A Minnesota business misrepresents something material. A customer relies on it and loses money. Somebody reads Minn. Stat. § 325F.69, sees the words fraud, unfair or unconscionable practice, false pretense, false promise, misrepresentation, and figures the case is over.
It isn’t, and the reason is built into the statutes. Minnesota’s two main consumer protection statutes were written as prohibition statutes for a public enforcer. They tell a court what to enjoin. What they pay, and to whom, is a separate question, and it has three different answers. A consumer in a consumer transaction has a direct damages remedy that the statute itself deems to benefit the public. A business doesn’t, and lands in front of a doctrine that ends a great many otherwise-strong cases. And the Deceptive Trade Practices Act pays nobody at all.
In my practice, sorting that out before the complaint gets drafted is most of the work. I’ll take the statutes in order.
The Consumer Fraud Act prohibits nearly everything
Minn. Stat. § 325F.69, subd. 1 is about as broad as a prohibition gets:
The act, use, or employment by any person of any fraud, unfair or unconscionable practice, false pretense, false promise, misrepresentation, misleading statement or deceptive practice, with the intent that others rely thereon in connection with the sale of any merchandise, whether or not any person has in fact been misled, deceived, or damaged thereby, is enjoinable as provided in section 325F.70.
Read the two bolded phrases together. There’s an intent element: intent that others rely. There’s no element of actual reliance, actual deception, or actual damage. A practice can violate the Consumer Fraud Act without a single consumer having been fooled by it.
“Merchandise” is far broader than the word suggests. Minn. Stat. § 325F.68, subd. 2: “‘Merchandise’ means any objects, wares, goods, commodities, intangibles, real estate, loans, or services.” Real estate. Loans. Services. This isn’t a statute about defective toasters.
And “sale” reaches attempts. Subdivision 4: “‘Sale’ means any sale, offer for sale, or attempt to sell any merchandise for any consideration.”
Unfair and unconscionable conduct has a defined test. Section 325F.69, subd. 8:
[A]n unfair method of competition or an unfair or unconscionable act or practice is any method of competition, act, or practice that: (1) offends public policy as established by the statutes, rules, or common law of Minnesota; (2) is unethical, oppressive, or unscrupulous; or (3) is substantially injurious to consumers.
That’s three independent routes, joined by “or.” A practice that’s unethical, oppressive, or unscrupulous qualifies whether or not it’s also substantially injurious.
Now follow where subd. 1 sends you: the conduct “is enjoinable as provided in section 325F.70.” That cross-reference is where almost everyone stops reading too soon, because § 325F.70 has an injunction provision and a damages provision.
Section 325F.70, subd. 3: the provision I see missed most often
This is the provision that changes the analysis. Minn. Stat. § 325F.70, subd. 3(a):
In addition to the remedies otherwise provided by law, a consumer injured by a violation of sections 325F.68 to 325F.70, in connection with a sale of merchandise for personal, family, household, or agricultural purposes, may bring a civil action and recover damages, together with costs and disbursements, including costs of investigation and reasonable attorney fees, and receive other equitable relief as determined by the court. An action brought under this section benefits the public.
Read that last sentence again. It isn’t a factual finding a court makes case by case. It’s a legislative declaration, written into the statute, that an action under this subdivision benefits the public. That’s exactly the showing the private attorney general route requires and that so many claimants fail to make.
But the subdivision has two limits, and both matter. Paragraph (b) defines the terms:
(1) “consumer” means a natural person or family farmer; (2) “family farmer” means a person or persons operating a family farm; and (3) “family farm” has the meaning given in section 116B.02, subdivision 6.
And the transaction has to be “in connection with a sale of merchandise for personal, family, household, or agricultural purposes.”
So there are two bars to clear. Who you are: a natural person or a family farmer. A corporation, an LLC, a partnership, or a person buying a business isn’t a “consumer” here. And what the purchase was for: personal, family, household, or agricultural purposes. A natural person buying merchandise for a commercial venture is outside it.
Clear both and you have damages, costs of investigation, and reasonable attorney fees under the Consumer Fraud Act itself, without arguing about whether your case helps anyone but you. Put simply, nobody who qualifies under subdivision 3 should ever be litigating public benefit.
