Chapter 12 - Consumer Protection
CHAPTER 12 - CONSUMER PROTECTION
ARTICLE 1 - IN GENERAL
40-12-101. Short title.
This act may be cited as the "WyomingConsumer Protection Act."
40-12-102. Definitions.
(a) As used in this act:
(i) "Person" means a natural person, corporation,trust, partnership, incorporated or unincorporated association or any otherlegal entity;
(ii) "Consumer transactions" means the advertising,offering for sale, sale or distribution of any merchandise to an individual forpurposes that are primarily personal, family or household;
(iii) "Documentary material" means the original or acopy of any book, record, report, memorandum, paper, communication, tabulation,map, chart, photograph, mechanical transcription, other tangible document orrecording, reproductions of information stored magnetically, file layout, codeconversion tables or computer programs to convert file to readable printout,wherever situated;
(iv) "Examination" of documentary material includesthe inspection, study or copying of any such material, and the taking oftestimony under oath or acknowledgement with respect to any such documentarymaterial or copy thereof;
(v) "Advertisement" includes the attempt bypublication, dissemination, solicitation or circulation, whether oral, visual,written or otherwise, and whether in person, by telephone or by any other meansto induce directly or indirectly any person to enter into any obligation or toacquire any title or interest in any merchandise;
(vi) "Merchandise" includes any service or anyproperty, tangible or intangible, real, personal or mixed, or any other object,ware, good, commodity, or article of value wherever situated;
(vii) "Enforcing authority" means the attorney generalof Wyoming;
(viii) "Cure" as applied to an unlawful deceptive tradepractice as defined in W.S. 40-12-105 means either:
(A) To offer in writing to adjust or modify the consumertransaction to which the unlawful deceptive trade practice relates to conformto the reasonable expectations of the consumer generated by such unlawfuldeceptive trade practice and to perform such offer if accepted by the consumer;or
(B) To offer in writing to rescind such consumer transactionand to perform such offer if accepted by the consumer.
(ix) "Uncured unlawful deceptive trade practice" meansan unlawful deceptive trade practice as defined in W.S. 40-12-105:
(A) With respect to which a consumer who has been damaged bythe unlawful deceptive trade practice has given notice to the alleged violatorpursuant to W.S. 40-12-109; and
(B) Either:
(I) No offer to cure has been made to such consumer withinfifteen (15) days after such notice; or
(II) The unlawful deceptive trade practice has not been cured asto such consumer within a reasonable time after his acceptance of the offer tocure.
(x) "This act" means W.S. 40-12-101 through40-12-114.
40-12-103. Unsolicited merchandise.
Unless otherwise agreed, when unsolicitedmerchandise is delivered to a person, he has a right to refuse such merchandiseand is not obligated to return such merchandise to the sender. Such unsolicitedmerchandise is deemed an unconditional gift to the recipient, who may use it inany manner without any obligation to the sender. This section does not apply ifthere is evidence that the merchandise has been misdelivered, or if the deliveredmerchandise is offered as a good faith substitution for merchandise previouslysolicited by the recipient.
40-12-104. Home solicitation sales.
(a) For purposes of this section, "home solicitationsale" means the sale or lease of merchandise, other than farm equipment,for cash when the cash sales price, whether under a single sale or multiplesales, exceeds twenty-five dollars ($25.00) and in which the seller or a personacting for him engages in a personal solicitation of the sale at the residenceof the buyer and the buyer's agreement or offer to purchase is there given tothe seller or a person acting for him. A personal solicitation of a sale at theresidence of the buyer includes contact with the buyer in person or bytelephone. "Home solicitation sale" does not include:
(i) A sale made pursuant to a preexisting revolving chargeaccount;
(ii) A sale made subsequent to a personal contact or a telephonecontact at the residence of the buyer but pursuant to negotiations between theparties at a business establishment at a fixed location where goods or servicesare offered or exhibited for sale;
(iii) A sale made pursuant to a telephone solicitation when theseller offers a full refund and right of cancellation for at least ten (10)days after receipt of the merchandise and the right of refund and cancellationis communicated during the initial telephone solicitation and is conspicuouslydisplayed with the merchandise; or
(iv) A sale in which a consumer acquires use of property under arental-purchase agreement as defined in W.S. 40-19-102(a)(xi), with an initialperiod of one (1) week or less, by placing a telephone call to a merchant andby requesting that specific property be delivered to the consumer's residenceor such other place as the consumer directs and such rental-purchase agreementis consummated at the consumer's residence.
(b) Except as hereinafter provided, in addition to any rightotherwise to revoke an offer, the buyer has the right to cancel a homesolicitation sale until midnight of the third business day after the day onwhich the buyer signs an agreement or offer to purchase which complies withthis part. Cancellation occurs when the buyer gives written notice ofcancellation to the seller at the address stated in the agreement or offer topurchase. Notice of cancellation, if given by mail, is given when it isdeposited in a mailbox properly addressed and postage prepaid. Notice ofcancellation given by the buyer need not take a particular form and issufficient if it indicates by any form of written expression the intention ofthe buyer not to be bound by the home solicitation sale.
(c) The buyer may not cancel a home solicitation sale if thebuyer requests the seller to provide goods or services without delay because ofan emergency and:
(i) The seller in good faith makes a substantial beginning ofperformance of the contract before the buyer gives notice of cancellation; and
(ii) In the case of goods, the goods cannot be returned to theseller in substantially as good condition as when received by the buyer.
