Groupon deceptive gift certificates

March 24, 2011

Groupon helps arrange group discounts. You’ve probably heard of the website, and maybe you’ve been able to get an amazing deal.

But maybe there was an expiration date for taking advantage of that deal.

Legally, because you paid, up front, for the privilege of getting the deal, Groupon cannot call this a “coupon.” State and federal law are clear that this is a true “gift certificate.” A coupon can have an expiration – but a gift certificate cannot.

The idea is that with a gift certificate, you have already paid for goods or services, so no profit should be made simply because you have not been able to use it yet. A coupon is more like an invitation to buy, so no harm is done to a consumer if you don’t use it within a certain time period.

Lawsuits are already being filed by people who have not been able to get a refund from groupon when the deal was about to expire.  Prentiss Cox, a law professor at the University of Minnesota, who was interviewed stated “It looks like a new company that really didn’t do its homework.” Groupon knew, or should have known, about the prohibition against an expiration date for the deals it offers.

If you have been left without a refund or the ability to use your deal, you may want to contact an attorney to discuss your options. The deceptive trade practice means that your attorney’s fees may have be paid by Groupon.

What is a Technical Service Bulletin (TSB)?

January 27, 2011

A Technical Service Bulletin, often abbreviated TSB, is an instruction, issued by manufacturer, about a specific repair issue on a particular year, make ad model vehicle. Think of them as a midpoint between a normal repair attempt and a Recall.

Sometimes, the manufacturer identifies a defect with a vehicle, but it judges the problem is not a serious safety concern.  So the manufacturer prepares a TSB, which details how to fix this known problem, and sends it to dealerships and mechanics. The next time a consumer comes in complaining of this defect, the dealership is supposed to apply the TSB to take care of the problem.

While a recall generally applies to all vehicles of a certain year, make, and model,  sometimes only certain vehicles in the production run demonstrate the actual defect. This is another situation in which a TSB might be issued. The cost of a full recall is judged too expensive, because not every vehicle actually needs the repair. But the manufacturer knows about the problem, so it issues a TSB, which it knows will only be applied if a consumer shows up at the dealership complaining about that problem.

If enough people complain about the same problem with their vehicles, a manufacturer may issue a TSB even though it did not previously believe a problem existed. The TSB may contain research by the manufacturer’s engineers about how to eliminate the problem or how to diagnose if the problem is identical to the one other consumers have reported.

A TSB can be issued without the manufacturer having a solution to the problem.  A TSB could merely contain the manufacturer’s position as to why the problme is not really a defct that needs to be repaired. A TSB may just inform mechanics that the problem is known to be widespread, but a solution is still being developed. A TSB may be issued with a proposed solution for the complaint, but prove to ultimately be ineffective in fully and finally resolving the problem .

The Wikipedia article on TSBs suggest that they contain no obligation to fix a vehicle for free, but the fact a manufacturer saw fit to issue one creates  legal issues. For example, failing to fix a vehicle subject to a TSB may breach an implied warranty or be considered an unfair or deceptive trade practice. If a problem persists past the expiration of warranty, a TSB may be proof that the repair was not completed or at least not completed properly. In that case, the manufacturer issuing the warranty may have an obligation to now complete the repair, even if the vehicle is outside the warranty period.

The National Highway Traffic Safety Administration (NHTSA)  maintains a good resource for checking whether your vehicle has a pending TSB. Your local dealership should also have easy access to a database to check whether the TSBs apply to your vehicle.

More about the Toyota Recall

November 2, 2010

First came news of a massive Toyota recall for unintended acceleration, then came reports that perhaps few if any of the vehicles actually had verifiable problems.

Now, however, an article alleges that Toyota was secretly repurchasing vehicles that demonstrated unintended acceleration. The consumer would then sign a confidentiality agreement, allowing Toyota to mislead the entire public about the lack of acceleration problems.

Toyota claims that sometimes they would repurchase the vehicles to be able to test them. Toyota continues to claim, as well, that the problem are overwhelmingly user error or nonexistent.

Yet, with a recall covering tens of millions of vehicles and a $16.4 million fine, it seems more plausible that some vehicles must have had problems. While a repurchase does not prove the vehicle had a defect, it does show that the consumer had legal evidence that encouraged Toyota to resolve the claim. Part of Toyota’s problem has been trying to cover up defects rather than address them. At a minimum, plaintiffs and consumers should be entitled to explore the evidence in those repurchased vehicles.

Can a lemon be “certified pre-owned?”

November 1, 2010

One remedy provided by the Missouri lemon law is a “repurchase” of the consumer’s vehicle. In other words, the manufacturer will take title to the vehicle. But what happens to the vehicle next?

Sometimes the manufacturer will test the vehicle, trying to duplicate and ultimately correct the nonconformities. Sometimes the vehicle will be scrapped. Sometimes the vehicle will be sold at auction and eventually resold with a salvage title.

