FAILURE TO DELIVER
State ex rel Cordray v. Discount Global Travel, Inc., Cuyahoga Cty. Case No., PIF 2803
The Defendants committed unfair and deceptive acts in violation of the CSPA by: 1) making false representations and claims in advertising and causing consumers to believe such representations are true, 2) accepting deposits from consumers in connection with the sale of discount travel service memberships without giving consumers dated receipts in compliance with OAC 109:4-3-07(B), 3) accepting substantial down payments from consumers in connection with the sale of discount travel service memberships and then failing to provide the services for which consumers paid or to return the down payments in violation of OAC 109:4-3-09(A)(1), 4) promising "free" weekend cruises or condo getaways in exchange for attending a sales presentation and failing to set forth clearly and conspicuously at the outset of the offer all terms, conditions, and obligations upon which receipt and retention of the "free" goods or services were contingent in violation of OAC 109:4-3-04, 5) selling discount travel service memberships and then failing to provide the services for which consumers paid, 6) representing to consumers that a price advantage existed in connection with the discount travel service membership when such was not the case, 7) failing to honor express or implied warranties, 8) failing to register their business with the Ohio Secretary of State's Office. Defendants committed unconscionable acts in violation of the CSPA by selling discount travel service memberships on the eve of closing its business in Ohio, with no intention of ever providing the services for which consumers paid. Defendants ordered to pay $40,738 in consumer restitution, $75,000 in civil penalties, and $5,600 in investigative costs
FAIR DEBT COLLECTION PRACTICES ACT
Midland Funding LLC v. Brent, ND Ohio Case No. 08-CV-1434, PIF 2800
Plaintiff filed suit to collect a credit card debt owed by Defendant. In support of its Complaint, Defendant supplied an affidavit from one of its employees regarding the validity of the debt and Plaintiff's right to collect it. In ruling on the parties' motions for summary judgment, the Court found that the affidavit was false, as it was allegedly based upon personal knowledge and the person who signed the affidavit testified at his deposition that he had no personal knowledge of the consumer, the debt, any payments that had been made on the debt, the law firm that had requested the affidavit, the use for which the affidavit had been requested, or the company on whose behalf he signed the affidavit, and that it had not been signed in the presence of the notary. The Court found that the affidavit's false statements were material, and that the Plaintiff had no process in place that was reasonably designed to avoid the use of a false affidavit; therefore, use of the false affidavit was a violation of the Fair Debt Collection Practices Act and the CSPA. Plaintiffs enjoined from using any affidavit with a material falsehood as a means of collecting a debt. Upon Plaintiffs' motion for reconsideration, the Court modified its decision on Sept. 23, 2009 to enjoin the Plaintiffs from using form affidavits that falsely claim to be based on the affiant's personal knowledge.
HOME IMPROVEMENT
State ex rel Cordray v. Concrete Crew, Franklin Cty. Case No. 08 CVH-02-1788, PIF 2805
Defendants committed unfair and deceptive acts and practices in violation of the CSPA by: 1) making false and misleading statements regarding membership in the Better Business Bureau, the quality of their services, and their ability to complete the transactions; 2) failing to perform home improvement services in a competent, workmanlike manner, and then failing or refusing to correct the substandard work; 3) failing to honor express and/or implied warranties; and 4) accepting money from consumers for goods and services and failing to make full delivery or a refund in violation of 109:4-3-09. Defendants committed unconscionable acts and practices in violation of the CSPA by routinely failing to deliver the services for which consumers contracted and paid, performing unworkmanlike services, failing to honor promised warranties, and expressly exempting themselves from any implied warranties under their contracts. Defendants violated the Magnuson-Moss Warranty Act by failing to remedy products within a reasonable time and without charge in the case of a defect, malfunction, or failure to conform with a written warranty in violation of 16 CFR 701.3. Defendants ordered to pay $6,561.25 in consumer restitution, $125,000 in civil penalties (suspended), and $1,000 in costs.
