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THE LAW OF THE LAW OF UNFAIR TRADE UNFAIR TRADE PRACTICES PRACTICES Practical tips for Practical tips for dealing dealing with UTP statutes with UTP statutes

The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

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The talk is nationwide in scope, but it includes plenty of North Carolina examples. In the talk, I lay out the general shape of the law on unfair trade practices, including some infamous recent cases from California and New Jersey. See especially slides 6-14, where I describe how section 75-1.1 fits into the range of similar statutes nationwide.

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Page 1: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

THE LAW OF UNFAIR THE LAW OF UNFAIR TRADE PRACTICESTRADE PRACTICES

Practical tips for dealingPractical tips for dealingwith UTP statuteswith UTP statutes

Page 2: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

Is this unfair?Is this unfair?

• Price of roses on Price of roses on Valentine’s Day:Valentine’s Day:

• 42% increase (NYC Dep’t 42% increase (NYC Dep’t of Consumer Affairs)of Consumer Affairs)

• Raleigh area: price Raleigh area: price increases of $10 - $30 increases of $10 - $30 (Informal WRAL survey)(Informal WRAL survey)

Page 3: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

AgendaAgenda

• Key features of the law on unfair trade practicesKey features of the law on unfair trade practices

• The pivot points in UTP lawsuitsThe pivot points in UTP lawsuits

• Important new North Carolina decisions:Important new North Carolina decisions: Bumpers Bumpers andand TorrenceTorrence

• Tips for living with UTP statutesTips for living with UTP statutes

Page 4: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

““Unfair Trade Practices” StatutesUnfair Trade Practices” Statutes

• Burgeoning source of litigationBurgeoning source of litigation

• Risk for businessesRisk for businesses

• Opportunities for plaintiffs Opportunities for plaintiffs

• Including business plaintiffs in most states (including N.C.)Including business plaintiffs in most states (including N.C.)

Page 5: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

““Unfair Trade Practices” StatutesUnfair Trade Practices” Statutes

• Consumer-protection Consumer-protection statutes enacted in 1960s statutes enacted in 1960s and early 1970sand early 1970s

• Inspired by section 5 of the Inspired by section 5 of the Federal Trade Commission Federal Trade Commission ActAct

• Section 5 has no private Section 5 has no private right of actionright of action

• FTC encouraged the states FTC encouraged the states to pass UTP statutesto pass UTP statutes

Page 6: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

““Unfair Trade Practices” StatutesUnfair Trade Practices” Statutes

• Every state now has a UTP statute of some typeEvery state now has a UTP statute of some type

• All states allow private parties to sue under some All states allow private parties to sue under some circumstancescircumstances

• A majority (including N.C.) allow recovery by non-A majority (including N.C.) allow recovery by non-consumersconsumers

Page 7: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

A Powerful WeaponA Powerful Weapon

• Treble damages (25 states, including N.C.)Treble damages (25 states, including N.C.)

• Plaintiffs can recover attorney fees (46 states, including N.C.)Plaintiffs can recover attorney fees (46 states, including N.C.)

• Class actions (41 states, including N.C.)Class actions (41 states, including N.C.)

Page 8: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

How do you define “unfair” and “deceptive”?How do you define “unfair” and “deceptive”?

• 2 basic approaches: 2 basic approaches:

• Open-ended statutes, modeled on FTC ActOpen-ended statutes, modeled on FTC Act

• ““Laundry list” of unfair or deceptive actsLaundry list” of unfair or deceptive acts

Page 9: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

Open-ended: The “Little FTC Acts”Open-ended: The “Little FTC Acts”

• Many states have modeled their UTP statutes on section 5 of the Many states have modeled their UTP statutes on section 5 of the FTC ActFTC Act

• ““Unfair methods of competition in or affecting commerce, and Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.” 15 U.S.C. § 45.are hereby declared unlawful.” 15 U.S.C. § 45.

• ““Unfair methods of competition in or affecting commerce, and Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.” N.C. Gen. Stat. § 75-1.1(a).are declared unlawful.” N.C. Gen. Stat. § 75-1.1(a).