The Deceptive Trade Practices Act: fourteen categories, and an injunction
Minn. Stat. § 325D.44, subd. 1 lists the conduct. The first fourteen items, in the statute’s own words, cover a person who “in the course of business, vocation, or occupation”:
(1) passes off goods or services as those of another; (2) causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services; (3) causes likelihood of confusion or of misunderstanding as to affiliation, connection, or association with, or certification by, another; (4) uses deceptive representations or designations of geographic origin …; (5) represents that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have …; (6) represents that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used, or secondhand; (7) represents that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another; (8) disparages the goods, services, or business of another by false or misleading representation of fact; (9) advertises goods or services with intent not to sell them as advertised; (10) advertises goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity; (11) makes false or misleading statements of fact concerning the reasons for, existence of, or amounts of price reductions; (12) in attempting to collect delinquent accounts, implies or suggests that health care services will be withheld in an emergency situation; (13) engages in (i) unfair methods of competition, or (ii) unfair or unconscionable acts or practices; or (14) engages in any other conduct which similarly creates a likelihood of confusion or of misunderstanding.
Clause (13) imports the § 325F.69, subd. 8 test, and subd. 2(b) says so expressly. Clause (8) is the reason this statute shows up in fights between competitors as often as in fights with consumers.
Minnesota now has an all-in pricing rule, too. Subdivision 1a makes it a deceptive trade practice to advertise, display, or offer “a price for goods or services that does not include all mandatory fees or surcharges,” with “mandatory fee” defined to include a fee that “must be paid in order to purchase the goods or services being advertised,” “is not reasonably avoidable by the consumer,” or that “a reasonable person would expect to be included.” Government-imposed taxes are excluded. The subdivision also has detailed compliance safe harbors for delivery platforms, auctions, variable-cost services, food and beverage establishments including hotels (automatic and mandatory gratuities have to be disclosed as a percentage), broadband providers, and cable. Subdivision 1b exempts certain motor vehicle dealer fees, PUC-regulated businesses and affiliates, and RESPA settlement services other than real estate broker commissions and fees.
Proof is easier here than most defendants expect. Subdivision 2(a): “In order to prevail in an action under sections 325D.43 to 325D.48, a complainant need not prove competition between the parties or actual confusion or misunderstanding.”
And the remedy, again, is an injunction. Minn. Stat. § 325D.45, subd. 1:
A person likely to be damaged by a deceptive trade practice of another may be granted an injunction against it under the principles of equity and on terms that the court considers reasonable. Proof of monetary damage, loss of profits, or intent to deceive is not required. Relief granted for the copying of an article shall be limited to the prevention of confusion or misunderstanding as to source.
Fees under this statute are narrow, and they run both directions. Subdivision 2: costs go to the prevailing party unless the court directs otherwise, but attorney fees may be awarded only if “(1) the party complaining of a deceptive trade practice has brought an action knowing it to be groundless, or (2) the party charged with a deceptive trade practice has willfully engaged in the trade practice knowing it to be deceptive.”
That first clause cuts at plaintiffs too. A weak deceptive-trade-practices claim isn’t a free roll of the dice, and I turn them down for exactly that reason.
Everyone else lands in § 8.31, and in front of Ly v. Nystrom
If you aren’t a “consumer” in a consumer-purpose transaction, § 325F.70, subd. 3 is closed to you, and the road back to damages is the private attorney general statute. That’s where the hard question lives.
Two structural points first, and they cut opposite ways. Section 8.31, subd. 1 does list the Consumer Fraud Act: “the Prevention of Consumer Fraud Act (sections 325F.68 to 325F.70)” appears by name among the statutes the Attorney General is directed to investigate, and subd. 3a’s private remedy runs to “any person injured by a violation of any of the laws referred to in subdivision 1.” It doesn’t list the Deceptive Trade Practices Act. Subdivision 1 names the Unlawful Trade Practices Act at §§ 325D.09 to 325D.16. That’s a different statute. Sections 325D.43 to 325D.48, the Deceptive Trade Practices Act, aren’t there. Don’t assume § 8.31 carries DTPA damages.
In Ly v. Nystrom, 615 N.W.2d 302 (Minn. 2000), the Minnesota Supreme Court held that the private attorney general statute is available only to claimants who show that their cause of action benefits the public. The plaintiff had been defrauded in the purchase of a restaurant, and the Court’s explanation of why he lost is the sentence to remember:
Appellant was defrauded in a single one-on-one transaction in which the fraudulent misrepresentation, while evincing reprehensible conduct, was made only to appellant. A successful prosecution of his fraud claim does not advance state interests and enforcement has no public benefit …
The Court reasoned from the attorney general’s own authority: “If the attorney general is not authorized to commence a proceeding because it would not result in a public benefit … then a claimant under the Private AG Statute is similarly constrained.” It overruled its earlier decision in Church of Nativity to the extent that case could be read to permit recovery without proof of public benefit. Two justices dissented, on the ground that the statute’s plain language has no such requirement.