MOTOR VEHICLES
Weatherby v. Gumpp, Stark Cty. Case No. 2008CV02989, PIF 2796
Defendant solicited consumers for the sale of motor vehicles through the Internet. Plaintiff purchased a vehicle from Defendant. Defendant committed unfair and deceptive acts or practices in violation of the CSPA by: 1) fraudulently misrepresenting the standard or quality of the vehicle, 2) knowingly making a misleading statement of opinion regarding the vehicle upon which the Plaintiff was likely to rely to his detriment, 3) failing to provide the service history of the vehicle as promised, 4) failing to integrate into the written sales agreement all material representations and, 5) offering for sale more than five motor vehicles in the twelve months preceding the transaction without being a licensed dealer pursuant to Ohio's motor vehicle laws. Defendant to pay restitution and attorneys fees totaling $30,000.
White v. Town Center Auto Sales, Portage Cty. Case No. 2008 CV 1103, PIF 2802
Plaintiff purchased a used vehicle from Defendants and was assured at the time of purchase that the vehicle had been inspected by the dealership's mechanics, that any necessary repairs or replacements had been made, and that the vehicle came with a 30-day bumper-to-bumper warranty. The day Plaintiff took possession of the vehicle, the check engine light came on. Plaintiff called the dealership and was told to bring the vehicle back in for repairs. This happened several more times between February 8, 2008 and February 27, 2008; Defendants failed to repair the vehicle, evaded Plaintiff's phone calls, and refused or were unable to repair the vehicle. On February 27, 2008, Plaintiff returned the vehicle and asked for her down payment back. Defendants failed to return her down payment. In granting default judgment to Plaintiff, the Court found that Defendants had violated the CSPA by: 1) failing to perform the required repairs or performing the repairs in an unworkmanlike manner, 2) failing to honor the warranty, 3) stalling and evading their obligation to repair the vehicle, 4) making representations that had no basis in fact, and 5) making material misrepresentations regarding the condition of the vehicle and their ability to repair it. Plaintiff awarded treble damages in the amount of $58,175.80, punitive damages in the amount of $10,000, and attorney fees in the amount of $7,509.67. Defendants are enjoined from transferring titles to vehicles in their names, transferring assets from the dealership, selling the dealership, changing the name of the dealership, and transferring any assets out of their names or out of any bank account. The punitive damages and injunction relief are suspended conditioned on Defendants' making arrangements with Plaintiff to satisfy the judgment.
In re David Eric Williams, LLC, AVC No. 374093, PIF 2804
Supplier agrees to advertise only a discount or rebate deduction from an advertised vehicle price that all consumers qualify for, provided that such advertisement clearly discloses the deduction of such discount or rebate. Supplier to pay $15,000 ($12,000 suspended) to the Consumer Protection Enforcement Fund.
Keel v. Toledo Harley-Davidson/Buell (Lucas Cty.), 2009-Ohio-5190, PIF 2806
Plaintiff purchased a used motorcycle from Defendant and brought it back numerous times to the dealership because of a ticking noise in the engine. After the fourth time Plaintiff had the motorcycle in for repairs and was told the problem was resolved, he took it to another dealership who told him the engine had a major defect which would cost approximately $2,000 to repair. The Court of Appeals found that the trial court had correctly determined that Ohio's Lemon Law did not apply in this case as the dealer was not a manufacturer. The Court also found that, as the contract contained a merger clause which superseded any previous agreements of the parties, the "as is" disclaimer on the contract waived all other express or implied warranties. However, the Court found that the trial court erred when it granted summary judgment to the Defendant on Plaintiff's CSPA claims. The Court found that there was a genuine issue of material fact as to whether the dealership made representations, beyond mere puffery, that the motorcycle was reliable, dependable, and had no defects.
Shumaker v. Hamilton Chevrolet, Inc. (Lawrence Cty.), 2009-Ohio 5263, PIF 2807
The Court found that Defendant's failure to place its name and address on the back of the buyer's guide, while a violation of the FTC's Used Motor Vehicle Rule, was not a violation of the CSPA. The Court found that the omission, without more, was not likely to induce a state of mind in consumers that was not in accord with the facts. The dealer's name appeared on the front of the buyer's guide, the Plaintiff testified that he knew the name and address of the dealership without looking at the buyer's guide, and the Plaintiff testified that he was not deceived by the omission. The Court found that the failure to integrate a description of the exterior paint damage into the written contract did not violate the CSPA under 109:4-3-16(B)(22).
