The Virginia Business Litigation BlogI wish I could help everyone who comes to me with a problem, but I can’t. People get scammed all the time, then want to hire a lawyer to sue the scammer for damages. Is that ever possible? Sure, but most scams these days occur online and are specifically designed to leave the victim without a remedy. Typically, the scammer communicates through technology that conceals his identity, making it impossible to locate his whereabouts to serve him with suit papers. If you are able to trace the scammer, he’s often found in a foreign country outside the jurisdiction of U.S. courts. Money sent to scammers is often wired to overseas accounts in irreversible transactions. In short, most scam victims will never be able to obtain justice, no matter how many high-priced lawyers are retained to seek it. The best way to protect yourself is to not get scammed in the first place. No one is immune from a clever scam but there are lots of tell-tale signs that everyone should know to minimize the likelihood of falling victim to one. So here I present the top ten ways to know when someone is trying to scam you.
Articles Posted in Consumer Protection
Interior Designers’ Unauthorized Markups May Be Grounds for Legal Action
For homeowners, it can be overwhelming to furnish and accessorize a home without the assistance of a professional interior designer. Trying to pick paint colors, wallpaper, flooring, lighting, and furniture without professional assistance is not for the faint of heart. Unfortunately, there are some unscrupulous interior designers out there who prey on well-to-do homeowners having the means of affording their services. Some interior designers will use deception to convince their clients that furnishings and other materials cost more than they really do, knowing that their customers are trusting them to design their home with their best interests in mind and that they will likely pay whatever invoice is presented to them, no questions asked. On occasion, though, a homeowner will question the charges reflected on an interior designer’s invoice. Recent case law establishes that deceptive behavior like marking up the cost of goods can lead to liability for both breach of contract and violation of the Virginia Consumer Protection Act.
Consider the case filed against Robert Shields Interiors by Dr. Tanya M. Johnson. Johnson hired Robert Shields to provide professional interior design, space planning, and decorating services (including purchasing furniture) for her home in McLean, Virginia. Although the contract allowed Shields to charge Johnson 10% extra on shipping and handling charges, the contract did not allow for any other markups. Johnson alleged that Shields breached their agreement in many ways, including: (a) he charged her for some furniture that was never delivered; (b) he sent her some items in the wrong color; and (c) he charged her unauthorized and undisclosed markups on various items. Discovery revealed that Shields was secretly marking up most of the furniture sourced for Johnson by anywhere from 35 to 100 percent. He charged $4800 for a chaise lounge that only cost him $2481. He charged his customer $11,000 for a table that only cost him $5999.40.
VCPA Applies to Consumer Transactions, Not Consumer Goods
The Virginia Consumer Protection Act is a Virginia law designed to protect consumers against fraudulent and deceptive business practices. In situations where it applies, defrauded consumers won’t be limited to suing for fraud; they will be entitled to pursue the additional remedies allowed by the VCPA, such as reimbursement of legal fees and–if the deception was willful–triple damages. The statute’s application, however, is limited to “consumer transactions.” What are those? According to the official statutory definition, “consumer transaction” means:
- The advertisement, sale, lease, license or offering for sale, lease or license, of goods or services to be used primarily for personal, family or household purposes;
- Transactions involving the advertisement, offer or sale to an individual of a business opportunity that requires both his expenditure of money or property and his personal services on a continuing basis and in which he has not been previously engaged;
- Transactions involving the advertisement, offer or sale to an individual of goods or services relating to the individual’s finding or obtaining employment;
- A layaway agreement, whereby part or all of the price of goods is payable in one or more payments subsequent to the making of the layaway agreement and the supplier retains possession of the goods and bears the risk of their loss or damage until the goods are paid in full according to the layaway agreement; and
- Transactions involving the advertisement, sale, lease, or license, or the offering for sale, lease or license, of goods or services to a church or other religious body.
(See Va. Code § 59.1-198). The most common application of the VCPA is under the first part of the definition: “goods or services to be used primarily for personal, family or household purposes.” Does that mean that every contract to make or sell a personal or household item will be subject to the VCPA, regardless of the identity of the parties to the contract? The Virginia Supreme Court hasn’t yet spoken to this issue, but in a recent ruling out of Fairfax Circuit Court, the court said no.
Virginia Consumer Protection Act Not Limited to Fraud
The Virginia Consumer Protection Act (“VCPA”) has long been thought of as a statute that addressed fraud in consumer transactions. But as the Supreme Court of Virginia clarified in a ruling last month, “the VCPA’s proscription of conduct by suppliers in consumer transactions extends considerably beyond fraud.”
A plain reading of the statute shows this to be the case. The VCPA, by its terms, prohibits broadly not just acts of fraud but the use of “any other deception, …false pretense, false promise, or misrepresentation in connection with a consumer transaction.” (See Va. Code § 59.1-200 (14)).
