| 1 | 1 | | 25 LC 28 0668 |
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| 2 | 2 | | Senate Bill 164 |
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| 3 | 3 | | By: Senators Merritt of the 9th, Jones II of the 22nd, Jackson of the 41st, Mallow of the 2nd, |
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| 4 | 4 | | Kemp of the 38th and others |
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| 5 | 5 | | A BILL TO BE ENTITLED |
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| 6 | 6 | | AN ACT |
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| 7 | 7 | | To amend Chapter 1 of Title 10 of the Official Code of Georgia Annotated, relating to selling |
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| 8 | 8 | | 1 |
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| 9 | 9 | | and other trade practices, so as to prohibit surveillance based price discrimination and2 |
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| 10 | 10 | | surveillance based wage discrimination; to provide for definitions; to provide for civil3 |
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| 11 | 11 | | penalties and enforcement; to provide for exceptions; to provide for certain rule making; to4 |
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| 12 | 12 | | provide for the promulgation of rules and regulations; to provide for penalties; to provide for5 |
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| 13 | 13 | | related matters; to repeal conflicting laws; and for other purposes.6 |
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| 14 | 14 | | BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:7 |
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| 15 | 15 | | SECTION 1.8 |
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| 16 | 16 | | Chapter 1 of Title 10 of the Official Code of Georgia Annotated, relating to selling and other9 |
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| 17 | 17 | | trade practices, is amended by adding a new article to read as follows:10 |
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| 18 | 18 | | "ARTICLE 37 |
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| 19 | 19 | | 11 |
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| 20 | 20 | | 10-1-960.12 |
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| 21 | 21 | | As used in this article, the term:13 |
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| 22 | 22 | | S. B. 164 |
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| 23 | 23 | | - 1 - 25 LC 28 0668 |
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| 24 | 24 | | (1) 'Automated decision system' means any system, software, or process, including one14 |
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| 25 | 25 | | derived from machine learning, statistics, or other data processing or artificial intelligence15 |
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| 26 | 26 | | techniques and excluding passive computing infrastructure, that uses computation, which16 |
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| 27 | 27 | | is used to assist or replace human decision making.17 |
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| 28 | 28 | | (2) 'Behaviors' means an individual's observable, measurable, or inferred actions, habits,18 |
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| 29 | 29 | | preferences, interests, or vulnerabilities, including an individual's political, personal, or19 |
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| 30 | 30 | | professional affiliations, web browsing history, IP addresses, locations frequented,20 |
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| 31 | 31 | | purchase history, financial circumstances, consumer behaviors, or inferences associated21 |
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| 32 | 32 | | with a group, band, class, or tier of individuals of which the individual is associated.22 |
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| 33 | 33 | | (3) 'Biometrics' means data or information generated by the technological, processing,23 |
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| 34 | 34 | | measurement, or analysis of a consumer or worker's biological, physical, or behavioral24 |
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| 35 | 35 | | characteristics which can be processed for the purpose of uniquely identifying an25 |
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| 36 | 36 | | individual. Such term includes a fingerprint; a voice print; a scan or record of an eye26 |
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| 37 | 37 | | retina or iris image; a facial map, geometry, or template; genetic information; or other27 |
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| 38 | 38 | | unique biological, physical, or behavioral patterns or characteristics.28 |
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| 39 | 39 | | (4) 'Consumer' means an individual who obtains, maintains, uses, purchases, leases, or29 |
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| 40 | 40 | | receives goods, services, real property, or personal property or the representative of such30 |
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| 41 | 41 | | individual.31 |
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| 42 | 42 | | (5) 'Genetic information' means information about an individual's genetic test, the genetic32 |
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| 43 | 43 | | tests of family members of such individual, and the manifestation of a disease or disorder33 |
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| 44 | 44 | | in such individual's family members. Such term includes any request for, or receipt of,34 |
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| 45 | 45 | | genetic services with respect to an individual, or participation by such individual or such35 |
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| 46 | 46 | | individual's family members in clinical research that includes such genetic services. Such36 |
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| 47 | 47 | | term includes genetic information of a fetus carried by a pregnant individual. Such term37 |
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| 48 | 48 | | includes genetic information of any embryo legally held by an individual or such38 |
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| 49 | 49 | | individual's family member utilizing reproductive technology. Such term does not39 |
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| 50 | 50 | | include information about the sex or age of an individual.40 |
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| 51 | 51 | | S. B. 164 |
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| 52 | 52 | | - 2 - 25 LC 28 0668 |
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| 53 | 53 | | (6) 'Individualized' means specific to or inferences about an individual or group, band,41 |
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| 54 | 54 | | class, or tier of individuals with particular personal characteristics, behaviors, or42 |
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| 55 | 55 | | biometrics.43 |
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| 56 | 56 | | (7) 'Insurer' means every person engaged as a principal, indemnitor, surety, or contractor44 |
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| 57 | 57 | | in the business of making contracts of insurance.45 |