State ex rel Cordray v. NAL Group, Inc., Franklin Cty. Case No. 08 CVH 8316, PIF 2809
Defendants committed unfair and deceptive acts and practices in violation of the CSPA by: 1) accepting retail purchasers' current motor vehicles as trade-ins or agreeing to facilitate the sale of consumers' motor vehicles and then failing to pay off pre-existing liens and/or leases; 2) selling used motor vehicles with pre-existing liens and/or leases to retail purchasers so that the retail purchasers paid money for motor vehicles which were not titled in Defendants' names at the time of purchase, and for which Defendants knew they would be unable to obtain title; 3) making offers of the sale of goods when such offers were not bona fide efforts to sell such goods or services in violation of OAC 109:4-3-03; 4) using statements, layouts, or illustrations in advertisements or sales presentations which created in the mind of reasonable consumers false impressions as to material aspects of said advertised or offered vehicles, or conveyed or permitted an erroneous impression as to which vehicles were offered for sale, and at which prices, in violation of OAC 109:4-3-16; 5) representing that motor vehicles would be delivered within a given period of time when there did not exist a reasonable basis upon which such representation was made in violation of OAC 109:4-3-16; 6) failing to integrate into its written sales contracts all material statements, representations or promises, oral or written, made prior to obtaining the consumers' signatures on the written contracts; and 7) selling, offering for sale, or assisting in the sale of more than five motor vehicles in a twelve month period without being licensed as a dealer. Defendants committed unconscionable acts and practices in violation of the CSPA by: 1) entering into consumer transactions knowing at the time of the consumer's inability to receive a substantial benefit from the subject of the consumer transaction, by displaying for sale or selling new and used motor vehicles when there was not reasonable probability, based upon their precarious financial condition that Defendants could provide certificates of title for the motor vehicles; 2) collecting monies from consumers for the purpose of paying the secured liens and/or leases on consumers' vehicles and then failing to make those payments; and 3) selling consumers' vehicles to other consumers who paid money for motor vehicles which were not titled in Defendants' names, and for which Defendants knew they would be unable to obtain title. Defendants to pay a civil penalty of $125,000 ($100,121.48 suspended), restitution to the TDR Fund of $21,108.50, consumer restitution of $6,012.98, and attorney fees and investigative costs of $25,000 (suspended).
In re Chesrown Oldsmobile GMC Truck, Inc., AVC No. 382048, PIF 2810
In connection with all motor vehicle advertisements and sales, Supplier agrees to: 1) refrain from representing that the subject of a consumer transaction is available for a reason that does not exist; 2) refrain from engaging in advertising practices which tend to obscure or confuse material facts in violation of OAC 109:4-3-16(B)(3); 3) refrain from comparing the price of a used motor vehicle to the original price of the motor vehicles in violation of OAC 109:4-3-16(B)(10); 4) refrain from advertising motor vehicles and failing to clearly and conspicuously disclose, in close proximity to the offer, all material terms and conditions in violation of OAC 109:4-3-02(A); 5) refrain from telling consumers that they have won a prize without clearly and conspicuously disclosing any and all conditions necessary to win the prize in violation of OAC 109:4-3-06(A)(2) and 109:4-3-06(D)(3); 6) refrain from informing consumers that they have won a prize which requires them to pay a fee to receive the prize in violation of OAC 109:4-3-06(D)(2); 7) refrain from any direct mail solicitations involving or implying a gift, award, prize, or similar inducement; and 8) have all direct mail solicitations reviewed by the Ohio Auto Dealers Association. Supplier to pay restitution to all consumers who paid the $15 fee to receive their $1,000 restaurant voucher and who complained to the OAG, and $15,000 in attorney fees and investigative costs.
PRESCRIPTION MEDICINE
State ex rel Cordray v. Pfizer, Inc., Franklin Cty. Case No. 09-CVH-09-13913, PIF 2801
Pfizer agrees to not promote any off label usage of Geodon. Pfizer will not allow sales or marketing personnel to distribute Medical Information Letters or Medical Reference Publications. In response to any unsolicited requests for off label information for Geodon, Pfizer shall inform the requestor that the request concerns an off label use, and inform the requestor of the drug's FDA-approved indications. If Pfizer responds to an unsolicited request for off label information, the response shall be limited to informing the requestor of the presence or absence of published studies concerning the off label usage or by acknowledging whether the topic is an area of research. Pfizer shall disclose information about grants, including CME grants regarding Geodon and shall not use grants to promote Geodon. Sales and marketing personnel shall not initiate, coordinate or implement grant applications, shall not be involved in selecting grantees or CME-funded speakers, and shall not measure or attempt to track the impact of grants on the participants' subsequent prescribing habits. Pfizer shall post a list of all US-based physicians and related entities who received payments directly or indirectly from Pfizer, and shall post annual listings on March 31, 2012, 2013, 2014, and 2015. Pfizer to pay the participating states $33 million.
