Bill Text: MS HB1417 | 2017 | Regular Session | Introduced
Bill Title: Office of Consumer Protection; clarify acts excluded from regulation of.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2017-01-31 - Died In Committee [HB1417 Detail]
Download: Mississippi-2017-HB1417-Introduced.html
MISSISSIPPI LEGISLATURE
2017 Regular Session
To: Judiciary A
By: Representative White
House Bill 1417
AN ACT TO AMEND SECTION 75-24-7, MISSISSIPPI CODE OF 1972, TO CLARIFY THE EXCLUSIONS OF THE PROVISIONS REGULATING THE OFFICE OF CONSUMER PROTECTION; TO BRING FORWARD SECTIONS 75-24-1, 75-24-3, 75-24-5, 75-24-9, 75-24-11, 75-24-13, 75-24-15, 75-24-17, 75-24-19, 75-24-20, 75-24-21, 75-24-23, 75-24-25 AND 75-24-27, MISSISSIPPI CODE OF 1972, WHICH PROVIDE FOR THE OFFICE OF CONSUMER PROTECTION, FOR PURPOSES OF AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 75-24-7, Mississippi Code of 1972, is amended as follows:
75-24-7. Nothing in this
chapter shall apply to acts * * * or practice:
(a) * * * Done by the publisher, owner, agent
or employee of a newspaper, periodical, printing shop, directory, website
provider or radio or television station in the publication or dissemination
of an advertisement, when the owner, agent or employee did not have knowledge
of the false, misleading or deceptive character of the advertisement and did
not have a direct financial interest in the sale or distribution of the
advertised product or service.
(b) * * * Done by any officer acting under the
orders of any court.
(c) Permitted under laws of the State of Mississippi or the United States or under rules, regulations, or decisions interpreting such laws, including, but not limited to, acts or practices permitted or authorized by a state or federal regulatory agency tasked by statute to regulate such acts or practices.
SECTION 2. Section 75-24-1, Mississippi Code of 1972, is brought forward as follows:
75-24-1. There is hereby created and established within the office of the Attorney General an "Office of Consumer Protection," which shall be charged with the administration of this chapter. The Attorney General is hereby authorized and empowered to employ the necessary personnel to carry out the provisions of this chapter.
SECTION 3. Section 75-24-3, Mississippi Code of 1972, is brought forward as follows:
75-24-3. As used in this chapter:
(a) "Person" means natural persons, corporations, trusts, partnerships, incorporated and unincorporated associations, and any other legal entity.
(b) "Trade" and "commerce" mean the advertising, offering for sale, or distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value wherever situated, and shall include without limitation, both domestic and foreign persons, irrespective of their having qualified to do business within the state and any trade or commerce directly or indirectly affecting the people of this state.
(c) It is the intent of the Legislature that in construing what constitutes unfair or deceptive trade practices that the courts will be guided by the interpretations given by the Federal Trade Commission and the federal courts to Section 5(a)(1) of the Federal Trade Commission Act (15 USCS 45(a)(1)) as from time to time amended.
SECTION 4. Section 75-24-5, Mississippi Code of 1972, is brought forward as follows:
75-24-5. (1) Unfair methods of competition affecting commerce and unfair or deceptive trade practices in or affecting commerce are prohibited. Action may be brought under Section 75-24-5(1) only under the provisions of Section 75-24-9.
(2) Without limiting the scope of subsection (1) of this section, the following unfair methods of competition and unfair or deceptive trade practices or acts in the conduct of any trade or commerce are hereby prohibited:
(a) Passing off goods or services as those of another;
(b) Misrepresentation of the source, sponsorship, approval, or certification of goods or services;
(c) Misrepresentation of affiliation, connection, or association with, or certification by another;
(d) Misrepresentation of designations of geographic origin in connection with goods or services;
(e) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that he does not have;
(f) Representing that goods are original or new if they are reconditioned, reclaimed, used, or secondhand;
(g) Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another;
(h) Disparaging the goods, services, or business of another by false or misleading representation of fact;
(i) Advertising goods or services with intent not to sell them as advertised;
(j) Advertising goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity;
(k) Misrepresentations of fact concerning the reasons for, existence of, or amounts of price reductions;
(l) Advertising by or on behalf of any licensed or regulated health care professional which does not specifically describe the license or qualifications of the licensed or regulated health care professional;
(m) Charging an increased premium for reinstating a motor vehicle insurance policy that was cancelled or suspended by the insured solely for the reason that he was transferred out of this state while serving in the United States Armed Forces or on active duty in the National Guard or United States Armed Forces Reserve. It is also an unfair practice for an insurer to charge an increased premium for a new motor vehicle insurance policy if the applicant for coverage or his covered dependents were previously insured with a different insurer and canceled that policy solely for the reason that he was transferred out of this state while serving in the United States Armed Forces or on active duty in the National Guard or United States Armed Forces Reserve. For purposes of determining premiums, an insurer shall consider such persons as having maintained continuous coverage. The provisions of this paragraph (m) shall apply only to such instances when the insured does not drive the vehicle during the period of cancellation or suspension of his policy.
