Text: HF02533 Text: HF02535 Text: HF02500 - HF02599 Text: HF Index Bills and Amendments: General Index Bill History: General Index
PAG LIN 1 1 Section 1. Section 714.16, subsection 2, paragraph a, 1 2 unnumbered paragraph 4, Code 2003, is amended to read as 1 3 follows: 1 4 "Material fact" as used in this subsection does not include 1 5 repairs of damage to or adjustments on or replacements of 1 6 parts with new parts of otherwise new merchandise if the 1 7 repairs, adjustments, or replacements are made to achieve 1 8 compliance with factory specifications and are made before 1 9 sale of the merchandise at retail and the actual cost of any 1 10 labor and parts charged to or performed by a retailer for any 1 11 such repairs, adjustments, and parts does not exceed three 1 12 hundred dollars or ten percent of the actual cost to a 1 13 retailer including freight of the merchandise, whichever is 1 14 less,providingor if the retailer is a motor vehicle dealer 1 15 licensed to sell new motor vehicles under chapter 322 and the 1 16 actual cost of labor and parts does not exceed four percent of 1 17 the retail price of the motor vehicle suggested by the 1 18 manufacturer, provided that the seller posts in a conspicuous 1 19 place notice that repairs, adjustments, or replacements will 1 20 be disclosed upon request, and also provided that the retailer 1 21 discloses in writing to a buyer or lessee at or before the 1 22 time of sale or lease any damage exceeding three thousand 1 23 dollars, ten percent of the actual cost to a retailer 1 24 including freight, or four percent of the manufacturer's 1 25 suggested price of a motor vehicle, whichever is applicable. 1 26 The exemption provided in this paragraph does not apply to the 1 27 concealment, suppression or omission of a material fact if the 1 28 purchaser or lessee requests disclosure of any repair, 1 29 adjustment or replacement. 1 30 Sec. 2. NEW SECTION. 714F.1 TITLE. 1 31 This chapter shall be known and may be cited as the 1 32 "Private Remedy for Consumer Fraud Act". 1 33 Sec. 3. NEW SECTION. 714F.2 DEFINITIONS. 1 34 1. "Advertisement" means the same as defined in section 1 35 714.16. 2 1 2. "Agricultural merchandise" means merchandise sold to be 2 2 used in the production of agricultural, horticultural, 2 3 viticultural, or dairy products; of livestock, wildlife, 2 4 poultry, bees, or fish, or products thereof; or of any and all 2 5 products raised or produced on farms. 2 6 3. "Consumer" means any of the following: 2 7 a. A natural person or the person's legal representative. 2 8 b. A partnership, corporation, company, trust, business 2 9 entity or association, political association as defined in 2 10 section 13C.1, religious organization as defined in section 2 11 13C.1, public or nonpublic school, college, university, or a 2 12 fraternal benefit society as defined in section 512B.3. 2 13 4. "Consumer merchandise" means merchandise offered for 2 14 sale, lease, or rental, or sold, leased, or rented, primarily 2 15 for personal, family, or household purposes, agricultural 2 16 merchandise, and office supplies and services. 2 17 5. "Deception" means an act or practice which would be 2 18 likely to mislead a consumer acting reasonably under the 2 19 totality of the circumstances giving due consideration to all 2 20 relevant factors. 2 21 6. "Material fact" means the same as defined in section 2 22 714.16. 2 23 7. "Merchandise" means the same as defined in section 2 24 714.16. 2 25 8. "Office supplies and services" means any goods, or 2 26 services incident to the use of such goods, including but not 2 27 limited to supplies and equipment and promotional advertising, 2 28 to be used in the operation of any office. "Office supplies 2 29 and services" does not include goods or services purchased for 2 30 the purpose of resale. 2 31 9. "Person" means the same as defined in section 714.16. 2 32 10. "Sale" means any sale or offer for sale of consumer 2 33 merchandise for cash or credit. 2 34 11. "Unfair practice" means the same as defined in section 2 35 714.16. 3 1 Sec. 4. NEW SECTION. 714F.3 PROHIBITED PRACTICES. 