(b) It is the intent of the legislature that in construing paragraph (a) of this section the courts will be guided by the interpretations given by the Federal Trade Commission and the Federal Courts to Section 5(a) (1) of the Federal Trade Commission Act (15 U.S.C. 45(a)(1)), as from time to time amended.

SECTION 39-5-20 is not unconstitutionally vague, despite contention that it does not specify what acts are unlawful. Inman v. Ken Hyatt Chrysler Plymouth, Inc. (S.C. 1988) 294 S.C. 240, 363 S.E.2d 691, on subsequent appeal 303 S.C. 10, 397 S.E.2d 774.

Issue of alleged unfair competition was matter for jury to decide based upon its assessment of testimony where, among other things, there was some evidence from which jury could reasonably infer that competitor was engaged in effort to drive outdoor advertiser out of business in particular county. Bocook Outdoor Media, Inc. v. Summey Outdoor Advertising, Inc. (S.C.App. 1987) 294 S.C. 169, 363 S.E.2d 390.

Padding bills for auto repair is unfair trade practice under Act, as padding auto repair bills affects public interest because of its potential for repetition. Barnes v. Jones Chevrolet Co., Inc. (S.C.App. 1987) 292 S.C. 607, 358 S.E.2d 156. Trade Regulation 862.1

Mere breach of contract does not constitute violation of Unfair Trade Practices Act, such that nightclub operator's deliberate or intentional refusal to permit owner of coin-operated video game machines to utilize premises of its nightclub for effective display and operation of video machines in breach of its contract with owner of video machines, without more, does not constitute violation of Unfair Trade Practices Act. Key Co., Inc. v. Fameco Distributors, Inc. (S.C.App. 1987) 292 S.C. 524, 357 S.E.2d 476. Trade Regulation 862.1

To be actionable under the Unfair Trade Practices Act, the unfair or deceptive act or practice in the conduct of trade or commerce must have an impact upon the public interest; the act is unavailable to redress a private wrong where the public interest is not affected. Noack Enterprises, Inc. v. Country Corner Interiors of Hilton Head Island, Inc. (S.C.App. 1986) 290 S.C. 475, 351 S.E.2d 347, certiorari dismissed 294 S.C. 235, 363 S.E.2d 688. Trade Regulation 862.1

Unfair deceptive acts or practices in the conduct of trade and or commerce have an impact upon the public interests if the acts and or practices have the potential for repetition. Noack Enterprises, Inc. v. Country Corner Interiors of Hilton Head Island, Inc. (S.C.App. 1986) 290 S.C. 475, 351 S.E.2d 347, certiorari dismissed 294 S.C. 235, 363 S.E.2d 688. Trade Regulation 862.1

A complaint containing allegations of unfair or deceptive acts or practices on the part of the defendant which allegedly damaged the plaintiff did not state a claim under the unfair trade practices act, where the complaint nowhere alleged any facts demonstrating that those acts or practices adversely affected the public. Noack Enterprises, Inc. v. Country Corner Interiors of Hilton Head Island, Inc. (S.C.App. 1986) 290 S.C. 475, 351 S.E.2d 347, certiorari dismissed 294 S.C. 235, 363 S.E.2d 688.

The term "willful" as used in Section 39-5-110 creates a statutory standard of willfulness different from the common law standard and, for purposes of Section 39-5-110, conduct is willful if the defendant should have known it violates Section 39-5-20, the standard being not one of actual knowledge, but of constructive knowledge, so if, in the ordinary exercise of due diligence, a person of ordinary prudence engaged in trade or commerce could have ascertained that his conduct violates the Unfair Trade Practices Act, then such conduct is "willful" within the meaning of the statute. State ex rel. Medlock v. Nest Egg Soc. Today, Inc. (S.C.App. 1986) 290 S.C. 124, 348 S.E.2d 381.

Violation of Section 39-5-20 by defendant corporation and 2 of its directors was willful since a person exercising due diligence to determine whether defendant corporation's membership program violated the law would have no doubt that it constituted a pyramid scheme prohibited by Section 39-5-30. State ex rel. Medlock v. Nest Egg Soc. Today, Inc. (S.C.App. 1986) 290 S.C. 124, 348 S.E.2d 381.

Penalties were properly assessed individually against officers, directors and principal shareholders of a corporation whose membership program constituted a pyramid scheme. State ex rel. Medlock v. Nest Egg Soc. Today, Inc. (S.C.App. 1986) 290 S.C. 124, 348 S.E.2d 381.

Shippers of furniture and household goods could not recover under supplemental agreement with an interstate motor common carrier since, even if the supplemental agreement constituted an unfair or deceptive trade practice, their agreement was authorized by regulations and tariffs administered by the Interstate Commerce Commission, and, thus, exempted from the South Carolina unfair trade practice law by Section 39-5-40(a). Carr v. United Van Lines, Inc. (S.C.App. 1986) 289 S.C. 194, 345 S.E.2d 734.

