Senate File 178 - Introduced





                                       SENATE FILE       
                                       BY  COMMITTEE ON JUDICIARY

                                       (SUCCESSOR TO SSB 1037)


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

                                      A BILL FOR

  1 An Act relating to a private cause of action for certain consumer
  2    fraud violations.
  3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
  4 TLSB 1307SV 83
  5 rh/rj/14

PAG LIN



  1  1    Section 1.  NEW SECTION.  714H.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.  714H.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 except that, for the purposes of this chapter,
  1 16 "merchandise" does not include services offered or provided by
  1 17 any of the following pursuant to a profession or business for
  1 18 which they are licensed or registered:
  1 19    a.  Insurance companies subject to Title XIII.
  1 20    b.  Attorneys licensed to practice law in this state.
  1 21    c.  Financial institutions as defined in section 423.2,
  1 22 subsection 6.
  1 23    d.  Public utilities as defined in section 476.1 that
  1 24 furnish gas by a piped distribution system or electricity to
  1 25 the public for compensation, when engaged in activities
  1 26 subject to regulation by the utilities board pursuant to
  1 27 chapter 476.
  1 28    e.  Persons or facilities licensed, certified, or
  1 29 registered under chapter 135B, 135C, 135J, 148, 148A, 148B,
  1 30 148C, 149, 151, 152, 152A, 152B, 153, 154, 154B, 154C, 154D,
  1 31 155A, 169, 522B, 542, 542B, 544A, or 544B.
  1 32    6.  "Person" means the same as defined in section 714.16.
  1 33    7.  "Sale" means any sale or offer for sale of consumer
  1 34 merchandise for cash or credit.
  1 35    8.  "Unfair practice" means the same as defined in section
  2  1 714.16.
  2  2    Sec. 3.  NEW SECTION.  714H.3  PROHIBITED PRACTICES AND
  2  3 ACTS.
  2  4    1.  A person shall not engage in an unfair practice,
  2  5 deception, fraud, false pretense, false promise, or
  2  6 misrepresentation, or the concealment, suppression, or
  2  7 omission of a material fact with the intent that others rely
  2  8 upon the concealment, suppression, or omission, in connection
  2  9 with the advertisement, sale, or lease of consumer
  2 10 merchandise, or the solicitation of contributions for
  2 11 charitable purposes.  For the purposes of this chapter, any
  2 12 claimant alleging fraud, false promise, false pretense, or
  2 13 misrepresentation must prove that the prohibited practice
  2 14 related to a material fact or facts.
  2 15    2.  A person shall not engage in any practice or act that
  2 16 is in violation of any of the following:
  2 17    a.  Section 321.69.
  2 18    b.  Chapter 516D.
  2 19    c.  Section 516E.5, 516E.9, or 516E.10.
  2 20    d.  Chapter 555A.
  2 21    e.  Section 714.16, subsection 2, paragraphs "b" through
  2 22 "n".
  2 23    f.  Chapter 714A.
  2 24    Sec. 4.  NEW SECTION.  714H.4  EXCLUSIONS.
  2 25    1.  This chapter shall not apply to any of the following:
  2 26    a.  Advertising by a retailer for a product, other than a
  2 27 drug or other product claiming to have a health=related
  2 28 benefit or use, if the advertising is prepared by a supplier,
  2 29 unless the retailer participated in the preparation of the
  2 30 advertisement or knew or should have known that the
  2 31 advertisement was deceptive, false, or misleading.
  2 32    b.  In connection with an advertisement that violates this
  2 33 chapter, the newspaper, magazine, publication, or other print
  2 34 media in which the advertisement appears, or the radio
  2 35 station, television station, or other electronic media which
  3  1 disseminates the advertisement if the newspaper, magazine,
  3  2 publication, radio station, television station, or other print
  3  3 or electronic media has no knowledge of the fraudulent intent,
  3  4 design, or purpose of the advertiser at the time the
  3  5 advertisement is accepted.
  3  6    c.  Any advertisement that complies with the statutes,
  3  7 rules, and regulations of the federal trade commission.
  3  8    d.  The provision of local exchange carrier telephone
  3  9 service pursuant to a certificate issued under section 476.29.
  3 10    e.  An affirmative act that violates this chapter but is
  3 11 specifically required by, and is in strict conformance with,
  3 12 other applicable law, to the extent that the actor could not
  3 13 reasonably avoid a violation of this chapter.
  3 14    2.  "Material fact" as used in this chapter does not
  3 15 include repairs of damage to or adjustments on or replacements
  3 16 of parts with new parts of otherwise new merchandise if the
  3 17 repairs, adjustments, or replacements are made to achieve
  3 18 compliance with factory specifications and are made before
  3 19 sale of the merchandise at retail and the actual cost of any
  3 20 labor and parts charged to or performed by a retailer for any
  3 21 such repairs, adjustments, and parts does not exceed three
