Unfair and Deceptive Acts and Practices : With CD-ROM

by Sheldon, Jonathan A.; Carter, Carolyn L.

• ISBN13: 9781931697637
• ISBN10: 1931697639
• Edition: 6th
• Format: Paperback
• Copyright: 2004-11-30
• Publisher: Natl Consumer Law Center

Table of Contents

CD-Rom Contents	xlvii
First Considerations
What Is ``UDAP''	1	(1)
About This Manual	2	(1)
General Preparation for UDAP Clients	3	(1)
Determining Whether There Is a UDAP Approach to the Client's Problem	4	(2)
Transactions Amenable to a UDAP Approach	4	(1)
Look at All Aspects of a Transaction	5	(1)
Apply UDAP Standards Expansively	5	(1)
Alternatives to a UDAP Action	6	(1)
Determining Whether a UDAP Claim Should Be Pursued	6	(3)
UDAP Scope
General Principles	9	(12)
Determining a UDAP Statute's Scope	9	(1)
Burden of Proof	10	(1)
Liberal Construction of UDAP Scope Sections	10	(1)
Interpretations of ``Trade or Commerce''	11	(2)
Interpretations of ``Goods''	13	(1)
Interpretations of ``Merchandise''	14	(1)
Interpretations of ``Services''	14	(1)
Interpretations of ``Personal, Family, or Household Use''	15	(1)
General	15	(1)
Is the Test Objective or Subjective?	16	(1)
Interpretations Unique to Particular States	17	(1)
Listing of Consumer Transactions	17	(1)
Transactions Not Found to Be for Consumer Purposes	18	(1)
Texas Case Law Defining ``Consumer Transaction'': ``Consumer'' Not Limited to ``Personal, Family or Household Purposes''	19	(2)
No Requirement for Media Advertisement	21	(1)
UDAP Liability Where Party Outside UDAP Statute's Scope	21	(1)
Exempted Transactions	21	(29)
Credit	21	(1)
General	21	(1)
Does a Credit Transaction Involve ``Goods or Services''?	21	(3)
Services in Connection with a Loan or Banking Are ``Goods or Services''	24	(1)
Credit Is in ``Trade or Commerce''	24	(1)
Specific Statutory Exemptions	25	(1)
Does Other Legislation Occupy the Field of Credit Regulation?	25	(1)
FTC Act	25	(1)
Federal and state banking laws	26	(1)
Effect of Truth in Lending Act	27	(1)
Derivative Liability Under Holder Rule Regardless of UDAP Statute's Coverage	28	(1)
Debt Collection	28	(1)
Where There Is No ``Purchase''	29	(1)
Where Transaction Involves No ``Purchase''	29	(3)
Where Purchase Is Not from UDAP Defendant	32	(1)
Where Someone Other Than Consumer Pays	33	(1)
Post-Sale Activities	34	(1)
Real Property and Mobile Homes	35	(1)
Are Real Estate Sales Covered?	35	(1)
Real estate sales involve ``trade or commerce,'' ``property,'' and ``merchandise''	35	(1)
Does real estate sale involve ``goods or services''?	36	(2)
The isolated sale of real estate by owner	38	(1)
Special consideration for mobile home sales	39	(1)
Services, Personalty Related to Real Estate Are Covered	39	(1)
Residential Leases; Mobile Home Parks	40	(1)
Coverage	40	(1)
Does Other State Regulation of Landlord-Tenant Relations Displace UDAP Coverage?	41	(1)
UDAP Coverage Where Building Is Owner Occupied	42	(1)
Migrant Farmworker Camps	42	(1)
Campground and Other Membership Clubs	42	(1)
Pyramid Sales, Franchises, Securities, Business Opportunities	42	(1)
Pyramid Sales	42	(1)
Franchises and Other Investments	42	(1)
Securities Transactions	43	(3)
Work at Home Schemes and Other Personal Business Opportunities	46	(1)
Employer-Employee and Internal Business Disputes	47	(2)
Personal Injury Suits	49	(1)
The Texas Exemption for Large Transactions	50	(1)
Exempted Sellers	50	(35)
Insurance Companies	50	(1)
Does the UDAP Statute Apply to Insurance Practices?	50	(1)
Statutory Exemptions for Insurance Companies	51	(2)
State Insurance Code Displacement of UDAP Applicability	53	(2)
The Filed Rate Doctrine and Primary Jurisdiction	55	(1)
Utilities	55	(1)
Regulated Industries	56	(1)
Determining Whether Other State Regulation Bars a UDAP Action	56	(1)
UDAP Statutes Exempting Specific Regulated Entities or All ``Regulated Practices''	57	(1)
UDAP Statutes Exempting ``Practices Permitted by Law''	58	(1)
Mainstream precedent	58	(2)
Minority of courts confuse regulated with permitted	60	(3)
Are Permitted Practices Exempt Even Without an Explicit Statutory Exclusion?	63	(1)
State Law Displacement of UDAP Coverage	63	(1)
Introduction	63	(1)
Impact of explicit statutory language on statute's cumulative or exclusive effect	63	(1)
Jurisdictions that reject displacement	64	(1)
Other jurisdictions adopt a balancing approach	65	(1)
Whichever approach adopted, most UDAP claims are not displaced by other state regulation	66	(1)
Exhaustion of Administrative Remedies	67	(1)
Must consumer exhaust administrative remedies?	67	(1)
The doctrine of primary jurisdiction	68	(1)
Nonmerchant Sellers and Isolated Occurrences	69	(2)
Nonprofit Organizations and Schools	71	(2)
Government and Quasi-Government Agencies as Sellers	73	(1)
Printers and the Media	74	(1)
Wholesalers and Other Indirect Parties	75	(2)
Lawyers	77	(3)
Medical Professionals	80	(2)
Other Professionals	82	(1)
Out-of-State Transactions	83	(2)
Persons Excluded from UDAP Protections	85	(12)
Recipients of Insurance Payments; Third-Party Beneficiaries; Donees; Assignees	85	(1)
Introduction	85	(1)
Recipients of Insurance Payments	85	(1)
Donees	86	(1)
Third-Party Beneficiaries	86	(1)
Assignees of Consumers' Claims	87	(1)
Other Third Parties	87	(1)
Where Consumer Is Now Deceased	88	(1)
Loan Guarantors	88	(1)
Out-of-State Residents	88	(1)
Merchants; Corporations; Government Entities	89	(1)
Seller's Attempt to Treat Consumer as a Commercial Entity	89	(1)
Can Businesses Bring UDAP Actions?	89	(7)
Can Government Entities Bring UDAP Claims?	96	(1)
Investigators	97	(1)
Conflict with the FTC Act and Other Federal Law	97	(18)
General Principles of Federal Preemption	97	(1)
The FTC Act	98	(1)
Federal Banking and Credit Disclosure Laws	99	(1)
Federal Banking Laws Vary in the Scope of Preemption	99	(1)
National Bank Act	99	(2)
OTS Regulation of Savings and Loan Associations	101	(1)
Alternative Mortgage Transactions Parity Act	102	(1)
Federal Regulation of State-Chartered FDIC-Insured Banks	102	(1)
Federal Credit Unions	103	(1)
Real Estate Settlement Procedures Act	103	(1)
Truth in Lending Act	103	(1)
Federal Vehicle, Boat, and Mobile Home Standards	104	(1)
Federal Transportation and Shipping Laws	104	(2)
Federal Communications Laws	106	(1)
Federal Securities and Commerce Laws	107	(1)
Federal Health Care Laws	108	(1)
ERISA	109	(4)
Federal Tobacco Regulation	113	(1)
Other Federal Statutes	113	(2)
Demonstrating That a Practice Is a UDAP Violation
Getting Started	115	(2)
How to Use this Manual to Prove a Violation	115	(1)
Expansive, Liberal Application of UDAP Statutes	115	(2)
Per Se Violations	117	(12)
Pleading Per Se Violations	117	(1)
Per Se Violations Enumerated in the UDAP Statute	118	(1)
Most UDAP Statutes Prohibit Specific Enumerated Practices	118	(1)
Practices Outside Specific UDAP Prohibitions Are Still UDAP Violations	118	(1)
Per Se Violations of State UDAP Regulations	118	(1)
Finding of Common Law Fraud Necessitates Finding a UDAP Violation	119	(1)
UDTPA Violations as Per Se UDAP Violations	119	(1)
Violation of the FTC Act, Other Laws Where the Statute Itself States a Violation Is Unfair or Deceptive	120	(1)
Violations of Other State, Federal Laws as Per Se UDAP Violations	120	(1)
Importance of Finding Violations of Other Laws Per Se UDAP Violations	120	(1)
UDAP Scope Issues May Limit Applicability of Per Se Approach	121	(1)
Precedent Finding Violations of Other Laws to Be Per Se UDAP Violations	121	(1)
California, the District of Columbia, and Nevada UDAP statutes explicitly adopt and Texas UDAP statute explicitly rejects per se approach	121	(1)
Illinois UDAP statute has unique treatment for violation of credit statutes	122	(1)
State UDAP regulations finding statutory violations to be per se UDAP violations	122	(1)
Courts may determine that statutory violations are per se UDAP violations	123	(1)
Courts that reject the per se approach	124	(1)
Examples of statutory violations found to be per se UDAP violations	125	(3)
Arguing That a Statutory Violation Is a Per Se UDAP Violation	128	(1)
Violation of another statute as an unfair practice	128	(1)
Violation of another statute as deceptive practice	129	(1)
Proving UDAP Claims Without Per Se Violations	129	(3)
Introduction	129	(1)
Develop the Facts	130	(1)
Practice-Specific Precedent	130	(1)
Point Out General UDAP Standards	130	(1)
Introduction	130	(1)
Deception as a Broad Standard	131	(1)
Unfairness and Unconscionability as Evolving, Expansive Concepts	131	(1)
Sources of UDAP Precedent and Guidelines	132	(11)
The Statute	132	(1)
Legislative History; Model Statutes	132	(1)
General	132	(1)
