All The Way Towing, LLC v. Bucks County International, Inc.

SYLLABUS

This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

 All The Way Towing, LLC v. Bucks County International, Inc. (A-66/67-17) (080700)

Argued November 27, 2018 -- Decided January 24, 2019

LaVECCHIA, J., writing for the Court.

       In this appeal, where plaintiffs, an individual and his limited liability towing
company, entered into a contract for the purchase of a customized medium-duty 4x4 truck
with autoloader tow unit, the Court considers whether New Jersey’s Consumer Fraud Act
(CFA),  N.J.S.A. 56:8-1 to -210, covers the transaction as a sale of “merchandise.”

        Plaintiff Chayim Goodman is the sole owner of plaintiff All the Way Towing, LLC
(ATW) (Goodman and ATW collectively, plaintiffs). After Goodman conducted online
research, he contacted a salesman at defendant Bucks County International, Inc. (BCI),
which is in the business of truck sales, parts sales, and service, to order an “International”
brand all-wheel drive truck with an autoloader tow body manufactured by defendant
Dynamic Towing Equipment and Manufacturing, Inc. (Dynamic) installed. Goodman
testified that he spent “a couple of months” negotiating options and pricing. BCI and ATW
signed a ten-page contract, which contains a list of specifications. Goodman testified that he
was aware that the truck was to be custom-built according to his requested specifications.
According to the contract, the overall estimated cost of the outfitted truck was $166,089.27.
ATW paid BCI a $10,000 deposit.

        After BCI delivered the truck to Dynamic, Dynamic discovered that its tow body was
incompatible with the truck, prompting Dynamic to make modifications to the towing unit.
Goodman testified that defendants attempted to deliver the truck with the tow rig to ATW on
four occasions. Each time, ATW identified deficiencies with the truck and/or the towing rig.
After the fourth attempted delivery, ATW rejected the truck and wanted a refund of the
deposit. When BCI refused, plaintiffs commenced this action.

       The trial court dismissed the CFA count on defendants’ motion for summary
judgment. The court determined that the truck’s custom design caused the product not to fit
within the definition of merchandise, and thus, the CFA did not apply. The court did not
address whether, if the product had fit within that definition, plaintiffs provided sufficient
evidence to survive defendants’ summary judgment motion regarding the CFA.

       The Appellate Division reversed.  452 N.J. Super. 565 (App. Div. 2018). In the
panel’s view, the customized truck with towing rig involved here met the definition of
merchandise under the CFA. Id. at 570-71. In reaching its holding, the Appellate Division
                                               1
distinguished two prior Appellate Division cases cited by defendants and plaintiffs --
Princeton Healthcare System v. Netsmart New York, Inc.,  422 N.J. Super. 467 (App. Div.
2011), and Finderne Management Co., Inc. v. Barrett,  402 N.J. Super. 546 (App. Div. 2008)
-- where products were determined not to be a “sale of merchandise” because “the goods and
services sold there were 'complex.’” Ibid. Finally, because the trial court did not reach the
issue, the panel declined to determine whether plaintiffs had established the elements of a
CFA claim and could therefore survive summary judgment, instead remanding the case for
the trial court to make that determination first. Id. at 572 n.6.

       The Court granted defendants’ petitions for certification, but limited the issues to
“whether the [CFA] is applicable to this sale of a custom-built tow truck and whether the
Appellate Division erred by failing to address whether plaintiff established the elements of a
claim under the [CFA].”  233 N.J. 304 (2018);  233 N.J. 323 (2018).

HELD: The customized tow truck and rig fit within the CFA’s expansive definition of
“merchandise” and, therefore, plaintiff’s CFA claim should not have foundered based on an
application of that term. The Court further agrees with the appellate panel’s remand to the
trial court for a determination of whether defendants’ other bases for seeking summary
judgment are meritorious.

1. The CFA prohibits unconscionable commercial practices, deception, and fraud “in
connection with the sale or advertisement of any merchandise.”  N.J.S.A. 56:8-2. The CFA
defines “merchandise” to “include any objects, wares, goods, commodities, services or
anything offered, directly or indirectly to the public for sale.”  N.J.S.A. 56:8-1(c). The
Legislature amended the definition of “merchandise” in 1967 to read as it presently does, and
new language simply expanded the definition of merchandise by adding to the classes of
items previously listed “anything” that is offered to the public for sale through indirect as
well as direct means. The CFA’s history has been one of constant expansion of consumer
protection, and courts have recognized that the CFA must be liberally construed. (pp. 12-15)

