Consumer Law Flashcards
TX Deceptive Trade Practices Act: Construction, Application and Waiver
DTPA shall be liberally construed and applied to promote its underlying purposes which are to “protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty and to provide efficient and economical procedures to secure such protection.”
DTPA: Waiver
Waiver is generally void and unenforceable. Act may only be waived if:
- Waiver is in writing and signed by consumer
- Consumer is not in a significantly disparate bargaining position, and
- Consumer is represented by legal counsel in seeking or acquiring the goods or services
DTPA: Applicability
Applies to an entity who seeks or acquires by purchase or lease, any goods or services
Does not include a business consumer with assets of $25 million or more, or one owned by a corporation or entity with assets of $25 million or more
Who is a consumer?
An entity is a consumer if it seeks in good faith to purchase goods or services.
Does not require transfer of consideration.
When does a consumer acquire goods or services?
Any purchaser acquires, as does any intended beneficiary.
No contractual relationship with seller required
Incidental beneficiaries do not acquire
What is considered a purchase or lease?
Goods must be sought to be acquired by purchase or lease.
Truly free services not subject to DTPA, but purchase is broadly defined and consumer doesn’t have to be the one who pays
Test: Did person claiming to be consumer acquire goods or services by a purchase?
What are goods or services?
Defined by the act.
Goods - Tangible chattels or real property purchased or leased for use (excludes money and intangibles)
Inventory purchased for resale are goods
Services - Work, labor, or service purchased or leased for use, including services furnished in connection with the sale or repair of goods (excludes pure loan, unless loan was essential part of transaction from consumer’s perspective)
DTPA Exemptions
- Business Consumers - generally covered, but BCs with assets greater than $25 million are not. Defendant has burden to prove the business consumer exception as an affirmative defense
- Statutory Exemptions
- 1995 Exemptions
a) Professional Services - Based on the rendering of a professional service, the essence of which is the providing of advice, judgment, opinion, or similar professional skill (e.g., lawyers, accountants, doctors, and engineers)
b) Personal Injury - Claims not specifically provided for under 1750 (b) or (h)
* all damages arising out of personal injury recoverable under 1750(h) for violation of a tie-in statute*
- Large Transactions - Signed, written contract worth more than $100,000 (consumer needs atty, does not apply to residence
- Transactions, projects, or sets of transactions relating to the same project involving more than $500,000 (does not apply to residence)
Exceptions to DTPA Professional Exemption
- Express misrepresentation of material fact
- Failure to disclose information in violation of 1746(b)(24)
- Unconscionable action or course of action
- Breach of an express warranty
Who may be sued?
Immediate Parties - Those that deal directly with consumer
Remote Parties - Conduct must be in connection with consumer’s transaction
No privity required.
Ask: Did misrepresentation directly reach consumer?
Claims Under the DTPA
Four claims, but only a single recovery
- Use of a false, misleading, or deceptive act or practice that is a) Specifically enumerated in the Laundry List; and b) relied upon by the consumer to the consumer’s detriment
- Breach of an express or implied warranty
- Any unconscionable action or course of action
- Use or employment of an act or practice in violation of Ch. 541 of Ins. Code
The Laundry List
List of more than 30 acts deemed to be false, deceptive, or misleading under the DTPA. Most common include:
- General misrepresentations
- Misrepresentations about legal rights
- Failure to disclose
No requirement of privity or culpable mental state for misrepresentation unless the subsection requires
Unconscionability
Defined as an act or practice, which to a consumer’s detriment takes advantage of the lack of knowledge, ability, experience, or capacity of the consumer to a grossly unfair degree
Grossly Unfair - Glaringly noticeable, flagrant, complete, unmitigated
No need to show culpable mental state
Breach of Warranty
Any breach of warranty is actionable under the DTPA
Warranties may be disclaimed. Analyze claim as if there is no DTPA. If warranty and no disclaimer or limitation, and a breach, look to DTPA for damages
Consumer may not assert implied warranty claim against remote manufacturer
Common Warranties
- Express and implied warranties under Ch. 2 of Business and Commerce Code
- Implied Warranty of Suitability in Commercial Leaseholds
- Implied Warranty of Good and Workmanlike Performance in Service Contracts (but no implied warranty for professional services)
- Implied Warranty of Good and Workmanlike Performance and habitability in Sale of a New Home
Defenses
Common law defenses do not apply, few statutory defenses
Negation of Producing Cause - May negate causation and damages with broad “as-is” clause
Mediation can be compelled by either party early in suit
Pre-Suit Notice
Pre-Suit Notice
Unless filed as counterclaim, must give written notice 60 days before filing suit. Notice must describe economic damages, damages for mental anguish, an description of complaint
Purpose of notice is to encourage settlement
Remedy for failure to give notice: Abatement
Contents of Settlement
Defendant has 60 days to propose a settlement in kind or reduced to cash value
Must separately state amount of money for consumer’s damages and for reasonable attorney’s fees
Effect of Settlement
If consumer rejects settlement offer, it may be filed with the court with an affidavit certifying its rejection
Rejection of a reasonable settlement offer limits a consumer’s recovery of damages. If the court finds that the defendant’s settlement offer is the same, substantially the same, or more thanthe damages found by the trier of fact, the consumer’s damages are limited to the lesser of the amount of damages offered in the settlement or the amount found by the trier of fact.
