§480-2  Unfair competition, practices, declared unlawful.  (a)  Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful.

     (b)  In construing this section, the courts and the office of consumer protection shall give due consideration to the rules, regulations, and decisions of the Federal Trade Commission and the federal courts interpreting section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. 45(a)(1)), as from time to time amended.

     (c)  No showing that the proceeding or suit would be in the public interest (as these terms are interpreted under section 5(b) of the Federal Trade Commission Act) is necessary in any action brought under this section.

     (d)  No person other than a consumer, the attorney general or the director of the office of consumer protection may bring an action based upon unfair or deceptive acts or practices declared unlawful by this section.

     (e)  Any person may bring an action based on unfair methods of competition declared unlawful by this section. [L 1965, c 129, pt of §1; Supp, §205A-1.1; HRS §480-2; am L 1987, c 274, §2; am L 1988, c 51, §1; am L 2002, c 229, §2]

 

Law Journals and Reviews

 

  Misrepresentation and Deception Under Section 480-2 of the Hawaii Revised Statutes.  10 HBJ 69.

  Updating Unfair or Deceptive Acts and Practices Under Chapter 480-2.  10 HBJ No. 13, at pg. 109.

  What Can the Abolition of Slavery Teach Us About Climate Change?  Local Action in the Liquefied Natural Gas Controversy.  35 UH L. Rev. 687 (2013).

 

Case Notes

 

  Requires showing that suit in public interest; may be proven by knowledge of illegality.  732 F.2d 1403.

  Employer's negligent misrepresentation that it guaranteed employees full payment of their pensions was not "unfair act".  804 F.2d 1418.

  Neither contractor association's collective bargaining representation nor its fee for representation were unfair or deceptive acts.  809 F.2d 626.

  Section does not apply to claims arising from securities transactions.  849 F.2d 388; 758 F. Supp. 1357.

  Violated where pawn shop created "likelihood of confusion" by soliciting borrowers while disguising loans as sales.  3 F.3d 1261.

  Court erred in finding this section preempted, where court dismissed claim that issuer of title insurance policy violated this section.  95 F.3d 791.

  Plaintiff filed class action claiming that defendant marketed annuities through deceptive practices in violation of Hawaii's deceptive practices act.  There are no individualized issues of subjective reliance under Hawaii law, thus, district court erred in denying class certification.  594 F.3d 1087 (2010).

  Bankruptcy court's finding that appellee lenders' improper postponement of the foreclosure sale of appellant debtor's property was a deceptive practice under this section affirmed; inter alia, the bankruptcy court's determination that improper postponement of this sort would deceive a reasonable consumer was not clearly erroneous.  674 F.3d 1083 (2012).

  Where complaints alleged that credit card providers violated this section and §§480-13.5 and 481A-3 and unjust enrichment, the claims were not preempted by the National Bank Act.  Also, because the complaints unambiguously disclaimed class status, the actions could not be removed under the Class Action Fairness Act of 2005.  761 F.3d 1027 (2014).

  Where complaints asserted that the attorney general brought the actions under subsection (d) and §661-10, the state procedural devices were not similar to an action under rule 23 of the federal rules of civil procedure.  761 F.3d 1027 (2014).

  A borrower need only allege that a lender has breached its statutory duty not to engage in "unfair or deceptive acts or practices in the conduct of any trade or commerce" in a way that caused private damages in order to state a claim under this section and §480-13.  761 F.3d 1046 (2014).

  District courts evaluating whether a borrower's complaint states a claim under this section and §480-13 against a lender need only address whether the complaint adequately alleges that the lender used unfair or deceptive acts in its relationship with the borrower, without looking to negligence law to determine whether the lender breached a common law duty of care.  761 F.3d 1046 (2014).

  Attachment available only where contract at issue also establishes a debtor-creditor relationship for payment of money.  485 F. Supp. 1015.

  Inability to establish antitrust claim does not prevent establishment under this section; plaintiffs may recover for violations which occurred prior to four year statute of limitations if they can prove fraudulent concealment; practice is unfair when it offends public policy and when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers; §480-13 creates private right of action.  491 F. Supp. 1199.