  3 22 hundred dollars or ten percent of the actual cost to a
  3 23 retailer including freight of the merchandise, whichever is
  3 24 less, providing that the seller posts in a conspicuous place
  3 25 notice that repairs, adjustments, or replacements will be
  3 26 disclosed upon request.  The exclusion provided in this
  3 27 subsection does not apply to the concealment, suppression, or
  3 28 omission of a material fact if the purchaser requests
  3 29 disclosure of any repair, adjustment, or replacement.
  3 30    Sec. 5.  NEW SECTION.  714H.5  PRIVATE CAUSE OF ACTION.
  3 31    1.  A consumer who suffers damage or injury as the result
  3 32 of a prohibited practice or act in violation of this chapter
  3 33 may bring an action at law to recover actual damages.  The
  3 34 court may order such equitable relief as it deems necessary to
  3 35 protect the public from further violations, including
  4  1 temporary and permanent injunctive relief.
  4  2    2.  If the court finds that a person has violated this
  4  3 chapter, the court shall award to the consumer the costs of
  4  4 the action and to the consumer's attorney reasonable fees.
  4  5 Reasonable attorney fees shall be determined by the value of
  4  6 the time reasonably expended by the attorney including but not
  4  7 limited to consideration of the following factors:
  4  8    a.  The time and labor required.
  4  9    b.  The novelty and difficulty of the issues in the case.
  4 10    c.  The skills required to perform the legal services
  4 11 properly.
  4 12    d.  The preclusion of other employment by the attorney due
  4 13 to the attorney's acceptance of the case.
  4 14    e.  The customary fee.
  4 15    f.  Whether the fee is fixed or contingent.
  4 16    g.  The time limitations imposed by the client or the
  4 17 circumstances of the case.
  4 18    h.  The amount of money involved in the case and the
  4 19 results obtained.
  4 20    i.  The experience, reputation, and ability of the
  4 21 attorney.
  4 22    j.  The undesirability of the case.
  4 23    k.  The nature and length of the professional relationship
  4 24 between the attorney and the client.
  4 25    l.  Damage awards in similar cases.
  4 26    3.  In order to recover damages, a claim under this section
  4 27 shall be proved by a preponderance of the evidence.
  4 28    4.  If the finder of fact finds by a preponderance of
  4 29 clear, convincing, and satisfactory evidence that a prohibited
  4 30 practice or act in violation of this chapter constitutes
  4 31 willful and wanton disregard for the rights or safety of
  4 32 another, in addition to an award of actual damages, statutory
  4 33 damages up to three times the amount of actual damages may be
  4 34 awarded to a prevailing consumer.
  4 35    5.  An action pursuant to this chapter must be brought
  5  1 within five years of the occurrence of the last event giving
  5  2 rise to the cause of action under this chapter or within five
  5  3 years of the discovery of the violation of this chapter by the
  5  4 person bringing the action, whichever is later.
  5  5    6.  This section shall not affect a consumer's right to
  5  6 seek relief under any other theory of law.
  5  7    Sec. 6.  NEW SECTION.  714H.6  ATTORNEY GENERAL
  5  8 NOTIFICATION.
  5  9    1.  A party filing a petition, counterclaim,
  5 10 cross=petition, or pleading in intervention alleging a
  5 11 violation under this chapter, within seven days following the
  5 12 date of filing such pleading, shall provide a copy to the
  5 13 attorney general and, within seven days following entry of any
  5 14 final judgment in the action, shall provide a copy of the
  5 15 judgment to the attorney general.  This subsection shall not
  5 16 apply to small claims actions, except as provided in
  5 17 subsection 2.
  5 18    2.  A party appealing to district court a small claims
  5 19 order or judgment involving an issue raised under this
  5 20 chapter, within seven days of providing notice of the appeal,
  5 21 shall notify the attorney general in writing and provide a
  5 22 copy of the pleading raising the issue and a copy of the small
  5 23 claims court order or judgment.
  5 24    3.  A party appealing an order or judgment involving an
  5 25 issue raised under this chapter, within seven days following
  5 26 the date such notice of appeal is filed with the court, shall
  5 27 notify the attorney general in writing and provide a copy of
  5 28 the pleading raising the issue and a copy of the court order
  5 29 or judgment being appealed.
  5 30    4.  Upon timely application to the court in which an action
  5 31 involving an issue raised under this chapter is pending, the
  5 32 attorney general may intervene as a party at any time or may
  5 33 be heard at any time.  The attorney general's failure to
  5 34 intervene shall not preclude the attorney general from
  5 35 bringing a separate enforcement action.
  6  1    5.  All copies of pleadings, orders, judgments, and notices
  6  2 required by this section to be sent to the attorney general
