Last week, West Virginia’s attorney general filed a consumer protection lawsuit against the Diocese of Wheeling-Charleston and the former bishop of that Diocese. The attorney general’s claims are based on the West Virginia Consumer Credit and Protection Act. The Act is one of the primary consumer protection statutes under which consumers file lawsuits related to credit and other transactions.
Broadly speaking, the complaint alleges the Diocese employed priests and lay employees who were subject to credible allegations of sexual abuse against children and placed those individuals in positions in its schools and camps in which they would have close contact with children. The complaint contains pages of specific allegations of improper conduct against specific individuals.
How does this fit into the Consumer Credit and Protection Act? The complaint asserts claims under Article 6 of the Act, which prohibits unfair and deceptive acts and practices in the sales of goods or services. That is an interesting claim because in 2017 the attorney general was shot down by West Virginia’s highest court when he argued Article 6 of the Act regulated the fees a landlord can charge a tenant in a residential lease. The court held a lease doesn’t involve the sale of goods or services and, therefore, the Act does not apply.
In this new lawsuit, the complaint is careful to include many allegations about the goods and services the Diocese offers. It alleges the Diocese offers its camps and schools for a price and advertises the services these camps and schools provide.
The complaint then asserts two claims, both under Article 6 of the Act. First, the complaint asserts the defendants advertised services that were not delivered by failing to disclose the learning environment it provides at its schools and camps are not safe as advertised. Second, the complaint asserts the defendants failed to warn the purchasers of its services of dangerous conditions they knew existed in the schools and camps.
It remains to be seen whether the complaint alleges enough that a court will agree Article 6 is broad enough to apply. It is expected the defendants will test that theory at the outset of the case by way of a motion to dismiss. Even if the complaint does allege enough, it still will have to overcome some of the other factors that were important to the Supreme Court of Appeals of West Virginia when it disagreed with the attorney general in the residential lease case. In ruling against his position, the court found significant (1) the Act does not explicitly refer to residential leases, (2) residential leases are regulated by other statutes, and (3) in the 45 years since the passage of the Act, no one sought to apply Article 6 to residential leases. All of these points seem to apply equally to this new lawsuit.
If you’d like a copy of the attorney general’s complaint, you can find it here - AG-complaint-against-Diocese