Enrolled Copy S.B. 42
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Consumer Protection Amendments
2025 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Evan J. Vickers
House Sponsor: A. Cory Maloy
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LONG TITLE
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General Description:
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This bill amends provisions relating to consumer protection.
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Highlighted Provisions:
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This bill:
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▸ describes the award a court must issue when granting a judgment in favor of the Division
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of Consumer Protection (division);
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▸ clarifies what constitutes a deceptive and unconscionable sales practice;
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▸ clarifies the division's rulemaking and investigatory authority;
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▸ allows the division to request that a court order disgorgement of money under certain
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circumstances;
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▸ clarifies the factors a court considers when issuing a fine;
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▸ clarifies that a government agency may bring an enforcement action for defective
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construction; and
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▸ makes technical and conforming changes.
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Money Appropriated in this Bill:
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None
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Other Special Clauses:
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None
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Utah Code Sections Affected:
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AMENDS:
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13-2-6, as last amended by Laws of Utah 2024, Chapter 102
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13-11-2, as enacted by Laws of Utah 1973, Chapter 188
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13-11-3, as last amended by Laws of Utah 2004, Chapter 55
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13-11-4, as last amended by Laws of Utah 2024, Chapters 102, 186 S.B. 42 Enrolled Copy
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13-11-5, as enacted by Laws of Utah 1973, Chapter 188
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13-11-6, as last amended by Laws of Utah 2024, Chapter 158
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13-11-7, as last amended by Laws of Utah 2024, Chapter 101
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13-11-8, as enacted by Laws of Utah 1973, Chapter 188
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13-11-9, as enacted by Laws of Utah 1973, Chapter 188
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13-11-16, as last amended by Laws of Utah 1997, Chapter 296
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13-11-17, as last amended by Laws of Utah 2018, Chapter 276
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13-11-18, as enacted by Laws of Utah 1973, Chapter 188
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13-11-19, as last amended by Laws of Utah 2018, Chapter 276
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13-11-20, as last amended by Laws of Utah 2010, Chapter 378
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13-11-21, as last amended by Laws of Utah 2024, Chapter 222
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13-11-22, as enacted by Laws of Utah 1973, Chapter 188
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78B-4-513, as enacted by Laws of Utah 2008, Chapter 280
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REPEALS:
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13-11-17.5, as enacted by Laws of Utah 1987, Chapter 105
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Be it enacted by the Legislature of the state of Utah:
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Section 1. Section 13-2-6 is amended to read:
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13-2-6 . Enforcement powers.
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(1) In accordance with Title 63G, Chapter 4, Administrative Procedures Act, the division
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shall have authority to convene administrative hearings, issue cease and desist orders,
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and impose fines under all the chapters identified in Section 13-2-1.
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(2) A person who intentionally violates a final cease and desist order entered by the division
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of which the person has notice is guilty of a third degree felony.
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(3) If the division has reasonable cause to believe that a person has violated or is violating
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any chapter listed in Section 13-2-1, the division may promptly issue the alleged violator
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a citation signed by the division's director or the director's designee.
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(a) Each citation shall be in writing and shall:
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(i) set forth with particularity the nature of the violation, including a reference to the
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statutory or administrative rule provision violated;
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(ii) state that a request for review of the citation shall be made in writing and be
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received by the division no more than 20 calendar days after the day on which the
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division issues the citation;
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(iii) state the consequences of failing to make a timely request for review; and
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(iv) state all other information required by Subsection 63G-4-201(2).
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(b) In computing a time period under this section, the following days may not be
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included:
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(i) the day on which the division issues a citation; and
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(ii) the day on which the division receives a request for review of a citation.
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(c)(i) Except as provided in Subsection (3)(c)(iii), if the presiding officer finds that
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there is not substantial evidence that the recipient violated a chapter listed in
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Section 13-2-1:
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(A) the citation may not become final; and
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(B) the division shall immediately vacate the citation and promptly notify the
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recipient in writing.
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(ii) Except as provided in Subsection (3)(c)(iv), if the presiding officer finds that
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there is substantial evidence that the recipient violated a chapter listed in Section
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13-2-1:
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(A) the citation shall become final; and
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(B) the division may enter a cease and desist order against the recipient.
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(iii) For a citation issued for a violation of Chapter 41, Price Controls During
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Emergencies Act, if the presiding officer finds that there is not clear and
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convincing evidence that the recipient violated the chapter:
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(A) the citation may not become final; and
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(B) the division shall immediately vacate the citation and promptly notify the
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recipient in writing.
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(iv) For a citation issued for a violation of Chapter 41, Price Controls During
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Emergencies Act, if the presiding officer finds that there is clear and convincing
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evidence that the recipient violated the chapter:
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(A) the citation shall become final; and
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(B) the division may enter a cease and desist order against the recipient.
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(d)(i) A citation issued under this chapter may be personally served upon a person
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upon whom a summons may be served in accordance with the Utah Rules of Civil
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Procedure.
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(ii) A citation also may be served by first-class mail, postage prepaid.
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(e)(i) If the recipient fails to make a request for review within 20 calendar days after
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the day on which the division issues the citation, the citation shall become the
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final order of the division.
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(ii) The period to contest the citation may be extended by the director for good cause
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shown.
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(f) If the chapter violated allows for an administrative fine, after a citation becomes
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final, the director may impose the administrative fine.
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(4)(a) A person who has violated, is violating, or has attempted to violate a chapter
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identified in Section 13-2-1 is subject to the division's jurisdiction if:
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(i) the violation or attempted violation is committed wholly or partly within the state;
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(ii) conduct committed outside the state constitutes an attempt to commit a violation
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within the state; or
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(iii) transactional resources located within the state are used by the offender to
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directly or indirectly facilitate a violation or attempted violation.
