Bill Text: IN HB1367 | 2013 | Regular Session | Introduced
Bill Title: Deceptive consumer sales law.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2013-02-11 - Representative DeLaney added as coauthor [HB1367 Detail]
Download: Indiana-2013-HB1367-Introduced.html
Citations Affected: IC 24-5-0.5.
Synopsis: Deceptive consumer sales law. Provides that a supplier
commits an unconscionable act that is treated the same as a deceptive
act under the deceptive consumer sales law if the supplier refuses to
sell to a retailer with which the supplier has done business within the
previous two years a good at the same price that the supplier sells the
good to any other retailer. Establishes exceptions. Provides that certain
deceptive consumer sales provisions do not apply to the
unconscionable act. Requires a court to award to a retailer the
difference between the higher price at which the goods were sold to the
retailer and the lower price at which the goods were sold to another
retailer if a court finds a supplier has committed an unconscionable act.
Requires a court to award to the attorney general, if the attorney
general files an action to enjoin the unconscionable act, a civil penalty
equal to two times the amount of the difference in the higher price at
which the goods were sold to a retailer and the lower price at which the
goods were sold to another retailer.
Effective: July 1, 2013.
January 22, 2013, read first time and referred to Committee on Judiciary.
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A BILL FOR AN ACT to amend the Indiana Code concerning trade
regulation.
(1) three (3) times the actual damages of the consumer suffering the loss; or
(2) one thousand dollars ($1,000).
Except as provided in subsection (j), the court may award reasonable attorney fees to the party that prevails in an action under this subsection. This subsection does not apply to a consumer transaction in real property, including a claim or action involving a construction defect (as defined in IC 32-27-3-1(5)) brought against a construction professional (as defined in IC 32-27-3-1(4)), except for purchases of
time shares and camping club memberships. This subsection does not
apply with respect to a deceptive act described in section 3(a)(20) of
this chapter. This subsection also does not apply to a violation of
IC 24-4.7, IC 24-5-12, or IC 24-5-14. Actual damages awarded to a
person under this section have priority over any civil penalty imposed
under this chapter.
(b) Any person who is entitled to bring an action under subsection
(a) on the person's own behalf against a supplier for damages for a
deceptive act may bring a class action against such supplier on behalf
of any class of persons of which that person is a member and which has
been damaged by such deceptive act, subject to and under the Indiana
Rules of Trial Procedure governing class actions, except as herein
expressly provided. Except as provided in subsection (j), the court may
award reasonable attorney fees to the party that prevails in a class
action under this subsection, provided that such fee shall be determined
by the amount of time reasonably expended by the attorney and not by
the amount of the judgment, although the contingency of the fee may
be considered. Except in the case of an extension of time granted by the
attorney general under IC 24-10-2-2(b) in an action subject to IC 24-10,
any money or other property recovered in a class action under this
subsection which cannot, with due diligence, be restored to consumers
within one (1) year after the judgment becomes final shall be returned
to the party depositing the same. This subsection does not apply to a
consumer transaction in real property, except for purchases of time
shares and camping club memberships. This subsection does not apply
with respect to a deceptive act described in section 3(a)(20) of this
chapter. Actual damages awarded to a class have priority over any civil
penalty imposed under this chapter.
(c) The attorney general may bring an action to enjoin a deceptive
act, including a deceptive act described in section 3(a)(20) of this
chapter, notwithstanding subsections (a) and (b). However, the attorney
general may seek to enjoin patterns of incurable deceptive acts with
respect to consumer transactions in real property. In addition, the court
may:
(1) issue an injunction;
(2) order the supplier to make payment of the money unlawfully
received from the aggrieved consumers to be held in escrow for
distribution to aggrieved consumers;
(3) order the supplier to pay to the state the reasonable costs of
the attorney general's investigation and prosecution related to the
action; and
(4) provide for the appointment of a receiver.
(d) In an action under subsection (a), (b), or (c), the court may void or limit the application of contracts or clauses resulting from deceptive acts and order restitution to be paid to aggrieved consumers.
(e) In any action under subsection (a) or (b), upon the filing of the complaint or on the appearance of any defendant, claimant, or any other party, or at any later time, the trial court, the supreme court, or the court of appeals may require the plaintiff, defendant, claimant, or any other party or parties to give security, or additional security, in such sum as the court shall direct to pay all costs, expenses, and disbursements that shall be awarded against that party or which that party may be directed to pay by any interlocutory order by the final judgment or on appeal.
(f) Any person who violates the terms of an injunction issued under subsection (c) shall forfeit and pay to the state a civil penalty of not more than fifteen thousand dollars ($15,000) per violation. For the purposes of this section, the court issuing an injunction shall retain jurisdiction, the cause shall be continued, and the attorney general acting in the name of the state may petition for recovery of civil penalties. Whenever the court determines that an injunction issued under subsection (c) has been violated, the court shall award reasonable costs to the state.
(g) If a court finds any person has knowingly violated section 3 or 10 of this chapter, other than section 3(a)(19) or 3(a)(20) of this chapter, the attorney general, in an action pursuant to subsection (c), may recover from the person on behalf of the state a civil penalty of a fine not exceeding five thousand dollars ($5,000) per violation.
