Text: HSB00170 Text: HSB00172 Text: HSB00100 - HSB00199 Text: HSB Index Bills and Amendments: General Index Bill History: General Index
PAG LIN 1 1 Section 1. Section 714.16, subsection 1, Code 2001, is 1 2 amended by adding the following new paragraphs: 1 3 NEW PARAGRAPH. aa. "Agricultural merchandise" means 1 4 merchandise sold to be used in the production of agricultural, 1 5 horticultural, viticultural, and dairy products; livestock, 1 6 wildlife, poultry, bees, fish, and products thereof; and any 1 7 and all products raised or produced on farms. 1 8 NEW PARAGRAPH. ia. "Nonprofit organization" means a 1 9 charitable organization as defined in section 13C.1, 1 10 subsection 1; a political organization as defined in section 1 11 13C.1, subsection 3; a religious organization as defined in 1 12 section 13C.1, subsection 5; nonprofit corporations as defined 1 13 in section 504A.2, subsection 8; public or nonpublic schools, 1 14 colleges, and universities; and a fraternal benefit society as 1 15 defined in section 512B.3. 1 16 NEW PARAGRAPH. ib. "Office supplies and services" means 1 17 any goods, or services incident to the use of such goods, 1 18 including but not limited to supplies and equipment and 1 19 promotional advertising, to be used in the operation of any 1 20 office, including but not limited to offices of any business, 1 21 home business, or nonprofit organization, or of any farm, but 1 22 shall not include goods or services purchased for the purpose 1 23 of resale. 1 24 Sec. 2. Section 714.16, subsection 7, Code 2001, is 1 25 amended to read as follows: 1 26 7. a. (1)AUnless otherwise provided, a civil action 1 27 pursuant to this section shall be by equitable proceedings. 1 28 If it appears to the attorney general that a person has 1 29 engaged in, is engaging in, or is about to engage in a 1 30 practice declared to be unlawful by this section, the attorney 1 31 general may seek and obtain in an action in a district court a 1 32 temporary restraining order, preliminary injunction, or 1 33 permanent injunction prohibiting the person from continuing 1 34 the practice or engaging in the practice or doing an act in 1 35 furtherance of the practice. The court may make orders or 2 1 judgments as necessary to prevent the use or employment by a 2 2 person of any prohibited practices, or which are necessary to 2 3 restore to any person in interest any moneys or property, real 2 4 or personal, which have been acquired by means of a practice 2 5 declared to be unlawful by this section, including the 2 6 appointment of a receiver in cases of substantial and willful 2 7 violation of this section. If a person has acquired moneys or 2 8 property by any means declared to be unlawful by this section 2 9 and if the cost of administering reimbursement outweighs the 2 10 benefit to consumers or consumers entitled to the 2 11 reimbursement cannot be located through reasonable efforts, 2 12 the court may order disgorgement of moneys or property 2 13 acquired by the person by awarding the moneys or property to 2 14 the state to be used by the attorney general for the 2 15 administration and implementation of this section. Except in 2 16 an action for the concealment, suppression, or omission of a 2 17 material fact with intent that others rely upon it, it is not 2 18 necessary in an action for reimbursement or an injunction, to 2 19 allege or to prove reliance, damages, intent to deceive, or 2 20 that the person who engaged in an unlawful act had knowledge 2 21 of the falsity of the claim or ignorance of the truth. A 2 22 claim for reimbursement may be proved by any competent 2 23 evidence, including evidence that would be appropriate in a 2 24 class action. 2 25 (2) In addition to the remedies otherwise provided for in 2 26this subsectionsubparagraph (1), the attorney general may 2 27 request and the court may impose a civil penalty not to exceed 2 28 forty thousand dollars per violation against a person found by 2 29 the court to have engaged in a method, act, or practice 2 30 declared unlawful under this section; provided, however, a 2 31 course of conduct shall not be considered to be separate and 2 32 different violations merely because the conduct is repeated to 2 33 more than one person. In addition, on the motion of the 2 34 attorney general or its own motion, the court may impose a 2 35 civil penalty of not more than five thousand dollars for each 3 1 day of intentional violation of a temporary restraining order, 3 2 preliminary injunction, or permanent injunction issued under 3 3 authority of this section. A penalty imposed pursuant to this 3 4subsectionparagraph is in addition to any penalty imposed 3 5 pursuant to section 537.6113. Civil penalties ordered 3 6 pursuant to thissubsectionsubparagraph shall be paid to the 3 7 treasurer of state to be deposited in the general fund of the 3 8 state. 