Memo
To: Members of Seminar on Unfair and Deceptive Acts and Practices Under State Law (UDAP)
From: Professor Clifford
Re: Welcome!
Date: August 16, 1999
Welcome to the UDAP seminar! The focus of the seminar is the state law
of unfair and deceptive acts and practices. Your principal activity will
be the preparation of a paper on a topic of your choice on some aspect
of the subject. You may choose to write on the law of any specific state
or more generally.
As essential background for that work, we will devote several class
sessions to the federal law of unfair and deceptive trade practices and
then turn to consideration of state law developments. During this period
of class meetings, you will also contemplate possible seminar paper topics.
Our background class meetings will be based on mimeographed materials,
the first installment of which is enclosed. The first page contains §5
of the FTC Act, the beginning point for UDAP law at both federal and state
level, and two other sections that relate to advertising cases. Cases and
other materials follow.
UDAP law involves two concepts: deception and unfairness. The Charles
of the Ritz case (pp 2-4) is illustrative of earlier federal treatments
of deception. Many states still use that legal standard and therefore we
need to consider it. However, there has been some change at the federal
level. It began with the statement on deception (pp. 13-22) which was somewhat
controversial as you will see in the dissenting statement. The FTC v. Pantron
case (pp.5-12) illustrates current FTC practices and remedies available
for violation of the federal Act. The International Harvester case (pp.
24-40) covers both deception and unfairness. Read the deception part in
conjunction with the other deception materials.
We will then take up unfairness, starting with the FTC statement (pp.41-44).
(In contrast to the deception standard, the Commission was unanimous on
this statement.) Consider the other half of International Harvester and
the FTC trade regulation rule on unfair credit practices (on pp. 22-23)
as illustrative. The Mail or Telephone Order Merchandise Trade Rule (on
pp. 45-47) invokes both deception and unfairness. The excerpts from the
Statement of Basis and Purpose for promulgation of the rule illustrate
the analysis that the Commission must make in promulgating a rule. Finally,
the memo on pp. 53-55 indicates the statutory amendment which tracks the
Unfairness policy of the Commission.
While going through these federal materials, you should begin to consider
the problems of translating the law of a federal administrative agency
into a state rule for state and private actions. State law materials will
be provided later.
During these first weeks of study, you should also begin to consider
possible topics for your paper. Your paper must be prepared for this course
and cannot be in whole or in part the product of any other work you have
done in or out of the law school. The use of any other work must be cleared
by me before you begin.
A broad range of possible topics is open to you. Your topic, however,
must relate to state laws of unfair and deceptive acts and practices. It
cannot refer to unfair or deceptive practices under the Lanham Act or Trademark
statutes. I will meet individually with you to approve your topic and then
unleash you for work. During the individual working period I will expect
to meet with you almost weekly to discuss progress. We will, of course,
conclude with a presentation of papers.