Two
bills under consideration as the end of the session nears contain significant
changes to Colorado’s Consumer Protection Act (“CCPA”). The bills broaden remedies, make more conduct
a breach of the CCPA, and include purely private transactions in the type of
conduct that falls within the scope of the CCPA. The bills are House Bill 19-1289 (“House Bill”) and
Senate Bill
19-237
(“Senate Bill”). As of April 29, 2019, the
House Bill has passed the House. The
Senate Bill has not progressed past introduction. It is unclear if both houses of the
legislature will have an opportunity to vote on either or both bills before the
session ends.
The
House Bill makes a person liable for CCPA violations based on conduct engaged
in “recklessly,” not just knowing conduct.
No definition of the term “recklessly” is provided in the House Bill,
but Colorado’s attorney general testified “recklessly” “means a company
or person acted with reckless disregard for the truth.” (Page 2).
No explanation was given of what the word “reckless” in the definition
of “recklessly” meant in this context.
Another
provision of the House Bill adds a “catch all” prohibition that labels as a
deceptive trade practice knowingly or recklessly engaging in any unfair,
unconscionable, deceptive, deliberately misleading, false or fraudulent act or
practice. There is no indication how a
person could “recklessly” engage in “deliberately misleading” acts or
practices.
Another
change to Colorado law in the House Bill is the removal of the significant
public impact requirement. That change
would subject purely private disputes for transactions in the course of a
person’s business, vocation or occupation to the CCPA. CCPA remedies include treble damages if bad
faith is shown by clear and convincing evidence.
The
House Bill allows recovery of interest from the date the claim accrued. One of the accrual dates available to a
claimant is the date the false, misleading, or deceptive act or practice
occurred. C.R.S § 6-1-115. Thus, on its face the House Bill may allow
construction defect plaintiffs to collect pre-judgment interest on CCPA claims,
perhaps overturning Goodyear v. Holmes, 193 P.2d 821 (Colo. 2008) in
circumstances where the action remains timely even given an early accrual date.
Reasonable attorneys’ fees, with some
limits in certain cases, are also available on a CCPA claim. Due to the substantial broadening of the
scope of the CCPA and the remedies available under the CCPA, use of the CCPA in
civil litigation will likely increase significantly if the House Bill passes.
The
Senate Bill allows private plaintiffs to recover $500 per violation if that
amount is greater than actual damages or three times actual damages where bad
faith is shown by clear and convincing evidence. It also allows recovery in a class action of
actual damages sustained by the class, reasonable costs and fees; and
injunctive or declaratory relief. CCPA
remedies are currently not available in class actions.
For
more information regarding Colorado’s Consumer Protection Act, or construction
litigation in Colorado, you can reach Steve Heisdorffer by telephone at (303)
653-0044 or by e-mail at heisdorffer@hhmrlaw.com.
