MR. CLARK: GOOD MORNING, BRUCE CLARK ON BEHALF OF THE
SPRINGPOINT DEFENDANTS.LESS WITH ME IS STEPHANIE FINE GOLD OF MORGAN LEWIS AND
(INAUDIBLE) OF GENERAL COUNSEL OF SPRINGPOINT. MR.
DANIELS:^ GOOD MORNING YOUR HONOR, ALEX DANIEL ON BEHALF OF NEW JERSEY CIVIL JUSTICE
INSTITUTE. MR. FANNING: GOOD MORNING YOUR HONOR, EDWARD FAN
NING ON BEHALF OF THE NEW JERSEY BUSINESS AND INDUSTRY ASSOCIATION AND THE COMMERCE
INDUSTRY ASSOCIATION OF NEW JERSEY. TOGETHER WITH ME IS MY PARTNER R.
MR. PASTERNACK: GOOD MORNING YOUR HONORS, ERIC PASS TER KNACK
ANDLESS WITH ME IS CHRIS FEAR P. THE COURT: WELCOME COUNSEL. MR.
CLARK. MR. CLARK: GOOD MORNING. THANK YOU FOR YOUR TIME
TODAY. THE DEFENSE HERE ARE NEW JERSEY NONPROFIT CONTINUING CARE RETIREMENT
COMMUNITIES. SO THE CASE INVOLVES CONTRACTS BETWEEN THE CCRCS AND RESIDENTS.
THE QUESTION BEFORE THE COURT IS FOCUSED WHETHER OR NOT THE REFUND PROVISION
CREATED UNDER THE TRUTH IN MENU ACT WAS INTENDED TO APPLY ONLY TO VIOLATIONS
OF THE TRUTH IN MENU ACT INVOLVING FOOD OR WHETHER, AS THE PLAINTIFF
SUGGESTS, THEY APPLY TO ALL CLAIMS OF ANY KIND UNDER THE CONSUMER FRAUD ACT.
THE TRUTH IN MENU ACT SIMPLY PRO HIBTSZ EATING ESTABLISHMENTS
FROM MAKING MISS REPRESENTATIONS CONCERNING FOOD IN THEIR MENUS OR IN THEIR
ADVERTISING. THE TRUTH IN MENU ACT IS 1 OF MANY SUPPLEMENT
STATUTES THAT ARE ADDED TO THE CONSUMER FRAUD ACT THAT PROBTSDZ SPECIFIC CONSISTENT
AND PROVIDE FOR SPECIFIC REMEDIES FOR THAT PARTICULAR CONDUCT.
NOW WE KNOW, CONVENIENTLY, THE INTENDED SCOPE OF THE PRIVATE ACTION FOR A REFUND
UNDER THE TRUTH IN MENU ACT BECAUSE WE KNOW IT'S EXPLICIT PURPOSE AND
ITS ORIGINS. THE GOVERNOR AND THE LEGISLATURE ACTUALLY WENT BACK AND FORTH IN
CRAFTING THE PARTICULAR LANGUAGE THAT WE'RE ADDRESSING TODAY. WHEN THE TRUTH
IN MENU ACT WAS FIRST UNDER DISCUSSION AND ENACTED BY THE LETSCH I SAY LAY
TOUR IT DIDN'T HAVE A REFUND PROVISION. IT DIDN'T HAVE A PRIVATE ACTION FOR A
REFUND. ASSOCIATE JUSTICE ANNE M. PATTERSON: LET ME
JUST ASK YOU A QUESTION ABOUT THE NOMENCLATURE HERE BECAUSE OBVIOUSLY BILLS
SOMETIMES HAVE NAMES AS THEY ARE GOING ALONG AND THOSE NAMES VARY.
NOT CRITICAL TO THE CASE BUT WHAT IS THE SOURCE OF YOUR CALLING THE BILL THAT WAS
ENACTED, WHICH IS NOW PART OF THE C F A, THE TRUTH IN MENU ACT.
MR. CLARK: WELL, THE GOVERNOR CALLED IT THAT IN HIS VETO STATEMENT AND IN GOVERNOR
BURNS PRESS RELEASE FOLLOWING THE SIGN OF THE ACT, HE CALLED IT IT THE
SNOOV BUT IT SNOOV BUT IT WASN'T CODIFIED AS THAT TITLE BECAUSE THERE ARE MANY
SUPPLEMENTS IN THE CFA, THE ACT IMMEDIATELY FOLLOWING WHAT WE'RE CALLING THE
TRUTH IN MENU ACT BEGINNING AT SECTION 8-2.14 THERE'S A SHORT TITLE.
THIS ACT WILL BE KNOWN AS THE REFUND DISCLOSURE ACT. THERE'S NO CODE TITLE.
MR. CLARK: THAT'S ABSOLUTELY RIGHT. IT'S NOT A CODIFIED NAME.
IT'S WHAT THE GOVERNOR CALLS IT AND FRANKLY LIKE MANY STATUTES IN NEW JERSEY
AND OTHER STATES, MANY STATES KIND OF OF PICK UP THE STATUTES. SO
IT'S A SHORTHAND THAT. ASSOCIATE JUSTICE ANNE M. PATTERSON: I'M
NOT SUGGESTING IT'S THAT IMPORTANT. THEY CAN BE CALLED BY THE BILL NUMBER
THAT IT HAD BEFORE IT'S ENACTMENT AND IT CAN ALSO BE REFERRED TO BY STATUTE TRI
PLACE IN THE CFA BUT MY QUESTION WAS REALLY MORE WHERE DID THIS TRUTH
IN MENU ACT COME FROM AND WE'RE TALK ABOUT A PRESS RELEASE. MR.
CLARK: FROM NEW JERSEY IT CAME FROM THE GOVERNOR'S GOVERNOR BURNS VETO STATEMENT
AND FROM HIS PRESS RELEASE. JUDGE DOUGLAS M. FASCIALE: AND
ON THAT POINT CAN WE AGREE THAT 56: 8-2. 11 DOES NOT EXPRESS ITALY ANSWER
THE QUESTION THAT YOU POSE WHEN YOU BEGAN SPEAKING?^ WE HAVE TO LOOK TO EXTRINSIC
EVIDENCE TO INTERPRET THAT QUESTION. MR. CLARK: WELL, I BELIEVE
THE LANGUAGE ITSELF CLEARLY LIMITS THE SCOPE AND IT DOES IT IN A COUPLE
OF DIFFERENT WAYS. IN 2 . 11, THE LANGUAGE SPECIFICALLY SAYS THAT ANY PERSON
VIOLATING THE PROVISIONS OF THE WITHIN ACT SHALL BE LIABLE TO BE -- AND
ALSO IN 2: 8-12, IT SAYS THAT THE PRIVATE ACTION IS ONLY FOR QUOTE THE REFUND
OF MONEY HEREIN PROVIDED FOR. WHEN YOU'RE USING THE PHRASES WITHIN
ACT, HEREIN PROVIDED, DECLARE HEREIN, THOSE ARE WORDS OF LIMITATION.
ASSOCIATE JUSTICE ANNE M. PATTERSON: AND YOU'RE SAYING THAT'S
IN THE PLAIN LANGUAGE OF THE STATUTE, THAT'S NOT LEGISLATIVE HISTORY.
MR. CLARK: THAT'S PLAIN LANGUAGE. WE DON'T EVEN HAVE TO LOOK OUTSIDE BUT
WHEN YOU DO LOOK OUTSIDE AT THE GOVERNOR'S VETO STATEMENT AND HIS PRESS
RELEASE, GOVERNOR BYRNE IDENTIFIED THE PROBLEM HERE. THE LEGISLATURE
WANTED TO ADDRESS MISS REPRESENTATIONS IN FOOD ESTABLISHMENTS. GOVERNOR BYRNE'S
CONCERN WAS LOOK I DON'T WANT THE ATTORNEY GENERAL'S OFFICE OR OTHER
AGENCIES TO HAVE TO POLICEMEN KNEWS IN ALL THE TCHENS IN NEW JERSEY. I HAVE A
DIFFERENT AIDEA AND HE APPROACHED AS A DIFFERENT APPROACH AND THE WAY HE SAID
HIS DID DIFFERENT APPROACH IS I.E. A SELF HELP RAEM DID I WHICH WILL
PROVIDE RESTITUTION TO THE DEFRAUDED CUSTOMER OR PATRON OF THE EATING
ESTABLISHMENTS MUCH THAT WAS THE PROBLEM THAT HE SAW. THE SOLUTION HE
PROPOSED WAS THE EXACT LANGUAGE THAT WE'RE ALL HERE TO DISCUSS WHAT IT MEANT.
AND THE EXACT LANGUAGE AS I REFERRED TO IS SELF REFERENTIAL
TO THE WITHIN ACT, THE VIOLATIONS DECLARED HERE IN AND THAT THE REFUND THE
PRIVATE ACTION FOR A REFUND ONLY APPLIES TO MONEY HEREIN, YOU KNOW, PROVIDED,
VIOLATIONS HEREIN PROVIDED SO I THINK THE LANGUAGE ITSELF IS CLEARLY LIMITED.
IT DOESN'T SAY THIS ACT ALONE. IT DOESN'T SAY THE ACT ALONE. IT SAYS THE
WIN ACT HEREIN ACT. IN ORDER TO CONCLUDE THE REFUND PRIVATE ACTION UNDER THE
TRUTH IN MENU LAW, HOW IT APPLIES TO ALL CFA CLAIMS, YOU'D HAVE TO ESSENTIALLY
IGNORE THE LANGUAGE WITHIN AND HEREIN IN BOTH 2 . 11 AND 2 . 12.
�� IT COULD SAY IT A BIT MORE CLEARLY. IT COULD IDENTIFY IT AS SPECIFIC
PROVISIONS THOSE TERMS THAT YOU'RE HIGHLIGHTING ARE REFERENCES.
MR. CLARK: NO QUESTION IF THEY HAD ACTUALLY CITED THE SECTIONS OF THEIR OWN
ACT VOISZ WHICH IS WHY. MR. CLARK: WHERE IT'S GOING TO BE CODIFIED
WE WOULDN'T BE HERE TODAY. �� WHICH IS WHY THE LEGISLATIVE
HISTORY MAY PROVE TO BE RELEVANT. MR. CLARK: I'M NOT SAYING
IT'S NOT. I THINK THE LEGISLATIVE HISTORY NAILS THE LID ON WHAT IT MEANS.
�� IS THERE ANYTHING IN THE LEGISLATIVE HISTORY AND I WILL ASK
YOUR COLLEAGUE HERE AS WELL THAT SUGGESTS THIS LANGUAGE, THE TRUTH IN MENU PROVISION
AS THE GOVERNOR REFERRED TO IN HIS CONDITIONAL VOE TEED OUT THAT THIS
SECTION IS DESIGNED TO APPLY IN A BROADWAY TO ALL OF THE CFA.
MR. CLARK: NOT AT ALL. THE PLAINTIFFS MAKE REFERENCE TO THE
CUMULATIVE REMEDIES PROVISION, 2 . I THINK IT'S 2 . 13 OR 2 . 14 OF THE ACT. BUT
ALL THAT DOES, AND THAT USES THE WORD THIS ACT. ALL THAT SAYS IS LOOK, IF YOU HAVE
BEEN HARMED BY AN EATING ESTABLISHMENT VIOLATING THE PROVISION OF THE
TRUTH IN MENU LAW, YOU CAN CLAIM A REFUND UNDER THIS SECTION BUT YOU CAN ALSO
CLAIM ANY REMEDY THAT MAY ALREADY EXIST UNDER STATUTES OF COMMON LAW
OF NEW JERSEY. THE PLAINTIFFS KIND OF TRY TO USE THAT BACKWARDS
BY SUGGESTING THAT BECAUSE OF THAT THEY ALSO SOMEHOW MEANT THAT THE REFUND PROVISION
OF THE TRUTH IN MENU ACT SOMEHOW APPLIES BROADLY TO ALL CFA BUT THAT REALLY
READS TOO MUCH INTO THE CUMULATIVE PROVISION ACT. IT READS IT BACKWARDS. THAT'S
NOT WHAT THAT SECTION ACTUALLY SAYS. JUDGE DOUGLAS M. FASCIALE:
IS THERE ANYTHING IN THE TRUTH IN MENU ACT NA OTHERWISE LIMITS THE RIGHTS
AND REMEDIES AVAILABLE UNDER THE CONSUMER FRAUD ACT ITSELF?^. MR.
CLARK: NO, THE ONLY LIMITATION IN THE TRUTH IN MENU LANGUAGE IS IT HAS A CARVE
OUT PROVISION THAT SAYS THAT IT DOESN'T APPLY TO PLACES THAT SELL FOOD
BUT NOT FOR CONSUMPTION ON THE PREMISES SO THE REFUND PROVISION DOESN'T APPLY
TO THAT, BUT CLEARLY THE C F A DOES. I MEAN IF SHOP-RITE OR WHOLE FOODS DOES
SOMETHING THAT'S FRAUDULENT ABOUT THEIR FOOD, THEN THE C F A WOULD APPLY
BUT THE TRUTH IN MENU ACT WOULD NOT. ASSOCIATE JUSTICE ANNE M. PATTERSON:
YOUR ARGUMENT IS THAT THE ACT, THE ENACTMENT ON THAT DATE DEALT WITH
A SPECIFIC THAT IS REFERENCED IN THE GOVERNOR'S STATEMENTS ABOUT THE BUDGET
PROBLEMS AND HOW DIFFICULT IT WOULD BE TO POLICE THIS PARTICULAR PROBLEM.
IT DOESN'T LIMIT ANYBODY'S RIGHTS IN ANY OTHER SECTION OF THE CFA BUT IT ALSO
DOES NOT EXPAND THE REFUND REMEDY BEYOND ITS PARAMETERS. IS THAT THE ESSENCE
OF YOUR ARGUMENT. MR. CLARK: YOU SAID IT BETTER THAN I HAVE
ALREADY. YES, THAT'S EXACTLY OUR ARGUMENT, THAT THE REFUND PROVISION IS LIMITED
TO VIOLATIONS IN THE TRUTH IN MENU LAW HAVING TO DO WITH FOOD ESTABLISHMENTS.
IT HAS NOTHING TO DO WITH THE CLAIMS CONCERNING A NONPROFIT CONTINUING
CARE RETIREMENT CONTRACTS. �� BUT YOU AGREE AS THE CHIEF JUSTICE
POINTED OUT THAT THERE ARE OTHER THAT USES LANGUAGE THAT IS MORE CLEAR
THAN WITHIN OR HEREIN SUCH AS BY SAYING, FOR EXAMPLE, TO EFFECTUATE THE PURPOSES
OF SECTIONS 1 THROUGH 4 OF THIS ACT OR TO EFFECTUATE SECTIONS 4 THROUGH 15
OF THIS AMENDED AND SUPPLEMENTARY ACT. YOU AGREE WITH THAT. MR.
CLARK: I AGREE WITH THAT AND AS YOU ALL KNOW THE LEGISLATURE SEES MORE THAN
1 WAY TO SKIN THE CAT. THEY MAKE REFERENCES TO SECTIONS IN BILLS AND
SECTIONS IN OTHER LAWS IN MANY MANY DIFFERENT WAYS. �� BUT SIMILARLY
THERE ARE OTHER SUPPLEMENTS THAT REFER TO THE CFA AS A WHOLE AS FOR EXAMPLE THE
ACT TO WHICH THIS ACT IS A SUPPLEMENT. MR. CLARK: YES.
�� OR THIS ACT AND THE HERE BY AMENDED AND SUPPLEMENTS AND
SO HERE THEY DON'T DO THAT EITHER, RIGHT. MR. CLARK: THAT'S
ABSOLUTELY RIGHT WHICH I THINK WEIGHS IN FAVOR OF THE POSITION THE DEFENDANTS
ARE TAKING, THAT IN THE SUPPLEMENTS WHETHER THEY MAKE REFERENCE TO THE
ACT, THIS ACT AND THE ACT IT IS AMENDING, THE ACT THIS IS AMENDING CLEARLY
MEANS BROADLY THE CONSUMER FRAUD ACT. THE TRUTH IF MENU ACT
DOESN'T USE LANGUAGE THAT BROAD. OBVIOUSLY HAD THEY BEEN MORE CLEAR, HAD
THEY USED LANGUAGE THAT. �� BUT IN 2.13 THEY COULD HAVE SAID
SOMETHING LIKE THE RIGHTS REMEDIES ARE HERE BY DECLARED CUMULATIVE OF ANY OTHER
RIGHT REMEDY OR PROHIBITION ACCORDED BY THE ACT HERE BY AMENDED AND SUPPLEMENT
ED IF THEY WERE TRYING TO SAY THAT THIS IS SUPPLEMENTARY TO THE C F A
ITSELF AND NOT JUST OTHER COMMON LAW REMEDIES AND OTHER STATUTES. SO WHY DOESN'T
THAT WORK IN FAVOR OF YOUR INTERPRETATION. MR.
CLARK: WELL, THIS COURT HAS INTERPRETED PROVISION AND THE PHRASE THIS ACT AS
APPLYING TO THE BROADLY TO THE CONSUMER FRAUD ACT. �� AND
YOU AGREE WITH THAT, YOU THINK THAT WAS A HOLDING IN THOSE CASES AND THAT 2.13
DOES AMEND THE ENTIRE CFA BUT 2.11 AND 2.12 DO NOT. MR. CLARK:
I THINK THE COURT HAD A FAIR READING OF THE CUMULATIVE REMEDIES PROVISION AS
A PRIME MORE BROADLY AND THE REASON IT SUPPORTS THE DEFENDANT'S POSITION
HERE IS THE AGE OLD RULE THAT WHEN THE LEGISLATURE USES DIFFERENT WORDS IN THE
SAME STATUTE, WE'RE SUPPOSED TO ALL ASSUME THAT THEY MEANT SOMETHING
DIFFERENT. THEY SAID THE ACT IN THE CUMULATIVE REMEDY PROVISION. THEY DIDN'T SAY
THE ACT IN CREATING THE REFUND OR CREATING THE PRIVATE RIGHT FOR A REFUND. THEY
SAID THE WITHIN ACT. WE HAVE TO ASSUME THEY MEANT SOMETHING DIFFERENT
THAN THE ENTIRE CFA THAT THEY MEANT IN THE CUMULATIVE PROVISIONS SECTION.
