75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
 
 
                            Enrolled
 
                         House Bill 3111
 
Sponsored by Representatives KAHL, RICHARDSON; Representative
  BARTON
 
 
                     CHAPTER ................
 
 
                             AN ACT
 
 
Relating to unlawful trade practice cases; amending ORS 646.638.
 
Be It Enacted by the People of the State of Oregon:
 
  SECTION 1. 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 646.608, 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 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. - }
   { +  (3) The court may award reasonable attorney fees and
costs at trial and on appeal to a prevailing plaintiff in an
action under this section. The court may award reasonable
attorney fees and costs at trial and on appeal to a prevailing
defendant only if the court finds there was no objectively
reasonable basis for bringing the action or asserting the ground
for appeal. + }
  (4) 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, but an assurance of voluntary compliance, whether or not
approved by the court, shall not be evidence of the violation.
 
 
Enrolled House Bill 3111 (HB 3111-A)                       Page 1
 
 
 
  (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, 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, 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 any 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.
                         ----------
 
 
Passed by House April 23, 2009
 
 
      ...........................................................
                                             Chief Clerk of House
 
      ...........................................................
                                                 Speaker of House
 
Passed by Senate May 26, 2009
 
 
      ...........................................................
                                              President of Senate
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Enrolled House Bill 3111 (HB 3111-A)                       Page 2
 
 
 
 
 
Received by Governor:
 
......M.,............., 2009
 
Approved:
 
......M.,............., 2009
 
 
      ...........................................................
                                                         Governor
 
Filed in Office of Secretary of State:
 
......M.,............., 2009
 
 
      ...........................................................
                                               Secretary of State
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Enrolled House Bill 3111 (HB 3111-A)                       Page 3