Unfair Trade Practices and Consumer Protection Law	132	(1)
Uniform Consumer Sales Practices Act	133	(1)
Uniform Deceptive Trade Practices Act	133	(1)
Consumer Fraud Acts and Other Models	133	(1)
State UDAP Case Law	134	(1)
Keeping Up with In-State UDAP Cases	134	(1)
Other States' UDAP Case Law	134	(1)
State UDAP Regulations	135	(1)
Authority and Procedure to Enact Regulations	135	(1)
Precedential Effect of UDAP Regulations	135	(2)
FTC Cases, Other Guidelines	137	(1)
FTC Cases, Other Guidelines Are Important Sources of UDAP Precedent	137	(1)
Types of FTC Cases	138	(1)
Precedential Value of FTC Consent Agreements	139	(1)
Comparing the FTC Act and the State UDAP Statutes	139	(1)
Researching FTC Case Law	140	(1)
FTC Trade Regulation Rules, Guides, and Other Statements	141	(2)
General Principles as to UDAP Violations
Introduction	143	(1)
Deception, Statutory Fraud	143	(49)
Per Se Deception	143	(1)
Relationship of Deception to Unfairness, Unconscionability	143	(1)
Comparison of Deception with Fraud, Misleading Practices	144	(1)
Comparison with Common Law Fraud	144	(1)
Statutory Fraud; Misleading Practices	145	(1)
Intent Unnecessary	146	(1)
Intent Generally Not Required	146	(2)
Where Statute Explicitly Requires Proof of Intent	148	(1)
Knowledge Unnecessary	149	(1)
Knowledge Generally Not Required	149	(1)
Where Proof of Seller's Knowledge Is Required	150	(1)
Despite Good Faith Efforts	151	(1)
Despite Cessation of Practice	152	(1)
Despite Industrywide Practice	152	(1)
Actual Deception Unnecessary; Likelihood or Capacity for Deception Sufficient	153	(2)
Puffing as a Defense	155	(1)
Vulnerable Consumers Specially Considered	156	(1)
The FTC Standard	156	(1)
State UDAP Case Law	157	(1)
Materiality May Be Presumed and Reliance Is Unnecessary	158	(1)
Introduction	158	(1)
The FTC Standard	158	(1)
State UDAP Case Law	159	(1)
Proof of reliance generally not required	159	(2)
Small minority require reliance	161	(1)
No reliance required in non-disclosure or mis-disclosure cases	162	(1)
No reliance required in cases seeking injunctive relief	162	(1)
Where reliance required, it need not be reasonable reliance	163	(1)
Presumption of reliance where misrepresentations are material	163	(1)
Requirement That Representation Be Material	163	(1)
Relationship of Reliance to Causation	164	(1)
Ambiguous but Literally True Statements, Partial Truths, and Pictures Can Be Deceptive	165	(2)
Failure to Disclose	167	(1)
Overview	167	(1)
The FTC Standard	168	(1)
State UDAP Precedent	169	(1)
General standards	169	(1)
State regulations	170	(1)
Special duty to disclose for fiduciaries	170	(1)
Must the non-disclosure be knowing?	171	(1)
Must the seller intend that others rely on the omission?	172	(1)
Must the seller have an independent duty of disclosure?	172	(1)
Must the consumer investigate?	173	(1)
Specific nondisclosure holdings	173	(3)
Disclosures in on-line transactions	176	(1)
Electronic disclosures	177	(1)
Contract Defenses Do Not Apply to UDAP Cases	178	(1)
Deception Is Not Based on Breach of Contract	178	(1)
Parol Evidence Rule	179	(1)
Privity of Contract	179	(2)
Disclaimers, Merger Clauses, Limitations on Liability or Remedies, and Other Contract Clauses	181	(2)
Voluntary Payment Doctrine	183	(3)
Unclean Hands or Lack of Care by the Consumer	186	(1)
Post-Transaction Waivers	186	(1)
Other Contract Defenses	186	(1)
Tort Defenses Do Not Apply to Deception Claim	187	(1)
Contributory Negligence and Other Tort Doctrines	187	(1)
Economic Loss Rule Generally Does Not Apply to UDAP Claims	187	(2)
Subsequent Clarification Does Not Prevent Deception	189	(1)
Subsequent Disclosures Can Not Correct Earlier Deceptive Claims	189	(1)
Subsequent Consumer Conduct or Other Occurrence Can Not Cure Deception	190	(1)
The Georgia Exception	190	(1)
Immediate Customer's Deception Unnecessary	191	(1)
Oral Deceptions and Not Just Advertised Deceptions Are Actionable	191	(1)
Money-Back Guarantee Does Not Sanitize Fraud	192	(1)
Unfairness	192	(14)
General	192	(1)
The Current FTC Unfairness Standard	193	(1)
Standard Enacted by Congress in 1994	193	(1)
Substantial Consumer Injury	193	(1)
Injury that Consumer Can Not Avoid	194	(1)
Injury Not Outweighed by the Benefits to Consumers or Competition	194	(1)
Relation to Public Policy	195	(1)
Unfairness Standards under State UDAP Statutes	195	(1)
Unfairness Broader than Deception	195	(1)
Primacy of State Statutory Language and Intent and State Regulations	196	(1)
Precedential Effect of Congress' 1994 Definition of Unfairness in Interpreting State UDAP Statutes	196	(1)
State UDAP Use of ``S&H'' Unfairness Definition in Lieu of the Current FTC Definition	197	(1)
The ``S&H'' Standard Described	198	(1)
Differences Between the ``S&H'' and the Current FTC Standard	199	(1)
Alternative State Definitions	199	(1)
Application of Unfairness to Adhesion Contracts	200	(1)
FTC Credit Practices Rule	200	(1)
Other Precedent	200	(1)
Systematic Breach of Contract as Unfair	201	(1)
Coercive High-Pressure Sales and Collection Tactics	202	(1)
Taking Advantage of Disparate Knowledge	202	(1)
Taking Advantage of a Vulnerable Group	203	(1)
Illegal Conduct	203	(1)
Misuse of Special Status	204	(1)
Taking Advantage of an Emergency Situation	205	(1)
Unconscionable Practices as Unfair Practices	205	(1)
Unconscionability	206	(8)
Importance of Unconscionability Standard	206	(1)
Definitions of Unconscionability in UDAP Statutes and Regulations	206	(1)
UDAP Case Law Defining Unconscionability	207	(1)
Taking Advantage of Vulnerable Consumers	207	(1)
Price Unconscionability	208	(1)
Unconscionable Performance Practices	209	(1)
Unconscionable Collection and Enforcement Practices	210	(1)
Other UDAP Unconscionability Decisions	210	(1)
Other Sources of Unconscionability Precedent	211	(1)
General	211	(1)
Specific UCC, UCCC, and Common Law Unconscionability Findings	212	(2)
Unsubstantiated Claims	214	(2)
General	214	(1)
FTC Standards	214	(1)
State UDAP Precedent	215	(1)
Deceptive Pricing Inducements	216	(8)
Bait and Switch	216	(1)
Unavailability of Advertised Items	217	(1)
Deceptive Pricing and Bargain Items	218	(1)
Deceptive Pricing in Comparison to a Reference Price	218	(2)
Other Deceptive Pricing Techniques	220	(1)
Use of the Word ``Free''	221	(1)
Low Balling; Charging Higher Prices Than Agreed Upon	222	(1)
Consumer Specially Selected or Contest Winner	223	(1)
Conditions or Limitations on Offers	224	(1)
General Misrepresentations Regarding Product and Seller	224	(9)
Product Characteristics, Uses and Benefits	224	(2)
Product Uniqueness	226	(1)
Product Quality, Composition, Model and Identity	226	(1)
Product Safety	226	(1)
Product Quantity and Size	227	(1)
Product's Method of Manufacture	228	(1)
Seller's and Product's Approval, Affiliation and Endorsement	228	(1)
Approval or Affiliation	228	(1)
Unlicensed or Unregistered Sellers	229	(1)
Endorsements	230	(1)
Manufacturer's and Seller's Status; Fictitious Names	231	(1)
Passing Off; Trademarks	232	(1)
Disparaging Competitors	233	(1)
High-Pressure and Coercive Sales Techniques	233	(2)
UDAP Precedent	233	(2)
High-Pressure Sales as Unfair Practices	235	(1)
Deceptive Performance Practices	235	(7)
Layaway Plans; Other Deposits	235	(1)
Delay and Nondelivery	236	(1)
Damaged and Defective Goods	237	(1)
Used as New; Prior Use	237	(1)
Substitution of Displayed Products	238	(1)
Packaging	239	(1)
Repair Practices	239	(1)
Deceptive Billing Practices	240	(2)
Anti-Competitive Conduct	242	(2)
Application of UDAP Statutes to Antitrust Cases	242	(2)
Challenging Consumer Abuses as Anti-Competitive	244	(1)
Invasion of Privacy	244	(3)
Specific Unfair or Deceptive Practices
Credit and Collections	247	(57)
Debt Collection, Other Creditor Remedies	247	(1)
Debt Collection	247	(1)
Introduction and important sources of UDAP precedent	247	(1)
Skip-Tracing	248	(1)
Misrepresentations concerning identity and nature of collector	248	(1)
Misrepresentations concerning imminency of threatened actions, damage to consumer's credit rating	249	(1)
Misrepresentations as to legal consequences of debt nonpayment	250	(1)
Harassment	251	(1)
Collecting debts or amounts that are not owed	251	(1)
Taking illegal actions against the consumer or the consumer's property	252	(1)
FTC Credit Practices Rule	253	(1)
General overview	253	(1)
Similar FRB, OTS, and NCUA rules for banks	253	(1)
FTC staff letters as precedent	254	(1)
Confession of judgment provision	254	(1)
Waiver of exemption clauses	254	(1)
Wage assignments	254	(1)
Household goods security interests	255	(1)
Pyramiding late charges	256	(1)
