On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4418-07.
The opinion of the court was delivered by: Carchman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, R. B. Coleman and Simonelli.
Plaintiff Harold Hoffman, an attorney, ordered a product on the internet from defendant-retailer AsSeenOnTV.com. His order prompted his taking advantage of defendant's advertised "free bonus" offer. To pay for the order, plaintiff proffered his American Express credit card, following which defendant confirmed the order on-line, and American Express "approved" the charge. As part of the confirmation process, however, plaintiff was advised that he was being billed an additional shipping and handling charge of $7.95 for the "free bonus." The next day, plaintiff filed a putative class action alleging common law and consumer fraud against defendant, premised on defendant's deceitful advertising of its products on the internet.
Unbeknownst to plaintiff, the products he selected were on backorder and not presently available. Having learned of the pendency of the lawsuit, defendant cancelled the order and never sought payment or actual transfer of funds. Plaintiff never paid for the order, and his credit card was never debited for the charge.
Defendant filed a counterclaim for abuse of process after it learned that plaintiff had filed numerous similar actions against retailers advertising "free bonus" offers. Defendant alleged plaintiff regularly filed such suits seeking to prompt defendants to settle under threat of a potential class action certification.
On a motion for summary judgment, Judge Martinotti in the Law Division dismissed plaintiff's fraud claims, concluding that plaintiff did not establish an ascertainable loss. The judge also dismissed the counterclaim because defendant had not established plaintiff's malicious use or perversion of legal process. Both sides appeal, and we affirm.
We expand on our discussion of the relevant facts. Defendant, a website operator and retailer operating AsSeenOnTV.com, as part of its internet marketing, advertised on the website, a "free bonus gift or offer" with an "initial retail purchase." Included in small type at the bottom of the webpage and next to three asterisks, was the following:
Initial retail purchase is required for qualifying bonus gift or offers, along with a separate shipping and handling charge for each bonus gift or offer added to a shopping cart order(s). Bonus gifts or offers are excluded from any shipping discounts.
On June 11, 2007, plaintiff accessed defendant's site and proceeded to place an order for the purchase of a "Smart Light" for $29.95. After plaintiff made his selection, the screen reflecting his "shopping cart" contents prompted plaintiff to "[c]hoose your free bonus gift or offer."
Beneath that bold-type print were pictures of nine items with brief descriptions. Included under the descriptions for each was an indication of its dollar "value," along with the phrase, "Pay only the cost of S&H." Plaintiff selected as his bonus item a "Free Facial Trimmer" with a represented "$20 Retail Value."
Using his American Express card, plaintiff completed the website's online payment section. At the end of the payment process, the screen indicated "secure checkout--completed," thanked plaintiff for his order and indicated:
Processing Credit Card Information . . . Approved Your order number is [xxxxxxxx]
The following charges will appear on your credit card statement: $44.85 to SEENONTV.COM*fn1
A receipt of your order has been automatically mailed to you.
As a special offer we are giving you a ...