646.638 Civil
action by private party; damages; attorney fees; effect of prior injunction;
time for commencing action; counterclaim; class actions. (1) Except as provided in
subsections (8) and (9) of this section, a person that suffers an ascertainable
loss of money or property, real or personal, as a result of another person’s
willful use or employment of a method, act or practice declared unlawful under
ORS 646.608, may bring an individual action in an appropriate court to recover
actual damages or statutory damages of $200, whichever is greater. The court or
the jury may award punitive damages and the court may provide any equitable
relief the court considers necessary or proper.
(2) A person that
brings an action under subsection (1) of this section shall mail a copy of the
complaint or other initial pleading to the Attorney General at the time the
action commences and, upon entry of any judgment in the action, shall mail a
copy of the judgment to the Attorney General. Failure to mail a copy of the
complaint is not a jurisdictional defect, but a court may not enter judgment
for the plaintiff until proof of mailing is filed with the court. Proof of
mailing may be by affidavit or by return receipt of mailing.
(3) The court may
award reasonable attorney fees and costs at trial and on appeal to a prevailing
plaintiff in an action under this section. The court may award reasonable
attorney fees and costs at trial and on appeal to a prevailing defendant only
if the court finds that an objectively reasonable basis for bringing the action
or asserting the ground for appeal did not exist.
(4) The court may
not award attorney fees to a prevailing defendant under the provisions of
subsection (3) of this section if the action under this section is maintained
as a class action pursuant to ORCP 32.
(5) Any permanent
injunction or final judgment or order the court makes under ORS 646.632 or
646.636 is prima facie evidence in an action brought under this section that
the respondent used or employed a method, act or practice declared unlawful
under ORS 646.608, but an assurance of voluntary compliance, whether or not
approved by the court, is not evidence of the violation.
(6) Actions
brought under this section must be commenced within one year after the
discovery of the unlawful method, act or practice. Notwithstanding this
limitation, if a prosecuting attorney filed a complaint to prevent, restrain or
punish a violation of ORS 646.608, the complaint tolls the statute of
limitations with respect to every private right of action under this section
that is based in whole or in part on any matter set forth in the prosecuting
attorney’s complaint for the period of time in which the proceeding that the
prosecuting attorney initiated is pending.
(7)
Notwithstanding subsection (6) of this section, in any action that a seller or
lessor brings against a purchaser or lessee of real estate, goods or services,
the purchaser or lessee may assert any counterclaim that the purchaser or
lessee has arising out of a violation of ORS 336.184 and 646.605 to 646.652.
(8) A class
action may be maintained under this section. In any class action under this
section:
(a) Statutory
damages under subsection (1) of this section may be recovered on behalf of
class members only if the plaintiffs in the action establish that the members
have sustained an ascertainable loss of money or property as a result of a
reckless or knowing use or employment by the defendant of a method, act or
practice declared unlawful by ORS 646.608;
(b) The trier of
fact may award punitive damages; and
(c) The court may
award appropriate equitable relief.
(9) This section
does not apply to:
(a) Any method,
act or practice described in ORS 646.608 (1)(aa). Actions for violation of laws
relating to odometers are provided under ORS 815.410 and 815.415.
(b) A violation
of ORS 86.726 (1)(a) or (2), 86.729 (4) or 86.732 (1) or (2). [1971 c.744 §13;
1973 c.235 §5; 1975 c.437 §4; 1977 c.195 §9; 1981 c.897 §78; 1985 c.251 §10b;
1995 c.696 §35; 2001 c.917 §3; 2001 c.924 §§16,18; 2005 c.42 §§3,4; 2009 c.327 §1;
2009 c.552 §6; 2013 c.304 §14]
Notes of Decisions
Pearson v. Philip Morris, Inc., 361 P.3d 3 (Or. 2015).
· cites it 26× “includes “any assertion by words or conduct” and also “a fail- ure to disclose a fact.”
Clark v. Eddie Bauer LLC, 532 P.3d 880 (Or. 2023).
· cites it 13× “Furthermore, we have explained that it is appro- priate to take a broad view of what constitutes an ascer- tainable loss: “[I]n enacting ORS 646.638, the legislature was concerned as much with devising sanctions for the pre- scribed standards of trade and commerce as with…”
Honeywell v. Sterling Furniture Co., 797 P.2d 1019 (Or. 1990).
· cites it 9× “We note particularly that, even within the UTPA itself, there is no requirement of any offset of fee earned under ORS 646.638( 1 ) (punitive damages) against those earned under 646.”
Pearson v. Philip Morris, Inc., 306 P.3d 665 (Or. Ct. App. 2013).
· cites it 14× “Plaintiffs brought this action pursuant to ORS 646.638, seeking damages and equitable relief.”
Scharfstein v. BP W. Coast Prods., LLC, 423 P.3d 757 (Or. Ct. App. 2018).
· cites it 9× “" ORS 646.638 (8)(a) (emphasis added). That emphasized phrase, "as a result of," requires that the "plaintiff must suffer a loss of money or property that was caused by the unlawful trade practice.”
