Bill Text: OH HB529 | 2009-2010 | 128th General Assembly | Introduced

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Bill Title: To require a supplier in certain consumer transactions to obtain express written authorization from a consumer before charging the consumer's account.

Spectrum: Strong Partisan Bill (Democrat 19-1)

Status: (Introduced - Dead) 2010-05-24 - To Consumer Affairs & Economic Protection [HB529 Detail]

Download: Ohio-2009-HB529-Introduced.html

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As Introduced

128th General Assembly Regular Session 2009-2010

H. B. No. 529

Representative DeGeeter 

Cosponsors: Representatives Hagan, Garland, Murray, Williams, B., Lundy, Fende, Dodd, Foley, Phillips, Chandler, Yuko, Winburn, Slesnick, Letson, Patten, Domenick, Weddington, Pryor, Newcomb 

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A BILL

To amend sections 1345.07, 1345.09, and 1345.10 and

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to enact section 1345.022 of the Revised Code to

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require a supplier in certain consumer

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transactions to obtain express written

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authorization from a consumer before charging the

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consumer's account.

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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1.  That sections 1345.07, 1345.09, and 1345.10 be	7
amended and section 1345.022 of the Revised Code be enacted to	8
read as follows:	9

Sec. 1345.022. (A) No supplier who is engaged in a consumer	10
transaction involving an unsolicited offer for goods, services, or	11
memberships shall cause billing information to be submitted for	12
the payment of those goods, services, or memberships, directly or	13
indirectly, without first obtaining express written authorization	14
from the consumer.	15

(B)(1) The express written authorization required under	16
division (A) of this section shall be signed by the consumer and	17
shall include all of the following information in at least a	18
ten-point font size:	19

(a) The name of the supplier;

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(b) The address and telephone number at which personal or	21
voice contact with an employee or agent of the supplier may be	22
made during normal business hours;	23

(c) An itemized list of all prices or fees that will be	24
assessed against the consumer as part of the transaction,	25
including any shipping, handling, delivery, or other charges;	26

(d) The date of the transaction or the date upon which the	27
consumer's account will be charged;	28

(e) The last four digits of the account number to be charged;

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(f) A detailed description of the goods, services, or	30
memberships that are the subject of the transaction;	31

(g) All material terms and conditions of the supplier's	32
policies regarding refunds, cancellations, exchanges, or	33
repurchases;	34

(h) The consumer's express consent to be charged for the	35
goods, services, or memberships that are the subject of the	36
transaction.	37

(2) A consumer's acceptance under the terms of a negative	38
option offer or free-to-pay conversion offer, or the supplier's	39
use of pre-acquired account information or express written	40
authorization that was obtained for a previous transaction, shall	41
not constitute express written authorization for purposes of this	42
section.	43

(C) Each supplier who obtains express written authorization	44
from a consumer under this section shall give the consumer a copy	45
of the signed authorization for the consumer to retain.	46

(D) As used in this section:

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(1) "Billing information" means any data that enables a	48
person to access any account of a consumer, including a credit	49
card account, checking account, savings account, share account,	50
utility account, mortgage loan account, or any other account.	51

(2) "Free-to-pay conversion offer" means an offer under which	52
the consumer receives a good, service, or membership for free for	53
an initial period and incurs an obligation to pay for the good,	54
service, or membership when the consumer does not take affirmative	55
action to cancel the agreement before the end of the initial	56
period.	57

(3) "Negative option offer" means an offer under which the	58
consumer's silence or failure to take an affirmative action to	59
cancel the agreement or reject the goods, services, or memberships	60
that are the subject of the agreement is interpreted by the seller	61
as acceptance of the offer.	62

(4) "Pre-acquired account information" means any information	63
that enables a supplier to cause a charge against a consumer's	64
account without obtaining the account number, or other information	65
that would provide access to the account, directly from the	66
consumer during the transaction pursuant to which the account will	67
be charged.	68

(5) "Unsolicited offer" means any offer for goods, services,	69
or memberships that is not initiated or solicited by the consumer,	70
including an offer that is made by the supplier after the consumer	71
initiates contact with the supplier regarding other unrelated	72
goods, services, or memberships.	73

Sec. 1345.07.  (A) If the attorney general, by the attorney	74
general's own inquiries or as a result of complaints, has	75
reasonable cause to believe that a supplier has engaged or is	76
engaging in an act or practice that violates this chapter, and	77
that the action would be in the public interest, the attorney	78
general may bring any of the following:	79

(1) An action to obtain a declaratory judgment that the act	80
or practice violates section 1345.02, 1345.03, or 1345.031 of the	81
Revised Code;	82