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(b) As used in this section, "transactional resources" means:
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(i) a mail drop or mail box, regardless of whether the mail drop or mail box is located
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on the premises of a United States Post Office;
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(ii) a telephone or facsimile transmission device;
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(iii) an Internet connection by a resident or inhabitant of this state with a resident- or
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nonresident-maintained Internet site;
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(iv) a business office or private residence used for a business-related purpose;
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(v) an account with or services of a financial institution;
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(vi) the services of a common or private carrier; or
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(vii) the use of a city, county, or state asset or facility, including a road or highway.
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(5) The director or the director's designee, for the purposes outlined in a chapter
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administered by the division, may administer oaths, issue subpoenas, compel the
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attendance of witnesses, conduct audits, compel sworn responses to written questions, or
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compel the production of papers, books, accounts, documents, or evidence.
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(6)(a) An administrative action filed under this chapter or a chapter listed in Section
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13-2-1 shall be commenced no later than 10 years after the day on which the alleged
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violation occurs.
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(b) A civil action filed under this chapter or a chapter listed in Section 13-2-1 shall be
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commenced no later than five years after the day on which the alleged violation
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occurs.
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(c) The provisions of this Subsection (6) control over the provisions of Title 78B,
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Chapter 2, Statutes of Limitations.
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(7) When granting a judgment in the division's favor in connection with the division's
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exercise of any authority described in Section 13-2-5 or 13-2-6, a court shall award:
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(a) reasonable attorney fees;
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(b) court costs;
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(c) costs of investigation; and
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(d) any other relief the court deems appropriate.
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Section 2. Section 13-11-2 is amended to read:
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13-11-2 . Construction and purposes of act.
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This act shall be construed liberally to promote the following policies:
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(1) to simplify, clarify, and modernize the law governing consumer sales practices;
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(2) to protect consumers from suppliers who commit deceptive and unconscionable sales
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practices, including by disgorging money or any thing of value obtained in violation of
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this chapter;
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(3) to encourage the development of fair consumer sales practices;
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(4) to make state regulation of consumer sales practices [not inconsistent] consistent with
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the policies of the Federal Trade Commission Act relating to consumer protection;
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(5) to make uniform the law, including the administrative rules, with respect to the subject
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of this [act] chapter among those states [which] that enact similar laws; and
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(6) to recognize and protect suppliers [who] that in good faith comply with the provisions of
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this [act] chapter.
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Section 3. Section 13-11-3 is amended to read:
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13-11-3 . Definitions.
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As used in this chapter:
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(1) "Charitable solicitation" means any request directly or indirectly for money, credit,
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property, financial assistance, or any other thing of value on the plea or representation
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that it will be used for a charitable purpose. A charitable solicitation may be made in
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any manner, including:
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(a) any oral or written request, including a telephone request;
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(b) the distribution, circulation, or posting of any handbill, written advertisement, or
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publication; or
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(c) the sale of, offer or attempt to sell, or request of donations for any book, card,
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chance, coupon, device, magazine, membership, merchandise, subscription, ticket,
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flower, flag, button, sticker, ribbon, token, trinket, tag, souvenir, candy, or any other
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article in connection with which any appeal is made for any charitable purpose, or
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where the name of any charitable organization or movement is used or referred to as
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an inducement or reason for making any purchase donation, or where, in connection
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with any sale or donation, any statement is made that the whole or any part of the
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proceeds of any sale or donation will go to or be donated to any charitable purpose.
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A charitable solicitation is considered complete when made, whether or not the
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organization or person making the solicitation receives any contribution or makes any
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sale.
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(2)(a) "Consumer transaction" means a sale, lease, assignment, award by chance, or
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other written or oral transfer or disposition of goods, services, or other property, both
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tangible and intangible (except securities and insurance) to, or apparently to, a person
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for:
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(i) primarily personal, family, or household purposes; or
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(ii) purposes that relate to a business opportunity that requires:
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(A) expenditure of money or property by the person described in Subsection (2)(a);
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and
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(B) the person described in Subsection (2)(a) to perform personal services on a
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continuing basis and in which the person described in Subsection (2)(a) has not
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been previously engaged.
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(b) "Consumer transaction" includes:
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(i) any of the following with respect to a transfer or disposition described in
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Subsection (2)(a):
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(A) an offer;
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(B) a solicitation;
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(C) an agreement; or
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(D) performance of an agreement; or
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(ii) a charitable solicitation.
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(3) ["Enforcing authority" ] "Division" means the Division of Consumer Protection.
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(4) "Final judgment" means a judgment, including any supporting opinion, that determines
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the rights of the parties and concerning which appellate remedies have been exhausted
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or the time for appeal has expired.
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[(5) "Person" means an individual, corporation, government, governmental subdivision or
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agency, business trust, estate, trust, partnership, association, cooperative, or any other
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legal entity.]
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[(6)] (5) "Supplier" means a seller, lessor, assignor, offeror, broker, or other person who
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regularly solicits, engages in, or enforces consumer transactions, whether or not [he] the
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person deals directly with the consumer.
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(6) "Vulnerable adult" means the same as that term is defined in Section 26B-6-201.
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Section 4. Section 13-11-4 is amended to read:
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13-11-4 . Deceptive act or practice by supplier.
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(1) [A deceptive act or practice by a supplier in connection with a consumer transaction
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violates this chapter whether it occurs before, during, or after the transaction] A supplier
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that engages in a deceptive act or practice in connection with a consumer transaction
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violates this chapter, whether the deceptive act or practice occurs before, during, or after
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the transaction.
