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50-634. Private remedies. (a) Whether a consumer seeks or is entitled to damages or otherwise has an adequate remedy at law or in equity, a consumer aggrieved by an alleged violation of this act may bring an action to:

(1) Obtain a declaratory judgment that an act or practice violates this act; or

(2) enjoin or obtain a restraining order against a supplier who has violated, is violating or is likely to violate this act.

(b) A consumer who is aggrieved by a violation of this act may recover, but not in a class action, damages or a civil penalty as provided in subsection (a) of K.S.A. 50-636 and amendments thereto, whichever is greater.

(c) Whether a consumer seeks or is entitled to recover damages or has an adequate remedy at law, a consumer may bring a class action for declaratory judgment, an injunction and appropriate ancillary relief, except damages, against an act or practice that violates this act.

(d) A consumer who suffers loss as a result of a violation of this act may bring a class action for the damages caused by an act or practice:

(1) Violating any of the acts or practices specifically proscribed in K.S.A. 50-626, 50-627 and 50-640, and amendments thereto, or

(2) declared to violate K.S.A. 50-626 or 50-627, and amendments thereto, by a final judgment of any district court or the supreme court of this state that was either officially reported or made available for public dissemination under subsection (a)(3) of K.S.A. 50-630 and amendments thereto by the attorney general 10 days before the consumer transactions on which the action is based, or

(3) with respect to a supplier who agreed to it, was prohibited specifically by the terms of a consent judgment which became final before the consumer transactions on which the action is based.

(e) Except for services performed by the office of the attorney general or the office of a county or district attorney, the court may award to the prevailing party reasonable attorney fees, including those on appeal, limited to the work reasonably performed if:

(1) The consumer complaining of the act or practice that violates this act has brought or maintained an action the consumer knew to be groundless and the prevailing party is the supplier; or a supplier has committed an act or practice that violates this act and the prevailing party is the consumer; and

(2) an action under this section has been terminated by a judgment, or settled.

(f) Except for consent judgments, a final judgment in favor of the attorney general under K.S.A. 50-632 and amendments thereto is admissible as prima facie evidence of the facts on which it is based in later proceedings under this section against the same supplier or a supplier in privity.

(g) Notice of an action commenced pursuant to subsection (b) or (c), or an appeal of such action, shall be given to the attorney general, but failure to do so shall not provide a defendant a defense in such action.

History: L. 1973, ch. 217, § 12; L. 1974, ch. 230, § 3; L. 1976, ch. 236, § 5; L. 1978, ch. 210, § 1; L. 1991, ch. 159, § 7; July 1.

KANSAS COMMENT, 1973

1. Subsection (a) permits a consumer to obtain appropriate declaratory and injunctive relief regardless of whether he recovers or has standing to recover damages. The Buyer Protection Act contained no private remedies at all.

2. Under subsection (b), an aggrieved consumer may recover the greater of his actual damages or the civil penalties as set forth in section 50-636(a); section 50-636(a) gives the court discretion to award up to $2,000 for each violation of the act. There is no minimum civil penalty, as is the case under certain provisions of the Kansas Uniform Consumer Credit Code (K.S.A. 16a-5-201).

3. Under subsection (c), an aggrieved consumer may bring a private class action for declaratory and injunctive relief. The term "appropriate ancillary relief" would, for example, include an action for rescission of contracts entered into by the class. No class actions for damages are allowed under this subsection.

4. The only class actions for damages available under the act are provided for in subsection (d). Such a private class action, if based on the statute, must be based on violation of a specific proscription found in sections 50-626, 50-627, 50-639 and 50-640. The purpose for this provision is to limit liability to violations of which the supplier can clearly be apprised in advance. Actions declared by a court at a later time to be violative of the act are not subject to a retroactive class action remedy. Those violations subject to class action include the deceptive acts and practices set forth in 50-626(b), the acts or practices made per se unconscionable under 50-627(b), violation of the warranty disclaimer prohibition in 50-639, and violations of the home solicitation sale provisions under 50-640. Conversely, a practice which for the first time was held to be deceptive under 50-626(a), or unconscionable under 50-627(a), would not be subject to retroactive class action liability.

Class action liability may also attach prospectively to any violation of 50-626 or 50-627 as determined by the final judgment of a Kansas district court or the Kansas Supreme Court, so long as the supplier is on constructive notice of the decision by its being reported or its being previously filed in the attorney general's office under 50-627(a)(5)(A) and 50-630(a)(3). In addition, violation of the terms of a consent judgment by a supplier who was a party to the judgment triggers class action liability under subsection (d)(3).

5. Under subsection (e), the court may award a reasonable attorney's fee to certain prevailing parties in litigation under 50-634. This provision should be compared with 50-632(a)(4), where the attorney general in a public enforcement action is authorized to recover reasonable expenses and investigation fees. Under this subsection, if a consumer has brought or maintained an action which he knew to be groundless, a reasonable attorney's fee can be awarded by the court to a supplier. On the other hand, if a supplier is found to have violated the act through judgment or final settlement, the court may award a reasonable attorney's fee to the consumer.