Cosigner warning notice	257	(1)
Private UDAP actions utilizing the FTC rule	257	(1)
Attempts to circumvent FTC Credit Practices Rule	258	(1)
Challenging Other Creditor Remedies	259	(1)
Using the FTC unfairness theory, as applied in the Credit Practices Rule	259	(1)
Case law finding creditor remedies unfair or deceptive	260	(1)
Abuse of Process, Inconvenient Venue	261	(1)
Unfair and Deceptive Repossession and Pawnshop Practices	262	(1)
Unfair contract provisions	262	(1)
Deceptive contract provisions	263	(1)
Unfair and deceptive repossession conduct	263	(1)
Unfair or deceptive practices relating to redemption, collateral sales, deficiencies, and surpluses	264	(1)
Pawnbrokers' sale of pawned goods	265	(1)
Unfair and Deceptive Foreclosure Practices	265	(1)
Foreclosure Assistance, Credit Repair, and Credit Counseling	266	(1)
Foreclosure Assistance Scams	266	(1)
Advice, referral, and bankruptcy scams	266	(1)
UDAP claims in sale-leaseback and similar scams	266	(1)
Other claims against homesavers	267	(1)
Claims against other parties and against the house	267	(1)
Credit Repair Organizations	268	(1)
Introduction	268	(1)
Federal Credit Repair Organizations Act	268	(1)
State credit repair laws	269	(1)
FTC Telemarketing Rule	270	(1)
UDAP approaches	271	(1)
Car dealers and other sellers as regulated by state credit repair laws	271	(1)
Applicability of federal credit repair statute to sellers	272	(1)
Credit Counselors, Debt Settlement, and Debt Elimination	273	(1)
The credit counseling industry	273	(1)
Legal claims	273	(3)
Abuse of non-profit status	276	(1)
Debt settlement or negotiation agencies	277	(1)
Debt elimination	277	(1)
Loan Brokers	278	(1)
General	278	(1)
Advance-Fee Brokers	279	(1)
Yield Spread Premiums	280	(1)
Improvident Extension of Credit	280	(1)
General	280	(1)
UDAP and Other Laws Prohibiting Credit That Consumer Can Not Repay	281	(1)
Applying General UDAP Prohibitions to Improvident Extension of Credit	281	(1)
Other Claims	282	(1)
Falsification of Credit Application by Seller or Broker	282	(1)
Nature of the problem	282	(1)
The consumer's legal claims	283	(1)
Computing the consumer's damages	283	(1)
Consumer's clean hands	284	(1)
Violations of Federal and State Credit Laws as UDAP Violations	284	(1)
Truth in Lending Violations	284	(1)
RESPA Violations	285	(1)
Discriminatory Extension of Credit	285	(1)
Violations of State Credit Laws	286	(1)
Attempts to Evade Credit Legislation	286	(1)
Exorbitant Credit Charges	287	(1)
Credit Costs That Are Grossly in Excess of Those Usually Charged in Market	287	(1)
Other Unfairness or Unconscionability in Credit Charges	287	(2)
Uncovering Deception in Excessive Charge Cases	289	(1)
Deception, Coercion, and Violation of Credit Contract	290	(1)
Misrepresentation of Credit Terms	290	(2)
Nondisclosure of True Credit Terms	292	(1)
General	292	(1)
Rules requiring disclosure of all material restrictions	293	(1)
Coercive Tactics	293	(1)
Post-Consummation Violation of Credit Terms	294	(1)
Special Issues in Home Mortgage Loans	294	(1)
Negotiation, Closing, and Loan Terms	294	(2)
Promising Low-Cost Financing	296	(1)
Escrow Practices	296	(1)
Payoff of Mortgage	296	(1)
Equity Stripping	296	(1)
Credit Cards and Related Services	297	(1)
Credit Card Marketing	297	(1)
Credit Card Finders	298	(1)
Unauthorized Credit Card Charges	299	(1)
Credit Balances	299	(1)
Credit Card Loss Protection and Reporting Services	300	(1)
Bank Accounts, Checks, Other Payment Methods	300	(1)
Deposit Accounts	300	(1)
Check Cashing	300	(1)
``Telechecks'' and Unauthorized Electronic Fund Transfers	301	(1)
Introduction	301	(1)
Telechecks or preauthorized drafts	301	(1)
Unauthorized electronic funds transfers	301	(1)
How the scam operator obtains the account numbers	301	(1)
UCC determines consumer rights concerning unauthorized telechecks	302	(1)
The EFTA and NACHA rules determine consumer rights concerning unauthorized electronic funds transfers	302	(1)
Distinguishing telechecks from electronic transfers	303	(1)
FTC Telemarketing Rule and state statutes apply to both telechecks and electronic funds transfers	303	(1)
Lack of adequate verification as a UDAP violation	303	(1)
Contracts, Warranties and Legal Rights	304	(20)
Contract Language for Non-English Speaking Consumers	304	(1)
Introduction	304	(1)
UDAP Claims	304	(1)
Other Statutory Requirements	305	(1)
Relevance of ``English-Only'' Laws	306	(1)
Plain English Contract Language	307	(1)
Unfair and Unenforceable Adhesion Contract Terms	308	(1)
FTC Credit Practices Rule Sets Out Theory for Unfair Standard Form Contract Terms	308	(1)
Other FTC Precedent	309	(1)
State Precedent Concerning Unenforceable Contract Terms	309	(1)
Other State Precedent on Adhesion Contracts	310	(1)
Arbitration Clauses as Unfair or Unconscionable	310	(1)
Contractual Misrepresentations	311	(1)
Deception Concerning the Nature of the Document Being Signed	311	(1)
Oral Representations Inconsistent with the Contract	312	(1)
Breaches of Contract	312	(1)
Mere Breach of Contract May Not Be UDAP Violation	312	(1)
Systematic Breach of Many Consumer Contracts as UDAP Violation	313	(1)
Entering into Contract with No Intention to Fulfill Obligations	314	(1)
Deception Accompanying the Contract Breach	314	(1)
Unequal Relationship of the Parties	315	(1)
Refunds and Cancellation Rights	315	(2)
Guarantees, Warranties, and Service Contracts	317	(1)
Breach of Warranties as UDAP Violations	317	(1)
Introduction	317	(1)
UDAP statute may apply where breach of warranty claim is unavailable	317	(1)
Warranty breach as per se UDAP violation	317	(2)
Aggravating circumstances can turn breach of warranty into UDAP violation	319	(1)
Magnuson-Moss breach of warranty violation as a per se UDAP violation	319	(1)
Service Contracts	319	(1)
Duplication of warranty rights	319	(1)
Deceptive marketing techniques	319	(1)
Failure to pay consumer claims under the service contract	320	(1)
Pricing practices	320	(1)
Misrepresentations Concerning the Status of a Guarantee	321	(1)
General	321	(1)
Thirty day, ``50-50'' warranties	322	(1)
Other Misrepresentations of Legal Rights and Requirements; Misrepresentation of Law vs. Fact	323	(1)
Merchant's Slow Payment on Judgment Owed Consumer	324	(1)
Insurance	324	(33)
Introduction	324	(1)
Relation of UDAP to State Unfair Insurance Practices Act (UNIP) Legislation	325	(1)
UNIP Legislation Described	325	(1)
Effect of UNIP Statute in a UDAP Action	326	(1)
UNIP standards as guides for determining UDAP violations	326	(1)
UNIP action should not displace UDAP remedy	327	(1)
Exhaustion of UNIP administrative remedies as precondition to UDAP action	327	(1)
Private UNIP Actions as Alternative to UDAP Action	327	(1)
Utility of a private UNIP claim	327	(1)
Implying a private UNIP remedy	328	(3)
Unreasonable Refusal or Delay in Paying Claim as a UDAP Violation	331	(1)
Refusal to Pay	331	(2)
Parties Liable for Unfair Claims Settlement Practices	333	(1)
Misuse of Superior Power as UDAP Violation	334	(1)
Excessive Delay and Evasiveness as a UDAP Violation	334	(1)
Excessive Paperwork Requirements as UDAP Violation	335	(1)
Denial Must Be Based on Unambiguous Contract Exclusion, Not on a Business Judgment	335	(1)
Failure to Conduct an Adequate Investigation as UDAP Violation	336	(1)
Insurer's Failure to Disclose and Deception in the Claims Settlement Process	336	(1)
Requiring Consumer to Sign Waiver as UDAP Violation	337	(1)
Third-Party Settlement Practices	337	(1)
Is a Pattern of Unfair Claims Payments a Precondition to a UDAP Action?	338	(1)
UDAP Claim Distinguished from Claim Based on Insurer's Breach of Contract	339	(1)
Litigating the Bad Faith Refusal as a UDAP Claim	339	(1)
Misrepresentations Concerning Policy Coverage	340	(1)
Misrepresentations Concerning Insurer Claims Settlement Policies	341	(1)
Twisting; Sale of Unnecessary Insurance; Other Unfair or Deceptive Sales Schemes	341	(1)
Unfair Discrimination	342	(2)
Third Party's Failure to Purchase Insurance for the Consumer	344	(1)
Excessive Premiums as a UDAP Violation	344	(1)
Credit Insurance	345	(1)
Introduction	345	(1)
Failure to Disclose Excessive Cost or Kickbacks	346	(1)
Marketing Deception, Illusory Coverage	346	(1)
Coercion in Selling Credit Insurance	347	(1)
Truth in Lending requirements	347	(1)
State insurance laws	347	(1)
State credit statutes	348	(1)
UDAP challenges	348	(1)
Coercion in connection with store credit cards	349	(1)
Other resources concerning coercion	349	(1)
Purchase of Excessive Credit Property Insurance	349	(1)
Failure to Pay Credit Insurance Claims	350	(1)
Force-Placed Automobile Insurance	350	(1)