  Plaintiffs could show that violation of federal or state securities laws satisfies public interest requirement to bring suit under this section.  501 F. Supp. 830.

  Continuance of unlawful pricing program in contravention of court order is as a matter of law, an unfair method of competition.  513 F. Supp. 726.

  Action by shopping center tenant against shopping center owner.  530 F. Supp. 499.

  Preempted by federal labor regulations.  687 F. Supp. 1453.

  Suit for causes of action which arose prior to amendment is not precluded.  691 F. Supp. 247.

  Minority shareholder of a corporation is not a consumer; no private cause of action for unfair methods of competition.  700 F. Supp. 1056.

  Although distributor corporation had standing to bring unfair competition claim, shareholders were not "consumers" with standing to sue under deceptive practices clause.  775 F. Supp. 1329.

  Section inapplicable to insurance business.  795 F. Supp. 1036.

  As a business, plaintiff had standing to sue for unfair competition under this section.  808 F. Supp. 736.

  Plaintiff corporation lacked standing to sue for deceptive practices under chapter 480; plaintiffs, shareholders and officers of corporation, lacked standing to sue for deceptive practices, where harm suffered by plaintiffs arose indirectly as a result of harm done to corporation.  895 F. Supp. 1365.

  Plaintiff had standing to bring its §480-2 claim for unfair methods of competition; plaintiff's likelihood of confusion allegations may support both §§480-2 unfair methods of competition and 481A [sic] deceptive acts or practices claims.  945 F. Supp. 1344.

  Hawaii supreme court would find that plaintiff, a third-party beneficiary of insurance contract between defendant insurer and a consumer, had standing to bring a deceptive acts or practices claim pursuant to this section.  947 F. Supp. 429.

  Because defendant wholesale food marketer and distributor did not meet definition of a consumer, it lacked standing to sue for deceptive practices under this section.  61 F. Supp. 2d 1092.

  Plaintiffs' unfair or deceptive acts or practices claims dismissed; this section and §480-13 do not provide a cause of action for personal injury claims.  100 F. Supp. 2d 1265.

  A technical violation of Truth In Lending Act (TILA) does not constitute a per se violation of this section.  The technical violation of TILA at issue, i.e., the failure to provide a properly dated notice of right to cancel, did not qualify as an unfair act or practice.  101 F. Supp. 2d 1326.

  A municipality may be held liable under this chapter if its act is done "in the conduct of any trade or commerce", but is not subject to a treble damage penalty. 215 F. Supp. 2d 1098.

  Where the dispute giving rise to a claim for unfair and deceptive act in trade or commerce occurred after the alleged injury, when plaintiff alleged that defendant failed to comply with their agreement regarding the release of plaintiff's medical records, plaintiff lacked standing as a consumer to bring a claim under this section, and defendant was not engaged in trade or commerce.  383 F. Supp. 2d 1244.

  Plaintiff's claim under this section failed, where the statute of limitations barred any unlawful business practice claim that occurred prior to the four-year limitation period and although the additional alleged occurrences would not be time-barred, plaintiff's asserted damages flowing from the violation were unrecoverable because they were speculative.  522 F. Supp. 2d 1272.

  Plaintiffs' state law claims, alleging violation of chapter 480 and common law fraud, to the extent they were premised on Truth in Lending Act (TILA) or Regulation Z violations, including defendant's alleged failure to properly disclose certain terms in its documents as required by TILA, were preempted; the remaining state law claims were not preempted.  647 F. Supp. 2d 1208 (2008).

  Plaintiff's claim for violation of this section was preempted by federal copyright law.  673 F. Supp. 2d 1144 (2009).

  Defendant's motion to dismiss count of complaint alleging unfair methods of competition denied, where defendant argued that the count must be dismissed, because, as a matter of law, defendant's alleged breaches of the subject agreements did not, without more, constitute unfair methods of competition under this section.  679 F. Supp. 2d 1203 (2009).

  Parts of plaintiff's unfair and deceptive trade practices claim were not preempted by federal law where complaint alleged that defendant had a general duty applicable to a contract, and not a duty created by federal statute or regulation.  707 F. Supp. 2d 1080 (2010).

