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Tennessee Consumer Protection Act – The “catch all” provision (T.C.A. § 47-18-107(b)(27)) found in the Tennessee Consumer Protection Act has been eliminated

Posted on Sep 4 2012 8:30AM by Attorney, Jason A. Lee

The Tennessee tort reform bill of 2011 eliminated the “catch all” provision previously found in the Tennessee Consumer Protection Act (The Tennessee Consumer Protection Act is found in T.C.A. § 47-18-101 – T.C.A. § 47-18-130).  This change went into effect with the adoption of Public Chapter No. 510 (the Tennessee tort reform bill) and applies to all actions that accrue on or after October 1, 2011. 

 

The key operative portion of the Tennessee Consumer Protection Act is T.C.A. § 47-18-104(b) which provides a long detailed listing of "unfair or deceptive acts or practices" that are forbidden under Tennessee law.  Currently there are a total of forty-seven acts or practices that are listed and each of these is considered to be a Class B misdemeanor.  T.C.A. § 47-18-109(a)(1) creates a private cause of action for any person who suffers a loss as a result of one of the listed “unfair or deceptive acts or practices” found in T.C.A. § 47-18-104(b).  T.C.A. § 47-18-109(a)(1) provides as follows:

 

(a)(1) Any person who suffers an ascertainable loss of money or property, real, personal, or mixed, or any other article, commodity, or thing of value wherever situated, as a result of the use or employment by another person of an unfair or deceptive act or practice described in § 47-18-104(b) and declared to be unlawful by this part, may bring an action individually to recover actual damages.

 

(emphasis added).  Prior to the Tennessee tort reform bill of 2011, the Tennessee Consumer Protection Act had a “catch all” provision that provided a private cause of action for “engaging in any other act or practice which is deceptive to the consumer or to any other person.” (See T.C.A. § 47-18-107(b)(27)).  This “catch all” provided for a significant expansion of the Tennessee Consumer Protection Act beyond the specifically listed “unfair or deceptive acts or practices”.  This “catch all” provided the Court with great discretion to find violations of the Tennessee Consumer Protection Act even if the unfair or deceptive act was not explicitly listed in the statute.

 

The amendment to the statute found in Public Chapter No. 510 added the following language to the end of T.C.A. § 47-18-107(b)(27): “provided, however, that enforcement of this subdivision (b)(27) is vested exclusively in the office of the attorney general and reporter and the director of the division.” (emphasis added).  As a result, the ability to bring a private cause of action under the “catch all” provision found in this Act has been removed.  Only the Attorney General can enforce the “catch all” provision after this amendment.  This is important because this “catch all” was often used by plaintiffs to try to increase the potential damages and to allow for an award of attorney’s fees.  The Tennessee Consumer Protection Act can now only be used under this section if there is a specifically enumerated "unfair or deceptive act or practice" that is violated.

 

Follow me on Twitter at @jasonalee for updates from the Tennessee Defense Litigation site.


TAGS: Tennessee Tort Reform, Tennessee Consumer Protection Act, Attorney Fees
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Jason A. Lee is a Member of Burrow Lee, PLLC. He practices in all areas of defense litigation inside and outside of Tennessee.

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Tennessee Defense Litigation Blog
Jason A. Lee, Member of Burrow Lee, PLLC
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E-mail: jlee@burrowlee.com

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