Oregon Chapter 646
Chapter 646 — Trade Practices and Antitrust RegulationDownload Full 2005 Oregon Revised Statutes (coming soon!)
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Chapter 646 —
Trade Practices and Antitrust Regulation
2007 EDITION
TRADE PRACTICES AND ANTITRUST REGULATION
TRADE REGULATIONS AND PRACTICES
PRICE DISCRIMINATION IN COMMERCE AND FOOD
COMMERCE
646.010 Designation
and scope of ORS 646.010 to 646.180
646.020 Definitions
and explanations
646.030 Application
to cooperative associations
646.040 Price
discrimination prohibited; price differentials
646.050 Establishing
prima facie case of discrimination; justification of discrimination
646.060 Commissions
and allowances
646.070 Special
payments to customers
646.080 Special
services to customers
646.090 Inducing
or receiving price discrimination prohibited
646.130 Cost
surveys as evidence
646.140 Enjoining
violations; treble damages; attorney fees; limitation on commencement of
actions
646.150 Action
for damages
646.160 Presumption
of damages
646.170 Requiring
defendant to testify
646.180 Illegal
contracts
TRADE SECRETS
646.461 Definitions
for ORS 646.461 to 646.475
646.463 Enjoining
misappropriation; payment of royalties; affirmative acts
646.465 Damages
for misappropriation
646.467 Attorney
fees
646.469 Preservation
of trade secret by court; methods
646.471 Limitation
on commencement of action
646.473 Conflicting
tort, restitution or other law providing civil remedies; exclusions for certain
other remedies; limited immunity for public bodies and officers, employees and
agents
646.475 Application
and construction of ORS 646.461 to 646.475; short title; effect of invalidity
PRODUCERS’ COOPERATIVE BARGAINING
ASSOCIATIONS
646.515 Definitions
for ORS 646.515 to 646.545
646.525 Cooperative
bargaining associations authorized
646.535 Unfair
trade practices prohibited; exception
646.545 Remedy
for unfair trade practices; attorney fees
TELEPHONE SOLICITATION
(Registration of Telephonic Sellers)
646.551 Definitions
for ORS 646.551 to 646.557
646.553 Registration
of telephonic sellers; fee; Attorney General as attorney for service of
process; rules
646.555 Burden
of proof for person claiming exemption
646.557 Required
disclosures by telephonic seller
646.559 Rules
(Unlawful Telephone Solicitations)
646.561 Definitions
for ORS 646.561 to 646.565
646.563 Telephone
solicitation of party who states desire not to be called
646.565 Notice
of provisions of ORS 646.561 and 646.563; rulemaking by Public Utility
Commission
646.567 Definitions
for ORS 646.567 to 646.578
646.568 Findings
and purpose
646.569 Prohibition
on telephone solicitation of party whose name is included on list described in
ORS 646.574 or on federal registry designated under ORS 646.572
646.572 Administration
of telephone solicitation program through contract or by designation of federal
registry; contract provisions; duty of Attorney General
646.574 List
of persons who do not wish to receive telephone solicitations; fee; disclosure
of list; complaints
646.576 Rules
646.578 Notice
of provisions of ORS 646.567 to 646.578; rulemaking by Public Utility
Commission
UNLAWFUL TRADE PRACTICES
646.605 Definitions
for ORS 646.605 to 646.652
646.607 Unlawful
business, trade practices
646.608 Additional
unlawful business, trade practices; proof; rules
646.609 “Pyramid
club” and “investment” defined
646.611 Information
required to be given by telephone or door to door seller to potential customer
646.612 Application
of ORS 646.607 and 646.608
646.618 Investigative
demand; petition to modify
646.622 Method
of serving investigative demand
646.626 Effect
of failure to obey investigative demand
646.632 Enjoining
unlawful trade practices; assurance of voluntary compliance; attorney fees
646.636 Remedial
power of court
646.638 Civil
action by private party; damages; attorney fees; effect of prior injunction;
time for commencing action; counterclaim
646.639 Unlawful
debt collection practices
646.641 Civil
action for unlawful debt collection practice; damages; attorney fees; time for
commencing action
646.642 Civil
penalties
646.643 Applicability
of ORS 646.639
646.646 Loss
of license or franchise by person violating injunction
646.648 Unlawful
practice by manufactured dwelling dealer
646.649 Late
fees on delinquent cable service accounts; amount; disclosure; notice
646.651 Contest
and sweepstakes solicitations; required disclosures; prohibited representations
646.652 District
attorney’s reports to Attorney General; filing of voluntary compliances
646.656 Remedies
supplementary to existing statutory or common law remedies
ANTITRUST LAW
646.705 Definitions
for ORS 136.617 and 646.705 to 646.805
646.715 Declaration
of purpose
646.725 Prohibited
acts
646.730 Monopolies
prohibited
646.740 Permitted
activities
646.745 Joint
operation of Memorial Coliseum and Arena in
646.750 Investigative
demand by Attorney General; petition to modify
646.760 Civil
penalties; attorney fees; mitigation
646.770 Equitable
remedies; attorney fees
646.775 Actions
by Attorney General; damages; attorney fees
646.780 Recovery
of treble damages; exception; recovery of fees and costs; action under federal
law as bar
646.790 Venue
646.800 Time
of commencing action
646.805 Effect
of prior final judgment or decree
646.815 Criminal
prosecutions; compromise of criminal charges; effect of prior action seeking
civil penalties
646.821 Taking
testimony for investigative demand
646.823 Attendance
of Attorney General at grand jury proceedings
646.826 Counsel
for persons testifying; grounds for refusing to answer questions; compelling
testimony; exclusion of spectators
646.831 Fees
and mileage for persons testifying
646.836 Confidential
status of investigative material; permitted disclosures; use of information in
other proceedings; return of investigative material
PRICE COMPARISON ADVERTISING
646.881 Definitions
for ORS 646.881 to 646.885
646.883 Price
comparison in advertisement prohibited; exceptions
646.885 Use
of terms in advertisement containing price comparison
VEHICLE FUELS
(Blended Gasoline)
646.905 Definitions
for ORS 646.910 to 646.923
646.910
646.911
646.912 Study
and monitoring of ethanol production, use and sales; notice required
646.913 Limitations
on gasoline sales; requirements for ethanol content in gasoline; rules
646.915 Identification
of blended gasoline required; method of identification
646.920 Wholesale
dealer; declaration of contents required
(Biodiesel)
646.921 Study
and monitoring of biodiesel production, use and sales; notices required
646.922 Limitations
on sale of diesel fuel following notice; requirements for biodiesel content;
rules
646.923 Retention
of certificate of analysis; powers of Director of Agriculture; biodiesel
testing; rules
646.925 Enforcement;
rules
646.930 Motor
vehicle fuel prices; requirements for display
646.932 Posting
of amount per gallon of gasoline that is federal, state and local tax;
furnishing of information by Department of Transportation
646.935 Diesel
fuel sales; price discrimination
(Octane Ratings)
646.945 Definitions
for ORS 646.947 to 646.963
646.947 Prohibited
activities
646.949 Signs
identifying octane rating
646.951 Testing
of motor vehicle fuel
646.953 Orders
of Director of Agriculture
646.955 Records
required
646.957 Rules
646.959 Annual
fee for metering instrument or device
646.961 Motor
Vehicle Fuel Inspection Program Account
646.963 Civil
penalties
PENALTIES
646.990 Penalties
PRICE DISCRIMINATION IN COMMERCE AND FOOD
COMMERCE
646.010
Designation and scope of ORS 646.010 to 646.180. ORS 646.010 to 646.180 shall be known and
designated as the Anti-price Discrimination Law; and the inhibitions against
discrimination in those sections shall embrace any scheme of special
concessions or rebates, any collateral contracts or agreements or any device of
any nature whereby discrimination is, in substance or fact, effected in
violation of the spirit and intent of ORS 646.010 to 646.180.
646.020
Definitions and explanations.
(1) When used in ORS 646.010 to 646.180, unless the context otherwise requires:
(a) “Commerce” means trade or commerce
within this state, exclusive of food commerce.
(b) “Food commerce” means trade or
commerce within this state in articles of food for human consumption and such
other articles as usually are sold in food stores in connection with articles
of food for human consumption. In the case of persons selling items other than
items of food commerce, the term “food commerce” is restricted solely to such
items of food commerce as are defined in this paragraph.
(c) “Person” means individual,
corporation, partnership, association, joint stock company, business trust or
unincorporated organization.
(d) “Price” means the net price to the
buyer after the deduction of all discounts, rebates, or other price concessions
paid or allowed by the seller.
(e) “Replacement cost” means the cost per
unit at the retail outlet at which the merchandise sold or offered for sale
could have been bought by the seller at any time within 10 days prior to the
date of sale or the date upon which it is offered for sale by the seller, if
bought in the same quantities as the seller’s usual or customary purchase of
such merchandise, after deducting all discounts, rebates or other price
concessions.
(f) “Retailer in food commerce” means any
person engaged in food commerce who sells directly to the consumer for use.
(g) “Wholesaler in food commerce” means
any person engaged in food commerce other than a retailer or producer,
manufacturer or processor.
(2) As used in ORS 646.010 to 646.180, “vendor”
includes any person who performs work upon, renovates, alters or improves any
personal property belonging to another person.
646.030
Application to cooperative associations. ORS 646.010 to 646.180 shall not prevent a cooperative association
from returning to its members, producers or consumers the whole, or any part
of, the net earnings or surplus resulting from its trading operations, in
proportion to their purchases or sales from, to or through the association.
646.040
Price discrimination prohibited; price differentials. (1) It is unlawful for any person engaged in
commerce or food commerce, or both, in the course of such commerce, either
directly or indirectly, to discriminate in price between different purchasers
of commodities, or services or output of a service trade, of like grade and
quality or to discriminate in price between different sections, communities or
cities or portions thereof or between different locations in sections,
communities, cities or portions thereof in this state, where the effect of such
discrimination may be substantially to lessen competition or tend to create a
monopoly in any line of commerce, or to injure, destroy or prevent competition
with any person who either grants or knowingly receives the benefit of such
discrimination, or with customers of either of them.
(2) Subsection (1) of this section does
not prevent:
(a) Differentials which make only due
allowance for differences in the cost of manufacture, sale or delivery,
resulting from the differing methods or quantities in which the commodities are
sold or delivered to purchasers.
(b) Persons engaged in selling goods,
wares or merchandise, or service or output of a service trade, in commerce from
selecting their own customers in bona fide transactions and not in restraint of
trade.
(c) Price changes from time to time where
in response to changing conditions affecting the market for or marketability of
the goods concerned, such as but not limited to actual or imminent
deterioration of perishable goods, obsolescence of seasonal goods, distress
sales under court process, or sales in good faith in discontinuance of business
in the goods concerned.
646.050
Establishing prima facie case of discrimination; justification of
discrimination. Upon proof
being made, in any suit or other proceeding in which any violation of ORS
646.010 to 646.180 is at issue, that there has been discrimination in price, or
in services or facilities furnished, or in payment for services or facilities
rendered or to be rendered, the burden of rebutting the prima facie case thus
made by showing justification is upon the person charged with the violation;
but this section does not prevent a seller rebutting the prima facie case so
made by showing that the lower price of the seller, or the payment for or
furnishing of services or facilities to any purchaser or purchasers was made in
good faith to meet an equally low price of a competitor or the services or
facilities furnished by a competitor.
646.060
Commissions and allowances.
No person engaged in commerce or food commerce, or both, in the course of such
commerce, shall pay, grant, receive or accept anything of value as a
commission, brokerage or other compensation, or any allowance or discount in
lieu thereof, except for services rendered in connection with the sale or
purchase of goods, wares, service, or output of a service trade, or
merchandise. In all such transactions of sale and purchase, neither party to
the transaction shall pay or grant anything of value as a commission, brokerage
or other compensation, or any allowance or discount in lieu thereof, to the
other party to the transaction or to any agent, representative or other
intermediary therein, where such agent, representative or other intermediary is
acting for or in behalf of or is subject to the direct or indirect control of
the other party to the transaction.
646.070
Special payments to customers.
No person engaged in commerce or food commerce, or both, in the course of such
commerce, shall pay or contract for the payment of anything of value to or for
the benefit of a customer of such person in the course of such commerce as
compensation or in consideration for any services or facilities furnished by or
through such customer in connection with the processing, handling, sale or
offering for sale of any products or commodities manufactured, service or
output of a service trade, sold or offered for sale by such person, unless such
payment or consideration is available on proportionally equal terms to all
other customers competing in the distribution of such products or commodities,
or service, or output of service trades.
646.080
Special services to customers.
No person engaged in commerce or food commerce, or both, in the course of such
commerce, shall discriminate in favor of one purchaser against another
purchaser or purchasers of a commodity, or service, or output of a service
trade, bought for resale, with or without processing, by contracting to furnish
or furnishing, or by contributing to the furnishing of any services or
facilities connected with the processing, handling, sale or offering for sale
of such commodity, or service, or output of a service trade, purchased upon
terms not accorded to all purchasers on proportionally equal terms.
646.090
Inducing or receiving price discrimination prohibited. No person engaged in commerce or food
commerce, or both, in the course of such commerce, shall knowingly induce or
receive a discrimination in price which is prohibited by ORS 646.040 to
646.080.
646.100 [Amended by 1963 s.s. c.2 §3; repealed by
1975 c.255 §17]
646.105 [1963 s.s. c.2 §2; repealed by 1975 c.255 §17]
646.110 [Repealed by 1975 c.255 §17]
646.120 [Repealed by 1975 c.255 §17]
646.130
Cost surveys as evidence. Where
a particular trade or industry, of which the person, firm or corporation
complained against is a member, has an established cost survey for the locality
and vicinity in which the offense is committed, such cost survey is competent
evidence to be used in proving the costs of the person, firm or corporation
complained against within the provisions of ORS 646.010 to 646.180.
646.140
Enjoining violations; treble damages; attorney fees; limitation on commencement
of actions. (1) Any person
injured by any violation, or who will suffer injury from any threatened
violation, of ORS 646.010 to 646.180 may maintain an action in any court of
general equitable jurisdiction of this state, to prevent, restrain or enjoin
the violation or threatened violation. If in such action, a violation or
threatened violation of ORS 646.010 to 646.180 is established, the court shall
enjoin and restrain or otherwise prohibit such violation or threatened
violation, and the plaintiff in the action is entitled to recover three-fold the
damages sustained by the plaintiff. Except as provided in subsection (2) of
this section, the court may award reasonable attorney fees to the prevailing
party in an action under this section.
(2) The court may not award attorney fees
to a prevailing defendant under the provisions of subsection (1) of this
section if the action under this section is maintained as a class action
pursuant to ORCP 32.
(3) Actions brought under this section
shall be commenced within four years from the date of the injury. [Amended by
1981 c.897 §75; 1983 c.467 §2; 1995 c.696 §33]
646.150
Action for damages. If no
injunctive relief is sought or required, any person injured by any violation of
ORS 646.010 to 646.180 may maintain an action for damages alone in any court of
general jurisdiction in this state. The measure of damages in such action shall
be the same as that prescribed by ORS 646.140.
646.160
Presumption of damages. In
any proceedings instituted or action brought in pursuance of the provisions of
ORS 646.140 or 646.150, the plaintiff, upon proof that the plaintiff has been
unlawfully discriminated against by the defendant, shall conclusively be
presumed to have sustained damages equal to the monetary amount or equivalent
of the unlawful discrimination; and, in addition thereto, may establish such
further damages, if any, as the plaintiff may have sustained as a result of the
discrimination.
646.170
Requiring defendant to testify.
Any defendant in an action brought under the provisions of ORS 646.140 to
646.160 may be required to testify under the provisions of ORCP 65 or by
deposition. In addition, the books and records of any such defendant may be
brought into court and introduced, by reference, into evidence. No information
so obtained may be used against the defendant as a basis for a criminal
prosecution under ORS 646.990 (1). [Amended by 1979 c.284 §184; 1981 c.898 §52]
646.180
Illegal contracts. Any
contract, express or implied, made by any person in violation of any of the
provisions of ORS 646.010 to 646.180 is an illegal contract and no recovery
thereon shall be had.
