A Powerful Tool for Consumers: the Virginia Consumer Protection Act

The Virginia Consumer Protection Act, beginning at Virginia Civil Code § 59.1-196, is a very powerful tool for consumers who have been wronged by a business or company in a “consumer transaction.”

To protect consumers, the statute broadly defines “consumer transaction” to include goods and services (and also “business opportunities”)

Specifically, the VCPA outlines 35 different “prohibited practices” to protect consumers from unscrupulous businesses that engage in misrepresentations, false advertisements or statements, and/or failure to adequately disclose relevant information to the consumer (like conditions or fees) could all be separate violations of the VCPA.  Additional examples of potential VCPA violations can be seen in the Practice Areas section discussing Consumer Protection Law and at the bottom of this post.

Unfortunately, in many instances, consumers with valid claims do not file lawsuits against the company or business that wronged them because the consumer is unaware of the VCPA and the corresponding benefits.

Additionally, consumers may think they are at an insurmountable disadvantage when a conflict arises with a business (regardless of the business’ size), so they do not even bother to seek legal counsel.

Finally, consumers may have the misimpression that legal counsel is financially unavailable to them.  Some consumers do not have the financial resources to retain legal counsel.  Other consumers determine that the costs to retain an attorney do not justify pursuing the claim (the consumer does not want to pay an attorney more than the consumer would recover from the business).

To address these very legitimate concerns from consumers, Steven Krieger Law, PLLC is proud to offer low bono legal counsel to qualifying clients.

Additionally, the VCPA recognizes the financial difficulty that consumers may face and contains an attorney’s fees provision.  Specifically, § 59.1-204(B) clearly states, “[n]otwithstanding any other provision of law to the contrary, in addition to any damages awarded, such person also may be awarded reasonable attorney’s fees and court costs [emphasis added].”

Thus, consumers should make every effort to obtain legal counsel if they have a complaint stemming from a “consumer transaction” against a business because a successful consumer complaint will be awarded damages and may also be awarded reasonable attorney’s fees.

Each case is different and unique, but below are examples of successful VCPA cases where attorney’s fees were awarded.  Additionally, you can see other examples of potential VCPA claims in the Practice Areas section discussing Consumer Protection Law.  Claims of any size can be a violation of the VCPA, so contact Steven Krieger Law, PLLC for a consultation:

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In Wilkins v. Peninsula Motor Cars, Inc., the consumer plaintiff purchased a 1998 BMW from defendant dealership.  An employee of defendant represented to plaintiff that the vehicle was new even though the car’s odometer showed 972 miles.  In reality, the vehicle had been previously titled and should have been advertised as a used car.  Plaintiff won and was awarded: $4,000 in actual damages, $100,000 in punitive damages, and $34,183 in attorney’s fees and costs for a total of $138,183.  See Wilkins v. Peninsula Motor Cars, Inc., 587 S.E.2d 581, 266 Va. 558 (Va., 2003)

In Robert M. Seh Co., Inc. v. O’Donnell, the consumer plaintiff contracted with builder defendant to install a Fox swimming pool at plaintiff’s residence for $22,895.00. The consumer plaintiffs argued that the pool was not installed to industry standards and a Vyn-All brand liner was installed instead of a Fox brand liner.  The trial court awarded the consumer plaintiffs damages of $66,507.20, $1,000 in enhanced statutory damages for the willful violation of the Consumer Protection Act, and attorneys’ fees of $31,049.55.  See Robert M. Seh Co., Inc. v. O’Donnell, 675 S.E.2d 202, 277 Va. 599 (Va., 2009) (appeal for retrial was granted due to potential juror bias).

In Oettinger v. Lakeview Motors, Inc., the consumer plaintiff bought a vehicle from defendant dealership with over 75,000 miles of use, but the odometer indicated approximately 40,000 miles. Further, defendant manipulated the mileage number on the title certificate to say “37,252.1” when the actual mile was “72521.”  The Court awarded plaintiff actual damages totaling $1,756.40 and reasonable attorney’s fees that the parties were required to brief.  See Oettinger v. Lakeview Motors, Inc., 675 F.Supp. 1488 (E.D. Va., 1988).