ASSOCIATE JUSTICE ANNE M. PATTERSON: AND THAT'S LANGUAGE THAT THE LE
GISLATURE HAS USED ELSE WHERE TO DENOTE THE ACT THAT IS NOW IN THE PROCESS OF
OF ENACTING. MR. CLARK: THAT'S CORRECT. AGAIN, I WOULD
ARGUE THAT THOSE ARE CLEARLY WORDS OF LIMITATION THAT YOU WOULD HAVE
TO READ THEM OUT OF THE STATUTE RENDERING THEM MEANINGLESS.
�� I'M SORRY, YOUR LEGISLATIVE HISTORY AURMENTD WAS THAT THE ENTIRE TRUTH IN
MENU ACT APPLIES ONLY TO THE TRUTH IN MENU ACT AND NOT TO THE LARGER CFA
BUT NOW IT SOUNDS LIKE YOU'RE SAYING WELL 1 PART OF IT APPLIES ONLY TO THE TRUTH
IN MENU ACT BUT THEN ANOTHER PART OF IT ACTUALLY DOES APPLY TO THE ENTIRE CFA.
MR. CLARK: NO, MY ARGUMENT, AND IF I WAEPTD CLEAR I APOLOGIZE,
MY ARGUMENT IS THAT THE -- THE CREATIONS OF THE REFUND AND THE PRIVATE RIGHT
OF THE REFUND IS THE PROBLEM THE GOVERNOR BYRNE WAS ADDRESSING BY
PROPOSING THIS LANGUAGE AND THAT THE LEGISLATURE SOLVED BY ENACTING THIS LANGUAGE
SO SPECIFICALLY WE'RE TALKING ABOUT THE REFUND CREATION AND THE REFUND
PRIVATE RIGHT OF ACTION. NOT EVERYTHING. I SET ASIDE THE CUMULATIVE REMEDY
PROVISION. THAT'S NOT -- BECAUSE GOVERNOR BYRNE DIDN'T PROPOSE THAT LANGUAGE.
HE PROPOSED ONLY THE 2 SECONDS HAVING TO DO WITH REFUND AND THE PRIVATE
RIGHT OF ACTION FOR A REFUND AND THAT'S WHAT I'M REFERRING TO. ��
BUT WASN'T THERELESS THAT LEGISLATIVE HISTORY STATEMENT, I THINK IT WAS FROM
1 OF THE ASSEMBLY COMMITTEES THAT SPECIFICALLY SAYS THIS LEGISLATION
IS VERY SPECIFIC AND THE COMMITTEE DOES NOT WANT TO OTHER RIGHTS REMEDIES OR
PROVISIONS BY COMMON LAW OR BY MORE GENERAL STATUTES SO WOULDN'T THAT
SUGGEST THAT YOUR POSITION WOULD BE THE ENTIRE TRUTH IN MENU ACT IS GETTING AT
SOMETHING THAT IS VERY SPECIFIC AND IF NOT ABROGATING OR IN ANY WAY AFFECTING
THE LARGER CFA OR A MORE GENERAL STATUTE. MR. CLARK:
WELL, AGAIN, I THINK THE CUMULATIVE REMEDY SECTION AND THE REFERENCE IN THE
ASSEMBLY SPONSOR STATEMENT, WHAT THEY ARE TRYING TO SAY IS LOOK, WE'RE NOT
SAYING THAT -- FOR CONDUCT THAT FALLS WITHIN THE AMBIT OF THE TRUTH IN MENU
PROVISIONS THAT THE ONLY REMEDY YOU HAVE IS FOR A REFUND. WE THE LEGISLATURE
ARE NOT SAYING THAT. WE ARE SAYING THIS IS A REMEDY YOU HAVE, PLUS YOU HAVE EVERYTHING
ELSE. 33 WANT TO BE VERY CLEAR AND THAT WAS IN THE ORIGINAL ENACTMENT
BEFORE GOVERNOR BYRNE VETOED IT. �� SO THAT WOULD THEN INTERPRET THE
CUMULATIVE REMEDIES ACT TO ONLY APPLIES TO THE VIOLATIONS IN THE TRUTH
IN MENU ACT AND NOT TO OTHER CFAs THAT HAVE TO DO WITH TRAUNTSZ, FOOD OR MENUS.
THE COURT CLERK:^ THIS COURT HAS ALREADY INTERPRETED IT OTHER
WISE THAT LANGUAGE APPLYING TO MORE BROADLY TO THE ENTIRE ACT AND I DON'T THINK
DISPUTE THAT TODAY. �� YOU'RE REFERRING TO WHAT, WITH THAT
ANSWER?^ AM LET TOW CITES. (VOICES OVERLAP.
JUDGE DOUGLAS M. FASCIALE: SUN CHEMICAL. MR. CLARK: YES, THE SUN
CHEMICAL CASE WHERE THEY ARE TALKING ABOUT THE PRODUCT LIABILITY ACT AND
THE C F A NOT BEING MUTUALLY ACCIDENT CLUSZIVE AND THEY RELIED ON THE CUMULATIVE
PROVISION ACT SECTION OF THIS ACT ASCRIBING HOW BROADLY THE C F A WAS SUPPOSED
TO BE. �� COME BACK TO WHAT I THOUGHT WAS A FRIENDLY QUESTION
FROM JUSTICE RAGE WEINER APARTMENT TER. SHE READ TO YOU. THERE'S A SENTENCE BEFORE
THAT SAYS A NEW SECTION 3 WAS ADDED TO PROVIDE THAT THE RIGHTS, REMEDIES
AND PROHIBITIONS ACCORDED BY THE BILL, THE TRUTH AND MENU PROVISION ARE IN ADDITION
TO A CUMULATIVE OF ANY OTHER RIGHT, REMEDY OR PROHIBITION ACCORDED BY
COMMON LAW OR STATUTES. DOES THAT SUGGEST. MR. CLARK: I WOULD ARGUE
THAT THAT WAS MEANT TO APPLY JUST TO THE TRUTH IN MENU ACT BUT I'M NOT
CHALLENGING THE COURT'S PRIOR INTERPRETATION OF OF THAT LANGUAGE.
�� I UNDERSTAND. THAT'S AN UNCOMFORTABLE SPOT FOR YOU TO BE IN R.
ASSOCIATE JUSTICE ANNE M. PATTERSON: THAT'S WHY YOU'RE USING LATIN BECAUSE YOU'RE
ASSUMING, YOU DON'T KNOW WHAT YOU'RE SAYING. MR. CLARK:
BUT IF I MAY, THERE'SLESS A STRUCTURAL EVIDENCE OF THE LIMITATIONS OF THIS.
AND YOU WERE ASKING ABOUT THE OTHER SUPPLEMENTS TO THE C F A. I WILL
GIVE YOU AN EXAMPLE THAT WE MENTIONED IN OUR BRIEF. THERE'S A PARTICULAR SUPPLEMENT
THAT PROBTSZ PEOPLE FROM SENDING UNSOLICITED ADVERTISEMENTS THROUGH
FAX MACHINES. I DIDN'T KNOW THAT WAS A PROBLEM BUT THE LEGISLATURE ADDRESSED IT.
AND THEY PROVIDED FOR MINIMUM DAMAGES OF 500 $ EACH TIME THAT HAPPENS. AND IT
REFERS TO THE VIOLATION OF THIS ACT IN THAT BUT AT THE SAME TIME NO
1 WOULD SUGGEST THAT EVERY CFA PLAINTIFF IN ADDITION TO ATTORNEY FEES ALSO GETS
500 $ PER VIOLATION. YOU DON'T READ EACH OF THE SUPPLEMENTS AS SOMEHOW
EXPANDING TO ALL CFA CLAIMANTS. ASSOCIATE JUSTICE ANNE M. PATTERSON:
SO YOUR VIEW OF THE 213 ISSUE IS LEAVING ASIDE THE COURT MAY IN A DIFFERENT
CONTEXT VIEWED IT, THE LEGISLATURE WAS CONCERNED THAT THE REFUND NOT BE CONSIDERED
TO BE THE ONLY REMEDY AND THAT DAMAGES AND ATTORNEY'S FEE AND SO FORTH
COULD BE PART OF THE REMEDY UNDER THE GENERAL CFA IN M ADD DIG TO THE REFUND
THAT WAS THE WHOLE BALLGAME. MR. CLARK: ABSOLUTELY. IF A
RESTAURANT DOES SOMETHING THAT IS FRAUDULENT IN SOME WAY YOU CAN SUE
THEM FOR COMMON LAW FRAUD. YOU CAN SUE THEM UNDER THE C F A. YOU CAN SUE THEM
UNDER THE TRUTH LAWS. WHATEVER YOU CAN THINK YOU CAN GO AFTER THEM FOR. THEY WERE
CONCERNED ABOUT LIMITING PATRONS OF EATING ESTABLISHMENTS AND THE
REMEDIES THEY MIGHT HAD. THAT'S WHAT THEY ARE CONCERNED ABOUT.
ASSOCIATE JUSTICE ANNE M. PATTERSON: BUT YOUR CONTENTION IS NO MATTER HOW THAT
PROVISION MAY HAVE BEEN VIEWED AS HAVING A BROADER REACH, THERE IS NOTHING
IN EITHER THE STATUTORY LANGUAGE OR THE LEGISLATIVE HISTORY THAT SUGGESTS THAT
THE REFUND REMEDY GOES BEYOND THE PARAMETERS OF THIS RESTAURANT ISSUE
THAT WAS BEING ADDRESSED. MR. CLARK: ABSOLUTELY CORRECT. LEGISLATIVE
HISTORY AND THE PLAIN LANGUAGE CLEARLY INDICATE A MUCH MORE LIMITED
SCOPE OF THE REFUND AND THE PRIVATE RIGHT OF ACTION FOR A REFUND.
�� AND YOU GET THERE BY CHARACTERIZING THIS COURT'S STATEMENTS TO THE CONTRARY
IN LEM MALETTO WEINBERG AND DUGAN AS DICTA AND NOT PART OF THE HOLDING OF
THOSE 3 CASES, CORRECT. MR. CLARK: THAT IS CORRECT AND TO ADDRESS
THAT SPECIFICALLY THE -- I LEAVE IT TO THE COURT TO DECIDE WHAT THAT
LANGUAGE IN WEINBERG AND DUGAN MEANS. YOU KNOW BETTER THAN I DO WHAT THE COURT
INTENDED FROM THAT. I READ IT AS AMBIGUOUS BECAUSE WHAT THE
THE LANGUAGE SAYS IS THAT THE ATTORNEY GENERAL CAN ENFORCE THIS.LESS,
THERE'S A PRIVATE ACTION FOR A REFUND AND THEN IT CITES THE PROVISIONS OF THE
TRUTH IN MENU ACT AND FOR TRIPLE DAMAGES AND THEN IT CITES IS THE PROVISION
FOR UNFAIR TRADE PRACTICES OF 8 . 2. I THINK THE BETTER READING OF
THAT LANGUAGE, THE FAIRER READING OF THAT LANGUAGE IS WHAT THE THE COURT
MEANT WAS THAT IF YOU FALL WITHIN THE PARAMETERS OF THE MENU ACT YOU GET A REFUND.
IF YOU FALL WITHIN THE PARAMETERS -- OTHERWISE, YOU GET TO CLAIM TRIPLE
DAMAGE AND ATTORNEYS FEES AS WELL. THE TRIAL JUDGE INTERPRETED THAT
LANGUAGE IN A MORE NARROW WAY. INTERPRETED IT TO MEAN THAT THIS
COURT WAS SAYING THAT A REFUND AND TRIPLE DAMAGES ARE SAME IN ANY PRIVATE RIGHT
OF ACTION UNDER ANY CFA CLAIM. ASSOCIATE JUSTICE ANNE M.
PATTERSON: AND THERE'S NO CASE BY THIS COURT OR BY THE APPELLATE DIVISION
AWARDING A REFUND UNDER THIS PROVISION OUTSIDE OF THE RESTAURANT CONTEXT.
MR. CLARK: THAT'S CORRECT. ASSOCIATE JUSTICE ANNE M. PATTERSON:
BECAUSE THIS HAD DUGAN AND THE OTHER 2 CASES HAD NOTHING TO DO WITH
THAT?^. MR. CLARK: THE ISSUE THAT WE'RE TALKING ABOUT TODAY
IS THIS IS THE FIRST TIME IT'S EVER BEEN LITIGATED BEFORE THIS COURT AND WEINBERG
AND DUGAN, THIS ISSUE HAD NOTHING TO DO WITH THE ISSUES BEFORE THE COURT.
THEY WEREN'T BRIEFED. THEY WERE THEY WEREN'T ANALYZED. THEY WEREN'T ADDRESSED.
SO I WOULD ARGUE THAT IN THAT SENTENCE THAT THE TRIAL COURT RELIED ON IT WAS
UNNECESSARY TO THE THE DECISION. IF YOU REMOVE THAT SENTENCE COMPLETE
LY IT WOULDN'T CHANGE THE OUTCOME OF ANY OF THOSE CASES. IT IS NONBINDING DICTA.
THE ONLY OTHER WAY THIS COURT CAN TAKE LANGUAGE THAT ISN'T
ESSENTIAL TO A RULING IN THE CASE AND MAKE IT BINDING IS IF IT'S DECLARES THAT
THE LANGUAGE IS MEANT TO PROVIDE GUIDANCE FOR FUTURE CONDUCT AND THE
COURT KNOWS HOW TO SAY THAT WHEN IT WANTS TO AND IT DIDN'T SAY THAT ANY OF THESE
3 CASES. THIS IS NOT BINDING PRECEDENT. �� WOULD THAT ALSO
BE THE THE CASE IN THE STATEMENT ABOUT 2 . 13?^. MR. CLARK: THE
COURT HAS SPECIFICALLY RULED ON THAT IN USING THAT LANGUAGE TO JUXTAPOSE THE C
F A AND THE PRODUCT LIABILITY ACT. I THINK THAT THAT HORSE HAS LEFT
THE BARN. �� SO YOU'RE SAYING THAT IT'S PART OF THE HOLDING
AS TO 2 . 13 BOTH LEM LATD TOW AND SUN CHEMICAL BUT IT'S NOT PART OF THE HOLDING
AS TO 2 . 11 AND 2 . 12 IN LEM OR DUGAN. MR. CLARK: IT WAS
NOT PART OF THAT. THE TRUTH IN MENU PROVISIONS WEREN'T REALLY AN ISSUE. IT
WAS AN ISOLATED STATEMENT, KIND OF A BACKGROUND STATEMENT MADE IN THOSE 3 CASES.
�� IT'S ACTUALLY MADE IN THE FIRST CASE AND THEN JUST COPIED
OVER IN THE NEXT 2. MR. CLARK: YES, COPIED WITHOUT DISCUSSION.
�� AND THE WAY IT'S MADE IN THE FIRST CASE IS PART OF A GENERAL
DESCRIPTION. MR. CLARK: ABSOLUTELY. IT WAS BACKGROUND
TALKING GENERALLY ABOUT THE CFA, NOT ABOUT ANYTHING SPECIFIC TO THE LITIGATION
BEFORE THE COURT. ASSOCIATE JUSTICE LEE A. SOLOMON: EVEN MORE
THAN THAT, LEM LATD TOW AND SUN CHEMICAL WERE DEALING WITH HOW THE C F A
SUPPLEMENTS OTHER LAWS, OTHER STATUTES, UNDER COMMON LAW, NOT DIRECTLY RELATED
TO THE CFA. THEY WERE TOTALLY SEPARATE STATUTES DEALING WITH TOTALLY
SEPARATE KINDS OF CLAIMS. MR. CLARK: IN THOSE OTHER CASES, YES.
ASSOCIATE JUSTICE LEE A. SOLOMON: I'M JUST TALKING ABOUT
LEM LAT TOW AND SUN CHEMICAL. MR. CLARK: YES, THAT WAS PURELY A QUESTION
OF THE SCOPE OF THE CFA. ASSOCIATE JUSTICE LEE A. SOLOMON:
AS A BROAD STATUTE WHEN YOU COMPARE. MR. CLARK: DOES IT
APPLY TO THESE KIND OF FINANCIAL SERVICES SFLOOM WHICH ARE UNDER A TOTALLY
SEPARATE STATUTE AND. TOTALLY SEPARATE STATUTE, LIST OF OF RIGHTS AND LISZ
OF RECOMMEND DISHAD ALSO THEY BOTH REFERRED TO THE COMMON LAW.
MR. CLARK: ABSOLUTELY. AGAIN THE REFUND PROVISION WASN'T AN ISSUE. PRIVATE
RIGHT FOR REFUND WASN'T AN ISSUE. FOOD WASN'T AN ISSUE IN ANY OF THOSE
3 CASES. THE TRIAL COURT DECIDED THAT WAS CONTROLLING DICTA
AND I BELIEVE THAT WAS ERRONEOUS. AND THE PLAINTIFFS PIGGYBACK ON
THAT WHEN THEY MAKE AN ARGUMENT ABOUT LEGISLATION FOR AGO WHICH YES, SIR
SENSE. WELL, YOU KNOW, THEY ARE SAYING WELL THE LEGISLATURE SEEING LEM LAY TOW
AND THE OTHER CASES THEY COULD HAVE DONE SOMETHING TO CHANGE IT BUT IT WASN'T
A RULING IN THOSE CASES. THERE IS NO STATUTORY INTERPRETATION THAT THE LEGISLATURE
AGO WHICH YES, SIR IN MERE DICTA. IF IT HAD BEEN A RULING, IT MIGHT APPLY
BUT IT JUST DOESN'T APPLY HERE. AND IF I CAN JUST TALK A LITTLE BIT
MORE ABOUT THE STRUCTURAL ISSUES. THE TRUTH IN MENU ACT WAS THE FIRST
OF 4 DIFFERENT SUPPLEMENTS THE C F A THAT PROVIDE FOR A REFUND. IT WAS THE FIRST
TO PROVIDE A REFUND AS A REMEDY. THE SUBSEQUENT 3 PROVIDE A
REFUND AS WELL. IF THE REFUND PRIVATE ACTION APPLIED TO THE CFA IN GENERAL
THERE WOULD NEVER HAVE BEEN A NEED FOR THE LEGISLATURE TO ADOPT A PRIVATE REFUND
FOR ALL THESE SUBSEQUENT SUPPLEMENTAL ACTS SNOOVM IN FACT, IN THOSE
SUBSEQUENT ENACTMENTS NOBODY EVER SAID WAIT A MINUTE WHY ARE WE EVEN DOING THIS
BECAUSE IT'S GOING TO END UP CON A FUSING BECAUSE THE REFUND APPLIES TO THE
WHOLE CFA. MR. CLARK: RIGHT, IF IT WAS ALREADY THERE THEY
WOULDN'T EVEN NEED TO DO IT. ASSOCIATE JUSTICE ANNE M. PATTERSON:
SO IS IT FAIR TO STATE THAT IN THE LEGISLATIVE HISTORY AND IN CASE LAW
THE FIRST TIME THIS CONTENTION IS BEING MADE ABOUT THE ENTIRE CFA HAVING AN ADDITION
TO TRIPLE DAMAGES AND ATTORNEYS FEES AND COSTS AND THE OTHER RECOMMEND
DISTHAT ARE GENERALLY AVAILABLE HAS A REFUND PROVISION IS IN THIS CASE.
