September 2021 —
The MLO Minute: By Dennis McAndrews, Esq. and Heather Hulse, J.D., M.S., M.A. —
During Dennis McAndrews’ four decades of practice, he has routinely reviewed what are known as the “Advance Sheets” which are blue weekly paperback volumes of new cases throughout the Pennsylvania and federal court systems. These decisions provide the latest interplay between our society and the justice system and allows our firm to remain on the cutting edge of legal developments. Over the years, we have learned that seemingly obscure cases which involve a large number of “amicus briefs” — which are filed by interested organizations to express their positions — reflects some larger issue than the case itself might suggest. One such recent decision by the Pennsylvania Supreme Court was Gregg v. Ameriprise Financial, Inc., which interpreted Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (UTPCPL) and was the subject of several amicus briefs by business groups on the one hand, and consumer protection organizations on the other.
In this decision, the Pennsylvania Supreme Court provided a very broad interpretation of Pennsylvania’s consumer protection laws which affects all private businesses in the Commonwealth. The Court clearly stated that “the current statute imposes liability on commercial vendors who engage in conduct that has the potential to deceive and which creates a likelihood of confusion or misunderstanding. That is all that is required. The legislature required neither carelessness nor intent when a cause of action is premised upon deceptive conduct.” The Supreme Court went even further by stating that the statute “may be characterized as a strict liability offense” and that “the legislature has placed the duty of compliance squarely and solely on vendors; they are not to engage in deceitful conduct and have no legally cognizable excuse, if they do.”
As Heather Hulse has experienced, a great deal of our practice involves students in private schools and other private facilities which involve commercial transactions under this law, as do all types of real estate, contract, sales, and other business transactions. The Gregg decision should serve as a note of caution for all commercial transactions, including the marketing activities of private institutions that serve a variety of needs of children and adults, to carefully describe the services they provide and the anticipated benefits of those services. While in a typical common law contract some “puffing” or exaggeration was historically permitted, Pennsylvania’s statutory provisions under the UTPCPL now restrict exaggerated advertising. Going forward, private schools, private facilities/institutions, and all businesses will be well advised to review their websites and advertising materials to ensure that they are accurate in terms of the services rendered and the benefits expected.