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HOUSE BILL NO. 62
INTRODUCED BY QUILICI J
BY REQUEST OF THE DEPARTMENT OF COMMERCE
A BILL FOR AN ACT ENTITLED: "AN ACT PROVIDING ADDITIONAL REMEDIES FOR VIOLATIONS OF THE MONTANA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION ACT OF 1973; ALLOWING THE DEPARTMENT OF COMMERCE TO RECOVER COSTS, INVESTIGATIVE EXPENSES, AND ATTORNEY FEES; ESTABLISHING A STATE SPECIAL REVENUE ACCOUNT TO FUND ENFORCEMENT ACTIONS; ALLOWING ACTIONS AGAINST NONRESIDENTS TO BE MAINTAINED IN THE FIRST JUDICIAL DISTRICT; ALLOWING CLASS ACTION LAWSUITS AGAINST VIOLATORS; PROVIDING FOR COURT-APPROVED SETTLEMENT AGREEMENTS; AMENDING SECTIONS 30-14-111, 30-14-112, 30-14-131, 30-14-142, AND 30-14-133, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 30-14-111, MCA, is amended to read:
"30-14-111. Department to restrain unlawful acts -- notice requirements -- settlement agreements -- allowance
for damages. (1) Whenever the department has reason to believe that
any a person is using, has used, or is about to
knowingly use any method, act, or practice declared by 30-14-103 to be unlawful and that proceeding would be in the public
interest, the department may bring an action in the name of the state against such the person to:
(a) restrain by temporary or permanent injunction or temporary restraining order the use of
such an unlawful method, act,
or practice, upon the giving of appropriate notice to that person;
(b) obtain a declaratory judgment that a method, act, or practice of the person violates 30-14-103;
(c) recover on behalf of consumers actual damages or restitution of money, property, or other things received from consumers in connection with a violation of 30-14-103;
(d) order specific performance by the violator;
(e) recover from the violator civil fines of up to $5,000 for each violation of 30-14-103; and
(f) recover from the violator expenses, investigative costs, and reasonable attorney fees incurred by the department.
(2) The notice under subsection (1)(a) must state generally the relief sought and be served in accordance with 30-14-115 at least 20 days before the hearing of the action where the relief to be sought is a temporary or permanent injunction. The notice for a temporary restraining order is governed by 27-19-315.
(3) The action may be brought in the district court of the county in which
such the person resides or has his a principal
place of business or, with consent of the parties, if the person does not reside or maintain a principal place of business in
Montana, may be brought in the district court of Lewis and Clark County.
(4) (a) Except as provided in subsection (4)(b), the department shall give notice in writing to an alleged violator of 30-14-103 prior to instigating proceedings provided for in this part. The written notice must invite the alleged violator to appear before the department for the purpose of executing an assurance of voluntary compliance or submitting a settlement agreement as provided in subsection (5).
(b) The department may forego the notice in subsection (4)(a) if the department finds and attests in writing that the purposes of this part would be substantially and materially impaired by a delay in instigating legal proceedings against an alleged violator.
(5) (a) In lieu of instigating or continuing an action or proceeding against an alleged violator, the department may accept a settlement agreement with respect to an act or practice alleged to be a violation of 30-14-103. The settlement agreement may include a stipulation for the payment by the person of reasonable costs, investigative expenses, and attorney fees incurred by the department. The settlement agreement may also include a stipulation that the person agrees to:
(i) pay civil fines not to exceed $5,000 for each violation;
(ii) pay actual damages to consumers or make restitution of money, property, or other things received from consumers in connection with a violation of 30-14-103; or
(iii) meet specific performance requirements.
(b) To be effective, a settlement agreement entered into pursuant to this section must first be approved by the district court. Once the district court has approved the settlement agreement, any breach of the conditions set forth in it must be treated as a violation of a court order and is subject to all penalties provided in Title 3, chapter 1, part 5.
(4)(6) The courts are court is authorized to issue:
(a) temporary or permanent injunctions or temporary restraining orders to restrain and prevent violations of this part, and
such these injunctions shall must be issued without bond; and
(b) orders or judgments necessary to prevent a person's use of any method, act, or practice declared to be in violation of 30-14-103."
Section 2. Section 30-14-112, MCA, is amended to read:
"30-14-112. Assurance of compliance. (1) In the administration of this part, the department may accept an assurance
of voluntary compliance with respect to any method, act, or practice considered to be
violative in violation of this part from
any a person who has engaged or was about to engage in any such an unlawful method, act, or practice. Any such An
assurance shall must be in writing and must be filed with and subject to the approval of either the district court of the county
in which the alleged violator resides or has his a principal place of business or the district court of Lewis and Clark County.
(2) An assurance of voluntary compliance must contain provisions stipulating that the person will discontinue any method, act, or practice that violates 30-14-103.
