Pennsylvania Supreme Court decision may lead to an increased litigation risk for energy suppliers
March 1, 2021
A recent Pennsylvania Supreme Court decision may lead to an increased litigation risk for energy suppliers under Pennsylvania’s consumer protection legislation. The Court’s recent decision in Gregg v. Ameriprise Financial Inc., __ A.3d __, 2021 WL 607488 (Pa. Feb. 17, 2021), found that an actor’s state of mind is not relevant when determining whether there has been “deceptive conduct” in a consumer transaction. Rather, it is only relevant whether the conduct has the potential to deceive or to create a likelihood of misunderstanding in order to establish a violation of the catch-all provision in the Pennsylvania Unfair Trade Practices and Consumer Protection Law.
The Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. §§ 201-1 et seq., is Pennsylvania’s primary consumer protection law. The purpose of the UTPCPL is to prevent “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce…” The statute lists twenty specific practices that are considered unfair or deceptive, and also includes a “catch-all” provision that prohibits “fraudulent or deceptive conduct which creates a likelihood of confusion or misunderstanding.” The term “deceptive conduct” is not defined in the statute.
Gregg involved claims brought by a husband and wife against their financial advisor and other defendants related to their purchase of a life insurance policy and other investment products, including an alleged violation of the UTPCPL’s catch-all provision. In interpreting the catch-all provision, the Court stated that “[t]he plain language of the current statute imposes liability on commercial vendors who engage in conduct that has the potential to deceive and which creates a likelihood of confusion or misunderstanding. That is all that is required.” This interpretation makes the catch-all provision a strict liability offense, in that a business can be guilty of deceptive conduct under the UTPCPL without intentionally or negligently deceiving customers.
While Gregg did not specifically involve energy suppliers, the Court’s decision may increase the likelihood of lawsuits being brought against suppliers under the UTPCPL’s catch-all provision. Now, customers can simply claim that they were confused or did not understand a product or contract to argue that there has been deceptive conduct under the catch-all provision. While there are a number of open questions about how Gregg will be applied, suppliers in Pennsylvania should make efforts to limit their exposure under the UTPCPL.
For a detailed discussion, see Eckert Seamans’ Legal Update on the Gregg decision.
This Eckert Seamans Energy Supplier Litigation Blog is intended to keep readers current on matters affecting businesses and is not intended to be legal advice. If you have any questions regarding the above, please contact Lauren Burge at 412-566-2146 (lburge@eckertseamans.com), or any other attorney at Eckert Seamans with whom you have been working.
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