Bob wrote:
In article ,
jJim McLaughlin wrote:
I LOVE rebates.
I always fill them out, checking off each step on the firm as I do so,
always make copies of everything, and always send them in, with delivery
confirmation.
Eight out of 10 times no problem.
When there is a problem, I go to the local Small Claims Court here in
Oregon and sue both the stre and the manufacturer for breach of
contract, fraud, and for violtions of something called the Oregon
Unlawful trade Practices Act (ORS 646.601 et seq.)
The local vendor is an actual and apparent agent of the manufacturer.
I have always recovered my filing fees; a minimum of $ 200.00 statutory
damages under the Oregon UTPA; a stautory "prevailing party fee" of $
250.00 and the costs of service of the complaints and summonses on the
local retailer and the registered agent of the manufacturer.
snip
I asked my lawyer friend if CA had a similar law. Here's her $.02.
California does indeed. It is called the "Unfair Trade Practices Act." Business and
Professions Code section 17200, states:
"As used in this chapter, unfair competition shall mean and include any unlawful,
unfair or fraudulent business act or practice and unfair, deceptive, untrue or
misleading advertising and any act prohibited by Chapter 1 (commencing with Section
17500) of Part 3 of Division 7 of the Business and Professions Code."
Section 17500 states in relevant part that: "It is unlawful for any person, firm,
corporation or association, or any employee thereof with intent directly or
indirectly to dispose of real or personal property or to perform services,
professional or otherwise, or anything of any nature whatsoever or to induce the
public to enter into any obligation relating thereto, to make or disseminate or cause
to be made or disseminated before the public in this state, or to make or disseminate
or cause to be made or disseminated from this state before the public in any state,
in any newspaper or other publication, or any advertising device, or by public outcry
or proclamation, or in any other manner or means whatever, including over the
Internet, any statement, concerning that real or personal property or those services,
professional or otherwise, or concerning any circumstance or matter of fact connected
with the proposed performance or disposition thereof, which is untrue or misleading,
and which is known, or which by the exercise of reasonable care should be known, to
be untrue or misleading ...."
However, I have not, yet, found the award of fees which he claims. In California,
these cases are generally brought by the Attorney General and/or DA etc. on behalf of
the People of the State of California. Civil penalties are awarded, but are paid to
the state or to the city or county who brought the suit on behalf of the People. I
don't see any basis, at least in the California version, to bring a separate claim
and obtain these fees he mentions. As to the fraud and breach of contract issues,
that may be different, but I still doubt they are paid to the individual, because the
purpose is to make the consumer whole, not to be able to obtain monies over and above
what they have lost or had to spend to recover that which was lost. Those kinds of
fees generally go for intangibles like defamation, slander, intentional infliction of
mental distress, etc.
Must be sad to live in such a backward place as California, with little
in the way of consumer protections.
Oregon law has a private right of action under its UTPA. See, ORS
646.638 (1).
Oregon law also allows the State Attorney General or a District Attorney
to bring a case. ORS 646.632.
The two causes of action are separate and independent.
Oregon law provides for minimum statutory damages for private party
plantiffs in UTPA cases. See, ORS 646.638 (1).
Oregon law provides for attorneys fees for a successful plaintiff. ORS
646.638 (3).
Oregon law sets forth a far more extensive "laundry list" of
sanctionable Unlawful Trade Practices
than does California. ORS 646.608.
See generally, texts at:
http://www.leg.state.or.us/ors/646.html
Prevailing party fees, in addition to damages, are provided for in ORS
20.190.
Your doubts not withstanding, common law claims for breach of contract
and for fraud always allow damages to a sucessful plantiff. None of
thse damages are ever payable to the state, whether in Oregon or
California.
You California lawyer friend really needs t get her head out of her ass.
As do you.
Not worth your time, other than when you can't get your money back. THEN small claims
would be worth it. No lawyers in small claims, unless he or she is a party.