  6  3 shall be sent by certified mail unless the attorney general
  6  4 has previously been provided such copies of pleadings, orders,
  6  5 judgments, or notices in the same action by certified mail, in
  6  6 which case subsequent mailings may be made by regular mail.
  6  7 Failure to provide the required mailings to the attorney
  6  8 general shall not be grounds for dismissal of an action under
  6  9 this chapter, but shall be grounds for a subsequent action by
  6 10 the attorney general to vacate or modify the judgment.
  6 11                           EXPLANATION
  6 12    This bill creates a private remedy for certain consumer
  6 13 fraud Act violations.
  6 14    The bill creates a private cause of action for consumer
  6 15 fraud violations.  The bill provides that a consumer who
  6 16 suffers damage or injury as a result of a prohibited practice
  6 17 or act declared to violate the bill may bring an action at law
  6 18 to recover actual damages, and may seek court protection from
  6 19 further violations, including temporary and permanent
  6 20 injunctive relief.  In addition, a prevailing consumer in such
  6 21 an action shall be awarded costs and reasonable attorney fees
  6 22 to be determined by the value of time reasonably expended by
  6 23 the attorney including but not limited to certain factors as
  6 24 specified in the bill.  In addition, if the finder of fact
  6 25 finds by a preponderance of clear, convincing, and
  6 26 satisfactory evidence, that a prohibited practice or act in
  6 27 violation of the bill constitutes willful and wanton disregard
  6 28 for the rights or safety of another, in addition to an award
  6 29 of actual damages, statutory damages up to three times the
  6 30 amount of actual damages may be awarded to a prevailing
  6 31 consumer.
  6 32    The bill defines a prohibited practice or act to include an
  6 33 unfair practice, deception, fraud, false pretense, false
  6 34 promise, or misrepresentation, or the concealment,
  6 35 suppression, or omission of a material fact with the intent
  7  1 that others rely on the concealment, suppression, or omission,
  7  2 in connection with the advertisement, sale, or lease of
  7  3 consumer merchandise, or the solicitation of contributions for
  7  4 charitable purposes.  For the purposes of the bill, any
  7  5 claimant alleging fraud, false promise, false pretense, or
  7  6 misrepresentation must prove that the prohibited practice
  7  7 related to a material fact or facts.  "Merchandise" does not
  7  8 include service offered or provided by certain insurance
  7  9 companies, attorneys, financial institutions, public
  7 10 utilities, hospitals, health care facilities, hospice
  7 11 programs, physicians and surgeons, osteopathic physicians and
  7 12 surgeons, physical therapists, occupational therapists,
  7 13 physician assistants, podiatrists, chiropractors, nurses,
  7 14 dieticians, respiratory care practitioners and therapists,
  7 15 dentists, optometrists, psychologists, social workers,
  7 16 behavioral therapists, pharmacists, veterinarians, insurance
  7 17 producers, public accountants, engineers, architects, and
  7 18 landscape architects.
  7 19    The bill does not apply to certain advertising by a
  7 20 retailer for a product unless the retailer participated in the
  7 21 preparation of the advertisement or knew or should have known
  7 22 that the advertisement was deceptive or misleading, print
  7 23 media in which the advertisement appears or electronic media
  7 24 which disseminates the advertisement if the print or
  7 25 electronic media has no knowledge of the fraudulent intent,
  7 26 design, or purpose of the advertiser at the time the
  7 27 advertisement is accepted, any advertisement that complies
  7 28 with the statutes, rules, and regulations of the federal trade
  7 29 commission, the provision of certain local exchange carrier
  7 30 telephone services, and an affirmative act that is in
  7 31 violation of the bill but that is specifically required by and
  7 32 is in strict conformance with other applicable law, to the
  7 33 extent the actor could not reasonably avoid a violation of the
  7 34 bill.
  7 35    The bill authorizes the attorney general to oversee private
  8  1 consumer fraud actions, including small claims court actions,
  8  2 by requiring a party filing a petition, counterclaim,
  8  3 cross=petition, or pleading in intervention alleging a
  8  4 violation under the bill to provide a copy of the relevant
  8  5 documents, including judgments and notices of appeal, to the
  8  6 attorney general.  In addition, the attorney general may
  8  7 intervene as a party in a private consumer fraud action at any
  8  8 time, or may be heard in such an action at any time.
  8  9    The bill provides that failure to provide all mailings of
  8 10 petitions, orders, judgments, and notices of appeal to the
  8 11 attorney general shall not be grounds for dismissal, but shall
  8 12 be grounds for a subsequent action by the attorney general to
  8 13 vacate or modify the judgment.
  8 14 LSB 1307SV 83
  8 15 rh/rj/14