S 0576 General Bill, By Land

Similar(H 3729)
 A BILL TO AMEND SECTION 39-5-40, CODE OF LAWS OF SOUTH CAROLINA, 1976,
 RELATING TO THE UNFAIR TRADE PRACTICES ACT, SO AS TO PROVIDE DEFINITION FOR
 THE TERM "ASCERTAINABLE LOSS", AND TO AMEND SECTION 39-5-50 OF THE 1976 CODE,
 RELATING TO UNFAIR TRADE PRACTICES, SO AS TO PROVIDE THAT AN INDIVIDUAL MAY
 REQUEST THAT THE ATTORNEY GENERAL EITHER BRING AN ACTION IN THE NAME OF THE
 STATE AGAINST A PERSON WHO HAS USED OR IS USING ANY METHOD, ACT, OR PRACTICE
 RELATING TO UNFAIR METHODS OF COMPETITION AND UNFAIR OR DECEPTIVE ACTS, OR TO
 ALLOW THAT INDIVIDUAL TO PURSUE AN ACTION AGAINST A PERSON USING UNFAIR
 METHODS OF COMPETITION, WITH CERTAIN POWERS DEVOLVED TO THAT INDIVIDUAL BY THE
 ATTORNEY GENERAL.

   03/09/99  Senate Introduced and read first time SJ-6
   03/09/99  Senate Referred to Committee on Judiciary SJ-6

TO AMEND SECTION 39-5-40, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE UNFAIR TRADE PRACTICES ACT, SO AS TO PROVIDE DEFINITION FOR THE TERM "ASCERTAINABLE LOSS", AND TO AMEND SECTION 39-5-50 OF THE 1976 CODE, RELATING TO UNFAIR TRADE PRACTICES, SO AS TO PROVIDE THAT AN INDIVIDUAL MAY REQUEST THAT THE ATTORNEY GENERAL EITHER BRING AN ACTION IN THE NAME OF THE STATE AGAINST A PERSON WHO HAS USED OR IS USING ANY METHOD, ACT, OR PRACTICE RELATING TO UNFAIR METHODS OF COMPETITION AND UNFAIR OR DECEPTIVE ACTS, OR TO ALLOW THAT INDIVIDUAL TO PURSUE AN ACTION AGAINST A PERSON USING UNFAIR METHODS OF COMPETITION, WITH CERTAIN POWERS DEVOLVED TO THAT INDIVIDUAL BY THE ATTORNEY GENERAL.

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

SECTION 1. Section 39-5-40 of the 1976 Code is amended to read:

"Section 39-5-40. Nothing in this article shall apply to:

(a) Actions actions or transactions permitted under laws administered by any 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 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.

(d)(c) Any 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 statutes.

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

SECTION 2. Section 39-5-50 of the 1976 Code is amended to read:

"Section 39-5-50. (a) Whenever the Attorney General has reasonable cause to believe that any person is using, has used, or is about to use any 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 person to restrain by temporary restraining order, temporary injunction, or permanent injunction the use of such 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 person an opportunity to present reasons to the Attorney General why such proceedings should not be instituted. The action may be brought in the court of common pleas in the county in which such 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 orders and injunctions shall be issued without bond. Whenever any permanent injunction is issued by such court in connection with any action which has become final, reasonable costs shall be awarded to the State.

(b) The court may make such additional orders or judgments as may be necessary to restore to any person who has suffered any ascertainable loss by reason of the use or employment of such unlawful method, act or practice, any moneys or property, real or personal, which may have been acquired by means of any 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. Ascertainable loss includes damages shown in the aggregate where proof of loss on an individual basis is impracticable by reason of numerosity of damaged persons, inadequacy of records, or such other bases as the court deems appropriate.

(c) Whenever the Attorney General is notified in writing that any person is using, has used, or is about to use any method, act, or practice declared by Section 39-5-20 to be unlawful as set out in subparagraph (a) of this section and that one or more persons have suffered an ascertainable loss as a result thereof, the Attorney General shall have thirty (30) days from the date of receipt of such notice to bring an action in the name of the State against such person. In the event the Attorney General affirmatively declines to act or fails to bring an action within thirty (30) days, the relator of such method, act, or practice may serve written notice upon the Attorney General of his intention to bring said action in the name of the State, as relator, on behalf of himself and others similarly situated. Within thirty (30) days of receipt of such notice by the relator, the Attorney General, by such means as he deems appropriate, shall determine:

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

(2) that relator's attorney or attorneys are willing and able to advance all costs and expenses to be incurred in such action.

Upon written certification by the Attorney General that the above 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 any relator's notice within thirty (30) days of receipt, the relator may apply to the Circuit Court in the county where the action is to be commenced for certification.

Costs and expenses incurred in any action pursued under this section by a relator shall be reimbursed from any common fund recovered in the action; however, if no recovery is made, relator or relator's attorneys, if responsibility is assumed by written agreement, shall bear sole responsibility for all costs and expenses incurred and the State shall bear no liability for reimbursement. Attorney's fees will be awarded in any action commenced hereunder 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 such fees in similar litigation."

SECTION 3. This act takes effect upon approval by the Governor.