(d) The period within which cancellation may occur pursuant tothis section shall not commence until the buyer is furnished a copy of thecompleted, approved and accepted contract, is given the name and address towhich the notice of cancellation should be sent and is provided with a writtenstatement of his right of cancellation. The statement of the buyer's right ofcancellation shall comply with W.S. 40-14-253(b).
(e) Except as hereinafter provided, within ten (10) days aftera home solicitation sale has been cancelled:
(i) The seller must tender to the buyer any payments made bythe buyer and any note or other evidence of indebtedness;
(ii) If the down payment includes goods traded in, the goodsmust be tendered in substantially as good condition as when received by theseller, and if the seller fails to tender the goods as provided by this subsection,the buyer may elect to recover an amount equal to the trade-in allowance statedin the agreement;
(iii) The seller may retain as a cancellation fee five percent(5%) of the cash price but not exceeding the amount of the cash down payment.If the seller fails to comply with an obligation imposed by this section, or ifthe buyer voids the sale on any ground independent of his right to cancel orrevokes his offer to purchase, the seller is not entitled to retain acancellation fee;
(iv) Until the seller has complied with the obligations imposedby this subsection, the buyer may retain possession of goods delivered to himby the seller and has a lien on the goods in his possession or control for anyrecovery to which he is entitled.
(f) Except as provided under subsection (e) of this section,within a reasonable time after a home solicitation sale has been cancelled oran offer to purchase revoked, the buyer upon demand must tender to the sellerany goods delivered by the seller pursuant to the sale but he is not obligatedto tender at any place other than his residence. If the seller fails to demandpossession of the goods within thirty (30) days after cancellation orrevocation, the goods become the property of the buyer without obligation topay for them.
(g) The buyer has a duty to take reasonable care of the goodsin his possession before cancellation or revocation and for thirty (30) daysthereafter, during which time the goods are otherwise at the seller's risk.
(h) If the seller has performed any services pursuant to a homesolicitation sale prior to its cancellation, the seller is entitled to nocompensation except the cancellation fee provided in this section.
40-12-105. Unlawful practices.
(a) A person engages in a deceptive trade practice unlawfulunder this act when, in the course of his business and in connection with aconsumer transaction, he knowingly:
(i) Represents that merchandise has a source, origin,sponsorship, approval, accessories or uses it does not have;
(ii) Represents that he has a sponsorship, approval oraffiliation he does not have;
(iii) Represents that merchandise is of a particular standard,grade, style or model, if it is not;
(iv) Represents that merchandise is available to the consumerfor a reason that does not exist;
(v) Represents that merchandise has been supplied in accordancewith a previous representation, if it has not; except that this subsection doesnot apply to merchandise supplied to the recipient by mistake or merchandise ofequal or greater value supplied as a reasonably equivalent substitute forunavailable merchandise previously ordered by the recipient;
(vi) Represents that replacement or repair is needed, if it isnot;
(vii) Makes false or misleading statements of fact concerning theprice of merchandise or the reason for, existence of, or amounts of a pricereduction;
(viii) Represents that a consumer transaction involves a warranty,a disclaimer of warranties, particular warranty terms, or other rights,remedies or obligations if the representation is false;
(ix) Represents that the consumer will receive a rebate,discount or other benefit as an inducement for entering into a consumertransaction in return for giving the supplier the names of prospectiveconsumers or otherwise helping the supplier to enter into other consumertransactions, if receipt of the benefit is contingent upon an event occurringafter the consumer enters into the transaction;
(x) Advertises merchandise with intent not to sell it asadvertised;
(xi) Advertises merchandise with intent not to supply reasonablyexpectable public demand, unless the advertisement discloses the limitation;
(xii) Represents that merchandise is original or new if he knowsthat it is deteriorated, damaged, altered, reconditioned, reclaimed, used orsecondhand. For purposes of this subsection, the terms "original" or"new" include merchandise previously sold but returned within areasonable time by the consumer for full credit if such merchandise is notdamaged or deteriorated;
(xiii) Advertises under the guise of obtaining sales personnelwhen in fact the purpose of the advertisement is to sell merchandise to thesales personnel applicants;
(xiv) Employs "bait and switch" advertising whichconsists of an offer to sell merchandise which the seller does not intend tosell, which advertising is accompanied by one (1) or more of the followingpractices:
(A) Refusal to show the merchandise advertised;
(B) False disparagement in any respect of the advertisedmerchandise or the terms of sale;
(C) Requiring undisclosed tie-in sales or other undisclosedconditions to be met prior to selling the advertised merchandise;
(D) Knowingly showing or demonstrating defective merchandisewhich is unusable or practicable for the purpose set forth in the advertisement;
(E) Accepting a deposit for the merchandise and subsequentlycharging the buyer for a higher priced item without his consent; or
(F) Willful failure to either make deliveries of themerchandise or to make a refund therefor.
(xv) Engages in unfair or deceptive acts or practices.
40-12-106. Restraining unlawful practices.
