HAVE APPEARANCES OF COUNSEL. (APPEARANCES TENDERED.)
Michael Renbu: JOO IS A. MICHAEL RENBU: SOO.
MICHAEL D. MEUTI: GOOD MORNING, YOUR HONOR, MAY IT PLEASE THE COURT. MY NAME IS
MICHAEL MUTUAL FROM BEN FROOE AND I HEAR REPRESENTING DEFENDANT PETITIONER
SPARC GROUP. I WOULD LIKE TO RESERVE FIVE MINUTES FOR REBUTTAL.
THE COURT: WE'LL HAVE YOU BACK PERHAPS FOR A LITTLE LESS.
PLEASE GO AHEAD. MICHAEL D. MEUTI: THE COURT
SHOULD REVERSE THAT THE PLAINTIFFS AECH ALLEGE AN ASCERTAINABLE LOSS UNDER
THE BE CONSUMER FRAUD ACT. THE CASE PRESENTS A STRAIGHTFORWARD ISSUE, DOES A CONSUMER
SUFFER AN ASCERTAINABLE LOSS OR AN ADVERSE CONSEQUENCE WHEN SHE RECEIVES
THE PRECISE GOODS PROMISED FOR THE EXACT PRICE AGREED UPON. THE
ANSWER IS NO. HERE, PLAINTIFFS RECEIVED THE FULL BENEFIT
OF THEIR BARGAIN. THEY BARGAINED TO EXCHANGE A PARTICULAR AMOUNT OF MONEY FOR A
PARTICULAR BUNDLE OF GOODS. THEY PAID THAT AMOUNT. THEY RECEIVED THOSE
GOODS. THEY, THEREFORE, RECEIVED THE BENEFIT OF THEIR BARGAIN.
ACCORDINGLY THE PLAINTIFFS HERE DID NOT SUFFER ANY ASCERTAINABLE
LOSS UNDER THE C F A AN DID NOT AGRIEVE ANY CONSUMERS. THE
COURT HELD, THAT WITHOUT AN OBJECT I HAVE DIFFERENCE BETWEEN WHAT WAS PROMISED
AND WHAT WAS RECEIVED THERE CAN BE NO ASCERTAINABLE LOSS. HERE,
PLAINTIFFS OFFER NO OBJECTIVE DISCREPANCY. INSTEAD THEY OFFER ONLY SUBJECTIVE
DISAPPOINTMENT. AND THE COURT HELD IN THIEDEMANN THAT THAT WILL NOT SUFFICE.
WE CAN USE PLAINTIFF ROBEY'S SWEATSHIRT AS AN EXAMPLE. SHE PICKED IT OUT IN PERSON
INTENDING TO PAY $24 FOR IT. SHE PAID $24 FOR IT AN LET LEFT THE STORE
WITH THE VERY SWEATSHIRT THAT SHE HAD PICKED OUT. SHE RETAINED THAT SWEATSHIRT.
SHE HAS NEVER SUGGESTED ANY OBJECT ZEKTD I HAVE DISPARITY BETWEEN WHAT
SHE BOUGHT AND WHAT WAS PROMISED AND NO COMPLAINTS ABOUT THE FIT. NO COMPLAENTS
ABOUT THE MATERIAL. NO COMPLAINTS ABOUT THE STYLE, WORKMANSHIP OR SO ON.
SHE SUFFERED NO ASCERTAINABLE LOSS. NOW, TOUCHSTONE
OF AN ASCERTAINABLE LOSS IS A CUSTOMER RECEIVING LESS THAN WHAT WAS PROMISED.
AND THE DIFFERENCE BETWEEN WHAT WAS PROMISED AND RECEIVED MUST BE
OBJECTIVE. SUBJECT DISAPPOINTMENT CANNOT SUFFICE. ONLY IF THERE IS AN OBJECTIVE
DISCREPANCY CAN THERE BE A LOSS. AND THIS COURT'S AUTHORITY MAKES PLAIN THAT
IN ORDER FOR THAT LOSS TO BE ASCERTAINABLE, IT HAS TO BE QUANTIFIABLE AN MEASURABLE,
NOT HYPOTHETICAL OR ILLUSORY. HERE, THE PLAINTIFFS HAVE PROFFERED
TWO THEORIES FOR ASCERTAINABLE LOSS, WENT FIT OF THE BARGAIN AN OUT OF POCK
CONNECT. NEITHER OF THEM WORK. LET'S START WITH THE BENEFIT OF THE
BARGAIN THEORY. HERE, PLAINTIFFS HAD RECEIVED THE BENEFIT OF THEIR BARGAIN.
TO SHOW THAT THE BENEFIT OF THE BARGAIN WAS NOT FULFILLED, A PLAINTIFF NEEDS TO
SHOW AN OBJECTIVE DIFFERENCE BETWEEN WHAT WAS PROMISED AND WHAT WAS RECEIVED.
THIEDEMANN SHOWS AS MUCH. THERE, THE PLAINTIFFS RECEIVED CARS WITH DEFECTIVE FUEL
SYSTEMS. THEY EXPECTED TO RECEIVE CARS THAT WORKED WITHOUT DEFECT. THE
SELLER FIXED THE DEFECT UNDER THE WARRANT, BUT THE PLAINTIFF SUED CONTENDING THAT
BECAUSE THEY RECEIVED DEFECTIVE VEHICLES, THEY DIDN'T GET WHAT THEY EXPECTED
AND THAT THE DEFECTS WOULD DIMINISH THE RESALE VALUE OF THE CARS.
THE COURT CONCLUDED THAT THE PLAINTIFFS HAD NOT ALLEGED AN ASCERTAINABLE LOSS.
THE ANALYSIS NOTED THAT AN ASCERTAINABLE LOSS CLAIM WOULD FAIL UNLESS THE
DIFFERENCE BETWEEN WHAT WAS PROMISED AND WHAT WAS RECEIVED IS, QUOTE, OBJECTIVE
LY ASCERTAINED AND IS NOT DEFINED BY SUBJECTIVE WANTS OF THE PLAINTIFFS, CLOSE
QUOTE. THAT'S AT 183 N J THE 244. THE PLAINTIFF'S CLAIM FAILED
THERE BECAUSE THEY OFFERED NO DIMINUTION OF VALUE OF EITHER THEIR PROPERTY
OR THEIR OBJECTIVE EXPECTATIONS. THE COURT EMPHASIZED AGAIN AT PAGE
252 THAT SUBJECTIVE AS CERTIFICATION. ASCERTAIN SHUNS JUST
CANNOT SUFFICE. THE PLAINTIFF'S PROFFERED OUT OF POCKET
THEORY DOESN'T WORK EITHER. THEY CAN'T ESTABLISH AN OUT OF POCKET LOSS FOR MULTIPLE
REASONS. FIRST, UNDER THE OUT OF POCKET LOSS THEORY, PLAINTIFFS
ARE ENTITLED TO RECOVER THEIR FULL PURCHASE PRICE, WHAT THEY SEEK HERE, ONLY IF
GOODS THAT THEY RECEIVED ARE ESSENTIALLY WORTHLESS. THE PLAINTIFFS
HAVE NOT SUGGESTED THAT HERE. INSTEAD, THEY ACKNOWLEDGE THAT THE GOODS WERE WORTH
THE AMOUNT THAT THEY PAID. THAT BRINGS ME TO THE SECOND REASON
THERE CAN BE NO OUT OF POCKET LOSS HERE. THERE IS NO OUT OF POCKET LOSS
UNLESS A PLAINTIFF RECEIVES SOMETHING THAT IS OBJECTIVELY LESS VALUABLE THAN THE
AMOUNT PAID. THEY HAVE OFFERED NO ALLEGATION THAT THAT IS THE
CASE. THIRD, THE PLAINTIFFS RETAINED VALUE FROM THEIR PURCHASES.
THEY NEVER ATTEMPTED TO RETURN THE GOODS. INSTEAD, THEY KEPT THEM. THEY CAN'T
PLEAD ANY OUT OF POCKET LOSS WITHOUT ALLEGING THAT THE ITEMS THEY RECEIVED
WERE LESS VALUABLE THAN THE AMOUNTS PAIDED AND THEY HAVEN'T DONE THAT.
THE NEW JERSEY CASES, INCLUDING CASES FROM THIS COURT HAVE REPEATEDLY HELD THAT
A SET OFF IS NECESSARY WHEN THE PLAINTIFF RETAINS SOME VALUE FROM THE PURCHASE.
THAT WAS TRUE IN CASES LIKE COX, IN D'AGOSTINO WHERE THE COURT APPLIED A SET OFF
FOR INCREASED VALUE ENHANCEMENTS TO THE PROPERTY AT ISSUE AND IT WAS ALSO
TRUE IN BOSS IN HER WHERE THE COURT REFUSED TO REFUND THE WHOLE PURCHASE PRICE
OF A VEHICLE IN AN OVER CHARGE CASE RECOGNIZING THAT THE PLAINTIFF HAD
RETAINED THE VEHICLE AN HAD OBTAINED VALUE FROM IT. FOR ALL OF THOSE
REASONS, THE PLAINTIFFS DO NOT ALLEGE ANY ASCERTAINABLE LOSS SFLFRJT SO IN THIS
CASE, PLAINTIFF COMES FORWARD AND SAYS, AMONG OTHER THINGS, YOU PROMISED
HER A DISCOUNT AND YOU DIDN'T GIVE HER ONE. WHAT IS YOUR
RESPONSE TO THAT? MICHAEL D. MEUTI: A DISCOUNT IS NOT A MATERIAL
TERM OF THE AGREEMENT. PRICE, BY CONTRAST IS. AND I SEARCHED WEST LAW TO FIND
ANY CASE HOLDING THAT A DISCOUNT WAS A MATERIAL TERM OF A TRANSACTION. I CAME
UP EMPTY. IT IS PLAQUE LETTER LAW THAT THE PRICE IS A MATERIAL TERM OF
A CONSUMER TRANSACTION. THE COURT: SO, ASSUME THAT THERE IS
DECEPTION, TAKE ANOTHER CASE, IS THERE A REMEDY WHEN A MERCHANT MAKES UP A FALSE
PRICE AND PLACES IT FOR SALE, DOES THE FF A PROVIDE FOR A REMEDY.
MICHAEL D. MEUTI: YOU ASKED ME TO ASSUME THAT THERE IS DECEPTION CORRECT?
OKAY. MR. CHIEF JUSTICE, IT WOULD DEPEND UPON THE
CASE. THE COURT: THERE IS A PRICE LISTED, A REFERENCE PRICE
AS WE HAVE IN THIS CASE AN IT HAS NEVER EVER BEEN SOLD AT THAT VALUE BEFORE. IT
WAS A FICTIONAL PRICE THAT WAS PUT UP THERE TO INDUCE, THE ARGUMENT WE HAVE
IN THIS CASE, TO INDUCE THE CUSTOMER TO GO FORWARD. IS THERE A RE
MEDY UNDER THE C F A. MICHAEL D. MEUTI: IF THE PLAINTIFF COULD
ESTABLISH AN OBJECTIVE DIFFERENCE BETWEEN WHAT WAS PROMISED AND WHAT WAS DECEIVED,
THEN PERHAPS, BUT NOT IN A CASE LIKE THIS WHERE WHAT WAS PROMISED AND WHAT WAS
RECEIVED ARE SAL SAL, EXACTLY THE SAME. JUSTICE PATTERSON: WHAT
IS YOUR RESPONSE TO THE CONSUMERS CARE ABOUT IN TANGIBLE QUALITY SUCH AS THE
AMOUNT OF DISCOUNTED CLOTHING THEY ARE CONSIDERING BUYING USED TO BE WORTH BUT FOR
A TIME BEING THERE SUPPOSEDLY AT A TIME OF A DISCOUNT. MICHAEL D.
MEUTI: THAT CONCERN OVER IN TANK JIBLS DOES NOT AMOUNT TO AN OBJECTIVE DIFFERENCE.
I WILL OFFER HERE WHAT MY COLLEAGUE MR. GROOEN BAUM LIKES TO CALL THE
IMPORTANT SHOOK EXAMPLE. LET'S SUPPOSE THAT A MONTH BEFORE THE
PLAINTIFF MADE HIS PURPOSE, SOME MORE SMOOK CAME INTO THE STORE AN BOUGHT, WOULD
ROBEY BE ANY OBJECT JETH I HAVELY BETTER OFF UNDER THAT SCENARIO?
SHE WOULD NOT. CHIEF JUSTICE RABNER: BUT LET'S TALK ABOUT
NOT THE ACTUAL PURCHASE THAT TOOK PLACE, BUT THE FICTIONAL PRICE SITUATION AND THE
REGULARS REGS COME OUT AN DIRECTLY SAY THAT'S A VIOLATION OF THE CONSUMER FRAUD
ACT, FROM LOOKING AT 13-35 A-9.6, WHAT REMEDY IS THERE FOR A VIOLATION OF
THAT PROHIBITION. MICHAEL D. MEUTI: WELL, THE ATTORNEY GENERAL
COULD BRING SUIT TO ENJOIN THAT TYPE OF FALSE PRICE. THE COURT:
AND HOW ABOUT A CONSUMER? MICHAEL D. MEUTI: 56 SPACE 819 LIMITS
A PRIVATE RIGHT OF ACTION TO WHEN THERE IS AN ASCERTAINABLE LOSS.
THE COURT: SO IF THERE IS AN ASCERTAINABLE LOSS, COULD THERE BE A VIABLE CAUSE OF
ACTION. MICHAEL D. MEUTI: IF THERE IS AN ASCERTAINABLE LOSS
AN HERE THERE IS NOT. THE ASCERTAINABLE LOSS REQUIREMENT IS A
PLAINTIFF'S TICKET TO COURT. IT IS IMPORTANT TO NOTE HERE THAT WHEN
THE LEGISLATURE DRAFTED THE PRIVATE RIGHT OF ACT PROVISION, IT DID NOT PROVIDE
THAT ANY TRANSACTION SOESH WITH A VIOLATION WOULD SUPPORT A PRIVATE RIGHT OF
ACTION. INSTEAD, ONLY ONE THAT CAUSED A LOSS. PUT DIFFERENT
LY, THE LEGISLATURE REQUIRED LOSS CAUSATION, NOT TRANSACTION CAUSATION. L WE
CAN ILLUSTRATE THE TWO WITH AN EXAMPLE FROM A DIFFERENT CONTEXT.
SUPPOSE THAT THE STOEK BROKER WERE TO CALL YOU UP AN SAY HAY HAY, COMPANY A IS
FUNDAMENTALLY SOUND, THEY HAVE A NEW PRODUCT SOON TO COME OUT IT'S GOING TO
GO GANG BUST STERS, NOW IS THE TYPE TIME TO INVEST IN COMPANY A, YOU WIRE MONEY
TO YOUR STOCKBROKER AND THE STOCKBROKER USES THAT MONEY TO INVEST IN COMPANY B,
YOU DISCOVER THIS 90 DAYS LATER. AT THAT POINT COMPANY B'S STOCK HAS GONE
UP 20 PERCENT, COMPANY B'S STOCK HAS GONE DOWN 20 PERCENT, THE STOCKBROKER'S
MISREPRESENTATION MAY HAVE CAUSED A TRANSACTION BUT IT DID NOT CAUSE A LOSS.
WITHIN THE CONSUMER FRAUD ACT CONTEXT THERE CAN BE NO PRIVATE RIGHT
OF ACTION UNLESS THERE IS A LOSS, AN OBJECTIVE DIFFERENCE IN THE CONSUMER'S
POSITION. NOW, I NOTE THAT PLAINTIFFS AN THE ATTORNEY GENERAL
RELY HEAVILY ON FIRST FURST, FURST DOES NOT PROVIDE THE RULE OF DECISION IN THIS
CASE FOR A NUMBER OF REASONS. FIRST, THAT CASE ADDRESSED A
RARE CARPET, ONE THAT COST THOUSANDS OF DOLLARS. IT DID NOT ADDRESS A
MASS-PRODUCED CONSUMER PRODUCT COSTING LESS THAN AN A HUNDRED DOLLARS.
SECOND, THAT CASE ALLEGED AN OBJECTIVE DIFFERENCE BETWEEN THE GOODS PROMISED
AND THE GOODS RECEIVED, PARTICULARLY, THE CARPET AT ISSUE THERE, WAS DELIVERED
DAMAGED AND SMALLER THAN THE PARTIES HAD AGREED UPON. HERE,
BY CONTRAST, THERE IS NO OBJECTIVE DIFFERENCE. THIRD, IN
FURST, ALL AGREED THAT THERE HAD BEEN AN ASCERTAINABLE LOSS. HERE, THAT'S THE
DISPUTED ISSUE. FOURTH, IN FURST, THE MERCHANT FAILED TO
FOLLOW ITS OWN WRITTEN WARRANTY PROVISION. HERE, BY CONTRAST, PLAINTIFFS
NEVER TRIED TO AVAIL THEMSELVES OF THE MERCHANT'S RETURN POLICY.
JUSTICE WAINER APTER: IF PLAINTIFFS HAD ATTEMPTED TO RETURN THE GOODS AN BE REFUSED
THEN WOULD THIS CASE BE DIFFERENT? MICHAEL D. MEUTI: IT
WOULD BE DIFFERENT. IT IS UNCLEAR WHETHER IT WOULD AMOUNT TO AN ASCERTAINABLE
LOSS, THOUGH. AGAIN, IN ORDER TO ESTABLISH AN ASCERTAINABLE
LOSS UN THE BENEFIT OF THE BARGAIN THEORY THEY HAVE TO SHOW AN OBJECTIVE DIFFERENCE
BETWEEN WHAT WAS PROMISED OR WHAT WAS RECEIVED OR UNDER THE OUT OF POCKET
LOSS THEORY THEY HAVE TO SHOW THAT WHAT THEY RECEIVED WAS LESS VALUABLE THAN THE
PRICE PAID. HERE, THE PLAINTIFFS ALLEGE, I BOUGHT A $24
SWEATSHIRT AND IT'S WORTH ONLY $24; THAT'S NOT AN ASCERTAINABLE LOSS.
JUSTICE FASCIALE: I THOUGHT THEY WERE ALLEGING THAT THEY WOULDN'T HAVE SPENT
$24 TO BUY THE SWEATSHIRT IN THE SFIRS R FIRST INSTANCE, BUT WERE TRICKED
INTO IT. MICHAEL D. MEUTI: I AM SORRY R YOUR HONOR?
JUSTICE FASCIALE: I THOUGHT THEY WERE E THEY WOULD NOT HAVE PURCHASED THE SWEATSHIRT,
T SHIRT, SOME JEANS IN THE FIRST INSTANCE, BUT WERE TRICKED INTO BUYING
THE ITEMS AN THEREFORE, THE ASCERTAINABLE LOSS IS THE OUT OF POCKET EXPENSE, IN
PARTICULAR. MICHAEL D. MEUTI: I THINK THEY MAY HAVE OPTED
FOR THAT THEORY, AS WELL. THEY HAVE OFFERED A WHOLE LOT. YOU'VE SEEN HOW ROBUST
THE COMPLAINT IS HERE. AGAIN, THAT THEORY ADDRESSES TRANSACTION
CAUSATION AND TO ACCEPT THAT THEORY AS AN ASCERTAINABLE LOSS EFFECTLY READ
OUT THE ASCERTAIN TABL LOSS REQUIREMENT AND REPLACES IT WITH A REQUIREMENT THAT
THE PLAINTIFF ALLEGED A TRANSACTION CONNECTED WITH A VIOLATION.
JUSTICE FASCIALE: YOU COMPLETELY DISAGREE WITH THE CONCURRENCE.
MICHAEL D. MEUTI: WE DO. WE DO. WE DON'T DISAGREE WITH THE FACT
THAT AN OUT OF POCKET THEORY CAN SUPPORT AN ASCERTAINABLE LOSS. WE DO DISAGREE
WITH THE CONCLUSION THAT THE ALLEGATIONS HERE AMOUNT TO AN OUT OF POCKET
LOSS THEORY. THERE IS A DIFFERENCE BETWEEN AN OUT OF POCKET
EXPENDITURE AND AN OUT OF POCKET LOSS. HERE THEY'VE ALLEGED THAT THEY SPENT MONEY,
BUT THEY RETAINED VALUE AN FOR THAT REASON THEY HAVE NOT ALLEGED AN OUT OF POCKET
LOSS. JUSTICE PIERRE-LOUIS: AND THEY ARE NOT ARGUING THAT
THE VALUE WAS LESS THAN WHAT THEY ACTUALLY PAID. THEY ARE JUST MAKING THE ARGUMENT
THAT THEY THOUGHT THEY WERE GETTING THIS BARGAIN BUT THEY PAID $24 FOR
SOMETHING THAT WAS WORTH $24, CORRECT? MICHAEL D. MEUTI: THAT'S CORRECT,
YOUR HONOR. JUSTICE PATTERSON: PART OF YOUR THEORY AS I
UNDERSTAND IT IS THERE ARE REALLY VERY FEW LIMITS TO WHERE THIS THEORY COULD
GO IN THE WORLD OF COMMERCE IN WHICH PEOPLE BUY THINGS FOR ALL KINDS OF REASONS
AN GET BENEFITS OUT OF THEM THAT SOMETIMES ARE VERY SUBJECTIVE. IS
THAT PART OF YOUR ARGUMENT? MICHAEL D. MEUTI: THAT'S CORRECT,
YOUR HONOR. JUSTICE PATTERSON: WHAT YOU ARE SAYING NENS
IS THAT THE KNOWLEDGE THAT ONE IS NENS IS THAT THE KNOWLEDGE THAT ONE IS
GETTING A BARGAIN CANNOT BE VERIFIABLE AND CANNOT BE VERIFY BLEE MEASURED IS THAT
PART OF YOUR ARGUMENT AS WELL. MICHAEL D. MEUTI: IT IS.
