71st OREGON LEGISLATIVE ASSEMBLY--2001 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 786
House Bill 2215
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Attorney General Hardy
Myers for Department of Justice)
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.
Prescribes procedure for appeal of action involving
investigative demand under Unlawful Trade Practices Act. Imposes
sanction for failure to comply with investigative demand.
Increases amount of recovery for private unlawful trade practice
action. Provides for award of attorney fees to prevailing
plaintiff. Provides for award of attorney fees to prevailing
defendant if plaintiff's claim was frivolous.
Allows Attorney General to obtain relief against person who
fails or refuses to obey investigative demand issued under
antitrust laws.
A BILL FOR AN ACT
Relating to trade practices; creating new provisions; and
amending ORS 646.618, 646.626, 646.638 and 646.750.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 646.618 is amended to read:
646.618. (1) When it appears to the prosecuting attorney that a
person has engaged in, is engaging in, or is about to engage in
any act or practice declared to be unlawful by ORS 646.607 or
646.608, the prosecuting attorney may execute in writing and
cause to be served an investigative demand upon any person who is
believed to have information, documentary material or physical
evidence relevant to the alleged or suspected violation. The
investigative demand shall require such person, under oath or
otherwise, to appear and testify, to answer written
interrogatories, or to produce relevant documentary material or
physical evidence for examination, at such reasonable time and
place as may be stated in the investigative demand, or to do any
of the foregoing, concerning conduct of any trade or commerce
which is the subject matter of the investigation.
(2) At any time before the return date specified in an
investigative demand, or within 20 days after the demand has been
served, whichever period is shorter, a petition to extend the
return date, or to modify or set aside the demand, stating good
cause including privileged material, may be filed in the
appropriate court.
{ + (3) A proceeding commenced pursuant to this section does
not constitute a special statutory proceeding under ORS 19.205
(4). An appellate court may review an order issued by a trial
court pursuant to this section only upon a final adjudication of
an action under ORS 646.605 to 646.652. + }
SECTION 2. ORS 646.626 is amended to read:
646.626. (1) If any person after being served with an
investigative demand under ORS 646.622, fails or refuses to obey
an investigative demand { - issued by the prosecuting attorney,
the prosecuting attorney may, after notice, apply to an
appropriate court and, after hearing thereon, request - } { + ,
the court, upon motion of the prosecuting attorney and after
notice to the person and a hearing, shall issue + } an order:
{ + (a) Compelling compliance with the demand; + }
{ - (a) - } { + (b) + } Granting injunctive relief to
restrain the person from engaging in conduct of any aspect of the
trade or commerce that is involved in the alleged or suspected
violation; { + or + }
{ - (b) - } { + (c) + } Granting such other relief as may
be required, until the person obeys the { - investigative - }
demand.
(2) Any disobedience of any final order of a court under this
section shall be punished as a contempt of court.
SECTION 3. ORS 646.638 is amended to read:
646.638. (1) Except as provided in subsection (8) of this
section, any person who suffers any ascertainable loss of money
or property, real or personal, as a result of willful use or
employment by another person of a method, act or practice
declared unlawful by ORS { + 646.607 or + } 646.608 { - , - }
may bring an individual action in an appropriate court to recover
actual damages or { - $200 - } { + $500 + }, whichever is
greater. { + If the plaintiff has suffered an ascertainable
loss, + } the court or the jury, as the case may be, may award
punitive damages { + . Whether or not the court or the jury
awards damages, + } { - and - } the court may provide
{ - such - } { + any + } equitable relief { + to a prevailing
plaintiff + } { - as it deems - } { + 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
mail a copy of the complaint or other initial pleading to the
Attorney General and, upon entry of any judgment or decree in the
action, shall mail a copy of such judgment or decree to the
Attorney General. Failure to mail a copy of the complaint shall
not be a jurisdictional defect, but no judgment shall be entered
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) Except as provided in subsection (4) of this section,
the court may award reasonable attorney fees to the prevailing
party in an action under this section. - }
{ + (3) In addition to any equitable relief provided under
this section, the court shall award to a prevailing plaintiff
reasonable attorney fees and costs, at trial and on appeal or
review. The court may award a prevailing defendant reasonable
attorney fees and costs, at trial and on appeal or review, only
if the court finds that the action under this section was
frivolous. + }
(4) The court may not award attorney fees { + or costs + } 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 shall be prima facie
evidence in an action brought under this section that the
respondent used or employed a method, act or practice declared
unlawful by ORS { + 646.607 or + } 646.608, but an assurance of
voluntary compliance, whether or not approved by the court, shall
not be evidence of such violation.
(6) Actions brought under this section shall be commenced
within one year from the discovery of the unlawful method, act or
practice. However, whenever any complaint is filed by a
prosecuting attorney to prevent, restrain or punish violations of
ORS { + 646.607 or + } 646.608, running of the statute of
limitations with respect to every private right of action under
this section and based in whole or in part on any matter
complained of in said proceeding shall be suspended during the
pendency thereof.
(7) Notwithstanding subsection (6) of this section, in any
action brought by a seller or lessor against a purchaser or
lessee of real estate, goods or services, { - such - }
{ + the + } purchaser or lessee may assert any counterclaim the
purchaser or lessee has arising out of a violation of ORS 646.605
to 646.652. { + If a purchaser or a lessee prevails on a
counterclaim under this subsection, the court shall award the
purchaser or the lessee reasonable attorney fees and costs on the
counterclaim as provided in subsection (3) of this section. + }
(8) This section does not apply to any method, act or practice
described in ORS 646.608 (1)(w). Actions for violation of laws
relating to odometers are provided under ORS 815.410 and 815.415.
SECTION 4. ORS 646.750 is amended to read:
646.750. (1) When it appears to the Attorney General that a
person has engaged in, is engaging in { - , - } or is about to
engage in any act or practice declared to be unlawful by ORS
646.725 or 646.730, the Attorney General may execute in writing
and cause to be served an investigative demand upon any person
who is believed to have documentary material or information
relevant to the alleged or suspected violation. The investigative
demand shall require such person to produce relevant documentary
material for examination and copying or reproduction, to answer
in writing written interrogatories, to give oral testimony
concerning documentary material or information, or to furnish any
combination of such material, answers or testimony under penalty
of perjury, at such reasonable time and place as may be stated in
the investigative demand.
(2) At any time before the return day specified in the
investigative demand, or within 20 days after the demand has been
served { + , + } whichever time is shorter, a petition to extend
the return date, or to modify or set aside the demand, stating
good cause, may be filed in the appropriate court.
{ + (3) A proceeding commenced pursuant to this section does
not constitute a special statutory proceeding under ORS 19.205
(4). An appellate court may review an order issued by a trial
court pursuant to this section only upon a final adjudication of
an action under ORS 646.705 to 646.805. + }
{ - (3) - } { + (4) + } The investigative demand shall
state the nature of the conduct constituting the alleged
antitrust violation under investigation and the provisions of law
believed to be applicable thereto.
SECTION 5. { + Section 6 of this 2001 Act is added to and made
a part of ORS 646.705 to 646.805. + }
SECTION 6. { + (1) If a person served with an investigative
demand under ORS 646.750 fails or refuses to obey the demand, the
court, upon motion of the Attorney General and after notice to
the person and a hearing, shall issue an order:
(a) Compelling compliance with the demand;
(b) Granting injunctive relief to restrain the person from
engaging in conduct of any aspect of the trade or commerce that
is involved in the alleged or suspected violation; or
(c) Granting such other relief as may be required until the
person obeys the demand.
(2) A court shall punish disobedience of a final order of a
court under this section as a contempt of court. + }
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