N.J. wrong to consider weakening consumer protection

What's the key question you're likely to hear if you call a Philadelphia-area lawyer about a consumer dispute?

Before such basics as "How strong is your evidence?" you may well be asked: "Where do you live?" And chances are, the lawyer will be hoping your answer is Camden or Cherry Hill, not Philadelphia or Ardmore.

Call it a Tale of Two Legal Systems. Pennsylvania has some of the weakest consumer protections in the country. New Jersey has some of the strongest.

That could change under legislation being pushed by the New Jersey Civil Justice Institute, itself backed by a who's who of business and industry groups.

Broad proposals backed by the institute have drawn bipartisan sponsorship, even as critics say key provisions would basically gut the state's Consumer Fraud Act (CFA). Before the lobbyists flex all their muscle, here's a suggestion for New Jersey lawmakers: Take a hard look at how consumer cases play out across the Delaware.

Last week, the Assembly's Consumer Affairs Committee OKd a small element of the institute-backed proposal: barring the award of attorneys' fees and court costs in cases where a consumer wins only due to a "technical violation" of the law.

The bill's sponsor, Trenton Democrat Reed Gusciora, says he has wanted to change the law for a decade, ever since defending a contractor against a consumer unhappy with windows he had installed. The jury was unconvinced that there was any substance to her complaint, but the contractor had omitted a start and stop date from her contract - a technical violation that Gusciora says allowed her lawyer to seek $35,000 in fees.

Gusciora says the case stuck in his craw - even though the judge, similarly disturbed, cut the fee to $2,000. "I feel sorry for the little guy who simply filled out his contract incorrectly," he says.

Gusciora's heart is in the right place. When consumers fight small businesses, there may be "little guys" deserving sympathy on either side of the courtroom.

But here's the rub - as noted in testimony by consumer advocates and by Monmouth County's consumer-affairs director: Not only have New Jersey courts largely quit granting such fees, under a series of appellate rulings, but technical violations aren't always as negligible as they sound.

Annemarie Howley, the Monmouth official, says her office typically gives a warning, or at most a $500 fine, for a first offense - say, omitting an ID number, which the law requires to help a consumer check a contractor's track record.

But, particularly in the aftermath of Hurricane Sandy, Howley says, fly-by-night contractors have left too many consumers in the lurch with shoddy or unperformed work. When a consumer is harmed, she said, finding technical violations, too, can help bolster a claim. She says the law's high standards are part of what makes it work.

Attorneys who practice in both states have a good perspective on the value of New Jersey's law - not only its fee provisions, but its allowance of triple damages in a winning case, the kind of award that can make a company think twice before chalking up a lawsuit loss as a cost of doing business.

Cary Flitter, who has offices in Narberth and Marlton, recalls a Pennsylvania client who bought a used car, only to learn later - from the officers who impounded it - that it had been stolen.

The used-car dealer "basically said, 'Tough,' " Flitter recalled. "After years of litigation, she finally got back most of her money, but nothing for her time and aggravation." And because of Pennsylvania's narrow rules on attorneys' fee, Flitter said, he got about a third of what was fair.

"It's much easier to find an attorney to accept a consumer case in New Jersey, and that's no accident," Flitter says.

Alida Kass, chief counsel for the Civil Justice Institute, called Gusciora's bill "an important first step in the direction of where we should want to go with the Consumer Fraud Act." She said the law encourages too much litigation, and sometimes the wrong kind.

"There should be some means of separating the wheat from the chaff," Kass said.

Committee Chairman Paul D. Moriarty (D., Turnersville), who once did consumer investigations for two Philadelphia TV stations, makes it clear that he doesn't want major changes to New Jersey's strong consumer statute.

"I know what happens if these things come about: People will not have access to the courts," he said after the hearing.

For evidence, you need only look across the river.