MISSISSIPPI LEGISLATURE
2023 Regular Session
To: Banking and Financial Services
By: Representative Aguirre
AN ACT TO REGULATE THE DELIVERY OF PAYMENT SERVICES; TO DEFINE CERTAIN TERMS; TO REQUIRE A PROVIDER WHO IS IN THE BUSINESS OF OFFERING AND PROVIDING EARNED WAGE ACCESS SERVICES TO CONSUMERS TO COMPLY WITH CERTAIN REQUIREMENTS; TO PROVIDE CERTAIN PROHIBITIONS FOR SUCH PROVIDER OPERATING IN THE STATE; TO AUTHORIZE THE ATTORNEY GENERAL TO CONDUCT CIVIL INVESTIGATIONS AND BRING CIVIL ACTIONS UNDER THE PROVISIONS OF THIS ACT; TO AUTHORIZE MUNICIPALITIES TO ENACT ORDINANCES THAT ARE IN COMPLIANCE WITH, BUT NOT MORE RESTRICTIVE THAN, THE PROVISIONS OF THIS ACT; TO BRING FORWARD SECTIONS 75-24-1, 75-24-3, 75-24-5, 75-24-7, 75-24-9, 75-24-11, 75-24-13, 75-24-15, 75-24-17, 75-24-19, 75-24-21, 75-24-23, 75-24-25, 75-24-27, 75-24-29 AND 75-24-91, MISSISSIPPI CODE OF 1972, WHICH RELATE TO GENERAL PROVISIONS OF THE REGULATION OF BUSINESS FOR CONSUMER PROTECTION, FOR PURPOSES OF POSSIBLE AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. As used in this act, the following words shall have the meanings as defined in this section, unless the context clearly indicates otherwise:
(a) "Attorney General" means the Attorney General of the State of Mississippi.
(b) "Consumer" means a natural person residing in the State of Mississippi.
(c) "Earned but unpaid income" means wages, compensation, or income that a consumer has represented, and that a provider has reasonably determined, have been earned or have accrued to the benefit of the consumer but have not, at the time of the payment of proceeds, been paid to the consumer by an obligor.
(d) "Earned wage access services" means the business of delivering proceeds to consumers prior to the next date on which an obligor is obligated to pay salary, wages, compensation, or other income to a consumer.
(e) "Mandatory payment" means an amount determined by a provider, which must be paid by a consumer to that provider as a condition of receiving or repaying proceeds.
(f) "Nonmandatory payment" means an amount paid by a consumer or an obligor to a provider, which does not meet the definition of a mandatory payment. For purposes of this section, examples of permitted nonmandatory payments include, but are not limited to, the following:
(i) A fee imposed by a provider for delivery or expedited delivery of proceeds to a consumer, as long as the provider offers the consumer at least one option to receive proceeds at no cost to the consumer.
(ii) An amount paid by an obligor to a provider on a consumer's behalf, which entitles the consumer to receive proceeds at no cost to the consumer.
(iii) A subscription or membership fee imposed by a provider for a group of services that include earned wage access services, as long as the provider offers the consumer at least one option to receive proceeds at no cost to the consumer.
(iv) A tip or gratuity paid by a consumer to a provider, as long as the provider offers the consumer at least one option to receive proceeds at no cost to the consumer.
(g) "Nonrecourse" means that a provider cannot compel or attempt to compel repayment by a consumer of outstanding proceeds or nonmandatory payments owed by that consumer to that provider through any of the following means:
(i) A civil suit against the consumer in a court of competent jurisdiction.
(ii) Use of a third-party to pursue collection of outstanding proceeds or nonmandatory payments on the provider's behalf.
(iii) Sale of outstanding amounts to a third-party collector or debt buyer.
The term nonrecourse does not preclude the use by a provider of any of the foregoing methods to compel or attempt to compel repayment of outstanding amounts incurred by a consumer through fraudulent means.
(h) "Obligor" means an employer or another person, who is contractually or legally obligated to pay a consumer earned but unpaid income on an hourly, project-based, piecework, or other basis, including where the consumer is acting as an independent contractor. Obligor does not include a service provider of an obligor or another third party that has an obligation to make any payment to a consumer based solely on the consumer's agency relationship with the obligor.