MR. CLARK: YES. YES. ALL -- WELL THE APPELLATE DIVISION AND THE
TRIAL COURTS THAT HAVE ACTUALLY LOOKED AT THE LEGISLATIVE HISTORY, LOOKED
AT THE STATUTE TRI LANGUAGE HAVE ALL RULED THAT THE REFUND PRIVATE RIGHT OF ACTION
IS LIMITED TO VIOLATIONS OF TRUTH IN MENU ACT. THE TRIAL
COURTS THAT HAVE GONE THE OTHER WAY AND SAID IT APPLIES TO THE ENTIRE CFA DIDN'T
DO THE ANALYSIS. DIDN'T HAVE THE BRIEFINGS THAT YOU HAVE HERE TODAY
EXPLAINING THE LEGISLATIVE HISTORY AND THE TRUR AND I SHOULD NOTELESS, TO SAY
THAT THE REFUND PROVISION APPLIES TO THE CFA, THAT WOULD BE A REVOLUTIONARY
CHAFRNL IN THE CONSUMER FRAUD ACT. I MEAN 1 OF THE FUNDAMENTAL PRECEPTSES
OF THE CONSUMER FRAUD ACT HAS ALWAYS BEEN THAT IF YOU HAVE A PRIVATE RIGHT OF
ACTION YOU HAVE TO SHOW AN ASCERTAINABLE LOSS CAUSED BY THE VIOLATION.
THE REFUND DOESN'T -- ISN'T LIMITED TO -- IT'S A REFUND OF ALL MONIES PAID PER
SE. IF IF ALL CONSUMER FRAUD CLAIMANTS CAN NOW SAY, YOU WOULD HAVE TO GIVE
ME BACK ALL OF THE MONEY I EVER PAID YOU, THAT'S WITHOUT HAVING TO SHOW -- THAT'S
THE ASCERTAINABLE LOSS, THAT'S A MASSIVE CHANGE IN THE CONSUMER FRAUD ACT.
�� ON THAT ISSUE, CAN YOU TELL US THE PROXIMATE AMOUNT OF
MONTHLY CHARGES, EITHER IN 2009 OR TODAY?^. MR. CLARK: FOR
ELDER CARE?^ VOISZ YES. FOR SOMEONE WHO LIVED IN YOUR KRIENTSDZ'S FACILITY.
MR. CLARK: WELL, I COOPERATE ACTUALLY TELL YOU BECAUSE IT
VARIES DEPENDING ON THE UNIT THEY ARE IN AND WHICH OF THE UNITS THEY ARE IN.
I'M BALLPARKING SOMETHING IN THE NEIGHBORHOOD OF 2500 SDSZ. COUNSEL IS
NODDING YES. �� PER MONTH. MR. CLARK: THAT'S
THE MONTHLY FEE. THIS LAWSUIT INVOLVES A PARTIAL REFUND OF THE ENTRANCE FEE
BUT LET'S LOOK , JUST AS AN EXAMPLE, YEARS AGO I WAS A MEMBER OF A CLASS
ACTION AGAINST BARBERRY. I DON'T KNOW. MAYBE SOME OF YOU WERE TOO AND MY
RECOLLECTION IS THAT THE ALLEGATION WAS WE WERE OVER CHARGEDED BY 15 $ FOR
SOMETHING. MAYBE THE GIANT BOOKS. AND. ASSOCIATE JUSTICE ANNE M. PATTERSON:
MR. CLARK YOU'RE DATING YOURSELF AND SOME OF US IN THE PROCESS.
ASSOCIATE JUSTICE LEE A. SOLOMON: NOT ME, NO. ��
IF IF YOU'RE GOING TO ARGUE THAT OUR BAR ADMISSIONS ARE SUSPECT (LAUGHTER).
MR. CLARK: WELL, MY RECOLLECTION IT WAS SOMETHING LIKE A
15 $ OVER CHARGE THAT WAS IN ISSUE IN THAT PARTICULAR CASE. IF THE REFUND PROVISION
APPLIED TO A CASE LIKE THAT, I'D GET BACK THE $2,000 THAT I PAID FOR
BARBERRY. BACK THEN MY FIRM DIDN'T PAY FOR IT RATHER THAN THE $15.
ASSOCIATE JUSTICE ANNE M. PATTERSON: AND YOU DIDN'T ARGUE THAT.
MR. CLARK: I DIDN'T?^. ASSOCIATE JUSTICE ANNE M. PATTERSON: ARGUE
AGAINST BARBERRY. MR. CLARK: AT THE TIME, NO. I WAS JUST
A LITIGANT. AN UNNAMED PLAINTIFF. �� ANYTHING ELSE YOU WOULD
LIKE TO ADD TO YOUR PRESENTATION?^. THE COURT CLERK:^ YES,
THE 1 OTHER POINT I JUST WANTED TO MAKE QUICKLY IS THAT IF THE COURT DECIDES
THAT SOMEHOW THE REFUNDS DOES APPLY BROADLY, WE'RE ASKING THAT YOU ALSO ADD AS
GUIDANCE AN EMPHASIS THAT THE LANGUAGE OF THE CFA REFUND REQUIRES IT LIMITED
TO MONIES MADE BY MEANS OF THE VIOLATION OF THE ACT, NOT REFUND OF
EVERYTHING. ASSOCIATE JUSTICE ANNE M. PATTERSON: JUST, YOUR
VIEW OF THE REMEDIES POTENTIALLY AVAILABLE TO THIS CLASS IN TERMS OF ASCERTAINABLE
LOSS WOULD BE THE DIFFERENCE -- WELL, WHAT IS YOUR CHARACTERIZATION OF
WHAT -- I'M NOT ASKING TO CONCEDE PRODUCT LIABILITY. MR. CLARK:
CONSUMER FRAUD ACT CLAIM, I THINK THE PLAINTIFFS THEORY IS THAT THE ASCERTAINABLE
LOSS AS A RESULT OF AN ISSUE ABOUT THE LANGUAGE '{^}OF THE REFUND PROVISION
MEANS THAT THE DIFFERENCE BETWEEN THE REFUND OF A RESIDENT GOT VERSUS THE REFUND
THE RESIDENT THIS THEY SHOULD HAVE GOTTEN IS THE MEASURE DAMAGE, TRAVEL
AND ATTORNEYS FEES. WHAT THEY ARE CLAIMING USE THE TRUTH IN MENU
REFUND PROVISION IS ALL MONEY EVER PAID BY A RESIDENT. 100 PERCENT OF THE
ENTRANCE FEE. 100 PERCENT OF ALL THE MONTHLY SERVES FEE CHARGED FOR MANY YEARS,
100 PERCENT OF ALL THE FEES AND CHARGES THAT THE RESIDENT MAY HAVE PAID
TO THE DEFENDANTS. ASSOCIATE JUSTICE ANNE M. PATTERSON: SO UNDER
THE THEORY, I DON'T KNOW THE PRECISE NUMBERS BUT PERHAPS THE ASCERTAINABLE LOSS
WOULD BE 3,000 OR 5000 OR MAYBE $10,000. I DON'T KNOW THE ANSWER TO THAT BUT
THEY WOULD GET BACK POTENTIALLY A MILLION DOLLARS. MR.
CLARK: MILLIONS. ASSOCIATE JUSTICE ANNE M. PATTERSON: FROM
SOMEBODY -- MR. CLARK: THE MAGNITUDE OF DIFFERENCE IS STUNNING
R. �� YOU'RE JUST UNDERSCORING THE LANGUAGE IN 211
ABOUT MONIES ACQUIRED SNELL. MR. CLARK: YES VOISZ IS THE ISSUE THAT
YOU'RE ASKING THE COURT TO ADDRESS, THOUGH, PART OF THE PROCEEDING THAT
BRINGS US HERE?^. MR. CLARK: NO. NO. MY CONCERN IS GOING BACK AND
NOT BEING ABLE TO -- MAKING SURE THAT THERE IS A CAUSATION REQUIREMENT AND MAKING
SURE EVERYONE UNDERSTAND THAT THERE'S A CAUSATION ISSUE VOISZ YOU WANT
US TO GET AHEAD OF THE TRIAL COURT N THAT 1. MR. CLARK: YES. THANK
YOU FOR YOUR TIME. ASSOCIATE JUSTICE ANNE M. PATTERSON: YOU'RE
ALSO ARGUING DIS PROPORTIONALITY AS WELL. MR. CLARK: ABSOLUTELY.
�� THANK YOU COUNSEL. MR. DANIELS. MR. DANIEL:
GOOD MORNING AND MAY IT PLEASE THE COURT. THE NEW JERSEY CIVIL JUSTICE INSTITUTE
RESPECTFULLY ASKS THE COURT TO REVERSE TRIAL COURT'S DECISION BELOW
AND HOLD THAT SECTION 211 OF THE TRUTH IN MENUS ACT DOES NOT CREATE A GENERALLY APPLICABLE REMEDY FOR ALL CLAIMS UNDER THE CONSUMER FRAUD ACT HERE IN
OUR STATE'S LEGISLATURE CLEARLY INTENDED SECTION 211 TO APPLY IT A VERY
SPECIFIC CATEGORY OF CONSUMER FRAUD, NAMELY SPECIFIC ACTS IN MISS NAMING OR
OTHERWISE MISLEADING COMMERCE AS THE IDENTITY OF OF FOOD IN RESTAURANT MENUS.
NOW, WE WISH TO POINT THE COURT TO 3 VERY NARROW SPECIFIC
ARGUMENTS AS TO WHY INTERPRETING 211 IN SUCH AN ACCIDENT PANSIVE WAY IS IMPROPER.
FIRST, THE CASES OBVIOUSLY THAT PLAINTIFF RELIES ON IN THIS
MATTER, LAMB LAY TOW, WEINBERG AND DUGAN, ALTHOUGH THEY DO REFERENCE SECTION
211 AND ALSO SECTION 213 AS PART OF A GENERAL HISTORY OF THE CONSUMER
FRAUD ACT, DO NOT CONSTITUTE BINDING AUTHORITY ON TRIAL COURTS HERE IN THE STATE
UNDER STATE V. ROSE. I AM THE POOR UNFORTUNATE SOUL THAT WENT DOWN TO THE
STATE LIBRARY AND PARSED MICRO FILMS FOR QUITE SOME TIME GOING THROUGH DECADES
ON BRIEFING IN THESE CASES. NO WHERE IN THAT BRIEFING DID ANY OF THE PARTIES
ARGUE THAT SECTION 211 IN ANY WAY APPLIED TO GRANT THE PARTIES THE
PLAINTIFFNESS THOSE MATTERS, A REFUND REMEDY. IT WAS NEVER PARSED. IT WAS NEVER
QUESTIONED. IT WAS NEVER ADDRESS TODAY THIS COURT OR ARGUED BY ANY OF THE
ENTITIES INVOLVED INCLUDING THE AMY KEY IN THAT CASE. I AM MORE THAN HAPPY TO
DISCUSS THE INTIMATE NATURE OF THE ARGUMENTS RAISED BELOW BUT I TRUST THAT
MR. CLARK'S RESTSTATION OF THOSE CASES IS SUFFICIENT UNLESS THE COURT HAS ANY
SPECIFIC QUESTIONS ON THAT POINT. SUFFICE IT TO SAY, THOUGH,
WEINBERG LAMB LAY TOW AND DUGAN WERE CASE THAT DID NOT INVOLVE REFUNDS IN
THE CONTEXT OF OF TRAUNTSDZ MEAN NEWS. LAMB LAY TOW SPECIFICALLY ADDRESSED THE
QUESTION OF WHETHER OR NOT THE C F A APPLIED TO LOAN PACKING IN THE CONTEXT OF
LENDING AND THE PARTIES ARGUMENTS IN THAT CASE SPECIFICALLY ADDRESSED
WHETHER OR NOT THE C F A ENCOMPASSED THOSE KINDS OF SERVESES AND THEY WERE LIMIT
THE TO THOSE QUESTIONS. ALTHOUGH 1 OF THE PARTIES, THE PLAINTIFF
I BELIEVE DID IN FACT RAISE THE TOPIC OF 213 WITH REGARD TO THE CUMULATIVE
NATURE OF THAT PROVISION, NONE OF THE PARTIES, EVER ADDRESSED 211 TO EVER SUGGEST
THAT THERE WAS A GENERALLY APPLICABLE REFUND REMEDY. IN THAT CASE THE
ISSUE WAS NEVER PRESENTED OR ARGUED TO THE COURT. SIMILARLY IN WEINBERG A CASE
DEALING WITH OVER CHARGES IN CONNECTION WITH TELECOMMUNICATION SVRSS, THE
QUESTION BEFORE THAT COURT WAS WHETHER OR NOT A PARTY HAD STANDING TO MAINTAIN
INJUNCTIVE CLAIMS AGAINST A DEFENDANT WHEN THEY WERE NOT ABLE TO PRESENT AN
ASCERTAINABLE LAW SUFFICIENT TO WITHSTAND SUMMARY JUDGEMENT.
AGAIN THAT CASE THE PARTIES ARGUMENTS WERE RELATED TO ANYTHING BUT RESTAURANT
MENUS AND REFUNDS IN CONNECTION WITH THE SAME. NO PARTY IN
THAT CASE ARGUED THAT THE PLAINTIFF WAS ENTITLED TO OR WASN'T ENTITLED TO A
REFUND WITH RESPECT TO OR UNDER SECTION 211. SIMILARLY IN
DUGAN WHICH ACTUALLY DID INVOLVE RESTAURANT PRICING, NONE OF THE PARTIES
ARGUED THAT 211 APPLIED THE REFUND REMEDY. IN THAT CASE, THE PLAINTIFF
DID NOT ASSERT A CLAIM UNDER SECTION 211 WHATSOEVER. ULTIMATELY, CONTRARY TO
PLAINTIFF'S SUGGESTION BEFORE THE TRIAL COURT AND HERE, THOSE CASES ARE
NOT BINDING AUTHORITY ON TRIAL COURTS IN THIS STATE. AT BEST THEY REPRESENT DICTA
UNDERSTAND THE TERMS OF STATE V. ROSE GIVEN THAT THE QUESTION OF 211 SCOPE
AND ITS IMPACT ON LITIGANTS RIGHTS TO BRING REFUND CLAIMS IN NEW JERSEY GENERALLY
UNDER THE CFA WERE NEVER PRESENTED OR ARGUED TO THE COURT IN THAT CASE.
SIMPLY PUT, THE COURT'S PASSING REFERENCES IN THOSE MATTERS
2 SECTION 211 ULTIMATELY REPRESENT DICTA. NOW, IN PRACTICE,
IF WE WERE TO TAKE PLAINTIFF'S RATHER EXPANSIVE VIEW OF SECTION 211 AND
PLAY IT OUT IN THE REAL WORLD, THE RESULT WOULD BE AS MR. CLARK SPRAINED A MASSIVE
EXPANSION OF LIABILITY FOR BUSINESSES AND RETAILERS IN THIS STATE.
I POINT THE COURT TO THE UNPUBLISHED DECISION OF BISHOP AUTO WHOLESALER WERE
EXACTLY AS MR. CLARK PLAYED OUT IN THE TRIAL COURT AND WAS ULTIMATELY
AFFIRMED BY THE APPELLATE DIVISION IN THAT CASE WHICH INVOLVED CASES OF CONSUMER
FRAUD WITH RESPECT TO A CAR SALE. PLAINTIFF ASSERTED CLAIMS UNDER SECTION 211
AND ULTIMATELY OBTAINED A REFUND. THEY PAID 15000 SDSZ APPROXIMATELY
FOR THEIR CAR. THE CAR TROUBLED THOSE DAMAGES TOTALLING ULTIMATELY 45000 SDSZ
IN DAMAGES, PLUS ATTORNEY'S FEES AND IT DOESN'T APPEAR BASED ON THE RECORD
OF THAT CASE THAT THE PLAINTIFF WAS ULTIMATELY REQUIRED TO RETURN THE VEHICLE.
THEY GOT THE BEST POSSIBLE DEAL THEY COULD. THEY GOT A FULL REFUND,
TROUBLE DAMAGES, ATTORNEY FEES AND THEY GOT TO KEEP THE CAR. AS
N.J.S.A. CI ARGUED IN TSDZ BRIEFING, THIS WOULD ULTIMATELY RESULT IN A WINDFALL
FAR IN EXCESS OF WHAT THE LEGISLATURE INTENDED WHEN IT ADOPTED THE
TROUBLED DAMAGES PROVISION. AT THE END OF THE DAY OUR PRECEDENT AND OUR STATUTES
ARE CLEAR, THE PURPOSE OF THE CONSUMER FRAUD ACT IS ULTIMATELY TO PROVIDE
RECOMPENSE IN THE AMOUNT OF ACTUAL DAMAGES TO INJURED PLAINTIFFS, TO PUNISH WRONG
DOINGERS AND THAT ARE OTHERWISE VOISZ I THOUGHT JUSTICE PATTER SEN SON HAD
ASKED THE FIRST TIME THAT ANYONE EVER SUGGESTED THE REFUND PROVISION APPLIES OUTSIDE
THE TRUTH IN MENU ACT WAS IN THIS CASE AND I THOUGHT THAT MR. CLARK HAD SAID
YES, THIS IS THE FIRST TIME THE ARGUMENT IS BEING MADE. ARE YOU
NOW SAYING THAT IS NOT CORRECT AND THE ARGUMENT WAS MADE IN BISHOP VERSUS AUTO
AND ACTUALLY THE TRIAL COURT GREED AND SO THERE WAS A COMPLETE REFUND
IN A CASE THAT HAD NOTHING TO DO WITH A RESTAURANT MENU. MR.
