House File 2142 - Introduced



                                       HOUSE FILE       
                                       BY  PALMER


    Passed House, Date               Passed Senate,  Date             
    Vote:  Ayes        Nays           Vote:  Ayes        Nays         
                 Approved                            

                                      A BILL FOR

  1 An Act providing for a private cause of action for certain
  2    consumer fraud violations.
  3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
  4 TLSB 5242YH 82
  5 rh/rj/14

PAG LIN



  1  1    Section 1.  NEW SECTION.  714F.1  TITLE.
  1  2    This chapter shall be known and may be cited as the
  1  3 "Private Remedy for Consumer Fraud Act".
  1  4    Sec. 2.  NEW SECTION.  714F.2  DEFINITIONS.
  1  5    1.  "Advertisement" means the same as defined in section
  1  6 714.16.
  1  7    2.  "Consumer" means a natural person or the person's legal
  1  8 representative.
  1  9    3.  "Consumer merchandise" means merchandise offered for
  1 10 sale or lease, or sold or leased, primarily for personal,
  1 11 family, or household purposes.
  1 12    4.  "Deception" means the same as defined in section
  1 13 714.16.
  1 14    5.  "Merchandise" means the same as defined in section
  1 15 714.16.
  1 16    6.  "Person" means the same as defined in section 714.16.
  1 17    7.  "Sale" means any sale or offer for sale of consumer
  1 18 merchandise for cash or credit.
  1 19    8.  "Unfair practice" means the same as defined in section
  1 20 714.16.
  1 21    Sec. 3.  NEW SECTION.  714F.3  PROHIBITED PRACTICES AND
  1 22 ACTS.
  1 23    1.  A person shall not engage in an unfair practice,
  1 24 deception, fraud, false pretense, false promise, or
  1 25 misrepresentation, or the concealment, suppression, or
  1 26 omission of a material fact with the intent that others rely
  1 27 upon the concealment, suppression, or omission, in connection
  1 28 with the advertisement, sale, or lease of consumer
  1 29 merchandise, or the solicitation of contributions for
  1 30 charitable purposes.  Except in an action for the concealment,
  1 31 suppression, or omission of a material fact with intent that
  1 32 others rely on it, an action under this chapter shall not
  1 33 require an allegation or proof of reliance, intent to deceive,
  1 34 or that the person who engaged in an unlawful act had
  1 35 knowledge of the falsity of the claim or ignorance of the
  2  1 truth.
  2  2    2.  A person shall not engage in any practice or act that
  2  3 is in violation of any of the following:
  2  4    a.  Section 321.69.
  2  5    b.  Chapter 516D.
  2  6    c.  Section 516E.5, 516E.9, or 516E.10.
  2  7    d.  Chapter 555A.
  2  8    e.  Section 714.16, subsection 2, paragraphs "b" through
  2  9 "n".
  2 10    f.  Chapter 714A.
  2 11    Sec. 4.  NEW SECTION.  714F.4  EXCLUSIONS.
  2 12    1.  This chapter shall not apply to any of the following:
  2 13    a.  Advertising by a retailer for a product, other than a
  2 14 drug or other product claiming to have a health=related
  2 15 benefit or use, if the advertising is prepared by a supplier,
  2 16 unless the retailer participated in the preparation of the
  2 17 advertisement or knew or should have known that the
  2 18 advertisement was deceptive, false, or misleading.
  2 19    b.  In connection with an advertisement that violates this
  2 20 chapter, the newspaper, magazine, publication, or other print
  2 21 media in which the advertisement appears, or the radio
  2 22 station, television station, or other electronic media which
  2 23 disseminates the advertisement if the newspaper, magazine,
  2 24 publication, radio station, television station, or other print
  2 25 or electronic media has no knowledge of the fraudulent intent,
  2 26 design, or purpose of the advertiser at the time the
  2 27 advertisement is accepted.
  2 28    c.  Any advertisement that complies with the statutes,
  2 29 rules, and regulations of the federal trade commission.
  2 30    2.  "Material fact" as used in this chapter does not
  2 31 include repairs of damage to or adjustments on or replacements
  2 32 of parts with new parts of otherwise new merchandise if the
  2 33 repairs, adjustments, or replacements are made to achieve
  2 34 compliance with factory specifications and are made before
