Texas Deceptive Trade Practices Act Claims

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Zachary J. Montgomery

Zachary J. Montgomery

Attorney

469.998.8484
zmontgomery@freemanlaw.com

Zachary J. Montgomery is a dual-credentialed attorney and CPA. He practices in the area of federal and state tax litigation, white-collar defense, business and tax planning, and litigation. Mr. Montgomery has experience representing both businesses and individuals in federal tax controversies, including appeals, examinations, penalty abatement and collection matters. He has also represented taxpayers—from small organizations to Fortune 500 companies—with Texas franchise tax refund claims, audits, penalty abatement, and corporate structuring.

Mr. Montgomery is a graduate of the University of Virginia School of Law where he focused his studies on corporate and tax law and served on the editorial board of the Virginia Tax Review. Prior to joining the firm, he gained experience with PricewaterhouseCoopers, LLP, and a regional firm, focusing on federal and state tax controversies. His previous experience also includes Ernst & Young, Deloitte & Touche, and a judicial student clerkship with the First Court of Appeals of Texas.

Mr. Montgomery is a graduate of Texas A&M University, where he graduated Summa Cum Laude and received his B.B.A. with a double major in Accounting and Business Honors and his M.S. in Management Information Systems. While attending Texas A&M, he developed his business acumen, working as an enterprise risk consultant and financial analyst.

The DTPA in Texas

Texas law prohibits businesses from engaging in deceptive trade practices. The Deceptive Trade Practices-Consumer Protection Act (“DTPA”), enacted in 1973 and codified in the Texas Business and Commerce Code, outlines those business practices that are deceptive and provides consumers with a remedial scheme to protect their interests. The DTPA’s overarching purposes are: (1) to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty, and (2) to provide efficient and economical procedures to secure such protection.[1]

Elements of a DTPA Claim

Generally, to prevail on a DTPA claim, plaintiffs must establish three elements:

According to the DTPA, a “consumer” is defined as an individual, partnership, corporation, the state of Texas, or a subdivision or agency of the state of Texas who seeks or acquires by purchase or lease, any goods or services.[3] However, the term “consumer” specifically excludes a business consumer that has assets of $25 million or more or that is owned or controlled by a corporation or entity with assets of $25 million or more.[4]

False, Misleading, or Deceptive Acts

A consumer may maintain an action where any of the following constitute a producing cause of economic damages or damages for mental anguish:

Often, plaintiffs will pursue DTPA claims based one or more acts described in Tex. Bus. & Com. Code § 17.46(b). Those acts include:

Remedies and Relief for Consumers

Consumers may be entitled to various forms of relief by bringing a DTPA lawsuit. First, a consumer may be entitled to economic damages determined by the court.[7] Second, if the court determines that the defendant “knowingly” committed the false, misleading, or deceptive acts, the plaintiff may be entitled to up to three times its economic damages in addition to damages for mental anguish. If the court determines the defendant acted “intentionally,” the plaintiff may also be entitled to up to three times its damages for mental anguish.[8] Third, a consumer who prevails on a DTPA claim is entitled to court costs and reasonable and necessary attorneys’ fees.[9] Additionally, while a consumer has other available forms of relief (e.g., injunctive relief), Subsection (h) provides another avenue of recovery. Specifically, if a consumer is granted the right to bring a cause of action under the DTPA by another law, the consumer may recover actual damages, without regard to whether the defendant’s conduct was committed intentionally.[10]

Defenses

Defendants also have a number of defenses to DTPA claims, including:

That last defense should give plaintiffs/consumers pause before bringing a DTPA lawsuit against a business. In my practice (when representing the business), the consumers’ DTPA claims have failed primarily because: (1) the DTPA claims were groundless, or (2) the consumer was not able to show how the defendant’s alleged deceptive acts were a producing cause of the consumer’s damages.

Expert Attorneys

Need help with consumer or business defense issues? Contact us as soon as possible to discuss your rights and the ways we can assist in your caseWe handle all types of cases, including Texas DTPA cases. Schedule a Consultation Today!

 

[1] Tex. Bus. & Com. Code § 17.44(a).

[2] See Doe v. Boys Club of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995).

[3] See Tex. Bus. & Com. Code § 17.45(4).

[4] Id.

[5] See Tex. Bus. & Com. Code § 17.50(a).

[6] Tex. Bus. & Com. Code § 17.46(b)(1), (3), (5)-(7), (9), (12), (24)-(25).

[7] See Tex. Bus. & Com. Code § 17.50(b)(1).

[8] Id.

[9] See Tex. Bus. & Com. Code § 17.50(d).

[10] See Tex. Bus. & Com. Code § 17.50(h).

[11] See Tex. Bus. & Com. Code § 17.505(a), (c), (d).

[12] See Tex. Bus. & Com. Code § 17.506(a).

[13] See Tex. Bus. & Com. Code § 17.506(d).

[14] See Tex. Bus. & Com. Code § 17.50(c).