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20 Cards in this Set

  • Front
  • Back
any individual, partnership, corporation, this state... who acquires by purchase or lease any 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 / entity with assets of $25 million or more
Causes of action available under the DTPA
i. Laundry list violation
ii. Unconscionability
iii. Breach of Warranty

DTPA does not create warranties. Simply allows for recovery for breaches of statutory or common law warranties.
A successful DTPA claim will prove that:
a. THe plaintiff is a consumer as dfined in 17.45(4)

b. The defendant committed one of the actions specified in 17.50(a)(1), (2), (3) or (4)

c) The defendant's actions were the producing cause of the consumer's damages.
Business Consumer Exception to consumer standing
i. Consumer does not include a business consumer that has assets of $25 that is owned or controled by an entity with assets of $25 million or more.

I. the defendant has the burden to plead and prove the applicability of the business consumer exception as an affirmative defense.

III. assets mean gross assets.
Waiver of Consumer Status
Waiver is valid and enforceable if:

i. THe waiver is in writing and signed by the consumer;

ii. THe consumer is not in a significantly disparate baragaining position; and

iii. THe consuemr is represented by legal counsel in seeking or acquiring goods or services.

Waiver is not valid if the consumer's legal counsel was directly or indirectly suggested or selected by the seller.

REQUIREMENTS for waiver of the DTPA consumer rights:
i) conspicuous and in bold-face type of at least 10 points in size:
ii) identified by the heading "waiver of consumer rights," or words of similar meaning: and
iii. IN substantially read: exactly) the following ofrm:
1) I waive my rights unders the DTPA act a law that gives consuemrs special rights and protections after consultation with an attoreny of my own slection I voluntarily consent to waiver.
Media Exemption
i. Owner or employees of a regularly published newspaper, magazine, or telephone directory, or broadcast station, or billboard, wherein any advertisement in violation of this subchapter is published or disseminated,

i. Media Exemption does not apply to:

1. The owner or employees of the advertising medium have knowledge of the false, deceptive, or misleading acts or practices […], or

2. Had a direct or substantial financial interest in the sale or distribution of the unlawfully advertised good or service.
a. Financial interest: An expectation which would be the direct result of such advertisement.
Professional Services Exemption
A claim for damages based on the rendering of a professional service, the essence of which is the providing of advice, judgment, opinion, or similar professional skill.

i. The professional services exemption does not apply to:

1. An express misrepresentation of a material fact that cannot be characterized as advice, judgment, or opinion;

2. A failure to disclose information in violation of Section 17.46(b)(24)(failure to disclose in attempt to induce consumer to enter into transaction);

3. An unconscionable action or course of action that cannot be characterized as advice, judgment, or opinion;

4. Breach of an express warranty that cannot be characterized as advice, judgment, or opinion

5. These provisions may be asserted as a claim for vicarious liability
Lawyers and the Professional Exemption:
i. A bad result isn't unconscionable conduct, and there is a difference between negligence and deceptive conduct

ii. Lying to clients about whether you are actively pursuing a claim is an unconscionable course of conduct
Bodily injury and Mental Anguish Exemption:
i. Except as specifically provided by Subsections (b) and (h), Section 17.50, nothing in this subchapter shall apply to a cause of action for bodily injury or death or for the infliction of mental anguish.
Contract Exemption:
The contract exemption only applies to a written contract if:

i. It involves total consideration by the consumer of more than $100,000;

ii. The consumer is represented by legal counsel who is not directly or indirectly identified, suggested, or selected by the defendant or an agent of the defendant; and

iii. The contract does not involve the consumer’s residence.
$500,000 limitation on DTPA claims
Nothing in this subchapter shall apply to a cause of action arising from a transaction, a project, or a set of transactions relating to the same project, involving total consideration by the consumer of more than $500,000,

other than a cause of action involving a consumer’s residence.
There is no privity requirement between the consumer and the defendant.

i. The DTPA can extend beyond parties that provided the goods upon which a claim is based.
Upstream Suppliers
Upstream suppliers with no connection to the representations made to the consumer may not be reached by a DTPA suit.

i. merely enjoying hte benefit of selling raw material to a downstream manufacturer is not a sufficient connection to a misrepresentation.

ii. to the extent that a seller's DTPA liability is caused or contributed by the otherwise actionable misconduct of upstream suppliers, the sller may seek contribution or indemnity against them.
Assignment of DTPA claims
DTPA claims cannot be assigned by an aggrieved party to a separate party.

i. rationale: the DTPA was designed to protect consumers personally and individually from deceptive practices, and allowing assignment would shift the focus from deceptive practices to defective products.

ii. However, warranties are assignable
DTPA Notice

A consumer shall give written notice to the person at least 60 days before filing the suit advising the person in reasonable detail of following:

1) consumer's specific complaint

2) THe amount of economic damages, dmages for mental angusih, and expenses, including attorney's fees, if any, reasonable incurred by the consumer in asserting the claim against the defendant.
DTPA Improper Notice

If improper notice is given, a defendant may file a plea in abatement within 30 days of filing his answer
The court shall abate
i. The court shall abate the suit if the court finds that the person is entiteld to abatement bcause notice was not provided as required

ii. A suit is automatically abated without the order of the court beginning the on the 11th day after the date a plea in abatement is filed under subsection (c) if the plea in abatement:

1) is vefified and alleges that the person against whom the suit is pending did not receive the written notice as required by subection(a) and

2) is not controverted by an affidavit filed by the consumer before the 11th day after the date on which the plea in abatement is filed.
17.50(a) lists four categories of prohibited conduct:
i. Laundry List
ii. Breach of Express or implied warranty
iii. Any onconcionable action or course of action
iv. Violation of the insurance code.

Rationale: Texas law imposes a duty upon a seller making affirmative representations to know whether the statement is true.
Reliance 17.50(a) 1
any violation of the laundry list must be lied upon by the consumer to their detriment
most laundry list provisions do not require knowledge or intent.

i. inent should be presumed where

1) the defendant knew of information conerning the goods

2. the information was material

3. the information is negative