(h) If a court finds that a person has violated section 3(a)(19) of this chapter, the attorney general, in an action under subsection (c), may recover from the person on behalf of the state a civil penalty as follows:
(1) For a knowing or intentional violation, one thousand five hundred dollars ($1,500).
(2) For a violation other than a knowing or intentional violation, five hundred dollars ($500).
A civil penalty recovered under this subsection shall be deposited in the consumer protection division telephone solicitation fund established by IC 24-4.7-3-6 to be used for the administration and enforcement of section 3(a)(19) of this chapter.
(i) An elderly person relying upon an uncured or incurable deceptive act, including an act related to hypnotism, may bring an action to recover treble damages, if appropriate.
(j) An offer to cure is:
(1) not admissible as evidence in a proceeding initiated under this
section unless the offer to cure is delivered by a supplier to the
consumer or a representative of the consumer before the supplier
files the supplier's initial response to a complaint; and
(2) only admissible as evidence in a proceeding initiated under
this section to prove that a supplier is not liable for attorney's fees
under subsection (k).
If the offer to cure is timely delivered by the supplier, the supplier may
submit the offer to cure as evidence to prove in the proceeding in
accordance with the Indiana Rules of Trial Procedure that the supplier
made an offer to cure.
(k) A supplier may not be held liable for the attorney's fees and
court costs of the consumer that are incurred following the timely
delivery of an offer to cure as described in subsection (j) unless the
actual damages awarded, not including attorney's fees and costs, exceed
the value of the offer to cure.
(l) If a court finds that a person has knowingly violated section
3(a)(20) of this chapter, the attorney general, in an action under
subsection (c), may recover from the person on behalf of the state a
civil penalty not exceeding one thousand dollars ($1,000) per
consumer. In determining the amount of the civil penalty in any action
by the attorney general under this subsection, the court shall consider,
among other relevant factors, the frequency and persistence of
noncompliance by the debt collector, the nature of the noncompliance,
and the extent to which the noncompliance was intentional. A person
may not be held liable in any action by the attorney general for a
violation of section 3(a)(20) of this chapter if the person shows by a
preponderance of evidence that the violation was not intentional and
resulted from a bona fide error, notwithstanding the maintenance of
procedures reasonably adapted to avoid the error. A person may not be
held liable in any action for a violation of this chapter for contacting a
person other than the debtor, if the contact is made in compliance with
the Fair Debt Collection Practices Act.
(m) This section does not apply to a violation of section 11 of this
chapter.
applicable to the transaction, which notice shall state fully the nature
of the alleged deceptive act and the actual damage suffered therefrom,
and unless such deceptive act shall have become an uncured deceptive
act.
(b) No action may be brought under this chapter except as expressly
authorized in section 4(a), 4(b), or 4(c) of this chapter. Any action
brought under this chapter may not be brought more than two (2) years
after the occurrence of the deceptive act.
(c) This section does not apply to a violation of section 11 of this
chapter.
(1) Contracts between a franchisor and a franchisee.
(2) Transactions concerning the sale of alcoholic beverages (as defined in IC 7.1-1-3-5).
(b) As used in this section, "retailer" means a person, and any entity affiliated and under common control with the person, that engages in the business of selling tangible personal property to consumers. For purposes of this section, "retailer" does not include a supplier.
(c) For purposes of this section, "supplier" does not include a retailer.
(d) Except as provided in subsection (e), a supplier commits an unconscionable act that is treated the same as a deceptive act under this chapter if the supplier refuses to sell to a retailer with which the supplier has done business within the previous two (2) years a good at the same price that the supplier sells the good to any other retailer.
(e) A supplier that charges a retailer a higher price for a good than the supplier charges another retailer does not commit an unconscionable act under subsection (d) if one (1) or more of the following apply:
(1) The supplier charges a retailer a higher price for goods based on the retailer purchasing a lower quantity of the goods than another retailer purchases for a single delivery. For purposes of this subdivision, the number of deliveries is equal to the number of vehicles used to transport goods to a retailer.
(2) The supplier charges a retailer a higher price for the goods based only on a greater cost to the supplier to deliver the goods to the retailer.
(3) The supplier charges a higher price for the goods in
response to changing conditions affecting the market for or
marketability of the goods including:
(A) imminent deterioration of perishable goods;
(B) obsolescence of seasonal goods; or
(C) distress sales in anticipation of discontinuance of
business in the goods.
(f) A retailer harmed by a violation of this section may bring an
action for damages. If a court finds a supplier has committed an
unconscionable act under this section, the court shall require the
supplier to reimburse a retailer that is a party to the action the
amount of the difference between the higher price at which the
goods were sold to the retailer and the lower price at which the
goods were sold to another retailer.
(g) If:
(1) the attorney general brings an action to enjoin an
unconscionable act under this section; and
(2) the court finds a supplier has committed an
unconscionable act under this section;
the attorney general may recover from the supplier on behalf of
the state a civil penalty equal to two (2) times the amount of the
difference in the higher price at which the goods were sold to a
retailer and the lower price at which the goods were sold to
another retailer.