General	350	(1)
Uncovering Force-Placed Insurance Problems	351	(1)
Failure to Disclose Severe Limits on Single Interest Coverage	351	(1)
Charging the Consumer for Extra Coverages Not Authorized by the Credit Agreement	351	(1)
Failure to Notify Consumers of Force-Placed Coverage	352	(1)
Lenders Pocketing Experience-Related Refunds and Dividends	352	(1)
Kickbacks to Lenders	352	(1)
Forcing the Consumer to Pay for Tracking and Notification Costs for Other Consumers	353	(1)
Inflating Financing Costs	353	(1)
Selecting Legal Claims	353	(1)
Settlements and Other Consumer Recoveries	354	(1)
``Packing'' Non-Credit Insurance in Conjunction with Credit Sale	354	(1)
Insurance Packing Described	354	(1)
Insurance Packing as a UDAP Violation	355	(1)
Mortgage Insurance	356	(1)
Automobiles, Mobile Homes, Travel	357	(79)
Automobile Repairs and Towing	357	(1)
Introduction	357	(1)
Estimates, Repair Orders	357	(1)
Replaced Parts and Invoices	358	(1)
Misrepresentation That Work Is Required or of Type of Work Performed; Shoddy Work	359	(1)
Timeliness of Repairs; Unauthorized Use of Car	360	(1)
Failure to Correct Inadequate Repairs	360	(1)
Bill Collecting Practices	360	(1)
Towing Practices	360	(1)
Discovery in Automobile Sales Cases	361	(1)
Introduction	361	(1)
Deal Files and File Jackets	362	(1)
The Worksheet, Purchase Order, and Retail Installment Sales Contract	362	(1)
Odometer Statements and Title Documents	362	(1)
Recap Sheets and Charge Backs	363	(1)
Finance Facsimiles, Finance Reserves, and the Credit Application	363	(1)
Log Books, Cash Draw Files, and Business Manager's Penetration and Performance Reports	364	(1)
Payroll Records, Policy and Procedure Manuals, Training Manuals, Advertising	364	(1)
Dealer Contracts with Third Parties; Association Files	365	(1)
The Title Chain	365	(1)
Other Sources of Information	365	(1)
Inspection of the vehicle and accompanying documentation	365	(1)
Licensing agencies and the state insurance department	365	(1)
Law enforcement and consumer complaint agencies; revenue agencies	366	(1)
Court files and former employees	366	(1)
Competitors and trade associations	366	(1)
Prior owners, the manufacturer's warranty records, dealer repair records, auction records	366	(1)
Taperecording conversations between dealer and consumer	367	(1)
The Internet	367	(1)
The NADA Code of Ethics	367	(1)
Uncovering Hidden Dealer Assets	368	(1)
``Back End'' Sales: Rust-Proofing, Financing, Insurance, Service Contracts, Documentary Charges, and Other Add-Ons	369	(1)
Back-End Sales Explained	369	(1)
``Packing'' of Back-End Charges	369	(1)
Rustproofing and Other Dealer-Installed Add-Ons	370	(1)
General	370	(1)
UDAP precedent concerning rustproofing	371	(1)
Dealer Kickbacks on Financing	371	(1)
The Practice Explained	371	(1)
ECOA challenges	372	(1)
TIL and state law challenges	372	(1)
UDAP challenges	372	(1)
Dealer's Altering of Consumer's Credit Application, Fictitious Down Payments, and Other Frauds on the Financer	373	(1)
Service Contracts, Extended Warranties	373	(1)
Undisclosed dealer profit on sale of contract	373	(1)
Where dealer is actually the service contract provider	374	(1)
Does the contract provide meaningful benefits?	374	(1)
Undisclosed inspection fees	375	(1)
Who must provide benefits on the service contract	375	(1)
Credit Insurance and Other Insurance Products	375	(1)
Documentary Fees and Other ``Paper'' Charges	375	(1)
Introduction	375	(1)
UDAP challenges	376	(1)
Truth in Lending challenges	377	(1)
Anti-trust claims	377	(1)
State statutory restrictions	377	(1)
Unfair Dealer Negotiation Practices	377	(1)
The Turnover System	377	(1)
Dealer's Illegal Use of Consumer Credit Reports	378	(1)
``Unhorsing'' and Selling the Consumer's Trade-In Prematurely	378	(2)
Dealers Hiding Trade-Ins' Negative Equity	380	(1)
Dealer Failing to Payoff the Lien on the Consumer's Trade-In	381	(1)
Lowering the Trade-In's Agreed-Upon Price	381	(1)
Playing Fast and Loose with the Paperwork	381	(1)
Misrepresentations as to Consumer's Cancellation Rights; Three-Day Cooling-Off Period Under Credit Repair Laws	382	(1)
Yo-Yo (Spot-Delivery) Abuses	382	(1)
Successful Consumer Litigation Challenges	382	(1)
The yo-yo explained	382	(1)
Litigation approaches and the organization of this section	383	(1)
Dealer's Right to Cancel the Yo-Yo Transaction	384	(1)
Absent valid contingency clause, no right to cancel	384	(1)
Contingency must be in writing	385	(1)
Cancellation allegedly based on credit application misstatements	385	(1)
Absence of dealer signature does not create a valid contingency	385	(1)
Does contingency clause comply with state law?	386	(1)
Where contingency placed in a separate document or conflicts with other loan terms	386	(1)
Have the exact conditions allowing cancellation occurred?	387	(1)
Where dealer knows in advance that contingency will not be met	387	(1)
Misrepresentations that the sale is final	388	(1)
Consumer remedies where cancellation not valid	388	(1)
Importance of ECOA and FCRA Claims	388	(1)
Introduction	388	(1)
Notice requirements	389	(1)
Is the dealer a covered creditor?	389	(1)
The counter-offer defense	390	(1)
Other dealer defenses	391	(1)
ECOA and FCRA remedies	391	(1)
Where Consumer Goes Home with a Car, But No Credit Disclosures	391	(1)
Dealers Almost Always Improperly Structure the Yo-Yo	392	(1)
How dealers improperly mix and match two different types of transactions	392	(1)
Is it an illegal condition precedent or an illegal condition subsequent yo-yo?	393	(1)
Dealer practices inconsistent with a condition precedent transaction	393	(2)
UDAP violations in condition precedent transactions	395	(1)
Condition subsequent sales often violate federal and state titling requirements	395	(2)
Where dealer seeks a repossession title after recovering a yo-yo vehicle	397	(1)
Condition subsequent sales must comply with UCC Article 9	397	(1)
Truth in Lending violations in a condition subsequent sales	397	(1)
Trade-Ins and Deposits	398	(1)
Misrepresentations After Yo-Yo Cancellation	399	(1)
Re-negotiation misrepresentations	399	(1)
Backdating documentation of a subsequent sale	399	(1)
Must the Consumer Arbitrate Yo-Yo Sale Claims?	399	(1)
Discovery in Yo-Yo Sale Cases	400	(1)
Used Car Sales	401	(1)
Introduction	401	(1)
FTC Used Car Rule	401	(1)
The rule's scope	401	(1)
Rule requirements	401	(1)
Common rule violations	402	(1)
Remedies for rule violations	402	(1)
Where Buyers Guide warranty disclosure conflicts with warranty provided in the sales agreement	403	(1)
FTC Used Car Rule does not insulate sellers from UDAP liability	403	(1)
Sale of Used Cars as New; Demonstrators and Program Cars	403	(2)
Nature of Prior Use	405	(1)
Odometer Rollbacks and Mileage Misrepresentations	406	(1)
UDAP precedent	406	(1)
Federal Odometer Act prohibits oral misrepresentations	406	(1)
Sale of Salvage and Flood-Damaged Cars and Undisclosed Body Damage	407	(1)
Nature of the problem	407	(1)
Discovering a salvage or wreck history	408	(1)
Undisclosed salvage or wreck history as a UDAP violation	408	(1)
``Lemon Laundering'' (Undisclosed Sale of Car Previously Returned as a Lemon)	409	(1)
Introduction	409	(1)
Lemon laundering abuses	410	(1)
How to discover if a vehicle is a laundered lemon	410	(1)
Lemon laundering as a UDAP violation	411	(1)
State lemon laundering statutes	411	(1)
Other causes of action	412	(1)
Non-disclosure or Misrepresentation of Vehicle Defects	412	(1)
General	412	(1)
The special case of a demonstrator with a repair history	413	(1)
Dealer re-sale of the same junk used RV or car to lure consumers into more costly deals	413	(1)
Misrepresentations Concerning Clear Title	413	(1)
Misrepresentations of Vehicle Characteristics	414	(1)
Misrepresentations as to Vehicle Warranty	414	(1)
Excessive Price	414	(1)
Buy Here---Pay Here Dealerships	414	(1)
General	414	(1)
Credit repair laws may apply to ``buy here---pay here'' dealerships	415	(1)
Revolving repossession practices	415	(1)
Information to obtain in discovery	416	(1)
Private Sellers and Curbstoners	416	(1)
New Car Sales	416	(1)
Introduction	416	(1)
Pricing Misrepresentations	417	(3)
The Monroney Sticker	420	(1)
Undisclosed Damage Before a New Car Is Sold	420	(1)
Misrepresentation of Vehicle Identity, Characteristics	421	(1)
Stealing Manufacturer Rebates	422	(1)
Destination Charges	422	(1)
Slow and Non-Delivery of Ordered Cars	422	(1)
Misrepresentation of Warranties Offered	423	(1)
Manufacturer and Dealer Handling of New Car Defects	423	(1)
Obligation to disclose known defects	423	(1)
Secret warranties	424	(1)