6. Subsection (f) is comparable to 15 U.S.A. § 16(a), which makes final judgments in government antitrust proceedings admissible in subsequent actions by private parties. The subsection is not intended to forestall the application of principles of collateral estoppel which preclude a supplier from relitigating the facts established in an action by the attorney general.

Law Review and Bar Journal References:

"The New Kansas Consumer Legislation," Barkley Clark, 42 J.B.A.K. 147, 189, 190 (1973).

Landlord-tenant implied warranty of habitability, 22 K.L.R. 666, 683 (1974).

"A New Kansas Approach to an Old Fraud," consumer protection, Polly Higdon Wilhardt, 14 W.L.J. 623, 633, 636 (1975).

"U.C.C.—Limitations on Personal Injury Damages for Breach of Warranty," 14 W.L.J. 714 (1975).

"Recovery of Attorney Fees in Kansas," Mark A. Furney, 18 W.L.J. 535, 550, 551, 554, 560 (1979).

"Survey of Kansas Law: Consumer Law," John C. Maloney, 27 K.L.R. 197, 209 (1979).

"Survey of Kansas Law: Consumer Law," 29 K.L.R. 483, 484 (1981).

"Broadcast Advertising: What Has It Done to the Audience?" Ronald C. Griffin, 23 W.L.J. 237, 264 (1984).

"Broker Beware—Real Estate Agent Liability in Kansas After Johnson v. Geer Real Estate Co.," Marilyn M. Eddy, 35 K.L.R. 645, 650 (1987).

"Caveat plaintiff: Congress has defederalized private securities litigation," Steven A. Ramirez, 67 J.K.B.A. No. 9, 16 (1998).

"An Update to Consumer's Guide to Court-Awarded Attorney Fees," Mark A. Scott, J.K.T.L.A. Vol. XXII, No. 1, 7 (1998).

"Addressing the Consumer's Worst Nightmare: Toward a More Expansive Development of the Law of Tortious Fraud and Deceptive Practices in Kansas," Ellen Byers, 38 W.L.J. 455 (1999).

"The Untapped Potential of the Kansas Consumer Protection Act," Amy Fellows, 74 J.K.B.A. No. 4, 24 (2005).

"Common-Sense Construction of Consumers Protection Acts," Victor E. Schwartz and Cory Silverman, 54 K.L.R. 1 (2005).

"H.B. 2451: The Legislature's Response to Williamson v. Amrani," Michael R. O'Neal, K.D.J.Summer (2007).

"State Attorney General Enforcement of Unfair or Deceptive Acts and Practices Laws: Emerging Concerns and Solutions," Cary Silverman & Jonathan L. Wilson, 65 K.L.R. 209, 215 (2016).

CASE ANNOTATIONS

1. Prevailing party entitled to actual damages or civil penalty; not both. Bell v. Kent-Brown Chevrolet Co., 1 K.A.2d 131, 135, 561 P.2d 907.

2. Cited; on counterclaim for damages under Consumer Protection Act for violations of the Residential Landlord and Tenant Act, held that the Residential Landlord and Tenant Act was specific and took precedence over the broader Consumer Protection Act. Chelsea Plaza Homes, Inc. v. Moore, 226 K. 430, 432, 601 P.2d 1100.

3. Debt collection agency is "supplier" within meaning of Consumer Protection Act. State ex rel. Miller v. Midwest Service Bureau of Topeka, Inc., 229 K. 322, 324, 623 P.2d 1343.

4. Amounts of civil damages and attorney fees are discretionary with trial court. Watkins v. Roach Cadillac, Inc., 7 K.A.2d 8, 15, 637 P.2d 458 (1982).

5. Application and purpose of act considered; disputed material facts on issue of supplier's guilt of deceptive or unconscionable act not resolved. Stair v. Gaylord, 232 K. 765, 776, 659 P.2d 178 (1983).

6. Attorney fees denied; plaintiff's suit was not groundless. Waggener v. Seever Systems, Inc., 233 K. 517, 525, 526, 664 P.2d 813 (1983).

7. Filing of action held not groundless and attorney fees denied. Waggener v. Seever Systems, Inc., 233 K. 517, 525, 526, 664 P.2d 813 (1983).

8. Cited; failure to provide private remedies in Kansas Uniform Trade Practices Act (40-2401 et seq.) implies no private remedy intended. Earth Scientists v. United States Fidelity Ex Guar., 619 F.Supp. 1465, 1471 (1985).

9. Where action tried and judgment entered under Real Estate Brokers' and Salespersons' License Act, provisions herein inapplicable. Johnson v. Geer Real Estate Co., 239 K. 324, 332, 720 P.2d 660 (1986).