2. The CFA is applicable to commercial transactions, but context is important. The Court
does not suggest that all business-to-business transactions fit the intendment of a sale offered
to the public. Second, several cases have already recognized that the CFA may apply to
custom-made goods. Thus, neither the commercial setting of a transaction nor a
customization of an item removes a transaction from the CFA’s reach. However, a more
nuanced assessment can be required to determine whether a transaction, good, or service is of
the type offered to the public, bringing it within the CFA. (pp. 15-18)

3. Defendants rely heavily on Finderne and Princeton Healthcare to support their contention
that the CFA should not apply in this case. In Finderne, the plaintiffs’ CFA claim involved
its participation, at defendants’ recommendation, in “a tax-deductible vehicle to fund pre-
retirement death benefits for owner-employees.”  402 N.J. Super. at 553. The court did
ultimately hold that the CFA was inapplicable but cited a number of fact-specific reasons.
First, the contract included a “sixty-page disclosure document” and recommendations to
consult tax attorneys. Id. at 571-72. Additionally, the claim related to a series of “very
                                               2
complex” transactions, which took place over the course of years. Id. at 554-57, 571. The
court observed that the plaintiffs were not “unsophisticated buyers” but rather were informed
through advice from an accountant and an attorney. Id. at 571-72. The transaction in
Princeton Healthcare began with the plaintiff, a hospital and healthcare provider, distributing
a request for proposals to upgrade their complex computer software system.  422 N.J. Super.
at 469. The defendant “submitted a 149-page response to this request” and, after a “lengthy
process of evaluation” and negotiations, which included “[the plaintiff’s] computer
consultant, . . . and its legal counsel,” the parties entered into an agreement. Id. at 469-70.
The panel concluded that “[t]his kind of heavily negotiated contract between two
sophisticated corporate entities does not constitute a 'sale of merchandise’ within the intent
of the CFA.” Id. at 474 (citing Finderne,  402 N.J. Super. at 570-73). As Finderne and
Princeton Healthcare demonstrate, courts have examined with care the nature of the
transaction when customized products and commercial entities are involved in a private
individual CFA claim. (pp. 18-20)

4. To promote consistency in the application of the requirement that a product be offered to
the public when evaluating a private individual CFA action, the Court holds that the
availability requirement can be met by showing that any member of the public could
purchase the product or service, if willing and able, regardless of whether such a purchase is
popular. The Court rejects defendants’ characterization of Princeton Healthcare and
Finderne as having placed “limitations on the application of the [CFA] in business-to-
business transactions” and stresses that a product or service can be customized without being
“complex.” In business-to-business transactions it is the “nature of the transaction” that will
determine whether it can fit within the CFA’s definition of “merchandise.” To promote
consistency in assessing the nature of a transaction in a business-to-business setting for
purposes of determining whether the CFA will apply to the merchandise, the Court adopts
the following considerations for use by New Jersey courts: (1) the complexity of the
transaction, taking into account any negotiation, bidding, or request for proposals process;
(2) the identity and sophistication of the parties, which includes whether the parties received
legal or expert assistance in the development or execution of the transaction; (3) the nature of
the relationship between the parties and whether there was any relevant underlying
understanding or prior transactions between the parties; and, as previously noted, (4) the
public availability of the subject merchandise. Here, the customization does not remove the
product from the CFA’s definition of “merchandise.” It was a direct consumer purchase
transaction; no attorneys or other experts were involved. Similarly, it is irrelevant that the
“public at large” does not purchase International trucks onto which a Dynamic tow unit is
installed. The relevant point is that a member of the public so inclined could make such a
purchase. It is consistent with the remedial purposes of the CFA to protect consumers
regardless of the popularity of the product or service sold or advertised. (pp. 20-23)

       AFFIRMED and REMANDED to the trial court for further proceedings.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in JUSTICE LaVECCHIA’s opinion. Justice ALBIN
did not participate.
                                               3
       SUPREME COURT OF NEW JERSEY
           A-66/
67 September Term 2017
                       080700


           All The Way Towing, LLC, and
                 Chayim Goodman,

               Plaintiffs-Respondents,

                          v.

      Bucks County International, Inc., and
Dynamic Towing Equipment and Manufacturing, Inc.,

               Defendants-Appellants.

       On certification to the Superior Court,
   Appellate Division, whose opinion is reported at
        452 N.J. Super. 565 (App. Div. 2018).

      Argued                        Decided
  November 27, 2018             January 24, 2019


Thomas E. Kopil argued the cause for appellant Bucks
County International, Inc. (Marte and Toadvine, attorneys;
Thomas E. Kopil, on the briefs).