Breach of written and implied warranties as UDAP violations	425	(1)
Automobile Leases	425	(1)
Applicability of UDAP to Automobile Leases	425	(1)
Deceptive Inducements and Misrepresentations About the Nature of the Lease	425	(2)
Early Termination and Default	427	(1)
UDAP Violations at Scheduled Termination, Including Charges for Excess Mileage and Wear	428	(1)
UCC Article 2A Unconscionability as Alternative to UDAP Claim	428	(1)
Daily Rental Car Practices	429	(1)
Introduction	429	(1)
Collision Damage Waivers and Insurance	429	(1)
Undisclosed Charges and Switching of Car Models	429	(1)
Excess Charges to Repair Damage	430	(1)
Automobile Sub-Lease Scams, Brokers, and Car Finders	430	(1)
Automobile Sub-Leases	430	(1)
Described	430	(1)
Consumer remedies	431	(1)
Dealers Assisting Consumer in Renting Their RV	432	(1)
Automobile Finding Services	432	(1)
Sale of Automobile Accessories	432	(1)
Mobile Home Sales	432	(1)
Introduction	432	(1)
Federal Actions	433	(1)
State UDAP Precedent	433	(1)
Brokers Selling Mobile Homes for Consumers	434	(1)
Land-Home Packages	434	(1)
Travel	435	(1)
Air Travel	435	(1)
Cruises	435	(1)
Travel Packages and Certificates	435	(1)
Travel Agents	436	(1)
Apartment Rentals, Mobile Home Parks, Migrant Camps, Real Estate Sales, and Storage	436	(19)
Mobile Home Parks	436	(1)
Preliminary Issues	436	(1)
Park Rental Agreements, Rules, and Fees; Performance of Park Obligations; Sale of Utilities	436	(1)
Unfair Restriction on Tenant's Sale of the Home	437	(1)
Park Eviction Practices	438	(1)
Other Approaches to Protecting Mobile Home Park Tenants	438	(1)
Tenant ownership of the park	438	(1)
Comprehensive mobile home park legislation	438	(1)
Mobile home park tenant associations, creative use of UDAP statutes, and other legal theories	439	(1)
Landlord-Tenant Practices	439	(1)
Introduction	439	(1)
Security Deposits and Calculation of Rents	440	(1)
Rental Agreements	440	(1)
Substandard Housing	441	(1)
Failure to Obtain Occupancy Certificates	442	(1)
Safety-Related Violations	442	(1)
Utilities	442	(1)
The Tenant's Early Termination	442	(1)
Deceptive Notices to Quit	443	(1)
Evictions and Related Practices	443	(1)
Landlord Seizure of the Tenant's Possessions	444	(1)
Home Finders	444	(1)
Migrant Farmworker Camps	445	(1)
Real Estate Sales	445	(1)
Inapplicability of Seller Defenses	445	(1)
Deception Concerning the Nature of the Home	446	(1)
UDAP Violations Concerning Title, Financing, and the Homeowner's Legal Rights	447	(1)
Property Flipping	448	(1)
Special Issues Concerning Real Estate Agents and Brokers	449	(1)
Special Issues Concerning Appraisers	450	(2)
Special Issues Concerning Home Builders	452	(1)
Misrepresentations concerning the home or work to be performed	452	(1)
Performance problems, warranties	452	(1)
Precut Housing	453	(1)
Land Fraud Schemes	453	(2)
Condominiums and Timeshares	455	(1)
Storage of Goods	455	(1)
Home Improvements and Related Services, Utilities and Telecommunications	455	(20)
Home Improvement Sales	455	(1)
Introduction	455	(1)
Marketing Misrepresentations	456	(1)
The Home Improvement Contract and Warranties	457	(1)
Building Permits and Construction Standards	458	(1)
High Prices and Changes in the Agreed-Upon Price	458	(1)
Failure to Perform Work Properly and as Scheduled	459	(1)
Credit-Related Practices and Lender Liability	459	(1)
Alarm and Emergency Response Systems, Other Emergency Devices	460	(1)
Pest Control Services	460	(1)
Household Goods Movers	461	(1)
Water Quality Improvement Systems	461	(1)
Radon Testing	462	(1)
Energy Savings Claims	462	(1)
Unregulated Heating Fuel and Gasoline	463	(1)
Problems Facing Users of Oil, Propane, Kerosene, and Wood	463	(1)
Applicability of the UDAP Statute	464	(1)
UDAP Case Law	464	(1)
UDAP Regulations	464	(1)
Price Gouging on Petroleum Products	465	(1)
UDAP Principles Applicable to the Sale of Unregulated Fuels	465	(1)
Gas and Electric Service	466	(1)
Abuses Relating to Utility De-Regulation	466	(1)
Effects of deregulation on consumers	466	(1)
Retail energy market abuses	466	(1)
Wholesale energy market abuses	467	(1)
Illegal Shut-Offs	468	(1)
Telephone, Telecommunications, and Internet Services	468	(1)
The Filed Rate Doctrine	468	(1)
Described	468	(1)
Telephone services not covered by the doctrine	469	(1)
Marketing and Billing for Telecommunications Services	470	(1)
Slamming (Changing Long-Distance Carriers without the Consumer's Authorization)	471	(1)
Prepaid Phone Cards	472	(1)
Unauthorized Charges	472	(1)
Inside Wiring Maintenance Contracts and Phone Rental	472	(1)
Internet Service Providers	473	(1)
Water and Sewer Service	474	(1)
Overview	474	(1)
Water and Sewer Service by a regulated utility or municipality	474	(1)
Water Quality and Service Provided by Non-regulated Entities	474	(1)
Household Products	475	(8)
Encyclopedias and Magazines	475	(1)
Freezer Meats	476	(1)
Furniture and Carpet Sales	476	(1)
Rent-To-Own Sales	477	(1)
Importance of UDAP Approach	477	(1)
Applicability of UDAP Statutes to RTO Transactions	478	(1)
Deceptive RTO Inducements, Sales and Warranty Practices	478	(1)
Disclosure of RTO Transaction's Effective Annual Percentage Rate	479	(1)
Applicability of Three-Day Cooling-Off Period to RTO Transactions	479	(1)
Deceptive Repossession and Debt Collection Tactics	480	(1)
UCC Article 2A Unconscionability as Alternative to UDAP	481	(1)
Household Cleaners and Purifiers	481	(1)
Computers and Other Electronic Equipment	481	(1)
Toys and Musical Instruments	482	(1)
Environmental Claims for Household Products	482	(1)
Handguns	483	(1)
Miscellaneous Household Products	483	(1)
Door-to-Door, Mail Order, Referral, Unsolicited, Negative Option Sales	483	(15)
Mail-Order Sales	483	(1)
FTC Rule	483	(1)
Other Precedent	484	(1)
Door-to-Door and Off-Premises Sales	485	(1)
The FTC Cooling-Off Period Rule	485	(1)
Interrelation of FTC Rule with State Law	486	(1)
Interrelation of FTC Rule and State Law with Truth in Lending Rescission	487	(1)
Scope of the FTC Rule	487	(1)
Sales outside the home are also covered	487	(1)
Effect of prior negotiations, seller being invited to the home	488	(1)
Emergency exception	488	(1)
Mail and telephone sales	488	(1)
Leases, rent-to-own transactions, transactions under $25	489	(1)
Sales of real property, home improvements, securities, and insurance	489	(1)
What sellers are covered	489	(1)
Scope of State Laws	489	(1)
Overview	489	(1)
Coverage that is broader than the FTC rule	490	(1)
Narrower coverage than the FTC rule	490	(1)
Level of in-home contact required under state statutes	491	(1)
Particular interpretations of state law scope provisions	492	(1)
Consumers' Rights Under FTC Rule, State Statutes	492	(1)
Mechanics of three-day cancellation right	492	(1)
No recovery for services performed prior to cancellation	493	(1)
Continuing right to cancel if notice is defective	493	(1)
Other consumer protections	494	(1)
Other Consumer Remedies Under Cooling-Off Rule, State Statutes	495	(1)
Referral Sales	495	(1)
Unsolicited Goods	496	(1)
Negative Option Plans	497	(1)
Telemarketing, 900 Numbers, On-Line Fraud, and Spam	498	(34)
Introduction	498	(1)
Overview of State and Federal Telemarketing Statutes and Regulations	498	(1)
Telephone Consumer Protection Act	499	(1)
Scope	499	(1)
Challenges to Statute and Regulation	499	(1)
Junk Faxes	500	(1)
Restriction on Auto Dialers and Abandoned Calls	500	(1)
Prerecorded Calls	501	(1)
General and Company-Specific Do-Not-Call Lists	502	(1)
Restrictions on Calling Times	502	(1)
Prohibition of Caller ID Blocking	503	(1)
Consumer Remedies	503	(1)
Creation of private cause of action	503	(1)
Jurisdiction in state and federal court	503	(1)
Relief	504	(1)
Who is liable	505	(1)
FTC Telemarketing Sales Rule and Statute	505	(1)
Overview	505	(1)
Scope of Statute and Rule	506	(1)
Disclosures Required	507	(1)
General disclosure requirements	507	(1)
Special disclosure requirements for prize promotions	508	(1)
Prohibition Against Deception	508	(1)
General prohibition	508	(1)
Charitable contributions	509	(1)
Prize promotions and investment opportunities	509	(1)
Harassment and Abuse	509	(1)
General prohibition	509	(1)
Abandoned calls	509	(1)
Privacy Issues: Calling Hours, Do-Not-Call Lists, and Caller ID Blocking	510	(1)
Calling hours	510	(1)
Company-specific do-not-call lists	510	(1)
Nationwide do-not-call list	510	(1)
Prohibition against Caller ID blocking	511	(1)
Special Rules for Particular Types of Telemarketing Solicitations	511	(1)
Upsells	511	(1)
Credit card protection services	511	(1)
Negative-option sales	512	(1)