  Unfair and deceptive trade practices sufficiently alleged where defendant's agent made false representations, defendant improperly prepared loan documents for two separate transactions, and defendant entered into a transaction with plaintiff.  707 F. Supp. 2d 1080 (2010).

  While plaintiff may not recover under both the unfair and deceptive trade practices statute and the federal Truth in Lending Act, not all allegations stemming from the same set of facts necessarily implicate the same matter.  707 F. Supp. 2d 1080 (2010).

  Plaintiff's investment was for business purposes where plaintiff created plaintiff's own venture, plaintiff's investors were relying on plaintiff to provide them with profit, and plaintiff acted as plaintiff's own broker; plaintiff's investment under this chapter not a "personal investment", and therefore plaintiff did not satisfy definition of "consumer" pursuant to this chapter.  710 F. Supp. 2d 1036 (2010).

  Because the language contained in this section is similar to California's statute, and since plaintiff appears to base plaintiff's claim on "fraudulent concealment", plaintiff was required to plead plaintiff's unfair and deceptive trade practices claim with specificity; defendants' motion to dismiss based on this issue granted.  730 F. Supp. 2d 1213 (2010).

  To the extent plaintiffs argued that defendant was an assignee, their claims failed because this section's liability did not attach merely because, as plaintiff argued, defendant was an assignee.  773 F. Supp. 2d 886 (2011); 773 F. Supp. 2d 900 (2011).

  Defendant resort's motion to dismiss plaintiff resort employees' claim that defendant violated §481B-14, brought under this section, granted where plaintiffs' allegations did not show the nature of the competition or demonstrate that plaintiffs have suffered an antitrust injury; Hawaii's requirement that a plaintiff assert the nature of the competition was designed to serve the same purpose as the federal requirement that a plaintiff assert an antitrust injury.  818 F. Supp. 2d 1240 (2010).

  Plaintiff resort employees' claim, brought under this section, that defendant resort violated §481B-14 was not preempted by §301 of the Labor Management Relations Act, 29 U.S.C. §185(a), because the claim regarding §481B-14 was a statutory claim that was independent from any obligations created under the collective bargaining agreement (agreement) between defendant and plaintiffs; further, resolution of the claim did not require interpretation of the agreement and there was no clear and explicit waiver of the plaintiffs' rights under §481B-14 in the agreement.  818 F. Supp. 2d 1240 (2010).

  Plaintiff hotel employees' claim, brought pursuant to §§481B-4 and 481B-14 and this section, was not preempted by §301 of the Labor Management Relations Act, 29 U.S.C. §185(a) because plaintiffs were not enforcing a right conferred only by the collective bargaining agreement (agreement), but rather an independent right conferred by state law; resolution of plaintiffs' state law claim was not dependent on any provision contained in the agreement and did not require interpretation of the agreement.  835 F. Supp. 2d 914 (2011).

  Plaintiffs' claim pursuant to §§481B-4 and 481B-14 and this section dismissed because (1) they had not alleged harm to competition; (2) merely alleging competition between hotels that result in lower prices did not give rise to antitrust injury; (3) no authority to support plaintiffs "competing" with defendant for tips, that there was a competitive market that defendant was a part of for tips, or that defendant's actions regarding service charges had a negative effect on that market; and (4) statements that their injuries were "inextricably intertwined" with defendant's acts did not establish that defendant caused any negative effect on competition.  835 F. Supp. 2d 914 (2011).

  Plaintiff borrowers' unfair and deceptive acts and practices claim pursuant to subsection (a) dismissed where nothing in the complaint indicated that any defendant "exceed[ed] the scope of [a] conventional role as a mere lender of money".  836 F. Supp. 2d 1083 (2011).

  To the extent that plaintiff trustee of decedent's trust argued that defendants could be liable as assignees, plaintiff's claim still failed because this section's liability did not attach "merely because one is an assignee".  848 F. Supp. 2d 1182 (2012).

  Defendant mortgagee and loan servicer's motion to dismiss plaintiff mortgagor's claim pursuant to this section granted where plaintiff's allegations appeared to sound at least partly in fraud, yet failed to meet federal rule of civil procedure rule 9(b)'s particularity requirement; specifically, where a chapter 480 claim is based on fraudulent acts, a plaintiff must plead the claim with particularity.  850 F. Supp. 2d 1120 (2012).