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(2) Without limiting the scope of Subsection (1), a supplier commits a deceptive act or
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practice if the supplier[ knowingly or intentionally]:
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(a) indicates that the subject of a consumer transaction has sponsorship, approval,
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performance characteristics, accessories, uses, or benefits, if [it] the subject has not;
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(b) indicates that the subject of a consumer transaction is of a particular standard,
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quality, grade, style, or model, if [it] the subject is not;
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(c) indicates that the subject of a consumer transaction is new, or unused, if [it] the
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subject is not, or has been used to an extent that is materially different from the fact;
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(d) indicates that the subject of a consumer transaction is available to the consumer for a
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reason that does not exist, including any of the following reasons falsely used in an
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advertisement:
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(i) "going out of business";
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(ii) "bankruptcy sale";
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(iii) "lost our lease";
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(iv) "building coming down";
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(v) "forced out of business";
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(vi) "final days";
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(vii) "liquidation sale";
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(viii) "fire sale";
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(ix) "quitting business"; or
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(x) an expression similar to any of the expressions in Subsections (2)(d)(i) through
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(ix);
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(e) indicates that the subject of a consumer transaction has been supplied in accordance
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with a previous representation, if [it] the subject has not;
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(f) indicates that the subject of a consumer transaction will be supplied in greater
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quantity than the supplier intends;
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(g) indicates that replacement or repair is needed, if [it] the replacement or repair is not;
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(h) indicates that a specific price advantage exists, if [it] the specific price advantage
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does not;
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(i) indicates that the supplier has a sponsorship, approval, license, certification, or
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affiliation the supplier does not have;
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(j)(i) indicates that a consumer transaction involves or does not involve a warranty, a
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disclaimer of warranties, particular warranty terms, or other rights, remedies, or
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obligations, if the representation is false; or
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(ii) fails to honor a warranty or a particular warranty term;
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(k) indicates that the consumer will receive a rebate, discount, or other benefit as an
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inducement for entering into a consumer transaction in return for giving the supplier
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the names of prospective consumers or otherwise helping the supplier to enter into
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other consumer transactions, if receipt of the benefit is contingent on an event
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occurring after the consumer enters into the transaction;
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(l) after receipt of payment for goods or services, fails to ship the goods or furnish the
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services within the time advertised or otherwise represented or, if no specific time is
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advertised or represented, fails to ship the goods or furnish the services within 30
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days, unless within the applicable time period the supplier provides the buyer with
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the option to:
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(i) cancel the sales agreement and receive a refund of all previous payments to the
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supplier if the refund is mailed or delivered to the buyer within 10 business days
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after the day on which the seller receives written notification from the buyer of the
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buyer's intent to cancel the sales agreement and receive the refund; or
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(ii) extend the shipping date to a specific date proposed by the supplier;
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(m) except as provided in Subsection (3)(b), fails to furnish a notice meeting the
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requirements of Subsection (3)(a) of the purchaser's right to cancel a direct
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solicitation sale within three business days of the time of purchase if:
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(i) the sale is made other than at the supplier's established place of business pursuant
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to the supplier's personal contact, whether through mail, electronic mail, facsimile
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transmission, telephone, or any other form of direct solicitation; and
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(ii) the sale price exceeds $25;
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(n) promotes, offers, or grants participation in a pyramid scheme as defined under Title
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76, Chapter 6a, Pyramid Scheme Act;
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(o) in connection with a charitable solicitation:
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(i) falsely indicates that:
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(A) the supplier is affiliated with a charitable organization;
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(B) the supplier is an employee, officer, or representative of a public safety
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agency;
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(C) the supplier has sponsorship or approval of a given charitable organization;
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(D) a charitable contribution will be provided to a given charitable organization;
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(E) providing a charitable contribution has an additional benefit, including a tax
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benefit; or
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(F) the recipient of the solicitation has previously contributed to a given charitable
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organization;
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(ii) uses a fictitious name or a name the supplier is not authorized to use; or
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(iii) with intent to deceive:
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(A) uses a name that is substantially similar to that of another charitable
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organization; or
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(B) falsely indicates that a charitable contribution will be used for a particular
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purpose;
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(p) if a consumer indicates the consumer's intention of making a claim for a motor
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vehicle repair against the consumer's motor vehicle insurance policy:
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(i) commences the repair without first giving the consumer oral and written notice of:
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(A) the total estimated cost of the repair; and
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(B) the total dollar amount the consumer is responsible to pay for the repair,
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which dollar amount may not exceed the applicable deductible or other copay
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arrangement in the consumer's insurance policy; or
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(ii) requests or collects from a consumer an amount that exceeds the dollar amount a
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consumer was initially told the consumer was responsible to pay as an insurance
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deductible or other copay arrangement for a motor vehicle repair under Subsection
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(2)(p)(i), even if that amount is less than the full amount the motor vehicle
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insurance policy requires the insured to pay as a deductible or other copay
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arrangement, unless:
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(A) the consumer's insurance company denies that coverage exists for the repair,
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in which case, the full amount of the repair may be charged and collected from
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the consumer; or
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(B) the consumer misstates, before the repair is commenced, the amount of money
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the insurance policy requires the consumer to pay as a deductible or other
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copay arrangement, in which case, the supplier may charge and collect from
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the consumer an amount that does not exceed the amount the insurance policy
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requires the consumer to pay as a deductible or other copay arrangement;
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(q) includes in any contract, receipt, or other written documentation of a consumer
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transaction, or any addendum to any contract, receipt, or other written documentation
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of a consumer transaction, any confession of judgment or any waiver of any of the
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rights to which a consumer is entitled under this chapter;
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(r) charges a consumer for a consumer transaction or a portion of a consumer transaction
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that has not previously been agreed to by the consumer;
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(s) solicits or enters into a consumer transaction with [a person] an individual who lacks
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the mental ability to comprehend the nature and consequences of:
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(i) the consumer transaction; or
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(ii) the [person's] individual's ability to benefit from the consumer transaction;
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(t) solicits for the sale of a product or service by providing a consumer with an
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unsolicited check or negotiable instrument the presentment or negotiation of which
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obligates the consumer to purchase a product or service, unless the supplier is:
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(i) a depository institution under Section 7-1-103;
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(ii) an affiliate of a depository institution; or
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(iii) an entity regulated under Title 7, Financial Institutions Act;
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(u) sends an unsolicited mailing to a person that appears to be a billing, statement, or
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request for payment for a product or service the person has not ordered or used, or
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that implies that the mailing requests payment for an ongoing product or service the
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person has not received or requested;
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(v) issues a gift certificate, instrument, or other record in exchange for payment to
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provide the bearer, upon presentation, goods or services in a specified amount
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without printing in a readable manner on the gift certificate, instrument, packaging,
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or record any expiration date or information concerning a fee to be charged and
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deducted from the balance of the gift certificate, instrument, or other record;
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(w) misrepresents the geographical origin or location of the supplier's business;
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(x) fails to comply with the restrictions of Section 15-10-201 on automatic renewal
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provisions;
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(y) violates Section 13-59-201;
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(z) fails to comply with the restrictions of Subsection 13-54-202(2); or
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(aa) states or implies that a registration or application administered or enforced by the
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division is an endorsement, sanction, or approval by the division or a governmental
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agency or office.
