Bill Text: OR SB497 | 2011 | Regular Session | Introduced

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Bill Title: Relating to costs recoverable in legal proceedings.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Failed) 2011-06-30 - In committee upon adjournment. [SB497 Detail]

Download: Oregon-2011-SB497-Introduced.html

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     76th OREGON LEGISLATIVE ASSEMBLY--2011 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 2648

                         Senate Bill 497

Sponsored by Senator BONAMICI (Presession filed.)

                             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.

  Modifies law regarding recoverable attorney fees and costs in
certain antitrust and wage claim proceedings.

                        A BILL FOR AN ACT
Relating to costs recoverable in legal proceedings; creating new
  provisions; and amending ORS 646.760, 646.770, 646.775, 646.780
  and 653.055.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 646.760 is amended to read:
  646.760. (1) The Attorney General may prosecute an action for
appropriate injunctive relief and civil penalties in the name of
the state for any violation of ORS 646.725 or 646.730. The court
may assess for the benefit of the state a civil penalty of not
more than $250,000 for each violation of ORS 136.617, 646.705 to
646.805 and 646.990. Any act or series of acts by one or more
individual persons (officers, agents or partners) on behalf of a
corporation or other business entity may be found to constitute a
violation or violations by such individual person or persons as
well as by the corporation or other business entity, and separate
penalties may be imposed against each of such individual
defendants and corporate or other business entity defendants for
such a violation. The court may award reasonable attorney fees,
expert witness fees and costs   { - of investigation - }  { + ,
including investigative costs, + } to the Attorney General if the
Attorney General prevails in an action under this section { +  at
trial and on appeal + }.   { - The court may award reasonable
attorney fees, expert witness fees and costs of investigation to
a defendant who prevails in an action under this section if the
court determines that the Attorney General had no objectively
reasonable basis for asserting the claim or no reasonable basis
for appealing an adverse decision of the trial court. - }
  (2) The complaint may also seek and the court may order, in an
appropriate case, the forfeiture of any corporate franchise,
professional or business license, right to do business or to use
an assumed business name, where the court finds the use by any
defendant of such franchise, license or right has been material
to a violation of ORS 646.725 or 646.730.
  (3) The court shall take into consideration in mitigation of
any penalty assessed under this section, any fine or penalty
imposed against the defendant by a United States court in a final
judgment under sections 1 to 45 of Title 15 of the United States
Code, which the court finds to be based on the same or
substantially the same acts of defendant.
  SECTION 2. ORS 646.770 is amended to read:
  646.770.   { - (1) - }  Any person { + , + } including the
state or any municipal corporation or political
subdivision { + , + } threatened with injury   { - in its - }
 { +  to the + } business or property  { + of the person, state,
municipal corporation or political subdivision  + }by a violation
of ORS 646.725 or 646.730 { + , + } may   { - prosecute a
suit - }  { +  bring an action + } for equitable relief  { - ,
and in addition to such relief - }  { + . Upon prevailing in the
action at trial and on appeal, the person, state, municipal
corporation or political subdivision + } shall recover   { - the
costs of suit, including necessary reasonable investigative costs
and reasonable experts' fees - }  { +  reasonable attorney fees,
expert witness fees and costs, including investigative costs + }.
    { - (2) Except as provided in subsection (3) of this section,
in an action brought under the provisions of this section by a
person other than the state or any municipal corporation or
political subdivision of the state, the court may award
reasonable attorney fees to the prevailing party. Except as
provided in subsection (3) of this section, in a civil action
brought under the provisions of this section by the state or any
municipal corporation or political subdivision of the state: - }
    { - (a) The court may award reasonable attorney fees to the
state or political subdivision of the state if the state or
political subdivision prevails in the action; and - }
    { - (b) The court may award reasonable attorney fees to a
defendant who prevails in an action under this section if the
court determines that the state or any municipal corporation or
political subdivision of the state had no objectively reasonable
basis for asserting the claim or no reasonable basis for
appealing an adverse decision of the trial court. - }
    { - (3) The court may not award attorney fees to a prevailing
defendant under the provisions of subsection (2) of this section
if the action under this section is maintained as a class action
pursuant to ORCP 32. - }
  SECTION 3. ORS 646.775 is amended to read:
