Monday, October 29, 2012

LexisNexis Filing Fees Might Be Unconscionable Under Texas Deceptive Trade Practices Law

This posting was written by Jody Coultas, Editor of CCH State Unfair Trade Practices Law.

A civil litigant stated a Texas Deceptive Trade Practices—Consumer Protection Act (DTPA) claim for unconscionable conduct against LexisNexis based on its mandatory electronic filing fees charged to litigants in Texas state courts in Montgomery and Jefferson counties, according to the federal district court in Houston.

The litigant initiated this suit after LexisNexis charged her for electronically filing in Montgomery County, which was mandatory. The fees were allegedly unconscionably high and neither Montgomery County nor LexisNexis provides litigants with a list of charges levied or the nature of those charges. LexisNexis also allegedly impliedly represented that it was a government actor.

False or Misleading Acts

Because the litigant failed to allege any specific concealment by LexisNexis that she relied upon to e-file, the court dismissed the DTPA claims for false, misleading, or deceptive acts. The DTPA makes it unlawful to engage in false, misleading, or deceptive acts or practices in the conduct of any trade or commerce. A party asserting such claims must show that the acts or practices in question caused a cognizable injury.

The litigant had knowledge of the alternatives to e-filing before choosing to e-file and did not believe the charge was a filing fee. Any concealment by LexisNexis of the fees did not cause the litigant to pay the e-filing fee and failure to disclose the fees was not a DTPA violation. Also, the litigant failed to allege that she would have used an alternative method if she had known of the cost of e-filing.


However, the litigant stated DTPA claims based on the unconscionability of the filing fees, according to the court. An unconscionable action is an act or practice which takes advantage of the lack of knowledge, ability, experience, or capacity of a person to a grossly unfair degree, or results in a gross disparity between the value received and consideration paid, in a transaction involving transfer of consideration.

In Montgomery County and Jefferson County, those seeking to file lawsuits had little alternative to paying the high e-filing fee charged by LexisNexis. As the sole provider of e-filing in those counties, LexisNexis was able to take advantage of litigants by setting whatever fee it wanted. The availability of any alternatives was not sufficient to defeat a claim of unconscionability because those choices were not meaningful ones.

The decision is McPeters v. LexisNexis, CCH State Unfair Trade Practices Act ¶32,555.

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