  Although a damage claim under §480-13 based on violations of this section may only be asserted against the wrongdoer, a rescission claim under chapter 480 can stand against subsequent assignees if the contract is void; where plaintiff had alleged that defendant mortgage broker assigned or sold loans to other defendants, plaintiff could seek rescission against other defendants if mortgage broker violated chapter 480 and the loans were void; however, a plaintiff seeking affirmatively to void a mortgage transaction under §480-12 must "place the parties in as close a position as they held prior to the transaction".  861 F. Supp. 2d 1153 (2012).

  Count of plaintiffs' complaint failed to state a claim for a violation of this section, where:  (1) because of an alleged termination of a mortgage participation certificates' trust, plaintiffs claimed that defendant was also terminated as the mortgage loan servicer and wrongfully collected mortgage loan payments from plaintiffs; and (2) plaintiffs did not assert particularized allegations of the circumstances constituting fraud.  901 F. Supp. 2d 1253 (2012).

  The statement in §480-14(b) that the attorney general "may bring a class action" is merely a recognition that the attorney general has the discretion, as opposed to a statutory obligation, to bring a parens patriae class action in response to violations of §480-2.  907 F. Supp. 2d 1188 (2012).

  Where plaintiffs alleged that defendants engaged in various unfair and deceptive acts or practices in connection with the loan origination, including inducing plaintiffs to accept a loan product that plaintiffs could not afford, plaintiffs' claims were time-barred and there was no genuine issue of material fact as to the claim.  911 F. Supp. 2d 916 (2012).

  There was no basis for any unfair or deceptive act or practice claim against defendant mortgage servicer, where evidence established that defendant responded in a timely manner to almost every one of plaintiff's numerous written requests for information, and when given the opportunity, defendant investigated plaintiff's claims.  Even assuming a question of fact existed as to whether any acts of defendant were misleading or deceptive, plaintiff had no evidence of actual damages resulting from any such act.  948 F. Supp. 2d 1086 (2013).

  Plaintiff had not sufficiently pleaded the competition requirement explained in Hawaii Medical Association, where plaintiff merely alleged that defendants "operate within the healthcare services industry" without providing any allegations as to the nature of the competition between plaintiff and either defendant.  948 F. Supp. 2d 1131 (2013).

  Count of complaint alleging unfair and deceptive acts and practices (UDAP) in violation of this section against defendants, for allegedly failing to provide plaintiff with the opportunity to process a loss mitigation application of plaintiff's loan before proceeding with the nonjudicial foreclosure sale, dismissed, where plaintiff's allegations failed to sufficiently address the elements of a UDAP claim.  990 F. Supp. 2d 1042 (2013).

  Plaintiff's unfair methods of competition claim dismissed, where plaintiff advanced insufficient factual allegations to support a claim that defendant's failure to disclose resort fees and their mandatory nature had a negative effect on competition that harmed consumers like plaintiff.  Plaintiff failed to describe the nature of competition with particularity.  1 F. Supp. 3d 1084 (2014).

  Plaintiff was precluded from asserting an unjust enrichment claim, since plaintiff had an adequate remedy at law in the form of a claim under subsection (a) and an express contract or agreement existed between the parties.  1 F. Supp. 3d 1084 (2014).

  The factual allegations regarding plaintiff's unfair or deceptive practices claim, which turned on whether defendant adequately disclosed to consumers the existence of mandatory resort fees, were sufficient to survive a motion to dismiss; however, plaintiff was ordered to provide a more definite statement as to certain allegations.  1 F. Supp. 3d 1084 (2014).

  The court found it inappropriate to decide the date of accrual and the statute of limitations issue, as it was unclear from the speculative allegations in the amended complaint which specific acts, other than those addressed by the court's order, plaintiffs claimed to be unfair or deceptive acts or practices.  1 F. Supp. 3d 1106 (2014).

  Where plaintiffs' unfair or deceptive acts or practices claims appeared to be based on the same allegations as their wrongful foreclosure claims, among other things, plaintiffs failed to articulate how they were injured by a material misrepresentation, as they did not allege a wrongful non-judicial foreclosure.  1 F. Supp. 3d 1106 (2014).

