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 2873
Senate Bill 797
Sponsored by Senator WALKER, Representative BARKER
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.
Changes name of Consumer Protection and Education Revolving
Account to Department of Justice Protection and Education
Revolving Account. Expands use of account to include payment of
Department of Justice costs attributable to actions and suits
under state and federal civil rights laws and criminal
prosecutions under state environmental laws.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to Department of Justice; amending ORS 180.095, 180.180,
646.775 and 646A.284; appropriating money; and declaring an
emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. 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) 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. All moneys in such revolving account
are appropriated and constitute a continuous appropriation out of
the General Fund for the purposes of this section. The creation
of the revolving account shall not require an allotment or
allocation of moneys pursuant to ORS 291.234 to 291.260. - }
{ + (1) The Department of Justice Protection and Education
Revolving Account is created in the General Fund. All moneys in
the account are continuously appropriated to the Department of
Justice and may be used only 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 in investigating, preparing, commencing and
prosecuting:
(a) Actions and suits under the state and federal antitrust
laws;
(b) Actions and suits under ORS 646.605 to 646.656;
(c) Actions and suits under state and federal civil rights
laws; and
(d) Criminal prosecutions under state and federal environmental
laws.
(2) Moneys in the Department of Justice Protection and
Education Revolving Account are not subject to allotment. Upon
request of the Attorney General, the State Treasurer shall create
subaccounts within the account for the purpose of managing moneys
in the account and allocating those moneys to the enforcement
activities described in subsection (1) of this section. + }
(3) { + Except as provided in subsection (4) of this
section, + } 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 { - actions and suits under the state and
federal antitrust laws and ORS 646.605 to 646.656 - } { +
proceedings described in subsection (1) of this section + }
shall, upon receipt, be deposited with the State Treasurer to the
credit of the { - Consumer - } { + Department of Justice + }
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 - } { + Department of Justice + } Protection and
Education Revolving Account.
{ + (4) The Department of Justice shall not deposit amounts
recovered as consumer refunds or restitution under ORS 646.605 to
646.656 in the Department of Justice Protection and Education
Revolving Account. + }
SECTION 2. ORS 180.180 is amended to read:
180.180. (1) The Department of Justice Operating Account is
created { + in the General Fund + }. Moneys credited to the
account are continuously appropriated for the purpose of paying
expenses incurred by the Department of Justice, including those
incurred by the Division of Child Support, but not including
expenses described in ORS 180.095, that are reimbursable from the
{ - Consumer - } { + Department of Justice + } Protection and
Education Revolving Account.
(2) All moneys received by the Department of Justice pursuant
to its activities, except those received and creditable to the
{ - Consumer - } { + Department of Justice + } Protection and
Education Revolving Account, shall be deposited in the State
Treasury to the credit of the Department of Justice Operating
Account.
(3) Subaccounts may be used in the Department of Justice
Operating Account whenever the Department of Justice determines
that operating needs of the department so require.
(4) In order to facilitate financing the operating expenses of
the Department of Justice described in subsection (1) of this
section, the Department of Justice may at any time during the
biennium transfer to the Department of Justice Operating Account
with the approval of the Director of the Oregon Department of
Administrative Services such funds as it considers necessary, not
to exceed $800,000, from funds duly appropriated to the
Department of Justice for a biennial period. Such funds so
transferred shall be retransferred from the Department of Justice
Operating Account to the appropriation from which the original
transfer was made. The retransfers shall be accomplished prior
to the last day of each biennial period.
SECTION 3. ORS 646A.284 is amended to read:
646A.284. (1) The Attorney General shall have a cause of action
against any person who violates ORS 646A.282.
(2) If the Attorney General prevails, the court shall enter
judgment against the defendant for:
(a) Each simulated invoice uttered in this state, for the
greater of:
(A) Three times the amount stated in the simulated invoice; or
(B) $500;
(b) Such orders or judgments as may be necessary to restore to
any person any moneys of which the person was deprived by any
conduct in violation of ORS 646A.282; and
(c) Such orders or judgments as may be necessary to ensure
cessation of conduct in violation of ORS 646A.282.
(3) The court may award reasonable attorney fees to the
prevailing party in an action under this section.
(4) All sums of money received by the Department of Justice
under a judgment, settlement or compromise in an action or
potential action brought under this section, shall, upon receipt,
be deposited with the State Treasurer to the credit of the
{ - Consumer - } { + Department of Justice + } Protection and
Education Revolving Account established pursuant to ORS 180.095.
