The Tennessee Consumer Protection Act

Have you looked at Tenn. Code Ann. §47-18-104 lately? It now contains 50 unfair or deceptive acts or practices affecting the conduct of any trade or commerce. Your client who violates the statute is a Class B misdemeanant. Of more practical importance, because criminal prosecutions are rarely brought, is the potential civil liability of your client.
Tenn. Code Ann. §47-18-109(a)(1) says a person who suffers a loss “may bring an action individually to recover actual damages.” Moving to §109(a)(3), we see that a willful or knowing violation may result in trebling of the actual damages.

Yes, Professor Paine, but I like punitive damages better than treble damages. You can get punitives, but you can’t get both. Your client will need to elect remedies. See Concrete Spaces Inc. v. Sender, 2 S.W.3d 901 (Tenn. 1999).

Ground (27) in the list of 50 used to be handy for plaintiffs’ lawyers: “Engaging in any other act or practice which is deceptive to the consumer or to any other person.” But now enforcement is confined to the Tennessee Attorney General and Reporter with the help of the Director of the Division of Consumer Affairs in the Department of Commerce and Insurance.

Two kinds of lawsuits are excluded by Tenn. Code Ann. §47-18-109(g) and (h). The first is a class action. The second is a Tennessee Securities Act private action under Tenn. Code Ann. §48-1-102.

In closing, let’s remind ourselves that the affirmative defense of fraud must be pleaded with particularity under Rule of Civil Procedure 9.02, and a Consumer Protection Act violation arguably is “fraud.” See Humphries v. West End Terrace Inc., 795 S.W.2d 128 (Tenn. App. 1990).


Don Paine DONALD F. PAINE died Nov. 18, 2013. He was a past president of the Tennessee Bar Association and at the time of his death was of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He was member emeritus to the Tennessee Bar Journal Editorial Board and a former president of the Tennessee Bar Association.

 

 

Editor’s Note: Mr. Paine wrote his columns months in advance, and as a result, “Paine on Procedure” has continued for many months after his death. This is his final column, which he wrote on Nov. 11, 2013.

Read more about him in the January 2014 issue: “He Loved the Law … and this Journal,” which I wrote (www.tba.org/journal/he-loved-the-law-and-this-journal), and “Remembering Two Great Teachers,” by Bill Haltom (www.tba.org/journal/remembering-two-great-teachers). Also, see “Legal Community Shares Thoughts, Memories” (www.tba.org/node/62835), where you can read tributes and stories about him, as well as post your own remembrances.

Our next issue, July, will be the first one since his column began in 1989 that won’t have any writings by Don Paine in it. I am not looking forward to that.

— SCR