Whenever the enforcing authority hasreasonable cause to believe that any person has engaged in, is engaging in, oris about to engage in any practice which is unlawful under W.S. 40-12-104 or40-12-105, and that proceedings would be in the public interest, he may bringan action in the name of this state against such person to restrain bytemporary restraining order or preliminary or permanent injunction the use of suchpractice, upon the giving of appropriate notice to that person. The notice muststate generally the relief sought and must be served in accordance with theWyoming Rules of Civil Procedure. Before commencing any action, the enforcingauthority shall give the person against whom proceedings are contemplated areasonable opportunity to show why proceedings should not be instituted. Theaction may be brought in the district court of the county in which the personresides or has his principal place of business or in the district court ofLaramie county, Wyoming. The district court may issue temporary restrainingorders or preliminary or permanent injunctions, in accordance with theprinciples of equity, to restrain and prevent violations of this act. The courtmay make such additional orders or judgments as are necessary to compensateidentifiable persons for actual damages or restoration of money or property,real or personal, which may have been acquired by means or any act or practicerestrained. The remedies provided by this section, W.S. 40-12-108 and40-12-111 shall be the exclusive remedies for violations of this act.
40-12-107. Assurances of voluntary compliance.
The enforcing authority may accept writtenassurance of voluntary compliance with respect to any practice believed to beviolative of W.S. 40-12-105 from any person who is engaged or is about toengage in such practice. Such assurance is not considered an admission ofviolation for any purpose. Proof of failure to comply with the assurance ofvoluntary compliance is prima facie evidence of a violation of this act.Matters closed by virtue of the acceptance of an assurance of voluntarycompliance may at any time be reopened by the enforcing authority for furtherproceedings in the public interest, pursuant to W.S. 40-12-106.
40-12-108. Private remedies.
(a) A person relying upon an uncured unlawful deceptive tradepractice may bring an action under this act for the damages he has actuallysuffered as a consumer as a result of such unlawful deceptive trade practice.
(b) Any person who is entitled to bring an action undersubsection (a) of this section on his own behalf against an alleged violator ofthis act for damages for an unlawful deceptive trade practice may bring a classaction against such person on behalf of any class of persons of which he is amember and which has been damaged by such unlawful deceptive trade practice,subject to and pursuant to the Wyoming Rules of Civil Procedure governing classactions, except as herein expressly provided. If the court determines thatactual damages have been suffered by reason of the unlawful deceptive tradepractice, the court shall award reasonable attorney's fees to the plaintiffs ina class action under this subsection, provided that such fees shall bedetermined by the amount of time reasonably expended by the attorney for theplaintiffs and not by the amount of the judgment. Any monies or propertyrecovered in a class action under this subsection which cannot, with duediligence, be restored to consumers within one (1) year after judgment becomesfinal shall be returned to the party depositing the same.
40-12-109. Limitation of actions.
No action may be brought under this act,except under W.S. 40-12-108, unless the consumer bringing the action giveswithin the following time limits notice in writing to the alleged violator ofthe act, (a) within one (1) year after the initial discovery of the unlawfuldeceptive trade practice, (b) within two (2) years following such consumer transaction,whichever occurs first, and unless the unlawful deceptive trade practicebecomes an uncured unlawful deceptive trade practice as defined in this act.The notice required under this section shall state fully the nature of thealleged unlawful deceptive trade practice and the actual damage sufferedtherefrom. No action may be brought under this act, except under W.S.40-12-108, unless said action is initiated within one (1) year after thefurnishing of notice as required under this section.
40-12-110. Exemptions.
(a) Nothing in this act shall apply to:
(i) Acts or practices required or permitted by state or federallaw, rule or regulation or judicial or administrative decision;
(ii) Acts or practices by the publisher, owner, agent oremployee of a newspaper, periodical, radio or television station or any otherperson without knowledge of the deceptive character of the advertisement in thepublication or dissemination of an advertisement supplied by another.
40-12-111. Violations involving older persons or persons withdisabilities; civil penalty.
(a) As used in this section:
(i) "Person with disabilities" means any person whohas a mental or educational impairment which substantially limits one (1) ormore major life activities;
(ii) "Major life activities" means functionsassociated with the normal activities of independent daily living such ascaring for one's self, performing manual tasks, walking, seeing, hearing,speaking, breathing, learning and working;
(iii) "Mental or educational impairment" means:
(A) Any mental or psychological disorder or specific learningdisability;
(B) Any educational deficiency which substantially affects aperson's ability to read and comprehend the terms of any contractual agreemententered into.
(iv) "Older person" means a person who is over sixty(60) years of age.
(b) Any person who willfully uses, or has willfully used, amethod, act or practice in violation of this act which victimizes or attemptsto victimize an older person or a person with disabilities, and commits suchviolation when the person knew or should have known that the conduct was unfairor deceptive, shall make restitution or reimbursement to the older person orperson with disabilities including reasonable attorney fees and costs, and, inaddition, is liable for a civil penalty of up to fifteen thousand dollars($15,000.00) for each violation recoverable by the office of the attorneygeneral.
40-12-112. Investigative powers of enforcing authority.
(a) If, by inquiry by the enforcing authority or as a result ofcomplaints, the enforcing authority has probable cause to believe that a personhas engaged in, or is engaging in, an act or practice that violates this act,investigators designated by the Wyoming attorney general may administer oathsand affirmations, subpoena witnesses or matter, and collect evidence. Withinfive (5) days, excluding weekends and legal holidays, after the service of asubpoena or at any time before the return date specified therein, whichever islonger, the party served may file in the district court in the county in whichthe party resides or in which the party transacts business, or in the districtcourt for the first judicial district of Wyoming, and serve upon the enforcingauthority a petition for an order modifying or setting aside the subpoena. Thepetitioner may raise any objection or privilege which would be available underthis act or upon service of a subpoena in a civil action. The subpoena shallinform the party served of the party's rights under this subsection.