  Question of fact remained as to whether there were notices to the public that defendant franchisee was the restaurant operator.  In this limited respect, defendant franchisor's motion for summary judgment denied on plaintiffs' claim that defendant franchisor engaged in deceptive practices.  15 F. Supp. 3d 1043 (2014).

  Court found that plaintiff, a reverse mortgage loan borrower, sufficiently stated a claim for affirmative misrepresentation under this section; plaintiff alleged that a kickback scheme existed between defendants insurer, insurance brokers, and lender that force placed hurricane insurance on plaintiff's property, where defendant lender chose significantly more expensive policies offered by defendant insurers and insurance brokers in order to receive kickbacks, reinsurance profits, and other wrongful benefits.  308 F. Supp. 3d 1093 (2018).

  In an action where plaintiff, a reverse mortgage loan borrower, alleged that defendant, a lender, placed "unnecessary" hurricane insurance on plaintiff's property that had unreasonable and inflated premiums, the court determined that plaintiff's claims under this section were preempted by the Home Owners' Loan Act to the extent that they were premised on a failure to disclose information or were being used either to limit lender's ability to force place insurance on properties securing loans or lender's choice of insurers or premiums to be charged on the forced placement of insurance.  But to the extent the claims were based on lender's affirmative misrepresentations, they were not preempted.  308 F. Supp. 3d 1093 (2018).

  Complexity of insurance policy, without more, does not make document deceptive.  55 H. 155, 516 P.2d 720.

  Federal statutes and decisions are to be used as guides.  63 H. 289, 627 P.2d 260.

  Violation where financial institution failed to inform parents with education plan, that it had a side deal with schools to pay tuition in semiannual installments.  71 H. 285, 788 P.2d 833.

  A broker or salesperson actively involved in a real estate transaction engages in "conduct in any trade or commerce" and is thus subject to liability under this chapter.  80 H. 54, 905 P.2d 29.

  Where employee was not a "consumer" as defined under §480-1, employee lacked standing to maintain private cause of action under §480-13 against workers' compensation insurer based on alleged violation of this section.  83 H. 457, 927 P.2d 858.

  Where employer was not a "consumer" as defined under §480-1, employee could not maintain action under §480-13, based on employee's third party beneficiary status, against workers' compensation insurer for alleged violation of this section.  83 H. 457, 927 P.2d 858.

  There is no private claim for relief under §480-13 for unfair methods of competition in violation of this section; private remedy is restricted to claims of unfair or deceptive acts or practices.  91 H. 224, 982 P.2d 853.

  Genuine issues of material fact precluded summary judgment with respect to defendant's counterclaims based on alleged violation of this section where defendants alleged that plaintiff credit union "unethically" or "unscrupulously" attempted to influence defendants to sign loan documents by making deceptive representations to alleviate defendants' concerns that the mortgage interest rate was not that for which they had bargained for.  94 H. 213, 11 P.3d 1.

  By the plain language of this chapter, no actual purchase is necessary as a prerequisite to a consumer recovering damages under §480-13, based on injuries stemming from violations of this section.  98 H. 309, 47 P.3d 1222.

  Under the filed-rate doctrine, telephone customers' claims failed as a matter of law where customers could not demonstrate that telephone company's allegedly inadequate disclosures constituted an unfair or deceptive trade practice because (1) company's tariffs on file with the public utilities commission disclosed that fees should be assessed against customers receiving touch calling services; (2) knowledge of these disclosures contained in the tariff was imputed to the customers, and, thus, (3) customers could prove neither the injury nor the likelihood of damage that is required under this section or chapter 481A.  109 H. 69, 123 P.3d 194.

  Any person may bring a claim of unfair methods of competition based upon conduct that could also support a claim of unfair or deceptive acts or practices as long as the nature of the competition is sufficiently alleged in the complaint.  113 H. 77, 148 P.3d 1179.

  By its plain language, subsection (e) authorizes any person, i.e., businesses and individual consumers, to bring an action grounded upon unfair methods of competition; thus, trial court erred to the extent that it premised its dismissal of plaintiffs' unfair methods of competition claims on its conclusion that plaintiffs "are not competitors of defendant".  113 H. 77, 148 P.3d 1179.