DANIEL: THERE WAS A COMPLETE REFUND IN THAT CASE. IT WAS AN UNPUBLISHED DECISION
BY APPELLATE DIVISION. SO AGAIN NOT BINDING ON IN PI COURTS IN THIS
STATE. MERELY PER SIDEWAYS SIF AND AS MR. CLARK POINTED OUT THIS WAS THE FIRST TIME
THAT THE TRUTH IN MENU ACT WAS BROUGHT TO THIS COURT TO BE DIRECTLY ADDRESSED
ON SECTION 211. THIS COURT'S NEVER BEFORE DETERMINED WHETHER OR NOT
THE REFUND PROVISION CREATES A GENERALLY APPLICABLE REFUND PROVISION -- REMEDY
THROUGHOUT THE ENTIRE CFA BUT THAT CASE IN THE APPELLATE DIVISION HIGHLIGHTS
THE REALITY THAT THIS IS GOING ON, THIS IS NOT AN ABSTRACTION. THE COURSE SEEM
TO BE WRESTLING WITH THIS ISSUE AND THE RESULT IS THAT PLAINTIFFS HAVE BEEN
ABLE TO OBTAIN WINDFALLS. ASSOCIATE JUSTICE ANNE M. PATTERSON: SO
YOUR SUGGESTION IS THAT THIS IS AN ACTIVE ISSUE IN THE COURTS ON C F
A PROVISIONS OTHER THAN IN THE CONTEXT OF THE RESTAURANT SETTING THAT MR. CLARK
TALKED BE. MR. DANIEL: YES. I WAS ABLE TO IDENTIFY THAT
CASE. I BELIEVE THERE ARE A HANDFUL MORE. UNFORTUNATELY I DON'T HAVE THEM IN
FRONT OF ME RIGHT NOW. THEY WERE ALL UNPUBLISHED DECISIONS. I'M MORE THAN
HAPPY TO PROVIDE ADDITIONAL BRIEFING ON THOSE CASES IF THE THE COURT SO DESIRES.
�� WE UNDERSTAND THE IMPORTANCE OF THE ISSUE THAT'S IN
FRONT OF US. MOVE ON TO YOUR NEXT POINT. MR. DANIEL: BUT ULTIMATELY
OUR FINAL POINT IS. STPHAO:^ WHAT WE'RE DEALING WITH THE
TRUTH IN MENU ACT IS A VERY NARROWLY TAILORED AS. AS
PREVIOUSLY DISCUSSED, BADE ON THAT ASSEMBLY STATEMENT IT'S VERY CLEAR THAT THE
LEGISLATURE INTENDED IT TO BE A VERY SPECIFIC REMEDY FOR A VERY SPECIFIC
PROBLEM. WHEN WE EXAMINE THE NATURE OF THE MOTIVATION THAT THE LEGISLATURE HAD,
IT'S CLEAR THEY DIDN'T WANT TO SPEND ADDITIONAL RESOURCES ON BEING THE
STATE'S TASTE TESTERS TO ENSURE THAT FOOD TASTES GOOD ENOUGH AND IT'S OF THE RIGHT
QUALITY FOR CONSUMERS. THEY LEFT THAT TO SON #150U78 MERSZ THROUGH THE REFUND
REMEDY WHEN ARE WHEN YOU, THE STATE'S MADE IT VERY CLEAR THEY HAVE A
GOAL OF REGULATING MONITORING AND GETTING HEAVILY INVOLVED IN THE PROTECTION
OF OUR SENIORS. INDEED IN THE PREAMBLE TO THE CC R C ACT ACT BEINGS.
ASSOCIATE JUSTICE ANNE M. PATTERSON: WHICH DEALS WITH ELTD
DER CARE. MR. DANIEL: AND IT PROVIDES THAT THE STATE THROUGH
I BELIEVE IT IS THE DEPARTMENT OF COMMUNITY AFFAIRS WILL REGULATE AND MONITOR
THE OPERATIONS OF CC R C'S THROUGHOUT THE STATE. INCLUDING DISCLOSURE
STATEMENTS AND WRITTEN CONTRACTS AND AGREEMENTS PROVIDED TO COMMERCE R THE STATE
HAS MADE ITS POLICY TO BECOME INTIMATELY INVOLVED IN THAT PROCESS TO PROTECT
OUR SENIORS. IT HASN'T HANDED OVER TO THE PUBLIC AT LARGE THE ENFORCEMENT
OF THOSE REGULATIONS. NOW. ASSOCIATE JUSTICE ANNE M.
PATTERSON: WELL, I DON'T THINK THERE'S AN ARGUMENT TO BE MADE THAT THE
STATE HAS HANDED OVER REGULATION OF TRAUNTSZ AS A GENERAL PROPOSITION TO CONSUMERS
THROUGH THIS PARTICULAR ACT. I THINK WHAT MR. CLARK'S ARGUMENT WAS THAT
THE PARTICULAR ACT WAS IDENTIFIED FOR -- AT THAT TIME THE GOVERNOR WAS SAYING
WE DON'T HAVE THE RESOURCES TO ENFORCE THIS PARTICULAR ASPECT BUT WE VIEW
IN THIS CASE THE CONSUMER FRAUD REMEDY AS POTENTIALLY THE REFUND REMEDY AS PO
TENTIALLY DETERRING TRAUNTSZ FROM ACTING IN THIS WAY. I'M GENERALLY QUOTING IT
THERE. SO I DON'T -- I'M QUESTIONING WHY YOU'RE CONTRASTING THAT TO
THE ELDER CARE. BOTH ARE REGULATED AS A GENERAL PROPOSITION. RAUNTSZ RESTAURANTS
ARE REGULATED. ISN'T IT A BETTER ARGUMENT THAT SIMPLY AT THAT MOMENT
IN TIME THERE WAS A DEFINITION OF THE REMEDY IN THAT STATEMENT AS APPLYING ONLY
TO RESTAURANTS. MR. DANIEL: THAT IS TRUE YOUR HONOR BUT
IN ADDITION TO THAT WE HAVE TO BEAR IN MINDS THAT THE LEGISLATURE HAS
CREATE ADD REMEDY FLT CC R E ACT THAT IS FINALLY TUNED TO ADDRESS A VERY SPECIFIC
SERIES OF BAFRSZ BY CCRCS. INDEED, THAT PROVISION PROVIDES A VERY LIMITED
REFUND REMEDY. ASSOCIATE JUSTICE ANNE M. PATTERSON: WHAT'S
THE CITE ON THAT. MR. DANIEL: I CAN PULL THAT UP FOR YOU, YOUR
HONOR. I BELIEVE IT IS N.J.S.A. 5227 D-347 A 1 TO 3. �� HOW
DOES THAT HELP US UNDERSTAND THE MEANING OF THE CONSUMER FRAUD ACT.
MR. DANIEL: UNDER THAT REMEDY YOU HAVE A VERY FINALLY TUNED SYSTEM THAT ALLOWS
REFUNDS UNDER EXTRAORDINARILY LITTLE ITTED SITUATIONS RELATED TO WHETHER
OR NOT PARTIES WERE SUPPLIED WITH CERTS OF AUTHORITIES, WHETHER THEY WERE PROVIDED
WITH DISCLOSURE STATEMENTS OR WHETHER THEY WERE OMISSIONS IN THE ACTUAL
DISCLOSURE STATEMENTS AND IMPORTANTLY THE LEGISLATURE INCLUDED IN THAT
LIMITING PROVISION THAT STATED THAT WHATEVER DAMAGES WERE ULTIMATELY ASSESSED
ON THE REFUND WOULD BE LESS THE REASONABLE COSTS OF CARE AND LODGING
FOR RESIDENTS. THE LEGISLATURE KNOWS ONCE IT HAS A SPECIFIC REMEDY ADDRESSING
A SPECIFIC ISSUE. THIS IS HOW IT DOES IT. SIMILARLY WITH
RESPECT TO 211, THEY ADDRESS A SPECIFIC ISSUE, IN THAT CASE MISS STATEMENTS IN
CONNECTION WITH ITEMS ON A RESTAURANT MENU AND IT ACHIEVES IT THROUGH
A VERY NARROWLY TAILORED RAINS. FOOD ONCE EATEN CAN'T REALLY BE RETURNED SO WE'RE
GOING TO GIVE PEOPLE A FULL REFUND WITHOUT ASKING THEM TO RETURN IT.
IN THE CIRCUMSTANCES LIKE THINGS OF CONTINUING CARE FACILITIES, THE LEGISLATURE
TAILORED IT TO MAKE SURE THAT ULTIMATELY REFUNDS THAT WOULD BE PROVIDED
WOULD TAKE INTO EFFECT THE REASONABLE COST OF LODGING AND WOULDN'T BE IN EXCESS
OF WHAT WAS PROPER OR FITTING OR JUST FOR THOSE RESIDENTS. ��
CONSTITUTIONAL ISSUE TOZ 1 SIDE. THE LETSCH I SAY LAY TOUR COULD HAVE APPLIED
A FULL REFUNDS PROVISION TO THE ENTIRETY OF THE CFA, CORRECT. MR.
DANIEL: YES THEY COULD. �� SO THE QUESTION IS WHAT DID THEY DO HERE.
MR. DANIEL: WHAT THEY DID HERE IS I THINK EVIDENCED BY THE
LEGISLATIVE HISTORY. THEY ADDRESSED A NARROW. THAT'S 211. IT'S JUST RESTAURANTS
MENUS. THAT'S WHAT THEY ONLY WANTED TO ADDRESS. �� I'M
STRUGGLING WITH YOUR ANALOGY TO THE CC R C ACT WHEN THE ANSWER MAY OR MAY NOT
LIE IN THE CFA ITSELF. MR. DANIEL: WELL, I THINK THE ANSWER
DOES LIE IN THE CFA. MY CITATION REFERENCE TODAY CC R C ACT IS TO JU
XTAPOSE THE IMPETUS THAT DROVE THE. WHEN IT COMES IT COMES TO THE NECESSARY
TO INCLUDE MAKE IT A BUDGETARY PRY OR THE TO REGULATE THIS ENTITY. WHEN
IT COMES TO RESTAURANT MENU MISINFORMATION AND CONSUMER FRAUD, THEY KIND OF,
FOR LACK OF A BETTER TERM, THEY DEPUTIZE RESTAURANT GOERS TO. IT IS
REGULATED IN OTHER INSTANCES BUT THAT REFUND PROVISION IS TAILORED SPECIFICALLY
TO THAT CATEGORY OF ROLE. �� THANK YOU, COUNSEL. MR.
FANNING. MR. FANNING: GOOD MORNING. MAY IT PLEASE THE COURT,
EDWARD FANNING FROM MICK CARTER AND ENGLISH FOR THE AMICI THAT WE REPRESENT.
PLAINTIFFS ARE ASKING THIS COURT TO REBRIGHT THE TRUTH IN THEN MU ACT PROVISION
TO APPLY TO ALL CLAIMS THAT COULD BE SUBJECT TO THE CONSUMER FRAUD ACT.
THERE VAB A NUMBER OF QUESTIONS ASKED HERE TODAY ABOUT WHETHER THE LEGISLATURE
COULD HAVE USED CLEARER LANGUAGE, FOR INSTANCE IN SECTION 2.11 OR 2.12.
I WOULD FLIP THAT QUESTION AND ASK IF THE LEGISLATURE TRULY
INTENDED TO APPLY A REFUND PROVISION THROUGH THE TRUTH IN MENU BILL WHICH BECAME
THIS ACT, AND HAVE THAT REFUND APPLY TO ALL CONSUMER FRAUD ACT CLAIMS
IN ALL CATEGORIES, WOULDN'T THEY HAVE BEEN CRYSTAL CLEAR ON THAT?^ WE SUBMIT
THAT IN FACT THE LANGUAGE BOTH IN THE PLAIN LANGUAGE OF THE TRUTH IN MENU
ACT AND THE LEGISLATIVE HISTORY IS KRASZ TALL CLEAR IN THE OTHER DIRECTION. AS
I SAID, YOU HEARD DISCUSSION THIS MORNING OF A NUMBER OF DIFFERENT
PROVISIONS IN THE TRUTH IN MENU ACT. 1 THAT WE HAVE NOT DISCUSSED AT LEAST IN
DETAILS 2 . 9 THE OPERATIVE SECTION OF THE TRUTH IN MENU ACT. IT'S ORIGINAL
2 SENTENCES LONG. WHEN YOU READ THOSE 2 SENTENCES IN THAT PARAGRAPH TOGETHER
WITH THE TITLE, THERE ARE 17, NO FEWER THAN 17 SEPARATE REFERENCE TOZ FOOD, FOOD
PRODUCTS, AND EATING ESTABLISHMENTS WHERE FOODS ARE PREPARED AND SOLD.
SO THE PLAIN LANGUAGE OF THE TRUTH IN MENU ACT IS CLEAR. THE
LEGISLATIVE HISTORY IS ALSO CLEAR IN THAT THIS ACT WAS INTENDED TO BE LIMITED
TO FOOD ESTABLISHMENTS. WE'VE HEARD SOME DISCUSSION ABOUT GOVERNOR BYRNE'S
CONDITIONAL VETO OF THE TRUTH IN MENU BILL AT THAT POINT. THE FIRST 4 VERSIONS OF
THIS BILL DID NOT INCLUDE THAT REFUND PROVISION. IT WASN'T UNTIL GOVERNOR
BYRNE SUGGESTED IT IN HIS CONDITIONAL VETO AND PROVIDED LANGUAGE FOR A REFUND
PROVISION THAT THE LEGISLATURE ADOPEDDED THAT RECOMMENDATION VERBATIM AND
WE'VE MENTIONED THE GOVERNOR'S PRESS RELEASE HERE BUT I THINK IT'S IMPORTANT TO
FOCUS ON SOME SPECIFIC LANGUAGE IN THAT PRESS RELEASE. WHETHER GOVERNOR BYRNE
ISSUED THAT RELEASE AFTER SIGNING THE ACT, HE REITERATED THAT THE REFUND
PROVISION APPLIED ONLY TO THE TRUTH IN MENU ACT AND I QUOTE AS TO THE REFUNDS
PROVISION ITSELF, THE GOVERNOR SAID QUOTE, DEFRAUDED COMMERCE ARE ENTITLED
TODAY A REFUND IF THE EATING ESTABLISHMENTS IS FOUND TO BE IN VIOLATION OF THE
ACT. AND THAT'S IN DEFENDANT'S APPENDIX AT PAGE 70. WELESS
ADDED TO THE RECORD ON THIS APPEAL AND DISCUSSED IN OUR AMY CAN YOU SAY BRIEF
A NUMBER OF NEWSPAPER ARTICLES DISCUSSING STATEMENTS BY LEGISLATE
TURSZ WHO WERE BOTH IN SUPPORT OF THE BILL AND SOME OF THOSE WHO WERE AGAINST
IT. ALL OF THOSE WERE IN AGREEMENT, THOUGH, THAT THIS ACT WAS INTENDED TO BE
LIMITED TO EATING ESTABLISHMENTS AND FOOD PRODUCTS. ASSOCIATE
JUSTICE ANNE M. PATTERSON: AS A MATTER RF STATUTORY INTERPRETATION. WE OCCASIONALLY
DEAL WITH STATUTES THAT ARE SUBJECT TO A CONDITIONAL VETO AND OFTEN
THERE'S A REVISION AND THE GOVERNOR'S CONCERNS ARE ADDRESSED SOMETIMES PRECISELY
IN THE MANNER IN WHICH THE GOVERNOR STATES IT SHOULD BE. SOMETIMES IN
A MORE EXPANSIVE WAY. WHEN WE SEE THAT A PARTICULAR PROVISION EMERGES ONLY AFTER
A CONDITIONAL VETO RSHGS WHAT DO PRINCIPLES OF STATUTORY
INTERPRETATION TELL US TO READ INTO THAT IF ANYTHING. MR. FANNING:
GOOD QUESTION YOUR HONOR, 1 I HAD NOT ANTICIPATE IN HAVING ANALYZED BUT I THINK
GIVEN THE CONTEXT HERE WITH RESPECT TO THIS PARTICULAR LEGISLATIVE HISTORY
AND THE FACT THAT THE GOVERNOR'S CONDITIONAL VETO WAS SPECIFICALLY TIED TO
REFUNDS AND THE LEGISLATURE THEN ADOPTED THAT REFUND PROVISION VERBATIM
KINTD WITH THE GOVERNOR'S RECOMMENDATION, THAT SHOWS THAT THE LEGISLATE TURSZ
WERE IN AGREEMENT THAT THE THE REFUNDS PROVISION THAT THEY THEN ADDED TO THE
BILL WAS TO BE LIMITED TO THE TRUTH IN MENU ACT AND TO REMEDIES THAT
WERE SPECIFIC TO VIOLATIONS MISS REPRESENTATIONS WITH RESPECT TO FOOD AND FOOD
PRODUCTS. ASSOCIATE JUSTICE ANNE M. PATTERSON: WE ONLY REACH
THAT ISSUE IF WE FIND THE PLAIN LANGUAGE TO BE AMBIGUOUS. MR.