But stories about some consumers’ experiences suggest that it is easy for manufacturers to simply resell these repurchased lemon vehicles as used cars. One article alleges that BMW resold cars it knew had defective high-pressure fuel tanks. Another article alleges that Volkswagen and Kia have similar practices.

Missouri does not have a statute that specifically requires a manufacturer to change the Title of a vehicle to “salvage” after a lemon law repurchase. Thus, if a manufacturer failed to report a repurchase, it is possible a consumer could end buying a vehicle that has been legally designated a “lemon.”

There are other laws, however, that could protect consumers. Sometimes the company providing a title report about the vehicle may be liable for not finding out all the important information, sometimes the dealership may be liable for misrepresentation, and sometimes the manufacturer may repurchase the vehicle again to avoid embarassment.

Care is always required when purchasing a used vehicle. If problems are discovered, getting old repair orders or even contacting prior owners may yield interesting information.

Missouri Merchandising Practices Act

August 13, 2010

The Missouri Merchandising Practices Act  (MMPA) can be a powerful consumer protection statute. It states that the

 The act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce or the solicitation of any funds for any charitable purpose, as defined in section 407.453, in or from the state of Missouri, is declared to be an unlawful practice.  section 407.020 R.S.Mo.

Almost none of the important terms are defined by the statute. What is considered deceptive? What constitutes an unfair practice? Under Missouri law, if there is no definition, then we should use the ordinary meaning of the terms. In other words, if you can make a reasonable argument, using common sense, then perhaps you can use the statute.

The law requires only that “any material fact in connection with the sale or advertisement”  of the product must be “in or from the state of Missouri” to have a cause of action. If the vehicle as purchased in Missouri, then clearly that is a material fact.

But if the vehicle was purchased in another state, perhaps the money can from Missouri, or the dealership advertised in Missouri, or some of the later repair attempts occurred in Missouri. As long as the vehicle “directly or indirectly affecting the people of this state,” then you might be able to use the MMPA.

The MMPA also only applies to vehicles that are used “primarily for personal, family or household purposes.” The federal lemon law, the Magnuson-Moss Warranty Act, uses similar language.  There are many cases from many states that explain while automobiles are often used for both personal and commercial uses, they should nevertheless be considered a consumer product.  Manufacturers, who make this argument, often for bigger trucks, rarely succeed in preventing a consumer’s claim.

There is one significant pitfall associated with the MMPA. “The court may, in its discretion, award punitive damages and may award to the prevailing party attorney’s fees.” Section 407.025 R.S.Mo. By using the words “prevailing party,” Missouri allows for the possibility of a manufacturer recovering its attorneys fees back from a consumer if a consumer loses an MMPA claim. In that situation, not only would a consumer not win any money from the manufacturer, but could end up actually owing the manufacturer money. The good news, though, is that if a consumer prevails and the jury awards money damages, then the judge can award additional money from the manufacturer to pay for the consumer’s attorney’s fees. 

Even with a strong Missouri state lemow or federal lemon law case, it often makes sense to also argue that the manufacturer has violated the Missouri Merchandising Practices Act while additional facts are discovered.

About the Lemon Laws

April 15, 2010

If you own a product you feel is defective or does not meet your expectations, a “lemon law” can provide additional help, beyond just another repair attempt and another repair attempt and another repair attempt…

The word “lemon” has been used to refer to something that is unsatisfactory since Shakespeare, in “Love’s Labour’s Lost,” Act V, Scene II.  The first “lemon law” to protect vehicle owners was passed in Connecticut in 1982. That law is still on the books as Title 42, Chapter 743b of the General Statutes of Connecticut.  Since then, all 50 states have passed a lemon law, including Missouri in 1984.

The Missouri state lemon law covers new vehicles purchased in the last 18 months. If you have been to the dealership four or more times for repair attempts or if your vehicle has been at the dealership for more than 30 days, then you may be able to ask the manufacturer to take the vehicle back and refund your money.

In 1975, the federal government passed a law, the Magnuson-Moss Warranty Act,  designed to protect consumers of almost product, including cars and trucks and electronics and appliances, as long as it came with a warranty.

If your product has had an unreasonable number of repair attempts , or has been at the dealership for an unreasonable length of time, then you may be able to recover money and keep the product to do with as you please.

Furthermore, if your vehicle still has an ongoing problem, then the manufacturer may have breached the warranty, meaning the manufacturer may owe you money because they have been unable, or unwilling, to actually fix the vehicle.

Law Office of Bryan Brody has experience with these laws and more.  Please contact us to obtain more information about how we might be able to help you.

How To Choose a Lemon Lawyer

April 14, 2010

Welcome to Law Office of Bryan Brody, a Missouri law practice dedicating to helping Missouri consumers.

My office is in Chesterfield, a suburb of St. Louis, and I am able to represent clients in all 114 counties (and the independent City of St. Louis).

If you have a defective product, such as a car or truck, follow this link to learn how the “lemon laws” can help you.