3 2 1. A person shall not engage in a practice that the person 3 3 knows or reasonably should know is an unfair practice, 3 4 deception, fraud, false pretense, false promise, or 3 5 misrepresentation, or that constitutes the concealment, 3 6 suppression, or omission of a material fact with the intent 3 7 that others rely upon the concealment, suppression, or 3 8 omission, in connection with the advertisement, sale, lease, 3 9 or rental of consumer merchandise or the solicitation of 3 10 contributions for charitable purposes. 3 11 2. A person shall not engage in any practice that is in 3 12 violation of any of the following: 3 13 a. Chapter 126. 3 14 b. Section 321.69. 3 15 c. Chapter 516D. 3 16 d. Chapter 555A. 3 17 e. Section 714.16, subsection 2, paragraphs "b" through 3 18 "n". 3 19 f. Chapter 714A. 3 20 Sec. 5. NEW SECTION. 714F.4 PRIVATE CAUSE OF ACTION. 3 21 1. A consumer who suffers damage or injury as the result 3 22 of a practice declared to violate this chapter may bring an 3 23 action at law to recover actual damages. The court may order 3 24 such equitable relief as it deems necessary to protect the 3 25 public from further violations, including temporary and 3 26 permanent injunctive relief. 3 27 2. The court shall award to a prevailing consumer costs 3 28 and reasonable attorney fees. Reasonable attorney fees shall 3 29 be determined by the value of the time reasonably expended by 3 30 the attorney including, but not limited to, the following: 3 31 a. The time and labor required. 3 32 b. The novelty and difficulty of the legal issues. 3 33 c. The skill level necessary to perform the legal service. 3 34 d. The preclusion of employment by the attorney due to the 3 35 acceptance of the case. 4 1 e. The customary fee. 4 2 f. Whether the fee is fixed or contingent. 4 3 g. The time limitations imposed by the client or the 4 4 circumstances of the case. 4 5 h. The amount of money involved in the case and the 4 6 results obtained. 4 7 i. The experience, reputation, and ability of the 4 8 attorneys involved in the case. 4 9 j. The feasibility of the case. 4 10 k. The nature and length of the professional relationship 4 11 with the client. 4 12 l. Award amounts in similar cases. 4 13 3. Any claim under this section shall be required to be 4 14 proved by a preponderance of the evidence. 4 15 4. Reimbursement awarded to the attorney general pursuant 4 16 to section 714.16 on behalf of a plaintiff who has filed an 4 17 action pursuant to this section concerning the same set of 4 18 facts shall be deducted from any damages awarded to the 4 19 plaintiff in an action filed under this section. 4 20 5. Court interpretations of this chapter shall have no 4 21 effect on court interpretations of actions by the state 4 22 pursuant to section 714.16. 4 23 6. This section shall not affect a consumer's right to 4 24 seek relief under any other theory of law. 4 25 Sec. 6. NEW SECTION. 714F.5 CLASS ACTIONS BARRED. 4 26 A class action lawsuit alleging violations of this chapter 4 27 shall not be available. This section shall not affect a 4 28 consumer's right to bring or participate in a class action 4 29 lawsuit under any other theory, and shall not affect a right 4 30 to joinder of claims or parties. 4 31 Sec. 7. NEW SECTION. 714F.6 ATTORNEY GENERAL 4 32 NOTIFICATION. 4 33 1. Except for appeals in small claims court described in 4 34 subsection 2, a party filing a claim, counterclaim, or other 4 35 petition alleging a violation under this chapter shall provide 5 1 a copy of the petition to the attorney general and, within 5 2 seven days following entry of any final judgment in the 5 3 action, shall provide a copy of the judgment to the attorney 5 4 general. 5 5 2. In an appeal from small claims court to district court 5 6 involving an issue raised under this chapter, the party 5 7 raising the claim or counterclaim shall provide a copy of the 5 8 notice of appeal, the petition, and the small claims order to 5 9 the attorney general within seven days of the filing of the 5 10 notice of appeal from small claims court. Upon application to 5 11 the court wherein the matter is pending, the attorney general 5 12 may intervene as a party at any time, or may be heard at any 5 13 time. The attorney general's failure to intervene as a party 5 14 or otherwise participate in the action shall not preclude any 5 15 later action by the attorney general. 