Bill Text: OR HB2546 | 2013 | Regular Session | Introduced

---

Bill Title: Relating to civil actions for unlawful practices.

Spectrum: Committee Bill

Status: (Failed) 2013-07-08 - In committee upon adjournment. [HB2546 Detail]

Download: Oregon-2013-HB2546-Introduced.html

---

     77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 300

                         House Bill 2546

Introduced and printed pursuant to House Rule 12.00. Presession
  filed (at the request of House Interim Committee on Judiciary)

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.

  Limits class of plaintiffs for civil action for unlawful
practice to natural persons.
  Limits damages that natural persons may recover for unlawful
practice.

                        A BILL FOR AN ACT
Relating to civil actions for unlawful practices; creating new
  provisions; and amending ORS 646.638.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 646.638 is amended to read:
  646.638. (1) { + (a) + } Except as provided in subsections (8)
and (9) of this section,   { - any - }  { +  a natural + } person
who suffers   { - any ascertainable loss of money or property,
real or personal, - }  { +  damages + } as a result of { +  a
person willfully + }   { - willful use or employment by another
person of - }  { +  using or employing + } a method, act or
practice declared unlawful   { - by - }  { +  under + } ORS
646.608  { - , - }  { +  that causes the natural person to enter
into a transaction with the person that involves real estate,
goods or services + } may bring an individual action in an
appropriate court to recover   { - actual damages or statutory
damages of $200, whichever is greater - }  { +  damages + }.
   { +  (b) A natural person who brings an action under this
subsection may not recover more in damages than the difference
between the amount the natural person paid for real estate, goods
or services and the fair market value of the real estate, goods
or services the natural person actually received. + }
   { +  (c) + } The court or the jury  { - , as the case may
be, - }  may award punitive damages and the court may provide
 { - the - }  equitable relief the court considers necessary or
proper.
  (2)   { - Upon commencement of any action brought under
subsection (1) of this section the party bringing the action
shall - }  { +  A party that brings an action under subsection
(1) of this section, at the time the party brings the action,
shall + } mail a copy of the complaint or other initial pleading
to the Attorney General and  { - , upon entry of any judgment in
the action, - }  shall mail { +  to the Attorney General + } a
copy of   { - the judgment to the Attorney General - }  { +  any
judgment the court enters + }.   { - Failure - }  { +
Failing + } to mail a copy of the complaint   { - shall not
be - }  { +  is not + } a jurisdictional defect, but a court may
not enter judgment for the plaintiff until proof of mailing is
filed with the court. Proof of mailing may be by affidavit or by
return receipt of mailing.
  (3) The court may award reasonable attorney fees and costs at
trial and on appeal to a prevailing plaintiff in an action under
this section. The court may award reasonable attorney fees and
costs at trial and on appeal to a prevailing defendant only if
the court finds   { - there was no - }  { +  that the plaintiff
did not have an + } objectively reasonable basis for bringing the
action or asserting the ground for appeal.
  (4) The court may not award attorney fees to a prevailing
defendant under the provisions of subsection (3) of this section
if the action under this section is maintained as a class action
pursuant to ORCP 32.
  (5) Any permanent injunction or final judgment or order
 { - of - } the court made under ORS 646.632 or 646.636 is prima
facie evidence in an action brought under this section that the
respondent used or employed a method, act or practice declared
unlawful   { - by - }  { +  under + } ORS 646.608, but an
assurance of voluntary compliance, whether or not approved by the
court,   { - shall not be - }  { +  is not + } evidence of the
violation.
  (6) { + (a) Except as provided in paragraph (b) of this
subsection, + } actions brought under this section
 { - shall - }  { +  must + } be commenced within one year
 { - from - }  { +  after + } the discovery of the unlawful
method, act or practice.
   { +  (b) + }   { - However, whenever any complaint is filed
by - }  { +  If + } a prosecuting attorney { +  files a
complaint + } to prevent, restrain or punish violations of ORS
646.608, { +  during the time in which the prosecuting attorney's
complaint is pending + }   { - running of - }  the statute of
limitations { +  is suspended + } with respect to every private
right of action under this section   { - and - }  { +  that
is + } based in whole or in part on   { - any matter complained
of in said proceeding shall be suspended during the pendency
thereof - }  { +  the claim the prosecuting attorney files + }.
  (7) Notwithstanding subsection (6) of this section, in any
action   { - brought by - }  a seller or lessor { +  brings + }
against a purchaser or lessee of real estate, goods or services,
the purchaser or lessee may assert any counterclaim the purchaser
or lessee has
  { - arising - }  { +  that arises + } out of a violation of ORS
646.605 to 646.652.
  (8) A class action may be maintained under this section. In any
class action under this section:
  (a)   { - Statutory - }   { + Plaintiffs may recover + }
damages under subsection (1) of this section   { - may be
recovered - }  on behalf of class members only if the plaintiffs
 { - in the action - }  establish that the members have sustained
 { - an ascertainable loss of money or property - }  { +
damages + } as a result of   { - a - }  { +  the defendant's + }
reckless or knowing use or employment   { - by the defendant - }
of a method, act or practice declared unlawful   { - by - }  { +
under + } ORS 646.608;
  (b) The trier of fact may award punitive damages; and
  (c) The court may award appropriate equitable relief.
  (9) This section does not apply to   { - any - }  { +  a + }
method, act or practice described in ORS 646.608 (1)(aa). Actions
for   { - violation of - }  { +  violating + } laws relating to
odometers are provided under ORS 815.410 and 815.415.
  SECTION 2.  { + The amendments to ORS 646.638 by section 1 of
this 2013 Act apply to actions that plaintiffs commence on or
after the effective date of this 2013 Act. + }
                         ----------