JUSTICE PATTERSON: CAN YOU EXPAND ON THAT, PLEASE.
MICHAEL D. MEUTI: CERTAINLY. AS THIEDEMANN NOTED MULTIPLE TIMES AND
OTHER COURTS APPLYING THIEDEMANN HAVE HELD, A SUBJECTIVE EXPECTATION CAN'T
SUPPORT AN ASCERTAINABLE LOSS AN THE EXAMPLES YOU CAN THINK OF HERE ARE MYRIAD.
IF YOU GO TO A RESTAURANT YOU ORDER THE RIB EYE AND IT COMES
OUT A LITTLE FAT YER THAN YOU WOULD HAVE LIKED, NOT QUITE AS JUICY AS YOU WOULD HAVE
LIKED AND YOU THINK, I WOULDN'T HAVE SPENT $50 ON THAT RIB EYE, TO ME IT
WAS REALLY ONLY WORTH $30. YOU DON'T HAVE AN OBJECT I HAVE ASCERTAINABLE LOSS
OF STLAR 30. JUSTICE WAINER APTER: YOUR PLAINTIFFS AREN'T
ALLEGING THEY HAD SOME SUBJECTIVE IDIOSYNCRATIC WORTH TO THE SWEATSHIRT OR THAT
THEY THOUGHT THE SWEATSHIRT WOULD HAVE SOME M IDIOSYNCRATIC DIFFERENCE THAT
IT DIDN'T. INSTEAD IT WAS MARKED AS $36.50 WITH A 50 PERCENT DISCOUNT TO $18.25
AND TO THEM THE PANTS WERE ONLY WORTH THE $18.25 BECAUSE THEY THOUGHT THEY WERE
GETTING A # 50 PERCENT DISCOUNT FROM THE 36.50 AND HAD THEY KNOWN THE PANTS
WERE ALWAYS SOLD AT $189.25 THEY WOULD NOT HAVE BOUGHT THEM SO WHY IS THAT SUBJECTIVE
RATHER THAN OBJECT ACTIVE WHERE THE DIFFERENCE BETWEEN 3650 AN 18.25 IS
EASILY KAL CUE LABL AND WHAT YOUR CLIENT WROTE ON THE PRICE TAG.
MICHAEL D. MEUTI: THERE IS NO OBJECTIVE DIRNS BETWEEN THE AMOUNT PAID AN THE VALUE
RECEIVED; THAT'S WHY. IF THEY HAD ALLEGED WE PAID $18.50 FOR THESE PANTS
OR $18.25 WHATEVER IT WAS, BUT IN FACT THEY'RE OBJECTIVELY WORTH $15, THEN MAYBE
THERE COULD BE AN ASCERTAINABLE LOSS, BUT THAT IS NOT THIS CASE.
JUSTICE PATTERSON: HOW DOES THIS COMPARE TO A SITUATION WHERE SOME HAD ONE THINKS
THEY ARE BUYING A FAMOUS DINER. I KNOW NOTHING ABOUT FAX SO FASHION SO I
CAN'T THINK OF THE APPROPRIATE PERSON TO QUOTE BUT THEY THINK THEY ARE GETTING SO
AND SO'S DESIGNED CLOTHES AN THEY GET CLOELS WORTH EVERY PENNY OF WHAT THEY PAID,
BUT THEY BOUGHT IT THINKING THAT IT HAD THIS EXTRA CASH SHA AND IT DOESN'T,
CASH SHA AND IT DOESN'T, HOW IS THAT DIFFERENT? WOULD THAT
BE A CONSUMER FRAUD ACT VIOLATION. MICHAEL D. MEUTI: IN A
SITUATION LIKE THAT, YOUR HONOR, THERE IS AN OBJECTIVE DIFFERENCE BETWEEN WHAT
IS REPRESENTED AN WHAT IS RECEIVED, AN OBJECTIVE DIFFERENCE IT GOES TO THE INHERENT
NATURE OF THE ITEM. IT'S KIND OF LIKE A FAKE AUTOGRAPH. A BASEBALL CARD WITH
A FAKE AUTOMATIC GRAPH IS JUST A BASEBALL CARD WITH DESCRIBE LINK ON IT, ONE WITH
AN LEGITIMATE AUTOGRAPH IS A LEGITIMATE ITEM EM. JUSTICE
PATTERSON: THE CLOTHING WILL STILL KEEP YOU WARM IN THE WINTER IT'S FUNCTIONAL.
IT'S MADE ADEQUATELY SO IT WILL LAST A FEW YEARS, ALL OF THE SORT OF OBJECT
JEBT I HAVE VALUE IS THERE BUT THE PERSON IN THEIR MIND IS THINKING THAT THEY GOT
SOMETHING THAT IS REALLY WORTH SOMETHING EXTRA BECAUSE OF A DINER LABEL THAT
WAS FAKE. MICHAEL D. MEUTI: THAT IS A CLOSER CASE YOUR HONOR,
BUT, STILL, I THINK THE DISTINCTION THERE IS THAT A DINER -- THAT DINER LABEL IS
PART OF THE INHERENT QUALITY OF THE PURCHASE. JUSTICE
PATTERSON: SO YOUR ADVERSARY WOULD SAY SO IS THE IDEA THAT THIS IS A COUNTED VERY
VALUABLE ITEM. MICHAEL D. MEUTI: THE DIFFERENCE WOULD BE
IN THE SOOIN DINER MERCHANDISE EXAMPLE, THERE IS, IF YOU LOOK ON THE MARKET,
THERE IS AN OBJECTIVE DIFFERENCE BETWEEN WHAT A HIGH EVEN DINER AS PRODUCT WOULD BE
WORTH, A HAND BAG, A DRESS, A PAIR OF PANTS, WHATEVER, AND WHAT A NONDINER'S
COMPARABLE ITEM WOULD BE AND THE DIFFERENCE IS SUCH THAT THEY ARE TRADING IN
TWO DIFFERENT MARKETS THAT IS NOT THE CASE HERE. JUSTICE WAINER
APTER: ISN'T ONE OF THE PROBLEMS HERE THAT IT IS VERY HARD TO DETERMINE THE
OBJECTIVE WORTH, VALUE AN QUALITY OF AN ITEM OF CLOTHING THAT SELLS AT MANY DIFFERENT
PRICES PERHAPS BECAUSE IT HAS A DINER LABEL, PERHAPS BECAUSE IT DOESN'T, BECAUSE
BECAUSE IT'S TRENDS DEE AT THE MOMENT, PERHAPS BECAUSE IT IS NOT?
HOW DOES ONE DETERMINE THAT? YOU ARGUED IN YOUR BRIEFS
THAT THE PRICE TAG DOES NOT REPRESENT A GOOD OBJECTIVE WORTH, VALUE AN QUALITY
SO THE ORIGINAL FICTITIOUS OR REFERENCE PRICE DOESN'T MATTER BECAUSE THAT DOES
NOT REPRESENT A GOOD OBJECTIVE WORTH VALUE ON QUALITY. HOW
DOES ONE DETERMINE THAT IF NOT BY A PRICE TAG AND WHEN IT HAS THESE IN TANGIBLE
FEATURES LIKE TREND DEENESS OR DINER CASH SHA OR SOMETHING ELSE.
MICHAEL D. MEUTI: YOUR HONOR, I BELIEVE THAT CUTS IN OUR FAVOR RATHER THAN IN
PLAINTIFF'S FAVOR. TRUE, IT IS VERY DIFFICULT TO IDENTIFY AN OBJECTIVE
DIFFERENCE IN MANY CASES, BUT THAT SHOWS WHY THIS CASE IS NOT A GOOD ONE FOR AN
A S D F A CLAIM. STEPPING BACK, THERE IS NO PLATONIC IDEAL OF A
$50 SWEATSHIRT. PLAINTIFFS HAVEN'T ALLEGED ANYTHING TO THAT EXTENT. L THEY
HAVEN'T HAVEN'T SUGGESTED, WELL, BY PUTTING THE PRICE TAG ON WITH THE REFERENCE
PRICE THAT IT HAD, I WOULD HAVE ANTICIPATED A GREATER FABRIC WAITING,
HIGHER THREAD COUNT, METAL ZIPPER RATHER THAN A PLASTIC ZIPPER, NONE OF THAT.
AND AS WE SIT HERE TODAY, I CERTAINLY CANNOT THINK OF A PLATONIC IDEAL OF
A $60 SWEATSHIRT SUCH THAT IF I GOT SOMETHING DIFFERENT, I WOULD BE ABLE TO HOLD
IT UP AND SAY THIS IS NOT A $60 SWEATSHIRT. WHEN WE'RE
TALKING ABOUT PRICES, WE ARE NOT TALKING ABOUT AN INHERENT QUALITY OF THE GOODS.
WE'RE TALKING ONLY ABOUT SOMETHING ENTIRELY SEPARATE. AND WHILE WE DON'T
ACCEPT THE PLAINTIFF'S ASSERTION THAT A REFERENCE PRICE IS NECESSARILY A PAST PRICE.
THE REGULATIONS MAKE CLEAR THAT A REFERENCE PRICE CAN BE A PAST PRICE,
IT CAN BE A PRICE OFFERED FOR A COMPARABLE MERCHANDISE BY A DIFFERENT MERCHANT.
AND IF THAT'S THE CASE AND THE GOOD SELLS FOR UN STLAR 100, A RETAILER NEED
NOT SAY WHAT THE REFERENCE PRICE IS BASED ON. JUSTICE MICHAEL NORIEGA:
ISN'T THAT THE POINT SOMETIMES THAT THE VALUE IS IN THE REFERENCE PRICE.
IF THAKT THAT A CONSUMER CAN SAY I HAVE A STLAR 60 PAIR OF JEANS OR A $100 PAIR
OF JEANS, THAT THAT REFERENCE POINT MATTERS TO THEM AS CONSUMERS IN TERMS OF
DISPLAYING THE CLOTHING SO IF THE TRUTH IS THAT IT WAS NEVER WORTH $100 OR NEVER
WORTH ANY HIGHER AMOUNT BUT ACTUALLY WORTH $18 THERE IS A LOSS IN VALUE OF WHAT
THEY WERE HOPING TO DISPLAY BY THE CLOTHING THOUGH CHOSE AN THE LABELS
THAT THEY CHOSE? ISN'T THAT WHERE THERE IS A LOSS OF VALUE IN
TERMS OF THIS PARTICULAR ITEM OF CLOTHING? MICHAEL D. MEUTI: THERE IS
NOT, YOUR HONOR. THE LABEL WAS THE SAME. THE PLAINTIFFS WERE
ABLE TO DISPLAY THE EXACT SAME ITEM, REGARDLESS OF THE PRICE PAID.
JUSTICE MICHAEL NORIEGA: BUT AT A DIFFERENT VALUE POINT TO THOSE WHO ARE AWARE
OF WHAT THAT CLOTHING IS WORTH? M. MICHAEL D. MEUTI: I'M SORRY.
I DON'T FOLLOW. JUSTICE MICHAEL NORIEGA: SO ANYBODY SEEING
THAT INDIVIDUAL WEARING THAT ITEM OF CLOTHING MIGHT NOW IT'S ONLY WORTH
$18 AND NOT WORTH $100 WHICH REDUCES THE VALUE TO PEOPLE WHO CARE ABOUT WHAT THEIR
FASHION APPEARS TO OTHERS. MICHAEL D. MEUTI: WE WERE TALKING
ABOUT MASS PRODUCED CONSUMER GOODS AS WE ARE HERE, THE VALUE IS THE PRICE
AT WHICH IT SELLS. AND WE KNOW THAT FROM FURST. THE CASE THAT THE PLAINTIFFS
THEMSELVES RELY UPON, SAYS THAT IN ORDER TO TERM THE VALUE OF THE ITEM IN
QUESTION, YOU NEED TO LOOK TO THE REPLACEMENT COST. NOW, THERE, IT
WAS A CARPET VALUED AT THOUSANDS OF DOLLARS, SOLD FOR OVER A THOUSAND DOLLARS.
THE REASON THAT THE COURT TURNED TO THE REPLACEMENT COST BECAUSE IT WAS
IMPOSSIBLE TO JUST GO OUT TO A STORE AND BUY THE SAME THING IN THE SAME SIZE SO
IN ORDER TO DETERMINE WHAT REPLACEMENT COSTS WOULD BE, THEY HAD TO LOOK
TO THE VALUE ON THE PRICE TAG. HERE, WE KNOW WHAT THE REPLACEMENT
COST WOULD BE. IT WOULD BE THE PRICE THAT YOU COULD WALK INTO ANY -- IN
THIS CASE AN AIR ROW POS STAL STORE AND BUY THE SAME ITEM. IN OTHER WORDS FOR
THE SWEATSHIRT IN QUESTION, IT WOULD BE THE SAME STLAR 24 THAT ROBEY SPENT TO
BUY IT. THERE IS NO LOSS THERE. NOW, IF -- RETURNING TO THE EXAMPLE
OF SOMEBODY WHO HAD PAID $60 A MONTH PRIOR, THE ONLY DIFFERENCE THERE IS
ENTIRELY SUBJECTIVE. IT'S NOT OBJECTIVE AT ALL. IF ROBEY WOULD BE FEEL BETTER
ABOUT WEARING A SWEATSHIRT THAT SOME PURE CONSUMER HAD SPENT OVER TWICE
AS MUCH FOR A MONTH PRIOR, THAT IS ENTIRELY OBJECTIVE. JUSTICE
MICHAEL NORIEGA: GIVEN OUR MEDIA CULTURE AND THE U BIK QUIT WITH WHICH SOMEBODY
COULD IDENTIFY AN FIND OUT WHAT SOMEBODY ELSE IS WEARING AN NO KNOW THE
PRICE DOESN'T THAT CHANGE -- THIS ISN'T JUST A RANDOM PIECE OF CLOTHING THIS IS
EVERYONE IN A PARTICULAR SKOEN OF WHAT AIR ROW POS STALE IS COULD KNOW WHAT
THE CLOTHING IS WORTH AN WHAT IT IS WORTH ON THE PERSON WHO IS WEARING IT.
MICHAEL D. MEUTI: I STILL DON'T SEE HOW THAT AMOUNTS TO AN OBJECTIVE DIFFERENCE
IN VALUE. IT WOULD BE ENTIRELY SUBJECTIVE. THE MREEFS OF OTHER
PEOPLE AND WHAT THE CONSUMER BELIEVES ABOUT WHAT PEOPLE VIEWING THAT ITEM MIGHT
THINK, THERE IS NO OBJECTIVE DIFFERENCE BETWEEN THE VALUE OF WHAT WAS PROMISED
AND THE VALUE OF WHAT WAS RECEIVEDED. THE COURT: I TAKE IT
IT IS YOUR POSITION THAT THERE WAS NO ASCERTAINABLE LOSS HOLDS THE DAY THAT
ONE IS NOT AN AGGRIEVED CONSUMER AND THERE IS NO BLANK VIOLATION.
MICHAEL D. MEUTI: THAT'S CORRECT, YOUR HONOR. IF THE PLAINTIFF
RECEIVES EXACTLY WHAT THE PLAINTIFF SOUGHT TO BUY FOR THE EXACT PRICE THE
PLAINTIFF IS NOT AGGRIEVED AND THEREFORE CANNOT BE AN AGGRIEVED CONSUMER AND CANNOT
HAVE A PARTICULAR WA CLAIM. CHIEF JUSTICE RABNER: ANYTHING
YOU WOULD LIKE TO ADD. MICHAEL D. MEUTI: I WOULD LIKE TO
BRIEFLY ADD THE INJUNCTIVE RELIEF CLAIM, THERE CAN BE NO IN JUKTD ACTIVE
RELIEF UNLESS THE PLAINTIFF HAS A PRIVATE RIGHT OF ACTION, IN ORDER TO HAVE A PRIVATE
RIGHT OF ACTION THERE NEEDS TO BE AN ASCERTAINABLE LOSS SO THAT'S ONE
REASON IN JUJT I HAVE RELIEF CANNOT APPLY HERE, A SECOND REASON IS EVEN IF THERE WERE
AN ASCERTAINABLE LOSS PLAINTIFFS WOULD NOT HAVE A CLAIM FOR INJUNCTIVE RELIEF,
56 SPACE 819 SAYS THAT A PLAINTIFF WHO HAS SUFFERED AN ASCERTAINABLE LOSS HAS A
PRIVATE RIGHT OF ACTION FOR TREBLE DAMAGES AN ANY OTHER APPROPRIATE EQUITABLE
RELIEF. HERE EQUITABLE RELIEF WOULD NOT BE APPROPRIATE BECAUSE THE PLAINTIFFS
DON'T CHECK EITHER OF THE BOXES INITIALLY HELD TO BE NECESSARY FOR IN JUPTH I
HAVE RELIEF, A THREAT OF FUTURE HARM OR THE LACK OF AN ADEQUATE REMEDY AT
LAW, IF THERE ARE NO QUESTIONS OO THOO POINT I RECEIVE THE REMAEND DER OF MY TIME
FOR REBUTTAL. THANK YOU, COUNSEL. MR. JACOBSON.
JEFFREY S. JACOBSON: THAT YOU CAN, YOUR HONOR, MAY IT PLEASE THE COURT, THANK
YOU FOR GIVING ME TIME TO SPEAK. I AM HERE PRINCIPALLY TO MAKE SURE THE
TWO ISSUES THAT MR. MEUTI TOUCHED BRIEFLY UPON AND THE CHIEF JUSTICE ASKED ABOUT
DON'T GET LOST IN THE SHUFFLE. THE FIRST ISSUE IS THERE IS
ANOTHER REGULATION HERE THAT IS 9.6 THAT IS MUCH MORE TAILORED TO THIS
PARTICULAR ISSUE AN THE SECOND IS, AS THE CHIEF JUS THERE IS A HUNDRED A THOUGH
TICK CLAIM RUNNING AROUND HERE THAT IS GOING TO SWAMP THE $25 IN A C F A
VIOLATION. YOU CAN NEVER MAKE A PARTICULAR CLAIM OUT OF A PRICE
TAG BECAUSE QUITE SIMPLY THERE IS NO PROVISION IN A PARTICULAR WA TO VIOLATE, CLEARLY
ESTABLISHED LAW BUT TO MANY COULD BACK TO THE FIRST POINT, 9.6 DEALS WITH
FORMERER PRICES SOMETHING EXPRESSLY CALLED OUT IN A CHARGE AS A FORMER PRICE TAG
BY THAT RETAILER IF THERE IS A FORMER PRICE REFERENCED ON A PRICE TAG, THEN IT IS
AN AFFIRMATIVE DEFENSE TO SAY A REELER SOLD IT FOR THAT PARTICULAR PRICE
AT A PARTICULAR TIME. I DON'T KNOW THAT I AGREE WITH HIM BUT IT DOESN'T MATTER
BECAUSE IF YOU LOOK AT PARAGRAPHS 53 AND 70 OF THE PLAINTIFFS COMPLAINT
HERE, THEY DEPICT, WITH PICTURES EXACTLY WHAT THEY ARE TALKING ABOUT. PARAGRAPH
53 IS AN ENTIRE STORE 50 TO 70 PERCENT OFF CLAIM, PARAGRAPH 70 IS BUY ONE GET
TWO THREE. THOSE KINDS OF DISCOUNTS ARE COVERED BY 9.8, NOT 9.6.
THE PLAINTIFFS ALSO PLEAD EXPLICITLY THAT ALL OF THE GOODS IN QUESTION HERE
ARE UNDERSTAND $100 AND WHAT 9.8 SAYS IS THAT IF IT IS UNDER $100 YOU DON'T
HAVE TO STATE THE BASIS OF THAT PERCENTAGE DISCOUNT, PERIOD, FULL STOP.
JUSTICE PATTERSON: DO YOU HAVE TO HAVE A BASIS FOR THAT.
JEFFREY S. JACOBSON: WELL, YOUR HONOR, 9.8 TALKS ABOUT DIFFERENT THINGS THAT CAN BE
THE BASIS FOR IT ONE OF WHICH IS A COMPETITOR'S PRICE. THE
COURT: DOES 9.8 SAY IT'S OKAY TO MAKE UP A WHOLLY FICTITIOUS PRICE.
JEFFREY S. JACOBSON: YOUR HONOR I AM NOT GOING TO GO THAT FAR.
THE COURT: WHEN YOU READ T.8 AND 9.5 TOGETHER IT LOOKS LIKE THE TWO REQUIREMENTS
IN 9 PVT 5 FALL BY THE WAYSIDE FOR AN ITEM UNDER A HUNDRED DOLLARS, YOU DON'T
HAVE TO PLACE INFORMATION CONSPICUOUSLY ON THE ITEM AN YOU DON'T HAVE TO EXPLAIN
THE BASIS, BUT DOES IT SAY IT'S OKAY TO MAKE UP A FAKE PRICE.