5 16 3. The party appealing an order or judgment shall provide 5 17 a copy of the notice of appeal to the attorney general within 5 18 seven days following the date such notice is filed with the 5 19 court. An appeal shall not be docketed until proof of mailing 5 20 of the notice of appeal to the attorney general has been filed 5 21 in the supreme court in accordance with subsection 4. Upon 5 22 application to the appellate court wherein the matter is 5 23 pending, the attorney general may intervene as a party at any 5 24 time or may be heard at any time. 5 25 4. All copies of petitions, pleadings, judgments, and 5 26 notices of appeal shall be sent by certified mail to the 5 27 attorney general and shall be accompanied by a written 5 28 statement identifying the copied document as pertaining to an 5 29 action under this section. Proof of mailing may be by 5 30 affidavit or return receipt. Failure to provide the required 5 31 copies to the attorney general shall not be grounds for 5 32 dismissal of an action under this section. 5 33 EXPLANATION 5 34 This bill relates to consumer fraud violations, including 5 35 the creation of a private remedy for consumer fraud Act 6 1 violations. 6 2 The bill amends the definition of "material fact", an 6 3 element of a consumer fraud violation currently enforced by 6 4 the attorney general, to exclude a retailer who is a motor 6 5 vehicle dealer licensed to sell new motor vehicles under Code 6 6 chapter 322 (motor vehicle manufacturers, distributors, and 6 7 dealers) and the actual cost of labor and parts does not 6 8 exceed 4 percent of the retail price of the motor vehicle 6 9 suggested by the manufacturer, and if the retailer discloses 6 10 in writing to a buyer or lessee at or before the time of sale 6 11 or lease any damage exceeding $3,000, 10 percent of the actual 6 12 cost to a retailer including freight costs, or 4 percent of 6 13 the manufacturer's suggested price of a motor vehicle, 6 14 whichever is applicable. 6 15 The bill creates a private cause of action for consumer 6 16 fraud violations. The bill provides that a consumer who 6 17 suffers damage or injury as a result of a prohibited practice 6 18 declared to violate the bill may bring an action at law to 6 19 recover actual damages, and may seek court protection from 6 20 further violations, including temporary and permanent 6 21 injunctive relief. In addition, a prevailing consumer in such 6 22 an action may be awarded costs and reasonable attorney fees. 6 23 The bill defines a prohibited practice to include a 6 24 practice a person knows or reasonably should know is an unfair 6 25 practice, deception, fraud, false pretense, false promise, or 6 26 misrepresentation, or that constitutes the concealment, 6 27 suppression, or omission of a material fact with the intent 6 28 that others rely on the concealment, suppression, or omission, 6 29 in connection with the advertisement, sale, lease, or rental 6 30 of consumer merchandise or the solicitation of contributions 6 31 for charitable purposes. The bill provides certain additional 6 32 definitions, and applies the same amended definition of 6 33 "material fact" previously stated. 6 34 The bill authorizes the attorney general to oversee private 6 35 consumer fraud actions, including small claims court actions, 7 1 by requiring a party filing a claim, counterclaim, or other 7 2 petition alleging a violation under the bill to provide a copy 7 3 of the relevant documents, including judgments and notices of 7 4 appeal, to the attorney general. In addition, the attorney 7 5 general may intervene as a party in a private consumer fraud 7 6 action at any time, or may be heard in such an action at any 7 7 time. 7 8 LSB 5155HV 80 7 9 rh/sh/8
Text: HF02533 Text: HF02535 Text: HF02500 - HF02599 Text: HF Index Bills and Amendments: General Index Bill History: General Index
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