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.
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
40     of:
41          (a) no greater than $2,500 for a violation or series of violations concerning a specific
42     consumer; and
43          (b) no greater than $100,000 in the aggregate for related violations concerning more
44     than one consumer.
45          (4) (a) In addition to the penalties provided in Subsection (3), the attorney general may
46     seek, in an action brought under this chapter:
47          (i) injunctive relief to prevent future violations of this chapter [in:]; and
48          (ii) attorney fees and costs.
49          (b) The attorney general shall bring an action under this chapter in:
50          [(a)] (i) the district court located in Salt Lake City; or
51          [(b)] (ii) the district court for the district in which resides a consumer who is affected
52     by the violation.
53          (5) The attorney general shall deposit any amount received under Subsection (3), (4),
54     or (10) into the Attorney General Litigation Fund created in Section 76-10-3114.
55          [(5)] (6) In enforcing this chapter, the attorney general may:
56          (a) investigate the actions of any person alleged to violate Section 13-44-201 or
57     13-44-202;
58          (b) subpoena a witness;

59          (c) subpoena a document or other evidence;
60          (d) require the production of books, papers, contracts, records, or other information
61     relevant to an investigation; [and]
62          (e) conduct an adjudication in accordance with Title 63G, Chapter 4, Administrative
63     Procedures Act, to enforce a civil provision under this chapter[.]; and
64          (f) enter into a confidentiality agreement in accordance with Subsection (7).
65          (7) (a) If the attorney general has reasonable cause to believe that an individual is in
66     possession, custody, or control of information that is relevant to enforcing this chapter, the
67     attorney general may enter into a confidentiality agreement with the individual.
68          (b) In a civil action brought under this chapter, a court may issue a confidentiality order
69     that incorporates the confidentiality agreement described in Subsection (7)(a).
70          (c) A confidentiality agreement entered into under Subsection (7)(a) or a
71     confidentiality order issued under Subsection (7)(b) may:
72          (i) address a procedure;
73          (ii) address testimony taken, a document produced, or material produced under this
74     section;
75          (iii) provide whom may access testimony taken, a document produced, or material
76     produced under this section;
77          (iv) provide for safeguarding testimony taken, a document produced, or material
78     produced under this section; or
79          (v) require that the attorney general:
80          (A) return a document or material to an individual; or
81          (B) notwithstanding Section 63A-12-105 or a retention schedule created in accordance
82     with Section 63G-2-604, destroy the document or material at a designated time.
83          [(6)] (8) A subpoena issued under Subsection [(5)] (6) may be served by certified mail.
84          [(7)] (9) A person's failure to respond to a request or subpoena from the attorney
85     general under Subsection [(5)] (6)(b), (c), or (d) is a violation of this chapter.
86          [(8)] (10) (a) The attorney general may inspect and copy all records related to the
87     business conducted by the person alleged to have violated this chapter, including records
88     located outside the state.
89          (b) For records located outside of the state, the person who is found to have violated

90     this chapter shall pay the attorney general's expenses to inspect the records, including travel
91     costs.
92          (c) Upon notification from the attorney general of the attorney general's intent to
93     inspect records located outside of the state, the person who is found to have violated this
94     chapter shall pay the attorney general $500, or a higher amount if $500 is estimated to be
95     insufficient, to cover the attorney general's expenses to inspect the records.
96          [(d) The attorney general shall deposit any amounts received under this Subsection (8)
97     in the Attorney General Litigation Fund established in Section 76-10-3114.]
98          [(e)] (d) To the extent an amount paid to the attorney general by a person who is found
99     to have violated this chapter is not expended by the attorney general, the amount shall be
100     refunded to the person who is found to have violated this chapter.
101          [(f)] (e) The Division of Corporations and Commercial Code or any other relevant
102     entity shall revoke any authorization to do business in this state of a person who fails to pay
103     any amount required under this Subsection [(8)] (10).
104          (11) (a) Subject to Subsection (11)(c), the attorney general shall keep confidential a
105     procedure agreed to, testimony taken, a document produced, or material produced under this
106     section pursuant to a subpoena, confidentiality agreement, or confidentiality order, unless the
107     individual who agreed to the procedure, provided testimony, produced the document, or
108     produced material waives confidentiality in writing.
109          (b) Subject to Subsections (11)(c) and (11)(d), the attorney general may use, in an
110     enforcement action taken under this section, testimony taken, a document produced, or material
111     produced under this section to the extent the use is not restricted or prohibited by a
112     confidentiality agreement or a confidentiality order.
113          (c) The attorney general may use, in an enforcement action taken under this section,
114     testimony taken, a document produced, or material produced under this section that is restricted
115     or prohibited from use by a confidentiality agreement or a confidentiality order if the individual
116     who provided testimony or produced the document or material waives the restriction or
117     prohibition in writing.
118          (d) The attorney general may disclose testimony taken, a document produced, or
119     material produced under this section, without consent of the individual who provided the
120     testimony or produced the document or material, or the consent of an individual being

