By: Jeremiah Ross

You spent days looking for the perfect vehicle. You finally find it, and the $280.00 per month payment is just what you were looking for. The dealer then offers you more than expected for your barely running trade in. Things are going great! The car buying process is taking forever, but you don’t mind because the dealer seems so nice. He is talking about the weekend he had with his kids and his young family. The dealer is in and out of the office. He blames the delay on a a back-log in financing. Hours later he walks in with a stack of “routine” documents that need to be signed so you can purchase and finance the vehicle.

The dealer says that the lender requires that you purchase a warranty and GAP insurance. He explains this is required, and that because you are getting such a great price on the car it will have little effect on the monthly payment. The dealer then starts to present each document and points out where you should sign while keeping one hand on the document and talking about his recent trip to Mt. Hood. The dealer apologizes for the delay and shakes your hand. You drive off the lot with a big grin on your face.

When you get home that big grin quickly turns to a frown once you review the paperwork. It is at that time that you notice the dealer charged you $3,000.00 for the required GAP insurance. You don’t know what GAP insurance is, but he said it was required. You also notice that the car is under factory warranty but you paid $2,000.00 for a service contract that covers the same thing as the warranty. This $15,000.00 car has now become $20,000.00. You also notice the increased monthly payments were the agreed $315.00, but instead of a 48-month loan you have a 60-month loan. You call the dealer and he says that he will look into it and call you back. After that first call, the dealer won’t take your calls anymore. Unfortunately, this unlawful scenario is all too common. However, consumers can mitigate their chances of being ripped off if they educate themselves about “add-ons.” Here are five things Oregon consumers should know about add-ons before they buy a car:

1) What are Vehicle Add-Ons: Vehicle add-ons are the extra goods, services, and accessories the dealer sells you in addition to the vehicle. Common add-ons include service contracts, pre-paid maintenance plans, extended warranties, GAP insurance, rust proofing, VIN etching, anti-theft devices, fabric protection, nitrogen in tires, window tinting, chrome-plated wheels, all-season floor mats, splash guards, wheel locks, cargo trays and alarm systems. These add-ons will almost always increase the price of the vehicle.

2) Dealers Can Make a Significant Profit on Add Ons: Dealers do not typically make a large profit on selling a vehicle. Dealers can substantially increase their profit if they are able to sell you add-ons. This is why they may be willing to substantially drop the asking price of the vehicle or increase your trade in value. This gives the illusion that you are getting a great deal when in reality you are being over-charged for the add-ons. For example, the dealer may charge you $2,500.00 for GAP insurance. The dealer then only pays GAP insurance company $500.00 for your GAP insurance policy. The dealer keeps the $2,000.00 as profit. Because of this profit, there is usually room to negotiate with the dealer if you want to buy an add-on.

3) Dealers Cannot Charge an Unconscionable Price for Add-Ons: Oregon law prevents the dealer from making false or misleading representations about the amount charged for add-ons that are sold with the vehicle by selling them at a price which is unconscionably higher than the price at which they are typically sold to customers. See OAR 137-020-0020 (3)(f). This means that the dealer cannot sell VIN etching to one customer for $50.00 and then sell the same product/service to you for $1,500.00.

4) Dealers Cannot Require You to Purchase Add-Ons in Order to Finance the Vehicle: Oregon law prohibits dealers from informing consumers that the dealer won’t sell the vehicle or obtain financing for the vehicle unless the consumer purchases add-ons, accessories, or insurance. See OAR 137-020-0020 (3)(L)&(v). The dealer can ensure that the consumer has liability insurance that is required by law, but cannot condition the sale based on the consumer purchasing that insurance from the dealer, GAP insurance, or other products or services. To put it another way, you do not have to buy any add-ons in order to buy the car.

5) The Dealer Must Be Up Front About the Cost of the Add-Ons and the Price of the Vehicle: Dealers often try and pack add-ons into the price of the vehicle. This enables them to conceal the actual price of the add-ons. This is called “packing” and it is unlawful. The law requires that during negotiations the dealer cannot quote monthly payments or the total sale price of the vehicle with the add-ons included unless the dealer clearly and separately delivers in writing, during negotiations and prior to any purchase order, the individual price of the add-ons, and the total costs without the items included. See OAR 137-020-0020 (3)(m).  This means that during negotiations the dealer should provide you something in writing noting the total cost of the vehicle and the monthly payments without any of the add-ons included. The dealers should also provide you the individual price of each add on.

