Consumer protection and deceptive trade practices

• Author: Evan Schaeffer
• Pages: 437-478

CONSUMER

PROTECTION

8-1

CHAPTER 8

CONSUMER PROTECTION AND

DECEPTIVE TRADE PRACTICES

I. ELEMENTS OF PLAINTIFF’S CAUSE OF ACTION

A. Theories of Recovery

§8:01 An Overview of UDAP Statutes

§8:02 Other Sources of Consumer Protection Law

§8:03 Practice Tip: Does the Client’s Problem Involve Consumer Fraud?

§8:04 Statutes of Limitations Under UDAP Statutes

§8:05 Damages Under UDAP Statutes

§8:06 Practice Tip: Preconditions to Filing Suit

B. Consumer Class Actions

§8:20 The Class Action as a Procedural Device for Amassing Similar Claims

§8:21 The Class Action Fairness Act

§8:22 Practice Tip: What Makes a Suitable Class Action?

C. Typical Defenses in Consumer Protection Cases

§8:30 Defenses in General

§8:31 The Defense of Class Actions

II. THE DISCOVERY PLAN

A. Sequence and Timing

§8:40 The Written Discovery

§8:41 Requests for Admissions

§8:42 Depositions of Corporate Representatives

§8:43 Other Depositions

§8:44 Opinions of Defendant’s Experts

§8:45 Practice Tip: Going for the Knock-Out

B. Documents and Exhibits

§8:50 Documents Pertaining to Your Client

§8:51 Liability Documents

§8:52 Damage Documents

§8:53 Practice Tip: Electronic Discovery

C. Typical Deponents

§8:60 Typical Deponents: Overview

§8:61 The Plaintiff’s Liability Witnesses

§8:62 The Plaintiff’s Damage Witnesses

§8:63 Practice Tip: Identifying the Witnesses You’ll Depose During Discovery

§8:64 The Defendant’s Experts

§8:65 Depositions the Defendant Will Take

§8:66 Practice Tip: Class Actions, Proving Numerosity

CONSUMER

PROTECTION

Deposition Checklists and Strategies 8-2

III. SAMPLE DEPOSITION: CORPORATE DESIGNEE IN A CONSUMERFRAUD CASE

A. Noticing the Deposition

§8:80 Deposition Overview

§8:81 Authority for a Corporate-Designee Deposition

§8:82 Defendant’s Duties in Selecting a Corporate Designee

§8:83 Timing

§8:84 Practice Tip: The Defendant Who Tries to Shirk Its Responsibilities

B. Goals, Strategies, and Preparation

§8:90 Deposition Preparation

§8:91 Deposition Goals

§8:92 Deposition Exhibits

§8:93 Practice Tip: If You Plan to Use a Video Deposition at Trial, Keep It Short

C. The Deposition Outline

1. Background Facts and Thumbnail Outline

§8:100 Background Facts

§8:101 Thumbnail Outline/Deposition Checklist

2. Preliminary Questions

§8:110 Standard Introductory Questions

§8:111 The Witness’s Background, Including His Background With the Defendant

3. The Notice and the Witness’s Preparations

§8:120 The Deposition Notice and Areas of the Witness’s Knowledge

§8:121 The Witness’s Preparation for the Deposition

§8:122 Practice Tip: The “If You Know” Objection

4. Specif‌ic Topics

§8:130 Topic 5: The Policies, Practices, and Procedures for Obtaining Customers for Travel Packages

§8:131 Practice Tip: You Aren’t Necessarily Limited to the Topics in Your Notice

§8:132 Topic 6: The Manner in Which the Named Plaintiffs Were Obtained as Customers

§8:133 Topic 7: Policies, Practices, and Procedures for Writing and Producing Direct Mail

Promotional Materials

§8:134 Topic 8: Policies, Practices, and Procedures for Promoting Timeshare Properties to

Potential Customers

§8:135 Topic 9: Policies, Practices, and Procedures for Verifying the Accuracy of Each Claim

Made to Consumers

§8:135.1 Practice Tip: Courtesies for the Court Reporter

§8:136 Topic 10: The Number of Persons Who, for Each Year Since 1997, Have Purchased

Vacation Packages Offered or Sold as Part of Travel Promotions

§8:137 Topic 11: Policies, Practices, and Procedures for Training Telemarketing Employees

