State of Illinois
90th General Assembly
Legislation

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[ Introduced ]

90_HB3395eng

      815 ILCS 505/10a          from Ch. 121 1/2, par. 270a
          Amends  the  Consumer  Fraud   and   Deceptive   Business
      Practices  Act.    In Section concerning an action for actual
      damages, makes provision for a party  defendant  who  is  the
      holder of a retail installment contract within the meaning of
      the  Motor Vehicle Retail Installment Sales Act to be treated
      the same as a party defendant who is a new  or  used  vehicle
      dealer within the meaning of the Vehicle Code.
                                                     LRB9009754DJcd
HB3395 Engrossed                               LRB9009754DJcd
 1        AN ACT to amend the Consumer Fraud and Deceptive Business
 2    Practices Act by changing Section 10a.
 3        Be  it  enacted  by  the People of the State of Illinois,
 4    represented in the General Assembly:
 5        Section  5.  The Consumer Fraud  and  Deceptive  Business
 6    Practices Act is amended by changing Section 10a as follows:
 7        (815 ILCS 505/10a) (from Ch. 121 1/2, par. 270a)
 8        Sec. 10a.  Action for actual damages.
 9        (a)  Any  person who suffers actual damage as a result of
10    a violation of this Act committed by  any  other  person  may
11    bring  an  action  against  such  person.   The court, in its
12    discretion may award actual economic  damages  or  any  other
13    relief  which the court deems proper; provided, however, that
14    no award of punitive  damages  may  be  assessed  under  this
15    Section against a party defendant who is a new vehicle dealer
16    or used vehicle dealer within the meaning of Chapter 5 of the
17    Illinois  Vehicle  Code  or  who  is  the  holder of a retail
18    installment contract within the meaning of  Section  2.12  of
19    the  Motor  Vehicle  Retail Installment Sales Act, unless the
20    conduct engaged in was willful or intentional and  done  with
21    evil motive or reckless indifference to the rights of others.
22    Proof  of  a  public  injury,  a  pattern,  or  an  effect on
23    consumers and the public interest generally shall be required
24    in order to state  a  cause  of  action  under  this  Section
25    against a party defendant who is a new vehicle dealer or used
26    vehicle  dealer  within  the  meaning  of  Chapter  5  of the
27    Illinois Vehicle Code or  who  is  the  holder  of  a  retail
28    installment  contract  within  the meaning of Section 2.12 of
29    the Motor Vehicle Retail Installment Sales  Act.    Proof  of
30    such  public  injury may be shown by any one of the following
31    factors:
HB3395 Engrossed            -2-                LRB9009754DJcd
 1             (1)  Violation  of  a  statute  that  has  a  public
 2        interest impact.
 3             (2)  Repeated acts prior to the  act  involving  the
 4        plaintiff.
 5             (3)  Potential for repetition.
 6        (b)  Such  action may be commenced in the county in which
 7    the person against  whom  it  is  brought  resides,  has  his
 8    principal  place of business, or is doing business, or in the
 9    county where  the  transaction  or  any  substantial  portion
10    thereof occurred.
11        (c)  Except  as provided in subsections (f), (g), and (h)
12    of this Section, in any action brought by a person under this
13    Section,  the  Court  may  grant  injunctive   relief   where
14    appropriate and may award, in addition to the relief provided
15    in  this Section, reasonable attorney's fees and costs to the
16    prevailing party.
17        (d)  Upon commencement of any action brought  under  this
18    Section  the  plaintiff shall mail a copy of the complaint or
19    other initial pleading to  the  Attorney  General  and,  upon
20    entry  of  any  judgment or order in the action, shall mail a
21    copy of such judgment or order to the Attorney General.
22        (e)  Any action for damages under this Section  shall  be
23    forever  barred  unless  commenced  within  3 years after the
24    cause of action accrued; provided that, whenever  any  action
25    is  brought by the Attorney General or a State's Attorney for
26    a violation of this Act, the running of the foregoing statute
27    of limitations, with respect to every private right of action
28    for damages which is based in whole or in part on any  matter
29    complained  of  in  said  action  by  the Attorney General or
30    State's Attorney, shall  be  suspended  during  the  pendency
31    thereof, and for one year thereafter.
32        (f)  At   any   time   more   than  30  days  before  the
33    commencement of trial, a party, who is a new  vehicle  dealer
34    or used vehicle dealer within the meaning of Chapter 5 of the
HB3395 Engrossed            -3-                LRB9009754DJcd