SECTION 4. ORS 646.775 is amended to read:
646.775. (1)(a) The Attorney General may bring a civil action
in the name of the State of Oregon, on behalf of a political
subdivision in this state or as parens patriae on behalf of a
natural person, in any circuit court in which venue is proper
under ORS 646.790, to secure equitable and monetary relief as
provided in this section for injury sustained by the natural
person or political subdivision to the natural person's or
political subdivision's property by reason of a violation of ORS
646.725 or 646.730. The Attorney General may bring the action
authorized by this paragraph regardless of whether the natural
person or political subdivision dealt directly or indirectly with
the adverse party.
(b) The court shall exclude from the amount of monetary relief
awarded in an action pursuant to paragraph (a) of this subsection
any amount of monetary relief:
(A) That duplicates amounts that have been awarded for the same
injury; or
(B) That is properly allocable to natural persons who have
excluded their claims pursuant to subsection (2)(b) of this
section, or to any business entity.
(c)(A) Subject to paragraph (b) of this subsection, the court
shall award the state as monetary relief three times the total
damages sustained by natural persons and political subdivisions
and the costs the state incurs in the action.
(B) The court may award reasonable attorney fees to the
Attorney General if the Attorney General prevails in an action
under this section.
(C) The court may award reasonable attorney fees 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 asserting the claim or no reasonable basis
for appealing an adverse decision of the trial court.
(d) Notwithstanding paragraph (c) of this subsection, the court
shall award the state only the actual damages sustained by
natural persons and political subdivisions in an action in which:
(A) The Attorney General prevails solely on the basis of a
judgment entered in a proceeding under 15 U.S.C. 1 to 45 or in
another action by the state under ORS 646.760, 646.770 or
646.780, used as collateral estoppel against the defendant under
ORS 646.805; or
(B) The natural person or political subdivision dealt
indirectly with the adverse party and the Attorney General
establishes a violation other than a per se violation of ORS
646.725.
(2)(a) In any action pursuant to subsection (1)(a) of this
section, the Attorney General shall, at the times, in the manner
and with the content the court directs, give notice by
publication. If the court finds that notice given solely by
publication would deny due process of law to a natural person or
political subdivision, the court may direct further notice to the
natural person or political subdivision according to the
circumstances of the case.
(b) Any natural person or political subdivision on whose behalf
an action is brought pursuant to subsection (1)(a) of this
section may elect to exclude from adjudication the portion of the
claim for monetary relief attributable to the natural person or
political subdivision by filing notice of the election with the
court within the time specified in the notice given pursuant to
paragraph (a) of this subsection.
(c) The final judgment in an action pursuant to subsection
(1)(a) of this section shall be res judicata as to any claim
under this section by any natural person or political subdivision
on behalf of whom such action was brought and who fails to give
the notice specified in paragraph (b) of this subsection within
the period specified in the notice given pursuant to paragraph
(a) of this subsection.
(3) An action pursuant to subsection (1)(a) of this section
shall not be dismissed or compromised without the approval of the
court, and the notice of any proposed dismissal or compromise
shall be given in the manner the court directs.
(4) In any action pursuant to subsection (1)(a) of this section
in which there has been a determination that a defendant agreed
to fix prices in violation of ORS 646.725, damages may be proved
and assessed in the aggregate by statistical or sampling methods,
by the computation and pro rata allocation of illegal
overcharges, or by any other reasonable system of estimating
aggregate damages as the court in its discretion may permit
without the necessity of separately proving the individual claim
of, or amount of damage to, natural persons or political
subdivisions on whose behalf the suit was brought.
(5)(a) Monetary relief recovered in an action pursuant to
subsection (1)(a) of this section shall be distributed in the
manner the court in its discretion may authorize, subject to the
requirement that any distribution procedure adopted afford each
natural person or political subdivision on whose behalf the suit
was brought a reasonable opportunity to secure an appropriate
portion of the net monetary relief.
(b) The Attorney General shall deposit that portion of the
monetary relief awarded by the court as costs of suit and a
reasonable attorney fee in the { - Consumer - }
{ + Department of Justice + } Protection and Education Revolving
Account established pursuant to ORS 180.095.
(c) To the extent that the monetary relief awarded by the court
is not exhausted by distribution pursuant to paragraphs (a) and
(b) of this subsection, the remaining funds shall be deemed a
civil penalty by the court and assessed as such for the benefit
of the state pursuant to ORS 646.760.
(6) The powers granted in this section are in addition to and
not in derogation of the common law powers of the Attorney
General to act as parens patriae, or the powers of the Attorney
General to sue as a representative party on behalf of a class
pursuant to ORCP 32.
SECTION 5. { + This 2009 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2009 Act takes effect on its
passage. + }
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