Indiana 2023 Regular Session

Indiana Senate Bill SB0328 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	~~SB0328.1~~
2		-	~~February 10, 2023~~
	1	+
	2	+	Introduced Version
3	3		SENATE BILL No. 328
4	4		_____
5		-	DIGEST OF ~~SB 328 (Updated February 8, 2023 3:16 pm - DI 149)~~
6		-	Citations Affected: IC 4-12; IC 24-5.
	5	+	DIGEST OF INTRODUCED BILL
	6	+	Citations Affected: IC 4-12-16-3; IC 24-5-0.5.
7	7		Synopsis: Enforcement of deceptive consumer sales act. Provides that
8	8		the agency settlement fund administered by the budget agency does not
9	9		include costs and expenses, including reasonable attorney's fees and
10	10		expert fees, received by the attorney general in connection with an
11	11		action brought by the attorney general under the deceptive consumer
12		-	sales act (act). Amends the definition of "consumer transaction" for
13		-	purposes of the act to include conduct that arises from, occurs in
14		-	connection with, or otherwise involves a transaction between
15		-	commercial entities if the conduct results in harm to consumers.
16		-	Provides that in an action for an injunction brought by the attorney
17		-	general under the act, the court may order the supplier to pay the costs
18		-	and expenses of the action, including reasonable attorney's fees and
19		-	expert fees. Provides that any award, judgment, or settlement for the
20		-	costs and expenses of the attorney general's action, including
21		-	reasonable attorney's fees and expert fees, shall be deposited in the
22		-	consumer protection judgment fund and used to support the efforts of
23		-	the division of consumer protection. Provides that an action that arises
24		-	from, or otherwise involves, a consumer transaction that: (1) involves
25		-	a transaction between commercial entities; and (2) results in harm to
26		-	consumers; may only be brought and enforced by the attorney general.
27		-	Provides that the attorney general may not bring an action under the act
28		-	more than five years after the occurrence of the deceptive act.
	12	+	sales act (act). Amends various provisions of the act to specify that the
	13	+	act applies to unfair, abusive, or deceptive acts, omissions, or practices
	14	+	in connection with a consumer transaction. (The act's terminology
	15	+	currently refers to "deceptive acts".) Amends the definition of
	16	+	"consumer transaction" for purposes of the act to include conduct that
	17	+	arises from, occurs in connection with, or otherwise involves a
	18	+	transaction between commercial entities if the conduct results in harm
	19	+	to consumers. Provides that in an action for an injunction brought by
	20	+	the attorney general under the act, the court may order the supplier to
	21	+	pay the costs and expenses of the action, including reasonable
	22	+	attorney's fees and expert fees. Provides that any award, judgment, or
	23	+	settlement for the costs and expenses of the attorney general's action,
	24	+	including reasonable attorney's fees and expert fees, shall be deposited
	25	+	in the consumer protection judgment fund and used to support the
	26	+	efforts of the division of consumer protection. Provides that an action
	27	+	that arises from, or otherwise involves, a consumer transaction that: (1)
	28	+	involves a transaction between commercial entities; and (2) results in
	29	+	harm to consumers; may only be brought and enforced by the attorney
	30	+	general.
29	31		Effective: July 1, 2023.
30		-	Messmer~~, Koch, Randolph Lonnie M~~
	32	+	Messmer
31	33		January 12, 2023, read first time and referred to Committee on Judiciary.
32		-	February 9, 2023, amended, reported favorably — Do Pass; reassigned to Committee on
33		-	Appropriations.
34		-	SB 328—LS 6868/DI 101 February 10, 2023
	34	+	2023 IN 328—LS 6868/DI 101 Introduced
35	35		First Regular Session of the 123rd General Assembly (2023)
36	36		PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
37	37		Constitution) is being amended, the text of the existing provision will appear in this style type,
38	38		additions will appear in this style type, and deletions will appear in this style type.
39	39		Additions: Whenever a new statutory provision is being enacted (or a new constitutional
40	40		provision adopted), the text of the new provision will appear in this style type. Also, the
41	41		word NEW will appear in that style type in the introductory clause of each SECTION that adds
42	42		a new provision to the Indiana Code or the Indiana Constitution.
43	43		Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts
44	44		between statutes enacted by the 2022 Regular Session of the General Assembly.
45	45		SENATE BILL No. 328
46	46		A BILL FOR AN ACT to amend the Indiana Code concerning trade
47	47		regulation.
48	48		Be it enacted by the General Assembly of the State of Indiana:
49	49		1 SECTION 1. IC 4-12-16-3, AS AMENDED BY P.L.141-2021,
50	50		2 SECTION 2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
51	51		3 JULY 1, 2023]: Sec. 3. (a) The fund consists of:
52	52		4 (1) except as provided in subsections (b) and (c), all funds
53	53		5 received by the state under:
54	54		6 (A) multistate and Indiana specific settlements;
55	55		7 (B) assurances of voluntary compliance accepted by the
56	56		8 attorney general; and
57	57		9 (C) any other form of agreement that:
58	58		10 (i) is enforceable by a court; and
59	59		11 (ii) settles litigation between the state and another party; and
60	60		12 (2) all money recovered as court costs or costs related to
61	61		13 litigation.
62	62		14 (b) Any amount of restitution that is:
63	63		15 (1) awarded to an individual or institution under a settlement or
64	64		16 assurance of voluntary compliance;
65	65		17 (2) unclaimed by an individual or institution;
66		-	SB 328—LS 6868/DI 101 2
	66	+	2023 IN 328—LS 6868/DI 101 2
67	67		1 (3) received by a state agency; and
68	68		2 (4) determined to be abandoned property under IC 32-34-1.5;
69	69		3 must be deposited in the abandoned property fund under
70	70		4 IC 32-34-1.5-42.
71	71		5 (c) The fund does not include the following:
72	72		6 (1) Funds received by the state department of revenue.
73	73		7 (2) Funds required to be deposited in the securities division
74	74		8 enforcement account (IC 23-19-6-1).
75	75		9 (3) Funds received as the result of a civil forfeiture under
76	76		10 IC 34-24-1.
77	77		11 (4) Funds received as a civil penalty or as part of an enforcement
78	78		12 or collection action by an agency authorized to impose a civil
79	79		13 penalty or engage in an enforcement or collection action, if the
80	80		14 funds are required to be deposited in the general fund or another
81	81		15 fund by statute.
82	82		16 (5) Funds recovered by the Medicaid fraud control unit in actions
83	83		17 to recover money inappropriately paid out of or obtained from the
84	84		18 state Medicaid program.
85	85		19 (6) Amounts required to be paid as consumer restitution or
86	86		20 refunds in settlements specified in this chapter.
87	87		21 (7) Amounts received under the Master Settlement Agreement (as
88	88		22 defined in IC 24-3-3-6).
89	89		23 (8) Costs and expenses, including reasonable attorney's fees
90	90		24 and expert fees, received by the attorney general in
91	91		25 connection with an action brought by the attorney under
92	92		26 IC 24-5-0.5-4(c), as provided for in IC 24-5-0.5-4(c)(7).
93		-	27 SECTION 2. IC 24-5-0.5-2, AS AMENDED BY P.L.280-2019,
94		-	28 SECTION 4, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
95		-	29 JULY 1, 2023]: Sec. 2. (a) As used in this chapter:
96		-	30 (1) "Consumer transaction" means a sale, lease, assignment,
97		-	31 award by chance, or other disposition of an item of personal
98		-	32 property, real property, a service, or an intangible, except
99		-	33 securities and policies or contracts of insurance issued by
100		-	34 corporations authorized to transact an insurance business under
101		-	35 the laws of the state of Indiana, with or without an extension of
102		-	36 credit, to a person for purposes that are primarily personal,
103		-	37 familial, charitable, agricultural, or household, or a solicitation to
104		-	38 supply any of these things. However, the term includes the
105		-	39 following:
106		-	40 (A) A transfer of structured settlement payment rights under
107		-	41 IC 34-50-2.
108		-	42 (B) An unsolicited advertisement sent to a person by telephone
109		-	SB 328—LS 6868/DI 101 3
110		-	1 facsimile machine offering a sale, lease, assignment, award by
111		-	2 chance, or other disposition of an item of personal property,
112		-	3 real property, a service, or an intangible.
113		-	4 (C) The collection of or attempt to collect a debt by a debt
114		-	5 collector.
115		-	6 (D) Conduct that is described in section 3(a) of this chapter
116		-	7 and that arises from, occurs in connection with, or
117		-	8 otherwise involves a transaction between commercial
118		-	9 entities if the conduct results in harm to consumers.
119		-	10 (2) "Person" means an individual, corporation, the state of Indiana
120		-	11 or its subdivisions or agencies, business trust, estate, trust,
121		-	12 partnership, association, nonprofit corporation or organization, or
122		-	13 cooperative or any other legal entity.
