Hohenberg v. Ferrero USA, Inc

Filing 83

RESPONSE in Support re 51 MOTION for Class Certification filed by Athena Hohenberg, Laura Rude-Barbato. (Attachments: # 1 Declaration of Melanie Persinger in Support of Motion for Class Certification, # 2 Exhibit 1 (Redacted excerpts from Deposition Transcript of Connie Evers), # 3 Exhibit 1 (Redacted excerpts from Deposition Transcript of Bernard Kreilmann, # 4 Exhibit 3 (Ferrero Response to Interrogatory No. 4), # 5 Exhibit 4 (Aspen Logistics Item # 89371), # 6 Exhibit 5 (Multi-State Conflicts Analysis))(Fitzgerald, John) (ag).

EXHIBIT 5

ALABAMA
Did Ferrero’s conduct
violate the consumer
protection law?
CA
AL

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
Ala. Code § 8-19-5(5);
(7); (27)

Yes
Yes1

No
Yes2

No
No3

Does the law
prohibit
material
omissions?
Yes
Yes4

Are there any true conflicts of substantive law?
Yes, Alabama requires some knowledge of false or deceptive conduct by defendant.

1

Ala. Code § 8-19-10.

2

See Gerald Duncan Auto Sales v. Russell, 181 B.R. 616, 622 (M.D. Ala. 1995)
(Deceptive Trade Practices Act requires “[e]ither actual awareness or such awareness as a
reasonable person should have considering all the surrounding circumstances,” citing Ala. Code
§ 8-19-3(4)); Sam v. Beaird, 685 So. 2d 742, 744 (Ala. Ct. App. 1996) (“ADTPA is generally
written to require some knowledge of false or deceptive conduct on the part of the wrongdoer.”);
Ala. Code § 8-19-13 (defense to action includes that person did not knowingly engage in
violation).
3

No state case law or statutory language found. But see Ala. Code § 8-19-6 (due
consideration and great weight shall be given where applicable to interpretations of the Federal
Trade Commission and the federal courts relating to Section 5(a)(1) of the Federal Trade
Commission Act, 15 U.S.C. § 45(a)(1)); see FTC v. Tashman, 318 F.3d 1273, 1277 (11th Cir.
2003); McGregor v. Chierico, 206 F.3d 1378, 1388 (11th Cir. 2000).
4

Ala. Code § 8-19-6 (due consideration and great weight shall be given where applicable
to interpretations of the Federal Trade Commission and the federal courts relating to Section
5(a)(1) of the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1)). See FTC v. Accent Mktg.,
Inc., 2002 U.S. Dist. LEXIS 12545, at *4 (S.D. Ala. 2002) (“The FTC Act prohibits the use of
unfair or deceptive acts or practices . . . a representation is deceptive if it contains a material
claim or omission that is reasonably likely to mislead consumers actin reasonably under the
circumstances to their detriment. A representation or omission is material if it is of the kind
usually relied upon by a reasonably prudent person.”). See also Ala. Code § 8-19-5(12), (22)
(setting forth misrepresentations by omission prohibited in specific circumstances not applicable
here, i.e., relating to goods damaged by flood, water, fire or accident, and damaged automobiles).
-1-

ALASKA
Did Ferrero’s conduct
violate the consumer
protection law?
CA
AK

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
Alaska Stat. §
45.50.471(b)(4), (6),
(11), (12)

Yes
Yes5

No
No6

No
No6

Does the law
prohibit
material
omissions?
Yes
Yes7

Are there any true conflicts of substantive law?
No.

5

Alask. Stat. § 45.50.531.

6

Alaska Rent-A-Car, Inc. v. Cendant Corp., 2007 U.S. Dist. LEXIS 55474, at *67 (D.
Alaska July 27, 2007) (under Alaska Unfair Trade Practices & Consumer Protection Act, Alaska
Stat. § 45.50.471 et seq., “Actual injury as a result of the deception is not required. Intent to
deceive need not be proved. All that is required is a showing that the acts and practices were
capable of being interpreted in a misleading way.” (quoting State of Alaska v. O’Neill
Investigations, Inc., 609 P.2d 520, 535 (1980)).
7

Alaska Stat. § 45.50.471(b)(12) (omission).
-2-

ARIZONA
Did Ferrero’s conduct
violate the consumer
protection law?
CA
AZ

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
Ariz. Rev. Stat. Ann §
44-1522

Yes
Yes8

No
No9

No
Probably
not10

Does the law
prohibit
material
omissions?
Yes
Yes11

Are there any true conflicts of substantive law?
There is conflicting authority, but probably not.
As Arizona’s Supreme Court explained, the purpose of Arizona’s Consumer Fraud Act
“is to provide injured consumers with a remedy to counteract the disproportionate bargaining
power often present in consumer transactions. The legislative intent behind the Consumer Fraud
Act is to provide consumers with a claim for relief that is easier to establish than common law
fraud. To require high proof would frustrate the legislative intent.” Dunlap v. Jimmy GMC of
Tuscon, Inc., 666 P.2d 83 (Ariz. App. 1983); see also accord Cearley v. Wieser, 151 Ariz. 293
(Ariz. Ct. App. 1986) (Consumer Fraud Act is much broader in scope than any common law
action for fraud and elements for a claim for relief are not necessarily identical to elements of a
common law fraud action).
While reliance is required according to some cases, see Kuehn v. Stanley, 208 Ariz. 124,
129 (Ariz. Ct. App. 2004),12 it can be unreasonable. Id.; Holeman v. Neils, 803 F. Supp. 237, 242
(D. Ariz. 1992) (same).

8

Palmer v. Web Indus., 2007 U.S. Dist. LEXIS 1959, at *17 (D. Ariz. Jan. 8, 2007)
(“The Arizona “Consumer Fraud Act provides an injured consumer with an implied private right
of action against the violator of the act.”); Holeman v. Neils, 803 F. Supp. 237, 242 (D. Ariz.
1992) (same).
9

Ariz. Rev. Stat. Ann § 44-1522(A) (omitting intent requirement for misrepresentations,
and requiring only “intent that others rely” with respect to any “concealment, suppression or
omissions of material fact”).
10

Ariz. Rev. Stat. Ann § 44-1522(A) (volition occurs “whether or not any person has in
fact been misled, deceived or damaged thereby”); see generally id. § 44-1522(C) (“It is the intent
of the legislature, in construing subjection A, that the courts may use as a guide interpretations
given by the federal trade commission and the federal courts to 15 [U.S.C. §§] 45, 52 and
55(a)(1).”).
11

Ariz. Rev. Stat. Ann § 44-1522(A)

12

See Ferrero Opp. at 5 n.4 (relying on Kuehn).
-3-

; Correa v. Pecos Valley Development Corp., 126 Ariz. 601, 605 (Ariz. Ct. App. 1980);
Palmer, 2007 U.S. Dist. LEXIS 1959, at *17-18. Moreover, reliance is not required in an action
brought by the attorney general. See Corbin v. Tolleson, 10 Ariz. 385, 773 (Ct. App. 1989)
(“Reliance is not an element of consumer fraud.”).
Similar to California’s law, however, proof of reliance may not be an absolute
requirement on a plaintiff’s part, but rather may be one means of proving that harm to the
consumer was caused by the commission of the prohibited marketing conduct. See Correa, 126
Ariz. at 605 (“The requisites of a private cause of action for a statutory fraud are a false promise
or a misrepresentation made in connection with the sale or advertisement of merchandise and the
consumer’s consequent and proximate injury.”).
In a 2001 decision, Judge Roll discussed the disparity between the case law and
Consumer Fraud Act’s plain language and legislative history, in the context of proof required to
maintain a class action under the Act. Siemer v. Assocs. First Capital Corp., 2001 U.S. Dist.
LEXIS 12810, at *7-15 (D. Ariz. Mar. 30, 2001). While Judge Roll concluded that reliance must
be shown in a private right of action, class action plaintiffs:
readily show[] reliance by purchasing the [product at issue]. . . . The ACFA
requires that Plaintiffs demonstrate a proximate cause between their injuries and
the damages suffered due to their reliance on Defendants’ misrepresentations.
Under the proposed definition defining the class, a person cannot be a plaintiff
unless that person was sold the [product]. Therefore, in order to even join the
class, a party must show that, he or she relied on [defendant’s] alleged
misrepresentations. Plaintiffs have sufficiently demonstrated reliance by their
purchase of [the product]. This alone is sufficient to show reliance to the degree
necessary under the ACFA.
Id. at *14-15.13 Thus, Arizona’s law seems in accord with California’s—while the named
plaintiffs must show their own reliance, where even unreasonable reliance suffices, that is also
sufficient evidence of absent class members’ reliance.
In sum, Arizona does not make reliance an absolute sine qua non for a statutory fraud
cause of action under the Consumer Fraud Act when, like California, the causal connection to the
misconduct can be established by means other than individualized proof of reliance.

13

But see Stratton v. Am. Med. Sec., Inc., 266 F.R.D. 340, 349-50 (D. Ariz. 2009)
(distinguishing Siemer in cases where individual proof of reliance would be required because
there is insufficient evidence that “Defendants made common . . . representations to the class,”
but agreeing “[a] class action may be suitable [under the ACFA] when defendants perpetrated a
fraud on numerous persons by the use of similar misrepresentations”).

-4-

ARKANSAS
Did Ferrero’s conduct
violate the consumer
protection law?
CA
AR

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
Ark. Code Ann. § 4-88107(a)(1), (10); § 4-88108

Yes
Yes14

No
Yes15

No
No16

Does the law
prohibit
material
omissions?
Yes
Yes17

Are there any true conflicts of substantive law?
Yes, false representations must be made knowingly.

14

Ark. Code Ann. § 4-88-113(f).

15

Ark. Code Ann. § 4-88-107(a)(1) (“knowingly”).

16

No state case law or statutory language found indicating that reliance is a required
element. Section 4-88-113(f) requires “actual damage or injury” for a private cause of action.
17

Ark. Code Ann. § 4-88-108(2) (“knowingly”).
-5-

COLORADO
Did Ferrero’s conduct
violate the consumer
protection law?
CA
CO

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
Colo. Rev. Stat. Ann. §
6-1-105(e), (g)

Yes
Yes18

No
Yes19

No
No20

Does the law
prohibit
material
omissions?
Yes
Yes21

Are there any true conflicts of substantive law?
Yes, violations require knowing misrepresentation and omissions require intent to induce
consumer to enter into transaction.

