KANSAS OFFICE of
  REVISOR of STATUTES

  

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50-636. Civil penalties. (a) The commission of any act or practice declared to be a violation of this act shall render the violator liable to the aggrieved consumer, or the state or a county as provided in subsection (c), for the payment of a civil penalty, recoverable in an individual action, including an action brought by the attorney general or county attorney or district attorney, in a sum set by the court of not more than $10,000 for each violation. An aggrieved consumer is not a required party in actions brought by the attorney general or a county or district attorney pursuant to this section.

(b) Any supplier who willfully violates the terms of any court order issued pursuant to this act shall forfeit and pay a civil penalty of not more than $20,000 per violation, in addition to other penalties that may be imposed by the court, as the court shall deem necessary and proper. For the purposes of this section, the district court issuing an order shall retain jurisdiction, and in such cases, the attorney general, acting in the name of the state, or the appropriate county attorney or district attorney may petition for recovery of civil penalties.

(c) In administering and pursuing actions under this act, the attorney general and the county attorney or district attorney are authorized to sue for and collect reasonable expenses and investigation fees as determined by the court. Civil penalties or contempt penalties sued for and recovered by the attorney general shall be paid into the general fund of the state. Civil penalties and contempt penalties sued for and recovered by the county attorney or district attorney shall be paid into the general fund of the county where the proceedings were instigated.

(d) Any act or practice declared to be a violation of this act not identified to be in connection with a specific identifiable consumer transaction but which is continuing in nature shall be deemed a separate violation each day such act or practice exists.

History: L. 1973, ch. 217, § 14; L. 1974, ch. 230, § 4; L. 1976, ch. 236, § 6; L. 1978, ch. 210, § 2; L. 1991, ch. 159, § 9; L. 1993, ch. 177, § 3; L. 2001, ch. 105, § 2; July 1.

KANSAS COMMENT, 1973

This section sets forth allowable civil penalties for violations of the act. Although no minimum civil penalty is provided for, the court retains discretion under subsection (a) to award up to $2,000 to an aggrieved consumer in a non-class action. The purpose of this provision is to encourage enforcement of the act by a consumer acting as his own "private attorney general." Under this section, however, public enforcement authorities may also recover the penalties on behalf of the state or county. There was no such provision under the old Buyer Protection Act. Willful violations of injunctions or court orders give rise to much larger civil penalties. Any civil penalty recovered by the attorney general under subsections (a) or (b) is to be paid into the general fund of the state or county, whichever is applicable.

Revisor's Note:

No change was made in section in 1974.

Law Review and Bar Journal References:

"The New Kansas Consumer Legislation," Barkley Clark, 42 J.B.A.K. 147, 191 (1973).

Consumer protection in Tenth Judicial District, William P. Coates, Jr., 44 J.B.A.K. 67, 104 (1975).

"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).

"Prosecuting and Defending Forcible Entry and Detainer Actions," Stephen Kirschbaum, 65 J.K.B.A. No. 7, 20 (1996).

"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).

"2001 Legislative Wrap-Up," Paul T. Davis, 70 J.K.B.A. No. 7, 14 (2001).

"Corporate Corruption and Wall Street Finagling: How Will it Play in Kansas After SLUSA?" Steven Ramirez and Jeffrey S. Kruske, 72 J.K.B.A. No. 8, 14 (2003).

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

"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, 214, 242 (2016).

CASE ANNOTATIONS

1. Award of civil damages and attorneys' fees; discretionary with trial court. Bell v. Kent-Brown Chevrolet Co., 1 K.A.2d 131, 134, 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, 431, 432, 601 P.2d 1100.

3. 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).

4. 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).

5. 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).

6. 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).

7. Cited; punitive damages award for fraud, attorney fees award even though factor in considering punitive damages examined. Equitable Life Leasing Corp. v. Abbick, 243 K. 513, 517, 757 P.2d 304 (1988).

8. 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).

9. Discussed in holding a university student is not considered an aggrieved consumer under 50-634. Finstad v. Washburn University, 252 K. 465, 470, 473, 845 P.2d 685 (1993).

10. 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).


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