Bill Text: IL HB4676 | 2011-2012 | 97th General Assembly | Introduced

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Bill Title: Creates the Consumer Remedies Protection Act. Provides that consumer adhesion contracts are void as a matter of public policy. Creates a private right of action for consumers whose rights are violated. Authorizes recovery of actual and statutory damages in addition to attorney's fees and costs. Defines terms.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Failed) 2013-01-08 - Session Sine Die [HB4676 Detail]

Download: Illinois-2011-HB4676-Introduced.html

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97TH GENERAL ASSEMBLY State of Illinois 2011 and 2012 HB4676 Introduced , by Rep. Esther Golar SYNOPSIS AS INTRODUCED:
New Act
Creates the Consumer Remedies Protection Act. Provides that consumer adhesion contracts are void as a matter of public policy. Creates a private right of action for consumers whose rights are violated. Authorizes recovery of actual and statutory damages in addition to attorney's fees and costs. Defines terms.
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A BILL FOR
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AN ACT concerning business.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 1. Short title. This Act may be cited as the
Consumer Remedies Protection Act.
Section 5. Purpose, findings, and conclusion.
(a) This Act shall be broadly construed to effect its
purposes.
(b) The General Assembly finds that:
(1) for many important goods and services consumers are
unable to purchase any variant of that good or service
without being forced to waive important legal rights;
(2) adequate remedies for consumers provide an
essential deterrent effect to prevent widespread consumer
harm;
(3) consumer adhesion contracts severely limit the
ability of consumers to seek adequate legal recourse when
harmed;
(4) companies often use unenforceable exculpatory
clauses as a means to deter consumers from bringing valid
claims, including by increasing the cost to consumers of
vindicating their legal rights; and
(5) consumers currently lack an economically viable

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method for pursuing recourse when faced with small damages.
(c) The General Assembly concludes that this Act is
necessary to prevent the authors of consumer adhesion contracts
from immunizing themselves from liability for widespread
consumer harm.
(d) One of the fundamental public policies of this State is
to protect consumers from widespread harm, and this Act shall
further that policy.
Section 10. Definitions.
"Consumer" means an individual who uses, purchases,
acquires, attempts to purchase or acquire, or is offered or
furnished goods or services, in part or in whole, for personal,
family, or household purposes.
"Consumer adhesion contract" means any form or standard
contract with terms and conditions drafted by the non-consumer
party, presented to consumers without the possibility for
meaningful negotiation of terms.
"Limiting clause" means any contractual provision
purporting to limit the scope, nature, and effect of remedies
available to consumers. "Limiting clause" shall be interpreted
broadly, and shall include, but is not confined to, clauses
specifying: forum selection, choice of law, waiver or
limitation of liability, mandatory arbitration, class action
waiver, and limitation on damages.
"Prima facie demonstration" means the production of enough

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evidence to allow the trier of fact to infer the fact at issue
and rule in that party's favor without consideration of
rebuttal evidence.
"Public injury" means an action with injurious effect that
is:
(1) a violation of a statute that has public interest
impact;
(2) applied repeatedly to a particular consumer; or
(3) aimed at or affects consumers generally.
"Substantially superior bargaining power" means the
ability to draft the terms and conditions of the consumer
adhesion contract and present the contract to consumers without
the realistic possibility for negotiation of terms.
Section 15. Consumer Contracts.
(a) In a dispute arising out of a consumer adhesion
contract, when a party makes a good faith, prima facie
demonstration that a party to the contract with substantially
superior bargaining power has caused public injury, the
consumer adhesion contract at issue shall be presumed void as a
matter of public policy.
(b) In a dispute arising out of a consumer adhesion
contract, when it is established that a party to the contract
with substantially superior bargaining power has caused public
injury, the consumer adhesion contract at issue shall be
declared void as a matter of public policy.

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(c) Any limiting clause in a consumer adhesion contract
that, if enforced, would result, on its face or in practice, in
a consumer having no practical and meaningful remedy shall be
void.
Section 20. Private right of action.
(a) A consumer whose rights under this Act are violated may
bring an action against any party benefitting from the illegal
consumer adhesion contract.
(b) Upon a finding that a consumer adhesion contract or
clause therein is void under to this Act, all consumers subject
to the consumer adhesion contract shall be entitled to the
greater of:
(1) the consumer's actual damages; or
(2) statutory damages of $10 each, subject to Section
25 of this Act.
(c) A consumer who prevails in any action brought under to
this Act shall be entitled to his or her reasonable attorney's
fees and costs.
Section 25. Safe harbor. If a party, within 30 days after
the initiation of an action, waives those contractual
provisions made unlawful under this Act, the statutory damages
prescribed in subsection (b) of Section 20 shall not be
awarded. For purposes of this Section, the initiation of an
action includes the filing of a court case, the initiation of

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arbitration, or a formal demand to waive the offending
contractual provisions.
Section 30. Construction. Nothing in this Act shall be
construed to limit any other consumer right under state or
federal law.
Section 35. Severability. The provisions of this Act are
severable under Section 1.31 of the Statute on Statutes.