Member of:
New Jersey State Bar Association Badge
LawLine Online Faculty

Bait and Switch Advertising: Does there have to be a sale?

Bait and Switch: Does there have to be a sale? No.

NO PURCHASE IS REQUIRED TO MAINTAIN A CLAIM OR AN ASCERTAINABLE LOSS UNDER THE NEW JERSEY CONSUMER FRAUD ACT FOR FALSE ADVERTISING OR BAIT AND SWITCH ADVERTISING


There is no requirement that the plaintiff have purchased any vehicle from the defendant to maintain a cause of action.
The New Jersey Consumer Fraud Act applies to this transaction and this contest/transaction since it: (a) falls within the definitional section of Sale and Advertisement, and (b) it is consistent with the interpretation of Miller v. Publishers Clearing House 284 N.J.Super. 67 (App.Div 1995)
Defendant’s efforts to sell cars through the marketing and advertising efforts on their web site warrant application of the Consumer Fraud Act.

The New Jersey Consumer Fraud Act is clear on which transactions constitute a “sale” within the ambit of the New Jersey Consumer Fraud Act. See N.J.S.A. 56:8-1(e). The term “sale” shall include any sale, rental, or distribution, offer for sale, rental or distribution, or attempt directly or indirectly to sell, rent or distribute; N.J.S.A. 56:8-1 (emphasis added)

Further advertisement is defined by N.J.S.A. 56:8-1(a). The term “advertisement” shall include the attempt directly or indirectly by publication, dissemination, solicitation, endorsement, or circulation or in any other way to induce directly or indirectly any person to enter or not enter into any obligation or acquire any title or interest in any merchandise or to increase the consumption thereof or to make any loan; N.J. Stat. Ann. § 56:8-1(emphasis added). The Administrative Code is specific on what is a deceptive practice, and no sale is required. It is the refusal to sell that creates the deceptive practice. N.J.A.C. 13:45A-26A.4 (emphasis added). The Consumer Fraud Act specifically makes it a deceptive practice NOT to sell a product at the advertised price. Thus, statutory responsibility and liability is based on NOT selling goods.
The advertisement of merchandise as part of a plan or scheme not to sell the item or service so advertised or not to sell the same at the advertised price is an unlawful practice and a violation of the act to which this act is a supplement. N.J.S.A. 56:8-2.2

There is no requirement of a contract between the parties as held by the court:
No contract is required to sue and only a loss, an “ascertainable Loss” is required under New Jersey Law. Matera v. M.G.C.C. Grp., Inc., 402 N.J. Super. 30, 41 (Ch. Div. 2007).

If the defendants ran the advertisement a promotion and when the plaintiff attempted to buy this car, and they refused to permit him to do so, contrary to their representations contained on their web site, radio advertisement and e mail they should be liable.

A completed transaction is not necessarily required to maintain a cause of action under the New Jersey Consumer Fraud Act, especially when advertising is involved. The defendant’s assertion that there was no “purchase” of goods is insufficient to support a claim for dismissal. A completed sale is not required for liability or damages. The definitional section of the New Jersey Consumer Fraud Act defines a sale as an offer for sale or an attempt directly or indirectly to sell, rent or distribute. Consistent with this, it defines an advertisement as an attempt to directly or indirectly by publication or otherwise… to induce directly or indirectly any person to enter an obligation.

An interpretation of the New Jersey Consumer Fraud Act in the definition sections to exempt offer for sales or advertisement from the New Jersey Consumer Fraud Act cannot be deemed consistent with the remedial purposes of the act. See Miller v. Publishers Clearing House 284 N.J.Super. 67 (App.Div 1995). There are specific cases which address the applicability of the Consumer Fraud Act to those who have sold no goods to the party plaintiff. See Cogar v. Monmouth Toyota 331 N.J. Super 1997 (App. Div. 2000). See Perth Amboy Iron Works v. American Home Assurance Co. 226 N.J. Super 200, 211 (App. Div. 1988), aff’d, 118 N.J. 249 (1990).

In both cases, the Appellate Division held the Consumer Fraud Act applicable to individuals and/or businesses who sold no goods to the plaintiff. In both cases, there were defendants who would not have sold any specific good to the plaintiff. Courts have also held that there is no requirement that the claimant must have a direct contractual relationship with the seller of the product of service. The direct reading of the statute is consistent with the plaintiff’s allegations that this conduct is subject to the New Jersey Consumer Fraud Act. The New Jersey Consumer Fraud Act should be liberally construed to implement its remedial purpose.

