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consumerprotection.newburger - Todd Consumer Protection...

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Todd, Consumer Protection Outline DTPA: Consumer Protection in Texas 1. Statutory Tort a. Driven by words of statute b. Common Law similarities i. Fraud 1. Knowing or reckless 2. Punitives unlikely, no attorney’s fees ii. Negligent Misrepresentation 1. No showing of knowing or reckless 2. Limited to direct loss, not greatest measure of damages 2. Basics of the DTPA a. Powerful statute i. Strict liability mainly ii. Addresses negative practices, conduct, warranties iii. Liberal construction mandate iv. Broad definitions v. Damages enhanced vi. Few defenses available b. Application i. Must have 1. Consumer a. No purchase required b. Reliance (good faith) c. Incidental beneficiary not consumer 2. Goods or services a. For use b. Riverside trail i. Inextricably intertwined ii. Getting at lender ii. Action follows producing cause of e.d. or m.a. (17.50(a)) 1. use or employment of false, misleading, or deceptive act or practice a. Laundry list: 17.46(b); and b. Relied on by consumer to detriment 2. breach of express or implied warranty 3. Unconscionable action or course of action; or 4. Insurance Code violation 5. Strategy a. Bring as many of the above as possible b. Include as many subparts as possible c. More stuff equals more damages, so more trebling iii. Exemptions (17.49) 1. Media providers where advertisement was false 2. FTC-authorized acts 3. Rendering of professional service a. Essence of which is providing advice, judgment, opinion, skill b. Except i. Express misrepresentation of material fact ii. Failure to disclose 17.46(b)(24) iii. Unconscionable action iv. Breach of express warranty v. (b)(26) 1
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Todd, Consumer Protection Outline c. Includes vicarious liability of employer / institution 4. Bodily injury or death or m.a., except 17.50(b) and tie-in 5. Written transaction of 100K+ and representation by counsel except consumer’s residence 6. Transaction with 500K consideration by consumer, except consumer’s residence iv. Requirements to filing suit 1. Pre-Suit Notice (17.505) 2. Offer of settlement (17.5052) a. Mediation and suit tracks affect timing b. Must include: i. Cash value of money to rectify damages; and ii. Reasonable attorney’s fees as of date of offer c. Either accept or reject both parts d. If rejected and i. Unreasonable: no problem ii. Reasonable: fees cut off & recovery limited 1. Unless could not perform; or 2. Misrepresented cash value of offer 3. Federal: Offer of judgment rule v. Mediation (17.5051) vi. Defenses 1. Denial 2. Statutory a. 17.506 i. Seller’s reliance on information 1. Before consummation of transaction 2. Written 3. Given to consumer 4. Three types 5. Suit possible against provider of info ii. Settlement tender offer within 30 days of notice b. Tie-in c. Exemptions (17.49) d. Two-year discovery 3. CL a.
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