BUSINESS OPPORTUNITY PURCHASERS PROTECTION ACT
State ex rel DeWine v. Maxco Development, Inc., Franklin Cty. Case No. 06 CVH-03-3245, PIF 2960
Defendant violated the Business Opportunity Purchasers Protection Act by: 1) failing to provide purchasers the required ten days to consider the business opportunity agreement prior to execution in violation of R.C. 1334.02(A), 2) making false or misleading statements to purchasers that induced them to enter into the agreement in violation of R.C. 1334.03(B), 3) failing to provide time to review the agreement and applying undue pressure to sign the agreement in violation of R.C. 1334.03(B), 4) making representations that were inconsistent with the disclosures required by R.C. 1334.03(C), 5) failing to integrate material statements and representations into the agreement in violation of R.C. 1334.06(E)(1), and 6) delivering goods and services during the time within which purchasers may cancel the business opportunity in violation of R.C. 1334.06(E)(7). Defendant ordered to pay $35,487.88 in restitution to purchasers and $100,000 as a civil penalty.
State ex rel DeWine v. Job Line, Inc., Hamilton Cty. Case No. 10001111, PIF 2964
Defendants operated an employment referral service and induced consumers to purchase their services by making representations about their ability to provide exclusive information and services to assist consumers in finding jobs with particular rates of pay, benefits, and requisite levels of experience. Defendants committed unconscionable acts and practices in violation of the CSPA by knowingly making misleading statements of opinion on which consumers were likely to rely to their detriment. Defendants committed unfair and deceptive acts and practices in violation of the CSPA by: 1) representing that their services had sponsorship, approval, performance characteristics, uses, benefits, or affiliations which they did not have; 2) representing that employment referrals would be supplied in greater quantity than they intended to provide; and 3) promising prompt delivery of employment related services without taking reasonable action to ensure the delivery of the services as represented. Defendant Stone ordered to pay consumer restitution of $5,960.00 and a civil penalty of $25,000.00 ($20,000.00 suspended).
Milner v. Biggs, S.D. Ohio Case No. 10-904, PIF 2965
Plaintiffs purchased a home that developed mold problems shortly after they moved in. Plaintiff alleged that Defendants failed to provide executed copies of documents signed at the closing and failed to prepare the closing documents in accordance with the purchase contract. The Court granted the Defendants' motion on the pleadings, finding that the services provided in connection with the purchase of real estate were exempt from the CSPA.
FAILURE TO DELIVER
State ex rel DeWine v. Decorate with Style, Inc., Erie Cty. Case No. 2009CV885, PIF 2957
Defendants were engaged in advertising and selling wallpaper and other household decorations. Defendants violated the CSPA by accepting substantial payments from consumers for wallpaper and other household decorations and allowing more than eight weeks to elapse without making delivery of the goods or services ordered or making a full refund of the monies paid.
State ex rel DeWine v. The Game Smith, Franklin Cty. Case No. 10 CVH10-15837, PIF 2961
Defendants were in the business of selling and repairing electronic gaming systems. Defendants committed unfair and deceptive acts and practices in violation of the CSPA by: 1) accepting money from consumers for goods and services and failing to make full delivery or a refund of the monies paid, 2) accepting equipment from consumers for repairs or service and then failing to make the promised repairs and services and failing to return consumers' equipment, and 3) making false and misleading statements regarding their ability to complete the consumer transactions. Defendants order to pay $3,052.76 in consumer restitution and $50,000) in civil penalties.
FAIR DEBT COLLECTION PRACTICES ACT
In re Credit Bureau Collection Services, Inc., AVC No. 361845, PIF 2967
Supplier, a debt collector, agrees to not engage in unfair, deceptive and unconscionable acts in violation of the CSPA in the collection of debts. Supplier agrees to implement Best Practices in the collection of debts in the State of Ohio. Supplier to pay $175,000.00 to the Consumer Protection Enforcement Fund for alleged consumer damages, to be distributed at the Attorney General's sole discretion, and $175,000.00 to the Consumer Protection Enforcement Fund for investigative costs. Editor's Note: see the Assurance for the compliance provisions and a description of the Best Practices.
State ex rel DeWine v. Hixson, Trumbull Cty. Case No. 2009 CV0852, PIF 2963
Defendants violated the CSPA by accepting money from consumers for the construction of decks and failing to deliver the product purchased and failing to refund the money paid by consumers and by constructing decks and other home improvements in a shoddy manner. Defendants to pay $766.00 in consumer restitution, $25,000.00 in civil penalties (suspended), and $5,000.00 in investigative costs ($3,000.00 suspended).
State ex rel DeWine v. Iamurri, Mahoning Cty. Case No. 10 CV 2425, PIF 2966
Defendants committed unfair and deceptive acts and practices in violation of the CSPA by: 1) accepting money from consumers for goods and services and allowing eight weeks to elapse without making delivery of the goods or services, making a full refund, or advising consumers of an extended delay and offering consumers a refund within two weeks if requested; 2) installing driveways and other concrete work in a shoddy and unworkmanlike manner; and 3) continuing to engage in consumer transactions while having numerous unpaid judgments stemming from previous violations of the CSPA. Defendants to pay $15,690 in consumer restitution and $50,000 in civil penalties (suspended).
