The devil’s in the details. And, the details will become more complicated if a new proposed law in West Virginia is enacted.
The West Virginia Legislature is considering a bill that would amend the West Virginia Consumer Credit and Protection Act (“WVCCPA” or “Act”) to regulate how subscription services charge consumers' credit cards, debit cards, or bank accounts for monthly deliveries of goods or services. The bill calls these “continuous services” and appears broad enough to regulate things like Netflix and HelloFresh.
One interesting feature of the bill is that it contains a requirement that a consumer must give the company alleged to have violated the law a notice of the violations and an opportunity to make an offer to cure the violations. This notice is a prerequisite to the consumer filing a lawsuit.
A pre-suit notice requirement is not new to the WVCCPA (the primary statute under which consumers sue in West Virginia for claims related to credit transactions and the purchase of some goods and services). If enacted, this new provision would be the third pre-suit notice requirement in the Act.
Article 6 of the Act (relating to the purchase of some goods and services) has had a pre-suit notice requirement for several years. In 2017, Article 5 of the Act was amended to include a pre-suit notice requirement for lawsuits related to credit transactions and collection activity. The current bill adds a new Article (Article 6N) to the Act and a new pre-suit notice requirement.
A company being sued in West Virginia should be aware that each of these three notice requirements differ in two significant ways. First, they have different time periods that must be met for a company responding to the notice and a consumer who receives the company’s cure offer. Second, they differ in how a company can attempt to use the pre-suit notice and cure offer to defeat a consumer’s claim for an award of attorney’s fees if he or she prevails in a lawsuit.
If you or your company receive a pre-suit notice, be careful to ensure that you know which pre-suit notice requirement applies. Then, you can take the necessary actions to comply with the requirement, try to resolve the dispute before a lawsuit is filed, and hopefully posture your company to use the pre-suit notice requirement to attack a consumer’s attempt to recover attorney’s fees.