646.185 [Formerly 646.200; 2001 c.639 §1; renumbered
646A.010 in 2007]
646.187 [1999 c.194 §3; renumbered 646A.012 in 2007]
646.189 [1999 c.194 §4; 2001 c.639 §2; 2003 c.576 §528;
renumbered 646A.014 in 2007]
646.191 [1999 c.194 §5; renumbered 646A.016 in 2007]
646.193 [1999 c.194 §6; renumbered 646A.018 in 2007]
646.195 [1999 c.194 §7; renumbered 646A.020 in 2007]
646.200 [1989 c.273 §1; 1993 c.645 §§1,1a; 1995
c.713 §1; 1995 c.759 §1; 1997 c.132 §5; 1997 c.631 §507; 1999 c.194 §1;
renumbered 646.185 in 1999]
646.202 [1989 c.273 §2; 1993 c.645 §2; 1995 c.713 §7;
repealed by 1997 c.132 §8]
646.203 [1997 c.132 §1; repealed by 1999 c.194 §13]
646.204 [1989 c.273 §3; 1993 c.645 §§3,3a; 1995 c.79
§327; 1995 c.713 §2; repealed by 1997 c.132 §8]
646.205 [1997 c.132 §2; repealed by 1999 c.194 §13]
646.206 [1989 c.273 §4; 1995 c.713 §8; repealed by
1997 c.132 §8]
646.207 [1997 c.132 §3; repealed by 1999 c.194 §13]
646.208 [1989 c.273 §5; 1995 c.713 §3; repealed by
1997 c.132 §8]
646.209 [1997 c.132 §4; repealed by 1999 c.194 §13]
646.210 [Repealed by 1971 c.744 §27]
646.212 [1989 c.273 §6; 1993 c.645 §4; 1995 c.713 §4;
repealed by 1997 c.132 §8]
646.214 [1993 c.645 §6; 1995 c.713 §9; repealed by
1997 c.132 §8]
646.216 [1993 c.645 §§7,7a; 1995 c.713 §5; repealed
by 1997 c.132 §8]
646.217 [1995 c.713 §11; repealed by 1997 c.132 §8]
646.218 [1993 c.645 §§8,9; repealed by 1997 c.132 §8]
646.220 [Repealed by 1971 c.744 §27]
646.221 [1991 c.465 §1; renumbered 646A.340 in 2007]
646.225 [1991 c.465 §2; renumbered 646A.342 in 2007]
646.229 [1991 c.465 §3; 2005 c.384 §1; renumbered
646A.344 in 2007]
646.230 [Repealed by 1971 c.744 §27]
646.235 [1991 c.465 §4; renumbered 646A.346 in 2007]
646.240 [1991 c.465 §5; 1995 c.696 §34; 2005 c.384 §2;
renumbered 646A.348 in 2007]
646.245 [1993 c.283 §1; renumbered 646A.120 in 2007]
646.247 [1993 c.283 §2; renumbered 646A.122 in 2007]
646.249 [1993 c.283 §3; renumbered 646A.124 in 2007]
646.251 [1993 c.283 §4; renumbered 646A.126 in 2007]
646.253 [1993 c.283 §5; renumbered 646A.128 in 2007]
646.255 [1993 c.283 §§6,7; renumbered 646A.130 in
2007]
646.257 [1993 c.283 §8; renumbered 646A.132 in 2007]
646.259 [1993 c.283 §9; renumbered 646A.134 in 2007]
646.260 [Repealed by 1975 c.255 §17]
646.263 [1995 c.801 §1; renumbered 646A.150 in 2007]
646.265 [1995 c.801 §2; renumbered 646A.152 in 2007]
646.267 [1995 c.801 §3; 2005 c.395 §1; renumbered
646A.154 in 2007]
646.269 [1995 c.801 §4; renumbered 646A.156 in 2007]
646.270 [Repealed by 1975 c.255 §17]
646.271 [1995 c.801 §5; renumbered 646A.158 in 2007]
646.273 [1995 c.801 §9; renumbered 646A.160 in 2007]
646.275 [1995 c.801 §10; renumbered 646A.162 in
2007]
646.277 [1995 c.801 §11; renumbered 646A.164 in
2007]
646.279 [1995 c.801 §12; renumbered 646A.166 in
2007]
646.280 [Repealed by 1975 c.255 §17]
646.281 [1995 c.801 §13; renumbered 646A.168 in
2007]
646.283 [1995 c.801 §14; renumbered 646A.170 in
2007]
646.285 [1995 c.801 §15; renumbered 646A.172 in
2007]
646.290 [Repealed by 1975 c.255 §17]
646.291 [1997 c.72 §1; renumbered 646A.280 in 2007]
646.293 [1997 c.72 §2; renumbered 646A.282 in 2007]
646.295 [1973 c.491 §2; repealed by 1975 c.255 §17]
646.296 [1997 c.72 §3; renumbered 646A.284 in 2007]
646.298 [1997 c.72 §4; renumbered 646A.286 in 2007]
646.300 [1997 c.72 §5; renumbered 646A.288 in 2007]
646.302 [1997 c.72 §6; renumbered 646A.290 in 2007]
646.310 [Repealed by 1975 c.92 §1 and by 1975 c.255 §17]
646.315 [1983 c.469 §1; 1985 c.16 §468; 1987 c.476 §1;
1989 c.171 §74; 1989 c.202 §1; 2007 c.382 §1; renumbered 646A.400 in 2007]
646.320 [Repealed by 1975 c.92 §1 and by 1975 c.255 §17]
646.325 [1983 c.469 §2; 1987 c.476 §6; renumbered
646A.402 in 2007]
646.330 [Repealed by 1975 c.92 §1 and by 1975 c.255 §17]
646.335 [1983 c.469 §3; 1987 c.476 §2; renumbered
646A.404 in 2007]
646.340 [Repealed by 1975 c.92 §1 and by 1975 c.255 §17]
646.345 [1983 c.469 §4; renumbered 646A.406 in 2007]
646.350 [Repealed by 1975 c.92 §1 and by 1975 c.255 §17]
646.355 [1983 c.469 §5; renumbered 646A.408 in 2007]
646.357 [1987 c.476 §4; renumbered 646A.410 in 2007]
646.359 [1987 c.476 §5; 1995 c.618 §96; 1999 c.346 §1;
renumbered 646A.412 in 2007]
646.360 [Repealed by 1975 c.92 §1 and by 1975 c.255 §17]
646.361 [1987 c.476 §7; renumbered 646A.414 in 2007]
646.365 [1983 c.469 §6; renumbered 646A.416 in 2007]
646.370 [Repealed by 1975 c.92 §1 and by 1975 c.255 §17]
646.375 [1983 c.469 §7; renumbered 646A.418 in 2007]
646.380 [1993 c.582 §1; renumbered 646A.250 in 2007]
646.382 [1993 c.582 §§2,2a; 1997 c.631 §509; 2001
c.300 §77; 2001 c.377 §44; 2007 c.319 §30; renumbered 646A.252 in 2007]
646.384 [1993 c.582 §3; 2001 c.289 §1; renumbered
646A.254 in 2007]
646.386 [1993 c.582 §4; 1997 c.631 §510; 2005 c.21 §2;
renumbered 646A.256 in 2007]
646.388 [1993 c.582 §5; 1997 c.631 §511; renumbered
646A.258 in 2007]
646.390 [1993 c.582 §6; 1997 c.631 §512; renumbered
646A.260 in 2007]
646.392 [1993 c.582 §7; renumbered 646A.262 in 2007]
646.394 [1993 c.582 §8; renumbered 646A.264 in 2007]
646.396 [1993 c.582 §§9,10; 2005 c.338 §7;
renumbered 646A.266 in 2007]
646.397 [2005 c.338 §5; renumbered 646A.268 in 2007]
646.398 [2005 c.338 §6; renumbered 646A.270 in 2007]
646.400 [2001 c.969 §1; 2003 c.655 §80; renumbered
646A.050 in 2007]
646.402 [2001 c.969 §2; 2003 c.655 §81; 2005 c.41 §§7,8;
renumbered 646A.052 in 2007]
646.404 [2001 c.969 §3; renumbered 646A.054 in 2007]
646.410 [Repealed by 1975 c.255 §17]
646.415 [1983 c.551 §1; 1993 c.406 §1; 2003 c.466 §1;
renumbered 646A.300 in 2007]
646.419 [1989 c.404 §2; renumbered 646A.302 in 2007]
646.420 [Repealed by 1975 c.255 §17]
646.425 [1983 c.551 §2; 1991 c.83 §5; 1993 c.406 §6;
2003 c.466 §2; renumbered 646A.304 in 2007]
646.430 [Repealed by 1975 c.255 §17]
646.435 [1983 c.551 §3; 1993 c.406 §7; renumbered
646A.306 in 2007]
646.440 [Repealed by 1975 c.255 §17]
646.445 [1983 c.551 §4; 1993 c.406 §8; 2003 c.466 §3;
renumbered 646A.308 in 2007]
646.447 [1993 c.406 §3; 2003 c.466 §4; renumbered
646A.310 in 2007]
646.449 [1993 c.406 §4; 2003 c.466 §5; renumbered
646A.312 in 2007]
646.450 [Repealed by 1975 c.255 §17]
646.451 [1993 c.406 §5; 2003 c.466 §6; 2003 c.598 §47a;
renumbered 646.459 in 2003]
646.452 [2003 c.466 §8; renumbered 646A.314 in 2007]
646.453 [2003 c.466 §10; renumbered 646A.316 in
2007]
646.454 [2003 c.466 §9; renumbered 646A.318 in 2007]
646.455 [1983 c.551 §5; repealed by 2003 c.466 §12]
646.456 [2003 c.466 §11; renumbered 646A.320 in
2007]
646.459 [Formerly 646.451; renumbered 646A.322 in
2007]
646.460 [Repealed by 1975 c.255 §17]
TRADE SECRETS
646.461
Definitions for ORS 646.461 to 646.475. As used in ORS 646.461 to 646.475, unless the context otherwise
requires:
(1) “Improper means” includes theft,
bribery, misrepresentation, breach or inducement of a breach of a duty to
maintain secrecy or espionage through electronic or other means. Reverse engineering
and independent development alone shall not be considered improper means.
(2) “Misappropriation” means:
(a) Acquisition of a trade secret of
another by a person who knows or has reason to know that the trade secret was
acquired by improper means;
(b) Disclosure or use of a trade secret of
another without express or implied consent by a person who used improper means
to acquire knowledge of the trade secret;
(c) Disclosure or use of a trade secret of
another without express or implied consent by a person who, before a material
change of position, knew or had reason to know that it was a trade secret and
that knowledge of it had been acquired by accident or mistake; or
(d) Disclosure or use of a trade secret of
another without express or implied consent by a person, who at the time of
disclosure or use, knew or had reason to know that the knowledge of the trade
secret was:
(A) Derived from or through a person who
had utilized improper means to acquire it;
(B) Acquired under circumstances giving rise
to a duty to maintain its secrecy or limit its use; or
(C) Derived from or through a person who
owed a duty to the person seeking relief to maintain its secrecy or limit its
use.
(3) “Person” means a natural person,
corporation, business trust, estate, trust, partnership, association, joint
venture, government, governmental subdivision or agency or any other legal or
commercial entity.
(4) “Trade secret” means information,
including a drawing, cost data, customer list, formula, pattern, compilation, program,
device, method, technique or process that:
(a) Derives independent economic value,
actual or potential, from not being generally known to the public or to other
persons who can obtain economic value from its disclosure or use; and
(b) Is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy. [1987 c.537 §2]
646.463
Enjoining misappropriation; payment of royalties; affirmative acts. (1) Actual or threatened misappropriation
may be temporarily, preliminarily or permanently enjoined. Upon application to
the court, an injunction shall be vacated when the trade secret has ceased to
exist, but the injunction may be continued for an additional reasonable period
of time in order to eliminate commercial advantage that otherwise would be
derived from the misappropriation.
(2) In exceptional circumstances, an
injunction may condition future use upon payment of a reasonable royalty for
the period of time for which use could have been prohibited. Exceptional
circumstances include, but are not limited to, a material and prejudicial
change of position prior to acquiring knowledge or reason to know of the
misappropriation that renders a prohibitive injunction inequitable.
(3) In appropriate circumstances, the
court may order affirmative acts to protect a trade secret. [1987 c.537 §3]
646.465
Damages for misappropriation.
(1) A complainant is entitled to recover damages adequate to compensate for
misappropriation, unless a material and prejudicial change of position by a
defendant prior to acquiring knowledge or reason to know of the
misappropriation renders a monetary recovery inequitable.
(2) Damages may include both the actual
loss caused by misappropriation, and the unjust enrichment caused by
misappropriation that is not taken into account in computing actual loss, but
shall not be less than a reasonable royalty for the unauthorized disclosure or
use of a trade secret.
(3) Upon a finding of willful or malicious
misappropriation, punitive damages may be awarded in an amount not exceeding
twice any award made under subsections (1) and (2) of this section. [1987 c.537
§4]
646.467
Attorney fees. The court may
award reasonable attorney fees to the prevailing party if:
(1) A claim of misappropriation is made in
bad faith;
(2) A motion to terminate an injunction is
made or resisted in bad faith; or
(3) Willful or malicious misappropriation
is found by the court or jury. [1987 c.537 §5]
646.469
Preservation of trade secret by court; methods. In any action brought under ORS 646.461 to
646.475, the court shall preserve the secrecy of an alleged trade secret by
reasonable means, which may include granting protective orders in connection
with discovery proceedings, holding in camera hearings, sealing the records of
the action or ordering any person involved in the litigation not to disclose an
alleged trade secret without prior court approval. [1987 c.537 §6]
646.471
Limitation on commencement of action. An action for misappropriation must be brought within three years
after the misappropriation is discovered or by the exercise of reasonable
diligence should have been discovered. For the purposes of this section, a
continuing misappropriation constitutes a single claim. [1987 c.537 §7]
646.473
Conflicting tort, restitution or other law providing civil remedies; exclusions
for certain other remedies; limited immunity for public bodies and officers,
employees and agents. (1)
Except as provided in subsection (2) of this section, ORS 646.461 to 646.475
supersede conflicting tort, restitution or other law of Oregon providing civil
remedies for misappropriation of a trade secret.
(2) ORS 646.461 to 646.475 shall not
affect:
(a) Contractual remedies, whether or not
based upon misappropriation of a trade secret;
(b) Other civil remedies that are not
based upon misappropriation of a trade secret;
(c) Criminal remedies, whether or not
based upon misappropriation of a trade secret; or
(d) Any defense, immunity or limitation of
liability afforded public bodies, their officers, employees or agents under ORS
30.260 to 30.300.
(3) Notwithstanding any other provision in
ORS 646.461 to 646.475, public bodies and their officers, employees and agents
are immune from any claim or action for misappropriation of a trade secret that
is based on the disclosure or release of information in obedience to or in good
faith reliance on any order of disclosure issued pursuant to ORS 192.410 to
192.490 or on the advice of an attorney authorized to advise the public body,
its officers, employees or agents. [1987 c.537 §8]
646.475
Application and construction of ORS 646.461 to 646.475; short title; effect of
invalidity. (1) ORS 646.461
to 646.475 shall be applied and construed to effectuate their general purpose
to make uniform the law with respect to the subject of ORS 646.461 to 646.475
among states enacting them.
(2) ORS 646.461 to 646.475 may be cited as
the Uniform Trade Secrets Act.
(3) If any provision of ORS 646.461 to
646.475 or its application to any person or circumstances is held invalid, the
invalidity shall not affect other provisions or applications of ORS 646.461 to
646.475 which can be given effect without the invalid provision or application,
and to this end the provisions of ORS 646.461 to 646.475 are severable. [1987
c.537 §§9,10,11]
646.482 [1997 c.562 §1; 1999 c.81 §1; 2007 c.70 §281;
renumbered 646A.460 in 2007]
646.484 [1997 c.562 §2; renumbered 646A.462 in 2007]
646.486 [1997 c.562 §3; renumbered 646A.464 in 2007]
646.488 [1997 c.562 §4; renumbered 646A.466 in 2007]
646.490 [1997 c.562 §5; renumbered 646A.468 in 2007]
646.492 [1997 c.562 §6; renumbered 646A.470 in 2007]
646.494 [1997 c.562 §7; renumbered 646A.472 in 2007]
646.496 [1997 c.562 §8; renumbered 646A.474 in 2007]
646.498 [1997 c.562 §9; 2001 c.542 §8; 2003 c.14 §392;
renumbered 646A.476 in 2007]
646.500 [2001 c.767 §1; renumbered 646A.500 in 2007]
646.501 [2001 c.767 §2; renumbered 646A.502 in 2007]
646.502 [2001 c.767 §3; renumbered 646A.504 in 2007]
646.503 [2001 c.767 §§4,8; renumbered 646A.506 in
2007]
646.504 [2001 c.767 §§5,9; renumbered 646A.508 in
2007]
646.505 [2001 c.767 §6; renumbered 646A.510 in 2007]
646.506 [2001 c.767 §7; renumbered 646A.512 in 2007]
646.507 [2001 c.767 §10; renumbered 646A.514 in
2007]
646.510 [Repealed by 1953 c.391 §2]
PRODUCERS’
COOPERATIVE BARGAINING ASSOCIATIONS
646.515
Definitions for ORS 646.515 to 646.545. As used in ORS 646.515 to 646.545, unless the context requires
otherwise:
(1) “Agricultural commodity” means any and
all agricultural, horticultural, viticultural and vegetable products produced
in this state, either in their natural state or as processed by a producer for
the purpose of marketing such product, including bees and honey, but not
including timber or timber products.
(2) “Cooperative bargaining association”
means:
(a) An association of producers formed or
operated pursuant to ORS chapter 62 with the purpose of group bargaining with
respect to the sale of any agricultural commodity or
(b) A fishermen’s marketing association or
fishermen’s trade association organized under ORS chapter 62 or 65.
(3)(a) “Dealer” means, except as provided
in paragraph (b) of this subsection, any person or agent of the person who
purchases or contracts to purchase an agricultural commodity or Oregon seafood
commodity from a producer or agent of the producer, for the purpose of packing,
processing or marketing such commodity.
(b) “Dealer” does not include any
organization operating as an agricultural cooperative or
(4) “
(5) “Producer” means a person engaged in
the business of producing agricultural commodities or harvesting
646.520 [Repealed by 1953 c.391 §2]
646.525
Cooperative bargaining associations authorized. Producers shall have the right to join
voluntarily and belong to cooperative bargaining associations. [1963 c.514 §2]
646.530 [Repealed by 1953 c.391 §2]
646.535
Unfair trade practices prohibited; exception. (1) A dealer may not knowingly engage in the following unfair trade
practices:
(a) Interfere with, restrain, coerce or
boycott a producer in the exercise of the rights guaranteed pursuant to ORS
646.525;
(b) Discriminate against a producer with
respect to price or other terms of purchase of raw agricultural commodities or
Oregon seafood commodities, by reason of the producer’s membership in or
contract with cooperative bargaining associations; or
(c) Pay or loan money, or give any other
thing of value to a producer as an inducement or reward for refusing to or
ceasing to belong to a cooperative bargaining association.
(2) A perennial ryegrass seed, annual
ryegrass seed or tall fescue seed dealer or an
646.540 [Repealed by 1953 c.391 §2]
646.545
Remedy for unfair trade practices; attorney fees. (1) In addition to any other remedies
provided by law, any producer injured by a violation of ORS 646.535 may
maintain an action for damages sustained by such producer.