How Can You Protect Yourself from a Car Dealer?

1) Read the Documents: It is a no-brainer that you should read what you are signing. However, dealers use tactics to prevent this. Dealers are trained to keep their hands on the documents and point where to sign while engaging in conversation with you. You can protect yourself by asking the dealer to step out of the office or away from the desk and give you time to read the documents. You can also politely ask the dealer to stop talking as you are going through the documents, and remind them that you are trying to focus. There is never enough time to read all of the small print. However, before you sign the documents you should have an understanding of the major aspects of the deal.

2) Shop Based on Total Sale Price: Many people purchase cars solely based on the monthly payments. Focusing on monthly payments puts the consumer at a disadvantage because the dealer can tweak the financing and price of add-ons to keep the monthly payments roughly the same, while the actual amount financed of the vehicle is substantially higher. You can protect yourself by shopping based on the “Total Sale Price” of the vehicle. That price is located on the truth in lending act disclosures that the dealer requires you to sign.

3) Don’t Be Afraid to Walk Away If Something Doesn’t Feel Right: If you think the dealer is trying to take advantage of you then walk away. Dealers use long delays to exhaust buyers so that the dealer can get them to rush through signing the paperwork. You can combat this by giving them a certain amount of time to prepare the documents or you walk. You can also walk out if you get the sense that the dealer is trying to pull a fast one or take advantage of you.

Add-ons may be a good deal for some people, but buyers should beware. Selling add-ons is a fertile area where dealers can increase their profits on a deal substantially. That means the consumer will end up paying more unless they understand what they are purchasing and the amount they are paying.

Jeremiah Ross is a Portland based attorney that represents clients in consumer matters and personal injury matters throughout the state of Oregon.

 The annual meeting of the Consumer Law Section will be held on Wednesday, November 28, 2018 at noon at the Oregon Department of Justice, 100 Market Street, Hawthorne conference room, 1st floor, Portland, OR 97201.

 During the annual meeting the following nominations will be made for 2019 Executive Committee positions.  Additional nominations will be accepted from the floor.

 Officers

Terms ending December 31, 2019

Chair:                    Matthew S. Kirkpatrick

Chair-Elect:         Christopher J. Mertens

Past-Chair:          Jeremiah Vail Ross

Secretary:           Colin D. A. MacDonald

Treasurer:           Young Walgenkim

Member-at-Large

Terms ending December 31, 2020

 Bret A. Knewtson

April Kusters

Eva H. Novick

Jordan M. Roberts

 Members previously elected to the executive committee and continuing through December 31, 2019, include Michael Fuller, Kelly Donovan Jones, Kevin A. Mehrens and Joel D. Shapiro.

 The Section’s fund balance as of December 31, 2017 was $18,096. All Section financial statements can be found at http://www.osbar.org/sections/financials.html.

By: Jordan Roberts

Earlier this year the Oregon Court of Appeals decided Simonsen v. Sandy River Auto, LLC 290 Or App 80 (2018), making it the most recent appellate case to discuss the meaning of “ascertainable loss” under Oregon’s Unlawful Trade Practices Act (the “UTPA”).

Under the UTPA: “a person that suffers an ascertainable loss of money or property, real or personal, as a result of another person’s willful use or employment of a method, act or practice declared unlawful under ORS 646.608, may bring an individual action in an appropriate court to recover actual damages or statutory damages of $200, whichever is greater.  The court or the jury may award punitive damages and the court may provide any equitable relief the court considers necessary or proper.”  ORS 646.638(1).

In Simonsen, the plaintiff purchased a used car from a dealership.  Among other things, the dealer represented that various repairs had been made, that the car was “in good running order,” that it would “not need any major fixes soon” and that plaintiff was getting a “really good deal” and “a great price.”

Two days after purchase a third-party mechanic notified plaintiff that the timing belt on the vehicle needed to be replaced, that the valve cover gaskets leaked, that the exhaust system and undercarriage were severely rusted and that the muffler was beginning to “flake apart.”  In addition, plaintiff learned that the car had been in a previous, undisclosed, accident.

