The Tennessee Consumer Protection Act was enacted in 1977. One of the most significant aspects of the act is the potential to recovery attorneys fees and up to treble damages in the event a party is found guilty of an "unfair or deceptive act or practice." The 2011 tort reform legislation implemented several changes to the TCPA, such as eliminating a private right of action for unfair acts or deceptive practices involving the marketing or sale of securities. The TCPA was also amended to specifically prohibit class action lawsuits for alleged TCPA violations and to exempt the insurance industry from TCPA coverage. The Tennessee Supreme Court had previously interpreted the act to apply to the insurance industry.
The most significant change in 2011 was the elimination of the right to bring a private action for a violation of the "catch-all" provision found at Tenn. Code Ann. ยง 47-18-104(b)(27). This provision makes it a violation of the TCPA to engage "in any other act or practice which is deceptive to the consumer or to any other person." Prior to the effective date of the amendment, this "catch-all" was often used as the basis to allege a TCPA violation where the actions of the defendant did not violate one of the specifically proscribed unfair or deceptive acts listed in the TCPA. The 2011 amendment provides that the "catch-all" provision is now only enforcable by the Tennessee Attorney General.
While the 2011 amendments to the TCPA generated little media attention, they are significant and any party litigating a TCPA claim should take a close look at the amended act and keep in mind that pre-amendment caselaw interpreting the amended provisions may no longer control.
Dan Berexa
Nashville, Tennessee
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