Under the UTPA, a private party may recover damages for “any ascertainable loss of money or property . . . as a result of . . . an unfair or deceptive method, act or practice.”
Additionally, a party may recover attorney fees.62 Actual damage is defined as “the difference in value between that with which the plaintiff parted and that which he received."
However, where a UTPA action is based on a fraudulent misrepresentation to induce the plaintiff to enter into a contract, if the plaintiff elects to affirm the contract rather than rescind, the measure of actual damages is “the difference between the value the plaintiff would have received if the facts had been as represented and the value he actually received.”
If a party alternatively pleads and establishes both fraud and a violation of the UTPA, he or she must elect between the remedies provided by each cause of action.
Finally, a party may not recover damages for claims of both unfair trade practices and unfair competition in the same suit because such awards would constitute double recovery.
Where “the unfair or deceptive method, act or practice was a willful or knowing violation of [the UTPA], the court shall award three times the actual damages sustained. . . .”
Under the UTPA, “willful” does not have the same meaning as in common law. At common law, willful is defined as “a determination to exercise one’s own will in spite of and in defiance of the law.”
Furthermore, “[c]onduct committed with a deliberate intention under such circumstances that a person of ordinary prudence would be conscious of it as an invasion of another’s rights is ‘willful.'”
In contrast, “willful” under the UTPA is found where a party “should have known” that his or her conduct violates the UTPA.
“The standard is not one of actual knowledge, but of constructive knowledge. If, in the exercise of due diligence, persons of ordinary prudence engaging in trade or commerce could have ascertained that their conduct violates the Act, then such conduct is ‘willful’ within the meaning of the statute.
To determine willfulness, a court considers only the actions at the time of the sale.
Thus, parties cannot mitigate the determination of treble damages through good deeds subsequent to their wrongful acts. If a party seeks treble damages, he or she cannot collect punitive damages.
Although § 39-5-140 states “the court” shall award treble damages for willfulness, the section does not specify whether “the court” consists of a determination of willfulness made by the jury or the judge.
The reported cases offer limited guidance on this point due to the procedural posture and scope of appellate review.
Nevertheless, in State ex rel. Medlock v. Nest Egg Soc’y Today, the South Carolina Court of Appeals found that defendant’s conduct was willful within the meaning of the UTPA.
This finding, however, may have been prompted by defendant’s argument that their conduct was not willful as a matter of law.
It is clear, however, that in Haley Nursery Co. v. Forrest, the trial judge ruled there was no willful violation of the UTPA.
Additionally, a party may recover attorney fees.62 Actual damage is defined as “the difference in value between that with which the plaintiff parted and that which he received."
However, where a UTPA action is based on a fraudulent misrepresentation to induce the plaintiff to enter into a contract, if the plaintiff elects to affirm the contract rather than rescind, the measure of actual damages is “the difference between the value the plaintiff would have received if the facts had been as represented and the value he actually received.”
If a party alternatively pleads and establishes both fraud and a violation of the UTPA, he or she must elect between the remedies provided by each cause of action.
Finally, a party may not recover damages for claims of both unfair trade practices and unfair competition in the same suit because such awards would constitute double recovery.
Where “the unfair or deceptive method, act or practice was a willful or knowing violation of [the UTPA], the court shall award three times the actual damages sustained. . . .”
Under the UTPA, “willful” does not have the same meaning as in common law. At common law, willful is defined as “a determination to exercise one’s own will in spite of and in defiance of the law.”
Furthermore, “[c]onduct committed with a deliberate intention under such circumstances that a person of ordinary prudence would be conscious of it as an invasion of another’s rights is ‘willful.'”
In contrast, “willful” under the UTPA is found where a party “should have known” that his or her conduct violates the UTPA.
“The standard is not one of actual knowledge, but of constructive knowledge. If, in the exercise of due diligence, persons of ordinary prudence engaging in trade or commerce could have ascertained that their conduct violates the Act, then such conduct is ‘willful’ within the meaning of the statute.
To determine willfulness, a court considers only the actions at the time of the sale.
Thus, parties cannot mitigate the determination of treble damages through good deeds subsequent to their wrongful acts. If a party seeks treble damages, he or she cannot collect punitive damages.
Although § 39-5-140 states “the court” shall award treble damages for willfulness, the section does not specify whether “the court” consists of a determination of willfulness made by the jury or the judge.
The reported cases offer limited guidance on this point due to the procedural posture and scope of appellate review.
Nevertheless, in State ex rel. Medlock v. Nest Egg Soc’y Today, the South Carolina Court of Appeals found that defendant’s conduct was willful within the meaning of the UTPA.
This finding, however, may have been prompted by defendant’s argument that their conduct was not willful as a matter of law.
It is clear, however, that in Haley Nursery Co. v. Forrest, the trial judge ruled there was no willful violation of the UTPA.
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