Special restrictions for credit repair services, advance-fee credit offers, and recovery rooms	512	(1)
Preacquired account telemarketing	513	(2)
Protections Against Unauthorized Billing and Credit Card Laundering	515	(1)
Prohibition against unauthorized billing	515	(1)
Requirement of ``express verifiable authorization'' when payment is made by certain methods	515	(1)
Credit card laundering	516	(1)
Public and Private Enforcement of the Rule	516	(1)
Public enforcement	516	(1)
Private enforcement	517	(1)
Other State and Federal Law Applicable to Telemarketing	517	(1)
FTC Mail or Telephone Order Merchandise Rule	517	(1)
State and Federal RICO Statutes	517	(1)
State Telemarketing Fraud Statutes	518	(1)
UDAP, Fraud, and Other State Statutes	519	(1)
Identifying All the Entities Liable for a Telemarketer's Fraud	519	(2)
Practical Steps to Remedy or Prevent Telemarketing Fraud	521	(1)
Withholding Payment on Credit Card Bill for Fraudulent Telemarketing Sale	521	(1)
Fraud Hotline	521	(1)
Stopping Future Consumer Victimization	521	(1)
900-Number Fraud	522	(1)
Nature of 900-Number Fraud	522	(1)
Federal 900-Number Regulation	523	(1)
State Laws Regulating 900 Numbers	524	(1)
Other Entities Liable for a Provider's 900-Number Fraud	525	(1)
Practical Suggestions to Avoid 900-Number Fraud	526	(1)
On-Line Fraud	526	(2)
Unsolicited Bulk Commercial E-mail	528	(1)
Why Unsolicited Bulk Commercial E-mail Is a Problem for Consumers	528	(1)
Legal Theories for Suing Spam Senders	529	(1)
Federal CAN-SPAM Act provides no private cause of action	529	(1)
Telephone Consumer Protection Act	530	(1)
Other federal laws	530	(1)
State anti-spam laws	531	(1)
Other state law claims	532	(1)
Practical Problems in Suing Spammers	532	(1)
Future-Service Contracts: Health Spas, Dance Studios, Membership Campgrounds, Buying Clubs, and Trade Schools	532	(16)
Introduction	532	(1)
Cancellation of Future-Service Contracts	533	(1)
The Seller's Contract Provision	533	(1)
State Statutes May Override Contractual Cancellation Provision	534	(1)
Contract Law Defenses May Provide Additional Protections	534	(1)
UDAP Approaches	534	(1)
Health Spas	535	(1)
FTC Rulemaking Proceeding, State Statutes	535	(1)
UDAP Precedent	536	(1)
When a Spa Closes Down	537	(1)
Dance Studios	537	(1)
Campground Resort Memberships	537	(1)
A Case Study of Abusive Sales Techniques	537	(2)
Potential Campground Membership Resort UDAP Violations	539	(2)
Special Membership Campground Statutes	541	(1)
Practice Tips	542	(1)
Buying Clubs; Discount Coupons	543	(1)
Trade School Abuses	544	(1)
Nature and History of Trade School Abuses	544	(1)
FTC Guides	545	(1)
UDAP Precedent	545	(1)
Other Claims	546	(2)
Advising Trade School Clients	548	(1)
Health, Nutrition, and Funerals	548	(12)
Hearing Aids	548	(1)
Other Medical Cures, Food Advertising	549	(4)
Nursing Facilities	553	(1)
General	553	(1)
Common Violations of the Federal Nursing Home Reform Law	554	(1)
Third-party guarantees	554	(1)
Other common NHRL violations	554	(1)
Assisted Living Facilities	555	(1)
Funerals	556	(1)
The FTC Rule	556	(1)
Case Law	557	(1)
Hospital Treatment and Payment Issues	558	(1)
Managed Care	559	(1)
Tobacco	559	(1)
Attorneys, Living Trusts, Other Fiduciaries	560	(7)
Attorneys	560	(1)
Nonattorney Legal Service Providers and the Unauthorized Practice of Law	561	(1)
Introduction	561	(1)
Immigration Consultants or Assistants	561	(1)
Bankruptcy Petition Preparers	562	(2)
Unauthorized Practice of Law	564	(1)
Tort and Other Causes of Action	564	(1)
Living Trusts	565	(1)
Trustees, Escrow Agents, Other Fiduciaries	566	(1)
Investigators and Other ``Finders''	566	(1)
Accountants	567	(1)
Opportunity Schemes and Other ``Nonsale'' Transactions	567	(14)
Franchises and Business Opportunities	567	(1)
FTC Franchising Rule	567	(1)
Other FTC, State UDAP Precedent	568	(3)
Investments	571	(1)
Employment Opportunities	572	(2)
Pyramid Sales	574	(2)
Contests and Game Promotions	576	(2)
Charitable Solicitations	578	(1)
Scholarship Location Services and Diploma Mills	579	(2)
Liability of Various Parties
Introduction	581	(1)
Liability of Agents and Employees	582	(1)
Liability of Principals, Co-Venturers	583	(3)
Principals Liable for the Acts of Their Agents	583	(2)
Principal's Liability for Actions of Independent Contractor	585	(1)
Liability of Co-Venturers, Partners	585	(1)
Liability of Officers, Directors, Owners, Parent Companies, Franchisors, Successor Corporations, and an Individual's Estate	586	(5)
Introduction	586	(1)
Liability for Own Actions	586	(3)
Piercing the Corporate Veil and Related Theories	589	(1)
Liability of Franchisors	590	(1)
Liability of Other Closely-Related Corporations	590	(1)
Liability of Successor Corporations	590	(1)
Survival of Action After Defendant's Death	591	(1)
Those Aiding or Furnishing Means for Deception; Civil Conspiracy and Joint Enterprise	591	(9)
Types of Parties Who May Be Liable	591	(2)
Conduct Sufficient to Trigger Liability	593	(1)
General	593	(1)
Aiding and Abetting	594	(1)
Civil Conspiracy	595	(2)
Ratification, Acceptance of Benefits, and Concealment of Fraud	597	(1)
Liability of Credit Card Issuers as Aiders and Abettors	598	(1)
Credit Card ISOs and Other Intermediaries as Aiders and Abettors	598	(1)
Those Assisting Telemarketing Fraud	599	(1)
Endorsers and Accrediting Organizations	599	(1)
Liability of Assignees and Related Creditors for Seller's Misconduct Under the FTC Holder Rule	600	(36)
Overview	600	(1)
Rationale for FTC Holder Rule	600	(1)
Credit-Sale Obligations Assigned to Creditor	600	(1)
Loans to Purchase Goods or Services	601	(1)
Straight Loans of Money	601	(1)
Relationship to Lender's Direct Liability for Participation in Deception	602	(1)
Organization of This Section	602	(1)
Scope of the FTC Holder Rule	602	(1)
Operational Scope of the Holder Notice	602	(1)
Scope of the Rule	603	(1)
Sales transactions covered	603	(1)
Coverage of leases	603	(1)
Covered sellers	604	(1)
Covered credit transactions	605	(1)
Student loans	606	(2)
Operation of the FTC Holder Rule	608	(1)
Seller-Related Claims Covered by the Rule	608	(1)
Consumer's Claims Can Offset Remainder Due on the Note	609	(1)
Effect on Security Interest	609	(1)
Recovery of Amounts Already Paid	610	(1)
General	610	(1)
Recovering from a prior holder	611	(1)
Is recovery of amount paid only available where consumer could rescind sale or goods or services have no value?	611	(2)
Is recovery of amounts paid available only where otherwise permitted by state law?	613	(1)
Are Attorney Fees Included Within the Cap?	614	(1)
Multiple or Punitive Damages	614	(1)
No Limit on Creditor's Liability for Own Conduct	614	(1)
Relationship of FTC Rule and Federal Statutes Limiting Liability	615	(1)
Relation to TIL and ECOA limits on assignee liability	615	(1)
Relation to the Magnuson-Moss Warranty Act	616	(1)
Liability of Holders of Securitized Debt	616	(1)
Liability of FDIC, RTC, or Holders Subsequent to Them	616	(1)
Relation of FTC Rule to State Law	617	(1)
FTC Rule overrides only less protective state laws	617	(1)
The LaBarre court's misinterpretation	618	(1)
Consumer's Waiver of Claims Against Holder	619	(1)
Holder's Refusal to Accept Liability Under Holder Rule as an Independent UDAP Violation	620	(1)
Theories of Recovery Where FTC Holder Notice Is Improperly Omitted	620	(1)
General	620	(1)
Absent Holder Notice as an Implied Contract Term	621	(1)
Revised Article 9 requires notice to be implied	621	(1)
Revised Article 3 will require the Holder Notice to be implied in negotiable instruments	622	(1)
Court decisions prior to Revised Article 9 implying notice into contract	622	(1)
Creditor Who Accepts Contract or Note Without Required Holder Notice Loses UCC Protection Against Consumer's Defenses	623	(1)
Omission of Holder Notice as UDAP Violation by Holder	623	(1)
General	623	(1)
Creditor's actions as a deceptive practice	623	(1)
Creditor's actions as an unfair practice	624	(1)
Are the creditor's actions within the UDAP statute's scope?	625	(1)
RICO Liability for Omitted Holder Notice	626	(1)
Does Violation of FTC Rule Make Contract or Note Illegal and Thus Unenforceable?	626	(1)
Other Theories for Holding Assignees and Lenders Liable for Seller-Related Claims and Defenses	627	(1)
Introduction	627	(1)
Assignee of Credit Contract Is Generally Subject to Seller-Related Defenses	627	(1)
State Statute May Create Derivative Liability Independent of FTC Holder Rule	627	(3)
The Close-Connectedness Doctrine	630	(2)
HOEPA Liability	632	(1)
Liability of Credit Cards Issuers and Those Issuing Similar Devices	632	(1)
Introduction	632	(1)