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(3)(a) The notice required by Subsection (2)(m) shall:
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(i) be a conspicuous statement written in dark bold with at least 12-point type on the
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first page of the purchase documentation; and
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(ii) read as follows: "YOU, THE BUYER, MAY CANCEL THIS CONTRACT AT
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ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY (or time
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period reflecting the supplier's cancellation policy but not less than three business
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days) AFTER THE DATE OF THE TRANSACTION OR RECEIPT OF THE
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PRODUCT, WHICHEVER IS LATER."
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(b) A supplier is exempt from the requirements of Subsection (2)(m) if the supplier's
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cancellation policy:
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(i) is communicated to the buyer; and
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(ii) offers greater rights to the buyer than Subsection (2)(m).
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(4)(a) A gift certificate, instrument, or other record that does not print an expiration date
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in accordance with Subsection (2)(v) does not expire.
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(b) A gift certificate, instrument, or other record that does not include printed
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information concerning a fee to be charged and deducted from the balance of the gift
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certificate, instrument, or other record is not subject to the charging and deduction of
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the fee.
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(c) Subsections (2)(v) and (4)(b) do not apply to a gift certificate, instrument, or other
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record useable at multiple, unaffiliated sellers of goods or services if an expiration
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date is printed on the gift certificate, instrument, or other record.
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Section 5. Section 13-11-5 is amended to read:
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13-11-5 . Unconscionable act or practice by supplier.
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(1) [An ] A supplier that commits an unconscionable act or practice [by a supplier ]in
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connection with a consumer transaction violates this [act] chapter whether [it] the
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unconscionable act or practice occurs before, during, or after the transaction.
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(2)(a) The unconscionability of an act or practice is a question of law for [the] a court
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with jurisdiction.
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(b) If it is claimed or appears to the court that an act or practice may be unconscionable,
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the parties shall be given a reasonable opportunity to present evidence as to [its] the
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act or practice's setting, purpose, and effect to aid the court in making [its] the court's
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determination.
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(3) In determining whether an act or practice is unconscionable, the court shall consider the
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circumstances [which] that the supplier knew or had reason to know.
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Section 6. Section 13-11-6 is amended to read:
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13-11-6 . Service of process.
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(1) In addition to any other method provided by rule or statute, personal jurisdiction over a
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supplier may be acquired in a civil action or proceeding instituted in a court [of this state]
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with jurisdiction by the service of process as provided in Subsection (3).
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(2)(a) A supplier that engages in any act or practice in this state governed by this
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chapter, or engages in a consumer transaction subject to this chapter, may designate
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an agent upon whom service of process may be made in the state.
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(b) A supplier shall make a designation of an agent under Subsection (2)(a) [shall be ]in
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writing and [filed] file the designation with the Division of Corporations and
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Commercial Code.
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(c) An agent designated under this Subsection (2) shall be a resident of or a corporation
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authorized to do business in the state.
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(3)(a) Subject to Subsection (3)(b), process upon a supplier may be served as provided
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in Section 16-17-301 if:
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(i) a designation is not made and filed under Subsection (2); or
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(ii) process cannot be served in the state upon the designated agent.
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(b) Service upon a supplier is not effective unless the plaintiff promptly mails a copy of
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the process and pleadings by registered or certified mail to the [defendant] supplier at
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the [defendant's] supplier's last reasonably ascertainable address.
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(c) The plaintiff shall file an affidavit of compliance with this section:
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(i) with the clerk of the court; and
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(ii) on or before the return day of the process, if any, or within any future time the
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court allows.
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Section 7. Section 13-11-7 is amended to read:
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13-11-7 . Duties of division -- Civil penalty for violation of restraining or
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injunctive orders.
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(1) The [enforcing authority] division shall:
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(a) enforce this chapter throughout the state;
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(b) cooperate with state and local officials, officials of other states, and officials of the
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federal government in the administration of comparable statutes;
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(c) inform consumers and suppliers on a continuing basis of the provisions of this
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chapter and of acts or practices that violate this chapter[ ];
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(d) receive and act on complaints; and
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(e) maintain a public file of final judgments rendered under this chapter that have been
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either reported officially or made available for public dissemination under Subsection
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(1)(c), final consent judgments, and to the extent the [enforcing authority] division
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considers appropriate, assurances of voluntary compliance.
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(2)(a) On motion of the [enforcing authority] division, or on [its] the court's own motion,
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the court may impose a civil penalty of not more than $5,000 for each day a
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temporary restraining order, preliminary injunction, or permanent injunction issued
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under this chapter is violated, if the supplier received notice of the restraining or
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injunctive order.
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(b) Civil penalties imposed under this section shall be paid to the General Fund.
