New Remedies for Delaware Victims: The Elder or Disabled Victim’s Enhanced Penalty

The elderly and the disabled make for especially vulnerable victims of consumer fraud. A recent Delaware statute gives the elderly or disabled victim of consumer fraud new and additional protections. The “Elder and Disabled Victims’ Enhanced Penalty Act,” (EDVEPA) protects elder and disabled persons who suffer “actual damages” resulting from the violation.

As a penalty for victimizing a vulnerable person, EDVEPA requires that their actual damages be tripled and paid to the fraud victim. As an incentive to using an attorney, and as an incentive for attorneys to take such cases, EDVEPA requires the victimizer to pay the victim’s attorneys’ fees. These requirements are not included in the Consumer Fraud Act, only in the recently passed enhanced Act.

Here are some of the specifics:

EDVEPA enhances remedies for two classes of vulnerable persons:

• Those over the age of 65 when the violation occurs
• Those who are disabled when the violation occurs

For purposes of the Elder or Disable Victims’ Enhanced Penalty Act, a person is disabled if:

• The person has a disability or handicap that is:
  • Mental
  • Physical
  • There is a record of the person having the impairment
  • The person is regarded as having the impairment
• The disability substantially impairs a “Major Life Activity,” which includes functions such as:
  • Caring for one’s self
  • Performing manual tasks
  • Walking
  • Seeing
  • Hearing
  • Speaking
  • Breathing
  • Learning
  • Working
  • The disability “substantially limits”the person and interferes with or affects the ability to do the activity, over an extended period of time, and is not a minor temporary ailment such as:
    • Colds
    • Influenza
    • Sprains
    • Minor injuries

Consequently, if a person over the age of 65, or a person who is disabled suffers damages because of a violation of certain consumer protection statutes, they have a private right of action to recover actual damages, costs and attorney’s fees. Also, the person “shall be entitled to recover three times the amount” of the actual damages, in addition to the damages authorized by law or statute, “if a violation of this subchapter is established.”

Example of EDVEPA in Action

In TD Ameritrade, Inc. v. McLaughlin, 953 A.2d 726, 736 (Del. Ch. 2008) a securities arbitration panel concluded that a dishonest securities broker stole $300,000 worth of bonds from Mr. McLaughlin. The panel then tripled the damages under EDVEPA, and added them to the $300,000 actual damages, for a total award of $1.2 Million, in accordance with the unique language of EDVEPA. In approving the award of triple damages the Chancery Court used a single paragraph to describe the situation justifying trebling, but balked at the language that states that the treble damages are “in addition” to compensatory damages awarded. The court allowed only the tripling of the $300,000 actual damages for a $900,000 award, then added attorneys fees to that award.

EDVEPA Enhances Remedies For A Host Of Consumer Protection Statutes

EDVEPA creates a private right of action for a violation of any Chapter 25 statute. Consequently, it makes important additions to Delaware laws such as the Consumer Fraud Act and the Deceptive Trade Practices Act.

The attorneys at MacElree Harvey are available to consult with and represent the elderly and disabled residents of Delaware who may have been victims of consumer fraud. Please do not hesitate to contact our Centreville office.

The following article is informational only and not intended as legal advice. Speak with a licensed attorney about your own specific situation. © Copyright 2011 MacElree Harvey, Ltd. All rights reserved.