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Introduced Version House Bill 4340 History

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Key: Green = existing Code. Red = new code to be enacted
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.
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