SECTION 5. Section 75-24-9, Mississippi Code of 1972, is brought forward as follows:
75-24-9. Whenever the Attorney General has reason to believe that any person is using, has used, or is about to use any method, act or practice prohibited by Section 75-24-5, and that proceedings would be in the public interest, he may bring an action in the name of the state against such person to restrain by temporary or permanent injunction the use of such method, act or practice. The action shall be brought in the chancery or county court of the county in which such person resides or has his principal place of business, or, with consent of the parties, may be brought in the chancery or county court of the county in which the State Capitol is located. The said courts are authorized to issue temporary or permanent injunctions to restrain and prevent violations of this chapter, and such injunctions shall be issued without bond.
SECTION 6. Section 75-24-11, Mississippi Code of 1972, is brought forward as follows:
75-24-11. The court may make such additional orders or judgments, including restitution, as may be necessary to restore to any person in interest any monies or property, real or personal, which may have been acquired by means of any practice prohibited by this chapter, including the appointment of a receiver or the revocation of a license or certificate authorizing that person to engage in business in this state, or both.
SECTION 7. Section 75-24-13, Mississippi Code of 1972, is brought forward as follows:
75-24-13. When a receiver is appointed by the court pursuant to this chapter, he shall have the power to sue for, collect, receive and take into his possession all the goods and chattels, rights and credits, moneys and effects, lands and tenements, books, records, documents, papers, choses in action, bills, notes and property of every description, derived by means of any practice prohibited by this chapter, including property with which such property has been mingled if it cannot be identified in kind because of such commingling, and collect or to bring suit to collect in the name of the state for and on behalf of the owner of any chose in action, and to sell, convey, and assign the same and hold and dispose of the proceeds thereof under the direction of the court. Any person who has suffered damages as a result of the use of employment of any practices prohibited by this chapter, and submits proof to the satisfaction of the court that he has in fact been damaged, may participate with general creditors in the distribution of the assets to the extent he has sustained out-of-pocket losses. The receiver shall settle the estate and distribute the assets under the direction of the court. The court shall have jurisdiction of all questions arising in such proceedings and may make such orders and judgments therein as may be required.
SECTION 8. Section 75-24-15, Mississippi Code of 1972, is brought forward as follows:
75-24-15. (1) In addition to all other statutory and common law rights, remedies and defenses, any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by the seller, lessor, manufacturer or producer of a method, act or practice prohibited by Section 75-24-5 may bring an action at law in the court having jurisdiction in the county in which the seller, lessor, manufacturer or producer resides, or has his principal place of business or, where the act or practice prohibited by Section 75-24-5 allegedly occurred, to recover such loss of money or damages for the loss of such property, or may assert, by way of setoff or counterclaim, the fact of such loss in a proceeding against him for the recovery of the purchase price or rental, or any portion thereof, of the goods or services.
(2) In any private action brought under this chapter, the plaintiff must have first made a reasonable attempt to resolve any claim through an informal dispute settlement program approved by the Attorney General.
(3) In any action or counterclaim under this section of this chapter, a prevailing defendant may recover in addition to any other relief that may be provided in this section costs and a reasonable attorney's fee, if in the opinion of the court, said action or counterclaim was frivolous or filed for the purpose of harassment or delay.
(4) Nothing in this chapter shall be construed to permit any class action or suit, but every private action must be maintained in the name of and for the sole use and benefit of the individual person.