§8:138 Practice Tip: Admissions Contained in Documents

5. Closing

§8:150 Concluding Questions

IV. SAMPLE DEPOSITION: HOSPITAL EXECUTIVE IN A FRAUDULENT BILLING AND LIEN CASE

A. Planning

§8:160 Deposition Over view

§8:161 Timing

B. Goals, Strategies, and Preparation

§8:170 Deposition Goals

§8:171 Deposition Strategy

§8:171.1 Practice Tip: Asserting Control by Repeating a Question

§8:172 Deposition Preparation

§8:173 Deposition Exhibits

C. The Deposition Outline

1. Background Facts and Thumbnail Outline

§8:180 Background Facts

§8:181 Thumbnail Outline/Deposition Checklist

CONSUMER

PROTECTION

8-3 Consumer Protection and Deceptive Trade Practices

2. Preliminary Questions

§8:190 Standard Introductory Questions

§8:191 The Witness’s Background

§8:192 The Witness’s Job Duties

3. Other Background Questions

§8:200 The Witness’s Preparation for the Deposition

§8:201 Past Dealings With the Plaintiff

§8:202 Practice Tip: Learn the Defendant’s Story

4. Case-Specif‌ic Questions

§8:210 Facts Specif‌ic to the Named Plaintiff

§8:211 Hospital Policy With Respect to Liens and Personal Injury Settlements

§8:212 The Legal Authority for the Hospital’s Policy

§8:212.1 Practice Tip: Witnesses Who Question Meanings of Words

§8:213 The Contractual Authority for the Hospital’s Policy

§8:214 Other Legal Authority for the Hospital Policy

§8:215 Informing Patients of the Hospital Policy

§8:216 Policy for Identifying Patients With PI Claims

§8:217 The Hospital’s Collection Practices

§8:218 Numerosity Questions

5. Other Statements or Conversations

§8:230 Conversations About the Incident or Lawsuit

§8:231 Practice Tip: Place Events in a Time Frame

6. Closing

§8:240 Concluding Questions

V. OTHER SAMPLE DEPOSITIONS: THUMBNAIL OUTLINES

§8:250 Training Supervisor in Case Alleging Fraud by a Travel Company

§8:251 Director of Finance in a Consumer-Fraud Case Against a Phone Company

VI. FORMS (LOCATED ON DIGITAL ACCESS)

Form 8:01 Deposition Notice for a Corporate -Representative in a Consumer-Fraud Case

(With Reference to Illinois Rules)

Form 8:02 Interrogatories in a Deceptive Trade Practices Case Involving Telephone Services

(With Reference to Illinois Rules)

Form 8:03 Requests for Production in a Deceptive Trade Practices Case Involving Telephone

Services (With Reference to Illinois Rules)

Form 8:04 Interrogatories in a Deceptive Trade Practices Case Involving Fraudulent Mortgage Loan

Servicing (With Reference to Missouri Rules)

Form 8:05 Requests for Production in a Deceptive Trade Practices Case Involving Fraudulent Mortgage

Loan Servicing (With Reference to Missouri Rules)

Form 8:06 Letter to Opposing Counsel Concerning Unanswered Discovery (With Reference to Illinois Rules)

Form 8:07 Requests for Admission in a Deceptive Trade Practices Case Involving Telephone Services

(With Reference to Illinois Rules)

Form 8:08 Interrogatory Concerning Requests for Admissions in a Deceptive Trade Practices Case

Involving Telephone Services (With Reference to Illinois Rules)

Form 8:09 Class Action Complaint in a Consumer Fraud Case (With Reference to Illinois Law)

Form 8:10 Class Action Complaint in a Consumer Fraud Case (With Reference to Illinois Law, Pre-CAFA)

Form 8:11 Motion to Remand

Form 8:12 Memorandum in Support of Motion to Remand

Form 8:13 Class Action Notice

Form 8:14 Class Action Notice of Set tlement

Form 8:15 Joint Motion for Preliminary Approval of Class Action Settlement

Form 8:16 Preliminary Approval Order

Form 8:17 Final Approval Order

Form 8:18 Memorandum in Support of Motion for Class Cer tif‌ication (Illinois Law)