 of P.L.1971, c.247 (C.56:8-19) is amended to read as follows:

     7.    a.  Any person who suffers any ascertainable loss of moneys or property, real or personal, as a result of the use or employment by another person of any method, act, or practice declared unlawful under this act or the act hereby amended and supplemented may bring an action or assert a counterclaim therefor in any court of competent jurisdiction.  In any action under this section the court shall, in addition to any other appropriate legal or equitable relief, award threefold the damages sustained by any person in interest.  In all actions under this section, including those brought by the Attorney General or a certified county or municipal office of consumer affairs, the court shall also award reasonable attorneys' fees, filing fees and reasonable costs of suit.

     b.    (1) Notwithstanding the provisions of subsection a. of this section, attorneys' fees, filing fees, and reasonable costs of suit shall not be awarded for a technical violation of P.L.1960, c.39 (C.56:8-1 et seq.).

     (2)   For the purposes of this subsection, a "technical violation" means any violation that:

     (a) did not impact the quality, quantity, cost, or value of any product or service provided;

     (b) did not involve any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or knowing concealment, suppression, or omission of any material fact; and

     (c) as a matter of law, did not result in an ascertainable loss to the consumer.

"Technical violation" shall not be construed to include a second or subsequent violation of the same, or any similar, provision of P.L.1960, c.39 (C.56:8-1 et seq.) provided the person has been notified of the original violation and has had reasonable time and opportunity to rectify any subsequent violations of the same or similar nature.

     (3)   Nothing contained in this subsection shall be construed to prevent in any way attorneys' fees, filing fees, and reasonable costs of suit from being awarded in any action under this section brought by the Attorney General or a certified county or municipal office of consumer affairs, including for any violation determined to be a technical violation.

(cf: P.L.1997, c.359, s.1)

 

     2.    This act shall take effect immediately.

 

 

STATEMENT

 

     This bill eliminates the awarding of attorneys' fees, filing fees, and costs of suit for certain victims of technical violations under the consumer fraud act, P.L.1960, c.39 (C.56:8-1 et seq.).

     Under current law, a person who suffers an ascertainable loss of money or property as a result of another's violation of the consumer fraud act is entitled to reasonable attorneys' fees, filing fees, and costs of suit.  Additionally, the State's courts have held that even in cases where a violation is found to be technical, and there were no ascertainable losses, a person may still be entitled to reasonable attorneys' fees, filing fees and reasonable costs of suit.

     This bill specifies that attorneys' fees, filing fees, and costs of suit are not to be awarded for a technical violation of the consumer fraud act.  The bill defines a technical violation as any violation that:

     (1) did not impact the quality, quantity, cost, or value of any

product or service provided;

     (2) did not involve any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or knowing concealment, suppression, or omission of any material fact; and

     (3) as a matter of law, did not result in an ascertainable loss to the consumer.

     A second or subsequent technical violation of the same or similar nature is excluded from the amended bill's provisions, provided the person has been notified of the original violation and has had reasonable time and opportunity to rectify subsequent violations.

     The bill also clarifies that its provisions do not prevent the awarding of attorneys' fees, filing fees, and reasonable costs of suit in any action brought by the Attorney General or a certified county or municipal office of consumer affairs, including those for technical violations.