75th OREGON LEGISLATIVE ASSEMBLY--2009 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 3403
 
                         House Bill 3111
 
Sponsored by Representatives KAHL, RICHARDSON; Representative
  BARTON
 
 
                             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.
 
  Restricts award of attorney fees in civil action brought by
private party to prevailing plaintiff unless action is frivolous.
Increases minimum amount of damages.
 
                        A BILL FOR 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 - }  { +  $500 + }, 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 - }  { +  a prevailing plaintiff + } in
an action under this section. { +  The court may award reasonable
attorney fees to a prevailing defendant only if it finds the
action to have been frivolous. As used in this subsection,
'frivolous' means the action is not supported by substantial
evidence or is filed without reasonable prospect of
prevailing. + }
  (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.
  (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.
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