(2) The prevailing party in any action
brought pursuant to subsection (1) of this section shall be allowed, in
addition to the costs and disbursements otherwise prescribed by law, a
reasonable sum for attorney fees at trial and on appeal for the prosecution or
defense of such action. [1963 c.514 §§4,5; 1981 c.897 §76; 1995 c.658 §112]
646.550 [Repealed by 1953 c.391 §2]
TELEPHONE
SOLICITATION
(Registration
of Telephonic Sellers)
646.551
Definitions for ORS 646.551 to 646.557. As used in ORS 646.551 to 646.557, unless the context requires
otherwise:
(1) “Telephonic seller” means a person
who, on the person’s own behalf, or on behalf of another person, causes or
attempts to cause a telephone solicitation to be made under the following
circumstances:
(a) The person initiates telephonic
contact with a prospective purchaser and represents or implies any of the
following:
(A) That a prospective purchaser who buys
one or more goods or services unit will receive additional units, whether or
not of the same type as purchased, without further cost. As used in this
subparagraph, “further cost” does not include actual postage or common carrier
delivery charges, if any;
(B) That a prospective purchaser will
receive a prize or gift if the person also encourages the prospective purchaser
to do either of the following:
(i) Purchase or rent any goods or
services; or
(ii) Pay any money, including, but not
limited to a delivery or handling charge;
(C) That a prospective purchaser who buys
goods or services, because of some unusual event or imminent price increase,
will be able to buy these items at prices which are below those usually charged
or will be charged for those items;
(D) That the seller is a person other than
the actual seller;
(E) That the items for sale or rent are
manufactured or supplied by a person other than the actual manufacturer or
supplier; or
(F) That the items for sale are gold,
silver or other precious metals, diamonds, rubies, sapphires or other precious
stones or any interest in oil, gas or mineral fields, wells or exploration
sites; or
(b) The telephone solicitation is made by
the person in response to inquiries from prospective purchasers generated by
advertisement, on behalf of the person and the solicitation is conducted as
described in paragraph (a) of this subsection.
(2) “Telephonic seller” does not include
any of the following:
(a) A person selling a security as defined
in ORS 59.015, or securities which are exempt under ORS 59.025.
(b) A person licensed pursuant to ORS
chapter 696 when the transaction is governed by that chapter.
(c) A person licensed pursuant to ORS
701.026 when the solicited transaction is governed by ORS chapter 701.
(d) A person licensed pursuant to ORS
chapter 744 when the solicited transaction is governed by the Insurance Code.
(e) A person soliciting the sale of a
franchise when the solicited transaction is governed by ORS 650.005 to 650.100.
(f) A person primarily soliciting the sale
of a subscription to or advertising in a newspaper of general circulation.
(g) A person primarily soliciting the sale
of a magazine or periodical, or contractual plans, including book or record
clubs:
(A) Under which the seller provides the
consumer with a form which the consumer may use to instruct the seller not to
ship the offered merchandise, and which is regulated by the Federal Trade
Commission trade regulation concerning “Use of Negative Option Plans by Sellers
in Commerce”; or
(B) Using arrangements such as continuity
plans, subscription arrangements, standing order arrangements, supplements and
series arrangements under which the seller periodically ships merchandise to a
consumer who has consented in advance to receive such merchandise on a periodic
basis.
(h) A person soliciting business from
prospective purchasers who have previously purchased from the business
enterprise for which the person is calling.
(i) A person soliciting without the intent
to complete and who does not complete the sales presentation during the
telephone solicitation and who only completes the sale presentation at a later
face-to-face meeting between the solicitor and the prospective purchaser,
unless at that later meeting the solicitor collects or attempts to collect
payment for delivery of items purchased.
(j) Any supervised financial institution
or parent, subsidiary, or affiliate thereof. As used in this paragraph, “supervised
financial institution” means any financial institution or trust company, as
those terms are defined in ORS 706.008, or any personal property broker,
consumer finance lender, commercial finance lender or insurer that is subject
to regulation by an official or agency of this state or the
(k) A person soliciting the sale of
funeral or burial services regulated by ORS chapter 692.
(L) A person soliciting the sale of
services provided by a cable television system operating under authority of a
franchise or permit issued by a governmental agency of this state, or
subdivision thereof.
(m) A person or affiliate of a person
whose business is regulated by the Public Utility Commission, or a
telecommunications utility with access lines of 15,000 or less or a cooperative
telephone association.
(n) A person soliciting the sale of a farm
product, as defined in ORS 79.0102, if the solicitation does not result in a
sale which costs the purchaser in excess of $100.
(o) An issuer or a subsidiary of an issuer
that has a class of securities that is subject to section 12 of the Securities
Exchange Act of 1934 and that is either registered or exempt from registration
under paragraph (A), (B), (C), (E), (F), (G) or (H) of subsection (g) of that
section.
(p) A person soliciting exclusively the
sale of telephone answering services to be provided by that person or that
person’s employer.
(q) A person registered under the
Charitable Solicitations Act. [1989 c.622 §2; 1997 c.249 §196; 1997 c.631 §513;
1999 c.59 §188; 1999 c.402 §5; 2001 c.445 §177; 2007 c.661 §27]
Note: The amendments to 646.551 by section 47,
chapter 836, Oregon Laws 2007, become operative July 1, 2010. See section 70,
chapter 836, Oregon Laws 2007. The text that is operative on and after July 1,
2010, is set forth for the user’s convenience.
646.551. As used in ORS 646.551 to 646.557, unless
the context requires otherwise:
(1) “Telephonic seller” means a person
who, on the person’s own behalf, or on behalf of another person, causes or
attempts to cause a telephone solicitation to be made under the following
circumstances:
(a) The person initiates telephonic
contact with a prospective purchaser and represents or implies any of the
following:
(A) That a prospective purchaser who buys
one or more goods or services unit will receive additional units, whether or
not of the same type as purchased, without further cost. As used in this
subparagraph, “further cost” does not include actual postage or common carrier
delivery charges, if any;
(B) That a prospective purchaser will
receive a prize or gift if the person also encourages the prospective purchaser
to do either of the following:
(i) Purchase or rent any goods or
services; or
(ii) Pay any money, including, but not
limited to a delivery or handling charge;
(C) That a prospective purchaser who buys
goods or services, because of some unusual event or imminent price increase,
will be able to buy these items at prices which are below those usually charged
or will be charged for those items;
(D) That the seller is a person other than
the actual seller;
(E) That the items for sale or rent are
manufactured or supplied by a person other than the actual manufacturer or
supplier; or
(F) That the items for sale are gold,
silver or other precious metals, diamonds, rubies, sapphires or other precious
stones or any interest in oil, gas or mineral fields, wells or exploration
sites; or
(b) The telephone solicitation is made by
the person in response to inquiries from prospective purchasers generated by
advertisement, on behalf of the person and the solicitation is conducted as
described in paragraph (a) of this subsection.
(2) “Telephonic seller” does not include
any of the following:
(a) A person selling a security as defined
in ORS 59.015, or securities which are exempt under ORS 59.025.
(b) A person licensed pursuant to ORS
chapter 696 when the transaction is governed by that chapter.
(c) A person licensed pursuant to ORS
701.021 when the solicited transaction is governed by ORS chapter 701.
(d) A person licensed pursuant to ORS
chapter 744 when the solicited transaction is governed by the Insurance Code.
(e) A person soliciting the sale of a
franchise when the solicited transaction is governed by ORS 650.005 to 650.100.
(f) A person primarily soliciting the sale
of a subscription to or advertising in a newspaper of general circulation.
(g) A person primarily soliciting the sale
of a magazine or periodical, or contractual plans, including book or record
clubs:
(A) Under which the seller provides the
consumer with a form which the consumer may use to instruct the seller not to
ship the offered merchandise, and which is regulated by the Federal Trade
Commission trade regulation concerning “Use of Negative Option Plans by Sellers
in Commerce”; or
(B) Using arrangements such as continuity
plans, subscription arrangements, standing order arrangements, supplements and
series arrangements under which the seller periodically ships merchandise to a
consumer who has consented in advance to receive such merchandise on a periodic
basis.
(h) A person soliciting business from
prospective purchasers who have previously purchased from the business
enterprise for which the person is calling.
(i) A person soliciting without the intent
to complete and who does not complete the sales presentation during the
telephone solicitation and who only completes the sale presentation at a later
face-to-face meeting between the solicitor and the prospective purchaser,
unless at that later meeting the solicitor collects or attempts to collect
payment for delivery of items purchased.
(j) Any supervised financial institution
or parent, subsidiary, or affiliate thereof. As used in this paragraph, “supervised
financial institution” means any financial institution or trust company, as
those terms are defined in ORS 706.008, or any personal property broker,
consumer finance lender, commercial finance lender or insurer that is subject
to regulation by an official or agency of this state or the
(k) A person soliciting the sale of
funeral or burial services regulated by ORS chapter 692.
(L) A person soliciting the sale of
services provided by a cable television system operating under authority of a
franchise or permit issued by a governmental agency of this state, or
subdivision thereof.
(m) A person or affiliate of a person whose
business is regulated by the Public Utility Commission, or a telecommunications
utility with access lines of 15,000 or less or a cooperative telephone
association.
(n) A person soliciting the sale of a farm
product, as defined in ORS 79.0102, if the solicitation does not result in a
sale which costs the purchaser in excess of $100.
(o) An issuer or a subsidiary of an issuer
that has a class of securities that is subject to section 12 of the Securities
Exchange Act of 1934 and that is either registered or exempt from registration
under paragraph (A), (B), (C), (E), (F), (G) or (H) of subsection (g) of that
section.
(p) A person soliciting exclusively the
sale of telephone answering services to be provided by that person or that
person’s employer.
(q) A person registered under the
Charitable Solicitations Act.
646.553
Registration of telephonic sellers; fee; Attorney General as attorney for service
of process; rules. (1) A
telephonic seller shall not conduct business in this state without having
registered with the Department of Justice at least 10 days prior to the conduct
of such business. A telephonic seller is required to register in the name under
which the telephonic seller conducts business. Individual employees of the
telephonic seller are not required to register. A telephonic seller is
conducting business in this state if telephone solicitations of prospective
purchasers are made from locations in this state or solicitation is made of
prospective purchasers located in this state.
(2) A registration shall be effective for
one year from the date of filing with the Department of Justice. Each
application for registration, or renewal thereof, shall be accompanied by a fee
of $400.
(3) The Department of Justice shall send
to each registrant a certificate or other appropriate document demonstrating
registration compliance, which shall be posted at the telephonic seller’s
principal business location.
(4) Each application for registration
shall be in writing and shall contain such information regarding the conduct of
the telephonic seller’s business and the personnel conducting the business and
shall be submitted in such form and manner as the Department of Justice may
prescribe.
(5) At the time of submission of a
registration application, each telephonic seller shall file with the Attorney
General an irrevocable consent appointing the Attorney General to act as the
telephonic seller’s attorney to receive service of process in any action, suit
or proceeding against the telephonic seller or the telephonic seller’s
successor in interest which may arise under ORS 646.605 to 646.652.
(6) The Department of Justice may refuse
to issue a registration to, and may suspend, revoke or refuse to renew the
registration of, any person who:
(a) Has obtained or attempted to obtain a
registration under ORS 646.551 to 646.557 by fraud or material
misrepresentation;
(b) Has violated any provision of ORS
646.551 to 646.557;
(c) Has violated a provision of ORS
646.607 or 646.608;
(d) Has violated an assurance of voluntary
compliance entered into under ORS 646.605 to 646.652;
(e) Is guilty of fraud or deceit, or of
gross negligence, incompetency or misconduct in the person’s practice of
business as a telephonic seller, creating a risk of financial or other injury
to the public;
(f) Has been convicted of a felony under
the laws of any state or of the
(g) Has been convicted of any crime, an
element of which is dishonesty or fraud, under the laws of any state or of the
(h) Has had the person’s authority to
engage in business as a telephonic seller refused, canceled, revoked, suspended
or not renewed in any state.
(7) When the Department of Justice
proposes to refuse to issue or renew a registration or proposes to revoke or
suspend a registration, opportunity for hearing shall be accorded as provided
in ORS chapter 183. The Department of Justice shall adopt rules prescribing the
conduct of the hearing, including but not limited to rules governing the
admissibility of evidence.
(8) A person whose registration is revoked
or not renewed pursuant to this section shall not be eligible to apply for a
registration under ORS 646.551 to 646.557 until two years after the effective
date of the revocation or nonrenewal.
(9) A telephonic seller whose registration
is revoked, suspended or not renewed under this section shall not conduct
business in this state. [1989 c.622 §3; 1999 c.368 §1]
646.555
Burden of proof for person claiming exemption. In any proceeding to enforce the provisions
of ORS 646.551 to 646.565 and 646.608, the burden of proving an exemption or
exception is upon the person claiming it. [1989 c.622 §4]
646.557
Required disclosures by telephonic seller. In addition to complying with the requirements of ORS 646.553, each
telephonic seller, at the time the solicitation is made and prior to
consummation of any sales transaction, shall provide all of the following
information to each prospective purchaser:
(1) If the telephonic seller represents or
implies that a prospective purchaser will receive, without charge therefor,
certain specific items or one item from among designated items, whether the
items are denominated as gifts, premiums, bonuses, prizes or otherwise, the
seller shall provide the following:
(a) The information required to be filed
by ORS 646.553.
(b) The complete street address of the
location from which the salesperson is calling the prospective purchaser and,
if different, the complete street address of the telephonic seller’s principal
location.
(c) The total number of individuals who
have actually received from the telephonic seller, during the preceding 12
months or if the seller has not been in business that long, during the period
the telephonic seller has been in business, the item having the greatest value
and the item with the smallest odds of being received.
(2) If the telephonic seller is offering
to sell any metal, stone or mineral, the seller shall provide the following
information:
(a) The complete street address of the
location from which the salesperson is calling the prospective purchaser and,
if different, the complete street address of the telephonic seller’s principal
location.
(b) The information required to be filed
by ORS 646.553.
(3) If the telephonic seller is offering
to sell an interest in oil, gas or mineral fields, wells or exploration sites,
the seller shall provide the following information:
(a) The complete street address of the location
from which the salesperson is calling the prospective purchaser and, if
different, the complete street address of the telephonic seller’s principal
location.
(b) The information required to be filed
by ORS 646.553.
(4) If the telephonic seller represents
that office equipment or supplies being offered are offered at prices which are
below those usually changed for these items, the seller shall provide the
following information:
(a) The complete street address of the
location from which the salesperson is calling the prospective purchaser and,
if different, the complete street address of the telephonic seller’s principal
location.
(b) The name of the manufacturer of each
of the items the telephonic seller has represented for sale and in which the prospective
purchaser expresses interest. [1989 c.622 §5]
646.559
Rules. In accordance with
any applicable provision of ORS chapter 183, the Attorney General may adopt
rules to carry out the provisions of ORS 646.551 to 646.557. [1989 c.622 §6]
646.560 [Repealed by 1953 c.391 §2]
(Unlawful
Telephone Solicitations)
646.561
Definitions for ORS 646.561 to 646.565. As used in ORS 646.561 to 646.565, unless the context otherwise
requires:
(1) “Charitable organization” means an
organization organized for charitable purposes as defined in ORS 128.801.
(2) “Party” means a telephone customer of
a telecommunications company.
(3) “Telephone solicitation” means the
solicitation by telephone by any person of a party for the purpose of
encouraging the party to purchase real estate, goods or services, or make a
donation. “Telephone solicitation” does not include:
(a) Calls made by a charitable
organization, a public agency or volunteers on behalf of the organization or
agency to members of the organization or agency or to persons who have made a
donation or expressed an interest in making a donation to the organization or
agency;
(b) Calls limited to polling or soliciting
the expression of ideas, opinions or votes; or
(c) Business to business contacts. [1989
c.622 §8; 2007 c.441 §3]
646.563
Telephone solicitation of party who states desire not to be called. A person engages in an unlawful practice if,
during a telephone solicitation, the called party states a desire not to be
called again and the person making the telephone solicitation makes a
subsequent telephone solicitation of the called party at that number. [1989
c.622 §9; 2001 c.924 §15]
646.565
Notice of provisions of ORS 646.561 and 646.563; rulemaking by Public Utility
Commission. The Public
Utility Commission shall by rule require that telecommunications companies
inform parties of the provisions of ORS 646.561 and 646.563. Notification may
be by:
(1) Annual inserts in the billing
statements mailed to parties; or
(2) Conspicuous publication of the notice
in the consumer information pages of local telephone directories. [1989 c.622 §10]
646.567
Definitions for ORS 646.567 to 646.578. As used in ORS 646.567 to 646.578, unless the context otherwise
requires:
(1) “Charitable organization” means an
organization organized for charitable purposes as defined in ORS 128.801.
(2) “Information about a party” means
information specific to a party, including but not limited to the name and
address of the party and the method by which the party paid the fee required by
ORS 646.574.
(3) “Party” means a telephone customer of
a telecommunications company.
(4) “Qualified trade association” means an
organization with at least the following characteristics:
(a) Written bylaws or governing documents
including a code of conduct for its members; and
(b) Criteria and procedures for expelling
or suspending members who violate the association’s bylaws or governing
documents.
(5) “Telephone solicitation” means the
solicitation by telephone by any person of a party for the purpose of
encouraging the party to purchase real estate, goods or services, or make a
donation. “Telephone solicitation” does not include:
(a) Calls made in response to a request or
inquiry by the called party;
(b) Calls made by a charitable organization,
a public agency or volunteers on behalf of the organization or agency to
members of the organization or agency or to persons who have donated or
expressed an interest in donating real estate, goods or services to the
organization or agency;
(c) Calls limited to polling or soliciting
the expression of ideas, opinions or votes; or
(d) Business to business contacts. [1989
c.451 §1; 1999 c.564 §6; 2001 c.170 §1; 2007 c.441 §4]
646.568
Findings and purpose. (1)
The Legislative Assembly finds that:
(a) Fraud committed by means of unwanted
telephone solicitations causes economic harm to Oregonians and constitutes an
invasion of privacy and a threat to the welfare of the people of this state.