JEFFREY S. JACOBSON: IT DOES NOT SAY THAT. AND I WOULD AGREE WITH YOU, IF YOU
WERE COMPLETELY MAKING IT UP, THIS MIGHT BE A DIFFERENT KASZ, BUT 9.8 DOES
SAY THAT A COMPETITOR'S PRICE CAN BE A BASIS FOR IT. JUSTICE WAINER
APTER: ISN'T THAT AN AFFIRMATIVE DEFENSE. JEFFREY S. JACOBSON:
NOT IN 9.8 YOUR HONOR. L IF YOU LOOK AT 9.6 AND 9.8, 9.6 SAYS, I WANT TO NEVER
PARAPHRASE A STATUTE OR REGULATION. SO PARAGRAPH -- I AM SORRY, 9.6 C TALKS
ABOUT WHAT THE RETAILER NEEDS TO PROVE IF THERE IS A DISPUTE ABOUT IT, BUT 9.8
SIMPLY SAYS IF THE RETAIL PRICE IS LESS THAN $100 AND IF THE REGULAR PRICE
AN THE PRICE AFTER ANY DISCOUNTS ARE TAKEN ARE SETD FORTH ON THE REGISTER RECEIPT
GIVEN TO THE CONSUMER AT THE POINT OF SALE, WHICH IS NOT IN DISPUTE HERE,
BOTH OF THOSE THINGS ARE PLEADED IN THE COMPLAINT. JUSTICE
WAINER APTER: THEY DIDN'T DISPUTE THAT IT WASN'T THE ACTUAL REGULAR I THOUGHT THAT WAS
THE WHOLE POINT. JEFFREY S. JACOBSON: IT DOESN'T SAY, 9 #.8
TALKS ABOUT A XRET TORE'S PRICE BEING A PERFECTLY PERMISSIBLE WAY TO
CHARACTERIZE THE PERCENTAGE DISCOUNT. JUSTICE WAINER APTER: IN 9.8
B 2 WHERE IT SAYS THE REGULAR PRICE AN THE PRICE AFTER ANY DISCOUNTS ARE
TAKEN ARE SET FOVRT ON THE REGISTER RECEIPT GIVEN TO THE CONSUMER AT THE POINT
OF SALE. WHAT IS THE REGULAR PRICE IF NOT THE ORIGINAL FAKE
PRICE? JEFFREY S. JACOBSON: IF YOU LOOK AT 9.5, WHICH 9.8
IS BASED ON, 9 #.5A 2 SET FORTH THE BASIS UPON WHICH THE FORMER PRICE WAS ESTABLISHED
PURSUANT TO 9.6 B, IN THIS REGARD, TERMS SUCH AS COMPETITOR'S PRICE OR WORDS
OF SIMILAR IMPORT SHALL BE USED BUT THEN IT SAYS YOU DON'T HAVE TO USE THAT IF
IT'S UNDER $100. JUSTICE PATTERSON: BUT DO YOU HAVE TO HAVE
THAT? DOES IT HAVE TO BE BASED ON THE COMPETITOR'S PRICE OR
ON A FORMER PRICE CHARGED BY THAT REELER RETAILER. YAK JACK THE REGULATIONS SAY
WHAT THEY SAY RIGHT HERE AND NOW. JUSTICE PATTERSON: SO IS
IT YOUR CONTENTION THAT BECAUSE THE REGULATIONS DON'T SPELL OUT THAT THERE
HAS TO BE SOME BASIS FOR THIS SO-CALLED REGULAR PRICE THAT DOESN'T HAVE TO BE ANY.
JEFFREY S. JACOBSON: UN, BECAUSE AIR ROW POS STALE POSITIONS
ITSELF AS A DISCOUNT RETAILER AND THIS GOES BACK TO JUSTICE NOR'S QUESTION ABOUT
THE WORTH OF THE GOODS, MR. MEUTI EASE POINT THAT THERE IS NO PLATONIC IDEA
OF THE SWEATSHIRT I THINK THAT'S BASICALLY CORRECT. THE POINT
IS IF WHAT AIR ROW POS STALE IS SAYING HERE OUR $24 SWEATSHIRT IS XABL RABL TO
A COMPETITOR'S SWETD SHIRT FOR $48 WE ARE UNDER REGULATIONS TO ADVERTISE
IT FOR 50 PERCENT OFF. JUSTICE PATTERSON: DOESN'T THE REGULATION
WHEN IT TALKS ABOUT A COMPETITOR'S PRICE REALLY ENVISION A SITUATION WHERE
SOME MANUFACTURER SOMEWHERE IS SENDING THE SAME SWEATSHIRTS OUT TO DIFFERENT RETAILERS
AN SOME RETAILERS ARE SELLING IT AT X AN SOME RETAILERS ARE SELLING IT AT
Y AN THEN TASH DASH AN THEREFORE, MY RETAIL, Y RETAILER KNOWS THAT X RETAILER IS
SELLING IT FOR OF 0 DOLLARS SO THEY CAN SAY DISCOUNT IT FROM 60.
JEFFREY S. JACOBSON: MY FIRST ANSWER IS MY PARTICULAR POINT, THE COURT CAN HOLD
THAT IF IT WISHES, IT WILL BE NEW BUT NOT CLEARLY ESTABLISHED AND THERE GOES
TO PARTICULAR CLAIM I THINK RIGHT THERE, I THINK NO FURTHER DISCUSSION ABOUT THE
AGGRIEVED CON SUMMER. JUSTICE PATTERSON: GOT THAT.
WHAT IS YOUR ANSWER ON THE C F A. JEFFREY S. JACOBSON: I THINK
IT'S AMBIGUOUS. WE HAVE RETAILERS ACROSS THE STATE THAT THINK THIS MEANS
WHAT AIR ROW POS STALE THINKS IT MEANS, THIS IS THE FIRST TIME MY FORENSICS IN
THIS THE ATTORNEY GENERAL'S CASE HAVE TAKEN THIS POSITION, THIS IS THE FIRST
CASE THAT HAS REACHED THIS COURT ON THIS ISSUE. I THINK WHEN YOU ARE TALKING ABOUT
GOODS LIKE THIS THAT ARE SOLD IN DIFFERENT STORES FOR DIFFERENT PRICE POINTS.
JUSTICE PATTERSON: HAS ANYBODY EVER CONTACTED THE DIVISION
OF CONSUMER AFFAIRS WOULD HAVE JURISDICTION, RIGHT?
JEFFREY S. JACOBSON: HERE THEY ARE. JUSTICE PATTERSON: HERE THEY
ARE, BUT HAS ANYBODY EVER SAID LET'S FIND OUT WHAT THEY MEANT BY THIS.
JEFFREY S. JACOBSON: I WOULDN'T KNOW. SFLFRMTHS SO 9.5 AND
9.8 APPEAR TO DEAL WITH PERCENTAGE OFF DISCOUNTS, DOES IT APPLY TO THE BY BUN GET
TWO FREE. JEFFREY S. JACOBSON: I STRUGGLED WITH THAT BUT
I THINK IT DOES. FWEN IT'S NOT A FORM PRICE, AGAIN, WHAT AIR POSZ STALE DOES ON
THE REGISTER RECEIPT COMPLIES WITH 9.8 AND SO THEY'RE TREATING IT LIKE A
PERCENTAGE DISCOUNT BECAUSE IF YOU BUY THREE THEY WILL SHOW IT ON THE REGISTER RECEIPT
EXACTLY THAT WAY. IT DOESN'T FEEL LIKE A REFERENCE PRICE SITUATION TO ME BUT
I THINK THE REASONABLE COULD JUMP TO CONCLUSIONS ON THAT NOT FOR PARTICULAR
WIN THAT PURPOSES. THE COURT: HAVE THOSE ARGUMENTS VETTED AT
THE TRIAL AND APPELLATE DIVISION LEVEL. JEFFREY S. JACOBSON: YES,
AT THE TRIAL LEVEL IT WAS RAISE IT FWOT LOST IN THE APPELLATE DIVISION.
AS I REREAD MY BRIEF GETTING READY FOR THE ARGUMENT I THINK I WAS A LITTLE HARDER
ON THE APPELLATE DIVISION THAN I SHOULD HAVE BECAUSE I DON'T THINK 9.8 CAME
UP AT THE APPELLATE D-IT DID COME UP AT THE TRIAL COURT HERE THIS COURT HAS GOT
TO DEAL WITH BOTH REGULATIONS. JUSTICE PATTERSON: WAS THE
CLEARLY ESTABLISHED ARGUMENT THAT YOU'RE MAKING BROUGHT TO THE TRIAL COURT,
WHICH IS, AS I UNDERSTAND IT, IF THERE IS ANY I FF A CLAIM IN THIS, IT WOULD NOT
GIVE RISE TO A PARTICULAR WIN THAT CLAIM BECAUSE THIS IS NOT ESTABLISHED
AS REL, THE BAIT. JEFFREY S. JACOBSON: CLEARLY ESTABLISHED
ARGUMENT WAS, MY BROADER ARGUMENT THAT EVERYTHING GOES IF THIS IS A TICK CLAIM.
JUSTICE PATTERSON: I DON'T UNDERSTAND WHAT YOU MEBT.
JEFFREY S. JACOBSON: I'M BEEN THINKING ABOUT DOOUG AND I, DUG, READ, ASSUME
THAT THOSE MENUS WERE TICK THINGS, NOTICE AND SIGNS, WHATEVER YOU WANT TO CALL
THEM AND THAT ISSUE WAS NOT BEFORE THE COURT BECAUSE WE WERE DEALING WITH THAT
CERTIFICATION. JUSTICE PATTERSON: YOU'RE SAYING PRICE TAGS
ARE NOT NOTICES. JEFFREY S. JACOBSON: I'M SAYING THAT A -- TICK
DISCUSSES A NOTICE OR A SIGN OR A WARRANTY OR A CONTRACT CONTAINING A PROVISION.
AND THAT WORD PROVISION IS SITTING THERE AND IT MEANS SOMETHING. AND I DON'T
KNOW HOW A PRICE TAG CAN HAVE A PROVISION. IF YOU HAVE A SIGN SAYING NO REFUNDS,
THAT'S A PROEFGS AND IF THERE IS SPOEGSED TO BE REFUNDS UNDER THE LAW AND YOU
HAVE GOT A SIGN SAYING NO REFUNDS THAT'S A SIGN THAT HAS A PROVISION.
JUSTICE PIERRE-LOUIS: YOU'RE SAYING IF WE FIND THAT THIS PRICE TAG WAS
WITHIN TICK, THEN EVERYTHING IS ENCOMPASSED WITHIN.
JEFFREY S. JACOBSON: I HAVE HAD A VERY HARD TIME GETTING READY FOR THIS ARGUMENT
L TRYING TO COME UP WITH SOMETHING SOMEBODY COULD SUE UNDER THE C F A THAT
WOULD NOT BE A TICK. WE'VE -- THIS COURT HAS DONE YOE MAN WORK MAKING SURE THE
TICK STAYS IN ITS BOX WHERE IT BELONGS AND NOT BECOMING A $100 STATUTORY DAMAGES
FOR EVERY CONSUMER FRAUD ACT P CLAIM THAT COMES DOWN THE PIKE. I THINK
THE REGULATIONS ARE SUFFICIENT AMBIGUOUS THAT THE TICK CLAIM HAS TO GO DOWN SDMRFRMTH
OTHER QUESTIONS? JEFFREY S. JACOBSON: THANK.
THE COURT: THANK JUSTICE. STEPHEN P. DE NITTIS: THIS CASE WOULDN'T
BE BEFORE THE COURT IF THAT'S WHAT THIS CASE WAS ABOUT. THIS CASE IS ABOUT A SITUATION
WHERE A SELLER OR A MERCHANT CREATES THAT EXPECTATION WHEN THEY TELL A CONSUMER THAT A
PRODUCT HAS AN OBJECTIVE WORTH OF A REGULAR PRICE, IN THIS CASE $60 FOR A SWEATSHIRT,
AND THAT CONSUMER BASIS THEIR PURCHASE IN PART OR IN WHOLE ON THAT SUBJECTIVE REPRESENTATION.
THINKING THEY'RE GETTING A DEAL. AND THEY'RE NOT BECAUSE IT'S A LIE. AND
THIS ISN'T A NEW ISSUE THAT'S BEEN -- THAT'S BEFORE THIS COURT. IN FURST VERSUS EINSTEIN
MOOMJY, 182 N.J. ONE, 2004, THIS PRECISE ISSUE WAS BEFORE THE COURT. IN FURST, AS YOUR HONORS
HAVE I'M SURE READ, IT SETS FORTH THAT A PERSON PURCHASED AN ORIENTAL RUG THAT WAS ON
THE PRICE TAG, REGULARLY PRICED. IT WAS MARKED ON SALE TO $1,400. THEN MARKED ON CLEARANCE
FROM $1,190. THE CONSUMER MADE THE PURCHASE. IT WAS DEFECTIVE AND TOO SMALL AND AT SUMMARY
JUDGMENT THE COURT FOUND BAU A CONSUMER FRAUD VIOLATION. THE SOLE ISSUE THAT WHEN THERE IS
A CONSUMER FRAUD VIOLATION AND THERE IS A REPRESENTATIVE PRICE ON A PRICE TAG BY THE
SELLER, IS THE DAMAGE OUT-OF-POCKET, WHICH THE DEFENDANT ADVOCATED, OR IS IT BENEFIT OF THE
BARGAIN, WHICH THE PLAINTIFF ADVOCATED. THE PLAINTIFF ADVOCATED, I BOUGHT THIS CARPET,
I THOUGHT IT WAS A $5,700 CARPET. I THOUGHT I WAS GETTING A DEAL AND I PAID 1190, BUT
BEING THAT THE COURT FOUND THAT THERE'S A CONSUMER FRAUD VIOLATION, I'M ENTITLED TO
THAT $5,775. THE DEFENDANT ARGUED AS HERE, NO, THAT'S A WINDFALL. THAT'S
INEQUITABLE. AND THE COURT SAID, NO, IT'S NOT INEQUITABLE. FOR SEVERAL REASONS. THE
COURT SAID, THIS COURT SAID, NUMBER ONE, IT'S NOT INEQUITABLE AND THE COURT GOES ON IN
A VERY RICH OPINION AS TO THE PRICING REGS. THE DEFENDANT IS IN THE BEST POSITION TO
SET THE PRICE. THE DEFENDANT IS IN THE BEST POSITION BECAUSE IT KNOWS THE MARKET. THE
DEFENDANT -- THE COURT CITED TO INDUSTRY COMMENTATORS AND RESEARCH THAT PRICE MATTERS
AND IT CREATES EXPECTATIONS AMONGST PEOPLE WHO RELY ON THEM AND MAKE PURCHASES BASED ON
THEM. THIS ISN'T SOME NEW CONCEPT. EVERY NORMAL CONSUMER IS A CONSUMER IN
THIS ROOM. EVERY PERSON LIKES TO GET A DEAL. YOU SHOP FOR CARS, YOU SHOP FOR WHATEVER
YOU PURCHASE, AND YOU BASE YOUR -- PART OF YOUR PULTS IN PART OR IN WHOLE ON GETTING THAT
DEAL AND THAT DEAL ISN'T SOME SUBJECTIVE THEORETICAL THING. IT IS CREATED WHEN IT'S
ON THE PRICE TAKING. IT'S CREATED BY THE SELLER. AND THE SELLER DOES IT
WITH THE HOPES THAT THE CONSUMER RE-LIES ON IT. THAT'S WHY THEY DO IT. IT INCREASES
SALES. IT INCREASES REVENUE. THIS ISN'T SOME SITUATION WHERE, WELL, LET'S JUST PICK
A PRICE OUT OF THE AIR. NO, THEY PICK A PRICE THAT THEY TELL THE CONSUMER THIS IS WHAT
IT COSTS AND IT CREATES AN OBJECTIVE VALUE. AND BETTER YET AN OBJECTIVE VALUE THAT'S
CREATED FROM THE SELLER. AND THE COURT SAID, IT'S NOT A WINDFALL BECAUSE
WE HAVE PRICING REGS IN NEW JERSEY. WE HAVE PRICING REGS THAT SELLERS SHOULDN'T MARKET
ITEMS AT A FAKE PRICE BECAUSE CONSUMERS RELY ON THEM AND PRICE MATTERS. SO
THE COURT WENT ON TO SAY, NOT ONLY IS OUR RULING TO CHOOSE BENEFIT OVER THE BARGAIN OVER
OUT-OF-POCKET -- THAT WAS THE EXACT ISSUE BEFORE THE COURT. THE NATURE OF DAMAGES. AND
THE COURT SAID, OUR RULING IS NOT ONLY INTENDED TO MAKE THE DEFRAUDED CUSTOMER WHOLE BUT
TO PUNISH THE WRONGDOER AND DETER OTHERS FROM ENGAGING IN UN-FAIR PRACTICES.
JUSTICE PATTERSON: WITH ALL DUE RESPECT, FIRST IS ABOUT A DEFECTIVE PRODUCT. THE UCC
HAS A MEASURE OF DAMAGES FOR A DEFECTIVE PRODUCT WHICH IS TO PUT THE PURCHASER WHERE THEY WERE
IF THE PRODUCT HAD NOT BEEN DEFECTIVE. WE'RE NOT TALKING ABOUT THAT HERE. I
UNDERSTAND THAT IS PERHAPS THE CLOSEST CASE OF THE CASES THAT THIS COURT HAPPENS TO HAVE
DECIDED. BUT RESPECTFULLY I WOULD SUGGEST IT'S NOT VERY CLOSE AT ALL BECAUSE IT IS A
DEFECTIVE PRODUCT. WE'RE DEALING WITH HERE PRODUCTS THAT WERE NOT DEFECTIVE --
PRESUMABLY NOT DEFECTIVE. THERE'S NO ALLEGATION OF THAT. THAT WERE WHAT THE PERSON THOUGHT
THEY WERE GETTING. THE THE ISSUE IS THIS VALUE TO PEOPLE, WHICH YOU SAY IS VALUE TO
EVERYBODY. I'M NOT SURE THERE'S SCIENCE SAYING THAT, BUT IT'S PRESUMABLY SOME PEOPLE
LIKE GETTING A BARGAIN. AND THAT'S IMPORTANT TO THEM. BUT IT'S JUST SIMPLY
NOT THE SAME CASE AS FURST. STEPHEN P. DE NITTIS: RESPECTFULLY, YOUR
HONOR JUSTICE PATTERSON, I DISAGREE FOR THIS REASON. AND THE REASON WHY I DISAGREE IS
THE OPINION GOES ON, ONCE IT'S DETERMINED THAT THERE IS A CONSUMER FRAUD VIOLATION, TO
DETERMINE HOW OUR BENEFIT OF THE BARGAIN DAMAGES DETERMINED IN THE CONSUMER FRAUD VIOLATION
CASE. AND THERE'S FOUR PAGES OF THE OPINION THAT TALK ABOUT THE PRICING REGULATIONS AND
THE ANALYSIS DOES NOT ONLY NARROW FOR A DEFECT CASE. IT IS FOR ANY, ANY CONSUMER FRAUD
ACT VIOLATION CASE AND SPECIFICALLY -- JUSTICE PATTERSON: RESPECTFULLY,
THE ENTIRE PREMISE OF FURST IS THAT CONSUMERS SHOULD GET NON-DEE NECK ACTIVE PRODUCTS.
AND THAT'S -- AND THIS CONSUMER, VERY EXPENSIVE PRODUCT, GOT A DEFECTIVE PRODUCT AND
SUFFERED A LOSS. AND WITHOUT THAT PREMISE, FURST IS SIMPLY NOT APPLICABLE TO THIS CASE,
I WOULD SUGGEST TO YOU. I'M NOT SAYING YOU DON'T HAVE AN ARGUMENT. BUT I'M SAYING THAT
RELYING ON FURST POTENTIALLY WOULD EXPAND THE DEFINITION OF FURST TO A WHOLE LOT OF
DIFFERENT SITUATIONS WHERE SOMEONE IS DISAPPOINTED WITH A PURCHASE. STEPHEN P. DE
NITTIS: JUSTICE PATTERSON, I RESPECTFULLY DISAGREE AND I'LL TELL YOU WHY. ALL FURST
SAYS IS IT CREATES A PRESUMPTION THAT A SELLER's REGULAR PRICE ON THE PRICE TAKING IS
REPLACEMENT VALUE WHICH UNDER NOTE FIVE IS MARKET VALUE. JUSTICE PIERRE-LOUIS:
AGAIN, AS JUSTICE PATTERSON NOTED, THE ENTIRE PREMISE IN FURST IS DIFFERENT FROM THIS
CASE. YOU STARTED YOUR ARGUMENT BY STATING THAT THIS CASE IS PRECISELY LIKE FURST. AND
AGAIN I RESPECTFULLY DISAGREE. THE CASES ARE NOT THE SAME. AND IN FURST THERE WAS NO
QUESTION THAT THERE WAS AN ASCERTAINABLE LOSS. THE CUSTOMER RECEIVED A DEFECTIVE PRODUCT.
THERE WAS NO QUESTION WHATSOEVER THAT THERE WAS A LOSS THERE. THE FIRST SENTENCE OF THE
OPINION TALKS ABOUT THE FACT THAT THERE IS A CFA VIOLATION AND THERE'S A LOSS.
THE COURT WAS GRAPPLING WITH HOW TO DETERMINE THE REPLACEMENT VALUE OF THIS CARPET THAT
EVERYONE AGREED WAS A LOSS TO THE CUSTOMER. AS YOU SAID IN YOUR OPENING STATEMENT, THE
PLAINTIFF -- SUMMARY JUDGMENT WAS GRANTED IN FAVOR OF THE PLAINTIFF IN THIS CASE. THESE
ARE COMPLETELY TWO DIFFERENT CASES. STEPHEN P. DE NITTIS: JUSTICE PIERRE-LOUIS,
WHILE I UNDERSTAND YOUR HONOR'S POSITION, THE TENET THAT A PRICE ON A PRICE TAG FOR SETTING
THE VALUE OF A PRODUCT IS UNIVERSAL IN ANY CONSUMER FRAUD ACT CASE DUE TO FURST. AND
SEVERAL CASED -- JUSTICE PATTERSON: I DIDN'T UNDERSTAND WHAT YOU JUST SAID.
