ORS 646.638
Civil action by private party; damages; attorney fees; effect of prior injunction; time for commencing action; counterclaim; class actions


(1)

Except as provided in subsections (8) and (9) of this section, a person that suffers an ascertainable loss of money or property, real or personal, as a result of another person’s willful use or employment of a method, act or practice declared unlawful under ORS 646.608 (Additional unlawful business, trade practices), may bring an individual action in an appropriate court to recover actual damages or statutory damages of $200, whichever is greater. The court or the jury may award punitive damages and the court may provide any equitable relief the court considers necessary or proper.

(2)

A person that brings an action under subsection (1) of this section shall mail a copy of the complaint or other initial pleading to the Attorney General at the time the action commences and, upon entry of any judgment in the action, shall mail a copy of the judgment to the Attorney General. Failure to mail a copy of the complaint is not a jurisdictional defect, but a court may not enter judgment for the plaintiff until proof of mailing is filed with the court. Proof of mailing may be by affidavit or by return receipt of mailing.

(3)

The court may award reasonable attorney fees and costs at trial and on appeal to a prevailing plaintiff in an action under this section. The court may award reasonable attorney fees and costs at trial and on appeal to a prevailing defendant only if the court finds that an objectively reasonable basis for bringing the action or asserting the ground for appeal did not exist.

(4)

The court may not award attorney fees to a prevailing defendant under the provisions of subsection (3) of this section if the action under this section is maintained as a class action pursuant to ORCP 32.

(5)

Any permanent injunction or final judgment or order the court makes under ORS 646.632 (Enjoining unlawful trade practices) or 646.636 (Remedial power of court) is prima facie evidence in an action brought under this section that the respondent used or employed a method, act or practice declared unlawful under ORS 646.608 (Additional unlawful business, trade practices), but an assurance of voluntary compliance, whether or not approved by the court, is not evidence of the violation.

(6)

Actions brought under this section must be commenced within one year after the discovery of the unlawful method, act or practice. Notwithstanding this limitation, if a prosecuting attorney filed a complaint to prevent, restrain or punish a violation of ORS 646.608 (Additional unlawful business, trade practices), the complaint tolls the statute of limitations with respect to every private right of action under this section that is based in whole or in part on any matter set forth in the prosecuting attorney’s complaint for the period of time in which the proceeding that the prosecuting attorney initiated is pending.

(7)

Notwithstanding subsection (6) of this section, in any action that a seller or lessor brings against a purchaser or lessee of real estate, goods or services, the purchaser or lessee may assert any counterclaim that the purchaser or lessee has arising out of a violation of ORS 336.184 (Oregon Student Information Protection Act) and 646.605 (Definitions for ORS 336.184 and 646.605 to 646.652) to 646.652 (District attorney’s reports to Attorney General).

(8)

A class action may be maintained under this section. In any class action under this section:

(a)

Statutory damages under subsection (1) of this section may be recovered on behalf of class members only if the plaintiffs in the action establish that the members have sustained an ascertainable loss of money or property as a result of a reckless or knowing use or employment by the defendant of a method, act or practice declared unlawful by ORS 646.608 (Additional unlawful business, trade practices);

(b)

The trier of fact may award punitive damages; and

(c)

The court may award appropriate equitable relief.

(9)

This section does not apply to:

(a)

Any method, act or practice described in ORS 646.608 (Additional unlawful business, trade practices) (1)(aa). Actions for violation of laws relating to odometers are provided under ORS 815.410 (Illegal odometer tampering) and 815.415 (Unlawful repair of odometer).

(b)

A violation of ORS 86.726 (Resolution conference for foreclosure) (1)(a) or (2), 86.729 (Scheduling and notice for resolution conference) (4) or 86.732 (Attendance at resolution conference) (1) or (2). [1971 c.744 §13; 1973 c.235 §5; 1975 c.437 §4; 1977 c.195 §9; 1981 c.897 §78; 1985 c.251 §10b; 1995 c.696 §35; 2001 c.917 §3; 2001 c.924 §§16,18; 2005 c.42 §§3,4; 2009 c.327 §1; 2009 c.552 §6; 2013 c.304 §14]

Notes of Decisions

Under this section, plaintiff need not allege or prove amount of “ascertainable loss,” when minimum claim of $200 is made. Scott v. Western Int. Sales, Inc., 267 Or 512, 517 P2d 661 (1973)

“Ascertainable,” as used in this section, means capable of being discovered, observed or established. Scott v. Western Int. Sales, Inc., 267 Or 512, 517 P2d 661 (1973)