(b) Unwanted telephone solicitations cause
Oregonians harm because:
(A) Telephone solicitations have become a
primary tool for the marketing of real estate, goods and services to parties.
Telephone solicitors have engaged in the practice of cold calling, which is the
initiation of calls to parties with whom the telephone solicitors have no prior
business relationship, to market scams, fraudulent schemes and worthless goods
and services to unsuspecting parties who often lose thousands of dollars as a
result of the solicitations.
(B) Telephone solicitors often make calls
based on lists targeting the elderly or other vulnerable populations who are
unable to assess the risks associated with engaging in sales transactions over
the telephone.
(C) Technologies designed to assist
parties in avoiding unwanted telephone solicitations are not effective and
place an additional financial burden on parties, effectively shifting the cost
of unwanted telephone solicitations to parties. These technologies include:
(i) Caller identification systems, for
which parties bear the cost of the caller identification service and any
related hardware, and for which technology exists that allows telephone
solicitors to block caller identification data;
(ii) Privacy manager services that, for a
fee, intercept calls; and
(iii) Unlisted telephone numbers, for
which parties pay an additional fee.
(D) Unwanted telephone solicitations tie
up telephone lines and prevent legitimate telephone calls from being received
or placed by parties. Predictive dialers utilized by telephone solicitors that
automatically dial parties’ telephone numbers frequently result in abandoned
telephone solicitations and silence when the party answers the phone. These
solicitations constitute an intrusion on the property of parties and an
invasion of privacy.
(E) The growing practice of preacquired
account telephone solicitation, in which a telephone solicitor acquires the
party’s billing information prior to initiating a telephone solicitation, has
increasingly resulted in unauthorized charges to parties’ financial accounts.
(c) Existing state and federal laws are
inadequate to prevent the harm to the public welfare that results from
telephone solicitations.
(d) Allowing parties to choose not to
receive unwanted telephone solicitations by placing their telephone numbers on
a “do not call” list provides a means by which parties can protect themselves
from fraud related to telephone solicitations and from the resulting economic
harm and invasion of privacy.
(2) The purpose of ORS 646.567 to 646.578
is to prevent the harmful effects set forth in subsection (1)(b) of this
section that result from telephone solicitations without inhibiting legitimate
telephone solicitations to parties who choose to receive them. Prohibiting
telephone solicitations to those Oregonians whose telephone numbers appear on
the list described in ORS 646.574 enables Oregonians to choose whether to
receive telephone solicitations. [2007 c.441 §2]
646.569
Prohibition on telephone solicitation of party whose name is included on list
described in ORS 646.574 or on federal registry designated under ORS 646.572. (1) A person may not engage in the telephone
solicitation of a party at a telephone number included on the then current
list:
(a) Published by the administrator of the
telephone solicitation program established under ORS 646.572 and 646.574; or
(b) Maintained as part of the federal
registry designated under ORS 646.572.
(2) For purposes of this section:
(a) “Predecessor of the business
enterprise” means a financial institution as defined in 15 U.S.C. 6827 that
has:
(A) Merged with or been acquired by the
business enterprise for which the person is calling; or
(B) Sold or assigned an account of a party
who has previously purchased from the business enterprise, to the business
enterprise for which the person is calling.
(b) “Telephone solicitation” does not
include a person soliciting business from prospective purchasers who have
previously purchased from:
(A) The person making the solicitation;
(B) The business enterprise for which the
person is calling; or
(C) A predecessor of the business
enterprise for which the person is calling. [1989 c.451 §2; 1999 c.564 §1; 2001
c.503 §1; 2007 c.441 §5]
646.570 [Repealed by 1953 c.391 §2]
646.571 [1989 c.451 §3; 1999 c.564 §7; renumbered
646.578 in 1999]
646.572
Administration of telephone solicitation program through contract or by
designation of federal registry; contract provisions; duty of Attorney General. (1) The Attorney General shall either:
(a) Advertise for bids and enter into a
contract with a person to act as the administrator of the telephone
solicitation program described in ORS 646.574; or
(b) Designate a federal “do not call”
registry, including but not limited to the registry maintained by the Federal
Trade Commission under 16 C.F.R. 310, in lieu of an
(2) The Attorney General may include in a
contract with the administrator any provision that the Attorney General
determines is in the public interest.
(3) If a party requests, the Attorney
General shall instruct the party on how to register the party’s telephone
number on the federal “do not call” registry designated under subsection (1)(b)
of this section. [1999 c.564 §3; 2007 c.441 §6]
646.574
List of persons who do not wish to receive telephone solicitations; fee; disclosure
of list; complaints. (1) If
the Attorney General enters into a contract pursuant to ORS 646.572 (1)(a), the
administrator of the telephone solicitation program shall create, maintain and
distribute a database containing a list of telephone numbers of parties who do
not wish to receive any telephone solicitation at the listed numbers. Beginning
on the date specified in the contract between the administrator and the
Attorney General and at least once each quarter thereafter, the administrator
shall update the list by:
(a) Adding the numbers of parties who have
filed notice and paid the fee as required in this section; and
(b) Removing the numbers of those parties
who have requested that their numbers be removed or whose listing has expired
without renewal.
(2) A party may file notice together with
a fee of $10 per listed number, or such lesser amount as may be specified in
the contract, with the administrator indicating the party’s desire to place
telephone numbers on the list described in subsection (1) of this section. The
notice shall be filed in the form and manner specified in the contract between
the administrator and the Attorney General. The notice is effective for one
year from the date the party files the notice. The party may renew the notice
for additional periods of one year by filing an additional notice and paying an
additional fee by the anniversary of the original filing date of the notice.
(3) Information about a party is
confidential. The Attorney General may not disclose information about a party.
(4) The administrator may not furnish the
list or disclose any information about a party to any person, except as
follows:
(a) Upon request of a person engaging or
intending to engage in telephone solicitations and after payment of the fees in
the amounts specified in the contract between the administrator and the
Attorney General, the administrator shall furnish to the person:
(A) The most recent copy of the list
described in subsection (1) of this section.
(B) The names of the parties whose
telephone numbers are on the list.
(b) Upon request of a qualified trade
association and after payment of the fees in the amounts specified in the
contract between the administrator and the Attorney General, the administrator
shall furnish to the qualified trade association:
(A) The most recent copy of the list
described in subsection (1) of this section.
(B) The names of the parties whose
telephone numbers are on the list.
(c) A qualified trade association that
receives a list or the names of the parties whose telephone numbers are on the
list under this subsection may make the list or the names available to its
members on any terms the association and its members may impose.
(d) Upon request of the Attorney General
for the purpose of enforcing ORS 646.569, the administrator shall furnish the
Attorney General with all requested information about a party or any person who
the Attorney General believes has engaged in a solicitation prohibited by ORS
646.569. The administrator may not charge a fee for furnishing the information
to the Attorney General.
(e) Upon request of any party who has
filed a notice and paid the fee as provided in subsection (2) of this section,
the administrator shall furnish the party with all requested information about
the party or any person who the party believes has engaged in a solicitation
prohibited by ORS 646.569. The administrator may not charge a fee for
furnishing the information to the party.
(f) The administrator shall comply with
any lawful subpoena or court order directing disclosure of the list and of any
other information.
(g) The administrator shall provide all
information that may be requested by any successor administrator who may be
selected by the Attorney General. The administrator may not charge a fee for
furnishing the information to the successor administrator.
(5) The administrator shall promptly
forward any complaints concerning alleged violations of ORS 646.569 to the
Attorney General.
(6) Fees paid to the administrator under
this section shall be considered income to the administrator in the manner
specified in the contract between the administrator and the Attorney General.
(7) When furnishing the list or names
under subsection (4) of this section, the administrator shall make the
information available in printed and electronic form. [1999 c.564 §4; 2001
c.170 §2; 2007 c.441 §7]
646.576
Rules. In the manner
provided by ORS chapter 183, the Attorney General may adopt rules relating to
any aspect of the establishment, operation or administration of the telephone
solicitation program established under ORS 646.572 and 646.574. [1999 c.564 §5]
646.578
Notice of provisions of ORS 646.567 to 646.578; rulemaking by Public Utility
Commission. The Public
Utility Commission shall by rule require that telecommunications companies
inform parties of the provisions of ORS 646.567 to 646.578 and 646.608.
Notification may be by:
(1) Annual inserts in the billing
statements mailed to parties; or
(2) Conspicuous publication of the notice
in the consumer information pages of local telephone directories. [Formerly
646.571]
646.580 [Repealed by 1953 c.391 §2]
646.590 [Repealed by 1953 c.391 §2]
646.600 [Repealed by 1953 c.391 §2]
UNLAWFUL
TRADE PRACTICES
646.605
Definitions for ORS 646.605 to 646.652. As used in ORS 646.605 to 646.652:
(1) “Appropriate court” means the circuit
court of a county:
(a) Where one or more of the defendants
reside;
(b) Where one or more of the defendants
maintain a principal place of business;
(c) Where one or more of the defendants
are alleged to have committed an act prohibited by ORS 646.605 to 646.652; or
(d) With the defendant’s consent, where
the prosecuting attorney maintains an office.
(2) “Documentary material” means the
original or a copy of any book, record, report, memorandum, paper,
communication, tabulation, map, chart, photograph, mechanical transcription, or
other tangible document or recording, wherever situate.
(3) “Examination” of documentary material
shall include inspection, study or copying of any such material, and taking
testimony under oath or acknowledgment in respect of any such documentary
material or copy thereof.
(4) “Person” means natural persons,
corporations, trusts, partnerships, incorporated or unincorporated associations
and any other legal entity except bodies or officers acting under statutory
authority of this state or the
(5) “Prosecuting attorney” means the
Attorney General or the district attorney of any county in which a violation of
ORS 646.605 to 646.652 is alleged to have occurred.
(6) “Real estate, goods or services” means
those that are or may be obtained primarily for personal, family or household
purposes, or that are or may be obtained for any purposes as a result of a
telephone solicitation, and includes franchises, distributorships and other
similar business opportunities, but does not include insurance. Except as
provided in section 2, chapter 658, Oregon Laws 2003, real estate does not
cover conduct covered by ORS chapter 90.
(7) “Telephone solicitation” means a
solicitation where a person, in the course of the person’s business, vocation
or occupation, uses a telephone or an automatic dialing-announcing device to
initiate telephonic contact with a potential customer and the person is not one
of the following:
(a) A person who is a broker-dealer or
salesperson licensed under ORS 59.175, or a mortgage banker or mortgage broker
licensed under ORS 59.850 when the solicitation is for a security qualified for
sale pursuant to ORS 59.055.
(b) A real estate licensee or a person who
is otherwise authorized to engage in professional real estate activity pursuant
to ORS chapter 696, when the solicitation involves professional real estate
activity.
(c) A person licensed or exempt from
licensure as a builder pursuant to ORS chapter 701, when the solicitation
involves the construction, alteration, repair, improvement or demolition of a
structure.
(d) A person licensed or otherwise
authorized to sell insurance as an insurance producer pursuant to ORS chapter
744, when the solicitation involves insurance.
(e) A person soliciting the sale of a
newspaper of general circulation, a magazine or membership in a book or record
club who complies with ORS 646.611, when the solicitation involves newspapers,
magazines or membership in a book or record club.
(f) A person soliciting without the intent
to complete and who does not complete the sales presentation during the
telephone solicitation and who only completes the sales presentation at a later
face-to-face meeting between the solicitor and the prospective purchaser.
(g) A supervised financial institution or
parent, subsidiary or affiliate thereof. As used in this paragraph, “supervised
financial institution” means any financial institution or trust company, as
those terms are defined in ORS 706.008, or any personal property broker,
consumer finance lender, commercial finance lender or insurer that is subject
to regulation by an official or agency of this state or of the
(h) A person who is authorized to conduct
prearrangement or preconstruction funeral or cemetery sales, pursuant to ORS
chapter 692, when the solicitation involves prearrangement or preconstruction
funeral or cemetery plans.
(i) A person who solicits the services
provided by a cable television system licensed or franchised pursuant to state,
local or federal law, when the solicitation involves cable television services.
(j) A person or affiliate of a person
whose business is regulated by the Public Utility Commission of Oregon.
(k) A person who sells farm products as
defined by ORS 576.006 if the solicitation neither intends to nor actually
results in a sale that costs the purchaser in excess of $100.
(L) An issuer or subsidiary of an issuer
that has a class of securities that is subject to section 12 of the Securities
Exchange Act of 1934 and that is either registered or exempt from registration
under paragraph (A), (B), (C), (E), (F), (G) or (H) or subsection (g) of that
section.
(m) A person soliciting exclusively the
sale of telephone answering services to be provided by that person or that
person’s employer when the solicitation involves answering services.
(n) A telecommunications utility with
access lines of 15,000 or less or a cooperative telephone association when the
solicitation involves regulated goods or services.
(8) “Trade” and “commerce” mean
advertising, offering or distributing, whether by sale, rental or otherwise,
any real estate, goods or services, and include any trade or commerce directly
or indirectly affecting the people of this state.
(9) “Unconscionable tactics” include, but
are not limited to, actions by which a person:
(a) Knowingly takes advantage of a
customer’s physical infirmity, ignorance, illiteracy or inability to understand
the language of the agreement;
(b) Knowingly permits a customer to enter
into a transaction from which the customer will derive no material benefit; or
(c) Permits a customer to enter into a
transaction with knowledge that there is no reasonable probability of payment
of the attendant financial obligation in full by the customer when due.
(10) A willful violation occurs when the
person committing the violation knew or should have known that the conduct of
the person was a violation.
(11) A loan is made “in close connection
with the sale of a manufactured dwelling” if:
(a) The lender directly or indirectly
controls, is controlled by or is under common control with the seller, unless
the relationship is remote and is not a factor in the transaction;
(b) The lender gives a commission, rebate
or credit in any form to a seller who refers the borrower to the lender, other
than payment of the proceeds of the loan jointly to the seller and the
borrower;
(c) The lender is related to the seller by
blood or marriage;
(d) The seller directly and materially
assists the borrower in obtaining the loan;
(e) The seller prepares documents that are
given to the lender and used in connection with the loan; or
(f) The lender supplies documents to the
seller used by the borrower in obtaining the loan. [1965 c.490 §2; 1967 c.599 §1;
1971 c.744 §5; 1973 c.235 §1; 1977 c.195 §1; 1989 c.137 §1; 1993 c.508 §40;
1995 c.79 §328; 1997 c.249 §197; 1997 c.631 §514; 1999 c.59 §189; 1999 c.402 §6;
2001 c.917 §4; 2003 c.364 §52; 2003 c.658 §11; 2007 c.71 §198; 2007 c.319 §31]
Note: The amendments to 646.605 by section 12,
chapter 658, Oregon Laws 2003, become operative January 2, 2012. See section
13, chapter 658, Oregon Laws 2003, as amended by section 41, chapter 906,
Oregon Laws 2007. The text that is operative on and after January 2, 2012,
including amendments by section 199, chapter 71, Oregon Laws 2007, and section
32, chapter 319, Oregon Laws 2007, is set forth for the user’s convenience.
646.605. As used in ORS 646.605 to 646.652:
(1) “Appropriate court” means the circuit
court of a county:
(a) Where one or more of the defendants
reside;
(b) Where one or more of the defendants
maintain a principal place of business;
(c) Where one or more of the defendants
are alleged to have committed an act prohibited by ORS 646.605 to 646.652; or
(d) With the defendant’s consent, where
the prosecuting attorney maintains an office.
(2) “Documentary material” means the
original or a copy of any book, record, report, memorandum, paper,
communication, tabulation, map, chart, photograph, mechanical transcription, or
other tangible document or recording, wherever situate.
(3) “Examination” of documentary material
shall include inspection, study or copying of any such material, and taking
testimony under oath or acknowledgment in respect of any such documentary
material or copy thereof.
(4) “Person” means natural persons,
corporations, trusts, partnerships, incorporated or unincorporated associations
and any other legal entity except bodies or officers acting under statutory
authority of this state or the
(5) “Prosecuting attorney” means the
Attorney General or the district attorney of any county in which a violation of
ORS 646.605 to 646.652 is alleged to have occurred.
(6) “Real estate, goods or services” means
those that are or may be obtained primarily for personal, family or household
purposes, or that are or may be obtained for any purposes as a result of a
telephone solicitation, and includes franchises, distributorships and other
similar business opportunities, but does not include insurance. Real estate
does not cover conduct covered by ORS chapter 90.
(7) “Telephone solicitation” means a
solicitation where a person, in the course of the person’s business, vocation
or occupation, uses a telephone or an automatic dialing-announcing device to
initiate telephonic contact with a potential customer and the person is not one
of the following:
(a) A person who is a broker-dealer or
salesperson licensed under ORS 59.175, or a mortgage banker or mortgage broker
licensed under ORS 59.850 when the solicitation is for a security qualified for
sale pursuant to ORS 59.055.
(b) A real estate licensee or a person who
is otherwise authorized to engage in professional real estate activity pursuant
to ORS chapter 696, when the solicitation involves professional real estate
activity.
(c) A person licensed or exempt from
licensure as a builder pursuant to ORS chapter 701, when the solicitation
involves the construction, alteration, repair, improvement or demolition of a
structure.
(d) A person licensed or otherwise
authorized to sell insurance as an insurance producer pursuant to ORS chapter
744, when the solicitation involves insurance.
(e) A person soliciting the sale of a
newspaper of general circulation, a magazine or membership in a book or record
club who complies with ORS 646.611, when the solicitation involves newspapers,
magazines or membership in a book or record club.
(f) A person soliciting without the intent
to complete and who does not complete the sales presentation during the
telephone solicitation and who only completes the sales presentation at a later
face-to-face meeting between the solicitor and the prospective purchaser.
