Consumer Protection Litigation

Litigation over how a product or service was marketed, sold or serviced, brought under the statutes that regulate dealings with the public rather than under the contract between the parties. Every state has an unfair-and-deceptive-practices statute modeled loosely on Section 5 of the FTC Act, most with statutory damages and one-way fee shifting; federal law adds warranty rules under Magnuson-Moss and sector statutes on calls, texts and credit reporting. For a company the typical matter is a putative class action alleging that a label, an advertisement or a billing practice misled a reasonable consumer, often with a regulator's inquiry running beside it.

Defense of businesses sued over the gap, alleged or real, between what was said and what was sold: a label or advertisement challenged as deceptive, a pricing or auto-renewal practice attacked under a state statute, a warranty said to have been breached. Most arrive as putative class actions in state or federal court, and we handle the removal and the arbitration motion where a clause supports it, the certification fight, and the trial or settlement that follows. We also help companies answer civil investigative demands from the FTC and state attorneys general, and coordinate that response with the litigation so the two never contradict each other.

UDAP stands for unfair and deceptive acts and practices. Every state has a consumer protection statute, often modeled on the FTC Act, that prohibits businesses from misleading or unfairly treating consumers, and these statutes frequently allow private suits with statutory damages and attorneys' fees. A UDAP claim alleges that a company's marketing, pricing, disclosures, or sales conduct crossed that line, so an early factual and legal assessment of the conduct at issue is the first job.

Because the conduct is uniform and the statute does the arithmetic. One label, one disclosure or one billing practice reached every customer the same way, which is the commonality Rule 23 asks for, and statutory damages per violation plus fee shifting make a small individual claim worth aggregating. The defense works the other direction: whether each member actually saw the representation, whether each suffered a concrete injury, and whether damages can be measured classwide without assuming the answer. Where the record shows the exposure varied, predominance fails and the class with it, and the case returns to the size of one customer's grievance.

Often as a second front with a different procedure. The FTC and state attorneys general investigate through civil investigative demands, which can be negotiated in scope and timing but not ignored, and they resolve most matters by consent order; an FTC order typically runs for 20 years and makes any later violation a civil-penalty matter. Since 2021 the FTC cannot obtain consumer refunds under Section 13(b) of its Act, so it builds cases around its rules and Section 19, where penalties and redress remain available. Everything said to a regulator is discoverable by the plaintiffs, and a consent order's factual recitals are quoted back in the class case. We draft for both readers at once.

Most are. A motion to compel individual arbitration ends the class case where the clause and the assent record hold. A motion to dismiss succeeds where no reasonable consumer could have been misled as a matter of law, which courts decide on the face of the label or ad. An individual settlement with the named plaintiff before certification needs no court approval, though it releases no one else, while a class settlement requires court approval after notice and a fairness hearing, and a 90-day wait after the state and federal attorneys general are served. Each path is priced against the certification odds before the first offer, because the settlement value of a consumer class case moves more at certification than at any other moment.