In a recent published opinion, the Third Circuit (echoing a July 29, 2020 opinion from the New Jersey Supreme Court) held that some claims brought under the New Jersey Consumer Fraud Act are subsumed by the New Jersey Products Liability Act, while others are not. NJCJI previously reported on this issue and hosted a webinar with Gavin Rooney, Lowenstein Sandler and Jeff Jacobson, Faegre Drinker.

The Third Circuit explained that, according to the state Supreme Court, “allegations of fraudulent or unconscionable business practices could support a CFA claim, whereas claims based solely on a product’s ‘manufacturing, warning, or design defect’ would be actionable only under the PLA.”  Third Circuit Op. at 8 (emphasis added).  “Because the claims would rest on different theories of liability and would be premised on different types of conduct, the [state Supreme Court] held that a plaintiff could maintain both causes of action in a single suit.”  Id.

The question turns on “the underlying theory of liability.”  Third Circuit Op. at 8.  “[A] CFA claim alleging express misrepresentations­–deceptive, fraudulent, misleading, and other unconscionable commercial practices–may be brought in the same action as a PLA claim premised upon product manufacturing, warning, or design defects. In other words, the PLA will not bar a CFA claim alleging express or affirmative misrepresentations.”  Id

In conclusion, the Court explained, the PLA does not subsume claims premised on affirmative misrepresentations rather than on a deficiency in the product itself.  Id. at 15-16.

Should you wish to discuss this matter in further detail contact Shalom Stone, Stone Conroy, 973-400-4182 or