SECTION 9. Section 75-24-17, Mississippi Code of 1972, is brought forward as follows:
75-24-17. If any person knowingly and willfully fails or refuses to file any statement or report, or fails or refuses to obey any subpoena or investigative demand issued by the Attorney General, the Attorney General may, after notice, apply to the chancery or county court of the county in which such person resides or has his principal place of business, or if the person be absent or a nonresident of the State of Mississippi, of such court of the county in which the State Capitol is located, and, after hearing thereon, request an order:
(a) Granting injunctive relief to restrain the person from engaging in any unfair or deceptive trade practice in the advertising or sale of any merchandise or the conduct of any trade or commerce that is involved in the alleged or suspected violation;
(b) Vacating, annulling, or suspending the corporate charter of a corporation created by or under the laws of this state or revoking or suspending the certificate of authority to do business in this state of a foreign corporation or revoking or suspending any other licenses, permits or certificates issued pursuant to law to such person which are used to further the allegedly prohibited practice;
(c) Granting such other relief as may be required, until the person files the statement or report, or obeys the subpoena or investigative demand;
(d) The Attorney General may request that an individual who refuses to comply with a subpoena on the ground that testimony or matter may incriminate him be ordered by the court to provide the testimony or matter. Except in a prosecution for perjury, an individual who complies with a court order to provide testimony or matter directly related to a violation of the Mississippi Consumer Protection Act after asserting a privilege against self-incrimination to which he is entitled by law shall not have the testimony or matter so provided, or evidence derived therefrom, received against him in any criminal investigation or proceeding.
Any disobedience of any final order entered under this section by any said court shall be punished as a contempt thereof.
SECTION 10. Section 75-24-19, Mississippi Code of 1972, is brought forward as follows:
75-24-19. (1) Civil remedies.
(a) Any person who violated the terms of an injunction issued under Section 75-24-9 shall forfeit and pay to the state a civil penalty in a sum not to exceed Ten Thousand Dollars ($10,000.00) per violation which shall be payable to the General Fund of the State of Mississippi. For the purposes of this section, the chancery or county court issuing an injunction shall retain jurisdiction, and the cause shall be continued, and in such cases the Attorney General acting in the name of the state may petition for recovery of civil penalties.
(b) In any action brought under Section 75-24-9, if the court finds from clear and convincing evidence, that a person knowingly and willfully used any unfair or deceptive trade practice, method or act prohibited by Section 75-24-5, the Attorney General, upon petition to the court, may recover on behalf of the state a civil penalty in a sum not to exceed Ten Thousand Dollars ($10,000.00) per violation. One-half (1/2) of said penalty shall be payable to the Office of Consumer Protection to be deposited into the Attorney General's special fund. All monies collected under this section shall be used by the Attorney General for consumer fraud education and investigative and enforcement operations of the Office of Consumer Protection. The other one-half (1/2) shall be payable to the General Fund of the State of Mississippi. The Attorney General may also recover, in addition to any other relief that may be provided in this section, investigative costs and a reasonable attorney's fee.
(2) No penalty authorized by this section shall be deemed to limit the court's powers to insure compliance with its orders, decrees and judgments, or punish for the violations thereof.
(3) For purposes of this section, a knowing and willful violation occurs when the court finds from clear and convincing evidence that the party committing the violation knew or should have known that his conduct was a violation of Section 75-24-5.
SECTION 11. Section 75-24-20, Mississippi Code of 1972, is brought forward as follows:
75-24-20. (a) Any person who, knowingly and willfully, violates any provision of Section 75-24-5, shall be guilty of a misdemeanor, and upon conviction shall be fined up to One Thousand Dollars ($1,000.00).
(b) Upon a second conviction of any person for a violation of any provision of Section 75-24-5, the offense being committed within a period of five (5) years, such person shall be guilty of a misdemeanor, and upon conviction shall be punished by imprisonment in the county jail for up to one (1) year or fined up to One Thousand Dollars ($1,000.00) or both.
(c) Upon a third or subsequent conviction of any person for a violation of any provision of Section 75-24-5, the offense being committed within a period of five (5) years, such person shall be guilty of a felony, and upon conviction shall be punished by imprisonment of not less than one (1) year nor more than five (5) years or fined not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00) or both.
(d) Criminal convictions from other states for violations of substantially similar provisions to those prohibited by this chapter shall be counted for the purposes of determining if a violation of this section is a first, second or third or subsequent offense.
SECTION 12. Section 75-24-21, Mississippi Code of 1972, is brought forward as follows:
75-24-21. It shall be the duty of the district and county attorneys to lend to the Attorney General such assistance as the Attorney General may request in the commencement and prosecution of actions pursuant to this chapter. The district attorney and county attorney shall, within their respective jurisdictions, have the same duty and responsibility under this chapter as that of the Attorney General statewide in the enforcement thereof, and they shall prosecute actions hereunder in the same manner as provided for the Attorney General. When any action is prosecuted by such district or county attorney alone or in concert, he or they shall make a full report thereon to the Attorney General, including the final disposition of the matter.
