MISSISSIPPI LEGISLATURE
2017 Regular Session
To: Judiciary, Division A
By: Senator(s) Fillingane
AN ACT TO AMEND THE MISSISSIPPI CONSUMER PROTECTION ACT; TO AMEND SECTION 75-24-5, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT THE ANTITRUST STATUTE GOVERNS ANTICOMPETITIVE ACTIVITIES; TO AMEND SECTION 75-24-7, MISSISSIPPI CODE OF 1972, TO EXTEND THE SAME PROTECTION TO WEBSITE PROVIDERS AS IS ENJOYED BY PUBLISHERS; TO AMEND SECTION 75-24-9, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT AN INJUNCTION SHOULD BE ISSUED ONLY WHEN THERE IS A THREAT OF AN ONGOING VIOLATION AND TO LIMIT JURISDICTION TO THE CHANCERY COURTS; TO AMEND SECTION 75-24-11, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT ADDITIONAL REMEDIES CAN ONLY BE GRANTED WHEN THE COURT HAS ALREADY DECIDED THAT AN INJUNCTION IS REQUIRED; TO AMEND SECTION 75-24-13, MISSISSIPPI CODE OF 1972, TO CLARIFY APPLICATION OF THE CHAPTER IF A RECEIVER IS APPOINTED; TO AMEND SECTION 75-24-17, MISSISSIPPI CODE OF 1972, TO CLARIFY THAT ALL CIVIL ACTIONS UNDER THE ACT ARE GOVERNED BY THE RULES OF CIVIL PROCEDURE; TO AMEND SECTION 75-24-19, MISSISSIPPI CODE OF 1972, TO CLARIFY THE IMPOSITION OF CIVIL PENALTIES SO THAT EACH MONTH A VIOLATION EXISTS IS A SEPARATE VIOLATION; TO AMEND SECTION 75-24-23, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE REMEDIES OF THE ACT ARE THE EXCLUSIVE REMEDIES FOR VIOLATIONS; TO AMEND SECTION 75-24-27, MISSISSIPPI CODE OF 1972, TO ALLOW EITHER THE STATE OR THE ALLEGED VIOLATOR TO INSTITUTE A COURT PROCEEDING; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 75-24-5, Mississippi Code of 1972, is amended as follows:
75-24-5. (1) Unfair * * *
or deceptive trade practices in or affecting commerce are prohibited. An
action may be brought under Section 75-24-5(1) only under the provisions of Section
75-24-9.
(2) * * *
By way of illustration of the types of activity prohibited by this
section, the following * * * unfair or deceptive trade practices or
acts in the conduct of any trade or commerce are hereby prohibited; although
this list is not exhaustive, any practice or act not specifically listed must
be of the same nature as those listed to be prohibited:
(a) Passing off goods or services as those of another;
(b) Misrepresentation of the source, sponsorship, approval, or certification of goods or services;
(c) Misrepresentation of affiliation, connection, or association with, or certification by another;
(d) Misrepresentation of designations of geographic origin in connection with goods or services;
(e) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that he does not have;
(f) Representing that goods are original or new if they are reconditioned, reclaimed, used, or secondhand;
(g) Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another;
(h) Disparaging the goods, services, or business of another by false or misleading representation of fact;
(i) Advertising goods or services with intent not to sell them as advertised;
(j) Advertising goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity;
(k) Misrepresentations of fact concerning the reasons for, existence of, or amounts of price reductions;
(l) Advertising by or on behalf of any licensed or regulated health care professional which does not specifically describe the license or qualifications of the licensed or regulated health care professional;
(m) Charging an increased premium for reinstating a motor vehicle insurance policy that was cancelled or suspended by the insured solely for the reason that he was transferred out of this state while serving in the United States Armed Forces or on active duty in the National Guard or United States Armed Forces Reserve. It is also an unfair practice for an insurer to charge an increased premium for a new motor vehicle insurance policy if the applicant for coverage or his covered dependents were previously insured with a different insurer and canceled that policy solely for the reason that he was transferred out of this state while serving in the United States Armed Forces or on active duty in the National Guard or United States Armed Forces Reserve. For purposes of determining premiums, an insurer shall consider such persons as having maintained continuous coverage. The provisions of this paragraph (m) shall apply only to such instances when the insured does not drive the vehicle during the period of cancellation or suspension of his policy.
(3) The mere quoting of a particular price or the mere offer to sell or to provide a good or service for a particular price is not an unfair or deceptive trade practice in or affecting commerce.
SECTION 2. Section 75-24-7, Mississippi Code of 1972, is amended as follows:
75-24-7. Nothing in this
chapter shall apply to * * * an act or practice:
(a) Done by the publisher, owner, agent or employee of a newspaper, periodical, printing shop, directory, website provider 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.
