Pridgen Article on Attempts to Eliminate Private UDAP Claims

by Jeff Sovern

My co-author, Dee Pridgen of Wyoming, has written an important and disturbing account of attempts by the American Legislative Exchange Council (ALEC) to dismantle a fundamental device to protect consumers: the private UDAP claim. Readers of this blog will find her article, Wrecking Ball Disguised as Law Reform: ALEC's Model Act on Private Enforcement of Consumer Protection Statutes, 39 New York University Review of Law & Social Change (2015), of particular interest. Here is the abstract:

The consumer protection statutes of every state are currently under attack by a proposed model law that would effectively eliminate the critical private enforcement provisions that give these laws their power.  The American Legislative Exchange Council (ALEC) has produced a purported law reform vehicle that is actually a wrecking ball to destroy one of the building blocks of consumer protection, namely the private enforcement of state unfair and deceptive practices acts. It does this by systematically weakening each and every provision of these laws, such as lower burdens of proof, special damages, and attorney’s fees, that were designed to provide consumers with access to justice for small economic wrongs. This article examines the history and goals of the state consumer protection statutes, with their private enforcement mechanisms, and then demonstrates how the ALEC model act would undermine these goals. The article also critically examines certain research studies that claim to demonstrate abuses of the current laws.  The article concludes that while the statutes in question could perhaps benefit from some limited reforms, the ALEC proposal is an ill-conceived attempt to effectively repeal the private enforcement of state consumer protection statutes.