18

Colo. Rev. Stat. Ann. § 6-1-113.

19

Colo. Rev. Stat. Ann. § 6-1-105(e) (“knowingly”); § 6-1-105(g) (“knows or should
know”); § 6-1-105(u) (“intended”).
20

Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining, Inc., 62 P.3d 142, 147
(2003) (“false representation” under Colo. Rev. Stat. Ann. § 6-1-105(e) “must either induce a
party to act, refrain from acting, or have the capacity or tendency to attract consumers”).
21

Colo. Rev. Stat. Ann. § 6-1-105(u).
-6-

CONNECTICUT
Did Ferrero’s conduct
violate the consumer
protection law?
CA
CT

Private cause
of action?

Yes
Yes
Yes
Yes22
Conn. Gen. Stat. Ann. §
42-110b

Scienter
requirement?

Individual
Reliance

No
No23

No
No24

Does the law
prohibit
material
omissions?
Yes
Yes25

Are there any true conflicts of substantive law?
No. Ferrero’s reliance on Izzarelli v. R.J. Reynolds Tobacco Co., 117 F. Supp. 2d 167 (D.
Conn. 2000), Opp. at 5 n.17, is misplaced—even that court held “Under the CUTPA, if the
message is false, then it is a deceptive act without inquiry into whether the consumer actually
believed the message or whether the consumer acted reasonably in relying on it.” Id. at 176.

22

Conn. Gen. Stat. Ann. § 42-110g.

23

Martin, Lucas & Chioffi, LLP v. Bank of Am., 714 F. Supp. 2d 303, 317 (D. Conn.
2010) (“[A] malicious intent is not necessarily required for a CUTPA claim.”); Halo Tech.
Holdings, Inc. v. Cooper, 2010 U.S. Dist. LEXIS 31592, at *15 (D. Conn. Mar. 31, 2010);
Calandro v. Allstate Ins. Co., 63 Conn. App. 602, 616 (2001) (“[O]ur law does not require [a
party] to prove that [another party] acted with an intent to deceive or with an illicit motive.”);
Munz v. Kraus, 59 Conn. App. 704, 713 (2000) (“CUTPA . . . does not require proof of intent to
deceive, mislead, or defraud.”).
24

Wilson v. DirectBuy, Inc., 2011 U.S. Dist. LEXIS 51874, at *42 (D. Conn. May 16,
2011) (“Plaintiffs need not prove reliance [under CUTPA],” quoting Aurigemma v. Arco
Petroleum Prods. Co., 734 F. Supp. 1025, 1029 (D. Conn. 2009), and comparing to California
UCL, citing In re Tobacco II Cases, 46 Cal. 4th 298, 326-27 (2009)); Prishwalko v. Bob Thomas
Ford, Inc., 33 Conn. App. 575, 583 (1994).
25

Nygren v. Greater N.Y. Mut. Ins. Co., 2009 U.S. Dist. LEXIS 26078, at *29-30 (D.
Conn. Mar. 27, 2009); Packer v. SN Servicing Corp., 2008 U.S. Dist. LEXIS 9017, at *30 (D.
Conn. Feb. 7, 2008) (“Whether a defendant’s actions or omissions violate CUTPA is generally a
question for the jury.”).
-7-

DELAWARE
Did Ferrero’s conduct
violate the consumer
protection law?
CA
DE

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
6 De. Code § 2513(a)

Yes
Yes26

No
No27

No
No28

Does the law
prohibit
material
omissions?
Yes
Yes29

Are there any true conflicts of substantive law?
No.

26

6 De. Code § 2525(a); Young v. Joyce, 351 A.2d 857, 859 (Del. 1975).

27

6 De. Code § 2513(a) (omitting intent requirement for misrepresentations, and
requiring only “intent that others rely” with respect to omissions); Stephenson v. Capano Dev.,
Inc., 462 A.2d 1069, 1074 (Del. 1983) (Under the Consumer Fraud Act, “[t]he defendant need
not have intended to misrepresent or to make a deceptive or untrue statement.”); Brandywine v.
Volkswagen, Ltd. v. State, 312 A.2d 632, 634 (Del. 1973).
28

6 De. Code § 2513(a) (enumerated acts are unlawful “whether or not any person has in
fact been misled, deceived or damaged thereby”); Stephenson, 462 A.2d at 1074.
29

6 De. Code § 2513(a) (specifically including “concealment, suppression, or omission
of any material fact”); Brandywine, 312 A.2d at 634 (failure to disclose can constitute a
misrepresentation).
-8-

DISTRICT OF COLUMBIA
Did Ferrero’s conduct
violate the consumer
protection law?
CA
DC

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
D.C. Code § 283904(e)-(f)

Yes
Yes30

No
No31

No
No32

Does the law
prohibit
material
omissions?
Yes
Yes33

Are there any true conflicts of substantive law?
No.

30

D.C. Code § 28-3905(k)(1)-(2).

31

Fort Lincoln Civic Ass’n v. Fort Lincoln New Town Corp., 944 A.2d 1055, 1073 &
n.20 (D.C. Ct. App. 2008) (“[W]e now hold that a [plaintiff] need not allege or prove intentional
misrepresentation or failure to disclose to prevail on a claimed violation of § 28-3904(e) or (f) of
the CPPA.”).
32

D.C. Code § 28-3904 (“It shall be a violation of this chapter, whether or not any
consumer is in fact misled, deceived or damaged thereby”).
33

D.C. Code § 28-3904(f); Miniter v. Sun Myung Moon, 736 F. Supp. 2d 41, 48 (D.D.C.
2010) (“to state a claim based on an unfair trade practice, the plaintiff must allege that the
defendant made a material misrepresentation or omission that has a tendency to mislead,”
quoting Alicke v. MCI Commc’ns Corp., 111 F.3d 909, 912 (D.C. Cir. 1997)).
-9-

FLORIDA
Did Ferrero’s conduct
violate the consumer
protection law?
CA
FL

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
Fla. Stat. § 501.204(1)

Yes
Yes34

No
No35

No
No36

Does the law
prohibit
material
omissions?
Yes
Yes37

Are there any true conflicts of substantive law?
No. Ferrero’s reliance on Davis v. Powertel, Inc., 776 So. 2d 971 (Fla. Ct. App. 2000),
see Opp. at 5 n.4, is misplaced. See id. at 974 (“The standard does not require subjective
evidence of reliance, as would be the case with a common law action for fraud.”).
34

Fla. Stat. § 501.211(2); Furmanite Am., Inc. v. T.D. Williamson, Inc., 506 F. Supp. 2d
1134, 1145 (M.D. Fla. 2007); Lady of Am. Franchise Corp. v. Arcese, 2006 U.S. Dist. LEXIS
68415, at *25-26 (S.D. Fla. May 25, 2006) (citing Nieman v. Dryclean U.S.A. Franchise Co.,
Inc., 178 F.3d 1126, 1128-29 (11th Cir. 1999).
35

Gavron v. Weather Shield Mfg., 2011 U.S. Dist. LEXIS 50523, at *13 (S.D. Fla. May
10, 2011) (“[T]he Florida Supreme Court teaches that a deceptive act occurs [under FDUTPA]
when there is a representation, omission, or practice that is likely to mislead the consumer acting
reasonably in the circumstances, to the consumer’s detriment. Thus, the Act focuses on whether
an act is deceptive, not whether a defendant knew that the allegedly violate conduct was
occurring.” (quotations marks and citations omitted)); see also W.S. Baddock Corp. v. Myers,
696 So. 2d 776, 779 (Fla. App. 1996) (“A finding of fraud is not necessary to sustain a violation
under the [F]DUTPA.”).
36

Bookworld Trade, Inc. v. Daughters of St. Paul, Inc., 532 F. Supp. 2d 1350, 1364
(M.D. Fla. 2007) (the “deceptive act” element of a claim under FDUTPA “although it is similar
to a claim of fraud, [] is different in that, unlike fraud, a party asserting a deceptive trade practice
claim need not show actual reliance on the representation or omission at issue.”); Davis v.
Powertel, Inc., 776 So. 2d 971, 974 (Fla. App. 2000) (relevant question is not whether plaintiff
relied on deceptive practice but whether it is likely to deceive); Latman v. Costa Cruise Lines,
N.V., 758 So. 2d 699, 703 (Fla. App. 2000) (individual showings of reliance and damages not
necessary in class action context)
37

Fla. Stat. § 501.204(2) (“Due consideration and great weight shall be given to the
interpretations of the Federal Trade Commission and the federal courts relating to sec. 5(a)(1) of
the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1)”); see 15 U.S.C. § 45(a)(1) (“Unfair
methods of competition in or affecting commerce, and unfair or deceptive acts or practice in or
affecting commerce, are hereby declared unlawful”). This FTC language covers omissions. See,
e.g., FTC v. World Travel Vacation Brokers, Inc., 861 F.2d 1020, 1029 (7th Cir. 1988); FTC v.
Wilcox, 926 F. Supp. 1091, 1098 (S.D. Fla. 1995). Accord Bookworld, 532 F. Supp. 2d at 1364
(deceptive act occurs under FDUTPA when there is an “omission . . . that is likely to mislead
consumers acting reasonably in the circumstances”).
- 10 -

GEORGIA
Did Ferrero’s conduct
violate the consumer
protection law?
CA
GA

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
Ga. Code. Ann. § 10-1370, § 10-1-393(a)

Yes
Yes38

No
No39

No
Yes40

Does the law
prohibit
material
omissions?
Yes
Yes41

Are there any true conflicts of substantive law?
Yes, Georgia requires a showing of individual reliance.

38

Ga. Code. Ann. § 10-1-373(a) and § 10-1-393(a).