Page 10: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

The “Little FTC Acts”The “Little FTC Acts”

• In 32 states, courts look to FTC decisions and federal case law In 32 states, courts look to FTC decisions and federal case law under section 5 as a guideunder section 5 as a guide

• Many UTP statutes have express cross-referencesMany UTP statutes have express cross-references

• In other states (including N.C.), the courts have decided to In other states (including N.C.), the courts have decided to refer to these sources refer to these sources

Page 11: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

Laundry ListsLaundry Lists

• Five states Five states restrictrestrict claims to an enumerated list of practices claims to an enumerated list of practices

• Maryland – detailed, multi-part definition, with examplesMaryland – detailed, multi-part definition, with examples

• Oregon – claims restricted to acts listed in statute or rules Oregon – claims restricted to acts listed in statute or rules issued by Attorney Generalissued by Attorney General

Page 12: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

Laundry ListsLaundry Lists• Maryland’s UTP statute defines “unfair or deceptive trade Maryland’s UTP statute defines “unfair or deceptive trade

practices” as including, among other things:practices” as including, among other things:

(10) Solicitations of sales or services over the telephone without first (10) Solicitations of sales or services over the telephone without first clearly, affirmatively, and expressly stating: clearly, affirmatively, and expressly stating:

(i) The solicitor's name and the trade name of a person represented (i) The solicitor's name and the trade name of a person represented by the solicitor; by the solicitor; (ii) The purpose of the telephone conversation; and (ii) The purpose of the telephone conversation; and (iii) The kind of merchandise, real property, intangibles, or service (iii) The kind of merchandise, real property, intangibles, or service solicited. solicited.

Page 13: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

Exemptions Exemptions

• Many UTP statutes exempt Many UTP statutes exempt one or more industriesone or more industries

• CreditorsCreditors• InsuranceInsurance• UtilitiesUtilities• Debt collection / Debt collection /

repossessionrepossession• Real estateReal estate

Page 14: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

North Carolina ExemptionsNorth Carolina Exemptions

• Lawyers and other “learned professions” Lawyers and other “learned professions”

• Carriers of advertisingCarriers of advertising

• Activity not “in or affecting commerce” – e.g., Activity not “in or affecting commerce” – e.g.,

• Securities and commoditiesSecurities and commodities

• Actions “within a single business”Actions “within a single business”

Page 15: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

Types of UTP ClaimsTypes of UTP Claims• Per se violationsPer se violations

• DeceptionDeception • Aggravated breaches of contractAggravated breaches of contract • ““Direct unfairness” claimsDirect unfairness” claims

• Unfair methods of competitionUnfair methods of competition

Page 16: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

Per SePer Se ViolationsViolations• Sometimes, a violation of a separate statute or regulation Sometimes, a violation of a separate statute or regulation

automatically supports a UTP claimautomatically supports a UTP claim

• 45 N.C. statutes have express cross-references to UTP statute45 N.C. statutes have express cross-references to UTP statute

• Examples: statutes on identity theft, customer records, Examples: statutes on identity theft, customer records, and confidential informationand confidential information

• Courts have also found per se liability based on sources Courts have also found per se liability based on sources withoutwithout an an explicit cross-referenceexplicit cross-reference

Page 17: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

California’s Section 17200California’s Section 17200• Created private claim for violations of virtually any statute or Created private claim for violations of virtually any statute or

regulation – even ones with no private right of action of their own:regulation – even ones with no private right of action of their own:

• Disclosures in wrong font sizeDisclosures in wrong font size

• Item with a few foreign-made components advertised as “Made Item with a few foreign-made components advertised as “Made in the USA”in the USA”

• Bathroom mirror an inch higher than disability regulations Bathroom mirror an inch higher than disability regulations requiredrequired

Page 18: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

California’s Section 17200California’s Section 17200• N.D. Cal. = “Food Court”: recent wave of class actions alleging N.D. Cal. = “Food Court”: recent wave of class actions alleging

technical violations of federal / Cal. food labeling laws technical violations of federal / Cal. food labeling laws

• ““Sugar free,” “sugarless” but fail to disclose trivial amountsSugar free,” “sugarless” but fail to disclose trivial amounts

• ““Natural source of antioxidants” but fails to specify which Natural source of antioxidants” but fails to specify which nutrientsnutrients

• Private right of action under section 17200 because Private right of action under section 17200 because “unlawful”“unlawful”

Page 19: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

DeceptionDeception

• Fraud with fuzzier elementsFraud with fuzzier elements

• Major goal of UTP statutes was to relax the elements of fraud Major goal of UTP statutes was to relax the elements of fraud so consumers could recover more oftenso consumers could recover more often

• Most states require only that a practice have “the capacity Most states require only that a practice have “the capacity or tendency to deceive”or tendency to deceive”

• No intent to deceive is requiredNo intent to deceive is required

Page 20: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

DeceptionDeception• Connick v. Suzuki Motor Co.Connick v. Suzuki Motor Co. (Illinois Supreme Court 1996) (Illinois Supreme Court 1996)

•Plaintiffs alleged that car manufacturer failed to disclose risk Plaintiffs alleged that car manufacturer failed to disclose risk of roll-overs. Plaintiffs sought damages for reduced resale of roll-overs. Plaintiffs sought damages for reduced resale value. value. •Fraud claim failed, but UTP claim survived.Fraud claim failed, but UTP claim survived.

