UDAP Gold: Lessons to be Learned from the Landmark Decision of Dwyer v. Ameriprise

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Deceptive trade practices claims present a myriad of issues which can confound the practitioner and judges alike. This seminar is geared towards helping you to present successful arguments on why statutory additional (treble) damages should be awarded. You will learn the differences between the award of statutory additional damages and the award of common law damages. Importantly, you will also learn what to argue to the court regarding what is the extent and limitations of a trial judge’s discretion when considering whether to award statutory additional damages.

This program will focus on the recent seminal decision of the Pennsylvania Supreme Court in Dwyer v. Ameriprise. What is truly helpful about the Dwyer decision, (besides the fact that it is clearly written), is that in reaching its decision, the Pennsylvania Supreme Court analyzes various key cases from jurisdictions throughout the United States, as well as cites to helpful United States Supreme Court precedent. All practitioners who bring deceptive trade practices claims, should find this seminar to be helpful. A basic understanding of why different types of damages are awarded is helpful, but not necessary.

This seminar will provide valuable insight for attorneys with experience with deceptive trade practices claims and also attorneys new to this area. The level of presentation will cover the necessary background for having an advanced understanding of how to successfully present your statutory damages claims. It is suggested to read the Dwyer majority opinion and the concurrence in advance of the seminar.

Christina Gill Roseman

Founder

Roseman Law Firm, PLLC

Christina Gill Roseman, Esq. is the founding attorney of Roseman Law Firm, PLLC, where she represents consumers in the areas of dealer fraud, lemon law and breach of warranty. Ms. Roseman has successfully tried numerous cases against vehicle manufacturers and dealerships, including a verdict in 2019 against Winnebago, a 2021 verdict against Mercedes and a 2020 verdict against Kia. She is the Chair of the Allegheny County Bar Association Civil Litigation Section Court Rules Committee and is a member of the invitation-only Academy of Trial Lawyers of Allegheny County. Ms. Roseman was the 2010-2012 Co-President of the Women's Bar Association of Western Pennsylvania and the Co-Chair of the CLE Committee for the WBA from 2012 to 2017. Ms. Roseman is the West Virginia state NACA Co-chair. Ms. Roseman is licensed to practice in Pennsylvania, West Virginia, Ohio, Wisconsin and Michigan. Roseman Law Firm, PLLC has offices in Pittsburgh, Pennsylvania and Morgantown, West Virginia.

Ken Behrend

Attorney Kenneth R. Behrend, of the Behrend Law Group, LLC, has substantial experience in litigating consumer protection cases. He has tried around 100 jury trials and handled over 60 appellate arguments before various courts, including: the Pennsylvania Supreme Court, Superior Court, the Supreme Court of West Virginia, the United States Courts of Appeals for the 1st, 3rd, and 8th Circuits. He has also handled hundreds of arguments in numerous State trial courts and Federal District Courts.

Mr. Behrend has been litigating deceptive trade practices claims primarily against insurance companies since the mid 1980s. He was the first attorney in Pennsylvania to bring claims for deceptive sales practices under the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1 et seq, against insurance companies in the landmark case of Pekular v. Eich and State Farm, 513 A.2d 427 (Pa. Super. 1986), appl. den. 533 A.2d 93 (Pa. 1987).

Some of the other landmark decisions regarding issues related to consumer protection violations which were argued by Mr. Behrend include: (1) the consumer protection law is a strict liability statute. Thus, “the duty of compliance with the CPL [is] on commercial vendors, without regard to their intent. Without a state of mind requirement, the amended catch-all provision fairly may be characterized as a strict liability offense.” Gregg v. Ameriprise Fin., Inc., 245 A.3d 637 (Pa. 2021) Therefore, a consumer does not have to prove that a vendor intended to mislead the consumer, all that has to be shown is that the sales practice lead to a likelihood of confusion or misunderstanding or was deceptive. Id.; (2) since the legislature intended that statutory treble damages are remedial and are to be awarded in addition to common law punitive damages, a trial court’s discretion must be exercised in conformance with the legislature’s goals. Dwyer v. Ameriprise, No. 2 WAP 2023, ____ A.3d ____ (Pa. April 25, 2024); (3) a fair preponderance of the evidence standard applies to consumer protection claims, Boehm v. Riversource, 117 A.3d 308, 321 (Pa. Super. 2015), appeal denied, 126 A.3d 1281 (Pa. 2015); (4) consumer protection damages may be based upon the reasonable expectations created at the time of sale and not just the consumer’s out-of-pocket loss, Lesoon v. Metropolitan Life, 898 A.2d. 620 (Pa. Super. 2006), allocator denied, 912 A.2d 1293 (Pa. 2006); (5) a finding of a violation of the consumer protection law is not constricted by common law claims such as negligent misrepresentation and fraudulent misrepresentation, Richards v. Ameriprise, 152 A.3d 1027 (Pa. Super. 2016), allco. dnd. (Pa. 2016); (6) what is meant by the term “ascertainable loss” is broader than common law actual damages, Agliori v Metropolitan Life Ins. Co., 879 A.2d 315 (Pa. Super. 2005); (7) there is no right to jury trial for private causes of action under the consumer protection law, Fazio v. Guardian Life Ins. Co., 62 A.3d 396 (Pa. Super.2012), appeal denied, 72 A.3d 604 (Pa. 2013); (8) a justifiable reliance standard applies to consumer protection claims, Toy v. Metropolitan Life Insurance Company, 928 A.2d 186 (Pa. 2007).