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Section 8. Section 13-11-8 is amended to read:
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13-11-8 . Powers of division.
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[(1) The enforcing authority ] In addition to the authority described in Sections 13-2-5 and
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13-2-6, the division may conduct research, hold public hearings, make inquiries, and
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publish studies relating to consumer sales acts or practices.
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[(2) The enforcing authority shall adopt substantive rules that prohibit with specificity acts
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or practices that violate Section 13-11-4 and appropriate procedural rules.]
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Section 9. Section 13-11-9 is amended to read:
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13-11-9 . Rule-making requirements.
424
[(1) In addition to complying with other rule-making requirements imposed by this act, the
425
enforcing authority shall:]
426
[(a) adopt as a rule a description of the organization of his office, stating the general
427
course and method of operation of his office and method whereby the public may
428
obtain information or make submissions or requests;]
429
[(b) adopt rules of practice setting forth the nature and requirements of all formal and
430
informal procedures available, including a description of the forms and instructions
431
used by the enforcing authority of his office; and]
432
[(c) make available for public inspection all rules, written statements of policy, and
433
interpretations formulated, adopted, or used by the enforcing authority in discharging
434
his functions.]
435
[(2) A rule of the enforcing authority is invalid, and may not be invoked by the enforcing
- 13 - S.B. 42 Enrolled Copy
436
authority for any purpose, until it has been made available for public inspection under
437
Subsection (1). This provision does not apply to a person who has knowledge of a rule
438
before engaging in an act or practice that violates this act.] In accordance with Title 63G,
439
Chapter 3, Utah Administrative Rulemaking Act, the division shall make rules that
440
specify acts or practices that violate Subsection 13-11-4(1).
441
Section 10. Section 13-11-16 is amended to read:
442
13-11-16 . Investigatory powers of the division.
443
(1) If[, by his own inquiries or as a result of complaints, the enforcing authority ] the
444
division has reason to believe that a person has engaged in, is engaging in, or is about to
445
engage in an act or practice that violates this [act, he] chapter, the division may [
446
administer oaths and affirmations, subpoena witnesses or matter, and collect evidence]
447
investigate and otherwise act in accordance with Sections 13-2-5 and 13-2-6 and other
448
provisions of this chapter.
449
(2)(a) If the matter that the [enforcing authority] division subpoenas is located outside
450
this state, the person subpoenaed may either make [it] the matter available to the [
451
enforcing authority] division at a convenient location within the state or pay the
452
reasonable and necessary expenses for the [enforcing authority] division or [his] the
453
division's representative to examine the matter at the place where [it] the matter is
454
located.[ ]
455
(b) The [enforcing authority] division may designate representatives, including officials
456
of the state in which the matter is located, to inspect the matter on [his] the division's
457
behalf, and [he ]may respond to similar requests from officials of other states.
458
(3) Upon failure of a person without lawful excuse to obey a subpoena and upon reasonable
459
notice to all persons affected, the [enforcing authority] division may apply to the court
460
for an order compelling compliance.
461
(4) In the event a witness asserts a privilege against self-incrimination, testimony and
462
evidence from the witness may be compelled [pursuant to] in accordance with Title 77,
463
Chapter 22b, Grants of Immunity.
464
Section 11. Section 13-11-17 is amended to read:
465
13-11-17 . Actions by the division.
466
(1) The [enforcing authority] division may bring an action in a court [of competent] with
467
jurisdiction to:
468
(a) obtain a declaratory judgment that an act or practice violates this chapter;
469
(b) enjoin, in accordance with the principles of equity, a supplier [who] that has violated,
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470
is violating, or is otherwise likely to violate this chapter;
471
(c) order disgorgement of money or any thing of value received in violation of this
472
chapter;
473
(d) recover, for each violation, restitution for actual damages, or obtain relief under
474
Subsection (2)(b), on behalf of impacted consumers[ who complained to the
475
enforcing authority within a reasonable time after it instituted proceedings under this
476
chapter]; and
477
[(d)] (e) obtain a fine in an amount determined after considering the factors in Subsection
478
(6).
479
(2)(a) The [enforcing authority] division may bring a class action on behalf of consumers
480
for the actual damages caused by an act or practice specified as violating this chapter
481
in a rule adopted by the [enforcing authority] division under [Subsection 13-11-8(2)]
482
Section 13-11-9 before the consumer transactions on which the action is based, or
483
declared to violate Section 13-11-4 or 13-11-5 by final judgment of courts of general
484
jurisdiction and appellate courts of this state that was either reported officially or
485
made available for public dissemination under Subsection 13-11-7(1)(c) by the [
486
enforcing authority] division 10 days before the consumer transactions on which the
487
action is based, or, with respect to a supplier who agreed to [it] a consent judgment,
488
was prohibited specifically by the terms of a consent judgment that became final
489
before the consumer transactions on which the action is based.
490
(b)(i) On motion of the [enforcing authority] division and without bond in an action
491
under this Subsection (2), the court may make appropriate orders, including
492
appointment of a master or receiver or sequestration of assets, but only if it
493
appears that the defendant is threatening or is about to remove, conceal, or dispose
494
of the defendant's property to the damage of persons for whom relief is requested.
495
(ii) An appropriate order described in Subsection (2)(b)(i) may include an order to:
496
(A) reimburse consumers found to have been damaged;
497
(B) carry out a transaction in accordance with consumers' reasonable expectations;
498
(C) strike or limit the application of unconscionable clauses of contracts to avoid
499
an unconscionable result;
500
(D) impose a fine in an amount determined after considering the factors listed in
501
Subsection (6); or
502
(E) grant other appropriate relief.
503
[(ii)] (iii) The court may assess the expenses of a master or receiver against a supplier.
