Only one thing counts in this life: Get them to sign on the line which is dotted! – Blake, Glengarry Glen Ross

Fee-shifting statutes, and the attorneys who represent clients in such cases, are thus vital to ensuring that the rights of consumers are vindicated in court. The importance of this public policy is not a matter of debate. – Wisconsin Supreme Court¹

Consumers who feel they have been cheated, lied to, or swindled may contact a lawyer for help. All too often a lawyer responds to the individual seeking help by reviewing the applicable document from the transaction and asking something like, “Did you sign this?” Then, if the person seeking help admits to signing the document, the lawyer begs off and says, “Sorry, then there is nothing I can do.” This occurs even when the lawyer senses that unfair, deceptive, or immoral conduct was used to obtain the consumer’s signature on the document.

The lawyer’s response is likely caused, in many instances, by unfamiliarity with the rights available pursuant to consumer protection laws. The lawyer does not ask, because he or she is unaware of, questions relevant to an investigation into whether any consumer protection laws were violated, including the following:

How were you solicited? Who did you speak to? What did each person say? What written information were you shown or given? Was credit reporting involved in this situation? Did it turn out that anything that was said or promised to you was not true? What was going on around you during the interaction or transaction?

As a result, consumer protection claims usually go undetected, even when a lawyer is consulted. Many lawyers may have a desire to help consumers who have been cheated or dealt with unfairly but who do not know that relief may be available through an array of state and federal consumer protection laws that were enacted to enforce honesty and fair dealing in the marketplace.

This article addresses three issues to help equip a lawyer interested in representing consumers who have suffered economic harm in the marketplace. First, it describes the nature of a private consumer law practice. Second, it surveys the subject matter covered by more than two dozen state and federal consumer protection statutes.² Third, it lays out the process of obtaining a court award of attorney fees and costs from the wrongdoer pursuant to a consumer protection statute.

This article identifies only consumer protection statutes that provide a fee-shifting remedy for consumers. There are certainly other claims to consider when addressing consumer complaints that do not contain a fee-shifting remedy, for example, common-law fraud, but those are not addressed here. Due to space limitations, a review of the specific remedies available under each law is not provided. Actual damages, statutory damages, double damages, cancellation, voiding the transaction, or some combination of these, are common remedies.

Interested readers should choose one of the identified consumer protection laws to read in its entirety and delve into the enumerated requirements, prohibited practices, remedies, case law, relevant commentaries,³ and industry practices.

What a Private Consumer Law Practice Looks Like

The private practice of consumer law involves representing consumers in civil actions, both prosecution and defense, to enforce laws addressing unfair, deceptive, unconscionable, and immoral conduct in the marketplace. It is the privatization of law enforcement for what can be characterized as social crimes.

Consumer protection laws address practices spanning a wide spectrum of economic conduct and industries: auto sales, leasing, and repairs; repossessions; lemon automobiles; odometer tampering; the making of false or deceptive representations to sell a product; credit discrimination; mortgage lending; payday loans; home improvements; credit reporting; credit repair companies; debt settlement companies; door-to-door sales; online sales; student loans; timeshares; telemarketing; debt collection; debt buying; dating services; gym memberships; and credit card disputes and billing errors.

Consumer protection laws are enacted by Congress and state legislatures pursuant to the “private attorney general” concept.⁴ To save the costs of creating a governmental agency tasked with enforcing every violation of every consumer protection law, Congress and state legislatures have enlisted and granted authority to consumers to enforce the laws. Consumers take on the task of law enforcement for the same type of cases prosecuted by state and federal consumer protection agencies.

However, because consumers do not have lawyers on staff, government salaries, or substantial investigative resources, consumer protection laws typically are enacted with “fee-shifting” provisions. Fee-shifting provisions allow a consumer who successfully prosecutes a claim to recover the reasonable attorney fees and costs required to enforce the law from the wrongdoer, that is, the individual or business that violated the law.

Fee-shifting statutes are enacted to encourage private enforcement of important consumer protection laws. Congress and state legislatures have determined that the public as a whole has an interest in the vindication of the statutory rights.⁵Therefore, consumers, and lawyers who are willing to represent them, are an integral part of the strategy to guarantee honesty and fairness in the marketplace. If consumers are not able to hire competent consumer protection lawyers, that strategy for policing the marketplace fails. It is vital that consumers prosecute violations of consumer protection laws both to ensure that the marketplace is fair for all consumers and to ensure that honest businesses are not disadvantaged by allowing the conduct of predatory businesses to prevail.

