Texas Deceptive Trade Practices Act

Texas Deceptive Trade Practices Act

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Texas Deceptive Trade Practices Act

Texas has strong consumer protection laws that safeguard residents against scams, deceptive sales calls, and other illegal practices. Chief among these laws is the Texas Deceptive Trade Practices Act (DTPA), which gives plaintiffs the ability to recover additional damages when they have been defrauded by false, misleading, or deceptive business practices. When state lawmakers passed the DTPA, the intent behind the bill was that companies should think twice before committing any kind of fraud against consumers. Texas consumer protection lawyers know just how effective the DTPA can be at holding fraudsters accountable for their unethical actions.

To learn more about the Texas Deceptive Trade Practices Act, keep reading this blog.

What Is the Texas Deceptive Trade Practices Act?

The Texas Deceptive Trade Practices Act, or DTPA, is a consumer protection law that prohibits businesses from making false or misleading statements in advertisements, contracts, and any transactions involving consumers. The DTPA gives consumers a cause of action for a civil suit when they have been misled by a business. The text of the statute casts a wide net by explicitly forbidding businesses from knowingly deceiving customers in advertisements, marketing materials, and sales transactions. This includes “false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty.”

The DTPA applies to several different types of consumer transactions, including the sale or lease of commercial goods, products, services, or property. The Texas DTPA law has a lengthy list of examples of deceptive business acts, including the following:

  • Passing off goods or services as those of another.
  • Confusing consumers about the true source of goods or services.
  • Lying about the certification status of a product or service.
  • Misrepresenting whether a product or service has received sponsorship or approval.
  • Lying about the geographic origin of goods or services.
  • Misrepresenting the ingredients of goods such as food products or nutritional supplements.
  • Selling an item as “new” when the product is used or reconditioned.
  • Lying about the quality or grade of a product.
  • Using misleading statements to disparage a competitor’s goods or services.
  • Advertising items as available for sale when they are unavailable or there is only a limited supply.
  • Lying about the reasons for a price reduction.
  • Misrepresenting the need for additional parts, replacement, or repairs.
  • Falsely presenting a salesperson as having the authority to negotiate final terms of a transaction.
  • Secretly resetting the odometer on a motor vehicle for sale.
  • Lying about a “going out of business” sale when the store is not going out of business.
  • Using “corporation” or “incorporated” in the name of a business when it has not been incorporated.
  • Falsely representing that a solicitation has been sent on behalf of a governmental entity.
  • Price gouging during a natural disaster.

Additional Damages Available Under the DTPA

The damages and compensation that may be available to plaintiffs filing lawsuits under the Texas Deceptive Trade Practices Act include actual damages (i.e., economic damages), mental anguish damages, and attorney’s fees. The actual damages could involve things like the money spent on the purchase, as well as repair or replacement costs after the transaction.

Additionally, when a plaintiff in a DTPA case wins their claim, they may be eligible for up to three (3) times the usual damages awarded in a Texas civil suit.

Mental Anguish Damages

If the judge or jury finds that the defendant knowingly deceived the plaintiff, then it may be possible for the plaintiff to receive an award for mental anguish damages. The ability to recover damages for mental anguish is unique in DTPA claims because business transactions typically don’t involve the same kinds of mental or emotional harms as personal injury and wrongful death claims.

Treble Damages

The DTPA also allows for the recovery of treble damages, which means that the judge may impose a multiplier on the judgment or ruling and award up to three times the damages amount. When a defendant’s conduct is deemed egregious, it is not uncommon for plaintiffs to be awarded significantly higher damages as a way of sending a message and discouraging unethical behavior by other businesses in the future.

DTPA Waiting Period & Deadlines

Texas law requires victims of business fraud to wait at least 60 days before filing a DTPA lawsuit. The statute specifically requires plaintiffs to send a demand letter to the business owner or individual so that they have an opportunity to address the alleged fraud and potentially resolve the matter before a legal claim is necessary. Once 60 days have passed since the demand letter was sent to the defendant, then the plaintiff may choose to formally file their lawsuit in a Texas court.

Just as there is a waiting period on the front end of any DTPA claim, there is also a time limit for the plaintiff to take legal action. The deadline for a consumer to file a DTPA lawsuit is two (2) years from the date on which the false or deceptive business practice occurred. This statute of limitations is half the time that a plaintiff typically has available to file a breach of contract lawsuit in Texas.

Contact the Texas Consumer Fraud Lawyers at Tauler Smith LLP

The Deceptive Trade Practices Act (DTPA) gives Texas consumers the right to file a lawsuit and pursue damages when they have been victimized by a scammer or fraudulent business. If you have been misled or deceived in a commercial transaction, the Texas consumer fraud attorneys at Tauler Smith LLP can help you file a DTPA claim. Call 972-920-6040 or email us today to go over your options.