STEPHEN P. DE NITTIS: I SAID THE PRESUMPTION AND THE HOLDING THAT A
REPRESENTATIVE PRICE ON A PRICE TAG BY ANY DEFENDANT OF A PRODUCT IS ITS MARKET VALUE IS
A HOLDING THAT HAS MUCH FAR MORE REACHING APPLICATION THAN JUST A DEFECTIVE CARPET
CASE. AND IT MAKES SENSE WHEN YOU THINK ABOUT IT. THINK ABOUT WHEN A SELLER SELLS ANY
PRODUCT AS THE STARTING POINT AS TO VALUE. AND THAT MAKES SENSE, BECAUSE THEY ARE
OBJECTIVELY ABLE TO BEST SAY WHAT THAT PRICE IS. AND THAT'S IN TERMS OF THE VALUING DAMAGES,
IF THE COURT WERE TO -- EVEN IF THE COURT WERE TO SAY, OKAY, WELL, BENEFIT OF THE BARGAIN
DAMAGE, WE'RE NOT GOING TO APPLY THAT HERE AND WE'RE ALSO NOT GOING TO APPLY ANY DAMAGE
OR ANY ASCERTAINABLE LOSSES, NOT OWN OUT-OF-POCKET SHTHS THEN AN ACTION WHERE A
DEFENDANT SUCH AS HERE CAN KNOWINGLY -- AND THIS IS NOT SOME INNOCENT MISTAKE AS YOU SEE
SOMETIMES THAT SOME DEFENDANTS MAKE IN CONSUMER FRAUD ACT VIOLATIONS CASES CHLTS THERE IS
A KNOWING INTENT TO TELL THE CONSUMER THIS IS WHAT WE'RE BASING OUR SALES ONTO INDUCE
THEM TO BUY. JUSTICE SOLOMON: ARE YOU ARGUING THAT IN FURST, IF THEY HAD
SOLD THE CARPET AND IT WAS NOT DEFECTIVE AND IT WAS OF THE SIZE REPRESENTED, THEY STILL
WOULD BE ENTITLED TO DAMAGES BECAUSE IT WAS MARKED DOWN? STEPHEN P. DE
NITTIS: ABSOLUTELY NOT. JUSTICE SOLOMON: ISN'T THAT EXACTLY OUR CASE, THE
ABSOLUTELY NOT CASE? STEPHEN P. DE NITTIS: NO. BECAUSE IN FURST, IF THEY
WOULD HAVE SAID THE CARPET WAS A REGULAR PRICE OF $5,775 AND THAT WAS A LIE THAT THEY NEVER
SOLD IT FOR THAT VALUE, THEN THAT IS THE CONSUMER FRAUD ACT VIOLATION. THAT'S NOT WHAT
WAS -- JUSTICE SOLOMON: WHERE DOES IT SAY THAT IN FURST? STEPHEN
P. DE NITTIS: THE COURT IN FURST SAYS -- AND I'LL CITE THE -- SAYS -- THE COURT IN FURST
SAYS -- THIS IS ON PAGE 20. WE ARE MINDFUL THAT MISLEADING ADVERTISING IS A DECEPTIVE
PRACTICE. IT IS A DECEPTIVE PRACTICE UNDER THE ACT FOR A RETAILER TO ARTIFICIALLY INFLATE PRICE FOR THE PURPOSE OF ADVERTISING THE ITEM AT A LARGE REDUCTION. THAT IS A CONSUMER FRAUD
DOES NOT OPEN THE FLOODGATES TO LITIGATION BECAUSE THERE'S ONE SIMPLE REMEDY. THE
DEFENDANT SIMPLY TELL THE TUJ AS TO THE PRICING. JUSTICE PATTERSON: SO IF
THE DEFENDANTS IN THIS CASE HAD FOR ONE DAY, OKAY, NEW PRODUCTS JANUARY 1ST COMES AROUND
AND FOR ONE DAY THEY PUT OUT THERE ALL OF THESE PRODUCTS ARE SOLD AT THE REGULAR PRICE,
THE HIGHER OF THE TWO PRICES, NOT ON THE SALE PRICE TODAY. THIS IS TODAY.
STEPHEN P. DE NITTIS: WELL -- JUSTICE PATTERSON: LET ME JUST FINISH.
THEN JANUARY 2ND COMES AROUND AND THEY ARE BACK TO THE DISCOUNT. DO YOU HAVE
A CLAIM? STEPHEN P. DE NITTIS: JUSTICE PATTERSON, NOT -- WITH ONE DAY,
YES. BUT THE FEDERAL REGULATIONS AND THE PRICING REGS, THE PRICING REGS SAY IT HAS TO BE
OFFERED AT ITS ORIGINAL PRICE 28 OUT OF THE LAST 90 DAYS. UNDER FEDERAL LAW IT SAYS A
REASONABLE PERIOD OF TIME. JUSTICE PATTERSON: TELL US WHAT FEDERAL LAW
YOU'RE TALKING ABOUT. IS THAT PART OF YOUR CLAIM. STEPHEN P. DE NITTIS:
FEDERAL REGULATION 2331. C F R-2331. AND IT SAYS A REASONABLE PERIOD OF TIME. AND I
WOULD SUBMIT IF DEFENDANTS SOLD IT FOR A REASONABLE PERIOD OF TIME EVEN A WEEK OR TWO,
THIS CLAIM WOULD NOT BE HERE. AND TALKING ABOUT THE COMPARATIVE PRICING
THAT MR. JACOBSON DISCUSSED, THERE ARE RE-TAILS THAT PUT COMPARE AT PRICING. YOU HAVE
TO UNDERSTAND, YOUR HONORS, THE DEFENDANTS PUT 50 TO 70 PERCENT IN THEIR STORE. THEN
AN ESTABLISH THROUGH THE REGULAR PRICE. NOW THIS PRICE. THEY'RE INTENTIONALLY CONVEYING
TO THE CONSUMER, THIS WAS THE ORIGINAL PURCHASE PRICE AND NOW YOU'RE GETTING A DEAL.
THIS WOULDN'T BE A CASE IF THEY JUST SOLD IT FOR THEIR REAL PRICE FOR SOME
REASONABLE PERIOD OF TIME. THAT'S WHY THERE'S NOT FLOODGATES OF LITIGATION. THERE'S
NOT GOING TO BE A CASE IF SOMEBODY SAYS, I BOUGHT THIS SWEATSHIRT. I THINK IT'S WORTH
X. DEFENDANTS DIDN'T TELL THEM IT WAS WORTH X. THERE'S NO CASE. THERE'S NO VIOLATION
OF THE PRICING REGS. JUSTICE PATTERSON: THEY'RE NOT SAYING THAT'S THE
ULTIMATE MARKET WORTH. ECONOMICS -- COLLEGE LEVEL ECONOMICS, SUPPLY AND DEMAND AND THE
PRICE CAN BE -- WHERE THAT SUPPLY AND DEMAND CURVE MEETS CAN BE VERY DIFFERENT ON A GIVEN
DAY OR IN A DIFFERENT PLACE. STEPHEN P. DE NITTIS: RESPECTFULLY JUSTICE
PATTERSON, THIS IS WHERE I GO BACK TO FURST. BECAUSE FURST GOES INTO WHY THE PRICE TAKING
IS FOR A STARTING POINT -- AND IT CREATES A PRESUMPTION. IT'S REBUTTABLE. BUT IT
CREATES A PRESUMPTION BECAUSE IT RECOGNIZES, THE COURT RECOGNIZED -- JUSTICE
PATTERSON: BUT THAT'S ALL AFTER THE COURT FOUND A VIOLATION BASED ON THE DEFECTIVE NATURE
OF THE PRODUCT. AND THEN THE IN-QUERY IS UNDER THE UCC IS WHAT IS GOING TO MAKE THIS
PLAINTIFF WHOLE. STEPHEN P. DE NITTIS: I UNDERSTAND THAT JUSTICE
PATTERSON. BUT, HOWEVER, WHEN YOU READ FURST, IT'S NOT THAT NARROW. IT TALKS ABOUT --
IT TALKS ABOUT HOW JUST TO DETERMINE VALUE. AND IT TALKS ABOUT SELLER'S ARE IN THE BEST
POSITION SINCE CONSUMERS DON'T HAVE ACCESS, THE SAME ACCESS THAT A MERCHANT DOES AS TO
THEIR OWN PRODUCTS. THE CONSUMER IS NOT IN NEARLY AS GOOD A POSITION TO DETERMINE WHAT
THE VALUE IS. SO AS A STARTING POINT, THE PRICE ON THE PRICE TAKING IS MARKET VALUE.
IT'S A REBUTTABLE PRESUMPTION. IF THIS CASE WERE TO GO FORWARD, THE DEFENDANT COULD COME
IN AND SAY, NO, MR. DIONNE, NO, PLAINTIFF, YOU HAVE THIS WHOLE WRONG. THEY COULD PRESENT
EVIDENCE WHY THAT IS THE MARKET VALUE. THE MARKET VALUE IS NOT $60 THAT THEY
REPRESENTED, IT'S LESS. IF THEY WANT TO POINT TO COMPETITORS, WHICH WE SUBMIT THIS CASE
IS UNIQUE IN THAT THEY ONLY ALLEY AEROPOSTALE PRODUCTS. BUT THEY COULD RE-BUT THAT
PRESUMPTION THAT JUSTICE PATTERSON IS REFERRING TO. THEY COULD RE-BUT THAT PRESUMPTION
AT TRIAL. THEY COULD DO DISCOVERY. NO, YOU HAVE IT WRONG, WHAT MS. ROBEY BOUGHT, THE
HOODIE IS WORTH 24.95. MS. REYNOLDS, NO. JUSTICE PATTERSON: ALL THAT FOLLOWED
THE COURT'S FINDING. NOT THE EXACT SIZE, COLOR AND CONDITION INDICATED IN THE SALES
CONTRACT, ET CETERA, UNDER THE REGULATIONS THAT APPLIED THERE THAT HAVE NOTHING TO DO WITH
THIS. ALL OF THAT IS, THAT'S THE CLAIM, WHAT'S THE MEASURE OF DAMAGES IS WHAT FOLLOWED.
BUT THE ENTIRE DISCUSSION WAS ABOUT A CONSUMER WHO WENT OUT AND BOUGHT A
PRODUCT THAT TURNED OUT TO BE SOMETHING ENTIRELY DIFFERENT AND MUCH LESS VALUABLE THAN
WHAT WAS ADVERTISED. STEPHEN P. DE NITTIS: AND I'LL ADDRESS THAT JUSTICE
PATTERSON, IN THIS WAY. HONESTLY, I RESPECTFULLY DISAGREE. BUT I'LL TELL YOU WHY IN TERMS
OF THE POLICY THAT IT WOULD SUPPORT IF PLAINTIFF'S POSITION IS WRONG.
FIRST, BENEFIT OF THE BARGAIN DAMAGES ARE NOT LIMITED TO JUST THAT ONE TYPE OF VIOLATION
OF THE CONSUMER FRAUD ACT. IT'S AN AVAILABLE MEANS AND AN AVAILABLE NATURE OF A LOSS.
BUT IF FURST IS DETERMINED AS NARROW AS JUSTICE PATTERSON IS SUGGESTING, THEN IF THERE IS
ABSOLUTELY NO ASCERTAINABLE LOSS FOUND HERE, THEN IT WOULD GIVE THE GREENBAUM LIGHT FOR
ANY DEFENDANT, ANY SELLER OF MERCHANDISE IN THE STATE OF NEW JERSEY IT WISHES TO SELL
IT FOR FAKE -- WAINER WAINER WHY IS THAT TRUE? STEPHEN P. DE NITTIS: GOVERNOR
CAHILL AMENDED THE NEW JERSEY FRAUD ACT ALMOST 25 YEARS AGO TO ENABLE AND EMPOWER PRIVATE
RIGHTS OF ACTIONS. JUSTICE PIERRE-LOUIS: IF THERE'S AN ASCERTAINABLE
LOSS. IF THERE'S NO LOSS, THEN THE ATTORNEY GENERAL HAS THE ABILITY TO REMEDY THIS
SCENARIO. IF THERE'S NO ASCERTAINABLE LOSS, THERE'S NO PRIVATE RIGHT OF ACTION.
STEPHEN P. DE NITTIS: CORRECT, JUSTICE PIERRE-LOUIS. IF THERE'S NO ASCERTAIN
APPLICABLE. AND THAT HELPS POLICE FRIVOLOUS CLAIMS. BUT THE POINT IS, A PRIVATE ATTORNEY
GENERAL CITIZEN CANNOT BRING A CAUSE OF ACTION IF THERE IS NO ASCERTAIN LOSS HERE.
JUSTICE PATTERSON: IF YOU ARE RIGHT THAT THESE REGULATIONS READ TOGETHER, READ SEPARATE
LY, BAR THE CONDUCT THAT IS AT ISSUE HERE, THE ATTORNEY GENERAL CAN TAKE ACTION TOMORROW.
STEPHEN P. DE NITTIS: THAT'S ABSOLUTELY -- JUSTICE PATTERSON:
AND END IT. THAT'S CLARIFIED TO ALL THE RETAILERS IN NEW JERSEY THAT THIS IS NOT --
THIS IS A VIOLATION OF THE CONSUMER FRAUD ACT. AND THE OFFENSIVE PRACTICE THAT YOU ARE
TALKING ABOUT HERE WOULD BE OVER, OR ELSE PEOPLE ARE IN PERIL OF HER SIGNIFICANT PENALTY
SNOOS JUSTICE PATTERSON, THERE ARE -- THERE ARE ALREADY REGS THAT PROHIBIT THIS CONDUCT.
THERE ARE REGS THAT PROHIBIT SELLERS FROM DOING THIS. THEY'RE THE REGS CITED IN OUR PAPERS
AND THAT'S PART OF THE BASIS OF THIS CLAIM. PART OF THE REASON WHY THE LAW
ENABLES PRIVATE ATTORNEY GENERAL ACTIONS, THEY DON'T HAVE THE ABILITY TO PURSUE EVERY
FRAUD CASE. THAT'S WHY THE GOVERNOR AMENDED THE CONSUMER FRAUD ACT. AND --
JUSTICE PATTERSON: WELL, THE LEGISLATURE WOULD HAVE BEEN THE ONES TO AMEND IT. OBVIOUS
LY THE GOVERNOR SIGNED IT. STEPHEN P. DE NITTIS: I'M SORRY. CORRECT.
YOU'RE RIGHT JUSTICE PATTERSON. IERNL WAY, THE LAW NOW PERMITS -- CHIEF JUSTICE
RABNER: CAN YOU RESPOND TO MR. JACOBSON, THE CHAMBER OF COMMERCE ARGUMENT ABOUT SECTION
9.8? STEPHEN P. DE NITTIS: YES. THAT'S TALKING ABOUT COMPARABLE PRICING,
WHAT ARE COMPETITORS SELLING IT FOR. THEY CAN REFER TO COMPETITORS PRICING AS A BASIS
FOR THAT. FIRST, THE DEFENDANTS HAVE NOT MAINTAINED THAT AS A DEFENSE IN
THIS ACTION, NUMBER ONE. NUMBER TWO, FACTUALLY, THAT'S A DIFFICULT -- THAT
REGULATION DOESN'T NECESSARILY APPLY, BECAUSE AEROPOSTALE. DEFENSE AND SAY, NO, NO, NO,
WE DO HAVE A BASIS FOR SELLING IT AT HIS REGULAR PRICE, OTHER RETAILERS SELL THAT EXACT
TYPE OF SWEATSHIRT OR EXACT TYPE OF PANTS FOR THE SAME PRICE AND WE'RE GOING TO PERMIT
YOU TO USE THAT AS AN AFFIRMATIVE DEFENSE AND THAT'S HOW THEY COULD RE-BUT THEIR
PRESUMPTION. SO THAT WOULD BE MY RESPONSE. AND I DON'T THINK IT TAKES THE PLACE OF STILL
AN ABSOLUTE FABRICATED FICTITIOUS PRICE. NRG NRG THEY'RE ONLY IN MALLS USUALLY. NEXT
TO OTHER STORES THAT SELL THE EXACT SAME ITEMS. 20 OF THEM RIGHT DOWN THE AISLE. THEY
ALL SELL THE SAME ITEMS EVEN THOUGH THEY HAVE DIFFERENT LABELS FOR EACH ONE. A CONSUMER
CAN GO THROUGH EACH ONE AND SAY THIS ONE STORE HAS A SIMILAR QUALITY JEAN FOR LESS.
STEPHEN P. DE NITTIS: JUSTICE NOR, WE'RE AT THE MOTION TO DISMISS STAGE. DEFENDANTS
REPRESENT THEIR AEROPOSTALE PRODUCTS ARE OF UNIQUE QUALITY, ARE SPECIAL OR DIFFERENT THAN
WHAT OTHER RETAILERS OFFER. THEY'RE BETTER. CERTAINLY THAT COULD BE A DEFENSE THAT
AEROPOSTALE COULD BRING AN OPPOSITION TO THIS CASE. BUT TO DETERMINE AT THE MOTION TO
DISMISS STAGE THAT PLAINTIFF IS PRECLUDED WHEN ITS ONLY AEROPOSTALE PRODUCTS THAT ARE AT
ISSUE -- IN DOING THIS CASE, IF IT WAS JUST A BASIC ONE OF THE MILLION T-SHIRT THAT WAS
SPECIAL, THIS CASE MAY NOT HAVE BEEN BROUGHT. THE THING THAT'S UNIQUE ABOUT THIS CASE
IS AEROPOSTALE ONLY SELLS AEROPOSTALE PRODUCTS. JUSTICE PATTERSON: BUT ISN'T
IT COMMON -- I DON'T KNOW THE ANSWER TO THIS. ISN'T IT COMMON IN THE CLOTHING INDUSTRY
THAT THE SAME FACTORY PRODUCES THE SAME CLOTHES AND PEOPLE ARE BRANDING THEM AND SAYING
MINE IS BETTER BECAUSE YOU GET OUR LABEL ALONG WITH THAT CLOTHING. STEPHEN P.
DE NITTIS: THAT'S TRUE, BUT JUSTICE PATTERSON -- AND IT'S NOT JUST -- I WANT TO CLARIFY
SOMETHING IN THE RECORD THAT GOES TO YOUR POINT JUSTICE PATTERSON. THIS ISN'T SOMETHING
UNIQUE TO NEW JERSEY. THERE'S BEEN SEVERAL CASES AROUND THE COMPANY. ONE IS IN CALIFORNIA
(CASE CITED). AND IN THAT CASE, THE 9TH CIRCUIT SAID PRICE MATTERS. AS AN IMPORTANT
CHARACTERISTICS. JUST IN COMMON SENSE, IF YOU THINK ABOUT THAT, THAT MAKES SENSE. WHEN
A PERSON GOES TO BUY SOMETHING, THEY LOOK AT, OKAY, I LIKE THAT CAR OR I LIKE THAT SUIT
OR I LIKE THOSE PANTS. HOW MUCH DOES IT COST? OH, WELL, THAT'S THE PRICE -- OH, WELL,
THAT'S TOO MUCH. BUT IF IT'S ON SALE, WOW, I'M GETTING A DEAL. I WANT TO BUY THAT.
THAT TAKES INTO ACCOUNT THAT PRICE IS AN IMPORTANT QUALITY. JUSTICE
PATTERSON: DO YOU HAVE A CASE ANYWHERE OUTSIDE OF NEW JERSEY THAT DEALS WITH A COMPARABLE
SITUATION TO THIS? NOT A GENERAL STATEMENT THAT PRICE IS IMPORTANT BUT A COMPARABLE STATEMENT
TO THIS? STEPHEN P. DE NITTIS: YES. SO SEVERAL CASES. SO IN CLARK VERSUS
EDDIE BAUER, THE OREGON SUPREME COURT, AND THAT'S CITED -- IT CAME DOWN BY THE OREGON
SUPREME COURT. ADDRESSED THE IDENTICAL FACTS AS IN THIS CASE AND HELD THAT -- AND THAT WAS
AT THE PLEADING STAGE. AND THAT PLAINTIFFS HAD PLED AN ASCERTAINABLE LOSS. IN HENNESSY
VERSUS COAL. IDENTICAL ALLEGATIONS AS HERE. JUSTICE PATTERSON: ARE THERE
CONTRARY CASES? STEPHEN P. DE NITTIS: THERE'S SEVERAL CASES BEFORE. MISS
SOUR RI -- THAT'S UNDER THE MISS SOUR RI GPA. (CASE CITED) IDENTICAL ALLEGATIONS AND
CONDUCT HERE. THE COURT FOUND THAT IT SATISFIES A CLAIM AS PLEADING ASCERTAINABLE LOSS
UNDER THE WASHINGTON CONSUMER PROTECTION ACT. IN CALIFORNIA, (CASE CITED),
THE COURT, THERE WAS CLAIMS OF UNDER NEW JERSEY LAW AND CALIFORNIA LAW IN THAT CASE, THE
COURT FOUND NOT ONLY WERE THE CALIFORNIA STATUTE AT THE PLEADING STAGE WAS AN ASCERTAINABLE
LOSS PROPERLY PLED BUT SO WAS THE NEW JERSEY FRAUD ACT CASE. THESE ARE CALLED FALSE
REFERENCE PRICE CASES. SO NEW JERSEY IS NOT ALONE IF THIS COURT WERE TO FIND
THAT THERE IS AN ASCERTAINABLE LOSS HERE. THE FIRST CIRCUIT IN (CASE CITED) FINDS THAT
THERE IS NO HARM WHEN SOMEONE BUYS SOMETHING THAT THEY KNOW IS ON SALE. THEY SUPPORT
WHAT DEFENDANTS ARE ADVOCATING, THAT, LOOK, IT DOESN'T MATTER WHAT IT WAS ORIGINALLY
PRICED FOR. A PERSON IS TOLD THIS IS THE PRICE AND THEY ELECTED TO BUY IT. THERE'S NO
DAMAGE. AND ALSO NEW YORK FOLLOWED THAT. HOWEVER, I THINK THAT RESPECTFULLY
AND AS THE COURTS I MENTIONED FOEL THAT THERE IS AN ASCERTAINABLE LOSS AT LEAST AT THE
PLEADING STAGE HERE, IT MAKES SENSE -- JUSTICE PATTERSON: THE FIRST CIRCUIT
CANNOT THE ONLY CASE. IS THAT RIGHT. STEPHEN P. DE NITTIS: STEPHEN
P. DE NITTIS: THE FIRST CIRCUIT, SECOND CIRCUIT. THERE'S MULTIPLE CASES IN THOSE CIRCUITS
BUT THEY'RE THE TWO CIRCUITS. AND SO -- I THINK IT'S BAD POLICY IF THERE'S NO ASCERTAINABLE
LOSS HERE. IT'S BAD POLICY TO ALLOW A DEFENDANT TO LIE ABOUT THE PRICE TAKING TO BASE
ITS SALE. WHEN THIS ISN'T AN ONEROUS -- THIS IS NOT ONEROUS FOR A DEFENDANT TO AVOID.