(i) "Outstanding proceeds" means a payment of proceeds to a consumer by a provider, which has not yet been repaid to that provider.
(j) "Person" means a partnership, corporation, joint venture, trust, association or any legal entity other than an individual, however organized.
(k) "Proceeds" means a payment of funds to a consumer by a provider, which is based on earned but unpaid income.
(l) "Provider" means a person who is in the business of offering and providing earned wage access services to consumers."
(m) "Written" and "writing" includes communication of information in an electronic record consistent with the federal Electronic Signatures in Global and National Commerce (E-SIGN) Act, 15 USC Section 7001 et seq.
SECTION 2. The provisions of this act shall not apply to any bank, trust company, savings association, savings and loan association, savings bank or credit union that is chartered under the laws of this state or under federal law and domiciled in this state.
SECTION 3. A provider operating in the State of Mississippi shall comply with all of the following requirements:
(a) The provider shall provide all proceeds on a nonrecourse basis and shall treat nonmandatory payments as nonrecourse payment obligations.
(b) Before providing a consumer with earned wage access services, the provider shall provide a consumer with a written document, which can be included as part of the contract to provide earned wage access services, and which meets all of the following requirements:
(i) Informs the consumer of the terms and conditions of the earned wage access services.
(ii) Includes a statement that the Attorney General has jurisdiction over the earned wage access services performed by the provider and provides both a phone number and a website through which consumers can submit complaints about the provider's earned wage access services to the Division of Consumer Protection within the Attorney General's office.
(iii) Is written in a font and using language intended to be easily understood by a layperson.
(iv) Discloses any nonmandatory payments that may be directly imposed by the provider in connection with the provision of earned wage access services.
(c) The provider shall provide proceeds to a consumer via any means mutually agreed upon by the consumer and the provider.
(d) In any case in which a provider will seek repayment of proceeds from a consumer, the provider shall inform the consumer when the provider will make its first attempt to see repayment of those proceeds from the consumer.
(e) A provider that seeks repayment of proceeds from a consumer's depository institution account shall comply with applicable NACHA rules.
(f) The provider shall permit a consumer to cancel participation in an earned wage access services contract at any time without incurring a charge for doing so.
SECTION 4. A provider operating in the State of Mississippi shall not do any of the following:
(a) Impose a mandatory payment on a consumer that directly relates to the provision of earned wage access services.
(b) Charge a late fee, interest, or any other penalty or charge for failure to repay outstanding proceeds.
(c) Make the offering of earned wage access services, either in the amount of proceeds a consumer is eligible to request, or the frequency with which proceeds are provided to a consumer, contingent on whether the consumer makes any nonmandatory payments or on the size of any nonmandatory payments that consumer may make to that provider in connection with the provision of earned wage access services, provided, however, that this prohibition shall not be construed to prohibit a nonmandatory payment equal to a percentage of proceeds provided.
(d) Charge a deferral fee or any other charge in connection with deferring the collection of outstanding proceeds beyond the original scheduled repayment date.
(e) Solicit a consumer to delay repayment of outstanding proceeds for the purpose of increasing the total nonmandatory payments that provider may collect.
(f) Report a consumer's payment or failed repayment of outstanding proceeds to a consumer credit reporting agency or a debt collector.
(g) Require a credit score to determine a consumer's eligibility for earned wage access services.
(h) Provide, sell, or otherwise disclose to any third party, including an obligor, any nonpublic personal information collected from or about a consumer, except as necessary to provide earned wage access services to that consumer or in accordance with a consumer's written consent.
(i) Advertise, display or publish, or permit to be advertised, displayed or published, in any manner whatsoever, any statement or representation that is false, misleading or deceptive.
SECTION 5. (1) Proceeds provided to a consumer by a provider in accordance with the provisions of this act shall not be considered credit or a loan and the provider of those proceeds shall not be considered a creditor or a lender for purposes of Mississippi law.
(2) Nonmandatory payments paid by a consumer to a provider that is operating in accordance with the provisions of this act shall not be considered finance charges for purposes of applying the federal Truth in Lending Act to an earned wage access transaction.