123		-	14 (3) "Supplier" means the following:
124		-	15 (A) A seller, lessor, assignor, or other person who regularly
125		-	16 engages in or solicits consumer transactions, including
126		-	17 soliciting a consumer transaction by using a telephone
127		-	18 facsimile machine to transmit an unsolicited advertisement.
128		-	19 The term includes a manufacturer, wholesaler, or retailer, or,
129		-	20 in a consumer transaction described in subdivision (1)(D),
130		-	21 a commercial entity, regardless of whether or not the person
131		-	22 deals directly with the consumer.
132		-	23 (B) A debt collector.
133		-	24 (4) "Subject of a consumer transaction" means the personal
134		-	25 property, real property, services, or intangibles offered or
135		-	26 furnished in a consumer transaction.
136		-	27 (5) "Cure" as applied to a deceptive act, means either:
137		-	28 (A) to offer in writing to adjust or modify the consumer
138		-	29 transaction to which the act relates to conform to the
139		-	30 reasonable expectations of the consumer generated by such
140		-	31 deceptive act and to perform such offer if accepted by the
141		-	32 consumer; or
142		-	33 (B) to offer in writing to rescind such consumer transaction
143		-	34 and to perform such offer if accepted by the consumer.
144		-	35 The term includes an offer in writing of one (1) or more items of
145		-	36 value, including monetary compensation, that the supplier
146		-	37 delivers to a consumer or a representative of the consumer if
147		-	38 accepted by the consumer.
148		-	39 (6) "Offer to cure" as applied to a deceptive act is a cure that:
149		-	40 (A) is reasonably calculated to remedy a loss claimed by the
150		-	41 consumer; and
151		-	42 (B) includes a minimum additional amount that is the greater
152		-	SB 328—LS 6868/DI 101 4
153		-	1 of:
154		-	2 (i) ten percent (10%) of the value of the remedy under
155		-	3 clause (A), but not more than four thousand dollars
156		-	4 ($4,000); or
157		-	5 (ii) five hundred dollars ($500);
158		-	6 as compensation for attorney's fees, expenses, and other costs
159		-	7 that a consumer may incur in relation to the deceptive act.
160		-	8 (7) "Uncured deceptive act" means a deceptive act:
161		-	9 (A) with respect to which a consumer who has been damaged
162		-	10 by such act has given notice to the supplier under section 5(a)
163		-	11 of this chapter; and
164		-	12 (B) either:
165		-	13 (i) no offer to cure has been made to such consumer within
166		-	14 thirty (30) days after such notice; or
167		-	15 (ii) the act has not been cured as to such consumer within a
168		-	16 reasonable time after the consumer's acceptance of the offer
169		-	17 to cure.
170		-	18 (8) "Incurable deceptive act" means a deceptive act done by a
171		-	19 supplier as part of a scheme, artifice, or device with intent to
172		-	20 defraud or mislead. The term includes a failure of a transferee of
173		-	21 structured settlement payment rights to timely provide a true and
174		-	22 complete disclosure statement to a payee as provided under
175		-	23 IC 34-50-2 in connection with a direct or indirect transfer of
176		-	24 structured settlement payment rights.
177		-	25 (9) "Senior consumer" means an individual who is at least sixty
178		-	26 (60) years of age.
179		-	27 (10) "Telephone facsimile machine" means equipment that has
180		-	28 the capacity to transcribe text or images, or both, from:
181		-	29 (A) paper into an electronic signal and to transmit that signal
182		-	30 over a regular telephone line; or
183		-	31 (B) an electronic signal received over a regular telephone line
184		-	32 onto paper.
185		-	33 (11) "Unsolicited advertisement" means material advertising the
186		-	34 commercial availability or quality of:
187		-	35 (A) property;
188		-	36 (B) goods; or
189		-	37 (C) services;
190		-	38 that is transmitted to a person without the person's prior express
191		-	39 invitation or permission, in writing or otherwise.
192		-	40 (12) "Debt" has the meaning set forth in 15 U.S.C. 1692(a)(5).
193		-	41 (13) "Debt collector" has the meaning set forth in 15 U.S.C.
194		-	42 1692(a)(6). The term does not include a person admitted to the
195		-	SB 328—LS 6868/DI 101 5
196		-	1 practice of law in Indiana if the person is acting within the course
197		-	2 and scope of the person's practice as an attorney. The term
198		-	3 includes a debt buyer (as defined in IC 24-5-15.5).
199		-	4 (b) As used in section 3(b)(15) and 3(b)(16) of this chapter:
200		-	5 (1) "Directory assistance" means the disclosure of telephone
201		-	6 number information in connection with an identified telephone
202		-	7 service subscriber by means of a live operator or automated
203		-	8 service.
204		-	9 (2) "Local telephone directory" refers to a telephone classified
205		-	10 advertising directory or the business section of a telephone
206		-	11 directory that is distributed by a telephone company or directory
207		-	12 publisher to subscribers located in the local exchanges contained
208		-	13 in the directory. The term includes a directory that includes
209		-	14 listings of more than one (1) telephone company.
210		-	15 (3) "Local telephone number" refers to a telephone number that
211		-	16 has the three (3) number prefix used by the provider of telephone
212		-	17 service for telephones physically located within the area covered
213		-	18 by the local telephone directory in which the number is listed. The
214		-	19 term does not include long distance numbers or 800-, 888-, or
215		-	20 900- exchange numbers listed in a local telephone directory.
216		-	21 SECTION 3. IC 24-5-0.5-4, AS AMENDED BY THE TECHNICAL
217		-	22 CORRECTIONS BILL OF THE 2023 GENERAL ASSEMBLY, IS
218		-	23 AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2023]:
219		-	24 Sec. 4. (a) A person relying upon an uncured or incurable deceptive act
220		-	25 may bring an action for the damages actually suffered as a consumer as
221		-	26 a result of the deceptive act, or five hundred dollars ($500), whichever
222		-	27 is greater. The court may increase damages for a willful deceptive act
223		-	28 in an amount that does not exceed the greater of:
224		-	29 (1) three (3) times the actual damages of the consumer suffering
225		-	30 the loss; or
226		-	31 (2) one thousand dollars ($1,000).
227		-	32 Except as provided in subsection (j), (k), the court may award
228		-	33 reasonable attorney attorney's fees to the party that prevails in an
229		-	34 action under this subsection. This subsection does not apply to a
230		-	35 consumer transaction in real property, including a claim or action
231		-	36 involving a construction defect (as defined in IC 32-27-3-1(5)) brought
232		-	37 against a construction professional (as defined in IC 32-27-3-1(4)),
233		-	38 except for purchases of time shares and camping club memberships.
234		-	39 This subsection does not apply with respect to a deceptive act
235		-	40 described in section 3(b)(20) of this chapter. This subsection also does
236		-	41 not apply to a violation of IC 24-4.7, IC 24-5-12, IC 24-5-14, or
237		-	42 IC 24-5-14.5. Actual damages awarded to a person under this section
238		-	SB 328—LS 6868/DI 101 6
239		-	1 have priority over any civil penalty imposed under this chapter.
240		-	2 (b) Any person who is entitled to bring an action under subsection
241		-	3 (a) on the person's own behalf against a supplier for damages for a
242		-	4 deceptive act, may bring a class action against such supplier on behalf
243		-	5 of any class of persons of which that person is a member and which has
244		-	6 been damaged by such deceptive act subject to and under the Indiana
245		-	7 Rules of Trial Procedure governing class actions, except as herein
246		-	8 expressly provided. Except as provided in subsection (j), (k), the court
247		-	9 may award reasonable attorney attorney's fees to the party that
248		-	10 prevails in a class action under this subsection, provided that such fee
249		-	11 shall be determined by the amount of time reasonably expended by the
250		-	12 attorney and not by the amount of the judgment, although the
251		-	13 contingency of the fee may be considered. Except in the case of an
252		-	14 extension of time granted by the attorney general under
253		-	15 IC 24-10-2-2(b) in an action subject to IC 24-10, any money or other
254		-	16 property recovered in a class action under this subsection which
255		-	17 cannot, with due diligence, be restored to consumers within one (1)
256		-	18 year after the judgment becomes final shall be returned to the party
257		-	19 depositing the same. This subsection does not apply to a consumer
258		-	20 transaction in real property, except for purchases of time shares and
259		-	21 camping club memberships. This subsection does not apply with
260		-	22 respect to a deceptive act described in section 3(b)(20) of this chapter.
261		-	23 Actual damages awarded to a class have priority over any civil penalty
262		-	24 imposed under this chapter.
