1/30/16. Fee Shifting Chart. Week 3 UTPA PREVAILING PARTY CONSUMER LAW STATUTORY AUTHORITY AMERICAN RULE

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1 Fee Shifting Chart CONSUMER LAW STATUTORY AUTHORITY AMERICAN RULE PREVAILING PLAINTIFF UTPA ORS (3) FCRA 15 U.S.C. 1681o(a)(2) FDCPA 15 U.S.C. 1692k(a)(3) TCPA 47 U.S.C. 227(b)(3) PREVAILING PARTY 1

2 Fee Shifting under the UTPA The court may award reasonable attorney fees and costs at trial and on appeal to a prevailing plaintiff in an action under this section. The court may award reasonable attorney fees and costs at trial and on appeal to a prevailing defendant only if the court finds t hat an o bje ct ive ly reaso nable basis fo r bringing t he act io n o r asse rt ing t he ground for appeal did not exist. ORS (3) Class Break Over 2

3 In Parrott, how did the defendant allegedly violate the UTPA? 3

4 1/30/16 In Parrott, what was the jury verdict? In Parrott, what Constitutional authority did the defendant rely on? 4

5 UTPA Elements To prevail on a claim under the UTPA, a plaintiff must prove (1)an unfair trade practice, (2) causat ion, and (3)ascertainable loss. Gomez v. Bank of Am., N.A., 2012 U.S. Dist. LEXIS 36564, *26, (D. Or. Mar. 19, 2012) 5

6 UTPA Elements (cont.) Unfair Trade Practice Violation must be listed at ORS (1) or an OAR Violations must be willful Causation Damages must be directly caused by defendant s unfair trade practice Ascertainable Loss Plaintiff must usually suffer outof-pocket loss UTPA Elements (cont.) Willful means a defendant knew or should have known its conduct violated the UTPA. Adamson v. WorldcomCommuns., Inc. 190 Or App 215, 277 (2003) UTPA Elements (cont.) (1) A person engages in an unlawful practice if in the course of the persons business, vocation or occupation the person does any of the fo llo wing: ORS (1) 6

7 UTPA Elements (cont.) (4) Person means natural persons, corporations, trusts, partnerships, incorporated or unincorporated associations and any other legal entity except bodies or officers acting under statutory authority of this state or the United States. ORS (4) Person Natural persons Legal entities Damages Chart CONSUMER LAW STATUTORY AUTHORITY ACTUAL DAMAGES STATUTORY DAMAGES PUNITIVE DAMAGES PREVAILING PLAINTIFF FEES UTPA ORS FCRA 15 U.S.C. 1681n FDCPA 15 U.S.C. 1692k TCPA 47 U.S.C. 227(b)(3) 7

8 Class Break Over 1) a person that suffers an ascertainable loss as a result of another persons willful act or practice declared unlawful under ORS may bring an individual action to recover actual damages or statutory damages of $200, whichever is greater. The court or the jury may award punitive damagesand the court may provide any equitable relief the court considers necessary or proper. ORS (1) 8

9 Fee shifting under the UTPA The court may award reasonable attorney fees and costs at trial and on appeal to a prevailing plaintiff in an action under this section. The court may award reasonable attorney fees and costs at trial and on appeal to a prevailing defendant only if the court finds t hat an o bje ct ive ly reaso nable basis fo r bringing t he act io n o r asse rt ing t he ground for appeal did not exist. ORS (3) Statute of Limitations Chart CONSUMER LAW STATUTORY AUTHORITY ONE YEAR UTPA ORS (6) TWO YEARS FCRA 15 U.S.C. 1681p FDCPA 15 U.S.C. 1692k(d) THREE YEARS FOUR YEARS TCPA 28 U.S.C

10 Statute of limitations under the UTPA Actions brought under this section must be commenced within one year after the discoveryof the unlawful method, act or practice. ORS (6) ü Fact Pattern Statute of Limitations In 1971, a consumer bought a pack of Marlboro Lights. The pack falsely claimed light cigarettes were lower in tar than regular cigaret t es. ü In 1980, she read a public report warning about tar levels in light cigarettes. ü ü In 1990, she read a warning on a pack of Marlboro Lights that tar delivery may vary. In 2002, she learned of a class action UTPA lawsuit against Marlboro based on tar levels. When did the statute of limitations start? 10

11 Statute of limitations under the UTPA (cont.) As we have already described, a private UTPA action must be brought within one year fro m t he disco ve ry o f t he unlawful t rade pract ice o n which it is base d. Be cause t he limitation period is tied to the plaintiff's "discovery" of the unlawful conduct, it runs in this case fro m whe n the plaintiff class either actually knew or should have known that the representation that Marlboro Lights were lower in tar and nicotine was not true. Pearson v. Philip Morris, Inc., 358 Or. 88, 137 (2015) Class Break Over 11

12 Talking about Consumer Law Prevailing plaintiff Statutory damages Willful Ascertainable loss Commercial litigation Statute of limitations Lo adst ar 12

13 Next week UTPA (cont.) (cont.) Pop quiz (UTPA e le ment s) Punitive damages Pop quiz (ORS (1)) UTPA class actions Pop quiz (Oregonian article) UTPA class actions (cont.) David Sugerman 6:45 Next week s agenda 13