1. Debt insurance federal and state
-one will not test on DTPA (consumer protection laws)
-will not get rest of test until an hour passes.
-Rest will be cummulative. RCLA, arbitration, DTPA, overview. Couple of longer questions for an hour. Then some shorter ones. 6 10 minute questions.
1/3 bar like essays
1/3 short answer
1/3 long answer
Midterm- two bar questions (tie in and dtpa)
Final- begins with two bar question. (Insurance and ??)
Consumer law according to examiners includes
Learn 4 templates
o Standard Plain Vanilla DTPA
o Texas Debt Collection Act
o Texas Insurance Code
o Tie-in Statute/DTPA
Section 1: Introduction
1) John Hill- Page 1- Economics of consumer cases usually were not profitable for attorneys to take. Common law remedies were inadequate. Winner now gets mandatory attorney=s fees. When originally started it was treble the damages. Now it is additional damages. The originators of DTPA were hoping businesses would be proactive in changing their deceptive practices. Affected consumers, and plaintiffs attorneys to bring these suits. Defense attorneys are more likely to settle.
a) Policy-DTPA is designed to prevent fraud, deception and misrepresentation in the marketplace.
2) Defining Consumer ‘ 17.45
a) consumer means an individual, partnership, corporation, this state or a subdivision or agency of this state who seeks or acquires by purchase or lease and goods or services except that the term does not include a business consumer that has assets of 25 million or more or that is owned or controlled by a corporation or entity with assets of 25 million or more.
b) 17.45- Consumer
i) must seek or acquire
ii) by purchase or lease AND
iii) any goods or services
3) DTPA Elements
a) Π is consumer
b) D violates acts under 17.50
c) Δ acts were producing cause of consumer=s damages
-Ex. is a fire alarm a good or service? Possibly a mixed question. It doesn=t matter because both a good or service can be brought under DTPA, but under warranty, it must be a good.
-if a question mentions a business having assets of a certain amount, mention the business consumer exception. Business consumers must have assets under $25 million to bring a cause of action under DTPA.
a) Laundry list-false, misleading, or deceptive act or practice that is (a) specifically enumerated in statute, 17.47 (laundry list) and (b) relied on by a consumer to the consumer=s detriment
b) breach of an express or implied warranty (COA on its own)
c) any unconscionable action or course of action by any person (not a COA on its own)
d) violation of insurance Code sec 21.21 (now recodified) (no incentive to bring this because damages are either the same or less).
5) Truth in Lending Act- TILA (15 USC ‘ 1601 et seq.)
a) Requires clear disclosure of interest rates and other credit terms (Afinance charges@)
b) But doesn’t regulate rates themselves
c) Right of rescission (Acooling off period@) for certain transactions
d) Thought was that consumers would know the cost they were getting into and the ability to go to another bank when you know the actual amount B gives consumer more power
e) 15 USC ‘ 1640 Civil Liability
i) Actual Damages
ii) Attorney=s f
d fix it.
iii) Kennedy Concurrence- text is ambiguous so we can look at extrinsic evidence. Kennedy probably holds the record for concurrences.
iv) Thomas concurrence- this is ambiguous
v) Scalia Dissent- (ii) no longer covers (i). Wants to look at plain language, not legislative history. Legislative history comes from committee reports that are written by staffers.
f) Plain language rule(Texas does not follow the plain language rule)- determine meaning of statute by its plain meaning. Two exceptions:
i) there is an ambiguity or
ii) absurd results
7) PROBLEM-Person goes to fitness club, gets a free fitness test and busts that ass. Machine is not safe for beginners. Does she have a DTPA claim?
a) She is seeking, services, with capacity to purchase or lease. Raises a fact question as to whether P is a consumer.
Section 2: Proper Party Plaintiff-Seek or Acquire:
1) Martin v. Lou Poliquin (no transfer of consideration is required for consumer status)
a) Procedure- must go en banc to overrule a case. Need a majority. One panel cannot overrule another panel. Must go en banc to overrule a panel. Prior case Bancroft is overruled. In Bancroft, no consumer status because there was no transfer of valuable consideration.
Facts- Here, P never received ad in yellow pages, but also never paid. This could lead to bait and switch.