§ 5.2.1

• Jurisdiction: Arizona

§ 5.2.1 In General

The Consumer Fraud Act (CFA)¹⁴³² is a regulatory act that contemplates enforcement by the Attorney General. The Act defines as unlawful a broad range of deceptive acts and fraudulent practices.¹⁴³³ The Attorney General is authorized to investigate and serve subpoenas when it has reason to believe violations have or are about to occur.¹⁴³⁴ Statutory remedies available to the Attorney General include injunctions, judgments for restitution, appointment of a receiver, and civil penalties.¹⁴³⁵ The CFA does not provide express remedies for private litigants.¹⁴³⁶

Even so, state criminal statutes like the CFA sometimes provide a basis for civil liability.¹⁴³⁷ A principled theory that consistently explains when a criminal statute will lead to civil liability does not exist.¹⁴³⁸ But Arizona courts, like those in most states, have created civil liability from criminal rules on three grounds.¹⁴³⁹ Historically, the most common ground was simply that the plaintiff was entitled to a remedy for a wrong that was defined by criminal legislation.¹⁴⁴⁰ It was this principle of providing a remedy for illegal acts that guided the Arizona courts in creating civil liability for criminal violations of the early, pre-1951 blue-sky statutes.¹⁴⁴¹ Second, civil liability may be statutorily implied on the basis of the court's interpretation of the legislature's intent or purpose.¹⁴⁴² Third, and more common in modern law, courts use criminal statutes or administrative regulations to establish civil liability by adopting a statute or regulation as the basis for a negligence theory of liability.¹⁴⁴³ This may be done under the theory that the violation is (1) negligence per se,¹⁴⁴⁴ (2) evidence of the standard of care,¹⁴⁴⁵ or (3) some evidence of negligence.¹⁴⁴⁶

Under the CFA, both implied-right-of-action and negligence-per-se theories have been invoked to support civil liability. An implied right of action was first recognized in 1974.¹⁴⁴⁷ It is based on A.R.S. § 44-1522(A).¹⁴⁴⁸ A later, 1994 decision, concluded that if an implied private right of action had not been recognized, violations of the statute would have been treated as negligence per se.¹⁴⁴⁹ Because of this, damages that would be available under a negligence-per-se theory should be available for CFA violations.¹⁴⁵⁰

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Notes:

^[1432] A.R.S. §§ 44-1521 to -1534 (2013 & Supp. 2020).

^[1433] See id. § 44-1522(A).

^[1434] See id. §§ 44-1524, 44-1526 (2013).

^[1435] See id. § 44-1528 (2013 & Supp. 2020), § 44-1531 (2013).

^[1436] See Sellinger v. Freeway Mobile Home Sales, Inc., 110 Ariz. 573, 575-76, 521 P.2d 1119, 1121-22 (1974).

^[1437] See generally 1 Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of Torts §§ 146-58 (2d ed. 2011) (discussing tort liability based on criminal statutes); H. Miles Foy, III, Some Reflections on Legislation, Adjudication, and Implied Private Actions in the State and Federal Courts, 71 Cornell L. Rev. 501, 524-48 (1986)...