New Jersey remains among the minority of states enforcing a rule barring the recovery by a new business of damages for lost profits caused by a tort or a breach of contract. See, MindGames v. Western Publishing, 218 F.3d 652, 655-659 (7th Cir. 2000). The rule differs, however, in New Jersey’s federal courts. The Court of Appeals for the Third Circuit, in 1990, predicted that the New Jersey Supreme Court would no longer apply this new business rule. Twenty-two years later, that prediction remains unproven, bringing to mind Mark Twain’s response to his prematurely published obituary: “The reports of my death are greatly exaggerated.”
The New Jersey courts generally permit litigants to recover lost-profits damages in breach-of-contract and tort actions if the damages are capable of being estimated with a reasonable degree of certainty. “Past experience of an ongoing, successful business provides a reasonable basis for computation of lost profits with a satisfactory degree of definiteness.” V.A.L. Floors v. Westminster Communities, 355 N.J. Super. 416, 426 (App. Div. 2002) (internal quotation and citation omitted).
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