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Unfair and Deceptive Acts and Practices: 12.6.2.2 Implying an Injunctive Remedy in Other States

Private injunctions may also be available in most other states, particularly where the UDAP statute generally authorizes the court to grant other forms of relief. Often a UDAP statute will allow a court to grant private plaintiffs “other equitable relief” or “other relief the court deems appropriate.” A number of courts have found this language a sufficient basis for granting injunctive relief in consumer suits.789

Unfair and Deceptive Acts and Practices: 12.6.3.2.3 Other state standards

Under the District of Columbia’s Consumer Protection Act, any person, organization, or group, whether acting in its own interests, on behalf of its members, or for the general public, may bring suit for various relief, including an injunction.838 However, the District of Columbia’s highest court holds that plaintiffs must still meet traditional standing requirements.839 The court also upheld the refusal to certify a class action for injunctive relief where it was only speculation that class memb

Unfair and Deceptive Acts and Practices: 12.6.3.2.4 Where the statute is silent

Even where the UDAP statute does not expressly require that the plaintiff be likely to benefit from an injunction, sellers may argue that courts should not grant an injunction that will not benefit any named party to the action. This, of course, creates an anomalous situation. If only a consumer likely to suffer future damages from a deceptive practice can seek an injunction, then only those unaware of the deceptive practice could challenge it.850

Unfair and Deceptive Acts and Practices: 12.6.4 Other Equitable Relief

Equitable relief other than injunctions may also be available under the state UDAP statute, especially if the statute allows the court to grant “other relief” or “other equitable relief.” For example, a court may have the authority to exercise the equitable power of reformation of a contract or to order specific performance in an appropriate UDAP case.870 In addition, some UDAP statutes specifically empower courts to award specific performance.

Unfair and Deceptive Acts and Practices: 12.6.5 Declaratory Relief

If the UDAP statute does not have specific provisions for declaratory relief, courts are likely to follow generally applicable state or federal standards. The California Supreme Court has applied its general declaratory judgment rules to a claim that a contract clause was unfair and therefore violated one of the state’s two UDAP statutes.878 It held that a court could issue a declaration regarding the nature of the parties’ contractual obligations.

Unfair and Deceptive Acts and Practices: 12.7.1 Introduction

In many states, it may be possible to use the UDAP statute to void or rescind a sales transaction that involved deception or unfairness. A consumer may prefer this remedy over damages or an injunction. It can return the plaintiffs to the status quo ante or result in the dismissal of a collection action by the seller or its assignees.

Unfair and Deceptive Acts and Practices: 12.7.2 Statutory Language Authorizing Remedy

Relatively few state UDAP statutes explicitly provide rescission or voiding the transaction as a remedy. The Ohio UDAP statute allows consumers an election between rescinding the contract and damages.883 Even if the UDAP violation resulted from a bona fide error, the consumer can still rescind the transaction.884 Rescission pursuant to this statute is an action at law, not in equity.885

Unfair and Deceptive Acts and Practices: 12.7.3 Where Statute Is Silent As to Availability of Remedy

The more typical UDAP statute does not explicitly state whether a court can void or rescind a transaction based on UDAP violations. Consumer litigants should begin by closely examining the statute’s remedy section to determine what remedies are specifically mentioned, such as “other equitable relief” or “other appropriate remedies.” This language is sufficient to authorize rescission.901

Unfair and Deceptive Acts and Practices: 12.7.4 Procedures to Rescind Contract

Some courts require UDAP plaintiffs who seek rescission to comply with common law requirements such as notice and tender.914 However, the Texas Supreme Court holds that, while a buyer who exercises the UDAP statute’s rescission remedy must surrender any benefits received, the buyer need not comply with common law requirements of notice and tender.915 The Sixth Circuit holds that UCC principles that relate to revocation of acceptance do not apply to rescission under Kentucky’s state UDAP statute.

Collection Actions: 17.1 Overview

The three preceding chapters examined judgment creditors’ ability to seize debtors’ income and assets. This chapter looks at two other coercive powers that judgment creditors may seek to exercise against debtors. Section 17.2, infra, examines debtor’s examinations—a process by which a judgment creditor can summon a debtor to an examination of the debtor’s income and assets.

Unfair and Deceptive Acts and Practices: 12.8.1 Purpose of UDAP Attorney Fee Provisions

Virtually all UDAP statutes that authorize a private remedy offer attorney fees to successful consumer litigants.941 By requiring sellers that violate UDAP statutes to pay the consumer’s legal expenses, UDAP statutes make it possible for attorneys to devote significant resources to a case, even if the consumer’s dollar losses are relatively minor compared to commercial disputes.942 This not only encourages consumers to remedy marketplace abuses, but also increases sellers’ maximum liability if t

Unfair and Deceptive Acts and Practices: 12.8.2.3 Availability of Other Remedies Does Not Limit Access to Fees

The fact that a consumer has been awarded punitive damages does not prevent an award of attorney fees on a UDAP count.1002 Similarly, attorney fees are available even where there are significant actual damages—while attorney fees encourage suits where damages are only nominal, their recovery is not limited to such suits.1003 A ban on attorney fee awards in suits brought under one statute does not apply to a separate UDAP count.1004

Unfair and Deceptive Acts and Practices: 12.8.4.3 Multiple Claims, Parties, or Trials

In the typical lawsuit, the consumer will allege a number of UDAP and non-UDAP claims against a number of different defendants. The court may rule for the consumer without reaching some of these claims, may rule for the consumer without clarifying on which claims the decision is based, or may reject certain UDAP claims, but allow others. The court may rule against certain defendants, but in favor of others. The court may rule for the consumer, but in an amount less than the consumer sought. The consumer may lose at trial, win a remand on appeal, and then win the second trial.