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| 58 | 58 | | (8) 'Personal characteristics' means individual qualities, features, attributes, or traits,46 |
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| 59 | 59 | | including immutable characteristics such as race and eye color; mutable characteristics47 |
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| 60 | 60 | | such as a mailing address, weight, citizenship, or parental status; and any other personally48 |
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| 61 | 61 | | identifiable information that could be used to uncover an individual's identity, including49 |
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| 62 | 62 | | social security number, full name, or telephone number.50 |
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| 63 | 63 | | (9) 'Price' means the amount charged to a consumer in relation to a transaction, including51 |
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| 64 | 64 | | all related costs and fees, and any other material terms of such transaction that has a52 |
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| 65 | 65 | | direct bearing on the amount paid by the consumer or the value of the good or service to53 |
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| 66 | 66 | | the consumer.54 |
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| 67 | 67 | | (10) 'Surveillance based price discrimination' means using an automated decision system55 |
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| 68 | 68 | | to inform individualized prices based on surveillance data regarding a consumer.56 |
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| 69 | 69 | | (11) 'Surveillance based wage discrimination' means using an automated decision system57 |
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| 70 | 70 | | to inform individualized wages based on surveillance data regarding a worker.58 |
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| 71 | 71 | | (12) 'Surveillance data' means data obtained through observation, inference, or59 |
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| 72 | 72 | | surveillance of an individual that is related to personal characteristics, behaviors, or60 |
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| 73 | 73 | | biometrics of such individual or a group, class, tier, or band of which the individual is61 |
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| 74 | 74 | | associated. Such term includes information gathered, purchased, or otherwise acquired.62 |
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| 75 | 75 | | (13) 'Wage' means the material terms offered to a worker in exchange for labor,63 |
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| 76 | 76 | | including the amount to be paid for such labor, whether as an hourly rate, piece rate,64 |
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| 77 | 77 | | salary, bonuses, commissions and incentives, scheduling, task assignment, and any other65 |
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| 78 | 78 | | similar material terms that have a direct impact on earnings of such worker.66 |
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| 79 | 79 | | S. B. 164 |
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| 80 | 80 | | - 3 - 25 LC 28 0668 |
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| 81 | 81 | | (14) 'Worker' means a natural person performing work as an employee, and includes any67 |
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| 82 | 82 | | individual, including a migratory laborer, performing labor or services for the benefit of68 |
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| 83 | 83 | | an employer and any other individuals performing labor or services on behalf of or for69 |
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| 84 | 84 | | the benefit of an employer or other person. For the purposes of this article, such term70 |
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| 85 | 85 | | includes relevant factors in determining whether an individual is an employee including71 |
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| 86 | 86 | | the degree of control such employer may exercise or does exercise over such individual72 |
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| 87 | 87 | | and the degree to which such individual performs labor or services that is the primary73 |
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| 88 | 88 | | work of the employer; provided, however, that an individual primarily free from control74 |
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| 89 | 89 | | and direction in the performance of such labor or services, both under his or her contract75 |
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| 90 | 90 | | for the performance of such labor or services, and who is customarily engaged in an76 |
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| 91 | 91 | | independent trade, occupation, profession, or business related to such labor or services77 |
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| 92 | 92 | | performed is not an employee.78 |
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| 93 | 93 | | 10-1-961.79 |
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| 94 | 94 | | (a)(1) No person shall engage in surveillance based price discrimination.80 |
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| 95 | 95 | | (2) A person shall not be considered to have engaged in surveillance based price81 |
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| 96 | 96 | | discrimination if such person can demonstrate that:82 |
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| 97 | 97 | | (A) Differential prices are justified based on differences in the cost of providing a good83 |
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| 98 | 98 | | or service to different consumers; or84 |
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| 99 | 99 | | (B) Such person operates as an insurer and only inputs risk relevant data into any85 |
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| 100 | 100 | | automated decision system that informs decisions related to any amount a consumer86 |
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| 101 | 101 | | must pay for an insurance policy.87 |
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| 102 | 102 | | (3) Surveillance based price discrimination shall not include the refusal to extend credit88 |
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| 103 | 103 | | at specific terms or the refusal to enter into a transaction with a specific consumer based89 |
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| 104 | 104 | | on data provided in a consumer report covered by the federal Fair Credit Reporting Act,90 |
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| 105 | 105 | | 15 U.S.C. Section 1681, et. seq.91 |
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| 106 | 106 | | (b)(1) No person shall engage in surveillance based wage discrimination.92 |
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| 107 | 107 | | S. B. 164 |
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| 108 | 108 | | - 4 - 25 LC 28 0668 |
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| 109 | 109 | | (2) A person has not engaged in surveillance based wage discrimination if such person93 |
