Can our contract make the customer waive Maine consumer-protection rights?
No. 5 M.R.S. § 214 is one sentence: "Any waiver by a consumer of the provisions of this chapter is contrary to public policy and shall be unenforceable and void." The chapter it protects declares unlawful "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce" (§ 207), and the private action under § 213(1) is confined to a person who buys or leases goods, services or property "primarily for personal, family or household purposes" and thereby suffers a loss of money or property: that person may then sue "for actual damages, restitution and for such other equitable relief, including an injunction, as the court determines to be necessary and proper". The statute itself sends the courts to federal law: § 207(1) says the Legislature intends that "in construing this section the courts will be guided by the interpretations given by the Federal Trade Commission and the Federal Courts to Section 45(a)(1) of the Federal Trade Commission Act". So the Law Court's unfairness test is the FTC's three-part test: the act or practice "(1) must cause, or be likely to cause, substantial injury to consumers; (2) that is not reasonably avoidable by consumers; and (3) that is not outweighed by any countervailing benefits to consumers or competition" (State v. Weinschenk), and "[t]he substantial injury requirement is a limitation on the use of the UTPA for a private cause of action" (McKinnon v. Honeywell International, Inc., where the plaintiff's own claim failed on exactly that point and the judgment against him was affirmed).
The trap
Section 214 kills the waiver, but § 213(1-A) is the term that actually loses cases: "[a]t least 30 days prior to the filing of an action for damages, a written demand for relief, identifying the claimant and reasonably describing the unfair and deceptive act or practice relied upon and the injuries suffered, must be mailed or delivered to any prospective respondent". Kilroy v. Northeast Sunspaces, Inc. describes it as "designed to encourage settlement by notifying the defendant of the claim within a certain amount of time prior to the initiation of the suit", and the same subsection expressly excuses it only where "the claim is asserted by way of counterclaim or cross claim". Three more limits. First, the regulatory exception: § 208(1) takes out transactions "otherwise permitted under laws as administered by any regulatory board or officer", but only where the defendant shows BOTH that its business activities are subject to agency regulation AND that the specific activity complained of "is authorized, permitted or required by a state or federal agency or by applicable law, rule or regulation or other regulatory approval". It is worth knowing how short that list is: the section's other two exceptions, for interstate commerce and for complaints, were repealed in 1981 and 1973 and survive only as headings, so the regulatory exception is the only one left. Second, a statutory violation is not automatically a UTPA violation: "it is not enough that the act or practice be a violation of a particular statute, it must also be unfair or deceptive" (State v. Bob Chambers Ford, Inc., where the State itself lost part of its judgment). Third, the Attorney General's rules matter in both directions: § 207(2) makes evidence of a violation of such a rule "prima facie evidence of an act or practice declared to be unlawful by this chapter".
20 authorities
- statute5 M.R.S. § 214enactment date not established
The words that state the rule
Any waiver by a consumer of the provisions of this chapter is contrary to public policy and shall be unenforceable and void.
- statute5 M.R.S. § 207enactment date not established
The words that state the rule
Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are declared unlawful.
- statute5 M.R.S. § 207enactment date not established
The words that state the rule
It is the intent of the Legislature that in construing this section the courts will be guided by the interpretations given by the Federal Trade Commission and the Federal Courts to Section 45(a)(1) of the Federal Trade Commission Act (15 United States Code 45(a)(1)), as from time to time amended.
- statute5 M.R.S. § 207enactment date not established
The words that state the rule
The Attorney General may make rules and regulations interpreting this section. Such rules and regulations shall not be inconsistent with the rules, regulations and decisions of the Federal Trade Commission and the Federal Courts interpreting the provisions of 15 U.S.C. 45(a)(1) (The Federal Trade Commission Act) as from time to time amended. Evidence of a violation of a rule or regulation made by the Attorney General shall constitute prima facie evidence of an act or practice declared to be unlawful by this chapter in any action thereafter brought under this chapter.
- statute5 M.R.S. § 213enactment date not established
The words that state the rule
Any person who purchases or leases goods, services or property, real or personal, primarily for personal, family or household purposes and thereby suffers any loss of money or property, real or personal, as a result of the use or employment by another person of a method, act or practice declared unlawful by section 207 or by any rule or regulation issued under section 207, subsection 2 may bring an action either in the Superior Court or District Court for actual damages, restitution and for such other equitable relief, including an injunction, as the court determines to be necessary and proper.
- statute5 M.R.S. § 213enactment date not established
The words that state the rule
At least 30 days prior to the filing of an action for damages, a written demand for relief, identifying the claimant and reasonably describing the unfair and deceptive act or practice relied upon and the injuries suffered, must be mailed or delivered to any prospective respondent at the respondent's last known address.
- statute5 M.R.S. § 213enactment date not established
The words that state the rule
The demand requirement of this subsection does not apply if the claim is asserted by way of counterclaim or cross claim.
- statute5 M.R.S. § 208enactment date not established
The words that state the rule
Transactions or actions otherwise permitted under laws as administered by any regulatory board or officer acting under statutory authority of the State or of the United States. This exception applies only if the defendant shows that:
- statute5 M.R.S. § 208enactment date not established
The words that state the rule
2. Interstate commerce. [PL 1981, c. 569 (RP).] 3. Complaints. [PL 1973, c. 323, §2 (RP).]
The words that state the rule
To justify a finding of unfairness, the act or practice: (1) must cause, or be likely to cause, substantial injury to consumers; (2) that is not reasonably avoidable by consumers; and (3) that is not outweighed by any countervailing benefits to consumers or competition.
The words that state the rule
In determining what constitutes an unfair or deceptive act pursuant to the UTPA, we are guided by the interpretations given by the Federal Trade Commission (FTC) and the federal courts. 5 M.R.S.A. § 207(1); Suminski v. Maine Appliance Warehouse, Inc., 602 A.2d 1173 , 1174-75 n. 1 (Me.1992).
The words that state the rule
The entry is: Judgment vacated with respect to the court's restitution award to the indirect purchasers. Remanded for recalculation of the restitution only to direct purchasers. The judgment is affirmed in all other respects.
The words that state the rule
The substantial injury requirement is a limitation on the use of the UTPA for a private cause of action.
The words that state the rule
Maine's UTPA also requires that a plaintiff suffer "loss of money or property" before bringing a private action to recover. 5 M.R.S. § 213(1).
The words that state the rule
McKinnon, however, is not a proper representative of the class because he presents insufficient evidence of injury as a matter of law. The entry is: Judgment affirmed.
The words that state the rule
We have said that this provision was “designed to encourage settlement by notifying the defendant of the claim within a certain amount of time prior to the initiation of the suit.”
The words that state the rule
The elements of an unfair trade practice are substantively different than the elements for a simple breach of warranty under the UCC. To be a violation of 5 M.R.S.A. § 207 it is not enough that the act or practice be a violation of a particular statute, it must also be unfair or deceptive.
The words that state the rule
The Superior Court specifically denied the State’s request for a permanent injunction. The statute clearly provides for investigation costs only when a permanent injunction issues. The entry is: Judgment modified by vacating the award to the State of investigation costs and as modified affirmed.
- statute5 M.R.S. § 208enactment date not established
The words that state the rule
A. Its business activities are subject to regulation by a state or federal agency; and
- statute5 M.R.S. § 208enactment date not established
The words that state the rule
B. The specific activity that would otherwise constitute a violation of this chapter is authorized, permitted or required by a state or federal agency or by applicable law, rule or regulation or other regulatory approval.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.