Here’s the part I find genuinely counterintuitive, and it’s why the case is worth understanding and not just citing. The same Court held that the one-on-one restaurant sale did violate § 325F.69, subd. 1. The conduct was inside the statute. The private remedy just wasn’t available to fix it. In Minnesota consumer protection law, violation and recovery are two different questions. If you remember one thing from Ly, make it that.
And think about what Ly’s facts would look like today. The plaintiff bought a restaurant, a business, for a commercial purpose. He wouldn’t be a “consumer” making a purchase “for personal, family, household, or agricultural purposes” under § 325F.70, subd. 3 either. Ly remains the governing framework for exactly the claimants it was decided against: businesses, and buyers of businesses.
I covered § 8.31, subd. 3a and the fee-shifting it makes possible in more depth here.
The whole regime on one table
| Consumer Fraud Act § 325F.69 | Deceptive Trade Practices Act § 325D.44 | |
|---|---|---|
| Reaches | Fraud, unfair or unconscionable practices, false pretense or promise, misrepresentation, misleading statements, deceptive practices, in connection with the sale of merchandise | Fourteen enumerated categories, plus the mandatory-fee disclosure rule in subd. 1a |
| “Merchandise” | Objects, wares, goods, commodities, intangibles, real estate, loans, or services | Goods or services |
| Reliance / damage required? | No — “whether or not any person has in fact been misled, deceived, or damaged” | No — subd. 2(a): no need to prove competition or actual confusion |
| Statutory remedy | Injunction under § 325F.70, subds. 1–2; damages under subd. 3 for a consumer in a consumer-purpose transaction | Injunction under § 325D.45, subd. 1 — no damages remedy |
| Attorney fees under the statute itself | Yes for a subd. 3 consumer claim, plus costs of investigation | Only for a groundless claim or a willful, knowing deceptive practice |
| Damages for a natural person, consumer purpose | § 325F.70, subd. 3 — statutorily deemed to benefit the public | Not available under this Act |
| Damages for a business, or a commercial-purpose purchase | § 8.31, subd. 3a, subject to Ly’s public benefit requirement | Not via § 8.31 — the DTPA is not among the statutes listed in § 8.31, subd. 1 |
How I actually run one of these cases
Bringing a claim, I answer two questions before anything else: who’s the claimant, and what was the purchase for? A natural person or family farmer who bought for personal, family, household, or agricultural purposes should be looking hard at § 325F.70, subd. 3, which supplies damages and fees and declares the action to benefit the public. From there:
- If subd. 3 is closed to you, ask the public benefit question. Was this a course of conduct aimed at a class of people, or a single negotiation? Marketing, standard-form disclosures, a sales script, a practice repeated across customers: those look like public benefit. A custom, one-off negotiation doesn’t.
- Plead your common law claims too. Section 325D.44, subd. 3 is explicit: “This section does not affect unfair, deceptive, or misleading trade practices otherwise actionable at common law or under other statutes of this state.” Common law fraud, misrepresentation, and breach of contract carry their own damages and don’t need a public benefit.
- Look for a statute with its own fee provision. Where one applies, it’s usually a better vehicle than § 8.31, and the Fair Credit Reporting Act is one example: it supplies its own private right of action and fees, as I discussed in the identity theft guide.
- Don’t overlook the injunction. For a business being hurt by a competitor’s disparagement or passing off, § 325D.45’s injunction, available without proving monetary damage, loss of profits, or intent to deceive, is often the relief that actually solves the problem.
- Watch the clock. Consumer protection claims are subject to limitations periods; see my Minnesota limitations overview.
Defending one, I run the same analysis backward. Check first whether the plaintiff is a § 325F.70, subd. 3 consumer. If they are, the public benefit defense isn’t available to you, because the statute answers it. If they aren’t, say so early. Where subd. 3 doesn’t apply, test the public benefit element early. It’s frequently dispositive of the damages claim, and it’s a legal question suited to early motion practice. Know the intent elements: § 325F.69, subd. 1 requires intent that others rely, and several § 325D.44 clauses require intent not to sell or not to supply. Audit your pricing pages against subd. 1a. Mandatory fees disclosed at checkout, not in the advertised price, are now the specific thing the statute goes after, and the safe harbors are detailed and industry-specific. And remember fees run both ways under § 325D.45, subd. 2.
