Defending Against DTPA Claims

Houston Deceptive Trade Practices Defense Attorneys

Contact Our Experienced Team if You Have Been Sued for Alleged DTPA Violations

(Note: We do not handle automobile-related claims or DTPA claims against auto dealers or manufacturers.)

Claims under the state Deceptive Trade Practices Act (DTPA) can range from a customer complaint about bait-and-switch marketing tactics to lawsuits relating to warranties and service agreements. If you have been sued for an alleged deceptive trade practice violation, you will need a knowledgeable DTPA attorney to protect your interests.

The attorneys at Hendershot Cowart P.C. have more than a century of collective experience providing legal counsel and aggressive defense for clients involved in commercial disputes or Texas Attorney General investigations.

What Is Texas' Deceptive Trade Practices Act?

The Deceptive Trade Practices Act prohibits false, misleading, or deceptive acts in trade and commerce. The law was enacted in 1973 and quickly became a powerful tool to combat many types of fraud and misrepresentation in Texas. In 1995, legislators revised the act to limit damages, exempt some larger transactions and limit the original act in other ways, making it easier for defendants to fight back against frivolous claims.

However, the DTPA remains a concern for businesses throughout Texas due to its complexity. The issue of who may sue under the act and what potential violations they may sue for is often clear cut – but not always.

That is where our law firm can help. For 35 years, our firm has provided business clients with high-level counsel in a wide range of business law and business litigation matters. We can assess the claims brought against you and which of the available defenses best apply to your matter.

Which Statements or Practices Are Prohibited by the Deceptive Trade Practices Act?

The DTPA covers a broad range of misleading, false, or deceptive practices. In fact, Section 17.46(b) lists 27 practices that could violate the act, and others could also be considered violations of the DTPA.

While there are 27 acts or practices deemed false, deceptive, or misleading under the Act, most claims are based on these practices:

Misrepresentation regarding goods and services
Misrepresentation regarding agreements or legal rights and remedies
Failure to disclose, as long as the defendant knew information about a good or service and failed to disclose it (one of the few provisions of the act that requires proof of intent)
Breaches of warranty

Who Can Sue Under the DTPA?

The DTPA applies to consumers, a term that encompasses much more than individuals. It also includes partnerships, corporations and even the state of Texas. Business consumers are excluded if they have assets of $25 million or more. In general, however, a broad range of individuals and businesses can assert claims under the DTPA.

In most cases, disputes over deceptive trade practices are handled as disputes between two businesses or between an individual consumer and a business. In other cases, however, the Texas Attorney General may become involved.

If your business is being investigated by the Office of the Attorney General (OAG) for allegations of deceptive trade practices, our law firm can help. We regularly represent clients in administrative law matters with the OAG and other state and federal agencies.

What Are the Economic Damages Available Under the DTPA?

Under the DTPA, consumers – whether businesses or individuals – can obtain economic damages for their losses. In some cases, they may also obtain damages for mental anguish. If a court finds the defendant acted intentionally or knowingly, it could award the consumer additional damages of up to three times the amount of economic and mental damages. Attorneys' fees may also be awarded to consumers.

The exposure to damages in a DTPA lawsuit in Texas can be much higher than a breach of contract action. Contact the experienced business litigation attorneys at Hendershot Cowart P.C. to prepare your defense today.

What Must a Consumer Prove in a DTPA Lawsuit?

To prevail in a DTPA claim, the plaintiff must prove: 1) they are a consumer; 2) the defendant engaged in conduct prohibited by the Act; and 3) the prohibited conduct caused injury to the injury to the consumer that would not have occurred otherwise.

Consumers do not, however, need to prove intent when litigating a DTPA claim. Whether you intended to mislead a consumer is irrelevant; the consumer must only prove that the representation was made in the context of a sales transaction and was a false, misleading, or deceptive act or practice prohibited by the Act.

Defending Against DTPA Lawsuits

If you've been sued in Texas for deceptive trade practices, the first step is to determine whether the actions for which you've been accused are prohibited under Section 17.46(b) of the DTPA.

The second step is to work with an attorney to develop a defense strategy. Under the DTPA, you face economic damages for the business's or consumer's losses, as well as the prospect of triple damages if you are found to have acted intentionally. You may also be held liable for attorney fees. An aggressive defense strategy based on experience is critical.

The Best Way to Win Is to Prepare Aggressively

Our lawyers use multiple approaches in defending deceptive trade practice claims, including asserting that:

Statute of limitations has passed: DTPA actions must be brought within two years of the false, misleading, or deceptive act or practice, or within two years after the consumer discovered (or using reasonable diligence, should have discovered) the false, misleading, or deceptive act or practice.
Claims are excluded from the DTPA: The DTPA is broad, but it does not apply to every transaction or service. Our attorneys can examine the claims to counter any that are not prohibited by the DTPA.
The “consumer” is not a consumer as defined by the DTPA: Under the DTPA, consumers must have sought or acquired, by purchase or lease, goods or services, and the acquired goods or services must be the basis of the complaint. If the plaintiff never requested information or acquired the good or services for their own benefit, they may not qualify for the DTPA’s protection. Similarly, the DTPA does not apply to business consumers that have assets of $25 million or more, or that are owned or controlled by a corporation or entity with assets of $25 million or more.
The alleged deceptive act did not cause injury or incur damages to the consumer.

To protect against future claims, our attorneys may also recommend reviewing and revising your business policies and sales process to ensure compliance and discourage ambiguous representations of your products or services.

Contact our offices to arrange a consultation with an attorney on our business litigation team today. To schedule an appointment, call (713) 783-3110 or fill out an online form.

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