What is a ``credit card?''	632	(1)
Covered disputes; payment of disputed amount waives consumer rights	633	(1)
Three additional preconditions to asserting cardholder claims and defenses	633	(1)
Mechanics of raising claims with card issuer	633	(1)
Challenging credit card charges under the Fair Credit Billing Act	634	(1)
Other theories of card issuer liability	634	(1)
Liability of Lessor for Consumer's Claims Against Dealer and Manufacturer	635	(1)
Raising dealer-related claims against the lessor	635	(1)
Raising manufacturer-related claims against the lessor	635	(1)
Raising Lender-Related Defenses Against the Lender's Assignee	636	(23)
General	636	(1)
Does Holder-In-Due-Course Status Exist and What Defenses Does It Bar?	636	(1)
Introduction	636	(1)
Is There a Negotiable Instrument?	637	(1)
Overview of requirements for negotiable instruments	637	(1)
The fixed amount requirement	637	(1)
Payable on demand or at a definite time	638	(1)
Payable to bearer or to order	638	(1)
Unconditional promise to pay and no other undertaking	638	(1)
Electronic negotiable instruments	639	(1)
Is the Holder of the Instrument a Holder in Due Course?	639	(1)
General	639	(1)
The holder requirement; indorsements and allonges	640	(1)
Value	641	(1)
Good faith	641	(1)
Without notice	641	(1)
Rights of Transferees from Holders in Due Course	642	(1)
Defenses the Consumer Can Raise Even Against a Holder in Due Course	643	(1)
Liability of Assignees of High-Rate Mortgages	643	(1)
General	643	(1)
Loans Covered by HOEPA	644	(1)
Exemption Where Assignee Is Unaware of HOEPA Coverage	644	(1)
Special Issues Arising in Securitization Transactions	645	(1)
Introduction	645	(1)
The Different Players in a Securitization Transaction	645	(1)
Documentation Underlying a Securitization Transaction	646	(1)
Raising Defenses on a Securitized Loan	647	(1)
Introduction	647	(1)
Who is the proper party in interest in the enforcing the note?	647	(1)
Defenses that can be raised even against a holder in due course	647	(1)
Holder-in-due-course status can only be raised where the note is a negotiable instrument	647	(1)
No holder in due course in HOEPA loans	647	(1)
Does the trust acquire holder-in-due-course status?	648	(1)
Damage Claims in Securitization Transactions Against Parties Other Than the Original Lender	648	(1)
Raising Lender-Related Defenses Against the FDIC, RTC, and Subsequent Note Holders	649	(1)
Introduction	649	(1)
Three Doctrines Insulating FDIC and RTC	649	(2)
Consumer Obligations Not Covered by the FTC Holder Rule	651	(2)
Raising Defenses to Local Telephone Company Collection of 900-Number and Long-Distance Charges	653	(1)
UDAP Claims Against Bankrupt Sellers	654	(1)
Merchant Bonding, Insurance, and Consumer Recovery Funds	655	(1)
Recovering on a Bond	655	(1)
Recovering from the Merchant's Insurance Policy	656	(1)
Consumer Recovery Funds	657	(2)
Litigating UDAP Cases
Introduction	659	(1)
Is There a Private UDAP Right of Action?	659	(3)
Private Right Unambiguously Exists in Every State Except Iowa	659	(1)
Implying a Private UDAP Right of Action in Iowa	660	(1)
Can Consumers Bring Actions Under UDTPA-Type Statutes?	661	(1)
Statutes of Limitations	662	(8)
Applicable Limitation Period	662	(2)
When Does the Period Start to Run?	664	(1)
Discovery Rule	664	(2)
Date of Injury	666	(1)
Series of Events	667	(1)
Other State Rules	668	(1)
Tolling	668	(1)
General	668	(1)
Fraudulent Concealment and Estoppel	668	(1)
Pendency of Another Suit	669	(1)
Limitations Period Where Complaint Amended to Add New Claims or Parties	669	(1)
UDAP Recoupment Claims After the Limitations Period Expires	670	(1)
Retroactive Application of Statutory Provisions	670	(3)
Preconditions to Private Actions	673	(27)
Introduction	673	(1)
Damage Precondition	673	(1)
Types of Damage Preconditions	673	(2)
Implications of Damage Precondition	675	(1)
UDAP Statutes That Explicitly Dispense with Damage Preconditions	675	(1)
Must the Amount of Damage Be Proved?	676	(1)
Consumer Injuries That Satisfy the Damage Requirement	677	(1)
Non-pecuniary losses	677	(1)
Clauses that have not been enforced	678	(1)
Temporary losses	678	(1)
Delivering product different than consumer bargained for	678	(1)
Bait-and-switch cases	679	(1)
Debts and litigation Expenses	679	(1)
Other losses	680	(1)
The Damage May Be Minimal	680	(1)
Causation	681	(1)
Proof of Damage Precondition	682	(1)
Public Interest Precondition	682	(1)
Almost All States Reject a Public Interest Requirement	682	(3)
The Washington State Standard	685	(2)
Colorado Requires a Significant Impact on the Public as Consumers	687	(1)
Minnesota Requires Private UDAP Actions to Meet a Public Interest Test	688	(1)
Nebraska Applies UDAP Statute Only to Transactions That Affect the Public Interest	688	(1)
Georgia Intermediate Appellate Courts Require Impact on Consumer Marketplace or Potential Harm to Consumer Public	689	(1)
South Carolina Requires That Practice Have Impact on Public Interest	689	(1)
New York Requires That Practices Impact Consumers at Large	690	(4)
Notice Letters as Precondition	694	(1)
Is a Notice Letter a Precondition to a UDAP Action?	694	(1)
Are Notice Letters Required for Counterclaims?	695	(1)
Form of the Notice Letter; Delivery	695	(1)
To Whom Must the Notice Letter Be Sent?	696	(1)
Content of the Notice Letter	696	(1)
Notice Letters and Class Actions	697	(1)
Pleading Notice and Proving Notice Was Sent	698	(1)
If Notice Was Not Sent	698	(1)
Seller's Responsibilities on Receiving Notice Letter	699	(1)
Jurisdiction and Choice of Law Issues	700	(11)
Introduction	700	(1)
Jurisdiction over Out-Of-State Sellers	700	(4)
Choice of Law Issues	704	(1)
The Proper State Court	705	(1)
Federal Court Jurisdiction	706	(2)
Bankruptcy Court Jurisdiction	708	(1)
The Enforceability of Binding Arbitration Agreements	709	(2)
Pleading and Framing UDAP Claims	711	(9)
Complying with Notice Letter, Public Interest, Damage, and Scope Requirements	711	(1)
Choosing the Plaintiff	712	(1)
Choosing the Defendants	712	(1)
Framing the Nature of the Suit	713	(1)
Elements to Plead	714	(1)
Allegations Should Be Specific	715	(3)
Adding Non-UDAP Counts	718	(1)
Filing a UDAP Suit After a Collection Action and Other Res Judicata Issues	719	(1)
Preparing for Settlement	719	(1)
Discovery and Factual Investigation	720	(2)
Starting Discovery Early	720	(1)
Evidence to Look for	721	(1)
Other Approaches to Obtaining Evidence	721	(1)
Trial	722	(6)
Evidence and Proof Issues	722	(1)
Standard of Proof	722	(1)
Other Bad Acts	723	(1)
Expert Testimony	724	(1)
Other Evidence Issues	725	(1)
Trial Before a Judge or Jury	725	(1)
Strategic Considerations	725	(1)
Is a Jury Trial Available for UDAP Claims?	725	(2)
Questions of Law vs. Questions of Fact	727	(1)
Voir Dire, Opening and Closing Arguments, Jury Instructions, and Trial Strategy	728	(1)
Constitutional Issues	728	(9)
Introduction	728	(1)
The First Amendment	728	(1)
Deceptive Commercial Speech	728	(2)
Unfair Commercial Speech	730	(1)
Determining Whether Speech Is Commercial or Political	731	(2)
Attempts to Restrict Sale of Course Materials or Other Publications	733	(1)
First Amendment Issues in Defamation Claims by Dealers	733	(1)
Vagueness	733	(1)
Other Constitutional Challenges	734	(3)
Private UDAP Remedies
Nature and Liberal Interpretation of UDAP Remedies	737	(1)
Is There a Private UDAP Remedy?	738	(1)
Calculating Actual Damages	739	(15)
Introduction	739	(1)
Direct Actual Damages	739	(1)
How Are Direct Damages Calculated: Out of Pocket, Loss of Bargain, or Cost to Repair?	739	(1)
Loss-of-Bargain Damages	740	(1)
Cost-to-Repair Damages	741	(1)
Out-of-Pocket Damages or Restitution	742	(1)
General	742	(2)
Need the court deduct the value of the product from the restitution amount?	744	(1)
Restitution where consumers can not be located	744	(1)
Consequential Damages	744	(1)
General	744	(1)
Standards to Prove Consequential Damages	745	(1)
Financing Costs as Consequential Damages	746	(1)
Consequential Damages Based on Consumer's Lost Time or Earnings	746	(1)
Lost Use of a Product or Service	746	(1)
Injury to Credit Rating	747	(1)
Attorney Fees as Consequential Damages	747	(1)
Physical Injuries	747	(1)
Pain and Suffering; Mental Anguish	748	(1)
General	748	(1)
States where UDAP pain and suffering damages are never recoverable	748	(1)
Pain and suffering damages generally recoverable where there is physical injury	748	(1)
Pain and suffering damages recoverable where deception intentional or grossly negligent	749	(1)
Modern standards may be even more liberal	749	(1)
Is mere aggravation enough?	750	(1)
