Bill Text: OH HB529 | 2009-2010 | 128th General Assembly | Introduced
Bill Title: To require a supplier in certain consumer transactions to obtain express written authorization from a consumer before charging the consumer's account.
Spectrum: Strong Partisan Bill (Democrat 19-1)
Status: (Introduced - Dead) 2010-05-24 - To Consumer Affairs & Economic Protection [HB529 Detail]
Download: Ohio-2009-HB529-Introduced.html
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Representative DeGeeter
Cosponsors:
Representatives Hagan, Garland, Murray, Williams, B., Lundy, Fende, Dodd, Foley, Phillips, Chandler, Yuko, Winburn, Slesnick, Letson, Patten, Domenick, Weddington, Pryor, Newcomb
To amend sections 1345.07, 1345.09, and 1345.10 and | 1 |
to enact section 1345.022 of the Revised Code to | 2 |
require a supplier in certain consumer | 3 |
transactions to obtain express written | 4 |
authorization from a consumer before charging the | 5 |
consumer's account. | 6 |
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 1345.07, 1345.09, and 1345.10 be | 7 |
amended and section 1345.022 of the Revised Code be enacted to | 8 |
read as follows: | 9 |
Sec. 1345.022. (A) No supplier who is engaged in a consumer | 10 |
transaction involving an unsolicited offer for goods, services, or | 11 |
memberships shall cause billing information to be submitted for | 12 |
the payment of those goods, services, or memberships, directly or | 13 |
indirectly, without first obtaining express written authorization | 14 |
from the consumer. | 15 |
(B)(1) The express written authorization required under | 16 |
division (A) of this section shall be signed by the consumer and | 17 |
shall include all of the following information in at least a | 18 |
ten-point font size: | 19 |
(a) The name of the supplier; | 20 |
(b) The address and telephone number at which personal or | 21 |
voice contact with an employee or agent of the supplier may be | 22 |
made during normal business hours; | 23 |
(c) An itemized list of all prices or fees that will be | 24 |
assessed against the consumer as part of the transaction, | 25 |
including any shipping, handling, delivery, or other charges; | 26 |
(d) The date of the transaction or the date upon which the | 27 |
consumer's account will be charged; | 28 |
(e) The last four digits of the account number to be charged; | 29 |
(f) A detailed description of the goods, services, or | 30 |
memberships that are the subject of the transaction; | 31 |
(g) All material terms and conditions of the supplier's | 32 |
policies regarding refunds, cancellations, exchanges, or | 33 |
repurchases; | 34 |
(h) The consumer's express consent to be charged for the | 35 |
goods, services, or memberships that are the subject of the | 36 |
transaction. | 37 |
(2) A consumer's acceptance under the terms of a negative | 38 |
option offer or free-to-pay conversion offer, or the supplier's | 39 |
use of pre-acquired account information or express written | 40 |
authorization that was obtained for a previous transaction, shall | 41 |
not constitute express written authorization for purposes of this | 42 |
section. | 43 |
(C) Each supplier who obtains express written authorization | 44 |
from a consumer under this section shall give the consumer a copy | 45 |
of the signed authorization for the consumer to retain. | 46 |
(D) As used in this section: | 47 |
(1) "Billing information" means any data that enables a | 48 |
person to access any account of a consumer, including a credit | 49 |
card account, checking account, savings account, share account, | 50 |
utility account, mortgage loan account, or any other account. | 51 |
(2) "Free-to-pay conversion offer" means an offer under which | 52 |
the consumer receives a good, service, or membership for free for | 53 |
an initial period and incurs an obligation to pay for the good, | 54 |
service, or membership when the consumer does not take affirmative | 55 |
action to cancel the agreement before the end of the initial | 56 |
period. | 57 |
(3) "Negative option offer" means an offer under which the | 58 |
consumer's silence or failure to take an affirmative action to | 59 |
cancel the agreement or reject the goods, services, or memberships | 60 |
that are the subject of the agreement is interpreted by the seller | 61 |
as acceptance of the offer. | 62 |
(4) "Pre-acquired account information" means any information | 63 |
that enables a supplier to cause a charge against a consumer's | 64 |
account without obtaining the account number, or other information | 65 |