(g) A supervised financial institution or
parent, subsidiary or affiliate thereof. As used in this paragraph, “supervised
financial institution” means any financial institution or trust company, as
those terms are defined in ORS 706.008, or any personal property broker,
consumer finance lender, commercial finance lender or insurer that is subject
to regulation by an official or agency of this state or of the
(h) A person who is authorized to conduct
prearrangement or preconstruction funeral or cemetery sales, pursuant to ORS
chapter 692, when the solicitation involves prearrangement or preconstruction
funeral or cemetery plans.
(i) A person who solicits the services
provided by a cable television system licensed or franchised pursuant to state,
local or federal law, when the solicitation involves cable television services.
(j) A person or affiliate of a person
whose business is regulated by the Public Utility Commission of Oregon.
(k) A person who sells farm products as
defined by ORS 576.006 if the solicitation neither intends to nor actually
results in a sale that costs the purchaser in excess of $100.
(L) An issuer or subsidiary of an issuer
that has a class of securities that is subject to section 12 of the Securities
Exchange Act of 1934 and that is either registered or exempt from registration
under paragraph (A), (B), (C), (E), (F), (G) or (H) or subsection (g) of that
section.
(m) A person soliciting exclusively the
sale of telephone answering services to be provided by that person or that
person’s employer when the solicitation involves answering services.
(n) A telecommunications utility with
access lines of 15,000 or less or a cooperative telephone association when the
solicitation involves regulated goods or services.
(8) “Trade” and “commerce” mean
advertising, offering or distributing, whether by sale, rental or otherwise,
any real estate, goods or services, and include any trade or commerce directly
or indirectly affecting the people of this state.
(9) “Unconscionable tactics” include, but
are not limited to, actions by which a person:
(a) Knowingly takes advantage of a
customer’s physical infirmity, ignorance, illiteracy or inability to understand
the language of the agreement;
(b) Knowingly permits a customer to enter
into a transaction from which the customer will derive no material benefit; or
(c) Permits a customer to enter into a
transaction with knowledge that there is no reasonable probability of payment
of the attendant financial obligation in full by the customer when due.
(10) A willful violation occurs when the
person committing the violation knew or should have known that the conduct of
the person was a violation.
(11) A loan is made “in close connection
with the sale of a manufactured dwelling” if:
(a) The lender directly or indirectly
controls, is controlled by or is under common control with the seller, unless
the relationship is remote and is not a factor in the transaction;
(b) The lender gives a commission, rebate
or credit in any form to a seller who refers the borrower to the lender, other
than payment of the proceeds of the loan jointly to the seller and the
borrower;
(c) The lender is related to the seller by
blood or marriage;
(d) The seller directly and materially
assists the borrower in obtaining the loan;
(e) The seller prepares documents that are
given to the lender and used in connection with the loan; or
(f) The lender supplies documents to the
seller used by the borrower in obtaining the loan.
646.607
Unlawful business, trade practices. A person engages in an unlawful practice when in the course of the
person’s business, vocation or occupation the person:
(1) Employs any unconscionable tactic in
connection with the sale, rental or other disposition of real estate, goods or
services, or collection or enforcement of an obligation;
(2) Fails to deliver all or any portion of
real estate, goods or services as promised, and upon request of the customer,
fails to refund any money that has been received from the customer that was for
the purchase of the undelivered real estate, goods or services and that is not
retained by the seller pursuant to any right, claim or defense asserted in good
faith. This subsection does not create a warranty obligation and does not apply
to a dispute over the quality of real estate, goods or services delivered to a
customer; or
(3) Violates ORS 401.107 (1) to (4). [1977
c.195 §4; 1979 c.505 §1; 2003 c.759 §§9,10; 2007 c.223 §6]
646.608
Additional unlawful business, trade practices; proof; rules. (1) A person engages in an unlawful practice
when in the course of the person’s business, vocation or occupation the person
does any of the following:
(a) Passes off real estate, goods or
services as those of another.
(b) Causes likelihood of confusion or of
misunderstanding as to the source, sponsorship, approval, or certification of real
estate, goods or services.
(c) Causes likelihood of confusion or of
misunderstanding as to affiliation, connection, or association with, or
certification by, another.
(d) Uses deceptive representations or
designations of geographic origin in connection with real estate, goods or
services.
(e) Represents that real estate, goods or
services have sponsorship, approval, characteristics, ingredients, uses,
benefits, quantities or qualities that they do not have or that a person has a
sponsorship, approval, status, qualification, affiliation, or connection that
the person does not have.
(f) Represents that real estate or goods
are original or new if they are deteriorated, altered, reconditioned,
reclaimed, used or secondhand.
(g) Represents that real estate, goods or
services are of a particular standard, quality, or grade, or that real estate
or goods are of a particular style or model, if they are of another.
(h) Disparages the real estate, goods,
services, property or business of a customer or another by false or misleading
representations of fact.
(i) Advertises real estate, goods or
services with intent not to provide them as advertised, or with intent not to
supply reasonably expectable public demand, unless the advertisement discloses
a limitation of quantity.
(j) Makes false or misleading
representations of fact concerning the reasons for, existence of, or amounts of
price reductions.
(k) Makes false or misleading
representations concerning credit availability or the nature of the transaction
or obligation incurred.
(L) Makes false or misleading
representations relating to commissions or other compensation to be paid in
exchange for permitting real estate, goods or services to be used for model or
demonstration purposes or in exchange for submitting names of potential
customers.
(m) Performs service on or dismantles any
goods or real estate when not authorized by the owner or apparent owner
thereof.
(n) Solicits potential customers by
telephone or door to door as a seller unless the person provides the
information required under ORS 646.611.
(o) In a sale, rental or other disposition
of real estate, goods or services, gives or offers to give a rebate or discount
or otherwise pays or offers to pay value to the customer in consideration of
the customer giving to the person the names of prospective purchasers, lessees,
or borrowers, or otherwise aiding the person in making a sale, lease, or loan
to another person, if earning the rebate, discount or other value is contingent
upon occurrence of an event subsequent to the time the customer enters into the
transaction.
(p) Makes any false or misleading
statement about a prize, contest or promotion used to publicize a product,
business or service.
(q) Promises to deliver real estate, goods
or services within a certain period of time with intent not to deliver them as
promised.
(r) Organizes or induces or attempts to
induce membership in a pyramid club.
(s) Makes false or misleading
representations of fact concerning the offering price of, or the person’s cost
for real estate, goods or services.
(t) Concurrent with tender or delivery of
any real estate, goods or services fails to disclose any known material defect
or material nonconformity.
(u) Engages in any other unfair or
deceptive conduct in trade or commerce.
(v) Violates any of the provisions
relating to auction sales, auctioneers or auction marts under ORS 698.640,
whether in a commercial or noncommercial situation.
(w) Manufactures mercury fever
thermometers.
(x) Sells or supplies mercury fever
thermometers unless the thermometer is required by federal law, or is:
(A) Prescribed by a person licensed under
ORS chapter 677; and
(B) Supplied with instructions on the
careful handling of the thermometer to avoid breakage and on the proper cleanup
of mercury should breakage occur.
(y) Sells a thermostat that contains
mercury unless the thermostat is labeled in a manner to inform the purchaser
that mercury is present in the thermostat and that the thermostat may not be
disposed of until the mercury is removed, reused, recycled or otherwise managed
to ensure that the mercury does not become part of the solid waste stream or
wastewater. For purposes of this paragraph, “thermostat” means a device
commonly used to sense and, through electrical communication with heating,
cooling or ventilation equipment, control room temperature.
(z) Sells or offers for sale a motor
vehicle manufactured after January 1, 2006, that contains mercury light
switches.
(aa) Violates the provisions of ORS
803.375, 803.385 or 815.410 to 815.430.
(bb) Violates ORS 646A.070 (1).
(cc) Violates any requirement of ORS
646A.030 to 646A.040.
(dd) Violates the provisions of ORS
128.801 to 128.898.
(ee) Violates ORS 646.883 or 646.885.
(ff) Violates any provision of ORS
646A.020.
(gg) Violates ORS 646.569.
(hh) Violates the provisions of ORS
646A.142.
(ii) Violates ORS 646A.360.
(jj) Violates ORS 646.553 or 646.557 or
any rule adopted pursuant thereto.
(kk) Violates ORS 646.563.
(LL) Violates ORS 759.690 or any rule
adopted pursuant thereto.
(mm) Violates the provisions of ORS
759.705, 759.710 and 759.720 or any rule adopted pursuant thereto.
(nn) Violates ORS 646A.210 or 646A.214.
(oo) Violates any provision of ORS
646A.124 to 646A.134.
(pp) Violates ORS 646A.254.
(qq) Violates ORS 646A.095.
(rr) Violates ORS 822.046.
(ss) Violates ORS 128.001.
(tt) Violates ORS 646.649 (2) to (4).
(uu) Violates ORS 646A.090 (2) to (4).
(vv) Violates ORS 87.686.
(ww) Violates ORS 646.651.
(xx) Violates ORS 646A.362.
(yy) Violates ORS 646A.052 or any rule
adopted under ORS 646A.052 or 646A.054.
(zz) Violates ORS 180.440 (1).
(aaa) Commits the offense of acting as a
vehicle dealer without a certificate under ORS 822.005.
(bbb) Violates ORS 87.007 (2) or (3).
(ccc) Violates ORS 92.405 (1), (2) or (3).
(ddd) Engages in an unlawful practice
under ORS 646.648.
(eee) Violates ORS 646A.365.
(fff) Violates ORS 98.854 or 98.858 or a
rule adopted under ORS 98.864.
(ggg) Sells a gift card in violation of
ORS 646A.276.
(hhh) Violates ORS 646A.102, 646A.106 or
646A.108.
(iii) Violates ORS 646A.430 to 646A.450.
(2) A representation under subsection (1)
of this section or ORS 646.607 may be any manifestation of any assertion by
words or conduct, including, but not limited to, a failure to disclose a fact.
(3) In order to prevail in an action or
suit under ORS 646.605 to 646.652, a prosecuting attorney need not prove
competition between the parties or actual confusion or misunderstanding.
(4) An action or suit may not be brought
under subsection (1)(u) of this section unless the Attorney General has first
established a rule in accordance with the provisions of ORS chapter 183
declaring the conduct to be unfair or deceptive in trade or commerce.
(5) Notwithstanding any other provision of
ORS 646.605 to 646.652, if an action or suit is brought under subsection
(1)(zz) of this section by a person other than a prosecuting attorney, relief
is limited to an injunction and the prevailing party may be awarded reasonable
attorney fees. [1971 c.744 §7 (enacted in lieu of 646.615); 1973 c.235 §2; 1973
c.513 §1; 1975 c.437 §1; 1977 c.195 §2; 1979 c.503 §4; 1983 c.404 §5; 1985
c.251 §10a; 1985 c.538 §3; 1985 c.694 §8; 1985 c.729 §22; 1987 c.626 §5; 1989
c.273 §7; 1989 c.451 §4; 1989 c.458 §3; 1989 c.621 §4; 1989 c.622 §7; 1989
c.623 §3; 1989 c.913 §1; 1991 c.532 §25; 1991 c.672 §8; 1993 c.58 §3; 1993
c.283 §10; 1993 c.582 §11; 1993 c.645 §10; 1993 c.700 §2; 1995 c.713 §6; 1995
c.788 §2; 1997 c.132 §6; 1997 c.806 §2; 1999 c.194 §9; 1999 c.400 §4; 1999 c.669
§3; 1999 c.719 §3; 1999 c.875 §3; 2001 c.924 §§11,13; 2001 c.969 §5; 2003 c.133
§§1,2; 2003 c.486 §§2,3; 2003 c.778 §§4,5; 2003 c.801 §§18,19; 2005 c.42 §§1,2;
2005 c.799 §§2,3; 2007 c.304 §2; 2007 c.538 §18; 2007 c.685 §13; 2007 c.772 §4;
2007 c.820 §8; 2007 c.823 §5]
Note: The amendments to 646.608 by section 13,
chapter 685, Oregon Laws 2007, become operative July 1, 2008. See section 15,
chapter 685, Oregon Laws 2007. The text that is operative until July 1, 2008,
including amendments by section 2, chapter 304, Oregon Laws 2007, section 18,
chapter 538, Oregon Laws 2007, section 4, chapter 772, Oregon Laws 2007,
section 8, chapter 820, Oregon Laws 2007, and section 5, chapter 823, Oregon
Laws 2007, is set forth for the user’s convenience.
646.608. (1) A person engages in an unlawful practice
when in the course of the person’s business, vocation or occupation the person
does any of the following:
(a) Passes off real estate, goods or
services as those of another.
(b) Causes likelihood of confusion or of
misunderstanding as to the source, sponsorship, approval, or certification of
real estate, goods or services.
(c) Causes likelihood of confusion or of
misunderstanding as to affiliation, connection, or association with, or
certification by, another.
(d) Uses deceptive representations or
designations of geographic origin in connection with real estate, goods or
services.
(e) Represents that real estate, goods or
services have sponsorship, approval, characteristics, ingredients, uses,
benefits, quantities or qualities that they do not have or that a person has a
sponsorship, approval, status, qualification, affiliation, or connection that
the person does not have.
(f) Represents that real estate or goods
are original or new if they are deteriorated, altered, reconditioned,
reclaimed, used or secondhand.
(g) Represents that real estate, goods or
services are of a particular standard, quality, or grade, or that real estate
or goods are of a particular style or model, if they are of another.
(h) Disparages the real estate, goods,
services, property or business of a customer or another by false or misleading
representations of fact.
(i) Advertises real estate, goods or
services with intent not to provide them as advertised, or with intent not to
supply reasonably expectable public demand, unless the advertisement discloses
a limitation of quantity.
(j) Makes false or misleading
representations of fact concerning the reasons for, existence of, or amounts of
price reductions.
(k) Makes false or misleading representations
concerning credit availability or the nature of the transaction or obligation
incurred.
(L) Makes false or misleading
representations relating to commissions or other compensation to be paid in
exchange for permitting real estate, goods or services to be used for model or
demonstration purposes or in exchange for submitting names of potential
customers.
(m) Performs service on or dismantles any
goods or real estate when not authorized by the owner or apparent owner
thereof.
(n) Solicits potential customers by
telephone or door to door as a seller unless the person provides the
information required under ORS 646.611.
(o) In a sale, rental or other disposition
of real estate, goods or services, gives or offers to give a rebate or discount
or otherwise pays or offers to pay value to the customer in consideration of
the customer giving to the person the names of prospective purchasers, lessees,
or borrowers, or otherwise aiding the person in making a sale, lease, or loan
to another person, if earning the rebate, discount or other value is contingent
upon occurrence of an event subsequent to the time the customer enters into the
transaction.
(p) Makes any false or misleading
statement about a prize, contest or promotion used to publicize a product,
business or service.
(q) Promises to deliver real estate, goods
or services within a certain period of time with intent not to deliver them as
promised.
(r) Organizes or induces or attempts to
induce membership in a pyramid club.
(s) Makes false or misleading
representations of fact concerning the offering price of, or the person’s cost
for real estate, goods or services.
(t) Concurrent with tender or delivery of
any real estate, goods or services fails to disclose any known material defect
or material nonconformity.
(u) Engages in any other unfair or
deceptive conduct in trade or commerce.
(v) Violates any of the provisions
relating to auction sales, auctioneers or auction marts under ORS 698.640,
whether in a commercial or noncommercial situation.
(w) Manufactures mercury fever
thermometers.
(x) Sells or supplies mercury fever
thermometers unless the thermometer is required by federal law, or is:
(A) Prescribed by a person licensed under
ORS chapter 677; and
(B) Supplied with instructions on the
careful handling of the thermometer to avoid breakage and on the proper cleanup
of mercury should breakage occur.
(y) Sells a thermostat that contains
mercury unless the thermostat is labeled in a manner to inform the purchaser
that mercury is present in the thermostat and that the thermostat may not be
disposed of until the mercury is removed, reused, recycled or otherwise managed
to ensure that the mercury does not become part of the solid waste stream or
wastewater. For purposes of this paragraph, “thermostat” means a device
commonly used to sense and, through electrical communication with heating,
cooling or ventilation equipment, control room temperature.
(z) Sells or offers for sale a motor
vehicle manufactured after January 1, 2006, that contains mercury light
switches.
(aa) Violates the provisions of ORS
803.375, 803.385 or 815.410 to 815.430.
(bb) Violates ORS 646A.070 (1).
(cc) Violates any requirement of ORS
646A.030 to 646A.040.
(dd) Violates the provisions of ORS
128.801 to 128.898.
(ee) Violates ORS 646.883 or 646.885.
(ff) Violates any provision of ORS
646A.020.
(gg) Violates ORS 646.569.
(hh) Violates the provisions of ORS
646A.142.
(ii) Violates ORS 646A.360.
(jj) Violates ORS 646.553 or 646.557 or
any rule adopted pursuant thereto.
(kk) Violates ORS 646.563.
(LL) Violates ORS 759.690 or any rule
adopted pursuant thereto.
(mm) Violates the provisions of ORS
759.705, 759.710 and 759.720 or any rule adopted pursuant thereto.
(nn) Violates ORS 646A.210 or 646A.214.
(oo) Violates any provision of ORS
646A.124 to 646A.134.
(pp) Violates ORS 646A.254.
(qq) Violates ORS 646A.095.
(rr) Violates ORS 822.046.
(ss) Violates ORS 128.001.
(tt) Violates ORS 646.649 (2) to (4).
(uu) Violates ORS 646A.090 (2) to (4).
(vv) Violates ORS 87.686.
(ww) Violates ORS 646.651.
(xx) Violates ORS 646A.362.
(yy) Violates ORS 646A.052 or any rule
adopted under ORS 646A.052 or 646A.054.
(zz) Violates ORS 180.440 (1).
(aaa) Commits the offense of acting as a
vehicle dealer without a certificate under ORS 822.005.
(bbb) Violates ORS 87.007 (2) or (3).
(ccc) Violates ORS 92.405 (1), (2) or (3).
(ddd) Engages in an unlawful practice
under ORS 646.648.
(eee) Violates ORS 646A.365.
(fff) Violates ORS 98.854 or 98.858 or a
rule adopted under ORS 98.864.