Plaintiff brought a single UTPA action and sought rescission of the purchase pursuant to the UTPA or, in the alternative, actual or statutory damages.  The rescission case was tried to the judge and the damage case to a jury.

The jury returned a verdict finding that the vehicle had one or more material defects, that the dealer knew or should have known of those defects and that defendant willfully failed to disclose those defects to the plaintiff.  The jury also found that plaintiff’s economic damages, measured by the “reduction in the fair market value of the vehicle; and the out of pocket expenses incurred by plaintiff” were $0.

Defendant claimed that the $0 damage verdict meant it had prevailed and that the court was bound by the jury’s $0 damage verdict when deciding rescission.  Plaintiff argued that he was still entitled to rescind the transaction because he suffered an “ascertainable loss” when he received a vehicle that was materially different than what had been represented and, in the alternative, was entitled to statutory damages.  The trial court ruled for Plaintiff on his rescission claim and awarded plaintiff his attorney’s fees.  Defendant appealed and the Court of Appeals affirmed the judgment.

After reviewing the history of the phrase “ascertainable loss” in Oregon case law, the Court of Appeals reaffirmed the principle that “ascertainable loss can be more than a quantified measurement of diminished market value.”  In other words, “ascertainable loss” under the UTPA is not synonymous with “damages.”  Any time that a consumer receives something that is different than that which they were promised or bargained for, that consumer may have a viable UTPA claim to recover the purchase price of the goods or services even if they have suffered no diminished value.

Consumer Attorney Young Walgenkim shares 5 tips for consumers looking to buy a used car in Oregon.  Watch it below:

By David Koen

In the past decade, Wells Fargo Bank, N.A., has repeatedly shocked and awed consumers and regulators with a variety of unlawful practices. Revelations of the bank’s misdeeds – admitted and alleged – continue.

In a regulatory filing on August 3, 2018, Wells Fargo disclosed that a software mistake miscalculated eligibility for home loan modifications, causing about 625 homeowners to be denied relief. Approximately 400 of such customers then lost their homes to foreclosure. The errors occurred between April 2010 and October 2015.

Wells Fargo has created an $8 million compensation fund for affected homeowners. That’s an average of $12,800 for each such homeowner.

The bank also allowed that “[t]his effort to identify other instances in which customers may have experienced harm is ongoing, and it is possible that we may identify other areas of potential concern.”

Wells Fargo’s announcement that more of its customers may been harmed follows a similar statement the bank made after a previous scandal in which it was embroiled. In 2016, the bank’s own analysis initially revealed that it had created more than 2 million accounts that may not have been authorized by consumers. A year later, Wells Fargo revealed that it had created up to 1.4 million more potentially fake accounts.

Responding to the mortgage modification mishap, U.S. Senator Elizabeth Warren of Massachusetts tweeted, “Because of an error @WellsFargo made, 400 of its customers lost their homes. What’s the bank doing to make it right? Setting aside a few thousand dollars for each of the people affected. Pathetic. The execs who oversaw this – including CEO Tim Sloan – should be fired.”

Wells Fargo spokesman Tom Goyda said that “customers are receiving what Wells believes is appropriate given the circumstances.”

Banking while Black

Two black Florida residents have sued Wells Fargo for racial discrimination in recent months following incidents in which the bank allegedly either threatened to or did call the police on its customers.

In one incident, 78-year-old Barbara Carroll alleged she tried to cash a check for $140 at a Wells Fargo branch. Bank employees then refused to cash her check or return her driver’s license, asked what she did for the money and told her they had called police. Carroll said the employees suspected that Carroll was guilty of forgery, even after the man who wrote the check confirmed its legitimacy. On July 18, Carroll sued Wells Fargo in the U.S. District Court for the Southern District of Florida, Case No. 0:18-cv-61646.

The other suit was brought by Jean Romane Elie. Elie has alleged that after trying to withdraw money for rent, a teller called the Palm Beach County Sheriff’s Office. According to Elie, he was handcuffed, detained, and accused of committing a felony. The case is pending in Palm Beach County, Florida, Circuit Court.

A Wells Fargo spokeswoman told The Washington Post that the bank “opposes discrimination of any kind.”

