72nd OREGON LEGISLATIVE ASSEMBLY--2003 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 441
A-Engrossed
Senate Bill 27
Ordered by the Senate May 12
Including Senate Amendments dated May 12
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Joint Interim Committee on
Judiciary for Oregon State Bar Consumer Law Committee)
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.
{ - Provides person with claim for damages for unconscionable
tactic. Increases amount of damages recoverable for unlawful
trade practice. Modifies conditions for awards of attorney fees
in claims for unlawful trade practice. - }
{ + Adds solicitation by facsimile machine to definition of
telephone solicitation.
Allows businesses to participate in Oregon's No Call
program. + }
A BILL FOR AN ACT
Relating to remedies for unlawful trade practices; amending ORS
646.567 and 646.638.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 646.567 is amended to read:
646.567. As used in ORS 646.567 to 646.578, unless the context
otherwise requires:
(1) 'Charitable organization' means an organization organized
for charitable purposes as defined in ORS 128.801.
{ + (2) 'Facsimile machine' has the meaning given that term
in ORS 646.872. + }
{ - (2) - } { + (3) + } 'Information about a party' means
information specific to a party, including but not limited to the
name and
{ - residence - } address of the party and the method by which
the party paid the fee required by ORS 646.574.
{ - (3) - } { + (4) + } 'Party' means a
{ - residential - } telephone customer of a telecommunications
company.
{ - (4) - } { + (5) + } 'Qualified trade association' means
an organization with at least the following characteristics:
(a) Written bylaws or governing documents including a code of
conduct for its members; and
(b) Criteria and procedures for expelling or suspending members
who violate the association's bylaws or governing documents.
{ - (5) - } { + (6) + } 'Telephone solicitation' means the
solicitation by telephone { + or facsimile machine + } by any
person of a party { - at the residence of the party - } for
the purpose of encouraging the party to purchase property, goods
or services, or make a donation. ' Telephone solicitation' does
not include:
(a) Calls made in response to a request or inquiry by the
called party;
(b) Calls made by a charitable organization, a public agency or
volunteers on behalf of { - the - } { + an + } organization
or agency to members of the organization or agency or to persons
who have donated or expressed an interest in donating goods,
services or real estate;
(c) Calls limited to polling or soliciting the expression of
ideas, opinions or votes; or
(d) { - Business to - } { + Calls to a + } business
{ - contacts - } { + for the purpose of encouraging the
business to purchase the caller's property, goods or
services + }.
SECTION 2. ORS 646.638 is amended to read:
646.638. (1) Except as provided in subsection (8) of this
section, { - any - } { + a + } person who suffers
{ - any - } { + an + } 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 646.608 or 646.648, may bring an
individual action in an appropriate court to recover actual
damages or $200, whichever is greater. 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 - } { + an + } 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
in the action, shall mail a copy of the judgment to the Attorney
General. Failure to mail a copy of the complaint shall not be 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) 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.
(4) { + If the plaintiff maintained the action under this
section as a class action under ORCP 32, + } 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 ORS
646.608 or 646.648, but an assurance of voluntary compliance,
whether or not approved by the court, shall not be evidence of
the 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 646.608 or 646.648, 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 - } { + the + } proceeding shall be suspended during
the pendency { - thereof - } { + of the proceeding + }.
(7) Notwithstanding subsection (6) of this section, in
{ - any - } { + an + } action brought by a seller or lessor
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 out of a violation of ORS 646.605 to
646.652.
(8) This section does not apply to { + :
(a) + } { - Any - } { + A + } method, act or practice
described in ORS 646.608 (1)(z) { - . Actions for violation of
laws relating to odometers are provided under ORS 815.410 and
815.415. - } { + ; or
(b) A violation of ORS 646.608 (1)(ff) that is a business to
business contact. + }
SECTION 3. ORS 646.638, as amended by section 18, chapter 924,
Oregon Laws 2001, is amended to read:
646.638. (1) Except as provided in subsection (8) of this
section, { - any - } { + a + } person who suffers
{ - any - } { + an + } 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 646.608 or 646.648, may bring an
individual action in an appropriate court to recover actual
damages or $200, whichever is greater. 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 - } { + an + } 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
in the action, shall mail a copy of the judgment to the Attorney
General. Failure to mail a copy of the complaint shall not be 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) 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.
(4) { + If the plaintiff maintained the action under this
section as a class action under ORCP 32, + } 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 ORS
646.608 or 646.648, but an assurance of voluntary compliance,
whether or not approved by the court, shall not be evidence of
the 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 646.608 or 646.648, 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 - } { + the + } proceeding shall be suspended during
the pendency { - thereof - } { + of the proceeding + }.
(7) Notwithstanding subsection (6) of this section, in
{ - any - } { + an + } action brought by a seller or lessor
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 out of a violation of ORS 646.605 to
646.652.
(8) This section does not apply to { + :
(a) + } { - Any - } { + A + } method, act or practice
described in ORS 646.608 (1)(aa) { - . Actions for violation of
laws relating to odometers are provided under ORS 815.410 and
815.415. - } { + ; or
(b) A violation of ORS 646.608 (1)(gg) that is a business to
business contact. + }
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