39

Regency Nissan v. Taylor, 194 Ga. App. 645, 647 (1990) (“The FBPA ‘abandons the
two elements of the common law [tort of misrepresentation] most difficult to prove, scienter
(knowledge of the deception) and intent to deceive.’” (citation omitted, alteration in original)).
40

Lynas v. Williams, 216 Ga. App. 434, 437 (1997) (“The Fair Business Practices Act
incorporates the ‘reliance’ element of common law tort of misrepresentation into the causation
element of a FBPA claim.”); Tiismann v. Linda Martin Homes Corp., 268 Ga. App. 787, 790
(2004) (same).
41

See Regency Nissan, 194 Ga. App. at 648 (“the question of whether a particular act or
omission . . . constitutes unfair or deceptive acts or practices within the meaning of . . . § 10-1393 generally is for jury resolution.” (citation omitted)). In addition, the FBPA is modeled on the
FTC Act.
- 11 -

HAWAII
Did Ferrero’s conduct
violate the consumer
protection law?
CA
HI

Private cause
of action?

Yes
Yes
Yes
Yes42
Haw. Rev. Stat. §§ 4802(a), 481A-3

Scienter
requirement?

Individual
Reliance

No
No43

No
No44

Does the law
prohibit
material
omissions?
Yes
Yes45

Are there any true conflicts of substantive law?
No. Ferreo relies on Sambor v. Omina Credit Servs., 183 F. Supp. 2d 1234 (D. Haw.
2002), Opp. at 5 n.4, but it is inapposite, only holding that a plaintiff could not obtain statutory
damages without actual damages under § 480-13 (providing a private cause of action). See id. at
1244-45 & n.12. It did not change the objective test under § 480-2(a). Accord Ameron Int'l Corp.
v. Am. Home Assur. Co., 2011 U.S. Dist. LEXIS 61486, at *28 (C.D. Cal. June 6, 2011) (“the
application of California law will not substantially impair Hawaii's interests”).
42

Haw. Rev. Stat. §§ 480-2(d), 480-13; Hoilien v. Bank of Am., 2011 U.S. Dist. LEXIS
89155, at *23-24 & n.10 (Aug. 10, 2011).
43

Courbat v. Dahana Ranch, Inc., 111 Haw. 254, 262 n.9 (2006) (“in order to establish a
violation of HRS § 480-2, the plaintiff need not establish an intent to deceive on the part of
defendant” (citation omitted)); see generally Haw. Rev. Stat. §§ 480-2 & 481A-4.
44

Courbat, 111 Haw. at 262 (the test under § 480-2 “is an objective one, turning on
whether the act or omission is ‘likely to mislead consumers’” (citation omitted)); see also
Yokoyama v. Midland Nat’l Life Ins. Co., 594 F.3d 1087, 1098 (9th Cir. 2009) (Under § 480-2,
“actual reliance need not be established. Accordingly, there is no reason to look at the
circumstances of each individual purchase in this case, because the allegations of the complaint
are narrowly focused on allegedly deceptive provisions of Midland’s own marketing brochures,
and the fact-finder need only determine whether those brochures were capable of misleading a
reasonable consumer.”).
45

Tachibana v. Colo Mt. Dev., Inc., 2011 U.S. Dist. LEXIS 37599, at *20 (D. Haw. Apr.
5, 2011) (“Deceptive practices under § 480-2 include ‘acts that mislead consumers,’ such as
representations or omissions that are likely to mislead reasonable consumers, where the
misrepresentation or omission is material.”); see generally Haw. Rev. Stat. §§ 480-2(b) (“The
courts . . . shall give due consideration to the rules, regulations, and decisions of the Federal
Trade Commission and the federal courts interpreting section 5(a)(1) of the Federal Trade
Commission Act (15 U.S.C. 45(a)(1))”). See 15 U.S.C. § 45(a)(1) (“Unfair methods of
competition in or affecting commerce, and unfair or deceptive acts or practice in or affecting
commerce, are hereby declared unlawful”). This FTC language covers omissions. See, e.g., FTC
v. World Travel Vacation Brokers, Inc., 861 F.2d 1020, 1029 (7th Cir. 1988); FTC v. Wilcox, 926
F. Supp. 1091, 1098 (S.D. Fla. 1995).
- 12 -

IDAHO
Did Ferrero’s conduct
violate the consumer
protection law?
CA
ID

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
Idaho Code §§ 48603(5),(7), (17) & (18)

Yes
Yes46

No
No47

No
No48

Does the law
prohibit
material
omissions?
Yes
Yes49

Are there any true conflicts of substantive law?
No.

46

Idaho Code §§ 48-608, 48-619.

47

State v. Edwards, 233 B.R. 461, 470 (D. Idaho 1999) (Under ICPA, “[i]t is not
necessary to prove actual intent to deceive or actual deception on behalf of the defendant as long
as a tendency or capacity to mislead consumers has been established.” (citing Kidwell v. Master
Distribs., 101 Idaho 47 (1980)); Beach v. Bank of Am., 447 B.R. 313, 319 n.4 (D. Idaho 2011)
(“[N]either reliance by an injured party nor the offending party’s intention to deceive must be
demonstrated in a successful ICPA claim.”).
48

Beach, 447 B.R. 313 at 319 n.4.

49

Idaho Code §§ 48-604(1) (“[I]n construing this act due consideration and great weight
shall be given to the interpretation of the federal trade commission and the federal courts relating
to section 5(a)(1) of the federal trade commission act (15 U.S.C. 45(a)(1))”); see 15 U.S.C. §
45(a)(1) (“Unfair methods of competition in or affecting commerce, and unfair or deceptive acts
or practice in or affecting commerce, are hereby declared unlawful”). This FTC language covers
omissions. See, e.g., FTC v. World Travel Vacation Brokers, Inc., 861 F.2d 1020, 1029 (7th Cir.
1988); FTC v. Wilcox, 926 F. Supp. 1091, 1098 (S.D. Fla. 1995).
- 13 -

ILLINOIS
Did Ferrero’s conduct
violate the consumer
protection law?
CA
IL

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
815 ILCS 505/2

Yes
Yes50

No
No51

No
No52

Does the law
prohibit
material
omissions?
Yes
Yes53

Are there any true conflicts of substantive law?
No.

50

A private right of action may be sustained where a plaintiff demonstrates she suffered
actual damages. See Schilke v. Wachovia Mortg., FSB, 2011 U.S. Dist. LEXIS 110274, at *34-36
& n. 5 (N.D. Ill. Sept. 28, 2011); LG Elecs. U.S.A., Inc. v. Whirlpool Corp., 2011 U.S. Dist.
LEXIS 88932, at *10 (N.D. Ill. Aug. 10, 2011) (“The Illinois Supreme Court was . . . clear in its
holding that ‘a plaintiff may pursue a private cause of action under the Consumer Fraud Act if
the circumstances that relate to the disputed transaction occur primarily and substantially in
Illinois[,]’” quoting Avery v. State Farm Mut. Auto Ins. Co., 216 Ill. 2d 100, 128 (2005)
(explaining focus should be on “site of injury or deception”).
51

815 ILCS 505/2 (omitting intent requirement for misrepresentations, and requiring only
“intent that others rely upon” any “concealment, suppression or omissions of . . . material fact”);
see also Preston v. Kruezer, 641 F. Supp. 1163, 1168 (N.D. Ill. 1986) (“A defendant’s state of
mind is immaterial under the Consumer Fraud Act: ‘a defendant need not be motivated by an
intent to deceive.’” (citing Warren v. LeMay, 142 Ill. App. 3d 550, 566 (1986)); Hoke v. Beck,
224 Ill. App. 3d 674, 679 (1992) (“The ‘intent’ required by the [Consumer Fraud Act] is only the
intent that the plaintiff in the primary action rely on the information that defendant gave him, as
opposed to any intent on the defendant’s part to deceive.”); Mackinac v. Arcadia Nat’l Life Ins.
Co., 271 Ill. App. 3d 138, 141-42 (1995) (“The element of intent is relaxed under the Act and
does not mandate that defendant have intended to induce plaintiff’s reliance.”).
52

Oshana v. Coca-Cola Co., 225 F.R.D. 575, 583 (N.D. Ill. 2005) (“Under the Consumer
Fraud Act, a plaintiff must establish proximate cause, but proof of reliance is not required.”
(citations omitted)); Saltzman v. Pella Corp., 257 F.R.D. 471, 480 (N.D. Cal. 2009) (“it is not
necessary . . . to show actual reliance in order to state a valid claim based on an omission or
concealment under the Consumer Fraud Act.” (quoting Lipinski v. Martin J. Kelly Oldsmobile,
Inc., 325 Ill. App. 3d 1139, 1145 (2001)); see also J.C. Whitney & Co. v. Renaissance Software
Corp., 2000 U.S. Dist. LEXIS 6180, at *44-45 (N.D. Ill. Apr. 21, 2000).
53

815 ILCS 505/2.
- 14 -

INDIANA
Did Ferrero’s conduct
violate the consumer
protection law?
CA
IN

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
Ind. Code § 24-5-0.53(a)(1)-(2)

Yes
Yes54

No
No55

No
Yes56

Does the law
prohibit
material
omissions?
Yes
No57

Are there any true conflicts of substantive law?
Yes, Indiana requires reliance and does not prohibit material omissions.

54

Ind. Code § 24-5-0.5-4(a)-(b).

55

Young v. Harbor Motor Works, Inc., 2008 U.S. Dist. LEXIS 111909, at *16 (N.D. Ind.
Dec. 18, 2008) (“intent to defraud or mislead is a required element of an ‘incurable’ deceptive
act, although it is not required for other deceptive acts”); McKinney v. State, 693 N.E.2d 65, 69
(Ind. 1998) (“the legislature did not make intent a requirement of every ‘deceptive act’ under the
Act”).
56

Ind. Code § 24-5-0.5-4(a).

57

Ind. Code § 24-5-0.5-3(a) (referring to oral or written representations only).
- 15 -

IOWA
Did Ferrero’s conduct
violate the consumer
protection law?
CA
IA

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
Iowa Code § 714.16

Yes
No58

No
No59

No
No60

Does the law
prohibit
material
omissions?
Yes
Yes61

Are there any true conflicts of substantive law?
Yes, Iowa provides no private cause of action to consumers.

58

See Iowa Code § 714.16(7); Molo Oil Co. v. River City Ford Truck Sales,578 N.W.2d
222, 228 (Iowa 1998).
59

Iowa Code § 714.16(7).

60

Iowa Code § 714.16(7).