THEY JUST SIMPLY HAVE TO BE HONEST. AND JUST LIST WHAT THE PRICE IS FOR SOME REASONABLE
PERIOD OF TIME AFTER SELLING IT FOR. THIS ISN'T SOME HONEST MISTAKE AS WELL. THIS ISN'T
A SITUATION WHERE SOMEONE INTERNALLY MADE A LITTLE MISTAKE, OH, I DIDN'T COMPLY WITH THE
CONSUMER FRAUD ACT HERE. WE'VE TRACKED THEIR PRICING HISTORIES. THEY'VE CALCULATED --
THEY MADE A CALCULATED DECISION TO LIE TO THE PUBLIC. WHY IS THAT GOOD IN ANY STATE?
WHY IS THAT A GOOD BUSINESS PRACTICE THAT IF THERE'S NO ASCERTAINABLE LOSS IS FOUND HERE
THAT THAT ENDORSES DEFENDANT TO SAY WHATEVER THEY WANT ABOUT PRICE HERE. JUSTICE
PATTERSON: DO YOU THINK THERE IS A REGULATION ON POINT? A STATE REGULATION ON POINT?
STEPHEN P. DE NITTIS: STATE -- YES, YOUR HONOR. JUSTICE
PATTERSON: TELL US WHAT THAT IS. STEPHEN P. DE NITTIS: IT'S THE DIRECT
-- 34:45 A-9.6A. WHICH PROHIBITS A RETAILER FROM BASING ITS SALE OFF OF FICTITIOUS PRICING.
IT'S ILLEGAL FOR A SELLER TO BASE ITS SALE OUT OF OF FICTITIOUS PRICING. AND
THIS GOES BACK TO -- JUSTICE PATTERSON AND JUSTICE PIERRE-LOUIS, I KNOW YOU DISAGREE
WITH ME. BUT THIS GOES BACK TO WHY I SAY FURST IS SO IMPORTANT. THREE AND A HALF TO FOUR
PAGES OF ITS DECISION GOING INTO A DEEP DIVE OF THE PRICING REGS AND WHY THERE IS FICTITIOUS
PRICING REGS, THERE'S REGS THAT SAY FICTITIOUS SALES ARE ILLEGAL AND WHY THEY'RE ILLEGAL
AND THEY GIVE THE POLICY BEHIND IT. AND THAT'S WHY WHEN YOU READ THOSE FOUR PAGES IN
THE OPINION AND THE DEEP DIVE THAT THE COURT GOES INTO THERE, THAT'S PART OF THE REASON
WHY THE COURT SAID IN THAT CASE THAT A PRICE ON A PRICE TAG CREATES A PRESUMPTION. BECAUSE
THE LAW SAYS IT CAN'T BE FICTITIOUS. SO -- AND THAT'S MARKET VALUE. JUSTICE
PATTERSON: IF YOU'RE RELYING ON 96 -- BECAUSE YOU HAVE A TECHNICAL CLAIM AS WELL AS A
CFA CLAIM. STEPHEN P. DE NITTIS: YES. JUSTICE PATTERSON:
WHAT YOU'RE CITING TO US IS 9.6A. AND 9.6 DEFINES FICTITIOUS PRICES IS ONE THAT A
SELLER CANNOT SUBSTANTIATE THROUGH SHOWING PRICES AT WHICH SUBSTANTIAL SALES OF THE PRODUCT
WERE MADE IN THE SAME TRADE AREA WITHIN 60 DAYS BEFORE OR AFTER. PRICES AT WHICH THE
SELLER OFFERED THE PRODUCT FOR 28 OF THE PREVIOUS 30 DAYS PLUS THE USUAL MARKUP USED BY
THE SELLER IN SELLING HE WILL THE PRODUCT FOR COMPARABLE PRICES. CORRECT?
STEPHEN P. DE NITTIS: YES. JUSTICE PATTERSON: SO DOES 9.8 B's EXCEPTION
FOR $100 OR LESS PRICES APPLY TO 9.6A? 9.8 B. STEPHEN P. DE NITTIS: IT
DOES, YOUR HONOR, IN THIS. IF IT'S A PRICE TAG OVER $100, THE DEFENDANT THEN HAS TO GIVE
MORE INFORMATION TO THE CONSUMER AS TO WHAT'S THAT -- WHAT'S THE DISCOUNT BASED ON. IF
IT'S UNDER $100, IT DOESN'T. JUSTICE PATTERSON: MY QUESTION IS REALLY SIMPLE.
DOES THE QUALIFICATIONS IN THAT $100 OR LESS LIMITATION OF 9.8 B APPLY TO WHAT YOU SAY
IS THE COREG TOWER PROVISION YOU'RE RELYING ON, 9.6A? STEPHEN P. DE NITTIS:
THE ANSWER TO THAT QUESTION JUSTICE PATTERSON IS IT APPLIES BUT IT DOESN'T SUBSTITUTE
IF IT IS A FICTITIOUS PRICE. IT DOESN'T EXCUSE A DEFENDANT FROM STILL UTILIZING AN EXISTING
IF I CAN FICTITIOUS PRICE. I THINK YOUR HONOR ASKED MY ADVERSARY THE QUESTION, WELL,
WOULD THAT SUBSTITUTE THE BASIS FOR THE PRICE. AND COUNSEL SAID NO. AND I AGREE WITH
THAT. SO CERTAINLY IT DOESN'T HAVE TO BE DISCLOSED, BUT IT DOESN'T EXCUSE OR WAIVE A
SELLER'S ABILITY TO JUST USE A FICTITIOUS PRICE JUST BECAUSE THERE'S THAT SECTION OF THE
REG. A COUPLE OF OTHER CLOSING POINTS, YOUR HONORS. UNDER (CASE CITED),
UNDER SPADE, THE COURT MADE CLEAR IN ITS OPINION THAT THIS COURT MADE CLEAR THAT A VIOLATION
OF A NEW JERSEY ADMINISTRATIVE CODE REG IS A VIOLATION OF A CLEAR ESTABLISHED RIGHT TO
SERVE FOR PURPOSES OF A TICK VIOLATION. WHAT REALLY TURNS ON THIS CASE HAS BEEN WOULD
SOMEONE BE AN AGO GRIEVED CONSUMER. THE FIRST RESPONSE IS IF THE COURT WERE
TO FIND AN ASCERTAINABLE LOSS, THEN CERTAINLY AN ASCERTAINABLE LOSS SATISFIES AN AGGRIEVED
CONSUMER STANDARD. AN AGGRIEVED CONSUMER IS MORE BROAD THAN AN ACTUAL OUT-OF-POCKET LOSS.
SO THAT'S AN EASY -- JUSTICE PATTERSON: HOW ABOUT THE CONVERSE?
STEPHEN P. DE NITTIS: SO THE CONVERSE IS, IT'S UN-SETTLED. AND I GUESS THE QUESTION
WOULD BE -- JUSTICE PATTERSON: LET ME BE CLEARER. IF THERE IS NO CFA VIOLATION,
CAN YOUR CLIENT BE AN AGGRIEVED CONSUMER, GIVEN WE'RE TALKING ABOUT A TRANSACTIONAL
SITUATION? STEPHEN P. DE NITTIS: I UNDERSTAND. THIS COURT, I THINK THEY'RE
MORE THAN AN AGGRIEVED CONSUMER THAN THEY WERE IN SPADE. IN SPADE THERE WAS A CLAUSE
IN A CONTRACT THAT THEY DID NOT -- THAT SAID IF YOU DON'T GET YOUR FURNITURE ON TIME YOU
CAN'T SEEK A REFUND AND THAT CONTRAVENED WHAT A NEW JERSEY REGULATION SAID. BUT THE
PLAINTIFF THERE DIDN'T SIGH THE FURNITURE DIDN'T COME LATE. SO, YEAH, IT WAS A LEGAL CLAUSE
IN THE CONTRACT, BUT THEY WEREN'T AGGRIEVED IN ANY WAY. HERE, THIS ISN'T
SUBJECTIVE DISAPPOINTMENT. THESE PEOPLE CLEARLY ARE NOT GETTING WHAT THEY WANT. I THINK
IF YOU LOOK AT SPADE, YOU CAN MAKE A VERY GOOD ARGUMENT THAT WHEN YOU TALK ABOUT -- WHEN
YOU LOOK AT SPADE AND THE COURT WENT INTO THE DEFINITION OF WHAT'S AN AGGRIEVED PERSON.
SOMEONE THAT'S EXPERIENCING GRIEF. LOOK AT BLACK'S LAW DICTIONARY -- CHIEF
JUSTICE RABNER: YOU'RE ASKING US IF IT GETS TO THIS POINT TO FIND THAT AN AGGRIEVED CONSUMER
IS A PERSON WHO HAS SUFFERED NO LOSS? STEPHEN P. DE NITTIS: WELL, I WOULDN'T
SAY -- CHIEF JUSTICE RABNER: I KNOW YOU WOULDN'T WRITE IT THAT WAY, BUT
ISN'T THAT IN ESSENCE WHAT YOU'RE ASKING? STEPHEN P. DE NITTIS: I'M ASKING,
WOULD THAT GIVE RISE TO AN AGGRIEVED CONSUMER. CERTAINLY WHAT THESE PEOPLE EXPERIENCED
HERE -- CHIEF JUSTICE RABNER: BEING AN AGGRIEVED CONSUMER WITHOUT HAVING
SUFFERED A LOSS IS IN ESSENCE THE ARGUMENT YOU'RE ADVANCING. STEPHEN P. DE NITTIS:
I WOULD CERTAINLY HOPE IT DOESN'T GET TO THAT POINT, YOUR HONORS, BUT I WOULD ARGUE VIOLATE
AND ARGUE, YES, EVEN IF THE COURT WERE NOT TO FIND AN ASCERTAINABLE LOSS HERE, THESE
PEOPLE WOULD BE AGGRIEVED BECAUSE THEY'RE NOT GETTING WHAT THEY WERE PROMISED.
JUSTICE PIERRE-LOUIS: BUT THEY RECEIVED THE SWEATSHIRT THAT THEY PAID FOR AND KEPT THE
SWEATSHIRT AND APPARENTLY ANTICIPATE CONTINUING TO SHOP AT THIS SAME STORE WHERE THEY ARE
APPARENTLY NOT GETTING WHAT THEY ASKED FOR. I'M HAVING TROUBLE UNDERSTANDING THAT ARGUMENT.
BECAUSE THAT'S CORRECT. YOUR CLIENTS WILL CONTINUE TO SHOP AT AEROPOSTALE AND INTEND
TO DO SO, INTEND TO KEEP THE CLOTHES THAT THEY PURCHASED, ARE NOT MAKING THE ARGUMENT
THAT THE $24 SWEATSHIRT WAS WORTH LESS THAN $24. YOU ARE CONCEDING THAT IT'S WORTH $24.
YOUR CLIENTS WILL KEEP THE SWEATSHIRT AND WILL CONTINUE SHOPPING THERE. SO WHAT IS
AGGRIEVED IN THAT SCENARIO? THAT SUBJECTIVE FEELING THAT YOUR CLIENTS DIDN'T GET THIS
BARGAIN THAT THEY HOPED FOR. NOTWITHSTANDING THE FACT THEY APPEAR TO BE PRETTY SATISFIED
AND HAPPY WITH THE CLOTHES THAT THEY ARE CONTINUING TO PURCHASE. STEPHEN
P. DE NITTIS: JUSTICE PIERRE-LOUIS, RESPECTFULLY, THI ISN'T A SUBJECTIVE FEELING
OF LOSS. THIS IS BASED ON WHAT THEY WERE PROMISED. AND IT'S A SLIPPERY SLOPE. SO IF
THE PRICE DOESN'T MATTER, IF A DEFENDANT COULD SAY WE'RE SELLING THIS FOR 60 BUT THAT'S
NOT TRUE BUT YOU'RE STILL PAYING THIS PRICE RS AT WHAT POINT -- WHERE DOES A COURT DRAW
A LINE -- JUSTICE SOLOMON: WE DON'T DRAW THE LINE. THE LEGISLATURE DREW
THE LINE. WHY DO YOU SUPPOSE THEY SAID FOR A KRUM TO BE AGGRIEVED THEY HAVE TO HAVE AN
ASCERTAINABLE LOSS. BUT THE A G FSHGS THEY DO THIS IMMORAL THING YOU'RE TALKING ABOUT,
CAN STOP THEM, CAN GET AN INJUNCTION, PENALTIES, FINES. WHY DO YOU SUPPOSE THE LEGISLATURE
MADE THAT DISTINCTION? STEPHEN P. DE NITTIS: WELL, THE LEGISLATURE, JUSTICE
SOLE, THEY'VE BROADEN IT TO ALLOW PRIVATE CITIZENS TO BRING PRIVATE RIGHTS OF ACTIONS.
JUSTICE SOLOMON: HOWEVER, THEY DIDN'T SAY THE A G HAD TO PROVE THAT. THE
A G IS OUT THERE ENFORCING OUR LAWS AND REGULATIONS WITH THE ABILITY TO DO ALL THE
THINGS YOU'RE TALKING ABOUT IF THIS HOFK, UNCONSCIONABLE IMMORAL RETAILER IS DOING WHAT
YOU'RE SUGGESTING. WHY DO YOU SUPPOSE THE LEGISLATURE DIDN'T REQUIRE THE A G TO PROVE
ASCERTAINABLE LOSS BUT DID REQUIRE THE CONSUMER TO PROVE ASCERTAINABLE LOSS?
STEPHEN P. DE NITTIS: JUSTICE SOLOMON, CERTAINLY ASCERTAINABLE LOSS IS A GATEKEEPER FUNCTION.
JUSTICE SOLOMON: UNLESS THEY'RE THE A G? STEPHEN P. DE NITTIS:
HOWEVER, NOT FINDING AN ASCERTAINABLE LOSS HERE, WHICH IS AGAIN SOLELY BASED ON DEFENDANT'S
CONDUCT IN HAVING TO LIE TO INCREASE THEIR SALES IN ORDER TO CREATE REVENUE, WHY IS THAT
GOOD POLICY IF THERE IS NO -- JUSTICE SOLOMON: THAT'S NOT OUR CALL. WE
DON'T MAKE THAT KIND OF POLICY T LEGISLATURE ALREADY MADE IT. THEY PASSED A LAW THAT
THE ENTITY IN STATE GOVERNMENT PASSED THE REGULATIONS. STEPHEN P. DE
NITTIS: JUSTICE SOLOMON, THE LEGISLATURE WHEN THEY PASSED THE CONSUMER FRAUD ACT, THEY
SAID ASCERTAINABLE LOSS. THEY DIDN'T SAY LOSS OF MONEYS SPECIFICALLY. IT'S BROADER THAN
THAT. AND THE COURTS HAVE FOUND NUMEROUS OTHER AVENUES WHERE COURTS HAVE INTERPRETED
WHAT ASCERTAINABLE LOSS MEANS. BECAUSE THE LEGISLATURE JUST SAYS ASCERTAINABLE LOSS.
FLORIDA'S FLORIDA'S ONE QUICK QUESTION. I DON'T WANT TO CUT YOU OFF. ARE YOU THROUGH
WITH YOUR ANSWER? STEPHEN P. DE NITTIS: THERE'S RE-PAIR COST, DIMINUTION
OF VALUE. WE'RE SAYING OUR PEOPLE DID NOT GET THE BENEFIT OF THE BARGAIN. FLORIDA'S
FLORIDA'S THEY SAY YOU CANNOT USE OUT-OF-POCKET EITHER. HOW DO YOU RESPOND TO THAT?
STEPHEN P. DE NITTIS: IN (CASE CITED) IT'S PRETTY WELL-SETTLED LAW THAT
TO BRING A CONSUMER FRAUD ACT VIOLATION CLAIM YOU DO NOT NEED TO RETURN THE PRODUCT.
IN A LOT OF CASES, (CASE CITED), IN FURST AND OTHER CASES CITED IN THE PAPERS, PEOPLE
DO NOT HAVE TO RETURN THE PRODUCT IN ORDER TO BRING AN ASCERTAINABLE LOSS CLAIM UNDER
THE CONSUMER FRAUD ACT ACT. HERE, YOU KNOW, PLAINTIFF FEELS THERE SHOULD
BE SOME ASCERTAINABLE LOSS. WE PLED BOTH THEORIES IN OUR COMPLAINT BECAUSE AT THE MOTION TO
DISMISS STAGE EARLY IN THE CASE, THERE IS CASE LAW UNDER PERKINS THAT YOU ACTUALLY DON'T
NEED TO DELINEATE THE NATURE AT THIS EARLY STAGE IN THE LITIGATION. JUSTICE
PATTERSON: BUT OUT-OF-POCKET LOSSES ARE ABOUT THE DIFFERENCE BETWEEN THE PRICE PAID AND
THE ACTUAL VALUE. AND YOU SAY THE JEANS ARE WORTH 16 BUCKS THAT THEY PAID. THAT'S THE
CONCESSION THERE. SO IF THAT'S THE DEFINITION UNDER A NUMBER OF DIFFERENT CASES OF WHAT
OUT-OF-POCKET LOSS, HOW CAN YOU POSSIBLY PROVE AN OUT-OF-POCKET LOSS? STEPHEN P.
DE NITTIS: IT CAN APPLY. WE ALLEGE IN OUR COMPLAINT ALSO THAT THESE PEOPLE WOULDN'T
HAVE PURCHASED BUT FOR THE SALE PRICE. JUSTICE PIERRE-LOUIS: SO YOU'RE
LOOKING FOR A FULL REFUND. STEPHEN P. DE NITTIS: THAT WOULD BE ONE AVENUE
OF DAMAGES. I THINK IT WOULD BE BEST FOR A JURY TO HEAR BOTH AND APPLY WHATEVER IS EQUITABLE.
JUSTICE PATTERSON: A FULL REFUND AND THEY'VE GOT THE CLOTHING AND THE CLOTHING
IS NOT DEFECTIVE AND THEY'RE WEARING THE CLOTHING AND YOU WANT A REFUND TREBLED.
STEPHEN P. DE NITTIS: IF A CONSUMER FRAUD ACT VIOLATION IS FOUND, YES. IF A JURY WERE
TO FIND THAT THE CONSUMER FRAUD ACT WAS VIOLATED BECAUSE IN THIS CASE THERE WAS A SYSTEM
WIDE SCHEME DELIBERATELY AND THE JURY FOUND THAT THAT WAS VIOLATED, THAT SHOULD BE ONE
AVENUE WORTH OF DAMAGES. -- CHIEF JUSTICE RABNER: I THINK WE HAVE OUR
POSITION, COUNSEL. I WANTED TO ASK YOU TO TRY TO WRAP UP YOUR ARGUMENT. STEPHEN
P. DE NITTIS: THANK YOU, YOUR HONOR. CHIEF JUSTICE. AS WE STATED IT'S PLAINTIFF'S
CONTENTION THAT THIS IS WELL-SETTLED UNDER THIS COURT'S PRIOR PRECEDENT. WE ALSO THINK
THAT POLICY DICTATES THAT GOOD POLICY WOULD BE TO FIND THAT THERE'S AN ASCERTAINABLE LOSS,
A BENEFIT OF THE BARGAIN OR OUT-OF-POCKET. THE NATURE AT THIS EARLY STAGE DOES NOT HAVE
TO BE DRAWING A LINE IN THE SAND, BUT TO ALLOW NO ASCERTAINABLE LOSS HERE WOULD REALLY
PERMIT THE ONLY ENFORCEABLE BODY TO ENFORCE ANY TYPE OF FRAUD. WOULD BE THE ATTORNEY
GENERAL. WHICH UNDER CASE LAW COURTS HAVE VIEWED THEY ARE NOT EQUIPPED TO HANDLE EVERY
FRAUD THAT'S IMAGINABLE AND BE ENFORCED. CHIEF JUSTICE RABNER: LET'S HEAR
WHAT THEY HAVE TO SAY. MS. HANLEY. VIVIAN M. HANLEY: MAY IT PLEASE THE
COURT. YOU'VE HEARD SPARC ARGUE THIS MORNING THAT IT CAN ENTIRELY EVADE DIRECT LIABILITY
TO CONSUMERS FOR A PERNICIOUS AND LUCRATIVE FORM OF FRAUD. LYING ABOUT ITS PRODUCTS,
REGULAR PRICES, TO TRICK CONSUMERS INTO BELIEVING THAT ITS PRODUCTS ARE WORTH MORE THAN
THEY ARE. BECAUSE THIS FRAUDULENT PRACTICE VITALS THE CFA BUT PUBLIC RESOURCES ARE
LIMITED, THE ATTORNEY GENERAL HAS AN INTEREST IN SHOWING THE PROPERLY. THE AMICI CURIAE
TO EXPLAIN WHY PLAINTIFFS HAVE STANDING TO LITIGATE THEIR CLAIM FOR DAMAGES AND
INJUNCTIVE RELIEF. IN SHORT, PLAINTIFFS HAVE STANDING BECAUSE SPARKS
FRAUDULENT ADS CAUSED THEM TO EXPECT THAT THEY WERE PURCHASING AN ITEM OF GREATER VALUE
THAN THE ITEMS ACTUAL WORTH. DEPRIVING THEM OF THE BENEFIT -- JUSTICE
PATTERSON: IS IT A STANDING ISSUE? I'M JUST WONDERING WHY YOU'RE SAYING UTS AN ISSUE
OF STANDING. REALLY ISN'T IT UNDER THE CFA AN ELEMENT OF THEIR SUBSTANTIVE CLAIM TO HAVE
AN ASCERTAINABLE LOSS? IT'S NOT -- I DON'T SEE THAT AS A STANDING ISSUE. AM I IN-CORRECT
ABOUT THAT? VIVIAN M. HANLEY: THIS COURT HAS CALLED IT A STANDING ISSUE
IN WEINBERG. IT HAS REFERRED TO THE AS SER UNABLE LOSS REQUIREMENT AS A STANDING
REQUIREMENT. I THINK THAT'S JUST TO DISTINGUISH BETWEEN A SUBSTANTIVE CFA VIOLATION AND
WHAT THE CFA's PRIVATE CAUSE OF ACTION, WHICH IS PARTICULAR TO PRIVATE PLAINTIFFS BRINGING
SUITS. THE DIFFERENCE -- WHICH EVERYONE IS AWARE OF -- BETWEEN THE LAWSUITS THAT THE
ATTORNEY GENERAL CAN BRING AND THOSE THAT PRIVATE PLAINTIFFS CAN BRING. YOU'RE COMPLETELY
RIGHT JUSTICE PATTERSON, THAT IT'S ALSO FREQUENTLY TICKED OFF AS ONE OF THE ELEMENTS.
