The Private Cause of Action Under Maine's Unfair Trade Practices Act

In 1970 the Maine Legislature passed the Unfair Trade Practices Act (UTPA) which declared unlawful any "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce . . . ." UTPA-type statutes, now common to all states, offer several advantages. The statutes provide for a statutory award of attorneys' fees, create a private cause of action which is simple in comparison to analogous common law claims, and offer a flexible concept of unlawful conduct which many courts have shown a willingness to interpret broadly and sympathetically. Although Maine's UTPA was originally hailed as a useful weapon in the fight against consumer fraud, the act has not, in practice, played a significant role in protecting the Maine consumer. Increasing budget restraints at both state and federal levels are shifting the responsibility for consumer protection from the public to the private sector. This circumstance increases the importance of the private cause of action afforded by the UTPA, and requires that the act be used more effectively than it has been in the decade since its passage. Increased awareness of how to make best use of the UTPA's inherent strengths is necessary if the developing need for more effective private action is to be met. Additionally the UTPA in its present form has several inherent weaknesses which have contributed to its underutilization. First, individuals purchasing or leasing for business needs are not afforded the protection of private action under the UTPA, even though they may be victims of abusive trade practices which would give rise to a cause of action for individuals buying for personal, family, or household purposes. Secondly, even individuals who qualify as consumers within the meaning of the statute must suffer a purely "economic loss" if they are to have a remedy under the UTPA. Finally, the UTPA's remedy is restricted to restitution, and has been narrowly interpreted by the Maine Supreme Judicial Court. This Commentator suggests amending the UTPA to extend protection to consumers buying for business needs, changing the "economic loss" requirement to one of "actual harm," and providing a general and punitive damages remedy in lieu of restitution. These revisions would enhance greatly the UTPA's potential for consumer protection.