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| 110 | 110 | | can demonstrate that:94 |
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| 111 | 111 | | (A) Such person offers individualized wages based solely on:95 |
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| 112 | 112 | | (i) Data specific to a worker that is directly related to the labor or services such96 |
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| 113 | 113 | | worker was hired to perform; or97 |
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| 114 | 114 | | (ii) Differences in the cost to the worker of providing labor and services to such98 |
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| 115 | 115 | | person;99 |
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| 116 | 116 | | (B) Such person discloses in plain language before hiring a worker to perform labor100 |
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| 117 | 117 | | or services and to all workers whose wages are set in whole or in part by an automated101 |
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| 118 | 118 | | decision system and what data is considered and how such automated decision system102 |
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| 119 | 119 | | considers such data; and103 |
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| 120 | 120 | | (C) Such person develops and proactively provides to all workers reasonable104 |
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| 121 | 121 | | procedures to ensure the accuracy of all data considered by an automated decision105 |
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| 122 | 122 | | system in setting wage rates as determined through rule making.106 |
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| 123 | 123 | | (3) Surveillance based wage discrimination shall not include a decision not to hire an107 |
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| 124 | 124 | | individual who such person has not previously employed.108 |
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| 125 | 125 | | 10-1-962.109 |
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| 126 | 126 | | The Attorney General is authorized to promulgate such rules and regulations as necessary110 |
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| 127 | 127 | | for the purpose of implementing and enforcing this article.111 |
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| 128 | 128 | | 10-1-963.112 |
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| 129 | 129 | | Nothing in this article, including the enforcement authority granted to the Attorney General113 |
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| 130 | 130 | | and the district attorneys of this state, shall preempt or otherwise affect any other right,114 |
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| 131 | 131 | | claim, remedy, presumption, or defense available at law or in equity.115 |
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| 132 | 132 | | S. B. 164 |
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| 133 | 133 | | - 5 - 25 LC 28 0668 |
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| 134 | 134 | | 10-1-964.116 |
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| 135 | 135 | | (a) A person that violates any provision of this article engages in a deceptive, unfair, or117 |
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| 136 | 136 | | unconscionable act or practice.118 |
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| 137 | 137 | | (b) The Attorney General or any district attorney may bring a civil action on behalf of the119 |
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| 138 | 138 | | state to seek the imposition of civil penalties as follows:120 |
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| 139 | 139 | | (1) Any person that violates any provision of this article shall forfeit and pay to the121 |
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| 140 | 140 | | general fund of this state a civil penalty of not more than $10,000.00 for each such122 |
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| 141 | 141 | | violation. Each violation of this article shall constitute a separate violation with respect123 |
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| 142 | 142 | | to each consumer, worker, or transaction involved; and124 |
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| 143 | 143 | | (2) Costs and attorneys' fees shall be awarded to the Attorney General or a district125 |
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| 144 | 144 | | attorney in all actions where the Attorney General or the district attorney successfully126 |
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| 145 | 145 | | enforces the provisions of this article.127 |
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| 146 | 146 | | (c) In addition to any remedies otherwise provided by law or in equity, a person aggrieved128 |
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| 147 | 147 | | by a violation of this article may bring a civil action on behalf of themselves or a group of129 |
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| 148 | 148 | | similarly situated persons to restrain further violations and to recover damages, costs, and130 |
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| 149 | 149 | | reasonable attorneys' fees, including the greater of:131 |
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| 150 | 150 | | (1) The amount of actual damages sustained, including prejudgment interest of either132 |
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| 151 | 151 | | 8 percent per year or at the rate provided for in Code Section 7-4-2, whichever is greater,133 |
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| 152 | 152 | | from the date the claim under this article accrued;134 |
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| 153 | 153 | | (2) The amount of $3,000.00 for each violation and each such violation of this article135 |
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| 154 | 154 | | shall constitute a separate violation with respect to each consumer, worker, or transaction136 |
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| 155 | 155 | | involved; or137 |
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| 156 | 156 | | (3) Three times the amount of actual damages sustained, if it is established by clear and138 |
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| 157 | 157 | | convincing evidence that such person violating the provisions of this article engaged in139 |
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| 158 | 158 | | bad faith conduct or intentionally violated the provisions of this article."140 |
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| 159 | 159 | | S. B. 164 |
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| 160 | 160 | | - 6 - 25 LC 28 0668 |
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| 161 | 161 | | SECTION 2. |
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| 162 | 162 | | 141 |
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| 163 | 163 | | All laws and parts of laws in conflict with this Act are repealed.142 |
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| 164 | 164 | | S. B. 164 |
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| 165 | 165 | | - 7 - |
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