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504
(c) If an act or practice that violates this chapter unjustly enriches a supplier and
505
damages can be computed with reasonable certainty, damages recoverable on behalf
506
of consumers who cannot be located with due diligence shall be transferred to the
507
state treasurer [pursuant to] in accordance with Title 67, Chapter 4a, Revised Uniform
508
Unclaimed Property Act.
509
(d) If a supplier shows by a preponderance of the evidence that a violation of this
510
chapter resulted from a bona fide error notwithstanding the maintenance of
511
procedures reasonably adapted to avoid the error, recovery under this Subsection (2)
512
is limited to the amount, if any, by which the supplier was unjustly enriched by the
513
violation.
514
(3)(a)(i) The [enforcing authority] division may terminate an investigation or an
515
action other than a class action upon acceptance of the supplier's written assurance
516
of voluntary compliance with this chapter.[ ]
517
(ii) Acceptance of an assurance may be conditioned on a commitment to reimburse
518
consumers or take other appropriate corrective action.
519
(b)(i) An assurance is not evidence of a prior violation of this chapter.[ ]
520
(ii) Unless an assurance has been rescinded by agreement of the parties or voided by
521
a court for good cause, subsequent failure to comply with the terms of an
522
assurance is prima facie evidence of a violation.
523
(4)(a) In addition to other penalties and remedies set out under this chapter, and in
524
addition to [its] the division's other enforcement powers under Chapter 2, Division of
525
Consumer Protection, the division director may issue a cease and desist order and
526
impose an administrative fine of up to $2,500 for each violation of this chapter.
527
(b) All money received through fines imposed under this section shall be deposited in
528
the Consumer Protection Education and Training Fund created by Section 13-2-8.
529
(5)(a) Within 30 days after agency review or, if appealed to a court with jurisdiction, 30
530
days after judicial review of a final division order imposing an administrative fine,
531
the supplier on whom the fine is imposed shall pay the fine in full.
532
(b) The unpaid amount of a fine is increased by 10%:
533
(i) if the fine has not been paid in full within 60 days after the final division order
534
imposing the fine; and
535
(ii) unless the division waives the 10% increase in a stipulated payment plan.
536
(6) A court shall determine the fine imposed under Subsection [(1)(d)] (1)(e) or Subsection [
537
(2)(b)(i)(D) shall be determined ] (2)(b)(ii)(D) after considering the following factors:
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538
(a) the seriousness, nature, circumstances, extent, and persistence of the conduct
539
constituting the violation, including whether the supplier acted knowingly or
540
intentionally to deceive;
541
(b) the harm to other persons resulting either directly or indirectly from the violation;
542
(c) cooperation by the supplier in an inquiry or investigation conducted by the [
543
enforcing authority] division concerning the violation;
544
(d) efforts by the supplier to prevent occurrences of the violation;
545
(e) efforts by the supplier to mitigate the harm caused by the violation, including a
546
reimbursement made to a consumer injured by the act of the supplier;
547
(f) the history of previous violations by the supplier;
548
(g) the need to deter the supplier or other suppliers from committing the violation in the
549
future;[ and]
550
(h) whether the individual harmed by the violation was a vulnerable adult; and
551
[(h)] (i) other matters as justice may require.
552
Section 12. Section 13-11-18 is amended to read:
553
13-11-18 . Noncompliance by supplier subject to other state supervision --
554
Cooperation of division and other official or agency.
555
(1)(a) If the [enforcing authority] division receives a complaint or other information
556
relating to noncompliance with this [act] chapter by a supplier [who] that is subject to
557
other supervision in this state, the [enforcing authority] division shall inform the
558
official or agency having that supervision.[ ]
559
(b) The [enforcing authority] division may request information about [suppliers] a supplier
560
from the official or agency.
561
(2)(a) The [enforcing authority] division and any other official or agency in this state
562
having supervisory authority over a supplier shall consult and assist each other in
563
maintaining compliance with this [act] chapter.
564
(b) Within the scope of [their] the division's authority, [they] the division and any other
565
official or agency in this state may jointly or separately make investigations,
566
prosecute suits, and take other official action [they consider] the division considers
567
appropriate.
568
Section 13. Section 13-11-19 is amended to read:
569
13-11-19 . Actions by consumer.
570
(1) Whether [he] a consumer seeks or is entitled to damages or otherwise has an adequate
571
remedy at law, [a] the consumer may bring an action to:
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572
(a) obtain a declaratory judgment that an act or practice violates this chapter; and
573
(b) enjoin, in accordance with the principles of equity, a supplier [who] that has violated,
574
is violating, or is likely to violate this chapter.
575
(2) A consumer who suffers loss as a result of a violation of this chapter may recover[, but
576
not in a class action, ] actual damages [or $2,000, whichever is greater, ]plus court costs,
577
but not in a class action except as provided in this section.
578
(3) Whether a consumer seeks or is entitled to recover damages or has an adequate remedy
579
at law, [he] the consumer may bring a class action for declaratory judgment, an
580
injunction, and appropriate ancillary relief against an act or practice that violates this
581
chapter.
582
(4)(a) A consumer who suffers loss as a result of a violation of this chapter may bring a
583
class action for the actual damages caused by an act or practice specified as violating
584
this chapter by a rule adopted by the [enforcing authority] division under [Subsection
585
13-11-8(2)] Section 13-11-9 before the consumer transactions on which the action is
586
based, or declared to violate Section 13-11-4 or 13-11-5 by a final judgment of the
587
appropriate court or courts of general jurisdiction and appellate courts of this state
588
that was either officially reported or made available for public dissemination under
589
Subsection 13-11-7(1)(c) by the [enforcing authority] division 10 days before the
590
consumer transactions on which the action is based, or with respect to a supplier who
591
agreed to [it] a consent judgment, was prohibited specifically by the terms of a
592
consent judgment [which] that became final before the consumer transactions on
593
which the action is based.
