1     
CONSUMER PROTECTION ACTION AMENDMENTS

2     
2017 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Daniel Hemmert

5     
House Sponsor: Mike K. McKell

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions related to consumer protection actions.
10     Highlighted Provisions:
11          This bill:
12          ▸     provides that the attorney general may, in an action to enforce the Protection of
13     Personal Information Act or the Consumer Credit Protection Act, enter into a
14     confidentiality agreement under certain circumstances;
15          ▸     provides for the content of a confidentiality agreement entered into by the attorney
16     general pursuant to the Protection of Personal Information Act or the Consumer
17     Credit Protection Act;
18          ▸     provides that, in an action to enforce the Protection of Personal Information Act or
19     the Consumer Credit Protection Act, a court may issue a confidentiality order; and
20          ▸     provides for the handling of confidential information obtained by the attorney
21     general related to an enforcement action under the Protection of Personal
22     Information Act or the Consumer Credit Protection Act.
23     Money Appropriated in this Bill:
24          None
25     Other Special Clauses:
26          None
27     Utah Code Sections Affected:
28     AMENDS:
29          13-44-301, as last amended by Laws of Utah 2013, Chapter 187
30          13-45-401, as last amended by Laws of Utah 2015, Chapter 191
31     

32     Be it enacted by the Legislature of the state of Utah:
33          Section 1. Section 13-44-301 is amended to read:
34          13-44-301. Enforcement -- Confidentiality agreement -- Penalties.
35          (1) The attorney general may enforce this chapter's provisions.
36          (2) (a) Nothing in this chapter creates a private right of action.
37          (b) Nothing in this chapter affects any private right of action existing under other law,
38     including contract or tort.
39          (3) A person who violates this chapter's provisions is subject to a civil [fine] penalty of:
40          (a) no greater than $2,500 for a violation or series of violations concerning a specific
41     consumer; and
42          (b) no greater than $100,000 in the aggregate for related violations concerning more
43     than one consumer.
44          (4) (a) In addition to the penalties provided in Subsection (3), the attorney general may
45     seek, in an action brought under this chapter:
46          (i) injunctive relief to prevent future violations of this chapter [in:]; and
47          (ii) attorney fees and costs.
48          (b) The attorney general shall bring an action under this chapter in:
49          [(a)] (i) the district court located in Salt Lake City; or
50          [(b)] (ii) the district court for the district in which resides a consumer who is affected by
51     the violation.
52          (5) The attorney general shall deposit any amount received under Subsection (3), (4), or
53     (10) into the Attorney General Litigation Fund created in Section 76-10-3114.
54          [(5)] (6) In enforcing this chapter, the attorney general may:
55          (a) investigate the actions of any person alleged to violate Section 13-44-201 or
56     13-44-202;
57          (b) subpoena a witness;
58          (c) subpoena a document or other evidence;
59          (d) require the production of books, papers, contracts, records, or other information
60     relevant to an investigation; [and]
61          (e) conduct an adjudication in accordance with Title 63G, Chapter 4, Administrative
62     Procedures Act, to enforce a civil provision under this chapter[.]; and
63          (f) enter into a confidentiality agreement in accordance with Subsection (7).
64          (7) (a) If the attorney general has reasonable cause to believe that an individual is in
65     possession, custody, or control of information that is relevant to enforcing this chapter, the
66     attorney general may enter into a confidentiality agreement with the individual.
67          (b) In a civil action brought under this chapter, a court may issue a confidentiality order
68     that incorporates the confidentiality agreement described in Subsection (7)(a).
69          (c) A confidentiality agreement entered into under Subsection (7)(a) or a confidentiality
70     order issued under Subsection (7)(b) may:
71          (i) address a procedure;
72          (ii) address testimony taken, a document produced, or material produced under this
73     section;
74          (iii) provide whom may access testimony taken, a document produced, or material
75     produced under this section;
76          (iv) provide for safeguarding testimony taken, a document produced, or material
77     produced under this section; or
78          (v) require that the attorney general:
79          (A) return a document or material to an individual; or
80          (B) notwithstanding Section 63A-12-105 or a retention schedule created in accordance
81     with Section 63G-2-604, destroy the document or material at a designated time.
82          [(6)] (8) A subpoena issued under Subsection [(5)] (6) may be served by certified mail.
83          [(7)] (9) A person's failure to respond to a request or subpoena from the attorney
84     general under Subsection [(5)] (6)(b), (c), or (d) is a violation of this chapter.
85          [(8)] (10) (a) The attorney general may inspect and copy all records related to the
86     business conducted by the person alleged to have violated this chapter, including records
87     located outside the state.
88          (b) For records located outside of the state, the person who is found to have violated
89     this chapter shall pay the attorney general's expenses to inspect the records, including travel
90     costs.
91          (c) Upon notification from the attorney general of the attorney general's intent to
92     inspect records located outside of the state, the person who is found to have violated this
93     chapter shall pay the attorney general $500, or a higher amount if $500 is estimated to be
94     insufficient, to cover the attorney general's expenses to inspect the records.
95          [(d) The attorney general shall deposit any amounts received under this Subsection (8)
96     in the Attorney General Litigation Fund established in Section 76-10-3114.]
97          [(e)] (d) To the extent an amount paid to the attorney general by a person who is found
98     to have violated this chapter is not expended by the attorney general, the amount shall be
99     refunded to the person who is found to have violated this chapter.
100          [(f)] (e) The Division of Corporations and Commercial Code or any other relevant
101     entity shall revoke any authorization to do business in this state of a person who fails to pay any
102     amount required under this Subsection [(8)] (10).
103          (11) (a) Subject to Subsection (11)(c), the attorney general shall keep confidential a
