House Amendment 1375
PAG LIN
1 1 Amend House File 712 as follows:
1 2 #1. By striking everything after the enacting
1 3 clause and inserting the following:
1 4 <Section 1. NEW SECTION. 714H.1 TITLE.
1 5 This chapter shall be known and may be cited as the
1 6 "Private Right of Action for Consumer Frauds Act".
1 7 Sec. 2. NEW SECTION. 714H.2 DEFINITIONS.
1 8 1. "Actual damages" means all economic damages
1 9 proximately caused by the prohibited practice or act
1 10 that are reasonably ascertainable in amount.
1 11 2. "Advertisement" means the same as defined in
1 12 section 714.16.
1 13 3. "Consumer" means a natural person or the
1 14 person's legal representative.
1 15 4. "Consumer merchandise" means merchandise
1 16 offered for sale or lease, or sold or leased,
1 17 primarily for personal, family, or household purposes.
1 18 5. "Deception" means an act or practice that is
1 19 likely to mislead a substantial number of consumers as
1 20 to a material fact or facts.
1 21 6. "Merchandise" means the same as defined in
1 22 section 714.16.
1 23 7. "Person" means the same as defined in section
1 24 714.16.
1 25 8. "Sale" means any sale or offer for sale of
1 26 consumer merchandise for cash or credit.
1 27 9. "Unfair practice" means the same as defined in
1 28 section 714.16.
1 29 Sec. 3. NEW SECTION. 714H.3 PROHIBITED PRACTICES
1 30 AND ACTS.
1 31 1. A person shall not engage in a practice or act
1 32 the person knows or reasonably should know is an
1 33 unfair practice, deception, fraud, false pretense, or
1 34 false promise, or the misrepresentation, concealment,
1 35 suppression, or omission of a material fact, with the
1 36 intent that others rely upon the unfair practice,
1 37 deception, fraud, false pretense, false promise,
1 38 misrepresentation, concealment, suppression, or
1 39 omission in connection with the advertisement, sale,
1 40 or lease of consumer merchandise, or the solicitation
1 41 of contributions for charitable purposes. For the
1 42 purposes of this chapter, a claimant alleging an
1 43 unfair practice, deception, fraud, false pretense,
1 44 false promise, or misrepresentation must prove that
1 45 the prohibited practice related to a material fact or
1 46 facts. "Solicitations of contributions for charitable
1 47 purposes" does not include solicitations made on
1 48 behalf of a political organization as defined in
1 49 section 13C.1, solicitations made on behalf of a
1 50 religious organization as defined in section 13C.1,
2 1 solicitations made on behalf of a state, regionally,
2 2 or nationally accredited college or university, or
2 3 solicitations made on behalf of a nonprofit foundation
2 4 benefiting a state, regionally, or nationally
2 5 accredited college or university subject to section
2 6 509(a)(1) or 509(a)(3) of the Internal Revenue Code of
2 7 1986.
2 8 2. A person shall not engage in any practice or
2 9 act that is in violation of any of the following:
2 10 a. Section 321.69.
2 11 b. Chapter 516D.
2 12 c. Section 516E.5, 516E.9, or 516E.10.
2 13 d. Chapter 555A.
2 14 e. Section 714.16, subsection 2, paragraphs "b"
2 15 through "n".
2 16 f. Chapter 714A.
2 17 Sec. 4. NEW SECTION. 714H.4 EXCLUSIONS.
2 18 1. This chapter shall not apply to any of the
2 19 following:
2 20 a. Services offered or provided by any of the
2 21 following persons, including business entities
2 22 organized under Title XII by those persons and the
2 23 officers, directors, employees, and agents of those
2 24 persons or business entities, pursuant to a profession
2 25 or business for which they are licensed or registered:
2 26 (1) Insurance companies subject to Title XIII.
2 27 (2) Attorneys licensed to practice law in this
2 28 state.
2 29 (3) Financial institutions which includes any bank
2 30 incorporated under the provisions of any state or
2 31 federal law, any savings and loan association or
2 32 savings bank incorporated under the provisions of any
2 33 state or federal law, any credit union organized under
2 34 the provisions of any state or federal law, and any
2 35 affiliate or subsidiary of a bank, savings and loan
2 36 association, savings bank, or credit union, and any
2 37 industrial loan licensee under chapter 536A or
2 38 regulated loan licensee under chapter 536.