(2) An action, with notice as required by Civil Rule 65, to	83
obtain a temporary restraining order, preliminary injunction, or	84
permanent injunction to restrain the act or practice. If the	85
attorney general shows by a preponderance of the evidence that the	86
supplier has violated or is violating section 1345.02, 1345.03, or	87
1345.031 of the Revised Code, the court may issue a temporary	88
restraining order, preliminary injunction, or permanent injunction	89
to restrain and prevent the act or practice. On motion of the	90
attorney general, or on its own motion, the court may impose a	91
civil penalty of not more than five thousand dollars for each day	92
of violation of a temporary restraining order, preliminary	93
injunction, or permanent injunction issued under this section, if	94
the supplier received notice of the action. The civil penalties	95
shall be paid as provided in division (G) of this section. Upon	96
the commencement of an action under division (A)(2) of this	97
section against a supplier who operates under a license, permit,	98
certificate, commission, or other authorization issued by the	99
supreme court or by a board, commission, department, division, or	100
other agency of this state, the attorney general shall immediately	101
notify the supreme court or agency that such an action has been	102
commenced against the supplier.	103

(3) A class action under Civil Rule 23, as amended, on behalf	104
of consumers who have engaged in consumer transactions in this	105
state for damage caused by:	106

(a) An act or practice enumerated in division (B) or (D) of	107
section 1345.02 of the Revised Code;	108

(b) Violation of a rule adopted under division (B)(2) of	109
section 1345.05 of the Revised Code before the consumer	110
transaction on which the action is based;	111

(c) An act or practice determined by a court of this state to	112
violate section 1345.02, 1345.03, or 1345.031 of the Revised Code	113
and committed after the decision containing the determination has	114
been made available for public inspection under division (A)(3) of	115
section 1345.05 of the Revised Code.	116

(B) On motion of the attorney general and without bond, in	117
the attorney general's action under this section, the court may	118
make appropriate orders, including appointment of a referee or a	119
receiver, for sequestration of assets, to reimburse consumers	120
found to have been damaged, to carry out a transaction in	121
accordance with a consumer's reasonable expectations, to strike or	122
limit the application of unconscionable clauses of contracts so as	123
to avoid an unconscionable result, or to grant other appropriate	124
relief. The court may assess the expenses of a referee or receiver	125
against the supplier.	126

(C) Any moneys or property recovered by the attorney general	127
in an action under this section that cannot with due diligence	128
within five years be restored by a referee to consumers shall be	129
unclaimed funds reportable under Chapter 169. of the Revised Code.	130

(D) In addition to the other remedies provided in this	131
section, if the violation is an act prohibited by section 1345.022	132
of the Revised Code, an act or practice that was declared to be	133
unfair, deceptive, or unconscionable by rule adopted pursuant to	134
division (B)(2) of section 1345.05 of the Revised Code before the	135
consumer transaction on which the action is based occurred, or an	136
act or practice that was determined by a court of this state to	137
violate section 1345.02, 1345.03, or 1345.031 of the Revised Code	138
and committed after the decision containing the court's	139
determination was made available for public inspection pursuant to	140
division (A)(3) of section 1345.05 of the Revised Code, the	141
attorney general may request and the court may impose a civil	142
penalty of not more than twenty-five thousand dollars against the	143
supplier. The civil penalties shall be paid as provided in	144
division (G) of this section.	145

(E) No action may be brought by the attorney general under	146
this section to recover for a transaction more than two years	147
after the occurrence of a violation.	148

(F) If a court determines that provision has been made for	149
reimbursement or other appropriate corrective action, insofar as	150
practicable, with respect to all consumers damaged by a violation,	151
or in any other appropriate case, the attorney general, with court	152
approval, may terminate enforcement proceedings brought by the	153
attorney general upon acceptance of an assurance from the supplier	154
of voluntary compliance with Chapter 1345. of the Revised Code,	155
with respect to the alleged violation. The assurance shall be	156
filed with the court and entered as a consent judgment. Except as	157
provided in division (A) of section 1345.10 of the Revised Code, a	158
consent judgment is not evidence of prior violation of such	159
chapter. Disregard of the terms of a consent judgment entered upon	160
an assurance shall be treated as a violation of an injunction	161
issued under this section.	162

(G) Civil penalties ordered pursuant to divisions (A) and (D)	163
of this section shall be paid as follows: one-fourth of the amount	164
to the treasurer of the county in which the action is brought and	165
three-fourths to the consumer protection enforcement fund created	166
by section 1345.51 of the Revised Code.	167

(H) The remedies available to the attorney general under this	168
section are cumulative and concurrent, and the exercise of one	169
remedy by the attorney general does not preclude or require the	170
exercise of any other remedy. The attorney general is not required	171
to use any procedure set forth in section 1345.06 of the Revised	172
Code prior to the exercise of any remedy set forth in this	173
section.	174

Sec. 1345.09.  For a violation of Chapter 1345. of the	175
Revised Code, a consumer has a cause of action and is entitled to	176
relief as follows:	177

(A) Where the violation was an act prohibited by section	178
1345.02, 1345.03, or 1345.031 of the Revised Code, the consumer	179
may, in an individual action, rescind the transaction or recover	180
the consumer's actual economic damages plus an amount not	181
exceeding five thousand dollars in noneconomic damages.	182