(3) The assurance of voluntary compliance may include a stipulation that the person agrees to:
(a) pay reasonable costs, investigative expenses, and attorney fees incurred by the department;
(b) pay actual damages to consumers or make restitution of money, property, or other things received from consumers in connection with a violation of 30-14-103; or
(c) meet specific performance requirements.
(4) A violation of an assurance of voluntary compliance establishes prima facie that the person who provides the assurance of voluntary compliance has knowingly violated 30-14-103.
(5) Assurance of voluntary compliance is not an admission of violation for any purpose. Matters
thus closed by means of
a written assurance may at any time be reopened by the department for further proceedings in the public interest, pursuant to
Section 3. Section 30-14-131, MCA, is amended to read:
Restoration Restitution to consumers -- award of costs, investigative expenses, and attorney fees to
department. (1) The court may make such additional issue orders or judgments as may be necessary to restore to any
person any moneys money or property , real or personal, which that may have been acquired by unlawful means, of any
practice in this part declared to be unlawful, 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 including orders or judgments necessary to:
(a) compensate consumers for actual damages or provide for the restitution to consumers of money, property, or other things received from consumers in connection with a violation of the provisions of this part;
(b) carry out a transaction in accordance with reasonable consumer expectations;
(c) appoint a master, receiver, or escrow agent to oversee assets or order the sequestration of assets if the violator threatens to or appears ready to remove, conceal, or dispose of property to the detriment of consumers to whom restitution would be made;
(d) charge the costs of the master, receiver, or escrow agent provided for in subsection (2)(c) to the violator;
(e) revoke any license or certificate that authorizes the violator to engage in business in Montana;
(f) enjoin a person who is found to be a party to the violation from engaging in business in Montana; and
(g) grant other appropriate relief.
(2) In an action brought by the department in which the state prevails, the court shall, in addition to the relief granted pursuant to 30-14-111, award reasonable costs, investigative expenses, and attorney fees to the department."
Section 4. Section 30-14-142, MCA, is amended to read:
"30-14-142. Penalties. (1) A person who violates the terms of an injunction or temporary restraining order issued under
30-14-111 shall forfeit and pay to the state a civil
penalty fine of not more than $10,000 per for each violation. For the
purposes of this section, the district court issuing an injunction or temporary restraining order retains jurisdiction and the
cause shall be is continued, and in such cases the department, acting in the name of the state, may petition for recovery of
(2) In an action brought under 30-14-111, if the court finds that a person is willfully using or has willfully used a
method, act, or practice declared unlawful by 30-14-103, the department, upon petition to the court, may recover on behalf
of the state a civil
penalty fine of not more than $500 $5,000 per for each violation.
(3) A person who engages in a fraudulent course of conduct declared unlawful by 30-14-103 shall upon conviction be fined not more than $2,000, imprisoned for not more than 1 year, or both, in the discretion of the court. Nothing in this subsection limits any other provision of this part.
(4) For purposes of this section, a willful violation occurs when the party committing the violation knew or should have
his the party's conduct was a violation of 30-14-103."
Section 5. Section 30-14-133, MCA, is amended to read:
"30-14-133. Damages -- notice to public agencies -- attorney fees -- prior judgment as evidence. (1) 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 another person of a
method, act, or practice declared unlawful by 30-14-103 may bring an
individual but not a class action under the rules of
civil procedure in the district court of the county in which the seller or lessor resides or has his a principal place of business
or is doing business to recover actual damages or $200, whichever is greater. If the seller or lessor does not reside in or have
a principal place of business in Montana, the action may be brought in the district court of Lewis and Clark County. The
court may, in its discretion, award up to three times the actual damages sustained and may provide such equitable relief as in
an amount it considers necessary or proper.
(2) Upon commencement of any action brought under subsection (1)
of this section, the clerk of court shall mail a copy
of the complaint or initial pleading to the department and the appropriate county attorney and, upon entry of any judgment
or decree in the action, shall mail a copy of such the judgment or decree to the department and the appropriate county
(3) In any action brought under this section, the court may award the prevailing party reasonable attorney fees incurred in prosecuting or defending the action.
(4) Any permanent injunction, judgment, or order of the court made under 30-14-111
shall be 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
NEW SECTION. Section 6. Deposits in special revenue account -- restricted use. All fines, costs, investigative expenses, and attorney fees recovered by the department under sections 30-14-111, 30-14-112, 30-14-131, and 30-14-142 must be deposited in the state special revenue account to the credit of the department. The funds allocated by this section to the state special revenue account may only be used to defray the expenses of the department that are directly related to the department's administration and enforcement of this part.
NEW SECTION. Section 7. Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.
NEW SECTION. Section 8. Effective date. [This act] is effective on passage and approval.
- END -
Latest Version of HB 62 (HB0062.01)
Processed for the Web on December 7, 1998 (12:29PM)
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