There are 4 ways to use the Texas Deceptive Trade Practices Act to initiate a claim:
1. Unconscionable Acts. This occurs when a merchant takes advantage of a consumer’s lack of knowledge, ability, experience, or capacity to a grossly unfair degree. This is basically fraud, extreme dishonesty, or abhorrent act. Think used car salesman selling a buyer a lemon knowing it will break down after a few miles.
2. Breach of Warranty. This will include a variety of warranties:
- Express Warranty: Written or verbal warranty.
- Implied Warranty of Merchantability: Item purchased does what it is supposed to do. This is not written or stated verbally.
- Warranty of Fitness for a Particular Purpose: Item purchased performs the specific job the sales person claimed it would perform.
3. Insurance Code. Any violation of the insurance code will automatically be actionable under the DTPA and its favorable damage provisions will apply. The insurance code is a whole separate consumer protection statute which governs insurance companies dealings with their insureds.
4. DTPA Laundry List. The DTPA provides a list of 27 violations which must be specifically listed in a petition against a defendant. A few of the more commonly used violations enumerated in Section 17.46(b) are:
(1) passing off goods or services as those of another;
(5) representing 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 he does not;
(12) representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law;
(14) misrepresenting the authority of a salesman, representative or agent to negotiate the final terms of a consumer transaction;
(17) advertising of any sale by fraudulently representing that a person is going out of business;
(20) representing that a guarantee or warranty confers or involves rights or remedies which it does not have or involve…
(22) representing 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;
(24) failing 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;
These provisions are relatively self-explanatory, however there are other violations which fall under the auspices of the DTPA, and to be certain that your potential claim may be filed under The Act, you should consult with a knowledgeable attorney to discuss your particular facts.