H 3729 General Bill, By Jennings

Similar(S 576)
 A BILL TO AMEND SECTION 39-5-10, CODE OF LAWS OF SOUTH CAROLINA, 1976,
 RELATING TO THE DEFINITIONS IN THE UNFAIR TRADE PRACTICES ACT, SO AS TO ADD A
 DEFINITION FOR RELATOR; TO AMEND SECTION 39-5-40, RELATING TO THE PRACTICES TO
 WHICH THIS ARTICLE DOES NOT APPLY, SO AS TO MAKE THE ARTICLE APPLY TO TRADE
 PRACTICES IN THE BUSINESS OF INSURANCE; AND TO AMEND SECTION 39-5-50, RELATING
 TO THE RIGHT OF THE ATTORNEY GENERAL TO BRING ACTIONS FOR INJUNCTIONS AND
 ACTIONS TO RECOVER ASCERTAINABLE LOSSES FOR VIOLATIONS OF THIS ARTICLE, SO AS
 TO PROVIDE THAT ASCERTAINABLE LOSS INCLUDES DAMAGES SHOWN IN THE AGGREGATE
 UNDER CERTAIN CIRCUMSTANCES, TO PROVIDE THE COURT MAY MAKE ADDITIONAL ORDERS
 TO RESTORE A PERSON WHO HAS SUFFERED AN ASCERTAINABLE LOSS BEFORE THE ORDER
 DECLARING THE PRACTICE UNLAWFUL BECOMES FINAL, AND TO PROVIDE THE PROCEDURES
 FOR A RELATOR TO NOTIFY THE ATTORNEY GENERAL THAT PERSONS HAVE SUFFERED
 ASCERTAINABLE LOSS BECAUSE OF UNFAIR TRADE PRACTICES AND, IF THE ATTORNEY
 GENERAL DECLINES TO ACT OR FAILS TO BRING AN ACTION, THAT THE RELATOR MAY
 BRING AN ACTION, AND IF THE ATTORNEY GENERAL CERTIFIES THE RELATOR'S
 ATTORNEY'S EXPERIENCE, THE RELATOR MAY BRING AN ACTION IN THE NAME OF THE
 STATE AND OTHERS SIMILARLY SITUATED AS THE RELATOR TO RECOVER THE
 ASCERTAINABLE LOSSES.

   03/11/99  House  Introduced and read first time HJ-8
   03/11/99  House  Referred to Committee on Judiciary HJ-8

TO AMEND SECTION 39-5-10, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE DEFINITIONS IN THE UNFAIR TRADE PRACTICES ACT, SO AS TO ADD A DEFINITION FOR RELATOR; TO AMEND SECTION 39-5-40, RELATING TO THE PRACTICES TO WHICH THIS ARTICLE DOES NOT APPLY, SO AS TO MAKE THE ARTICLE APPLY TO TRADE PRACTICES IN THE BUSINESS OF INSURANCE; AND TO AMEND SECTION 39-5-50, RELATING TO THE RIGHT OF THE ATTORNEY GENERAL TO BRING ACTIONS FOR INJUNCTIONS AND ACTIONS TO RECOVER ASCERTAINABLE LOSSES FOR VIOLATIONS OF THIS ARTICLE, SO AS TO PROVIDE THAT ASCERTAINABLE LOSS INCLUDES DAMAGES SHOWN IN THE AGGREGATE UNDER CERTAIN CIRCUMSTANCES, TO PROVIDE THE COURT MAY MAKE ADDITIONAL ORDERS TO RESTORE A PERSON WHO HAS SUFFERED AN ASCERTAINABLE LOSS BEFORE THE ORDER DECLARING THE PRACTICE UNLAWFUL BECOMES FINAL, AND TO PROVIDE THE PROCEDURES FOR A RELATOR TO NOTIFY THE ATTORNEY GENERAL THAT PERSONS HAVE SUFFERED ASCERTAINABLE LOSS BECAUSE OF UNFAIR TRADE PRACTICES AND, IF THE ATTORNEY GENERAL DECLINES TO ACT OR FAILS TO BRING AN ACTION, THAT THE RELATOR MAY BRING AN ACTION, AND IF THE ATTORNEY GENERAL CERTIFIES THE RELATOR'S ATTORNEY'S EXPERIENCE, THE RELATOR MAY BRING AN ACTION IN THE NAME OF THE STATE AND OTHERS SIMILARLY SITUATED AS THE RELATOR TO RECOVER THE ASCERTAINABLE LOSSES.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Section 39-5-10 of the 1976 Code is amended by adding:

"(e) 'Relator' means an informer, a party in interest who is permitted to institute a proceeding in the name of the Attorney General under this article when certified by the Attorney General or the court."

