Merely Reaching Trial On CFA Claim Does Not Guarantee Award of Fees

Surely, you haven’t forgotten our riveting post earlier this year involving the NJ Supreme Court’s consideration of a case concerning attorneys’ fees awardable in CFA claims.  In its decision yesterday in Perez v. Swim-Well Pools, et als., the court held that a trial court’s determination that plaintiff failed to demonstrate a bona fide ascertainable loss claim- whether on motion for summary judgment or on motion for involuntary dismissal at the close of plaintiff’s evidence at trial – barred plaintiff from recovering attorneys’ fees.

A plaintiff can recover attorneys’ fees and costs under the CFA merely by proving conduct unlawful under the Act, even if they ultimately fail to prove an ascertainable loss related to the unlawful conduct.   In Weinberg v. Sprint Corp., 173 N.J. 233 (2002), the Supreme Court clarified that, in order to recover fees and costs, the ascertainable loss claim must be capable of surviving a motion for summary judgment. The court confirmed yesterday that the granting of a motion involuntary dismissal is essentially the same as summary judgment for purposes of the damages provision (N.J.S.A. 56:8-19) of the CFA.

This decision allows for greater tactical flexibility in defending CFA claims.   And, conversely, CFA plaintiffs will have to consider the risk of litigating a claim all the way to trial without recovering fees if they cannot make a prima facie showing of ascertainable loss.

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