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CalAttorney2
CalAttorney2, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 10244
Experience:  I am a civil litigation attorney representing individuals and businesses.
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In anticipitation of possible future claims by a State or

Customer Question

In anticipitation of possible future claims by a State or Federal agency of non-compliance, with consumer protection laws, what in your opinion, would be the defensive effect of first having an attorney opinion letter, as to their method of doing business being within both state and fed regs, and if later challenged by those agency's, use the opinion letter in order to show a "good faith compliance intent". Would the proof of such measures by the company serve to stave off an outright immediate suit by these agency's, without allowing the company to change any methods the agency's might deem a violation? I.E, would these previous actions by the company give them "wiggle room" for voluntarily agreeing to change any possible unintended violations deemed by the agency without an agency going straight to legal action. This is assuming there are no outright "deceptive methods" being used by a company in the conduct of their biz. I have seen cases where the FTC has examined a biz's sales program and decided where certain words "might", in their opinion, lead an "average consumer" to construe a different meaning then that intended by the company.
Submitted: 1 year ago.
Category: Consumer Protection Law
Expert:  CalAttorney2 replied 1 year ago.

The "advice of counsel" defense is a legitimate defense (see this article for a discussion: https://m.mayerbrown.com/Files/News/bdf4589c-7362-4dc4-9bf6-bda442508179/Presentation/NewsAttachment/44d2320c-9d8e-474a-a45a-6714d573f99f/11273.pdf), but be wary in its application. It does not cure all claims and it cannot act as a complete bar to liability (particularly when it comes to administrative enforcement.

Choose your attorney well. If their advice is that you are taking a risky course of action, you cannot use the "advice of counsel defense" when the government decides to enforce, but if they advise that your course of action is legitimate and within the bounds of consumer protection, then you can use this defense.