PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 18-1062

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SUN CHEMICAL CORPORATION,

Appellant

v.

FIKE CORPORATION;

SUPPRESSION SYSTEMS INCORPORATED

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Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 2-13-cv-04069)

District Judge: Honorable John M. Vazquez

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Argued January 8, 2019

Before: AMBRO, KRAUSE, and FUENTES, Circuit Judges

(Dated November 27, 2020)
2

Jeffrey A. Beer, Jr., Esquire

Lance J. Kalik, Esquire (Argued)

Riker Danzig Scherer Hyland & Perretti

One Speedwell Avenue

Headquarters Plaza

Morristown, NJ 07962

Counsel for Appellant

Gino P. Mecoli, Esquire (Argued)

Suzanne I. Turpin, Esquire

Reilly Janiczek McDevitt Henrich & Cholden

3 Executive Campus, Suite 310

Cherry Hill, NJ 08002

Counsel for Appellees

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OPINION OF THE COURT

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AMBRO, Circuit Judge

After an explosion at its ink-manufacturing facility, 

appellant Sun Chemical Corporation sued the manufacturer of 

its explosion-suppression system under the New Jersey 

Consumer Fraud Act (“CFA”), N.J. Stat. Ann. § 56:8-1 et seq. 

The District Court granted summary judgment in favor of 

appellees Fike Corporation and Suppression Systems Inc. 

(collectively, “Fike”), holding that (1) Sun’s CFA claims were 

absorbed by the New Jersey Products Liability Act (“PLA”), 

N.J. Stat. Ann. § 2A:58C-1 et seq., and (2) Sun could not prove 
3

that Fike’s allegedly fraudulent conduct caused any of its 

damages. Sun Chem. Corp. v. Fike Corp., No. 13-4069, 2017 

WL 6316644 (D.N.J. Dec. 11, 2017) (“Sun I”). On appeal, we 

certified the PLA-absorption issue to the New Jersey Supreme 

Court. Sun Chem. Corp. v. Fike Corp., No. 18-1062, 2019 WL 

9525200 (3d Cir. Apr. 18, 2019).

We now hold, consistent with the New Jersey Supreme 

Court’s opinion, that some of Sun’s CFA claims are absorbed

by the PLA and some are not. As to Sun’s remaining CFA 

claims, we conclude that Sun demonstrated a genuine issue of 

material fact on most of those claims. We therefore affirm in 

part and reverse in part the judgment of the District Court and 

remand for further proceedings.

I. BACKGROUND

For nearly a century, Sun and its predecessors have 

made black news ink at a manufacturing facility in East 

Rutherford, New Jersey. In 2012, Sun purchased a dustcollection system that filtered the facility’s air for flammable 

particles produced in the ink-production process. The 

collection system included a Fike suppression system designed 

to contain any explosions in case of a fire in the collection 

system. Sun and Fike communicated many times about the 

various features of the suppression system before Sun made the 

purchase. It initially requested a mechanical suppression 

system using vents but ultimately purchased Fike’s chemical 

explosion-suppression system after discussing the options with 

a Fike representative.

On the first day the system was fully operational, the 

dust-collection system caught fire. The suppression system 
4

activated an alarm. Though nearby workers did not hear it, 

they did see a small fire near one of the ducts for the dustcollection system. Shortly after workers extinguished the fire, 

an explosion sent flames out of the dust-collector system’s 

ducts. It severely injured several Sun employees and caused 

significant property damage to the facility. The explosion also 

triggered government investigations and ultimately caused Sun 

to end its black-ink production at the East Rutherford facility. 

Sun sued Fike under the CFA in federal District Court, 

alleging that Fike misrepresented various aspects of the 

suppression system in its pre-purchase conversations with Sun. 