61

Iowa Code § 714.16(2)(a).
- 16 -

KANSAS
Did Ferrero’s conduct
violate the consumer
protection law?
CA
KS

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
Kan. Stat. Ann. § 50626

Yes
Yes62

No
No63

No
No64

Does the law
prohibit
material
omissions?
Yes
Yes65

Are there any true conflicts of substantive law?
No.

62

Kan. Stat. Ann. § 50-634(c)-(d) (permitting private right of action, which may be
brought as a class action, for injunctive relief, or for damages for any violation of Kan. Stat. Ann.
§ 50-626).
63

Moore v. Bird Engineering Co., 273 Kan. 2 (2002) (upholding lower court decision
that acts prohibited under Kan. Stat. Ann. § 50-626(b)(1) (which prohibits certain
“[r]epresentations made knowingly or with reason to know”) does not require that defendant
have an intent to deceive, as required by other subsections of the Act); accord Unruh v. Purina
Mills, LLC, 2008 Kan. App. Unpub. LEXIS 442, at *21 (Kan. Ct. App. June 27, 2008) (not
designated for publication) (Malone, J. concurring in part and dissenting in part) (“[T]he
Kansans Supreme Court has held that under K.S.A. 50-626(b)(1), intent to deceive is not an
element necessary to prove a deceptive act or practice. It is sufficient to prove that the
representation was made ‘knowingly or with reason to know,’” quoting Moore).
64

Kan. Stat. Ann. § 50-626(a)-(b).

65

Kan. Stat. Ann. § 50-626(b)(3).
- 17 -

KENTUCKY
Did Ferrero’s conduct
violate the consumer
protection law?
CA
KY

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
Ky. Rev. Stat. §
367.170

Yes
Yes66

No
No67

No
No68

Does the law
prohibit
material
omissions?
Yes
Yes69

Are there any true conflicts of substantive law?
No.

66

Ky. Rev. Stat. § 367.220(1).

67

See Sparks v. Re/Max Allstar Realty, Inc., 55 S.W. 3d 343 (Ky. Ct. App. 2000) (no
intent to deceive is necessary under Consumer Protection Act).
68

Ky. Rev. Stat. § 367.170 does not require reliance. See also Corder v. Ford Motor Co.,
272 F.R.D. 205, 2010 (W.D. Ky. 2011); Telecom Directories, Inc. v. Commonwealth, 833 SW.
2d 848, 850 (Ky. Ct. App. 1991) (plaintiffs need not prove deception).
69

See Harman v. Sullivan Univ. Sys., 2005 U.S. Dist. LEXIS 10904, at *20 (W.D. Ky.
June 6, 2005) (denying summary judgment for claim under Consumer Protection Act where
evidence showed defendant “at least made a conscious and voluntary act or omission”); Smith v.
Gen. Motors Corp., 979 S.W. 2d 127, 130-31 (Ky. Ct. App. 1998) (denying summary judgment
because fact-finder could reasonably conclude that non-disclosure constituted false, misleading
or deceptive act under Consumer Protection Act).
- 18 -

LOUISIANA
Did Ferrero’s conduct
violate the consumer
protection law?
CA
LA

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
La. R. S. § 51:1405.A

Yes
Yes70

No
No71

No
No72

Does the law
prohibit
material
omissions?
Yes
Yes73

Are there any true conflicts of substantive law?
No. While the Louisiana Unfair Trade Practices and Consumer Protection Law prohibits
bringing a cause of action “in a representative capacity to recover actual damages,” La. R. S. §
51:1409.A, it permits class adjudication for other remedies. Thus, this difference can be dealt
with at the remedy stage and does not go to the substance of any claims.

70

La. R. S. § 51:1409.A.

71

La. R. S. § 51:1409.A (Defendant’s “knowing” violation is required only for treble
damages, and in any event includes an objective test of what a reasonably prudent
businessperson should have known, see La. R. S. § 51:1402.10).
72

La. R. S. § 51:1405.A does not require reliance.

73

Louisiana’s Consumer Protection Law tracks the language of the FTC Act, 15 U.S.C. §
45(a), regarding prohibited practices, which includes omissions. See, e.g., F.T.C. v. Wilcox, 926
F. Supp. 1091,1098 (S.D. Fla. 1995).
- 19 -

MAINE
Did Ferrero’s conduct
violate the consumer
protection law?
CA
ME

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
Me. Rev. Stat. Ann. tit.
5, § 207

Yes
Yes74

No
No75

No
No76

Does the law
prohibit
material
omissions?
Yes
Yes77

Are there any true conflicts of substantive law?
No.

74

Me. Rev. Stat. Ann. tit. 5, § 213(1).

75

Auto Europe, L.L.C. v. Conn. Indem. Co., 2002 U.S. Dist. LEXIS 5249, at *21(D. Me.
Mar. 28, 2002) (“Main law provides that ‘an act may be deceptive pursuant to [5 M.R.S.A.]
section 207 [the Maine UTPA] even though the defendant had no purpose to deceive and acted in
good faith.’” (quoting Binette v. Dyer Library Ass’n, 688 A.2d 898, 906 (Me. 1996))).
76

Ambrose v. New England Ass’n of Schools & Colleges, Inc., 252 F.3d 488, 492 (1st
Cir. 2001) (under UTPA, all that need be shown is conduct creating a “likelihood of confusion or
misunderstanding,” and that it is not “reasonably avoidable by consumers”); Maine v.
Weinschenk, 868 A.2d 200, 203 (Me. 2005).
77

Binette, 688 A.2d at 906.
- 20 -

MARYLAND
Did Ferrero’s conduct
violate the consumer
protection law?
CA
MD

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
Md. Code Ann. Com.
Law § 13-301

Yes
Yes78

No
No79

No
Yes80

Does the law
prohibit
material
omissions?
Yes
Yes81

Are there any true conflicts of substantive law?
Yes, class members would be required to prove individual reliance.

78

Md. Code Ann. Com. Law § 13-408.

79

Consumer Prot. Div. v. Morgan, 874 A.2d 919, 970 (Md. 2005) (Ҥ 13-301(1), (2), and
(3) does not require scienter . . . ; the subsections require only a false or deceptive statement that
has the capacity to mislead the consumer”).
80

See Lloyd v. GMC, 266 F.R.D. 98, 111 (D. Md. 2010); Philip Morris, Inc. v. Angeletti,
752 A.2d 200 (Md. 2000); Hoffman v. Stamper, 155 Md. App. 247, 311 (Md. Ct. Spec. App.
2004).
81

Md. Code Ann. Com. Law § 13-301(3) (prohibiting “failure to state a material fact if
the failure deceives or tends to deceive”).
- 21 -

MASSACHUSETTS
Did Ferrero’s conduct
violate the consumer
protection law?
CA
MA

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
Mass. Gen. Laws Ann.,
Ch. 93A, §§ 2, 9

Yes
Yes82

No
No83

No
No84

Does the law
prohibit
material
omissions?
Yes
Yes85

Are there any true conflicts of substantive law?
No.

82

Mass. Gen. Laws Ann., Ch. 93A, §§ 2, 9.

83

Commonwealth v. Brien, 67 Mass. App. Ct. 309, 313 (2006); Cabot Corp. v. Baddour,
394 Mass. 720, 726 n.1 (1985) (“for liability under c. 93A ‘it is not necessary to establish that the
defendant knew that the representation was false,’” quoting Slaney v. Westwood Auto, Inc., 366
Mass. 688, 703-704 (1975)).
84

Aspinall v. Philip Morris Cos., Inc., 813 N.E.2d 476, 486 (Mass. 2004); Kimiatek v.
Mendelson, 22 Mass. L. Rep. 63 (Mass. Super. Ct. 2007); Fraser Eng’g Co., Inc. v. Desmond,
524 N.E. 2d 110, 113 (Mass. Ct. App. 1988) (proof of actual reliance on misrepresentation not
required “so long as the evidence warrants a finding of a causal relationship between the
misrepresentation and the injury to the plaintiff”).
85

Aspinall, 813 N.E. 2d at 487 (advertising may be deemed deceptive if it consists of a
half-truth, or even may be true as a literal matter, but still creates an overall misleading
impression through failure to disclose material information); Underwood v. Risman, 605 N.E. 2d
832 (Mass. 1993) (duty exists to disclose material facts known to party at time of sales
transaction and liability will attach for failure to disclose known material fact if there is partial
disclosure, misrepresentation, or false statement). In addition, Ch. 93A § 2(b) states that
Massachusetts courts must be guided by interpretations of the Federal Trade Commission Act, 15
U.S.C. § 45(a)(1), which construes deception to include an “omission.”
- 22 -

MICHIGAN
Did Ferrero’s conduct
violate the consumer
protection law?
CA
MI

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
Mich. Comp. Laws
Ann. §§ 445.903

Yes
Yes86

No
No87

No
No88

Does the law
prohibit
material
omissions?
Yes
Yes89

Are there any true conflicts of substantive law?
No.

86

Mich. Comp. Laws Ann. §§ 445.911.

87

See Mich. Comp. Laws Ann. §§ 445.911(6) (permitting recovery of “actual damages”
where “defendant shows by a preponderance of the evidence that a violation . . . resulted from a
bona fide error”); Dix. v. Am. Bankers Life Assurance Co., 415 N.W. 2d 206, 209 (“[A]
defendant’s intent to deceive through a pattern of misrepresentations can be shown on a
representative basis under the Consumer Protection Act.”).
88

Dix, 415 N.W. 2d at 209 (“We hold that members of a class proceeding under the
Consumer Protection Act need not individually prove reliance on the alleged misrepresentations.
It is sufficient if the class can establish that a reasonable person would have relied on the
representations.”).
89

Mich. Comp. Laws Ann. §§ 445.903(s), (cc).
- 23 -

MINNESOTA
Did Ferrero’s conduct
violate the consumer
protection law?
CA
MN

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
Minn. Stat. Ann. §§
325F.68-70

Yes
Yes90

No
No91

No
No92

Does the law
prohibit
material
omissions?
Yes
Yes93

Are there any true conflicts of substantive law?
No. Ferrero’s reliance on Thompson v. Am. Tobacco Co., 189 F.R.D. 544 (D. Minn.
1999), Opp. at 5 n.4, is erroneous, since that holding was abrogated by Group Health (see n.92
below). Accord Gordon v. Microsoft Corp., 2011 U.S. Dist. LEXIS 26360, at *9 (“In Group
Health, . . . the Minnesota Supreme Court rejected holdings in Thompson[.]”)