The defendant’s promotion was within the jurisdiction and definition section of the New Jersey Consumer Fraud Act. The Consumer Fraud Act applies to promotions with no sale of good. The Appellate Division in Miller v. Publishers Clearing House 284 N.J.Super. 67, 7 (App.Div 1995) has held that contest/promotion such as this are subject to the applicability of the New Jersey Consumer Fraud Act. In Miller, the defendant was American Family Publishers who was a seller of magazine subscriptions and used Ed McMahon and Dick Clark to provide the prize money and appear on The Today Show. The defendant would engage in the sale of magazine subscriptions, mass mailings (advertising and promotion) with various claims of future contest winnings to potential entrants.

The defendant provided awards including four awards of $10 million and three awards of $2 million. The plaintiffs in Miller were four persons who had entered the contest and two who had not purchased subscriptions. The defendant in Miller stated that the plaintiff need not buy a subscription to enter the contest. The plaintiffs asserted that the wording of the contest was misleading. The Appellate Division determined that all the plaintiffs had a cause of action under the New Jersey Consumer Fraud Act whether they had purchased a subscription for magazines or not. Clearly there were two individuals who had not even purchased subscriptions or even entered the contest. Miller v. Publishers Clearing House 284 N.J.Super. 67, 72 (App.Div. 1995).

The actual law, in the application of the actual law must take a commonsense approach in both understanding and application. The Consumer Fraud Act must be interpreted in a liberal fashion. The Consumer Fraud Act in New Jersey is interpreted by the courts in a way, not to encourage deceptive or improper conduct. The first suggestion would be to look at the conclusion or theory upon which to base a claim. Is this affair and remedial interpretation of the New Jersey law. Is this in interpretation which encourage deceptive or fraudulent business practices. If the answer to these questions renders a reasonable interpretation of the Consumer Fraud Act the court should permit it to proceed so long as an ascertainable loss can be established, pled, or reasonably concluded. The plaintiff must demonstrate or show that the defendant conduct which is been alleged to be improper caused a measurable loss. The loss does not have to be expended. The loss does not have to be actual dollars. The loss must be measurable or quantifiable. The New Jersey Supreme Court has held that there is not a prerequisite that the consumer for the plaintiff sustain an out-of-pocket loss. So long as the loss is measurable or quantifiable the court should permit the plaintiff received.

A large majority of the cases cited by practitioners and false advertising or bait and switch cases say the same thing. There are many regulations that apply to the sale of the vehicles and other goods that must be satisfied by the business, the defendant. These regulations must be applied to the transaction. A violation of the regulations is a per se violation of the Consumer Fraud Act. A business is deemed to be knowledgeable of the regulations which regulates the business. However, most of this analysis is common sense. Usually there is an easy way to describe the way the advertisement is misleading or has the capacity to mislead. The court should allow a practitioner, pro se or plaintiff to make these arguments to the court and/or the jury to stop the deceptive advertising, the bait and switch advertising to assist Monmouth County lawyers and Tinton Falls lawyers when arguing these cases in court. Bait and switch advertising can be very frustrating. The business has a lot of experience in applying bait and switch advertising to get customers into their store. The businesses are familiar how to address customer objections or concerns when the bait and switch advertising is brought to their attention. Bait and switch advertising can be deceptive. However, even if there is bait and switch advertising a loss must be shown or demonstrated by the plaintiff, plaintiff's attorney was pro se litigants.

Lawyers in Monmouth County, lawyers and Tinton Falls, and lawyers and New Jersey must use the law to their benefit to assist their clients for litigating bait and switch advertising and Consumer Fraud Act claims. These laws are very helpful in these New Jersey laws are interpreted in a remedial way to help consumers. Bait and switch advertising can be very difficult to deal with. Bait and switch advertising can cause damages. Bait and switch advertising can cause a tremendous waste of time even if there are no out-of-pocket losses associated with the bait and switch advertising.
If you have a question call a consumer fraud lawyer, a lawyer that litigates consumer fraud cases in either Tinton Falls, Monmouth County with the state of New Jersey that has experience in the bait and switch advertising foods. Please remember that a completed sale does not necessarily acquired but a measurable or ascertainable loss wired. Do not have to have sustained an out-of-pocket damage only a loss to explain to maintain a claim or bait and switch advertising deceptive practices

I have a blog post on the issue.  Click here to access the blog.