FANNING: THAT'S CORRECT YOUR HONOR AND AGAIN WE DON'T THINK THE PLAIN LANGUAGE
IS AMBIGUOUS. WE THINK IT'S CRYSTAL CLEAR. �� BUT YOU LIKE
THE LEGISLATIVE HISTORY. MR. FANNING:. WE DO. IT CLEARLY ENFORCES
THE PLAIN LANGUAGE YOU OF THE AND IS NOT SUBJECT TO DEBATE. IT IN AND
OF ITSELF IS CRYSTAL CLEAR AS WELL. THERE'S 1 MORE REASON THAT WE'VE
ADVANCED WHY THIS COURT SHOULD REJECT PLAINTIFF'S INVITATION TO REJECT
ALL CONSUMER. AND THAT IS RAISING THE SPECTOR OF
UNCONSTITUTIONALITY. YOU KNOW, IF ALL BUSINESSES IN THIS STATE,
LARGE AND SMALL, WERE SUBJECT TO A REFUND FOR RECOVERY SINGLE CLAIM THAT'S BROUGHT
UNDER THE CONSUMER FRAUD ACT, THEY COULD BE SUBJECT TO GROSSLY DISPROPORTIONATE
AND PO POTENTIALLY UNCONSTITUTIONAL DAMAGES. ASSOCIATE
JUSTICE ANNE M. PATTERSON: FOR EXAMPLE, THERE ARE CONSUMER FRAUD ACT PROVISIONS
THAT HAVE TECHNICAL REQUIREMENTS FOR SOMEBODY WHO'S SELLING, WHO RUNS
A POOL COMPANY. THEY HAVE TO HAVE THEIR NUMBER ON IN A PARTICULAR -- ON THE SHEET
THAT IS PROVIDED TO THE CUSTOMER. YOU COULD HAVE A SITUATION WHERE SOMEONE
HAS LEFT OFF THEIR BILL THAT THEY GIVE TO THE CUSTOMER AFTER THEY BUILT A POOL
FOR SOMEBODY THEIR NUMBER AND UNDER THIS THEORY THE POOL IS FREE.
MR. FANNING: EXACTLY. ASSOCIATE JUSTICE ANNE M. PATTERSON: IN
ADDITION TO TROUBLED DAMAGES AND ATTORNEYS FEES THEY GET THE FREE POOL.
MR. FANNING: EXACTLY YOUR HONOR. WILDLY DISPROPORTIONATE DAMAGES
WOULD BE IN PLAY IF THIS COURT WERE TO INTERPRET THIS REFUNDS PROVISION TO APPLY
TO CASES LIKE THAT. THE SAME IS TRUE FOR ANY TYPE OF BUSINESS
THAT RECEIVES RECURRING PAYMENTS FROM A CUSTOMER PURSUANT TO AN ONGOING
AGREEMENT. IT COULD APPLY TO OBVIOUSLY NURSING CARE FACILITIES. IT COULD APPLY
TO DAYCARE FACILITIES. GYMS. PROPERTY OWNERS WHO RENT THEIR PROPERTY.
IN THOSE SITUATIONS WHERE A BUSINESS OWNER IS RECEIVING RECURRING PAYMENTS FROM
A CONSUMER AND THERE'S A TECHNICAL VIOLATION OF A CONSUMER FRAUD ACT
PROVISION OR A STATE ADMINISTRATIVE CODE PROVISION SUBJECT TO THE CONSUMER
FRAUD ACT AND THE DAMAGES ARE REASONABLY SMALL, IN THOSE TYPES OF RECURRENT PAYMENT
SITUATIONS, THOSE BUSINESSES WOULD EASELY BE SUBJECT TO GROSSLY DIS
PROPORTIONATE DAMAGES RATIOSES AND THE U.S. SUPREME COURT'S HAS ADDRESSED THAT
ISSUE IN STATE FARM V CAMPBELL, IN BMW VERSUS GORE. THE SUPREME COURT HAS
DID HE CLAND TO ESTABLISH A BRIGHT-LINE RULE BUT THE COURT LASZ SAID THAT THE
MEASURE OF PUNISHMENT MUST BE BOTH REASONABLE AND PROPORTION @ TO THE AMOUNT
OF HARM THAT THE PLAINTIFF SUFFERED. THAT'S DISCUSSED IN THE STATE FARM
CASE. IN PRACTICE THE U.S. SUPREME COURT HAS SAID THAT THE SINGLE DIGIT RATIO
IS MORE IN LINE WITH CONSTITUTIONAL TREATMENT AND HAS SAID THAT IN
PRACTICE VERY FEW AWARDS EXCEEDING A SINGLE DIGIT RATIO BETWEEN PUNITIVE AND COM
PENSATORY DAMAGES TO A SIGNIFICANT DEGREE WILL SATISFY DUE PROCESS UNDER THE
FLEENTH AMENDMENT TO THE U.S. CONSTITUTION R. ��
COUNSEL, DO YOU SHARE YOUR COLLEAGUES'S VIEW OF 2.13 REGARDING THE RIGHTS.
MR. FANNING: JUSTICE NOR YEAH GA . FRANKLY IF I WERE LOOK AT IF WITH
FRESH EYES, I WOULD ARGUE THAT PROVISION COULD EASELY BE INTERPRETED AS BEING
PART OF THE TRUTH IN MENU ACT AND NOT NECESSARILY THE CONSUMER FRAUD
ACT AT LARGE BUT WE'RE NOT HERE TO QUIBBLE WITH THAT INTERPRETATION. I
UNDERSTAND WHY COUNSEL INDICATES THAT IT DOESN'T REALLY MATTER WITH RESPECT
TO THE OUTCOME ON BEHALF OF THEIR KLEIN IN THIS CASE. AGAIN,
IF THE LEGISLATURE INTENDED FOR THIS SIGNIFICANT REMEDY, REFUND TO APPLY TO ALL
CONSUMER FRAUD ACT CLAIMS THEY WOULD HAVE SAID SO. THEY DIDN'T SAY SO.
THEY DIDN'T SAY SO IN THE TRUTH IN MENU ACT AND NE NEVER SAID SO AND FRANK'SLY
IF THE PLAINTIFFS WANT THAT REMEDY TO BE AVAILABLE UNDER ALL CONSUMER FRAUD
ACT CLAIMS THEN THEY SHOULD PETITION THE LEGISLATURE UNDER OUR SEPARATION
OF POWERS THAT IS WHERE THEY NEED TO MAKE THAT APPLICATION. NOT BEFORE YOUR
HONORS. FOR THESE REASONS, WE RESPECTFULLY REQUEST THAT YOU REVERSE
THE DECISION OF THE TRIAL COURT IN THIS MATTER VOIGS THANK YOU, MR. FANNING.
MR. PASS TER KNACK. MR. PASTERNACK: THANK YOU MR. CHIEF JUSTICE
AND MAY MAY IT PLEASE THE COURT. THE LEGISLATURE ESTABLISHED WITH THE
CONSUMER FRAUD ACT A DEFAULT MODE OF INTERPRETATION AND THAT IS ITS PROVISIONS
ARE TO BE APPLIED BROADLY. AND HERE, N.J.S.A. 568-2. 11 , THE REFUND
PROVISION, IT WAS CAST BROADLY WHEN YOU LOOK AT ITS LAV. THAT'S SIGNIFICANT. THERE'S.
OR IN THE LEGISLATIVE HISTORY THAT THE LEGISLATURE INTENDED TO NATURAL
CONSTRUE THE PROVISION THAT IT DEPENDED TO DEVIATE FROM THIS THE STANDARD EXPRESSES
IN LAMB LET TOW THAT THE CON STUM MER FRAUD ACT APPLY BROADLY AND THAT
THIS 1 PROVISION IN THIS 1 INSTANCE BE NARROWLY CONSTRUED. NOW
THE REFUNDS UNDERSTAND THIS PROVISION, THEY ARE INTENDED TO SERVE 2 FUNDAMENTAL
PURPOSES AND THOSE ARE TO EFFICIENTLY MAKE WHOLE ALL WHO ARE AGGRIEVED
OR DECEIVED AND TO MAKE SURE THAT THOSE WHO VIOLATE THE CONSUMER FRAUD ACT THAT
THEY CANNOT PROFIT FROM CONSUMER FRAUD PER. �� WHAT EVIDENCE
DO YOU HAVE OF THAT OUTSIDE THE FOOT CONTEXT, THOUGH, YOU'RE TALKING IN
LEGISLATIVE INTENT. YOU SAID THE REFUNDS ARE INTENDED TO SERVE 2 PURPOSES.
SO WHERE DID THE LEGISLATURE SAY WE'RE NOT TALKING ABOUT SOMEONE WHO EATS AT
RESTAURANT GET AGO REFUNDS, WE'RE TALKING ABOUT ANYONE WHO PAYS ANY MONEY
GETTING A COMPLETE REFUND. MR. PASTERNACK: WELL, FIRST OFF, I DON'T
THINK IT'S ACTUALLY ACTUALLY BEEN ARGUE ON MY SIDES THAT REFUNDS ARE
FOR ALL MONIES EVER ACQUIRED. THAT'S ACTUALLY RARE TO THE TEXT OF THE PROVISION
WHICH ADVERTISE TO THE REFUNDS OF MONEY ACQUIRED TO THE MEANS OF UNLAWFUL
PRACTICE UNDER THE ACT. SO ALL THESE STIGMENTS ABOUT THAT THERE WERE BE RUIN
NUSZ LIABILITY FOR CORPORATE DEFENDANTS, THEY DON'T ACTUALLY JIVE WITH THE
LANGUAGE OF THE STATUTE AND SECONDLY, YOUR HONOR. �� WHICH SPECIFIC,
I'M SORRY, YOU'RE REFERRING TO THE WORDS WHERE IT SAYS ALL MONIES ACQUIRED
BY MEANS OF ANY PRACTICE DECLARED HEREIN. MR. PASTERNACK: YES, YOUR HONOR,
AND THAT'S IMPORTANT. THAT LANGUAGE THERE IT SERVES AS A LIMITATION
ON THE REFUNDS. ASSOCIATE JUSTICE ANNE M. PATTERSON: I READ
YOUR COMPLAINT AND YOUR COMPLAINT STATES THAT IN THE CASE OF THE CLASS PLAINTIFF
SHE WOULD NOT, THE PLAINTIFF, NOW THE EXECUTOR OF HER MOTHER'S ESTATE
WOULD NEVER HAVE ALLOWED HER MOTHER TO MOVE IN AND SHE WOULD NOT HAVE SPENT THE
MONEY THAT SHE SPENT AT THE FACILITY FOR ALL THOSE YEARS. NOW,
I READ THAT AND IT WAS WELL PLED COMPLAINT, I READ THAT TO REASONABLE BASIS
THIS PERSON WOULD NEVER HAVE BEEN THERE UNLESS THEY -- IF THEY HAD
UNDERSTOOD THAT WHEN THE TIME CAME FOR THE REFUND, AFTER THE DEATH OR THE RESIDENT
MOVED OUT, THEIR REFIND MIGHT BE CALCULATED NOT ON -- NOT THE EXACT AMOUNT
THAT THEY PAID AS THE ENTRANCE FEE BUT ON THE BASIS OF WHAT THE SUBSEQUENT
RESIDENT PAID. SO TO SAY THAT THERE'S A LIMITING PROPOSITION
FROM THIS, I THINK FRANKLY RUNS UP AGAINST YOUR COMPLAINT WHICH MAKES THE ALLEGATION
AND ACTUALLY DOES SEEK EVERY PENNY THAT THE CLASS MEMBERS EVER SPENT ON
THE ASSISTED LIVING FACILITIES. THAT'S WHAT IT SAYS. MR. PASTERNACK:
WELL, YOUR HONOR, I THINK THERE'S A DIFFERENCE BETWEEN WHAT'S PLED IN A COMPLAINT
AND WHAT A JURY ULTIMATELY FINDS VOISZ WHAT ARE YOU SEEKING SPECIFICALLY?^
ARE YOU ENTITLED TO TO THE REFUND OF THE MONTHLY CHARGES AS WELL AS THE ISSUE
THAT BRINK'S US HERE. MR. PASTERNACK: I CERTAINLY THINK
WE CAN MAKE THAT ARGUMENT. �� THAT MEANS YOU'RE SEEKING IT.
MR. PASTERNACK: AND CERTAINLY UNDER THE C.R.R. C ACT I THINK
THAT EXPRESSLY GIVES US THAT. �� UNDER THE C F A, ARE YOU SEEKING
A REFUND OF ALL MONIES PAID. MR. PASTERNACK: WE ARE SEEKING
A REFUNDS OF ALL MONIES PAID BY MEANS OF THE UNLAWFUL PRACTICE. ��
ARE YOU SEEKING A REFUND OF ALL OTHER CHARGES BEYOND THE ENTRANCE FEE QUESTION.
MR. PASTERNACK: NO, YOUR HONOR. I THINK THE REFUND HERE IS
INDEED TO THE ENTRANCE FEES, YOUR HONOR. �� I'M NOT SURE I UNDERSTAND
THE IMPLY KAGS OF THAT. ARE YOU SEEKING THE MONTHLY CHARGES.
MR. PASTERNACK: CERTAINLY UNDER THE C CR.^ C.
�� UNDERSTAND THE C F A ARE YOU SEEKING THE MONTHLY CHARGES. MR.
PASTERNACK: UNDERSTAND THE C F A I THINK IT IS TIED TO THE UNLAWFUL PRACTICE
AND THAT GOES SPECIFICALLY TO THE ENTRANCE FEES YOUR HONOR.
�� SO THAT MEANS YES DOES THAT MEAN YES. MR. PASTERNACK: YES, YOUR HONOR
AND I THINK WHAT'S IMPORTANT TO UNDERSTAND IS THE REFUND PROVISION
IS A FLOOR FOR THE REMEDIES. I CERTAINLY THINK IN TERMS OF HOW IT ALL WORK IN
THIS CASE, THINK THE DAMAGES TROUBLED WILL BE LARGER. ��
SO WHILE WE'RE ON THIS ISSUE, EVEN THOUGH I THINK THIS IS THE (LAUGHTER) ISSUE,
THE CONSTITUTIONAL AVOIDANCE QUESTION. IF SOMEONE IN YOUR POSITION,
THE PROPERTY HAD BEEN RELET AT ONLY A MODEST DISCOUNT WHERE HUNDREDS OF DOLLARS
ARE AT STEAK UNDER THAT PART OF THE CASE, COULD SOMEONE THEN SEEK TO
COLLECT TENS IF NOT HUNDREDS OF OF THOUSANDS OF DOLLARS ACCUMULATED OVER DECADES.
MR. PASTERNACK: NO, YOUR HONOR, I THINK THERE'S A FUNDAMENTAL
PRINCIPAL THAT HAS TO BE TIED TO THE UNLAWFUL PRACTICE. ��
HOW IS THAT DIFFERENT FROM YOUR CASE WHERE YOU'RE SEEKING THE MONTHLY CHARGES?^.
MR. PASTERNACK: I THINK WHAT'S IMPORTANT TO UNDERSTAND IS
THAT. �� I'M SORRY, I THOUGHT YOU ARE NOT SEEK THE MONTHLY
CHARGES UNDER THE C F A. MR. PASTERNACK: I THINK UNDER THE C F A
HOW IT WOULD WORK. �� I THOUGHT WE CLARIFIED THIS. THAT MEANS
YES, YOU ARE SEEKING THE MONTHLY CHARGES BECAUSE YOUR ARGUMENT IS THAT
THEY ARE TIED. CORRECT. MR. PASTERNACK: NO, BUT I THINK WHAT WE'RE
-- THE LIMIT IS IF A PERSON ALSO RECEIVED A BENEFIT. ��
REGARDLESS OF A THEORETICAL DISCUSSION, IN THIS CASE, ARE YOU ARGUING THAT THE
MONTHLY CHARGES ARE RECOVERABLE AS A REFUND UNDER THE C F A SNM.
MR. PASTERNACK: NO, YOUR HONOR. AND I THINK YOU LOOK AT THE TEXT SHALL, I THINK
IT'S IMPORTANT AS THE COURT SAID IN LAMB LET TOW THAT THE. SO
WHEN YOU LOOK AT THE REFUND PROVISION, THERE'S NO LANGUAGE IN THERE TOP.
ASSOCIATE JUSTICE ANNE M. PATTERSON: SO JUST TO BE CLEAR, YOU'RE REPRESENTING
ON BEHALF OF YOUR CLASS TODAY THAT THE ONLY REMEDY -- THAT THE ONLY REFUND
YOU WOULD BE SEEKING IS A REFUND OF -- UNDER THE C F A IS A REFUND OF THE ENTRANCE
FEE. MR. PASTERNACK: YES, BECAUSE. ASSOCIATE
JUSTICE ANNE M. PATTERSON: JUST STICK WITH ME. IT'S A YES. MR.
PASTERNACK: YES, YOUR HONOR. ASSOCIATE JUSTICE ANNE M. PATTERSON:
THE ENTRANCE FEE ONLY AND YOU WOULD BE SEEKING WHAT?^ THE ENTRANCE FEE
TO BE RETURNED?^. MR. PASTERNACK: I THINK THAT IS A
JUSTIFIABLE POSITION, YES. ASSOCIATE JUSTICE ANNE M. PATTERSON: I'M
NOT ASKING ABOUT JUSTIFIABLE POSITIONS. I READ YOUR CLANTD AND I READ
IT CAREFULLY, COUNSEL AND IT'S WELL DONE AND OBVIOUSLY A TREMENDOUS AMOUNT OF
WORK WENT INTO IT TO BE SEEKING EVERY PENNY EVER SPENT ON BEHALF OF
LEAD PLAINTIFF WHOSE CIRCUMSTANCES ARE EXPLAINED BECAUSE OF THE ALLEGATION TO
EVER LET HER MOTHER TO MOVE INTO A FACILITY IF SHE UNDERSTOOD THE ACTUAL BASIS
FOR THE CALCULATION OF THE REFUND. THAT'S WHAT I READ. MR.
PASTERNACK: YES, YOUR HONOR. ASSOCIATE JUSTICE ANNE M. PATTERSON:
AM I MISSING SOMETHING OR IS THAT NOT SAID IN YOUR COMPLAINT.
ASSOCIATE JUSTICE ANNE M. PATTERSON: NO, YOUR HONOR BUT WHAT'S IMPORTANT.
ASSOCIATE JUSTICE ANNE M. PATTERSON: IS IT SAID IN YOUR
COMBLANT. MR. PASTERNACK: YES, YOUR HONOR, IT IS.
