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Will K&K contracts protect you from deceptive business practice claims in Texas or other states  
May 19, 2023
Will K&K contracts protect you from deceptive business practice claims in Texas or other states
          Our subscriber suffered a loss, blames us, and we received a demand for payment letter. We are not concerned about the demand for payment as at the time of the date of loss this business was not our client. We have responded to them with that information.
          The reason I am reaching out to you is because we are concerned about the verbiage in the letter that references our contracts violating the Texas Deceptive Trade Practices Act. While this incident won't result in any loss for us we want to confirm that the contracts that we had drawn by your offices meet all necessary Texas requirements and we aren't exposed for a future issue.
          As repeated below by the attorney in my office who researched this for response, we did not design the Standard Form Agreements to insulate you from deceptive business practices.  Apparently  in Texas a consumer can waive the rights under the Texas Deceptive Business Practice Act, but as we point out below, getting an effective waiver is not practical and I certainly not going to include that provision in K&K Standard Form Agreements.  I think the better practice is that you should not engage in deceptive business practices, no matter how Texas or any other state defines it.
          Here is the response from Sam Atlas,Esq in my office
          Thank you for bringing this matter to our attention. As an initial matter, the Kirschenbaum Contract were not designed to prevent potential liability for deceptive trade practices.  Nonetheless, it is impracticable, if not impossible, to obtain waivers from all your customers because the law defines “consumers” very broadly (includes individuals, partnerships, corporation, and even state agencies with less than $25 million in assets), or and requires that contracting consumers are represented by legal counsel when signing.
          Even including the statutorily required language does not on its own effect an enforceable waiver of claims for violations under the Texas Deceptive Trade Practices Act. If your customer has not actually retained counsel to review the contract, the waiver will not be enforceable.
          “I waive my rights under the Deceptive Trade Practices-Consumer Protection Act, Section 17.41 et seq., Business & Commerce Code, a law that gives consumers special rights and protections. After consultation with an attorney of my own selection, I voluntarily consent to this waiver."” Tex. Bus. & Com. Code § 17.42
Sam Atlas.Esq
Kirschenbaum & Kirschenbaum PC

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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301