David K. Wilson & Associates, Attorneys at Law

Consumer Protection

Consumer Protection Lawyers

Texas Deceptive Trade Practice Act Claims

texas-consumer-protection-lawyerThe Texas Deceptive Trade Practices-Consumer Protection Act (DTPA) protects consumers against false, misleading or deceptive business practices.  It applies to a broad range of transactions including the sale of goods (both new and used) and certain services.

The DTPA applies to most business transactions involving consumers.  The act states that “false, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.”

A “consumer” may include an individual or even a small to large businesses with assets less than $25 million dollars.

The DTPA prohibits several categories of illegal acts:

A laundry list of 25 misleading acts,

A Breach of Warranty,

Unconscionable conduct.  The DTPA defines an “unconscionable action” as one that “takes advantage of the lack of knowledge, ability, experience, or capacity of a person to a grossly unfair degree.”

Laundry List Violations:

  1. Passing off goods or services as those of another;
  2. Causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services;
  3. Causing confusion or misunderstanding as to affiliation, connection, or association with, or certification by, another;
  4. Using deceptive representations or designations of geographic origin in connection with goods and services;
  5. Explicit or implicit representation that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which he does not;
  6. Representing that goods are original or new if they are deteriorated, reconditioned, reclaimed, used, or secondhand;
  7. Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another;
  8. Disparaging the goods, services, or business of another by false or misleading representation of facts;
  9. Advertising goods or services with intent not to sell them as advertised;
  10. Advertising goods or services with intent not to supply a reasonable expectable public demand, unless the advertisements disclosed a limitation of quantity;
  11. Making false or misleading statements of fact concerning the reasons for, existence of, or amount of price reductions;
  12. Representing that an agreement confers or involve rights, remedies, or obligations which it does not have or involve, or which are prohibited by law;
  13. Knowingly making false or misleading statements of fact concerning the need for parts, replacement, or repair service;
  14. Misrepresenting the authority of a salesman, representative or agent to negotiate the final terms of a consumer transaction;
  15. Basing a charged for the repair of any item in whole or in part on a guaranty or warranty instead of on the value of the actual repairs made or work to be performed on the item without stating separately the charges for a the work and the charge for the warranty or guaranty, if any;
  16. Disconnecting, turning back, or resetting the odometer of any motor vehicle so as to reduce the number of miles indicated on the odometer gauge;
  17. Advertising of any sale by fraudulently representing that a person is going out of business;
  18. Using or employing a chain referral sales plan in connection with the sale or offer to sell of goods, merchandise, or anything of value, which uses the sales technique, plan, arrangement, or agreement in which the buyer or prospective buyer is offered the opportunity to purchase merchandise or goods and in connection with the purchase receives the sellers promise or representation that the buyer shall have the right to receive compensation or consideration in any form for furnishing to the seller the names of other prospective buyers if receipt of the compensation or consideration is contingent upon the occurrence of an event subsequent to the time the buyer purchases the merchandise or goods;
  19. Representing that a guarantee or warranty confers or involves rights or remedies which it does not have or involve, provided, however, that nothing in this subchapter shall be construed to expand the implied warranty of merchantability as defined in Sections 2.314 through 2.318 and Sections 2A.212 through 2A.216 of the Business & Commerce Code to involve obligations in excess of those which are appropriate to the goods;
  20. Promoting a pyramid promotional scheme, as defined by Section 17.461;
  21. Representing that work or services have been performed on, or parts replaced in, goods when the work or services were not performed or the parts replaced;
  22. Filing suit founded upon a written contractual obligation of and signed by the defendant to pay money arising out of or based on a consumer transaction for goods, services, loans, or extensions of credit intended primarily for personal, family, household, or agricultural used in any county other than in the county in which the defendant resides at the time of the commencement of the action or in the county in which the defendant in fact signed the contract; provided, however, that a violation of this subsection shall not occur where it is shown by the person filing such suit he neither knew or had reason to know that the county in which such suit was filed was neither the county in which the defendant resides at the commencement of the suit nor the county in which the defendant in fact signed the contract;
  23. The failure to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed;
  24. Using the term “corporation,” “incorporated,” or an abbreviation of either of those terms in the name of a business entity that is not incorporated under the laws of this sate or another jurisdiction; or
  25. Taking advantage of a disaster declared by the governor under Chapter 418, Government Code, by:
    1. Selling or leasing fuel, food, medicine, or another necessity at an exorbitant or excessive price; or
    2. Demanding an exorbitant or excessive price in connection with the sale or lease of fuel, food, medicine, or another necessity.

Pursuing a DTPA Claim:

When consumers suffer actual damages, they may sue under the DTPA for any of the following:

  1. A “laundry list” violation
  2. Breach of an expressed or implied warranty;
  3. Unconscionable action; and
  4. Violations of the Texas Insurance Code.

Before filing suit, the consumer is generally required to send a letter to the seller of the good or service which notifies them of the consumer’s complaint and makes demand of the consumer’s damages.  If the seller does not comply with the demand within 60 days, the consumer may file suit.

In a lawsuit, the consumer may be entitled to the following relief:

  • Economic damages
  • Mental anguish damages
  • Attorney’s fees and expenses
  • Interest
  • An Injunction
  • Revocation of the seller’s license or business certification

Generally, a DTPA lawsuit must be filed within 2 years of the misleading act of the seller that caused the consumer’s damages.  In some circumstances, the consumer may be able to pursue the claim more than two years after the misleading act occurred if the act was concealed by fraud.  The outcome of any case is dependent on the specific facts and circumstances of that case.  If you believe you have suffered damages as a result of a DTPA violation, you need a consumer fraud attorney.  Call the team at David K. Wilson & Associates at (903) 870-9050 for a free legal consultation.

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