(ggg) Sells a gift card in violation of
ORS 646A.276.
(hhh) Violates ORS 646A.102, 646A.106 or
646A.108.
(2) A representation under subsection (1)
of this section or ORS 646.607 may be any manifestation of any assertion by
words or conduct, including, but not limited to, a failure to disclose a fact.
(3) In order to prevail in an action or
suit under ORS 646.605 to 646.652, a prosecuting attorney need not prove
competition between the parties or actual confusion or misunderstanding.
(4) An action or suit may not be brought
under subsection (1)(u) of this section unless the Attorney General has first
established a rule in accordance with the provisions of ORS chapter 183
declaring the conduct to be unfair or deceptive in trade or commerce.
(5) Notwithstanding any other provision of
ORS 646.605 to 646.652, if an action or suit is brought under subsection
(1)(zz) of this section by a person other than a prosecuting attorney, relief
is limited to an injunction and the prevailing party may be awarded reasonable
attorney fees.
Note: Section 14, chapter 685, Oregon Laws 2007,
provides:
Sec.
14. (1) Sections 1 to 11 of
this 2007 Act [646A.430 to 646A.450] and the amendments to ORS 646.608 by
section 13 of this 2007 Act apply to persons conducting business in this state
as warrantors on or after the operative date specified in section 15 of this
2007 Act [July 1, 2008].
(2) Sections 1 to 11 of this 2007 Act and
the amendments to ORS 646.608 by section 13 of this 2007 Act apply to insurers
that offer reimbursement insurance policies in this state on or after the
operative date specified in section 15 of this 2007 Act.
(3) Sections 1 to 11 of this 2007 Act and
the amendments to ORS 646.608 by section 13 of this 2007 Act apply to
transactions for vehicle protection products conducted on or after the
operative date specified in section 15 of this 2007 Act. [2007 c.685 §14]
646.609
“Pyramid club” and “investment” defined. As used in ORS 646.608 (1)(r), “pyramid club” means a sales device
whereby a person, upon condition that the person make an investment, is granted
a license or right to solicit or recruit for economic gain one or more
additional persons who are also granted such license or right upon condition of
making an investment and who may further perpetuate the chain of persons who
are granted such license or right upon such condition. “Pyramid club” also
includes any such sales device which does not involve the sale or distribution
of any real estate, goods or services, including but not limited to a chain
letter scheme. A limitation as to the number of persons who may participate, or
the presence of additional conditions affecting eligibility for such license or
right to recruit or solicit or the receipt of economic gain therefrom, does not
change the identity of the scheme as a pyramid club. As used herein, “investment”
means any acquisition, for a consideration other than personal services, of
property, tangible or intangible, and includes without limitation, franchises,
business opportunities and services. It does not include sales demonstration
equipment and materials furnished at cost for use in making sales and not for
resale. For the purpose of ORS 646.608 (1)(r), any person who organizes or
induces or attempts to induce membership in a pyramid club is acting in the
course of the person’s business, vocation or occupation. [1973 c.513 §3; 1981
c.379 §1]
646.610 [Repealed by 1953 c.391 §2]
646.611
Information required to be given by telephone or door to door seller to potential
customer. A person who
solicits potential customers by telephone or door to door as a seller is in
violation of ORS 646.608 (1)(n) unless the person:
(1) Within 30 seconds after beginning the
conversation:
(a) Provides identification of both the
person and whom the person represents;
(b) Explains the purpose of the person’s
call;
(c) Provides a description in commonly
understood terms of the goods or services offered for sale; and
(d) Inquires whether the person being
solicited is interested in listening to a sales presentation and immediately
discontinues the solicitation if the person being solicited gives a negative
response; and
(2) During the course of the solicitation,
states the total cost of the goods or services offered for sale and the number,
timing and amount of installment payments if payment on an installment basis is
available to the person being solicited. [1979 c.503 §6]
646.612
Application of ORS 646.607 and 646.608. ORS 646.607 and 646.608 do not apply to:
(1) Conduct in compliance with the orders
or rules of, or a statute administered by a federal, state or local
governmental agency.
(2) Acts done by the publisher, owner,
agent or employee of a newspaper, periodical, telephone directory or radio or
television station in the publication or dissemination of an advertisement,
when the publisher, owner, agent or employee did not have knowledge of the
false, misleading or deceptive character of the advertisement. [1971 c.744 §10;
1977 c.195 §5; 2005 c.577 §1]
646.615 [1965 c.490 §3; 1967 c.144 §1; 1967 c.599 §2;
repealed by 1971 c.744 §6 (646.608 enacted in lieu of 646.615)]
646.618
Investigative demand; petition to modify. (1) When it appears to the prosecuting attorney that a person has
engaged in, is engaging in, or is about to engage in any act or practice
declared to be unlawful by ORS 646.607 or 646.608, the prosecuting attorney may
execute in writing and cause to be served an investigative demand upon any
person who is believed to have information, documentary material or physical
evidence relevant to the alleged or suspected violation. The investigative
demand shall require such person, under oath or otherwise, to appear and
testify, to answer written interrogatories, or to produce relevant documentary
material or physical evidence for examination, at such reasonable time and
place as may be stated in the investigative demand, or to do any of the
foregoing, concerning conduct of any trade or commerce which is the subject
matter of the investigation.
(2) At any time before the return date specified
in an investigative demand, or within 20 days after the demand has been served,
whichever period is shorter, a petition to extend the return date, or to modify
or set aside the demand, stating good cause including privileged material, may
be filed in the appropriate court. [1971 c.744 §14; 1973 c.235 §3; 1977 c.195 §6]
646.620 [Repealed by 1953 c.391 §2]
646.622
Method of serving investigative demand. Service of any investigative demand under ORS 646.618 shall be made
personally within this state. If personal service within this state cannot be
made, substituted service therefor may be made by any of the following methods:
(1) Personal service thereof without this
state;
(2) The mailing thereof by registered or
certified mail to the last-known place of business, residence or abode within
or without this state of such person for whom the same is intended;
(3) As to any person other than a natural
person, in the manner provided for service of summons in an action or suit; or
(4) Such service as the court may direct
in lieu of personal service within this state. [1971 c.744 §15; 1975 c.437 §2]
646.625 [1965 c.490 §1; repealed by 1971 c.744 §27]
646.626
Effect of failure to obey investigative demand. (1) If any person, after being served with
an investigative demand under ORS 646.622, fails or refuses to obey an
investigative demand issued by the prosecuting attorney, the prosecuting
attorney may, after notice, apply to an appropriate court and, after hearing
thereon, request an order:
(a) Granting injunctive relief to restrain
the person from engaging in conduct of any aspect of the trade or commerce that
is involved in the alleged or suspected violation; or
(b) Granting such other relief as may be
required, until the person obeys the investigative demand.
(2) Any disobedience of any final order of
a court under this section shall be punished as a contempt of court. [1971
c.744 §16; 1973 c.235 §4; 1977 c.195 §7; 2005 c.22 §448]
646.630 [Repealed by 1953 c.391 §2]
646.632
Enjoining unlawful trade practices; assurance of voluntary compliance; attorney
fees. (1) A prosecuting
attorney who has probable cause to believe that a person is engaging in, has
engaged in, or is about to engage in an unlawful trade practice may bring suit
in the name of the State of Oregon in the appropriate court to restrain such
person from engaging in the alleged unlawful trade practice.
(2) Except as provided in subsections (5)
and (6) of this section, before filing a suit under subsection (1) of this
section, the prosecuting attorney shall in writing notify the person charged of
the alleged unlawful trade practice and the relief to be sought. Such notice
shall be served in the manner set forth in ORS 646.622 for the service of
investigative demands. The person charged thereupon shall have 10 days within
which to execute and deliver to the prosecuting attorney an assurance of
voluntary compliance. Such assurance shall set forth what actions, if any, the
person charged intends to take with respect to the alleged unlawful trade
practice. The assurance of voluntary compliance shall not be considered an
admission of a violation for any purpose. If the prosecuting attorney is
satisfied with the assurance of voluntary compliance, it may be submitted to an
appropriate court for approval and if approved shall thereafter be filed with
the clerk of the court. If an approved assurance of voluntary compliance
provides for the payment of an amount of money, as restitution or otherwise,
and if the amount is not paid within 90 days of the date the court approves the
assurance, or, if the assurance of voluntary compliance requires periodic
payments and if any periodic payment is not paid within 30 days of the date
specified in the assurance of voluntary compliance for any periodic payment,
then the prosecuting attorney may submit that portion of the assurance of
voluntary compliance which provides for the payment of money to the court with
a certificate stating the unpaid balance in a form which fully complies with
the requirements of ORS 18.038 and 18.042. Upon submission of an assurance of
voluntary compliance under this subsection, the court shall sign the assurance
of voluntary compliance and it shall be entered in the register of the court
and the clerk of the court shall note in the register that it creates a lien.
The assurance of voluntary compliance shall thereupon constitute a judgment in
favor of the State of
(3) The prosecuting attorney may reject as
unsatisfactory any assurance:
(a) Which does not contain a promise to
make restitution in specific amounts or through arbitration for persons who
suffered any ascertainable loss of money or property as a result of the alleged
unlawful trade practice; or
(b) Which does not contain any provision,
including but not limited to the keeping of records, which the prosecuting
attorney reasonably believes to be necessary to ensure the continued cessation
of the alleged unlawful trade practice, if such provision was included in a
proposed assurance attached to the notice served pursuant to this section.
(4) Violation of any of the terms of an
assurance of voluntary compliance which has been approved by and filed with the
court shall constitute a contempt of court.
(5) The prosecuting attorney need not
serve notice pursuant to subsection (2) of this section before filing a suit
if, within two years of the filing of such suit, the person charged with the
alleged unfair trade practice submitted to any prosecuting attorney an
assurance of voluntary compliance which was accepted by and filed with an
appropriate court. The prosecuting attorney shall in such case serve notice on
the defendant in the manner set forth in ORS 646.622 for the service of
investigative demands, on the 10th or earlier day previous to the filing of
suit.
(6) If the prosecuting attorney alleges
that the prosecuting attorney has reason to believe that the delay caused by
complying with the provisions of subsection (2) or (5) of this section would
cause immediate harm to the public health, safety or welfare, the prosecuting
attorney may immediately institute a suit under subsection (1) of this section.
(7) A temporary restraining order may be
granted without prior notice to the person if the court finds there is a threat
of immediate harm to the public health, safety or welfare. Such a temporary
restraining order shall expire by its terms within such time after entry, not
to exceed 10 days, as the court fixes, unless within the time so fixed the
order, for good cause shown, is extended for a like period or unless the person
restrained consents that it may be extended for a longer period.
(8) The court may award reasonable
attorney fees to the prevailing party in an action under this section. If the
defendant prevails in such suit and the court finds that the defendant had in
good faith submitted to the prosecuting attorney a satisfactory assurance of
voluntary compliance prior to the institution of the suit or that the
prosecuting attorney, in a suit brought under subsections (5) and (6) of this
section, did not have reasonable grounds to proceed under those subsections,
the court shall award reasonable attorney fees at trial and on appeal to the
defendant. [1971 c.744 §11; 1975 c.437 §3; 1981 c.897 §77; 1989 c.745 §1; 1995
c.618 §97; 2003 c.576 §215]
646.635 [1965 c.490 §§4, 5; 1967 c.599 §3; repealed
by 1971 c.744 §27]
646.636
Remedial power of court. The
court may make such additional orders or judgments as may be necessary to
restore to any person in interest any moneys or property, real or personal, of
which the person was deprived by means of any practice declared to be unlawful
in ORS 646.607 or 646.608, or as may be necessary to ensure cessation of
unlawful trade practices. [1971 c.744 §12; 1977 c.195 §8; 2005 c.22 §449]
646.638
Civil action by private party; damages; attorney fees; effect of prior injunction;
time for commencing action; counterclaim. (1) Except as provided in subsection (8) of this section, any person
who suffers any ascertainable loss of money or property, real or personal, as a
result of willful use or employment by another person of a method, act or
practice declared unlawful by ORS 646.608, may bring an individual action in an
appropriate court to recover actual damages or $200, whichever is greater. The
court or the jury, as the case may be, may award punitive damages and the court
may provide the equitable relief the court considers necessary or proper.
(2) Upon commencement of any action
brought under subsection (1) of this section the party bringing the action
shall mail a copy of the complaint or other initial pleading to the Attorney
General 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 shall
not be 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) Except as provided in subsection (4)
of this section, the court may award reasonable attorney fees to the prevailing
party in an action under this section.
(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 of the court made 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 by ORS 646.608, but an
assurance of voluntary compliance, whether or not approved by the court, shall
not be evidence of the violation.
(6) Actions brought under this section
shall be commenced within one year from the discovery of the unlawful method,
act or practice. However, whenever any complaint is filed by a prosecuting
attorney to prevent, restrain or punish violations of ORS 646.608, running of
the statute of limitations with respect to every private right of action under
this section and based in whole or in part on any matter complained of in said
proceeding shall be suspended during the pendency thereof.
(7) Notwithstanding subsection (6) of this
section, in any action brought by a seller or lessor against a purchaser or
lessee of real estate, goods or services, the purchaser or lessee may assert
any counterclaim the purchaser or lessee has arising out of a violation of ORS
646.605 to 646.652.
(8) This section does not apply to 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. [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]
646.639
Unlawful debt collection practices. (1) As used in subsection (2) of this section:
(a) “Consumer” means a natural person who
purchases or acquires property, services or credit for personal, family or
household purposes.
(b) “Consumer transaction” means a
transaction between a consumer and a person who sells, leases or provides
property, services or credit to consumers.
(c) “Commercial creditor” means a person
who in the ordinary course of business engages in consumer transactions.
(d) “Credit” means the right granted by a
creditor to a consumer to defer payment of a debt, to incur a debt and defer
its payment, or to purchase or acquire property or services and defer payment
therefor.
(e) “Debt” means any obligation or alleged
obligation arising out of a consumer transaction.
(f) “Debtor” means a consumer who owes or
allegedly owes an obligation arising out of a consumer transaction.
(g) “Debt collector” means any person who
by any direct or indirect action, conduct or practice, enforces or attempts to
enforce an obligation that is owed or due to any commercial creditor, or
alleged to be owed or due to any commercial creditor, by a consumer as a result
of a consumer transaction.
(h) “Person” means an individual,
corporation, trust, partnership, incorporated or unincorporated association or
any other legal entity.
(2) It shall be an unlawful collection
practice for a debt collector, while collecting or attempting to collect a debt
to do any of the following:
(a) Use or threaten the use of force or
violence to cause physical harm to a debtor or to the debtor’s family or
property.
(b) Threaten arrest or criminal
prosecution.
(c) Threaten the seizure, attachment or
sale of a debtor’s property when such action can only be taken pursuant to
court order without disclosing that prior court proceedings are required.
(d) Use profane, obscene or abusive
language in communicating with a debtor or the debtor’s family.
(e) Communicate with the debtor or any
member of the debtor’s family repeatedly or continuously or at times known to
be inconvenient to that person with intent to harass or annoy the debtor or any
member of the debtor’s family.
(f) Communicate or threaten to communicate
with a debtor’s employer concerning the nature or existence of the debt.
(g) Communicate without the debtor’s
permission or threaten to communicate with the debtor at the debtor’s place of
employment if the place is other than the debtor’s residence, except that the
debt collector may:
(A) Write to the debtor at the debtor’s
place of employment if no home address is reasonably available and if the
envelope does not reveal that the communication is from a debt collector other
than a provider of the goods, services or credit from which the debt arose.
(B) Telephone a debtor’s place of
employment without informing any other person of the nature of the call or
identifying the caller as a debt collector but only if the debt collector in
good faith has made an unsuccessful attempt to telephone the debtor at the
debtor’s residence during the day or during the evening between the hours of 6
p.m. and 9 p.m. The debt collector may not contact the debtor at the debtor’s
place of employment more frequently than once each business week and may not
telephone the debtor at the debtor’s place of employment if the debtor notifies
the debt collector not to telephone at the debtor’s place of employment or if
the debt collector knows or has reason to know that the debtor’s employer
prohibits the debtor from receiving such communication. For the purposes of
this subparagraph, any language in any instrument creating the debt which
purports to authorize telephone calls at the debtor’s place of employment shall
not be considered as giving permission to the debt collector to call the debtor
at the debtor’s place of employment.
(h) Communicate with the debtor in writing
without clearly identifying the name of the debt collector, the name of the
person, if any, for whom the debt collector is attempting to collect the debt
and the debt collector’s business address, on all initial communications. In
subsequent communications involving multiple accounts, the debt collector may
eliminate the name of the person, if any, for whom the debt collector is
attempting to collect the debt, and the term “various” may be substituted in
its place.
(i) Communicate with the debtor orally
without disclosing to the debtor within 30 seconds the name of the individual
making the contact and the true purpose thereof.
(j) Cause any expense to the debtor in the
form of long distance telephone calls, telegram fees or other charges incurred
by a medium of communication, by concealing the true purpose of the debt
collector’s communication.
(k) Attempt to or threaten to enforce a
right or remedy with knowledge or reason to know that the right or remedy does
not exist, or threaten to take any action which the debt collector in the
regular course of business does not take.
(L) Use any form of communication which
simulates legal or judicial process or which gives the appearance of being
authorized, issued or approved by a governmental agency, governmental official
or an attorney at law when it is not in fact so approved or authorized.
(m) Represent that an existing debt may be
increased by the addition of attorney fees, investigation fees or any other
fees or charges when such fees or charges may not legally be added to the
existing debt.
(n) Collect or attempt to collect any
interest or any other charges or fees in excess of the actual debt unless they
are expressly authorized by the agreement creating the debt or expressly
allowed by law.
(o) Threaten to assign or sell the debtor’s
account with an attending misrepresentation or implication that the debtor
would lose any defense to the debt or would be subjected to harsh, vindictive
or abusive collection tactics.