JUSTICE PATTERSON: IN THE STATUTE IT'S AN ELEMENT. VIVIAN M.
HANLEY: WHAT YOU HAVE IS N.J.S.A. 568-19, WHICH JUST STATES THAT -- THAT IS -- THAT SECTION
IS THE PRIVATELY CAUSE OF ACTION. SO IT'S WHAT ENABLES PRIVATE PLAINTIFFS TO COME INTO
COURT. AND THAT -- IT'S SORT OF THE ELEMENTS OF THE PRIVATE CAUSE OF ACTION IN THAT SEVENLS
IT'S THE STATUTORY STANDING PROVISION AND IT ALLOWS PRIVATE PLAINTIFFS TO COME INTO COURT
WHEN THERE HAS BEEN A CFA VIOLATION THAT THEY PERSONALLY HAVE BEEN A VICTIM OF AND HAVE
SUFFERED LOSS FROM. GIVEN HOW ARGUMENT HAS GONE THIS MORNING, I WANT TO
PRIMARILY ADDRESS THIS OBJECTIVE, SUBJECTIVE DISTINCTION. AND I WOULD NOTE THAT -- SO
SPARKS POSITION IS THAT IT IS I HAD I DO NOT SKIN ACCURATE TICK AND SUBJECTIVE TO BELIEVE
THAT AN ITEM THAT WAS PREVIOUSLY AND HOPEFULLY LEGITIMATELY OFFERED FOR SALE ON THE MARKET
FOR ASK DOLLARS IS NOT OF GREATER VALUE THAN AN ITEM THAT WAS PREVIOUSLY OFFERED FOR SALE
FOR $24. AND WE WOULD SUBMIT THAT THAT'S ACTUALLY THE SIMPLY AND MOST STRAIGHTFORWARD
MISREPRESENTATION OF VALUE. IN OTHER CASES, WHEN YOU'RE IN A POSITION OF
DETERMINING WHETHER WHAT WAS PROMISED IS OBJECTIVELY MORE VALUABLE THAN WHAT WAS
RECEIVED, YOU WOULD TAKE THE SORT OF CHARACTERISTICS AT ISSUE AND YOU WOULD ASK
WHAT DOES THAT NORMALLY SELL FOR ON THE MARKET AND DOES THAT SELL FOR MORE THAN WHAT WAS
ACTUALLY RECEIVED. FOR EXAMPLE IF YOU TAKE THE CAMPBELL SOUP CASE, THAT WAS A CASE IN
WHICH THE -- THERE WAS A FRAUDULENT MISREPRESENTATION THAT THE SOUP HAD 25
PERCENT LESS SODIUM WHEN IN ACTUALITY IT DOES NOT. IT HAD THE REGULAR AMOUNT OF SODIUM.
AND SPARC DOESN'T DISPUTE THERE WAS A LOSS THERE. SO IT'S POSITION SEEMS TO BE THAT
THERE'S SOMETHING OBJECTIVELY VALID ABOUT THINKING 25 PERCENT REFUSED SODIUM SOUP IS
MORE VALUABLE THAN REGULAR SODIUM SOUP BUT THERE'S NOT SOMETHING OBJECTIVELY VALID THAT
THINKING THAT AN ITEM THAT REGULARLY SELLS FOR ASK DOLLARS THAN AN ITEM THAT REGULARLY
SELLS FOR $24. THE ITEM SOLD FOR ASK TDZ BEING WORTH MORE IS A DIFFERENT CASE.
JUSTICE SOLOMON: PRICE IS DIVENT THAN CONSTRUCT AND CONTENT. IN ONE CASE, THE STUFF IN
THE SOUP WASN'T WHAT THEY SAID IT WAS. IN THIS CASE, THE STUFF IN THE SWEATSHIRT IS EXACTLY
WHAT THEY SAID IT WAS. THAT'S THE DIFFERENCE. PRICE DOES NOT SET VALUE. PRICE IS NEVER
SYNONYMOUS WITH VALUE. IN THE MARKETPLACE IT'S JUST NOT. THAT'S NOT THE DEFINITION.
VIVIAN M. HANLEY: SO THE ITEM THAT -- THE AMOUNT THAT AN ITEM REGULARLY
SELLS FOR ON THE MARKET IS THE BEST CATER V INDICATOR OF VALUE THAT WE HAVE.
JUSTICE SOLOMON: BUT THAT'S NOT WHAT THE PRICE TAKING IS. THE PRICE TAKING IS WHATEVER
THE SELLER WANTS TO SELL IT AT. WHAT THE CONSUMER IS WILLING TO BUY IT AT. REGARDLESS
OF WHAT THAT NUMBER IS, PRICE DOES NOT EQUAL VALUE. IT NEVER DOES. I DON'T MEAN TO USE
THE TERMS THAT JUSTICE PATTERSON, BUT GULTHS CHEE SHOES -- JUSTICE PATTERSON:
I KNEW HE'D MAKE ME LOOK BAD. JUSTICE SOLOMON: GULTHS CHEE SHOES ARE WORTH
MORE THAN THE IDENTICAL SHOW. VIVIAN M. HANLEY: AND WE KNOW THAT. WE
LOOK AT WHAT GULTHS CHEE SHOWS REGULARLY SELL FOR ON THE MARKET. THAT'S ULTIMATELY THE
THING WE LOOK FOR. JUSTICE SOLOMON: THAT ACTUALLY IS NOT. WHAT THE WILLING
CONSUMER WILL PAY AND WHAT THE WILLING BUYER WILL ACCEPT. IT CAN GO ON THE MART AT A
THOUSAND DOLLARS A SHOE, WHICH WOULD BE $2,000 A PAIR. I'M NOT A MATH STUDENT. BUT THEY
SELL ZERO, THAT PRICE HAS NO COMPARISON TO VALUE. IT NEVER DOES. VIVIAN M.
HANLEY: I THINK OUR POINT IS THAT IF YOU ONLY -- TWO ITEMS APPEAR TO BE THE SAME. WHAT
YOU KNOW ABOUT THEM, ONE REGULARLY SELLS FOR ASK DOLLARS AND ONE REGULARLY SELLS FOR
$24. WE WOULD SUBMIT IT WOULD ACTUALLY BE IRRATIONAL TO PREFER AN ASSIGNED GREATER
WORTH TO THE ONE THAT SELLS FOR $24. THE ONE THAT REGULARLY SELLS FOR $60 IS WORTH MORE.
AGAIN, JUST TO GO BACK TO THE SOUP EXAMPLE, WHAT THE SDRIKT OF NEW JERSEY
ACCEPTED THERE AND SPARC DOESN'T DISPUTE WAS THE RIGHT WAY TO PROCEED, THEY SAID, WHAT
IS THE 25 PERCENT REDUCED SODIUM SOUP REGULARLY OFFERED FOR SALE AT. THEY OBSERVE POLICE
DEPARTMENT THE DIFFERENCE IS THE LOSS. AND HERE WE JUST -- YOU BASICALLY SKIP A STEP.
ALL YOU HAVE TO SAY IS WHAT IS A SWEATSHIRT THAT REGULARLY SELL FOR $60 REGULARLY SOLD
FOR? YOU CAN SEE THERE IS A LOSS THERE. SO -- JUSTICE PATTERSON:
WHAT IS THE ATTORNEY GENERAL'S POSITION REGARDING THE IMPORT OF SECTION 9.8 B?
VIVIAN M. HANLEY: SURE. SO I WOULD JUST NOTE THAT SPARC DID NOT PETITION FOR A
CERTIFICATION ON WHETHER THERE WAS A CFA VIOLATION HERE, BUT WE BELIEVE THAT THE APPELLATE
DIVISION WAS CORRECT IN UNDERSTANDING THAT A VIOLATION OF 1345 A-NINE.6A WAS PROPERLY
ALLEGED. I THINK THERE'S BEEN A LITTLE BIT OF CONFUSION THIS MORNING ABOUT --
JUSTICE PATTERSON: WE HAVE A TICK VIOLATION ALLEGED HERE AND THAT REQUIRES A CLEARLY
ESTABLISHED RIGHT. SO RESPECTFULLY I THINK IT IS IMPORTANT FOR US TO UNDERSTAND WHAT THE
AG'S POSITION IS WITH RESPECT TO -- I'M LOOKING AT YOUR BRIEF AT PAGE SIX. REGULATIONS
PROMULGATED BY THE DIVISION SPECIFIED BY THE USE OF A FICTITIOUS PRICE. 9.6A AND THEN
9.6 D. BUT WHAT IS THE POSITION OF THE A G REGARDING 9.8 B? VIVIAN M.
HANLEY: YES. 9.8 B EXEMPT FRS THE REQUIREMENTS OF 9.5 THAT YOU EXPRESSLY DISCLOSE THE
BASIS, LIKE WHAT THE REFERENCED PRICE REFERS TOCHLT AND SO THERE'S NO REQUIREMENT --
AEROPOSTALE DID NOT HAVE TO SAY SPECIFICALLY WHAT THE REFERENCE PRICE REFERRED TOCHLT SO
IT'S EXEMPTED FROM 9.5. HOWEVER, THAT PART OF 9.8 WHICH EXEMPTS ITEMS WORTH
LESS THAN $100 FROM THE REQUIREMENTS OF 9.5, DOES NOT REFER TO 9.6. CHIEF JUSTICE
RABNER: SO DOES SECTION 9.8 HAVE ANY IMPACT ON 9.6? VIVIAN M. HANLEY:
NO, IT DOES NOT. JUSTICE PATTERSON: HOW DO WE KNOW THAT? OR MORE APPROPRIATE
LY, HOW DO THE DEFENDANTS KNOW THAT SINCE THE ALLEGATION, THE TICK ALLEGATION REQUIRES
VIOLATION OF A CLEARLY ESTABLISHED RIGHT? VIVIAN M. HANLEY: 9.8 EXPRESSLY
REFERS TO 9.5. IT JUST SAYS YOU AREN'T REQUIRED TO COMPLY WITH THE DISCLOSURE REQUIREMENTS
OF 9.5. THAT'S JUST WHAT 9.8 SAYS. AND IT DOESN'T ENCOMPASS 9.6. AND WE
WOULD ALSO NOTE THAT -- AND WE HAVE NO POSITION ON THE TICK CLAIM. THE ATTORNEY GENERAL
DOESN'T ENFORCE IT. BUT YOU COULD ALSO LOOK AT 9.2A, WHICH IS THE SORT OF GENERAL
PROHIBITION ON FRAUDULENT PRICING ADVERTISEMENTS. AS WELL AS SIMPLY THE BROAD PROHIBITION
OF THE CFA, 568-TWO, WHICH PROHIBITS JUST FRAUDULENT PRACTICES GENERALLY.
JUSTICE PATTERSON: HAS THE ATTORNEY GENERAL ENJOINED ANY CONDUCT SUCH AS THE CONDUCT THAT
IT IS COMING BEFORE THE COURT AND SAYING IS A VIOLATION OF THE CFA? VIVIAN M.
HANLEY: I'M NOT AWARE THAT IT HAS. THESE MATTERS USUALLY SETTLE. BUT I CAN'T
REPRESENT EITHER WAY. BUT WE CERTAINLY ARE HERE IN SUPPORT OF RESPONDENTS BECAUSE THERE ARE
SIMPLY TOO MANY OF THESE VIOLATIONS FOR OUR OFFICE TO BE ABLE TO PROSECUTE ALL OF THEM.
IT TAKES SIGNIFICANT INVESTIGATIVE WORK. JUSTICE PATTERSON: BUT YOU ARE
HERE SAYING TO US THERE IS A CURRENT AS WE SPEAK UN-LAWFUL PRACTICE GOING ON IN THE RE-
TAIL INDUSTRY IN NEW JERSEY BECAUSE OF THIS TYPE OF PRICING. VIVIAN M. HANLEY:
IF THE ALLEGATIONS ARE ACCEPTED AS TRUE -- WE HAVEN'T DONE THE INVESTIGATIVE WORK --
JUSTICE PATTERSON: I'M NOT SAYING THIS PARTICULAR CASE. BUT YOU ARE HERE
SAYING TO US THAT A -- IF CONSUMERS OUT THERE AND THE CLOTHING INDUSTRY OR THE FOOD INDUSTRY
OR WHATEVER IT MAY BE ARE PUTTING REFERENCE PRICES ON THEIR PRICE TAGS, THAT THEY HAVE
NOT ACTUALLY SOLD THE PRODUCT FOR, THAT IS A VIOLATION OF THE REGULATIONS.
VIVIAN M. HANLEY: THERE'S SLIGHTLY MORE NUISANCE THAN THAT WHICH IS SPELLED OUT IN 9.6B.
BUT IF THERE IS IN FACT ESSENTIALLY NO BASIS FOR THE FORMER PRICE, WHICH IS WHAT IS ALLEGED
HERE, THEN, YES, THAT WOULD BE A CFA VIOLATION. JUSTICE PATTERSON: PERCENTAGE
OFF DISCOUNTS SUBJECT TO 9.8 AND HERE AGAIN -- VIVIAN M. HANLEY: THAT'S
9.5. JUSTICE PATTERSON: I THOUGHT B SAYS PERCENTAGE OFF DISCOUNTS -- I'M
READING FROM ONE OF THE AMICUS BRIEFS. MADE IN ACCORDANCE WITH N.J.A.C. 9.8 SHALL BE EXEMPT
FROM THE REQUIREMENTS OF A ABOVE. THAT'S WHAT B SAYS. VIVIAN M. HANLEY:
9.6B -- JUSTICE PATTERSON: I'M SORRY. YOU'RE RIGHT. I APOLOGIZE.
VIVIAN M. HANLEY: THE STRUCTURE OF 9.6B IS PART A SIMPLY SAYS IT SHALL BE A VIOLATION
OF THE CONSUMER FRAUD ACT TO USE A FICTITIOUS FORMER PRICE. AND 9.6B LAYS OUT THE WAYS
THAT A SELLER CAN SUBSTANTIATE ITS FORMER PRICES. AND THERE ARE THREE DIFFERENT WAYS.
AND THEY'RE QUITE FLEXIBLE. I THINK THEY REALLY ARE DESIGNED TO CAPTURE WHATEVER A BONA FIDE
FORMER PRICE WOULD BE. AND SO AGAIN BECAUSE SPARC DIDN'T PETITION FOR
CERTIFICATION ON WHETHER THERE WAS A CFA VIOLATION, THE ATTORNEY AGAIN IS MAINLY HERE
TODAY TO SAY, WHEN YOU HAVE A VIOLATION OF 9.6A, PRIVATELY PLAINTIFFS CAN PROSECUTE THAT
BECAUSE THERE IS AN ASCERTAINABLE LOSS. AND I JUST WANT TO SPEAK A LITTLE BIT ABOUT FURST.
WE CERTAINLY UNDERSTAND THAT FURST IS IN A DIFFERENT PROCEDURAL POSTURE. SO OUR
POSITION IS NOT THAT WE SAY IT'S FURST AND THAT'S THE END OF THE DAY. IT CERTAINLY TAKES
MORE WORK THAN THAT. WE DO THINK IT'S THE MOST ON POINT CASE. BUT WE AGREE THAT THIS
COURT IS -- JUST SORT OF NEEDS TO DECIDE THIS ISSUE ON FURST PRINCIPLES. BUT
FURST ESTABLISHES TWO THINGS CLEARLY. ONE IS ITS STATEMENT THAT BENEFIT OF THE BARGAIN
DAMAGES ARE AN AVAILABLE THEORY FOR CONCEPTUALIZING ASCERTAINABLE LOSS. AND
BENEFIT OF THE BARGAIN DAMAGES ARE DESIGNED TO PUT THE DEFRAUDED CONSUMER IN THE POSITION
THEY WOULD HAVE BEEN IN HAD THE MISREPRESENTATIONS BEEN TRUE. AND SO I'D
LIKE TO USE THE COX CASE AS AN EXAMPLE BECAUSE I THINK IT'S RESPONDS TO SOME OF JUSTICE
PIERRE-LOUIS's CONCERNS ABOUT MAYBE A CONCERN THAT YOU'RE IN A BETTER POSITION THAN YOU
WOULD HAVE BEEN IN SO THERE WASN'T A LOSS. BUT BENEFIT OF THE BARGAIN DAMAGES PUT YOU
IN AGAIN THE POSITION YOU WOULD HAVE BEEN IN HAD THE REPRESENTATION BEEN TRUE. THEY
DON'T ASK FOR A COMPARISON BETWEEN WHAT YOU GOT AND WHAT YOU PAID. THEY ASK WHAT WERE YOU
PROMISED AND WHAT DID YOU GET. SO IN THE COX CASE, YOU HAD, AGAIN, A DIFFERENT
VIOLATION. IT'S NOT SIMILAR IN THAT SENSE. BUT THERE THE DEFENDANT PROMISED TO RE-PAIR
THE PLAINTIFF'S KITCHEN AND THEY FAILED TO DO SO ADEQUATELY. BUT IMPORTANTLY, THE PLAINTIFF
NEVER PAID ANYTHING FOR THE KITCHEN RE-PAIR. CONTRACT PRICE WAS SOMETHING LIKE $8,000.
THEY NEVER PAID FOR THE RE-PAIRS. THE RE-PAIRS WERE POORLY DONE. AT THE
END OF THE DAY, THE COURT SAID THAT THE PLAINTIFF DIDN'T HAVE TO PAY ANYTHING. THEY HADN'T
PAID. THEY DIDN'T NEED TO PAY ANYTHING. IN ADDITION TO THAT, THEY RECEIVED THE MONEY
THEY WOULD NEED TO RE-PAIR THE KITCHEN. SO THE POINT OF THE DAMAGES AWARD WAS TO PUT
THE PLAINTIFF IN THE POSITION THEY WOULD HAVE BEEN IN HAD THIS CFA VIOLATION NOT OCCURRED.
WHICH MEANS THEY NEEDED THE MONEY TO RE-PAIR THE KITCHEN. SO I JUST SAY THAT
BECAUSE IF IT WERE THE CASE THAT THE PLAINTIFF COULDN'T END UP WITH GREATER MONEY THAN
WHAT THEIR OUTPUT WAS, COX COULD HAVE COME OUT DIFFERENTLY. BUT THEY PAID OUT NOTHING.
JUSTICE PATTERSON: RESPECTFULLY, COX IS VERY DIFFERENT. IN COX THE KITCHEN
WAS UN-USABLE WHEN THE DEFENDANTS WERE THROUGH WITH IT. THEY HAD TO START FROM BEYOND
WELL BEFORE SCRATCH. THEY HAD TO RE-PAIR A DEFECTIVE JOB THAT WAS DONE THAT COST
ADDITIONAL OUT-OF-POCKET MONEY. I THINK THE ONLY ANALOGY TO THAT WOULD BE SOMEBODY COMING
IN SAYING THIS SWEATSHIRT WAS SO DRIVING ME INSANE THAT I BOUGHT THIS AND IT REALLY WAS
NOT WORTH $60. THAT I'VE BEEN SUFFERING PSYCHIATRIC DAMAGES AND I HAD TO HAVE
TREATMENT. THAT'S REALLY THE ONLY ANALOGY. AND I THINK COX IS A STRETCH RESPECTFULLY.
VIVIAN M. HANLEY: JUSTICE PATTERSON, IF YOU LOOK AT THE DAMAGES IN COX,
I ACTUALLY THINK THAT DOESN'T PLAY OUT. BECAUSE THE CONTRACT PRICE WAS ABOUT 8,000. AND
THE COURT ACTUALLY DETERMINED THAT SOME SMALL AMOUNT OF MONEY WAS OWED TO SEARS, WAS THE
PERSON, THE COMPANY. SOME SMALL AMOUNT OF MONEY WAS ACTUALLY OWED TO SEARS FOR THE VALUE
OF THE RE-PAIRS THAT HAD BEEN DONE. AND THEN THEY ADDITIONALLY AWARDED THE PLAINTIFF
THE MONEY IT WOULD NEED TO DO THE KITCHEN RE-PAIRS. I THINK IT CONFUSING THERE BECAUSE
THE WORD RE-PAIRS IS BEING USED. BUT BEFORE ANY OF THIS HAPPENED THE PLAINTIFF WAS TRYING
TO RE-PAIR THE KITCHEN. SEARS DID ALL THIS WORK THAT WAS BASICALLY USELESS.