Specifically, Sun complains Fike misrepresented that: (1) the 

suppression-system alarm would be audible;1(2) the 

suppression system would comply with a specific industry 

standard, “FM 5700,” that required, among other things, two 

pressure detectors; (3) Fike would provide training to Sun 

employees; (4) the suppression system had never experienced 

any failures in the field; and (5) the system was capable of 

preventing an explosion from entering the facility. Based on 

these misrepresentations, Sun contends Fike is liable for all 

injuries and property damage from the explosion, increased 

1 On appeal, Sun also argues that Fike misrepresented that its 

alarm system would be integrated with the Sun facility’s firealarm system. But Sun did not make this assertion before the 

District Court, so the argument is forfeited. Cf. Tri-M Grp., 

LLC v. Sharp, 638 F.3d 406, 416 (3d Cir. 2011) (“It is 

axiomatic that arguments asserted for the first time on appeal 

are deemed to be waived and consequently are not susceptible 

to review in this Court absent exceptional circumstances.” 

(quoting United States v. Petersen, 622 F.3d 196, 202 n.4 (3d 

Cir. 2010)) (internal quotations omitted)).
5

distribution and labor costs from the closed facility, expenses 

incurred by the government investigations, litigation costs and 

fees, and treble damages. 

After the close of discovery, the parties filed crossmotions for summary judgment. The District Court denied 

Sun’s motion and granted Fike’s. It held that Sun failed to 

demonstrate how most of Fike’s alleged misrepresentations 

caused Sun’s harm. For instance, the Court concluded that 

even if the suppression system had only one pressure detector

and thus did not comply with FM 5700, Sun still had not shown 

how the lack of a second pressure detector caused the explosion 

or any related harm. As to Sun’s remaining claims, the District 

Court held the PLA absorbed Sun’s CFA claim. The Court 

reasoned that, at bottom, Sun was seeking damages because 

various features of the suppression system failed and that 

failure caused personal injury to Sun’s employees. Because

Sun could not “avoid the requirements of the PLA by artfully 

crafting its claims under the CFA,” the Court concluded that

Sun’s CFA claims were entirely absorbed and precluded by the 

PLA. Sun I, 2017 WL 6316644, at *13. Sun appealed to us.

After reading the briefs and submissions of the parties, 

hearing oral argument, and reviewing applicable New Jersey 

law, we certified four questions to the New Jersey Supreme 

Court concerning the interplay between the CFA and the PLA. 

Sun Chem. Corp. v. Fike Corp., No. 18-1062, 2019 WL 

9525200 (3d Cir. Apr. 18, 2019). The Supreme Court

reformulated the questions into a single inquiry and answered 

it unanimously. Sun Chem. Corp. v. Fike Corp., 235 A.3d 145, 

148 (N.J. 2020) (“Sun II”). We now proceed with the benefit 

of the Court’s thoughtful opinion.
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II. ANALYSIS2

A. Absorption Under the PLA

1. The New Jersey Supreme Court 

Opinion

As noted, the New Jersey Supreme Court distilled our 

certified questions down to a single issue, which was “whether 

a Consumer Fraud Act claim [can] be based, in part or 

exclusively, on a claim that also might be actionable under the 

Products Liability Act.” Sun II, 235 A.3d at 148 (alteration in 

original) (internal quotation marks omitted). 

The CFA targets “unlawful sales and advertising 

practices designed to induce customers to purchase 

merchandise or real estate.” Real v. Radir Wheels, Inc., 969 

A.2d 1069, 1075 (N.J. 2009) (quoting Daaleman v. 

