Location:
CONSUMER PROTECTION-UNFAIR TRADE PRACTICES;
Scope:
Connecticut laws/regulations; Court Cases;

OLR Research Report


December 29, 2011

 

2011-R-0494

OLR BACKGROUNDER: CONNECTICUT UNFAIR TRADE PRACTICES ACT

By: Duke Chen, Legislative Analyst II

This report provides an overview of Connecticut Unfair Trade Practices Act (CUTPA) violations, enforcement methods, and penalties.

OVERVIEW

CUTPA is a state consumer protection law that prohibits unfair competition methods and unfair or deceptive acts or practices in trade or commerce (CGS 42-110b). It is modeled after the Federal Trade Commission Act (15 USC 45(a)(1)). There are two types of CUTPA violations, one judicially determined and the other statutorily defined.

CUTPA gives individuals the right to sue and gives the state certain enforcement powers. Anyone who suffers an ascertainable loss of money or property through a prohibited CUTPA act may bring an action to recover actual damages (CGS 42-110g(a)). He or she does not need proof of public interest or public injury. CUTPA also allows class action suits (CGS 42-110g(b)).

In addition to the private course of action, CUTPA provides enforcement tools for the Department of Consumer Protection (DCP). To this end, the commissioner may issue regulations defining what constitutes an unfair trade practice, hold investigations and hearings, order restitution, and enter consent agreements. CUTPA also allows DCP to ask the attorney general to seek certain court actions.

Under CUTPA, courts may issue restraining orders; award actual and punitive damages, costs, and reasonable attorneys fees; and impose civil penalties.

VIOLATIONS

There are two types of CUTPA violations. The first is judicially determined, where the court decides if an act violates CUTPA. The second is a per se violation, which is a specific statutory act that automatically violates CUTPA. Generally speaking, mere negligent acts or simple contract breaches, even intentional ones, are not CUTPA violations.

CUTPA provides two specific exceptions that are not violations. It does not apply to (1) transactions or actions by any regulatory board or officer acting for the state or United States and (2) acts done by the publisher, owner, agent, or employee of a newspaper, periodical, radio, or television station in publishing or disseminating an advertisement, where they did not know of the advertisement's false, misleading, unfair or deceptive character, and did not have direct financial interest in the sale or distribution (CGS 42-110c).

Court Determined Violations

In determining if an act is unfair, the Connecticut Supreme Court has adopted what is known as the “cigarette rule” from the Federal Trade Commission. This rule defines what types of conduct are unfair and deceptive under a three-part test.

 The three prongs are whether the practice:

1. offends public policy as established by statute, common law, or at least within the area of some common law, statutory, or other established concept of unfairness;

2. is immoral, unethical, oppressive, or unscrupulous; and

3. causes substantial injury to consumers.

(Conaway v. Prestia, 191 Conn. 484, 464 A.2d 847 (1983).)

The third prong is also subject to a three-part test. The injury must (1) be substantial, (2) not be outweighed by any countervailing benefits to the consumer or competition that the practice produces, and (3) not be something the consumer could have reasonably avoided (Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 592, 657 A.2d 212, 228 (1995)).

All three prongs of the cigarette rule do not need to be met for there to be a violation. There may be a violation because of the degree to which it meets one criteria (Willow Springs Condominium Ass'n Inc. v. Seventh BRT, Dev. Corp. 245 Conn. 1, 717 A.2d 77 (1998)). There is no precise formula for the courts to balance the criteria (Callandro v. Allstate Ins. Co., 63 Conn. App. 602, 778 A.2d 212 (2001)).

Per Se Violations

Per se violations are specific actions prohibited by law and deemed to violate CUTPA. For example, anyone who violates the Home Improvement Act also violates CUTPA (CGS 20-427(c)). For a list of all statutory per se violations, see Attachment 1.

In addition to statutory per se violations, CUTPA allows the DCP commissioner to issue regulations defining certain actions as an unfair trade practice (CGS 42-110b(c)). For example, it is a CUTPA violation for car dealers to advertise a price without disclosing certain fees (Conn. Agencies Regs. 42-110b-28(6)).

ENFORCEMENT

CUTPA authorizes DCP to investigate complaints. In this regard, the DCP commissioner may issue subpoenas, administer oaths, and conduct hearings (CGS 42-110d(a)). Further, the DCP commissioner or his representatives may:

1. enter and investigate any establishment at reasonable times,

2. check invoices and records,

3. take samples of commodities for evidence,

4. subpoena documentary material, and

5. have access to and copy documents

(CGS 42-110d(b)).

The commissioner may also mail an investigative demand to someone suspected of a CUTPA violation, so he or she can make sworn assurances that CUTPA has not, is not, or will not be violated (CGS 42-110d(c)).

The commissioner may conduct a hearing if he has reason to believe someone violated CUTPA. He may conduct a hearing only after giving notice of the charges. Testimony must be taken under oath. The commissioner has the power to issue subpoenas to compel the witnesses to appear or produce of documents (CGS 42-110d(d)).

If anyone fails or refuses to comply with the DCP commissioner's investigative demands, the commissioner may apply to Hartford Superior Court for (1) injunctive relief on the alleged act; (2) suspension of the offender's business license; and (3) other relief that may be required, until the person submits the required documents (CGS 42-110k).

The commissioner may accept an assurance of voluntary compliance from alleged CUTPA violators. Assurances may include restitution to aggrieved persons. These assurances are not considered to be an admission of a violation (CGS 42-110j).