Same script, three answers
Minnesota built its consumer protection regime around the attorney general, not private plaintiffs. Both statutes are written for a public enforcer: broad prohibitions, no reliance requirement, injunctive relief. That’s why the substantive standards are so generous. An enforcement agency trying to stop a practice doesn’t need to prove anyone was actually hurt.
When the Legislature added the private attorney general statute, it lent that enforcement machinery to private claimants. And in Ly, the Court held that borrowing the attorney general’s remedy means taking the attorney general’s limits with it. You may enforce what the attorney general could enforce, and no more.
Section 325F.70, subd. 3 is the Legislature’s answer to that. Instead of arguing case by case about whether an individual consumer’s claim advances a state interest, it wrote the conclusion into the statute: an action under the subdivision benefits the public. For a natural person or a family farmer buying for personal, family, household, or agricultural purposes, the question Ly made central just doesn’t come up.
What’s left is a regime sorted by who the claimant is, not by what the defendant did. A consumer gets damages and fees directly. A business asserting the same misrepresentation about the same product is back in front of Ly, arguing that its case helps somebody besides itself. And a competitor invoking the Deceptive Trade Practices Act gets an injunction and, in narrow circumstances, fees, but no damages under that Act at all.
Same deceptive sales script. Three different answers. That’s why the first question I ask in one of these cases is never “what did they do.” It’s “who are you.”
Madgett Law, LLC represents Minnesota consumers and businesses in Consumer Fraud Act, deceptive trade practices, and unfair competition disputes, including the § 325F.70, subd. 3 analysis that decides whether a claim carries damages and fees directly or has to run the public benefit gauntlet. If you’re weighing a consumer protection claim, that question is worth answering before the complaint is drafted. Send us a message or call 612-470-6529.
Sources: Minn. Stat. § 325F.68 (definitions — subd. 2, “merchandise,” including intangibles, real estate, loans, and services; subd. 3, “person”; subd. 4, “sale,” including an offer or attempt to sell); Minn. Stat. § 325F.69 (unlawful practices — subd. 1, the prohibition, the intent-that-others-rely element, the “whether or not any person has in fact been misled, deceived, or damaged” language, and the reference to enjoinability under § 325F.70; subd. 8, the standard of proof for unfair methods of competition and unfair or unconscionable acts or practices); Minn. Stat. § 325D.44 (deceptive trade practices — subd. 1, clauses (1)–(14); subd. 1a, mandatory fee and surcharge disclosure, the definition of “mandatory fee,” and the compliance provisions for delivery platforms, auctions, variable-cost services, food and beverage establishments, broadband, and cable; subd. 1b, exemptions; subd. 2(a), no need to prove competition or actual confusion, and subd. 2(b)’s cross-reference to § 325F.69, subd. 8; subd. 3, preservation of common law and other statutory claims); Minn. Stat. § 325D.45 (remedies — subd. 1, injunctive relief without proof of monetary damage, loss of profits, or intent to deceive; subd. 2, costs to the prevailing party and the two narrow grounds for attorney fees); Minn. Stat. § 325F.70 (remedies — subds. 1–2, injunction at the suit of the attorney general or a county attorney and service of process; subd. 3(a), the private consumer action for damages, costs and disbursements, costs of investigation, reasonable attorney fees, and equitable relief, and the declaration that “[a]n action brought under this section benefits the public”; subd. 3(b), the definitions of “consumer,” “family farmer,” and “family farm” by reference to § 116B.02, subd. 6); Minn. Stat. § 8.31, subd. 1 (the statutes the attorney general is directed to investigate, which name the Prevention of Consumer Fraud Act at §§ 325F.68 to 325F.70 and the Unlawful Trade Practices Act at §§ 325D.09 to 325D.16, and which do not name the Deceptive Trade Practices Act at §§ 325D.43 to 325D.48) and subd. 3a (private remedies) (Minnesota Office of the Revisor of Statutes); Ly v. Nystrom, 615 N.W.2d 302 (Minn. 2000) (public benefit requirement under the private attorney general statute; conduct in a one-on-one transaction held to fall within § 325F.69, subd. 1; Church of Nativity overruled in relevant part) (Caselaw Access Project archive of North Western Reporter, Second Series, volume 615, at pages 302–316). Whether a claimant is a “consumer” and whether a purchase was for a personal, family, household, or agricultural purpose are fact-specific, as is whether a claim outside § 325F.70, subd. 3 satisfies the public benefit requirement. This article is general legal information about Minnesota law, not legal advice, and reading it does not create an attorney–client relationship. No outcome is promised or implied.