Consumer Protection and Deceptive Trade Practices

AuthorT. Evan Schaeffer
Pages505-572
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
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
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
DISCOVERY COLLECTION 8-2
B. Goals, Strategies, and Preparation
§8:90 Deposition Preparation
§8:91 Deposition Goals
§8:92 Deposition Exhibits
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
5. Closing
§8:150 Concluding Questions
IV. SAMPLE DEPOSITION: HOSPITAL EXECUTIVE IN A FRAUDULENT BILLING AND LIEN CASE
A. Planning
§8:160 Deposition Overview
§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
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
8-3 CONSUMER PROTECTION AND DECEPTIVE TRADE PRACTICES
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
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)
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 Settlement
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 Certification (Illinois Law)
Form 8:19 Motion for Preliminary Approval of Class Action Settlement in a Fraudulent Billing Case
Form 8:20 Class Action for Preliminary Approval Order in a Fraudulent Billing Case
Form 8:21 Memorandum in Support of Motion for Class Notice (Illinois Law)
Form 8:22 Memorandum in Support of Motion for Class Notice (Illinois Law)
Form 8:23 Notice of Proposed Class Action Settlement in a Fraudulent Billing Case
Form 8:24 Final Settlement Order and Judgment in a Class Action

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