90

The Minnesota Private Attorney General Act, Minn. Stat. § 8.31(1)-(3a), confers a
private right of action on “any person injured by a violation of” the Minnesota Protection of
Consumer Fraud Act. See Peterson-Price v. United States Bank Nat’l Ass’n, 2010 U.S. Dist.
LEXIS 43355, at *39 (D. Minn. May 4, 2010).
91

Minn. Stat. Ann. §§ 325F.69(1) (statute only requires intent that others rely upon
statement, not that a defendant know or intend that the statement is false).
92

Group Health Plan, Inc. v. Philip Morris Inc., 621 N.W. 2d 2, 12 (Minn. 2001); see
generally Minn. Stat. Ann. §§ 325F.69(1) (conduct violates the act “whether or not any person
has in fact been misled, deceived, or damaged thereby”).
93

See Ford Motor Credit Co. v. Majors, 2005 Minn. App. LEXIS 448, at *10-11 (“An
omission or misrepresentation through silence is actionable under the MCFA if the information
is material and there is a duty to disclose based on a relationship of trust or confidence or an
unequal access to information.” (citation omitted)); Gardner v. First Am. Title Ins. Co., 296 F.
Supp. 2d 1011 (D. Minn. 2003) (referring to an “actionable omission under the MPCFA”);
Dawson v. Merit Chevrolet Co., 1991 Minn. App. LEXIS 542, at *4-5 (Minn. Ct. App. 1991)
(unpublished).
- 24 -

MISSISSIPPI
Did Ferrero’s conduct
violate the consumer
protection law?
CA
MS

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
Miss. Code Ann. § 7524-5(2)

Yes
Yes94

No
No95

No
No96

Does the law
prohibit
material
omissions?
Yes
Yes97

Are there any true conflicts of substantive law?
No.

94

Miss. Code Ann. § 75-24-15(1).

95

Miss. Code Ann. § 75-24-5(2)(e) and (g) contain no intent requirement. Only §§ 2(i)
and (j) contain an intent requirement (“Advertising goods or services with intent not to sell them
as advertised; * * * Advertising goods and services with intent not to supply reasonably
expectable public demand”). Because this action can be decided under (e) and (g), those
subsections are not at issue. The only way scienter becomes involved is when, if a defendant
“knowingly and willfully” used an unfair or deceptive trade practice, the attorney general can
impose additional civil penalties, see Miss. Code Ann. § 75-24-19(b).
96

The Consumer Protection Act does not require reliance on its face, and we have located
no authority reading such a requirement into the Act. See generally Southwest Starving Artists
Group v. Miss., 364 So. 2d 1128, 1130 (Miss. 1978) (where no plaintiff was claiming reliance,
lower court was “well within its discretion in finding that the advertising through posted notices
and on radio and television was deceptive and violated Mississippi law”).
97

Miss. Code Ann. § 75-24-3(c) (courts interpreting the Act should be guided by
interpretations of the FTC Act, which treats omissions as deceptive acts, see, e.g., Simeon Mgmt.
Corp. v. FTC, 579 F.2d 1137, 1145 (9th Cir. 1978) (“Failure to disclose material information
may cause an advertisement to be false or deceptive within the meaning of the FTCA even
though the advertisement does not state false facts.”)).
- 25 -

MISSOURI
Did Ferrero’s conduct
violate the consumer
protection law?
CA
MO

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
§ 407.020 R.S.Mo.

Yes
Yes98

No
No99

No
No100

Does the law
prohibit
material
omissions?
Yes
Yes101

Are there any true conflicts of substantive law?
No.

98

§ 407.025 R.S.Mo.

99

State v. Shaw, 847 S.W. 2d 768, 775 (Mo. 1993) (“In civil cases arising under Section
407.020, a plaintiff need not prove all the elements of fraud, nor any element of intent, in order
to make a claim of unlawful merchandising practices”); Plubell v. Merck & Co., 289 S.W. 3d
707, 713-14 (Mo. Ct. App. 2009) (“Plaintiffs’ MMPA claim does not require proof of Merck’s
knowledge. The MMPA supplements the definition of common law fraud, eliminating the need
to prove an intent to defraud or reliance. The statute does not put forth a scienter requirement for
civil liability: It is the defendant’s conduct, not his intent, which determines whether a violation
has occurred. . . . [U]nlawful practice under the MMPA may be demonstrated by the defendant’s
conduct—irrespective of mental state” (internal quotations and citations omitted)); Scott v. Blue
Springs Ford Sales, Inc., 215 S.W. 3d 145, 160 (Mo. Ct. App. 2006).
100

Scott, 215 S.W. 3d at 160 (“[T]he MMPA supplements the definition of common law
fraud, eliminating the need to prove an intent to defraud or reliance.”); Plubell, 289 S.W. 3d at
713.
101

§ 407.020 R.S.Mo.
- 26 -

MONTANA
Did Ferrero’s conduct
violate the consumer
protection law?
CA
MT

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
Mont. Code Ann. §§
30-14-101 -143

Yes
Yes102

No
No103

No
No104

Does the law
prohibit
material
omissions?
Yes
Yes105

Are there any true conflicts of substantive law?
No.

102

Rohrer v. Knudson, 349 Mont. 197, 203 (2009).

103

The statute does not require scienter on its face. See Mont. Code Ann. § 30-14-103.
See also Rohrer, 349 Mont. 197 (defining “unfair act or practice” as “one that offends
established public policy and that is immoral, unethical, unscrupulous, or substantially injurious
to consumers”); Woock v. Gebhardt Post Plant & Sawmill, 2001 ML 3648, at *10 (Mont. Dist.
Ct. Oct. 2001) (“[T]he so-called ‘unfairness prong’ of the Montana Consumer Protection Act . . .
requires no proof of deceit or scienter on the part of the Defendant.”); Waddell v. Shamrock
Motors, 1995 Mont. Dist. LEXIS 682, at *7 (Mont. Dist. Ct. Oct. 24, 1995) (“[I]t is the intent of
the legislature that in construing 30-14-103 due consideration and weight shall be given to the
interpretations of the Federal Trade Commission Act . . . . And under federal law, proof of
intention is not required for finding that an act is unfair or deceptive.” (internal quotations and
citations omitted)).
104

There is no reliance or causation requirement on the face of the Act and we have
located no authority reading such a requirement into the Act.
105

Mont. Code Ann. §§ 30-14-104 (“[I]n construing 30-14-103 due consideration and
weight shall be given to the interpretations of the federal trade commission and the federal courts
in interpreting the provisions of section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C.,
45(a)(1))”); see FTC v. Accent Mktg., Inc., 2002 U.S. Dist. LEXIS 12545, at *4 (S.D. Ala. 2002)
(“The FTC Act prohibits the use of unfair or deceptive acts or practices . . . a representation is
deceptive if it contains a material claim or omission that is reasonably likely to mislead
consumers acting reasonably under the circumstances to their detriment. A representation or
omission is material if it is of the kind usually relied upon by a reasonably prudent person.”).
- 27 -

NEBRASKA
Did Ferrero’s conduct
violate the consumer
protection law?
CA
NE

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
Neb. Rev. Stat. §§ 591602; 87-302; 87303.01

Yes
Yes106

No
No107

No
No108

Does the law
prohibit
material
omissions?
Yes
Yes109

Are there any true conflicts of substantive law?
No.
106

Neb. Rev. Stat. § 59-1609; § 87-303(a).

107

Neb. Rev. Stat. § 87-303(a) (requiring only that a plaintiff is “likely to be damaged by
a deceptive trade practice of another”).
108

The statute does not require reliance on its face and we have located no authority
reading a reliance requirement into the statute.
109

In the absence of direct Nebraska authority (which we have not located), Nebraska
courts require adherence to federal decisional law with regard to its consumer protection act:
“any provision of Chapter 59 shall follow the construction given to the federal law by the federal
courts.” Neb. Rev. Stat. Ann. § 59-829. Under Neb. Rev. Stat. Ann. § 59-1602, “[u]nfair
methods of competition and unfair or deceptive acts or practices in the conduct of any trade or
commerce shall be unlawful.” The federal counterpart to this statute is substantively identical:
“Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or
practices in or affecting commerce, are hereby declared unlawful.” 15 U.S.C. § 45(a)(1). Federal
decisional law includes material omissions as violations of section 45(a). “In order to establish
that an act or practice is deceptive [under § 45(a)], the FTC must establish that representations,
omissions, or practices likely would mislead consumers, acting reasonably, to their detriment.
FTC v. World Travel Vacation Brokers, Inc., 861 F.2d 1020, 1029 (7th Cir. 1988) (emphasis
added). Furthermore, Nebraska’s UDTPA states, “Sections 87-301 to 87-306 shall be construed
to effectuate their general purpose to make uniform the law of those states which enact them.”
Neb. Rev. Stat. Ann.§ 87-305. It also states those sections “do not apply to: (1) Conduct in
compliance with the orders or rules of, or a statue administered by, a federal, state, or local
governmental agency,” id. at § 87-304(a)(1). Taken together, Nebraska’s legislature mandates
that its courts avoid creating conflict with other deceptive trade practices statutes where there is
none while indicating that any act that does not comply with federal deceptive trade law is “fair
game” under Nebraska’s law. Because material omissions are violations under both the FTC Act
and Nebraska’s sister jurisdictions, Nebraska courts would recognize material omissions as
deceptive under Chapter 87.
- 28 -

NEVADA
Did Ferrero’s conduct
violate the consumer
protection law?
CA
NV

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
Nev. Rev. Stat. §§
598.0903-0999; Nev.
Rev. Stat. § 41.600.

Yes
Yes110

No
Yes111

No
No112

Does the law
prohibit
material
omissions?
Yes
Yes113

Are there any true conflicts of substantive law?
Yes, Nevada requires defendant’s deception to be made “knowingly.”