RESIDENTIAL MORTGAGE
State ex rel Rogers v. Amerifirst Mortgage, Franklin Cty. Case No. 07 CV 17061, PIF 2797
It is an unconscionable act in violation of 1345.031(B)(10) and OAC 109:4-3-24(B) and an unfair and deceptive act or practice in violation of 1345.02(A) for a supplier to attempt to compensate, instruct, induce, coerce, or intimidate a licensed appraiser for the purpose of improperly influencing the independent judgment of the appraiser by including the language "value needed" with any dollar amount indicated in the designated space. Defendant to pay civil penalty of $15,000 ($10,000 suspended).
State ex rel Cordray v. Jones, Licking Cty. Case No. 07 CV 2174, PIF 2798
It is an unconscionable act in violation of 1345.031(B)(10) and OAC 109:4-3-24(B) and an unfair and deceptive act or practice in violation of 1345.02(A) to intentionally attempt to compensate, instruct, induce, coerce, or intimidate a licensed appraiser for the purpose of corrupting or improperly influencing the independent judgment of the appraiser by indicating in an appraisal request that a specific value is desired. Defendant ordered to pay civil penalty of $25,000 and attorney fees of $1,500.
State ex rel Cordray v. Fiserv Solutions, Inc., Franklin Cty. Case No. 09-CVH-10-15013, PIF 2808
A supplier who indicates an estimated value or loan amount on an appraisal request form is knowingly attempting to compensate, instruct, induce, coerce, or intimidate a person licensed or certified under R.C. 4763 for the purpose of corrupting or improperly influencing the independent judgment of the person with respect to the value of the dwelling offered as security for repayment of a mortgage loan in violation of R.C. 1345.031(B)(10). Defendant ordered to pay civil penalty of $100,000 ($20,000 suspended) and $15,000 in attorney fees and investigative costs.
TELEPHONE CONSUMER PROTECTION ACT
State ex rel Cordray v. Inner Health, Inc., Franklin Cty. Case No. 08 CVH 05 6908, PIF 2799
Defendant made telemarketing calls to recent car accident victims to solicit patients for chiropractic services. Defendant made calls to consumers whose phone numbers were listed on the National Do Not Call Registry. The Court found that it was a violation of R.C. 109.87 as well as R.C. 1345.02 and 1345.03 to make telemarketing calls to consumers whose phone numbers are listed on the Registry in violation of 47 USC 227. The Court found that Defendant's offers to set up appointments for free consultations are unsolicited advertisements. The Court also found that the State is not precluded from bringing suit based on a single call to a consumer and that Defendant did not meet the exemption for physicians as the calls were not made to patients of Inner Health. Defendant to pay $5,500 in consumer damages and $2,000 in civil penalties.
TITLE DEFECT RESCISSION
State ex rel Cordray v. NAL Group, Inc., Franklin Cty. Case No. 08 CVH 8316, PIF 2809
Defendants committed unfair and deceptive acts and practices in violation of the CSPA by: 1) selling or displaying for sale used motor vehicles without having obtained a manufacturer's or importer's certificate, a certificate of title, or an assignment of a certificate of title prior to participating in the TDR Fund; 2) displaying for sale or selling used motor vehicles without having first obtained certificates of title for the vehicles in the name of the dealer or without possessing a bill of sale for each motor vehicle proposed to be displayed, offered for sale, or sold, and a properly assigned power of attorney or other related documents from the prior owner giving the dealer authority to have a certificate of title to the motor vehicle issued in the name of the dealer; 3) selling or transferring new and used motor vehicles to Ohio retail purchasers and failing to apply for certificates of title in the name of the retail purchasers on or before the thirtieth day following the date of the sale; 4) failing, on or before the fortieth day following the date of the sale, to provide title to the vehicle in the name of the retail purchaser; and 5) selling new motor vehicles purchased from other dealers to retail purchasers before ninety days had elapsed since the Defendants had received certificates of title to the motor vehicles.