The cities of Sacramento, Philadelphia, Baltimore, Miami and Memphis have also sued Wells Fargo for racial discrimination. In 2012, Wells Fargo entered into a $175 million settlement with the U.S. Department of Justice after Baltimore alleged the bank had steered minorities into subprime loans and gave them less favorable rates than white borrowers. The bank has also settled Memphis’ suit against it.

By Kevin Mehrens

The field of consumer law encompasses many different statutes protecting consumers. From the Fair Debt Collection Practices Act to the Unlawful Trade Practices Act, these laws are designed to protect consumers (particularly low-income ones) from abuses of creditors and debt collectors as well as from unscrupulous businesses who would prey upon the financially vulnerable. The portion of the community protected by consumer protection laws is very much the same section of the population that is served by the protections of state and municipal landlord-tenant statutes.

Over the last five years Oregon, and Portland in particular, has seen a rapid increase in residential housing prices. The average cost of a two-bedroom unit in Portland as of August, 2018 was over $1,500.00 per month.[i] This rapid increase in housing prices has had the effect of forcing many low-income families out of their residences in Portland. The response from renters has been a backlash against landlords who have chosen to increase rents with little to no increase in services and conditions of the rental units – everything from renters strikes[ii], massive litigation over the conditions of rental units,[iii] to large- and small-scale protests over rental increases and housing condition as well as the perceived failure of the State legislature to address the problems.[iv]

In response to the dramatic increase in rental prices, state and local governments have passed, or attempted to pass, a series of acts designed to lessen the impact on affected residents. Notable among these is the Portland City Code § 30.01.085, also known as the Portland Mandatory Renter Relocation Assistance Ordinance. Initially passed as a temporary, emergency measure by the Portland City Council in November 2015, the Ordinance has gone through a number of revisions. It was adopted in its current form as a permanent measure in March 2018. This article will describe the goals and terms of the Ordinance as well as discuss the procedures through which tenants can protect themselves in order to ensure that their landlord abides by the terms of the Ordinance.

The Portland City Council enacted the Ordinance in order to “protect the availability of publicly assisted affordable housing for low and moderate income households . . . .”[v] The stated policy for the Ordinance is “that all Portlanders, regardless of income level, family composition, race, ethnicity or physical ability, have reasonable certainty in their housing, whether publicly assisted or on the private market. . . .[vi] In order the effectuate these goals, the Ordinance requires a landlord to compensate a tenant in an amount up to $4,500.00 depending on the size of the dwelling unit when the landlord either (1) terminates the tenancy without cause or (2) raises the rent by 10 percent or more during any rolling 12-month period.

No Cause Termination of Tenancies. Oregon state law only requires 30 or 60 days’ notice before a landlord can terminate a residential tenancy.[vii]  Portland now requires 90 days’ notice (with certain, narrow exceptions) for all no-cause terminations. These notices must now include a description of a tenant’s rights under the Ordinance—including the eligible amount of the relocation assistance. Landlords can still terminate a tenancy with no cause but should they choose to do so they must pay the tenants the relocation assistance. The payment of the relocation assistance must be made no later than 45 days prior to the termination date specified in the termination notice. So, for example, if a landlord issues a termination of tenancy to a tenant on December 15 with an end date of April 30, the landlord must pay the tenant the relocation assistance by March 16 at the latest.

In addition to being triggered upon the delivery of a no-cause termination notice, should a landlord fail to renew or replace an expiring lease, it is obligated to pay the tenant the relocation assistance.

Rent Increase of Ten Percent. The Ordinance first requires at least 90 days’ notice of any rent increase. Should the increase be ten percent or more (in a rolling 12-month period, two five-percent increases in a calendar year would trigger the requirements under the Code) the tenant is confronted with a series of choices:

• The tenant can accept the increased rent and remain in the unit and pay the increased rent;
• Within 45 days after receiving the notice of the rent increase, the tenant can send a written request to the landlord for their relocation assistance;
• Within 31 days of the landlord receiving the request for relocation assistance, the landlord must pay the tenant the eligible assistance amount;
• Next, the tenant, after receiving the relocation assistance, has six (6) months to do one of the following:
  • Pay back the relocation assistance and pay the increased rent, or;
  • Provide the landlord with a termination notice and move out of the unit.

