Full Text of HB4676 97th General Assembly
HB4676 97TH GENERAL ASSEMBLY |
| | 97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012 HB4676 Introduced 2/3/2012, by Rep. Esther Golar SYNOPSIS AS INTRODUCED: |
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Creates the Consumer Remedies Protection Act. Provides
that consumer adhesion contracts are void as a matter of public
policy. Creates a private right of action for consumers whose rights
are violated. Authorizes recovery of actual and statutory damages
in addition to attorney's fees and costs. Defines terms.
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| | A BILL FOR |
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| 1 | | AN ACT concerning business.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 1. Short title. This Act may be cited as the | 5 | | Consumer
Remedies Protection Act. | 6 | | Section 5. Purpose, findings, and conclusion. | 7 | | (a) This Act shall be broadly construed to effect its | 8 | | purposes. | 9 | | (b) The General Assembly finds that: | 10 | | (1) for many important goods and services consumers are | 11 | | unable to
purchase any variant of that good or service | 12 | | without being forced
to waive important legal rights;
| 13 | | (2) adequate remedies for consumers provide an | 14 | | essential deterrent
effect to prevent widespread consumer | 15 | | harm;
| 16 | | (3) consumer adhesion contracts severely limit the | 17 | | ability of
consumers to seek adequate legal recourse when | 18 | | harmed;
| 19 | | (4) companies often use unenforceable exculpatory | 20 | | clauses as a
means to deter consumers from bringing valid | 21 | | claims, including by
increasing the cost to consumers of | 22 | | vindicating their legal rights;
and
| 23 | | (5) consumers currently lack an economically viable |
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| 1 | | method for
pursuing recourse when faced with small damages.
| 2 | | (c) The General Assembly concludes that this Act is | 3 | | necessary to prevent
the authors of consumer adhesion contracts | 4 | | from immunizing
themselves from liability for widespread | 5 | | consumer
harm.
| 6 | | (d) One of the fundamental public policies of this State is | 7 | | to protect
consumers from widespread harm, and this Act shall | 8 | | further that
policy.
| 9 | | Section 10. Definitions. | 10 | | "Consumer" means an individual who uses, purchases, | 11 | | acquires,
attempts to purchase or acquire, or is offered or | 12 | | furnished goods or
services, in part or in whole, for personal, | 13 | | family, or household
purposes.
| 14 | | "Consumer adhesion contract" means any form or standard
| 15 | | contract with terms and conditions drafted by the non-consumer
| 16 | | party, presented to consumers without the possibility for
| 17 | | meaningful negotiation of terms.
| 18 | | "Limiting clause" means any contractual provision | 19 | | purporting to
limit the scope, nature, and effect of remedies | 20 | | available to
consumers. "Limiting clause" shall be interpreted | 21 | | broadly, and
shall include, but is not confined to, clauses | 22 | | specifying: forum
selection, choice of law, waiver or | 23 | | limitation of liability,
mandatory arbitration, class action | 24 | | waiver, and limitation on
damages.
| 25 | | "Prima facie demonstration" means the production of enough
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| 1 | | evidence to allow the trier of fact to infer the fact at issue | 2 | | and rule
in that party's favor without consideration of | 3 | | rebuttal evidence.
| 4 | | "Public injury" means an action with injurious effect that | 5 | | is: | 6 | | (1) a violation of a statute that has public interest | 7 | | impact; | 8 | | (2) applied repeatedly to a particular consumer; or | 9 | | (3) aimed at or affects consumers generally. | 10 | | "Substantially superior bargaining power" means the | 11 | | ability to
draft the terms and conditions of the consumer | 12 | | adhesion contract
and present the contract to consumers without | 13 | | the realistic
possibility for negotiation of terms.
| 14 | | Section 15. Consumer Contracts. | 15 | | (a) In a dispute arising out of a consumer adhesion | 16 | | contract, when
a party makes a good faith, prima facie | 17 | | demonstration that a party to
the contract with substantially | 18 | | superior bargaining power has
caused public injury, the | 19 | | consumer adhesion contract at issue shall
be presumed void as a | 20 | | matter of public policy.
| 21 | | (b) In a dispute arising out of a consumer adhesion | 22 | | contract, when
it is established that a party to the contract | 23 | | with substantially
superior bargaining power has caused public | 24 | | injury, the consumer
adhesion contract at issue shall be | 25 | | declared void as a matter of
public policy.
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| 1 | | (c) Any limiting clause in a consumer adhesion contract | 2 | | that, if
enforced, would result, on its face or in practice, in | 3 | | a consumer
having no practical and meaningful remedy shall be | 4 | | void. | 5 | | Section 20. Private right of action. | 6 | | (a) A consumer whose rights under this Act are violated may | 7 | | bring
an action against any party benefitting from the illegal | 8 | | consumer
adhesion contract.
| 9 | | (b) Upon a finding that a consumer adhesion contract or | 10 | | clause
therein is void under to this Act, all consumers subject | 11 | | to the
consumer adhesion contract shall be entitled to the | 12 | | greater of:
| 13 | | (1) the consumer's actual damages; or | 14 | | (2) statutory damages of $10 each, subject to Section | 15 | | 25 of this
Act.
| 16 | | (c) A consumer who prevails in any action brought under to | 17 | | this
Act shall be entitled to his or her reasonable attorney's | 18 | | fees and
costs.
| 19 | | Section 25. Safe harbor. If a party, within 30 days after | 20 | | the
initiation of an action, waives those contractual | 21 | | provisions made
unlawful under this Act, the statutory damages | 22 | | prescribed in
subsection (b) of Section 20 shall not be | 23 | | awarded. For purposes of
this Section, the initiation of an | 24 | | action includes the filing of a court
case, the initiation of |
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| 1 | | arbitration, or a formal demand to waive the
offending | 2 | | contractual provisions.
| 3 | | Section 30. Construction. Nothing in this Act shall be | 4 | | construed to
limit any other consumer right under state or | 5 | | federal law.
| 6 | | Section 35. Severability. The provisions of this Act are | 7 | | severable
under Section 1.31 of the Statute on Statutes.
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