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On March 25, 2024, the New Jersey Supreme Court issued its anticipated decision in Robey v. SPARC Group, LLC.  In a split decision, Associate Justice Lee Solomon wrote for the majority, which reinstated the trial court’s dismissal of a class action complaint asserting claims under New Jersey’s Consumer Fraud Act (“CFA”) and Truth in Consumer Contract Warranty and Notice Act (“TCCWNA”) based on a retailer’s alleged illusory discount scheme.  Penning the dissent on behalf of the minority, Associate Justice Douglas M. Fasciale would have affirmed the intermediate appellate court, which held plaintiffs had sufficiently stated claims for relief.

The case concerned an alleged illusory discount.  The plaintiffs claimed that a retailer sold clothing at a purportedly discounted price, but that the displayed original price was never offered. The core question for the Supreme Court was whether the plaintiffs suffered an “ascertainable loss” or were “aggrieved”—in other words, was their injury sufficient to state viable causes of action under New Jersey pleading standards?  The plaintiffs claim they were deprived of the benefit of the bargain, which would have been receiving an item of higher value, but with an expectation and urgency that the item was being offered a steep discount.  The plaintiffs sought to certify a class of consumers asserting claims under the CFA, TCCWNA, and other common law causes of action, but the trial court dismissed the complaint, holding the consumers did not suffer the requisite “ascertainable loss” under the CFA or requisite violation of a “clearly established legal right” under TCCWNA.

The intermediate appellate court reversed the trial court, holding the plaintiffs sufficiently alleged that they were denied the benefit of their bargain because they did not receive the value of the discount that misled them into purchasing the items in the first place.  But in its majority decision, the Supreme Court held that the consumers did not suffer an out-of-pocket-loss, nor were they deprived of the benefit of their bargain, hence they had no “ascertainable loss.”  Justice Solomon reasoned that the consumers purchased non-defective and conforming goods with no “measurable disparity between the product they reasonably thought they were buying and what they ultimately received.”  Because the consumers did not incur any additional costs or receive defective items, the Court held that they failed to allege an “ascertainable loss” because their injury was not “quantifiable and measurable.”