Elizabethtown Gas Co., 390 A.2d 566, 568 (N.J. 1978)). Its 

scope is “both wide and deep,” id., as it prohibits “any 

unconscionable commercial practice, deception, fraud, false 

pretense, false promise, misrepresentation, or the knowing[]

concealment, suppression, or omission of any material fact . . . 

in connection with the sale or advertisement of any 

merchandise or real estate,” N.J. Stat. Ann. § 56:8-2. The 

statute has “three main purposes: to compensate the victim for 

2 The District Court had jurisdiction under 28 U.S.C. § 

1332(a), and we have jurisdiction over this appeal pursuant to 

28 U.S.C. § 1291. We review the District Court’s summaryjudgment ruling de novo. Cranbury Brick Yard, LLC v. United 

States, 943 F.3d 701, 708 (3d Cir. 2019).
7

his or her actual loss; to punish the wrongdoer through the 

award of treble damages; and, by way of the counsel fee 

provision, to attract competent counsel to counteract the 

community scourge of fraud.” Lettenmaier v. Lube 

Connection, Inc., 741 A.2d 591, 593 (N.J. 1999) (internal 

citations omitted). The CFA, then, is an expansive remedial 

statute that allows for recovery of damages—as well as treble 

damages, costs, and fees—arising out of a host of 

unconscionable business practices. Sun II, 235 A.3d at 148. 

But damages under the CFA are limited to economic losses. 

Gennari v. Weichert Co. Realtors, 691 A.2d 350, 369 (N.J. 

1997). 

The PLA is more limited in scope: it codifies certain 

“actions for damages for harm caused by products.” N.J. Stat. 

Ann. § 2A:58C-1(a). By its own terms, the PLA does not 

address “all issues related to product liability.” Id. Rather, it

governs products-liability actions based on “manufacturing 

defects, warning defects, and design defects.” Sun II, 235 A.3d

at 153 (internal quotation marks omitted). Under the PLA, a 

“manufacturer or seller of a product” is liable if the product 

“was not reasonably fit, suitable[,] or safe for its intended 

purpose.” N.J. Stat. Ann. § 2A:58C-2. Further, consistent with 

the common-law economic loss rule barring recovery for 

economic losses in a tort action, damages under the PLA are 

limited to purely non-economic losses. Dean v. Barrett 

Homes, Inc., 8 A.3d 766, 777 (N.J. 2010).

Here, in view of these separate statutory frameworks, 

the New Jersey Supreme Court concluded that a plaintiff can

bring a CFA claim based on a course of conduct that might also 

be actionable under the PLA. Sun II, 235 A.3d at 156. The 

CFA and the PLA “target different wrongs, address distinct 
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types of harm, and provide for divergent remedies.” Id. at 148. 

The Court reasoned that 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. Id. at 155. Because the claims would rest on different 

theories of liability and would be premised on different types 

of conduct, the Court held that a plaintiff could maintain both 

causes of action in a single suit. Id.

The Court further clarified that “[h]ow a given claim 

must be pled, in turn, depends on what is at the ‘heart of 

plaintiffs’ case’—the underlying theory of liability.” Id. at 156

(quoting Sinclair v. Merck & Co., 948 A.2d 587, 596 (N.J. 

2008)). The Court rejected Sun’s arguments that sought to 

distinguish CFA and PLA claims based on the nature or source 

of the harm suffered. Id. It acknowledged language in 

previous decisions suggesting that the “essential nature of the

claim[]” determines how a plaintiff must plead a claim. Id.

(alteration in original) (quoting In re Lead Paint Litig., 924 

A.2d 484, 503 (N.J. 2007)). But it declined to endorse that 

standard, explaining that it was “helpful” but not the definitive 

“interpretative guide” to distinguishing the two claims. Id. 

The Court also noted that the nature of the damages sought 

does not determine a claim’s proper characterization. Id. The 

result? “[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.
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2. Application

Here, three of Sun’s claims—regarding the suppression 

system’s compliance with FM 5700’s pressure-sensor 

requirement, the training Fike would provide to Sun 

employees, and the system’s lack of failures in the field—fall

squarely within the New Jersey Supreme Court’s description 

of claims properly pled under the CFA. These claims rest only 

on allegations of “express or affirmative misrepresentations” 

rather than on any “manufacturing, warning, or design defects” 

with the suppression system itself. See id. Put differently, 

these claims are not premised on the allegation that something 

was wrong with the system; rather, the “nature of the action” 

is that the system did not do what Fike promised. See id. 

