11.6.1 Louisiana Unfair Trade Practices Act

LUTPA prohibits “unfair and deceptive” acts or practices in the conduct of any trade or commerce.1  The definition of “trade or commerce” includes the sale or distribution of any services and any property, corporeal or incorporeal, immovable or movable, and any other article or thing of value.2  A practice is unfair when it offends established public policy, and when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to customers.3  A practice is deceptive when it involves fraud, deceit, or misrepresentation.4  A practice does not fall under LUTPA if it is merely “disorganized and slipshod.”5

At a minimum, the victim of an unfair trade practice may recover actual damages and attorney’s fees. After notice to the Attorney General, the violator may be subjected to treble damages.6  Some courts have held that general damages are also available if there are actual damages.7  Suits with unfair trade practices claims should be filed within 1 year of the unfair practice because these claims are subject to a 1-year prescriptive period.8

In 2010, the Louisiana Supreme Court re-affirmed the broad coverage of LUTPA and affirmed that it covers parties beyond business consumers and competitors.9  The Supreme Court clarified that, “any limitation must be contained in the language of the statute.”10  Since the consumer relationship between a residential lessee and lessor is not expressly exempted from LUPTA, it should be covered.

There is a dearth of Louisiana jurisprudence on unfair trade practices in the residential landlord-tenant context. However, several courts have conducted a substantive LUTPA analysis regarding a residential lease,11  and no court has ruled that LUTPA is inapplicable to a residential lease simply because it is not commercial. Louisiana courts have held that interpretations of the federal courts and the Federal Trade Commission relative to 15 U.S.C. § 45 should be considered to adjudge the scope and application of LUTPA.12  15 U.S.C. § 45 has been interpreted to apply to various aspects of the leasing transaction.13  In addition, it should be noted that LUTPA is identical or virtually identical to the unfair trade practices laws of many other states. Decisions from other states on statutes identical, or similar to, those of Louisiana, are persuasive authority.14  Many states with identical or similar unfair trade practices laws have held them applicable to unfair or deceptive acts committed in the leasing of residential property.15

Other state courts have held a variety of landlord abuses to be unfair or deceptive trade practices:16

• Extrajudicial eviction.17
• Disconnection of utilities to evict.18
• Demand for money not owed under threat of eviction.19
• Routine filing of groundless evictions to collect debts not actually due and charging subsidized tenants more than authorized under federal law.20
• Violation of warranty of habitability.21