(b) If matter that the enforcing authority seeks to obtain bysubpoena is located outside the state, the person subpoenaed may make itavailable to the enforcing authority to examine the matter at the place whereit is located. The enforcing authority may designate representatives,including officials of the state in which the matter is located, to inspect thematter on its behalf, and the enforcing authority may respond to similarrequests from officials of other states.
(c) Upon failure of a person without lawful excuse to obey asubpoena and upon reasonable notice to all persons affected, the enforcingauthority may apply to the district court for an order compelling compliance.
(d) The enforcing authority may request that an individual whorefuses to comply with a subpoena on the ground that testimony or matter mayincriminate the individual, be ordered by the court to provide the testimony ormatter. Except in a prosecution for perjury, an individual who complies with acourt order to provide testimony or matter after asserting a privilege againstself-incrimination to which the individual is entitled by law shall not havethe testimony or matter so provided, or evidence derived therefrom, receivedagainst the individual in any criminal investigation or proceeding.
(e) Any person upon whom a subpoena is served pursuant to thissection shall comply with the terms thereof unless otherwise provided by orderof the court. Any person who fails to appear with the intent to avoid, evadeor prevent compliance in whole or in part with any investigation under this actor who removes from any place, conceals, withholds, mutilates, alters ordestroys, or by any other means falsifies any documentary material in thepossession, custody or control of any person subject to the subpoena, orknowingly conceals any relevant information with the intent to avoid, evade orprevent compliance is liable for a civil penalty of not more than five thousanddollars ($5,000.00), reasonable attorney's fees and costs.
(f) Whenever criminal or civil intelligence, investigativeinformation or any other information held by any state or federal agency isavailable to the enforcing authority on a confidential or a similarlyrestricted basis, the enforcing authority, in the course of the investigationof any violation of this act, may obtain and use the information. Anyintelligence or investigative information that is confidential or exempt underW.S. 16-4-201 through 16-4-205 retains its status as confidential or exempt.
40-12-113. Civil penalties.
(a) The enforcing authority, upon petition to the court, mayrecover, on behalf of the state, a civil penalty of not more than five thousanddollars ($5,000.00) from any person who violates the terms of a permanentinjunction issued under W.S. 40-12-106.
(b) For purposes of this section, the court issuing aninjunction shall retain jurisdiction, and the cause shall be continued.
(c) Except as provided in W.S. 40-12-111, any person or agentor employee of the person, who willfully uses, or has willfully used, a methodor act, in violation of this act, is liable for a civil penalty of not morethan ten thousand dollars ($10,000.00) for each violation. Willful violationsoccur when the person knew or should have known that the person's conduct wasunfair or deceptive. This civil penalty may be recovered in any action broughtunder this act by the enforcing authority or the enforcing authority mayterminate any investigation or action upon agreement by the person to pay astipulated civil penalty. The enforcing authority or the court may waive anycivil penalty if the person has previously made full restitution orreimbursement or has paid actual damages to the consumers who have been injuredby the unlawful act or practice. If civil penalties are assessed in anylitigation, the enforcing authority is entitled to reasonable attorney's feesand costs.
40-12-114. Effect on other remedies.
This act shall not prohibit actions underother statutory or common-law provisions against conduct or practices similarto those declared to be unlawful by W.S. 40-12-105. However, the remediesprovided in this act are the exclusive remedies for actions brought pursuant tothis act.
ARTICLE 2 - PROMOTIONAL ADVERTISING OF PRIZES
40-12-201. Definitions.
(a) As used in this article:
(i) "Prize" means a gift, award or other item orservice of value;
(ii) "Prize notice" means a notice given to anindividual in this state that satisfies all of the following:
(A) Is or contains a representation that the individual hasbeen selected or may be eligible to receive a prize;
(B) Conditions receipt of a prize on a payment from theindividual or requires or invites the individual to make a contact to learn howto receive the prize or to obtain other information related to the notice.
(iii) "Prize notice" does not include any of thefollowing:
(A) A notice given at the request of the individual;
(B) A notice informing the individual that he has been awardeda prize as a result of his actual prior entry in a game, drawing, sweepstakesor other contest, if the individual is awarded the prize stated in the notice.
(iv) "Solicitor" means a person who represents to anindividual that the individual has been selected or may be eligible to receivea prize;
(v) "Sponsor" means a person on whose behalf asolicitor gives a prize notice;
(vi) "Verifiable retail value" of a prize means:
(A) A price at which the solicitor or sponsor can demonstratethat a substantial number of the prizes have been sold by a person other thanthe solicitor or sponsor in the trade area in which the prize notice is given;or
(B) If the solicitor or sponsor is unable to satisfysubparagraph (A) of this paragraph, no more than one and five-tenths (1.5)times the amount the solicitor or sponsor paid for the prize.
40-12-202. Written prize notice required.
