House Amendment 1588 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 compensatory damages 1 9 proximately caused by the prohibited practice or act 1 10 that are reasonably ascertainable in amount. "Actual 1 11 damages" does not include damages for bodily injury, 1 12 pain and suffering, mental distress, or loss of 1 13 consortium. 1 14 2. "Advertisement" means the same as defined in 1 15 section 714.16. 1 16 3. "Consumer" means a natural person or the 1 17 person's legal representative. 1 18 4. "Consumer merchandise" means merchandise 1 19 offered for sale or lease, or sold or leased, 1 20 primarily for personal, family, or household purposes. 1 21 5. "Deception" means an act or practice that is 1 22 likely to mislead a substantial number of consumers as 1 23 to a material fact or facts. 1 24 6. "Merchandise" means the same as defined in 1 25 section 714.16. 1 26 7. "Person" means the same as defined in section 1 27 714.16. 1 28 8. "Sale" means any sale or offer for sale of 1 29 consumer merchandise for cash or credit. 1 30 9. "Unfair practice" means the same as defined in 1 31 section 714.16. 1 32 Sec. 3. NEW SECTION. 714H.3 PROHIBITED PRACTICES 1 33 AND ACTS. 1 34 1. A person shall not engage in an unfair 1 35 practice, deception, fraud, false pretense, or false 1 36 promise, or the misrepresentation, concealment, 1 37 suppression, or omission of a material fact, with the 1 38 intent that others rely upon the unfair practice, 1 39 deception, fraud, false pretense, false promise, 1 40 misrepresentation, concealment, suppression, or 1 41 omission in connection with the advertisement, sale, 1 42 or lease of consumer merchandise, or the solicitation 1 43 of contributions for charitable purposes. For the 1 44 purposes of this chapter, a claimant alleging an 1 45 unfair practice, deception, fraud, false pretense, 1 46 false promise, or misrepresentation must prove that 1 47 the prohibited practice related to a material fact or 1 48 facts. "Solicitations of contributions for charitable 1 49 purposes" does not include solicitations made on 1 50 behalf of a political organization as defined in 2 1 section 13C.1, solicitations made on behalf of a 2 2 religious organization as defined in section 13C.1, 2 3 solicitations made on behalf of a state, regionally, 2 4 or nationally accredited college or university, or 2 5 solicitations made on behalf of a nonprofit foundation 2 6 benefiting a state, regionally, or nationally 2 7 accredited college or university subject to section 2 8 509(a)(1) or 509(a)(3) of the Internal Revenue Code of 2 9 1986. 2 10 2. A person shall not engage in any practice or 2 11 act that is in violation of any of the following: 2 12 a. Section 321.69. 2 13 b. Chapter 516D. 2 14 c. Section 516E.5, 516E.9, or 516E.10. 2 15 d. Chapter 555A. 2 16 e. Section 714.16, subsection 2, paragraphs "b" 2 17 through "n". 2 18 f. Chapter 714A. 2 19 Sec. 4. NEW SECTION. 714H.4 EXCLUSIONS. 2 20 1. This chapter shall not apply to any of the 2 21 following: 2 22 a. Services offered or provided by any of the 2 23 following persons, including business entities 2 24 organized under Title XII by those persons and the 2 25 officers, directors, employees, and agents of those 2 26 persons or business entities, pursuant to a profession 2 27 or business for which they are licensed or registered: 2 28 (1) Insurance companies subject to Title XIII. 2 29 (2) Attorneys licensed to practice law in this 2 30 state. 2 31 (3) Financial institutions which includes any bank 2 32 incorporated under the provisions of any state or 2 33 federal law, any savings and loan association or 2 34 savings bank incorporated under the provisions of any 2 35 state or federal law, and any credit union organized 2 36 under the provisions of any state or federal law, and 2 37 any affiliate or subsidiary of a bank, savings and 2 38 loan association, savings bank, or credit union. 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, including the publisher of the 3 5 newspaper, magazine, publication, or other print media 3 6 in which the advertisement appears, or the radio 3 7 station, television station, or other electronic media 3 8 which disseminates the advertisement, including an 3 9 employee, agent, or representative of the publisher, 3 10 newspaper, magazine, publication or other print media, 3 11 or the radio station, television station, or other 3 12 electronic media. 