Plain English Jury Instructions
Section 8. Consumer Fraud
Table of
Contents
8.0 Consumer
Fraud: General Charge
8.1 Jury
not Bound by Either Party’s Characterization of His/Her Acts or Statements
8.3 Exemplary
Damages—Civil Penalty
[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.].
Reporter’s Notes
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.
Reporter’s Notes
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]. ]
Reporter’s Notes
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.