HOME SOLICITATION SALES ACT
In re Aftermath, Inc., AVC No. 395326, PIF 2958
Supplier offers tragedy and crime scene clean up services to Ohio consumers. Supplier's agreements contain numerous violations of the CSPA and HSSA. Supplier agrees to not engage in unfair and deceptive acts and practices that violate the CSPA, including but not limited to: 1) failing to provide consumers with a choice of estimates and failing to contact consumers for authorization when the cost of repairs or services will exceed the original estimate by ten percent or more; 2) failing to provide consumers, prior to commencing any work, with a form indicating the date, the identity of the supplier, the consumer's name and telephone number, the reasonably anticipated completion date, and, if requested by the consumer, the anticipated cost of the repair or service; 3) making performance of services contingent on or requiring consumers to waive their right to an estimate or any other rights and requirements set forth in OAC 109:4-3-05; 4) limiting the statute of limitations to one year; 5) requiring consumers to waive their consumer protection rights; 6) failing to comply with the Home Solicitation Sales Act, including but not limited to, the three day right to cancel; 7) failing to provide consumers with the proper emergency exemption as required by R.C. 1345.21(A)(5); 8) failing to provide consumers with a notice of the three day right to cancel clearly and conspicuously on the top of the consumer's contract; 9) failing to provide consumers with a pre-completed, easily detachable, notice of cancellation form in duplicate as required by R.C. 1345.23(B)(2); 10) requiring consumers to waive any rights to which they are entitled under R.C. 1345.21 through R.C. 1345.28. Supplier to pay $15,000 ($5,000 suspended) in attorney fees and investigative costs.
State ex rel DeWine v. Sullivan, Cuyahoga Cty. Case No. CV II 756464, PIF 2959
Defendants violated the CSPA by: 1) accepting deposits from consumers without an obligation to refrain from offering the goods for sale to any other person for a specified period of time; 2) failing to provide a written receipt stating clearly and conspicuously the cash selling price and the amount of the deposit, and whether the deposit is refundable and under what circumstances; 3) failing to immediately make available a refund of a consumer's deposit when the consumer's offer was not accepted within four days of delivery of such deposit; 4) failing to file an application of certificate of title within 30 days after the assignment or delivery of a motor vehicle; 5) charging a documentary service fee in a motor vehicle transaction that exceeded ten percent of the amount the buyer was required to pay pursuant to the contract, excluding tax, title and registration fees, and any negative equity adjustment; 6) failing to send a notice setting forth specifically the circumstances constituting a default within five days after repossessing a consumer's motor vehicle; 7) failing to dispose of a consumer's vehicle after repossession in a commercially reasonable manner, and failing to provide a notice to the consumer at least ten days prior to disposition of the collateral stating the time and place the collateral would be sold and the minimum price for which such collateral would be sold, together with a statement that the debtor could be held liable for any deficiency resulting from the sale; 8) representing that a consumer transaction involved a warranty and then failing to honor such warranty; and 9) engaging in consumer transactions while having unsatisfied judgments arising out of previous consumer transactions. Defendants ordered to pay $4,453.79 in consumer restitution and $5,000 in civil penalties ($3,500 suspended).
Wallace v. The Ganley Auto Group (Cuyahoga Cty.), 2011-Ohio-2909, PIF 2962
The Court of Appeals upheld the trial court's order staying the case pending arbitration of the Plaintiffs' claims. The Court found that the arbitration agreement's prohibition on class action arbitration was permitted under the Supreme Court's ruling in AT&T v. Concepcion. Further, the Court found that the arbitration agreement was neither substantively nor procedurally unconscionable. The Court found that the agreement contained sufficient information regarding the arbitration process so that the Plaintiffs were made aware of the terms to which they were agreeing and that, since Ganley was undertaking to pay the fees associated with the arbitration process, there were no undisclosed fees. The fact that the parties were in unequal bargaining positions was not, by itself, sufficient to find that the arbitration agreement was procedurally unconscionable. The arbitration agreement was clearly laid out to the consumers; it was printed in red ink on the first page of the contract and certain terms were in all capitals. The Court found that Ganley had no duty to point out or explain the arbitration agreement. Finally, the Court found that the arbitration agreement applied to Plaintiffs' claims, even though they were related to representations that were made prior to entering into the contract. The Court found that Plaintiffs' allegations arose from the formation of the purchase agreement and, as such, were covered under the arbitration agreement.
State ex rel DeWine v. GlaxoSmithKline, LLC, Lucas Cty. Case No. CI-2011-3928, PIF 2956
Defendants shall not make any written or oral claim for the covered products that is false, misleading, or deceptive, shall not represent that the covered products have sponsorship, approval, characteristics, ingredients, uses, benefits, quantities, or qualities that they do not have, and shall not cause the likelihood of confusion or of misunderstanding as to the covered products' source, sponsorship, approval, or certification. Defendants to pay $40.75 million to be divided among the participating states.
State ex rel DeWine v. Auto Repair Warranty, Crawford Cty. Case No. CV 10 725427, PIF 2955
Defendants marketed automobile service contracts to consumers as warranties and represented that the service contracts had qualities and properties which they did not have. It is an unfair and deceptive act or practice in violation of the CSPA for a supplier to: 1) make false claims in advertising and cause consumers to believe such claims are true, 2) represent that service contracts have performance characteristics, accessories, uses, or benefits which they do not have, 3) represent that service contracts are of a particular standard, quality, grade, style, prescription, or model when such was not the truth, 4) represent that service contracts involved warranties when that representation is false, 5) accept substantial payments from consumers for service contracts and fail to deliver the goods or services paid for or return the monies paid in violation of OAC 109:4-3-09(A); or 6) provide inadequate and unfair customer service. It is an unconscionable act or practice in violation of the CSPA for a suppler to: 1) enter into consumer transactions while knowing of the consumer's inability to receive a substantial benefit from the subject of the consumer transaction, 2) enter into consumer transactions on terms which the supplier knows to be substantially one sided in favor of the supplier, or 3) make false or misleading statements regarding the service contracts sold to consumers. Defendants are each ordered to pay a $100,000 ($95,000 suspended) civil penalty and $500 in attorney fees.