3 9 b. (1) Any person or nonprofit organization may bring an 3 10 action at law to recover actual damages, if the person or 3 11 nonprofit organization purchases, leases, or rents merchandise 3 12 for personal, family, or household purposes, agricultural 3 13 merchandise, office supplies or services, or a business 3 14 opportunity as defined in section 523B.1, subsection 3, 3 15 regardless of the dollar amount of initial investment; or is 3 16 solicited for charitable contributions, and suffers the loss 3 17 of any moneys or property, real or personal, as the result of 3 18 a practice declared to be unlawful by this section or by 3 19 another section, the violation of which is declared to violate 3 20 this section. The court may order such equitable relief as it 3 21 deems necessary to protect the public from further violations, 3 22 including temporary and permanent injunctive relief. A 3 23 prevailing plaintiff shall also be entitled to reasonable 3 24 attorney fees and the costs of bringing the action. Except in 3 25 an action for the concealment, suppression, or omission of a 3 26 material fact with intent that others rely upon it, it is not 3 27 necessary in an action for damages or an injunction, to allege 3 28 or to prove reliance, intent to deceive, or that the person 3 29 who engaged in the unlawful act had knowledge of the falsity 3 30 of the claim or ignorance of the truth. If the fact finder 3 31 finds that the use of a practice declared to be unlawful by 3 32 this section was willful, punitive damages may be awarded to a 3 33 prevailing plaintiff. 3 34 (2) Within seven days following commencement of any action 3 35 brought under subparagraph (1), the plaintiff shall provide a 4 1 copy of the petition to the attorney general and, within seven 4 2 days following entry of any final judgment in the action, 4 3 shall provide a copy of the judgment to the attorney general. 4 4 In addition, the party appealing an order or judgment issued 4 5 in any action brought under subparagraph (1), shall provide a 4 6 copy of the notice of appeal to the attorney general within 4 7 seven days following the date such notice is filed with the 4 8 court. All copies of petitions, judgments, and notices of 4 9 appeal shall be sent by certified mail and shall be 4 10 accompanied by a written statement identifying the copied 4 11 document as pertaining to an action under this paragraph. 4 12 Failure to provide the required copies to the attorney general 4 13 shall not be grounds for dismissal of an action under this 4 14 section. However, no final judgment shall be entered until 4 15 the attorney general files notice that the attorney general 4 16 will not participate as a party to the proceeding or until at 4 17 least sixty days have passed since the petition was mailed to 4 18 the attorney general by the plaintiff or on behalf of the 4 19 plaintiff as shown by the proof of mailing on file in the 4 20 case. No appeal shall be docketed until proof of mailing of 4 21 the notice of appeal to the attorney general has been filed in 4 22 the Iowa supreme court. The attorney general may intervene as 4 23 a party at any time within sixty days of receiving a copy of a 4 24 petition as set forth above, or may be heard at any point in 4 25 any judicial proceeding pursuant to this paragraph. The 4 26 attorney general's failure to intervene as a party or 4 27 otherwise participate in the action shall not preclude any 4 28 later action by the attorney general. Reimbursement awarded 4 29 to the attorney general pursuant to paragraph "a", 4 30 subparagraph (1), on behalf of a plaintiff who has filed an 4 31 action pursuant to subparagraph (1) of this paragraph, 4 32 concerning the same set of facts shall be deducted from any 4 33 damages awarded to the plaintiff in an action filed under this 4 34 paragraph. 4 35 c. Any claim made under this section shall be required to 5 1 be proved by a preponderance of the evidence. 5 2 EXPLANATION 5 3 This bill amends Code section 714.16 to provide a private 5 4 cause of action for violations of the consumer fraud Act. 5 5 The bill provides that a consumer fraud victim who is a 5 6 person or nonprofit organization who purchases, leases, or 5 7 rents merchandise for personal, family, or household purposes, 5 8 agricultural merchandise, office supplies or services, or 5 9 certain business opportunities, or who is solicited for 5 10 charitable contributions, may bring a civil action and be 5 11 awarded actual damages, attorney fees, costs, injunctive 5 12 relief, and punitive damages for willful violations. 5 13 The bill further authorizes the attorney general to oversee 5 14 private consumer fraud actions by permitting the attorney 5 15 general to intervene within 60 days of receipt of a petition 5 16 or be heard at any point in any private proceeding. The bill 5 17 assists the attorney general in monitoring private actions by 5 18 requiring private parties to provide copies of petitions, 5 19 judgments, decrees, and notices of appeal. 5 20 LSB 1153DP 79 5 21 rh/gg/8.1
Text: HSB00170 Text: HSB00172 Text: HSB00100 - HSB00199 Text: HSB Index Bills and Amendments: General Index Bill History: General Index
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