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References to Marketing Brochure Deemed Insufficient to Support Fraud Claim
Although a plaintiff asserting a fraud claim in federal court may allege malice, intent, knowledge, and other conditions of a person’s mind in general terms, he must plead the circumstances constituting the fraud with particularity, identifying the time, place, content, and maker of each alleged fraudulent circumstance. Failure to plead fraud with sufficient particularity will result in dismissal under Federal Rule of Civil Procedure 12(b)(6), as demonstrated by the recent failed case against Capella University.
Melvin Murphy had a Bachelor of Arts degree and was pursuing an M.B.A. when he received online advertisements for Capella University’s doctoral programs in business management. Capella’s “enrollment counselors” responded aggressively to Murphy’s initial inquiries with calls, emails and marketing materials. Murphy contends that Capella’s promotional materials contained misstatements and misrepresentations upon which he relied when he enrolled in the school’s Ph.D. program in Organization and Management with a specialization in Leadership. For example, one brochure featured testimonials from supposed Capella doctoral students accompanied by photographs and quotes. Murphy asserts that at least one person pictured and quoted was not a graduate of Capella, was not a current student in the Ph.D. program and did not give permission for Capella to use his image. According to Murphy, the promotional materials were false and misleading as Capella did not award doctoral degrees in the field of Organization and Management and had no plans to do so. Capella agents allegedly reemphasized these misrepresentations when speaking with Murphy.
Murphy complains that Capella also failed to tell him that a doctoral candidate in any subject must pass Comprehensive Exams in order to be eligible for a Ph.D. and that most candidates fail these exams. According to Murphy, only 10% of Capella’s degree candidates obtained their desired degree. He asserts that these material omissions happened despite frequent contact with “representatives of Capella, including the Capella ‘enrollment counselors.'”
Facebook Sued for Showing Us What Kids “Like”
Is Facebook violating New York privacy laws when it permits children to press the “like” button on the site to endorse advertisements without first receiving approval from their parents? That’s the question posed by a lawsuit filed on May 3, 2011, in federal court in Brooklyn, N.Y., by the father of a teenager there who is a member of the hugely popular social networking site. The case was brought as a class action on behalf of “all minors in New York whose names or likenesses were used by Facebook, Inc., for commercial purposes without the consent of the parents or guardians of said minors.” Anyone over the age of 12 can sign up for a Facebook account.
When any Facebook user, including a teenager, “likes” an advertisement, that preference appears on the Facebook page for that ad, the lawsuit says. This in turn is considered a “click” on that ad and generates revenue for Facebook, since it receives revenue from advertisers based on the number of users that “like” the advertisement. Facebook’s privacy settings don’t permit any users to prevent their names and pictures from appearing on advertising pages that they have “liked.” They can at any time withdraw their “like,” but as long as it is in effect, it will be considered a “click” and thus a “commercial use,” according to the complaint.
In order to sign up for Facebook, users, including those under age, agree to the following statement: “You can use your privacy settings to limit how your name and profile picture may be associated with commercial, sponsored or related content (such as a 
brand you like) served or enhanced by us. You give us permission to use your name and profile picture in connection with that content, subject to the limits you place.” According to the complaint, however, “at no time does Facebook seek or obtain the consent of any parent or guardian of its minor users to use or sell the name and likeness of the child for commercial use by Facebook or third-party advertisers.”
Virginia Consumer Protection Act Enforced Against Roofer
Lawyers representing Ryerson, Inc., a metal roofing company, were called upon recently to defend the company against the claims of two homeowners who alleged that Ryerson failed to honor the warranty on its roofing system and that such failure violated the Virginia Consumer Protection Act (“VCPA”). The lawyers argued that Ryerson could not be liable under the VCPA because all statements made in its warranty were statements of opinion rather than factual misrepresentations. The Eastern District of Virginia disagreed.
The VCPA was enacted to promote fair and ethical standards of dealings between suppliers and the consuming public. (See Va. Code § 59.1-197). It contains provisions that make it unlawful for a supplier to misrepresent that goods and services are of “a particular standard, quality, grade, style, or model,” and prohibits suppliers from using “any other deception, fraud, false pretense, false promise, or misrepresentation in connection with a consumer transaction.” (See Va. Code § 59.1-200(A)(6), (14)).
In Gottlieb v. Ryerson, the Gottliebs (according to the Complaint) hired a contractor to install a Ryerson steel roof on their gazebo and house. The roof came with a 20-year warranty, which assured the Gottliebs that the warranty was “low-risk, 
no-nonsense, [and] ironclad.” The warranty materials also stated that Ryerson would honor the warranty “at any time and as often as needed within the 20-year period” from the installation date, and that the warranty entitled the homeowners to “complete repair or replacements of any covered problem–freight and labor included.”