10. Cited; applicability of statutes of limitations (60-512, 60-513, 60-514) to claims for actual damages and civil remedies examined. Agristor Leasing v. Meuli, 634 F.Supp. 1208, 1218 (1986).

11. Cited; act held applicable to real estate transactions; claim dismissed on theory no evidence of deceptive act or practice shown. Hoffman v. Haug, 242 K. 867, 872, 873, 752 P.2d 124 (1988).

12. Cited; attorney fees awarded even though factor in considering punitive damages for fraud examined. Equitable Life Leasing Corp. v. Abbick, 243 K. 513, 515, 757 P.2d 304 (1988).

13. Mere nondisclosure of a material fact as not proscribed by 50-626(b)(3) determined. Heller v. Martin, 14 K.A.2d 48, 50, 782 P.2d 1241 (1989).

14. University student not considered an aggrieved consumer hereunder; educational malpractice not recognized as tort in Kansas. Finstad v. Washburn University, 252 K. 465, 845 P.2d 685 (1993).

15. Act does not apply to sureties who are not themselves seeking or acquiring property. First Nat'l Bank of Anthony v. Dunning, 18 K.A.2d 518, 524, 855 P.2d 493 (1993).

16. Trial court's refusal to instruct on intent as a required element (60-526) held to be reversible error. Porras v. Bell, 18 K.A.2d 569, 857 P.2d 676 (1993).

17. Civil penalty award not so excessive as to shock the conscience of the appellate court. Ray v. Ponca/Universal Holdings, Inc., 22 K.A.2d 47, 52, 913 P.2d 209 (1995).

18. KCPA (50-623 et seq.) does not provide authority for court to award party's out-of-pocket litigation expenses. DeSpiegelaere v. Killion, 24 K.A.2d 542, 550, 947 P.2d 1039 (1997).

19. Trial court did not abuse discretion in amount of attorney fees and expenses awarded in KCPA (50-621 et seq.) action. York v. InTrust Bank, N.A., 265 K. 271, 308, 962 P.2d 405 (1998).

20. Consumer must be aggrieved or suffer loss to bring class action for injunctive relief under KCPA (50-623 et seq.). Stein v. Sprint Corp., 22 F.Supp.2d 1210, 1215 (1998).

21. Insuring against civil penalties associated with wrong doer's own actions violates state public policy. State Farm Fire & Cas. Co. v. Martinez, 26 K.A.2d 869, 873, 995 P.2d 890 (2000).

22. Civil penalty may be assessed under KCPA (75-6101 et seq.) without finding a breach of warranty. In re Green, 281 B.R. 699, 703 (2002).

23. Multiple violations of KCPA can be based on single telephone call if multiple violations were committed. Lowe v. Surpas Resource Corp., 253 F.Supp.2d 1209, 1227 (2003).

24. Kansas consumer protection act did not authorize award of attorney fees under facts. Poindexter v. Morse Chevrolet, Inc., 282 F.Supp.2d 1232, 1234 (2003).

25. Plaintiff not aggrieved consumer, causal connection between representations and claimed damage prevented by agreement not to rely. McLellan v. Raines, 36 K.A.2d 1, 18, 140 P.3d 1034 (2006).

26. Under KCPA, only aggrieved consumers may recover money damages. Gonzalez v. Pepsico, Inc., 489 F.Supp.2d 1233, 1248 (2007).

27. Kansas consumer protection act includes collecting the greater of actual damages or the civil penalty. In re Murphy, 367 B.R. 711, 715 (2007).

28. Bankruptcy; debtor's Kansas consumer protection act (KCPA) claim involving purchase of homestead extends KCPA recovery to homestead exemption. In re Murphy, 367 B.R. 711, 717 (2007).

29. Cited; jury's finding of no negligence in medical malpractice action does not preclude claim under consumer protection act. Kelly v. VanZant, 287 K. 509, 524, 525, 197 P.3d 803 (2008).

30. District court's award of attorney fees affirmed; appellate attorney fees granted. Unruh v. Purina Mills, 289 K. 1185, 221 P.3d 1130 (2009).

31. Consumer held not an aggrieved party where there was an intervening event between seller's misrepresentation and consumer's damages. Schneider v. Liberty Asset Management, 45 K.A.2d 978, 251 P.3d 666 (2011).

32. A buyer of residential real estate may qualify as an "aggrieved consumer" under the Kansas consumer protection act. Stechschulte v. Jennings, 297 K. 2, 298 P.3d 1083 (2013).

33. Supreme court rule governing appellate attorney fees does not provide appellate court any greater authority to award attorney fees than statute authorizing attorney fees associated with a claim under the Kansas consumer protection act. Rinehart v. Morton Buildings, Inc., 297 K. 926, 305 P.3d 622 (2013).


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