The First Nail in the Coffin of Consumer Rights
Assembly Bill 1444, prefiled for introduction for the 2012 session of the New Jersey State Legislature, and sponsored by Assemblyman Reed Gusciora, seeks to amend New Jersey’s Consumer Fraud Act to prohibit attorney’s fees to plaintiffs who prove what the bill terms as merely “technical violations” of the New Jersey Consumer Fraud Act.
As everyone knows, I am an unapologetic champion of individual rights against corporate rights. I am an unapologetic champion of the rights of working families and individuals against vested interests, whether those interests be government, banking, corporations, insurance, the medical lobby or the neoconservative agenda, generally.
Governor Chris Christie, to give him credit, is an exceptionally canny politician, who has chosen to cast his lot entirely with neoconservative “pro-business” interests. Because corporations are by definition paper creations and are, therefore, soulless and without consciences, this alleviates the people who advocate for corporations from any responsibility for what corporations do, and how they harm. Lawmakers and lobbyists who think that the only thing that matters is corporate profits often feel that one of the easiest ways to accomplish this, especially during “hard” economic times, is by whittling away at the rights of the individual to challenge corporate hegemony and power.
The New Jersey Consumer Fraud Act has existed for many decades as a check and balance against corporate power. Corporations make large amounts of money by cheating large numbers of people out of small dollar figures.
Imagine, for example, a corporation which sells ten million units of a product that costs only $5.00 by fraudulently representing that the product is capable of doing something. In fact, versions of the product from competitors that cannot do the same thing sell for only $4.00. This corporation, however, has decided it wishes to get an edge over its competition and, therefore, charges $5.00 for the product. In order to justify the higher price, they simply lie about its capability, thus cheating ten million people out of only one dollar each; a ten million dollar profit obtained by fraud. Yet because the value of each person’s loss is so “insignificant” and because the failure of the product, as driven by its value, is so meaningless, this would be a classic “technical violation” that the above-bill would render unavailing to parties and their attorneys.
Most fraud does not have a significant enough individual economic value that, when a portion of that value is considered, it fairly and adequately justifies an attorney filing suit for the amount of time and risk that they undertake in trying to help the victim. In short, there’s no way, without resort to fee shifting anti-fraud law, for a person to have a lawyer recover that money.
Conservative lawmakers and their corporate allies know this well. The way that they “spin” these types of amendments is that it is “pro-business” and deprives “greedy lawyers” of “exploiting” “technical” breaches in the law for their selfish benefit. That is their spin. Here is the true spin.
By slowly whittling away pieces of the Consumer Fraud Act and any other pro-consumer or pro-civil rights statute, which are designed to shift attorney’s fees in order to make small violations that mean a great deal hurt for the perpetrators, and by lying to you about why they are doing it and what it really means, the corporations are trying to gradually strip away all your individual liberties and rights and render the courts a corporate playground. They have succeeded in large part over the last 30 years by doing it in bits and pieces, by seizing their opportunities during bad economies, by publicly “spinning” events like this to their disadvantage with their considerably greater resources than individuals and their attorneys have, and by trying to put one over on party faithful and undecideds.
This bill is bad for anyone who is going to get cheated by nefarious contractors, car dealers, businesses, etc. It is going to take away a class of remedies that, right now, you can actually litigate with the assistance of a lawyer, free of any worry that the lawyer’s fees are going to be your responsibility. In other words, right now, you can still challenge “technical violations” that cause real harm because the law continues, for the present, to protect that right by “shifting” attorney’s fees to the wrongdoer.
If this bill is passed, it will begin to whittle away the rights that the Consumer Fraud Act affords you. Don’t listen to the lies of those who apologize for this bill or suggest that the bill is good for business. It is “good for business” in a sense that it gives business something at your expense, and while that may be “good” for certain fraudulent businesses, it is not really good for you, and that makes it not good for the people of New Jersey. What is not good for the people of New Jersey isn’t good for New Jersey, and misguided lawmakers need to be told this in no uncertain terms by you.
I am a consumer, civil employment and individual rights trial lawyer, and I am telling you this bill is a bad idea. Take it to the bank because if you don’t, the corporations will take your money to the bank.