In 1960, our Legislature enacted the Consumer Fraud Act (now N.J.S.A. 56:8-1 to 227) to address an epidemic of consumer complaints about fraudulent practices by merchants. Furst v. Einstein Moomjy, 182 N.J. 1, 11 (2004). Among those unlawful practices is the advertisement and use of a “fictitious former price” at which an item was never offered or sold. N.J.A.C. 13:45A-9.6(a). The CFA initially only conferred enforcement power on the attorney general. A decade later it was amended to add a powerful private right of action to a consumer who “suffers an ascertainable loss of moneys or property” as the result of an unlawful practice. N.J.A.C. 56:8-19. The private action permits the consumer to recover treble damages, reasonable attorney fees and costs.

The concept of ascertainable loss has defied precise definition. Thiedemann v. Mercedes-Benz USA, 183 N.J. 234, 248 (2005). What is clear is that it must be quantifiable and measurable and not speculative. Id. at 248. Generally, a loss will fall into one of two categories: out of pocket (the delta between the price paid and the actual value of the goods) and benefit of the bargain (the difference between the price paid and the value of the goods).