Virginia Consumer Protection Act has broad remedial reach

The Commonwealth’s VCPA provides consumer remedies for unethical, fraudulent and unfair transactions in goods and services.

Since 1977, Virginians have enjoyed pro-consumer legal protections from certain unfair business practices under the Virginia Consumer Protection Act, referred to as the VCPA. This legislation was intended to expand the available remedies for Virginia consumers who experience losses from unfair, unethical or fraudulent consumer transactions.

Claims for common law fraud (meaning the cause of action established by Commonwealth courts, not by statute) are still available. Legal remedies under the VCPA are in some ways like common law fraud, but not exactly. Some consumer transactions that violate the VCPA may not rise to the level of common law fraud, but the legislature wanted to enact broadly remedial legislation aimed at increasing the level of consumer protection.

VCPA application

Coverage of the VCPA is broad, regulating consumer transactions for goods and services supplied (sold, leased or licensed) for personal, family or household use, among other things. In a broad sense, the Act protects individual consumers from transactions involving deception, but the element of misrepresentation or fraud must be present (for illegal practices that require it). It is not normally a VCPA violation if the merchant was sloppy or vague during the transaction, or only expressing an opinion, or just made an honest mistake.

Goods are defined broadly under the VCPA and include both real and personal property as well as tangible and intangible property.

More than 40 business practices are listed as violations of the VCPA, each with its own elements. Some of the more common unlawful practices:

• Bait-and-switch frauds, including advertising or selling a particular thing and then delivering another, or advertising a price for a certain good and then selling or delivering a different good, or requiring a different price for the promised good
• Representation that a repair or service has been performed when it has not
• Misrepresentation about the origin, quality, features, nature, characteristics, model or style of the good or service being sold
• Advertising or offering to sell a good or service at a price with no intention to sell that particular good or service or to sell the offered good or service at the quoted price
• False statements about a price reduction
• Misleading advertising, including advertising to sell goods that are used without making the used condition clear

For the VCPA to apply, there must be a specific violation in a consumer transaction that causes the consumer loss or damage. The consumer may file a VCPA claim in court and only needs to prove the violation by a preponderance of the evidence.

For listed violations based on fraud or misrepresentation, the consumer must show reliance on the misrepresentation.

VCPA remedies

For a proven VCPA violation, the consumer may recover actual damages or $500, whichever is higher. Damages may be tripled if the violation was willful, which has been interpreted as knowing, or intentionally deceptive. For willful violation, damages may be tripled or $1,000 may be granted, whichever is greater.

If the violation was unintentional, compensatory damages may be ordered to make the consumer financially whole again, but treble damages are not allowed.

A successful VCPA claimant may also request reasonable legal fees and court costs, even for unintentional violation.

Time limits

A consumer normally has two years to bring a VCPA claim from when it accrues. The Act also allows the state Attorney General or a lawyer for a county or city to investigate and bring actions for consumer violations of the Act. During the time a public claim is being pursued, calculation of the two years is suspended.

This article is only a general overview of a complex law. Anyone in Virginia who has experienced loss in an unfair or deceptive consumer transaction should speak with a consumer protection attorney about potential legal remedies.

Attorney Tom Breeden at Thomas R. Breeden, P.C., in Manassas advocates for consumers harmed by unethical or fraudulent business practices, including bringing claims under the VCPA.