75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
Enrolled
House Bill 2264
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)
CHAPTER ................
AN ACT
Relating to civil actions for certain fraudulent conduct;
creating new provisions; amending ORS 180.095; and
appropriating money.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Definitions. As used in sections 1 to 8 of
this 2009 Act:
(1) 'Claim' means a request or demand made to a public agency,
including a request or demand made pursuant to a contract, that
seeks moneys, property, services or benefits that will be
provided in whole or in part by a public body, whether directly
or through reimbursement of another public agency that provides
the moneys, property, services or benefits.
(2) 'False claim' means a claim that:
(a) Contains, or is based on, false or fraudulent information;
(b) Contains any statement or representation that is untrue in
whole or part; or
(c) Omits information that could have a material effect on the
value, validity or authenticity of the claim.
(3) 'Public agency' means:
(a) A public body;
(b) The United States or a federal agency;
(c) A person who contracts with a public body; or
(d) A person other than an individual who receives a grant from
a public body.
(4) 'Public body' has the meaning given that term in ORS
174.109. + }
SECTION 2. { + Prohibited acts. (1) A person may not:
(a) Present for payment or approval, or cause to be presented
for payment or approval, a claim that the person knows is a false
claim.
(b) In the course of presenting a claim for payment or
approval, make or use, or cause to be made or used, a record or
statement that the person knows to contain, or to be based on,
false or fraudulent information.
(c) Agree or conspire with other persons to present for payment
or approval a claim that the person knows is a false claim.
(d) Deliver, or cause to be delivered, property to a public
agency in an amount the person knows is less than the amount for
which the person receives a certificate or receipt.
Enrolled House Bill 2264 (HB 2264-A) Page 1
(e) Make or deliver a document certifying receipt of property
used by a public agency, or intended to be used by a public
agency, that the person knows contains false or fraudulent
information.
(f) Buy property of a public agency from an officer or employee
of a public agency if the person knows that the officer or
employee is not authorized to sell the property.
(g) Receive property of a public agency from an officer or
employee of the public agency as a pledge of an obligation or
debt if the person knows that the officer or employee is not
authorized to pledge the property.
(h) Make or use, or cause to be made or used, a false or
fraudulent statement to conceal, avoid or decrease an obligation
to pay or transmit moneys or property to a public agency if the
person knows that the statement is false or fraudulent.
(i) Fail to disclose a false claim that benefits the person
within a reasonable time after discovering that the false claim
has been presented or submitted for payment or approval.
(2) For the purposes of this section, a person has knowledge
that a claim, record, statement, document or information is false
or fraudulent if the person:
(a) Has actual knowledge of the false or fraudulent nature of
the claim, record, statement, document or information;
(b) Acts in deliberate ignorance of the false or fraudulent
nature of the claim, record, statement, document or information;
or
(c) Acts in reckless disregard of the false or fraudulent
nature of the claim, record, statement, document or information.
(3) In an action under section 3 of this 2009 Act, the Attorney
General need not prove that a person specifically intended to
defraud a public agency to establish that a person acted with
knowledge as described in subsection (2) of this section. + }
SECTION 3. { + Civil action for violation; remedies. (1) The
Attorney General may bring a civil action in the name of the
State of Oregon against a person who violates section 2 of this
2009 Act. The Attorney General may bring the action in the
Circuit Court for Marion County or in a circuit court in any
county in which part of the conduct that constituted the
violation took place.
(2) Repayment of or intent to repay any amounts obtained by a
person as a result of a violation of section 2 of this 2009 Act
is not a defense in an action under this section.
(3) The fact that a public agency has not paid any amounts to a
person as a result of a violation of section 2 of this 2009 Act
or has not suffered any injury by reason of a violation of
section 2 of this 2009 Act, is not a defense in an action under
this section.
