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Understanding UTPA: Oregon's Consumer Protection Act

Learn about UTPA, Oregon's Unlawful Trade Practices Act, and its scope, AG's powers, common violations, remedies, and more. Get legal advice from Young Walgenkim Hanson & Walgenkim, LLC.

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Understanding UTPA: Oregon's Consumer Protection Act

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  1. UTPA in a Nutshellby Young WalgenkimHanson & Walgenkim, LLC503-383-1496young@hansonwalgenkim.com

  2. What is UTPA? • Unlawful Trade Practices Act (ORS 646.605-646.656) • Oregon’s Uniform Deceptive Acts and Practices (UDAP) Statute • All 50 states have their own UDAP statute • UDAP = consumer counterpart to a contract claim

  3. Scope of UTPA • 607: AG’s powers • 608: “Laundry list” • 608(a)(1)(aa) – (xxx): gives private right of action to to other statutes. • OAR 137-020-xxxx • Some federal statutes: • TILA (15 USC § 1601) • FTC Used Car Rule (16 CFR § 455)

  4. AG’s Powers • All of UTPA (ORS 646.605 – 646.656) • ORS 646.607 = Actionable by AG only • ORS 646.608 = Private Right of Action + AG

  5. 607 Violations • Unconscionable Tactics: 607(1) • Catch-all provision • Taking advantage of disability, ignorance, language • Consumer gets no material benefit • Fails to deliver as promised or fails to refund: 607(2) • Unfair Debt Collection Practices Act (UDCPA): ORS 646.618 • Many others

  6. CIDs (ORS 646.618) • Subpoena of Documents • Can conduct a pre litigation deposition at AG’s office • Failure to obey CID: • Shut down of the business (ORS 646.626)

  7. AG’s Goal • Money (Civil Penalties) • Assurance of Voluntary Compliance (AVC) • Promise not to do it again • Violation of AVC = Contempt • 1% of gross annual income per day contempt continues • If refuse to sign AVC • Injunction (ORS 646.632(1)) • Civil penalties of $25,000 per violation (ORS 646.642(3))

  8. Private Right of Action • The “laundry list”: ORS 646.608(1) • Must fit in one of the specified violations • No “catch-all”

  9. Common Violations • Goods/service not as described (e), (g) • Passing off used as new (f) • Misrepresentation of nature of transaction (k) • Failure to deliver as promised (q) • Misrepresentation of price (s) • Failure to disclose material defects (t)

  10. Other statutes: (1)(aa) – (xxx) • Spam faxing (hh) • Drug cars (pp) • Trust mills (qq) • Gift cards (eee) • Repair shops (mmm) • Lemon law (qqq) • Auto-renewal offers (ttt)

  11. OARs • OAR 137-020-0020 • Motor Vehicle Sales • OAR 137-020-0040 • TILA; Consumer Leasing; FTC Used Car Rule • OAR 137-020-0050 • Motor vehicle advertising • OAR 137-020-0800; 805 • Mortgage servicing • RESPA

  12. Pleading OARs • ORS 646.608(1)(u). • “Engages in any other unfair or deceptive conduct in trade or commerce.” • ORS 646.608(4). • “An action or suit may not be brought under subsection (1)(u) of this section unless the Attorney General has first established a rule in accordance with the provisions of ORS chapter 183 declaring the conduct to be unfair or deceptive in trade or commerce.”

  13. Elements of a UTPA claim • In the course of Defendant’s business • Consumer transaction • Willful violation • Ascertainable loss

  14. 1. In the course of business • No claim for private party transactions • Inventory, not equipment • E.g., No claim for furniture store selling its delivery truck

  15. 2. Consumer transaction • 2 Part test: • Searle v. Exley Exp., Inc., 278 Or. 535 (1977) • Goods/service is kind that is purchased for personal use • No claim for purchase of industrial equipment • Goods/service was actually purchased for consumer use • No commercial transactions

  16. 3. Willful violation • The Redden standard • “The term "wilful," as defined by ORS 646.605(9), requires no more than proof of ordinary negligence by a defendant in not knowing, when it should have known, that a representation made by him was not true.” State ex rel. Redden v. Discount Fabrics, Inc., 289 Or. 375, 385, 615 P.2d 1034 (1980). • The most important rule RE UTPA • No need to prove fraud • No “scienter” required

  17. 4. Ascertainable Loss • Must show some kind of financial harm • Tent with windows

  18. Remedies/Benefits pt.1 • Actual Damages • Non-economics are questionable • Statutory damages • $200, no stacking • Punitive damages • Many other UDAPs lack • Equitable relief • Injunction • Rescission

  19. Remedies/Benefits pt.2 • One way attorney fees • For prevailing consumers • Defendants can get for frivolous claims • No privity required • Raudebaughv. Action Pest Control, Inc., 59 Or.App. 166, 650 P.2d 1006 (Or. App., 1982) • Read Gillette’s dissent • Not a contract claim • UCC does not apply • Overcomes “As-Is”

  20. Pitfalls • 1 year SOL • But unlimited counterclaim • Real estate, goods, or services • Defined by ORS 646.605(6) • Includes loans and extension of credit (2010 amendment) • Includes insurance (2016 amendment) • Must serve AG with complaint and judgment • Court cannot enter judgment without proof of service

  21. UTPA in a Nutshellby Young WalgenkimHanson & Walgenkim, LLC503-383-1496young@hansonwalgenkim.com

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