Crooks v. Pay Less Drug Stores Nw., Inc., 592 P.2d 196 (Or. 1979).
· cites it 10× “With regard to plaintiff's second contention, ORS 646.638 provides that anyone who suffers a loss as a result of "wilful use" of a practice declared unlawful by the Act may bring an action for "actual damages or $200.”
Wilson v. Smurfit Newsprint Corp., 107 P.3d 61 (Or. Ct. App. 2005).
· cites it 6× “That rule provides: "A class action may not be maintained for the recovery of statutory minimum penalties for any class member as provided in ORS 646.638 or 15 USC 1640(a) or any other similar statute.”
Chamberlain v. Jim Fisher Motors, Inc., 578 P.2d 1225 (Or. 1978).
· cites it 8× “; that "the court's award of attorney fees was based on ORS 646.638 and was proper"; and that, in any event, defendant not only expressly recognized by its memorandum that plaintiff's complaint "seeks relief under the Oregon Unlawful Trade Practices Act, ORS 646.”
State Ex Rel. Redden v. Disc. Fabrics, Inc., 615 P.2d 1034 (Or. 1980).
· cites it 6× “636, and to seek civil penalties for wilful violations of an injunction, voluntary compliance agreement, or the provisions of ORS 646.”
Raudebaugh v. Action Pest Control, Inc., 650 P.2d 1006 (Or. Ct. App. 1982).
· cites it 9× “" The requirements for private enforcement are set out in ORS 646.638(1). [2] *1009 Defendant's first and primary assignment [3] is premised on the proposition that in order to recover under the UTPA plaintiffs must allege and prove that the alleged representation was made…”
Est. of Wesley E. Smith v. Ware, 769 P.2d 773 (Or. 1989).
· cites it 8× “The sole issue concerns attorney fees to which defendant may be entitled under ORS 646.638(3). 1 Plaintiffs 2 alleged that defendant misrepresented the existence of a septic system on property purchased from defendant.”
Tracker Marine, L.P. v. Ogle, 108 S.W.3d 349 (Tex. App. 2003).
· cites it 3× “§ 51:1409(E); Oregon: Or.Rev.Stat. § 646.638; Tennessee: Tenn.Code Ann.”
— Or. Rev. Stat. § 646.638(1) — 77 cases
Clark v. Eddie Bauer LLC, 532 P.3d 880 (Or. 2023).
“Furthermore, we have explained that it is appro- priate to take a broad view of what constitutes an ascer- tainable loss: “[I]n enacting ORS 646.638, the legislature was concerned as much with devising sanctions for the pre- scribed standards of trade and commerce as with…”
Pearson v. Philip Morris, Inc., 306 P.3d 665 (Or. Ct. App. 2013).
“Plaintiffs brought this action pursuant to ORS 646.638, seeking damages and equitable relief.”
Raudebaugh v. Action Pest Control, Inc., 650 P.2d 1006 (Or. Ct. App. 1982).
“" The requirements for private enforcement are set out in ORS 646.638(1). [2] *1009 Defendant's first and primary assignment [3] is premised on the proposition that in order to recover under the UTPA plaintiffs must allege and prove that the alleged representation was made…”
— Or. Rev. Stat. § 646.638(2) — 4 cases
— Or. Rev. Stat. § 646.638(3) — 24 cases
Honeywell v. Sterling Furniture Co., 797 P.2d 1019 (Or. 1990).
“We note particularly that, even within the UTPA itself, there is no requirement of any offset of fee earned under ORS 646.638( 1 ) (punitive damages) against those earned under 646.”
Est. of Wesley E. Smith v. Ware, 769 P.2d 773 (Or. 1989).
“The sole issue concerns attorney fees to which defendant may be entitled under ORS 646.638(3). 1 Plaintiffs 2 alleged that defendant misrepresented the existence of a septic system on property purchased from defendant.”
— Or. Rev. Stat. § 646.638(3)(1993) — 1 case
— Or. Rev. Stat. § 646.638(4) — 1 case
— Or. Rev. Stat. § 646.638(5) — 7 cases
— Or. Rev. Stat. § 646.638(6) — 24 cases
— Or. Rev. Stat. § 646.638(8) — 3 cases
Scharfstein v. BP W. Coast Prods., LLC, 423 P.3d 757 (Or. Ct. App. 2018).
“" ORS 646.638 (8)(a) (emphasis added). That emphasized phrase, "as a result of," requires that the "plaintiff must suffer a loss of money or property that was caused by the unlawful trade practice.”
— Or. Rev. Stat. § 646.638(8)(a) — 4 cases
Scharfstein v. BP W. Coast Prods., LLC, 423 P.3d 757 (Or. Ct. App. 2018).
“" ORS 646.638 (8)(a) (emphasis added). That emphasized phrase, "as a result of," requires that the "plaintiff must suffer a loss of money or property that was caused by the unlawful trade practice.”
Pearson v. Philip Morris, Inc., 306 P.3d 665 (Or. Ct. App. 2013).
“Plaintiffs brought this action pursuant to ORS 646.638, seeking damages and equitable relief.”
— Or. Rev. Stat. § 646.638(a) — 1 case
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