A deliberate and calculated misrepresentation by a nonmanagerial employe justified imposition of punitive damages. Allen v. Morgan Drive Away, Inc., 273 Or 614, 542 P2d 896 (1975)

Where seller was aware that automobile had been involved in major accident, but misrepresented that it had suffered only normal wear and tear, imposition of punitive damages was justified. Byers v. Santiam Ford, Inc., 281 Or 411, 574 P2d 1122 (1978)

Under this section, no action lies unless defendant’s conduct is wilful; thus where plaintiff failed to allege wilfulness defendant’s demurrer to complaint should have been allowed. Luedeman v. Tri-West Construction Co., 39 Or App 401, 592 P2d 281 (1979)

Where defendant sold plaintiff mattresses and boxsprings which contained tags indicating items were second-hand, but represented that items were new, it was jury question whether plaintiff had sufficient knowledge to be put on inquiry prior to time he actually saw and read tags. Bodin v. B & L Furniture Co., 42 Or App 731, 601 P2d 848 (1979)

Requirement of this section that complaint be mailed to Attorney General is not jurisdictional defect, but judgment may not be entered until proof of mailing is filed. Bodin v. B & L Furniture Co., 42 Or App 731, 601 P2d 848 (1979)

Where evidence indicated that contractor misrepresented homeowner’s right to rescind contract, award of punitive damages under this section was proper, but misrepresentation concerning status of its license did not give rise to punitive damages. Tri-West Const. v. Hernandez, 43 Or App 961, 607 P2d 1375 (1979), Sup Ct review denied

Under this section, legislative intent is that jury can award punitive damages if it finds deterrence is called for and defendant’s conduct is particularly aggravated. Crooks v. Payless Drug Stores, 285 Or 481, 592 P2d 196 (1979)

Plaintiff’s mere filing of complaint with Consumer Protection Division did not toll limitation period of this section. Myers v. MHI Investments, Inc., 44 Or App 467, 606 P2d 652 (1980), Sup Ct review denied

Where defendant incurred expenses in obtaining a loan to pay plaintiff’s charges for unauthorized repairs, these were an “ascertainable loss” under this section and entitled defendant to recover minimum penalty, punitive damages and attorney fees. Riviera Motors, Inc. v. Higbee, 45 Or App 545, 609 P2d 369 (1980), Sup Ct review denied

Where, inter alia, evidence showed that defendant’s agent was aware plaintiffs were particularly concerned about preserving view which property had; that he knew view was prime reason for price plaintiffs paid; that notwithstanding, he gave plaintiffs unfounded and unsupportable assurances that view would be protected from obstructing buildings; building restrictions were not included in adjacent properties before their sale and plaintiff’s view was obstructed by subsequent construction; actions revealed deliberate and conscious effort to misrepresent and award of punitive damages was proper. Mabin v. Tualatin Development Co., 48 Or App 271, 616 P2d 1196 (1980)

Plaintiff could not recover under this section for defendant’s failure to disclose that they offered denturist services in their advertisement where evidence showed that plaintiff did not know there was a difference between “dentists” and “denturists.” Terry v. Holden-Dhein Enterprises, Ltd., 48 Or App 763, 618 P2d 7 (1980), Sup Ct review denied

Attorney fees are not “ascertainable” loss supporting action for damages. C.A.R. Tow, Inc. v. Corwin, 76 Or App 192, 708 P2d 644 (1985)

Menial agent rule does not apply in claims for punitive damages under this section. Teague Motor Company v. Rowton, 84 Or App 72, 733 P2d 93 (1987)

Where plaintiffs pled “counterclaim” asking for award of attorney fees pursuant to ORS 646.638 (3) in summary judgment appeal, counterclaim constituted separate claim within meaning of ORCP 67B for purpose of judgment from which plaintiffs could appeal. Swagerty v. Joe Romania Chevrolet, 95 Or App 728, 770 P2d 967 (1989), Sup Ct review denied

Trial court was authorized under this section to award attorney fees necessary to defend unlawful trade practices claim found to be frivolous, regardless of whether those fees also were necessary to defend fraud claim. Estate of Wesley E. Smith v. Ware, 307 Or 478, 769 P2d 773 (1989)

Allowing recovery of attorney fees under this provision does not preclude recovery under [former] ORS 18.540. Honeywell v. Sterling Furniture Co., 310 Or 206, 797 P2d 1019 (1990)

