Consumer Law Flashcards
(38 cards)
T/F: The Deceptive Trade Practices Act (DTPA) is liberally construed to protect consumers. Generally, it cannot be waived.
True. Its purpose is to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty.
How can the Deceptive Trade Practices Act (DTPA) be waived?
The DTPA can only be waived if:
- in writing and signed by consumer
- consumer is not in a terrible bargaining position
- consumer is represented by legal counsel
For the Deceptive Trade Practices Act (DTPA), what is a consumer?
The DTPA covers consumers. A consumer is an entity who seeks or acquires by purchase or lease of goods or services.
What are the 3 types of Deceptive Trade Practices Act (DTPA) questions?
Pure DTPA questions
DPTA with a tie-in statute
DPTA + insurance
The DTPA covers consumers, or entities, who seek or acquire by purchase or lease of goods or services.
What is “seek or acquire”?
Any purchaser or anyone with a good intent faith to purchase is a consumer, there is no need to consummate transaction or to pay. Further, any purchaser “acquires,” as does any intended beneficiary. Incidental beneficiaries do not acquire.
The DTPA covers consumers, or entities, who seek or acquire by purchase or lease of goods or services.
What is “purchase or lease”?
Truly free services or goods are not subject to DTPA, but “purchase” is broadly defined and the consumer does not have the be the one who pays.
The DTPA covers consumers, or entities, who seek or acquire by purchase or lease of goods or services.
What are “goods or services”?
Goods are tangible chattel or real property purchased or leased for use.
Services include work, labor, or service purchased or leased for use, and include insurance.
T/F: Loaning money is not subject to DTPA.
Somewhat true. Merely loaning money is not subject to DTPA. But if from the consumer’s perspective, if this loan was an essential part to the transaction then it will be subject to DTPA (and whoever lent the money).
The DTPA covers consumers, or entities, who seek or acquire by purchase or lease of goods or services.
Are there any exclusions to entities?
Yes. A business with assets of $25M+ or one that is owned or controlled by an entity with assets of $25M+ is not a consumer under DTPA.
T/F: D has the burden to prove the business consumer exception as an affirmative defense.
True. A business with assets of $25M+ or one that is owned or controlled by an entity with assets of $25M+ is not a consumer under DTPA.
What are the professional exceptions to the DTPA?
DTPA does not apply to professional services in which the essence is providing advice, judgment, or opinion.
T/F: Generally, lawyers, accountants, doctors, architects, and engineers are exempt from the DTPA.
True. But they can be liable under the DTPA for material misrepresentation, unscionability, failure to disclose, or breach of an express warranty.
T/F: All damages from personal injury are recoverable under Section 17.50 (h) for a violation of a tie-in statute.
True.
T/F: DTPA does not apply to a claim arising out of a contract if the contract relates to a project, transaction, or set of transactions over $100,000.
True. But exemption is if it there is a signed written contract and the consumer is represented by an attorney. It does not apply to residences (so DTPA would apply).
T/F: DTPA does not apply to a cause of action arising out of a transaction, project, or a set of transactions involving a total consideration of more than $500,000.
True.
T/F: Consumer can sue anyone who violates the DTPA if transaction forms the basis of the complaint.
True. e.g., consumer bought a house and the prior to the sale, the agent misrepresented the sq ft. Consumer can sue agent, even if no contractual relationship between the two.
T/F: Conduct of immediate parties is always in connection with and relevant to DTPA.
True. Remote parties are usually not subject to DTPA unless they work directly with consumer or their misrepresentation reached the consumer.
DTPA provides that a consumer can maintain an action where 4 conditions constitute a producing cause of economic damages or damages for mental anguish.
What are these 4 conditions?
A consumer is an entity who seeks or acquires by purchase or lease of goods or services.
- use of false, misleading, or deceptive act or practice that is:
(a) on the laundry list
(b) relied on by consumer to their detriment - breach of express or implied warranty
- unconscionable act
- use or practice that violates the insurance code
* These are separate but cumulative claims.
What is the DTPA laundry list?
To determine if there can be an action, there must be a consumer and one of the 4 potential causes of action. One of these is the laundry list and consumer’s reliance.
The laundry list is the most common DTPA claim; one act can violate several provisions on the list. It includes 30 different acts and practices that are prima facie false, deceptive, or misleading. There is no requirement for privity or knowledge/culpable mental state unless specified.
Under the DTPA, what’s unscionability?
This is determined at time of transaction. It is an act takes advantage of the lack of knowledge, ability, experience, or capacity of consumer to a grossly unfair degree.
T/F: Valid disclaimers and limitations are valid even if claim is brought under DTPA.
True. And the DTPA claim will fail.
T/F: Consumer cannot assert an implied warranty under DTPA against remote manufacturer.
True.
What is the implied warranty of good and workmanlike performance in service contracts?
In a contract for repair or modification of tangible chattels or real estate, there is an implied warranty that work will be done in a workmanlike and good manner. It cannot be disclaimed.
*Professionals don’t make this warranty.
T/F: A pre-suit notice is required unless the DTPA claim is filed as a counterclaim.
True. This entails written notice 60 days before filing suit, and the written notice includes economic damages and mental anguish and attorneys’ fees.
