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What are the elements of the South Carolina Unfair Business and Trade Practices Act?
To prevail in a claim for violation of the South Carolina Unfair Trade Practices Act (SCUTPA), a claimant must establish 1) the opposing party engaged in an unlawful trade practice, 2) the claimant suffered actual, ascertainable damages as a result of the opposing party’s use of the unlawful trade practice and 3) the unlawful trade practice had an adverse impact on the public interest.
Unfair Trade Practices in South Carolina
The South Carolina Unfair Trade Practices Act (UTPA) declares “unfair or deceptive acts or practices in the conduct of any trade or commerce … unlawful.” S.C. Code Ann. § 39-5-20(a) (1976 & Supp. 2005); Wright v. Craft, 372 S.C. 1, 30 (Ct. App. 2006). To recover in an action under the UTPA, the plaintiff must show: (1) the defendant engaged in an unfair or deceptive act in the conduct of trade or commerce; (2) the unfair or deceptive act affected public interest; and (3) the plaintiff suffered monetary or property loss as a result of the defendant’s unfair or deceptive act(s). S.C.Code Ann. §§ 39-5-10 to -560.
South Carolina case law instructs that a deceptive act is any act which has a tendency to deceive. deBondt v. Carlton Motorcars, Inc., 342 S.C. 254, 269 (Ct. App. 2000). “Even a truthful statement may be deceptive if it has a capacity or tendency to deceive.” Wogan v. Kunze, 366 S.C. 583, 606 (Ct. App. 2005). Whether an act or practice is unfair or deceptive within the meaning of the UTPA depends on the surrounding facts and the impact of the transaction on the marketplace. deBondt, 342 S.C. at 269, 536 S.E.2d at 407. “An act is ‘unfair’ when it is offensive to public policy or when it is immoral, unethical, or oppressive.” Bessinger v. BI-LO, Inc., 366 S.C. 426, 432, 622 S.E.2d 564, 567 (Ct.App.2005) (citing Gentry v. Yonce, 337 S.C. 1, 12, 522 S.E.2d 137, 143 (1999)).
“Since 1986, South Carolina courts have required that a plaintiff bringing a private cause of action under UTPA allege and prove the defendant’s actions adversely affected the public interest.” Daisy Outdoor Adver. Co. v. Abbott, 322 S.C. 489, 493, 473 S.E.2d 47, 49 (1996). “An impact on the public interest may be shown if the acts or practices have the potential for repetition.” Singleton v. Stokes Motors, Inc., 358 S.C. 369, 379, 595 S.E.2d 461, 466 (2004). The potential for repetition may be demonstrated in either of two ways: (1) by showing the same kind of actions occurred in the past, thus making it likely they will continue to occur absent deterrence; or (2) by showing the company’s procedures create a potential for repetition of the unfair and deceptive acts. Singleton, 358 S.C. at 379, 595 S.E.2d at 466.
- Affirmative Recovery Program
- Antitrust litigation
- Bad faith insurance
- Bid rigging
- Civil conspiracy
- Class actions
- Class action opt-out litigation
- Eminent domain
- Fraud
- No poach
- Negligent Misrepresentation
- Price Fixing
- Telephone consumer protection act
- Whistleblower / Qui Tam
- Unfair business and trade practices
What constitutes “actual damages?”
Actual damages need to be more than speculative damages, but rather, they are damages you can actual pinpoint a dollar value lost for. Moreover, even though the SCUTPA allows for the recovery of attorney’s fees, simply pleading that the attorney’s fees are the damages you incurred as special damages does not pass muster. Instead, litigants must show more than just claimed attorney’s fees for bringing the SCUTPA action and must show actual damages as a result of defendant’s unfair or deceptive practices. See SIB Dev. & Consulting, Inc. v. Save Mart Supermarkets, 271 F. Supp. 3d 832 (D.S.C. 2017)
What is the statute of limitations for the South Carolina Unfair Business and Trade Practices Act?
Three years.
