Concealment = Shoplifting
It is a common misbelief that in order to commit the act of shoplifting, an individual must exit the store and permanently deprive the merchant of the unpurchased merchandise. The truth is, however, that in most states, an individual commits the act of shoplifting by taking actions that would cause one to reasonably believe that he intends to permanently deprive the merchant of the goods. Most states require that the merchant have probable cause (or reasonable grounds) to believe that an individual has committed an act of theft or is attempting to shoplift before making a decision to detain the individual to determine if their observation was correct. Probable cause or reasonable grounds is not limited to observing the individual exiting the store with unpurchased merchandise. In addition to clear cases of theft, such as when a person opens a product’s container, consumes the contents and fails to pay for the product, probable cause or reasonable grounds to detain and make inquiry can also be obtained by observing an individual conceal unpurchased merchandise or in some states, by the activation of EAS even if the individual was not observed concealing merchandise. The majority of states do not require that an individual exit the store in order to have a civil cause of action for shoplifting.
Read MoreTo Promise or Not to Promise … That is the Question
Almost all states have statutes that protect retailers by providing a civil remedy that allows for the recovery of actual damages arising from incidents of theft. Actual damages are in addition to any civil statutory (penalty) damages the retailer may be entitled to and generally include restitution. In a previous article from our Firm, it was explained that even if merchandise is recovered in merchantable condition, there are actual damages. Likewise, and even less likely to be contested, when the retailer is not able to recover the merchandise or the assets taken by the theft offender, the retailer suffers actual damages. When a retailer suffers actual damages, the retailer has a right to request reimbursement for actual losses sustained in addition to any available civil statutory (penalty) damages.
Read MoreNo Damage Does Not Mean No Damages
Many are under the assumption that a retailer does not sustain any damages if the merchandise stolen in a shoplifting incident is recovered in merchantable condition. However, this is not the case. Just because the merchandise is not damaged does not mean there are no legal damages.
Read MoreTort versus Debt: Does a request for civil damages arising from a theft constitute the collection of a debt?
When a request for civil damages is made, many retail theft offenders assume that the request qualifies as an attempt to collect a debt and mistakenly believe that they are provided with the protections listed under the Fair Debt Collection Practices Act (“FDCPA”). Congress enacted the FDCPA in 1977 “to eliminate abusive debt collection practices by debt collectors, to ensure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent state action to protect consumers against debt collection abuses.”[1] The FDCPA and its state law relative “equivalents” are clearly intended to protect consumers from abusive debt collection practices. Debt falls under the realm of consumer law and is governed by the FDCPA and the above-mentioned various state statutory equivalents. Under the FDCPA, a debt is defined as “a consumer’s obligation … to pay money arising out of a transaction in which the money, property, insurance or services [being purchased] are primarily for personal, family or household purposes …”[2]
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