The enactment of consumer protection laws with fee-shifting provisions makes it more likely that all violations can be addressed, giving incentive to consumers and lawyers to prosecute the claims. “[A]n important purpose of fee-shifting statutes is to encourage injured parties to enforce their statutory rights when the cost of litigation, absent the fee-shifting provision, would discourage them from doing so.”⁶ Fee-shifting encourages attorneys to take meritorious cases they would not otherwise take because the amount at stake is not large.⁷ “The cumulative effect of minor transgressions is considerable, yet they would not be deterred if fees were unavailable.”⁸ Fee-shifting thus prevents wrongdoers from “inflicting with impunity small losses on the people whom they wrong.”⁹

There are many compelling reasons to practice consumer law. First, all consumers need competent representation. Access to the justice system should not depend on a person’s income. Second, there is a great need in many areas of Wisconsin for private lawyers to handle consumer law cases. Many consumer protection laws are routinely not followed by those subject to them. Third, there are many areas to focus in under the umbrella of consumer law, depending on the lawyer’s preference. Entire practices can be built on the prosecution of deceptive sales practices, car fraud, debt collection abuses, credit-reporting problems, or mortgage fraud.

Fourth, lawyers can choose to handle a variety of types of cases, to practice in state or federal courts or both, and to handle individual or class actions. Other compelling reasons include the opportunity to make a living doing rewarding and socially beneficial work, to represent individuals in the most economically vulnerable groups in society, and to hold wrongdoers accountable for illegal, immoral, and unethical conduct.

Fee-shifting provisions allow a consumer who successfully prosecutes a claim to recover the reasonable attorney fees and costs required to enforce the law from the wrongdoer, that is, the individual or business that violated the law.

Despite all the reasons for practicing consumer law, there are relatively few lawyers in Wisconsin handling these cases. In addition to general unfamiliarity with the subject matter and relief available under consumer protection laws, there may be other factors at play.

One concern might be the contentious nature of some consumer protection litigation. To practice consumer law, it is important to possess, or be willing to develop, strong litigation skills. By definition, if a lawsuit involves claims under one or more consumer protection statutes, an individual or business is being accused of dishonest conduct or unfair business practices. Many cases involve challenging businesses or industries not often challenged for their standard operating procedures. Sometimes the standard operating procedures have been carefully crafted to reap maximum profits from unsuspecting consumers.

Defendants frequently engage in hard-line defense tactics. The potential impact of the important legal questions presented in consumer protection litigation often induces defendants to litigate them to the fullest.¹⁰ This conduct is precisely why consumer protection laws include fee-shifting provisions, to put the parties on an even playing field. Regardless of the available remedies, some lawyers are not interested in dealing with the level of confrontation involved in much consumer law litigation.

Another reason consumer law practice might not be attractive to many lawyers is the uncertainty involved in getting paid, or as the Wisconsin Supreme Court has put it, the “significant risk that [the consumer protection lawyer] will not be paid, because they may not ‘win’ a case.”¹¹ Many lawyers would not choose to practice in an area with this level of risk and uncertainty under a contingent-fee-representation model.

Lawyers may also shy away from the practice of consumer law because the issues are rarely sexy or glitzy. Consumer protection claims involve common, everyday types of economic dealings concerning cars, household products, mortgages, and debt. A case might involve claims being denied on a warranty for a $600 washing machine, a $1,500 vacuum cleaner that was sold in a high-pressure sale in the consumer’s home, a $7,500 used car that stopped running two blocks from the dealership, or debt collection, repossession, or foreclosure. These are not glamorous issues.

In addition, although the amounts involved may be the cause of economic ruin for the consumer, the attitude a consumer lawyer often encounters from the defendants, counsel for the defendants, and even some courts, is that the claims involve what they consider to be small amounts of money and thus are not worthy of the time, expense, or discovery necessary to properly litigate the claims.

Identifying Relevant State and Federal Consumer Protection Laws

The provisions of the vast majority of consumer protection laws can be summed up in three simple tenets:

1. Be honest.

2. Do not engage in unfair or deceptive practices.

3. Provide accurate and relevant disclosures.

Compliance with each of these tenets is obviously crucial to a consumer’s ability to make informed decisions in the marketplace. If a lawyer is presented with a consumer complaint in which one or more of these tenets has been violated, there is a good chance that relief might be available for the consumer. The lawyer must then locate a statute governing the conduct that is the subject of the consumer’s complaint and determine any possible relief. Therefore, an important and practical first step for a lawyer who wants to address economic harm to consumers is to become familiar with the subject matter of state and federal consumer protection statutes.