If a solicitor represents to an individualthat the individual has been selected or may be eligible to receive a prize,the solicitor shall not request, and the solicitor or sponsor shall not accept,a payment from the individual in any form before the individual receives awritten prize notice that contains all of the information required under W.S.40-12-203(a) presented in the manner required under W.S. 40-12-203(b) through(f).
40-12-203. Delivery and contents of written prize notices.
(a) A written prize notice shall contain all of the followinginformation presented in the manner required under subsections (b) through (f)of this section:
(i) The name and address of the solicitor and sponsor;
(ii) The verifiable retail value of each prize the individualhas been selected or may be eligible to receive;
(iii) If the notice lists more than one (1) prize that theindividual has been selected or may be eligible to receive, a statement of theodds the individual has of receiving each prize;
(iv) Any requirement or invitation for the individual to view,hear or attend a sales presentation in order to claim a prize, the approximatelength of the sales presentation and a detailed description of the property orservice that is the subject of the sales presentation. The description of theproperty or service shall include the price of the property or service, thesize of the property, length of the service and any other information requiredto make an informed determination as to the value of the property or service;
(v) Any requirement that the individual pay shipping orhandling fees or any other charges to obtain or use a prize;
(vi) If receipt of the prize is subject to a restriction, astatement that a restriction applies, a description of the restriction and astatement containing the location in the notice where the restriction isdescribed; and
(vii) Any limitations on eligibility.
(b) The verifiable retail value and the statement of oddsrequired in a written prize notice under paragraphs (a)(ii) and (iii) of thissection shall be stated in immediate proximity to each listing of the prize ineach place the prize appears on the written prize notice and shall be in thesame size and boldness of type as the prize, and provided:
(i) The statement of odds shall include, for each prize, thetotal number of prizes to be given away and the total number of written prizenotices to be delivered. The number of prizes and written prize notices shallbe stated in Arabic numerals. The statement of odds shall be in the followingform: ".... (number of prizes) out of .... written prizes notices";and
(ii) The verifiable retail value shall be in the following form:"verifiable retail value: $....".
(c) If an individual is required to pay shipping or handlingfees or any other charges to obtain or use a prize, the following statementshall appear in immediate proximity to each listing of the prize in each placethe prize appears in the written prize notice and shall be in not less than ten(10) point boldface type: "YOU MUST PAY $.... IN ORDER TO RECEIVE OR USETHIS ITEM".
(d) The information required in a written prize notice underparagraph (a)(iv) of this section shall be on the first page of the writtenprize notice in not less than ten (10) point boldface type. The informationrequired under paragraphs (a)(vi) and (vii) of this section shall be in notless than ten (10) point boldface type.
(e) If a written prize notice is given by a solicitor on behalfof a sponsor, the name of the sponsor shall be more prominently andconspicuously displayed than the name of the promoter.
(f) A solicitor or sponsor shall not do any of the following:
(i) Place on an envelope containing a written prize notice anyrepresentation that the person to whom the envelope is addressed has beenselected or may be eligible to receive a prize;
(ii) Deliver a written prize notice that contains language, oris designed in a manner, that would lead a reasonable person to believe that itoriginates from a government agency, public utility, insurance company,consumer reporting agency, debt collector or law firm unless the written prizenotice originates from that source;
(iii) Represent directly or by implication that the number ofindividuals eligible for the prize is limited or that an individual has beenselected to receive a particular prize unless the representation is true.
40-12-204. Sales presentations.
(a) If a prize notice requires or invites an individual toview, hear or attend a sales presentation in order to claim a prize, the salespresentation shall not begin until the solicitor does all of the following:
(i) Informs the individual of the prize, if any, that has beenawarded to the individual; and
(ii) If the individual has been awarded a prize, delivers to theindividual the prize or the item selected by the individual under W.S.40-12-205 if the prize is not available.
40-12-205. Prize award required; options if prize not available.
(a) A solicitor who represents to an individual in a writtenprize notice that the individual has been awarded a prize shall provide theprize to the individual unless the prize is not available. If the prize is notavailable, the solicitor shall provide the individual with any one (1) of thefollowing items selected by the individual:
(i) Any other prize listed in the written prize notice that isavailable and that is of equal or greater value;
(ii) The verifiable retail value of the prize in the form ofcash, a money order or a certified check;
(iii) A voucher, certificate or other evidence of obligationstating that the prize will be shipped to the individual within thirty (30)days at no cost to the individual.
(b) If a voucher, certificate or other evidence of obligationdelivered under paragraph (a)(iii) of this section is not honored within thirty(30) days, the solicitor shall deliver to the individual the verifiable retailvalue of the prize in the form of cash, a money order or a certified check. The sponsor shall make the payment to the individual if the solicitor fails todo so.
40-12-206. Penalties.
(a) Except as provided by subsection (b) of this section, anyindividual who violates this article is guilty of a misdemeanor punishable by afine of not more than seven hundred fifty dollars ($750.00), imprisonment fornot more than six (6) months, or both, for each violation.
(b) Whoever intentionally violates this article is guilty of amisdemeanor punishable by a fine of not more than ten thousand dollars($10,000.00), imprisonment for not more than one (1) year, or both. A personintentionally violates this article if the violation occurs after the attorneygeneral or a district attorney has notified the person by certified mail thatthe person is in violation of this article.
40-12-207. Enforcement.
(a) The attorney general shall investigate violations of thisarticle.