So the provisions of the Ordinance dealing with situations in which a landlord dramatically increases the rent place an affirmative obligation on the tenant to request the money or else they will presumably be deemed to have accepted the rent increase. And while the landlord is required to provide a notice of the tenant’s rights with any rent increase, there is no specified form that such a disclosure needs to be in. The Ordinance simply states, “A Landlord shall include a description of a Tenant’s rights and obligations and the eligible amount of Relocation Assistance under this Section 30.10.085 with each and any . . . Increase Notice . . . .[viii]  Such a description could be in the form of a copy of the Ordinance, which is not so easy to understand, particularly for tenants for whom English is not their primary language.

The legal and political challenges to the tenant protection measures are far from over. These tenant protections have seen a concerted response from landlord groups seeking the repeal or rollback these protections as being too onerous for the landlords.[ix] In July 2017, a landlord challenged the Ordinance in Multnomah County Circuit Court as, among other things, violative of an Oregon statute prohibiting rent control.[x] While Judge Henry Breithaupt found that the Ordinance was valid, the case is currently on appeal with the Oregon Court of Appeals. The next few years will certainly see many more, new clashes between landlords and tenant advocacy groups and attorneys as the regulations and laws are fleshed out.

[i] https://www.rentcafe.com/average-rent-market-trends/us/or/portland/

[ii] https://www.wweek.com/news/city/2018/07/31/tenants-in-southeast-portland-launch-a-rent-strike-hoping-to-stay-in-their-gentrifying-apartment-complex/

[iii] https://katu.com/news/local/jury-tenant-wins-20-million-lawsuit-against-landlord-for-safety-hazards

[iv] https://www.oregonlive.com/portland/index.ssf/2017/06/tenants_rights_activists_prote.html

[v] Portland City Code § 30.01.020

[vi] Portland City Code § 30.01.010

[vii] Oregon Revised Statutes § 90.427

[viii] Portland City Code § 30.01.085 D

[ix] https://www.oregonlive.com/portland/index.ssf/2018/08/landlords_prep_for_new_fights.html

[x] Owen, et al. v. City of Portland, No. 17CV05043

By David Venables

Shortly before the end of the Great Recession, Congress passed the Protecting Tenants at Foreclosure Act (PTFA) of 2009 to protect tenants from post-foreclosure eviction.  Although the PTFA’s tenant protections expired on December 31, 2014, they were recently revived when President Trump signed the Economic Growth, Regulatory Relief, and Consumer Protection Act (Senate Bill 2155) into law.  Taking effect on June 23, 2018, the Act repealed the “sunset provision of the Protecting Tenants at Foreclosure Act” and restored “notification requirements and other protections related to the eviction of renters in foreclosed properties.”

PTFA

The fundamental purpose of the PTFA is to ensure that tenants facing eviction from a foreclosed property have adequate time to find alternative housing.¹ To that end, the law establishes a minimum time period that a tenant can remain in a foreclosed property before eviction can be commenced and does not affect any state or local law that provides longer time periods or other additional tenant protections.

Under the law, the immediate successor in interest following any non-judicial or judicial foreclosure of a “federally-related mortgage loan,” dwelling, or residential real property must (a) provide bona fide tenants with 90 days’ notice prior to eviction and (b) allow bona fide tenants with leases to occupy property until the end of the lease term, except the lease can be terminated on 90 days’ notice if the unit is sold to a purchaser who will occupy the property.  The PTFA does not require tenants to pay rent to the successor in interest however, any successor in interest may accept rent and, in doing so, assume the rights and obligations of a landlord under Oregon’s Residential Landlord and Tenant Act.

A lease or tenancy is bona fide only if:

(1)       The mortgagor or a child, spouse, or parent of the mortgagor under the contract is not the tenant;

(2)       The lease or tenancy was the product of an arm’s-length transaction; and

(3)       The lease or tenancy requires the receipt of rent that is not substantially less than fair market rent or the rent is reduced or subsidized due to a federal, state, or local subsidy.

Now that the PTFA has been restored, bona fide tenants at the time of a foreclosure of residential property will once again be able to take advantage of these protections to help ease the transition to new housing.