ASSOCIATE JUSTICE ANNE M. PATTERSON: OKAY. SO WHAT YOU'RE NOW SAYING IS THAT
YOU ARE NOT SEEKING THE MONTHLY FEES ON THE BASIS OF THE CFA EVEN THOUGH
THAT'S WHAT YOUR COMPLAINT SAYS. MR. PASTERNACK: NO, BECAUSE UNDER
THE C F A SPECIFICALLY I'M NOT REFERRING TO THE CC R C ACT. THE MONTHLY
FEES ARE NOT NECESSARILY TIED TO THE UNLAWFUL PRACTICE OF THE LESSOR OFF CLAUSE
THAT WE ARE CHALLENGING. ASSOCIATE JUSTICE ANNE M. PATTERSON:
SO WHY IS YOUR LEAD PLAINTIFF SAYING I WOULD NOT HAVE SPENT A PENNY
AT THESE PEOPLE'S FACILITIES OR MY MOTHER WOULD NOT HAVE IF I HAD UNDERSTOOD
WHAT THE ACTUAL CALCULATION WOULD BE?^ THAT'S WHAT IS BEING ALLEGED HERE
AND THEREFORE I AM ENTITLED TO A REFUND OF WHAT I SPENT. THERE'S A CLAIM UNDER
THE C F A FOR A REFUND OF ALL MONIES SPENT IN YOUR COMPLAINT. IS THERE NOT.
MR. PASTERNACK: YES, YOUR HONOR. ASSOCIATE JUSTICE
ANNE M. PATTERSON: THERE IS. OKAY. SO THAT'S BEING SOUGHT AND I UNDERSTAND THAT
SOMETIMES THINGS HAPPEN IN CASES AND YOU DON'T GET EVERY REMEDY YOU
SEEK BUT YOU ARE MAKING THE CONTENTION IN YOUR WELL PLED COMPLAINT THAT YOU ARE
INTIEBLTHSZED TO EVERY PENNY EVER SPENT AND SO WERE ALL THE CLASS MEMBERS
ON THE BASIS OF THIS REFUND ISSUE. MR. PASTERNACK: YES, YOUR HONOR.
ASSOCIATE JUSTICE ANNE M. PATTERSON: THERE. MR.
PASTERNACK: YES I DON'T REMEMBER. �� COUNSEL, I MAY HAVE MISS UNDERSTOOD
YOUR ANSWERS TO MY QUESTIONS BECAUSE IT SOUNDED TO ME AS THOUGH THERE WERE
DIFFERENT ANSWER AND I'M NOT SUGGESTING ANY FOUL PLAY ON YOUR PART.
WHAT IF ANYTHING BEYOND A REFUND OF THE ENTRANCE FEE ARE YOU SEEKING UNDER THE
C F A. MR. PASTERNACK: UNDER THE C F A WE ARE SEEKING THE
REFUND OF THE ENTRANCE FEE AND IN THIS CASE IN PARTICULAR VOISZ ANYTHING ELSE?^.
MR. PASTERNACK: THAT IS THE ASCERTAINABLE LOSSES AS WELL
WHICH WOULD BE TROUBLED YOUR HONOR. THAT'S WHY WHEN AS WE DONE RECEIVE TSHG THE
THE REFUND PROVISION IS A FLOOR FOR WHAT HAS TO BE PROVIDED AS A REMEDY.
�� SO THAT'S LANGUAGE LEAVES ME CONFUSED. IT'S A FLOOR MEANS
THERE'S SOMETHING THAT COULD BE BUILT ABOVE IT. WHAT IF ANYTHING IN ADDITION
TO THE ENTRANCE FEE ARE YOU SEEKING. MR. PASTERNACK: WELL
YOUR HONOR, I THINK THIS IS WHERE THE CONFUSION HERE LIES. IN THIS CASE IN
PARTICULAR THE ENTRANCE FEE IS EQUATED TO THE ASCERTAINABLE LOSSES OF EACH RESIDENT
AND THAT WOULD BE TROUBLED. SO AS IT APPLIED HERE, THE C F A REFUND, IT'S
THE FLOOR BUT IT'S NOT -- IT DOESN'T ADD, IT DOESN'T MAKE THE -- ACTUALLY LET
ME REPEAT THAT. THE LOSSES HERE ONCE TROUBLE. FOR EXAMPLE MRS. DI DID HE SIMONE
WOULD BE $28,620. THOSE WOULD BE HER LOSSES SPECIFICALLY.
ASSOCIATE JUSTICE ANNE M. PATTERSON: AND JUST TO CLARIFY THAT'S THE DIFFERENCE
THAT SHE CLAIMS AS I READ THE COMPLAINT BETWEEN WHAT SHE WOULD HAVE PAID
HAD IT BEEN BASED ON HER FEE OR WHAT HER ESTATE WOULD HAVE BEEN PAID AND WHAT
ULTIMATELY WAS PAID OF THE SHEFTS PAID LESS STE. MR. PASTERNACK:
CORRECT, THE WAY IT WORKS. �� SO YOU'RE SAYING THAT'S THE SAME AS
UNDER AETS 19. NOW ALL OF A SUDDEN 211 IS PROVIDING YOU THE EXACT SAME
THING AS 819 WOULD PROVIDE YOU, CORRECT. MR. PASTERNACK: IN THIS
CASE, I THINK THE 2 DO RETURN A SIMILAR RESULT. �� SO WHY
ARE YOU LITIGATING WHETHER THERE'S A REFUNDS AVAILABLE UNDER 211 IF YOU GET THE
SAME EXACT THING UNDER 819. MR. PASTERNACK: WELL, 1 OF THE REASON
IS IN PARTICULAR HERE, THERE ARE CLASS MEMBERS WHO HAVE NOT YET LEFT
THE COMMUNITY, WHO HAVE NOT YET HAD THEIR REFUNDS EXPLOITED -- AND SO THOSE PEOPLE
MIGHT NOT HAVE AS AN ASSIST SAYS SAYS TAKENABLE LOSS BUT UNDER WEINBERG
THEY STILL ARE ENTITLED TO EQUITABLE RELIEF AND THIS IS 1 OF THE FORMS UNDER
EQUITIABLE RELIEF THEY ARE ENTITLED TO SNOOV SO IS YOUR AURMENTD THAT ALL THE
ACCIDENT PECK TAKES WAS WITH REGARD TO THE REFUND AND WHAT THIS PARTICULAR
PLAINTIFF ACTUALLY RECEIVED UNDER SECTION 11 YOU ARE ALLOWED TO SEEK THE FULL
ENTIRETY OF THE ENTRANCE FEE THAT WAS PAID. IS THAT HE. MR.
PASTERNACK: TO THE EXTENT IT HASN'T ALREADY REFUNDED ARE YES YOUR HONOR.
ASSOCIATE JUSTICE ANNE M. PATTERSON: IT'S ALREADY BEEN REFUFRNDED
SNOOV FOR SOME INDIVIDUALS BUT FOR THE OTHER INDIVIDUALS WHO HAVE HAVE NOT YET
LEFT THE FACILITY, HAD A DETERMINATION MADE ABOUT WITH REGARD TO HOW MUCH
THEIR REFUND IS GOING TORQUE THE THEY SHOULD BE RECEIVING THE ENTIRETY OF THE
ENTRANCE FEE. MR. PASTERNACK: CORRECT YOUR HONOR.
�� SO 2 QUESTIONS. AND THE FIRST I WANT TO REPEAT TO MAKE SURE WE ARE ON
THE SAME PAGE. YOU ARE NOT SEEKING MONTHLY CHARGES UNDER THE C F A RELYING ON
211. MR. PASTERNACK: CORRECT YOUR HONOR. ��
WHAT WE'LL REFER TO AS THE TRUTH MENU PROVISIONS CORRECT. MR.
PASTERNACK: YES YOUR HONOR. �� WHAT YOU ARE SEEKING A FULL REFUNDS
OF THE ENTIRE AMOUNT OF THE ENTRANCE FEE SO IF SOMEONE PAID 700000 $
AND THE PROPERTY OF A VERY MODEST DISCOUNT OF ONLY HUNDREDS OF DOLLARS, WOULD
YOU THEN BE ENTITLED TO THE ENTIRE $700,000?^. MR.
PASTERNACK: YES, YOUR HONOR, BUT I THINK THE WAY THE MATH WOULD WORK, IF THE
$700,000 AND I'M JUST GOING TO SAY WAS ALREADY REFUND TO THE EXTENT OF
$600,000, YOU'RE NOT GETTING $600,000, YOU'RE NOT ABLE TO DOUBLE DIP AND GET
THE SAME AMOUNT OF MONEY TWICE. ASSOCIATE JUSTICE ANNE M.
PATTERSON: MR. PASTERNACK I DON'T HAVE WITH ME THE COMPLAINT BUT I HAVE
BUT I TOOK A NOTE, IT SAID PLAINTIFFS SEEK ON COUNT 1 AND 2, I HAVE IT IN KWOETSDZ
SHLG THIS IS MY NOTES, COULD BE WRONG, REQUIRING DEFENDANTS PURSUANT TO
N.J.S.A. 568-211 TO DISGOVERN AND MAKE RESTITUTION TO PLAINTIFF AND MEMBERS OF THE
CLASS BY REPAYING ALL MONIES RECEIVED OR COLLECTEDED FROM PLAINTIFFS OR CLASS
MEMBERS. IS THAT YOUR ALLEGATION. MR. PASTERNACK: YES YOUR HONOR.
ASSOCIATE JUSTICE ANNE M. PATTERSON: AND IS THAT LIMITED
TO THE ENTRANCE FEE OR SHOULD WE INFER THAT ALL MONIES RECEIVED OR COLLECTED
IS WHAT IT SAYS WHICH IS EVERYTHING THEY EVER PAID. MR.
PASTERNACK: WELL, NO, YOUR HONOR. THIS PROVISION IS AN EQUITABLE REMEDY AND THAT
MEANS THAT. ASSOCIATE JUSTICE ANNE M. PATTERSON: IS THAT
YOUR CLAIM, DID I CORRECTLY WRITE DOWN WHAT YOUR CLAIM IS. MR.
PASTERNACK: YES YOUR HONOR. ASSOCIATE JUSTICE ANNE M. PATTERSON:
AND IT SAYS ALL MONEY RECEIVED AND OR COLLECTED FROM PLAINTIFFS OR CLASS
MEMBERS. THAT'S ALL THE MONEY THEY EVER PAID TO THESE FACILITIES. IS IT NOT.
MR. PASTERNACK: IT IS WORDS THAT COULD LEAD I. IT IS WORDED
IN A MANNER THAT WOULD LEAD YOU TO BELIEVE THAT. ASSOCIATE
JUSTICE ANNE M. PATTERSON: NO, IT'S WHAT IT SAYS, RIGHT. ASSOCIATE
JUSTICE ANNE M. PATTERSON: BUT I THINK IN EQUITY ANL PRINCIPLES WE WOULDN'T BE
ALLOWED TO GET A REFUND OF MONIES FOR WHICH WE ALSO BENEFITED SO LIKE
THE MONTHLY FEES, THE REASON WHY I DON'T THINK YOU WOULD.
ASSOCIATE JUSTICE ANNE M. PATTERSON: HOW IT WOULD PLAY OUT IN THE COURTROOM IS
FOR THE FUTURE. EQUITIABLE PRINCIPLES. THIS IS WHAT YOU'RE CLAIMING IN YOUR
COMPLAINT AND WHEN YOU FILE A COMPLAINT AND SAY THIS IS YOUR CLAIM RSHGS THAT'S
WHAT COURTS JUDGE CLAIM ON. THIS IS A MOTION TO DISMISS. SO THAT'S YOUR KRAM.
WHETHER IT WAS PIE IN THE SKY OR YOU REALLY PRIVATELY DON'T -- I'M NOT
ASKING FOR WHAT YOU REALLY THINK OF THIS POSSIBLE CLAIM. THAT'S YOUR CLAIM IN THIS
CASE, IS IT NOT. MR. PASTERNACK: YES, YOUR HONOR.
�� I WANT TO COME BACK TO CONSTITUTIONAL IMPORTANCE FOR JUST A SECOND AND
THE HYPOTHETICAL THAT I WAS GIVING YOU, THE DELTA IS 10 PERCENT R $70,000 SO
YOUR POSITION IS THAT FOR EVEN A MODEST DISCOUNT IN THE RELETTING OF
UNDER A THOUSAND DOLLARS, SAY, YOU WOULD BE ENTITLED TO THE FULL $70,000, THAT FULL
10 PERCENT XRAE. MR. PASTERNACK: YES, YOUR HONOR.
�� AND DOES THAT PRESENT POTENTIAL CONSTITUTIONAL QUESTIONS?^.
MR. PASTERNACK: NO, I DON'T THINK SO YOUR HONOR BECAUSE THE WAY THIS ACTUALLY
IS DESIGNED IS THAT THE REMEDY IS TIED TO THE UNLAWFUL PRACTICE AND FOR THE
UNLAWFUL PRACTICE CAUSES THE $70,000 DIFFERENTIAL. I THINK THE CONSUMER
IS ENTITLED TO THAT, YOUR HONOR. �� I'M SORRY, IN THE CHIEF'S HYPOTHETICAL
IT WAS RELET AT ONLY A FEW HUNDRED DOLLARS LESS, SO 69, BUT THE DELTA
IS $70,000. HOW IS THE DELTA 70000 IF THE DIFFERENCE IS ONLY $350?^.
MR. PASTERNACK: THE DIFFERENCE IS THE ASCERTAINABLE LOSS. THIS REMEDY THOUGH
GIVES YOU A MEANS OF GETTING A REFUND FOR WHAT WAS UNLAWFULLY REQUIRED
AND HERE THAT WAS ENTRANCE FEE. �� IF YOU PAID A $700,000 ENTRANCE FEE
AND YOU GET BACK ALL BUT $350 BECAUSE IT WAS RELET TO THE NEXT PERSON
AT A VERY VERY MODEST DISCOUNT, HOW COULD YOU GET MORE THAN THE $350 AS THE DELTA?^
HOW COULD YOU GET THE 70000 AS THE DELTA. WHAT IS THAT CALCULATION OF
SNEFRM. MR. PASTERNACK: WELL, I THINK IT DEPENDS ON WHAT
IS PROVEN THAT THE VIOLATION CAUSED. IF THE VIOLATION CAUSED ARE THE PERSON TO
PAY THAT AMOUNT IN ITS ENTIRETY, THAT COULD BE (INAUDIBLE) BUT IF THE
VIOLATION WAS TO A LESSER EXTENT AND I DO THINK IT MIGHT COME DOWN TO WHAT THAT
DEFERENTIAL RSZ SOIS SO YOU PAY $700,000, YOU YOU GET BACK $350 BUT YOU CAN
STILL GET MORE THAN $700,000 BECAUSE OF YOUR. MR. PASTERNACK:
IF IT SHOWED THAT THE CONSUMER DIDN'T ENTER INTO THE TRANSACTION AT ALL.
�� AND THEN SOME OF THAT WOULD HAVE TO BE MONTHLY FEES BECAUSE YOU ALREADY
GOT BACK YOUR WHOLE ENTRANCE FEE MINUS THE $350 SO YOU'RE ON SAYING YOU'RE
NOT REQUESTING MONTHLY FEES BUT. MR. PASTERNACK: NO, I DON'T THINK
THE MONTHLY FEES FIT IN BECAUSE THE CONSUMER RECEIVES BENEFITS, THEY
WOULDN'T BE ENTITLED TO GET A REFUNDS OF WHAT THEY RECEIVED SFEP. THE ENTRANCE
FEE IS DIFFERENT BECAUSE IT'S A FEE THAT'S HELD IN ESCROW. VOIGS YOU
ALREADY GOT BACK THE WHOLE FEE MINUS $350 BECAUSE IT WAS RELET AT ONLY A VERY
SMALL DISCOUNT OF $350. SO WHAT ELSE COULD YOU POSSIBLY GET ASIDE FROM THE $350
THAT YOU DIDN'T GET BACK. MR. PASTERNACK: IF I'M UNDERSTANDING
YOUR QUESTION CORRECTLY, YOU'RE SAYING THAT THEY GOT EVERYTHING BACK
MINUS 350 FROM WHAT THEY PAID. �� CORRECT BECAUSE IT WAS ONLY A VERY
SMALL DISCOUNT THAT WAS GIVEN TO THE NEXT PERSON WHO LIVED IN NA UNIT.
MR. PASTERNACK: WELL THEN THAT ACTUAL AMOUNT WOULD BE THE
SAME REFUND AMENDMENT. �� WHAT WOULD BE THE SAME REFUND AMOUNT, THE
350. MR. PASTERNACK: THE 350, YOUR HONOR SOIS SO IN THE
CHIEF'S HYPOTHETICAL OF 70000, YOU DIDN'T REALLY MEAN YOU'RE GETTING BACK 70
000. MR. PASTERNACK: CORRECT YOUR HONOR, IF I'M UNDERSTANDING
YOUR HYPOTHETICAL CORRECTLY. �� ACCORDING TO THE HYPOTHETICAL YOU WERE
GIVEN IT SOUNDS LIKE YOU WERE GETTING THE $70,000 TWICE. THAT'S WHAT
YOU'RE SUGGESTING. MR. PASTERNACK: NO I AM NEVER SUGGESTING,
THE DAMAGES CAN SEED THE REFUND BUT THE REFUND REALLY SHOULDN'T BE EXCEEDING
THE DAMAGES EXCEPT IN SOME RARE CASE I CAN'T CONCEIVE OF. ��
SO REGARDLESS OF HOW IT WOULD PLAY OUT IN THIS CASE, WHAT IS YOUR EVIDENCE OF THE
LEGISLATURES INTENT THAT THEY WANTED THE THE REFUND ROW VISION TO EXTEND
BEYOND FOOD, MENUS, REST RAUNTSDZ. MR. PASTERNACK: WELL I THINK IT'S
IMPORTANT TO START WITH FIRST PRINCIPLES AS THE COURT SAID IN LAMB LET
TOW YOU HAVE TO REVIEW THE PROVISIONS OF THE ACT BROADLY AND WHEN YOU DO THAT,
IT STARTS FROM A PROVISION OF DID THE LEGISLATURE IN SECTION 1 OF CHAPTER
347 IT REFERRED TO THIS SECTION. AND THEN LATER IN THE LEGISLATIVE HISTORY THE
CUMULATIVE REMEDY WAS ADDED AND THAT'S A PROVISION THIS COURT HAS FOUND IS
BROADLY APPLICABLE TO THE WHOLE OF THE CONNELL ASSUME MER FRAUD ACT.