Rejecting reasonable settlement offer also precludes punitive damages and limits attorney’s fees to the amount offered in the settlement
Discovery Rule
Action under DTPA must be commenced within 2 years after the date on which the practice occurred or the consumer discovered (or should have discovered) the occurrence of the false, misleading, or deceptive act or practice (Usually date of injury)
Producing Cause
An efficient, exciting, or contributing cause, which in a natural sequence, produced injuries or damages complained of
Must be substantial factor
Lowest causation standard
Damages
General damages standard - Economic Damages
If defendant acted knowingly (knew or should have known) - Mental Anguish Damages and up to 3x Economic Damages
If defendant acted intentionally - Up to 3x Mental Anguish Damages and up to 3x Economic Damages
Mental Anguish Standard of Proof
Substantial disruption in daily routine and a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger
If asked what civil remedies add:
“in an appropriate case, the consumer may also recover equitable and injunctive relief
DTPA Attorney’s Fees
Mandated for defendant when suit was groundless or brought in bad faith or for the purpose of harrassment
Mandated for prevailing consumer (amount discretionary)
In TX, must be $ amount on an hourly basis
Actual Damages
Post-1995, actual damages may be recovered through a tie-in statute or at common law
Tie-In Statutes
Statutes into which the DTPA’s provisions are incorporated by making a violation of that statute a violation of the DTPA
Federal Debt Collection Act
Only discuss if asked what claims are available in a debt collection context
Applies to someone collecting a debt on behalf of a third party, including attorneys who regularly collect debts
Prohibited Communication with Debtor
Time and Place - Can’t call before 8am or after 9pm
Represented by Attorney - Without attorney consent
Place of Employment - Once collecter knows employer prohibits calls
Communication with third parties, except to locate consumer
Validation of Debts
Must tell consumer he has 30 days to dispute the debt. If disputed, collector must stop efforts until debt is verified
Prohibited Conduct
- Harassment or abuse
- False or misleading representations
- Unfair or unconscionable practices
Liability under FDCPA
Action can be brought through private cause of action or administratively
1-year statute of limitations
Recovery limited to actual damages plus up to $1,000
Court may award plaintiff’s attorney’s fees if successful. Defendant must show bad faith or purposes of harassment for attorney’s fees
State Debt Collection
Texas Debt Collection Act (Ties in to DTPA)
Egregious, wrongful debt collection is a tort with all tort damages
Consumers and Debt Collectors under TDCA
Debt Collector - Anyone, including a lawyer or creditor, collecting a consumer debt
Consumer - An individual who has a consumer debt
TDCA Prohibited Conduct
List is exclusive
- Threats or coercion
- Harassment and abuse
- Unfair or unconscionable conduct
- Fraudulent, deceptive, or misleading representations
TDCA Remedies
- Actual damages
- Injunctive relief
- Attorney’s fees
- Minimum recovery of not less than $100 per violation
- Relevant remedies under TDTPA and other laws
Major Benefit of Bringing a Claim Under Tie-In Statute
Damages are measured by the actual damages standard
If DTPA claim is based on a tie-in statute, damages standard is actual damages and up to 3x if knowingly
3 Separate Claims for Tie-In Statutes
- Tie-in statute by itself
- DTPA by itself
- DTPA Tie-in (“under the DTPA based on the tie-in provision”)
Chapter 541
Protects against unfair and deceptive acts or practices in the business of insurance (basically, DTPA for insurance)
Ties in to DTPA
Prohibits misrepresentation by agents or companies and protects insurance companies from anti-competitive practices (e.g., defaming a competitor, trading off another’s name)
Prohibits unfair settlement practices (e.g., failing to attempt in good faith to initiate a prompt, fair, and equitable settlement, once liability is reasonably clear)
4 Claims under Ch. 541
- Pure DTPA claim
- Pure Ch. 541 claim
- DTPA violation based on violation of insurance code
- Insurance code violation based on violation of DTPA
Ch. 541 Provisions Different from DTPA
Scope - Covers all persons, not just consumers
Remedies - Actual damages
Ch. 541 Provisions the Same as DTPA
Actual damages defined, P’s attorney’s fees, D’s attorney’s fees, Limitations (2 yr.), Notice, Remedy for Failure to give notice, Settlement, Contents of Settlement, Effect of Settlement, Mediation
Prompt Payment of Insurance Claims (Ch. 542)
Acceptance or Rejection - 15 days
Unable to accept or reject - Can extend up to 45 days
Failure to accept or reject - Subject to penalty
Payment of claims - 5 days or subject to penalty
Penalty of 18% plus attorney’s fees
Ch. 542 Common Law Duty of Good Faith
Insurer has duty to exercise good faith and fair dealing with respect to the insured
Same standard as statutory good faith but in tort and subject to all tort damages
Stowers Doctrine
Insurer has duty to settle within policy limits when liability is reasonably clear and claimant offers to settle
Wrongful refusal to settle entitles plaintiff to recovery of all damages, even in excess of policy limits (inc.extra-contractual, statutory, punitive, and treble damages)
Special Rules for Disaster Claims
Applies to real property claim arising by forces of nature under the insurance code and DTPA
P must allow inspection of property when D requests to do so at a reasonable time and in a reasonable manner
Disaster Claims - Notice
Must give written notice 61 days before filing suit
State facts giving rise to claim
Amount of damages and attorney’s fees
Must send copy to client
Can do this along with DTPA or insurance code notice