594
(b) If an act or practice that violates this chapter unjustly enriches a supplier and the
595
damages can be computed with reasonable certainty, damages recoverable on behalf
596
of consumers who cannot be located with due diligence shall be transferred to the
597
state treasurer [pursuant to] in accordance with Title 67, Chapter 4a, Revised Uniform
598
Unclaimed Property Act.
599
(c) If a supplier shows by a preponderance of the evidence that a violation of this chapter
600
resulted from a bona fide error notwithstanding the maintenance of procedures
601
reasonably adapted to avoid the error, recovery under this section is limited to the
602
amount, if any, in which the supplier was unjustly enriched by the violation.
603
(5) Except for services performed by the [enforcing authority] division, the court may award
604
to the prevailing party a reasonable attorney's fee limited to the work reasonably
605
performed if:
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606
(a) the consumer complaining of the act or practice that violates this chapter has brought
607
or maintained an action [he] the consumer knew to be groundless; or a supplier has
608
committed an act or practice that violates this chapter; and
609
(b) an action under this section has been terminated by a judgment or required by the
610
court to be settled under Subsection 13-11-21(1)(a).
611
(6) Except for consent judgment entered before testimony is taken, a final judgment in
612
favor of the [enforcing authority] division under Section 13-11-17 is admissible as prima
613
facie evidence of the facts on which [it] an action is based in later proceedings under this
614
section against the same person or a person in privity with [him] the person against
615
which the judgment is entered.
616
(7) When a judgment under this section becomes final, the prevailing party shall mail a
617
copy to the [enforcing authority] division for inclusion in the public file maintained
618
under Subsection 13-11-7(1)(e).
619
Section 14. Section 13-11-20 is amended to read:
620
13-11-20 . Class actions.
621
(1) An action may be maintained as a class action under this act only if:
622
(a) the class is so numerous that joinder of all members is impracticable;
623
(b) there are questions of law or fact common to the class;
624
(c) the claims or defenses of the representative parties are typical of the claims or
625
defenses of the class;
626
(d) the representative parties will fairly and adequately protect the interests of the class;
627
and
628
(e) [either:]
629
(i) the prosecution of separate actions by or against individual members of the class
630
would create a risk of:
631
(A) inconsistent or varying adjudications with respect to individual members of
632
the class which would establish incompatible standards of conduct for the party
633
opposing the class; or
634
(B) adjudications with respect to individual members of the class that would as a
635
practical matter dispose of the interests of the other members not parties to the
636
adjudications or substantially impair or impede their ability to protect [their] the
637
other members' interests;[ or]
638
(ii) the party opposing the class has acted or refused to act on grounds generally
639
applicable to the class, thereby making appropriate final injunctive relief or
- 19 - S.B. 42 Enrolled Copy
640
corresponding declaratory relief with respect to the class as a whole; or
641
(iii) the court finds that the questions of law or fact common to the members of the
642
class predominate over any questions affecting only individual members, and that
643
a class action is superior to other available methods for the fair and efficient
644
adjudication of the controversy.
645
(2) The matters pertinent to the findings under Subsection (1)(e)(iii) include:
646
(a) the interest of members of the class in individually controlling the prosecution or
647
defense of separate actions;
648
(b) the extent and nature of any litigation concerning the controversy already
649
commenced by or against members of the class;
650
(c) the desirability or undesirability of concentrating the litigation of the claims in the
651
particular forum; and
652
(d) the difficulties likely to be encountered in the management of a class action.
653
(3)(a) As soon as practicable after the commencement of an action brought as a class
654
action, the court shall determine by order whether [it] the action is to be so
655
maintained.
656
(b) An order under this subsection may be conditional, and [it] the order may be
657
amended before decision on the merits.
658
(4)(a) In a class action maintained under Subsection (1)(e), the court may direct to the
659
members of the class the best notice practicable under the circumstances, including
660
individual notice to each member who can be identified through reasonable effort.
661
(b) The notice shall advise each member that:
662
[(a)] (i) the court will exclude [him] the member from the class, unless [he] the member
663
requests inclusion, by a specified date;
664
[(b)] (ii) the judgment, whether favorable or not, will include all members who
665
request inclusion; and
666
[(c)] (iii) a member who requests inclusion may, if [he] the member desires, enter an
667
appearance through [his ]counsel.
668
(5) When appropriate, an action may be brought or maintained as a class action with respect
669
to particular issues, or a class may be divided into subclasses and each subclass treated
670
as a class.
671
(6) In the conduct of a class action the court may make appropriate orders:
672
(a) determining the course of proceedings or prescribing measures to prevent undue
673
repetition or complication in the presentation of evidence or argument;
- 20 - Enrolled Copy S.B. 42
674
(b) requiring, for the protection of the members of the class or otherwise for the fair
675
conduct of the action, that notice be given in the manner the court directs to some or
676
all of the members or to the [enforcing authority] division of any step in the action, or
677
of the proposed extent of the judgment, or of the opportunity of members to signify
678
whether [they] the members consider the representation fair and adequate, to
679
intervene and present claims or defenses, or otherwise to come into the action;
680
(c) imposing conditions on the representative parties or on intervenors;
681
(d) requiring that the pleadings be amended to eliminate allegations as to representation
682
of absent persons, and that the action proceed accordingly; or
683
(e) dealing with similar procedural matters.
684
(7)(a) A class action may not be dismissed or compromised without approval of the
685
court.
686
(b) Notice of the proposed dismissal or compromise shall be given to all members of the
687
class as the court directs.
688
(8)(a) The judgment in an action maintained as a class action under Subsection (1)(e)(i)
689
or (ii), whether or not favorable to the class, shall describe those whom the court
690
finds to be members of the class.[ ]
691
(b) The judgment in a class action under Subsection (1)(e)(iii), whether or not favorable
692
to the class, shall specify or describe [those] the members to whom the notice
693
provided in Subsection (4) was directed, and who have requested inclusion, and
694
whom the court finds to be members of the class.