263		-	25 (c) The attorney general may bring an action to enjoin a deceptive
264		-	26 act, including a deceptive act described in section 3(b)(20) of this
265		-	27 chapter, notwithstanding subsections (a) and (b). However, The
266		-	28 attorney general may seek to enjoin patterns of incurable deceptive
267		-	29 acts, with respect to consumer transactions in real property. In addition,
268		-	30 the court may:
269		-	31 (1) issue an injunction;
270		-	32 (2) order the supplier to make payment of the money unlawfully
271		-	33 received from the aggrieved consumers to be held in escrow for
272		-	34 distribution to aggrieved consumers;
273		-	35 (3) for a knowing violation against a senior consumer, increase
274		-	36 the amount of restitution ordered under subdivision (2) in any
275		-	37 amount up to three (3) times the amount of damages incurred or
276		-	38 value of property or assets lost;
277		-	39 (4) order the supplier to pay to the state the reasonable costs of
278		-	40 the attorney general's investigation and prosecution related to the
279		-	41 action;
280		-	42 (5) provide for the appointment of a receiver; and
281		-	SB 328—LS 6868/DI 101 7
282		-	1 (6) order the department of state revenue to suspend the supplier's
283		-	2 registered retail merchant certificate, subject to the requirements
284		-	3 and prohibitions contained in IC 6-2.5-8-7(i), if the court finds
285		-	4 that a violation of this chapter involved the sale or solicited sale
286		-	5 of a synthetic drug (as defined in IC 35-31.5-2-321), a synthetic
287		-	6 drug lookalike substance (as defined in IC 35-31.5-2-321.5
288		-	7 (repealed)) (before July 1, 2019), a controlled substance analog
289		-	8 (as defined in IC 35-48-1-9.3), or a substance represented to be a
290		-	9 controlled substance (as described in IC 35-48-4-4.6); and
291		-	10 (7) order the supplier to pay the costs and expenses of the
292		-	11 action, including reasonable attorney's fees and expert fees.
293		-	12 Any award, judgment, or settlement for the costs and
294		-	13 expenses of the action, including reasonable attorney's fees
295		-	14 and expert fees, made or reached under this subdivision shall
296		-	15 be deposited in the consumer protection judgment fund and
297		-	16 used to support the efforts of the division of consumer
298		-	17 protection created by IC 4-6-9-1.
299		-	18 An action that arises from, or otherwise involves, a consumer
300		-	19 transaction described in section 2(a)(1)(D) of this chapter may only
301		-	20 be brought and enforced by the attorney general under this
302		-	21 subsection.
303		-	22 (d) In an action under subsection (a), (b), or (c), the court may void
304		-	23 or limit the application of contracts or clauses resulting from deceptive
305		-	24 acts and order restitution to be paid to aggrieved consumers.
306		-	25 (e) In any action under subsection (a) or (b), upon the filing of the
307		-	26 complaint or on the appearance of any defendant, claimant, or any
308		-	27 other party, or at any later time, the trial court, the supreme court, or the
309		-	28 court of appeals may require the plaintiff, defendant, claimant, or any
310		-	29 other party or parties to give security, or additional security, in such
311		-	30 sum as the court shall direct to pay all costs, expenses, and
312		-	31 disbursements that shall be awarded against that party or which that
313		-	32 party may be directed to pay by any interlocutory order by the final
314		-	33 judgment or on appeal.
315		-	34 (f) Any person who violates the terms of an injunction issued under
316		-	35 subsection (c) shall forfeit and pay to the state a civil penalty of not
317		-	36 more than fifteen thousand dollars ($15,000) per violation. For the
318		-	37 purposes of this section, the court issuing an injunction shall retain
319		-	38 jurisdiction, the cause shall be continued, and the attorney general
320		-	39 acting in the name of the state may petition for recovery of civil
321		-	40 penalties. Whenever the court determines that an injunction issued
322		-	41 under subsection (c) has been violated, the court shall award
323		-	42 reasonable costs to the state.
324		-	SB 328—LS 6868/DI 101 8
325		-	1 (g) If a court finds any person has knowingly violated section 3 or
326		-	2 10 of this chapter, other than section 3(b)(19), 3(b)(20), or 3(b)(40) of
327		-	3 this chapter, the attorney general, in an action pursuant to subsection
328		-	4 (c), may recover from the person on behalf of the state a civil penalty
329		-	5 of a fine not exceeding five thousand dollars ($5,000) per violation.
330		-	6 (h) If a court finds that a person has violated section 3(b)(19) of this
331		-	7 chapter, the attorney general, in an action under subsection (c), may
332		-	8 recover from the person on behalf of the state a civil penalty as follows:
333		-	9 (1) For a knowing or intentional violation, one thousand five
334		-	10 hundred dollars ($1,500).
335		-	11 (2) For a violation other than a knowing or intentional violation,
336		-	12 five hundred dollars ($500).
337		-	13 A civil penalty recovered under this subsection shall be deposited in
338		-	14 the consumer protection division telephone solicitation fund
339		-	15 established by IC 24-4.7-3-6 to be used for the administration and
340		-	16 enforcement of section 3(b)(19) of this chapter.
341		-	17 (i) A senior consumer relying upon an uncured or incurable
342		-	18 deceptive act including an act related to hypnotism may bring an action
343		-	19 to recover treble damages, if appropriate.
344		-	20 (j) An offer to cure is:
345		-	21 (1) not admissible as evidence in a proceeding initiated under this
346		-	22 section unless the offer to cure is delivered by a supplier to the
347		-	23 consumer or a representative of the consumer before the supplier
348		-	24 files the supplier's initial response to a complaint; and
349		-	25 (2) only admissible as evidence in a proceeding initiated under
350		-	26 this section to prove that a supplier is not liable for attorney's fees
351		-	27 under subsection (k).
352		-	28 If the offer to cure is timely delivered by the supplier, the supplier may
353		-	29 submit the offer to cure as evidence to prove in the proceeding in
354		-	30 accordance with the Indiana Rules of Trial Procedure that the supplier
355		-	31 made an offer to cure.
356		-	32 (k) A supplier may not be held liable for the attorney's fees and
357		-	33 court costs of the consumer that are incurred following the timely
358		-	34 delivery of an offer to cure as described in subsection (j) unless the
359		-	35 actual damages awarded, not including attorney's fees and costs, exceed
360		-	36 the value of the offer to cure.
361		-	37 (l) If a court finds that a person has knowingly violated section
362		-	38 3(b)(20) of this chapter, the attorney general, in an action under
363		-	39 subsection (c), may recover from the person on behalf of the state a
364		-	40 civil penalty not exceeding one thousand dollars ($1,000) per
365		-	41 consumer. In determining the amount of the civil penalty in any action
366		-	42 by the attorney general under this subsection, the court shall consider,
367		-	SB 328—LS 6868/DI 101 9
368		-	1 among other relevant factors, the frequency and persistence of
369		-	2 noncompliance by the debt collector, the nature of the noncompliance,
370		-	3 and the extent to which the noncompliance was intentional. A person
371		-	4 may not be held liable in any action by the attorney general for a
372		-	5 violation of section 3(b)(20) of this chapter if the person shows by a
373		-	6 preponderance of evidence that the violation was not intentional and
374		-	7 resulted from a bona fide error, notwithstanding the maintenance of
375		-	8 procedures reasonably adapted to avoid the error. A person may not be
376		-	9 held liable in any action for a violation of this chapter for contacting a
377		-	10 person other than the debtor, if the contact is made in compliance with
378		-	11 the Fair Debt Collection Practices Act.
379		-	12 (m) If a court finds that a person has knowingly or intentionally
380		-	13 violated section 3(b)(40) of this chapter, the attorney general, in an
381		-	14 action under subsection (c), may recover from the person on behalf of
382		-	15 the state a civil penalty in accordance with IC 24-5-14.5-12(b). As
383		-	16 specified in IC 24-5-14.5-12(b), a civil penalty recovered under
384		-	17 IC 24-5-14.5-12(b) shall be deposited in the consumer protection
385		-	18 division telephone solicitation fund established by IC 24-4.7-3-6 to be
386		-	19 used for the administration and enforcement of IC 24-5-14.5. In
387		-	20 addition to the recovery of a civil penalty in accordance with
388		-	21 IC 24-5-14.5-12(b), the attorney general may also recover reasonable
389		-	22 attorney attorney's fees and court costs from the person on behalf of
390		-	23 the state. Those funds shall also be deposited in the consumer
391		-	24 protection division telephone solicitation fund established by
392		-	25 IC 24-4.7-3-6.
393		-	26 SECTION 4. IC 24-5-0.5-5 IS AMENDED TO READ AS
394		-	27 FOLLOWS [EFFECTIVE JULY 1, 2023]: Sec. 5. (a) No action may be
395		-	28 brought under this chapter, except under section 4(c) of this chapter,
396		-	29 unless (1) the deceptive act is incurable or (2) the consumer bringing
397		-	30 the action shall have given notice in writing to the supplier within the
398		-	31 sooner of (i) six (6) months after the initial discovery of the deceptive
399		-	32 act, (ii) one (1) year following such consumer transaction, or (iii) any
400		-	33 time limitation, not less than thirty (30) days, of any period of warranty
401		-	34 applicable to the transaction, which notice shall state fully the nature
402		-	35 of the alleged deceptive act and the actual damage suffered therefrom,
403		-	36 and unless such deceptive act shall have become an uncured deceptive
404		-	37 act.
