Texas Deceptive Trade Practices Act § – Waiver by consumer is void as against public policy, unless: In writing, signed by consumer, Consumer not in significantly disparate bargaining position, Consumer is represented by counsel. Ineffective if counsel selected by D. Must be conspicuous, in statutory form. Ineffective against attorney general.

Texas DTPA § – To be liberally construed. § – Definitions (selected) (1) Goods – “tangible chattels OR REAL PROPERTY purchased or leased for use.” (2) Services – includes services in sale or repair of goods. (4) Consumer – “individual, partnership, corporation, this state,” who seeks or acquires goods or services. Not business consumer with assets > $25,000,000, or owned by such.

Relief for Consumers § consumer action if any of these are producing cause of damages (economic or mental anguish): Reliance on act/practice from laundry list Breach of express or implied warranty Unconscionable action or course of action Certain Insurance Code violations

Consumer Remedy Damages Injunction Order to restore money or property Any other relief “the court deems proper”

Kinds of violations Knowing – Actual awareness at time committed that act false or deceptive or constitutes a breach of warranty. May be inferred from manifestations. Intentional – Actual awareness + specific intent that consumer rely to his detriment May be inferred from manifestations or facts.

Kinds of damages Economic damages – Compensatory damages/pecuniary loss Includes cost of repair and replacement NOT exemplary, physical pain, mental anguish, loss of consortium, etc. Mental anguish

Damages for Consumer Economic damages If knowing: economic damages (up to three times the amount) + mental anguish If intentional, economic damages + mental anguish (up to three times the total amount)

Attorney fees/Court costs Prevailing consumer shall recover court costs and reasonable attorney fees. Defendant shall recover court costs costs and reasonable attorney fees IF action groundless, in bad faith or for harassment. Attorney fees, costs, and pre-J interest are not included in additional damages.

Damages Example Assume Economic damages = $10,000 and Mental anguish = $20,000 “Innocent” violation: $10,000 Knowing violation: ($10,000 to $30,000) + $20,000 = $30,000 up to $50,000 Intentional violation: $10,000 + $20,000 = $30,000 up to $90,000 Court costs and reasonable attorney fees are added to ALL of the above calculations.

Other damage provisions Punitive damages statute does not apply to DTPA P is not limited to economic damages if have right to other damages under other law.

Gormley v. Stover D oral surgery P Dr. GormleyMarion Stover pay > 2 years surgery last treatment lawsuit || | P sues for malpractice and DTPA violation. Result?

Gormley v. Stover Trial Court: SJ/D – barred by S/L Court of Appeals: Negligence (surgery) barred by S/L Need finding RE negligence in post-op care Need finding on discovery for DTPA Texas Supreme Court: No allegation of negligence in post-op care No DTPA claim – negligence claim if any.

Medical Liability under DTPA Texas Civil Practices & Remedies Code § – DTPA does not apply to: Negligence claims against Physicians or health care providers For personal injury or death Does not apply to pharmacists. Does this mean DTPA does not apply to physicians and health care providers?

Relief for Consumers § consumer action if any of these are producing cause of damages (economic or mental anguish): Reliance on act/practice from laundry list Breach of express or implied warranty Unconscionable action or course of action Certain Insurance Code violations

Sorokolit v. Rhodes Cannot “recast” negligence claim as DTPA claim. Warranty claims also available. What is effect of statute of frauds? Could also sue under DTPA, for example, for unconscionable acts. Q: Can lawyers be sued under DTPA?

Professional Liability under DTPA § 17.49(c) No claim based on professional service based on advice, judgment, opinion except for: Express misrepresentation of material fact Failure to disclose info (§17.46(b)(26)) Unconscionable action or course of action Breach of express warranty...

Other limitations No claim for bodily injury, death, or mental anguish except as specifically provided. No claim out of written K IF Consideration >$100,000 Consumer represented by counsel, and Not involving consumer’s residence No claim where consideration paid is >$500,000, unless consumer’s residence

Arthur Andersen v. Perry Equipment Arthur Andersen – D audit$ company P Maloney PipelinePerry Equipment pay Perry sued A/A based on audit. D said P not consumer – did not pay. Said attorney fee award improper.

Arthur Andersen Perry was consumer – Required audit, relied on it A/A aware that P required and would rely Attorney’s fees must be dollar amount: Not percentage of recovery Based on “lodestar” method