(4) A court shall award to the state all damages arising from a
violation of section 2 of this 2009 Act. In addition, the court
shall award to the state a penalty equal to the greater of
$10,000 for each violation or an amount equal to twice the amount
of damages incurred for each violation. The court may mitigate an
award of a penalty under this subsection based on any fine or
penalty assessed against the defendant for substantially the same
acts or omissions in a judgment under the federal False Claims
Act, 31 U.S.C. 3729, et seq., as in effect on the effective date
of this 2009 Act, or under the federal Civil Monetary Penalty
Law, 42 U.S.C. 1320a-7a, as in effect on the effective date of
this 2009 Act, that is no longer subject to appeal.
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(5) If a court finds that an act or omission of an individual
on behalf of a corporation or other legal entity constitutes a
violation of section 2 of this 2009 Act, the court may find that
both the individual and the legal entity violated section 2 of
this 2009 Act, and impose a separate penalty under subsection (4)
of this section against both the individual and the legal entity.
(6) Notwithstanding subsections (4) and (5) of this section, if
the state prevails in an action under this section, the court may
not award a penalty under subsection (4) of this section if:
(a) The defendant provided the Attorney General with all
information known to the defendant about the violation within 30
days after the defendant first acquired the information;
(b) The defendant fully cooperated with the Attorney General in
the investigation of the violation; and
(c) At the time the defendant provided the Attorney General
with information about the violation, an investigation, court
proceeding or administrative action related to the violation had
not been commenced.
(7) For the purpose of determining the amount of damages under
this section:
(a) The value of property, services or benefits obtained by a
person who makes a claim may be established based on the market
value of property, services or benefits at the time and place of
receipt or delivery of the property, services or benefits.
(b) If the market value of property, services or benefits at
the time and place of receipt or delivery of the property,
services or benefits cannot be reasonably ascertained, the value
of the property, services or benefits may be established based on
the replacement cost of the property, services or benefits.
(c) If a written instrument has no readily ascertainable market
value, the value of the instrument may be established based on
the value determined as provided in ORS 164.115 (2).
(d) The Attorney General may establish damages using
statistical or sampling methodology, or any other system that
reasonably estimates damages incurred, without separately proving
the damages incurred from each violation of section 2 of this
2009 Act.
(8) The court may award reasonable attorney fees and costs of
investigation, preparation and litigation to the state if the
state prevails in an action under this section. The court may
award reasonable attorney fees and costs of investigation,
preparation and litigation 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 bringing
the action or no reasonable basis for appealing an adverse
decision of the trial court. + }
SECTION 4. { + Statute of limitation. An action under section
3 of this 2009 Act must be brought within three years after the
date that the officer or employee of the public agency charged
with responsibility for the claim discovers the violation of
section 2 of this 2009 Act. In no event may an action under
section 3 of this 2009 Act be brought more than 10 years after
the date on which the violation is committed. + }
SECTION 5. { + Estoppel. (1) Any judgment that is no longer
subject to appeal and that was rendered in favor of the state or
of the United States in a criminal proceeding based on conduct
that gives rise to an action under section 3 of this 2009 Act,
whether based on a verdict after trial or upon a plea of guilty
or nolo contendere, estops a defendant in an action under section
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3 of this 2009 Act from denying the elements of the offense for
which the defendant was convicted.
(2) A criminal or administrative action need not be brought
against a person as a condition to bringing an action against the
person under section 3 of this 2009 Act. + }
SECTION 6. { + Investigative demand. (1) If it appears to the
Attorney General that a person has possession, custody or control
of any information, document or other materials that are relevant
to an investigation of a violation of section 2 of this 2009 Act,
or that could lead to the discovery of relevant information in an
investigation of a violation of section 2 of this 2009 Act, the
Attorney General may cause an investigative demand to be served
upon the person. The investigative demand may require the person:
(a) To appear and testify under oath at the time and place
stated in the investigative demand;
(b) To answer written interrogatories; or
(c) To produce relevant documentary material or physical
evidence for examination at the time and place stated in the
investigative demand.