•““An omission or concealment of a material fact in the conduct An omission or concealment of a material fact in the conduct of trade or commerce [violates the statute].”of trade or commerce [violates the statute].”

Page 21: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

Private attorney general run amok?Private attorney general run amok?• New Jersey lawyer Harold Hoffman has filed dozens of UTP New Jersey lawyer Harold Hoffman has filed dozens of UTP

putative class actions for alleged deceptive advertising, with putative class actions for alleged deceptive advertising, with himself as named plaintiffhimself as named plaintiff• Dietary supplements – Ginkgo BilobaDietary supplements – Ginkgo Biloba• Male enhancement pills – Erection MDMale enhancement pills – Erection MD• Time Warner Cable (failure to carry channel during Time Warner Cable (failure to carry channel during

negotiations)negotiations)• Sometimes sues before he even receives the product in Sometimes sues before he even receives the product in

questionquestion• Many cases have been removed under CAFAMany cases have been removed under CAFA

Page 22: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

Patent Infringement Patent Infringement UTP Class Action? UTP Class Action?

Dang v. SamsungDang v. Samsung (N.D. Cal. filed 2014): (N.D. Cal. filed 2014):

•UTP class action alleges that Samsung deceived consumers by UTP class action alleges that Samsung deceived consumers by concealing its infringement of Apple patentsconcealing its infringement of Apple patents

•Any consumer harm? Allegation is that infringement finding Any consumer harm? Allegation is that infringement finding decreased resale value of mobile phonesdecreased resale value of mobile phones

Page 23: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

Aggravated Breaches of ContractsAggravated Breaches of Contracts• Breach of contract + something else = treble damagesBreach of contract + something else = treble damages

• N.C. and Connecticut require “substantial aggravating N.C. and Connecticut require “substantial aggravating circumstances”circumstances”

• Examples: intentional misrepresentations; multiple Examples: intentional misrepresentations; multiple breaches over timebreaches over time

• Federal courts and business courts read this theory more Federal courts and business courts read this theory more strictly than other courts dostrictly than other courts do

Page 24: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

Direct UnfairnessDirect Unfairness

• Arises from open-ended definitions of “unfair”Arises from open-ended definitions of “unfair”

• Courts have struggled to announce rules Courts have struggled to announce rules that would generate predictable resultsthat would generate predictable results

• N.C. Supreme Court: padlocking an apartment for N.C. Supreme Court: padlocking an apartment for

unpaid rent is not unfairunpaid rent is not unfair

• N.C. Court of Appeals: collecting rent on an unfit N.C. Court of Appeals: collecting rent on an unfit dwelling is unfairdwelling is unfair

Page 25: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

Unfair Methods of CompetitionUnfair Methods of Competition

• Fuzzy antitrustFuzzy antitrust

• Can enable end runs around antitrust case lawCan enable end runs around antitrust case law

• LaChance v. U.S. Smokeless Tobacco Co.LaChance v. U.S. Smokeless Tobacco Co. (N.H. 2007): (N.H. 2007): Indirect purchasers lack standing under antitrust law, but Indirect purchasers lack standing under antitrust law, but do have standing to sue for unfair methods of competition do have standing to sue for unfair methods of competition under UTP statuteunder UTP statute

Page 26: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

State Attorney General EnforcementState Attorney General Enforcement

• State attorneys general increasingly hire outside counsel to State attorneys general increasingly hire outside counsel to pursue UTP claims for a contingent feepursue UTP claims for a contingent fee

• South Carolina recovered $327 million based on off-label South Carolina recovered $327 million based on off-label marketing of the anti-psychotic drug Risperdalmarketing of the anti-psychotic drug Risperdal

• U.S. Supreme Court recently rejected an attempt to remove U.S. Supreme Court recently rejected an attempt to remove

a state’s a state’s parens patriaeparens patriae claim to federal court under Class claim to federal court under Class Action Fairness Act.Action Fairness Act.

