Switzer, Ahmad Co-Edit ABA Publication Covering Consumer Protection Laws State by State
Greensfelder Officers Erv Switzer and Kirsten Ahmad served as editors of State Consumer Protection Law, recently published by the American Bar Association as a treatise summarizing consumer protection laws of all 50 U.S. states and the District of Columbia.
Switzer and Ahmad recruited writers who practice in each state. The treatise is believed to be the only publication covering the consumer protection laws of all states that is written primarily by local practitioners. The contributors included lawyers who currently or previously worked for state attorneys general as well as private practitioners on both the plaintiff and defense sides.
“Developing a network of consumer protection specialists in every state is a great benefit to our practice,” Ahmad noted.
The treatise is a good resource for lawyers whose consumer protection practice crosses state boundaries, whether representing businesses or plaintiffs. Legislators and policymakers who want to compare the consumer protection laws of various states to their home state will find this treatise a unique and valuable resource.
“It was a great experience reviewing the consumer protection laws of every state,” Switzer said. “While there are common themes, many states have traps for the unwary.”
State Differences in Consumer Protection Law
While every state has one or more consumer protection statutes inspired by a uniform law or the Federal Trade Commission Act, there are important variables. Some states limit the application of the states to consumer transactions involving personal family, or household purposes. Others apply in business-to-business transactions as well. In other states, the scope is limited for private lawsuits but not for attorney general suits.
One misstep for many practitioners is not knowing whether information or documents produced in response to an attorney general subpoena or “investigative demand” will be kept confidential. In most states, confidentiality is the rule or can be obtained by making a request of the attorney general. In other states, including Florida, material obtained by a government investigation is often subject to the state’s open records law. Some states’ laws are ambiguous. The treatise addresses this issue for every state.
The criminal authority of attorneys general in consumer protection matters also varies. In some states, including Missouri, the attorney general and local prosecutors have power to bring criminal charges for violations of the state’s consumer protection laws.
Another variable is the level of specificity of what is outlawed by the state’s consumer protection statute. Some states have a litany of prohibited acts. Illinois, for instance, has more than 70 specific unlawful practices listed.
Others such as Missouri have few specific provisions and instead rely on general prohibitions such as “deceptive” or “unfair.” Even those states with a long list usually have a catchall provision. Most states do not require intent for a cause of action. But others allow a private right of action only if the falsity of the representation was known or should have been known (Arkansas, Indiana, Kansas, Nevada, Oklahoma, Oregon, South Dakota, Wyoming).
Other states put procedural limitations on private lawsuits, such as requiring notification to the potential defendant first (including Alabama, California, Indiana Maine, West Virginia and Wyoming). Other states have presuit notice requirements in attorney general actions (including Georgia, Iowa, Michigan, New Mexico, and New York).
Missouri has recently put restrictions on consumer protection laws. These include allowing damages that are sufficiently definitive and objective to allow a loss to be calculated with a reasonable degree of certainty. Moreover, a claimant must establish that any alleged loss occurred as a result of the defendant’s actions.
Each chapter of the book contains an overview of the scope of the state’s consumer protection statutes, the elements of a cause of action, private remedies, and government enforcement and remedies.