 1    Illinois  Vehicle  Code,  or  who  is  the holder of a retail
 2    installment contract within the meaning of  Section  2.12  of
 3    the  Motor  Vehicle  Retail Installment Sales Act, and who is
 4    defending a claim under this Act, may serve  upon  the  party
 5    seeking  relief  under this Act an offer to allow judgment to
 6    be taken against the defending party to the effect  specified
 7    in  the  offer  with  costs  then accrued.  If within 10 days
 8    after service of the offer, the offeree serves written notice
 9    that the offer is accepted, either party may  then  file  the
10    offer and notice of acceptance together with proof of service
11    of the notice; the court shall then enter judgment.  An offer
12    not  accepted  shall  be deemed withdrawn and evidence of the
13    offer is not admissible except in a proceeding  to  determine
14    costs.   When  a party seeking relief under this Act does not
15    accept an offer filed with the  clerk  and  served  upon  the
16    attorney  for  that  party  more  than  30  days  before  the
17    commencement  of  trial and when that party fails to obtain a
18    judgment  in  an  amount  more  than  the  total   offer   of
19    settlement,  that  party  shall forfeit and the court may not
20    award any compensation for attorney's fees and costs incurred
21    after the date of the offer.
22        (g)  At  any  time  more  than   30   days   before   the
23    commencement  of  trial,  a party who is seeking relief under
24    this Act from a new vehicle dealer  or  used  vehicle  dealer
25    within  the meaning of Chapter 5 of the Illinois Vehicle Code
26    or from the holder of a retail  installment  contract  within
27    the  meaning  of  Section  2.12  of  the Motor Vehicle Retail
28    Installment Sales Act may serve the dealer or holder an offer
29    to allow judgment to be taken against the dealer or holder to
30    the effect specified in the offer with  costs  then  accrued.
31    If  within  10  days  after service of the offer, the offeree
32    serves written notice that  the  offer  is  accepted,  either
33    party  may  then  file  the  offer  and  notice of acceptance
34    together with proof of service of the notice; the court shall
HB3395 Engrossed            -4-                LRB9009754DJcd
 1    then enter judgment.  An offer not accepted shall  be  deemed
 2    withdrawn  and evidence of the offer is not admissible except
 3    in a proceeding to determine costs.  When a dealer or  holder
 4    does not accept an offer filed with the clerk and served upon
 5    the  attorney  for  the  dealer  or  holder more than 30 days
 6    before the commencement of trial and  if  the  party  seeking
 7    relief  against  a  dealer or holder obtains a judgment in an
 8    amount equal to or in excess of the offer amount,  the  party
 9    seeking  relief shall be paid interest on the offer amount at
10    the rate as provided in Section 2-1303 of the Code  of  Civil
11    Procedure  from  the  date of the offer until the judgment is
12    paid.
13        (h)  At least 30 days prior to the filing  of  an  action
14    under this Section, a party who is seeking relief shall serve
15    a  written  notice of the nature of the alleged violation and
16    demand for relief upon the prospective party, who  is  a  new
17    vehicle  dealer  or used vehicle dealer within the meaning of
18    Chapter 5 of the Illinois Vehicle Code or who is  the  holder
19    of  a  retail  installment  contract  within  the  meaning of
20    Section 2.12 of the Motor Vehicle  Retail  Installment  Sales
21    Act,  against whom such action will be commenced.  Any person
22    receiving such a demand for relief may,  within  30  days  of
23    service  of  the demand for relief, submit a written offer of
24    settlement, which offer is  to  be  exclusive  of  attorney's
25    fees,  to the party serving the notice and demand.  The party
26    who is seeking relief must certify in  any  cause  of  action
27    that  the  notice  and  demand  was  served  upon  the  named
28    defendants  and  the substance of their response, if any.  If
29    the offer of settlement is rejected in writing by  the  party
30    who  is  seeking  relief, then, in any subsequent action, the
31    court shall deny any  award  of  attorney's  fees  and  costs
32    requested by the party seeking relief under this Act incurred
33    after  the  rejection  of the written offer of settlement, if
34    the judgment is less than the  amount  contained  within  the
HB3395 Engrossed            -5-                LRB9009754DJcd
 1    offer  of settlement.  All written offers of settlement under
 2    this subsection shall  be  presumed  to  be  offered  without
 3    prejudice in compromise of a disputed matter.
 4    (Source: P.A. 89-144, eff. 1-1-96.)

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