DOES FRAUD PAY: AN EMPIRICAL ANALYSIS OF ATTORNEY'S FEES PROVISIONS IN CONSUMER FRAUD STATUTESExpressO (2008)
AbstractConsumer fraud (including predatory home loans) is a widespread and serious problem in the United States. To help combat this problem, forty-five states have enacted consumer fraud statutes that provide for attorney’s fees to a prevailing plaintiff to address the economic feasibility problem in bringing a typical consumer fraud claim where the attorney’s fees to litigate the case can exceed the amount they have been damaged by the fraud. Unfortunately, in twenty-three of these state statutes, the attorneys fees to prevailing plaintiffs are not mandated, but at the court’s discretion. We hypothesized that creating this added uncertainty for recovering attorney’s fees, even if the plaintiff wins the case, will significantly reduces the likelihood that a consumer and attorney will bring a meritorious consumer fraud case and tested this hypothesis with a survey of consumers and attorneys. A second problem with the attorney’s fees provisions in many of the state statutes is that they require or potentially provide for the prevailing defendant to recover her attorney’s fees, to discourage frivolous or bad faith claims by plaintiffs. We hypothesized that the presence of the possibility that the defendant will be awarded attorney’s fees will discourage consumers and attorneys from bringing both strong meritorious claims and good faith extension of the law type claims. We tested this hypothesis with our survey of consumers and attorneys as well as the impact of different versions of attorney’s fees provisions among the forty-five states on the willingness of consumers and attorneys to bring bad-faith/frivolous type claims to determine which version is the best at promoting both the primary legislative goals (encouraging meritorious consumer fraud claims, making the consumer whole, and deterring consumer fraud), and the secondary goal of discouraging plaintiffs from bringing frivolous cases. We hope that the results of our survey, fifty-state review of consumer fraud statutes, and proposal for reform will lead many state legislatures to modify their consumer fraud statutes to better encourage and enable consumers and attorneys to bring meritorious consumer fraud cases.
- Consumer Fraud,
- Empirical Study,
- Predatory Lending
Publication DateMarch 18, 2008
Citation InformationDebra P. Stark and Jessica M. Choplin. "DOES FRAUD PAY: AN EMPIRICAL ANALYSIS OF ATTORNEY'S FEES PROVISIONS IN CONSUMER FRAUD STATUTES" ExpressO (2008)
Available at: http://works.bepress.com/debra_stark/1/