76-10-1605 - Remedies of person injured by a pattern of unlawful activity -- Double damages -- Costs, including attorney fees -- Arbitration -- Agency -- Burden of proof -- Actions by attorney general
76-10-1605. Remedies of person injured by a pattern of unlawful activity -- Doubledamages -- Costs, including attorney fees -- Arbitration -- Agency -- Burden of proof --Actions by attorney general or county attorney -- Dismissal -- Statute of limitations --Authorized orders of district court.
(1) A person injured in his person, business, or property by a person engaged in conductforbidden by any provision of Section 76-10-1603 may sue in an appropriate district court andrecover twice the damages he sustains, regardless of whether:
(a) the injury is separate or distinct from the injury suffered as a result of the acts orconduct constituting the pattern of unlawful conduct alleged as part of the cause of action; or
(b) the conduct has been adjudged criminal by any court of the state or of the UnitedStates.
(2) A party who prevails on a cause of action brought under this section recovers the costof the suit, including reasonable attorney fees.
(3) All actions arising under this section which are grounded in fraud are subject toarbitration under Title 78B, Chapter 11, Utah Uniform Arbitration Act.
(4) In all actions under this section, a principal is liable for actual damages for harmcaused by an agent acting within the scope of either his employment or apparent authority. Aprincipal is liable for double damages only if the pattern of unlawful activity alleged and provenas part of the cause of action was authorized, solicited, requested, commanded, undertaken,performed, or recklessly tolerated by the board of directors or a high managerial agent actingwithin the scope of his employment.
(5) In all actions arising under this section, the burden of proof is clear and convincingevidence.
(6) The attorney general, county attorney, or, if within a prosecution district, the districtattorney may maintain actions under this section on behalf of the state, the county, or any personinjured by a person engaged in conduct forbidden by any provision of Section 76-10-1603, toprevent, restrain, or remedy injury as defined in this section and may recover the damages andcosts allowed by this section.
(7) In all actions under this section, the elements of each claim or cause of action shall bestated with particularity against each defendant.
(8) If an action, claim, or counterclaim brought or asserted by a private party under thissection is dismissed prior to trial or disposed of on summary judgment, or if it is determined attrial that there is no liability, the prevailing party shall recover from the party who brought theaction or asserted the claim or counterclaim the amount of its reasonable expenses incurredbecause of the defense against the action, claim, or counterclaim, including a reasonableattorney's fee.
(9) An action or proceeding brought under this section shall be commenced within threeyears after the conduct prohibited by Section 76-10-1603 terminates or the cause of actionaccrues, whichever is later. This provision supersedes any limitation to the contrary.
(10) (a) In any action brought under this section, the district court has jurisdiction toprevent, restrain, or remedy injury as defined by this section by issuing appropriate orders aftermaking provisions for the rights of innocent persons.
(b) Before liability is determined in any action brought under this section, the districtcourt may:
(i) issue restraining orders and injunctions;
(ii) require satisfactory performance bonds or any other bond it considers appropriate andnecessary in connection with any property or any requirement imposed upon a party by the court;and
(iii) enter any other order the court considers necessary and proper.
(c) After a determination of liability, the district court may, in addition to granting therelief allowed in Subsection (1), do any one or all of the following:
(i) order any person to divest himself of any interest in or any control, direct or indirect,of any enterprise;
(ii) impose reasonable restrictions on the future activities or investments of any person,including prohibiting any person from engaging in the same type of endeavor as the enterpriseengaged in, to the extent the Utah Constitution and the Constitution of the United States permit;or
(iii) order the dissolution or reorganization of any enterprise.
(d) However, if an action is brought to obtain any relief provided by this section, and ifthe conduct prohibited by Section 76-10-1603 has for its pattern of unlawful activity acts orconduct illegal under Section 76-10-1204, 76-10-1205, 76-10-1206, or 76-10-1222, the courtmay not enter any order that would amount to a prior restraint on the exercise of an affectedparty's rights under the First Amendment to the Constitution of the United States, or Article I,Sec. 15 of the Utah Constitution. The court shall, upon the request of any affected party, andupon the notice to all parties, prior to the issuance of any order provided for in this subsection,and at any later time, hold hearings as necessary to determine whether any materials at issue areobscene or pornographic and to determine if there is probable cause to believe that any act orconduct alleged violates Section 76-10-1204, 76-10-1205, 76-10-1206, or 76-10-1222. Inmaking its findings the court shall be guided by the same considerations required of a courtmaking similar findings in criminal cases brought under Section 76-10-1204, 76-10-1205,76-10-1206, or 76-10-1222, including, but not limited to, the definitions in Sections 76-10-1201,76-10-1203, and 76-10-1216, and the exemptions in Section 76-10-1226.
Amended by Chapter 3, 2008 General Session