Daniel J. Kluska argued the cause for appellant Dynamic
Towing Equipment and Manufacturing, Inc. (Wilentz,
Goldman & Spitzer, attorneys; Daniel J. Kluska, of
counsel and on the briefs).

Jay J. Rice argued the cause for respondents (Nagel Rice
and Levin Cyphers, attorneys; Jay J. Rice, of counsel and
on the brief, and Randee M. Matloff, on the brief).


                          1
             Henry P. Wolfe submitted a brief on behalf of amicus
             curiae New Jersey Association for Justice (The Wolf Law
             Firm and Law Offices of Charles N. Riley, attorneys;
             Henry P. Wolfe, Andrew R. Wolf, and Charles N. Riley,
             on the brief).


               JUSTICE LaVECCHIA delivered the opinion of the Court.



      New Jersey’s Consumer Fraud Act (CFA or the Act),  N.J.S.A. 56:8-1 to

-210, is a powerful “legislative broadside against unsavory commercial

practices” in the marketplace. Real v. Radir Wheels, Inc.,  198 N.J. 511, 514

(2009). When initially enacted, the CFA addressed the elimination of sharp

practices and dealings in the marketing of merchandise. Cox v. Sears Roebuck

& Co.,  138 N.J. 2, 16 (1994). Continuously expanded by the Legislature over

the years, the CFA’s reach now extends beyond “fast-talking and deceptive

merchant[s]” to protect the public even when a merchant acts in good faith.

Ibid. (alteration in original) (quoting D’Ercole Sales, Inc. v. Fruehauf Corp.,

 206 N.J. Super. 11, 23 (App. Div. 1985)). In light of the CFA’s remedial

purpose, courts liberally enforce the Act to fulfill its objective to protect

consumers from prohibited unconscionable acts by sellers. Furst v. Einstein

Moomjy, Inc.,  182 N.J. 1, 11-12 (2004).

      In this appeal, where plaintiffs, an individual and his limited liability

towing company, entered into a contract for the purchase of a customized

                                         2
medium-duty 4x4 truck with autoloader tow unit, we are called on to

determine whether the CFA covers the transaction as a sale of “merchandise.”

The trial court answered that question in the negative and granted summary

judgment to defendants on that basis. The Appellate Division disagreed and

reversed.

      For the reasons expressed herein, we agree with the Appellate Division

that the trial court took too narrow an approach in assessing what constitutes

“merchandise” under the remedial CFA. The customized tow truck and rig fit

within the CFA’s expansive definition of “merchandise” and, therefore,

plaintiff’s CFA claim should not have foundered based on an application of

that term. We further agree with the appellate panel’s remand to the trial court

for a determination of whether defendants’ other bases for seeking summary

judgment are meritorious. That assessment of the summary judgment record is

best made by the trial court in this instance, not by an appellate body.

                                        I.

                                       A.
      This appeal arises from defendants’ motion for summary judgment.

Therefore, just as Rule 4:46-2 requires of a trial court, on appeal we view all

facts related to the application of the term “merchandise” in the light most

favorable to the non-moving parties, plaintiffs. See Brill v. Guardian Life Ins.



                                        3
Co. of Am.,  142 N.J. 520, 523 (1995). The following facts come from

deposition testimony of plaintiff, Chayim Goodman, except where otherwise

noted.

      Goodman is the sole owner of plaintiff, All the Way Towing, LLC

(ATW) (Goodman and ATW collectively, plaintiffs). Goodman formed ATW

in 2005. During the time relevant to this matter, ATW employed only one

person in addition to Goodman and operated three tow vehicles.

      In or around November 2010, plaintiffs sought to purchase a medium-

duty tow truck with all-wheel drive because ATW was interested in securing a

contract that required medium-duty towing capability. After conducting

research on the internet, Goodman found the website for Navistar, which

manufactures “International” brand trucks. In the summary judgment motion

filings, defendants and plaintiffs agreed that defendant, Bucks County

International, Inc. (BCI), which is in the business of truck sales, parts sales,

and service, sells exclusively the “International” brand trucks that Goodman

was interested in purchasing.

      Goodman testified that he also conducted research on the website of co-

defendant Dynamic Towing Equipment and Manufacturing, Inc. (Dynamic). A

representative from Dynamic testified that Dynamic manufactures only towing

mechanisms that mount onto truck cabs and chassis; it does not manufacture


                                         4
cabs or chassis. Goodman stated that he decided to purchase an

“International” brand truck from BCI with an installed Dynamic 801 model

autoloader tow body. Plaintiffs’ information about Dynamic’s autoloader tow

body came from Dynamic’s website brochure.