2 39 (4) Persons or facilities licensed, certified, or
2 40 registered under chapters 135B, 135C, 135J, 148, 148A,
2 41 148B, 148C, 149, 151, 152, 152A, 152B, 153, 154, 154B,
2 42 154C, 154D, 155A, 156, 169, 522B, 542, 542B, 543B,
2 43 544A, or 544B.
2 44 b. Advertising by a retailer for a product, other
2 45 than a drug or other product claiming to have a
2 46 health=related benefit or use, if the advertising is
2 47 prepared by a supplier, unless the retailer
2 48 participated in the preparation of the advertisement
2 49 or knew or should have known that the advertisement
2 50 was deceptive, false, or misleading.
3 1 c. In connection with an advertisement that
3 2 violates this chapter, the newspaper, magazine,
3 3 publication, or other print media in which the
3 4 advertisement appears, or the radio station,
3 5 television station, or other electronic media which
3 6 disseminates the advertisement, including an employee,
3 7 agent, or representative of the newspaper, magazine,
3 8 publication or other print media, or the radio
3 9 station, television station, or other electronic
3 10 media.
3 11 d. Any advertisement that complies with the
3 12 statutes, rules, and regulations of the federal trade
3 13 commission.
3 14 e. The provision of local exchange carrier
3 15 telephone service pursuant to a certificate issued
3 16 under section 476.29.
3 17 f. Public utilities as defined in section 476.1
3 18 that furnish gas by a piped distribution system or
3 19 electricity to the public for compensation.
3 20 g. The provision of cable television service or
3 21 video service pursuant to a franchise under section
3 22 364.2 or 477A.2.
3 23 h. Conduct in compliance with the orders or rules
3 24 of, or a statute administered by, a federal, state, or
3 25 local governmental agency.
3 26 i. Actions alleging bodily injury.
3 27 j. In any action relating to a charitable
3 28 solicitation, an individual who has engaged in the
3 29 charitable solicitation as an unpaid, uncompensated
3 30 volunteer and who does not receive monetary gain of
3 31 any sort from engaging in the solicitation.
3 32 k. An affirmative act that violates this chapter
3 33 but is specifically required by other applicable law,
3 34 to the extent that the actor could not reasonably
3 35 avoid a violation of this chapter.
3 36 2. "Material fact" as used in this chapter does
3 37 not include repairs of damage to, adjustments on, or
3 38 replacements of parts with new parts of otherwise new
3 39 merchandise if the repairs, adjustments, or
3 40 replacements are made to achieve compliance with
3 41 factory specifications and are made before sale of the
3 42 merchandise at retail and the actual cost of any labor
3 43 and parts charged to or performed by a retailer for
3 44 any such repairs, adjustments, and parts does not
3 45 exceed three hundred dollars or ten percent of the
3 46 actual cost to a retailer including freight of the
3 47 merchandise, whichever is less, provided that the
3 48 seller posts in a conspicuous place notice that
3 49 repairs, adjustments, or replacements will be
3 50 disclosed upon request. The exclusion provided in
4 1 this subsection does not apply to the concealment,
4 2 suppression, or omission of a material fact if the
4 3 purchaser requests disclosure of any repair,
4 4 adjustment, or replacement.
4 5 Sec. 5. NEW SECTION. 714H.5 PRIVATE RIGHT OF
4 6 ACTION.
4 7 1. A consumer who suffers an ascertainable loss of
4 8 money or property as the result of such prohibited
4 9 practice or act may bring an action at law to recover
4 10 actual damages. The court may order such equitable
4 11 relief as it deems necessary to protect the public
4 12 from further violations, including temporary and
4 13 permanent injunctive relief.
4 14 2. If the court finds that a person has violated
4 15 this chapter and the consumer is awarded actual
4 16 damages, the court shall award to the consumer the
4 17 costs of the action and to the consumer's attorney
4 18 reasonable fees. Reasonable attorney fees shall be
4 19 determined by the value of the time reasonably
4 20 expended by the attorney including but not limited to
4 21 consideration of the following factors:
4 22 a. The time and labor required.
4 23 b. The novelty and difficulty of the issues in the
4 24 case.
4 25 c. The skills required to perform the legal
4 26 services properly.
4 27 d. The preclusion of other employment by the
4 28 attorney due to the attorney's acceptance of the case.
4 29 e. The customary fee.
4 30 f. Whether the fee is fixed or contingent.
4 31 g. The time limitations imposed by the client or
4 32 the circumstances of the case.
4 33 h. The amount of money involved in the case and
4 34 the results obtained.
