Plain English Jury Instructions
Section 8. Consumer Fraud
Table of Contents
[Name of plaintiff] claims that [name of defendant]’s [describe the activity/good/service] was [an unfair act/a deceptive practice/a false representation]. [Name of plaintiff] has to prove three things:
1. [Name of defendant] said something, failed to say something or did something that an ordinary person would decide was misleading; and
2. [Name of plaintiff] reasonably understood what [name of defendant] did or said; and
3. [Name of defendant]’s misleading statements or actions were “material,” that is, would be likely to affect an ordinary person’s decision whether or not to [purchase goods or services/enter into the lease/pay a particular price, etc.].
The judge’s description of the third element is expected to be tailored to fit the facts of the case.
Whether a statement is deceptive or material is not determined by what [name of defendant] “meant” by them or by [name of plaintiff]’s understanding of [name of defendant]’s words or actions. Instead, you must look at all the facts surrounding [name of plaintiff]’s [purchase, lease, contract] in light of all the evidence that the plaintiff and defendant presented. If you determine that an ordinary person would have understood that [name of defendant]’s (describe act/statement/omission) was [unfair/deceptive/false] and that an ordinary person would have understood [name of defendant]’s [act/statement/omission] in the same way that [name of plaintiff] did, then the [act/statement/omission] was [unfair/deceptive/false] and material.
This instruction does not apply, at least initially, to consumer fraud cases brought under 9 V.S.A. §2457, which arise from a defendant’s failure to sell goods or services of the nature advertised or offered, or a defendant’s failure or inability to sell at an advertised price. In cases arising under §2457, there is a rebuttable presumption of intent to violate the Consumer Fraud Act by the conduct itself.
If you find that [name of plaintiff] has proved [his/her] claim, then the damages consist of the amount of money [name of plaintiff] paid minus the value of what [he/she] received.
[Alternate instruction (see note below): If you find that [name of plaintiff] has proved [his/her] claim, then the damages consist of the amount of money [name of plaintiff] paid as a result of [name of defendant]’s [unfair act/deceptive practice/false representation]. ]
The Consumer Fraud statute states that damages can include the amount of his or her damages “or the consideration or the value of the consideration given by the consumer.”
This model damages instruction may have to be modified depending on the damages claimed. For example a plaintiff may claim the entire amount of consideration paid because the service or good was worthless to her.
The statute is not clear whether it allows consequential damages, but it is the understanding of the committee that the tort nature of this claim allows such damages but limits them by the rules of proximate cause applicable to tort cases. The committee has not drafted a special proximate cause instruction for consumer fraud cases, but recommends that the proximate cause instruction from the tort jury instructions be used.
Attorney’s fees are not included in these instructions
because they are mandatory once a finding of consumer fraud is made. Bruntaeger v. Zeller, 147
In addition, if you find that [name of defendant] committed [an unfair act/deceptive practice/false representation], you may award damages to punish [name of defendant.] These damages to punish the defendant must not exceed three times the value that the plaintiff paid.
These damages for punishment are not intended to compensate [name of plaintiff] for losses, but instead are meant to punish [name of defendant] for [his/her/its] behavior and to stop others from acting similarly in the future.
Carelessness, or even recklessness, by [name of defendant] is not enough to permit an award of punitive damages. You are entitled to award these damages to punish [name of defendant] if you find that [name of defendant]’s actions were intentional and deliberate, causing the type of outrage that is frequently associated with crime. This can be shown by conduct showing personal ill will toward [name of plaintiff] or other evidence of a bad motive.