SECTION 6. (1) The Attorney General shall have the authority under this act to conduct civil investigations and bring civil actions.
(2) In an action brought by the Attorney General under this act, the court may award or impose any relief available under state law.
(3) Upon a motion by the Attorney General and a finding by the court that there is a reasonable likelihood that a person violated the provisions of this act, the court may require the person to post a bond in an amount equal to a good faith estimate of the costs to litigate a claim. A hearing shall be held if either party requests a hearing.
SECTION 7. Municipalities of this state may enact ordinances that are in compliance with, but not more restrictive than, the provisions of this act. Any existing or future order, ordinance or regulation that conflicts with this provision shall be null and void.
SECTION 8. Section 75-24-1, Mississippi Code of 1972, is brought forward as follows:
75-24-1. There is hereby created and established within the Office of the Attorney General an "Office of Consumer Protection," which shall be charged with the administration of this chapter. The Attorney General is hereby authorized and empowered to employ the necessary personnel to carry out the provisions of this chapter.
SECTION 9. Section 75-24-3, Mississippi Code of 1972, is brought forward as follows:
75-24-3. As used in this chapter:
(a) "Person" means natural persons, corporations, trusts, partnerships, incorporated and unincorporated associations, and any other legal entity.
(b) "Trade" and "commerce" mean the advertising, offering for sale, or distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value wherever situated, and shall include without limitation, both domestic and foreign persons, irrespective of their having qualified to do business within the state and any trade or commerce directly or indirectly affecting the people of this state.
(c) It is the intent of the Legislature that in construing what constitutes unfair or deceptive trade practices that the courts will be guided by the interpretations given by the Federal Trade Commission and the federal courts to Section 5(a)(1) of the Federal Trade Commission Act (15 USCS 45(a)(1)) as from time to time amended.
SECTION 10. Section 75-24-5, Mississippi Code of 1972, is brought forward as follows:
75-24-5. (1) Unfair methods of competition affecting commerce and unfair or deceptive trade practices in or affecting commerce are prohibited. Action may be brought under Section 75-24-5(1) only under the provisions of Section 75-24-9.
(2) Without limiting the scope of subsection (1) of this section, the following unfair methods of competition and unfair or deceptive trade practices or acts in the conduct of any trade or commerce are hereby 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.
SECTION 11. Section 75-24-7, Mississippi Code of 1972, is brought forward as follows:
75-24-7. Nothing in this chapter shall apply to acts done by:
(a) The publisher, owner, agent or employee of a newspaper, periodical, printing shop, directory 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) Any officer acting under the orders of any court.
SECTION 12. Section 75-24-9, Mississippi Code of 1972, is brought forward as follows:
75-24-9. Whenever the Attorney General has reason to believe that any person is using, has used, 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 or county 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 or county court of the county in which the State Capitol is located. 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 13. Section 75-24-11, Mississippi Code of 1972, is brought forward as follows:
75-24-11. 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.
SECTION 14. Section 75-24-13, Mississippi Code of 1972, is brought forward as follows:
75-24-13. 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, * * * monies 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.
SECTION 15. Section 75-24-15, Mississippi Code of 1972, is brought forward as follows:
75-24-15. (1) In addition to all other statutory and common law rights, remedies and defenses, any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by the seller, lessor, manufacturer or producer of a method, act or practice prohibited by Section 75-24-5 may bring an action at law in the court having jurisdiction in the county in which the seller, lessor, manufacturer or producer resides, or has his principal place of business or, where the act or practice prohibited by Section 75-24-5 allegedly occurred, to recover such loss of money or damages for the loss of such property, or may assert, by way of setoff or counterclaim, the fact of such loss in a proceeding against him for the recovery of the purchase price or rental, or any portion thereof, of the goods or services.
(2) In any private action brought under this chapter, the plaintiff must have first made a reasonable attempt to resolve any claim through an informal dispute settlement program approved by the Attorney General.
(3) In any action or counterclaim under this section of this chapter, a prevailing defendant may recover in addition to any other relief that may be provided in this section costs and a reasonable attorney's fee, if in the opinion of the court, said action or counterclaim was frivolous or filed for the purpose of harassment or delay.