(3) It shall be an unlawful collection
practice for a debt collector, by use of any direct or indirect action, conduct
or practice, to enforce or attempt to enforce an obligation made void and
unenforceable by the provisions of ORS 759.720 (3) to (5). [1977 c.184 §2; 1985
c.799 §1; 1991 c.672 §9; 1991 c.906 §1; 1995 c.696 §50]
646.640 [Repealed by 1953 c.391 §2]
646.641
Civil action for unlawful debt collection practice; damages; attorney fees; time
for commencing action. (1)
Any person injured as a result of willful use or employment by another person
of an unlawful collection practice may bring an action in an appropriate court
to enjoin the practice or to recover actual damages or $200, whichever is
greater. The court or the jury may award punitive damages, and the court may
provide such equitable relief as it deems necessary or proper.
(2) In any action brought by a person
under this section, the court may award reasonable attorney fees to the
prevailing party.
(3) Actions brought under this section
shall be commenced within one year from the date of the injury. [1977 c.184 §3;
1981 c.897 §79; 1995 c.618 §99]
646.642
Civil penalties. (1) Any
person who willfully violates the terms of an injunction issued under ORS
646.632 shall forfeit and pay to the state a civil penalty to be set by the
court of not more than $25,000 per violation. For the purposes of this section,
the court issuing the injunction shall retain jurisdiction and the cause shall
be continued, and in such cases the prosecuting attorney acting in the name of
the state may petition for recovery of civil penalties.
(2) Any person who willfully violates any
provision of an assurance of voluntary compliance approved and filed with an
appropriate court under ORS 646.632 shall forfeit and pay to the state a civil
penalty to be set by the court of not more than $25,000 per violation. Any
prosecuting attorney may apply to an appropriate court for recovery of such
civil penalty. In any action brought by a prosecuting attorney under this
section, and in any contempt action brought by a prosecuting attorney pursuant
to ORS 646.632 (4), the court may award to the prevailing party, in addition to
any other relief provided by law, reasonable attorney fees and costs at trial
and on appeal.
(3) In any suit brought under ORS 646.632,
if the court finds that a person is willfully using or has willfully used a
method, act or practice declared unlawful by ORS 646.607 or 646.608, the
prosecuting attorney, upon petition to the court, may recover, on behalf of the
state, a civil penalty to be set by the court of not exceeding $25,000 per
violation. [1971 c.744 §17; 1975 c.437 §5; 1977 c.195 §10; 1989 c.745 §2; 1995
c.618 §100]
646.643
Applicability of ORS 646.639.
A debt collector who is subject to and in compliance with the requirements of
the Fair Debt Collection Practices Act (Public Law 95-109, 15 U.S.C. 1692 et
seq.) shall also be considered to be in compliance with the requirements of ORS
646.639. [1991 c.906 §3]
646.645 [1965 c.490 §6; repealed by 1971 c.744 §27]
646.646
Loss of license or franchise by person violating injunction. Upon petition by the prosecuting attorney,
the court may, in its discretion, order the dissolution or suspension or
forfeiture of the license or franchise of any person who violates the terms of
any injunction issued under ORS 646.632. [1971 c.744 §18]
646.648
Unlawful practice by manufactured dwelling dealer. (1) As used in this section:
(a) “Buyer” means a person who buys or
agrees to buy a manufactured dwelling from a manufactured dwelling dealer.
(b) “Cash sale price” means the price for
which a manufactured dwelling dealer would sell to a buyer, and the buyer would
buy from a dealer, a manufactured dwelling that is covered by a purchase
agreement, if the sale were a sale for cash instead of a retail installment
sale.
(c) “Manufactured dwelling” has the
meaning given that term in ORS 446.003.
(d) “Manufactured dwelling dealer” means a
person licensed under ORS 446.691 or 446.696 or a temporary manufactured
structure dealer licensee under ORS 446.701.
(e) “Retail installment sale” has the
meaning given that term in ORS 83.510.
(2) A manufactured dwelling dealer engages
in an unlawful practice when, in a sale of a manufactured dwelling, the dealer
does any of the following:
(a) Misrepresents to a buyer that, as a
condition of financing, the buyer must purchase:
(A) Credit life insurance;
(B) Credit disability insurance;
(C) Credit unemployment insurance;
(D) Credit property insurance;
(E) Health insurance;
(F) Life insurance; or
(G) An extended warranty.
(b) In close connection with the sale,
misrepresents to a lender:
(A) The cash sale price;
(B) The amount of the buyer’s down
payment; or
(C) The buyer’s credit or employment
history. [2001 c.917 §1; 2003 c.655 §82]
Note: Sections 2 and 14, chapter 658, Oregon Laws
2003, provide:
Sec.
2. (1) As used in this
section, “facility,” “floating home,” “landlord,” “manufactured dwelling” and “tenant”
have the meanings given those terms in ORS 90.100.
(2) A facility landlord engages in an
unlawful trade practice when the landlord violates ORS 90.680 (6) in a sale of
a manufactured dwelling or floating home by a tenant to a prospective purchaser
who desires to leave the dwelling or home on the rented space and become a tenant.
(3) Notwithstanding ORS 646.638, only a
prosecuting attorney may bring an action under ORS 646.605 to 646.652 for a
violation described in this section. [2003 c.658 §2]
Sec.
14. Section 2, chapter 658,
Oregon Laws 2003, is repealed January 2, 2012. [2003 c.658 §14; 2007 c.906 §42]
646.649
Late fees on delinquent cable service accounts; amount; disclosure; notice. (1) As used in this section:
(a) “Cable service” means:
(A) One-way transmission to subscribers of
a video programming service;
(B) Two-way interactive service delivered
over a cable system; or
(C) Any communication with subscribers
necessary for the selection and use of video programming or interactive
services.
(b) “Cable system” means a facility
consisting of closed transmission paths and associated signal operation,
reception and control equipment that is designed to provide cable service.
(2)(a) A seller of cable service may
assess a late fee on delinquent subscriber accounts held by the seller that
have an unpaid balance of $10 or more.
(b) A late fee assessed under subsections
(2), (3) and (4) of this section shall not exceed five percent of the unpaid
balance or $6, whichever is greater.
(3) The seller of cable service shall
conspicuously disclose on each statement or invoice the terms under which a
late fee may be assessed, including the amount of the fee.
(4) Prior to assessing a late fee under
subsections (2), (3) and (4) of this section, the seller shall give written
notice to the subscriber. The notice shall conspicuously indicate the amount of
the unpaid balance, an address where payment may be made, the date on which the
late fee will be imposed and the amount of the late fee. The notice shall be
mailed to the subscriber’s last-known billing address as shown in the seller’s
records. The notice shall be mailed at least 10 days prior to the date on which
the late fee will be assessed. The late fee may not be assessed earlier than 27
days after the due date for the unpaid balance. [1999 c.400 §§2,3]
Note: 646.649 and 646.651 were enacted into law by
the Legislative Assembly but were not added to or made a part of ORS chapter
646 or any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
646.650 [Repealed by 1953 c.391 §2]
646.651
Contest and sweepstakes solicitations; required disclosures; prohibited
representations. (1) As used
in this section:
(a) “Contest” means a procedure for
awarding a prize in which the outcome depends at least in part on the skill of
the contestant. “Contest” includes any competition in which a person is
required to purchase anything, pay anything of value or make a donation in
order to participate. “Contest” also includes a competition that is advertised
in a way that creates a reasonable impression that a payment of anything of
value, purchase of anything or making a donation is a condition of winning a
prize or competing for or obtaining information about a prize.
(b) “Sweepstakes” means a procedure for
awarding a prize that is based on chance. “Sweepstakes” includes any such
procedure in which a person is required to purchase anything, pay anything of
value or make a donation as a condition of winning a prize or of receiving or
obtaining information about a prize. “Sweepstakes” also includes any such
procedure that is advertised in a way that creates a reasonable impression that
a payment of anything of value, purchase of anything or making a donation is a
condition of winning a prize or receiving or obtaining information about a
prize.
(c) “Clearly and conspicuously” means the
message is conveyed in a manner that is reasonably apparent to the audience to
whom it is directed. In order for a message to be considered clear and
conspicuous, it shall, at a minimum:
(A) Not contradict or substantially alter
any terms it purports to clarify, explain or otherwise relate to; and
(B) In the case of printed solicitations:
(i) Be in close proximity to the terms it
purports to clarify, explain or otherwise relate to; and
(ii) Be of sufficient prominence in terms
of placement, font or color contrast as compared with the remainder of the
solicitation so as to be reasonably apparent to the audience to whom it is
directed.
(2) A person engages in an unlawful
practice when, in the course of the person’s business, vocation or occupation,
the person uses the United States mail to solicit participation in a contest
and the person does not clearly and conspicuously disclose in the solicitation:
(a) The maximum number of rounds or
levels, if the contest has more than one round or level;
(b) The date the final winner will be
determined;
(c) The maximum total cost the final
winner will have paid to the sponsor to participate in the contest;
(d) Whether the final winner must purchase
or pay anything of value to a person other than the sponsor if purchasing or
paying is a condition of eligibility;
(e) If the contest involves multiple
rounds of increasing difficulty, an example illustrative of the last
determinative round or a statement that subsequent rounds will be more
difficult;
(f) If the contest is judged by someone
other than the sponsor, the identity of or description of the qualifications of
the judges;
(g) The method used in judging; and
(h) The name and address of the sponsor or
the sponsor’s agent.
(3) A person engages in an unlawful
practice when, in the course of the person’s business, vocation or occupation,
the person uses the United States mail to solicit participation in a
sweepstakes and does not clearly and conspicuously disclose in the solicitation:
(a) The odds of winning in Arabic
numerals, except that if the odds of winning depend on the number of entries
received, a statement to that effect will be deemed sufficient;
(b) The name and address of the sponsor or
the sponsor’s agent, consistently stated wherever it is used; and
(c) The procedure for entry without
purchase.
(4) A person engages in an unlawful
practice when, in the course of the person’s business, vocation or occupation,
the person solicits participation in a contest or sweepstakes:
(a) By using the United States mail to
represent that a person has been selected to receive or has won a particular
prize, when that is not the case; or
(b) By using the
Note: See note under 646.649.
646.652
District attorney’s reports to Attorney General; filing of voluntary
compliances. A district
attorney shall make a full report to the Attorney General of any action, suit,
or proceeding prosecuted by such district attorney under ORS 646.605 to
646.652, including the final disposition of the matter, and shall file with the
Attorney General copies of all assurances of voluntary compliance accepted
under ORS 646.632. [1971 c.744 §19]
646.655 [1967 c.599 §5; repealed by 1971 c.744 §27]
646.656
Remedies supplementary to existing statutory or common law remedies. The remedies provided in ORS 646.605 to
646.652 are in addition to all other remedies, civil or criminal, existing at
common law or under the laws of this state. [1971 c.744 §21a]
646.660 [Repealed by 1953 c.391 §2]
646.661 [1985 c.694 §1; 2007 c.71 §200; renumbered
646A.030 in 2007]
646.666 [1985 c.694 §2; renumbered 646A.032 in 2007]
646.670 [Repealed by 1953 c.391 §2]
646.671 [1985 c.694 §3; renumbered 646A.034 in 2007]
646.676 [1985 c.694 §5; renumbered 646A.036 in 2007]
646.680 [Repealed by 1953 c.391 §2]
646.681 [1985 c.694 §4; renumbered 646A.038 in 2007]
646.686 [1985 c.694 §6; 2007 c.71 §201; renumbered
646A.040 in 2007]
646.690 [Repealed by 1953 c.391 §2]
646.691 [1985 c.694 §7; 2007 c.71 §202; renumbered
646A.042 in 2007]
646.700 [Repealed by 1953 c.391 §2]
ANTITRUST LAW
646.705
Definitions for ORS 136.617 and 646.705 to 646.805. (1) As used in ORS 136.617 and 646.705 to
646.805, “trade or commerce” means trade or commerce within the state; or
between the state and any state, territory, or foreign nation.
(2) As used in ORS 646.775, “natural
persons” shall not include proprietorships or partnerships. [1975 c.255 §2;
1979 c.790 §1]
646.710 [Repealed by 1953 c.391 §2]
646.715
Declaration of purpose. (1)
The Legislative Assembly deems it to be necessary and the purpose of ORS
646.705 to 646.805 and 646.990 is to encourage free and open competition in the
interest of the general welfare and economy of the state, by preventing
monopolistic and unfair practices, combination and conspiracies in restraint of
trade and commerce, and for that purpose to provide means to enjoin such
practices and provide remedies for those injured by them.
(2) Without limiting the scope of ORS
646.705 to 646.805 and 646.990, it is the legislative purpose that it apply to
intrastate trade or commerce, and to interstate trade or commerce involving an
actual or threatened injury to a person or property located in this state. The
decisions of federal courts in construction of federal law relating to the same
subject shall be persuasive authority in the construction of ORS 646.705 to
646.805 and 646.990. [1975 c.255 §3; 2001 c.415 §1]
646.720 [Repealed by 1953 c.391 §2]
646.725
Prohibited acts. Every
contract, combination in the form of trust or otherwise, or conspiracy in
restraint of trade or commerce is declared to be illegal. [1975 c.255 §4]
646.730
Monopolies prohibited. Every
person who shall monopolize, or attempt to monopolize, or combine or conspire
with any other person or persons, to monopolize any part of trade or commerce,
shall be in violation of ORS 136.617, 646.705 to 646.805 and 646.990. [1975
c.255 §5]
646.740
Permitted activities. The
provisions of ORS 136.617, 646.705 to 646.805 and 646.990 may not be construed
to make illegal:
(1) The activities of any labor
organization or individual working men and women permitted by ORS chapters 661
to 663;
(2) The right of producers, as defined in
ORS 646.515, and commercial fishermen to join, belong to and act through
cooperative bargaining associations under ORS 646.515 to 646.545. For the
purpose of this subsection, activities of cooperative bargaining associations
and their members that are lawful under 15 U.S.C. 521 and 522 or 7 U.S.C. 291
and 292 are lawful under ORS 646.515 to 646.545;
(3) The activities of any person subject
to regulation by the Public Utility Commission under ORS chapters 756 to 759 to
the extent that such activities are so regulated and are lawful thereunder or
the activities of any person conducted or carried out in accordance with any
agreement or procedure approved as provided in 49 U.S.C. 5b or 5c;
(4) The activities of any person subject
to regulation by the Director of the Department of Consumer and Business
Services under ORS chapters 731 to 750 to the extent that such activities are
so regulated and are lawful thereunder;
(5) The activities of any state or
national banking institution or savings and loan association, and of any other
lending institution, to the extent that such activities are regulated by the
Director of the Department of Consumer and Business Services under ORS chapters
706 to 725 and are lawful thereunder;
(6) Any other activity specifically
authorized under state law or local ordinance;
(7) The activities of any metropolitan
service district formed under ORS chapter 268 and the activities of any person
subject to regulation by a metropolitan service district formed under ORS
chapter 268 to the extent that those activities are so regulated and are lawful
thereunder;
(8) The activities of any person conducted
or carried out in accordance with the terms and conditions of a certificate
issued pursuant to 15 U.S.C. 4001 to 4021;
(9) The activities of a health care
provider authorized by and in accordance with ORS 442.700 to 442.760 to the
extent the activities are regulated and lawful under ORS 442.700 to 442.760;
(10) The negotiating activities of a
dealer in agricultural commodities that are carried out and supervised under
ORS 62.848; or
(11) The negotiating activities of a
dealer in
646.745
Joint operation of Memorial Coliseum and Arena in
(a) “Affiliate” means an individual, or a
corporation or other entity controlling, controlled by or under common control
with the owner or operator of the arena. For purposes of this subsection, the
term “control” means ownership of more than 50 percent of the shares or other
ownership interests in the owner or operator of the arena or having management
power over the affairs of the owner or operator of the arena.
(b) “Arena” means a multipurpose arena
with a seating capacity of approximately 19,000 constructed or to be
constructed on real property adjacent to the Coliseum.
(c) “Coliseum” means the Memorial Coliseum
in
(d) “Coliseum agreement” means an
operating agreement, management agreement, lease or any similar agreement
between the City of Portland and any corporation, partnership, limited
partnership or individual who owns or operates the arena or any affiliate of
the owner or operator of the arena.
(2) The Legislative Assembly finds that
direct competition between the Arena and Coliseum may require the City of
Portland to spend limited public resources to maintain the Coliseum, undermine
the City of Portland’s goal of creating a world-class center for athletic
events, conventions, trade shows and other events and otherwise result in economic
rivalry injurious to the interests of the City of Portland and the citizens of
this state.
(3) The Legislative Assembly declares that
it is the policy and intent of this state to displace competition between the
Arena and Coliseum by allowing the City of
(a) To avoid economic rivalry which might
undermine the continuing economic viability of the Coliseum and require the
public to subsidize the operations of the Coliseum with funds which the City of
(b) To allow the joint operation of the
Coliseum and Arena to avoid scheduling conflicts and other related problems
which would unduly burden public safety resources and the transportation system
of the City of Portland;
(c) To encourage the joint marketing of
the Arena and Coliseum to attract trade shows, conventions and other events
which require multiple venues or could otherwise not be accommodated by the
Coliseum or Arena;
(d) To avoid duplication of management and
other services and minimize the public funds necessary to operate the Coliseum;
(e) To encourage development of the Arena
adjacent to the Coliseum rather than in another location; and
(f) To limit financing risk and provide
for development of the Arena with private funding sources so that public funds
may be used for other pressing needs.
(4) The Legislative Assembly declares that
the City of
(a) Prices charged for Coliseum events;
(b) Decisions about event allocation
between the Arena and Coliseum; and
(c) Decisions to decline to accommodate
events at either the Coliseum or the Arena, or both. [1993 c.183 §2]
646.750
Investigative demand by Attorney General; petition to modify. (1) When it appears to the Attorney General
that a person has engaged in, is engaging in, or is about to engage in any act
or practice declared to be unlawful by ORS 646.725 or 646.730, the Attorney
General may execute in writing and cause to be served an investigative demand upon
any person who is believed to have documentary material or information relevant
to the alleged or suspected violation. The investigative demand shall require
such person to produce relevant documentary material for examination and
copying or reproduction, to answer in writing written interrogatories, to give
oral testimony concerning documentary material or information, or to furnish
any combination of such material, answers or testimony under penalty of
perjury, at such reasonable time and place as may be stated in the
investigative demand.