A smorgasbord of state and federal statutes governs conduct in consumer transactions and interactions in Wisconsin. A list of many state and federal consumer protection statutes and their general scope accompanies this article (see State and Federal Consumer Protection Laws sidebar). It would be wise to review the list to gain familiarity with the subject areas. Some of the statutes govern a specific type of conduct or a particular industry. Most, but not all, only govern “consumer transactions,” frequently defined as transactions entered into “for personal, family or household purposes,”¹² and are not applicable to transactions with a business purpose. Some have jurisdictional dollar limits, and others do not.

Often, multiple consumer protection statutes will apply to one consumer problem or situation. For example, a consumer may complain to a lawyer because a home roofing company that had gone door to door soliciting work and arranging financing obtained a mortgage on the consumer’s home, took the financed funds, and disappeared before the work was completed. This situation could involve claims pursuant to statutes governing false representations, consumer-credit-transaction disclosures and practices, consumer-approval transactions, home-improvement trade practices, first-lien residential mortgages, transactions solicited face-to-face, warranties, credit reporting, and debt collection. This is why knowledge of the scope of consumer protection statutes is vital to be able to assist consumers experiencing economic problems in the marketplace.

Obtaining an Award of Attorney Fees and Costs

A request made to a court for an award of the consumer’s attorney fees and costs is often referred to as a “fee petition.” Planning for and preparing a fee petition, and defending it if necessary, is a straightforward but time-consuming process. The following steps are the path from considering whether to represent a consumer to obtaining an award of reasonable attorney fees and costs for the consumer from the court.

Conduct a thorough investigation. Preparation for a possible fee petition begins before the lawyer agrees to represent the consumer. The lawyer should conduct a comprehensive interview with the consumer concerning all the circumstances of the complaint; investigate the individuals, business, or industry that are the subject of the complaint; and then review applicable consumer protection statutes to determine if the conduct the consumer is complaining about constitutes a violation of one or more statutes.

Enter into a written fee agreement with the client. If the consumer and the lawyer agree to work together to prosecute consumer law violations, they should enter into a written fee agreement¹³ setting forth, at a minimum, what the lawyer is undertaking to do, how the lawyer will be paid (by the hour, on a contingency, or some combination), the lawyer’s current hourly rate, and whether the consumer willpay the out-of-pocket costs as they accrue or the lawyer will pay them and receive reimbursement from the consumer from any recovery.

Keep time and expense records throughout the litigation. During the litigation, the lawyer must keep accurate and contemporaneous time records. The time records should be filled with details and specificity on the tasks completed. The lawyer should also keep detailed records of costs and expenses.

Determine whether the consumer has prevailed. To qualify for an award of attorney fees and costs, the consumer must be the “prevailing party.” A party is the prevailing party if successful on any significant issue in litigation that achieves some of the benefit the party sought in the lawsuit.¹⁴ Success can be damages, injunctive relief, declaratory relief, or that a wrongdoer changed conduct in response to the claim.

The potential impact of the important legal questions presented in consumer protection litigation often induces defendants to litigate them to the fullest. This conduct is precisely why consumer protection laws include fee-shifting provisions, to put the parties on an even playing field.

File a fee petition with the court. The lawyer must prepare and file a fee petition with the court. The consumer’s fee petition to the court consists of a motion for an award of attorney fees and costs, a supporting brief, and an affidavit from the consumer’s lawyer.

The motion should contain the findings of the court or jury, or the stipulated terms, that make the consumer a prevailing party. The motion should also cite the statute that gives the consumer the right to the award of attorney fees and costs.

The supporting brief should contain discussions of the following, as appropriate to the case: 1) the posture of the case and why the consumer is a prevailing party; 2) the statutes that entitle the consumer to the award and specific statutory factors and case law the court should consider; 3) the hours the lawyer reasonably spent on the case with references to his or her time records attached to the supporting affidavit; 4) particular facts in the case that contributed to the amount of work done by the lawyer; 5) the lawyer’s hourly rate and the basis for seeking that rate, including the lawyer’s qualifications; and 6) the justification for fee-shifting in this type of case in general and this consumer’s successful claim in particular.

