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Macedo v. Dello Russo

359 N.J. Super. 78, 819 A.2d 5 (App. Div. 2003)

CONSUMER FRAUD—Although professional services may not be subject to the Consumer Fraud Act, advertising or marketing of those services is subject to the Act.

A group of dissatisfied eye surgery patients filed a class action against a licensed physician specializing in ophthalmology and laser surgery and his practice entity. One count involved alleged violation of the Consumer Fraud Act. Despite the patient’s “attempt[] to distinguish the business aspect of the [defendants]” the lower court held the Consumer Fraud Act inapplicable to “the practice of medicine as presented under the facts of this case.” The Appellate Division reversed, pointing out that even if there were a “learned profession” bar against consumer fraud claims, “it could not be successfully asserted where the professional’s conduct alleged as the basis of the claim implicated his commercial activity, such as the advertising of services, as distinguished from the rendition of the professional services themselves.” With that in mind, the Court looked at the face of the pleadings and saw that the patients were alleging conduct regulated by the Consumer Fraud Act which bars “unconscionable commercial practice, deception, fraud, false pretense, misrepresentation, or the knowing concealment, suppression or omission of any material fact within intent [to engender reliance] ... in connection with the sale or advertisement of any merchandise (defined by [the statute] to include ‘service or anything offered directly or indirectly to the public for sale’)... .” In these circumstances, The Court found, “[t]here is no logical underpinning for a rule that permits professionals in their practice entities to evade the strictures of the Act simply because of their professional status.”

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