that would provide access to the account, directly from the | 66 |
consumer during the transaction pursuant to which the account will | 67 |
be charged. | 68 |
(5) "Unsolicited offer" means any offer for goods, services, | 69 |
or memberships that is not initiated or solicited by the consumer, | 70 |
including an offer that is made by the supplier after the consumer | 71 |
initiates contact with the supplier regarding other unrelated | 72 |
goods, services, or memberships. | 73 |
Sec. 1345.07. (A) If the attorney general, by the attorney | 74 |
general's own inquiries or as a result of complaints, has | 75 |
reasonable cause to believe that a supplier has engaged or is | 76 |
engaging in an act or practice that violates this chapter, and | 77 |
that the action would be in the public interest, the attorney | 78 |
general may bring any of the following: | 79 |
(1) An action to obtain a declaratory judgment that the act | 80 |
or practice violates section 1345.02, 1345.03, or 1345.031 of the | 81 |
Revised Code; | 82 |
(2) An action, with notice as required by Civil Rule 65, to | 83 |
obtain a temporary restraining order, preliminary injunction, or | 84 |
permanent injunction to restrain the act or practice. If the | 85 |
attorney general shows by a preponderance of the evidence that the | 86 |
supplier has violated or is violating section 1345.02, 1345.03, or | 87 |
1345.031 of the Revised Code, the court may issue a temporary | 88 |
restraining order, preliminary injunction, or permanent injunction | 89 |
to restrain and prevent the act or practice. On motion of the | 90 |
attorney general, or on its own motion, the court may impose a | 91 |
civil penalty of not more than five thousand dollars for each day | 92 |
of violation of a temporary restraining order, preliminary | 93 |
injunction, or permanent injunction issued under this section, if | 94 |
the supplier received notice of the action. The civil penalties | 95 |
shall be paid as provided in division (G) of this section. Upon | 96 |
the commencement of an action under division (A)(2) of this | 97 |
section against a supplier who operates under a license, permit, | 98 |
certificate, commission, or other authorization issued by the | 99 |
supreme court or by a board, commission, department, division, or | 100 |
other agency of this state, the attorney general shall immediately | 101 |
notify the supreme court or agency that such an action has been | 102 |
commenced against the supplier. | 103 |
(3) A class action under Civil Rule 23, as amended, on behalf | 104 |
of consumers who have engaged in consumer transactions in this | 105 |
state for damage caused by: | 106 |
(a) An act or practice enumerated in division (B) or (D) of | 107 |
section 1345.02 of the Revised Code; | 108 |
(b) Violation of a rule adopted under division (B)(2) of | 109 |
section 1345.05 of the Revised Code before the consumer | 110 |
transaction on which the action is based; | 111 |
(c) An act or practice determined by a court of this state to | 112 |
violate section 1345.02, 1345.03, or 1345.031 of the Revised Code | 113 |
and committed after the decision containing the determination has | 114 |
been made available for public inspection under division (A)(3) of | 115 |
section 1345.05 of the Revised Code. | 116 |
(B) On motion of the attorney general and without bond, in | 117 |
the attorney general's action under this section, the court may | 118 |
make appropriate orders, including appointment of a referee or a | 119 |
receiver, for sequestration of assets, to reimburse consumers | 120 |
found to have been damaged, to carry out a transaction in | 121 |
accordance with a consumer's reasonable expectations, to strike or | 122 |
limit the application of unconscionable clauses of contracts so as | 123 |
to avoid an unconscionable result, or to grant other appropriate | 124 |
relief. The court may assess the expenses of a referee or receiver | 125 |
against the supplier. | 126 |
(C) Any moneys or property recovered by the attorney general | 127 |
in an action under this section that cannot with due diligence | 128 |
within five years be restored by a referee to consumers shall be | 129 |
unclaimed funds reportable under Chapter 169. of the Revised Code. | 130 |
(D) In addition to the other remedies provided in this | 131 |
section, if the violation is an act prohibited by section 1345.022 | 132 |
of the Revised Code, an act or practice that was declared to be | 133 |
unfair, deceptive, or unconscionable by rule adopted pursuant to | 134 |