Substantially Impair the Use, Value, or Safety

April 11, 2010

The Missouri lemon law allows a manufacturer to try to prove that the problems with a consumer’s vehicle do not substantially impair the use, market value, or safety. If a vehicle has had 4 or more repair attempts, but the nonconformities are not serious, a manufacturer may not have to repurchase or replace the vehicle.

Missouri courts have held that whether the issues with a vehicle are “substantial” should be left to a jury. This means the manufacturer may make the argument, but will have to wait until trial to do so.

Whether a problem impairs the use of a vehicle should be analyzed from the perspective of the consumer. A manufacturer would otherwise always claim that the nonconformity was not  substantial. Even a small option may have been important to the vehicle owner. Furthermore, each component is important, because  every component is necessary to have the use of a complete vehicle.

Almost all repeat repair attempts would ultimately affect the value of a vehicle. Imagine if a consumer was about to purchase a vehicle, but right before they signed the purchase agreement, the salesman informed the consumer that the vehicle was going to require at least 4 repair attempts. Most reasonable consumers would no longer pay the same amount as they would have before learning of the issues.

The safety of the consumer is of paramount importance. If a vehicle’s problems could cause injury to the owner, or others on the road, the consumer should not be driving it. Often, though, a consumer has little choice but to continue driving a vehicle. The Missouri lemon law should help take such vehicles off the road before an accident occurs.

Out-of-state cars and the Missouri Lemon Law

April 5, 2010

Sometimes, a vehicle is purchased or repaired or is currently parked in a state other than Missouri, even though the owner is currenlty a Missouri resident. The Missouri lemon law covers this situation.

The Missouri lemon law applies to a vehicle purchased in another state if “any material fact in connection with the sale or advertisement”  was “in or from the state of Missouri.”  The law does not specifically say what a material fact is, but Missouri courts  will “liberally construe” the term, meaning they will consider a wide range of conduct. Materials facts may include the residence of the purchaser, the location of the bank where the down payment money originated, the location of the lien holder, advertisements placed in Missouri, or even repair  attempts that were performed in Missouri. 

Furthermore, the Missouri lemon law applies to any product “wherever situated,” as long as the product directly or indirectly affects the people of Missouri. Even if a car originated in another state, and even if material facts regarding the sale of the car were not in or from Missouri, the lemon law may still apply. Perhaps the vehicle now resides in Missouri, or did so for a crucial period of the repair history.

The Missouri lemon law does not require that every relevant fact has occured in Missouri.  If a consumer can show a connection to Missouri, and the vehicle otherwise meets the Missouri lemon law requirements, a Missouri judge is more likely to want to rule based on the Missouri lemon law than on another states’ law.

How many repairs are unreasonable in Missouri?

March 15, 2010

Both the Missouri lemon law and the Magnuson-Moss Warranty Act (federal lemon law) require a manufacturer to repair a problem within a reasonable number of attempts or within a reasonable amount of time.

The Missouri lemon law requires a car manufacturer to “conform the new motor vehicle to any applicable express warranty…after a reasonable number of attempts.”

How many repairs are unreasonable? The Missouri lemon law states that it shall be “presumed” that 4 or more repair attempts are evidence that the manufacturer has failed to fix the vehicle within a reasonable number of attempts.

A presumption is a legal rule about the burden of proof, which requires a fact-finder, such as a judge or jury, to find that the evidence favors a particular party.  For example, the expression “innocent until proven guilty” is just a restatement of the presumption of innocent.  A judge or jury must conclude that the accused is not guilty, absent proper evidence to the contrary.

In a civil trial, the consumer presents evidence first, then the Defendant gets a chance to offer its counter-evidence. Without a presumption, a consumer could present evidence, the manufacturer could offer none, and a consumer could still lose. A judge or jury may simply not be persuaded by the consumer’s evidence.

But in a Missouri lemon law case, if a consumer puts on evidence of 4 or more repair attempts (or 30 or more days out of service), and the manufacturer offers nothing, the consumer wins. A judge or jury would be required to find that the vehicle was a lemon. The number of repair attempts is automatically persuasive evidence.

A presumption can be “rebutted.” In a criminal case, for example, the prosecutor will offer evidence trying to prove guilt.  In a lemon law case, a manufacturer might try to prove that the consumer abused, neglected, or modified or altered the vehicle.  Many manufacturers try to defend Missouri lemon law cases by focusing on whether the problems “substantially impair the use, value or safety” of the consumer’s vehicle. Such evidence would then be weighed by the judge or jury before determining whether the number of repair attempts were unreasonable.

However, a consumer might want to show there have been 3 identical repair attempts, or perhaps there have been 4 repair attempts but not all of them were within the first 12 months of purchase. In that situation, the consumer will not get the benefit of the “presumption,” but should be allowed to put on evidence to try to convince a judge or jury that fewer repair attempts were nevertheless unreasonable. Even if the manufacturer offers little or no evidence, the consumer might still lose the trial, because a judge or jury will not be bound to find in the consumer’s favor.

Many vehicles do not qualify for the Missouri lemon law presumption, but the Magnuson-Moss Warranty Act (federal lemon law) offers a possible alternative argument.

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