        Following his online research, Goodman contacted a salesman at BCI,

Herb Krewson, and informed Krewson that he was interested in an

“International” brand all-wheel drive truck and that he wanted a Dynamic 801

model autoloader tow body installed onto the truck so that he could perform

medium-duty towing work. Krewson told Goodman that Krewson had never

dealt with Dynamic before.

        Goodman testified that he and Krewson spent “a couple of months”

negotiating options and pricing. BCI and ATW signed a ten-page contract,1

dated February 3, 2011. The contract between BCI and ATW contains a list of

specifications, which were to be included in the truck chassis prepared at the

Navistar factory, and included the cost of attaching a Dynamic 801 rig model

to the truck. Goodman testified that he was aware that the truck was to be

custom-built according to his requested specifications. According to the

contract, the overall estimated cost of the outfitted truck was $166,089.27 and

included the necessary modifications to the truck and the Dynamic 801 towing


1
    Dynamic is not a party to the signed contract.

                                         5
rig. During his deposition, Krewson confirmed that ATW paid BCI a $10,000

deposit.

      Krewson informed Goodman that after BCI delivered the truck to

Dynamic, Dynamic discovered that its tow body was incompatible with the

truck, prompting Dynamic to make modifications to the towing unit.

Goodman testified that defendants attempted to deliver the truck with the tow

rig to ATW on four occasions during October and November 2011. Each time,

ATW identified deficiencies with the truck and/or the towing rig, including

“spew[ing] hydraulic fluid,” “metal falling out[,] and the wheel lift [of the tow

rig] not closing properly.” In his testimony, Goodman conceded that when he

test drove the truck, “it drove all right” but noted that the tow rig failed to

function correctly. After the fourth attempted delivery, Goodman told

Krewson that ATW rejected the truck and wanted a refund of ATW’s deposit.

Goodman does not recall contacting Dynamic directly about the truck’s

rejection.

      When BCI refused to return ATW’s $10,000 deposit, plaintiffs

commenced this action that includes the CFA claim.

                                         B.

      The trial court dismissed the CFA count on defendants’ motion for

summary judgment. For the trial court, the issue was the CFA’s definition of



                                         6
“merchandise,” which, the court emphasized, refers to products being offered

to the public. The court stated that the tow truck “was a specially designed

product that was the subject of negotiations.” The court determined that the

truck’s custom design was “a critical issue” that caused the product not to fit

within the definition of merchandise, and thus, the CFA did not apply. The

court did not address whether, if the product had fit within that definition,

plaintiffs provided sufficient evidence to survive defendants’ summary

judgment motion regarding the CFA.

      The Appellate Division reversed. All the Way Towing, LLC v. Bucks

Cty. Int’l, Inc.,  452 N.J. Super. 565 (App. Div. 2018). The panel began by

noting that the trial court “held that the transaction was not a 'sale of

merchandise’ . . . because the tow truck was not something available 'to the

public for sale.’” Id. at 570. Citing cases where “custom-built item[s] may

constitute a 'sale of merchandise,’” id. at 572, the panel rejected the trial

court’s conclusion as too summary, noting that availability to the public goes

more to the complexity of the good rather than the uniqueness of design, id. at

571-72. In the panel’s view, the customized truck with towing rig involved

here met the definition of merchandise under the CFA. Id. at 570-71. In

reaching its holding, the Appellate Division distinguished two prior Appellate

Division cases cited by defendants and plaintiffs -- Princeton Healthcare


                                         7
System v. Netsmart New York, Inc.,  422 N.J. Super. 467 (App. Div. 2011),

and Finderne Management Co., Inc. v. Barrett,  402 N.J. Super. 546 (App. Div.

2008) -- where products were determined not to be a “sale of merchandise”

because “the goods and services sold there were 'complex.’” Ibid. Finally,

because the trial court did not reach the issue, the panel declined to determine

whether plaintiffs had established the elements of a CFA claim and could

therefore survive summary judgment, instead remanding the case for the trial

court to make that determination first. Id. at 572 n.6.

      This Court granted defendants’ petitions for certification, but we limited

the issues to “whether the [CFA] is applicable to this sale of a custom-built

tow truck and whether the Appellate Division erred by failing to address

whether plaintiff established the elements of a claim under the [CFA].”  233 N.J. 304 (2018);  233 N.J. 323 (2018). We also granted New Jersey

Association for Justice’s (NJAJ) motion for leave to appear as amicus curiae.

                                       II.