4 35 i. The experience, reputation, and ability of the
4 36 attorney.
4 37 j. The undesirability of the case.
4 38 k. The nature and length of the professional
4 39 relationship between the attorney and the client.
4 40 l. Attorney fee awards in similar cases.
4 41 3. In order to recover damages, a claim under this
4 42 section shall be proved by a preponderance of the
4 43 evidence.
4 44 4. If the finder of fact finds by a preponderance
4 45 of clear, convincing, and satisfactory evidence that a
4 46 prohibited practice or act in violation of this
4 47 chapter constitutes willful and wanton disregard for
4 48 the rights or safety of another, in addition to an
4 49 award of actual damages, statutory damages up to three
4 50 times the amount of actual damages may be awarded to a
5 1 prevailing consumer.
5 2 5. An action pursuant to this chapter must be
5 3 brought within two years of the occurrence of the last
5 4 event giving rise to the cause of action under this
5 5 chapter or within two years of the discovery of the
5 6 violation of this chapter by the person bringing the
5 7 action, whichever is later.
5 8 6. This section shall not affect a consumer's
5 9 right to seek relief under any other theory of law.
5 10 Sec. 6. NEW SECTION. 714H.6 ATTORNEY GENERAL
5 11 NOTIFICATION.
5 12 1. A party filing a petition, counterclaim,
5 13 cross=petition, or pleading, or any count thereof, in
5 14 intervention alleging a violation under this chapter,
5 15 within seven days following the date of filing such
5 16 pleading, shall provide a copy to the attorney general
5 17 and, within seven days following entry of any final
5 18 judgment in the action, shall provide a copy of the
5 19 judgment to the attorney general.
5 20 2. A party appealing to district court a small
5 21 claims order or judgment involving an issue raised
5 22 under this chapter, within seven days of providing
5 23 notice of the appeal, shall notify the attorney
5 24 general in writing and provide a copy of the pleading
5 25 raising the issue and a copy of the small claims court
5 26 order or judgment.
5 27 3. A party appealing an order or judgment
5 28 involving an issue raised under this chapter, within
5 29 seven days following the date such notice of appeal is
5 30 filed with the court, shall notify the attorney
5 31 general in writing and provide a copy of the pleading
5 32 raising the issue and a copy of the court order or
5 33 judgment being appealed.
5 34 4. Upon timely application to the court in which
5 35 an action involving an issue raised under this chapter
5 36 is pending, the attorney general may intervene as a
5 37 party at any time or may be heard at any time. The
5 38 attorney general's failure to intervene shall not
5 39 preclude the attorney general from bringing a separate
5 40 enforcement action.
5 41 5. All copies of pleadings, orders, judgments, and
5 42 notices required by this section to be sent to the
5 43 attorney general shall be sent by certified mail
5 44 unless the attorney general has previously been
5 45 provided such copies of pleadings, orders, judgments,
5 46 or notices in the same action by certified mail, in
5 47 which case subsequent mailings may be made by regular
5 48 mail. Failure to provide the required mailings to the
5 49 attorney general shall not be grounds for dismissal of
5 50 an action under this chapter, but shall be grounds for
6 1 a subsequent action by the attorney general to vacate
6 2 or modify the judgment.
6 3 Sec. 7. NEW SECTION. 714H.7 CLASS ACTIONS
6 4 BARRED.
6 5 A class action lawsuit alleging violations of this
6 6 chapter shall not be available. Nothing in this
6 7 chapter shall be construed to limit the attorney
6 8 general from bringing a class action lawsuit pursuant
6 9 to section 714.16.
6 10 Sec. 8. NEW SECTION. 714H.8 SEVERABILITY CLAUSE.
6 11 If any provision of this chapter or its application
6 12 to any person or circumstances is held invalid, the
6 13 invalidity does not affect other provisions or
6 14 applications of this chapter that can be given effect
6 15 without the invalid provision or application, and to
6 16 this end the provisions of this chapter are severable.
6 17 Sec. 9. APPLICABILITY. This Act applies to causes
6 18 of actions accruing on or after the effective date of
6 19 this Act.>
6 20 #2. Title page, line 1, by striking the word
6 21 <cause> and inserting the following: <right>.
6 22 #3. Title page, line 2, by striking the word
6 23 <providing> and inserting the following: <including>.
6 24
6 25
6 26
6 27 HUSER of Polk
6 28 HF 712.503 83
6 29 rh/rj/23311
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