In their complaint, plaintiffs alleged defendant falsely advertised clothing at two of its Aeropostale stores as being discounted when, in fact, according to plaintiffs, the clothing had never been sold in those stores at a higher price. Plaintiffs asserted that this "markup to markdown" practice violated both the Consumer Fraud Act, N.J.S.A. 56:8-1 to -227, and the Truth in Consumer Contract, Warranty, and Notice Act (the Truth Act), N.J.S.A. 56:12-14 to -18. The trial judge dismissed the complaint for failure to state a claim upon which relief can be granted, mainly because the judge determined plaintiffs failed to allege an ascertainable loss.
Plaintiffs' ascertainable-loss theory – to use a simple example – is that defendant offered an item that never sold for anything more than $50, at a 50% discount below a new $100 price tag. Defendant successfully argued in the trial court that there was no ascertainable loss because plaintiffs purchased a $50 item for $50. The court rejected this and held, among other things, that the facts alleged an ascertainable loss because they alleged the discount was illusory and plaintiffs did not receive the benefit of the bargain because one element of the bargain was a 50% discount.
Judge Berdote Byrne filed a concurring opinion.