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.