104     procedure agreed to, testimony taken, a document produced, or material produced under this
105     section pursuant to a subpoena, confidentiality agreement, or confidentiality order, unless the
106     individual who agreed to the procedure, provided testimony, produced the document, or
107     produced material waives confidentiality in writing.
108          (b) Subject to Subsections (11)(c) and (11)(d), the attorney general may use, in an
109     enforcement action taken under this section, testimony taken, a document produced, or material
110     produced under this section to the extent the use is not restricted or prohibited by a
111     confidentiality agreement or a confidentiality order.
112          (c) The attorney general may use, in an enforcement action taken under this section,
113     testimony taken, a document produced, or material produced under this section that is restricted
114     or prohibited from use by a confidentiality agreement or a confidentiality order if the individual
115     who provided testimony or produced the document or material waives the restriction or
116     prohibition in writing.
117          (d) The attorney general may disclose testimony taken, a document produced, or
118     material produced under this section, without consent of the individual who provided the
119     testimony or produced the document or material, or the consent of an individual being
120     investigated, to:
121          (i) a grand jury; or
122          (ii) a federal or state law enforcement officer, if the person from whom the information
123     was obtained is notified 20 days or greater before the day on which the information is disclosed,
124     and the federal or state law enforcement officer certifies that the federal or state law
125     enforcement officer will:
126          (A) maintain the confidentiality of the testimony, document, or material; and
127          (B) use the testimony, document, or material solely for an official law enforcement
128     purpose.
129          Section 2. Section 13-45-401 is amended to read:
130          13-45-401. Enforcement -- Confidentiality agreement -- Penalties.
131          (1) The attorney general may enforce the provisions of this chapter.
132          (2) A person who violates a provision of [Section 13-45-201, 13-45-202, 13-45-203,
133     13-45-204, 13-45-205, or 13-45-301] this chapter is subject to a civil fine of:
134          (a) no greater than $2,500 for a violation or series of violations concerning a specific
135     consumer; and
136          (b) no greater than $100,000 in the aggregate for related violations concerning more
137     than one consumer.
138          (3) (a) In addition to the penalties provided in Subsection (2), the attorney general may
139     seek, in an action brought under this chapter:
140          (i) injunctive relief to prevent future violations of this chapter [in:]; and
141          (ii) attorney fees and costs.
142          (b) The attorney general shall bring an action under this chapter in:
143          [(a)] (i) the district court located in Salt Lake City; or
144          [(b)] (ii) the district court for the district in which resides a consumer who is the subject
145     of a credit report on which a violation occurs.
146          (4) The attorney general shall deposit any amount received under Subsection (2) or (3)
147     into the Attorney General Litigation Fund created in Section 76-10-3114.
148          (5) (a) If the attorney general has reasonable cause to believe that an individual is in
149     possession, custody, or control of information that is relevant to enforcing this chapter, the
150     attorney general may enter into a confidentiality agreement with the individual.
151          (b) In a civil action brought under this chapter, a court may issue a confidentiality order
152     that incorporates the confidentiality agreement described in Subsection (5)(a).
153          (c) A confidentiality agreement entered into under Subsection (5)(a) or a confidentiality
154     order issued under Subsection (5)(b) may:
155          (i) address a procedure;
156          (ii) address testimony taken, a document produced, or material produced under this
157     section;
158          (iii) provide whom may access testimony taken, a document produced, or material
159     produced under this section;
160          (iv) provide for safeguarding testimony taken, a document produced, or material
161     produced under this section; or
162          (v) require that the attorney general:
163          (A) return a document or material to an individual; or
164          (B) notwithstanding Section 63A-12-105 or a retention schedule created in accordance
165     with Section 63G-2-604, destroy the document or material at a designated time.
166          (6) (a) Subject to Subsection (6)(c), the attorney general shall keep confidential a
167     procedure agreed to, testimony taken, a document produced, or material produced under this
168     section pursuant to a subpoena, confidentiality agreement, or confidentiality order, unless the
169     individual who agreed to the procedure, provided testimony, or produced the document or
170     material waives confidentiality in writing.
171          (b) Subject to Subsections (6)(c) and (6)(d), the attorney general may use, in an
172     enforcement action taken under this section, testimony taken, a document produced, or material
173     produced under this section to the extent the use is not restricted or prohibited by a
174     confidentiality agreement or a confidentiality order.
175          (c) The attorney general may use, in an enforcement action taken under this section,
176     testimony taken, a document produced, or material produced under this section that is restricted
177     or prohibited from use by a confidentiality agreement or a confidentiality order if the individual
178     who provided testimony, produced the document, or produced the material waives the
179     restriction or prohibition in writing.
180          (d) The attorney general may disclose testimony taken, a document produced, or
181     material produced under this section, without consent of the individual who provided the
182     testimony, produced the document, or produced the material, or without the consent of an
183     individual being investigated, to:
184          (i) a grand jury; or
185          (ii) a federal or state law enforcement officer, if the person from whom the information
186     was obtained is notified 20 days or greater before the day on which the information is disclosed,
187     and the federal or state law enforcement officer certifies that the federal or state law
188     enforcement officer will:
189          (A) maintain the confidentiality of the testimony, document, or material; and
190          (B) use the testimony, document, or material solely for an official law enforcement
191     purpose.