We represent Virginia consumers harmed by deceitful merchants, service providers or suppliers in commercial transactions. In a recent post, we talked about a lawsuit in which a merchant harmed the plaintiff financially in an interior-design services transaction. In that case, the court found that the provider had violated the Virginia Consumer Protection Act or VCPA when it billed for flawed or unauthorized furniture purchases and for price markups without permission.
In addition to the VCPA violations, the court also held that the defendant had been in breach of contract and had engaged in the infliction of emotional distress, both claims under Virginia state law separate from the VCPA legislation. As we said, this is a good example of how an injured consumer can recover, if appropriate, under the VCPA and under other state-law claims for harm from the same transaction.
Fraud and the VCPA
Virginia legislators passed the VCPA because they wanted to create additional legal remedies for consumers harmed by deceptive and other negative conduct in commercial transactions. They also wanted to create remedies that were in some situations easier for consumer to prove.
One way to make it easier to recover was to lower the burden of proof. For example, to recover under the VCPA, the plaintiff must prove the claim by a preponderance of evidence. However, to recover for common-law fraud (in other words, judge-made law developed in court opinions) in Virginia, the victim must prove six elements by clear and convincing evidence:
- False representation of a
- Material fact
- Made knowingly and intentionally
- With an intention to mislead
- Reliance by the consumer on the representation
- Damage or loss to the consumer because of the reliance on the misrepresentation
Clear and convincing evidence is a higher burden to meet than is preponderance of the evidence, so a plaintiff may be able to prove a violation of the VCTA, but not of common-law fraud, for the same transaction or merchant conduct.
It is also possible that the consumer could present evidence at a clear-and-convincing level that could prove violations of both the VCTA and fraud under state law.
The VCPA makes more than 40 different fact scenarios illegal. Several of these include elements of dishonesty or deceit, bringing them into the same arena of consumer harm that involves deception, along with common-law fraud, but not requiring the same fact scenarios.
Virginia courts have held that VCPA violations that involve fraud or misrepresentation require that the plaintiffs prove reliance — that it was their reliance on the fraudulent behavior that caused the harm, just as is required in a common-law fraud claim.
But for a VCPA claim that does not involve fraudulent behavior, the plaintiff does not need to show reliance to prove a valid claim. Certain fraud-like VCPA claims may be viable, even when full-blown state-law fraud is not.
Talk to a Virginia consumer-protection attorney to understand the variety of legal remedies that may be available should you find yourself wronged in a consumer transaction.