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Deceptive Trade Practices Act

11/24/2009

by Kelly W. Decker

The Deceptive Trade Practices Act (DTPA) is a commonly used statute that was designed to protect consumers from being taken advantage of in various subject matters. For example, I had a case once where a physician partnership purchased an MRI machine after being told that it was a new machine. When the machine stopped performing, we discovered the machine was made up of used, refurbished parts. This would qualify as a DTPA violation.

The elements of a DTPA action are as follows: 1. The Plaintiff is a consumer which is someone who seeks or acquires, by purchase or lease, goods or service; 2. The Defendant made: i. A false misleading or deceptive act or practice as more specifically provided for in the “Laundry List,” ii. Breached a warranty, iii. Committed an unconscionable action, iv. Violated the Insurance Code or v. the Defendant violated one of the tie in statutes such as the “Lemon Law;” and 3. The Defendant’s action was a producing cause of Plaintiff’s damages.

Most DTPA violations are of the Laundry List which provides 26 acts that are prohibited. The prohibited acts range from passing of goods or services as those of another, representing that goods or services are of a particular style or model, advertising goods or services with intent not to sell them as advertised, and using the term “corporation” in the name of a business entity that is not incorporated.

In some cases, if the deceptive acts are found to be committed intentionally, the Plaintiff may be able to recover treble damages. Despite being a fairly complicated statute, it’s a popular cause of action because of possibility of treble damages. Please let me know if you have any questions or would like to discuss this further.

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