(4) Nothing in this chapter shall be construed to permit any class action or suit, but every private action must be maintained in the name of and for the sole use and benefit of the individual person.
(5) In any claim under this section filed on behalf of a veteran that charges the veteran a fee for the service shall include a form signed by the veteran acknowledging that "THE STATE OF MISSISSIPPI THROUGH THE MISSISSIPPI STATE VETERANS AFFAIRS BOARD OFFERS THE SAME OR SIMILAR SERVICE FREE OF CHARGE." The veteran must sign this form stating that he/she has read and understands it. The statement signed by the veteran shall be of a BOLD font at least one hundred twenty percent (120%) larger than the font of the claim document filed on behalf of the veteran.
SECTION 16. Section 75-24-17, Mississippi Code of 1972, is brought forward as follows:
75-24-17. If any person knowingly and willfully fails or refuses to file any statement or report, or fails or refuses to obey any subpoena or investigative demand issued by the Attorney General, the Attorney General may, after notice, apply to the chancery or county court of the county in which such person resides or has his principal place of business, or if the person be absent or a nonresident of the State of Mississippi, of such court of the county in which the state capitol is located, and, after hearing thereon, request an order:
(a) Granting injunctive relief to restrain the person from engaging in any unfair or deceptive trade practice in the advertising or sale of any merchandise or the conduct of any trade or commerce that is involved in the alleged or suspected violation;
(b) Vacating, annulling, or suspending the corporate charter of a corporation created by or under the laws of this state or revoking or suspending the certificate of authority to do business in this state of a foreign corporation or revoking or suspending any other licenses, permits or certificates issued pursuant to law to such person which are used to further the allegedly prohibited practice;
(c) Granting such other relief as may be required, until the person files the statement or report, or obeys the subpoena or investigative demand;
(d) The Attorney General may request that an individual who refuses to comply with a subpoena on the ground that testimony or matter may incriminate him be ordered by the court to provide the testimony or matter. Except in a prosecution for perjury, an individual who complies with a court order to provide testimony or matter directly related to a violation of the Mississippi Consumer Protection Act after asserting a privilege against self-incrimination to which he is entitled by law shall not have the testimony or matter so provided, or evidence derived therefrom, received against him in any criminal investigation or proceeding.
Any disobedience of any final order entered under this section by any said court shall be punished as a contempt thereof.
SECTION 17. Section 75-24-19, Mississippi Code of 1972, is brought forward 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 to exceed Ten Thousand Dollars ($10,000.00) per violation which shall be payable to the General Fund of the State of Mississippi. For the purposes of this section, the chancery or county 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, 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 to exceed Ten Thousand Dollars ($10,000.00) per violation. One-half (1/2) of said penalty shall be payable to the Office of Consumer Protection to be deposited into the Attorney General's special fund. All monies collected under this section shall be used by the Attorney General for consumer fraud education and investigative and enforcement operations of the Office of Consumer Protection. The other one-half (1/2) shall be payable to the General Fund of the State of Mississippi. 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.
(2) 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.
(3) 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 18. Section 75-24-21, Mississippi Code of 1972, is brought forward as follows:
75-24-21. It shall be the duty of the district and county attorneys to lend to the Attorney General such assistance as the Attorney General may request in the commencement and prosecution of actions pursuant to this chapter. The district attorney and county attorney shall, within their respective jurisdictions, have the same duty and responsibility under this chapter as that of the Attorney General statewide in the enforcement thereof, and they shall prosecute actions hereunder in the same manner as provided for the Attorney General. When any action is prosecuted by such district or county attorney alone or in concert, he or they shall make a full report thereon to the Attorney General, including the final disposition of the matter.
When any action has been prosecuted by a district or county attorney, at the request of the Attorney General, the Attorney General is authorized to pay the actual cost and expense of such action after same has been submitted to and approved by the court in which the action was taken, subject always to the final approval of the Attorney General.
The Attorney General may establish programs for the education of the public with respect to this chapter.