  Retroactive application of subsection (e), which created a private claim for relief, is not permitted inasmuch as the legislature did not expressly or obviously indicate its intention that subsection (e) apply retroactively; thus, trial court correctly concluded that plaintiffs' claims of unfair methods of competition based upon defendant's alleged wrongful acts prior to the effective date of subsection (e) were barred.  113 H. 77, 148 P.3d 1179.

  Under this section, plaintiffs need not be "in competition" with defendant; thus, trial court erred to the extent that its dismissal of plaintiffs' unfair methods of competition claims were premised on its conclusion that plaintiffs "are not in competition with defendant".  113 H. 77, 148 P.3d 1179.

  Where unincorporated association of apartment owners was not a "consumer" as defined by §480-1, it lacked standing to bring an action based upon unfair or deceptive acts or practices declared unlawful by this section.  115 H. 232, 167 P.3d 225.

  Employees are "any persons" within the meaning of §480-1 and subsection (e) and are within the category of plaintiffs who have standing to bring a claim under subsection (e) for a violation of §481B-14; however, based on the allegations contained in employees' amended complaint, employees did not sufficiently allege the "nature of the competition" to bring a claim for damages against employer under §480-13(a) and subsection (e) for a violation of §481B-14.  122 H. 423, 228 P.3d 303 (2010).

  Where employees asserted an unfair method of competition claim based on a violation of §481B-14, circuit court erred in granting employers' motion for summary judgment because employees sufficiently proved that: (1) employers' conduct negatively affected competition; and (2) the unlawful conduct injured employees in their business or property by depriving employees of tip income to which they were entitled.  133 H. 1, 323 P.3d 792 (2014).

  Whether it was an unfair practice for creditor to threaten to cut off business with debtor's employer unless debt was paid was a jury question.  2 H. App. 301, 632 P.2d 1071.

  Corporation committed unfair or deceptive acts by allowing another to use its contractor's license and guaranteeing its own contractual obligations; section does not supersede remedy for common law fraud.  6 H. App. 125, 712 P.2d 1148.

  Unfair or deceptive trade practice claimed where defendants' labels implied that foreign-made kukui nut leis were manufactured in Hawaii.  7 H. App. 600, 789 P.2d 501.

  Evidence supported conclusion that person and corporation owned and operated by person engaged in unfair and deceptive acts or practices in publication of corporation's newspaper and television advertisements.  9 H. App. 106, 826 P.2d 879.

  In action by consumer under this section, "unclean hands" of consumer not a defense to claim for damages under §480-13(b)(1).  86 H. 405 (App.), 949 P.2d 1026.

  The circuit court did not abuse its discretion in finding that the superiority requirement under HRCP rule 23(b)(3) was met--that a class action was superior to other available methods for the fair and efficient adjudication of the controversy--where both the plaintiff's individual claim and the class action hinged on whether the mortgagee's alleged act of withholding information about its statement fee waiver policy constituted a deceptive practice under this section.  122 H. 238 (App.), 225 P.3d 680 (2010).

  Where mortgagee's alleged act of withholding information about its statement fee waiver policy would predominate and form the basis for plaintiff's individual claim and the class action under this section, the circuit court did not abuse its discretion in finding that the predominance requirement under HRCP rule 23(b)(3) was met.  122 H. 238 (App.), 225 P.3d 680 (2010).

  Where mortgagor's monthly payments were nearly $1,000 more than mortgagor's gross monthly income, there was no issue of material fact as to whether mortgage lenders engaged in unfair and deceptive practices because: (1) mortgagor's mistaken belief that mortgagor could afford the payments was not the result of mortgage lenders' actions but, instead, was based on mortgagor's investment agreement with mortgage broker; and (2) there was no showing of an agency relationship between the mortgage broker and mortgage lenders.  134 H. 170 (App.), 338 P.3d 1185 (2014).

  Discussed:  903 F. Supp. 2d 1008 (2012); 907 F. Supp. 2d 1188 (2012).

  Mentioned:  907 F. Supp. 2d 1165 (2012).

 

 

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