405		-	38 (b) No action may be brought under this chapter except as expressly
406		-	39 authorized in section 4(a), 4(b), or 4(c) of this chapter. Any action
407		-	40 brought under this chapter may not be brought more than two (2) years
408		-	41 after the occurrence of the deceptive act. An action brought under
409		-	42 section 4(c) of this chapter may not be brought more than five (5)
410		-	SB 328—LS 6868/DI 101 10
411		-	1 years after the occurrence of the deceptive act.
412		-	SB 328—LS 6868/DI 101 11
413		-	COMMITTEE REPORT
414		-	Madam President: The Senate Committee on Judiciary, to which
415		-	was referred Senate Bill No. 328, has had the same under consideration
416		-	and begs leave to report the same back to the Senate with the
417		-	recommendation that said bill be AMENDED as follows:
418		-	Page 2, delete lines 27 through 40.
419		-	Page 5, delete lines 35 through 42.
420		-	Delete pages 6 through 9.
421		-	Page 10, delete lines 1 through 32.
422		-	Page 10, line 36, delete "unfair, abusive, or deceptive act,".
423		-	Page 10, line 37, delete "omission, or practice, including an".
424		-	Page 10, line 38, after "act" delete ",".
425		-	Page 10, line 39, delete "unfair, abusive, or".
426		-	Page 10, line 40, delete "omission, or practice".
427		-	Page 10, line 41, delete "unfair, abusive,".
428		-	Page 10, line 42, before "deceptive" delete "or".
429		-	Page 10, line 42, after "act" delete ",".
430		-	Page 10, line 42, delete "omission, or practice".
431		-	Page 11, line 18, after "for" reset in roman "a".
432		-	Page 11, line 18, delete "an".
433		-	Page 11, line 19, delete "unfair, abusive, or".
434		-	Page 11, line 19, delete "omission, or practice".
435		-	Page 11, line 22, after "act" delete ",".
436		-	Page 11, line 22, delete "unfair, abusive, or".
437		-	Page 11, line 22, delete "omission, or practice,".
438		-	Page 11, line 38, reset in roman "a".
439		-	Page 11, line 38, delete "an unfair, abusive, or".
440		-	Page 11, line 38, after "act" delete ",".
441		-	Page 11, line 38, delete "omission, or".
442		-	Page 11, line 39, delete "practice".
443		-	Page 11, line 42, reset in roman "a".
444		-	Page 11, line 42, delete "an unfair,".
445		-	Page 12, line 1, delete "abusive, or".
446		-	Page 12, line 1, delete "omission, or practice,".
447		-	Page 12, line 1, reset in roman "a".
448		-	Page 12, line 1, delete "an".
449		-	Page 12, line 2, delete "unfair, abusive, or".
450		-	Page 12, line 2, after "act" delete ",".
451		-	Page 12, line 2, delete "omission, or practice".
452		-	Page 12, delete line 5.
453		-	Page 12, line 42, delete "unfair,".
454		-	SB 328—LS 6868/DI 101 12
455		-	Page 13, line 1, delete "abusive, or".
456		-	Page 13, line 1, after "acts" delete ",".
457		-	Page 13, line 1, delete "omissions or practices".
458		-	Page 13, line 37, delete "an unfair, abusive, or".
459		-	Page 13, delete line 38.
460		-	Page 13, line 39, delete "(1)".
461		-	Page 13, line 39, after "act" delete ";".
462		-	Page 13, line 39, reset in roman "including".
463		-	Page 13, line 39, delete "or".
464		-	Page 13, line 40, delete "(2)".
465		-	Page 13, line 40, delete ";".
466		-	Page 13, run in lines 37 through 41.
467		-	Page 15, delete lines 6 through 42, begin a new paragraph and
468		-	insert:
469		-	"SECTION 6. IC 24-5-0.5-5 IS AMENDED TO READ AS
470		-	FOLLOWS [EFFECTIVE JULY 1, 2023]: Sec. 5. (a) No action may be
471		-	brought under this chapter, except under section 4(c) of this chapter,
472		-	unless (1) the deceptive act is incurable or (2) the consumer bringing
473		-	the action shall have given notice in writing to the supplier within the
474		-	sooner of (i) six (6) months after the initial discovery of the deceptive
475		-	act, (ii) one (1) year following such consumer transaction, or (iii) any
476		-	time limitation, not less than thirty (30) days, of any period of warranty
477		-	applicable to the transaction, which notice shall state fully the nature
478		-	of the alleged deceptive act and the actual damage suffered therefrom,
479		-	and unless such deceptive act shall have become an uncured deceptive
480		-	act.
481		-	(b) No action may be brought under this chapter except as expressly
482		-	authorized in section 4(a), 4(b), or 4(c) of this chapter. Any action
483		-	brought under this chapter may not be brought more than two (2) years
484		-	after the occurrence of the deceptive act. An action brought under
485		-	section 4(c) of this chapter may not be brought more than five (5)
486		-	years after the occurrence of the deceptive act.".
487		-	Delete page 16.
488		-	Renumber all SECTIONS consecutively.
489		-	and when so amended that said bill do pass and be reassigned to the
490		-	Senate Committee on Appropriations.
491		-	(Reference is to SB 328 as introduced.)
492		-	BROWN L, Chairperson
493		-	Committee Vote: Yeas 10, Nays 1.
494		-	SB 328—LS 6868/DI 101
	93	+	27 SECTION 2. IC 24-5-0.5-1, AS AMENDED BY P.L.1-2006,
	94	+	28 SECTION 411, IS AMENDED TO READ AS FOLLOWS
	95	+	29 [EFFECTIVE JULY 1, 2023]: Sec. 1. (a) This chapter shall be liberally
	96	+	30 construed and applied to promote its purposes and policies.
	97	+	31 (b) The purposes and policies of this chapter are to:
	98	+	32 (1) simplify, clarify, and modernize the law governing:
	99	+	33 (A) unfair, abusive, or deceptive acts, omissions, or
	100	+	34 practices in connection with a consumer transaction; and
	101	+	35 (B) unconscionable consumer sales practices;
	102	+	36 (2) protect consumers from suppliers who commit:
	103	+	37 (A) unfair, abusive, or deceptive and acts, omissions, or
	104	+	38 practices in connection with a consumer transaction; or
	105	+	39 (B) unconscionable consumer sales acts; practices; and
	106	+	40 (3) encourage the development of fair consumer sales practices.
	107	+	41 SECTION 3. IC 24-5-0.5-2, AS AMENDED BY P.L.280-2019,
	108	+	42 SECTION 4, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
	109	+	2023 IN 328—LS 6868/DI 101 3
	110	+	1 JULY 1, 2023]: Sec. 2. (a) As used in this chapter:
	111	+	2 (1) "Consumer transaction" means a sale, lease, assignment,
	112	+	3 award by chance, or other disposition of an item of personal
	113	+	4 property, real property, a service, or an intangible, except
	114	+	5 securities and policies or contracts of insurance issued by
	115	+	6 corporations authorized to transact an insurance business under
	116	+	7 the laws of the state of Indiana, with or without an extension of
	117	+	8 credit, to a person for purposes that are primarily personal,
	118	+	9 familial, charitable, agricultural, or household, or a solicitation to
	119	+	10 supply any of these things. However, the term includes the
	120	+	11 following:
	121	+	12 (A) A transfer of structured settlement payment rights under
	122	+	13 IC 34-50-2.
	123	+	14 (B) An unsolicited advertisement sent to a person by telephone
	124	+	15 facsimile machine offering a sale, lease, assignment, award by
	125	+	16 chance, or other disposition of an item of personal property,
	126	+	17 real property, a service, or an intangible.
	127	+	18 (C) The collection of or attempt to collect a debt by a debt
	128	+	19 collector.
	129	+	20 (D) Conduct that is described in section 3(a) of this chapter
	130	+	21 and that arises from, occurs in connection with, or
	131	+	22 otherwise involves a transaction between commercial
	132	+	23 entities if the conduct results in harm to consumers.
	133	+	24 (2) "Person" means an individual, corporation, the state of Indiana
	134	+	25 or its subdivisions or agencies, business trust, estate, trust,
	135	+	26 partnership, association, nonprofit corporation or organization, or
	136	+	27 cooperative or any other legal entity.
	137	+	28 (3) "Supplier" means the following:
	138	+	29 (A) A seller, lessor, assignor, or other person who regularly
	139	+	30 engages in or solicits consumer transactions, including
	140	+	31 soliciting a consumer transaction by using a telephone
	141	+	32 facsimile machine to transmit an unsolicited advertisement.
	142	+	33 The term includes a manufacturer, wholesaler, or retailer, or,
	143	+	34 in a consumer transaction described in subdivision (1)(D),
	144	+	35 a commercial entity, regardless of whether or not the person
	145	+	36 deals directly with the consumer.