JUSTICE PATTERSON: A LITTLE WORSE THAN USELESS AS DESCRIBED IN THE OPINION. VIVIAN
M. HANLEY: AGAIN, THAT'S NOT -- SORRY. WHAT THE COURT DETERMINED IS ACTUALLY IT HAD
A LITTLE BIT OF VALUE. IT HAD A LITTLE BIT OF VALUE FOR THE PLAINTIFF. THEY SAID $358
WAS ACTUALLY OWED TO SEARS FOR THE VALUE OF THE RE-PAIRS. NONETHELESS, THEY STILL AWARD
ED ABOUT $6,000 TO THE PLAINTIFF SO THAT THE KITCHEN COULD BE REPAIRED. AGAIN, THE
PLAINTIFF NEVER PAID OUT A PENNY THERE. CHIEF JUSTICE RABNER: IN THE INTEREST
OF TIME, SINCE WE'RE BEYOND THE FIVE MINUTES, DO YOU WANT TO TELL US WHAT YOUR CORE PRINCIPLE
IN COX IS, PLEASE. VIVIAN M. HANLEY: SURE THERE'S NO WINDFALL PROBLEM HERE.
AND BENEFIT OF THE BARGAIN DAMAGES ARE NOT JUST CONCERNED WITH WHETHER WHAT YOU PAID IS
WORTH WHAT YOU GOT BUT WHETHER HOW TO PUT YOU IN A POSITION YOU WOULD HAVE BEEN IN HAD
THERE BEEN NO VIOLATION. SO HAD THE MISREPRESENTATIONS BEEN TRUE HERE. WAINER
WAINER ISN'T THERE SOME INCONSISTENCY. IT'S NOT ACTUALLY AN IN-TANGIBLE QUALITY, THERE'S
AN EXACT WAY TO CALCULATE IT. THE 60 MINUS 24 VALUATION WHICH I THINK IS WHAT YOU'RE
ARGUING IN TERMS OF BENEFIT OF THE BARGAIN. THAT WOULD MAKE SENSE TO ME IF THE PERSON
PAID 60 AND IT TURNED OUT IT WAS ONLY WORTH 24. THEN 60 MINUS 24 IS THE DIFFERENCE.
HERE THOUGH THEY ACTUALLY THEY PAID 24 AND IT WAS WORTH 24. YOU'RE ALLEGING
IT WAS SOMETHING IN-TANGIBLE. TO THEM IT WAS WORTH SOMETHING IN-TANGIBLE THAT THEY WERE
GETTING A BARGAIN. BUT YOU'RE ALSO SAYING THAT THE WAY TO CALCULATE THAT IN-TANGIBLE
VALUE IS 60 MINUS 24 EVEN THOUGH THEY PAID 24 AND THEY AGREED THEY GOT SOMETHING WORTH
24. HOW DO YOU RECONCILE THAT? VIVIAN M. HANLEY: SURE. I THINK YOU'RE
SPEAKING IN PART ABOUT THE OUT-OF-POCKET LOSS THEORY, WHICH DOES ASK FOR A COMPARISON
BETWEEN WHAT YOU PAID AND WHAT YOU GOT. BUT WE'RE ADVANCING A BENEFIT OF THE BARGAIN
THEORY WHICH DOESN'T COMPARE WHAT YOU PAID WITH WHAT YOU GOT. IT COMPARES THE VALUE YOU WERE
PROMISED WITH THE VALUE YOU RECEIVED. SO OUR POSITION IS THE VALUE YOU WERE
PROMISED, YOU WERE PROMISED A $60 SWEATSHIRT. YOU GOT A $24 SWEATSHIRT. SO THAT'S THE
DIFFERENCE. JUSTICE PATTERSON: ISN'T THE BENEFIT OF THE BARGAIN SUPPOSED
TO PUT THE PERSON BACK IN THE POSITION AS YOU WERE JUST EXPLAINING WHERE THEY WOULD HAVE
BEEN PUT BUT FOR STREET MISREPRESENTATION THAT'S BEING ALLEGED HERE? VIVIAN M.
HANLEY: THAT'S RIGHT. JUSTICE PATTERSON: WOULDN'T THEY HAVE NOT EVEN
WALKED INTO THAT STORE? AND CERTAINLY NOT BOUGHT THE SWEATSHIRT. THE NOW FAMOUS SWEATSHIRT.
SO WHERE THEY WOULD BE BUT FOR THIS ALLEGED MISREPRESENTATION IS, THEY JUST KEPT WALK
ING AND THEY DIDN'T BUY THIS SWEATSHIRT. THEY DIDN'T HAVE A SWEATSHIRT AND THEY DIDN'T
SPEND THE $20 THAT THEY SPENT, WHATEVER IT WAS, TO GET THE SWEATSHIRT. WHY ISN'T THAT
THE BENEFIT OF THE DAR BEGAN? VIVIAN M. HANLEY: I THINK THE BENEFIT OF
THE BARGAIN IN FRAUD CASES IS PUT THE PLAINTIFF IN THE POSITION THEY WOULD HAVE BEEN IN
HAD THE MISREPRESENTATION BEEN TRUE, NOT HAD THE MISREPRESENTATION NOT HAPPENED. SO IF
YOU WERE PROMISED A SWEATSHIRT THAT SPARC IN FACT WOULD HAVE REGULARLY SOLD ON THE MARKET
FOR $60, THEN IT'S TRYING TO PUT YOU IN THE POSITION THAT YOU WOULD HAVE BEEN IN IF THAT
FACT WERE TRUE. JUSTICE PATTERSON: BUT IT'S MORE THAN THAT BECAUSE IT'S
NOT SELLING FOR $60. IT'S SELLING FOR $24 OR WHATEVER IT MAY BE. SO THE POSITION THAT
YOU WOULD HAVE BEEN IN IF IT HAD REALLY BEEN A $60 PRIOR SALE, PRIOR PRICE THAT WAS ACTUALLY
ENFORCED, DEPENDS ON ALL KINDS OF SUBJECTIVE FACTORS THAT ARE GOING ON IN THE MIND OF THE
CONSUMER. I THINK YOU'RE MAKING IT A MEASURABLE DAMAGE WHEN IN FACT IT'S A REALLY DIFFICULT
DAMAGE TO MEASURE. VIVIAN M. HANLEY: SO I WOULD INVOKE THE FIRST
PRESUMPTION, BUT SIMPLY FOR THE FACT THAT THE COURT THERE RE-MARKED THAT BOTH BECAUSE IT
MADE SENSE AS A MATTER OF ECONOMICS AND BECAUSE THERE ARE GOOD PUBLIC POLICY REASONS FOR
PRESUMING THAT THE REGULAR PRICE ON A STICKER TAG REPRESENTS THE FAIR MARKET VALUE OF THE
ITEM. SO SPARC ESSENTIALLY REPRESENTED THAT THE FAIR MARKET VALUE WAS $60.
JUSTICE PATTERSON: BUT FIRST I THINK YOU'D CONCEDE COMES OUT OF THE UCC's REMEDY FOR
DEFECTIVE PRODUCTS. VIVIAN M. HANLEY: SO THE CFA VIOLATION IN FURST WAS
DIFFERENT. THE CFA VIOLATION IN FURST WAS A FAILURE TO DELIVER CONFORMING GOODS. AND
THERE IT WAS PURELY ABOUT DAMAGES. THE CFA VIOLATION -- THERE WAS ALREADY SUMMARY
JUDGMENT ON THAT ISSUE. SO WE ARE IN A VERY DIFFERENT PROCEDURAL POSTURE.
BUT FURST IS CLEAR THAT -- AND THIS IS AT 17 -- 182 N.J. 17. SALES PROMISED THE REGULAR
VALUE OF A PRODUCT AT A REDUCED PRICE. WHEN HONEST AND LEGITIMATE, THE REGULAR PRICE
MUST BEAR SOME RELATIONSHIP TO WHAT THE RETAILER CONSIDERED TO BE THE MARKET VALUE OF THE
MERCHANDISE IN THE REG COURSE OF BUSINESS. WE WOULD ARGUE THAT SORT OF REASONING IS
DIRECTLY ON POINT HERE. BUT AGAIN WE DO ACKNOWLEDGE THAT FURST WAS ABOUT DAMAGES AND
HERE WE'RE TALKING ABOUT ASCERTAINABLE LOSS, BHOUFR THIS COURT HAS PREVIOUSLY ACKNOWLEDGED
THAT IF YOU COULD GET DAMAGES, THERE WOULD BE AN ASCERTAINABLE LOSS. BUT WE ARE AT A
DIFFERENT STAGE OF THE LITIGATION HERE. JUSTICE PATTERSON: AND A DEFECTIVE
PRODUCT VERSUS A PRODUCT WITH NO DEFECT. YOU WOULD CONCEDE THAT'S A VERY MATERIAL FACTOR
HERE, WOULDN'T YOU? VIVIAN M. HANLEY: I DON'T THINK THAT IS A DIFFERENCE
THAT GOES TO ASCERTAINABLE LOSS. THAT IS A DIFFERENCE THAT GOES TO WHAT CFA VIOLATION
WAS AT ISSUE. HERE THE CFA VIOLATION IS A VIOLATION OF THE FICTITIOUS FORMER PRICING
REGULATIONS, 1345 A -- 9.6A. WHEREAS THERE IT WAS JUST A DIFFERENT REGULATION AND THAT
REGULATION REQUIRED PROVIDING CONFORMING GOODS WHEN THEY WERE ORIGINALLY NOT PROVIDED.
BUT FURST CLEARLY ARTICULATES THAT A BENEFIT OF THE BARGAIN CONCEPTION OF LOSS IS COULD GO
THIEZ SABL UNDER THE CFA AND AGAIN THAT JUST ASKS, PUT THEM -- IN FURST THE CFA VIOLATION
WASN'T A MISREPRESENTATION. IT WAS JUST A FAILURE TO DELIVER THE CONFORMING GOODS. SO
IT WAS A LITTLE BIT DIFFERENT. BUT HERE IT'S PUT THE PLAINTIFF IN THE POSITION THEY
WOULD HAVE BEEN IN HAD THE MISREPRESENTATION IN VIOLATION OF THE FICTITIOUS PRICING
REGULATIONS BEEN TRUE. CHIEF JUSTICE RABNER: MS. HANLEY I'M SORRY TO STOP
YOUR. CHIEF JUSTICE RABNER: MR. PLACITELLA, PLEASE GO AHEAD.
JARED M. PLACITELLA: THANK YOU, YOUR HONOR AND THANK YOU FOR GIVING N J A G AN OPPORTUNITY
HERE TO APPEAR TODAY AS A FRIEND OF THE COURT. I KNOW A LOT HAS BEEN SAID TODAY BUT I
WANT TO TRAES WHY THERE IS AN ASCERTAINABLE LOSS HERE AND WHY THE PLAINTIFF SHOULD BE
ENTITLED TO SEEK IN JUNT I HAVE RELIEF. NEITHER 20 YEARS AGO THIS COURT IN
FURST ACKNOWLEDGED THAT ONE OF THE CENTRAL TENETS OF MARKET PSYCHOLOGY IS THAT CONSUMERS
DO NOT WANT TO PAY FULL PRICE AND ARE ALWAYS IN SEARCH OF THE BEST DEAL. THAT'S NOT
SOMETHING IN TANGIBLE, THAT IS A SCIENTIFIC PRINCIPLE. THAT MERCHANTS DRAW IN CONSUMERS
BY HOLDING SALES EVENTS TO PROMISE A REGULAR VALUE OF A PRODUCT AT A REDUCED PRICE.
CONSUMERS BELIEVE THEY RECEIVE FWRATER VALUE WHEN THEY ARE COMPARED WITH A REFERENCE PRICE
VERSUS SALE PRICE, AS SAID BY THE COURT IN FURST, THE CONSUMER WOULD SURELY NOT THINK
HE WAS GETTING A BARGAIN IF THE PRODUCT HE PURCHASED IS WORTH NO MORE THAN THE PRICE HE
PAID SO WHEN A MERCHANT MISREPRESENTS THAT HIS PRICE HAS A PREMIUM VALUE, THE CONSUMER
IS NOT ONLY TRICKED INTO BUYING A PRODUCT THEY OTHERWISE WOULD NOT HAVE BUT THEY ARE ALSO
FROOIFD OF THE ESSENTIAL BENEFIT OF THE BARGAIN. THIS COURT'S TEACHINGS THAT
THE CONSUMER FRAUD ACT IS TO BE APPLIED BROADLY AN CONSTRUED LIBERALLY IN FAVOR OF CONSUMERS
PERTAINS TO NOT ONLY WHAT IS A VEELGS BUT ALSO TO HOW TO APPLY THE STATUTES ASCERTAINABLE
LOSS REQUIREMENT. I WANT TO HIT ON THE BENEFIT OF THE BARGAIN THEORY BECAUSE THERE SEEMS
TO BE MUCH CONFUSION, NOT JUST BECAUSE BAS THERE IS NO VISIBLE DEFECT DOESN'T MEAN IT
CANNOT BE AN ASCERTAINABLE LOSS. FIRST A THAT'S AN ESSENTIAL TEN NET OF THE
CONSUMER FRAUD ACT THAT IS EVEN FOUND IN THE MODEL JURY CHARGE, 4.43. SECOND
THE CONSUMER FRAUD ACT CANNOT BE INTERPRETED. JUSTICE PATTERSON: I DON'T THINK
THAT'S BEING ASERD IT IS SIMPLY THAT DISTINGUISHES THE BENEFIT OF THE PARG THEORY
COPPING COMING OUT OF FURST WAS ABOUT THE DEFECTIVE NONCONFORMING NATURE OF THE
PRODUCT. THAT IS THE POINT THAT AT LEAST I WAS TRYING TO MAKE. JARED M.
PLACITELLA: SECOND, THE CONSUMER FRAUD ACT CAN'T BE INTERPRETED TO PERMIT A MERCHANT TO
PROPHET FROM ITS OWN DECEPTION, BUT UNDER THE DEFENDANT'S OWN INTERPRETATION, IT'S CONDUCT
WOULD CONTINUE UNABATED AN THE PLAINTIFFS WOULD HAVE NO REMEDIES. I WANT TO
DISCUSS TWO SPECIFIC NEW JERSEY CASES THAT TOUCH ON THE PRINCIPLE OF CONSUMER FRAUD ACT
VIOLATION OCCURRING EVEN WHEN THERE IS NOTHING SUBSTANTIVELY WRONG WITH THE PRODUCT.
THE FIRST IS MILLER VERSUS AMERICAN PUBLISHING WE REFERENCE THIS IN OUR BRIEF. IN THIEDEMANN,
THIS COURT SAID THAT MILLER IS SUFFICIENT PROOF AS AN ASCERTAINABLE LAW IN RESPECT TO
A LOSS BARGAIN. SO, IN MILLER, THE PLAINTIFF'S ALLEGE THEY WERE DEFRAUDED
INTO BUYING A MAGAZINE SUBSCRIPTION AS IT WAS SUGGESTED THEY MAY HAVE AN ESOTERIC BETTER
CHANCE OF WINNING THE DEFENDANT'S SWEEPSTAKES. YOU DIDN'T HAVE TO BUY A MAGAZINE
SUBSCRIPTION TO ENTER THE SWEEPSTAKES BUT IF YOU DID THE REPRESENTATION WAS YOU WOULD HAVE
A BETTER CHANCE; THAT REPRESENTATION WA NOT TRUE BUT THIS COURT STILL FOUND THIS WAS AN
ASCERTAINABLE LOSS. THIS COURT EXPLAINED THAT WHEN YOU SET OUT TO BUY TWO
THINGS AND YOU DON'T ON RECEIVE TWO THINGS THAT THAT IS A LOSS OF THE BENEFIT OF THE BARGAIN.
IN MILLER, IT WAS THAT THE PLAINTIFF SOUGHT TO BUY THE MAGAZINE SUBSCRIPTION
AND THIS ESOTERIC LIKELIHOOD, ENHANCED LIKELIHOOD OF WINNING A SWEEPSTAKES AN THERE IT
WAS A CLEAR SAMPLE OF ASCERTAINABLE LOSS. HERE, THIS CASE IS SIMILAR. THE
PLAINTIFF WENT OUT TO BUY A SWEATSHIRT AND A BARGAIN. ALL THEY GOT WAS THE SWEATSHIRT.
JUSTICE PIERRE-LOUIS: BUT IN MILLER, THE SUBSCRIPTION WAS DEEMED LESS
VALUABLE BECAUSE THERE WAS NO INCREASED CHANCE OF WENTING THE SWEEPSTAKES. HERE, THERE IS
NO ALLEGATION THAT THE SWEATSHIRT, FWEN, WAS LESS VALUABLE THAN WHAT THE PLAINTIFFS PAID
FOR THE SWEATSHIRT. PLAINTIFFS PAID STLAR 24 AND THEY AGREE THAT IT'S A $24 SWEATSHIRT
AND THERE IS NO ALLEGATION THAT THE FIBERS WERE DIFFERENT OR LESS VALUABLE THAN THEY EVEN
TENDED OR THE, YOU KNOW, THE ZIPPERS OR THE POCKETS OR WHATEVER, WERE OF LESS VALUE.
SO ITS NOT SAL THE EXACTLY THE SAME. JARED M. PLACITELLA: I DISAGREE.
I DIDN'T SEE THAT IN THE READING OF MILLER, IN MILLER YOU HAD A MAGAZINE SUBSCRIPTION,
THE MAGAZINE IS NOT ANY LESS VALUABLE, SOMEBODY COULD ENTER THE SWEEPSTAKES AND HAVE
THE MAGAZINE OR JUST ENTER THE SWEEPSTAKES, THE FRAUD AND INDUCEMENT TO GET YOU TO BUY
THE MAGAZINE WAS HAY, IF YOU BUY THE MAGAZINE YOU HAVE A HIGHER CHANCE TO WIN THE SWEEPSTAKES,
THAT'S WHAT DREW THE PLAINTIFF IN MILLER TO BUY THE MAGAZINE AN THIEDEMANN APPROVED OF
THAT DECISION AN THAT COURT FOUND THAT THERE WAS STILL AN ASCERTAINABLE LOSS. THE
OTHER CASE I WANTED TO ADDRESS WAS ROM MAN KNOW. RAM MAN KNOW GAL, THE APPELLATE DIVISION,
THERE THE PLAINTIFF ALLEGED SHE WAS DEFRAUDED WHEN THE CAR DEALER MISREPRESENTED THE VALUE
OF THE VEHICLE SHE HAD PURCHASED BECAUSE THE ODOMETER HAD BEEN ROLLED BACK. NOTABLY THERE
WAS NOTHING WRONG WITH THE CAR. IT DIDN'T NEED ANY REPAIR OR ANYTHING ELSE, THE ONLY REASON
THE PLAINTIFF DISCOVERED IT WAS BECAUSE A CHECK ENGINE LIGHT WENT ON TOOK IT TO THE SHOP
AN THEY FOUND THAT THE ODOMETER HAD BEEN ROLLED BACK. JUSTICE PATTERSON: THE
ANALOGY TO THAT IN THIS SITUATION WOULD BE CLOTHING THAT IS ACTUALLY USED. IT'S
PRESENTED AS A NEW CAR. IT'S NOT. IT'S NOT A NEW CAR. IT'S A CAR THAT HAS GOT MILES
ON IT IN ROM MAN KNOW. SO THE KNOWLEDGE OF THAT WOULD BE THIS IS NOT A NEW PIECE OF BLOELT,
CLOTHING BUT SOMETHING WE STUCK A PRICE TAG THE ON THAT IS TOTALLY USED. JARED
M. PLACITELLA: THE CAR IN ROM WAS STILL USED THEY JUST REPRESENTED THAT IT HAD LESS MILES
ON IT THAN IT ALREADY DID. JUSTICE PATTERSON: BUT THE ACTUAL INHERENT,
INHERENT CAR WAS NOT WHAT WAS PRESENTEDED IN TERMS OF ITS VALUE. JARED M.
PLACITELLA: WELL THE CAR THAT WAS PRESENTED WAS THE CAR THAT PLAINTIFF BOUGHT FOR THE
PRICE THAT PLAINTIFF BOUGHT IT. JUSTICE SOLOMON: LOOK AT THE BLUE BOOK
THE VALUE OF A CAR WITH MORE MILES IS WORTHLESS THAN THE VALUE OF A CAR WITH LESS MILES
SO THERE IS AN ESTABLISHED VALUE THAT IS LESS THAN WHAT WAS PAID BASED UPON THE
REPRESENTATION. JARED M. PLACITELLA: YOU ESTABLISH VAL YOU OO HERE BASED
ON THE REPRESENTATION, IS THE PRICE TAG THAT THE DEFENDANT SAYS IS THIS IS WHAT --
JUSTICE SOLOMON: THERE IS NO BLUE BOOK FOR SWEATSHIRTS, A $24 SWEATSHIRT THAT IS
CONSTRUCTED THE WAY A $24 SWEATSHIRT IS WORTH IS WORTH $24; THAT'S IT. A CAR THAT HAS
A HUNDRED THOUSAND MILES IS WORTHLESS THAN A CAR THAT HAS 50 THOUSAND MILES, THAT'S IT.
JARED M. PLACITELLA: MRAS THE PRICE HERE THAT THE DEFENDANTS REPRESENT THAT
SETS THE MARG SO IF THE PLAINTIFF, ROBEY OR REYNOLDS WANTED TO SEND IT ON A SECOND MARKET
LIKE POSH MARK THEY WOULD SAY THIS SWEATSHIRT AS BY THE PEOPLE WHO MAKE THE MARKET IS
WORTH STLAR 100 OR $60 AND THEREFORE I COULD SELL IT UP TO $65. JUSTICE
PATTERSON: IS THAT THE VALUE THAT NEEDS TO BE LOOKED FOR IS THE VALUE OF A SWEATSHIRT
ON A SECONDARY MARKET. JARED M. PLACITELLA: NO, I AM USING THE EXAMPLE OF
HOW YOU SET THE MARKET. THE DEFENDANTS HERE SET THE MARKET SFLFRNLTS I DON'T KNOW THAT
THE EXAMPLE HELPS. IMAGINE IF IT WAS ADVERTISED AS A SWEATSHIRT THAT HAD BEEN USED ONCE
WHEN IN FACT IT HAD BEEN USED 500 TIMES, WOULD YOU AGREE THERE IS A DIFFERENCE?