Sun’s two remaining claims present closer questions. 

First, Sun claims Fike misrepresented that the system’s alarm 

would be audible. Sun alleges, among other things, that Fike 

represented that the system would comply with several 

industry standards that required audible alarms.

3

 In another 

3 The District Court granted summary judgment on this claim 

in part because it concluded that Sun had no evidence of this 

alleged misrepresentation. Sun I, 2017 WL 6316644, at *10. 

According to the Court, Sun did not assert that Fike directly 

represented the alarm would be audible. Id. at *8. Instead, Sun 

claimed that Fike represented that the system would comply 

with industry standard National Fire Protection Association 

(“NFPA”) 69, which governs explosion-prevention systems; 

NFPA 69 incorporates by reference NFPA 72, which governs 

fire alarms; and NFPA 72 requires an audible alarm. Id. The 

District Court concluded, however, that Fike was entitled to 

summary judgment because NFPA 69 did not incorporate the 
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case, this set of facts might set up a claim under the PLA—a 

plaintiff might, for example, plead that the lack of an audible 

alarm was a defect in the system’s design. But we must 

presume that the CFA applies to a covered activity, “even in 

the face of other existing sources of regulation,” unless “a 

direct and unavoidable conflict exists” between the CFA and 

the other regulation. Lemelledo v. Beneficial Mgmt. Corp., 696 

A.2d 546, 554 (N.J. 1997). The CFA will yield only if the other 

regulation “deal[s] specifically, concretely, and pervasively 

with the particular activity,” and “the conflict [is] patent and 

sharp.” Id.

There is no such conflict here. Sun’s “underlying theory 

of liability” as to this claim is not that the suppression system 

was defective. See Sun II, 235 A.3d at 156. Rather, Sun asserts 

that Fike made a specific “affirmative misrepresentation” 

about a specific feature of the system—the audible alarm—and 

the system did not include that feature as promised. See id. 

This feature was not necessary for the product itself to fulfill 

its “intended purpose” under the PLA: for example, the system 

could have successfully suppressed the explosion but not given 

audibility requirements in NFPA 72. Id. at *10. This was 

incorrect. Although the Court expressly acknowledged that 

NFPA 69’s language was “unclear,” it found “unlikely” that 

NFPA 69 incorporated all of NFPA 72’s requirements. Id. at 

*9. But because the language of NFPA 69 is “unclear,” a 

reasonable jury might conclude that Fike did, in fact, 

misrepresent that the alarm would be audible under NFPA 72’s 

standards. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

248 (1986). And because Fike’s alleged misrepresentation is a 

material fact, summary judgment on this issue is not called for. 

See id. 
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an audible alarm. See N.J. Stat. Ann. § 2A:58C-2. In that 

scenario, Sun would still have a claim under the CFA (as long 

as it had economic damages) based on Fike’s alleged 

misrepresentation even though the product itself was not 

defective. The heart of Sun’s claim, then, is not that the 

product did not work. Rather, Sun’s claim is premised on the

underlying theory that Fike broke its promise. The CFA thus

neither directly nor unavoidably conflicts with the PLA as 

applied to that claim, and the presumption in favor of 

preserving a CFA remedy stands. Lemelledo, 696 A.2d at 554.

Sun’s second and final claim, however, is a different 

matter. Sun asserts Fike represented that the suppression 

system had several interrelated capabilities, including

(1) suppressing or decreasing the severity of an explosion, (2) 

preventing an explosion from entering specific parts of the 

facility via connected ducts or piping, and (3) preventing 

“catastrophic destruction” and secondary explosions. Because 

the system failed to do these things, Sun claims Fike 

misrepresented the system’s capabilities. 