	146	+	37 (B) A debt collector.
	147	+	38 (4) "Subject of a consumer transaction" means the personal
	148	+	39 property, real property, services, or intangibles offered or
	149	+	40 furnished in a consumer transaction.
	150	+	41 (5) "Cure" as applied to a deceptive act, means either:
	151	+	42 (A) to offer in writing to adjust or modify the consumer
	152	+	2023 IN 328—LS 6868/DI 101 4
	153	+	1 transaction to which the act relates to conform to the
	154	+	2 reasonable expectations of the consumer generated by such
	155	+	3 deceptive act and to perform such offer if accepted by the
	156	+	4 consumer; or
	157	+	5 (B) to offer in writing to rescind such consumer transaction
	158	+	6 and to perform such offer if accepted by the consumer.
	159	+	7 The term includes an offer in writing of one (1) or more items of
	160	+	8 value, including monetary compensation, that the supplier
	161	+	9 delivers to a consumer or a representative of the consumer if
	162	+	10 accepted by the consumer.
	163	+	11 (6) "Offer to cure" as applied to a deceptive act is a cure that:
	164	+	12 (A) is reasonably calculated to remedy a loss claimed by the
	165	+	13 consumer; and
	166	+	14 (B) includes a minimum additional amount that is the greater
	167	+	15 of:
	168	+	16 (i) ten percent (10%) of the value of the remedy under
	169	+	17 clause (A), but not more than four thousand dollars
	170	+	18 ($4,000); or
	171	+	19 (ii) five hundred dollars ($500);
	172	+	20 as compensation for attorney's fees, expenses, and other costs
	173	+	21 that a consumer may incur in relation to the deceptive act.
	174	+	22 (7) "Uncured deceptive act" means a deceptive act:
	175	+	23 (A) with respect to which a consumer who has been damaged
	176	+	24 by such act has given notice to the supplier under section 5(a)
	177	+	25 of this chapter; and
	178	+	26 (B) either:
	179	+	27 (i) no offer to cure has been made to such consumer within
	180	+	28 thirty (30) days after such notice; or
	181	+	29 (ii) the act has not been cured as to such consumer within a
	182	+	30 reasonable time after the consumer's acceptance of the offer
	183	+	31 to cure.
	184	+	32 (8) "Incurable deceptive act" means a deceptive act done by a
	185	+	33 supplier as part of a scheme, artifice, or device with intent to
	186	+	34 defraud or mislead. The term includes a failure of a transferee of
	187	+	35 structured settlement payment rights to timely provide a true and
	188	+	36 complete disclosure statement to a payee as provided under
	189	+	37 IC 34-50-2 in connection with a direct or indirect transfer of
	190	+	38 structured settlement payment rights.
	191	+	39 (9) "Senior consumer" means an individual who is at least sixty
	192	+	40 (60) years of age.
	193	+	41 (10) "Telephone facsimile machine" means equipment that has
	194	+	42 the capacity to transcribe text or images, or both, from:
	195	+	2023 IN 328—LS 6868/DI 101 5
	196	+	1 (A) paper into an electronic signal and to transmit that signal
	197	+	2 over a regular telephone line; or
	198	+	3 (B) an electronic signal received over a regular telephone line
	199	+	4 onto paper.
	200	+	5 (11) "Unsolicited advertisement" means material advertising the
	201	+	6 commercial availability or quality of:
	202	+	7 (A) property;
	203	+	8 (B) goods; or
	204	+	9 (C) services;
	205	+	10 that is transmitted to a person without the person's prior express
	206	+	11 invitation or permission, in writing or otherwise.
	207	+	12 (12) "Debt" has the meaning set forth in 15 U.S.C. 1692(a)(5).
	208	+	13 (13) "Debt collector" has the meaning set forth in 15 U.S.C.
	209	+	14 1692(a)(6). The term does not include a person admitted to the
	210	+	15 practice of law in Indiana if the person is acting within the course
	211	+	16 and scope of the person's practice as an attorney. The term
	212	+	17 includes a debt buyer (as defined in IC 24-5-15.5).
	213	+	18 (b) As used in section 3(b)(15) and 3(b)(16) of this chapter:
	214	+	19 (1) "Directory assistance" means the disclosure of telephone
	215	+	20 number information in connection with an identified telephone
	216	+	21 service subscriber by means of a live operator or automated
	217	+	22 service.
	218	+	23 (2) "Local telephone directory" refers to a telephone classified
	219	+	24 advertising directory or the business section of a telephone
	220	+	25 directory that is distributed by a telephone company or directory
	221	+	26 publisher to subscribers located in the local exchanges contained
	222	+	27 in the directory. The term includes a directory that includes
	223	+	28 listings of more than one (1) telephone company.
	224	+	29 (3) "Local telephone number" refers to a telephone number that
	225	+	30 has the three (3) number prefix used by the provider of telephone
	226	+	31 service for telephones physically located within the area covered
	227	+	32 by the local telephone directory in which the number is listed. The
	228	+	33 term does not include long distance numbers or 800-, 888-, or
	229	+	34 900- exchange numbers listed in a local telephone directory.
	230	+	35 SECTION 4. IC 24-5-0.5-3, AS AMENDED BY P.L.34-2022,
	231	+	36 SECTION 7, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
	232	+	37 JULY 1, 2023]: Sec. 3. (a) A supplier may not commit an unfair,
	233	+	38 abusive, or deceptive act, omission, or practice in connection with a
	234	+	39 consumer transaction. Such an act, omission, or practice by a supplier
	235	+	40 is a violation of this chapter whether it occurs before, during, or after
	236	+	41 the transaction. An act, omission, or practice prohibited by this section
	237	+	42 includes both implicit and explicit misrepresentations.
	238	+	2023 IN 328—LS 6868/DI 101 6
	239	+	1 (b) Without limiting the scope of subsection (a), the following acts,
	240	+	2 and the following representations as to the subject matter of a
	241	+	3 consumer transaction, made orally, in writing, or by electronic
	242	+	4 communication, by a supplier, are unfair, abusive, or deceptive acts,
	243	+	5 omissions, or practices in connection with a consumer transaction:
	244	+	6 (1) That such subject of a consumer transaction has sponsorship,
	245	+	7 approval, performance, characteristics, accessories, uses, or
	246	+	8 benefits it does not have which the supplier knows or should
	247	+	9 reasonably know it does not have.
	248	+	10 (2) That such subject of a consumer transaction is of a particular
	249	+	11 standard, quality, grade, style, or model, if it is not and if the
	250	+	12 supplier knows or should reasonably know that it is not.
	251	+	13 (3) That such subject of a consumer transaction is new or unused,
	252	+	14 if it is not and if the supplier knows or should reasonably know
	253	+	15 that it is not.
	254	+	16 (4) That such subject of a consumer transaction will be supplied
	255	+	17 to the public in greater quantity than the supplier intends or
	256	+	18 reasonably expects.
	257	+	19 (5) That replacement or repair constituting the subject of a
	258	+	20 consumer transaction is needed, if it is not and if the supplier
	259	+	21 knows or should reasonably know that it is not.
	260	+	22 (6) That a specific price advantage exists as to such subject of a
	261	+	23 consumer transaction, if it does not and if the supplier knows or
	262	+	24 should reasonably know that it does not.
	263	+	25 (7) That the supplier has a sponsorship, approval, or affiliation in
	264	+	26 such consumer transaction the supplier does not have, and which
	265	+	27 the supplier knows or should reasonably know that the supplier
	266	+	28 does not have.
	267	+	29 (8) That such consumer transaction involves or does not involve
	268	+	30 a warranty, a disclaimer of warranties, or other rights, remedies,
	269	+	31 or obligations, if the representation is false and if the supplier
	270	+	32 knows or should reasonably know that the representation is false.
	271	+	33 (9) That the consumer will receive a rebate, discount, or other
	272	+	34 benefit as an inducement for entering into a sale or lease in return
	273	+	35 for giving the supplier the names of prospective consumers or
	274	+	36 otherwise helping the supplier to enter into other consumer
	275	+	37 transactions, if earning the benefit, rebate, or discount is
	276	+	38 contingent upon the occurrence of an event subsequent to the time
	277	+	39 the consumer agrees to the purchase or lease.
	278	+	40 (10) That the supplier is able to deliver or complete the subject of
	279	+	41 the consumer transaction within a stated period of time, when the
	280	+	42 supplier knows or should reasonably know the supplier could not.
	281	+	2023 IN 328—LS 6868/DI 101 7
	282	+	1 If no time period has been stated by the supplier, there is a
	283	+	2 presumption that the supplier has represented that the supplier
	284	+	3 will deliver or complete the subject of the consumer transaction
	285	+	4 within a reasonable time, according to the course of dealing or the
	286	+	5 usage of the trade.