(2) At any time before the return day
specified in the investigative demand, or within 20 days after the demand has
been served whichever time is shorter, a petition to extend the return date, or
to modify or set aside the demand, stating good cause, may be filed in the
appropriate court.
(3) The investigative demand shall state
the nature of the conduct constituting the alleged antitrust violation under
investigation and the provisions of law believed to be applicable thereto. [1975
c.255 §13; 1977 c.729 §1]
646.760
Civil penalties; attorney fees; mitigation. (1) The Attorney General may prosecute an action for appropriate
injunctive relief and civil penalties in the name of the state for any
violation of ORS 646.725 or 646.730. The court may assess for the benefit of
the state a civil penalty of not more than $250,000 for each violation of ORS
136.617, 646.705 to 646.805 and 646.990. Any act or series of acts by one or
more individual persons (officers, agents or partners) on behalf of a
corporation or other business entity may be found to constitute a violation or
violations by such individual person or persons as well as by the corporation
or other business entity, and separate penalties may be imposed against each of
such individual defendants and corporate or other business entity defendants
for such a violation. The court may award reasonable attorney fees, expert
witness fees and costs of investigation to the Attorney General if the Attorney
General prevails in an action under this section. The court may award
reasonable attorney fees, expert witness fees and costs of investigation to a
defendant who prevails in an action under this section if the court determines
that the Attorney General had no objectively reasonable basis for asserting the
claim or no reasonable basis for appealing an adverse decision of the trial
court.
(2) The complaint may also seek and the
court may order, in an appropriate case, the forfeiture of any corporate
franchise, professional or business license, right to do business or to use an
assumed business name, where the court finds the use by any defendant of such
franchise, license or right has been material to a violation of ORS 646.725 or
646.730.
(3) The court shall take into consideration
in mitigation of any penalty assessed under this section, any fine or penalty
imposed against the defendant by a United States court in a final judgment
under sections 1 to 45 of Title 15 of the United States Code, which the court
finds to be based on the same or substantially the same acts of defendant. [1975
c.255 §8; 1981 c.897 §80; 1995 c.696 §36; 1999 c.370 §1]
646.770
Equitable remedies; attorney fees. (1) Any person including the state or any municipal corporation or
political subdivision threatened with injury in its business or property by a
violation of ORS 646.725 or 646.730 may prosecute a suit for equitable relief,
and in addition to such relief shall recover the costs of suit, including
necessary reasonable investigative costs and reasonable experts’ fees.
(2) Except as provided in subsection (3)
of this section, in an action brought under the provisions of this section by a
person other than the state or any municipal corporation or political
subdivision of the state, the court may award reasonable attorney fees to the
prevailing party. Except as provided in subsection (3) of this section, in a
civil action brought under the provisions of this section by the state or any
municipal corporation or political subdivision of the state:
(a) The court may award reasonable
attorney fees to the state or political subdivision of the state if the state
or political subdivision prevails in the action; and
(b) The court may award reasonable
attorney fees to a defendant who prevails in an action under this section if
the court determines that the state or any municipal corporation or political
subdivision of the state had no objectively reasonable basis for asserting the
claim or no reasonable basis for appealing an adverse decision of the trial court.
(3) The court may not award attorney fees
to a prevailing defendant under the provisions of subsection (2) of this
section if the action under this section is maintained as a class action
pursuant to ORCP 32. [1975 c.255 §9; 1981 c.897 §81; 1995 c.696 §37]
646.775
Actions by Attorney General; damages; attorney fees. (1)(a) The Attorney General may bring a
civil action in the name of the State of Oregon, on behalf of a political
subdivision in this state or as parens patriae on behalf of a natural person,
in any circuit court in which venue is proper under ORS 646.790, to secure
equitable and monetary relief as provided in this section for injury sustained
by the natural person or political subdivision to the natural person’s or
political subdivision’s property by reason of a violation of ORS 646.725 or
646.730. The Attorney General may bring the action authorized by this paragraph
regardless of whether the natural person or political subdivision dealt
directly or indirectly with the adverse party.
(b) The court shall exclude from the
amount of monetary relief awarded in an action pursuant to paragraph (a) of
this subsection any amount of monetary relief:
(A) That duplicates amounts that have been
awarded for the same injury; or
(B) That is properly allocable to natural
persons who have excluded their claims pursuant to subsection (2)(b) of this
section, or to any business entity.
(c)(A) Subject to paragraph (b) of this
subsection, the court shall award the state as monetary relief three times the
total damages sustained by natural persons and political subdivisions and the
costs the state incurs in the action.
(B) The court may award reasonable
attorney fees to the Attorney General if the Attorney General prevails in an
action under this section.
(C) The court may award reasonable
attorney fees to a defendant who prevails in an action under this section if
the court determines that the Attorney General had no objectively reasonable
basis for asserting the claim or no reasonable basis for appealing an adverse
decision of the trial court.
(d) Notwithstanding paragraph (c) of this
subsection, the court shall award the state only the actual damages sustained
by natural persons and political subdivisions in an action in which:
(A) The Attorney General prevails solely
on the basis of a judgment entered in a proceeding under 15 U.S.C. 1 to 45 or
in another action by the state under ORS 646.760, 646.770 or 646.780, used as
collateral estoppel against the defendant under ORS 646.805; or
(B) The natural person or political
subdivision dealt indirectly with the adverse party and the Attorney General
establishes a violation other than a per se violation of ORS 646.725.
(2)(a) In any action pursuant to
subsection (1)(a) of this section, the Attorney General shall, at the times, in
the manner and with the content the court directs, give notice by publication.
If the court finds that notice given solely by publication would deny due
process of law to a natural person or political subdivision, the court may direct
further notice to the natural person or political subdivision according to the
circumstances of the case.
(b) Any natural person or political
subdivision on whose behalf an action is brought pursuant to subsection (1)(a)
of this section may elect to exclude from adjudication the portion of the claim
for monetary relief attributable to the natural person or political subdivision
by filing notice of the election with the court within the time specified in
the notice given pursuant to paragraph (a) of this subsection.
(c) The final judgment in an action
pursuant to subsection (1)(a) of this section shall be res judicata as to any
claim under this section by any natural person or political subdivision on
behalf of whom such action was brought and who fails to give the notice
specified in paragraph (b) of this subsection within the period specified in
the notice given pursuant to paragraph (a) of this subsection.
(3) An action pursuant to subsection
(1)(a) of this section shall not be dismissed or compromised without the
approval of the court, and the notice of any proposed dismissal or compromise
shall be given in the manner the court directs.
(4) In any action pursuant to subsection
(1)(a) of this section in which there has been a determination that a defendant
agreed to fix prices in violation of ORS 646.725, damages may be proved and
assessed in the aggregate by statistical or sampling methods, by the
computation and pro rata allocation of illegal overcharges, or by any other
reasonable system of estimating aggregate damages as the court in its
discretion may permit without the necessity of separately proving the
individual claim of, or amount of damage to, natural persons or political
subdivisions on whose behalf the suit was brought.
(5)(a) Monetary relief recovered in an
action pursuant to subsection (1)(a) of this section shall be distributed in
the manner the court in its discretion may authorize, subject to the
requirement that any distribution procedure adopted afford each natural person
or political subdivision on whose behalf the suit was brought a reasonable
opportunity to secure an appropriate portion of the net monetary relief.
(b) The Attorney General shall deposit
that portion of the monetary relief awarded by the court as costs of suit and a
reasonable attorney fee in the Consumer Protection and Education Revolving
Account established pursuant to ORS 180.095.
(c) To the extent that the monetary relief
awarded by the court is not exhausted by distribution pursuant to paragraphs
(a) and (b) of this subsection, the remaining funds shall be deemed a civil
penalty by the court and assessed as such for the benefit of the state pursuant
to ORS 646.760.
(6) The powers granted in this section are
in addition to and not in derogation of the common law powers of the Attorney
General to act as parens patriae, or the powers of the Attorney General to sue
as a representative party on behalf of a class pursuant to ORCP 32. [1979 c.790
§3; 1981 c.897 §82; 1995 c.696 §38; 2001 c.393 §1]
646.780
Recovery of treble damages; exception; recovery of fees and costs; action under
federal law as bar. (1)(a) A
person including the state or any political subdivision in the state injured in
its business or property by a violation of ORS 646.725 or 646.730 may sue for
the injury and shall recover three times the damages sustained. The state may
bring the action authorized by this paragraph regardless of whether the state
dealt directly or indirectly with the adverse party.
(b) Notwithstanding paragraph (a) of this
subsection, the state may recover only the state’s actual damages sustained and
any attorney fees, expert witness fees or investigative costs that the court
may award under subsection (3) of this section, if the state:
(A) Brings an action under ORS 646.760;
(B) Commences a prosecution under ORS
646.815 and 646.990 (2); or
(C) Brings an action for an injury that
the state suffered by dealing indirectly with the adverse party and the state
establishes a violation other than a per se violation of ORS 646.725.
(c) Notwithstanding paragraph (a) of this
subsection, in any action under this section in which the plaintiff prevails
solely on the basis of a judgment or decree entered in a proceeding under 15
U.S.C. 1 to 45 or in another action by the state under ORS 646.760, 646.770 or
this section, used as collateral estoppel against a defendant pursuant to ORS
646.805, plaintiff’s recovery shall be limited to the actual damages sustained
and any attorney fees, expert witness fees or investigative costs that may be
awarded under subsection (3) of this section.
(2) Unless there is a subsequent judgment
that the court lacks jurisdiction, the taking of any testimony at the
commencement of trial on a civil complaint for damages filed under the
antitrust laws of the United States shall constitute an absolute bar and waiver
of any right of a plaintiff in such action to recover damages from the same
defendant under this section for the same or substantially the same acts of
plaintiff.
(3)(a) Except as provided in subsection (4)
of this section, in an action brought under the provisions of this section by a
person other than the state or any political subdivision in the state, the
court may award reasonable attorney fees, expert witness fees and investigative
costs to the prevailing party.
(b) Except as provided in subsection (4)
of this section, in a civil action brought under the provisions of this section
or under ORS 646.760 by the state or any political subdivision in the state:
(A) The court may award reasonable
attorney fees, expert witness fees and investigative costs to the state or
political subdivision if the state or political subdivision prevails in the
action; and
(B) The court may award reasonable
attorney fees, expert witness fees and investigative costs to a defendant who
prevails in an action under this section if the court determines that the state
or political subdivision had no objectively reasonable basis for asserting the
claim or no reasonable basis for appealing an adverse decision of the trial
court.
(4) The court may not award attorney fees,
expert witness fees or investigative costs to a prevailing defendant under the
provisions of this section if the action is maintained as a class action
pursuant to ORCP 32. [1975 c.255 §10; 1981 c.897 §83; 1983 c.467 §1; 1985 c.251
§27; 1995 c.696 §39; 2001 c.393 §2]
646.790
Venue. A suit or action
based upon any violation of ORS 646.725 or 646.730 may be commenced in any
circuit court within the state, in which one or more of the defendants resides
or has its principal place of business or its registered agent. [1975 c.255 §7]
646.800
Time of commencing action.
(1) An action under ORS 646.760 to recover a civil penalty shall be commenced
within four years after the cause of action accrued, or within one year after
the conclusion of any civil or criminal proceeding instituted by the United
States under the antitrust laws of the United States, except section 15a of
Title 15 of the United States Code, based in whole or in part on the same
matter complained of, whichever is later.
(2) An action under ORS 646.780 to recover
damages shall be commenced within four years after the cause of action accrued,
or within one year after the conclusion of any proceeding based in whole or in
part on the same matter complained of, filed either by the United States under
the antitrust laws of the United States, except section 15a of Title 15 of the
United States Code, or by the state (except in an action for damages by the
state) under ORS 646.760, 646.770 or 646.780 (whichever is first concluded),
whichever is later. [1975 c.255 §12]
646.805
Effect of prior final judgment or decree. (1) A final judgment or decree heretofore or hereafter rendered in any
civil or criminal proceeding brought by or on behalf of the United States under
the antitrust laws of the United States to the effect that a defendant has
violated such laws, other than a judgment or decree entered in an action under
section 15a of Title 15 of the United States Code or a consent judgment or
decree entered before any testimony has been taken, shall estop defendant from
denial of any matters established in such proceeding, in any action or
proceeding brought against such defendant by the state or any person under ORS
646.760, 646.770 or 646.780, to the extent such judgment or decree would be an
estoppel between the parties thereto with respect to such matters.
(2) A final judgment or decree to the
effect that a person has violated ORS 136.617, 646.705 to 646.805 and 646.990
in an action brought by the state under ORS 646.760, 646.770 or 646.780, other
than a consent judgment or decree entered before any testimony has been taken
which specifically provides therein that this subsection shall not be
applicable, shall estop defendant from denial of any matters established in
such action, in any other action against the defendant under ORS 646.770 or
646.780, to the extent such judgment or decree would be an estoppel between the
parties thereto with respect to such matters. [1975 c.255 §11]
646.810 [Repealed by 1971 c.744 §27]
646.815
Criminal prosecutions; compromise of criminal charges; effect of prior action
seeking civil penalties. (1)
Exclusive jurisdiction for criminal prosecution of any violation of ORS 646.725
or 646.730 is vested in the Attorney General. At any time, the Attorney General
may receive and respond to an offer to compromise pending or potential criminal
charges and any other related claims for relief under ORS 646.760, 646.770,
646.775 or 646.780.
(2) The commencement of trial seeking
civil penalties in any action under ORS 646.760 shall bar any subsequent
criminal prosecution for violation of ORS 646.725 or 646.730, based upon the
same acts complained of. The commencement of trial in a criminal prosecution
for violation of ORS 646.725 or 646.730 shall bar any subsequent action for
recovery of civil penalties under ORS 646.760, based upon the same acts
complained of, but shall not bar a subsequent suit for injunctive relief under
ORS 646.760. [1975 c.255 §16 (2), (3); 1999 c.552 §1]
646.820 [Repealed by 1971 c.744 §27]
646.821
Taking testimony for investigative demand. The oral testimony of any person taken pursuant to a demand served
under ORS 646.750 shall be taken in the county in which such person resides, is
found or transacts business, or in such other place as may be agreed upon. [1977
c.729 §3]
646.823
Attendance of Attorney General at grand jury proceedings. Notwithstanding ORS 132.090 (1) the Attorney
General may attend grand jury proceedings, advise it in relation to its duties,
subpoena and examine witnesses and prepare such indictments or presentments as
it requires in investigations of violations of ORS 646.725 or 646.730. [1977
c.729 §7]
646.826
Counsel for persons testifying; grounds for refusing to answer questions;
compelling testimony; exclusion of spectators. (1) Any person compelled to appear under a
demand for oral testimony pursuant to ORS 646.750 may be accompanied,
represented and advised by counsel with respect to any questions asked of such
person. Such advice may be given in confidence.
(2) Such person may refuse to answer any
question on grounds of any constitutional or other legal right or privilege,
including the privilege against self-incrimination. Such person shall not
otherwise refuse to answer any question.
(3) If such person refuses to answer any
question on grounds of the privilege against self-incrimination, the testimony
of the person may be compelled by the same procedure as provided in ORS
136.617.
(4) The antitrust investigator or
investigators conducting the examination shall exclude from the place where
examination is held all other persons except the person being examined, the
counsel of the person, the officer before whom the testimony is to be taken and
any stenographer taking the testimony. [1977 c.729 §4]
646.830 [Repealed by 1971 c.744 §27]
646.831
Fees and mileage for persons testifying. Any person appearing for oral examination pursuant to a demand served
under ORS 646.750 shall be entitled to the fees and mileage provided for
witnesses in ORS 44.415 (2). [1977 c.729 §5; 1989 c.980 §16]
646.836
Confidential status of investigative material; permitted disclosures; use of
information in other proceedings; return of investigative material. (1) While in the possession of the Attorney
General any documentary material, answers to interrogatories and transcripts of
oral testimony shall be held in confidence and not disclosed to any person
except:
(a) The person providing such material or
answers;
(b) The representative or attorney of the
person providing the material or answers;
(c) Persons employed by the Attorney
General;
(d) Officials of the United States or any
state who are authorized to enforce federal or state antitrust laws, provided
that prior to such disclosure the Attorney General shall obtain the written
agreement of such officials to abide by the confidentiality restriction of this
section; and
(e) Other persons authorized in subsection
(2) of this section.
(2) Any such material or answers may be
used in any investigation conducted pursuant to ORS 646.705 to 646.826 or in
any case or proceeding before a court or administrative agency, or may be
disclosed to any committee or subcommittee of the Legislative Assembly in such
manner and for such purposes as the Attorney General deems appropriate.
(3) Upon completion of a case brought
under this section, the Attorney General shall return any such documents,
answers and transcripts which have not passed into the control of the court
through the introduction thereof into the records, to the person who provided
such documents, answers or testimony upon the person’s request in writing. If
no case in which such material may be used has been commenced within a
reasonable time after completion of the examination or analysis of all
documentary material, but in no event later than four years after production
thereof, the Attorney General shall, upon written request of the person who
produced such material, return all documents, answers and transcripts to the
person who provided them. [1977 c.729 §6; 1987 c.500 §1]
646.840 [Repealed by 1971 c.744 §27]
646.845 [2001 c.924 §5; renumbered 646A.080 in 2007]
646.848 [2003 c.803 §1; 2007 c.475 §2; renumbered
646A.060 in 2007]
646.849 [2003 c.803 §2; 2007 c.475 §3; renumbered
646A.062 in 2007]