(2) An investigative demand under this section shall be served
in the manner provided by ORS 646.622 and may be enforced in the
manner provided by ORS 646.626. + }
SECTION 7. { + Distribution of recovered amounts. (1) If a
judgment is entered in favor of the state under section 3 of this
2009 Act, the Attorney General shall first apply amounts
collected under the judgment to reimburse the state for the
costs, attorney fees and expenses, including investigative costs,
incurred as a result of the violation of section 2 of this 2009
Act.
(2) After reimbursement under subsection (1) of this section,
amounts collected under the judgment must be paid to any public
agency or fund that suffered a loss by reason of the violation of
section 2 of this 2009 Act.
(3) Any amount remaining after distribution as provided in
subsections (1) and (2) of this section must be deposited in the
Consumer Protection and Education Revolving Account. + }
SECTION 8. { + Remedy not exclusive. The remedies provided
under section 3 of this 2009 Act are in addition to any other
remedy, civil or criminal, that may be available under any other
provision of law. Claims based on remedies available under other
provisions of law may be joined in an action under section 3 of
this 2009 Act. + }
SECTION 9. { + Applicability. Section 2 of this 2009 Act
applies only to conduct that occurs on or after the effective
date of this 2009 Act. + }
SECTION 10. ORS 180.095 is amended to read:
180.095. { - (1) There hereby is appropriated out of the
General Fund in the State Treasury $250,000 for the purpose of
providing funds to pay for personal services, travel, meals and
lodging, and all costs, disbursements and other litigation
expenses incurred by the Department of Justice in preparing,
commencing and prosecuting actions and suits under the state and
federal antitrust laws and under ORS 646.605 to 646.656. - }
{ - (2) - } { + (1) + } { - The money appropriated by
subsection (1) of this section shall be transferred to an account
in the General Fund in the State Treasury to be known as - } The
Consumer Protection and Education Revolving Account { + is
created in the General Fund + }. All moneys in { - such
revolving - } { + the + } account are { + continuously + }
appropriated { - and constitute a continuous appropriation out
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of the General Fund - } { + to the Department of Justice + }
for the { - purposes of this section - } { + purpose of
providing funds to pay the costs of personal services, travel,
meals and lodging, and all costs, disbursements and other
litigation expenses, incurred by the department in preparing,
commencing and prosecuting actions and suits under sections 1 to
8 of this 2009 Act, under the state and federal antitrust laws
and under ORS 646.605 to 646.656 + }. { - The creation of the
revolving account shall - } { + Expenditure of amounts from the
account does + } not require an allotment or allocation of moneys
{ - pursuant to - } { + under + } ORS 291.234 to 291.260.
{ - (3) - } { + (2) + } All sums of money received by the
Department of Justice under a judgment, settlement, compromise or
assurance of voluntary compliance, including damages, attorney
fees, costs, disbursements and other recoveries, but excluding
civil penalties under ORS 646.642, { + in civil actions under
sections 1 to 8 of this 2009 Act and + } in actions and suits
under the state and federal antitrust laws and ORS 646.605 to
646.656 shall, upon receipt, be deposited with the State
Treasurer to the credit of the Consumer Protection and Education
Revolving Account. However, if the action or suit was based on an
expenditure or loss from a public body or a dedicated fund, the
amount of such expenditure or loss, after deduction of attorney
fees and expenses awarded to the Department of Justice by the
court or agreed to by the parties, if any, shall be credited to
the public body or dedicated fund and the remainder thereof
credited to the Consumer Protection and Education Revolving
Account.
SECTION 11. { + The section captions used in this 2009 Act are
provided only for the convenience of the reader and do not become
part of the statutory law of this state or express any
legislative intent in the enactment of this 2009 Act. + }
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Passed by House April 29, 2009
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate June 1, 2009
...........................................................
President of Senate
Enrolled House Bill 2264 (HB 2264-A) Page 5
Received by Governor:
......M.,............., 2009
Approved:
......M.,............., 2009
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2009
...........................................................
Secretary of State
Enrolled House Bill 2264 (HB 2264-A) Page 6