Action may be instituted in form of counterclaim to FED action. Hoffer v. Szumski, 129 Or App 7, 877 P2d 128 (1994)

Expense incurred and wages lost due to litigation are not recoverable as damages in claim for unfair trade practices. Hedrick v. Spear, 138 Or App 53, 907 P2d 1123 (1995)

Where complainant reasonably relies upon misrepresentation by defendant, misrepresentation may delay discovery date for limitation of action purposes. McCulloch v. Price Waterhouse LLP, 157 Or App 237, 971 P2d 414 (1998), Sup Ct review denied

On Review of Jury’S Punitive Damages Award Under Unlawful Trade Practices Act, Reviewing Court Must Consider

1) statutory and common law factors that allow award of punitive damages; 2) state’s interest in protecting consumers by punishing violators and deterring violators and others from similar misconduct; 3) reprehensible nature of violator’s conduct; 4) ratio between punitive damages awarded and actual and potential harm caused by violator’s tortious conduct; and 5) range of sanctions provided in statute. Parrott v. Carr Chevrolet, Inc., 331 Or 537, 17 P3d 473 (2001)

Person who spends money to prevent unlawful trade practice does not suffer ascertainable loss of money or property as result of unlawful trade practice. Paul v. Providence Health System-Oregon, 237 Or App 584, 240 P3d 1110 (2010), aff’d 351 Or 587, 273 P3d 106 (2012)

Law Review Citations

54 OLR 127-130 (1975); 73 OLR 639 (1994)

§§ 646.605 to 646.656

Notes of Decisions

A complaint which alleges in one count that defendants advertised automobile for sale with intent not to sell it as advertised, in a second count that there was a failure to disclose advertised price coupled with sale at greater amount sufficiently pleads action under Act. Sanders v. Francis, 277 Or 593, 561 P2d 1003 (1977)

Plaintiff’s purchase of truck to carry on business of hauling freight in order to provide family investment and employment for family member did not fall within provisions of Act. Searle v. Exley Express, Inc., 278 Or 535, 564 P2d 1054 (1977)

Amendment of definition of “trade” and “commerce” to include “advertising, offering or distributing, whether by sale, rental or otherwise, any real estate, goods or services” does not indicate legislative intent to extend application of Unfair Trade Practices Act to loans and extensions of credit. Lamm v. Amfac Mortgage Corp., 44 Or App 203, 605 P2d 730 (1980)

There is no requirement that consumer prove all elements of common law fraud in order to recover damages under Unlawful Trade Practices Act. Raudebaugh v. Action Pest Control, 59 Or App 166, 650 P2d 1006 (1982)

Plaintiff’s allegations that defendant escrow company represented that plaintiff would receive security interests on notes from sale of their business did not constitute misrepresentations actionable under Unlawful Trade Practices Act. Samuels v. Key Title Co., 63 Or App 627, 665 P2d 362 (1983), Sup Ct review denied

Law Review Citations

56 OLR 490 (1977); 13 WLJ 455 (1977)

§§ 646.605 to 646.652

Notes of Decisions

Where users of IUDs brought suit against manufacturer on variety of grounds, claiming damages for infertility, private enforcement provision of Oregon Unlawful Trade Practices Act (UTPA) does not provide remedy for personal injuries. Allen v. G.D. Searle and Co., 708 F Supp 1142 (D. Or. 1989)

For purposes of applying Oregon Unlawful Trade Practices Act, real estate, goods or services are obtained primarily for personal, family or household purposes if (1) real estate, good or service is customarily purchased by substantial number of people for personal, family or household use and (2) person actually purchases real estate, good or service for personal, family or household use. Fowler v. Cooley, 239 Or App 338, 245 P3d 155 (2010)

Law Review Citations

51 OLR 335, 346, 408 (1972); 53 OLR 473-475 (1974); 94 OLR 589 (2016)

Chapter 646

Notes of Decisions

Subject matter regulated by this chapter is not “preempted” by Federal Robinson-Patman Act so as to render this chapter invalid. W. J. Seufert v. Nat. Restaurant Supply Co., 266 Or 92, 511 P2d 363 (1973)

Whether an injunction should issue when a court finds a violation of the Act is a matter of discretion. State ex rel Johnson v. International Harvester Co., 25 Or App 9, 548 P2d 176 (1976)

This chapter imposes no affirmative duty to inform customers of rates in absence of request, but prohibits making information about prices available to some customers and not others. Wildish Sand & Gravel v. Northwest Natural Gas Co., 103 Or App 215, 796 P2d 1237 (1990), Sup Ct review denied


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