Payees' demurrer to counterclaim in action on note should not have been sustained where the counterclaim contained allegations which, if proven, stated a claim under the Unfair Trade Practice Act and, therefore, raised issues of novel impression that required a record to be made in the lower court to enable the appellate courts to properly review them. Vaughan v. Kalyvas (S.C.App. 1986) 288 S.C. 358, 342 S.E.2d 617.

The question of whether price discrimination violates the Unfair Trade Practices Act, Sections 39-5-10 to 39-5-560, being a question of first impression in South Carolina, should not be decided on demurrer; rather, the case should be fully developed and tried on its merits. Jackson v. Atlantic Soft Drink Co., Inc. (S.C. 1985) 286 S.C. 577, 336 S.E.2d 13.

Under Section 39-5-20(a) and (b), plaintiff need not prove the elements of common law deceit in order to establish a violation of the South Carolina Unfair Trade Practices Act, since, under the statute, there is no need to show that a claim or representation was intended to deceive, but only that it had the capacity, effect, or tendency to deceive. State ex rel. McLeod v. C & L Corp., Inc. (S.C.App. 1984) 280 S.C. 519, 313 S.E.2d 334.

1.5. Construction and application

Facts necessary to establish that car dealership violated Unfair Trade Practices Act were not inconsistent with facts required to establish that car dealership violated Uniform Commercial Code (UCC), and thus customers were entitled to bring claims against car dealership under both statutes; car dealership violated Unfair Trade Practices Act by deceiving customers concerning their credit approval and having customers sign both an unconditional sales contract and a conditional bailment agreement, and violated UCC by failing to give customers notice of sale of repossessed collateral. Singleton v. Stokes Motors, Inc. (S.C. 2004) 358 S.C. 369, 595 S.E.2d 461, rehearing denied. Consumer Protection 9; Secured Transactions 242.1

Mortgagee did not engage in "unlawful trade practice" under South Carolina Unfair Trade Practices Act (SCUTPA) when it allegedly reported to credit bureaus that mortgage was in foreclosure, inasmuch as it was not wholly unreasonable for mortgagee to believe that reference of defaulted mortgage loan to its internal foreclosure department had placed account in foreclosure, and therefore such communication could not be seen as immoral, unethical, or oppressive. Beattie v. Nations Credit Financial Services Corp. (C.A.4 (S.C.) 2003) 69 Fed.Appx. 585, 2003 WL 21480586, Unreported. Consumer Protection 10; Credit Reporting Agencies 3

Mortgagee bank's alleged conduct in falsely reporting to credit reporting agencies that mortgage was in foreclosure did not constitute an "unfair trade practice," within meaning of the South Carolina Unfair Trade Practices Act (SCUTA), absent showing that mortgagee knew the foreclosure information was false. Beattie v. Nations Credit Financial Services Corp. (C.A.4 (S.C.) 2003) 65 Fed.Appx. 893, 2003 WL 21213703, Unreported. Credit Reporting Agencies 3

2. Evidence

Exclusion of evidence that contractor's auditors involved in initial audits of subcontractor's accounting books and records were not licensed certified public accountants was not abuse of discretion in action between contractor and subcontractor for, inter alia, breach of subcontracts, given that auditors were not public accountants engaged to audit subcontractor, so as to trigger licensing provision in generally accepted government accounting standards (GAGAS), but rather were contractor employees exercising contractor's rights pursuant to subcontracts to inspect subcontractor's accounting books and records. Project Control Services, Inc. v. Westinghouse Savannah River Co., Inc. (C.A.4 (S.C.) 2002) 35 Fed.Appx. 359, 2002 WL 1020695, Unreported, certiorari denied 123 S.Ct. 618, 537 U.S. 1045, 154 L.Ed.2d 516. Contracts 322(2)

3. Public interest requirement

Grocery store chains did not violate South Carolina Unfair Trade Practices Act (SCUTPA) by ceasing to stock manufacturer's barbecue sauce, after manufacturer's owner asserted his First Amendment rights by speaking out in opposition to removal of Confederate flag from state capitol; exercise of contractual right not to do business with particular vendor was not "unfair act" giving rise to SCUTPA liability, and dispute was private in nature, lacking anecessary adverse impact on public interest. Bessinger v. Food Lion, Inc., 2003, 305 F.Supp.2d 574, affirmed 115 Fed.Appx. 636, 2004 WL 2634528, certiorari denied 125 S.Ct. 2270, 161 L.Ed.2d 1080. Trade Regulation 862.1

