Why lawyers (and clients) should consider using the Virginia Consumer Protection Act
It works for achieving client objectives. The statute provides powerful remedies which can be applied to a wide range of consumer transactions.
Subject to certain exceptions, the Consumer Protection Act applies to the advertisement, sale, lease, or license of consumer goods and services to be used for personal, family, or household services. In other words, the law applies to most transactions between individual consumers and businesses in Virginia. It also applies to transactions relating to business opportunities, sales of goods or services to a church or other religious body, layaway agreements, and goods or services provided to an individual for purposes of seeking employment. Here are several examples of transactions covered by the Consumer Protection Act: home repairs, vehicle sales, jewelry sales, vehicle repair services, sales of appliances, and new home purchases from builders. This is just a beginning – the law protects consumers in many, many ways.
It is important to note that the statute applies to prohibit “suppliers” from engaging in the acts deemed wrongful under the statute. The Consumer Protection Act defines “supplier” to mean (1) “a seller, lessor, or licensor who advertises solicits or engages in consumer transactions” or (2) “a manufacturer, distributor or licensor who advertises and sells, leases or licenses goods or services to be resold, leased or sublicensed by other persons in consumer transactions.” Va. Code § 59.1-198. Most businesses serving individuals in Virginia will fall under the coverage of the Consumer Protection Act.
The law sets forth a list of fifty-four prohibited transactions, including:
- Misrepresenting that goods or services are of a particular standard, quality, grade, style, or model;
- Failing to expressly disclose that goods are used, secondhand, repossessed, defective, etc.;
- Misrepresenting that repairs, alterations, modifications, or services have been performed; and
- Using any other deception, fraud, false pretense, false promise, or misrepresentation in connection with a consumer transaction.
Va. Code. § 59.1-200.
If a supplier violates the Consumer Protection Act, the consumer has the right to file suit for actual damages, reasonable attorney’s fees, and court costs. The attorney’s fees and court costs provisions help consumers by providing attorneys with an incentive to take a case that might not otherwise be economically viable. For example, most attorneys would not want to spend seventy-five hours working on a contingency fee case with actual damages of $5,000.00…and clients will not want to pay hourly for the work either. Under the Consumer Protection Act, if an attorney’s client prevails at trial, the attorney will have the right to seek payment from the defendant for the time expended by the attorney on the case. In some cases, the attorney’s fee award may be much larger than the damage award. In addition to actual damages, attorney’s fees, and costs, the successful plaintiff who proves that the “supplier” willfully violated the Consumer Protection Act may have the actual damage award increased by as much as three times the damages sustained. As you can see, these remedies are very powerful.
While each case is different and requires individual assessment, Virginia has seen substantial awards of damages and attorney’s fees in Consumer Protection Act cases:
Hau v. Intercarats, LLC, Case No. CL15007569-00 (Norfolk Cir. 2016) (jury verdict of $30,775.00 for compensatory damages found to be willful and increased to $61,550.00 under Virginia Consumer Protection Act and Court award of $30,000.00 in attorney’s fees – case arose from jeweler’s fraudulent misrepresentations regarding quality of diamond and brand of engagement ring)
Fang v. Intercarats, LLC, Case No. CL15007668-00 (Norfolk Cir. 2016) (jury verdict of $16,950.00 for compensatory damages found to be willful and increased to $33,900.00 under Virginia Consumer Protection Act and Court award of $30,000.00 in attorney’s fees – case arose from jeweler’s fraudulent misrepresentations regarding quality of diamond and brand of engagement ring)
Hopkins v. Home Paramount Pest Control, Case No. CL99F00194-00 (Richmond Cir. 1999) (jury verdict of $102,236 based on defendant’s willful misrepresentation of termite damage after inspection of home to be purchased by plaintiffs and Court award of $11,462.50 in attorney’s fees and $4,630.13 in litigation expenses)
Applewhaite v. Koons Automotive, Inc., Case No. GV16001756-00 (Prince William Gen. Dist. 2016) (the Court found that defendant breached the implied warranty of fitness for a particular purpose and the Magnuson Moss Warranty Act, and that defendant willfully violated the Virginia Consumer Protection and awarded $19,439.23 in actual damages, $1,000.00 for willful violation of the Virginia Consumer Protection Act, $10,806.56 for attorney’s fees and litigation costs, and $68.00 for court costs)
Swann v. Bezaleel Master Builders, Inc., Law No. 162294 (Fairfax Cir. 1998) (Court awarded treble damages totaling $43,164.00 under the Virginia Consume Protection Act based on home builder’s failure to honor the terms of a written agreement with the home buyers)
McKeagues v. Kearns d/b/a E&M Garage, Case No. CL-2013-001459 (Fairfax Cir. 2013) (jury verdict of $27,200.00 – $6,800.00 in actual damages and $20,400.00 in punitive damages – and court award of $36,177.50 in attorney’s fees in case for violations of the Virginia Consumer Protection Act, intentional fraud, and breaches of implied warranty and the Magnuson Moss Warranty Act)
Wilkins v. Peninsula Motor Cars, 266 Va. 558, 587 S.E.2d 581 (2003) (upholding jury verdict based on misrepresentations by car dealer regarding vehicle mileage – jury awarded (1) $4,000.00 actual damages under the Virginia Consumer Protection Act and enhanced those damages to $12,000.00 and (2) punitive damages of $100,000.00 for fraud claim, and Court awarded attorney’s fees and costs totaling $34,183.00)
Haram v. BTB Dev. Int’l, Inc., 84 Va. Cir. 511 (Loudoun Cir. 2012) (jury verdict for plaintiff on Virginia Consumer Protection Act claim in the amount of $17,530.00; Court then awarded attorney’s fees and costs totaling $65,830.00)
If you believe you may have a case under the Virginia Consumer Protection Act, please contact me, and I’ll see if I can help.