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5.2-3  CUTPA - Unfair Trade Practice - "Cigarette Rule"

Revised to January 1, 2008

The plaintiff claims that the defendant's <insert conduct> constituted an unfair trade practice that violates CUTPA. Certain guidelines have been established as to what constitutes an unfair trade practice. The plaintiff must establish that the defendant's <insert conduct> meets at least one of the three following criteria:

  1. it offends public policy as it has been established by statutes, the common law or other established concept of unfairness; or

  2. it is immoral, unethical, oppressive or unscrupulous; or

  3. it causes substantial injury to consumers, competitors or other business persons.

I will now give additional instructions on these criteria.

Authority

Edmands v. CUNO, Inc., 277 Conn. 425, 450 n.16 (2006); Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 43 (1998); Fink v. Golenbock, 238 Conn. 183, 215 (1996); Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 507 (1995); Tarka v. Filipovic, 45 Conn. App. 46, 55, cert. denied, 242 Conn. 903 (1997); Meyers v. Cornwell Quality Tools, Inc., 41 Conn. App. 19, 35 (1996).

Notes

Use this instruction and the three that follow only if the CUTPA claim is for an "unfair trade practice."

Many Connecticut cases also make this statement in conjunction with the "Cigarette Rule":  "An act or practice may be unfair because of the degree to which it meets one of the criteria or because, to a lesser extent, it meets all three."  This sentence directly contradicts another sentence that appears in all of those cases:  "The plaintiff must establish that the defendant's conduct meets at least one of the three following criteria."  The cases cite Statement of Basis and Purpose, Disclosure Requirements and Prohibitions Concerning Franchising and Business Opportunities, 43 Fed. Reg. 59,614 and 59,635 (1978) for this proposition.  Although that sentence does indeed appear in the Federal Register, there is no explanation there.  This quote only appears in Connecticut CUTPA caselaw.  It does not appear in FTC Act cases or in other states' unfair trade practices statute cases.  Moreover, in the Connecticut cases in which an unfair trade practice was found, the court or jury also found that at least one of the three prongs of the Cigarette Rule was violated.  Indeed, it appears to be impossible to meet the "substantial injury" prong to a "lesser extent" under the caselaw on that prong.
 


 

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