Page 27: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

Common “Business v. Business” ScenariosCommon “Business v. Business” Scenarios

• Departing-employee casesDeparting-employee cases • Cases over competitive tacticsCases over competitive tactics

• IP claims IP claims

• Indirect-purchaser antitrust casesIndirect-purchaser antitrust cases

• Deception claimsDeception claims

Page 28: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

UTP Claims in Personal-Injury CasesUTP Claims in Personal-Injury Cases

UTP claims can provide an alternate route to recovery in tort UTP claims can provide an alternate route to recovery in tort disputesdisputes

•Howerton v. Arai Helmet Howerton v. Arai Helmet (N.C. 2013) (N.C. 2013) – – deceptive to apply safety deceptive to apply safety certification sticker to helmet without clarifying which parts of certification sticker to helmet without clarifying which parts of helmet were certified?helmet were certified?

•Klairmont v. Gainsboro RestaurantKlairmont v. Gainsboro Restaurant (Mass. 2013) – maintaining (Mass. 2013) – maintaining restaurant stairs in unsafe condition was unfair and deceptive restaurant stairs in unsafe condition was unfair and deceptive conductconduct

Page 29: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

Major Pivot Points Under UTP StatutesMajor Pivot Points Under UTP Statutes

• Availability of treble / punitive damagesAvailability of treble / punitive damages

• Whether non-consumers can bring claimsWhether non-consumers can bring claims

• Whether class actions are allowedWhether class actions are allowed • Whether winning plaintiffs, and winning defendants, can Whether winning plaintiffs, and winning defendants, can

recover attorney feesrecover attorney fees

Page 30: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

Other Major Pivot PointsOther Major Pivot Points

• Relationship with FTC rules / federal case lawRelationship with FTC rules / federal case law

• How open-ended are the conduct standards?How open-ended are the conduct standards? • In deception cases, is reliance required? In deception cases, is reliance required?

Page 31: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

Counter-Revolution?Counter-Revolution?

• Scholars and state supreme courts are increasingly interested Scholars and state supreme courts are increasingly interested in UTP issuesin UTP issues

• Will class action counter-revolution reach state UTP cases?Will class action counter-revolution reach state UTP cases?

• U.S. Supreme Court: U.S. Supreme Court: TwomblyTwombly; ; Wal-MartWal-Mart; ; ConcepcionConcepcion

• North Carolina: North Carolina: BumpersBumpers; ; TorrenceTorrence

Page 32: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

Bumpers v. Community Bank Bumpers v. Community Bank (N.C. 2013)(N.C. 2013)

• Plaintiffs paid high fees, including “loan discount” fees and closing Plaintiffs paid high fees, including “loan discount” fees and closing fees, on second mortgagesfees, on second mortgages

• Plaintiffs testified: Plaintiffs testified:

• Overall deal was acceptableOverall deal was acceptable• Paid no attention to the titles of the feesPaid no attention to the titles of the fees

• Offensive summary judgment: (1) closing fees were excessive and Offensive summary judgment: (1) closing fees were excessive and (2) discounted interest rate was not provided(2) discounted interest rate was not provided

Page 33: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

Key Issues in Key Issues in BumpersBumpers

1.1. Does UTP allow unfairness claim on the theory that a price Does UTP allow unfairness claim on the theory that a price was “excessive”?was “excessive”?

2.2. Does a deception claim require reliance?Does a deception claim require reliance?

• Plaintiffs admitted that they did not pay attention to or rely Plaintiffs admitted that they did not pay attention to or rely on names of feeson names of fees

Page 34: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

BumpersBumpers: Key Holdings : Key Holdings

1.1. ““In most cases, there is nothing unfair or deceptive about In most cases, there is nothing unfair or deceptive about freely entering a transaction on the open market.” freely entering a transaction on the open market.”

• Caveat:Caveat: These These fees, under fees, under these circumstances, did these circumstances, did not allow a UTP claimnot allow a UTP claim

Page 35: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

BumpersBumpers: Key Holdings: Key Holdings

2.2. A deception claim requires actual and reasonable relianceA deception claim requires actual and reasonable reliance

• When the alleged wrong is a statement, it proximately When the alleged wrong is a statement, it proximately causes harm only if someone relies on itcauses harm only if someone relies on it

• ““Section 75-1.1 has long encompassed conduct Section 75-1.1 has long encompassed conduct tantamount to fraud, which requires reliance, and we see tantamount to fraud, which requires reliance, and we see no reason for departure from that requirement.”no reason for departure from that requirement.”