In Abi-Najm v. Concord Condo. LLC, twenty-four consumer plaintiffs purchased condominiums in Arlington, Virginia from the defendant company.  In the purchase agreement, the company stated it would install three-quarter-inch Bruce Oak hardwood flooring, but installed prefabricated engineered hardwood.  The plaintiffs were seeking $50,000 per condominium, $350,000 in punitive damages, prejudgment interest, costs and attorney’s fees.  The defendants attempted to have the suit dismissed, but the Court allowed the suit to continue and was likely settled out of court.  See Abi-Najm v. Concord Condo. LLC, 280 Va. 350, 699 S.E.2d 483 (Va., 2010).

In Commonwealth v. Gavigan, the consumer plaintiff had a contract with defendant builder, Larry Pippen, doing business as “Affordable Home Repairs,” for the construction of a basement apartment for $45,000.  Defendant had a Class C contractor’s license from the Virginia Board for Contractors, but needed a Class B license to perform the work outlined in the contract.  The consumer plaintiff found the workmanship to be unsatisfactory and terminated the contract.  The Virginia Court of Appeals upheld the trial court’s award of $14,000 in actual damages and $5,000 in attorney’s fees. See Commonwealth v. Gavigan, Record No. 0921-10-3 (Va. App., 2011).

In Mya Saray, LLC v. Al–Amir, the consumer plaintiff was a manufacturer and distributor of tobacco products and accessories, including a Middle Eastern-style pipe known as a hookah.  The defendants were inappropriately using plaintiff’s trademarks, which gave consumers the inaccurate impression that plaintiff was responsible for the goods sold by defendants.  The Court awarded Plaintiff $188,418.68 in damages, $3,562.97 in costs, and $248,863.29 in attorney’s fees for violating the VCPA and other statutes.  See Mya Saray, LLC v. Al–Amir, 831 F.Supp.2d 922 (E.D. Va., 2011).

In Rucker v. Sheehy Alexandria Inc., the consumer plaintiff purchased a car from defendant dealership.  On April 3, the parties made an agreement conditional upon obtaining financing from a third-party within five days.  On April 13, defendant obtained financing, but the terms were less favorable to consumer plaintiff because the APR was 2% higher and plaintiff had to double the down payment.  Defendant backdated the agreement to April 3 instead of using the April 13 date when financing was obtaining and used the April 3 date to begin calculating the accrued interest, which resulted in an APR of 0.4% higher than the disclosed figure.  For miscalculating the interest, the Court awarded plaintiff $13,345.82 in damages and $18,871 in attorneys’ fees for violating the Truth in Lending Act, 15 U.S.C. § 1601 and the VCPA.  See Rucker v. Sheehy Alexandria Inc., 244 F.Supp.2d 618 (E.D. Va., 2003); Rucker v. Sheehy Alexandria, Inc., Civil Action No. 02-466-A (E.D.Va. Mar. 18, 2003) (Order); Rucker v. Sheehy Alexandria, Inc., 255 F.Supp.2d 562 (E.D. Va., 2003).

In Nigh v. Koons Buick Pontiac GMC, Inc., the consumer plaintiff financed a vehicle from defendant dealership.  Plaintiff put $4,000 down, traded-in his old vehicle, and was told the dealership would obtain financing.  The defendant dealership could not obtain financing and restructured the deal to require an additional $2,000 and told plaintiff the financing was at a better rate.  Plaintiff tried to walk away and get his old vehicle back, but the dealer falsely told plaintiff it was already sold.  Dealer still could not obtain financing and told plaintiff to return to the dealership or they would report the vehicle stolen.  Ultimately, dealer obtained financing, but the trade-in vehicle was repossessed because plaintiff was told dealer had taken possession of it and stopped making payment.  Finally, plaintiff learned that one reason dealer could not obtain financing was because the paperwork included an unaccounted for charge, which turned out to be a silencer car alarm, that plaintiff did not recall seeing on the transaction documents, did not request, and did not agree to pay for.  The Court awarded consumer plaintiff $24,192.80 under the Truth in Lending Act, $4,000.00 under the VCPA, and $58,771.24 in attorney’s fees and costs.  See Nigh v. Koons Buick Pontiac GMC, Inc., 319 F. 3d 119 (4th Cir. 2003); Nigh v. Koons Buick Pontiac GMC, Inc., 384 F.Supp.2d 915 (E.D. Va., 2005).

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Steven Krieger and guests (lawyers and non-lawyers) will periodically post about topics relevant to his firm and practice areas. Your comments and feedback are always welcome. 

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