context: But the fact that a contract may be substantively or proce durally unconscionable as violative of public policy does not automatically shoehorn a party's conduct in entering into the contract with a consumer into the DTPA's definition of "unconscionable action or course of action." See Tex. Bus. & Com. Code Ann. SS 17.45(5) (defining "unconscionable action or course of action" as meaning "an act or practice which, to a consumer's detriment, takes advantage of the lack of knowledge, ability, experience, or capacity of the consumer to a grossly unfair degree"). Case law uniformly holds to the contrary; the unconscionable-act-or-course-of-action element of a DTPA section 17.50 unconseionability claim requires proof of each consumer's knowledge, ability, experience, or capacity. Id. SS 17.50. A DTPA section 17.50(a)(3) unconseionability claim requires a consumer (here the Keys and each class member) to show that the defendant's acts (the acts of LSRC) took advantage of the consumer's lack of knowledge and that .the resulting unfairness was glaringly noticeable, flagrant, complete, and unmitigated.
citation_a.signal: see also
citation_a.identifier: 435 S.W.3d 222, 228
citation_a.parenthetical: holding that even under the UCC--as opposed to the DTPA here--court is to make a "highly fact-specific inquiry into the circumstances of the bargain, such as the commercial atmosphere in which the agreement was made, the alternatives available to the parties at the time and their ability to bargain, any illegality or public policy concerns, and the agreement's oppressive or shocking nature" when determining unconseionability
citation_a.sentence: See, e.g., Ryan, 477 S.W.3d at 913-14 (reversing class certification of DTPA unconseionability claim because “determining whether Hicks’[s] actions were unconscionable requires evaluation of each member’s individual circumstances”); Wall v. Parkway Chevrolet, Inc., 176 S.W.3d 98, 105-06 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (affirming denial of class certification of DTPA unconseionability claini because individualized inquiry into each buyer’s circumstances is required to answer the question “whether the charging of a fee under the designations such as ‘NACC,’ ‘Consumer Benefits & Services (ECBP),’ ‘NADW,’ ‘Intelesys,’ and/or other similar designations is an unconscionable ... act”); Peltier Enter., Inc. v. Hilton, 51 S.W.3d 616, 623-24 (Tex. App.—Tyler 2000, pet. denied) (reversing class certification of DTPA unconscionability claim because “[t]here must be a showing of what the consumer could have or would have done if he had known about the information ... there would need to be some showing of each customer’s ‘knowledge, ability, experience, or capacity”’); see also Venture Cotton Coop. v. Freeman, 435 S.W.3d 222, 228 (Tex. 2014) (holding that even under the UCC—as opposed to the DTPA here—court is to make a “highly fact-specific inquiry into the circumstances of the bargain, such as the commercial atmosphere in which the agreement was made, the alternatives available to the parties at the time and their ability to bargain, any illegality or public policy concerns, and the agreement’s oppressive or shocking nature” when determining unconseionability).
citation_b.signal: see
citation_b.identifier: 477 S.W.3d 913, 913-14
citation_b.parenthetical: reversing class certification of DTPA unconseionability claim because "determining whether Hicks'[s] actions were unconscionable requires evaluation of each member's individual circumstances"
citation_b.sentence: See, e.g., Ryan, 477 S.W.3d at 913-14 (reversing class certification of DTPA unconseionability claim because “determining whether Hicks’[s] actions were unconscionable requires evaluation of each member’s individual circumstances”); Wall v. Parkway Chevrolet, Inc., 176 S.W.3d 98, 105-06 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (affirming denial of class certification of DTPA unconseionability claini because individualized inquiry into each buyer’s circumstances is required to answer the question “whether the charging of a fee under the designations such as ‘NACC,’ ‘Consumer Benefits & Services (ECBP),’ ‘NADW,’ ‘Intelesys,’ and/or other similar designations is an unconscionable ... act”); Peltier Enter., Inc. v. Hilton, 51 S.W.3d 616, 623-24 (Tex. App.—Tyler 2000, pet. denied) (reversing class certification of DTPA unconscionability claim because “[t]here must be a showing of what the consumer could have or would have done if he had known about the information ... there would need to be some showing of each customer’s ‘knowledge, ability, experience, or capacity”’); see also Venture Cotton Coop. v. Freeman, 435 S.W.3d 222, 228 (Tex. 2014) (holding that even under the UCC—as opposed to the DTPA here—court is to make a “highly fact-specific inquiry into the circumstances of the bargain, such as the commercial atmosphere in which the agreement was made, the alternatives available to the parties at the time and their ability to bargain, any illegality or public policy concerns, and the agreement’s oppressive or shocking nature” when determining unconseionability).