The affidavit by the consumer’s lawyer should contain the following information about the lawyer, as applicable to the lawyer and the case: 1) the number of years the lawyer has been practicing law and relevant experience he or she has in this specific area of law; 2) the lawyer’s bar admissions, publications, presentations, seminars, and published cases; 3) the lawyer’s time records, set forth in affidavit form or attached as an exhibit to the affidavit; 4) the total hours spent on the case for which the consumer seeks payment in the fee petition; 5) the lawyer’s hourly rate; 6) any facts specific to the case that support the factors the court is required to consider for the award; and 7) an itemization of the costs for which the consumer seeks to be paid by the wrongdoer.

File supporting affidavits from other lawyers along with the fee petition. In conjunction with the fee petition, the lawyer should obtain one or more affidavits from other lawyers practicing in the area to present to the court in support of the hourly rate being sought for the consumer’s lawyer. The other lawyers should be asked to attest to their knowledge of the range of hourly rates for lawyers in the applicable region and area of law and to state whether the hourly rate being sought for the consumer’s lawyer is within that range. If applicable, the supporting affidavits can include testimony concerning the consumer lawyer’s work, experience, and reputation in support of the hourly rate being sought for the consumer’s lawyer.

Defend the fee petition, as appropriate. Once the consumer presents the documentation in support of the fee petition, the wrongdoer may contest the requests with appropriate record evidence, for example, claims that too much time was spent on a task or work was done that was unnecessary or duplicative. It is not appropriate for the wrongdoer to retry the merits of the case or make personal attacks on the consumer or the consumer’s lawyer in its response. If necessary, the consumer can then file a reply to rebut specific issues or time entries to which the wrongdoer has chosen to object.

Prepare for the court’s decision. The award of reasonable attorney fees is a matter for the judge, not the jury.¹⁵ Most courts make decisions on fee petitions based on the written filings and do not hold hearings. Courts must use the lodestar method – the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate – as a starting point in the determination.¹⁶ The court is required to apply reasonable private-sector rates to determine a reasonable hourly rate.¹⁷

After determining the lodestar, the court must review factors regarding the work performed to make the final fee determination. The U.S. Supreme Court has enumerated 12 factors for courts to consider.¹⁸ The Wisconsin Supreme Court adopted the same factors¹⁹ and has determined that the factors set forth in SCR 20:1.5(a)²⁰ should be used when determining the reasonableness of a fee.²¹ The award of attorney fees need not bear a proportional relationship to the amount of money involved in the litigation and the recovery obtained.²²

However, for Wisconsin state law claims, there was a statutory presumption enacted in 2011 that reasonable attorney fees do not exceed three times the amount of compensatory damages recovered. ²³ The presumption can be overcome if the court determines, after reviewing 15 enumerated factors including a catch-all for any factor the court deems important or necessary, that a greater amount is reasonable.²⁴

Costs and expenses of the litigation are compensable under many consumer protection statutes. “Costs” are not limited to statutory costs.²⁵ Some courts have found that “attorney’s fees” as it appears in statutes is shorthand for “attorney’s fees plus all other reasonable expenses of suit.”²⁶

Conclusion

Despite clear congressional and state legislative intent that consumer protection laws be enforced by consumers acting as private attorneys general, the vast majority of violations of consumer protection statutes go undetected and are never prosecuted. One reason for this failure is the lack of familiarity of most lawyers with consumer protection statutes and the relief provided for consumers.

Any lawyer interested in addressing the problem can be better prepared for the next time a consumer asks for help by taking the time now to learn the types of conduct, transactions, and industries that are governed by various consumer protection statutes and to learn how to prosecute consumer law claims with fee-shifting provisions in private practice.

Endnotes

¹ Betz v. Diamond Jim’s Auto Sales, 2014 WI 66, ¶ 28, 355 Wis. 2d 301, 849 N.W. 2d 292.

² Although the discussion includes a few Wisconsin Administrative Code regulations, this article will refer to all the statutes and regulations collectively as statutes.

