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Unfair and Deceptive Acts and Practices: 12.4.2.3.3 Other preconditions to multiple damage awards

A few UDAP statutes trigger treble damages if the seller violates a UDAP rule or other clear standard.433 In Ohio, a dealer is liable for treble damages only if it violated a rule adopted under the state UDAP statute or a decision interpreting the statute that was made available for public inspection.434 The decision’s availability for public inspection is treated as a question of fact that must be proven by admissible evidence.435 The consumer mus

Unfair and Deceptive Acts and Practices: 12.4.2.3.4 Standards where multiple damages are discretionary

The Pennsylvania Supreme Court holds that, in light of the remedial purposes of the UDAP statute and the absence of any statutory language adopting common law punitive damages standards, treble damage awards “should not be closely constrained by the common-law requirements.”453 Courts should, however, review UDAP treble damage awards for rationality, focusing on the presence of intentional or reckless wrongful conduct, in which case treble damages are consistent with the statute’s remedial purposes.454

Unfair and Deceptive Acts and Practices: 12.4.2.4 Are Multiple Damages Available in Default Judgments?

Default judgments are subject to trebling just as litigated judgments are.469 It is wise to put a defendant on notice through the complaint that treble damages are being sought. Then, if there is a default judgment, there will not be an issue of unfair surprise to the defendant. The complaint should clearly allege any preconditions to multiple damages and include them in the prayer for relief.470

Unfair and Deceptive Acts and Practices: 12.4.2.7.2 Calculation issues where there are multiple parties

If state law requires the amount one defendant pays to the plaintiff before trial to be deducted from the judgment awarded the plaintiff against another defendant, the settlement amount should be deducted after the damage award is trebled, not before.509 Where two parties are jointly and severally liable for the consumer’s damages, the court trebles the total, and does not have to separate the damages caused by each party.510 However, the maximum possible recovery is treble the actual damages, r

Unfair and Deceptive Acts and Practices: 12.4.2.7.3 What awards should be trebled?

A similar issue arises where a defendant such as an insurance company that owes the consumer money initially stonewalls, but finally pays the consumer prior to the entry of judgment on the UDAP claim. Then the defendant may claim that the amount to be trebled should not include that payment, but only any damage the consumer suffered because of the delay in payment.

Unfair and Deceptive Acts and Practices: 12.4.2.7.4 Emotional distress damages

Unless the UDAP statute explicitly provides otherwise, emotional distress awards should be subject to trebling, just like any other actual damages award. The Ohio Supreme Court held that emotional distress damages were “actual damages” that were subject to trebling under its UDAP statute.521 The decision contrasted emotional distress damages with statutory damages, which the decision implied could not be trebled.

Unfair and Deceptive Acts and Practices: 12.4.2.7.6 Prejudgment and postjudgment interest; other financing costs

Courts are split as to whether prejudgment interest should be trebled.531 A court has attempted to resolve this split with the following reasoning. Prejudgment interest should not be allowed on treble damages. But where prejudgment interest is authorized in calculating actual damages, that amount should be included in the actual damage award. This total award should then be trebled where appropriate.532

Unfair and Deceptive Acts and Practices: 12.4.3.1 Are Punitive Damages Available Under a UDAP Statute?

Ten UDAP statutes explicitly authorize punitive damages.569 In addition, the Illinois UDAP statute authorizes the court to award any other relief it deems proper, and then restricts the circumstances under which punitive damages can be awarded against car dealers, necessarily implying that punitive damages are allowed as “other relief.”570 (The Illinois Supreme Court has held the special protection for car dealers unconstitutional.571) Some additio

Unfair and Deceptive Acts and Practices: 12.4.3.2 Common Law Fraud Punitive Damages Where UDAP Punitive Damages Not Available

If a UDAP statute does not authorize punitive damages, consumer attorneys should add common law fraud counts to their UDAP actions in appropriate cases and seek punitive damages under the common law fraud claim.576 There is no merit to the argument that the availability of UDAP remedies preempts common law tort claims or remedies.577 Consumers can recover actual damages and attorney fees under a UDAP claim and punitive damages under a tort claim.578

Unfair and Deceptive Acts and Practices: 12.4.3.5.2 Advantages of seeking punitive damages in arbitration

If a UDAP statute provides for punitive damages, consumers should generally be able to seek such damages in an arbitration proceeding.604 Then the arbitrator should have wide discretion as to awarding such damages and the size of the award. When the consumer claims that such damages should be awarded, the consumer should impress upon the arbitrator the need for discovery from the defendant to show intent and that the challenged practice is part of a pattern of conduct.