In July 2018, Sentient offered to sell Saber a Sciton laser with certain components, including a profractional component (the “First Laser”), for a price of $149,995.00. The parties agreed to the sale of the First Laser and Saber made a $15,000 payment. Subsequently, however, Sentient informed Saber that the First laser lacked a profractional component. Consequently, Saber requested that Sentient refund her the initial $15,000 payment. In response, Sentient offered Saber a second laser that included a microlaser peel and profractional component along with other accessories (the “Second Laser”). Instead of continuing to request a refund, Saber agreed to purchase the Second Laser. Accordingly, the parties entered into an agreement in September 2018 (the “Contract”) for Saber to purchase the Second Laser for $151,450.00. Thereafter, Saber made payment in full. For the Second Laser to function, it required certain application tips—Halo and Diva tips—and accessories that would deteriorate quickly and require replacement frequently. Prior to accepting Sentient’s offer to purchase the Second Laser, the parties had a sales call wherein
Sentient showed Saber two bags of such application tips that supposedly came with the Second Laser. Sentient told Saber that she could order additional application tips from Sentient as the need arose. Yet, when Saber received the Second Laser, she realized that Sentient had failed to ship several components, including the Halo and Diva tips and the profractional component (collectively, the “Components”). As such, Saber went to purchase Halo tips from the manufacturer, but the manufacturer explained that she could not purchase them directly due to the Second Laser being a resale. To date, Saber still does not possess all of the Components that she purchased with the Second Laser.
As a result of the foregoing experience, Saber initiated the instant suit in this court on October 16, 2019 and asserted three claims for relief: (1) rescission; (2) violation of the Utah Unfair Practices Act (“UUPA”) (Utah Code Ann. §§ 13-5-1 to -18); and (3) breach of contract.
In his written response Judge Kimball explained that UUPA “makes unlawful only ‘[u]nfair methods of competition in commerce.’” Garrard, 2009 UT 22, ¶ 9, 207 P.3d 1227, 1230 (quoting Utah Code Ann. § 13-5-2.5(1)). However, “there is no indication that the Utah Legislature intended [the UUPA] to reach any practices beyond anticompetitive behavior.” Id. Indeed, the UUPA “contains no language prohibiting unfair or deceptive practices in commerce.” Id. ¶ 12. Therefore, the UUPA “applies only to claims of unfair competition brought by commercial competitors”; it “does not apply to consumers.” Snap Advances LLC v. SHG of Illinois, LLC, No. 2:18-CV-00016-BSJ, 2019 WL 7505555, at *2 (D. Utah Feb. 12, 2019) (unpublished) (granting motion to dismiss because counterclaimant alleged that it was merely a consumer, not a competitor); Morover, the UUPA only governs intrastate commerce in Utah; it does not govern commerce outside of Utah or among different states.
Dr. Alhallak, the director of Albany Cosmetic and Laser Centre Commented on the news “I believe that the plaintiff strategy was wrong, they should have relied on the contract good faith instead UUPA, More importabtly, the honorable Kimball did not dismiss the case because Sentient Laser did not show unfair or deceptive practices, but because the UUPA contains no language prohibiting unfair or deceptive practices in commerce”
Dr. Kamal alhallak
Albany Cosmetic and Laser Centre
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originally published at Health News -