(b) Done by any officer acting under the orders of any court.
(c) Permitted under laws of the State of Mississippi or the United States or under rules, regulations or decisions interpreting the laws, including, but not limited to, acts or practices permitted or authorized by a state or federal regulatory agency tasked by statute to regulated the acts or practices.
SECTION 3. Section 75-24-9, Mississippi Code of 1972, is amended as follows:
75-24-9. Whenever the
Attorney General has reason to believe that any person is using * * * or is about to use any method, act
or practice prohibited by Section 75-24-5, 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 or permanent injunction the use of such method,
act or practice. The action shall be brought in the chancery * * * court of the county in which such
person resides or has his principal place of business, or, with consent of the
parties, may be brought in the Chancery * * * Court of the * * * First
Judicial District of Hinds County. The said courts are authorized to issue
temporary or permanent injunctions to restrain and prevent violations of this
chapter, and such injunctions shall be issued without bond.
SECTION 4. Section 75-24-11, Mississippi Code of 1972, is amended as follows:
75-24-11. (1) In any action where a temporary or permanent injunction has been issued under Section 75-29-9, the court may make such additional orders or judgments, including restitution, as may be necessary to restore to any person in interest any monies or property, real or personal, which may have been acquired by means of any practice prohibited by this chapter, including the appointment of a receiver or the revocation of a license or certificate authorizing that person to engage in business in this state, or both.
(2) For purposes of this section, the State of Mississippi or its political subdivisions shall be considered a "person" only with regard to their proprietary capacities and not with regard to any parens patriae capacity or representative capacity.
(3) The phrase "monies or property, real or personal," as used in this section, is limited to those related to goods or services purchased or leased primarily for personal, family or household purposes.
(4) The statute of limitations applicable to a private claim by a person, as the phrase "any person" is used in this section, is applicable to any monies or property sought on behalf of the person under this section.
SECTION 5. Section 75-24-13, Mississippi Code of 1972, is amended as follows:
75-24-13. (1) When a receiver is appointed by the court pursuant to this chapter, he shall have the power to sue for, collect, receive and take into his possession all the goods and chattels, rights and credits, moneys and effects, lands and tenements, books, records, documents, papers, choses in action, bills, notes and property of every description, derived by means of any practice prohibited by this chapter, including property with which such property has been mingled if it cannot be identified in kind because of such commingling, and collect or to bring suit to collect in the name of the state for and on behalf of the owner of any chose in action, and to sell, convey, and assign the same and hold and dispose of the proceeds thereof under the direction of the court. Any person who has suffered damages as a result of the use of employment of any practices prohibited by this chapter, and submits proof to the satisfaction of the court that he has in fact been damaged, may participate with general creditors in the distribution of the assets to the extent he has sustained out-of-pocket losses. The receiver shall settle the estate and distribute the assets under the direction of the court. The court shall have jurisdiction of all questions arising in such proceedings and may make such orders and judgments therein as may be required.
(2) The provisions of Section 75-24-11(3) and (4) apply to any receivership established under this section.
SECTION 6. Section 75-24-17, Mississippi Code of 1972, is amended as follows:
75-24-17. * * *
Any civil action brought under this chapter, including an action under Section 75-24-27, shall be governed by the Mississippi Rules of Civil Procedure. Every order finally resolving all claims in such a civil action shall be a final judgment, subject to appeal as other final judgments.
SECTION 7. Section 75-24-19, Mississippi Code of 1972, is amended as follows:
75-24-19. (1) Civil remedies.
(a) Any person who
violated the terms of an injunction issued under Section 75-24-9 shall forfeit
and pay to the state a civil penalty in a sum not * * *
less than One Hundred Dollars ($100.00) nor more than Twenty-five Thousand
Dollars ($25,000.00). Each month in which a person is found to be in violation
of the terms of an injunction is a separate violation. The civil
penalty which shall be payable to the General Fund of the State of
Mississippi. For the purposes of this section, the chancery * * * court issuing an injunction shall
retain jurisdiction, and the cause shall be continued, and in such cases the
Attorney General acting in the name of the state may petition for recovery of
civil penalties.
(b) In any action
brought under Section 75-24-9 for which a temporary or permanent injunction
is issued, if the court finds from clear and convincing evidence * * * that a person knowingly and willfully used
any unfair or deceptive trade practice, method or act prohibited by Section 75-24-5,
the Attorney General, upon petition to the court, may recover on behalf of the
state a civil penalty in a sum not * * *
less than One Hundred Dollars ($100.00) nor more than Twenty-five Thousand
Dollars ($25,000.00). Each month in which a person is found to be in violation
of the terms of an injunction is a separate violation. * * *
(c) All civil penalties recovered shall be payable to the State General Fund.
