Back in January, I wrote about a case before the N.J. Supreme Court called Real v. Radir Wheels. As I discussed the case could have wide ranging impact on who was covered by the Consumer Fraud Act. Well that statement was correct. The New Jersey Supreme Court came out with its decision on Radir Wheels on Wednesday. In keeping with the broad reach of the Consumer Fraud Act’s causes of action and remedies, the Court found Mr. Conklin was subject to the act and that he had violated it.
The Court began its analysis of whether a person selling an item or items on eBay was subject to the CFA, by noting that the CFA was enacted in response to unlawful sales and advertising practices and was meant to be remedial legislation. The courts are required to give remedial legislation a very liberal interpretation.
The Court’s decision came down to a plain reading of the statute’s definition of “person.” The statute defines person as “any natural person, or his legal representative, partnership, corporation, company, trust, business entity, or association, and any agent, employee, salesman, partner, officer, director, member, stockholder, associate, trustee” NJSA 56:8-1(d). The Supreme Court easily found that Mr. Conklin was a person. The Court then noted that there were some exceptions to the CFA’s reach, despite a plain reading, but noted that the Defendant did not fall into those narrow exceptions. As Mr. Conklin was subject to the CFA, the Court also found that the Plaintiff pled and proved a “textbook” case of a CFA violation.
The moral of story is that whether you are a large multinational store or a single parent selling your kids used toys and clothes on the internet, you are subject to the consumer fraud act. You are subject to the CFA whether this is you one and only sale or your 10,000’s listing. As everyone would like to avoid be liability for treble damages and attorney fees, any advertisement made on the internet must be accurate. It must not only be accurate as far as you, but it must be completely accurate. It must be completely accurate because if you make a statement regarding the item, which latter turns out to be untrue that is an actionable violation of the CFA. It is actionable even if you thought the fact to be true when you made it.
For more on the CFA see my previous post on the basics of the statute.