JARED M. PLACITELLA: I DO, YOUR HONOR. I DO THINK THAT WOULD MAKE THIS CASE MORE LIKE
ROM AND THIS I C BENEFIT OF THE BARGAIN THEORY HERE THERE IS A CLEAR CASE OF A PURCHASE
PRICE OUT OF POCKET SO MY FRIEND REFERENCED EARLIER THE CLASHG CASE OUT OF THE OREGON
SUPREME COURT THAT'S CASE CITED, AND THAT CASE WAS ISSUED A FEW DAYS AFTER THIS COURT
GRANTED CERTIFICATION IN THIS CASE, RIGHT? IT RAISES THE SAME ISSUE. ALL
COURTS HAVE LOOKED TO OREGON'S CONSUMER FRAUD ACT, THERE U P T A -- I AM SORRY, U P T
A STATUTE IN OTHER CASES BECAUSE OUR CONSUMER FRAUD STATUTES ARE SIMILAR. BOTH REQUIRE
AN ASCERTAINABLE LOSS IN ORDER FOR A PLAINTIFF TO SATISFY THEIR CLAIM AND TO HAVE STANDING
AN BOTH DEFINE ASCERTAINABLE LOSS IN THE SAME WAY. AND IN OREGON, THAT COURT EXPLAINED
IN THESE SAME FACTS THAT THE CONSUMER SUSTAINS AN ASCERTAINABLE ECONOMIC LOSS OF A PURCHASE
PRICE WHEN SHE HAS BEEN INDUCED BY ANOTHER PERSON'S UNLAWFUL ACTIVITY TO PAY MONEY FOR
SOMETHING THAT THE FIRST PERSON WOULD NOT HAVE OTHERWISE BOUGHT. AND THAT TRACKS WITH
THIS COURT'S PRECEDENT. SO FOR EXAMPLE IN DUG, 231 N J 60, THIS COURT SAID INDIVIDUAL
PLAINTIFFS MAY BE ABLE TO ESTABLISH ASCERTAINABLE LOSS AN CAUSATION BY SHOWING THEY WOULD
NOT HAVE PURCHASE PURCHASED THE BEVERAGES HAD THEY BEEN INFORMED OF THEIR COST.
IN COX 138 N J 821, THIS COURT REFERENCES THAT THE ASCERTAINABLE LOSSES IN THIS CASE
WAS NOT THE PRICE PAID OUT OF POCKET BECAUSE THE FRAUD DIDN'T HAPPEN IN THE CONTRACT;
THAT'S WHAT HAPPENED HERE. THE ALLEGED FRAUD HAPPENS IN THE INDUCEMENT OF THE REDUCED
SALE PRICE THAT CAUSED THE PLAINTIFF TO BUY THE PRODUCT. AND IN CLASHG, THE OREGON SUPREME
COURT FOUND THAT PURCHASE PRICE DAMAGES WERE AVAILABLE EVEN IN THE ABSENCE OF A SHOWING
THAT THE SELLER MISREPRESENTED SOME CHARACTERISTIC OR QUALITY OF THE PRODUCT SOLD
SSHG THAT'S THE SAME AS IN DUG. THE PLAINTIFF'S DIDN'T ALLEGE THERE WAS ANYTHING WRONG
WITH THE SODA. IT'S THE SAME THING AS IN MILLER, THE PLAINTIFF DIDN'T ALLEGE THERE WAS
ANYTHING WRONG WITH THE MAGAZINE. JUSTICE WAINER APTER: IN CLASHG, ALSO,
WAS THERE NO ATTEMPT BY THE PLAINTIFF TO RETURN THE PRODUCT. JARED M.
PLACITELLA: CORRECT. AND AS MY FRIEND SAID UNDER BOSLAND, THERE IS NO PLAIN TEXT REQUIREMENT
UNDER THE CONSUMER FRAUD ACT THAT THE PLAINTIFF NEEDS TO DO SO; THAT'S A QUESTION FOR
THE LEGISLATURE THAT IT HAS NOT ADDRESSED. BROEFLY IF THERE IS NOTHING ON
THE ASCERTAIN LOSS BECAUSE I KNOW WE'VE BEEN GOING LONG ON TIME I WANT TO TRAES THE IN
JUNT I HAVE RELEASE POINT? THANK YOU, YOUR HONOR. THE CONSUMER
FRAUD ACT MANDATES THAT ANY ACTION THIS COURT SHALL, IN ADDITION TO OTHER EQUITABLE --
APPROPRIATE LEGAL OR EQUITABLE RELIEF AWARD DAMAGES. AND WE KNOW FROM DISCUSSION TODAY
THAT IN ORDER FOR A PRIVATE PLAINTIFF TO HAVE STANDING IN WEINBERG BERG AN LAWFUL, REFERRED
TO THE ASCERTAINABLE LOSS WHEN IT COMES TO IN JUNT I HAVE RELEASE, IN ORDER TO PER SUE
THEIR OWN STANDING FOR THEIR OWN CLASS OF ACTION THEY MUST PRESENT SUFFICIENT EVIDENCE
OF AN ASCERTAINABLE LOSS. AND THE CONSUMER FRAUD ACT AS WAS REFERRED TO WAS
AMENDED IN 1971 AFTER 11 YEARS AFTER IT WAS ALREADY PASSED ON THE BOOKS. IF WE LOOK AT
THE LEGISLATIVE HISTORY, IT'S SPARSE, BUT IF WE LOOK AT THE GOVERNOR'S STATEMENT, ONE OF THE
SPECIFIC REASONS WHY IT WAS AMENDED WAS TO PROVIDE PLAINTIFFS THE POWER OF A PRIVATE
ATTORNEY GENERAL TO ENFORCE AN SUPPLEMENT THE CONSUMER FRAUD ACT TO HELP THE ATTORNEY
GENERAL BECAUSE THERE WAS TOO MUCH FRAUD FOR THE ATTORNEY GENERAL TO TAKE ON ON ITS OWN.
SPARC IN ITS PRESENTATION SAID THAT INJUNCTIVE RELIEF IS NOT APPROPRIATE HERE
BECAUSE THERE IS NO THREAT OF FUTURE HARM AND THERE IS NO PROOF THAT DAMAGES ARE
INADEQUATE. I WANT TO ADDRESS THOSE TWO POENTS. FIRST, TO THE THREAT OF FUTURE
HARM. HERE, THE DEFENDANT IS SPARC GROUP, LLC THERE IS NO BRICK AN MORTAR
STORE CALLED SPARC GROUP, SPARC IS A COMPANY THAT OWNS BRANDS. SPARC WAS THE PARENT COMPANY
IN THE CLASHG CASE AN THAT INVOLVED ED DEE BOW WER. SO THESE SAME PLAINTIFFS MAY BE
DECEIVED BY THE SAME CONDUCT BY THE SAME DEFENDANT UN ONE OF ITS DIFFERENT BRANDS EVEN
IF IT IS NOT AIR ROW POS STALE. MORE IMPORTANTLY IT DOES NOT EVEN MATTER
WHETHER THE MERCHANT'S CONDUCT MISLED THE SPECIFIC PLAINTIFF. AS THIS COURT HAS SAID REPEATED
LY, IT IS THE CAPACITY TO MISLEAD IS WHAT IS IMPORTANT IN ITSELF THAT MUST BE REMEDIED
THROUGH THE CONSUMER FRAUD ACT. FINALLY, THE POWER PROVIDED AS PRIVATE
ATTORNEY GENERAL GIVES THE CONSUMER THE RIGHT TO ENJOY UNLAWFUL CONDUCT ON BEHALF OF ALL
OF THE CONSUMERS. THIS IS ADDRESSED SPECIFICALLY IN THE KRAS CITED BEFORE
THE APPELLATE DIVISION WHERE THAT CASE EXPLAINED ONCE THE CLASS REPRESENTATIVE SHOWS TO HAVE
AN ASCERTAINABLE LOSS THAT MAY HAVE STANDING TO PURSUE IN JUNT I HAVE RELIEF ON BEHALF
OF OTHER CONSUMERS, ON BEHALF OF THE CLASS. JUSTICE PATTERSON: JUST OUT
OF CURIOSITY BECAUSE WITH YOUR COLLEAGUE AT THE D'AGOSTINO WE WERE TALKING ABOUT THIS,
IS THIS CONCEPT OF STANDING WITHIN THE IN JUNT I HAVE RELIEF PORTION OF THE CONSUMER FRAUD
ACT. JARED M. PLACITELLA: YES, YOUR HONOR, ASCERTAINABLE LOSS IS BOTH AN
ELEMENT. JUSTICE PATTERSON: BUT AS TO THE DAMAGES SECTION IT'S A SUBSTANTIVE
ELEMENT OF THE CAUSE OF ACTION, CORRECT? JARED M. PLACITELLA: CORRECT.
JUSTICE PATTERSON: YOU DON'T HEAR OF STANDING ISSUES, ASCERTAINABLE LOSS
BEING A STANDING ISSUE WITH RESPECT TO WHETHER THERE IS A CLAIM FOR DAMAGES UNDER THE
CONSUMER FRAUD ACT. JARED M. PLACITELLA: THAT'S NOT IN OUR CASE LAW.
WITH THE WORD ASCERTAINABLE LOSS COMING UP AS A STANDING REQUIREMENT IS THE STANDING TO
ASSERT AN ASCERTAINABLE RELIEF TO GET AN IN JUNTHS. JUSTICE PATTERSON: SO
IT'S A NECESSARY ELEMENT OF THE SUBSTANTIATE U I HAVE DEFENSE IN A CAUSE OF ACTION FOR
DAMAGES. JUSTICE WAINER APTER: SO YOU'RE AGREEING THAT A. JARED M.
PLACITELLA: YOU HAVE TO PROVE THAT -- WHAT THE CASE LAW SAYS AND I THINK IT IS IMPORTANT
IS THAT YOU NEED TO ALLEGE A BONA FIDE CLAIM AFTER ASCERTAINABLE LOSS IN ORDER TO HAVE
STANDING TO PURSUE IN JUNT I HAVE RELIEF. YOU DON'T HAVE TO PROOF THAT ASCERTAINABLE
LOSS AT TRIAL. L YOU JUST NEED TO HAVE ENOUGH FACTS TO OVERCOME SUMMARY JUDGMENT. AND
THAT MAKES SENSE FOR A FEW REASONS. ONE, WHETHER ASCERTAINABLE RELIEF IS
AVAILABLE IS A QUESTION TO BE DECIDED BY THE COURT AND NOT THE JURY AND, TWO, IS IF YOU
PROVE THE CONSUMER FRAUD ACT VIOLATION ENOUGH TO OVERCOME SUMMARY JUDGMENT AN YOU HAVE
SUFFICIENT STANDING TO BE THERE, THAT YOU HAVE SHOWN ENOUGH PROOF OF AN ASCERTAINABLE
LOSS TO GET TO A JURY, THEN THE POLICY WOULD DICTATE THAT IT WOULD MAKE SENSE TO ENJOIN
THE CONDUCT GOING FORWARD AND NOT HAVE IT BE DEPENDENT ON WHETHER A JURY FINDS AN
ASCERTAINABLE LOSS. NOW, FINALLY, WHY DAMAGES ARE NOT ADEQUATE HERE FOR IN
JUNCTIVE RELIEF TO TRAES THAT POINT SPECIFICALLY. THE CHAMBER OF COMMERCE HAS
SAID ITS CONDUCT IS OKAY AND IS MAINSTREAM. AND IT IS SHOWN IN OUR APPENDIX IN AN ARTICLE
FROM THE WALL STREET JOURNAL AN OTHERS THE MARKET CONDITIONS ACTUALLY INCENTIVIZE THIS
PRACTICE TO CONTINUE. IT SAYS THE RETAILERS WILL CONTINUE TO PROMOTE SUCH MISLEADING
DEALS SINCE ITS RISK OF LOSING MARKET SHARE IS GREATER THAN ANY REPUTATION NATURAL OR
MONETARY DAMAGE THEY MAY INFER FROM RELATED LEGAL CASES SO RIGHT NOW THE MARKET CONDITIONS.
JUSTICE PATTERSON: ARE YOU QUOTING A WALL STREET JOURNAL ARTICLE.
JARED M. PLACITELLA: CORRECT, YOUR HONOR. THE MARKET CONDITIONS SHOW THAT
IF THIS CONDUCT GOES UNABATED THAT IT WILL CONTINUE UNLESS THIS COURT PROVIDES THE
PLAINTIFFS, IF THEY CAN STOP IT IF THEY CAN PROVE THEY HAVE SUFFICIENT STANDING OF
ASCERTAINABLE LOSS TO MOVE FORWARD WITH THEIR CLAIM. JUSTICE PATTERSON: THE
ISSUE WE HAVE BEFORE US IS WHETHER THE CONSUMER FRAUD ACT AN TICK PROVIDE A REMEDY IT'S
NOT FOR US TO DECIDE WHETHER IT'S GOOD OR BAD POLICY. JARED M. PLACITELLA:
THE QUESTION ASKED BY THIS COURT IS WHETHER THE PLAINTIFF SHOULD HAVE THE ABILITY TO SEEK
INJUNCTIVE RELIEF AND WHAT WE'RE SAYING IS BASED ON THESE FACTS THE PLAINTIFF SHOULD BE
ABLE TO, ESPECIALLY AFTER THEY GET PAST THIS PERIOD SFLFRMENTS THANK YOU, MR. PLACITELLA.
JARED M. PLACITELLA: THANK YOU, YOUR HONOR R. THE COURT: MR.
MEUTI, BRIEF REBUTTAL, PLEASE. MICHAEL D. MEUTI: THANK YOU, YOUR HONOR.
JUST A COUPLE OF POINTS IN REBUTTAL. FIRST OF ALL, TO ASSERT AN ASCERTAINABLE
LOSS, THERE MUST BE A LOSS AN HERE WE HAVEN'T HEARD ANYTHING SUGGESTING THAT THERE IS
A LOSS. IN OUR BRIEF FILED ON OCTOBER 25TH, WE OUTLINED THREE DIFFERENT RULES,
ONE WHERE A CONSUMER BUYS A SWEATSHIRT THINKING THAT $60 WAS A FORMER PRICE, ONE WHERE
THE CONSUMER SEES THE $60 AND DISREGARD AND A THIRD WHERE THE CONSUMER CEASE A $24 PRICE
TAG, ALL THREE BUY THE SAME SWEAT SHEET, ALL THREE PAY $24, THERE IS NO OBJECT I DEFENSE
BETWEEN ANY ONE OF THOSE CONSUMERS AN ANY OTHER SO HERE THERE HAS BEEN NO LOSS AN WITH
LOSS THIS CAN BE NO ASCERTAINABLE LOSS. SECOND, PLAINTIFFS COUNSEL ASKED FOR
A REBUTTAL PRESUMPTION THAT THE REFERENCE PRICE WOULD BE THE MARKET VALUE, FOR ALL OF THE
REASONS THAT THE BENCH HAS OUTLINED, FURST DOESN'T PROVIDE THE RULE OF DECISION HERE,
BUT BEYOND THAT, EVEN IF THE COURT WERE TO IMPORT THE REBUTTAL PRESUMPTION, IT DOESN'T
APPLY HERE. PLAINTIFFS HAD PLED THEMSELVES OUT OF IT. THEY ALLEGE THAT THE SWEATSHIRT
NEVER SOLD FOR STLAR 60. IF IT NEVER SOLD FOR $60 IT CANNOT BE THE FAIR MARKET VALUE
AND AS FURST NOTES REPLACEMENT VALUE IS FAIR MARKET VALUE. THIRD, YOU'VE HEARD
SOME RELIANCE ON THE OREGON SUPREME COURT'S DECISION IN CLASHG. THE COURT SHOULD NOT
FOLLOW CLASHG, THAT COURT INTERPRETED OREGON'S STATUTE, TRANSACTION CAUSATION NOT TO REQUIRE
LOSS CAUSATION, THAT READS THE ASCERTAINABLE LOSS ELEMENT OUT OF THE STATUTE.
JUSTICE PATTERSON: CAN YOU EXPLAIN WHAT THAT MEANS, PLEASE. MICHAEL D.
MEUTI: CERTAINLY. THE OREGON SUPREME COURT SAID THERE WAS AN ASCERTAINABLE LOSS BECAUSE
THE PLAINTIFF'S CHOSE TO ENTER INTO A TRANSACTION BECAUSE OF THE VIOLATION. CHOOSING
TO ENTER INTO THE TRANSACTION DOES NOT INDICATE THAT THERE HAS BEEN A LOSS. THEY ARE
SEPARATE QUESTIONS AS THE STOCKBROKER EXAMPLE I GAVE EARLIER OUTLINES. LEAVINGING
IT AS THE OREGON SUPREME COURT DID CON FLATS THE VIOLATION AN THE LOGS AS A CHARL LOTS
CASE OUTLINED IN THE FIST CIRCUIT. ANOTHER REASON NOT TO FOLLOW CLASHG, THAT
WAS AN OUT OF POCKET LOSS CONCLUSION. IN NEW JERSEY, OUT OF POCKET LOSS EXISTS ONLY IF
THE ITEM RECEIVED IS OBJECTIVELY LESS VALUABLE THAN THE AMOUNT PAID AND YOU CAN GET A
FULL REFUND, AS PLAINTIFF'S REQUEST HERE ONLY IF THE PRODUCT IS ESSENTIALLY WORTHLESS;
THAT'S A CASE CITED, A FEDERAL DISTRICT COURT CASE OVER STORE-BOUGHT BREAD, WITHOUT
ALLEGING THAT THE PRODUCT IS ESSENTIAL WORTHLESS THERE IS NO REFUND OF THE PURCHASE PRICE.
JUSTICE PATTERSON: SO YOUR ARGUMENT IS THAT OREGON HAS A DIFFERENT THEORY
OF OUT OF POCKET COST AND P THAT THE OREGON CASE RELIED ON THAT, CLASHG? MICHAEL
D. MEUTI: THAT'S CORRECT, YOUR HONOR. AND THIRD, THE CLASHG CASE FOR IT'S
OUT OF POCKET LOSS CONCLUSION DID NOT CONSIDER THE SET OFF FOR A RETAINED VALUE. THAT IS
REQUIRED HERE. IF THE COURT WERE TO INDULGE IN OUT OF POCKET THEORY HERE, IT WOULD HAVE
TO NOTE OR IT OUGHT TO NOTE THAT IN ORDER FOR A PLAINTIFF TO ALLEGE AN OUT OF POCKET LOSS
THEY MUST TAKE INTO CONSIDERATION AND COURTS APPLYING THAT CLAIM MUST TAKE INTO
CONSIDERATION THE RETAINED VALUE AND THERE MUST BE A SET OFF FOR THAT RETAINED VALUE.
JUSTICE PATTERSON: AS I UNDERSTAND, YOUR ARGUMENT HERE IS SINCE IT IS CONCEDED
THAT THE $24 WAS THE VALUE OF THE SWEATSHIRT, THE SWEATSHIRT HAS BEEN RETAINED THERE IS
NO OUT OF POCKET LOSS. MICHAEL D. MEUTI: SAL, YOUR HONOR EXACTLY, YOUR HONOR,
24 MINUS 24 IS ZERO, ZERO IS NOT GREATER THAN ZERO THEREFORE THERE HAS BEEN NO
ASCERTAINABLE LOSS. ADDITIONALLY WE'VE HEARD A LOT ABOUT POLICY ARGUMENTS,
THIS IS A COURT OF LAW NOT A COURT OF POLICY. EVEN IF THE COURT WERE TO CONSIDER POLICY
ISSUES, THE OUTCOME THAT PLAINTIFFS REQUEST HERE I SUBMIT WOULD BE BAD POLICY AND FOR
THAT I WOULD DIRECT YOU TO THE NATIONAL RETAIL FEDERATION'S AMICUS BRIEF, SPECIFICALLY
PAGES 14 TO TO 15 NOTING THAT FORMAL FEDERAL TRADE COMMISSIONER, ROBERT PIT --
THE COURT: I THINK WE CAN MOVE BEYOND. MICHAEL D. MEUTI: FAIR ENOUGH.
IF I COULD HAVE A MOMENT TO BRIEFLY CONCLUDE YOUR HONOR SFLFRMTHS PLEASE, MUTE
MUTE THE APPELLATE DIVISION'S CASCADING ERRORS IN THIS CASE ALL STEM FROM THE MISTAKEN
CONCLUSION THAT A CONSUMER CAN SUFFER SOME KIND OF HARM WHEN THERE IS NO OBJECTIVE DIFFERENCE
BETWEEN THE ITEM PROMISED AND THE ITEM RECEIVED. THAT TYPE OF TRANSACTION IMPOSES NO
ASCERTAINABLE LOSS. IT THAT CAN SUPPORT A CONSUMER FRAUD ACT CLAIM, NOR DOES IT RENDER
A CONSUMER AGGRIEVED TO SUPPORT A TICK CLAIM. AND THIRD, WITHOUT AN ASCERTAINABLE LOSS
SOME FLET OF FUTURE HARM OR THE LACK OF AN ADEQUATE CAN REMEDY OF LAW THE CONSUMER
CANNOT OBTAIN AN INJUNCTION, FOR EACH OF THOSE REASONS THE COURT SHOULD REVERSE THE
APPELLATE DIVISION IN TOTAL. THANK YOU. THE COURT: THANK YOU,
COUNSEL, THANK YOU TO ALL COUNSEL, WE WILL TAKE THE MATTER UNDER ADVISEMENT.