South Carolina Unfair Trade Practices Act's (SCUTPA) "public interest" requirement may be satisfied if the alleged unfair or deceptive acts or practices have the potential for repetition; potential for repetition may be shown (1) by showing the same kind of actions occurred in the past, thus making it likely they will continue to occur absent deterrence, or (2) by showing the company's procedures create a potential for repetition of the unfair and deceptive acts. Liberty Mut. Ins. Co. v. Employee Resource Management, Inc., 2001, 176 F.Supp.2d 510. Trade Regulation 861

Plaintiff in a South Carolina Unfair Trade Practices Act (SCUTPA) action is required only to allege and prove those facts sufficient to demonstrate potential for repetition; at that point, plaintiff has proven an adverse effect on the public interest sufficient to recover under the SCUTPA. Liberty Mut. Ins. Co. v. Employee Resource Management, Inc., 2001, 176 F.Supp.2d 510. Trade Regulation 864

Evidence was sufficient to support finding that defendant's conduct violated the "public interest" requirement of South Carolina Unfair Trade Practices Act (SCUTPA); defendant's failure to pay what it owed under the assigned risk plan adversely affected other insurers, companies, and their insureds by way of increased premium rates, defendant's actions enabled it to compete within the employee leasing industry with the unfair advantage of having low workers' compensation premiums, defendant misled some clients as to whether they had workers' compensation insurance coverage placing company and the uninsured clients at risk, defendant deceived another insurer, and the Georgia Assigned Risk Plan when it tried to obtain new coverage in Georgia, and defendant's offer of the sale of its stock was predicated upon a grossly underestimated liability to insurer for workers' compensation premiums. Liberty Mut. Ins. Co. v. Employee Resource Management, Inc., 2001, 176 F.Supp.2d 510. Trade Regulation 864

An impact on the public interest sufficient to support claim under Unfair Trade Practices Act may be shown if the acts or practices have the potential for repetition. Singleton v. Stokes Motors, Inc. (S.C. 2004) 358 S.C. 369, 595 S.E.2d 461, rehearing denied. Consumer Protection 4

Mortgagors failed to establish public interest element of claim against mortgagee for engaging in unlawful trade practice under South Carolina Unfair Trade Practices Act (SCUTPA), which required evidence showing potential for repetition of unfair or deceptive act, when mortgagors merely produced pleadings in similar case, in that bare allegations in that case's complaint, offered without further evidentiary support, did not establish adverse impact on public interest. Beattie v. Nations Credit Financial Services Corp. (C.A.4 (S.C.) 2003) 69 Fed.Appx. 585, 2003 WL 21480586, Unreported. Consumer Protection 39

Mortgagor did not establish that any unfair trade practices by mortgagee bank had an adverse impact on the public interest, as required to prove violation of the South Carolina Unfair Trade Practices Act (SCUTPA), absent showing of potential for repetition of the unfair or deceptive act. Beattie v. Nations Credit Financial Services Corp. (C.A.4 (S.C.) 2003) 65 Fed.Appx. 893, 2003 WL 21213703, Unreported. Consumer Protection 6

4. Repetition of act, public interest requirement

Potential for repetition of unfair or deceptive act or practice, as will establish impact upon public interest sufficient to support claim under Unfair Trade Practices Act, may be shown in either of two ways: (1) by showing the same kind of actions occurred in the past, thus making it likely they will continue to occur absent deterrence; or (2) by showing the company's procedures created a potential for repetition of the unfair and deceptive acts. Singleton v. Stokes Motors, Inc. (S.C. 2004) 358 S.C. 369, 595 S.E.2d 461, rehearing denied. Consumer Protection 4

5. Arbitration

Challenge to arbitration clause as a violation of public policy by precluding punitive damages was premature prior to arbitration in suit alleging fraud and violation of the Unfair Trade Practices Act (UTPA); the arbitrator needed to decide whether the UTPA was violated and the statutory treble damages were punitive or compensatory damages, it was unclear how the arbitrator would rule on merits or claim for punitive damages, and the issues were thus not ripe. Carolina Care Plan, Inc. v. United HealthCare Services, Inc. (S.C. 2004) 361 S.C. 544, 606 S.E.2d 752, rehearing denied. Arbitration 23.30

6. Persons liable

In private actions under the Unfair Trade Practices Act (UTPA), directors and officers are not liable for the corporation's unfair trade practices unless they personally commit, participate in, direct, or authorize the commission of a violation of the UTPA. BPS, Inc. v. Worthy (S.C.App. 2005) 362 S.C. 319, 608 S.E.2d 155. Corporations 336; Trade Regulation 862.1

Corporation's president would be personally liable for unfair trade practices that he personally committed. BPS, Inc. v. Worthy (S.C.App. 2005) 362 S.C. 319, 608 S.E.2d 155. Corporations 336; Trade Regulation 862.1