Thursday, December 14, 2017

'Tis the Season for Buyers to Continue to Beware

By Lishel Bautista

For many retailers, the holiday season represents approximately 20 to 40 percent of their annual sales.  Over the 2017 Thanksgiving weekend and Cyber Monday, the National Retail Federation reported that over 174 million shoppers in the U.S. made purchases.

Shopping during this season is often fast-paced.  Retailers fight for consumer attention with commercials and other advertisements for the newest toys and large-ticket items, like jewelry and automobiles.  Consumers flood the internet and stores searching for the best deals.  

Filled with the holiday spirit, consumers may be more susceptible to letting their guards down, but the caveat that prevails during the rest of the year should still be heeded even during the holidays: buyer beware.
 

Texas Deceptive Trade Practices-Consumer Protection Act  

For consumers, the law provides some protections against deceptive practices.  Under the Texas Deceptive Trade Practices-Consumer Protection Act (“DTPA”), it is unlawful to:

  1. pass off goods or services as those of another;

  2. cause confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services;

  3. cause confusion or misunderstanding as to affiliation, connection, or association with, or certification by, another;

  4. use deceptive representations or designations of geographic origin in connection with goods or services;

  5. represent that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which the person does not;

  6. represent that goods are original or new if they are deteriorated, reconditioned, reclaimed, used, or secondhand;

  7. represent that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another;

  8. disparage the goods, services, or business of another by false or misleading representation of facts;

  9. advertise goods or services with intent not to sell them as advertised;

  10. advertise goods or services with intent not to supply a reasonable expectable public demand, unless the advertisements disclosed a limitation of quantity;

  11. represent that an agreement confers or involves rights, remedies, or obligations that it does not have or involve, or which are prohibited by law;

  12. misrepresent the authority of a salesman, representative or agent to negotiate the final terms of a consumer transaction;

  13. disconnect, turn back, or reset the odometer of any motor vehicle so as to reduce the number of miles indicated on the odometer gauge;

  14. represent that a guaranty or warranty confers or involves rights or remedies which it does not have or involve;

  15. represent that work or services have been performed on, or parts replaced in, goods when the work or services were not performed or the parts replaced; and

  16. fail to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed.
     

Recovering Economic Damages

Consumers affected by deceptive practices may recover economic damages in a suit brought under the DTPA.  If a judge or jury finds that the deceptive conduct was committed knowingly (or with actual awareness of the falsity, deception, or unfairness of the act), the consumer may also recover up to three times the amount of economic damages, plus mental anguish damages.  If a judge or jury finds that the deceptive conduct was committed intentionally, the consumer may recover up to three times the amount of both economic and mental anguish damages.  A consumer that prevails on a suit under the DTPA may also recover court costs and reasonable and necessary attorneys’ fees.

While there may be recourse for consumers that fall victim to deceptive practices, the best line of defense is to remain vigilant.  https://www.usa.gov/before-you-shop offers some helpful tips for protecting consumers and their wallets.

 

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