§ 6.2

• Jurisdiction: Arizona

§ 6.2 Consumer Fraud

Liability for consumer fraud is an implied cause of action. Consequently, no statute creating secondary or extended-primary liability for consumer fraud exists. But given the protective, remedial view that animates decisions under the Consumer Fraud Act (CFA),¹⁹⁶⁸ extended and secondary theories of civil liability applied in cases of common-law fraud¹⁹⁶⁹ may apply. Hence, respondeat superior, participant liability, concerted action, aiding and abetting, and conspiracy are arguably proper theories of secondary liability in a consumer-fraud action.¹⁹⁷⁰ That said, the 2013 decision in Sell v. Gama¹⁹⁷¹ casts doubt on aiding and abetting, conspiracy, and concerted action. Sell held that a separate claim for aiding-and-abetting liability does not exist under the Arizona Securities Act.¹⁹⁷² And a 2016 district-court decision concluded that after Sell, "it appears unlikely Arizona courts would permit an aiding and abetting claim under [the CFA] to go forward."¹⁹⁷³

On the other hand, a pre-Sell decision by the Court of Appeals embraced extended liability through participatory conduct by interpreting the CFA to cover not only officers and directors who personally perpetrate a prohibited act but also those who participate in the fraud. In State ex rel. Corbin v. United Energy Corp. of America,¹⁹⁷⁴ the State brought an action for consumer fraud against a corporation and two of its officers. The officers contended that they could not be liable for...