• 1La. R.S. 51:1405(A).
• 2La. R.S. 51:1402(9).
• 3F.T.C. v. Sperry Hutchinson Co., 405 U.S. 233 (1972); Risk Mgmt. Servs., LLC v. Moss, 09-632 (La. App. 5 Cir. 04/13/10), 40 So. 3d 176, 184–85.
• 4Moss, 09-632, 40 So. 3d at 85.
• 5Plater v. Ironwood Land Co., L.L.C., 39,085, pp. 17–18 (La. App. 2 Cir. 12/08/04), 889 So. 2d 475, 482.
• 6La. R.S. 51:1409; McFadden v. Import One, Inc., 2010-952 (La. App. 3 Cir. 02/09/11), 56 So. 3d 1212.
• 7Gandhi v. Sonal Furniture & Custom Draperies, LLC, 49959 (La. App. 2 Cir. 07/15/15), 192 So. 3d 783, 792 (damages under LUTPA include damages for mental anguish and humiliation); Bank of New Orleans & Tr. Co. v. Phillips, 415 So. 2d 973, 976 (La. App. 4 Cir. 1982) (upholding award of damages for mental anguish under LUTPA because “[h]umiliation and mental anguish are ‘real’, ‘genuine’, ‘existing in fact’, a part of ‘reality’ and ‘exist in the present’, as opposed to the future”); Laurents v. La. Mobile Homes, 96-0976 (La. App. 3 Cir. 02/05/97), 689 So. 2d 536, 542 (upholding $2,000 award for mental anguish where plaintiff’s mobile home was not delivered on the date that appeared in the parties’ contract, holding that “UTPL [LUTPA] provides for the recovery of actual damages, which include damages for mental anguish and humiliation”).
• 8The courts of appeal have held that the 1-year limitations period for LUTPA claims is peremptive. However, the Louisiana Supreme Court has not yet ruled on the issue as of this writing. See Bottinelli Real Est., L.L.C. v. Johns Manville, Inc., 2019-0619 (La. App. 4 Cir. 12/27/19), 288 So. 3d 179, 185; Glod v. Baker, 2004-1483 (La. App. 3 Cir. 3/23/05), 899 So. 2d 642, 646; 920 So. 2d 238; Kuebler v. Martin, 610 So. 2d 270, 271 (La. App. 5 Cir. 1992); Capitol House Pres. Co. v. Perryman Consultants, Inc., 98-1514 (La. App. 1 Cir. 12/10/98), 725 So. 2d 523, 526. But see Miller v. Conagra, Inc., 2008-0021 (La. 9/8/08), 991 So. 2d 445, 456 (specifically declining to rule on the question).
• 9Cheramie Servs., Inc. v. Shell Deepwater Prod., Inc., 2009-1633, pp. 7–8 (La. 4/23/10), 35 So. 3d 1053, 1058 (citing La. R.S. 51:1409(A) and holding that “the courts decide, on a case-by-case basis, what conduct constitutes a violation of the statute”).
• 10Id. at 1058.
• 11La. R.S. 51:1401, et seq.; see Plater v. Ironwood Land Co., L.L.C., 39,085, p. 17–18 (La. App. 2 Cir. 12/08/04), 889 So. 2d 475, 482 (affirming the trial court’s holding that LUTPA was inapplicable, though not on grounds that lease was not commercial but rather because the tenant’s showing that the lessor’s business practices were “disorganized and slipshod” was insufficient evidence of unfair trade practices); Scott v. MAC-RE, LLC, 16-224 (La. App. 3 Cir. 02/08/17), 211 So. 3d 693, 699 (affirming judgment in favor of landlord where tenant brought wrongful eviction and LUTPA claims, but court determined tenant abandoned premises; court denied attorney fees to landlord under LUTPA finding tenant’s claim was not in bad faith). But see Webb v. Theriot, 97-624, p. 13 (La. App. 3 Cir. 10/29/97), 704 So. 2d 1211, 1215 (stating that “we do not find that the lease and sublease of the hunting property and camp fall within the definition of ‘trade’ or ‘commerce’” for the purpose of LUTPA liability). Note that Webb is pre-Cheramie.
• 12Moore v. Goodyear Tire & Rubber Co., 364 So. 2d 630, 633 (La. App. 2 Cir. 1978); Guste v. Demars, 330 So. 2d 123 (La. App. 1 Cir. 1976).
• 13See, e.g., In re Hallmark Grp. Cos., 84 F.T.C. 1 (1974); LaPeyre v. F.T.C., 366 F. 2d 117 (5th Cir. 1966).
• 14Fontenot v. N.Y. Life Ins. Co., 357 So. 2d 1185 (La. App. 3 Cir. 1978).
• 15See, e.g., Commonwealth v. Monumental Props, 329 A.2d 812 (Pa. 1974); Commonwealth v. DeCotis, 316 N.E.2d 48748 (Mass. 1994); Commonwealth v. Isaacs, 577 S.W. 2d 617 (Ky. 1979).
• 16For more examples of the application of unfair trade practice laws to landlord-tenant practices, see Nat’l Consumer L. Ctr., Unfair and Deceptive Acts and Practices (10th ed. 2021), https://library.nclc.org/udap (paywalled).
• 17Mosley & Mosley Builders v. Landin, Ltd., 389 S.E.2d 576 (N.C. Ct. App. 1990); Dadonna v. Liberty Mobile Home Sales, Inc., 550 A.2d 1061, 1068 (Conn. 1988).
• 18Shepard v. Bonita Vista Props. LP, 664 S.E.2d 388 (N.C. Ct. App. 2008), aff’d 675 S.E.2d 332 (N.C. 2009).
• 19Stringer v. Perales, No. 01-02-00281-CV, 2003 WL 1848594 (Tex. Ct. App. 2003).
• 20Travieso v. Gutman, Mintz, Baker & Sonnenfeldt, 94 CV 5756, 1995 WL 704778 (E.D.N.Y. Nov. 16, 1995).
• 21Haddad v. Gonzalez, 576 N.E.2d 658 (Mass. 1991).