  2 35 sale of the merchandise at retail and the actual cost of any
  3  1 labor and parts charged to or performed by a retailer for any
  3  2 such repairs, adjustments, and parts does not exceed three
  3  3 hundred dollars or ten percent of the actual cost to a
  3  4 retailer including freight of the merchandise, whichever is
  3  5 less, providing that the seller posts in a conspicuous place
  3  6 notice that repairs, adjustments, or replacements will be
  3  7 disclosed upon request.  The exclusion provided in this
  3  8 subsection does not apply to the concealment, suppression, or
  3  9 omission of a material fact if the purchaser requests
  3 10 disclosure of any repair, adjustment, or replacement.
  3 11    Sec. 5.  NEW SECTION.  714F.5  PRIVATE CAUSE OF ACTION.
  3 12    1.  A consumer who suffers damage or injury as the result
  3 13 of a prohibited practice or act in violation of this chapter
  3 14 may bring an action at law to recover actual damages.  The
  3 15 court may order such equitable relief as it deems necessary to
  3 16 protect the public from further violations, including
  3 17 temporary and permanent injunctive relief.
  3 18    2.  If the court finds that a person has violated this
  3 19 chapter, the court shall award to the consumer the costs of
  3 20 the action and to the consumer's attorney reasonable fees.
  3 21 Reasonable attorney fees shall be determined by the value of
  3 22 the time reasonably expended by the attorney including but not
  3 23 limited to consideration of the following factors:
  3 24    a.  The time and labor required.
  3 25    b.  The novelty and difficulty of the issues in the case.
  3 26    c.  The skills required to perform the legal services
  3 27 properly.
  3 28    d.  The preclusion of other employment by the attorney due
  3 29 to the attorney's acceptance of the case.
  3 30    e.  The customary fee.
  3 31    f.  Whether the fee is fixed or contingent.
  3 32    g.  The time limitations imposed by the client or the
  3 33 circumstances of the case.
  3 34    h.  The amount of money involved in the case and the
  3 35 results obtained.
  4  1    i.  The experience, reputation, and ability of the
  4  2 attorney.
  4  3    j.  The undesirability of the case.
  4  4    k.  The nature and length of the professional relationship
  4  5 between the attorney and the client.
  4  6    l.  Damage awards in similar cases.
  4  7    3.  In order to recover damages, a claim under this section
  4  8 shall be proved by a preponderance of the evidence.
  4  9    4.  If the finder of fact finds that a prohibited practice
  4 10 or act in violation of this chapter constitutes willful
  4 11 disregard for the rights or safety of another, in addition to
  4 12 an award of actual damages, statutory damages up to three
  4 13 times the amount of actual damages may be awarded to a
  4 14 prevailing consumer.
  4 15    5.  This section shall not affect a consumer's right to
  4 16 seek relief under any other theory of law.
  4 17    Sec. 6.  NEW SECTION.  714F.6  ATTORNEY GENERAL
  4 18 NOTIFICATION.
  4 19    1.  A party filing a petition, counterclaim,
  4 20 cross=petition, or pleading in intervention alleging a
  4 21 violation under this chapter, within seven days following the
  4 22 date of filing such pleading, shall provide a copy to the
  4 23 attorney general and, within seven days following entry of any
  4 24 final judgment in the action, shall provide a copy of the
  4 25 judgment to the attorney general.  This subsection shall not
  4 26 apply to small claims actions, except as provided in
  4 27 subsection 2.
  4 28    2.  A party appealing to district court a small claims
  4 29 order or judgment involving an issue raised under this
  4 30 chapter, within seven days of providing notice of the appeal,
  4 31 shall notify the attorney general in writing and provide a
  4 32 copy of the pleading raising the issue and a copy of the small
  4 33 claims court order or judgment.
  4 34    3.  A party appealing an order or judgment involving an
  4 35 issue raised under this chapter, within seven days following
  5  1 the date such notice of appeal is filed with the court, shall
  5  2 notify the attorney general in writing and provide a copy of
  5  3 the pleading raising the issue and a copy of the court order