(b) The attorney general or any district attorney may on behalfof the state:
(i) Bring an action for temporary or permanent injunctive orother relief in any court of competent jurisdiction for any violation of thisarticle. The court may, upon entry of final judgment, award restitution whenappropriate to any person suffering loss because of a violation of this articleif proof of the loss is submitted to the satisfaction of the court;
(ii) Bring an action in any court of competent jurisdiction forthe penalties authorized under W.S. 40-12-206.
40-12-208. Private action.
(a) In addition to any other remedies, a person sufferingpecuniary loss because of a violation by another person of this article maybring an action in any court of competent jurisdiction and shall recover all ofthe following:
(i) The greater of five hundred dollars ($500.00) or twice theamount of the pecuniary loss;
(ii) Costs and reasonable attorney fees.
40-12-209. Exemptions.
The provisions of this article shall notapply to the sale or purchase, or solicitation or representation in connectiontherewith, of goods from a catalog or of books, recordings, video cassettes,periodicals and similar goods through a membership group or club which isregulated by the federal trade commission through a contractual plan orarrangement such as a continuity plan, subscription arrangement, or a singlesale or purchase series arrangement under which the seller ships goods to aconsumer who has consented in advance to receive the goods and the recipient ofthe goods is given the opportunity, after examination of the goods, to receivea full refund of charges for the goods or unused portion thereof, upon returnof the undamaged goods or unused portion of the goods.
ARTICLE 3 - TELEPHONE SOLICITATION
40-12-301. Definitions.
(a) As used in this article:
(i) "Caller identification service" means a type oftelephone service or system which allows telephone subscribers to see thetelephone numbers from which incoming telephone calls are dialed;
(ii) "Consumer" means an actual or prospectivepurchaser, lessee or recipient of consumer goods or services;
(iii) "Consumer goods or services" means any realproperty or any tangible or intangible personal property or any services whichare marketed and intended to be used for personal, family or householdpurposes, including, without limitation, any such property intended to beattached to or installed in any real property without regard to whether it isso attached or installed, as well as cemetery lots and timeshare estates;
(iv) "Doing business in this state" refers tobusinesses which conduct telephonic sales calls from a location in Wyoming orfrom other states or nations to consumers located in Wyoming;
(v) "Enforcing authority" means the Wyoming attorneygeneral;
(vi) "Established business relationship" means a prioror existing relationship formed by a voluntary two-way communication between aseller or telephone solicitor and a consumer with or without an exchange ofconsideration, on the basis of an inquiry, application, purchase or transactionby the consumer regarding products or services offered by such seller ortelephone solicitor which relationship has not been previously terminated byeither party;
(vii) "Merchant" means a person who, directly orindirectly, offers or makes available to consumers any consumer goods orservices;
(viii) "National do-not-call list" means the listmaintained by the Telephone Preference Service of the Direct MarketingAssociation, Inc., Farmingdale, New York, or its successor organization;
(ix) "Telephonic sales call" means a call made by atelephone solicitor to a consumer, for the purpose of soliciting a sale of anyconsumer goods or services, for the purpose of soliciting an extension ofcredit for consumer goods or services, or for the purpose of obtaininginformation that will or may be used for the direct solicitation of a sale ofconsumer goods or services or an extension of credit for such purposes;
(x) "Telephone solicitor" means any natural person,business entity or a subsidiary or affiliate thereof, doing business in thisstate, who makes or causes to be made a telephonic sales call, including, butnot limited to, calls made by use of automated dialing devices;
(xi) "Unpublished cellular telephone number" means acellular telephone number:
(A) That has not been requested by the subscriber to bepublished in any telephone directory or any list of telephone servicesubscribers; and
(B) Whose prefix or telephone number has been determined by theoffice of the public service commission to be primarily for cellular telephoneservice.
(xii) "Unsolicited telephonic sales call" means atelephonic sales call other than a call made:
(A) In response to an express request of the person called;
(B) Primarily in connection with an existing debt or contract,payment or performance of which has not been completed at the time of the call;
(C) To any person with whom the telephone solicitor had anestablished business relationship; or
(D) By a telephone solicitor or merchant making less than twohundred twenty-five (225) unsolicited calls per year.
40-12-302. Telephone solicitations.
(a) Any telephone solicitor or merchant who makes anunsolicited telephonic sales call to a residential or mobile telephone numbershall disclose at the outset of the conversation and in a clear and conspicuousmanner to the person receiving the call, the following information:
(i) The name of the individual caller;
(ii) The identity of the telephone solicitor or merchant and atelephone number and address at which the telephone solicitor or merchant maybe contacted;
(iii) That the purpose of the call is to sell consumer goods orservices; and
(iv) The nature of the consumer goods or services.
(b) No telephone solicitor or merchant shall willfully make orcause to be made any unsolicited telephonic sales call to any residential,mobile or telephonic paging device telephone number more than sixty (60) daysafter the number for that telephone appears in the national do-not-call list.This subsection does not apply to any person who calls an actual or prospectiveseller or lessor of real property when the call is made in response to a yardsign or other form of advertisement placed by the seller or lessor.
(c) No telephone solicitor or merchant who makes an unsolicitedtelephonic sales call to the telephone line of a residential subscriber in thisstate shall knowingly utilize any method to block or otherwise circumvent thesubscriber's use of a caller identification service.