	287	+	6 (11) That the consumer will be able to purchase the subject of the
	288	+	7 consumer transaction as advertised by the supplier, if the supplier
	289	+	8 does not intend to sell it.
	290	+	9 (12) That the replacement or repair constituting the subject of a
	291	+	10 consumer transaction can be made by the supplier for the estimate
	292	+	11 the supplier gives a customer for the replacement or repair, if the
	293	+	12 specified work is completed and:
	294	+	13 (A) the cost exceeds the estimate by an amount equal to or
	295	+	14 greater than ten percent (10%) of the estimate;
	296	+	15 (B) the supplier did not obtain written permission from the
	297	+	16 customer to authorize the supplier to complete the work even
	298	+	17 if the cost would exceed the amounts specified in clause (A);
	299	+	18 (C) the total cost for services and parts for a single transaction
	300	+	19 is more than seven hundred fifty dollars ($750); and
	301	+	20 (D) the supplier knew or reasonably should have known that
	302	+	21 the cost would exceed the estimate in the amounts specified in
	303	+	22 clause (A).
	304	+	23 (13) That the replacement or repair constituting the subject of a
	305	+	24 consumer transaction is needed, and that the supplier disposes of
	306	+	25 the part repaired or replaced earlier than seventy-two (72) hours
	307	+	26 after both:
	308	+	27 (A) the customer has been notified that the work has been
	309	+	28 completed; and
	310	+	29 (B) the part repaired or replaced has been made available for
	311	+	30 examination upon the request of the customer.
	312	+	31 (14) Engaging in the replacement or repair of the subject of a
	313	+	32 consumer transaction if the consumer has not authorized the
	314	+	33 replacement or repair, and if the supplier knows or should
	315	+	34 reasonably know that it is not authorized.
	316	+	35 (15) The act of misrepresenting the geographic location of the
	317	+	36 supplier by listing an alternate business name or an assumed
	318	+	37 business name (as described in IC 23-0.5-3-4) in a local telephone
	319	+	38 directory if:
	320	+	39 (A) the name misrepresents the supplier's geographic location;
	321	+	40 (B) the listing fails to identify the locality and state of the
	322	+	41 supplier's business;
	323	+	42 (C) calls to the local telephone number are routinely forwarded
	324	+	2023 IN 328—LS 6868/DI 101 8
	325	+	1 or otherwise transferred to a supplier's business location that
	326	+	2 is outside the calling area covered by the local telephone
	327	+	3 directory; and
	328	+	4 (D) the supplier's business location is located in a county that
	329	+	5 is not contiguous to a county in the calling area covered by the
	330	+	6 local telephone directory.
	331	+	7 (16) The act of listing an alternate business name or assumed
	332	+	8 business name (as described in IC 23-0.5-3-4) in a directory
	333	+	9 assistance data base if:
	334	+	10 (A) the name misrepresents the supplier's geographic location;
	335	+	11 (B) calls to the local telephone number are routinely forwarded
	336	+	12 or otherwise transferred to a supplier's business location that
	337	+	13 is outside the local calling area; and
	338	+	14 (C) the supplier's business location is located in a county that
	339	+	15 is not contiguous to a county in the local calling area.
	340	+	16 (17) The violation by a supplier of IC 24-3-4 concerning
	341	+	17 cigarettes for import or export.
	342	+	18 (18) The act of a supplier in knowingly selling or reselling a
	343	+	19 product to a consumer if the product has been recalled, whether
	344	+	20 by the order of a court or a regulatory body, or voluntarily by the
	345	+	21 manufacturer, distributor, or retailer, unless the product has been
	346	+	22 repaired or modified to correct the defect that was the subject of
	347	+	23 the recall.
	348	+	24 (19) The violation by a supplier of 47 U.S.C. 227, including any
	349	+	25 rules or regulations issued under 47 U.S.C. 227.
	350	+	26 (20) The violation by a supplier of the federal Fair Debt
	351	+	27 Collection Practices Act (15 U.S.C. 1692 et seq.), including any
	352	+	28 rules or regulations issued under the federal Fair Debt Collection
	353	+	29 Practices Act (15 U.S.C. 1692 et seq.).
	354	+	30 (21) A violation of IC 24-5-7 (concerning health spa services), as
	355	+	31 set forth in IC 24-5-7-17.
	356	+	32 (22) A violation of IC 24-5-8 (concerning business opportunity
	357	+	33 transactions), as set forth in IC 24-5-8-20.
	358	+	34 (23) A violation of IC 24-5-10 (concerning home consumer
	359	+	35 transactions), as set forth in IC 24-5-10-18.
	360	+	36 (24) A violation of IC 24-5-11 (concerning real property
	361	+	37 improvement contracts), as set forth in IC 24-5-11-14.
	362	+	38 (25) A violation of IC 24-5-12 (concerning telephone
	363	+	39 solicitations), as set forth in IC 24-5-12-23.
	364	+	40 (26) A violation of IC 24-5-13.5 (concerning buyback motor
	365	+	41 vehicles), as set forth in IC 24-5-13.5-14.
	366	+	42 (27) A violation of IC 24-5-14 (concerning automatic
	367	+	2023 IN 328—LS 6868/DI 101 9
	368	+	1 dialing-announcing devices), as set forth in IC 24-5-14-13.
	369	+	2 (28) A violation of IC 24-5-15 (concerning credit services
	370	+	3 organizations), as set forth in IC 24-5-15-11.
	371	+	4 (29) A violation of IC 24-5-16 (concerning unlawful motor
	372	+	5 vehicle subleasing), as set forth in IC 24-5-16-18.
	373	+	6 (30) A violation of IC 24-5-17 (concerning environmental
	374	+	7 marketing claims), as set forth in IC 24-5-17-14.
	375	+	8 (31) A violation of IC 24-5-19 (concerning deceptive commercial
	376	+	9 solicitation), as set forth in IC 24-5-19-11.
	377	+	10 (32) A violation of IC 24-5-21 (concerning prescription drug
	378	+	11 discount cards), as set forth in IC 24-5-21-7.
	379	+	12 (33) A violation of IC 24-5-23.5-7 (concerning real estate
	380	+	13 appraisals), as set forth in IC 24-5-23.5-9.
	381	+	14 (34) A violation of IC 24-5-26 (concerning identity theft), as set
	382	+	15 forth in IC 24-5-26-3.
	383	+	16 (35) A violation of IC 24-5.5 (concerning mortgage rescue fraud),
	384	+	17 as set forth in IC 24-5.5-6-1.
	385	+	18 (36) A violation of IC 24-8 (concerning promotional gifts and
	386	+	19 contests), as set forth in IC 24-8-6-3.
	387	+	20 (37) A violation of IC 21-18.5-6 (concerning representations
	388	+	21 made by a postsecondary credit bearing proprietary educational
	389	+	22 institution), as set forth in IC 21-18.5-6-22.5.
	390	+	23 (38) A violation of IC 24-5-15.5 (concerning collection actions of
	391	+	24 a plaintiff debt buyer), as set forth in IC 24-5-15.5-6.
	392	+	25 (39) A violation of IC 24-14 (concerning towing services), as set
	393	+	26 forth in IC 24-14-10-1.
	394	+	27 (40) A violation of IC 24-5-14.5 (concerning misleading or
	395	+	28 inaccurate caller identification information), as set forth in
	396	+	29 IC 24-5-14.5-12.
	397	+	30 (41) A violation of IC 24-5-27 (concerning intrastate inmate
	398	+	31 calling services), as set forth in IC 24-5-27-27.
	399	+	32 (c) Any representations on or within a product or its packaging or
	400	+	33 in advertising or promotional materials which would constitute a an
	401	+	34 unfair, abusive, or deceptive act, shall be omission, or practice is the
	402	+	35 unfair, abusive, or deceptive act, omission, or practice both of the
	403	+	36 supplier who places such representation thereon or therein, or who
	404	+	37 authored such materials, and such of other suppliers who shall state
	405	+	38 orally or in writing that such the representation is true if such the other
	406	+	39 supplier shall suppliers know or have reason to know that such the
	407	+	40 representation was false.
	408	+	41 (d) If a supplier shows by a preponderance of the evidence that an
	409	+	42 act resulted from a bona fide error notwithstanding the maintenance of
	410	+	2023 IN 328—LS 6868/DI 101 10
	411	+	1 procedures reasonably adopted to avoid the error, such the act shall is
	412	+	2 not be an unfair, abusive, or deceptive act, omission, or practice
	413	+	3 within the meaning of this chapter.
	414	+	4 (e) It shall be is a defense to any action brought under this chapter
	415	+	5 that the representation constituting an alleged unfair, abusive, or
	416	+	6 deceptive act, omission, or practice was one made in good faith by the
	417	+	7 supplier without knowledge of its falsity and in reliance upon the oral
	418	+	8 or written representations of:
	419	+	9 (1) the manufacturer;
	420	+	10 (2) the person from whom the supplier acquired the product;
	421	+	11 (3) any testing organization; or
	422	+	12 (4) any other person; provided that
	423	+	13 if the source thereof of the representation is disclosed to the
	424	+	14 consumer.