  5  4 or judgment being appealed.
  5  5    4.  Upon timely application to the court in which an action
  5  6 involving an issue raised under this chapter is pending, the
  5  7 attorney general may intervene as a party at any time or may
  5  8 be heard at any time.  The attorney general's failure to
  5  9 intervene shall not preclude the attorney general from
  5 10 bringing a separate enforcement action.
  5 11    5.  All copies of pleadings, orders, judgments, and notices
  5 12 required by this section to be sent to the attorney general
  5 13 shall be sent by certified mail unless the attorney general
  5 14 has previously been provided such copies of pleadings, orders,
  5 15 judgments, or notices in the same action by certified mail, in
  5 16 which case subsequent mailings may be made by regular mail.
  5 17 Failure to provide the required mailings to the attorney
  5 18 general shall not be grounds for dismissal of an action under
  5 19 this chapter, but shall be grounds for a subsequent action by
  5 20 the attorney general to vacate or modify the judgment.
  5 21                           EXPLANATION
  5 22    This bill creates a private remedy for certain consumer
  5 23 fraud Act violations.
  5 24    The bill creates a private cause of action for consumer
  5 25 fraud violations.  The bill provides that a consumer who
  5 26 suffers damage or injury as a result of a prohibited practice
  5 27 or act declared to violate the bill may bring an action at law
  5 28 to recover actual damages, and may seek court protection from
  5 29 further violations, including temporary and permanent
  5 30 injunctive relief.  In addition, a prevailing consumer in such
  5 31 an action shall be awarded costs and reasonable attorney fees
  5 32 to be determined by the value of time reasonably expended by
  5 33 the attorney including but not limited to certain factors as
  5 34 specified in the bill.  In addition, if the finder of fact
  5 35 finds that a prohibited practice or act in violation of the
  6  1 bill constitutes willful disregard for the rights or safety of
  6  2 another, in addition to an award of actual damages, statutory
  6  3 damages up to three times the amount of actual damages may be
  6  4 awarded to a prevailing consumer.
  6  5    The bill defines a prohibited practice or act to include an
  6  6 unfair practice, deception, fraud, false pretense, false
  6  7 promise, or misrepresentation, or the concealment,
  6  8 suppression, or omission of a material fact with the intent
  6  9 that others rely on the concealment, suppression, or omission,
  6 10 in connection with the advertisement, sale, or lease of
  6 11 consumer merchandise, or the solicitation of contributions for
  6 12 charitable purposes.
  6 13    The bill does not apply to certain advertising by a
  6 14 retailer for a product unless the retailer participated in the
  6 15 preparation of the advertisement or knew or should have known
  6 16 that the advertisement was deceptive or misleading, print
  6 17 media in which the advertisement appears or electronic media
  6 18 which disseminates the advertisement if the print or
  6 19 electronic media has no knowledge of the fraudulent intent,
  6 20 design, or purpose of the advertiser at the time the
  6 21 advertisement is accepted, and any advertisement that complies
  6 22 with the statutes, rules, and regulations of the federal trade
  6 23 commission.
  6 24    The bill authorizes the attorney general to oversee private
  6 25 consumer fraud actions, including small claims court actions,
  6 26 by requiring a party filing a petition, counterclaim,
  6 27 cross=petition, or pleading in intervention alleging a
  6 28 violation under the bill to provide a copy of the relevant
  6 29 documents, including judgments and notices of appeal, to the
  6 30 attorney general.  In addition, the attorney general may
  6 31 intervene as a party in a private consumer fraud action at any
  6 32 time, or may be heard in such an action at any time.
  6 33    The bill provides that failure to provide all mailings of
  6 34 petitions, orders, judgments, and notices of appeal to the
  6 35 attorney general shall not be grounds for dismissal, but shall
  7  1 be grounds for a subsequent action by the attorney general to
  7  2 vacate or modify the judgment.
  7  3 LSB 5242YH 82
  7  4 rh/rj/14.2