110

Private right of action authorized under Nev. Rev. Stat. §§ 598.0933, 598.0973,
598.0977, 598.0933, 41.600; actual damages and reasonable attorney fees if victim of consumer
fraud prevails.
111

Statute proscribes “knowingly” making a false representation, Nev. Rev. Stat. §§
598.0915(5), (14), and “knowingly” failing to disclose a material fact, id. § 598.0923(2),
although the Attorney General can enjoin deceptive conduct without proving knowledge.
112

Statute does not require reliance on its face and we have found no authority reading
such a requirement into the Act.
113

Deceptive trade practices includes “fail[ure] to disclose a material fact,” Nev. Rev.
Stat. § 598.0923.
- 29 -

NEW HAMPSHIRE
Did Ferrero’s conduct
violate the consumer
protection law?
CA
NH

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
N.H. Rev. Stat. Ann. §§
358-A:2; 358-A:2(V);
358-A:2(VII)

Yes
Yes114

No
No115

No
No116

Does the law
prohibit
material
omissions?
Yes
Yes117

Are there any true conflicts of substantive law?
No.

114

N.H. Rev. Stat. Ann. § 358-A:10.

115

See N.H. Rev. Stat. Ann. § 358-A:10 (damage amount is doubled or trebled for
“willful or knowing violation of this chapter,” therefore straight injunction or damages requires
no showing of scienter); see also Beer v. Bennett, 160 N.H. 166 (2010); Hair Excitement, Inc. v.
L’Oreal U.S.A., Inc., 158 N.H. 363, 369-70 (2009); Mwangi v. Alam, 2007 U.S. Dist. LEXIS
84786, at *4-7 (D.N.H. Nov. 2, 2007).
116

N.H. Rev. Stat. Ann. § 358-A:11 (“In order to prevail in any prosecution under this
chapter, it is not necessary to prove actual confusion or misunderstanding.”).
117

In determining what actions are unlawful outside of the enumerated categories of the
consumer statutes, New Hampshire courts look to federal courts’ interpretation of the Federal
Trade Commission Act for guidance. State v. Moran, 861 F.2d 1020, 1029 (N.H. 2004). Federal
decisional law includes material omissions as violations of 15 U.S.C. § 45(a). “In order to
establish that an act or practice is deceptive [under § 45(a)], the FTC must establish that
representations, omissions, or practices likely would mislead consumers, acting reasonably, to
their detriment. FTC v. World Travel Vacation Brokers, Inc., 861 F.2d 1020, 1029 (7th Cir.
1988) (emphasis added). See also Chroniak v. Golden Inv. Corp., 983 F.2d 1140, 1146-47 &
ns.11-12 (1st Cir. 1993) (noting that the New Hampshire Supreme Court looks to the “well
developed” decisional law construing Massachusetts’ deceptive practices act, which case law “is
replete with decisions holding that a failure to disclose a material fact may constitute an unfair or
deceptive practice”).
- 30 -

NEW JERSEY
Did Ferrero’s conduct
violate the consumer
protection law?
CA
NJ

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
N.J. Stat. Ann. §§ 56:82, 56:8-2.10

Yes
Yes118

No
No119

No
No120

Does the law
prohibit
material
omissions?
Yes
Yes121

Are there any true conflicts of substantive law?
No.

118

N.J. Stat. Ann. § 56:8-19.

119

N.J. Stat. Ann. § 56:8-2 (omitting intent requirement for misrepresentations, and
requiring only “intent that others rely” with respect to any “knowing[] concealment, suppression
or omissions of material fact”); see also N.J. Stat. Ann. § 56:8-2.10 (prohibiting the
misrepresentation of food products if “[i]ts description is false or misleading in any particular;
[or] omits information which by its omission renders the description false or misleading in any
particular,” and stating no knowledge or intent requirements); see generally Thiedemann v.
Mercedes-Benz USA, LLC, 183 N.J. 234, 245 (2005); Chattin v. Cape May Greene, 124 N.J. 520,
528 (1991).
120

N.J. Stat. Ann. § 56:8-2 (conduct violates the act “whether or not any person has in
fact been misled, deceived or damaged thereby”); DaBush v. Mercedes Benz USA, Inc., 378 N.J.
Super. 105, 122 (2005); N.J. Citizen Action v. Schering-Plough Corp., 367 N.J. Super. 8, 15
(2003).
121

N.J. Stat. Ann. § 56:8-2.
- 31 -

NEW MEXICO
Did Ferrero’s conduct
violate the consumer
protection law?
CA
NM

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
N.M. Stat. Ann. §§ 5712-1 et seq.

Yes
Yes122

No
No123

No
No124

Does the law
prohibit
material
omissions?
Yes
Yes125

Are there any true conflicts of substantive law?
No.

122

N.M. Stat. Ann. § 57-12-10.

123

N.M. Stat. Ann. § 57-12-10(A) (for injunctive relief under act, “[p]roof of monetary
damage, loss of profits or intent to deceive or take unfair advantage of any person is not
required”); N.M. Stat. Ann. § 57-12-10(B) (noting that treble damages may be awarded where
trier-of-fact determines unfair practice was done willfully); see Billsie v. Brooksbank, 525 F.
Supp. 2d 1290, 1295 n.9 (D.N.M. 2007) (“New Mexico law does not require the plaintiff to
prove intent,” citing Russey v. Rankin, 911 F. Supp. 1449, 1460 (10th Cir. 1995)); Taylor v.
United Mgmt., 51 F. Supp. 2d 1212, 1216 (D.N.M. 1999) (“Intent is not an element of an unfair
or deceptive trade practice claim,” citing Russey).
124

There is no reliance requirement on the face of the statute. See N.M. Stat. Ann. § 5712-3. Moreover, N.M. Stat. Ann. § 57-12-2(D) defines an unfair or deceptive trade practice to
include “a false or misleading oral or written statement . . . of any kind knowingly made in
connection with the sale . . . of goods . . . that may, tends to or does deceive or mislead any
person . . . .” To recover under the Unfair Practices Act, a plaintiff need only prove that
defendant’s deceptive trade practice proximately caused actual damages. See Mulford v. Altria
Group, Inc., 242 F.R.D. 615, 620 (D.N.M. 2007) (“A claimant under the UPA need not allege
detrimental reliance on the deceptive practice in order to state a valid claim.”); Smoot v.
Physicians Life Ins. Co., 135 N.M. 265, 270-71 (N.M. Ct. App. 2003).
125

N.M. Stat. Ann. § 57-12-2(D)(14) (unfair business practice includes “failing to state a
material fact if doing so deceives or tends to deceive”).
- 32 -

NEW YORK
Did Ferrero’s conduct
violate the consumer
protection law?
CA
NY

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
N.Y. G.B.L. § 349(a)

Yes
Yes126

No
No127

No
No128

Does the law
prohibit
material
omissions?
Yes
Yes129

Are there any true conflicts of substantive law?
No.

126

N.Y. G.B.L. § 349(h).

127

Chiste v. Hotels.com L.P., 756 F. Supp. 2d 382, 403-404 (S.D.N.Y.2010) (Under §
349, “[i]t is not necessary for the plaintiff to demonstrate that the defendant acted intentionally or
with scienter.” (citations omitted)).
128

Owens v. Aspen Funding LLC, 2011 U.S. Dist. LEXIS 102063, at *35 (W.D.N.Y.
Sept. 9, 2011) (“[A]s we have repeatedly stated, reliance is not an element of a section 349
claim.” (citation omitted)); see also Pelman ex rel. Pelman v. McDonald’s Corp., 396 F.3d 508,
511 (2d Cir. 2005).
129

Stutman v. Chem. Bank, 731 N.E.2d 608, 612 (N.Y. 2000) (“Whether a representation
or an omission, the deceptive practice must be ‘likely to mislead a reasonable consumer acting
reasonably under the circumstances.’” (emphasis added)).
- 33 -

NORTH CAROLINA
Did Ferrero’s conduct
violate the consumer
protection law?
CA
NC

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
NC Gen. Stats. §§ 75-1
et seq.130

Yes
Yes131

No
No132

No
No133

Does the law
prohibit
material
omissions?
Yes
Yes134

Are there any true conflicts of substantive law?
No.

130

The acts and omissions prohibited under the North Carolina statute are explained in
Huff v. Autos Unlimited, Inc., 477 S.E.2d 86, 88-89 (N.C. Ct. App. 1996), as practices that offend
established public policy as well as practices that are immoral, unethical, oppressive,
unscrupulous, or substantially injurious to consumers.
131

NC Gen. Stat. § 75-16.

132

Volumetrics Med. Imaging, Inc. v. ATL Ultrasound, Inc., 243 F. Supp. 2d 386, 418
n.15 (M.D.N.C. 2003) (“fraud requires scienter, while § 75 does not” (citation omitted)).
133

Marshall v. Miller, 276 S.E.2d 397, 403 (N.C. 1981) (“[A] practice is deceptive if it
has the capacity or tendency to deceive; proof of actual deception is not required.”).
134

S. Atl. Ltd. P’ship of Tenn., L.P. v. Riese, 284 F.3d 518, 537-38 (4th Cir. 2002)
(applying North Carolina law).
- 34 -

NORTH DAKOTA
Did Ferrero’s conduct
violate the consumer
protection law?
CA
ND

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
N.D.C.C. §§ 51-12-01,
51-15-02

Yes
Yes135

No
No136

No
No137

Does the law
prohibit
material
omissions?
Yes
Yes138

Are there any true conflicts of substantive law?
No.

135

N.D.C.C. § 51-15-09.

136

N.D.C.C. §§ 51-15-09 (court may order treble damages if it determines unlawful
advertising was committing knowingly).
137

N.D.C.C. §§ 51-15-02 (act done with intent that others rely is actionable regardless of
whether plaintiff was actually deceived).
138

See Hanson v. Acceleration Life Ins. Co., 1999 U.S. Dist. LEXIS 23298 (D.N.D. May
20, 1999) (in class action context under North Dakota consumer fraud statutes, plaintiffs’ claims
were based primarily on defendants’ uniform failure to disclose material facts to proposed class
members).
- 35 -

OHIO
Did Ferrero’s conduct
violate the consumer
protection law?
CA
OH

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
Ohio Rev. Code §
1345.02

Yes
Yes139

No
No140

No
No141

Does the law
prohibit
material
omissions?
Yes
Yes142

Are there any true conflicts of substantive law?
No. Ferrero’s reliance on Amato v. Gen. Motors Corp., 463 N.E.2d 625 (Ohio Ct. App.
1982), Opp. at 5 n.4, is curious. That case upheld a lower court’s ruling that reliance upon
misleading representations may be sufficiently established by an inference or presumption, and
relied upon California law in conducting its analysis. See id. at 626-29 (citing Vasquez v.
Superior Ct., 4 Cal. 3d 800, 814-15 (1971)).