	425	+	15 (f) For purposes of subsection (b)(12), a supplier that provides
	426	+	16 estimates before performing repair or replacement work for a customer
	427	+	17 shall give the customer a written estimate itemizing as closely as
	428	+	18 possible the price for labor and parts necessary for the specific job
	429	+	19 before commencing the work.
	430	+	20 (g) For purposes of subsection (b)(15) and (b)(16), a telephone
	431	+	21 company or other provider of a telephone directory or directory
	432	+	22 assistance service or its officer or agent is immune from liability for
	433	+	23 publishing the listing of an alternate business name or assumed
	434	+	24 business name of a supplier in its directory or directory assistance data
	435	+	25 base unless the telephone company or other provider of a telephone
	436	+	26 directory or directory assistance service is the same person as the
	437	+	27 supplier who has committed the unfair, abusive, or deceptive act,
	438	+	28 omission, or practice.
	439	+	29 (h) For purposes of subsection (b)(18), it is an affirmative defense
	440	+	30 to any action brought under this chapter that the product has been
	441	+	31 altered by a person other than the defendant to render the product
	442	+	32 completely incapable of serving its original purpose.
	443	+	33 SECTION 5. IC 24-5-0.5-4, AS AMENDED BY THE TECHNICAL
	444	+	34 CORRECTIONS BILL OF THE 2023 GENERAL ASSEMBLY, IS
	445	+	35 AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2023]:
	446	+	36 Sec. 4. (a) A person relying upon an unfair, abusive, or deceptive act,
	447	+	37 omission, or practice, including an uncured or incurable deceptive
	448	+	38 act, may bring an action for the damages actually suffered as a
	449	+	39 consumer as a result of the unfair, abusive, or deceptive act,
	450	+	40 omission, or practice or five hundred dollars ($500), whichever is
	451	+	41 greater. The court may increase damages for a willful unfair, abusive,
	452	+	42 or deceptive act, omission, or practice in an amount that does not
	453	+	2023 IN 328—LS 6868/DI 101 11
	454	+	1 exceed the greater of:
	455	+	2 (1) three (3) times the actual damages of the consumer suffering
	456	+	3 the loss; or
	457	+	4 (2) one thousand dollars ($1,000).
	458	+	5 Except as provided in subsection (j), (k), the court may award
	459	+	6 reasonable attorney attorney's fees to the party that prevails in an
	460	+	7 action under this subsection. This subsection does not apply to a
	461	+	8 consumer transaction in real property, including a claim or action
	462	+	9 involving a construction defect (as defined in IC 32-27-3-1(5)) brought
	463	+	10 against a construction professional (as defined in IC 32-27-3-1(4)),
	464	+	11 except for purchases of time shares and camping club memberships.
	465	+	12 This subsection does not apply with respect to a deceptive act
	466	+	13 described in section 3(b)(20) of this chapter. This subsection also does
	467	+	14 not apply to a violation of IC 24-4.7, IC 24-5-12, IC 24-5-14, or
	468	+	15 IC 24-5-14.5. Actual damages awarded to a person under this section
	469	+	16 have priority over any civil penalty imposed under this chapter.
	470	+	17 (b) Any person who is entitled to bring an action under subsection
	471	+	18 (a) on the person's own behalf against a supplier for damages for a an
	472	+	19 unfair, abusive, or deceptive act, omission, or practice may bring a
	473	+	20 class action against such supplier on behalf of any class of persons of
	474	+	21 which that person is a member and which has been damaged by such
	475	+	22 unfair, abusive, or deceptive act, omission, or practice, subject to
	476	+	23 and under the Indiana Rules of Trial Procedure governing class actions,
	477	+	24 except as herein expressly provided. Except as provided in subsection
	478	+	25 (j), (k), the court may award reasonable attorney attorney's fees to the
	479	+	26 party that prevails in a class action under this subsection, provided that
	480	+	27 such fee shall be determined by the amount of time reasonably
	481	+	28 expended by the attorney and not by the amount of the judgment,
	482	+	29 although the contingency of the fee may be considered. Except in the
	483	+	30 case of an extension of time granted by the attorney general under
	484	+	31 IC 24-10-2-2(b) in an action subject to IC 24-10, any money or other
	485	+	32 property recovered in a class action under this subsection which
	486	+	33 cannot, with due diligence, be restored to consumers within one (1)
	487	+	34 year after the judgment becomes final shall be returned to the party
	488	+	35 depositing the same. This subsection does not apply to a consumer
	489	+	36 transaction in real property, except for purchases of time shares and
	490	+	37 camping club memberships. This subsection does not apply with
	491	+	38 respect to a an unfair, abusive, or deceptive act, omission, or
	492	+	39 practice described in section 3(b)(20) of this chapter. Actual damages
	493	+	40 awarded to a class have priority over any civil penalty imposed under
	494	+	41 this chapter.
	495	+	42 (c) The attorney general may bring an action to enjoin a an unfair,
	496	+	2023 IN 328—LS 6868/DI 101 12
	497	+	1 abusive, or deceptive act, omission, or practice, including a an
	498	+	2 unfair, abusive, or deceptive act, omission, or practice described in
	499	+	3 section 3(b)(20) of this chapter, notwithstanding subsections (a) and
	500	+	4 (b). However, The attorney general may seek to enjoin patterns of
	501	+	5 unfair, abusive, or deceptive acts, omissions, or practices, including
	502	+	6 incurable deceptive acts, with respect to consumer transactions in real
	503	+	7 property. In addition, the court may:
	504	+	8 (1) issue an injunction;
	505	+	9 (2) order the supplier to make payment of the money unlawfully
	506	+	10 received from the aggrieved consumers to be held in escrow for
	507	+	11 distribution to aggrieved consumers;
	508	+	12 (3) for a knowing violation against a senior consumer, increase
	509	+	13 the amount of restitution ordered under subdivision (2) in any
	510	+	14 amount up to three (3) times the amount of damages incurred or
	511	+	15 value of property or assets lost;
	512	+	16 (4) order the supplier to pay to the state the reasonable costs of
	513	+	17 the attorney general's investigation and prosecution related to the
	514	+	18 action;
	515	+	19 (5) provide for the appointment of a receiver; and
	516	+	20 (6) order the department of state revenue to suspend the supplier's
	517	+	21 registered retail merchant certificate, subject to the requirements
	518	+	22 and prohibitions contained in IC 6-2.5-8-7(i), if the court finds
	519	+	23 that a violation of this chapter involved the sale or solicited sale
	520	+	24 of a synthetic drug (as defined in IC 35-31.5-2-321), a synthetic
	521	+	25 drug lookalike substance (as defined in IC 35-31.5-2-321.5
	522	+	26 (repealed)) (before July 1, 2019), a controlled substance analog
	523	+	27 (as defined in IC 35-48-1-9.3), or a substance represented to be a
	524	+	28 controlled substance (as described in IC 35-48-4-4.6); and
	525	+	29 (7) order the supplier to pay the costs and expenses of the
	526	+	30 action, including reasonable attorney's fees and expert fees.
	527	+	31 Any award, judgment, or settlement for the costs and
	528	+	32 expenses of the action, including reasonable attorney's fees
	529	+	33 and expert fees, made or reached under this subdivision shall
	530	+	34 be deposited in the consumer protection judgment fund and
	531	+	35 used to support the efforts of the division of consumer
	532	+	36 protection created by IC 4-6-9-1.
	533	+	37 An action that arises from, or otherwise involves, a consumer
	534	+	38 transaction described in section 2(a)(1)(D) of this chapter may only
	535	+	39 be brought and enforced by the attorney general under this
	536	+	40 subsection.
	537	+	41 (d) In an action under subsection (a), (b), or (c), the court may void
	538	+	42 or limit the application of contracts or clauses resulting from unfair,
	539	+	2023 IN 328—LS 6868/DI 101 13
	540	+	1 abusive, or deceptive acts, omissions, or practices and order
	541	+	2 restitution to be paid to aggrieved consumers.
	542	+	3 (e) In any action under subsection (a) or (b), upon the filing of the
	543	+	4 complaint or on the appearance of any defendant, claimant, or any
	544	+	5 other party, or at any later time, the trial court, the supreme court, or the
	545	+	6 court of appeals may require the plaintiff, defendant, claimant, or any
	546	+	7 other party or parties to give security, or additional security, in such
	547	+	8 sum as the court shall direct to pay all costs, expenses, and
	548	+	9 disbursements that shall be awarded against that party or which that
	549	+	10 party may be directed to pay by any interlocutory order by the final
	550	+	11 judgment or on appeal.
