Consumer Law Flashcards
How should the DTPA be construed?
The DTPA shall be construed liberally & applied to promote its underlying purposes which are to protect consumers against false, misleading, & deceptive business practices & generally cannot be waived.
Who is a proper party under the DTPA?
Only a consumer is a proper plaintiff in a DTPA action. A consumer is any entity who seeks or acquires by purchase or lease, any goods or services, except that the term does not include a business consumer that has assets of $25 million or more.
What is the test for consumer status of a person that did not purchase goods or services?
Whether there was a good faith intent to purchase & the ability to purchase.
When can a third party be a consumer?
When a third party is an intended beneficiary, they acquired the item. When they are an incidental beneficiary, they did not.
What does goods & services include for the DTPA?
It includes all goods & services, even real estate. It does not include money or intangibles. It may include money (“pure loan”) if it is an essential part of a transaction for goods.
What are the exceptions to DTPA liability?
Business consumers, large transactions [not for homes; $100k+ if C had a L & signed the K; $500k +], newspaper advertisements published w/out knowledge, professional services, & PI (but not really)
Explain the professional service exemption to DTPA.
Nothing in the DTPA shall apply to a claim for damages based on the rendering of a professional service, the essence of which is the providing of advice, judgment, opinion, or similar professional skill. The test is what is the essence of the service provided. Even a professional service is subject to the DTPA for material misrepresentation, a failure to disclose information, or an unconscionable action that cannot be characterized as advice, judgment or opinion.
Are personal injury damages recoverable under the DTPA?
Only under the general damage provision of 17.50(b) or the actual damage standard for tie-in statutes under 17.50(h).
Explain the large transaction exception to the DTPA:
The DTPA does not apply to a claim arising out of a written K if the K relates to a transaction, project, or set of transactions related to the same project involving consideration by the consumer of more than $100k. The consumer must be represented by an attorney & the K must not be for a home. If the transaction is for more than $500k DTPA does not apply except for the sale of residence.
Who may be sued under DTPA?
A consumer may sue anyone who violates the act; but the act complained of must occur “in connection with” a consumer transaction. There is no privity requirement. The test is whether the misrepresentation reached the consumer.
What 4 claims are available under the DTPA?
1 – the use by a person of false, misleading or deceptive practice that is on the laundry list, & relied on to the consumer’s detriment.
2 – Breach of an express or implied warranty;
3 – any unconscionable action or course of action by any person; or
4 – an act or practice that violates ch. 541 of Ins. Code. These acts must be a producing cause of mental anguish or economic damages.
In general what types of acts are on the laundry list?
General misrepresentations, misrepresentations about legal rights, & failure to disclose. There is no requirement for knowledge or intent unless the DTPA requires it.
What is the definition of DTPA unconscionability?
An act or practice, which to the consumer’s detriment, takes advantage of the lack of knowledge, ability or experience or capacity to a grossly unfair degree determined at the time of transaction.
Give examples of implied warranties that may give rise to a DTPA action:
UCC warranties, implied warranty of suitability in commercial leaseholds; Implied warranty of good & workmanlike performance; Implied warranty of habitability
What defenses are available in a DTPA action?
Negation of producing cause, mediation/arbitration clause, & statute of limitations (2 years).