division (B)(2) of section 1345.05 of the Revised Code before the | 135 |
consumer transaction on which the action is based occurred, or an | 136 |
act or practice that was determined by a court of this state to | 137 |
violate section 1345.02, 1345.03, or 1345.031 of the Revised Code | 138 |
and committed after the decision containing the court's | 139 |
determination was made available for public inspection pursuant to | 140 |
division (A)(3) of section 1345.05 of the Revised Code, the | 141 |
attorney general may request and the court may impose a civil | 142 |
penalty of not more than twenty-five thousand dollars against the | 143 |
supplier. The civil penalties shall be paid as provided in | 144 |
division (G) of this section. | 145 |
(E) No action may be brought by the attorney general under | 146 |
this section to recover for a transaction more than two years | 147 |
after the occurrence of a violation. | 148 |
(F) If a court determines that provision has been made for | 149 |
reimbursement or other appropriate corrective action, insofar as | 150 |
practicable, with respect to all consumers damaged by a violation, | 151 |
or in any other appropriate case, the attorney general, with court | 152 |
approval, may terminate enforcement proceedings brought by the | 153 |
attorney general upon acceptance of an assurance from the supplier | 154 |
of voluntary compliance with Chapter 1345. of the Revised Code, | 155 |
with respect to the alleged violation. The assurance shall be | 156 |
filed with the court and entered as a consent judgment. Except as | 157 |
provided in division (A) of section 1345.10 of the Revised Code, a | 158 |
consent judgment is not evidence of prior violation of such | 159 |
chapter. Disregard of the terms of a consent judgment entered upon | 160 |
an assurance shall be treated as a violation of an injunction | 161 |
issued under this section. | 162 |
(G) Civil penalties ordered pursuant to divisions (A) and (D) | 163 |
of this section shall be paid as follows: one-fourth of the amount | 164 |
to the treasurer of the county in which the action is brought and | 165 |
three-fourths to the consumer protection enforcement fund created | 166 |
by section 1345.51 of the Revised Code. | 167 |
(H) The remedies available to the attorney general under this | 168 |
section are cumulative and concurrent, and the exercise of one | 169 |
remedy by the attorney general does not preclude or require the | 170 |
exercise of any other remedy. The attorney general is not required | 171 |
to use any procedure set forth in section 1345.06 of the Revised | 172 |
Code prior to the exercise of any remedy set forth in this | 173 |
section. | 174 |
Sec. 1345.09. For a violation of Chapter 1345. of the | 175 |
Revised Code, a consumer has a cause of action and is entitled to | 176 |
relief as follows: | 177 |
(A) Where the violation was an act prohibited by section | 178 |
1345.02, 1345.03, or 1345.031 of the Revised Code, the consumer | 179 |
may, in an individual action, rescind the transaction or recover | 180 |
the consumer's actual economic damages plus an amount not | 181 |
exceeding five thousand dollars in noneconomic damages. | 182 |
(B) Where the violation was an act or practice declared to be | 183 |
deceptive or unconscionable by rule adopted under division (B)(2) | 184 |
of section 1345.05 of the Revised Code before the consumer | 185 |
transaction on which the action is based, or an act or practice | 186 |
determined by a court of this state to violate section 1345.02, | 187 |
1345.03, or 1345.031 of the Revised Code and committed after the | 188 |
decision containing the determination has been made available for | 189 |
public inspection under division (A)(3) of section 1345.05 of the | 190 |
Revised Code, the consumer may rescind the transaction or recover, | 191 |
but not in a class action, three times the amount of the | 192 |
consumer's actual economic damages or two hundred dollars, | 193 |
whichever is greater, plus an amount not exceeding five thousand | 194 |
dollars in noneconomic damages or recover damages or other | 195 |
appropriate relief in a class action under Civil Rule 23, as | 196 |
amended. | 197 |
(C) Where the violation was an act prohibited by section | 198 |
1345.022 of the Revised Code, the consumer may recover, in an | 199 |
individual action, up to three times the amount of the | 200 |
unauthorized charge to the consumer's account or recover damages | 201 |
in a class action under Civil Rule 23, as amended. If the supplier | 202 |
knowingly committed the act in violation of section 1345.022 of | 203 |