(B) Where the violation was an act or practice declared to be	183
deceptive or unconscionable by rule adopted under division (B)(2)	184
of section 1345.05 of the Revised Code before the consumer	185
transaction on which the action is based, or an act or practice	186
determined by a court of this state to violate section 1345.02,	187
1345.03, or 1345.031 of the Revised Code and committed after the	188
decision containing the determination has been made available for	189
public inspection under division (A)(3) of section 1345.05 of the	190
Revised Code, the consumer may rescind the transaction or recover,	191
but not in a class action, three times the amount of the	192
consumer's actual economic damages or two hundred dollars,	193
whichever is greater, plus an amount not exceeding five thousand	194
dollars in noneconomic damages or recover damages or other	195
appropriate relief in a class action under Civil Rule 23, as	196
amended.	197

(C) Where the violation was an act prohibited by section	198
1345.022 of the Revised Code, the consumer may recover, in an	199
individual action, up to three times the amount of the	200
unauthorized charge to the consumer's account or recover damages	201
in a class action under Civil Rule 23, as amended. If the supplier	202
knowingly committed the act in violation of section 1345.022 of	203
the Revised Code, the consumer additionally may recover punitive	204
or exemplary damages.	205

(D)(1) Except as otherwise provided in division (C)(D)(2) of	206
this section, in any action for rescission, revocation of the	207
consumer transaction must occur within a reasonable time after the	208
consumer discovers or should have discovered the ground for it and	209
before any substantial change in condition of the subject of the	210
consumer transaction.	211

(2) If a consumer transaction between a loan officer,	212
mortgage broker, or nonbank mortgage lender and a customer is in	213
connection with a residential mortgage, revocation of the consumer	214
transaction in an action for rescission is only available to a	215
consumer in an individual action, and shall occur for no reason	216
other than one or more of the reasons set forth in the "Truth in	217
Lending Act," 82 Stat. 146 (1968), 15 U.S.C. 1635, not later than	218
the time limit within which the right of rescission under section	219
125(f) of the "Truth in Lending Act" expires.	220

(D)(E) Any consumer may seek a declaratory judgment, an	221
injunction, or other appropriate relief against an act or practice	222
that violates this chapter.	223

(E)(F) When a consumer commences an individual action for a	224
declaratory judgment or an injunction or a class action under this	225
section, the clerk of court shall immediately mail a copy of the	226
complaint to the attorney general. Upon timely application, the	227
attorney general may be permitted to intervene in any private	228
action or appeal pending under this section. When a judgment under	229
this section becomes final, the clerk of court shall mail a copy	230
of the judgment including supporting opinions to the attorney	231
general for inclusion in the public file maintained under division	232
(A)(3) of section 1345.05 of the Revised Code.	233

(F)(G) The court may award to thea prevailing partyconsumer	234
a reasonable attorney's fee limited to the work reasonably	235
performed, if either of the following apply:	236

(1) The consumer complaining of the act or practice that	237
violated this chapter has brought or maintained an action that is	238
groundless, and the consumer filed or maintained the action in bad	239
faithThe supplier committed an act that violated section 1345.022	240
of the Revised Code;	241

(2) The supplier has knowingly committed an act or practice	242
that violates this chapter.	243

(G)(H) As used in this section, "actual economic damages"	244
means damages for direct, incidental, or consequential pecuniary	245
losses resulting from a violation of Chapter 1345. of the Revised	246
Code and does not include damages for noneconomic loss as defined	247
in section 2315.18 of the Revised Code.	248

(H)(I) Nothing in this section shall preclude a consumer from	249
also proceeding with a cause of action under any other theory of	250
law.	251

Sec. 1345.10.  (A) With the exception of consent judgments	252
entered before any testimony is taken, a final judgment against a	253
supplier under section 1345.07 of the Revised Code is admissible	254
as prima-facie evidence of the facts on which it is based in	255
subsequent proceedings under section 1345.09 of the Revised Code	256
against the same supplier, or histhe supplier's successors or	257
assigns.	258

(B) An action by or on behalf of a consumer pursuant to	259
section 1345.09 of the Revised Code precludes that consumer from	260
being included in a later class action by the attorney general	261
with respect to the same transaction, but intervention by the	262
attorney general in a pending action is authorized. If the	263
attorney general brings a class action on behalf of consumers, a	264
consumer may withdraw from the class action prior to trial, or,	265
with the permission of the court, at any time.	266

(C) An(1) Except as provided in division (C)(2) of this	267
section, an action under sections 1345.01 to 1345.13 of the	268
Revised Code may not be brought more than two years after the	269
occurrence of the violation which is the subject of suit, or more	270
than one year after the termination of proceedings by the attorney	271
general with respect to the violation, whichever is later.	272
However, an action under sections 1345.01 to 1345.13 of the	273
Revised Code arising out of the same consumer transaction can be	274
used as a counterclaim whenever a supplier sues a consumer on an	275
obligation arising from the consumer transaction.	276

(2) An action under section 1345.09 of the Revised Code for a	277
violation of section 1345.022 of the Revised Code may not be	278
brought more than four years after the date upon which the	279
consumer discovered the unauthorized charges to the consumer's	280
account.	281

Section 2.  That existing sections 1345.07, 1345.09, and	282
1345.10 of the Revised Code are hereby repealed.	283