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Unfair and Deceptive Acts and Practices: 2.2.4.1 Solicitations and Unconsummated Offers

A sale need not be completed for liability to attach under a UDAP statute, particularly where statutory language specifically defines a covered consumer transaction to include “solicitations to supply products”807 or applies the statute to someone who “seeks” to purchase goods.808 However, a California court interpreted this language not to apply to a consumer who received an unsolicited spam e-mail advertisement, as they neither purchased nor sought to purchase anything.

Unfair and Deceptive Acts and Practices: 2.2.4.4 Barter and Lease Transactions

A barter transaction, in which something of value other than money is exchanged, should fall within the UDAP definition of “sale” unless the statute specifies that a sale must involve the payment of money.856 In addition, some UDAP statutes define sale to include “transfers” or “other distributions,” making it particularly clear that barter transactions are included.857 New York’s UDAP statute, which applies to “any business, trade, or commerce or . . .

Unfair and Deceptive Acts and Practices: 2.2.4.13 Tort-Like Claims

A shopper injured by a gunman at a mall did not have a UDAP claim against the mall because they had not entered into any consumer transaction with the mall.925 A car buyer’s relative who was verbally abused by a repossession agent could not assert a UDAP claim under Connecticut’s UDAP statute.926 But another court held that a landlord could invoke the Connecticut UDAP statute, which applies broadly to trade or commerce, against a satellite-based television programming company and its contractor

Unfair and Deceptive Acts and Practices: 2.2.4.14 Other Non-Sale Transactions

A court allowed a hospital to assert a UDAP claim against a vendor that supplied defective claim reimbursement software to the state health department, causing delays in reimbursement to the hospital.935 An Arkansas court allowed a physician to proceed with a UDAP claim against a hospital that discharged the physician for refusing to violate the UDAP statute by ordering unnecessary tests for vulnerable patients.936 A son who was induced to deed his share of a home to his mother so she could obta

Unfair and Deceptive Acts and Practices: 2.2.5.1.2 Does real estate sale involve “goods or services”?

Courts are split as to whether real estate is within the scope of a UDAP statute that requires that a transaction involve “goods or services.” Pennsylvania courts hold that real estate sales involve the sale of consumer goods or services, a requirement for its private cause of action.977 Illinois courts have found a legislative intent to include real estate within the UDAP statute’s scope even though a literal reading of the definition of “consumer”—one who purchases goods, services or real estate situated outside the state

Unfair and Deceptive Acts and Practices: 2.2.8.3 Securities Transactions

Whether a UDAP statute applies to securities transactions depends on a number of questions. First, does a security fall within the types of property and rights to which the UDAP statute applies? Second, does the securities transaction meet any requirement in the UDAP statute that the transaction be consumer-oriented or for personal, family, or household use? Third, is there an explicit exclusion for securities transactions? And, finally, even without an explicit exclusion, is the UDAP statute displaced by state securities laws?

Unfair and Deceptive Acts and Practices: 2.3.3.2 UDAP Statutes Exempting Specific Regulated Entities or All “Regulated Practices”

The most restrictive UDAP language excludes specific types of merchants, such as banks, insurance companies, or lawyers. Such language will be given effect.1635 Where “banks” are excluded, this has been held to apply to savings and loan associations.1636 An exclusion for financial institutions was interpreted to exempt not only a financial institution’s loan practices, but also its practices related to a lease.1637

Unfair and Deceptive Acts and Practices: 2.3.11 Other Professionals

Where a state UDAP statute is found to apply to lawyers or doctors, it should also apply to other professionals.2136 Thus a Texas court held that architects and architectural malpractice were covered by the UDAP statute.2137 (However, a statutory amendment five years later exempted those providing professional services from many types of UDAP actions.2138) The converse, of course, may not be true because of the special treatment courts may gi

Unfair and Deceptive Acts and Practices: 2.4.1.3 Donees

A Florida court has found that an intended beneficiary of a gift is a “consumer,” as nothing in the statutory definition of “consumer” limits the term to an immediate purchaser.2166 An Illinois decision agrees that a donee has standing to bring a UDAP claim.2167 But where the UDAP statute is limited to persons who acquire property by purchase or lease, some courts have held it inapplicable to donees.2168 A don

Unfair and Deceptive Acts and Practices: 2.4.1.5 Assignees of Consumers’ Claims; Third-Party Payors

The North Carolina Supreme Court holds that UDAP claims are not assignable.2183 The court reasoned that North Carolina law does not allow the assignment of personal torts, and a UDAP claim is akin to a personal tort.2184 The court was also strongly influenced by a desire to limit mandatory treble damage recoveries to consumers with limited resources and not to make them available to insurance companies and similarly well-financed parties.

Unfair and Deceptive Acts and Practices: 2.4.2 Where Consumer Is Now Deceased

A Texas appellate court has ruled that a claim for treble damages and attorney fees under the UDAP statute action survives the consumer’s death, even though in Texas punitive damages claims are considered personal and do not survive the plaintiff.2216 The court reasoned that the UDAP statute was enacted to expand on the consumer’s rights under contract and tort theories. It would be contrary to the legislative intent to make a UDAP claim more difficult to bring than contract or tort claims, both of which survive the consumer’s death.

Unfair and Deceptive Acts and Practices: 2.4.4.2.1 Analytical framework

UDAP claims by businesses can add significantly to the impact of a business suit.2237 Whether a business can bring a UDAP action will depend on several issues. First, is the UDAP statute limited to “consumer transactions” or sales for “personal, family, or household use”? While the meaning of these terms is subject to various interpretations,2238 most business purchases will be excluded if the statute is so limited.

Unfair and Deceptive Acts and Practices: 2.4.4.2.2 State-specific decisions

A number of states have well-developed case law about the extent to which businesses can bring UDAP claims.2265 A business that sustains damage as a consumer can bring suit under Georgia’s Fair Business Practices Act, which allows any “person” to sue, and defines “person” to include corporations.2266 Businesses can also sue under Georgia’s second UDAP statute, modeled after the Uniform Deceptive Trade Practices Act.2267