But this claim’s “underlying theory of liability” is that

the product did not work. See Sun II, 235 A.3d at 156. The 

heart of Sun’s second claim is that the suppression system was 

not “reasonably fit, suitable[,] or safe” for its “intended 

purpose” of suppressing explosions and preventing

destruction. N.J. Stat. Ann. § 2A:58C-2; see also Lead Paint, 

924 A.2d at 503 (holding that plaintiffs were limited to an 

action under the PLA when the “focus” of the plaintiffs’ claim 

was that lead-containing paint was not safe for its intended use 

in homes and businesses). Unlike with the alarm function, 

there is no scenario in which the suppression system could 

simultaneously perform its intended purpose and still fail to 
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fulfill Fike’s representations on this point. The PLA thus 

“deal[s] specifically, concretely, and pervasively” with this 

“particular activity,” and Sun cannot maintain a claim under 

the CFA for this alleged wrong. Lemelledo, 696 A.2d at 554. 

We therefore affirm the District Court’s grant of 

summary judgment on Sun’s claim concerning 

misrepresentations about the capabilities of the suppression 

system itself. Sun cannot maintain that claim under the CFA

because the core of that cause of action is products liability. 

We conclude, however, that the PLA does not swallow Sun’s 

other misrepresentation claims. We thus turn to the rest of the 

District Court’s summary judgment analysis.

B. Evidence of Causation 

Sun’s remaining CFA claims are based on four alleged 

misrepresentations: (1) the suppression-system alarm would be 

audible; (2) the suppression system would comply with FM 

5700’s pressure-sensor requirements; (3) Fike would provide 

training to Sun employees; and (4) the suppression system had 

never experienced any failures in the field. The District Court 

concluded that, as a matter of law, Sun could not show that any 

of these alleged misrepresentations caused its harm. Sun I, 

2017 WL 6316644, at *6–*11.

We disagree with the Court as to Fike’s representations 

about additional training for Sun employees. To be actionable 

under the CFA, misrepresentations must be “material to the 

transaction” and “made to induce the buyer to make the 

purchase.” Gennari, 691 A.2d at 366 (internal quotation marks

omitted). Implicit in this standard is the requirement that the 

misrepresentations occur before or during the purchase 
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transaction. Here the District Court granted summary 

judgment on Sun’s training claim because Sun purchased the 

suppression system from Fike in May 2012, but it requested

additional training in September 2012. Sun I, 2017 WL 

6316644, at *11. The Court thus concluded that because the 

complained-of misrepresentations did not occur until after Sun 

purchased the suppression system, the misrepresentations 

could not have been “material to the transaction” or made to 

“induce” the purchase. Id. However, Sun has consistently 

argued that Fike represented pre-sale that it would comply with 

industry standard NFPA 69 and that this standard requires 

more detailed training. Sun’s expert also testified that the 

training provided by Fike did not comply with NFPA 69. Thus, 

a reasonable jury might conclude that Fike’s pre-sale 

representations concerning NFPA 69 encompassed 

representations about further training. The District Court thus 

should not have granted summary judgment on this claim.

We also part ways with the District Court as to the other 

three alleged misrepresentations. Its causation analysis 

assumed that Sun had to prove that the misrepresentations 

directly caused the explosion or other immediate, related harm. 

See, e.g., Sun I, 2017 WL 6316644, at *10 (“To prevail, 

Plaintiff would need to show that someone was appropriately 

monitoring the control panel, there was no audible alarm, and 

the lack of alarm caused Plaintiff appreciable loss.”). 

However, the CFA’s causation standard is not so stringent—it 

requires only that the plaintiff show ascertainable loss “as a 

result of” the complained-of conduct. N.J. Stat. Ann. § 56:8-

19. And the complained-of conduct in a CFA case, unlike in a 

products-liability case, is the seller’s pre-sale 

misrepresentations—not the malfunctioning of the product 

itself. Sun II, 235 A.3d at 155. We thus focus our causation 
14

analysis on the harm flowing from the alleged 

misrepresentations.