³ The Consumer Credit and Sales Legal Practice Series is published by the National Consumer Law Center, 7 Winthrop Square, Boston, MA 02110-1245, www.nclc.org. The series includes excellent comprehensive guides on consumer law topics including Fair Debt Collection, Foreclosures and Mortgage Servicing, Repossessions, Student Loan Law, Truth in Lending, Fair Credit Reporting, Mortgage Lending, Consumer Credit Regulation, Credit Discrimination, Consumer Banking and Payments Law, CollectionActions, Consumer Class Actions, Consumer Law Pleadings, Consumer Arbitration Agreements, Unfair and Deceptive Acts and Practices, Automobile Fraud, Consumer Warranty Law, and Federal Deception Law. These manuals are a vital resource for a consumer law practice and many contain sample pleadings, review checklists, and other practice information. The publications are also online.

⁴ Shands v. Castrovinci, 115 Wis. 2d 352, 358, 340 N.W.2d 506 (1983); City of Riverside v. Rivera, 477 U.S. 561, 574-80 (1986); Tolentino v. Friedman, 46 F.3d 645, 651-652 (7th Cir. 1995); Graziano v. Harrison, 950 F.2d 107, 113 (3d Cir. 1991).

⁵ City of Riverside,477 U.S. at 574; Tolentino, 46 F.3d at 652.

⁶ Kolupar v. Wilde Pontiac Cadillac Inc. (Kolupar II), 2007 WI 98, ¶ 55, 303 Wis. 2d 258, 735 N.W.2d 93 (citing Shands, 115 Wis. 2d at 358).

⁷ Shands, 115 Wis. 2d at 358; Lynch v. Crossroads Counseling Center Inc., 2004 WI App 114 ¶ 45, 275 Wis. 2d 171, 684 N.W.2d 141; Cook v. Public Storage Inc., 2008 WI App 155, ¶ 85, 314 Wis. 2d 426, 761 N.W.2d 645.

⁸ Fletcher v. City of Fort Wayne, Ind., 162 F.3d 975, 976 (7th Cir. 1998).

⁹ Orth v. Wisconsin State Employees Union Council 24, 546 F.3d 868, 875 (7th Cir. 2008).

¹⁰ First Wis. Nat’l Bank v. Nicolaou, 113 Wis. 2d 524, 539, 355 N.W.2d 390 (1983).

¹¹ Betz, 2014 WI 66, ¶ 29, 355 Wis. 2d 301.

¹² See, e.g., Wis. Stat. § 421.301(17) (Wisconsin Consumer Act); 15 U.S.C. § 1692(a)(5) (Fair Debt Collection Practices Act); Wis. Admin. Code § ATCP 127.01(3) (Direct Marketing).

¹³ Any contingency-fee agreement must be in writing. SCR 20:1.5(c).

¹⁴ Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (citing Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)).

¹⁵ Tesch v. Tesch, 63 Wis. 2d. 320, 335, 217 N.W.2d 647 (1974); Brooks v. Cook, 938 F.2d 1048, 1051 (9th Cir. 1991).

¹⁶ Hensley, 461 U.S. at 433; Kolupar v. Wilde Pontiac Cadillac Inc. (Kolupar I), 2004 WI 112, ¶ 30, 275 Wis. 2d 1, 683 N.W. 2d 58.

¹⁷ State Ex. Rel. Hodge v. Town of Turtle Lake, 190 Wis. 2d 181, 186, 526 N.W.2d 784 (Ct. App. 1994); Shands, 115 Wis. 2d at 362.

¹⁸ Hensley, 461 U.S. at 430 n.3. See the accompanying sidebar for the factors.

¹⁹ Kolupar I, 2004 WI 112, ¶ 30, 275 Wis. 2d 1.

²⁰ SCR 20:1.5 (a) A lawyer’s fee shall be reasonable. See the accompanying sidebar of the factors to be considered in determining the reasonableness of a fee.

²¹ Kolupar I, 2004 WI 112, ¶ 24, 275 Wis. 2d 1; Village of Shorewood v. Steinberg, 174 Wis. 2d. 191, 204, 496 N.W.2d 57 (1993).

²² City of Riverside,477 U.S. at 581; First Wis. Nat’l Bank, 113 Wis. 2d at 538.

²³ Wis. Stat. § 814.045. Attorney fees: reasonableness. See the accompanying sidebar.

²⁴ Id.

²⁵ Kolupar II, 2007 WI 98, ¶ 42, 303 Wis. 2d 258 (discussing Wis. Stat. § 218.0163(2)).

²⁶ Heiar v. Crawford Cty., 746 F.2d 1190, 1203-04 (7th Cir. 1984); Henry v. Webermeier, 738 F.2d 188, 191-192 (7th Cir. 1984).