By Stephen N. DeNittis, Esq.

Just because a store claims to be having a sale, may not make it so.

That was the ruling by the Appellate Division in a published decision in Robey, et.al v. Sparc Group, LLC  that permitted a case to move forward against Aeropostale alleging the retailer falsely marked up prices on their garments to then mark them down is an illegal practice in violation of N.J.A.C. 13:45A-9.6(a). 

A three-judge panel overruled a trial judge who had dismissed the case, holding, among other things, that there was no ascertainable loss to Plaintiffs and members of the public for the alleged deceptive practice of putting forth a fake sale.

In a per curiam opinion, the appellate panel stated that the plaintiffs were not required to prove their allegations this early in the action and ruled  that the plaintiffs did adequately plead they suffered an ascertainable loss of damages through measuring damages by the loss of the Benefit-of-the-Bargain theory.

The plaintiffs’ complaint alleged that the plaintiffs’ purchased several items from Aeropostale that were marked down to 60% off from an alleged fake or fictious original price. 

The Court held that such a practice, if proven at trial, would be considered false advertising and a deceptive sales practice because Aeropostale never sold the items the plaintiffs’ purchased at their original price. 

Make sure when handling any consumer fraud case to review existing case law to ensure you properly plead ascertainable loss because that is much broader than simply an out-of-pocket loss. Also, when investigating any illegal practice that you believe may be a deceptive practice make sure to research to see if there are any New Jersey Administrative Code Regulations that apply that may constitute a per se violation of the New Jersey  Consumer Fraud Act.

Stephen N. DeNittis, Esq. is the managing partner at DeNittis Osefchen Prince, P.C. in Marlton, NJ. Much of his practice is in the area of consumer fraud. He is a member of the NJAJ Board of Governors and a co-chair of the NJAJ Consumer Law Section. He can be reached at SDenittis@Denittislaw.com or at 856-797-9951.