  646.775. (1)(a) The Attorney General may bring a civil action
in the name of the State of Oregon, on behalf of a political
subdivision in this state or as parens patriae on behalf of a
natural person, in any circuit court in which venue is proper
under ORS 646.790, to secure equitable and monetary relief as
provided in this section for injury sustained by the natural
person or political subdivision to the natural person's or
political subdivision's property by reason of a violation of ORS
646.725 or 646.730. The Attorney General may bring the action
authorized by this paragraph regardless of whether the natural
person or political subdivision dealt directly or indirectly with
the adverse party.
  (b) The court shall exclude from the amount of monetary relief
awarded in an action pursuant to paragraph (a) of this subsection
any amount of monetary relief:
  (A) That duplicates amounts that have been awarded for the same
injury; or
  (B) That is properly allocable to natural persons who have
excluded their claims pursuant to subsection (2)(b) of this
section, or to any business entity.
  (c)(A) Subject to paragraph (b) of this subsection, the court
shall award the state as monetary relief three times the total
damages sustained by natural persons and political
subdivisions { + , reasonable attorney fees  + }and the costs the
state incurs in the action.
    { - (B) The court may award reasonable attorney fees to the
Attorney General if the Attorney General prevails in an action
under this section. - }
    { - (C) - }  { +  (B) + } The court may award reasonable
attorney fees to a defendant who prevails in an action under this
section if the court determines that the Attorney General
 { - had no objectively reasonable basis for asserting the claim
or no reasonable basis for appealing an adverse decision of the
trial court - }  { +  acted in bad faith, vexatiously, wantonly
or for oppressive reasons + }.
  (d) Notwithstanding paragraph (c) of this subsection, the court
shall award the state only the actual damages sustained by
natural persons and political subdivisions in an action in which:
  (A) The Attorney General prevails solely on the basis of a
judgment entered in a proceeding under 15 U.S.C. 1 to 45 or in
another action by the state under ORS 646.760, 646.770 or
646.780, used as collateral estoppel against the defendant under
ORS 646.805; or
  (B) The natural person or political subdivision dealt
indirectly with the adverse party and the Attorney General
establishes a violation other than a per se violation of ORS
646.725.
  (2)(a) In any action pursuant to subsection (1)(a) of this
section, the Attorney General shall, at the times, in the manner
and with the content the court directs, give notice by
publication. If the court finds that notice given solely by
publication would deny due process of law to a natural person or
political subdivision, the court may direct further notice to the
natural person or political subdivision according to the
circumstances of the case.
  (b) Any natural person or political subdivision on whose behalf
an action is brought pursuant to subsection (1)(a) of this
section may elect to exclude from adjudication the portion of the
claim for monetary relief attributable to the natural person or
political subdivision by filing notice of the election with the
court within the time specified in the notice given pursuant to
paragraph (a) of this subsection.
  (c) The final judgment in an action pursuant to subsection
(1)(a) of this section shall be res judicata as to any claim
under this section by any natural person or political subdivision
on behalf of whom such action was brought and who fails to give
the notice specified in paragraph (b) of this subsection within
the period specified in the notice given pursuant to paragraph
(a) of this subsection.
  (3) An action pursuant to subsection (1)(a) of this section
shall not be dismissed or compromised without the approval of the
court, and the notice of any proposed dismissal or compromise
shall be given in the manner the court directs.
  (4) In any action pursuant to subsection (1)(a) of this section
in which there has been a determination that a defendant agreed
to fix prices in violation of ORS 646.725, damages may be proved
and assessed in the aggregate by statistical or sampling methods,
by the computation and pro rata allocation of illegal
overcharges, or by any other reasonable system of estimating
aggregate damages as the court in its discretion may permit
without the necessity of separately proving the individual claim
of, or amount of damage to, natural persons or political
subdivisions on whose behalf the suit was brought.
  (5)(a) Monetary relief recovered in an action pursuant to
subsection (1)(a) of this section shall be distributed in the
manner the court in its discretion may authorize, subject to the
requirement that any distribution procedure adopted afford each
natural person or political subdivision on whose behalf the suit
was brought a reasonable opportunity to secure an appropriate
portion of the net monetary relief.
  (b) The Attorney General shall deposit that portion of the
monetary relief awarded by the court as costs of suit and a
reasonable attorney fee in the Department of Justice Protection

