On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8603-07.
The opinion of the court was delivered by: Yannotti, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker, Yannotti and LeWinn.
Plaintiff Harold M. Hoffman appeals from an order entered by the trial court on March 14, 2008, which dismissed his complaint with prejudice pursuant to Rule 4:6-2(e). For the reasons that follow, we modify the trial court's order to provide for dismissal of the complaint without prejudice and affirm.
On November 26, 2007, plaintiff filed a complaint in the trial court individually and on behalf of a class of persons who purchased a product called Herculex. Plaintiff claimed that defendants Hampshire Labs, Inc. and Video Age, Inc. "advertised, promised and represented" to consumers through "print, internet and other media" that the product contained certain ingredients "'that are quickly transported through the tissues of the penis causing a surprisingly large erection to occur in no time at all[.]'"
According to the complaint, defendants' advertisements included various statements about the product, including claims that the product would "'[i]nduce the biggest erections of your life;'" "'[i]nduce a harder, stiffer, more rigid erection;'" "'[i]nduce one erection after another;'" and "'[c]ause female partners to experience spine-quaking orgasms[.]'" These, and other results, were "'guaranteed.'"
Plaintiff further alleged that, "[u]pon information and belief," he and other members of the class heard defendants' advertisements, promises and representations and purchased the product from defendants. Plaintiff claimed that, "[u]pon information and belief," the aforementioned "advertisements, promises and representations" are "false, deceptive, fabricated; constitute a misrepresentation; constitute an unconscionable trade practice; are replete with material omissions; constitute a sharp and deceitful marketplace practice, and are a false promise." Plaintiff asserted that, "[u]pon information and belief," the product "does not, and lacks [the] capacity, to" produce the results "promised, advertised and represented by defendants."
Based on these allegations, plaintiff asserted five claims under the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -60. Plaintiff alleged that defendants' conduct constitutes "an unconscionable commercial practice," "deception," "fraud," "false pretense, false promise and/or misrepresentation," and "knowing concealment, suppression and/or omission of material facts" in violation of the CFA. Plaintiff claimed that he and members of the putative class sustained monetary losses as a result of defendants' violations of the CFA. Plaintiff sought treble damages, punitive damages, pre-judgment and post-judgment interest, fees, costs, attorney's fees and penalties.
Plaintiff also asserted a claim for common law fraud. Plaintiff alleged that, in their marketing and sale of Herculex, defendants had deliberately engaged in deception, false pretense, false promise and/or misrepresentation with respect to material facts, and did so with the intent that others, including members of the plaintiff-class, rely upon same, and, upon information and belief, members of the class did justifiably rely upon same to their detriment.
Plaintiff further asserted that defendants had "deliberately and knowingly" concealed "material facts with the intent that others, including members of the plaintiff-class," would rely thereon. Plaintiff said that, "upon information and belief," members of the class had relied "upon same to their detriment." Plaintiff further alleged that he and members of the putative class had been damaged as a proximate result of defendants' conduct.
On January 16, 2008, defendants filed a motion pursuant to Rule 4:6-2(e) to dismiss the complaint for failure to state a claim upon which relief could be granted. In a certification filed in support of that motion, William Hudlow, defendants' president, stated that plaintiff had placed "his first and only order for Herculex on November 21, 2007." Hudlow also stated that the product had been shipped to plaintiff.
Defendants argued that plaintiff failed to state a claim under the CFA because he had not alleged specific facts to show that defendants violated the CFA or that plaintiff or any member of the putative class had sustained an "ascertainable loss" as required by N.J.S.A. 56:8-10. Defendants further argued that the facts as ...