¹ https://www.federalreserve.gov/boarddocs/supmanual/cch/200911/protect.pdf

By Colin D. A. MacDonald

On June 18, President Trump nominated Kathleen “Kathy” Kraninger to be the new Director of the Consumer Financial Protection Bureau (CFPB), to succeed Acting Director Mick Mulvaney.  Kraninger currently serves as Associate Director of the Office of Management and Budget (OMB) for General Government. She is an attorney with a long government resume but has not previously worked in consumer protection or financial regulation. Kraninger will require confirmation by the Senate to take office. The Senate Banking Committee held a hearing on Kraninger’s nomination July 19. Mulvaney is expected to continue acting as director in the interim.

Kraninger’s appointment sparked mixed reaction. The White House says that Kraninger “will bring a fresh perspective and much-needed management experience to the [CFPB], which has been plagued by excessive spending, dysfunctional operations, and politicized agendas.” Ohio Sen. Sherrod Brown, the ranking Democrat on the Senate Banking Committee, said that “The White House should pick an experienced, serious, independent leader.” Sen. Elizabeth Warren (D-MA) said that she would place a hold on Kraninger’s nomination, essentially preventing the Senate from voting on the nomination without extraordinary action by the Republican majority, until more information was provided about Kraninger’s role in current Trump Administration policies involving separation of immigrant families at the border.

Kraninger has served in a variety of legislative and executive roles for Republicans, but none of them involved the type of laws the CFPB enforces. At OMB, Kraninger’s role focuses on policy at the Department of Homeland Security (DHS) and the Department of Justice.  In addition to her work at OMB, she previously held political appointments at both DHS and the Department of Transportation under President George W. Bush. She was also a professional staff member for the Senate’s Homeland Security and Governmental Affairs Committee. Kraninger holds a J.D. from Georgetown University and a B.S. from Marquette University.

The CFPB Director has full authority over the agency’s enforcement, regulatory, and education activities. The Bureau regulates a broad range of consumer financial services providers, and its jurisdiction overlaps with the Federal Trade Commission as well as federal bank regulators. In addition to judicial and administrative enforcement authority, it has supervisory powers that allow it to compel large consumer financial services providers to submit to inspections of their practices. The director serves for a five-year term and may only be removed by the President for cause.

By nominating Kraninger – or anyone –  before June 22, the President cleared the way for Mulvaney to continue serving as Acting Director. Under the Federal Vacancies Reform Act, the President may designate a Senate-confirmed officeholder to act as the head of a federal agency during a vacancy, but that appointment is limited to 210 days unless a permanent replacement is nominated. June 22 would have marked 210 days for Mulvaney.

The nomination came after months of speculation about the Trump Administration’s intentions for the agency, which has been a target of Republican ire since it was created. Trump allies had criticized the leadership of Richard Cordray, the Obama appointee who led the agency from 2011 to 2017, for being too aggressive and hurting small businesses. Under the Congressional Review Act, Congress and Trump reversed two regulations promulgated by Cordray’s CFPB – one prohibiting financial service providers from using arbitration agreements that bar consumers from filing or joining class actions and one regulating indirect auto lenders.

The controversy over the directorship has long been fraught. Critics decry the single director structure as placing too much power in the hands of a single official whose actions are not subject to presidential review. Prior to taking his post at OMB, then-Congressman Mulvaney was particularly critical of the agency and called for its restructuring or abolition. Proponents of the agency argue that insulation from political control is necessary to ensure that the agency acts for consumers instead of industry. Opponents of the agency have challenged the leadership structure, as well as the very existence of the agency, as unconstitutional. Lower courts have issued differing opinions, but in January, the full U.S. Court of Appeals for the D.C. Circuit upheld the agency and its structure as constitutional by a margin of 7-3.

Shortly after the agency launched, President Obama was expected to appoint Warren as Director, but opted to appoint Richard Cordray instead when it appeared she could not secure Senate confirmation. Republican Senate leaders filibustered Cordray’s appointment as well, ultimately leading to the political showdown that ended the application of the filibuster to most presidential nominations.