Page 36: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

AT&T Mobility LLC v. Concepcion (2011)AT&T Mobility LLC v. Concepcion (2011)

• AT&T’s customer agreements required arbitration and AT&T’s customer agreements required arbitration and precluded class action arbitrationsprecluded class action arbitrations

• California Supreme Court: Arbitration clause and class action California Supreme Court: Arbitration clause and class action ban were unconscionableban were unconscionable

• U.S. Supreme Court: Federal Arbitration Act preempts state U.S. Supreme Court: Federal Arbitration Act preempts state unconscionability doctrineunconscionability doctrine

Page 37: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

Torrence v. Nationwide Budget Finance Torrence v. Nationwide Budget Finance (2014)(2014)

• In In Tillman Tillman (2008), N.C. Supreme Court had held an arbitration (2008), N.C. Supreme Court had held an arbitration clause in a small loan agreement unconscionableclause in a small loan agreement unconscionable

• TorrenceTorrence:: Concepcion Concepcion and later Supreme Court decision and later Supreme Court decision trump trump TillmanTillman

• Federal Arbitration Act preempts unconscionability doctrineFederal Arbitration Act preempts unconscionability doctrine

• N.C. Court of Appeals compelled arbitration of UTP claimsN.C. Court of Appeals compelled arbitration of UTP claims

Page 38: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

Tips for Business DefendantsTips for Business Defendants

• Be sensitive to acts that seem “unfair” without being Be sensitive to acts that seem “unfair” without being deceptivedeceptive

• General pro-plaintiff thrust of UTP statutesGeneral pro-plaintiff thrust of UTP statutes

• E.g., Closing fees in E.g., Closing fees in BumpersBumpers

• E.g., Apple App Store password feature: 20-year consent E.g., Apple App Store password feature: 20-year consent decree + $32.5 million in refundsdecree + $32.5 million in refunds

Page 39: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

Tips for Business DefendantsTips for Business Defendants

• In non-reliance states, beware liability for deceptive acts “in In non-reliance states, beware liability for deceptive acts “in the forest”the forest”

• Review documents for potential Review documents for potential collateral misrepresentationscollateral misrepresentations

• Dangerous to rely on disclaimers Dangerous to rely on disclaimers or fine printor fine print

Page 40: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

Tips for Business DefendantsTips for Business Defendants

• Consider arbitration clauses in consumer contractsConsider arbitration clauses in consumer contracts

• Arbitration in “business vs. business” cases involves much Arbitration in “business vs. business” cases involves much harder tradeoffsharder tradeoffs

• No dispositive motionsNo dispositive motions• Little discoveryLittle discovery• Split-the-difference decisionsSplit-the-difference decisions• Virtually no appealVirtually no appeal

Page 41: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

Tips for Business DefendantsTips for Business Defendants

• Potential preemption arguments in heavily regulated Potential preemption arguments in heavily regulated industriesindustries

• E.g., federal regulations allowing banks to issue E.g., federal regulations allowing banks to issue “convenience checks” preempted UTP statute and “convenience checks” preempted UTP statute and defeated claims that the bank deceptively failed to defeated claims that the bank deceptively failed to disclose the consequences of use of the checks. disclose the consequences of use of the checks. Rose v. Rose v. Chase Bank Chase Bank (9th Cir. 2008).(9th Cir. 2008).

Page 42: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

Tips for Business PlaintiffsTips for Business Plaintiffs

• Adding a UTP claim to a contract claim can add great tactical Adding a UTP claim to a contract claim can add great tactical and substantive benefitsand substantive benefits

• Treble damages / attorney feesTreble damages / attorney fees

• Can avoid contract-law hurdles like the parol evidence rule Can avoid contract-law hurdles like the parol evidence rule and the statute of fraudsand the statute of frauds

Page 43: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

Tips for Business PlaintiffsTips for Business Plaintiffs

• UTP claims are especially common in “departing employee” UTP claims are especially common in “departing employee” claimsclaims

• Theft of trade secretsTheft of trade secrets

• Be aware of “labor” exemption: Elastic scopeBe aware of “labor” exemption: Elastic scope

Page 44: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

Tips for Business PlaintiffsTips for Business Plaintiffs

• In some states and some cases, a UTP-only strategy could be In some states and some cases, a UTP-only strategy could be rationalrational

• The open-ended standards can be your friendThe open-ended standards can be your friend

• But assess all the case law up frontBut assess all the case law up front

• You might also see your briefing again in other casesYou might also see your briefing again in other cases

Page 45: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

Tips for Everyone: Forum is CrucialTips for Everyone: Forum is Crucial

• RemovalRemoval• Fraudulent joinderFraudulent joinder• CAFACAFA• Complete preemptionComplete preemption

• Business CourtsBusiness Courts

• There is something worse than a series of circuit-riding judgesThere is something worse than a series of circuit-riding judges

Page 46: The Law of Unfair Trade Practices: Practical tips for deadling with unfair trade practices statutes

Thank you!Thank you!

Matt SawchakMatt [email protected]@elliswinters.com919.865.7004919.865.7004