Vol. 7, No. 2, Pg. 32. PUBLIC IMPACT: The Stumbling Block To Stating a Private Cause of Action Under the South Carolina Unfair Trade Practices Act.

• Author: By Stephan V Futeral

South Carolina Lawyer

1995.

Vol. 7, No. 2, Pg. 32.

PUBLIC IMPACT: The Stumbling Block To Stating a Private Cause of Action Under the South Carolina Unfair Trade Practices Act

32PUBLIC IMPACT: The Stumbling Block To Stating a Private Cause of Action Under the South Carolina Unfair Trade Practices ActBy Stephan V FuteralSuppose a potential client walks into a lawyer's office and says she took her car to a local dealership for service and suspects the dealership padded her bill. The lawyer examines her bill and, indeed, $1,532.57 seems a bit pricey for an oil change, tune up and tire rotation. The lawyer therefore agrees to take the case.

While drafting the complaint against the dealership, the lawyer recalls that the South Carolina Unfair Trade Practices Act (SCUTPA) provides for treble damages and attorney's fees. The lawyer feels certain that this client's case falls within the Act and therefore includes this cause of action. Later, at trial, the lawyer presents overwhelming evidence that the dealership padded the client's bill. Then, imagine the lawyer's disbelief when the trial judge grants the dealership a directed verdict on the grounds that the lawyer failed to show "public impact."

Lawyers making a claim under the SCUTPA are sure to run into the stumbling block of "public impact." They may find themselves falling flat on their faces at trial or on appeal because they failed to prove the defendant's practices have an adverse impact on the public interest. Proving adverse public impact is not as easy as some cases suggest. As the Fourth Circuit Court of Appeals noted, state courts consistently reject speculative claims of adverse public impact. Omni Outdoor Advertising v. Columbia Outdoor Advertising, 974 F.2d 502 (4th Cir. 1992).

To bring a private cause of action under the SCUTPA, a plaintiff must show a defendant's practices have an adverse impact on the public interest. Noack Enters. v. Country Corner Interiors, 351 S.E.2d 347 (S.C. Ct. App. 1986). For example, suppose a client is a manufacturer and the defendant, a supplier of raw materials, breached its supply contract with the client by refusing to deliver the materials. Standing alone, these facts provide no basis for an action under the SCUTPA because the defendant's unfair practice affects only the parties to the transaction. See Ardis v. Cox, 431...