The dispute took on a new dimension when the President appointed Mulvaney to lead the agency in an acting capacity on November 25, the day Cordray resigned. On his last day in office, Cordray named his chief of staff, Leandra English, to the long-vacant position of Deputy Director so that she could assume leadership until a permanent replacement was confirmed. Trump then promptly named Mulvaney, already serving as the Director of OMB, to simultaneously serve as Acting Director at the CFPB. English sued Mulvaney, unsuccessfully seeking an injunction blocking Mulvaney from taking office, but announced she would drop her suit and resign from the agency after Trump nominated Kraninger. For now, the status quo remains with Mulvaney as Acting Director at CFPB and Director of OMB and Kraninger as Associate Director at OMB.

By Kelly D. Jones

On May 31, 2018, in Scharfstein v. BP West Coast Products, LLC, the Oregon Court of Appeals upheld a 2014 Multnomah County jury verdict (as amended by the trial court judgment) awarding $409 million dollars in statutory damages to a previously certified class of millions of Oregon consumers that were the victims of BP’s unlawful trade practices at its affiliated gas stations in Oregon.  292 Or. App. 69 (2018).

More specifically, the class claims against BP stemmed from BP’s violations of Oregon’s Unlawful Trade Practices Act (UTPA) for overcharging consumers for gas at its affiliated stations in Oregon. BP’s signage advertised the cost of its gas per gallon as a certain amount, but when consumers filled their tanks at BP’s ARCO and ampm stations, and then paid with their debit cards, they were charged an additional unlawful and undisclosed $.35 fee on top of each transaction. The false representations about the true cost of BP’s gas violated ORS 646.608(1)(u) of the UTPA, which provides that a “person engages in an unlawful practice if in the course of the person’s business, vocation or occupation the person * *  * [e]ngages in any other unfair or deceptive conduct in trade or commerce.”

Pursuant to ORS 646.608(4), a private cause of action for violating the “catch all” provision of ORS 646.608(1)(u) must incorporate an associated violation of an administrative rule adopted by the Oregon Attorney General. Relevant to BP’s unlawful conduct in this case, the Attorney General had adopted numerous rules, set forth in OAR chapter 137, division 20, regulating the advertising, and mandating specific notification and display, of gas prices (Gasoline Price Advertising). At the trial stage, pursuant to ORS 646.638(1), the class plaintiff opted for statutory damages of $200 for each class member, rather than the $.35 illegal fees per transaction as actual damages. As required under ORS 646.638(8) to award statutory damages in a class case, the jury found that the class members’ ascertainable loss ($.35 card transaction fee) resulted from BP’s reckless UTPA violation.

Previously, in BP W. Coast Prods., LLP v. Ore. DOJ, 284 Or. App. 723, 725, 396 P.3d 244, 246 (2017), the Oregon Court of Appeals rejected BP’s challenge to the validity of Oregon’s Gasoline Price Advertising Rule (“Rule”).

Broadly stated, BP’s chief assignments of error were that (1) the $.35 card transaction fee did not violate the Rule because the Rule does not prohibit a flat fee that is not part of the price per gallon of gas, (2) in accordance with the Oregon Supreme Court’s holding in Pearson v. Philip Morris, Inc., 358 Or. 88, 90, 361 P.3d 3 (2015) the class should not have been certified (or should have been decertified) because ascertainable loss would have to be proven on an individualized basis through each class member proving that they acted in reliance upon BP’s gas price advertising, and (3) the award based upon $200 statutory damages per class member violated the federal Due Process Clause as it was unconstitutionally excessive.

Essentially, the Court rejected the first grouping of BP’s assignments of error because the Rule was validly enacted as previously decided by the Court in its 2017 decision regarding the Rule, and because the trial court correctly interpreted the Rule and its application to BP’s unlawful fee. The Court rejected BP’s second grouping of assignments of error because the class members’ ascertainable loss of the payment of the unlawful fees does not require that the class members prove reliance on any representation made by BP. The Court dismissed BP’s Due Process Clause challenge to the award of statutory damages as “excessive” because BP did not object to the claim for statutory damages until after the verdict had been rendered and the jury had been discharged.

In a press release after the Court of Appeals ruling was released, BP vowed to appeal the ruling in the Oregon Supreme Court: http://www.oregonlive.com/portland/index.ssf/2018/05/court_upholds_portland_jurys_4.html.

The over $409 million award is thought to be the second-largest jury verdict in Oregon history: https://lcbportland.claims/attorneys.