13-11-17 - Actions by enforcing authority.
13-11-17. Actions by enforcing authority.
(1) The enforcing authority may bring an action:
(a) to obtain a declaratory judgment that an act or practice violates this chapter;
(b) to enjoin, in accordance with the principles of equity, a supplier who has violated, isviolating, or is otherwise likely to violate this chapter; and
(c) to recover, for each violation, actual damages, or obtain relief under Subsection(2)(b), on behalf of consumers who complained to the enforcing authority within a reasonabletime after it instituted proceedings under this chapter.
(2) (a) The enforcing authority may bring a class action on behalf of consumers for theactual damages caused by an act or practice specified as violating this chapter in a rule adoptedby the enforcing authority under Subsection 13-11-8(2) before the consumer transactions onwhich the action is based, or declared to violate Section 13-11-4 or 13-11-5 by final judgment ofcourts of general jurisdiction and appellate courts of this state that was either reported officiallyor made available for public dissemination under Subsection 13-11-7(1)(c) by the enforcingauthority 10 days before the consumer transactions on which the action is based, or, with respectto a supplier who agreed to it, was prohibited specifically by the terms of a consent judgment thatbecame final before the consumer transactions on which the action is based.
(b) (i) On motion of the enforcing authority and without bond in an action under thisSubsection (2), the court may make appropriate orders, including appointment of a master orreceiver or sequestration of assets, but only if it appears that the defendant is threatening or isabout to remove, conceal, or dispose of the defendant's property to the damage of persons forwhom relief is requested. An appropriate order may include an order:
(A) to reimburse consumers found to have been damaged;
(B) to carry out a transaction in accordance with consumers' reasonable expectations;
(C) to strike or limit the application of unconscionable clauses of contracts to avoid anunconscionable result; or
(D) to grant other appropriate relief.
(ii) The court may assess the expenses of a master or receiver against a supplier.
(c) If an act or practice that violates this chapter unjustly enriches a supplier and damagescan be computed with reasonable certainty, damages recoverable on behalf of consumers whocannot be located with due diligence shall be transferred to the state treasurer pursuant to Title67, Chapter 4a, Unclaimed Property Act.
(d) If a supplier shows by a preponderance of the evidence that a violation of this chapterresulted from a bona fide error notwithstanding the maintenance of procedures reasonablyadapted to avoid the error, recovery under this Subsection (2) is limited to the amount, if any, bywhich the supplier was unjustly enriched by the violation.
(e) An action may not be brought by the enforcing authority under this Subsection (2)more than two years after the occurrence of a violation of this chapter.
(3) (a) The enforcing authority may terminate an investigation or an action other than aclass action upon acceptance of the supplier's written assurance of voluntary compliance with thischapter. Acceptance of an assurance may be conditioned on a commitment to reimburseconsumers or take other appropriate corrective action.
(b) An assurance is not evidence of a prior violation of this chapter. Unless an assurancehas been rescinded by agreement of the parties or voided by a court for good cause, subsequentfailure to comply with the terms of an assurance is prima facie evidence of a violation.
(4) (a) In addition to other penalties and remedies set out under this chapter, and inaddition to its other enforcement powers under Title 13, Chapter 2, Division of ConsumerProtection, the division director may issue a cease and desist order and impose an administrativefine of up to $2,500 for each violation of this chapter.
(b) All money received through administrative fines imposed under this section shall bedeposited in the Consumer Protection Education and Training Fund created by Section 13-2-8.
Amended by Chapter 55, 2004 General Session