(d) No telephone solicitor shall initiate any unsolicitedtelephonic sales call to a consumer before the hour of 8 a.m. or after 8 p.m.local time at the consumer's location.
(e) No telephone solicitor or merchant shall willfully make orcause to be made any unsolicited telephonic sales call to any unpublishedcellular telephone number.
40-12-303. Automated sales calls.
(a) No telephone solicitor or merchant shall make or knowinglyallow a telephonic sales call to be made if the call involves an automatedsystem for the selection or dialing of telephone numbers or the playing of arecorded message when a connection is completed to a number called.
(b) Subsection (a) of this section does not prohibit the use ofan automated telephone dialing system with live messages if:
(i) The calls are made or messages given solely in response tocalls initiated by the persons to whom the automatic calls or live messages aredirected;
(ii) The telephone numbers selected for automatic dialing havebeen screened to exclude any telephone subscriber who is included on thenational do-not-call list and any unlisted telephone number; or
(iii) The call is to a consumer with whom the caller had anestablished business relationship.
40-12-304. Investigation of complaints; enforcement; attorney's fees.
(a) The enforcing authority shall investigate any complaintsreceived concerning violations of this article. If, after investigating anycomplaint, the enforcing authority finds that there has been a willfulviolation of this article, the enforcing authority may bring an action toimpose a civil penalty and to seek other relief, including injunctive relief,as the court deems appropriate against the telephone solicitor or merchant. Thecivil penalty imposed shall be as follows:
(i) For the first violation, not to exceed five hundred dollars($500.00);
(ii) For the second violation, not to exceed two thousand fivehundred dollars ($2,500.00);
(iii) For the third and subsequent violations, not to exceed fivethousand dollars ($5,000.00) per violation.
(b) An action under this section may be brought in the districtcourt of the county in which the telephone solicitor or merchant resides or hadits principle place of business or in the district court of Laramie countyWyoming. The civil penalty provided under this section may be recovered in anyaction brought under this article by the enforcing authority, or the enforcingauthority may terminate any investigation or action upon agreement by thetelephone solicitor or merchant to pay a stipulated civil penalty. Theenforcing authority or the court may waive any civil penalty if the telephonesolicitor or merchant has previously made full restitution or reimbursement orhas paid actual damages to the consumers who have been injured by theviolation.
(c) In any civil litigation resulting from a transactioninvolving a violation of this article, the prevailing party, after judgment inthe trial court and exhaustion of all appeals, if any, shall receive reasonableattorney's fees and costs from the nonprevailing party.
(d) The remedies provided by this section are not exclusive andshall not preclude the imposition of any other relief or criminal penaltiesprovided by law.
(e) It shall be an affirmative defense to an action brought byan enforcing authority for a violation of W.S. 40-12-302(b) that the personcalled a consumer listed on the national do-not-call list as a result of a goodfaith error.
40-12-305. Notice of activity and consent to service of process.
Eachtelephone solicitor or merchant making unsolicited telephonic sales calls anddoing business in this state shall file with the attorney general of this statea statement giving notice of this fact and designating the secretary of stateof this state its agent for service of process, unless a lawful resident isdesignated as agent for service of process, for any alleged violation of thisarticle. The written notice shall further set forth the intention of thetelephone solicitor or merchant to abide by the provisions of this article.Compliance with this section shall not subject any telephone solicitor ormerchant to the provisions or consequences of any other statute of this state.
ARTICLE 4 - COMMERCIAL ELECTRONIC MAIL
40-12-401. Definitions.
(a) As used in this article:
(i) "Assist the transmission" means actions taken bya person to provide substantial assistance or support which enables any personto formulate, compose, send, originate, initiate or transmit a commercialelectronic mail message when the person providing the assistance knows orconsciously avoids knowing that the initiator of the commercial electronic mailmessage is engaged or intends to engage in any practice that violates thisarticle;
(ii) "Commercial electronic mail message" means anelectronic mail message sent for the purpose of promoting real property, goodsor services for sale or lease. It does not mean an electronic mail message towhich an interactive computer service provider has attached an advertisement inexchange for free use of an electronic mail account, when the sender has agreedto such an arrangement;
(iii) "Electronic mail address" means a destination, commonlyexpressed as a string of characters, to which electronic mail may be sent ordelivered;
(iv) "Enforcing authority" means the Wyoming attorneygeneral;
(v) "Initiate the transmission" refers to the actionby the original sender of an electronic mail message, not to the action by anyintervening interactive computer service that may handle or retransmit themessage, unless such intervening interactive computer service assists in thetransmission of an electronic mail message when it knows or consciously avoidsknowing that the person initiating the transmission is engaged or intends toengage in any act or practice that violates this article;
(vi) "Interactive computer service" means anyinformation service, system or access software provider that provides orenables computer access by multiple users to a computer server, includingspecifically a service or system that provides access to the internet and such systemsoperated or services offered by libraries or educational institutions;
(vii) "Internet domain name" refers to a globallyunique, hierarchical reference to an internet host or service, assigned throughcentralized internet naming authorities, comprising a series of characterstrings separated by periods, with the right-most string specifying the top ofthe hierarchy;
(viii) "Service provider" means an entity offering thetransmission, routing or providing of connections for digital online communicationsbetween or among points specified by a user, of material of the user'schoosing, without modification to the content of the material sent or received.
40-12-402. Sending unpermitted or misleading electronic mailprohibited.
