In Lieberson, the District Court for the District of New Jersey held that where a complaint does not allege whether or when the allegedly false advertisements appeared in magazines, and whether or when the plaintiff may have viewed them, they were “patently insufficient” to plead a New Jersey Consumer Fraud Act, N.J.S.A. 56:8-2, claim and otherwise fail to satisfy Rule 9(b). The Plaintiff in Lieberson alleged that Johnson & Johnson’s baby wash products falsely stated that they were “clinically proven” to help babies sleep better. The Lieberson court held that to properly plead a New Jersey Consumer Fraud Act claim with the specificity required under Rule 9(b), a plaintiff must identify the origin of the statements and that they were actually viewed by the plaintiff. Notably, however, the Lieberson court declined to conclude that the product label’s statements that the product was “clinically proven” to help babies sleep better was mere non-actionable “puffery.” On the contrary, the court found that “incorporation of the words ‘clinically proven’ . . . a statement that might otherwise be considered puffery, i.e., that the products will help babies sleep, was transformed into something that appears ‘both specific and measurable.’”
However, the Lieberson court held that the plaintiff’s complaint failed to plead any ascertainable loss under the New Jersey Consumer Fraud Act. Judge Wolfson concluded that, absent specific information regarding the price or cost of comparable products, an allegation that a product did not perform as advertised cannot sufficiently plead the ascertainable loss element of a statutory consumer fraud claim. Furthermore, the court held that the complaint failed to plead a breach of an implied warranty because the complaint did not contend that the product did not function as a wash. Advertising alone cannot “transform the clear and ordinary purpose of a product into an entirely different and unrelated purpose” — a sleep aid.
As such, the court held: “plaintiff appears to be attempting to fit the square peg of a false advertising or consumer fraud type claim into the round hole of an entirely unrelated warranty claim.”