CLRA Consumer Protection

What Is the Consumers Legal Remedies Act?

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CLRA Consumer Protection

California consumer fraud lawyers know that the state has been at the forefront of the consumer rights movement for a long time. In 1970, the California State Legislature passed the Consumers Legal Remedies Act (CLRA) to safeguard customers against deception by businesses. The CLRA makes it unlawful to engage in unfair or misleading acts when selling goods or services to consumers. The CLRA is often applicable in cases involving false advertising claims and/or consumer fraud. For example, when a company uses a misleading advertisement to persuade someone to purchase a product or service, the misrepresentation may constitute a violation of both the CLRA and the Unfair Competition Law (UCL). The same is true when a deceptive or intentionally confusing ad causes a customer to trigger an automatic renewal policy.

To learn more about the Consumers Legal Remedies Act, keep reading this blog.

What Deceptive Business Practices Does the CLRA Prohibit?

The California Consumers Legal Remedies Act, or CLRA, is a consumer statute that’s codified in Cal. Civil Code §§ 1750. The law allows plaintiffs to bring private civil actions against companies that use “unfair methods of competition and unfair or deceptive acts or practices in a transaction.”

The CLRA explicitly prohibits certain deceptive business practices, including the following acts:

  • Selling counterfeit goods.
  • Misrepresenting the source of a good or service.
  • Lying about a professional affiliation, certification, or endorsement.
  • Lying about the geographic origin of a product.
  • Selling a used or reconditioned item as new.
  • Misrepresenting the quality of a good or service.
  • Making false statements that disparage another business’ products.
  • Advertising items as being available for sale when they won’t be.
  • Advertising furniture as available for sale without disclosing that it is unassembled.
  • Telling a customer that a repair or replacement is necessary when it isn’t.
  • Offering a rebate or discount with hidden conditions.
  • Falsely presenting a salesperson’s authority to negotiate and finalize a transaction.
  • “Robo-calling” individuals who are not already customers.

One of the advantages of the CLRA is that victims of business fraud in California are not limited to filing lawsuits under the statute. This means that a consumer could bring multiple claims citing both the CLRA and other state or federal laws.

What Remedies Are Available to California Consumers in CLRA Cases?

The CLRA gives California consumers a powerful tool to hold businesses accountable for deceptive practices because the statute allows plaintiffs to recover different kinds of damages. The law is often interpreted broadly by courts to provide strong protections against consumer fraud, false advertising, and unfair business practices. When a consumer has been defrauded, they can file a lawsuit in a California Superior Court.

Consumers who bring a claim under the CLRA may pursue several remedies for any harm they suffered, including:

  • Actual monetary damages.
  • Punitive damages.
  • Restitution of property to the plaintiff.
  • An injunction against the defendant.
  • Attorney’s fees and court costs.
  • Any other relief the court deems proper.

Actual Damages & Attorney’s Fees

The first remedy available under the CLRA – actual damages – has a statutory minimum of $1,000 for each deceptive act or practice. The last remedy – “any other relief the court deems proper” – is a catch-all provision that gives courts wide latitude when determining what kind of monetary relief should be available to plaintiffs in CLRA actions.

In addition to getting damages for fraud, a plaintiff filing a claim under the CLRA may also be able to get attorney’s fees from a defendant who is found to have violated the Act. This can make it financially feasible for a plaintiff to bring a CLRA claim – since the defendant would have to pay the legal costs for both sides if they lose the case.

Additional Damages for Senior Citizens & Disabled Persons

A couple of special categories of consumers may be eligible for additional damages: senior citizens and disabled persons. As set forth by the CLRA, a “senior citizen” is defined as anyone over the age of 65. (In California, a senior citizen is usually defined as anyone over the age of 62, with the age threshold being lowered to 55 years old when the person lives in a senior citizen housing development.) California law defines “disabled person” quite broadly to include just about anyone who has a physical or mental condition that substantially limits at least one major life activity. For both seniors and disabled persons, the CLRA allows an award of up to $5,000 in damages to be tacked on by the court.

Proving a CLRA Violation

Although the Consumers Legal Remedies Act gives plaintiffs many options when seeking damages for consumer fraud, there are still ways for defendants to avoid paying maximum compensation. For example, if the defendant did not intentionally violate the CLRA, and they subsequently made a good faith attempt to correct the mistake, then the court might not award damages to the plaintiff. The complexities of the statute are one reason why it’s so important for you to have a knowledgeable California business fraud attorney handling your case.

Who Is Allowed to Bring a Lawsuit Under the Consumers Legal Remedies Act?