ASSOCIATE JUSTICE ANNE M. PATTERSON: JUST FOCUS ON 211. LET'S TALK ABOUT
211. MR. PASTERNACK: AND FOLLOWING. ASSOCIATE
JUSTICE ANNE M. PATTERSON: IF PARTICULAR WE HAVE A. WE BUT THAT WAS VERY SPECIFIC
TOMORROW RESTAURANTS AND THE INABILITY AS THE GOVERNOR SAID IN A LIMITED
BUDGET TO SEND PEOPLE OUT TO PLEASE TRAUNTSZ WE'RE GOING TO GIVE THE CONSUMERS
THIS REMEDY R. MR. PASTERNACK: CERTAINLY YOUR HONOR. THE
LEGISLATURE, THE GOVERNOR DID HAVE 1 PURPOSE IN MIND IN PASSING CHAPTER
347 AND THAT WAS REGARDING FOOD. ASSOCIATE JUSTICE ANNE M. PATTERSON:
I'M SORRY. MR. PASTERNACK: MISS RECOMMENDATIONS ABOUT
FOOD AND FOOD PRODUCT. BUT WHAT'S MISSING IS ANY STATEMENT FROM THE LEGISLATURE
FROM THE GOVERNOR THAT THE REMEDY THAT THEY CREATED WHICH WAS PUT IN FOLLOWING
SECTIONS 1 AND 2 OF THE BILL THAT THAT IS LIMITED TO FOOD AND FOOD
PRODUCTS. �� SUPPOSE WE FIND THE LANGUAGE OF 211 AMBIGUOUS.
THEN WE LOOK TO THE LEGISLATIVE HISTORY TO TRY TO UNDERSTAND THE PURPOSE BE LINED
THE AMENDMENT. IT SDPP REQUIRE THAT WE LOOK FOR PRECISE LANGUAGE. WE'RE
BEYOND THAT. THE GOVERNORS'S CONDITIONAL VETO IN HIS PRESS STATEMENT SEEMED TO
SUGGEST THIS WAS ABOUT A SELF HELP REMEDY FOR DEFRAUDED CUSTOMERS IN A
PARTICULAR CONTEXT. HOW DO YOU GET FROM THAT TO THE ENTIRETY OF THE CFA.
MR. PASTERNACK: WHAT'S IMPORTANT IS YES, THAT WAS A REASON FOR THE REMEDY
MUCH THAT WAS IN THEIR MIND. THAT ANIMATED THE LEGISLATIVE PROCESS BUT WHAT'S
CRUCIALLY ABSENT IS ANY KWAKS THAT THE REMEDY THEY CREATED AND IF YOU
LOOK AT THE LANGUAGE IT'S DIFFERENT FROM. ASSOCIATE JUSTICE
ANNE M. PATTERSON: SO THE WITHIN ACT MEANS NOTHING MEANS THEY SAID THE WITHIN
ACT IN THE ACTUAL ENACTMENT. MR. PASTERNACK: I THINK IT'S
IMPORTANT TO LOOK AT THE PLAIN AND ORDINARY MEANING WITHIN THOSE TERMS.
WORD WIN, IT MEANS INSIDE, IN, IT'S AN ADD JEKTDTIVE. AS IT AN ADD SDWREKTTIVE
IT MODIFIES THE NOUN ACT BUT WHAT'S CRUCIAL HERE IN MODIFYING THE WORD
ACT AS THE UNITED STATES SUPREME COURT, I THINK IT WAS F IT. C VERSUS AT&T IT
SAID THAT ADJECTIVES, THEY REFLECT THE MEANING OF THE ANNOUNCE THEY CORRESPOND
WITH. ASSOCIATE JUSTICE ANNE M. PATTERSON: WAS THE
ENACTMENT AN ACT. WE'RE TALKING ABOUT THE RESTAURANT ENACTMENT, WHETHER IT HAD
A TITLE OR NOT, WAS THE RESTAURANT BASE CREDIT SET OF PROVISIONS AN ACT?^
PAT YES, YOUR HONOR BUT THE WITHIN ACT. ASSOCIATE JUSTICE ANNE M.
PATTERSON: AND THEN THEY SAID THE WITHIN ACT. WHAT DID WIN MEAN.
MR. PASTERNACK: THE WORD WIN MEANS INSIDE. WHAT'S IMPORTANT IS UNDERSTAND WHAT IS
THE MEANING OF THE WORD ACT. IN SECTION 5 OF THAT STATUTE WHICH CAME WITH
CUMULATIVE REMEDIES PROVISION, THAT WORD AGO WAS DEFINED AS THE ENTIRETY OF THE
CONSUMER FRAUD ACT. �� WHERE ARE YOU SEEING THAT ACTUAL
DEFINITION IN 2 . 13 THAT SAYS THIS APPLIES TO THE ENTIRE CFA AND THE ASHTH AS
WE SEE HERE MEANS THE ENTIRETY OF CFA. MR. PASTERNACK: IF
YOU LOOK AT LAMB LET TOWS, VOISZ I'M ASKING WHERE IN THE LANGUAGE DOES IT
SAY THAT THE ACT MEANS THE ENTIRETY OF THE C F A. MR. PASTERNACK:
WELL IT REFERS TO THE ACT BUT WHAT'S MISSING IS ANY KWAKSZ SUCH AS THE PROVISIONS
OF THE ACT SUPPLEMENTING THE ACT. ASSOCIATE JUSTICE ANNE M.
PATTERSON: I'M SORRY, IT REFERS TO THE ACT. YOU'RE ARGUING THE ABSENCEPROOF
LIMITING LANGUAGE IS CRITICAL BUT WHAT IN TERMS OF THE JUSTICE'S QUESTION WHAT
DOES, WHAT DEFINES THE ACT?^. MR. PASTERNACK: WELL IN THE
CHAPTER 347 ITSELF THERE IS NO DEFINITION FOR THE WORD ACT. AND
THAT'S WHY I THINK IT'S IMPORTANT TO LOOK AT WHAT THIS COURT HAS DONE PREVIOUSLY.
�� THE LEGISLATURE WANTED THIS TO APPLY TO THE ENTIRE CFA
THEY COULD HAVE AMENDED 8/19, CORRECT WHICH IS THE GENERAL DAMAGES REMEDY FOR
THE WHOLE CFA. MR. PASTERNACK: YES IT COULD HAVE, BUT IT
DID NOT AND WHAT'S UNIQUE ABOUT THIS PROVISION, IF IF YOU LOOK AT OTHER REFUND
PROVISIONS, YOU LOOK AT FOR EXAMPLE N.J.S.A. 568-2.21 THAT PROVISION WHICH
CONCERNS RETAIL PURCHASES, IT REFERS TO WHERE THE SALE IS MADE, IT REFERS
TO SECTION 5 AND 6 OF PUBLIC LAW 19, CHAPTER 29, IT REFERS TO THE MERCANTILE.
ASSOCIATE JUSTICE ANNE M. PATTERSON: AND THAT FOLLOWED THIS
ACT. WHY ON EARTH WERE THEY BOTHERING TO ADD REFUND PROVISIONS WHEN THEY HAD
IN YOUR VIEW ALREADY ADDED A REFUND PROVISION TO THE ENTIRE CONSUMER
FRAUD ACT?^ IT MAKES NO SENSE AT ALL. MR. PASTERNACK: WELL THE REASON
ACTUALLY GOES BACK TO WHAT YOUR QUESTIONS EARLIER. THE N.J.S.A.
568-2. 1, THE REFUND PRO ADVISE WE'RE DISCUSSING, IT WAS CAST IN VERY GENERAL
TERMS. IT DOESN'T PROVIDE AN EASY DEFINITION OF HOW TO CALCULATE WHAT A REFUND
SHOULD BE. IN OTHER LATER ADDED SUPPLEMENTS TO THE CONSUMER FRAUD
ACT SUCH AS THE RETAIL PROVISION SUCH AS N.J.S.A. 568-71, THOSE PROVISIONS ALSO
CREATED REFUNDS BUT THEY WERE VERY SPECIFIC IN HOW THEY OPERATE.
SECTION 71 FOR EXAMPLE I AND I THINK THIS IS IMPORTANT, IT CREATES A REFUND FOR
THE FULL PURCHASE PRIEGS FRF USED VEHICLES MINUS CERTAIN FEES AND ITLESS.
ASSOCIATE JUSTICE ANNE M. PATTERSON: WHY CAN'T YOU READ THAT SIMPLY
TO BE THAT WHEN YOU'RE DEALING WITH FOOD IN A RESTAURANT AND THE 10 SDSZ OR 20
SDSZ OR WHATEVER YOUR LUNCH COST, YOU GET A REFUND FOR ALL OF THAT 10
OR 20 SDSZ BUT WHEN YOU'RE TALKING ABOUT A BIG TICKET ITEM, THERE'S A MORE LIM
ITED CONCEPT OF REFUND BECAUSE THAT'S A LOT MORE MONEY INVOLVED.
MR. PASTERNACK: WELL, I THINK THAT'S EXACTLY IT, THE REFUND PROVISION IT'S CAST
IN BROAD TERMS. ASSOCIATE JUSTICE ANNE M. PATTERSON:
BECAUSE IT APPLIES ACCORDING TO THE LEGISLATIVE HISTORY IT APPEARS TO APPLY TO
WHAT YOU JUST BOUGHT IN A RESTAURANT. IF YOU GET $20 BACK ARE YOU'RE NOT GOING
TO GET 5000 $ BACK FOR A LUNCH THAT IS IN SOME WAY VIOLATIVE OF THE
RESTAURANT PROVISION. REFRM. MR. PASTERNACK: YES, YOUR HONOR BUT
THAT'S THE POINT. REFUND PROVISION DOESN'T RESULT IN WIND FALLS BECAUSE
IT'S TIED TO WHAT THE UNLAWFUL PRACTICE IS IN AND IN TERMS OF THE OF HOW THE
LEGISLATURE WROTE THE STATUTE, IT'S LEGISLATIVE HISTORY WHEN YOU VIEW IT
FROM THE LENS THAT IT'S SUPPOSED TO BE BROADLY APPLIED MUCH THERE'S NO KWAKS FROM
THE TEXT. �� MY CONCERN IS YOU'RE OVERLOOKING THE SPECIFIC
LETSCH IGS LATETIVE HISTORY THAT RELATES TO 211 AND I'M HOPING YOU CAN RESPOND
TO THAT. ASSUME THE LANGUAGE ITSELF IN THE TEXT OF THE STATUTE
IS AMBIGUOUS. WE THEN LOOK TO THE GOVERNOR'S C.V.. THAT'S A TRADITIONAL WAY OF
ANALYZING LEGISLATIVE HISTORY. IT TELLS US THE PURPOSE FOR THE AMENDMENT.
HOW DO YOU GET AROUND THAT?^. MR. PASTERNACK: WELL, THE REASON IS,
YES, THAT IS A PURPOSE FOR THE AMENDMENT BUT IT'S NOT A LIMITATION ON
THE AMENDMENT. �� SO IF LETSCH IGS LATETIVE HISTORY IS NOT
ENCOMPASSING AND BUTT TONS DOWN EVERY ASPECT WE DON'T RELY UPON IT.
MR. PASTERNACK: YES, YOUR HONOR IT'S LEGISLATIVE WAS SILENT ON WHETHER THERE'S
A REFUNDS ON THE. �� IS THERE ANYTHING THAT SUGGESTED THAT
THIS WOULD APPLY BROADLY. MR. PASTERNACK: IT DID IN USING
BROAD LANGUAGE. �� IN THE C.V., LOOKING AT THE LEGISLATIVE
HISTORY, IS THERE LANGUAGE THAT SUGGESTS THIS PARTICULAR AMENDMENT TO THE
TRUTH IN MENU PROVISIONS SHOULD APPLY BROADLY TO THE ENTIRE CFA.
MR. PASTERNACK: THERE DOES NOT YOUR HONOR BECAUSE IT HAS IT BACKWARDS WHEN YOU HAVE
TO VIEW THE CONSUMER FRAUD ACT LIBERALLY. �� ALL TRUE
BUT HERE WE'RE TRYING TO UNDERSTAND THE MEEVENG OF THE LEGISLATIVE HISTORY AND
THAT'S WHAT I'M ASKING YOU TO POINT US TO BECAUSE IT SEEMS TO BE A HURDLE
FOR YOU LOOKING AT THE LANGUAGE, NOT LOOKING AT YOUR FINE ARGUMENT BUT THE ACTUAL
LEGISLATIVE HISTORY ITSELF. MR. PASTERNACK: THE LEGISLATIVE
HISTORY, YES, YOUR HONOR IT DOES FOCUS ON FOOD AND. ASSOCIATE
JUSTICE ANNE M. PATTERSON: I'M SORRY. MR. PASTERNACK:
MISREPRESENTATIONS ON FOOD PRODUCT BUT IT'S SILENT ON ANY LIMITATION ON THAT
REMEDY. �� SO YOUR VIEW IS IT MAKES IT SILENT.
MR. PASTERNACK: YES, YOUR HONOR, WE CAN'T RELY UPON IT. AND IF THERE WAS A
STATEMENT VOISZ BUT ISN'T THAT CONTRARY TO THE STATEMENT THAT SPECIFICALLY
SAYS THIS LIVE I SAY LATHS IS VERY SPECIFIC, NOT THIS LEGISLATION IS VERY SPECIFIC
BUT IS INTENDED TO APPLY BROADLY. IT SEEMS LIKE BROAD IS THE OPPOSITE OF
SPECIFIC. AND HERE THEY SAY THIS IS VERY SPECIFIC E. MR. PASTERNACK:
BUT YOUR HONOR I BELIEVE THAT PREDATES THE REFUNDS PROVISION E I DON'T THINK
THAT ACTUALLY INFORMS WHAT THE REFUND PROVISION MEANS PARTICULARLY WHEN
THE CUMULATIVE REMEDY PROVISIONS WHICH IS ALSO ADDED PROVISION WHEN THAT PROVISION
HAS BEEN FOUND TO APPLY. ASSOCIATE JUSTICE ANNE M. PATTERSON:
IT KWATSZ THAT THE LEGISLATURE WAS LOOKING AT A RESTAURANT PROVISION
AND THEN WHEN YOU SAID IT PREDATES THE C.V.. IT DOES. BUT WHEN YOU ADD TO THE
C.V. THAT THE GOVERNOR IS SAYING I'M SUGGESTING THE FOLLOWING CHANGES, I'M
PARAPHRASING, TO THIS ACT BECAUSE WHAT IT IS ADDRESSING HERE WE CAN'T POLICE
AND THAT'S RESTAURANTS. SO YOU START WITH THE ASSEMBLY STATEMENT, TALKING ABOUT
IT BEING SPECIFIC, AND THEN YOU GET TO THE C.V. WHICH SEEMS TO HAVE HAD
SOMETHING TO DO WITH RT PROVISION WE'RE NOW TALKING ABOUT WHICH UNDER SCORES
THE FOCUS ON RESTAURANTS, IT DOESN'T WEAKEN IT. HOW DO YOU GET AROUND
THAT. MR. PASTERNACK: BECAUSE IF YOU LOOK AT UNITED STATES
V (INAUDIBLE) I THINK IT VERY APARTMENTLY EXPLAINED THAT IN -- THAT IN LEGISLATIVE
HISTORY, IT DOESN'T HAVE TO -- IT MAY NOT HAVE EXPRESSLY REFERRED TO
EVERY PERMISSIBLE USE OF A STATUTE IN THE LEGISLATIVE HISTORY AND THAT'S WHAT
WE HAVE HERE. YOU HAVE THE LEGISLATURE PUTTING FORWARD A USE FOR THE
STATUTE. IT DOES NOT PUT FORWARD ANY LIMITATION ON THE STATUTE SO YOU CAN INFER
FROM THEN THE PLAIN LANGUAGE OF THE STATUTE THAT IT IS TO BE PROCEEDLY APPLIED
BECAUSE THE LEGISLATURE NEED NOT SPECIFY EVERY SINGLE INSTANCE.
ASSOCIATE JUSTICE ANNE M. PATTERSON: SO THE THE WHEN I ASSEMBLY COMMITTED
SAYS SPECIFIC, WHAT IS SPECIFIC?^ WHAT DOES THAT MEAN. MR.
PASTERNACK: THAT WAS EARLY IN THE PROCESS AND I THINK IT'S KRUSH THAT THIS
COURT EXPLAIN THAT THE LEGISLATURE KNOWS HOW TO CRAFT THE LATCH SO SUCH
THAT IT WOULD PUT UNDOUBTEDLY MEAN THAT IN THAT CASE THE CIVIL RIGHTS ACT DID
NOT, WAS NOT LIMITED TO ACTIONS OF INVOLVING DISCRIMINATION AND HERE THERE IS
NO CERTAINTY ABOUT A LIMITATION AND GIVING THE LACK OF LIMITING LANGUAGE
SPECIFICALLY IN THE STATUTE ITSELF IN THE LEGISLATIVE HISTORY YOU HAVE TO BROADLY
CONSTRUE IT AND THAT MEANS IT IS THE ENTIRETY OF THE CONSUMER FRAUD AND
THAT'S KINTD WITH LEM LAT TOW, DUGAN, WEINBERG AND SUN CHEMICAL.
