A. Definition

• Library: Elements of Civil Causes of Action (SCBar) (2021 Ed.)

A. Definition

The South Carolina Unfair Trade Practices Act (SCUTPA)¹ provides that:

Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.²
Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by another person of an unfair or deceptive method, act or practice declared unlawful [by the Act] may bring an action individually, but not in a representative capacity,³ to recover actual damages.⁴

The Act establishes new substantive rights, making unlawful conduct which was not actionable under common law⁵ by creating "a private right of action for persons damaged by acts or practices declared unlawful by § 39-5-20."⁶ It is limited unfair acts occurring in the conduct of any "trade or commerce"⁷ and to those unfair or deceptive acts or practices that affect the public interest. Thus, "an unfair or deceptive act or practice that affects only the parties to a trade or a commercial transaction is beyond the act's embrace... The act is not available to redress a private wrong when the public interest is unaffected."⁸ The South Carolina Unfair Trade Practices Act (SCUTPA) is not limited to instances of consumer protection or antitrust activity.⁹ The South Carolina Unfair Trade Practices Act (SCUTPA) claims may not be maintained in a class action law suit.¹⁰

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Notes:

^[1] S.C. Code §§ 39-5-10 et seq.

^[2] S.C. Code § 39-5-20(a). The provision of any service, including professional services, constitutes commerce with the meaning of the Act. Taylor v. Medecina, 324 S.C. 200, 479 S.E.2d 35 (1996).

^[3]See Wogan v. Kunze, 366 S.C. 583, 623 S.E.2d 107 (Ct. App. 2005) (unfair trade practices claim may not be brought in representative capacity; wife could bring action as personal representative of husband's estate for losses incurred by him).

^[4] S.C. Code § 39-5-140(a). "Person" includes natural persons, corporations, trusts, partnerships, incorporated or unincorporated associations and any other legal entity. S.C. Code § 39-5-10(a). A local government is a legal entity for purposes of SCUTPA. City of Charleston v. Hotels.com, LP, 487 F. Supp. 2d 676 (D.S.C. 2007). It must, however, have the prior approval of the Attorney General to bring suit. S.C. Code § 39-5-130. The proscription on bringing an action "in a representative capacity" has been held to prohibit a representative of an estate from instituting suit...