Private Civil Actions & Class Actions

The CLRA may serve as the basis for a civil suit in any consumer transaction where goods changed hands or services were provided, including transactions with a shipping insurance surcharge. Anyone who can show damages having been caused by one of the acts prohibited by the CLRA can file a lawsuit, either individually by the consumer or in a class action involving other consumers who were deceived or defrauded. For class action litigation, the cases must be substantially similar. An experienced California consumer protection lawyer can assist you with a CLRA class action lawsuit and help get your class certified.

Exclusions from the CLRA

Certain types of transactions and business owners are excluded from the Consumers Legal Remedies Act: (1) real estate transactions, and (2) newspapers and other advertisers. Although the CLRA applies to most commercial transactions, the statute cannot be used as the basis for a legal claim when the transaction involved the sale of either a residential property or a commercial property. Additionally, the CLRA cannot be used to bring a lawsuit against the owner of a newspaper, magazine, radio station, or any other advertising medium unless the plaintiff can prove that the business owner knew that the ads were deceptive before disseminating them.

How Long Do You Have to Bring a CLRA Claim?

Three-Year Statute of Limitations

It is important for you to speak with a qualified CLRA attorney as soon as possible because you do not want the statute of limitations to expire before you attempt to bring a claim. The general rule is that a consumer has three (3) years from the date on which the unfair business practice occurred to file a lawsuit under the Consumers Legal Remedies Act. If you miss this deadline, you may be barred from bringing a legal action.

Business Owner’s Opportunity to Cure

In addition to making sure you file within the statute of limitations, an experienced attorney can also ensure that you meet any other important deadlines and filing requirements. For example, before the CLRA suit can proceed in court, the consumer must notify the defendant in writing about the alleged violation. This must happen at least 30 days before the lawsuit is filed, and the business owner will then have an opportunity to take appropriate action to fix or otherwise “cure” the harm. (E.g., repairing or replacing a damaged item that was sold to the consumer.)

Defending Against CLRA Claims in California

It is very important for injured consumers to have an experienced consumer protection attorney handling their case throughout the legal process. The same is true for businesses that are accused of consumer fraud or false advertising. If you have been sued for allegedly violating a California consumer protection law like the CLRA, you need to speak with a qualified defense attorney as soon as possible.

Contact the California CLRA Lawyers at Tauler Smith LLP

Tauler Smith LLP is a Los Angeles law firm that focuses on consumer fraud litigation. Our attorneys are extremely familiar with the Consumers Legal Remedies Act, and we have filed both private civil actions and class action lawsuits on behalf of consumers. If you were a victim of business fraud or false advertising in California, we can help you take legal action and get you the financial compensation to which you are entitled. Call or email us to discuss your eligibility to file a CLRA claim.

Automatic Subscription Renewal Law

The Legality of Automatically Renewing Subscriptions

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Automatic Subscription Renewal Law

You know the feeling. You sign up for a one-year subscription—whether it’s for TV and internet services, food delivery, clothing, a dating app, or countless other products and services—intending to pay only for that year. Or you sign up for a “free trial,” thinking you will only be charged if you actually buy the service. But then, without your knowledge and consent, you are charged for an additional subscription period, or for a product or service you never intended to buy. Unfortunately, this happens to consumers every day, and companies often rely on these deceptive practices to get your business and your money.

The good news is that many states, including California, have laws like the Automatic Renewal Law (ARL) to ensure that consumers enter subscription programs with full knowledge and affirmative consent. To learn more, keep reading this blog.

What Is the Automatic Renewal Law?

In 2009, the California Legislature passed the Automatic Renewal Law, Business and Profession Code Section 17600 (the “ARL”), to “end the practice of ongoing charging of consumer credit or debit cards . . . without the consumers’ explicit consent for ongoing shipments of a product or ongoing deliveries of service.”

You may be entitled to relief under the ARL if any of the following apply:

  1. You were charged for a subscription that automatically renewed without your knowledge and consent.
  2. You signed up for a “free trial,” and without being able to cancel the service, were charged anyway.
  3. You signed up for a “free trial,” and there was no “clear and conspicuous explanation” of the offer’s pricing or change in pricing upon the trial’s end.
  4. You signed up for the subscription online, but there is no online cancellation option.
  5. For non-online subscriptions, there are none of the following cancellation methods: (a) a toll-free telephone number; (b) an email address; (c) a postal address, if the seller directly bills the consumer; or (d) another “cost-effective, timely, and easy-to-use mechanism.”

What Are the Disclosure Requirements Under the ARL?

Under the ARL, any business initiating an automatic renewal or continuous service offer to a California consumer must:

  • Disclose the terms of the offer.
  • Obtain the consumer’s affirmative consent.
  • Provide the consumer an acknowledgement of the order.
  • Provide simple cancellation procedures, along with other miscellaneous requirements.

Whether they are offered orally or in writing, the offer terms must be disclosed in temporal or visual proximity to “the request for consent to the offer.” Id. § 17602(a)(1).