139

Ohio Rev. Code § 1345.09.

140

Ohio Rev. Code §§ 1345.09(F)(2) (permitting award of attorneys fees (i.e., additional
damages) where defendant’s violation was knowing), 1345.01(E). See also Shank v. Charger,
Inc., 186 Ohio App. 3d 605, 615 (2010) (noting § 1345.02 “lacks a ‘knowing’ or scienter
requirement”).
141

Ohio Rev. Code § 1345.09(D) (no reliance requirement). See also Ferron v.
Metareward, Inc., 698 F. Supp. 2d 992, 1001 (S.D. Ohio 2010) (“Section 1345.02 does not
require a plaintiff to allege reliance on or damages arising out of the deceptive scheme.” (internal
alterations and citations omitted)).
142

See Lump v. Best Door & Window, Inc., 2002 Ohio 1389 (Ohio Ct. App., Logan
County, 2002) (concurrence) (“[I]t is clear that an omission may constitute a deceptive act or
practice under appropriate circumstances”); Delahunt v. Cytodyne Techs., 241 F. Supp. 2d 827
(S.D. Ohio 2003); McCullough v. Spitzer Motor Ctr., 1994 Ohio App. LEXIS 262, at *24 (Ohio
Ct. App. Jan. 27, 1994).
- 36 -

OKLAHOMA
Did Ferrero’s conduct
violate the consumer
protection law?
CA
OK

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
Okla. Stat. Ann. tit. 15
§ 753, tit. 78, § 53

Yes
Yes143

No
Yes144

No
No145

Does the law
prohibit
material
omissions?
Yes
Yes146

Are there any true conflicts of substantive law?
Yes, Oklahoma requires that a “false representation” be made “knowingly.”

143

Okla. Stat. Ann. tit. 15 § 761.1; Patterson v. Ball, 19 P.3d 839 (Okla. 2000).

144

Okla. Stat. Ann. tit. 15 § 753(5) requires knowledge of a “false representation.” C.f.
Okla. Stat. Ann. tit. 15 § 753(2)-(5) (knowledge required); id. § 573(7) (“knowingly”).
145

No such requirement appears on the face of the Act and we have found no authority
reading such a requirement into the Act.
146

Okla. Stat. Ann. tit. 15 § 752(13) (“Deceptive trade practice” includes “omission . . .
that has deceived or could reasonably be expected to deceive or mislead a person to the detriment
of that person.”).
- 37 -

OREGON
Did Ferrero’s conduct
violate the consumer
protection law?
CA
OR

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
Or. Rev. Stat. §§
646.605-646.656

Yes
Yes147

No
No148

No
No149

Does the law
prohibit
material
omissions?
Yes
Yes150

Are there any true conflicts of substantive law?
No. Ferrero’s reliance on Feitler v. Animation Celection, Inc., 13 P.3d 1044 (Or. Ct. App.
2000) is misplaced, since that case held that “[a]ny loss will satisfy the [‘ascertainable loss’]
requirement [under the UTPA] so long as it is ‘capable of being discovered, observed, or
established.’” Id. at 712 (citation omitted).

147

Or. Rev. Stat. § 646.638(1).

148

McKie, 2011 U.S. Dist. LEXIS 44848, at *7-8 (D. Or. Apr. 26, 2011) (scienter
requirement for UTPA claims requires only negligent misrepresentation).
149

McKie v. Sears Prot. Co., 2011 U.S. Dist. LEXIS 44848, at *7-8 (UTPA claims do not
require proof of reliance).
150

See generally Wright v. Kia Motors Am., Inc., 2007 U.S. Dist. LEXIS 7431, at *6 (D.
Or. Jan. 29, 2007) (upholding claims under UTPA based on alleged omisisons).
- 38 -

PENNSYLVANIA
Did Ferrero’s conduct
violate the consumer
protection law?
CA
PA

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
73 Pa. Stat. Ann. §§
201-3; 201-2(4)

Yes
Yes151

No
Yes152

No
Yes153

Does the law
prohibit
material
omissions?
Yes
Yes154

Are there any true conflicts of substantive law?
Yes, Pennsylvania’s Unfair Trade Practices and Consumer Protection Law requires
individual justifiable reliance and scienter (“intent to mislead” and “knowledge/recklessness as
to falsity of representation”).

151

73 Pa. Stat. Ann. §§ 201-9.2.

152

See Taggart v. Wells Fargo Home Mortg., Inc., 2010 U.S. Dist. LEXIS 102747, at
*28-30 (E.D. Pa. Sept. 27, 2010) (to establish violation under UTPCPL, plaintiff needs to prove
elements of common law fraud, including scienter and justifiable reliance).
153

See Taggart, 2010 U.S. Dist. LEXIS, at *28-30.

154

Debbs v. Chrysler Corp., 810 A.2d 137, 155 (Pa. Super. Ct. 2002).
- 39 -

RHODE ISLAND
Did Ferrero’s conduct
violate the consumer
protection law?
CA
RI

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
R.I. Gen. Laws § 613.1-1 et sq.

Yes
Yes155

No
No156

No
No157

Does the law
prohibit
material
omissions?
Yes
Yes158

Are there any true conflicts of substantive law?
No.

155

R.I. Gen. Laws § 6-13.1-5.2(a)-(b).

156

The Rhode Island Consumer Protection Act does not require scienter on its face and
we have located no authority reading such a requirement into the statute.
157

The Act does not require reliance on its face and we have located no authority reading
such a requirement into the statute.
158

R.I. Gen. Laws § 6-13.1-3 (“in construing [the Act] due consideration and great
weight shall be given to interpretations of the federal trade commission and the federal courts
relating to § 5(a) of the Federal Trade Commission Act. 15 U.S.C. § 45(a)(1)”). Federal
decisional law includes material omissions as violations of section 45(a). “In order to establish
that an act or practice is deceptive [under § 45(a)], the FTC must establish that representations,
omissions, or practices likely would mislead consumers, acting reasonably, to their detriment.
FTC v. World Travel Vacation Brokers, Inc., 861 F.2d 1020, 1029 (7th Cir. 1988) (emphasis
added).
- 40 -

SOUTH CAROLINA
Did Ferrero’s conduct
violate the consumer
protection law?
CA
SC

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
S.C. Code § 39-5-20(a)

Yes
Yes159

No
No160

No
No161

Does the law
prohibit
material
omissions?
Yes
Yes162

Are there any true conflicts of substantive law?
No.

159

S.C. Code § 39-5-140(a).

160

S.C. Code § 39-5-20(a) (containing no scienter requirement); Inman v. Ken Hyatt
Chrysler Plymouth, Inc., 363 N.E.2d 691, 692 (S.C. 1988) (noting that intent to deceive is not
required under § 39-5-20).
161

S.C. Code § 39-5-20(a) (containing no reliance requirement); Inman, 363 S.E.2d at
692 (statute merely requires “capacity to deceive”).
162

See Johnson v. Collins Entm’t. Co., Inc., 564 S.E.2d 653, 666 (S.C. 2002) (describing
omission as an “inherent misrepresentation”).
- 41 -

SOUTH DAKOTA
Did Ferrero’s conduct
violate the consumer
protection law?
CA
SD

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
S.D. Codified Laws §
37-24-6(1)

Yes
Yes163

No
Yes164

No
No165

Does the law
prohibit
material
omissions?
Yes
Yes166

Are there any true conflicts of substantive law?
Yes, South Dakota requires that deceptive acts be done “knowingly and intentionally” to
be actionable.

163

S.D. Codified Laws § 37-24-31.

164

S.D. Codified Laws § 37-24-6(1) (“knowingly and intentionally”).

165

S.D. Codified Laws § 37-24-6(1) (“regardless of whether any person has in fact been
mislead [sic], deceived, or damaged thereby”).
166

S.D. Codified Laws § 37-24-6(1) (“or omit any material fact”).
- 42 -

TENNESSEE
Did Ferrero’s conduct
violate the consumer
protection law?
CA
TN

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
Tenn. Code §§ 47-18104(a)-(b)

Yes
Yes167

No
No168

No
No169

Does the law
prohibit
material
omissions?
Yes
Yes170

Are there any true conflicts of substantive law?
No.

167

Tenn. Code §§ 47-18-109(a).

168

Tenn. Code §§ 47-18-103(6), 47-18-109(a)(3) (knowledge of falsity only required for
treble damages and even then contains an objective “reasonable person” standard for inferring
knowledge). See also Mapco Express v. Interstate Entm’t, Inc., 2011 U.S. Dist. LEXIS 89750, at
*33 (“The scope of the TCPA is broader than common-law fraud; the burden of proof on the
plaintiff is lower, as claims are not limited to misrepresentations that are fraudulent or willful.”
(citation omitted)).
169

Tenn. Code §§ 47-18-104 and 47-18-109(a)(1) (permitting “[a]ny person who suffers
an ascertainable loss” to bring suit); see also Johnson v. Dattilo, 2011 Tenn. App. LEXIS 387, at
*19-20 (Tenn. Ct. App. July 14, 2011) (“[I]n TCPA cases involving misrepresentation, a plaintiff
is not required to show reliance upon a misrepresentation in order to maintain a cause of action,”
quoting Messer Griesheim Indus., Inc. v. Cryotech of Kingsport, Inc., 131 S.W. 3d 457, 469
(Ten. Ct. App. 2003)).
170

Tenn. Code §§ 47-18-115 (“this part shall be interpreted and construed consistently
with the interpretations given by the federal trade commission and the federal courts pursuant to
§ 5(A)(1) of the Federal Trade Commission Act (15 U.S.C. § 45(a)(1)). Federal decisional law
includes material omissions as violations of section 45(a). “In order to establish that an act or
practice is deceptive [under § 45(a)], the FTC must establish that representations, omissions, or
practices likely would mislead consumers, acting reasonably, to their detriment. FTC v. World
Travel Vacation Brokers, Inc., 861 F.2d 1020, 1029 (7th Cir. 1988) (emphasis added).
- 43 -

TEXAS
Did Ferrero’s conduct
violate the consumer
protection law?
CA
TX

Private cause
of action?

