Harold M. Hoffman is an attorney who has found an interesting intersection between the substantive provision of the Consumer Fraud Act, N.J.S.A. 56:8-2, and the provision that creates a private right of action, N.J.S.A. 56:8-19. The first provides that the CFA is violated by a false statement within its scope “regardless of whether any person has in fact been misled, deceived or damaged thereby.” The second confers a private right of action, for treble damages and attorneys fees, on anyone who has suffered an “ascertainable loss of money or property” through a violation of the Act. Section 2, which allowed the attorney general to enjoin violations of the Act without having to prove that any member of the public had been injured, was enacted in 1960. Section 19, which creates the private right of action, was added to the law in 1971. The result is a statute under which a private plaintiff need not plead or prove reliance, as would be the case for common-law fraud, but must plead and prove pecuniary injury.
From this relationship, Hoffman has deduced that if the marketer of a product makes false representations and Hoffman buys the product, he has suffered an ascertainable loss even if he believed the representations to be false, did not use the product, and perhaps never intended to use the product. The purchase price, he contends, is his ascertainable loss. He has made a practice of suing manufacturers of herbal sexual stimulants and other goods sold on the Internet after buying the product and has apparently settled a substantial number of such cases before the class certification stage. See Hoffman v. Assoldontv.com , 404 N.J. Super. 415, 433 (App. Div. 2009).
