Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—D.N.H.: Consumers’ unfair and deceptive trade practices claims against furniture retailer fail, (Apr 16, 2014)

By Linda O’Brien, J.D., LL.M.

A couple that purchased furniture from a furniture retailer failed to state claims for unfair or deceptive trade practices under the New Hampshire Consumer Protection Act, the federal district court in Concord, New Hampshire has ruled. The wife’s claims for violations of the Telephone Consumer Protection Act (TCPA) were also dismissed. However, the husband’s claims under the TCPA were allowed to proceed (Lamont v. Furniture North, LLC d/b/a Bob’s Discount Furniture., April 15, 2014, McCafferty, L).

In December 2013, Rita Lamont purchased several pieces of furniture from Furniture North, LLC, d/b/a Bob’s Discount Furniture (BDF). BDF advised Lamont that the items would be fully assembled, the delivery would occur during a three-hour window of time, and she would be informed of the delivery ahead of time. Lamont provided BDF with both her own cellular telephone number and that of her husband’s. In the first delivery, one item was missing components. Another delivery was scheduled and Lamont received telephone call notifying her that the delivery truck would be arriving at a certain time. When the truck did not arrive, Lamont was informed that the delivery was cancelled. In a subsequent delivery, another item was missing components. Before each delivery, the Lamonts received automated messages regarding the delivery on their respective telephones.

The Lamonts filed suit, alleging that BDF misrepresented when it would deliver the furniture, falsely claimed that the furniture would arrive fully assembled, and failed to deliver a necessary component of one of the pieces of furniture, in violation of the New Hampshire Consumer Protection Act (CPA). The Lamonts also claimed BDF violated the Telephone Consumer Protection Act (TCPA) by making automated calls to their cellular telephones without their consent. BDF moved to dismiss.

The Lamonts failed to state a claim under the CPA, since BDF’s alleged conduct did not fall within any of enumerated categories of conduct prohibited by Act, according to the court. Under the CPA, it is unlawful for any person to use any unfair method of competition, or any unfair or deceptive act or practice in the conduct of a trade or commerce. Although the Lamonts were inconvenienced by BDF’s multiple deliveries, failure to assemble the furniture, and failure to provide one missing furniture component, poor customer service was not a violation of the CPA, the court noted. The alleged conduct also did not fall within the established concepts of unfairness or amount to substantial injury to consumers.

The court found that the Lamont’s claim under the TCPA should be dismissed, since she gave her express consent to the automated call from BDF. Under the TCPA, it is unlawful to make a call to a cellular telephone using an automatic telephone dialing system with prior express consent. By voluntarily giving her cellphone number to BDF when she bought the furniture, Lamont gave BDF express consent to use an automatic dialer to contact her about the deliveries.

However, there was insufficient evidence to determine whether Lamont’s spouse consented to the calls. Although the couple live at the same address and Lamont gave BDF her husband’s cellphone number, there was no evidence that he gave Lamont permission to give BDF his cellphone number. Thus, with respect to Lamont’s husband’s cellphone, the Lamonts have stated a viable claim under the TCPA, the court concluded.

The case is No. 14-cv-036-LM.

Attorneys: Joseph L. Lamont (Lamont Law Office) is pro se. Brian G. Leary (Holland & Knight LLP) for Furniture North, LLC.

Companies: Furniture North, LLC

Cases: StateUnfairTradePractices Privacy NewHampshireNews