The discretionary language in some consumer fraud statutes may cause consumers and lawyers to be less likely to decide to bring even a strong meritorious consumer fraud case, impeding the articulated legislative policy to promote the bringing of such cases. These statutes should be modified to eliminate such discretion by the courts. Part II of the Article sets out the economic dilemma a typical consumer faces in deciding whether to bring an action under the common law to be compensated for her losses when she has been defrauded (the "economic feasibility" issue). It then discusses the legislative response to the economic feasibility problem through the awarding of attorney's fees to prevailing plaintiffs in consumer fraud cases. It also identifies the primary legislative goals, articulated in legislative histories and in cases interpreting consumer fraud statutes, to enable defrauded consumers to bring consumer fraud actions and to, thereby, also deter businesses from engaging in consumer fraud. Part III provides a summary of the different approaches among the fifty states' consumer fraud statutes in terms of when an attorney's fees are awarded to a successful plaintiff or to a successful defendant (and the secondary policy reason for this). An Appendix containing a breakdown of the attorney's fees provisions and case law interpretations of these statutes among the fifty states is also provided. Part IV critiques the attorney's fees provisions in the various consumer fraud statutes in the United States and the court interpretations of these provisions in light of the goals articulated for these statutes and raises questions to be empirically tested. Part V describes the methodology and results of our surveys, which seek to determine the impact of different statutory terms regarding the awarding of attorney's fees under different scenarios on the likelihood that a consumer or attorney will bring a consumer fraud case. Finally, Part VI sets forth a proposal regarding the best approach to the awarding of attorney's fees to a prevailing plaintiff or defendant based upon the results of the data collected from these surveys and a consideration of the public policy goals articulated when the consumer fraud acts were enacted.
Debra Pogrund Stark and Jessica M. Choplin,
Does Fraud Pay - An Empirical Analysis of Attorney's Fees Provisions in Consumer Fraud Statutes ,
56 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol56/iss3/3