(a) No person may initiate the transmission, conspire withanother to initiate the transmission or assist the transmission of a commercialelectronic mail message from a computer located in Wyoming or to an electronicmail address that the sender knows or has reason to know is held by a Wyomingresident, or to an address that the sender knows or has reason to know islocated in a state or other jurisdiction with laws similar to this state's lawsregarding commercial electronic mail, that:
(i) Uses a third party's internet domain name withoutpermission of the third party, or otherwise misrepresents or obscures anyinformation in identifying the point of origin or the transmission path of acommercial electronic mail message; or
(ii) Contains false or misleading information in the subjectline.
(b) For purposes of this section, a person knows that theintended recipient of a commercial electronic mail message is a Wyomingresident if that information is available, upon request, from the registrant ofthe internet domain name contained in the recipient's electronic mail address.
(c) For purposes of this article, a service provider does notassist in the transmission of a commercial electronic mail message in violationof this article if:
(i) The activity which violates this article was not directedby the service provider or its agent;
(ii) The service provider does not receive a financial benefitdirectly attributable to the violation of this article by one (1) of itscustomers; and
(iii) The service provider does not provide the equipment orcomplete management of systems found to have an open mail relay.
40-12-403. Investigation of complaints; enforcement; attorney's fees.
(a) The enforcing authority shall investigate any complaintsreceived concerning violations of this article. If, after investigating anycomplaint, the enforcing authority finds that there has been a violation ofthis article, the enforcing authority may bring an action to impose a civilpenalty and to seek other relief, including injunctive relief. The civilpenalty imposed shall be as follows:
(i) For the first violation, not to exceed five hundred dollars($500.00);
(ii) For the second violation, not to exceed two thousand fivehundred dollars ($2,500.00);
(iii) For the third and subsequent violations, not to exceed fivethousand dollars ($5,000.00) per violation.
(b) An action under this section may be brought in the districtcourt of the county in which a commercial electronic mail message that violatesthis article has been received or in the district court of Laramie county,Wyoming. The civil penalty provided under this section may be recovered in anyaction brought under this article by the enforcing authority, or the enforcingauthority may terminate any investigation or action upon agreement with theperson violating this article to pay a stipulated civil penalty.
(c) In any civil litigation resulting from a transactioninvolving a violation of this article, the prevailing party, after judgment inthe trial court and exhaustion of all appeals, if any, shall receive reasonableattorney's fees and costs from the nonprevailing party.
(d) The remedies provided by this section are not exclusive andshall not preclude the imposition of any other relief or criminal penaltiesprovided by law.
40-12-404. Immunity from liability for blocking of commercialelectronic mail by interactive computer service.
(a) An interactive computer service may, upon its owninitiative, block the receipt or transmission through its service of anycommercial electronic mail that it reasonably believes is, or will be, sent inviolation of this article.
(b) No interactive computer service may be held liable for anyaction voluntarily taken in good faith to block the receipt or transmissionthrough its service of any commercial electronic mail which it reasonablybelieves is, or will be, sent in violation of this article.
ARTICLE 5 - CREDIT FREEZE REPORTS
40-12-501. Definitions.
(a) As used in this act:
(i) "Breach of the security of the data system" meansunauthorized acquisition of computerized data that materially compromises thesecurity, confidentiality or integrity of personal identifying informationmaintained by a person or business and causes or is reasonably believed tocause loss or injury to a resident of this state. Good faith acquisition ofpersonal identifying information by an employee or agent of a person orbusiness for the purposes of the person or business is not a breach of thesecurity of the data system, provided that the personal identifying informationis not used or subject to further unauthorized disclosure;
(ii) "Consumer" means any person who is utilizing orseeking credit for personal, family or household purposes;
(iii) "Consumer reporting agency" means any personwhose business is the assembling and evaluating of information as to the creditstanding and credit worthiness of a consumer, for the purposes of furnishingcredit reports, for monetary fees and dues to third parties;
(iv) "Credit report" means any written or oral report,recommendation or representation of a consumer reporting agency as to thecredit worthiness, credit standing or credit capacity of any consumer andincludes any information which is sought or given for the purpose of serving asthe basis for determining eligibility for credit to be used primarily forpersonal, family or household purposes;
(v) "Creditor" means the lender of money or vendor ofgoods, services or property, including a lessor under a lease intended as asecurity, rights or privileges, for which payment is arranged through a credittransaction, or any successor to the right, title or interest of any suchlender or vendor, and an affiliate, associate or subsidiary of any of them orany director, officer or employee of any of them or any other person in any wayassociated with any of them;
(vi) "Financial institution" means any person licensedor chartered under the laws of any state or the United States as a bank holdingcompany, bank, savings and loan association, credit union, trust company orsubsidiary thereof doing business in this state;
(vii) "Personal identifying information" means thefirst name or first initial and last name of a person in combination with one(1) or more of the following data elements when either the name or the dataelements are not redacted:
(A) Social security number;
(B) Driver's license number or Wyoming identification cardnumber;
(C) Account number, credit card number or debit card number incombination with any security code, access code or password that would allowaccess to a financial account of the person;
(D) Tribal identification card; or
(E) Federal or state government issued identification card.
(viii) "Redact" means alteration or truncation of datasuch that no more than five (5) digits of the data elements provided insubparagraphs (vii)(A)