	551	+	12 (f) Any person who violates the terms of an injunction issued under
	552	+	13 subsection (c) shall forfeit and pay to the state a civil penalty of not
	553	+	14 more than fifteen thousand dollars ($15,000) per violation. For the
	554	+	15 purposes of this section, the court issuing an injunction shall retain
	555	+	16 jurisdiction, the cause shall be continued, and the attorney general
	556	+	17 acting in the name of the state may petition for recovery of civil
	557	+	18 penalties. Whenever the court determines that an injunction issued
	558	+	19 under subsection (c) has been violated, the court shall award
	559	+	20 reasonable costs to the state.
	560	+	21 (g) If a court finds any person has knowingly violated section 3 or
	561	+	22 10 of this chapter, other than section 3(b)(19), 3(b)(20), or 3(b)(40) of
	562	+	23 this chapter, the attorney general, in an action pursuant to subsection
	563	+	24 (c), may recover from the person on behalf of the state a civil penalty
	564	+	25 of a fine not exceeding five thousand dollars ($5,000) per violation.
	565	+	26 (h) If a court finds that a person has violated section 3(b)(19) of this
	566	+	27 chapter, the attorney general, in an action under subsection (c), may
	567	+	28 recover from the person on behalf of the state a civil penalty as follows:
	568	+	29 (1) For a knowing or intentional violation, one thousand five
	569	+	30 hundred dollars ($1,500).
	570	+	31 (2) For a violation other than a knowing or intentional violation,
	571	+	32 five hundred dollars ($500).
	572	+	33 A civil penalty recovered under this subsection shall be deposited in
	573	+	34 the consumer protection division telephone solicitation fund
	574	+	35 established by IC 24-4.7-3-6 to be used for the administration and
	575	+	36 enforcement of section 3(b)(19) of this chapter.
	576	+	37 (i) A senior consumer relying upon an unfair, abusive, or
	577	+	38 deceptive act, omission, or practice, including:
	578	+	39 (1) an uncured or incurable deceptive act; including or
	579	+	40 (2) an act related to hypnotism;
	580	+	41 may bring an action to recover treble damages, if appropriate.
	581	+	42 (j) An offer to cure is:
	582	+	2023 IN 328—LS 6868/DI 101 14
	583	+	1 (1) not admissible as evidence in a proceeding initiated under this
	584	+	2 section unless the offer to cure is delivered by a supplier to the
	585	+	3 consumer or a representative of the consumer before the supplier
	586	+	4 files the supplier's initial response to a complaint; and
	587	+	5 (2) only admissible as evidence in a proceeding initiated under
	588	+	6 this section to prove that a supplier is not liable for attorney's fees
	589	+	7 under subsection (k).
	590	+	8 If the offer to cure is timely delivered by the supplier, the supplier may
	591	+	9 submit the offer to cure as evidence to prove in the proceeding in
	592	+	10 accordance with the Indiana Rules of Trial Procedure that the supplier
	593	+	11 made an offer to cure.
	594	+	12 (k) A supplier may not be held liable for the attorney's fees and
	595	+	13 court costs of the consumer that are incurred following the timely
	596	+	14 delivery of an offer to cure as described in subsection (j) unless the
	597	+	15 actual damages awarded, not including attorney's fees and costs, exceed
	598	+	16 the value of the offer to cure.
	599	+	17 (l) If a court finds that a person has knowingly violated section
	600	+	18 3(b)(20) of this chapter, the attorney general, in an action under
	601	+	19 subsection (c), may recover from the person on behalf of the state a
	602	+	20 civil penalty not exceeding one thousand dollars ($1,000) per
	603	+	21 consumer. In determining the amount of the civil penalty in any action
	604	+	22 by the attorney general under this subsection, the court shall consider,
	605	+	23 among other relevant factors, the frequency and persistence of
	606	+	24 noncompliance by the debt collector, the nature of the noncompliance,
	607	+	25 and the extent to which the noncompliance was intentional. A person
	608	+	26 may not be held liable in any action by the attorney general for a
	609	+	27 violation of section 3(b)(20) of this chapter if the person shows by a
	610	+	28 preponderance of evidence that the violation was not intentional and
	611	+	29 resulted from a bona fide error, notwithstanding the maintenance of
	612	+	30 procedures reasonably adapted to avoid the error. A person may not be
	613	+	31 held liable in any action for a violation of this chapter for contacting a
	614	+	32 person other than the debtor, if the contact is made in compliance with
	615	+	33 the Fair Debt Collection Practices Act.
	616	+	34 (m) If a court finds that a person has knowingly or intentionally
	617	+	35 violated section 3(b)(40) of this chapter, the attorney general, in an
	618	+	36 action under subsection (c), may recover from the person on behalf of
	619	+	37 the state a civil penalty in accordance with IC 24-5-14.5-12(b). As
	620	+	38 specified in IC 24-5-14.5-12(b), a civil penalty recovered under
	621	+	39 IC 24-5-14.5-12(b) shall be deposited in the consumer protection
	622	+	40 division telephone solicitation fund established by IC 24-4.7-3-6 to be
	623	+	41 used for the administration and enforcement of IC 24-5-14.5. In
	624	+	42 addition to the recovery of a civil penalty in accordance with
	625	+	2023 IN 328—LS 6868/DI 101 15
	626	+	1 IC 24-5-14.5-12(b), the attorney general may also recover reasonable
	627	+	2 attorney attorney's fees and court costs from the person on behalf of
	628	+	3 the state. Those funds shall also be deposited in the consumer
	629	+	4 protection division telephone solicitation fund established by
	630	+	5 IC 24-4.7-3-6.
	631	+	6 SECTION 6. IC 24-5-0.5-5 IS AMENDED TO READ AS
	632	+	7 FOLLOWS [EFFECTIVE JULY 1, 2023]: Sec. 5. (a) No An action
	633	+	8 may not be brought under this chapter, except under section 4(c) of this
	634	+	9 chapter, unless either of the following applies:
	635	+	10 (1) The deceptive act is action arises from, or otherwise
	636	+	11 involves, an incurable deceptive act. or
	637	+	12 (2) Unless the unfair, abusive, or deceptive act, omission, or
	638	+	13 practice has become an uncured deceptive act, the consumer
	639	+	14 bringing the action shall have given gives notice in writing to the
	640	+	15 supplier within the sooner of (i) not later than the earliest of:
	641	+	16 (A) six (6) months after the initial discovery of the unfair,
	642	+	17 abusive, or deceptive act, (ii) omission, or practice;
	643	+	18 (B) one (1) year following such the consumer transaction; or
	644	+	19 (iii)
	645	+	20 (C) the final date within any time limitation, that is not less
	646	+	21 than thirty (30) days, of any period of warranty applicable to
	647	+	22 the transaction.
	648	+	23 which A notice shall under this subdivision must state fully the
	649	+	24 nature of the alleged unfair, abusive, or deceptive act, omission,
	650	+	25 or practice, and the actual damage suffered therefrom. and unless
	651	+	26 such deceptive act shall have become an uncured deceptive act.
	652	+	27 (b) No action may be brought under this chapter except as expressly
	653	+	28 authorized in section 4(a), 4(b), or 4(c) of this chapter. Any action
	654	+	29 brought under this chapter may not be brought more than two (2) years
	655	+	30 after the occurrence of the unfair, abusive, or deceptive act, omission,
	656	+	31 or practice.
	657	+	32 SECTION 7. IC 24-5-0.5-7 IS AMENDED TO READ AS
	658	+	33 FOLLOWS [EFFECTIVE JULY 1, 2023]: Sec. 7. (a) In the
	659	+	34 administration of this chapter, the attorney general may accept an
	660	+	35 assurance of voluntary compliance with respect to any unfair, abusive,
	661	+	36 or deceptive act, omission, or practice from any person who has
	662	+	37 engaged in, is engaging in, or is about to engage in such unfair,
	663	+	38 abusive, or deceptive act, omission, or practice. The assurance of
	664	+	39 voluntary compliance may include a stipulation for the voluntary
	665	+	40 payment by the person of the costs of investigation or payment of an
	666	+	41 amount to be held in escrow pending the outcome of an action or as
	667	+	42 restitution to aggrieved consumers, or both. The assurance of voluntary
	668	+	2023 IN 328—LS 6868/DI 101 16
	669	+	1 compliance shall must be in writing and shall be filed with and subject
	670	+	2 to the approval of the court having jurisdiction.
	671	+	3 (b) The assurance of voluntary compliance shall not be considered
	672	+	4 an admission of a an unfair, abusive, or deceptive act, omission, or
	673	+	5 practice for any purpose. However, any violation of the terms of the
	674	+	6 assurance constitutes prima facie evidence of a an unfair, abusive, or
	675	+	7 deceptive act, omission, or practice. Matters thus closed as a result
	676	+	8 of an assurance of voluntary compliance may at any time be
	677	+	9 reopened by the attorney general for further proceedings in the public
	678	+	10 interest.
	679	+	2023 IN 328—LS 6868/DI 101