1.6.3 Apply UDAP Standards Expansively
UDAP liability may exist if the consumer was in any way misled in the transaction, taking into account the consumer’s level of sophistication.82 Intent, scienter, bad faith, and even actual reliance often need not be shown.83 Even if nothing stated was deceptive, the seller may be liable if something important was not stated, that is, if there was a material nondisclosure.84 Such an omission is just as deceptive as a misrepresentation. Silence can be deceptive.
Look to see if a UDAP statute specifically prohibits a practice. Also consider if the practice violates a state’s UDAP regulations or other state or federal law.85
If the practice is not specifically prohibited by a statute or regulation and the practice is not deceptive, many state UDAP statutes also proscribe unfair or unconscionable conduct. Oppressive sales techniques, unfair adhesion contract provisions, overreaching creditor remedies, and similarly one-sided or abusive practices can then be challenged as unfair or unconscionable practices.86
This treatise, particularly in Chapters 4 through 9, infra, details numerous UDAP cases finding specific practices unfair or deceptive. But remember that UDAP statutes should be liberally and expansively applied to new forms of merchant misconduct.87 UDAP statutes are meant to remedy marketplace imbalances, and serious consumer abuses of almost any form are arguably UDAP violations.88 That a particular practice has never been prohibited should not deter an attorney from pursuing a UDAP case.