Article on consumer protection lawsuits and regulatory exemptions

Victor E. Schwartz, Cary Silverman, & Christopher E. Appel, “That's Unfair!” Says Who--The Government or the Litigant?: Consumer Protection Claims Involving Regulated Conduct, 47 Washburn L.J. 93 (2007): A comprehensive and comprehensively defendant-friendly survey of state consumer protection laws and exemptions for “regulated” businesses (to wit, all businesses). Excerpt from the introduction (footnotes omitted):

Most state consumer protection statutes [CPAs] recognize the value of consistency between government policymaking and private consumer protection lawsuits. CPAs often exempt conduct in compliance with state or federal regulations from their coverage. Application of this sound policy, however, is not consistently and predictably applied, exposing businesses that have carefully followed government requirements to potentially massive liability. In some cases, courts narrowly interpret such exemptions, allowing plaintiffs' lawyers to circumvent the clear language of the law. In other instances, the significance of regulatory compliance is relegated to dictum when a court relies on other grounds to dismiss a CPA claim, such as failure to show injury or damages or to meet class certification standards. Nevertheless, in recent years, several courts have rendered strong decisions giving new life to regulatory compliance exemptions. These examples demonstrate that courts have a clear choice in deciding who determines whether conduct is unfair or deceptive--government agencies charged with regulating products and services for the public good, or lawyers as private enforcers who seek the often generous recovery available under the statute.