When any action has been prosecuted by a district or county attorney, at the request of the Attorney General, the Attorney General is authorized to pay the actual cost and expense of such action after same has been submitted to and approved by the court in which the action was taken, subject always to the final approval of the Attorney General.
The Attorney General may establish programs for the education of the public with respect to this chapter.
SECTION 13. Section 75-24-23, Mississippi Code of 1972, is brought forward as follows:
75-24-23. The remedies in this chapter are in addition to and not in derogation of remedies otherwise available under federal, state or local law to the Attorney General, the district or county attorneys, or to persons injured by violations of this chapter.
SECTION 14. Section 75-24-25, Mississippi Code of 1972, is brought forward as follows:
75-24-25. (1) For the purposes of this section, the following terms shall have the meanings herein ascribed:
(a) "Person" means a natural person, corporation, trust, partnership, incorporated or unincorporated association, or any other legal entity.
(b) "State of emergency" has the meaning ascribed in Section 33-15-5.
(c) "Local emergency" has the meaning ascribed in Section 33-15-5.
(d) "Emergency impact area" has the meaning ascribed in Section 33-15-5.
(e) "Value received" means the consideration or payment given for the purchase of goods and services.
(2) Whenever, under the Mississippi Emergency Management Law, Sections 33-15-1 through 33-15-49, a state of emergency or a local emergency is declared to exist in this state, then the value received for all goods and services sold within the designated emergency impact area shall not exceed the prices ordinarily charged for comparable goods or services in the same market area at or immediately before the declaration of a state of emergency or local emergency. However, the value received may include: any expenses, the cost of the goods and services which are necessarily incurred in procuring such goods and services during a state of emergency or local emergency. The prices ordinarily charged for comparable goods or services in the same market area do not include temporarily discounted goods or services. The same market area does not necessarily mean a single provider of goods or services.
(3) Any person who knowingly and willfully violates subsection (2) of this section, when the total value received during a twenty-four-hour period is Five Hundred Dollars ($500.00) or more, shall be guilty of a felony and upon conviction shall be punished by confinement for a term of not less than one (1) year nor more than five (5) years or a fine of not more than Five Thousand Dollars ($5,000.00), or both.
(4) Any person who knowingly and willfully violates subsection (2) of this section, when the total value received during a twenty-four-hour period is less than Five Hundred Dollars ($500.00), shall be guilty of a misdemeanor and upon conviction shall be fined not more than One Thousand Dollars ($1,000.00) or by imprisonment in the county jail for a term not to exceed six (6) months, or both.
(5) For the purpose of determining the punishment to be imposed under subsections (3) and (4) of this section, the value received during a twenty-four-hour period shall be aggregated.
(6) In addition to the criminal penalties prescribed in subsections (3) and (4), any knowing and willful violation of subsection (2) of this section shall be considered an unfair or deceptive trade practice subject to and governed by all the procedures and remedies available under the provisions of this chapter for enforcement of prohibited acts and practices contained therein.
SECTION 15. Section 75-24-27, Mississippi Code of 1972, is brought forward as follows:
75-24-27. (1) To accomplish the objectives and to carry out the duties prescribed in this chapter, the Attorney General, or his designee, in addition to the powers conferred by this chapter, may:
(a) Issue subpoenas and subpoenas duces tecum;
(b) Issue cease and desist orders to persons suspected of violating any provisions of this chapter;
(c) Administer an oath or affirmation to any person;
(d) Conduct hearings in aid of any investigation or inquiry;
(e) Compel the production of books, papers, documents, and other evidence, and call upon other state agencies for information;
(f) Issue any necessary rules and regulations in order to carry out the provisions of this chapter; and
(g) Enter into an assurance of voluntary compliance or an assurance of voluntary discontinuance with any person for settlement purposes.
(2) Unless otherwise ordered by a court for good cause shown, no statement or documentary material produced pursuant to subpoena under this section shall be produced for inspection or copying by, nor shall the contents thereof be disclosed to any person other than the authorized employees of the Attorney General without the consent of the person who produced the material.
(3) The Attorney General may use the documentary material or copies thereof in the enforcement of this chapter by presentation before any court, provided that any such material which contains trade secrets or proprietary information shall not be presented except with the approval of the court in which the action is pending after adequate notice to the person furnishing such material. However, when material containing trade secrets or proprietary information is presented with court approval, the material and the evidence pertaining thereto shall be held in camera and shall not be part of the court record or trial transcript.
SECTION 16. This act shall take effect and be in force from and after July 1, 2017.
