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Unfair and Deceptive Acts and Practices: 11.4.2.1a.1 Overview

In addition to injury requirements imposed by the UDAP statute, which are discussed in the subsections that follow, suits filed in federal court must meet Article III standing requirements. The Supreme Court has interpreted Article III’s “case or controversy” requirement to give federal courts jurisdiction over a case only if the plaintiff has:

Unfair and Deceptive Acts and Practices: 12.2.2 Private Cause of Action Issues in Delaware

One of Delaware’s two UDAP statutes, the Deceptive Trade Practices Act,44 explicitly provides a private injunctive remedy and treble damages, but the Delaware Supreme Court has held that these remedies are not available to retail consumers, but only to plaintiffs who have a business or trade interest at stake.45 However, it appears that older or disabled consumers may have a private cause of action for violation of this statute.46

Unfair and Deceptive Acts and Practices: 12.2.3 Private Cause of Action Issues in Hawaii

In 1999, the Hawaii Supreme Court interpreted its UDAP statute as allowing a private cause of action for consumer claims of unfair and deceptive practices, but not for anti-competitive conduct.50 A 2002 legislative amendment overruled this decision, allowing consumers to bring UDAP claims for violation of both prohibitions.51 A consumer can base a UDAP claim on violation of another statute even if enforcement of that statute is committed to a state official.52

Unfair and Deceptive Acts and Practices: 12.2.7.2 Implied Causes of Action in Iowa

The substantive violations for which Iowa added an explicit private cause of action in 2009 are somewhat narrower than those in the general UDAP statute, and the private cause of action is not available against certain major entities, including banks, many other lenders, insurance companies, and many licensed professionals.83 For claims that fall in these gaps, it is important to analyze whether a private cause of action can be implied or found in other statutes.

Unfair and Deceptive Acts and Practices: 12.2.8.2 Relief Available Under UDTPA-Type Statutes

Statutes modeled after the UDTPA typically do not provide a private damage remedy, but only injunctive relief and attorney fees.97 Some may also allow rescission.98 Nevertheless, they are sometimes useful in that their scope may be broader than the state’s other UDAP statute, or their remedy of attorney fees (typically, attorney fees “may” be awarded in exceptional cases) and injunctive relief may be attractive.

Unfair and Deceptive Acts and Practices: 12.3.2.1 How Are Direct Damages Calculated: Out of Pocket, Loss of Bargain, or Cost to Repair?

UDAP statutes should be liberally construed to authorize the broadest damage remedy possible.100 Because of UDAP statutes’ remedial purpose, common law principles limiting damages between merchants are often inappropriate.101 Just as courts fashioned different rules of damages for different types of contract, equity and tort actions, they should fashion new remedial rules of damages under UDAP statutes allowing recovery of “actual” damages or “restitution.” UDAP awards should not be limited to c

Unfair and Deceptive Acts and Practices: 12.3.2.2 Loss-of-Bargain Damages

Normally, loss-of-bargain damages are more than out-of-pocket damages. For example, consider a seller’s claim that a product priced at $100 is really worth $200. If the product is actually worth $50, loss-of-bargain damages are $150 and out-of-pocket damages are $50. Since loss of the bargain is the standard measure of damages for contracts, it would be anomalous to use a lesser standard for an award under a consumer protection statute.120

Unfair and Deceptive Acts and Practices: 12.3.2.3 Cost-to-Repair Damages

Often, the consumer’s best option is to receive damages based on the cost to repair the purchased item.134 Such cost-to-repair damages are measured as the cost of making the repairs, not just the diminished value of the property left in an unrepaired state.135 Damages are the amount necessary to repair property to meet the seller’s representations.136 For example, damages for failure to complete a contract are the cost of properly fulfilling the co