Yes
Yes
Yes
Yes171
Tex. Bus. & Com. Code
§ 17.46

Scienter
requirement?

Individual
Reliance

No
No172

No
Yes173

Does the law
prohibit
material
omissions?
Yes
Yes174

Are there any true conflicts of substantive law?
Yes, Tex. Bus. & Com. Code § 17.50(a)(1)(B) requires reliance for private causes of
action.

171

Tex. Bus. & Com. Code § 17.50 incorporates all violations of § 17.46(b) into a private
cause of action.
172

Tex. Bus. & Com. Code § 17.50(b)(1) (permitting additional damages upon showing
that violation was committed knowingly); see also id. § 17.46(b) (listing violations without
scienter requirement).
173

Tex. Bus. & Com. Code § 17.50(a)(1)(B) requires reliance for private causes of

174

Tex. Bus. & Com. Code § 17.46(b)(24).

action.

- 44 -

UTAH
Did Ferrero’s conduct
violate the consumer
protection law?
CA
UT

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
Utah Code § 13-11-4

Yes
Yes175

No
Yes176

No
No177

Does the law
prohibit
material
omissions?
Yes
Yes178

Are there any true conflicts of substantive law?
Yes, Utah requires scienter.

175

Utah Code §§ 13-11-19 and 13-11-10 authorize private right of action for declaratory
judgment, injunction and ancillary relief, as well as class actions for actual damages under
certain circumstances.
176

Utah Code § 13-11-4(2) (“[A] supplier commits a deceptive act or practice if the
supplier knowingly or intentionally” engages in the enumerated conduct).
177

Utah Code § 13-11-4 prohibits deceptive practices before, during, or after a consumer
transaction, and Utah Code § 13-11-19(1) allows a consumer to pursue a claim even if not
damaged by the deceptive act.
178

We have found no authority on point, but in Wade v. Jobe, 818 P.2d 1006, 1014-15
(Utah 1991), the Utah Supreme Court held that Utah’s statute should be read consistently with
the Federal Trade Commission Act, which provides that omissions can constitute deceptive or
unfair acts. See FTC v. World Travel Vacation Brokers, Inc., 861 F.2d 1020, 1029 (7th Cir.
1988).
- 45 -

VERMONT
Did Ferrero’s conduct
violate the consumer
protection law?
CA
VT

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
9 Vt. Stat. § 2453(a)

Yes
Yes179

No
No180

No
No181

Does the law
prohibit
material
omissions?
Yes
Yes182

Are there any true conflicts of substantive law?
No.

179

9 Vt. Stat. § 2461(b).

180

See Moffitt v. Icynene, Inc., 407 F. Supp. 2d 591, 603 (under the Consumer Fraud Act,
“a defendant may be liable even if he lacks the intent to deceive or mislead”); Inkel v. Pride
Chevrolet-Pontiac, Inc., 945 A.2d 855, 859 (Vt. 2008) (“no intent to deceive or mislead need be
proved [under] § 2453(a)”); Winston v. Johnson & Dix Fuel, 515 A.2d 371 (Vt. 1986).
181

9 Vt. Stat. § 2461(b) (permitting a cause of action to “[a]ny consumer who contracts
for goods or services in reliance upon false or fraudulent representations or practices prohibited
by section 2453 . . . , or who sustains damages or injury as a result of any” prohibited conduct
(emphasis added)); see also; Jordan v. Nissan N. Am., 853 A.2d 40 (Vt. 2004) (deceptive act
need only have objective capacity to deceive); Kessler v. Loftus, 994 F. Supp. 240, 242 (D. Vt.
1997) (same).
182

Kessler, 994 F. Supp. at 242 (“[a] ‘deceptive act or practice’ is a material
representation, practice or omission likely to mislead a reasonable consumer.” (internal quotation
marks and citation omitted)).
- 46 -

VIRGINIA
Did Ferrero’s conduct
violate the consumer
protection law?
CA
VA

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
Va. Code § 59.1-200;
Va. Code § 59.1-683
and § 18.2-216

Yes
Yes183

No
No184

No
Yes185

Does the law
prohibit
material
omissions?
Yes
Yes186

Are there any true conflicts of substantive law?
Yes, Virginia requires proof of actual reliance, and a violation of the Consumer
Protection Act founded upon the nondisclosure of a material fact requires evidence of a knowing
and deliberate decision not to disclose the fact.

183

Va. Code § 59.1-204.

184

Va. Code § 59.1-204A (treble damages available for willful violations; otherwise, a
defendant is liable for actual damages regardless of intent). See also Va. Code §§ 59.1-206-207.
185

Cooper v. GGGR Invs., LLC, 334 B.R. 179, 189 (E.D. Va. 2005) (“the VCPA’s plain
language as consistently construed by the courts, requires that a private VCPA claimant show
that he relied on the alleged misrepresentations claimed to constitute the prohibited practice”).
186

Lambert v. Downtown Garage, 262 Va. 707, 714 (Va. 2001) (Act covers omissions,
but “a violation of the Act founded upon the nondisclosure of a material fact also requires
evidence of a knowing and deliberate decision not to disclose the fact”).
- 47 -

WASHINGTON
Did Ferrero’s conduct
violate the consumer
protection law?
CA
WA

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
Wash. Rev. Code §
19.86.020

Yes
Yes187

No
No188

No
Yes189

Does the law
prohibit
material
omissions?
Yes
Yes190

Are there any true conflicts of substantive law?
Yes, although mixed, recent case law suggests the causation requirement under the
Consumer Protection Act would require individual determinations of reliance in this context.

187

Wash. Rev. Code § 19.86.090.

188

Tallmadge v. Aurora Chrysler Plymouth, 605 P.2 1275, 1277 (Wash. Ct. App. 1979)
(“The act is to be liberally construed, and an intent to deceive or defraud is not necessary.”
(citations omitted)).
189

Contos v. Wells Fargo Escrow Co., LLC, 2010 U.S. Dist. LEXIS 777225, at *24-25
(W.D. Wash. July 1, 2010) (explaining in class action context concerning false advertising,
causation element of act would require individual proof of reliance); Homchick v. Allstate Ins.
Co., 2005 U.S. Dist. LEXIS 25645, at *12 (W.D. Wash. Oct. 19, 2005) (“In order to demonstrate
the requisite causal link, plaintiffs must demonstrate their reliance upon the false advertisement
in purchasing the defendant’s goods or services.” (citation omitted)); but see Tallmadge, 605
P.2d at 1277 (“A claimant need not prove reliance . . . but only that the actions have a tendency
or capacity to deceive a substantial portion of the public.” (citations omitted)); Daly v. Unitrin,
Inc., 2008 U.S. Dist. LEXIS 46112, at *14-15 n.4 (E.D. Wash. June 11, 2008) (“a CPA plaintiff
need not prove justifiable reliance but rather ‘must establish that, but for the defendant’s unfair
or deceptive practice, the plaintiff would not have suffered an injury.’ By utilizing proximate
cause, rather than justifiable reliance, the CPA’s causation element is distinguished from the
negligent affirmative misrepresentation causation element.” (citation omitted)).
190

Failure to disclose a known defect in goods constitutes an unfair trade practice.
Griffith v. Centex Real Estate, 969 P.2d 486 (Wash. App. 1998).
- 48 -

WEST VIRGINIA
Did Ferrero’s conduct
violate the consumer
protection law?
CA
WV

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
W. Va. Code § 46A-6104

Yes
Yes191

No
No192

No
Yes193

Does the law
prohibit
material
omissions?
Yes
Yes194

Are there any true conflicts of substantive law?
Yes, West Virginia requires proof of reliance on alleged affirmative misrepresentations to
satisfy the causation element in a private action brought under the Consumer Credit and
Protection Act.

191

W. Va. Code § 46A-6-106.

192

W. Va. Code § 46A-6-102(7)(M) does not require intent with regard to
misrepresentations, and requires only “intent that others rely upon” any concealments.
193

White v. Wyeth, 705 S.E. 2d 828, 838 (W. Va. 2010).

194

W. Va. Code § 46A-6-102(7)(M).
- 49 -

WISCONSIN
Did Ferrero’s conduct
violate the consumer
protection law?
CA
WI

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
Wisc. Stat. § 100.18(1)

Yes
Yes195

No
No196

No
Yes197

Does the law
prohibit
material
omissions?
Yes
No198

Are there any true conflicts of substantive law?
Yes. Although the case law is a little mixed, most recent cases suggest the statute requires
individualized proof of reliance. Moreover, omissions are not actionable under the statute.

195

Wisc. Stat. § 100.18(11)(b)(2).

196

Only certain acts or omissions, not relevant here, must be made with knowledge that
the act or omission was false. Compare, e.g., Wisc. Stat. § 100.18(1) with § 100.18(12)(b). See
also Ricco v. Riva, 266 Wis. 2d 696, 669 (Wis. App. 2003).
197

Thermal Design, Inc. v. Am. Soc’y of Heating, 775 F. Supp. 2d 1082, 1089 (E.D.
Wisc. 2011); but see K&S Tool & Die Corp. v. Perfection Mach. Sales, Inc., 295 Wis. 2d 298,
325-26 (Wisc. App. 2006).
198

Schmidt v. Bassett Furniture Indus., 2011 U.S. Dist. LEXIS 3633, at *17 (E.D. Wis.
Jan. 10, 2011) (“an omission to speak [ ] is insufficient to support a claim under Wis. Stat. §
100.18(1)” (citation omitted)).
- 50 -

WYOMING
Did Ferrero’s conduct
violate the consumer
protection law?
CA
WY

Private cause
of action?

Scienter
requirement?

Individual
Reliance

Yes
Yes
Wyo. Stat. § 40-12-105

Yes
Yes199

No
No200

No
Yes201

Does the law
prohibit
material
omissions?
Yes
No202

Are there any true conflicts of substantive law?
Yes, Wyoming requires individual reliance and apparently does not cover omissions.

199

Wyo. Stat. § 40-12-108.

200

Wyo. Stat. § 40-12-113 (civil penalties require that defendant know its conduct was
unfair or deceptive).
201

Wyo. Stat. § 40-12-108(a).

202

The statute does not, on its face, cover omissions, and we have found no authority
construing it as such.
- 51 -