695
Section 15. Section 13-11-21 is amended to read:
696
13-11-21 . Settlement of class action -- Complaint in class action delivered to
697
enforcing authority.
698
(1)(a)(i)(A) A defendant in a class action may file a written [offer of settlement]
699
settlement offer.[ ]
700
(B) If [it] the settlement offer is not accepted within a reasonable time by a
701
plaintiff class representative, the defendant may file an affidavit reciting the
702
rejection.
703
(ii)(A) The court may determine that the settlement offer has enough merit to
704
present to the members of the class.[ ]
705
(B) If the court [so determines] determines that the settlement offer merits
706
presenting, the court shall order a hearing to determine whether the settlement
707
offer should be approved.
- 21 - S.B. 42 Enrolled Copy
708
(iii) The court shall provide at least 60 days advance notice of the hearing:
709
(A) to the [enforcing authority] division; and
710
(B) to the extent practicable, to each member who can be identified through
711
reasonable effort.
712
(iv) The notice described in Subsection (1)(a)(iii) shall specify the terms of the
713
settlement offer and a reasonable period within which members of the class who
714
request [it] to be included in the class are entitled to be included in the class.
715
(v)(A) The statute of limitations for [those who] the members that are excluded [
716
pursuant to] in accordance with this Subsection [(1)(a)(v)] (1)(a)(v)(A) is tolled
717
for the period the class action has been pending, plus an additional year.[ ]
718
(B) Within 60 days of receipt of the notice required by this Subsection (1)(a), the [
719
enforcing authority] division may intervene in the class action for the limited
720
purpose of objecting to the [offer of settlement] settlement offer.
721
(b)(i) If a member who has previously lost an opportunity to be excluded from the
722
class is excluded at [his] the member's request in response to notice of the
723
settlement offer[ of settlement] during the period specified under Subsection
724
(1)(a), [he] the member may not thereafter participate in a class action for damages
725
respecting the same consumer transaction, unless the court later disapproves the
726
settlement offer[ of settlement] or approves a settlement materially different from
727
that proposed in the original settlement offer[ of settlement].
728
(ii) After the expiration of the period of limitations, a member of the class is not
729
entitled to be excluded from [it] the class.
730
(c)(i) If the court later approves the settlement offer[ of settlement], including
731
changes, if any, required by the court in the interest of a just settlement of the
732
action, [it] the court shall enter judgment, which is binding on all persons who are
733
then members of the class.[ ]
734
(ii) If the court disapproves the settlement offer or approves a settlement materially
735
different from that proposed in the original settlement offer, notice shall be given
736
to a person who was excluded from the action at [his] the person's request in
737
response to notice of the settlement offer under Subsection (1)(a), and [he] the
738
person is entitled to rejoin the class and, in the case of the approval, participate in
739
the settlement.
740
(2)(a) On the commencement of a class action under Section 13-11-19, the class
741
representative shall mail by certified mail with return receipt requested or personally
- 22 - Enrolled Copy S.B. 42
742
serve a copy of the complaint on the [enforcing authority] division.[ ]
743
(b) Within 180 days after the receipt of a copy of the complaint, but not thereafter, the [
744
enforcing authority] division may intervene in the class action for purposes of
745
participation as an interested party in litigation of the class action.
746
Section 16. Section 13-11-22 is amended to read:
747
13-11-22 . Exemptions from application of act.
748
(1) This act does not apply to:
749
(a) an act or practice required or specifically permitted by or under state or federal law[,
750
or by or under state law];
751
(b) a publisher, broadcaster, printer, or other person engaged in the dissemination of
752
information or the reproduction of printed or pictorial matter so far as the information
753
or matter has been disseminated or reproduced on behalf of others without actual
754
knowledge that it violated this act;
755
(c) claim for personal injury or death or claim for damage to property other than the
756
property that is the subject of the consumer transaction;
757
(d) credit terms of a transaction otherwise subject to this act; or
758
(e) any public utility subject to the regulating jurisdiction of the Public Service
759
Commission of the state of Utah.
760
(2) A person alleged to have violated this act has the burden of showing the applicability of
761
this section.
762
Section 17. Section 78B-4-513 is amended to read:
763
78B-4-513 . Cause of action for defective construction.
764
(1) Except as provided in Subsection (2), an action for defective design or construction is
765
limited to breach of the contract, whether written or otherwise, including both express
766
and implied warranties.
767
(2) An action for defective design or construction may include damage to other property or
768
physical personal injury if the damage or injury is caused by the defective design or
769
construction.
770
(3) For purposes of Subsection (2), property damage does not include:
771
(a) the failure of construction to function as designed; or
772
(b) diminution of the value of the constructed property because of the defective design
773
or construction.
774
(4) Except as provided in Subsections (2) and (6), an action for defective design or
775
construction may be brought only by a person in privity of contract with the original
- 23 - S.B. 42 Enrolled Copy
776
contractor, architect, engineer, or [the ]real estate developer.
777
(5) If a person in privity of contract sues for defective design or construction under this
778
section, nothing in this section precludes the person from bringing, in the same suit,
779
another cause of action to which the person is entitled based on an intentional or willful
780
breach of a duty existing in law.
781
(6) Nothing in this section precludes[ ] :
782
(a) a person from assigning a right under a contract to another person, including to a
783
subsequent owner or a homeowners association[.] ; or
784
(b) a government agency from bringing an enforcement action in accordance with any
785
other statute for matters involving defective construction.
786
Section 18. Repealer.
787
This bill repeals:
788
Section 13-11-17.5, Costs and attorney's fees.
789
Section 19. Effective Date.
790
This bill takes effect on May 7, 2025.
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