                                       A.
                                        1.
      Dynamic’s argument emphasizes that the purpose of the CFA is to

protect consumers from deceptive business practices that injure the public at

large and, therefore, not all transactions are covered by the Act. Whether the

CFA applies depends on the nature of the transaction and whether the goods at

                                        8
issue were “offered” “to the public for sale” as stated in  N.J.S.A. 56:8-1(c).

Further, according to Dynamic, the Appellate Division misinterpreted Finderne

and Princeton Healthcare by suggesting that the holdings rested on the

complexity of the goods rather than the level of sophistication between the

companies and the length of negotiations between the parties.

      Dynamic’s argument is essentially that the CFA does not apply to

transactions concerning custom-made goods designed specifically to meet the

purchaser’s particular needs. To determine whether a product constitutes

merchandise available “to the public for sale” in a setting such as here,

Dynamic suggested that the Court adopt a fact-sensitive test. Focusing on the

facts that it urges as pivotal in such an analysis, Dynamic asserts that the

“International” brand truck with the Dynamic 801 model tow rig was not

advertised or offered by Dynamic to anyone, especially not to the general

public. Dynamic also emphasizes that BCI and ATW had months-long

negotiations and that ATW is sophisticated and experienced within the towing

industry.

                                        2.
      Petitioning separately, BCI similarly asserts that the tow truck was not

available to the public for sale and that the Appellate Division erred in

interpreting Finderne and Princeton Healthcare as focusing on complexity.



                                        9
BCI asserts that the CFA has limited application in a commercial setting.

Relying on Princeton Healthcare in particular, BCI argues that a months-long

negotiated contract between sophisticated corporate entities does not fall

within the CFA.

      BCI further argues that the Appellate Division should have reviewed

whether plaintiffs satisfied the elements of a CFA claim. In the event that this

Court determines that the transaction fits within the CFA’s definition of

“merchandise,” BCI asks us to dismiss plaintiff’s claim on the basis that

plaintiffs have not established all essential elements of a CFA cause of action.

                                       B.
      Plaintiffs maintain that the CFA is remedial legislation to be construed

broadly to protect consumers. They assert that case law recognizes that the

CFA applies to custom-made products and that it has been applied to

commercial transactions involving goods and services not mass marketed to

the public. Their arguments rely on the broad terms used in the CFA’s

definition of “merchandise.”

      Plaintiffs distinguish Finderne and Princeton Healthcare on the bases

that they involved a series of complex financial transactions and specially

designed in-house software programming, and the transactions necessitated

assistance and advice from attorneys and consultants. In contrast, in this



                                       10
transaction, no lawyers or intermediaries were involved; plaintiffs dealt

directly with defendants. Plaintiffs further argue that modifying a product, or

having a term sheet listing specifications, does not remove a transaction from

the CFA’s purview.

      Plaintiffs maintain that although few members of the public may have an

interest in purchasing a medium-duty tow truck, anyone can purchase this tow

truck. They contend that the tow truck was not a complex product because the

specifications in the contract, although numerous, are similar to specifications

required for purchasing a consumer automobile. Finally, plaintiffs assert that

being knowledgeable about the tow truck business does not make plaintiffs

sophisticated or knowledgeable about the manufacturing of tow trucks.

      Amicus curiae NJAJ supports plaintiffs. NJAJ notes that courts interpret

the CFA broadly to protect consumers and that the CFA applies to transactions

between businesses, pointing to the plain language of the CFA’s definition of

“person.” NJAJ argues that the CFA’s definition of merchandise is not limited

to “off the rack” goods and analogizes the purchase of the tow truck to that of

a typical passenger vehicle that involves many customizing specifications

determined by the purchaser.




                                       11
                                        III.

      The issue in this appeal is whether the customized tow truck in this

transaction fits within the CFA’s definition of “merchandise” in  N.J.S.A.

56:8-1(c). Appellate review of this issue involving statutory construction is de

novo. Cashin v. Bello,  223 N.J. 328, 335 (2015) (citing Perez v. Zagami, LLC,

 218 N.J. 202, 209 (2014)).

      Our interpretive task begins with a review of the statute’s plain

language, DiProspero v. Penn,  183 N.J. 477, 493 (2005) (citing Miah v.

Ahmed,  179 N.J. 511, 520 (2004)), because it is the “best indicator” of

legislative intent, id. at 492.

      The CFA provides that

             [t]he act, use or employment by any person of any
             unconscionable commercial practice, deception, [or]
             fraud, . . . in connection with the sale or advertisement
             of any merchandise . . . , whether or not any person has
             in fact been misled, deceived or damaged thereby, is
             declared to be an unlawful practice[.]

