DTPA & natural disasters

17.46(b)(27) bars price gouging in the wage of a natural disaster.

(27) taking advantage of a disaster declared by the governor under Chapter 418, Government Code, by:
(A) selling or leasing fuel, food, medicine, or another necessity at an exorbitant or excessive price; or
(B) demanding an exorbitant or excessive price in connection with the sale or lease of fuel, food, medicine, or another necessity.


The Texas Attorney General issued a press release, warning businesses against price-gouging in the aftemath of hurricane Katrina.

Reading for 9/10

For the class that meets on 9/10 we will start with Big H Auto Auction at page 44.

No class 9/3

As discussed, class will NOT meet on 9/3. Enjoy your holiday.

Cases for 8/27

I understand that the bookstore ran out of textbooks, and that a few of you may be without a book. Here are the cases that we will cover for this Saturday. If you don't have a textbook, focus on the DTPA aspects of the decision, without worrying too much about non-DTPA issues also raised.

Exxon v. Dunn, 581 SW2d 500
Hennessey v. Skinner, 698 SW2d 382
Riverside Nat'l Bank v. Lewis, 603 SW2d 169
Farmers & Merchants State Bank v. Ferguson, 605 SW2d 320
Flenniken v. Longview Bank & Trust, 661 SW2d 705
Walker v. Federal Deposit Insurance Corp., 970 F2d 114
Big H Auto Auction v. Saenz Motors, 665 SW2d 756
Eckman V. Centennial Savings, 784 SW2d 672
Cameron v. Terrell & Garrett, 618 SW2d 535
Amstadt v United States Brass, 919 SW2d 644

We are very unlikely to get beyond Amstadt v. US Brass this time.

Some DTPA Reference Materials

The STCL library holds a number of titles that deal with the DTPA . For example:

Dorsaneo, William. Texas Litigation Guide. Chapter 220 covers the DTPA, including forms, analysis, and drafting tips.

Bragg, David F. & Michael Curry. DTPA Forms and Practice Guide (2002)
This treatise contains explanatory material and sample forms. This loose-leaf set is updated periodically. There is also a companion annual Desk Book.

Texas consumer litigation / David F. Bragg, Philip K. Maxwell, Joe K. Longley ; edited by Michael Curry. This older work ceased publication about 10 years ago, but was well regarded in its day. Now seriously outdated.

DTPA online

The DTPA is in chapter 17 of the Texas Business & Commerce Code, which you can download in Word or PDF format.

Reading for 8/27

On 8/27 we will start with Exxon Corp. v. Dunn at page 30. You should always stay 60 pages ahead in the reading.

Notice that Exxon Corp. Dunn predates Kennedy v. Sale.

DTPA is on the bar exam

The DTPA is covered on the Texas bar exam. Here are comments from the Bar examiners on typical defects in bar exam answers. The comments raised by the Bar Examiner are all points that we will cover in class.

Consumer Law

Question 6 - Common deficiencies in a substantial number of answers included the following:

Many examinees did not recognize a limitations issue or else seemed unfamiliar with the applicable statute of limitations.

Many examinees did not mention causation, its significance or the “producing cause” standard. Of those who did, many did not explain its application. Examinees consistently failed to address whether the defendants’ conduct must be the “sole” producing cause of damages, or merely “a” producing cause that in the natural sequence of circumstances contributed to or caused plaintiff’s damages. Only a few seemed to know the difference between proximate cause and producing cause or the significance this difference has for consumers under the DTPA.

Most examinees did not appear to understand that consumers are not required to prove privity of contract to bring a DTPA claim. Of those who mentioned privity, a substantial number concluded that it did not exist between the seller and buyer thus precluding recovery.

Many examinees did not mention the type or scope of damages recoverable under the DTPA. They also did not seem to recognize the significance of knowing and/or intentional conduct and its effect on damages.

Many examinees did not fully explain actionable conduct under the DTPA. Most examinees reiterated the facts and then stated generally that such conduct was prohibited under the DTPA. This did not explain the types of actionable conduct in the statute or relate them to the facts of the question. Few examinees distinguished DTPA claims from contract claims, explained the general significance of false or misleading statements, or addressed warranty issues and unconscionable conduct.