and Education Revolving Account established pursuant to ORS
180.095.
  (c) To the extent that the monetary relief awarded by the court
is not exhausted by distribution pursuant to paragraphs (a) and
(b) of this subsection, the remaining funds shall be deemed a
civil penalty by the court and assessed as such for the benefit
of the state pursuant to ORS 646.760.
  (6) The powers granted in this section are in addition to and
not in derogation of the common law powers of the Attorney
General to act as parens patriae, or the powers of the Attorney
General to sue as a representative party on behalf of a class
pursuant to ORCP 32.
  SECTION 4. ORS 646.780 is amended to read:
  646.780. (1)(a) A person, the state or any political
subdivision in the state injured in   { - its - }   { + the + }
business or property  { +  of the person, state or political
subdivision + } by a violation of ORS 646.725 or 646.730 may sue
for the injury and shall { + , upon prevailing in the action at
trial and on appeal, + } recover three times the damages
sustained { +  and reasonable attorney fees, expert witness fees
and costs, including investigative costs + }. An action
authorized by this paragraph may be brought regardless of whether
the plaintiff dealt directly or indirectly with the adverse
party.
  (b) Notwithstanding paragraph (a) of this subsection,  { + upon
prevailing in the action at trial and on appeal, + } the state
may recover only the state's actual damages sustained and
 { - any - } attorney fees, expert witness fees   { - or - }
 { +  and + }  { + costs, including + } investigative costs
 { - that the court may award under subsection (3) of this
section - } , if the state:
  (A) Brings an action under ORS 646.760;
  (B) Commences a prosecution under ORS 646.815 and 646.990 (2);
or
  (C) Brings an action for an injury that the state suffered by
dealing indirectly with the adverse party and the state
establishes a violation other than a per se violation of ORS
646.725.
  (c) Notwithstanding paragraph (a) of this subsection, in any
action under this section in which the plaintiff prevails  { + at
trial and on appeal + } solely on the basis of a judgment or
decree entered in a proceeding under 15 U.S.C. 1 to 45 or in
another action by the state under ORS 646.760, 646.770 or this
section, used as collateral estoppel against a defendant pursuant
to ORS 646.805, plaintiff's recovery shall be limited to the
actual damages sustained and   { - any - }  attorney fees, expert
witness fees   { - or - }  { +  and + }  { +  costs,
including + } investigative costs   { - that may be awarded under
subsection (3) of this section - } .
  (2) Unless there is a subsequent judgment that the court lacks
jurisdiction, the taking of any testimony at the commencement of
trial on a civil complaint for damages filed under the antitrust
laws of the United States shall constitute an absolute bar and
waiver of any right of a plaintiff in such action to recover
damages from the same defendant under this section for the same
or substantially the same acts of plaintiff.
    { - (3)(a) Except as provided in subsection (4) of this
section, in an action brought under the provisions of this
section by a person other than the state or any political
subdivision in the state, the court may award reasonable attorney
fees, expert witness fees and investigative costs to the
prevailing party. - }
    { - (b) Except as provided in subsection (4) of this section,
in a civil action brought under the provisions of this section or
under ORS 646.760 by the state or any political subdivision in
the state: - }
    { - (A) The court may award reasonable attorney fees, expert
witness fees and investigative costs to the state or political
subdivision if the state or political subdivision prevails in the
action; and - }
    { - (B) The court may award reasonable attorney fees, expert
witness fees and investigative costs to a defendant who prevails
in an action under this section if the court determines that the
state or political subdivision had no objectively reasonable
basis for asserting the claim or no reasonable basis for
appealing an adverse decision of the trial court. - }
    { - (4) The court may not award attorney fees, expert witness
fees or investigative costs to a prevailing defendant under the
provisions of this section if the action is maintained as a class
action pursuant to ORCP 32. - }
    { - (5)(a) - }  { +  (3)(a) + } When the Attorney General
files an action parens patriae under ORS 646.775 within 30 days
of the date that a natural person files an action as a class
action under this section and both the Attorney General and the
natural person seek to represent the same class of natural
persons, the action brought by the Attorney General must be
deemed superior to the natural person's action for the purposes
of determining whether the natural person's action under this
section may not be maintained as a class action under ORCP 32.
  (b) Upon commencement of an action as a class action under this
section by a natural person, the natural person shall mail a copy
of the complaint to the Attorney General. Failure to mail a copy
of the complaint is not a jurisdictional defect.
  (c) The Attorney General's action shall be deemed superior to
the natural person's action brought as a class action as
described in paragraph (a) of this subsection until the earlier
of:
  (A) Thirty days after the natural person mails a copy of the
complaint to the Attorney General as provided in paragraph (b) of
this subsection; or
  (B) The date that a court finds that the natural person's
action is to be maintained as a class action.
  (d) Nothing in this subsection shall prohibit a natural person
from filing an action as a class action if:
  (A) The Attorney General's parens patriae action is dismissed
prior to adjudication of the issues without damages paid to any
natural person; or
  (B) A sufficient number of natural persons opt out of the
parens patriae action to sustain a separate class action.
  SECTION 5. ORS 653.055 is amended to read:
  653.055. (1) Any employer who pays an employee less than the
wages to which the employee is entitled under ORS 653.010 to
653.261 is liable to the employee affected:
  (a) For the full amount of the wages, less any amount actually
paid to the employee by the employer;
   { +  (b) For reasonable attorney fees and costs at trial and
on appeal;  + }and
    { - (b) - }  { +  (c) + } For civil penalties provided in ORS
652.150.
  (2) Any agreement between an employee and an employer to work
at less than the wage rate required by ORS 653.010 to 653.261 is
no defense to an action under subsection (1) of this section.
  (3) The Commissioner of the Bureau of Labor and Industries has
the same powers and duties in connection with a wage claim based
on ORS 653.010 to 653.261 as the commissioner has under ORS
652.310 to 652.445 and in addition the commissioner may, without
the necessity of assignments of wage claims from employees,
initiate suits against employers to enjoin future failures to pay
required minimum wages or overtime pay and to require the payment
of minimum wages and overtime pay due employees but not paid as
of the time of the filing of suit. The commissioner may join in a
single proceeding and in one cause of suit any number of wage
claims against the same employer. If the commissioner does not
prevail in such action, the commissioner shall pay all costs and
disbursements from the Bureau of Labor and Industries Account.
    { - (4) The court may award reasonable attorney fees to the
prevailing party in any action brought by an employee under this
section. - }
  SECTION 6.  { + The amendments to ORS 646.760, 646.770,
646.775, 646.780 and 653.055 by sections 1 to 5 of this 2011 Act
apply to legal proceedings commenced on or after the effective
date of this 2011 Act. + }
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