ASSOCIATE JUSTICE ANNE M. PATTERSON: IS THERE ANY REMEDY PROVISION THAT APPLIES,
STATUTE WISE, CONSUMER FRAUD ACT, ACROSS THE BOARD THAT IS NOT IN 819?^
M ANY OTHER BECAUSE YOU'RE SAYING THIS 1 IS. THIS 1 IS ELEVATED TO THE FULL UM
BRELLA OF THE ENTIRE STATUTE. CAN YOU THINK OF ANY OTHER PROVISION, ANY
OTHER REMEDY AVAILABLE THROUGHOUT THE CONSUMER FRAUD ACT THAT ISN'T SET FORTH
IN 819?^. MR. PASTERNACK: YOUR HONOR, IT'S NOT SET FORTH
IN 819, THE REFUNDS PROVISION HERE, BUT WHAT'S DIFFERENT IN THIS PROVISION AND
OTHERS IS. ASSOCIATE JUSTICE ANNE M. PATTERSON: IS THE ANSWER
TO MY QUESTION THAT EVERYTHING ELSE'S -- EVERY GENERAL REMEDY PROVISION THAT
APPLIES TO THE CFA IS IN 819. AM I CORRECT?^ I KNOW THE ARGUMENT YOU'RE MAKING
THIS ABOUT THIS 1 BUT OTHERWISE. MR. PASTERNACK: BUT WE BELIEVE
THE REFUND PROVISION IS JUST AS THE THE IS BROADLY APPLICABLE TO THE
ENTIRETY OF THE CONSUMER FRAUD ACT SOIS ASIDE FROM THOSE 2. THE ANYTHING RELS
ANYWHERE ELSE ASIDE FROM 819 THAT APPLIES THROUGHOUT THE C F A.
MR. PASTERNACK: NOT THAT I'M AWARE OF, YOUR HONOR. ��
COUNSEL, WOULD YOU LIKE TO ADDRESS THE IMPORT OF LAMB LET TOW AND THE FOLLOWING
CASES. MR. PASTERNACK: YES, YOUR HONOR, IN LAMB LET TOW,
WEINBERG AND DUGAN, I THINK WHAT'S IMPORTANT IS THIS COURT ACTUALLY CONSIDERED
THE LANGUAGE. IN WEINBERG IT QUOTED THE REFUNDS PROVISION AND IT CAME TO THE
OBSERVES THAT IT IS BROADLY APPLICABLE. AND I THINK IMPORTANTLY, THE MEANING
OF THE WORDS IN REM DID Is PROVISION AND THE CUMULATIVE RECOMMEND DISPROVISION
I THINK BECAUSE THEY BOTH USE THE WORD ACT I THINK IT HAS TO NECESSARILY
FOLLOW THAT THE MEANING OF THE WORD ACT ACCORDED TO THE CUMULATIVE REMEDY PROVISION
IN SUN CHEMICAL WHICH INVOLVED AN EXPLOSION AND. NOTHING ABOUT FOOD.
ASSOCIATE JUSTICE LEE A. SOLOMON: LET ME, SUN CHEMICAL AND
LAMB LET TOW SPOKE IN TERMS OF THE CONSUMER FRAUD ACT PROVIDING RECOMMEND DISIN
ADDITION TO OTHER STATUTES, NOT THE CONSUMER FRAUD ACT, NOT ANYTHING
IN THE CONSUMER FRAUD ACT. THE CONSUMER FRAUD ACT AS AN A WHOLE PROVIDING RECOMMEND
DISIS IN ADDITION TO ALL THE OTHER STATUTORY AND COMMON LAW REMEDIES
AVAILABLE. IT WASN'T PARSING SECTIONS AND PARTS AND REMEDIES UNDER SECTIONS THE
CONSUMER FRAUD ACT. IT WAS TALKING GENERALLY. THOSE 2 CASES HAVE NO
APPLICABILITY TO THIS CASE. THIS IS A SECTION OF THE CONSUMER FRAUD ACT
THAT YOU ARE SEEKING TO APPLY THROUGHOUT THE CONSUMER FRAUD ACT R THE CUMULATIVE
REMEDIES PROVISION TYPICALLY APPLIES TO OTHER REMEDIES PROVIDED BY STATUTE
OR COMMON LAW IN ADDITION TO THE CONSUMER FRAUD ACT. THOSE 2 CASES HAVE NOTHING
TO DO WITH THIS. MR. PASTERNACK: WELL, YOUR HONOR, I
DISAGREE ON THE CONCLUSIONS YOU'RE DRAWING THE. THE CUMULATIVE PROVISIONS YES,
IT DOES MAKE IT SO THAT THE REMEDIES PROVIDED UNDER THE CONSUMER FRAUD ACT CAN
COEXIST WITH THE REMEDIES PROVIDED IN OTHER STATUTORY SKEEMSZ.
ASSOCIATE JUSTICE LEE A. SOLOMON: AND THAT'S WHAT YOU HAD IN LAMB LET
TOW AND SUN CHEMICAL. MR. PASTERNACK: THAT'S CORRECT BUT IN. THIS
COURT RELIED ON THE WHICH IT APPLIED IT TO NONFOOD CASES AND FOUND THAT
IT WAS APPLICABLE. THAT WAS PART OF THE COURT'S HOLDING. YOU CAN'T SEPARATE
THAT. �� SHOULDN'T WE RELY ON, YOU HAVE CHAPTER 3 FREFRN
THAT BEGINS WITH SECTION 1 DESCRIBING HOW THE STATUTE WILL APPLY TO FOOD RELATED
ISSUES AND MISS REPRESENTATIONS AND THEN IT GOES ON THROUGH EVENTUALLY WILL
BECOME 2.10 TO DESCRIBE ACTS KONSZ STEWING MISREPRESENTATION. THAT BECOMES SECTION
2. THEN WE HAVE 2.11 WHICH BECOMES, WHICH COMES FROM SECTION 3 OF CLAPT
TER 347 WHICH TALKS ABOUT THE VIOLATIONS. YOU HAVE 212, THE RECOVERY AND REFUND
OF PRIVATE ACTION AND THEN 213, SECTION 5. THE LAST SECTION THAT DISCUSSES, THE
RIGHTS, RECOMMEND DISINTEREST PROHIBITIONS ACCORDED BY THE
PROVISIONS OF THIS ACT. MEANING 1 VIEW OF THIS COULD BE EVERYTHING THAT JUST CAME
BEFORE IT. THE LAST 4 SECTIONS ARE HERE BY DECLARED TO BE IN ADDITION TO AND
CUMULATIVE OF ANY OTHER RIGHT AND RECOMMEND DIS. SHOULDN'T THAT BE THE
WAY WE LOOK AT THIS PACKAGE OF THIS PARTICULAR ACT WHEN IT WAS SDIENDZ.
MR. PASTERNACK: NO, YOUR HONOR, AND THE REASON IS THAT HE BECAUSE THE
LEGISLATURE DIDN'T INCLUDE LIMITING LANGUAGE THERE, IT DIDN'T REFER TO THE
PROVISIONS OF THIS ACT SUPPLEMENTING CHAPTER 1960, I DON'T REMEMBER THE THE
NUMBERS THERE AND WHAT'S DIFFERENT IS USING THIS GENERAL LANGUAGE THAT CAN BE
APPLICABLE TO ANY TYPE OF REMEDY WHEN YOU CONSIDER THAT YOU HAVE TO
LIB RAHLY CONSTRUE THE LANGUAGE, WELL, YES, THERE IS A CONSTRUCTION ACT THAT
COULD BE LIMITING IT TO JUST CHAPTER 29 BUT EQUALLY THERE'S A CONSTRUCTION
THAT MAKES IT BROADER AND THAT'S WHAT THIS COURT USED IN SUN CHEMICAL, THEY USED IT
IN LAMB LET TOW, IT WAS. ASSOCIATE JUSTICE ANNE M. PATTERSON: SO
IF WE HAVE PROVISIONNESS SPECIFIC ACCIDENTS BUT AS YOU WELL KNOW THE
STATUTE HAS BEEN MANY MANY TIMES AMENDED SO WE SHOULD GO BACK TO THOSE AMENDMENTS
AND LET'S SAY THEY LIMIT A REMEDY AND THEY DON'T SAY WE'RE ONLY, RIGHT
NOW BELLS AND WHISZ ELSE, WE'RE ONLY LIMITING THE REMEDY ND THIS TIBLG TYPE OF
CONSUMER FRAUD SALES, PRACTICE OR WHATEVER IT MAY BE, WE SHOULD THEN SAY WELL
THEN THAT REMEDY IS LIMITED THROUGHOUT THE CONSUMER FRAUD ACT BECAUSE
THEY DIDN'T SPECIFICALLY SAY WE'RE ONLY TALKING ABOUT THE LAST 5 SECTIONS AS
JUSTICE NOR YEAH GA MENTIONED. THE IT DIDN'T SAY IT THAT EXPRESSLY.
THEREFORE WE SHOULD VIEW THAT LIMITATION FOR WHATEVER THAT CONTEXT WAS TO GOVERN
EVERY SINGLE SETTING OF THE CONSUMER FRAUD ACT. I SUSPECT YOU WANT TO SAY TO
ME ARE YOU CRAZY. YOU CAN SAY THAT IF YOU'D LIKE. (LAUGHTER).
MR. PASTERNACK: I WOULD NEVER SAY THAT. ASSOCIATE JUSTICE ANNE M.
PATTERSON: WELL YOU DEFINITELY WANT TO SAY NO AS VERY FINE COUNSEL FOR
PLAINTIFFS. YOU'RE DEFINITELY GOING TO SAY DONE LIMIT THESE THINGS THAT ARE
SOMETIMES LIMITED IN SPECIFIC SETTINGS. DON'T LIMITING THE WHOLE CONSUMER FRAUD
ACT, THAT'S NOT THE LETSCH I SAY RATETIVE INTENT WHICH IS WHAT YOU
WOULD SAY TO ME IN THIS CASE. MR. PASTERNACK: YES YOUR HONOR.
�� COUNSEL, YOU'RE RELYING HEAVILY ON THE REMEDY SECTION. HELP US TO UNDERSTAND
THE MEANING OF THE ASSEMBLY STATEMENT. THE LANGUAGE THAT WAS QUOTED EARLIER
WHICH SAYS THE NEW SECTION 3, THE CUMULATIVE REMEDY SECTION WAS ADDED TO PROVIDE
RIGHTS, RECOMMEND DISINTEREST PROHIBITIONS ACCORDED BY THE BILL AND THE
BILL REFERENCES BACK TO THE EARLIER LANGUAGE HERE ABOUT THE TRUTH IN MENU
PROVISIONS AND THAT THOSE RIGHTS ARE IN ADDITION AND CUMULATIVE TO OTHER RIGHTS.
DOESN'T THAT SUGGEST THAT THE CUMULATIVE RECOMMEND DISSECTION RELATES
TO THE BILL, THE TRUTH IN MENU ACT. MR. PASTERNACK: NO, YOUR HONOR.
THAT EXPRESSES AN AIM OF THE CUMULATIVE RECOMMEND DISACT BUT BECAUSE
THE LANGUAGE IS STRUCTURED IN A WAY THAT LEAVES IT FOR A BROADER INTERPRETATION
IT'S THE LANGUAGE THAT CONTROLS SNOOV SO YOU'RE SAYING THE AIM. SO WE'RE
TALKING ABOUT LEGISLATIVE INTENT. EVERY TIME YOU SAY THAT WAS THE GOAL BUT THE
LANGUAGE THEY USED IS NOT. IT'S NOT CONSISTENT WITH THAT GOAL. WE'RE ALREADY
LOOKING AT LEGISLATIVE INTENT OF THE I KNOW, I THINK YOUR ORIGINAL ARGUMENT
IS LOOK, THE STATUTE IS VERY CLEAR. THE WITNESS: THERE'S
NO NEED TO LOOK AT EXTRINSIC MATERIALS AND LEGISLATIVE INTENT. I MEAN BOTH
PARTIES ARE ARGUING THAT. BOTH PARTIES ARE ARGUING THAT THE LANGUAGE IS VERY CLEAR
AND WE DON'T NEED TO LOOK AT LEGISLATIVE INTENT BUT WE'RE LOOKING INTENT. I KNOW
YOUR ARGUMENT IS THAT THE FINAL PRODUCT AND THE LANGUAGE COULD BE
INTERPRETED TO MEAN A MILLION DIFFERENT THINGS BUT WE ARE LOOK AT WHAT THE
LEGISLATURE INTENDED. CAN YOU SAY THAT LOOKING AT THE LANGUAGE THAT THE CHIEF
CHIEF JUST READ THAT THE LEGISLATURE DID NOT INTEND FOR THE CUMULATIVE RIGHTS
AND REMEDY SECTION TO APPLY TO THIS BILL. THAT IS WHAT THAT SENTENCE
SAYS, CORRECT. MR. PASTERNACK: CORRECT, YOUR HONOR BUT I
THINK THERE'S A DISCONNECT BECAUSE THE LANGUAGE ISN'T STRUCTURED IN A WAY THAT
WOULD LIMIT THE REACH OF THE CUMULATIVE SNOOV SO THE LANGUAGE IS AM BIG INTUSZ
WE'RE NOW LOOK AT WHAT THE LEGISLATURE INTENDED THAT SENTENCE MAKES
IT PRETTY CLEAR THAT 2.13 WAS INTENDED TO APPLY TO THIS BILL. MR.
PASTERNACK: I THINK, THOUGH, THAT'S 1 PURPOSE. I DON'T THINK THAT LIMITS THE
SCOPE OF IT BECAUSE THAT WASN'T THE LANGUAGE USED. VOISZ WHAT WASN'T
THE LANGUAGE USED. MR. PASTERNACK: THERE WASN'T LANGUAGE
SAYING FOR EXAMPLE, OTHER PROVISIONS REFER TO A REFUND IS AVAILABLE FOR VIOLATIONS
OF SECTIONS 5 AND 6 OF CHAPTER 1982 VOISZ UNDERSTOOD. UNDERSTOOD.
MR. PASTERNACK: WE DON'T HAVE THAT LANGUAGE HERE. ��
SO WHAT YOU'RE SAYING IS THOUGH EVEN THOUGH IT'S PRETTY CLEAR THAT EVEN THOUGH
THE LEGISLATURE INTENDED THE RIGHTS, REMEDIES AND PROHIBITIONS ACCORDED
BY THE BILL ARE IN ADDITION TO AND CUMULATIVE OF ANY OTHER RIGHT. ALTHOUGH IT
DIDN'T -- BECAUSE THE SECTION DOES NOT SPECIFICALLY LIMIT TO -- LIMIT
THAT TO THE TRUTH IN MENU ACT BUT THE LEGISLATURE'S INTENT HERE DOES NOT MATTER.
MR. PASTERNACK: I THINK IT DOESN'T MATTER BECAUSE THE LE
GISLATURE, IT KNOWS HOW TO CRAFT LEGISLATION TO SERVE ITS ENDS. IT DID
MULTIPLE TIMES. CHAPTER, IN 19 I DON'T REMEMBER OFFHAND BUT IT'S DONE.
�� WHAT ABOUT THE 21 DIFFERENT SUPPLEMENTARY STATUTE THAT PROVIDE THE DIRECTOR
OF D.C. A MAY PROMULGATE REGULATION TO DO FESHTH WAIT THE PURPOSES OF THIS
ACT OR TO IMPLEMENT THIS ACT. IF THE WORD ACT AS YOU'RE SAYING ALWAYS APPLIES
TO THE ENTIRETY OF THE CFA AND THE LEGISLATURE CAN USE MORE LIMITED LANGUAGE
IF IT WANTS TO, WHY DOES DID HAVE TO SAY THE SAME THING 21 TIMES RATHER
THAN JUST ASSUMING THAT THE DIRECTOR OF D.C. A NOW HAS THE POWER TO PROMULGATE
REGULATIONS ON THE ENTIRETY OF THE CFA BECAUSE WE USED THE WORD THIS ACT
AND THIS ACT ALWAYS MEANS THE ENTIRETY OF THE C F A. MR.
PASTERNACK: WHAT'S CRUCIAL IS THE WORD ACT DOESN'T ALWAYS MEAN THE ENTIRETY OF THE
CFA. YOU HAVE TO LOOK AT THE CONTEXT IF IN THE PROVISION THERE'S A REFERENCE
TO USED CARS OR VOISZ SO HERE THERE'S SO MANY REFERENCES TO FOOD PAT THERE'S
NOT A REFERENCE TO FOOD IN N.J.S.A. 568-2. 11. ASSOCIATE
JUSTICE ANNE M. PATTERSON: SOMETIMES THIS ACT MEANS THE C F A AND SOMETIMES IT
MEANS THE SPECIFIC. MR. PASTERNACK: YES, YOU HAVE TO LOOK
AT THE CONTEXT OF THE PARTICULAR PROVISION R. ASSOCIATE
JUSTICE ANNE M. PATTERSON: SLOONTD WE VIEW THIS ACT TO MEAN IN THE CFA IN
'{^}EVERY CASE. WE SHOULD JUST DO IT SOMETIMES. MR. PASTERNACK: YES,
IN THIS CASE I THINK IT APPLIES BROADLY TO THE ENTIRE CFA. OF THE AS IN LAMB
LET TOW AND SUN CHEMICAL, THEY FOUND THE CUMULATIVE RECOMMEND DISPROVISION
APPLIES TO THE TOTALITY OF THE C F A AND IT'S BECAUSE IN THE CONTEXT OF THOSE
2 PROVISIONS THERE'S NO LANGUAGE THAT KWATSZ IT'S LIMITED TO THE
PARTICULAR BILL VERSUS THE ENTIRETY OF THE CFA. �� WE UNDERSTAND YOUR
POSITION. IS THERE ANYTHING YOU WOULD LIKE TO PRESENT IN ADDITION.
MR. PASTERNACK: NO, YOUR HONOR. I THINK THAT VERY CLEARLY EN CAPS LATSZ IT
AND I THINK IT'S BECAUSE THERE'S NO CLEAR KWAKSZ OF THE STATUTORY TEXT
WHICH THE LEGISLATURE KNOWS HOW TO DRAFT THAT IN THIS COURT'S PREVIOUSLY YOU HAVE
TO LIB RAHLY CONSTRUE THE C F A YOU HAVE TO PROVIDE THE PROVISIONS BROADLY AND
COMPEL A FINDING HERE THAT THE WORD ACT AS USED IN THE REFUND PROVISION
IS BROADLY APPLICABLE TO THE ENTIRETY OF THE CFA AND FOR THIS REASON THIS PARTIAL
MOTION FOR SUMMARY JUDGEMENT SHOULD BE AFFIRMED. VOISZ TLAFRNGS YOU.
THANK YOU ALL COUNSEL. WE'LL TAKE THE MATTER UNDERSTAND ADVISEMENT