             [ N.J.S.A. 56:8-2 (emphasis added).]

      Our inquiry centers on the meaning of the term “merchandise,” which

the CFA defines.

             The term “merchandise” shall include any objects,
             wares, goods, commodities, services or anything
             offered, directly or indirectly to the public for sale[.]

             [N.J.S.A. 56:8-1(c).]


                                        12
      The Legislature amended the definition of “merchandise” in 1967 to read

as it presently does. L. 1967, c. 301, § 1 (adding the language “or anything

offered, directly or indirectly to the public for sale”). Prior to that amendment,

the CFA defined “merchandise” as “any objects, wares, goods, commodities or

services.” L. 1960, c. 39, § 1. We view the amending language as merely

adding more of the same to the definition’s original thrust which was always

concerned with items offered to the public for sale.

      When originally enacted, the CFA outlawed use of “fraudulent practices

in the marketplace” to deter sharp practices and dealings in the marketing of

merchandise. Furst,  182 N.J. at 11 (citing Cox,  138 N.J. at 21). The Act’s

focus, thus, was on State enforcement and regulation of activities by merchants

interacting with the public. It seems apparent that the initial wording of the

“merchandise” definition enumerated categories of items capable of being

marketed to the public and about which the consuming public could be

defrauded or deceived.

      We give words their plain meaning and apply the statutory language

sensibly. Bosland v. Warnock Dodge, Inc.,  197 N.J. 543, 553 (2009). The

1967 amendment adding to the definition of merchandise was plainly

consistent with the earlier language. Protection of the consuming public from

fraud and deception by merchants, advertisers, and their like remained the

                                        13
CFA’s focus in 1967. The new language simply expanded the definition of

merchandise by adding to the classes of items previously listed “anything” that

is offered to the public for sale through indirect as well as direct means. The

parties’ arguments seemingly acknowledge that to be protected by the CFA,

merchandise must be offered to the public for sale, so we need not belabor the

point.

         The CFA’s history has been “one of constant expansion of consumer

protection.” Gennari v. Weichert Co. Realtors,  148 N.J. 582, 604 (1997). The

CFA’s reach presently protects the public even when a merchant acts in good

faith. Cox,  138 N.J. at 16. In 1971, the Attorney General’s powers, which

already included the power to prosecute and to regulate fraudulent and

unlawful activities under the CFA, were broadened; the prohibition against

unconscionable commercial practices was added; and the Act began to allow

for private causes of action. Cox,  138 N.J. at 15.

         In light of the Act’s original remedial purpose and its subsequent and

continuous expansion by the Legislature, courts have consistently recognized

that the CFA must be liberally construed. Furst,  182 N.J. at 11-12 (citing Cox,

 138 N.J. at 15-16) (“The [CFA] is remedial legislation that we construe

liberally to accomplish its broad purpose of safeguarding the public.”). Thus,

it is with such an eye that we turn to examine the transaction at issue to


                                         14
determine whether the custom-built tow truck with a rig is the type of

merchandise offered to the public that the CFA means to cover.

      We do so against a backdrop of decided cases that have touched on the

definition of merchandise and the import of “offered to the public for sale” as

applied in various factual settings. We address the cases that are most

pertinent to our inquiry.

                                       IV.

                                        A.

      First, it is well established that the CFA is applicable to commercial

transactions. See, e.g., Coastal Grp., Inc. v. Dryvit Sys., Inc.,  274 N.J. Super.
 171, 175, 179-80 (App. Div. 1994) (holding that trial court erred when it

dismissed CFA claim on the ground that “one commercial entity may not

recover in tort for economic losses allegedly caused by a product purchased

from another commercial entity”); Hundred E. Credit Corp. v. Eric Schuster

Corp.,  212 N.J. Super. 350, 355 (App. Div. 1986) (same); D’Ercole Sales,  206 N.J. Super. at 23 (same). Indeed, as the amicus rightfully points out, the

definition of “person” includes business entities such as a “partnership,

corporation, company . . . , business entity or association,”  N.J.S.A. 56:8-1(d),

and the word “person,” as used in  N.J.S.A. 56:8-2, refers to not only the

person who engages in an unconscionable commercial practice, fraud, or



                                        15
deception, but also the person who is the victim of such practice,  N.J.S.A.

56:8-2 (referencing practice as unlawful “whether or not any person has in fact

been misled, deceived or damaged thereby”).