PENALTIES

If after a hearing, the commissioner feels that a violation has occurred, he must state in writing his findings of fact and issue a cease and desist order. In cases involving less than $5,000, he may also order restitution. The commissioner may also enter into consent agreements and ask the attorney general to seek judicial enforcement of his restraining or injunction orders (CGS 42-110d, 42-110m, and 42-110n). The commissioner's order may be appealed to the Superior Court in accordance with the Uniform Administrative Procedure Act (CGS 42-110e).

Courts may issue restraining orders; award actual and punitive damages, costs, and reasonable attorneys fees; and impose civil penalties of up to $5,000 for willful violations and $25,000 for violating a restraining order. The attorney general may recover civil penalties for the state (CGS 42-110d, 42-110k, 42-110m, and 42-110o). The statute of limitations for CUTPA violations is three years (CGS 42-110g(f)).

The attorney general may also petition the Hartford Superior Court to order the dissolution, suspension, or forfeiture of any corporation that violates any injunction terms (CGS 42-110p).

Attachment 1: Per Se CUTPA Violations

Statute

Violation

CGS 4-28m

Failing to affix tax stamp on cigarettes

CGS 12-326b

Selling cigarettes below cost, with intent to injure competition

CGS 14-15b

Violating motor vehicle rental contracts terms

CGS 14-16c

Selling totaled or salvaged motor vehicles

CGS 14-106b

Altering odometer

CGS 14-106d

Selling fake air bags

CGS 14-332a

Adding a gas surcharge

CGS 16-245o

Restricted use of customer information for marketing

CGS 16-245s

Unauthorized switch in electric suppliers

CGS 16-247s

Disclosing cell phone information

CGS 16-247u

Unauthorized procurement and sale of telephone records

CGS 16-256i

Unreasonably delaying telephone carrier switch

CGS 16a-15

Failing to display fuel pump sign requirements

CGS 16a-22k

Unfair trade practices in selling fuel oil

CGS 16a-23

Selling to independent retailers

CGS 16a-23a

Selling of anthracite

CGS 16a-23r

Violating home heating oil sales statutes

CGS 19a-509f

Prohibited utility charge

CGS 20-7f

Violating unfair billing practice

CGS 20-124a

Failing to disclose dental referral service

CGS 20-150

Violating where optical goods may be sold

CGS 20-341

Working without a license

CGS 20-341y

Violating mechanical contractor statutes

CGS 20-417c

Violating new home construction contractors statutes

CGS 20-427

Violating home improvement contractors statutes

CGS 20-457

Violating community association managers statutes

CGS 20-691

Violating locksmiths statutes

CGS 21-35h

Violating closing-out sales statutes

CGS 21-83e

Violating mobile manufactured homes statutes

CGS 21a-222

Violating health club statutes

CGS 21a-343

Failing to allow inspection under the State Child Protection Act

CGS 21a-345

Failing to post notice for an article that has a banned substance

CGS 21a-404

Violating the Home Food Service Plan Sales Act

CGS 22-244

Selling milk that creates an emergency condition

CGS 22-247

Written or oral contract for milk sale under an unfair trade practice

CGS 33-1335

Violating corporate accountability statutes

CGS 35-1

Using a fictitious business name

CGS 36a-498

Soliciting a residential mortgage loan application

CGS 36a-589

Violating check cashing services statutes

CGS 36a-700

Violating credit clinic statutes

CGS 36a-701b

Violating securing computerized data statutes

CGS 38a-355

Failing to provide notice for replacement auto parts

CGS 38a-465f

Failing to comply with life settlement insurance disclosures

CGS 38a-567

Violating certain small employer insurance statute provisions

CGS 38a-815

List of unfair trade practices in the insurance industry

CGS 42-103tt

Violating certain provisions for time shares

CGS 42-103ww

Furnishing false information in time share expense statement

CGS 42-110aa

Refusing to accept returns

CGS 42-115t

Cash register read-outs must be visible to consumer

CGS 42-115u

Violating the unfair sales practices statutes

CGS 42-116

Violating the Unfair Photographic Sales Practices statute

CGS 42-125bb

Violating certain provisions for layaway plans

CGS 42-126b

Sending unsolicited goods

CGS 42-126c

Failing to disclose certain requirements for mail order business

CGS 42-133i

Notice of magazine subscription expiration

CGS 42-133ff

Travel service surcharge for credit card use

CGS 42-141

Violating provisions of the Home Solicitation Sales Act

CGS 42-184

Violating new automobile warranties

CGS 42-206

Violating provisions of the funeral service contracts statutes

CGS 42-210

Violating gray market merchandise statutes

CGS 42-217

Violating rain check statutes

CGS 42-227

Violating automobile manufacturers' warranty adjustment programs statute

CGS 42-230

Violating profiteering statute

CGS 42-232

Selling products at an excessive price during energy emergency

CGS 42-234a

Selling energy resources at excessive price during abnormal market disruptions

CGS 42-251

Violating consumer rent-to-own agreement statutes

CGS 42-283

Violating diet program statutes

CGS 42-288

Violating telemarketing statutes

CGS 42-288a

Violating do not call registry

CGS 42-300

Violating sweepstakes statutes

CGS 42-311

Violating buying club statutes

CGS 42-322

Violating dating services statutes

CGS 42-360

Posting of dry cleaning prices

CGS 42-370

Posting of certain information on prepaid calling cards

CGS 42-371

Violating provisions of consumer discount cards statute

CGS 47-6b

Conveyance that is not signed by duly authorized person

CGS 48-30

Misrepresentation of power to acquire property by eminent domain

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