The Unfair and Deceptive Acts Law Can Protect Consumers from Dishonest Merchants
What does this law say?State Udap laws are based on a model law that dates back to the early 1970's. Every state has a Uap law. The law generally makes it illegal for a business or merchant to do anything that is unfair or deceptive or unconscionable to a consumer in a consumer transaction - and that can be about anything. Some states forbid only unfair acts while others say just deceptive acts or unconscionable acts, while still others may say one or two or all three are illegal. You have to look at your state Udap law to see which ones your state has declared illegal. Some states also list the specific acts that are automatically a violation of the law if they occur and a few states don't and just leave it up to the courts to decide. Other states, like Ohio, go much farther and provide lots of examples of what is illegal through their state administrative code or statutes. The point is that you have to look at your specific law to see exactly what is or is not a violation of this law in your state.
How does the law protect me?All Udap laws require that the subject of your transaction with the merchant or business must be a consumer product or service. Generally that means that it must be primarily for your personal, family or household use or purpose. That can include merchandise or services. Things bought for a business use are not covered by this law at all because other laws cover business transactions. A few states, however, do include small businesses in their definition of a consumer. Generally then, if you hire someone to do something or buy something and the primary purpose of it is for your home or family or your own personal use or enjoyment, then this law will cover you. And if the merchant or business does anything that is unfair or deceptive or unconscionable in the process, then they are violating this law. But a few things are not covered by the law at all, like taxes and bank or financing problems, insurance companies and your dealings with a medical provider or your lawyer.
What merchants and businesses does the law cover?Most manufacturers, retailers and service providers, whether you deal directly with them or not. Any business that deals with the public is very likely going to be covered by this law. In fact, these laws generally say they can not do it before or during or even after a consumer transaction and if they do, it is a violation of the Udap law. There are a few industries and occupations that the Udap laws generally will not cover. These include insurance companies, utility companies, financial institutions, doctors, hospitals, medical providers, newspapers and other publishers, the government and taxes and government agencies, and your dealings with your own lawyer. These are exempt because other laws already cover your legal rights in these areas.
What does the law mean by "unfair" and by "deceptive?"Most Udap laws leave it up to the judge and jury to decide if a particular situation violates the Udap law. You don't have to prove that the merchant or business knew it was violating the law either. Generally, unfair can mean unjust, taking advantage of someone, breaching a contract, and it can include violating another state law or a different consumer protection law like your state lemon law. Deceptive is more than unfair and can mean misleading, causing someone to believe something is true when it is not, cheating or defrauding someone. Unconscionable, which some Udap laws also declare illegal, means more than just deceptive and often means unusually harsh, shocking to someone's conscience, grossly unfair or reckless and often depends on the ages and sophistication or knowledge of the people involved. Some state Udap laws will provide definitions, but not often. Most of the time whether something is a Udap law violation will depend on the facts involved.
How do I prove the law was violated?First of all, you don't have to prove that the merchant or business intended to violate the law. They can accidentally violate the law and it is still a violation. So don't worry about having to prove that someone intentionally did something. You have to show that the merchant or business actually did the act which is the claimed violation, of course. You have to show that the merchant was somehow involved in or related to a consumer transaction that occurred and that can be a sale or a lease or any kind of transfer of goods or services. Then you have to show that the transaction was with you or, in some states, affected you. You also have to show that you were a "consumer" in the transaction - meaning that it was for your personal, family or household use. Last, some states require that you show you were harmed or damaged or injured by what happened. If you can prove all of that, then most state Udap laws say you have a valid claim against the merchant or business.
If I am a victim of a violation of this law, what do I get?That depends on your state Udap law. Most of them say that you have a right to recover at least your actual damages. Many of them say you can cancel the transaction too, as long as you act quickly enough and can return the purchased goods in good condition. Often, if you have no real damage from what occurred, the law says you can recover a minimum amount of money just because the merchant did something that was unfair or deceptive or unconscionable to you - often $100 or $200 or more. Some laws even say that you can recover two or three times the amount of your damages. And almost all laws say that you can recover your attorney fees too, so many attorneys handle Udap cases at no cost, or nearly no out of pocket cost, to the consumer at all. However, a few of these laws say that you have to give notice to the merchant or business of what their violation is and give them a chance to "cure" it (which means to make it right) before you can file a case in court against them.
What else can I do about a violation of the law?Most Udap laws say you can get a restraining order or injunction or other relief when it is justified. Courts call this "equitable relief" because it means that although you ordinarily would not be entitled to it, the circumstances are so bad that the court gives you that special kind of remedy or relief anyway. Many Udap laws also say that if the merchant or business is in a licensed occupation (like a car dealer for instance), then you can also report them to the government agency that licenses them so that their license can be investigated. Since your state Attorney General (the "AG") has the responsibility of enforcing state laws, you can report a Udap violation to your state AG's consumer fraud office and they may investigate the merchant or business. A few cities have also enacted Udap laws that are very similar to state Udap laws and you may be able to report violations to your local prosecutor's office too. Of course, you can always file a complaint with the local BBB too.
When this law is violated, can I still use other laws that are violated too?Yes. Virtually all Udap laws say that your rights under this law are in addition to any legal rights you may have under any other law. Lawyers sometimes call this "stacking" your legal rights or claims and it may mean you get a greater recovery in court.
Where can I find my state's Udap law?The National Consumer Law Center has published on the internet an outline of all the Udap laws in the United States so that consumers everywhere can see what their local Udap law says and what your rights are. You can find it at this link: http://www.nclc.org/images/pdf/udap/analysis-state-summaries.pdf
Are there special lawyers who handle Udap law cases?Yes. Udap laws are not generally known by many lawyers. It is a very narrow field of law that most lawyers never hear about or get involved in. Luckily there are two organizations that help consumers and lawyers and judges understand Udap laws and how to use them to protect consumers and make the legal system work right. The National Consumer Law Center is a non-profit organization that helps educate consumers and train lawyers and other professionals on all aspects of Consumer Law. Their web site is www.NCLC.org. The National Association of Consumer Advocates is a non-profit association of attorneys and consumer advocates who are committed to representing consumer interests. They counsel, guide, educate, and represent consumers who have been victimized by unfair and deceptive and unconscionable business acts and practices. Their members include private lawyers, government lawyers, law school professors, legal aid lawyers, law students and others. The NACA web site is www.NACA.net.
Additional resources provided by the author
- What conduct violates your Udap law? Click here to find out
- Click here to find a local Udap lawyer near you who can handle your Udap case
- Contact the National Association of Consumer Advocates by clicking here
- For the National Consumer Law Center, click here
- Was it fraud? Read this free online Avvo Legal Guide and find out, click here
- Want to ask a Consumer Fraud question on Avvo and get the right answer fast? Click here
- For a free 50 state National List of Consumer Law Lawyers, click here
- Think you’ve got a lemon motor vehicle? Click here to find out for sure
- Consumer Fraud - Are you a victim? To know for sure, click here
- 6 Common consumer scams and how to avoid them