In 1977, the Tennessee Consumer Protection Act was enacted. In 2011, the legislature of Tennessee modified it significantly. Here are some basic points to remember with respect to potential Tennessee Consumer Protection Act lawsuits:
- Since 2011, a party cannot bring a private cause of action for acts and practices which fall under the catch-all provision of T.C.A. §47-18-104(27). The TCPA contains a laundry list of fairly specific acts or practices which are per se unfair and deceptive. It also contains a catch-all subdivision which declares that “any other act or practice which is deceptive” is actionable. In many cases, in my experience, it is difficult to shoe horn the conduct at issue into one of the defined unfair acts and practices. In such cases, the catch-all provision may be the only avenue for a client to achieve the relief provided by the TCPA. In 2011, however, the TCPA was revised to prohibit a private cause of action under the catch-all provision. There are still other provisions for which a private cause of action is available, which are somewhat broad and which may fit a client’s case, particularly, T.C.A. §47-18-104(5)(7) and (19).
- The statute of limitations for lawsuits under the Tennessee Consumer Protection Act is one year. The one year period begins running from “a person’s discovery of the unlawful act or practice.” Beware that a defendant can argue that the statute began running when a person had constructive knowledge of the act or practice. A plaintiff has constructive knowledge when the plaintiff is aware of facts which would put a reasonable person on notice that the plaintiff has suffered an injury because of the wrongful conduct and knows the identity of the entity or person who engaged in that conduct. When a plaintiff had constructive knowledge is a question of fact to be decided by the jury, if a jury has been demanded. There is an absolute outer limit, or statute of repose, for the filing of TCPA claims of 5 years after the date of the transaction which is the basis of the lawsuit.
- To recover under the Tennessee Consumer Act, a plaintiff has to show more than just an unfair or deceptive act or practice: A plaintiff must show that he or she suffered an ascertainable loss as the result of the act or practice. In other words, consistent with the common law tort claims for fraud and negligent misrepresentation, a plaintiff in a consumer protection lawsuit must show that the conduct at issue caused him or her damages. The question of whether or not there has been an ascertainable loss, and the amount thereof, is a question of fact for the jury where a jury has been demanded.
- The Tennessee Consumer Protection Act can no longer be used as a cause of action against an insurance company. In 2011, T.C.A. §56-8-113 became effective and it prohibits the use of the TCPA against insurance companies.
- A plaintiff cannot recover both treble damages under the TCPA and punitive damages for a common law claim which relates to the same conduct. Plaintiffs typically combine a TCPA cause of action with a common law cause of action like fraud. Punitive damages are not available under the TCPA, but a court may treble the amount of any damages awarded by the jury under the TCPA. If a plaintiff recovers punitive damages under a common law claim and treble damages under the TCPA, the plaintiff must then elect which award to take (which is a no brainer decision).
- The TCPA cannot be used against someone who has been engaged in the isolated sale of real estate. If you buy a home or other real estate from someone who you believe made a misrepresentation or who failed to disclose a material defect, and that person is not in the real estate business and does not frequently sell real estate, you may have common law causes of action and other statutory causes of action against that person, but it is unlikely you have a viable TCPA claim against them. (The same cannot be said for real estate agents and agencies.)
- The TCPA applies to acts or practices in connection with the marketing or sale of securities.
- Under the TCPA, a court may award a successful plaintiff attorney’s fees.