SECTION 2. Section 39-5-40 of the 1976 Code is amended to read:

"Section 39-5-40. Nothing in This article shall not apply to:

(a) actions or transactions permitted under laws administered by any a regulatory body or officer acting under statutory authority of this State or the United States or actions or transactions permitted by any other South Carolina State law.;

(b) 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 and did not have a direct financial interest in the sale or distribution of the advertised product or service.;

(c) This article does not supersede or apply to unfair trade practices covered and regulated under Title 38, Chapter 55, Sections 38-55-10 through 38-55-410. RESERVED

(d) Any challenged practices that are subject to, and comply with, statutes administered by the Federal Trade Commission and the rules, regulations, and decisions interpreting such these statutes.

For the purpose of this section, the burden of proving exemption from the provisions of this article shall be upon is on the person claiming the exemption."

SECTION 3. Section 39-5-50 of the 1976 Code is amended to read:

"Section 39-5-50. (a) Whenever When the Attorney General has reasonable cause to believe that any a person is using, has used, or is about to use any a method, act or practice declared by Section 39-5-20 to be unlawful, and that proceedings would be in the public interest, he may bring an action in the name of the State against such the person to restrain by temporary restraining order, temporary injunction, or permanent injunction the use of such that method, act, or practice. Unless the Attorney General determines in writing that the purposes of this article will be substantially impaired by delay in instituting legal proceedings, he shall, at least three days before instituting any legal proceedings as provided in this section, give notice to the person against whom proceedings are contemplated and give such the person an opportunity to present reasons to the Attorney General why such the proceedings should not be instituted. The action may be brought in the court of common pleas in the county in which such the person resides, has his principal place of business, or conducts or transacts business. The courts are authorized to issue orders and injunctions to restrain and prevent violations of this article, and such the orders and injunctions shall must be issued without bond. Whenever any When a permanent injunction is issued by such the court in connection with any an action which has become final, reasonable costs shall must be awarded to the State.

(b)(1) The court may make such additional orders or judgments as may be necessary to restore to any a person who has suffered any an ascertainable loss by reason of the use or employment of such the unlawful method, act, or practice, any moneys monies or property, real or personal, which may have been acquired by means of any a practice declared to be unlawful in this article, including the revocation of a license or certificate authorizing that person to engage in business in this State, provided the order declaring the practice to have been unlawful has become final.

(2) The term ascertainable loss includes damages shown in the aggregate where proof of loss on an individual basis is not practical because of the number of damaged persons, the inadequacy of records, or other reasons the court considers appropriate.

(c) When the Attorney General is notified in writing that a person is using, has used, or is about to use, a method, act, or practice, declared by Section 39-5-20 to be unlawful as provided in subsection (a) and that one or more persons have suffered an ascertainable loss as a result, the Attorney General shall have thirty days from the date of receipt of the notice to bring an action in the name of the State against that person. If the Attorney General affirmatively declines to act or fails to bring an action within thirty days, the relator of the method, act, or practice may serve written notice upon the Attorney General of his intention to bring an action in the name of the State, as relator, on behalf of himself, and others similarly situated. Within thirty days of receipt of the notice by the relator, the Attorney General, by means he considers appropriate, shall determine:

(1) if relator's attorney has sufficient knowledge, expertise, and experience to adequately represent the interests of the State, the relator, and other similarly situated in the action, with due regard given to prior experience in actions commenced under this section; and

(2) if relator's attorney is willing and able to advance all costs and expenses to be incurred in the action.

Upon written certification by the Attorney General that these conditions have been met, the relator may proceed to commence his action and shall assume and assert all powers and duties delegated to the Attorney General under this section. If the Attorney General denies certification or fails to act on a relator's notice within thirty days of receipt, the relator may apply to the circuit court in the county where the action is to be commenced for certification. The court shall issue the written certification if it determines conditions (c)(1) and (2) have been met.

Costs and expenses incurred in an action pursued under this section by a relator must be reimbursed from any common fund recovered in the action. If no recovery is made, relator or relator's attorneys if responsibility is assumed by written agreement, bear sole responsibility for all costs and expenses incurred and the State bears no liability for reimbursement. Attorney's fees will be awarded in any action commenced under this section by a relator on a contingency fee basis as a percentage of any common fund recovered and will be set by the court in accordance with prevailing national standards for the setting of fees in similar litigation."

SECTION 4. This act takes effect July 1, 1999.