Here, at a minimum, Sun has demonstrated a fact issue 

as to whether it would have purchased the suppression system 

without Fike’s alleged misrepresentations. Sun initially 

requested a much different type of suppression system but later 

chose the Fike chemical-suppression system on the advice of 

Fike representatives. Fike and Sun also communicated 

extensively about the various features and benefits of the 

suppression system before Sun made its purchase. From this 

evidence, a reasonable jury could conclude that Fike’s alleged 

misrepresentations—individually or collectively—caused Sun 

to purchase the chemical-suppression system. See Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A reasonable 

jury could likewise conclude that the explosion and its related 

harm would not have occurred if Sun had not purchased the 

suppression system. See id. Hence there is a fact issue on

whether Sun suffered harm “as a result of” Fike’s alleged

misrepresentations, and the District Court’s grant of summary 

judgment on that basis is reversed.

Fike makes two final arguments in support of its 

summary judgment motion. First, it asserts it is entitled to 

summary judgment because it did not actually make some of 

the alleged misrepresentations. But, as Fike’s detailed factual 

arguments on this issue demonstrate, there is at least some 

evidence that Fike made each of the remaining complained-of 

representations before the sale and that those representations 

were false. Fike may or may not prevail at trial, but its factual 

arguments belong in front of a jury.
15

Second, Fike cursorily argues that the CFA does not 

apply to the sale of the suppression system because it is not a 

good or service “sold to the public at large.” Fike’s Br. at 53 

(quoting Cetel v. Kirwan Fin. Grp., Inc., 460 F.3d 494, 514 (3d 

Cir. 2006)); see also N.J. Stat. Ann. § 56:8-1(c) (defining 

“merchandise” under the PLA as “any objects, wares, goods, 

commodities, services or anything offered, directly or 

indirectly to the public for sale”). But the New Jersey Supreme 

Court explicitly rejected this narrow view of the CFA in All the 

Way Towing, LLC v. Bucks County International, Inc., 200 

A.3d 398 (N.J. 2019). In that case, the seller of specialized tow 

trucks argued that the trucks were not “merchandise” under the 

CFA because the “public at large” did not purchase the trucks. 

Id. at 408. The Court, however, held that the CFA’s 

applicability “does not turn on whether the public at large 

purchases” the specific good. Id. Rather, the CFA applies as 

long as “a member of the public could, if inclined, purchase” 

that good “regardless of the popularity of the product.” Id.

Here, Sun has at least some evidence that any member 

of the public could, if inclined, purchase Fike’s explosionsuppression system. Sun points to evidence that the system 

was a “standard design.” It also argues that Fike markets its 

products to “customers around the world” via a publicly 

available website. At a minimum, this evidence creates a fact 

issue on whether the suppression system is “merchandise” 

under the CFA, and Fike is not entitled to summary judgment 

on this ground.

* * * * *

In sum, four of Sun’s five CFA misrepresentation 

claims survive summary judgment. The PLA does not 

subsume those claims because they are premised on Fike’s 

affirmative misrepresentations rather than on a deficiency in 
16

the suppression system itself. Sun has also demonstrated that 

a fact issue exists to determine if the complained-of

misrepresentations caused the harm it suffered. We therefore 

conclude that the District Court should not have granted

summary judgment on those claims.

4

Accordingly, we affirm in part and reverse in part the 

judgment of the District Court and remand this case for further 

proceedings consistent with this opinion.

4We note Fike’s assertion that it challenged the sufficiency of 

Sun’s pleadings in a motion to strike before it filed the current 

motion for summary judgment. Fike argues in passing that Sun 

raised new theories of liability on summary judgment that were 

not sufficiently pled in the complaint. The District Court, 

however, granted Fike’s summary judgment motion on the 

merits and dismissed the motion to strike as moot. Sun I, 2017 

WL 6316644, at *15. On remand, Fike may renew its pleading 

challenges if it so chooses and if the District Court does not 

grant Sun leave to amend under Federal Rule of Civil 

Procedure 15(a)(2).