The disclosures must also be “clear and conspicuous.” Id. A visual disclosure is clear and conspicuous if it is “in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size . . . in a manner that clearly calls attention to the language.” Id. § 17601(c). An audio disclosure is clear and conspicuous if it is “in a volume and cadence sufficient to be readily audible and understandable.” Id. Three other important aspects of the ARL are: A company must allow a consumer to cancel an automatic renewal or continuous service offer exclusively online if the consumer accepted the offer online ( § 17602(c)); and An automatic renewal or continuous service offer that includes a free gift or trial must have a “clear and conspicuous explanation” of the offer’s pricing or change in pricing upon the trial’s end ( § 17602(a)(1)); and A “free gift or trial” triggers a disclosure in the acknowledgement about how to cancel–and an allowance for cancellation–before the consumer pays for the good or service ( § 17602(a)(3)).

Can You Sue If Your Subscription Was Automatically Renewed Without Your Consent?

Although there is no private right of action under the ARL, a private plaintiff may bring an action under California’s Unfair Competition Law, Business & Professions Code §§ 17200 et seq. (“UCL”), for restitution and injunctive relief, as long as the plaintiff has suffered injury in fact and lost money or property. See Lopez v. Stages of Beauty, LLC, 307 F. Supp. 3d 1058, 1070 (S.D. Cal. 2018).

Contact the California False Advertising Lawyers at Tauler Smith LLP Today

Victims of suspicious or unauthorized charges on their credit cards should report illegal subscription renewals to the California false advertising lawyers at Tauler Smith LLP. Our experienced attorneys can investigate the subscriptions and help you obtain compensation. Call 310-590-5927 or fill out the online contact form to schedule a consultation.

Fake COVID-19 Cures

Beware of Fake Cures for the Coronavirus

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Fake COVID-19 Cures

Companies peddling herbal remedies and other nutritional supplement products that protect against COVID-19 are violating the law. Consumers need to beware of fake cures for the coronavirus. If you purchased one of these over-the-counter supplements that supposedly treat coronavirus, you should consider taking immediate legal action. Your first should be to speak with a qualified California false advertising attorney who can explain your legal options.

To learn more about fake nutritional supplements that are being marketed as cures for coronavirus, keep reading.

FDA Warns Consumers About Fake Treatments for COVID-19

Growing fears about the COVID-19 pandemic have led to a dramatic rise in the sale of fraudulent nutritional supplements that claim to cure or prevent the disease. This phenomenon is not new. The U.S. Food and Drug Administration (FDA) itself has acknowledged that “during emergency situations or outbreaks, fraudulent products claiming to prevent, treat or cure conditions associated with the emergency or outbreak almost always appear for sale.”

Thus, on March 6, 2020 the FDA issued warning letters to several companies selling fake treatments for the coronavirus. The most infamous recipient of the warning letters, televangelist Jim Bakker, marketed a product that would “kill” coronavirus. Bakker’s promotional videos claimed that the “Silver Solution” supplement was “tested on other strains of the coronavirus, and has been able to eliminate it within 12 hours, totally eliminate it, kills it, deactivates it.” Although these statements were arguably framed to evade false advertising lawsuits from consumers of coronavirus remedies, the statements are still considered unlawful.

Fraudulent claims about coronavirus remedies are not limited to televangelists. Many dishonest sellers of herbal products have also peddled homeopathic cures to the novel coronavirus that have no basis in reality. These include Amy Weidner of Herbal Amy, Inc., who claimed without any scientific support that “a number of herbs are strongly antiviral for corona viruses” in order to sell a formulation of various herbs on her website that she claimed were “preventative” and would protect consumers against the virus. Other websites have gone even further, selling four (4) different herbal remedies to treat coronavirus and dangerously instructing their customers who are infected with coronavirus to “take all 4 products and use the infection dosage.”

The dangers of marketing herbal products to treat a novel and deadly disease cannot be understated. At worst, consumers without access to medical care may forego medical treatment based on false claims. At minimum, consumers will shell out hard-earned money for fake products that will do nothing to keep them safe. Moreover, these negative consequences could get worse in the weeks and months ahead. As the pandemic spreads, so too will the opportunities for fraud. In the short time that coronavirus has impacted daily life, a variety of fake remedies have evolved in products ranging from colloidal silver, ionic silver, herbal teas, and even essential oils like eucalyptus – all claiming they can cure or treat coronavirus.

Contact the Los Angeles False Advertising Attorneys at Tauler Smith LLP

If you purchased nutritional supplements or any other products that claim to cure or prevent coronavirus, it’s possible that you were misled by false advertising from unethical and immoral companies attempting to capitalize on the public health crisis for their own financial benefit. The Los Angeles false advertising attorneys at Tauler Smith LLP can investigate your claims and potentially help you get financial compensation.

Call 310-590-3927 or send us an email to schedule a free consultation.