In part one of a two-part series on consumer laws, we discussed the Consumer Sales practices Act (“CSPA”) and reviewed, generally, some rules that businesses should follow to have their best shot at keeping compliant under the CSPA. However, because the CSPA is technical and nuanced and its application is somewhat complicated and very fact driven, it is typically necessary to consult with an attorney to make sure you are protected. If that option is out of reach, one way to get familiar is to seek guidance at the Ohio Attorney General’s website.
This blog post will take a practical look at how to know whether or not you are in violation. As always, you should consult with an attorney to discuss your particular situation and nothing contained herein should be construed as legal advice.
The fact is that the Ohio Attorney General’s office receives over 30,000 complaints per year, often in areas involving home improvement contracts. The primary focus of the CSPA is to protect consumers from poor workmanship, deceptive advertising, and one-sided contracts. The Attorney General can investigate any complaints it receives, but the most frequently utilized forum to address alleged CSPA violation is the court system via private litigation. The consumer sues the supplier/business owner and if the consumer wins, they may be entitled to 3 times their actual damages plus up to $5,000. In addition, the supplier/business owner may have to pay the consumer’s attorney fees.
How do you know if you are CSPA compliant?
In general, a business violates the CSPA when it commits an unfair or deceptive act or practice or an unconscionable act or practice, during or after a sale of goods and services, whose purpose is primarily for personal, family or household use.
The CSPA is codified in the Ohio Revised Code, which generally speaking, is law that is passed by the legislature. The CSPA is codified in Revised Code 1345.01. However, that’s not the end of the story, because to know whether you are in compliance, you have to understand how the courts apply the law to real life situations. Therefore, the courts have the job of interpretation, meaning the courts take the revised code and apply it to particular scenarios and specific facts of real cases brought before them. Reviewing how courts interpret the law is how you can understand when and how you may be in danger of committing a violation, even unwittingly. Unfortunately, it is impossible to condense all of the court’s interpretations of what constitutes violations into a blog post. And, also, if you are reading this post, you are probably not a lawyer with an interest in reviewing caselaw. However, the Ohio attorney general does have a catalog of all CSPA cases. Those are stored in what is referred to as the Public Inspection Files.
Below is a list of what the legislature and Ohio attorney General believe to be unfair, unconscionable, or deceptive business practices.
- Stating that something is the particular standard, quality, grade, style, or model, when it is not
- Stating that something is new or unused, when it is not
- Telling a consumer something is necessary for a reason that does not exist
- Telling a consumer that the supply is of a greater quality than he intends to sell
- Telling a consumer that something needs to be replaced or repaired when it does not
- Telling a consumer that a price advantage exists when it does not
- Deceiving a consumer about a warranty or lack of warranty
- Taking advantage of the consumers mental or physical illness, ignorance, or illiteracy, or inability to understand the contract.
- Knowing that the consumer could not pay for the product
- Requiring a consumer to enter into a contract with terms that are one-sided in favor of the supplier
- Refusing, without justification, to make a refund in cash or check for a returned item unless there was a pre-existing refund policy known by the consumer, or otherwise posted.
To help avoid getting sued under the CSPA, a business owner should have an attorney make sure that all contracts and forms comply with the CSPA, and the procedures it follows are acceptable under the CSPA.
Wick Law, LLC is a small business legal practice, representing owners, investors, and entrepreneurs in all aspects of commercial, corporate, and business law, estate planning, contracts and negotiations, business litigation, and real estate. For more information: Contact 614-572-6366, visit www.mwicklaw.com, or email us at firstname.lastname@example.org. Wick Law, LLC is located in Columbus, Ohio.
(Materials in this article have been prepared by Wick Law, LLC for general informational purposes only. This list is for educational purposes and is not to be considered exhaustive. More items could be added to this checklist based upon the type of transaction or industry standards. These materials do not, and are not intended to, constitute legal advice. The information provided is not privileged and does not create an attorney-client relationship with Wick Law, LLC or any of the firm’s lawyers. This checklist is not an offer to represent you. You should not act, or refrain from acting, based upon any information in this checklist. Wick Law, LLC maintains offices in Columbus, Ohio, and has lawyers licensed to practice in Ohio and in the United States District Court, Southern District of Ohio. The firm does not intend to practice law in any jurisdiction where the firm is not licensed.)
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