121     investigated, to:
122          (i) a grand jury; or
123          (ii) a federal or state law enforcement officer, if the person from whom the information
124     was obtained is notified 20 days or greater before the day on which the information is
125     disclosed, and the federal or state law enforcement officer certifies that the federal or state law
126     enforcement officer will:
127          (A) maintain the confidentiality of the testimony, document, or material; and
128          (B) use the testimony, document, or material solely for an official law enforcement
129     purpose.
130          Section 2. Section 13-45-401 is amended to read:
131          13-45-401. Enforcement.
132          (1) The attorney general may enforce the provisions of this chapter.
133          (2) A person who violates a provision of [Section 13-45-201, 13-45-202, 13-45-203,
134     13-45-204, 13-45-205, or 13-45-301] this chapter is subject to a civil fine of:
135          (a) no greater than $2,500 for a violation or series of violations concerning a specific
136     consumer; and
137          (b) no greater than $100,000 in the aggregate for related violations concerning more
138     than one consumer.
139          (3) (a) In addition to the penalties provided in Subsection (2), the attorney general may
140     seek, in an action brought under this chapter:
141          (i) injunctive relief to prevent future violations of this chapter [in:]; and
142          (ii) attorney fees and costs.
143          (b) The attorney general shall bring an action under this chapter in:
144          [(a)] (i) the district court located in Salt Lake City; or
145          [(b)] (ii) the district court for the district in which resides a consumer who is the
146     subject of a credit report on which a violation occurs.
147          (4) The attorney general shall deposit any amount received under Subsection (2) or (3)
148     into the Attorney General Litigation Fund created in Section 76-10-3114.
149          (5) (a) If the attorney general has reasonable cause to believe that an individual is in
150     possession, custody, or control of information that is relevant to enforcing this chapter, the
151     attorney general may enter into a confidentiality agreement with the individual.

152          (b) In a civil action brought under this chapter, a court may issue a confidentiality order
153     that incorporates the confidentiality agreement described in Subsection (5)(a).
154          (c) A confidentiality agreement entered into under Subsection (5)(a) or a
155     confidentiality order issued under Subsection (5)(b) may:
156          (i) address a procedure;
157          (ii) address testimony taken, a document produced, or material produced under this
158     section;
159          (iii) provide whom may access testimony taken, a document produced, or material
160     produced under this section;
161          (iv) provide for safeguarding testimony taken, a document produced, or material
162     produced under this section; or
163          (v) require that the attorney general:
164          (A) return a document or material to an individual; or
165          (B) notwithstanding Section 63A-12-105 or a retention schedule created in accordance
166     with Section 63G-2-604, destroy the document or material at a designated time.
167          (6) (a) Subject to Subsection (6)(c), the attorney general shall keep confidential a
168     procedure agreed to, testimony taken, a document produced, or material produced under this
169     section pursuant to a subpoena, confidentiality agreement, or confidentiality order, unless the
170     individual who agreed to the procedure, provided testimony, or produced the document or
171     material waives confidentiality in writing.
172          (b) Subject to Subsections (6)(c) and (6)(d), the attorney general may use, in an
173     enforcement action taken under this section, testimony taken, a document produced, or material
174     produced under this section to the extent the use is not restricted or prohibited by a
175     confidentiality agreement or a confidentiality order.
176          (c) The attorney general may use, in an enforcement action taken under this section,
177     testimony taken, a document produced, or material produced under this section that is restricted
178     or prohibited from use by a confidentiality agreement or a confidentiality order if the individual
179     who provided testimony, produced the document, or produced the material waives the
180     restriction or prohibition in writing.
181          (d) The attorney general may disclose testimony taken, a document produced, or
182     material produced under this section, without consent of the individual who provided the

183     testimony, produced the document, or produced the material, or without the consent of an
184     individual being investigated, to:
185          (i) a grand jury; or
186          (ii) a federal or state law enforcement officer, if the person from whom the information
187     was obtained is notified 20 days or greater before the day on which the information is
188     disclosed, and the federal or state law enforcement officer certifies that the federal or state law
189     enforcement officer will:
190          (A) maintain the confidentiality of the testimony, document, or material; and
191          (B) use the testimony, document, or material solely for an official law enforcement
192     purpose.






Legislative Review Note
Office of Legislative Research and General Counsel