Consumer Protection: February 21, 2022

INTRODUCTION:

Every state and the District of Columbia has authorized their attorney general to enforce state consumer protection statutes in state court on behalf of their citizens who were victims of “unfair or deceptive” practices in the marketplace.  While each state differs on the breadth of its coverage and the remedies available, it is a core duty of every attorney general to be involved in consumer protection.

Each state has now enacted an Unfair and Deceptive Acts and Practices Act (“UDAP”) that are remarkably similar.  These laws have produced thousands of cases and billions of dollars for consumers as well as injunctive relief, an uncountable number of law review articles and numerous courses offered in law and business schools.

This Chapter discusses the role of attorneys general in consumer protection.

In the aftermath of World War Two it became clear that one by products of America’s growing economy was the failure of traditional common law fraud theories to protect consumers in an increasingly complex marketplace.   Consumers were without access to information and common law caveat  emptor was denying effective response for victims.   Under the common law, both government and consumers were faced the daunting task of proving both intent and reliance before even beginning to overcome the fraud.

In the 1970’s state legislatures, supported by business organizations and the U. S. Chamber of Commerce,  gave to their attorneys general sweeping authority to investigate and prosecute consumer fraud.   Support for these laws was so strong that in 1978 the Congress actually appropriated federal funds that would go directly to attorneys general to begin or to create consumer protection divisions, and soon private remedies were added to the statutes all of which were to enforced in state courts. 

The importance of the enactment of these laws cannot be overstated.  To successfully bring a consumer fraud case under the common law, the victim would have to prove that the vendor had knowingly made a false statement with the intent to defraud, and that the victim had relied on the misrepresentation and been directly damaged by it.

Under UDAP, the attorney general gained the authority to investigate and receive documents without judicial approval and without even meeting a probable cause standard.  The attorney general further did not have to prove intent or reliance.  Private rights of action were later authorized and generally afforded the same powers.

Since the passage of state Unfair and Deceptive Practices Acts (UDAP), all State Attorneys General have responsibility in the area of consumer protection, which increasingly includes privacy issues. This Chapter discusses the broad nature of that authority and single state consumer protection enforcement.  It also lays the groundwork for the development of multistate AG consumer litigation against a backdrop of increased use of arbitration in private consumer litigation.