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Class Actions in Consumer Cases

Posted by Clyde Hutchins | Jan 09, 2017 | 0 Comments

Class Actions in Consumer Cases

As many readers of this blog know, I practice in both Wyoming and Colorado. Because of my practice, I often run across interesting discrepancies between the two states' consumer protection laws. One of the unique differences between Wyoming and Colorado consumer law is the way that state level class actions are maintained.

Attorneys' Fees

A close reading of the consumer protection acts of the two states reveals that in Wyoming a consumer is statutorily allowed to obtain an award of attorney fees if they prevail in a consumer class action lawsuit. In contrast, there is no statutory right to fees in Colorado consumer class action lawsuits. The mechanism for recovery of fees is the common interest fund. And the opposite is true with single consumers. In Wyoming, there is no right to recover fees for an individual consumer, but there is in Colorado.

Public Interest Requirement

Another interesting twist is provided to us by Colorado jurisprudence regarding the public interest requirement. A Colorado class action lawsuit must establish that it it is being advanced in the public interest. There is no corresponding requirement in Wyoming. This can make it more difficult to advance a class action in Colorado. However, if it is a legitimate class action there is probably a way to articulate the public interest requirement.

CY PRES

Another unique difference is the cy pres option. In Wyoming, there is no cy pres fund in consumer class actions. The consumer protection act provides that after one year has elapsed, all undistributed funds must be returned to the party depositing the funds. By contrast, in Colorado, at least 50% of the cy pres fund goes to COLTAF and the rest can be distributed for purposes related to the class action lawsuit.

Reliance and Commonality

One of the more difficult obstacles to overcome in Colorado is that many consumer claims require a showing of reliance. This has a dramatic impact on reaching the "commonality" requirement necessary for class certification. In contrast, there is no "reliance" requirement under the Wyoming Consumer Protection Act. A violation can be established without reference to the consumer's reliance or lack thereof.

These are some of the nuances between Colorado and Wyoming state level consumer class actions. Feel free to contact Harmony Law if you have questions about consumer class actions.

About the Author

Clyde Hutchins

Clyde Hutchins is the founder of Harmony Law. Prior to opening Harmony Law, Mr. Hutchins worked in the Wyoming Attorney General's Office for several years where he developed a strong consumer protection enforcement unit. In that position he led over 120 investigations and enforcement actions under the Consumer Protection Act. He worked on numerous joint cases with the Federal Trade Commission and other states, including Colorado, on consumer protection matters. Mr. Hutchins is also a contributing author to Consumer Protection Law Developments, Second Edition. Previous to his work in the Attorney General's Office, Mr. Hutchins was in private practice in Anchorage, Alaska where he was the chief litigator for a firm. Mr. Hutchins represented municipalities on various matters. Mr. Hutchins provided counsel to businesses and investment advisors regarding compliance with securities laws. He was also a bond lawyer and worked on municipal financing matters. Prior to that, Mr. Hutchins practiced civil litigation with a law firm in Cheyenne, Wyoming. Mr. Hutchins devotes his spare time to his family, traveling and enjoying the great outdoors.

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Harmony Law is one of the few law firms in Colorado and Wyoming that focuses on consumer law. Mr. Hutchins is a member of the National Association of Consumer Advocates and state chair for Wyoming. If you have a consumer law issue, please feel free to call 970-488-1857 and speak with Mr. Hutchins.

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