COLORADO CONSUMER PROTECTION ACT CLAIMS

One cause of action that frequently arises in construction claims is a Colorado Consumer Protection Act claim (CCPA). The CCPA is typically enforced by the Attorney General’s Office, but also gives a private right of action to the public. You can bring this claim privately if need be.

The CCPA is meant to deter and punish deceptive trade practices by businesses against consumers. The claim is very attractive to consumers because it gives you access to treble damages.

WHAT IS THE COLORADO CONSUMER PROTECTION ACT (“CCPA”)?

Colorado’s General Assembly enacted the CCPA in 1969 as a variation on the existing Uniform Deceptive Trade Practices Act of 1966 (“UDTA”). The main difference between the two legal mechanisms is that, unlike the UDTA, the CCPA grants a private right of action to individual consumers to recover damages for violation of the Act. This makes the CCPA a powerful cause of action in many cases involving consumer transactions, sales, and solicitations.

Specifically, the CCPA regulates commercial activities and practices that “because of their nature, may prove injurious, offensive, or dangerous to the public” and prohibits conduct that has “a tendency or capacity to attract customers through deceptive trade practices.”[1] For more information, give us a call as 303-268-2867 or complete a consultation request form.

WHAT ARE THE ELEMENTS OF A COLORADO CONSUMER PROTECTION ACT CLAIM?

The Colorado Supreme Court has determined that, to establish a private cause of action under the CCPA, the plaintiff must prove five elements by a preponderance of the evidence:

1. That the defendant engaged in an unfair or deceptive trade practice;
2. That the challenged practice occurred in the course of defendant’s business, vocation, or occupation;
3. That the practice significantly impacted the public as actual or potential consumers of the defendant’s goods, services, or property;
4. That the plaintiff suffered injury in fact to a legally protected interest; and
5. That the challenged practice caused the plaintiff’s injury.[2]

Further, the Colorado Supreme Court has held that “[a] CCPA claim will only lie if the plaintiff can show the defendant knowingly engaged in a deceptive trade practice,” and, it is an “absolute defense” that the representation was caused by negligence or honest mistake.[3]

HOW IS “UNFAIR OR DECEPTIVE TRADE PRACTICE” DEFINED?

The CCPA, at C.R.S. section 6-1-105, provides an extremely comprehensive list of actions that constitute “deceptive trade practices” which are actionable under the CCPA.  While we cannot feasibly fit all 80 + of them in this practice area page, here are a few deceptive trade practices that commonly arise in CCPA lawsuits:

• Either knowingly or recklessly:
  • passes off goods, services, or property as those of another;
  • makes a false representation as to the source, sponsorship, approval, or certification of goods, services, or property;
  • makes a false representation as to the characteristics, ingredients, uses, benefits, alterations, or quantities of goods, food, services, or property;
• Uses deceptive representations or designations of geographic origin in connection with goods or services;
• Represents that goods are original or new if he knows or should know that they are deteriorated, altered, reconditioned, reclaimed, used, or secondhand;
• Represents that goods, food, services, or property are of a particular standard, quality, or grade, or that goods are of a particular style or model, if he knows or should know that they are of another;
• Disparages the goods, services, property, or business of another by false or misleading representation of fact;
• Advertises goods, services, or property with intent not to sell them as advertised;
• Employs “bait and switch” advertising, which is advertising accompanied by an effort to sell goods, services, or property other than those advertised or on terms other than those advertised.[4]

HOW IS “FALSE REPRESENTATION” DEFINED?

A “misrepresentation” or “false representation” is a false statement that:

• Induces the person to whom it is made to act or to refrain from acting; or
• Has the capacity or tendency to attract consumers; or
• Has the capacity to deceive the recipient even if it did not.

Notably, “mere puffery” is not actionable as a “misrepresentation” or “false representation.”[5]

WHAT IS A “SIGNIFICANT IMPACT ON THE PUBLIC”?

While not conclusive or exhaustive of the issue in every case,[6] considerations in determining whether the challenged trade practice(s) significantly impacted the public as actual consumers of the defendant’s goods, services, or property include:

1. The number of consumers directly affected by the challenged trade practice(s);
2. The relative sophistication of the consumers directly affected by the challenged trade practice(s);
3. The bargaining power of the consumers directly affected by the challenged trade practice(s);
4. Evidence that the challenged trade practice(s) has or have previously impacted other consumers; and
5. Evidence that the challenged trade practice(s) has or have a significant potential to impact other consumers in the future.[7]

WHAT DAMAGES ARE RECOVERABLE UNDER THE CCPA?

“Actual” damages are recoverable under the CCPA.[8] Additionally, in most cases, a successful claimant under the CCPA is entitled to an award of “costs of the action together with reasonable attorney fees as determined by the court.”[9]

WHAT ABOUT TREBLE DAMAGES?

If actual damages have been established, you may also be entitled to treble damages if you prove, by clear and convincing evidence, that the defendant engaged in “bad faith” conduct.[10] “Bad faith conduct” means fraudulent, willful, knowing, or intentional conduct that causes injuries, damages, or losses.[11]

Importantly, if both treble and punitive damages are awarded based on the same conduct, you must elect between the awards and may not recover both types of these statutory damages.[12]

CONCLUSION

The CCPA is a powerful tool for individual consumers who have been harmed. At Volpe Law, our attorneys are ready to help you with your potential claim: give us a call as 303-268-2867 or complete a consultation request form for more information on how we can help!

[1] People ex rel. Dunbar v. Gym of Am., Inc., 177 Colo. 97, 112-13, 493 P.2d 660, 667-68 (Colo. 1972).

[2] Hall v. Walter, 969 P.2d 224 (Colo. 1998).

[3] Crowe v. Tull, 126 P.3d 196, 204 (Colo. 2006).

[4] C.R.S. § 6-1-105(1).

[5] Park Rise Homeowners Ass’n v. Res. Constr. Co., 155 P.3d 427 (Colo. App. 2006) (touting “quality construction” of condominiums constituted “mere puffery,” and was not actionable under the CCPA).

[6] Rhino Linings USA, Inc. v. Rocky Mtn. Rhino Lining, Inc., 62 P.3d 142 (Colo. 2003).

[7] CJI § 29:4.

[8] C.R.S. § 6-1-113(2)(a)(I) & (II).

[9] C.R.S. § 6-1-113(2)(b).

[10] C.R.S. § 6-1-113(2)(a)(III), (2.3).

[11] CJI § 29:6.

[12] Lexton-Ancira Real Estate Fund, 1972 v. Heller, 826 P.2d 819 (Colo. 1992).

DISCLAIMER

The information contained on this website is provided for informational purposes only. It is not legal advice and should not be construed as providing legal advice on any subject matter. Laws frequently change and therefore this content is not necessarily up to date, nor comprehensive. Contact us or another attorney with any legal questions specific to your matter. You may request a consultation by completing our consultation request form.