Prejudgment Interest	750	(1)
Proving Actual Damages and Causation	751	(1)
General Standards	751	(2)
Damages and Causation in Bait and Switch Cases	753	(1)
Contractual Limitations on Damages	753	(1)
Collateral Source Rule	753	(1)
Mitigation of Damages	753	(1)
Interrelation of UDAP Actual Damages and Damages on Other Claims	754	(1)
Statutory, Multiple, and Punitive Damages	754	(25)
Statutory Minimum Damages	754	(1)
General	754	(1)
Statutory Damages for Multiple Claims	755	(1)
Statutory Damages for Multiple Plaintiffs	755	(1)
Should Statutory Damages Be Trebled?	756	(1)
Interrelationship Between Statutory Damages and Other Awards	756	(1)
Multiple Damages	756	(1)
General	756	(1)
Are Multiple Damages Mandatory?	757	(1)
Limits on Treble Damages Award	758	(1)
Intent or knowledge preconditions	758	(1)
Bad faith refusal to settle as precondition	759	(1)
Other preconditions to multiple damage awards	759	(1)
Standards where multiple damages are discretionary	760	(1)
Statutory standards as to the multiplier to be utilized	761	(1)
Are Multiple Damages Available in Default Judgments?	761	(1)
Arbitration and Multiple Damages	761	(1)
Can UDAP multiple damages claims be forced into arbitration?	761	(1)
Does an arbitrator have authority to award multiple damages?	762	(1)
Interrelation of Treble Damages with Other Awards	762	(3)
How to Calculate Multiple Damages	765	(1)
Relationship to seller's recovery in the same case	765	(1)
Relationship to settlement with other defendant in the same case or defendant's payments before judgment	765	(1)
What awards should be trebled?	765	(1)
Should the amount of a cancelled or rescinded debt be trebled?	766	(1)
Prejudgment and postjudgment interest; other financing costs	766	(1)
Multiple violations	767	(1)
Should the Jury Be Told That Actual Damages Will Be Trebled?	767	(2)
Parties Liable for Treble Damages	769	(1)
Punitive Damages	769	(1)
Are Punitive Damages Available Under a UDAP Statute?	769	(1)
Common Law Fraud Punitive Damages Where UDAP Punitive Damages Not Available	770	(1)
Standards for Determining Whether UDAP Punitive Damages Should Be Awarded	770	(2)
Need Consumer Prove Actual Damages?	772	(1)
Arbitration and Punitive Damages	772	(1)
Limits on the Amount of Punitive Damages	773	(1)
Constitutional limitations enunciated by the United States Supreme Court	773	(2)
State statutory caps on punitive damages awards	775	(1)
Potential of multiple punitive damages awards against one defendant	776	(1)
Who Is Liable for Punitive Damages?	777	(1)
Interrelation of Punitive Damages with Other Remedies	778	(1)
Class Actions	779	(9)
General	779	(1)
UDAP Class Action Procedures	780	(1)
UDAP Class Actions Where Individual Damage Is Minimal	780	(1)
Proving a UDAP Violation Is Common to the Class	781	(1)
Comparison of UDAP and Fraud Class Actions	781	(1)
Showing a Common Deceptive Practice	782	(1)
General	782	(1)
Mass advertising	782	(1)
Standardized sales presentations	782	(1)
Common problems with the product itself	783	(1)
Common excess charges	783	(1)
Standard form contract provisions	783	(1)
Standardized billing and collection practices	783	(1)
Common failure to disclose a material fact	784	(1)
Do class issues predominate?	784	(2)
Is the class action superior?	786	(1)
Multi-State Class Actions	786	(1)
``Picking Off'' Named Plaintiffs	787	(1)
Statutory Damages for Each Class Member	787	(1)
Settlements	788	(1)
Arbitration and Class Actions	788	(1)
Injunctions and Other Equitable Relief	788	(5)
Advantages of the Injunctive Remedy	788	(1)
Does a UDAP Statute Authorize Private Injunctive Relief?	789	(1)
Statutes that Explicitly Authorize Private Injunctive Relief	789	(1)
Implying an Injunctive Remedy in Other States	789	(1)
Preconditions for Private Injunctive Relief	790	(1)
Must the Plaintiff Be Injured?	790	(1)
Must the Plaintiff Benefit from the Injunction?	791	(1)
Does an Adequate Remedy at Law Prevent Injunctive Relief?	792	(1)
Relationship of Injunctive Remedy to Arbitration Clause	792	(1)
Other Equitable Relief	793	(1)
Voiding and Rescinding Contracts	793	(3)
Introduction	793	(1)
Statutory Language Authorizing Remedy	793	(1)
Where Statute Is Silent as to Availability of Remedy	794	(1)
Procedures to Rescind Contract	795	(1)
Relationship of Remedy with Other UDAP Remedies	795	(1)
Attorney Fees	796	(41)
Purpose of UDAP Attorney Fee Provisions	796	(1)
When Are UDAP Attorney Fees Available?	796	(1)
Statutory Preconditions to Attorney Fee Award	796	(2)
Where No Explicit Statutory Authority for Fees	798	(1)
Availability of Other Remedies Does Not Limit Access to Fees	798	(1)
Are Attorney Fees Mandatory?	799	(1)
When Does a Consumer Prevail, Triggering UDAP Attorney Fees?	800	(1)
Must the Consumer Prove UDAP Damages?	800	(2)
Must the Consumer's Recovery Exceed the Creditor's?	802	(1)
Multiple Claims or Multiple Parties	802	(1)
Attorney Fees for Work on Default Judgments and Protecting a Judgment	803	(1)
Settlements	803	(1)
Are fees available after settlement?	803	(1)
Can a seller ask the consumer to waive fees in a settlement?	804	(1)
The catalyst theory and how to preserve a fee claim when settling a case	804	(2)
Collateral Proceedings, Including Proceedings Relating to the Fee Award	806	(1)
Attorney Fees in Arbitration Proceedings	806	(1)
Where Arbitration Restricts Prevailing Consumer's Right to Fees	806	(1)
Where Arbitrator with Authority to Do So Fails to Award Fees to Prevailing Consumer	807	(1)
Where Arbitration Agreement Provides Consumer Must Pay Prevailing Defendants' Fees	807	(1)
Attorney Fees for Appellate Work	808	(1)
When Are Such Fees Awarded?	808	(1)
Who Determines Appellate Attorney Fees?	809	(1)
Types of Representation Entitled to Fees	810	(1)
Attorney Fees for Legal Services Attorneys	810	(1)
Paralegals and Law Clerks	810	(1)
Expert Witnesses	810	(1)
Pro Se Representation	811	(1)
Who Receives the Fees?	811	(1)
Who Is Liable for Attorney Fees?	811	(1)
Attorney Fees for Prevailing Sellers	812	(1)
Introduction	812	(1)
Has the Seller Prevailed?	812	(1)
Tougher Standard for Sellers' Fees Where Award Is Discretionary for Either Party	813	(1)
Where a UDAP Statute Explicitly Limits Fees to Frivolous or Bad Faith Actions	814	(1)
Importance of the exact statutory language	814	(1)
Meaning of ``for purposes of harassment''	814	(1)
Meaning of ``bad faith''	814	(1)
Meaning of ``groundless''	815	(1)
Meaning of ``frivolous''	815	(1)
Issue for the judge or jury?	816	(1)
Authority for Seller's Attorney Fees Where No Explicit Authorization in UDAP Statute	816	(1)
How Attorney Fees Are Calculated	817	(1)
Why UDAP Attorney Fee Awards Must Be Adequate	817	(2)
Examples of Significant UDAP Attorney Fee Awards	819	(1)
Factors Used to Calculate Fees	819	(1)
Standards vary by state	819	(8)
The lodestar formula	827	(2)
Fees calculated based on contingency fee agreement	829	(1)
Awards for Work on Non-UDAP Counts and on Unsuccessful UDAP Counts	830	(2)
Calculating Fees for Public Interest Attorneys	832	(1)
Fees for Paralegals, Law Clerks	832	(1)
Out-of-Pocket Expenses	833	(1)
Effect of Federal Rule of Civil Procedure 68 and Similar State Rules	833	(1)
Judicial Procedure for Seeking Attorney Fees	834	(3)
Other Private Remedies
No Private Remedy Under the FTC Act	837	(1)
The Racketeer Influenced & Corrupt Organizations Act (RICO)	838	(56)
Overview of RICO and Its Application to Consumer Fraud	838	(1)
Advantages and Disadvantages of RICO Claims	838	(1)
Liberal Construction	838	(2)
Scope, Preemption, and Immunity	840	(1)
The Structure of RICO	841	(1)
Elements of the Civil RICO Action	842	(1)
Introduction	842	(1)
The Defendant ``Person'' and the ``Enterprise''	842	(1)
Identifying appropriate defendants and enterprises	842	(1)
Alleging an appropriate enterprise	843	(3)
Alleging an enterprise distinct from the defendant for section 1962(c) claims	846	(4)
Subsections 1962(a), (b), and (d) generally do not require a distinct enterprise	850	(1)
Strategies to find the corporation liable	850	(3)
Interstate or Foreign Commerce	853	(1)
``Pattern'' of Racketeering Activity	854	(1)
Introduction	854	(1)
Supreme Court guidance	854	(1)
Closed-ended continuity	855	(1)
Open-ended continuity	856	(2)
Relationship aspect of pattern	858	(1)
Proving a ``pattern''	859	(1)
Collection of an Unlawful Debt	859	(1)
General	859	(1)
Potential RICO claims based on the collection of an unlawful debt; payday lenders	860	(1)
Is an isolated collection of an unlawful debt actionable?	860	(1)
The ``Injury'' Element	861	(1)
Introduction	861	(1)
Standing	862	(2)
Proximate cause	864	(2)