3 13 d. The provision of local exchange carrier 3 14 telephone service pursuant to a certificate issued 3 15 under section 476.29. 3 16 e. Public utilities as defined in section 476.1 3 17 that furnish gas by a piped distribution system or 3 18 electricity to the public for compensation when 3 19 engaged in activities subject to regulation by the 3 20 utilities board pursuant to chapter 476. 3 21 f. Any advertisement that complies with the 3 22 statutes, rules, and regulations of the federal trade 3 23 commission. 3 24 g. Conduct that is required or permitted by the 3 25 orders or rules of, or a statute administered by, a 3 26 federal, state, or local governmental agency. 3 27 h. An affirmative act that violates this chapter 3 28 but is specifically required by other applicable law, 3 29 to the extent that the actor could not reasonably 3 30 avoid a violation of this chapter. 3 31 i. In any action relating to a charitable 3 32 solicitation, an individual who has engaged in the 3 33 charitable solicitation as an unpaid, uncompensated 3 34 volunteer and who does not receive monetary gain of 3 35 any sort from engaging in the solicitation. 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 7. A person shall not be held liable in any action 5 11 brought under this section for a violation of this 5 12 chapter if the person shows by a preponderance of the 5 13 evidence that the violation was not intentional and 5 14 resulted from a bona fide error notwithstanding the 5 15 maintenance of procedures reasonably adopted to avoid 5 16 the error. 5 17 Sec. 6. NEW SECTION. 714H.6 ATTORNEY GENERAL 5 18 NOTIFICATION. 5 19 1. A party filing a petition, counterclaim, 5 20 cross=petition, or pleading, or any count thereof, in 5 21 intervention alleging a violation under this chapter, 5 22 within seven days following the date of filing such 5 23 pleading, shall provide a copy to the attorney general 5 24 and, within seven days following entry of any final 5 25 judgment in the action, shall provide a copy of the 5 26 judgment to the attorney general. 5 27 2. A party appealing to district court a small 5 28 claims order or judgment involving an issue raised 5 29 under this chapter, within seven days of providing 5 30 notice of the appeal, 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 small claims court 5 33 order or judgment. 5 34 3. A party appealing an order or judgment 5 35 involving an issue raised under this chapter, within 5 36 seven days following the date such notice of appeal is 5 37 filed with the court, shall notify the attorney 5 38 general in writing and provide a copy of the pleading 5 39 raising the issue and a copy of the court order or 5 40 judgment being appealed. 5 41 4. Upon timely application to the court in which 5 42 an action involving an issue raised under this chapter 5 43 is pending, the attorney general may intervene as a 5 44 party at any time or may be heard at any time. The 5 45 attorney general's failure to intervene shall not 5 46 preclude the attorney general from bringing a separate 5 47 enforcement action. 5 48 5. All copies of pleadings, orders, judgments, and 5 49 notices required by this section to be sent to the 5 50 attorney general shall be sent by certified mail 6 1 unless the attorney general has previously been 6 2 provided such copies of pleadings, orders, judgments, 6 3 or notices in the same action by certified mail, in 6 4 which case subsequent mailings may be made by regular 6 5 mail. Failure to provide the required mailings to the 6 6 attorney general shall not be grounds for dismissal of 6 7 an action under this chapter, but shall be grounds for 6 8 a subsequent action by the attorney general to vacate 6 9 or modify the judgment. 6 10 Sec. 7. NEW SECTION. 714H.7 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. 8. 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 SWAIM of Davis 6 28 6 29 6 30 6 31 PALMER of Mahaska 6 32 6 33 6 34 6 35 R. OLSON of Polk 6 36 HF 712.205 83 6 37 rh/rj/23359 -1-