New Jersey long followed the “new business rule,” adopted by the Court of Errors & Appeals in Weiss v. Revenue Building & Loan Association, 116 N.J.L 208 (E. & A. 1936), which effectively barred claims for lost profits by new businesses because the court found, such claim cannot be proven with reasonable certainty. In Weiss, the Court of Errors & Appeals noted that in new businesses, “the prospective profits are too remote, contingent and speculative to meet the legal standard of reasonable certainty.” Id. at 210, 212.

In the decades since Weiss, courts in other jurisdictions have concluded that, although it is difficult for a new business to meet the standard of reasonable certainty, a per se ban on lost profits damages by a new business is unwarranted. Rather, those courts carefully scrutinize such claims, treating a new business’ inexperience as an important factor in the “reasonable certainty” standard.

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