(2) The Attorney General may also recover, in addition to any other relief that may be provided in this section, investigative costs and a reasonable attorney's fee in an action where the court awards civil penalties.
(3) In determining the size of an appropriate civil penalty, a court shall consider:
(a) The person's degree of culpability and good or bad faith;
(b) The actual impact or injury to the public resulting from the defendant's conduct;
(c) The duration of the person's unlawful conduct;
(d) Whether the person engaged in prior similar conduct;
(e) The deterrent value of the penalty;
(f) Any other liability already imposed as a result of the same course of conduct; and
(g) The potential for undue adverse economic impacts.
(4) A civil penalty for an unfair or deceptive trade practice, method or act prohibited by Section 75-24-5 that did not result in significant harm to the public shall not exceed One Million Dollars ($1,000,000.00) for a single course of conduct, without regard to the number of months the violation existed.
(5) Other than the penalties authorized by this subsection, no penalties or punitive damages may be awarded in any civil action brought pursuant to this chapter.
( * * *6) No penalty authorized by this
section shall be deemed to limit the court's powers to insure compliance with
its orders, decrees and judgments, or punish for the violations thereof.
( * * *7) For purposes of this section, a
knowing and willful violation occurs when the court finds from clear and
convincing evidence that the party committing the violation knew or should have
known that his conduct was a violation of Section 75-24-5.
SECTION 8. Section 75-24-23, Mississippi Code of 1972, is amended as follows:
75-24-23. The remedies in
this chapter * * * for
violations of this chapter are exclusive, but the provision of this chapter
shall not prevent any person from seeking relief under other provisions of
federal, state or local law for activities that may also be in violation of
this chapter.
SECTION 9. Section 75-24-27, Mississippi Code of 1972, is amended as follows:
75-24-27. (1) To
accomplish the objectives and to carry out the duties prescribed in this
chapter, the Attorney General, or his designee, in addition to the other
powers conferred by this chapter, may * * *
serve a
written investigative demand upon a person whom the Attorney General has
reasonable cause to believe has engaged in, is engaging in, or is about to
engage in any act or practice declared to be unlawful by this chapter. Each
such investigative demand shall state the nature of the conduct constituting
the alleged violation which is under investigation and the provision of this
chapter applicable to the violation. The demand may request the person to
furnish, under oath or otherwise, a report in writing setting forth the
relevant facts and circumstances of which the person has knowledge, or to
appear and testify or to produce relevant documentary material or physical
evidence for examination, at a reasonable time and place as may be stated in
the investigative demand.
(2) If a person upon whom an investigative demand has been served does not comply within the time stated in the demand, the Attorney General may initiate a civil action against the person in the nature of a complaint for a bill of discovery in chancery court. The action shall be brought in the chancery court of the county in which such person resides or has his principal place of business, or, with consent of the parties, may be brought in the Chancery Court of the First Judicial District of Hinds County.
(3) No relief shall be granted to the Attorney General in an action filed under Section 74-2427(2) unless the court determines that there is reasonable cause to believe a violation of this chapter may be occurring or is about to occur. The court shall also order reasonable measures as the court deems just to protect affected persons from undue expense and burden, including, but not limited to, measures to ensure that the scope of any investigative activity is reasonable and to require the Attorney General to reimburse the adversely affected persons for the cost of compliance.
(4) A person who is the subject of an investigative demand issued under this section shall be entitled to assert any privileges recognized by federal law or Mississippi law, including, but not limited to, privileges recognized by the Mississippi Rules of Evidence.
(5) Any disobedience by a person of any final judgment entered under this section by a court shall be punished as a contempt thereof. An order finding a person in contempt shall be a final judgment subject to appeal as other final judgments. The timely filing of a notice of appeal shall operate as a supersedas, and, in such case, the appealed judgment shall not be enforced until final disposition of the appeal.
(6) Without a court order issued under this section, the Attorney General or his designee may enter into an assurance of voluntary compliance or an assurance of voluntary discontinuance with any person for settlement purposes.
( * * *7) Unless otherwise ordered by a court
for good cause shown, no * * *statement or documentary material evidence produced
pursuant to * * * this section shall be produced for inspection or copying by,
nor shall the contents thereof be disclosed to any person other than the
authorized employees of the Attorney General without the consent of the person
who produced the material.
( * * *8) The Attorney General may use the
documentary material or copies thereof in the enforcement of this chapter by
presentation before any court, provided that any such material which contains
trade secrets or proprietary information shall not be presented except with the
approval of the court in which the action is pending after adequate notice to
the person furnishing such material. However, when material containing trade
secrets or proprietary information is presented with court approval, the
material and the evidence pertaining thereto shall be held in camera and shall
not be part of the court record or trial transcript.
SECTION 10. This act shall take effect and be in force from and after July 1, 2017.