Protecting Your Business from Consumer Protection Litigation in Oregon

Protecting Your Business from Consumer Protection Litigation in Oregon

If your business engages in the sale of “real estate, goods, or services” or collection matters in Oregon, your business is subject to statutory consumer protections contained in Oregon’s Unlawful Trade Practices Act (UTPA), ORS 646.605, et. al.  The UTPA contains broad enforcement authority and tools for the Oregon Department of Justice (DOJ) to investigate, enjoin, prosecute, and penalize businesses that engage in prohibited trade practices.  The UTPA is also used by private attorneys to assert statutory claims in civil lawsuits.

Basically, the DOJ can be shut down your business prior to a trial on the merits (i.e. via an injunction) and, if found in violation, subject it to civil penalties of up to $25,000.00 per violation, plus attorney’s fees, and restitution.  The DOJ also uses a pre-trial discovery device called a Civil Investigative Demand (CID) to require your business to provide documents and other business records as part of its investigation, which can be very burdensome and costly.  Just responding to a CID can greatly hamper your business operations.  There is also a private right of action under the UTPA for consumers, which allows them to hire their own attorneys and sue your business and seek the recovery of their attorney’s fee if they prevail.  This is in addition to the DOJ own enforcement action.  Here is a link to related UTPA penalties: https://www.oregonlaws.org/ors/646.642

So, what does your business need to be aware of in order to best comply with the UTPA and avoid these business-killing risks?  First, you should educate yourself about what conduct is generally prohibited.  Please see: https://www.oregonlaws.org/ors/646.607

In short, you must avoid deceptive, misleading, and unconscionable trade practices as they relate to household real estate, goods, or services and related statutory collection prohibitions.  You should also consult with (and hire) general business counsel to review your business processes and any potential legal exposure prior to problems arising.  Remember: “An ounce of prevention…”

Of important note: prohibited conduct under the UTPA is broadly defined and applies to large classes of specific conduct.  There are also common industries that are commonly investigated like: telecommunication companies, phone solicitors, used car dealers, contractors, and various other sellers of household real estate, goods, or services and bill collectors.   

Therefore, Oregon businesses should operate by the golden rule of treating their customers fairly, openly, promptly, and honestly.  This can help your business avoid many problems to begin with.  When disputes do arise, you should attempt to resolve them in the same manner and directly with your customer or the consumer.  The risk of not doing so is that these folks may hurt your business not only through bad reviews and public criticism, but may file a consumer complaint with the DOJ which can be done easily by phone or online.  The DOJ investigates its consumer complaints.

If your business is contacted by the DOJ, the DOJ recommends you respond accordingly: https://www.doj.state.or.us/consumer-protection/for-businesses/how-to-respond-to-a-contact-from-the-doj/

When violations are founded, the DOJ typically tries to resolve those matters through a legal contract called an Assurance of Voluntary Compliance (AVC) prior to filing a formal lawsuit.  While an AVC is not considered a legal admission of liability, it brings with it some risk since any future violation of an AVC is itself actionable under the UTPA if other complaints occur.   Your business will pay victim restitution and fines at a minimum under an AVC.  Therefore, you should immediately consult with legal counsel and respond timely if you are ever contacted by the DOJ regarding any alleged UTPA violations.  

Overall, it is good that Oregon enforces consumer protections under the UTPA.  Both consumers and businesses benefit, since it encourages fair competition and provided harsh repercussions if violations occur.  So, be aware and be prepared in advance!  Consult with a business attorney to understand your rights and responsibilities.

 

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