Maine Unfair Trade Practices Act

This consumer rights chapter describes Maine’s most important consumer law, the Maine Unfair Trade Practices Act.

Maine Unfair Trade Practices Act downloadables

Guide to the Maine Unfair Trade Practices Act

What is the Maine Unfair Trade Practices Act and how can it help you?

The Maine Unfair Trade Practices Act (UTPA)[1] prohibits unfair and deceptive practices in trade or commerce. The Attorney General may investigate and file a lawsuit under this law when they determine that an enforcement action would be in the public interest.[2]

In addition to the Attorney General’s right to bring a lawsuit, you may also have the right to sue,[3] but that right is limited to consumer transactions that are “primarily for personal, family or household purposes.” If you lose money or property as a result of a business’ use of an unfair or deceptive practice, you may file a lawsuit[4] for reimbursement and other remedies. Pursuant to the Maine Statute of Limitations, you may not file a private lawsuit later than 6 years of the unfair or deceptive practice that led to your losses.

The private lawsuit provision is designed to encourage early settlement of disputes by requiring you to give the business a written demand for relief, describing the unfair or deceptive acts complained of and the losses claimed,[5] at least 30 days prior to filing the lawsuit.[6] The demand should be mailed or delivered to the business at the business’s last known address. You should keep a copy of your demand. Failure to give this written demand prior to filing suit could limit your right to attorney’s fees and costs.[7]

The business may make a written settlement offer in response to the demand, which you can accept or decline. If you file a lawsuit and prevail, you may recover attorney’s fees[8] and costs of suit.[9] However, if you decline the business’ settlement offer and later obtain a judgment from the court that is less than the settlement offer, you may not recover attorney’s fees and costs incurred after the date the business made its offer.[10]

[1] 5 M.R.S. §§ 205-A - 214.

[2] 5 M.R.S. § 209.

[3] 5 M.R.S. § 213. While the UTPA is modeled on the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1), there is no federal analog to the private right of action provision.

[4] The lawsuit can be brought in District Court or Superior Court. There is a right to a jury trial in an action brought in Superior Court. 5 M.R.S. § 213(1).

[5] The notice must include a demand for monetary relief and identify any unfair trade practices or deceptive acts.

[6] 5 M.R.S. § 213(1-A).

[7] Failure to give the section 213(1-A) written notice of claim is not a defense to the claim, but it may be raised as a defense to a claim for attorney’s fees.

[8] Attorney fees under the UTPA are analyzed using the same methods as courts use in cases involving the federal civil rights attorney fee provision.

[9] 5 M.R.S. § 213(2).

[10] 5 M.R.S. § 213(1-A).

What Trade Practices Are Unfair?

The Maine UTPA is modeled after the Federal Trade Commission (FTC) Act.[1] Maine law provides that Maine courts are to be guided by the decisions of the federal courts and the FTC in determining whether an act or practice is unfair or deceptive.[2]

The Maine courts have adopted the FTC’s three-part test for unfairness. An act or practice is unfair if the following requirements are met:[3]

It must cause, or be likely to cause, substantial injury to consumers;
It must not be outweighed by countervailing benefits to consumers or competition; and

It must not be reasonably avoidable by consumers.

[1] 15 U.S.C. § 45(a)(1).

[2] See 5 M.R.S. § 207(1).

[3] The sale of defectively constructed houses satisfies the requirements of the unfairness test.

What Trade Practices Are Deceptive?

Maine courts have also adopted the FTC’s test for deception. An act or practice is deceptive if it is a material representation, omission, act or practice that is likely to mislead consumers acting reasonably under the circumstances. “Material” means important to consumers and, hence, likely to affect their choice of, or conduct regarding, a product.

A trade practice may be deceptive, within the meaning of the UTPA even if the defendant had no intent to deceive.

Statutory Violations of the Unfair Trade Practices Act

Often, when enacting a statute that prohibits a particular commercial practice, the Maine Legislature will expressly state that violation of that statute is a violation (or is prima facie, or presumptive, evidence of a violation) of the UTPA. In those instances, evidence of unfairness or deception may not be necessary.

Sample UTPA Demand for Relief Letter

This letter is also available as a downloadable Word document.

Date

Name of Business

Business Address

Dear Business:

Under the provisions of the Maine Unfair Trade Practices Act, 5 M.R.S.§ 213, I hereby make written demand for relief as outlined in that statute.

On or about [date], the following unfair or deceptive act occurred:

[Explain what happened.]

I believe your actions in this matter violate the Maine Unfair Trade Practices Act,

5 M.R.S. § 207. As a result of this unfair or deceptive act or practice, I suffered loss of money or property as follows:

[Indicate money or property (real or personal) loss.]

Therefore, I hereby demand the following relief:

[Indicate the relief, or payment for damages, which you seek.]

The Maine Unfair Trade Practices Act gives you the opportunity to make a good faith written offer of settlement in response to this letter within 30 days. Your failure to do so could subject you to a judgment for actual damages, restitution, an injunction, attorney’s fee and costs if I file a lawsuit.

Sincerely,

Your name

Your address

Your telephone number