SECTION 19. Section 75-24-23, Mississippi Code of 1972, is brought forward as follows:
75-24-23. The remedies in this chapter are in addition to and not in derogation of remedies otherwise available under federal, state or local law to the Attorney General, the district or county attorneys, or to persons injured by violations of this chapter.
SECTION 20. Section 75-24-25, Mississippi Code of 1972, is brought forward as follows:
75-24-25. (1) For the purposes of this section, the following terms shall have the meanings herein ascribed:
(a) "Person" means a natural person, corporation, trust, partnership, incorporated or unincorporated association, or any other legal entity.
(b) "State of emergency" has the meaning ascribed in Section 33-15-5.
(c) "Local emergency" has the meaning ascribed in Section 33-15-5.
(d) "Emergency impact area" has the meaning ascribed in Section 33-15-5.
(e) "Value received" means the consideration or payment given for the purchase of goods and services.
(2) Whenever, under the Mississippi Emergency Management Law, Sections 33-15-1 through 33-15-49, a state of emergency or a local emergency is declared to exist in this state, then the value received for all goods and services sold within the designated emergency impact area shall not exceed the prices ordinarily charged for comparable goods or services in the same market area at or immediately before the declaration of a state of emergency or local emergency. However, the value received may include: any expenses, the cost of the goods and services which are necessarily incurred in procuring such goods and services during a state of emergency or local emergency. The prices ordinarily charged for comparable goods or services in the same market area do not include temporarily discounted goods or services. The same market area does not necessarily mean a single provider of goods or services.
(3) Any person who knowingly and willfully violates subsection (2) of this section, when the total value received during a twenty-four-hour period is Five Hundred Dollars ($500.00) or more, shall be guilty of a felony and upon conviction shall be punished by confinement for a term of not less than one (1) year nor more than five (5) years or a fine of not more than Five Thousand Dollars ($5,000.00), or both.
(4) Any person who knowingly and willfully violates subsection (2) of this section, when the total value received during a twenty-four-hour period is less than Five Hundred Dollars ($500.00), shall be guilty of a misdemeanor and upon conviction shall be fined not more than One Thousand Dollars ($1,000.00) or by imprisonment in the county jail for a term not to exceed six (6) months, or both.
(5) For the purpose of determining the punishment to be imposed under subsections (3) and (4) of this section, the value received during a twenty-four-hour period shall be aggregated.
(6) In addition to the criminal penalties prescribed in subsections (3) and (4), any knowing and willful violation of subsection (2) of this section shall be considered an unfair or deceptive trade practice subject to and governed by all the procedures and remedies available under the provisions of this chapter for enforcement of prohibited acts and practices contained therein.
SECTION 21. Section 75-24-27, Mississippi Code of 1972, is brought forward 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 powers conferred by this chapter, may:
(a) Issue subpoenas and subpoenas duces tecum;
(b) Issue cease and desist orders to persons suspected of violating any provisions of this chapter;
(c) Administer an oath or affirmation to any person;
(d) Conduct hearings in aid of any investigation or inquiry;
(e) Compel the production of books, papers, documents, and other evidence, and call upon other state agencies for information;
(f) Issue any necessary rules and regulations in order to carry out the provisions of this chapter; and
(g) Enter into an assurance of voluntary compliance or an assurance of voluntary discontinuance with any person for settlement purposes.
(2) Unless otherwise ordered by a court for good cause shown, no statement or documentary material produced pursuant to subpoena under 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.
(3) 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 22. Section 75-24-29, Mississippi Code of 1972, is brought forward as follows:
75-24-29. (1) This section applies to any person who conducts business in this state and who, in the ordinary course of the person's business functions, owns, licenses or maintains personal information of any resident of this state.
(2) For purposes of this section, the following terms shall have the meanings ascribed unless the context clearly requires otherwise:
(a) "Breach of security" means unauthorized acquisition of electronic files, media, databases or computerized data containing personal information of any resident of this state when access to the personal information has not been secured by encryption or by any other method or technology that renders the personal information unreadable or unusable;
(b) "Personal information" means an individual's first name or first initial and last name in combination with any one or more of the following data elements:
(i) Social security number;
(ii) Driver's license
number, state identification card number
or tribal identification card number; or
(iii) An account number or credit or debit card number in combination with any required security code, access code or password that would permit access to an individual's financial account; "personal information" does not include publicly available information that is lawfully made available to the general public from federal, state or local government records or widely distributed media;
(iv) "Affected individual" means any individual who is a resident of this state whose personal information was, or is reasonably believed to have been, intentionally acquired by an unauthorized person through a breach of security.
