H. B. 4340
(By Delegate Williams (By Request))
[Introduced January 30, 2008; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §46A-6-101, §46A-6-105 and §46A-6-106
of the Code of West Virginia, 1931, as amended, all relating
to clarification of West Virginia's consumer protection law;
providing for statement of legislative intent; providing
exemption for matters regulated by the Federal Trade
Commission; providing standards for actions by consumers;
providing for jury trials; and providing for effective date.
Be it enacted by the Legislature of West Virginia:
That §46A-6-101, §46A-6-105 and §46A-6-106 of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:
ARTICLE 6. GENERAL CONSUMER PROTECTION.
§46A-6-101. Legislative declarations; statutory construction.
(1) The Legislature hereby declares that the purpose of this
article is to complement the body of federal law governing unfair competition and unfair, deceptive and fraudulent acts or practices
in order to protect the public and foster fair and honest
competition. It is the intent of the Legislature that, in
construing this article, the courts be guided by the interpretation
given by the federal courts to the various federal statutes dealing
with the same or similar matters. To this end, this article shall
be liberally construed so that its beneficial purposes may be
served.
(2) It is the intent of the Legislature that in construing
this article, courts shall be guided by the policies of the Federal
Trade Commission and the interpretations given by both the Federal
Trade Commission and the federal courts as to Section 5(a)(1) of
the Federal Trade Commission Act, as amended.
(2) (3) It is, however, the further intent of the Legislature
that this article shall not be construed to prohibit acts or
practices which are reasonable in relation to the development and
preservation of business or which are not injurious to the public
interest, nor shall this article be construed to repeal by
implication the provisions of articles eleven, eleven-a and
eleven-b, chapter forty-seven of this code.
§46A-6-105. Exempted transactions.
(1) Nothing in this article applies to actions or transactions
otherwise permitted or regulated by the Federal Trade Commission or
any other regulatory body or officer acting under statutory authority of this State or the United States.
(2) Nothing in this article shall apply to acts done by the
publisher, owner, agent or employee of a newspaper, periodical or
radio or television station in the publication or dissemination of
an advertisement, when the owner, agent or employee did not have
knowledge of the false, misleading or deceptive character of the
advertisement, did not prepare the advertisement and did not have
a direct financial interest in the sale or distribution of the
advertised goods or services.
§46A-6-106. Actions by consumers.
(a)
Any Subject to subdivisions (b) and (c) of this section,
any person who
purchases or leases goods or services and thereby
suffers any ascertainable loss of money or property, real or
personal suffers loss, as a result of the use or employment by
another person of a method, act or practice prohibited or declared
to be unlawful by the provisions of this article may bring an
action in the circuit court of the county in which the seller or
lessor resides or has his
or her principal place of business or is
doing business, or as provided
for in sections one and two, article
one, chapter fifty-six of this code, to recover
actual damages
damages in the amount of actual out of pocket loss or two hundred
dollars, whichever is greater. The court may, in its discretion,
provide such equitable relief as it deems necessary or proper.
(b) Civil actions pursuant to subdivision (a) for violations of this article may be brought only by natural persons who purchase
or lease goods, services or real estate for personal, family or
household purposes. Each such person seeking to recover damages
for violations of this article is required to prove on an
individual basis that the deceptive act or practice caused the
person to enter into the transaction that resulted in the damages.
No award of damages in an action covered by this subdivision may be
made without proof that the person seeking damages suffered an
actual out of pocket loss. The term "out of pocket loss" means an
amount paid by the consumer for the goods or service and the actual
market value of the goods or service that the consumer actually
recieved. Any party to an action for damages under subdivision (a)
shall have the right to demand a jury trial.
(b) (c) Notwithstanding the provisions of subsection (a)
and
(b) of this section, no action may be brought pursuant to the
provisions of this section until the consumer has informed the
seller or lessor in writing and by certified mail of the alleged
violation and provided the seller or lessor twenty days from
receipt of the notice of violation to make a cure offer:
Provided,
That the consumer shall have ten days from receipt of the cure
offer to accept the cure offer or it is deemed refused and
withdrawn.
(c) (d) If a cure offer is accepted, the seller or lessor
shall have ten days to begin effectuating the agreed upon cure and such must be completed within a reasonable time.
(d) (e) Any applicable statute of limitations shall be tolled
for the twenty-day period set forth in subsection (b) of this
section or for the period of time the effectuation of the cure
offer is being performed, whichever is longer.
(e) (f) Nothing in this section shall be construed to prevent
a consumer that has accepted a cure offer from bringing a civil
action against a seller or lessor for failing to timely effect such
cure offer.
(f) (g) Any permanent injunction, judgment or order of the
court under section one hundred eight, article seven of this
chapter for a violation of section one hundred four of this article
shall be prima facie evidence in an action brought pursuant to the
provisions of this section that the respondent used or employed a
method, act or practice declared unlawful by section one hundred
four of this article.
(g) (h) Where an action is brought pursuant to the provisions
of this section, it shall be a complete defense that a cure offer
was made, accepted and the agreed upon cure was performed. If the
finder of fact determines that the cure offer was accepted and the
agreed upon cure performed, the seller or lessor shall be entitled
to reasonable attorney's fees and costs attendant to defending the
action.
(h) (i) No cure offer shall be admissible in any proceeding initiated pursuant to the provisions of this article unless the
cure offer is delivered by a seller or lessor to the person
claiming loss or to any attorney representing such person prior to
the filing of the seller or lessee's initial responsive pleading in
such proceeding. If the cure offer is timely delivered by the
seller or lessor, then the seller or lessee may introduce the cure
offer into evidence at trial. The seller or lessor shall not be
liable for such person's attorney's fees and court costs incurred
following delivery of the cure offer unless the actual damages
found to have been sustained and awarded, without consideration of
attorney's fees and court costs, exceed the value of the cure
offer.
(j) The amendments to this article adopted during the two
thousand eight regular session of the Legislature shall take effect
on the effective date of those amendments and shall apply to all
cases pending on or filled on or after the effective date.
NOTE: The purpose of this bill is to clarify West Virginia's
consumer protection law; provide for statement of legislative
intent; provide exemption for matters regulated by the Federal
Trade Commission; provide standards for actions by consumers;
provide for jury trials; and establish an effective date.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.