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Unfair and Deceptive Acts and Practices: 2.3.1.3 State Insurance Code Displacement of UDAP Applicability

A frequently litigated issue is whether a state UDAP statute applies to insurance practices where those practices are already regulated by the state insurance code, but where the UDAP statute does not explicitly exempt insurance companies. Insurers often argue that the state insurance statute prohibiting unfair and deceptive insurance practices (the UNIP statute)1397 displaces UDAP coverage.

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: 2.3.3.5.3 Courts that reject displacement

Some courts generally reject the view that other regulation displaces a UDAP statute’s applicability, no matter the extensiveness of the alternative regulatory scheme.1789 Thus, Pennsylvania decisions hold that a statute that regulates a particular transaction overrides the state’s UDAP law only if the statute explicitly states that it supplies the exclusive remedy or if the two statutes are in irreconcilable conflict.1790 For example, federal and state banking legislation did not preempt th

Unfair and Deceptive Acts and Practices: 2.3.5.2 Schools

There should be little doubt that a student is a consumer and can bring a UDAP claim against an educational institution unless it is exempt for other reasons.1920 An educational program is a transaction for personal, family, or household use even if it is intended to further the buyer’s professional career.1921 Indeed, it is hard to imagine a transaction that is more “personal” than the acquisition of personal knowledge and skills.1922

Unfair and Deceptive Acts and Practices: 2.3.9.1 Application of UDAP Statutes’ General Scope Provisions

In general, lawyers’ activities in providing legal services can be within the scope of a UDAP statute that applies to practices “in trade or commerce.”2010 Many courts also find that these activities involve a consumer’s purchase of “goods or services.”2011 An out-of-state attorney who purports to provide debt settlement services is a “supplier” subject to the Kansas UDAP statute.2012 An attorney collector is also a “supplier” subject to Utah

Unfair and Deceptive Acts and Practices: 2.3.9.3 Effect of Other Regulation of Attorneys

Another special concern about attorney UDAP coverage is whether the regulation of attorneys by courts or bar associations displaces the UDAP statute. For example, after finding attorneys to be in trade or commerce, the Connecticut Supreme Court still had to determine whether the state judiciary’s pervasive supervision of attorneys prevents application of the UDAP statute to the profession.

Unfair and Deceptive Acts and Practices: 2.3.9.4 Any Exemption Is Limited to the Practice of Law

Even if an attorney’s conduct in providing legal services is not covered by a UDAP statute, other attorney conduct may be covered.2054 It is the lawyer-client relationship that is outside the statute’s scope; there is no blanket immunity from deceptive conduct for those graduating from law school.2055 Coverage is more likely if the attorney is fulfilling more than one role, e.g., is acting not just as a lawyer but also as an investor.2056 Mor

Unfair and Deceptive Acts and Practices: 2.3.9.5 Other Limits on Application of UDAP Statutes to Attorneys

The Massachusetts Supreme Court holds that only the client, or someone acting on the client’s behalf, can assert a UDAP claim against an attorney.2060 Thus, an attorney who prepared a will cannot be subjected to a UDAP claim by relatives that the client excluded from inheritance.2061 On the other hand, the attorney for the administrator of an estate may owe a duty to the heirs akin to that in an attorney-client relationship, and thus be subject to the heirs’ UDAP suit.

Unfair and Deceptive Acts and Practices: 2.3.10.3 Dentists

Dentists offer “goods or services” and are also engaged in a “business, vocation, or occupation,” so they are covered by the Oregon UDAP statute.2112 But Illinois and Pennsylvania courts have extended the judicially created exemption for physicians to dental care providers.2113 A federal court decision2114 interprets dentistry to fall within an exemption to Virginia’s UDAP statute because it is regulated, but it fails to follow a state suprem