      Plainly, however, context is important. We do not suggest that all

business-to-business transactions automatically fit the intendment of a sale

offered to the public. Here we need not plumb such limits because plaintiffs,

as interested members of the public, were purchasing the tow truck with rig for

their own use. It is not disqualifying that their use was that of a small business

desirous of being able to engage in a wider range of towing activity. The nub

of the issue here focuses on the good in question.

      Second, as did the appellate panel that considered this matter, we note

that several cases have already recognized that the CFA may apply to custom-

made goods. Although the principle can trace back to the customized goods

and services at issue in Cox, in Czar, Inc. v. Heath, this Court more recently

was called on to determine “whether a contractor hired by a homeowner to

design and install a kitchen,” including building and installing custom kitchen

cabinets, was subject to the CFA.  198 N.J. 195, 197 (2009). The plaintiff in

Heath “argue[d] that the CFA . . . [does] not afford defendants a remedy

because plaintiff’s work was part of the building of defendants’ new home”

and thus the claim was subsumed by a separate cause of action. Id. at 200.


                                       16
That was not a winning argument. This Court ultimately determined that the

CFA can apply to the building and installation of custom kitchen cabinets. Id.

at 209-10.

      Consistent with this Court’s reasoning, the Appellate Division similarly

has rejected arguments premised on customization of an item, which have been

asserted to remove a transaction from the CFA’s reach.

      In Sprenger v. Trout, the plaintiffs asserted a CFA claim related to the

defendants’ custom auto repair work.  375 N.J. Super. 120, 128 (App. Div.

2005). The defendants argued that because the vehicle was not subject to

motor vehicle registration requirements, the CFA and automotive repair

regulations did not apply to the customized labor. Id. at 128-29. The court

disagreed and held that the “business of customizing and refabricating

automobiles falls within the provisions of the CFA.” Id. at 134; cf. D’Ercole

Sales, Inc.,  206 N.J. Super. at 15, 31 (involving custom-built tow truck where,

ultimately, the court determined the CFA did not apply based not on the

customization but on the plaintiff’s failure to demonstrate “unconscionable

commercial practice”). Similarly, in Perth Amboy Iron Works, Inc. v.

American Home Assurance Co., the plaintiffs ordered a yacht manufactured by

the defendant but with a custom modification to the engine.  226 N.J. Super.
 200, 204-05 (App. Div. 1988), aff’d,  118 N.J. 249 (1990). The defendant


                                       17
company that sold the yacht was not the company that constructed the engine.

Id. at 205. In a footnote, the panel stated that “[t]he trial judge apparently

rejected the consumer fraud claim . . . because the sale of the . . . engines . . .

was not a 'mass distribution’ problem . . . . That determination is too

restrictive a reading of [the case law].” Id. at 207 n.5. The panel’s holding

incorporated a conclusion that the CFA applied to the transaction. Id. at 211.

      Thus, neither the commercial setting of a transaction nor a customization

of an item removes a transaction from the CFA’s reach. However, a more

nuanced assessment can be required to determine whether a transaction, good,

or service is of the type offered to the public, bringing it within the CFA.

      For that reason, the defendants rely heavily on Finderne and Princeton

Healthcare to support their contention that the CFA should not apply in this

case. We review them next.

                                         B.

      In Finderne, the plaintiffs’ CFA claim involved its participation, at

defendants’ recommendation, in “a tax-deductible vehicle to fund pre-

retirement death benefits for owner-employees.”  402 N.J. Super. at 553.

Although defendants asserted a number of bases for finding the CFA

inapplicable in their business-to-business transaction, the Appellate Division

“reject[ed] defendants’ suggestion that because a corporation participated in



                                         18
[the transaction], the CFA does not apply.” Id. at 569. The court noted that it

is the “character of the transaction, not the identity of the purchaser, which

determines whether the CFA is applicable.” Id. at 570. The court did

ultimately hold that the CFA was inapplicable but cited a number of fact-

specific reasons. Id. at 554-57, 571-73. First, the court stated that the contract

included a “sixty-page disclosure document” and recommendations to consult

tax attorneys. Id. at 571-72. Additionally, the court determined that rather

than one transaction, it was a series of “very complex” transactions, which

took place over the course of years. Id. at 554-57, 571. The court observed

that the plaintiffs were not “unsophisticated buyers” but rather were informed

through advice from an accountant and an attorney. Id. at 571-72. Viewed in

its entirety, the court held that the transaction did not fit within the CFA

because the service was not “of the type sold to the general public.” Id. at 570,

572-73.