(3) A person who conducts business in this state shall disclose any breach of security to all affected individuals. The disclosure shall be made without unreasonable delay, subject to the provisions of subsections (4) and (5) of this section and the completion of an investigation by the person to determine the nature and scope of the incident, to identify the affected individuals, or to restore the reasonable integrity of the data system. Notification shall not be required if, after an appropriate investigation, the person reasonably determines that the breach will not likely result in harm to the affected individuals.
(4) Any person who conducts business in this state that maintains computerized data which includes personal information that the person does not own or license shall notify the owner or licensee of the information of any breach of the security of the data as soon as practicable following its discovery, if the personal information was, or is reasonably believed to have been, acquired by an unauthorized person for fraudulent purposes.
(5) Any notification required by this section shall be delayed for a reasonable period of time if a law enforcement agency determines that the notification will impede a criminal investigation or national security and the law enforcement agency has made a request that the notification be delayed. Any such delayed notification shall be made after the law enforcement agency determines that notification will not compromise the criminal investigation or national security and so notifies the person of that determination.
(6) Any notice required by the provisions of this section may be provided by one (1) of the following methods: (a) written notice; (b) telephone notice; (c) electronic notice, if the person's primary means of communication with the affected individuals is by electronic means or if the notice is consistent with the provisions regarding electronic records and signatures set forth in 15 USCS 7001; or (d) substitute notice, provided the person demonstrates that the cost of providing notice in accordance with paragraph (a), (b) or (c) of this subsection would exceed Five Thousand Dollars ($5,000.00), that the affected class of subject persons to be notified exceeds five thousand (5,000) individuals or the person does not have sufficient contact information. Substitute notice shall consist of the following: electronic mail notice when the person has an electronic mail address for the affected individuals; conspicuous posting of the notice on the website of the person if the person maintains one; and notification to major statewide media, including newspapers, radio and television.
(7) Any person who conducts business in this state that maintains its own security breach procedures as part of an information security policy for the treatment of personal information, and otherwise complies with the timing requirements of this section, shall be deemed to be in compliance with the security breach notification requirements of this section if the person notifies affected individuals in accordance with the person's policies in the event of a breach of security. Any person that maintains such a security breach procedure pursuant to the rules, regulations, procedures or guidelines established by the primary or federal functional regulator, as defined in 15 USCS 6809(2), shall be deemed to be in compliance with the security breach notification requirements of this section, provided the person notifies affected individuals in accordance with the policies or the rules, regulations, procedures or guidelines established by the primary or federal functional regulator in the event of a breach of security of the system.
(8) Failure to comply with the requirements of this section shall constitute an unfair trade practice and shall be enforced by the Attorney General; however, nothing in this section may be construed to create a private right of action.
SECTION 23. Section 75-24-91, Mississippi Code of 1972, is brought forward as follows:
75-24-91. (1) The term "service contract," "home warranty" or "home service contract," as used in this section, means a contract or agreement for a separately stated consideration for a specific duration to perform the repair, replacement or maintenance of property or to reimburse, in whole or in part, the owner of such property for the repair, replacement or maintenance of property if the operational or structural failure is due to a defect in materials or manufacturing or to normal wear and tear. A service contract may contain a provision for incidental payment under such contract where service, repair or replacement is not feasible or economical.
(2) The marketing, sale, offering for sale, issuance, making, proposing to make and administration of a service contract is not a contract of insurance under Mississippi law and is exempt from the provisions of Title 83, Mississippi Code of 1972.
(3) Service contracts shall be subject to the provisions of the Mississippi Consumer Protection Act, Section 75-24-1 et seq.
(4) Nothing contained herein shall repeal or alter the regulation of vehicle service contracts currently defined and regulated under Section 83-65-101 et seq.
SECTION 24. This act shall take effect and be in force from and after July 1, 2023.