Consumers, the Time Has Come: Exercising Your Right to Know In Iowa
As a consumer in Iowa, the time has come for you to know what you are buying, get what you bought, and seek justice if you were defrauded. Prior to the enactment of the Consumer Rights Act bill, Iowa remained the only state that denied citizens a private right of action under the state’s consumer fraud act. Until now, the Consumer Rights Act bill gives Iowa consumers that private right of action pursuant to Iowa’s Consumer Fraud Act, Iowa Code § 714.16, if they suffer a loss of money or property due to deception, misrepresentation, or other unfair selling or advertising practice, and allows them to seek damages and attorney fees if they win.
Who, What, Where, When, And How…Much
A person cannot engage in a practice or act that the person knows, or reasonably should know, is an unfair practice, deception, fraud, false pretense or false promise, or a misrepresentation, concealment, suppression, or omission of a material fact, with the intent that others rely upon the unfair practice.
A claimant alleging an unfair practice must prove that the prohibited practice related to a material fact or facts; the deception cannot merely be incidental to the consumer transaction. A consumer who suffers any ascertainable loss of money or property as the result of a prohibited practice or acts in violation of this chapter may bring a private civil suit to recover actual damages and, in some cases, treble damages and attorney fees.
Recovery of damages is proven by a preponderance of the evidence. Actual damages may include but are not limited to, equitable relief, reasonable attorney fees, and court costs. In addition to an award of actual damages, statutory damages up to three times the amount of actual damages may be awarded if the finder of facts finds clear and convincing evidence of willful and/or wanton disregard for the rights or safety of others pursuant to this chapter, exacting a much harsher punishment on offenders that intended for their actions to deceive Iowa consumers. But, a person is not liable under this statute if that person shows, by a preponderance of the evidence, that the violation was not intentional and resulted from a bona fide error.
A suit brought pursuant to this Act must be filed within two years of the occurrence giving rise to the cause of action, or within two years or longer only if it was not reasonable to discover a violation under this chapter in two years.
Interestingly, this law provides for a number of notable exclusions. For instance, attorneys licensed to practice law in Iowa are excluded. Additionally, merchandise offered or provided for by insurance companies subject to Title XII, financial institutions including banks, savings and loan associations, savings banks and credit unions incorporated or organized under state or federal law, and any affiliates or subsidiaries associated therewith are also excluded.
Another marked exclusion is the exemption of retailers for products whose advertisements were prepared by a supplier, unless that retailer participated in the preparation of the advertisement, or knew or should have known that the advertisement was deceptive, fraudulent, or misleading. However, the product in question must be a product other than a drug (or similar product) claiming to have health-related benefits or uses.
Newspapers, magazines, publications, or other print media where the advertisement appears cannot be targeted with this law. This exemption also includes the publishers, television or radio stations, and/or other electronic media outlets that disseminate the advertisement, including the employees, agents, and representatives of the print media, publisher, television station, radio broadcast, or electronic media outlets.
Perhaps less remarkable are exclusionary provisions regarding affirmative acts that violate this chapter that is specifically required by other applicable law, to the extent that the actor could not reasonably avoid the violation. Additionally, the law exempts individuals unknowingly engaging in fraudulently charitable solicitations as unpaid, uncompensated volunteers, as long as they do not receive monetary gain of any sort from engaging in the solicitation.
Although a number of exclusions limit the applicability of the law, the current law does cover most institutions and individuals that may be the proprietors of fraud against the average Iowa consumer.
“In the Loop”
Who keeps abreast of the situation? The Iowa Attorney General. Any party filing a petition, counterclaim, cross-petition, pleading or any count thereof, appealing to the district court a small claims order, or appealing an order of judgment involving an issue raised under this chapter, must provide notice to the Attorney General within seven days.
The attorney general may intervene as a party at any time or maybe heard at any time regarding pending issues raised under the chapter. Failure to provide the required mailings to the attorney general may be grounds for the attorney general to vacate or modify a judgment, but are not grounds for dismissal of an action. No class action suit can be brought unless the attorney general approves it, thereby ensuring that the lawsuit lacks frivolity.
Finally, Iowa consumers can privately file against a wide variety of persons and companies that engage in unfair business practices. The most potent weapon against fraud, deception, and misrepresentations is an informed consumer. It is imperative to take the time to learn about product costs and product expectations prior to buying.