the Revised Code, the consumer additionally may recover punitive | 204 |
or exemplary damages. | 205 |
(D)(1) Except as otherwise provided in division | 206 |
this section, in any action for rescission, revocation of the | 207 |
consumer transaction must occur within a reasonable time after the | 208 |
consumer discovers or should have discovered the ground for it and | 209 |
before any substantial change in condition of the subject of the | 210 |
consumer transaction. | 211 |
(2) If a consumer transaction between a loan officer, | 212 |
mortgage broker, or nonbank mortgage lender and a customer is in | 213 |
connection with a residential mortgage, revocation of the consumer | 214 |
transaction in an action for rescission is only available to a | 215 |
consumer in an individual action, and shall occur for no reason | 216 |
other than one or more of the reasons set forth in the "Truth in | 217 |
Lending Act," 82 Stat. 146 (1968), 15 U.S.C. 1635, not later than | 218 |
the time limit within which the right of rescission under section | 219 |
125(f) of the "Truth in Lending Act" expires. | 220 |
| 221 |
injunction, or other appropriate relief against an act or practice | 222 |
that violates this chapter. | 223 |
| 224 |
declaratory judgment or an injunction or a class action under this | 225 |
section, the clerk of court shall immediately mail a copy of the | 226 |
complaint to the attorney general. Upon timely application, the | 227 |
attorney general may be permitted to intervene in any private | 228 |
action or appeal pending under this section. When a judgment under | 229 |
this section becomes final, the clerk of court shall mail a copy | 230 |
of the judgment including supporting opinions to the attorney | 231 |
general for inclusion in the public file maintained under division | 232 |
(A)(3) of section 1345.05 of the Revised Code. | 233 |
| 234 |
a reasonable attorney's fee limited to the work reasonably | 235 |
performed, if either of the following apply: | 236 |
(1) | 237 |
238 | |
239 | |
240 | |
of the Revised Code; | 241 |
(2) The supplier has knowingly committed an act or practice | 242 |
that violates this chapter. | 243 |
| 244 |
means damages for direct, incidental, or consequential pecuniary | 245 |
losses resulting from a violation of Chapter 1345. of the Revised | 246 |
Code and does not include damages for noneconomic loss as defined | 247 |
in section 2315.18 of the Revised Code. | 248 |
| 249 |
also proceeding with a cause of action under any other theory of | 250 |
law. | 251 |
Sec. 1345.10. (A) With the exception of consent judgments | 252 |
entered before any testimony is taken, a final judgment against a | 253 |
supplier under section 1345.07 of the Revised Code is admissible | 254 |
as prima-facie evidence of the facts on which it is based in | 255 |
subsequent proceedings under section 1345.09 of the Revised Code | 256 |
against the same supplier, or | 257 |
assigns. | 258 |
(B) An action by or on behalf of a consumer pursuant to | 259 |
section 1345.09 of the Revised Code precludes that consumer from | 260 |
being included in a later class action by the attorney general | 261 |
with respect to the same transaction, but intervention by the | 262 |
attorney general in a pending action is authorized. If the | 263 |
attorney general brings a class action on behalf of consumers, a | 264 |
consumer may withdraw from the class action prior to trial, or, | 265 |
with the permission of the court, at any time. | 266 |
(C) | 267 |
section, an action under sections 1345.01 to 1345.13 of the | 268 |
Revised Code may not be brought more than two years after the | 269 |
occurrence of the violation which is the subject of suit, or more | 270 |
than one year after the termination of proceedings by the attorney | 271 |
general with respect to the violation, whichever is later. | 272 |
However, an action under sections 1345.01 to 1345.13 of the | 273 |
Revised Code arising out of the same consumer transaction can be | 274 |
used as a counterclaim whenever a supplier sues a consumer on an | 275 |
obligation arising from the consumer transaction. | 276 |
(2) An action under section 1345.09 of the Revised Code for a | 277 |
violation of section 1345.022 of the Revised Code may not be | 278 |
brought more than four years after the date upon which the | 279 |
consumer discovered the unauthorized charges to the consumer's | 280 |
account. | 281 |
Section 2. That existing sections 1345.07, 1345.09, and | 282 |
1345.10 of the Revised Code are hereby repealed. | 283 |