      The transaction in Princeton Healthcare began with the plaintiff, a

hospital and healthcare provider, distributing a request for proposals to

upgrade their complex computer software system.  422 N.J. Super. at 469. The

defendant “submitted a 149-page response to this request” and, after a “lengthy

process of evaluation” and negotiations, which included “[the plaintiff’s]

computer consultant, . . . and its legal counsel,” the parties entered into an


                                        19
agreement. Id. at 469-70. The Appellate Division explained in its decision

that “'the public,’ as used in [the] definition of 'merchandise,’ refers to 'the

public at large.’” Id. at 473 (citing Finderne,  402 N.J. Super. at 570). The

panel reasoned that the transaction at issue was not protected under the CFA

because it “did not constitute a simple purchase of computer software sold to

the public at large.” Id. at 473. The court noted that the transaction began

with “a request for proposals” followed by “a more than two-year process of

evaluation” and negotiation and that the contract provided for “the design of a

custom-made program to satisfy [plaintiff’s] unique needs.” Id. at 473-74.

The panel concluded that “[t]his kind of heavily negotiated contract between

two sophisticated corporate entities does not constitute a 'sale of merchandise’

within the intent of the CFA.” Id. at 474 (citing Finderne,  402 N.J. Super. at
 570-73).

      As Finderne and Princeton Healthcare demonstrate, courts have

examined with care the nature of the transaction when customized products

and commercial entities are involved in a private individual CFA claim.

                                        C.

      In our examination of the matter at hand, the applicability of the CFA

does not turn on whether the public at large purchases International trucks onto

which a Dynamic 801 tow unit is installed. What is relevant is that a member



                                        20
of the public could, if inclined, purchase an operational tow truck consisting of

a Dynamic 801 tow body installed onto an International chassis. It is

consistent with the intent of the CFA to protect consumers regardless of the

popularity of the product or service sold or advertised. To promote

consistency in the application of the requirement that a product be offered to

the public when evaluating a private individual CFA action, we hold that the

availability requirement can be met by showing that any member of the public

could purchase the product or service, if willing and able, regardless of

whether such a purchase is popular.

      We reject defendants’ characterization of Princeton Healthcare and

Finderne as having placed “limitations on the application of the [CFA] in

business-to-business transactions.” The transactions at issue in those cases

were between two businesses; however, it was the nature of the transaction

between the two business entities that precluded CFA protection. See

Princeton Healthcare,  422 N.J. Super. at 473-74; Finderne,  402 N.J. Super. at
 570-73. Moreover, defendants conflate “complexity” with “customization.” A

product or service can be customized without being “complex.”

      In business-to-business transactions it is the “nature of the transaction”

that will determine whether it can fit within the CFA’s definition of

“merchandise.” See D’Agostino v. Maldonado,  216 N.J. 168, 187 (2013). To


                                       21
promote consistency in assessing the nature of a transaction in a business-to-

business setting for purposes of determining whether the CFA will apply to the

merchandise, we adopt the following considerations for use by the courts: (1)

the complexity of the transaction, taking into account any negotiation, bidding,

or request for proposals process; (2) the identity and sophistication of the

parties, which includes whether the parties received legal or expert assistance

in the development or execution of the transaction; (3) the nature of the

relationship between the parties and whether there was any relevant underlying

understanding or prior transactions between the parties; and, as previously

noted, (4) the public availability of the subject merchandise.

      Applying those principles in the instant matter, we hold that the

customization of the tow truck with rig does not remove the product from the

CFA’s definition of “merchandise.” Simply because identically customized

tow trucks are not typically sold to the “public at large” does not mean the

trucks are not offered “to the public for sale.” Here it was a direct consumer

purchase transaction; no attorneys or other experts were involved. Similarly, it

is irrelevant that the “public at large” does not purchase International trucks

onto which a Dynamic 801 tow unit is installed. The relevant point is that a

member of the public so inclined could purchase an operational tow truck

consisting of a Dynamic 801 tow body installed onto an International chassis.


                                        22
It is consistent with the remedial purposes of the CFA to protect consumers

regardless of the popularity of the product or service sold or advertised.

      In conclusion, we agree with the holding of the Appellate Division that

reversed the grant of summary judgment to defendants on the basis that this

transaction did not satisfy the definition of “merchandise” under the CFA. We

further agree with the judgment of the Appellate Division that remanded this

matter to the trial court for consideration of the remaining summary judgment

arguments advanced by defendants.

                                       V.

      The judgment of the Appellate Division is affirmed and the matter is

remanded to the trial court for further proceedings.



       CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-
VINA, SOLOMON, and TIMPONE join in JUSTICE LaVECCHIA’s opinion.
Justice ALBIN did not participate.




                                       23