By Emily Templeton, Lewis & Clark Law School, 2021.

It’s been over two years since Oregon class action lawyers Michael Fuller and Kelly Jones filed a false advertising lawsuit against national food retailer Fred Meyer. Class members allege Fred Meyer violated Oregon’s Unlawful Trade Practices Act (UPTA) by charging customers hidden bottle deposit fees on exempt beverages that could not be refunded under Oregon law.

Specifically, the lawsuit alleges Fred Meyer made false misrepresentations and
omissions when it charged customers more than certain beverage items were
actually worth in violation of Oregon’s consumer protection laws.

In its motion to dismiss, Fred Meyer argued that (1) the district court lacked subject
matter jurisdiction; and (2) plaintiffs failed to state a claim upon which relief can be
granted. In support of the latter, Fred Meyer urged the court to require plaintiffs to
establish reliance in order to prove they incurred an ascertainable loss.

U.S. District Court Judge Michael Mosman made two important findings in his
opinion issued on November 20, 2020:

(1) The court found jurisdiction was proper in federal court because plaintiffs
were not seeking to “enjoin, suspend, or restrain” the collection of any state
“tax”; and
(2) The court found plaintiffs were not required to establish reliance when
alleging ascertainable loss under a diminished value theory.

Fred Meyer had argued that plaintiffs must demonstrate subjective reliance on a
representation, act, or omission that violates the UTPA in order to prove they
incurred an ascertainable loss.

In Pearson v. Philip Morris, Inc., 361 P.3d 3 (2015), the Oregon Supreme Court’s
majority opinion left open the question of whether a diminished value theory
requires “reliance to establish the requisite causal connection.” Judge Mosman,
citing Justice Walter’s concurrence in Pearson, affirmed plaintiffs’ assertion that
reliance is not required under a diminished value theory of liability.

Backed by the UPTA’s plain language and Justice Walter’s concurrence, the court
determined plaintiffs had adequately established ascertainable loss by showing
Fred Meyer had charged customers a price over and above the objective market
value of certain beverage items such that reliance was irrelevant. The court
reiterated, however, that a plaintiff may be required to show reliance to prove
ascertainable loss under a “refund of the purchase price” theory.

By Colin D. A. MacDonald

On October 22, the Federal Trade Commission launched ReportFraud.FTC.gov, the Commission’s new consumer fraud reporting portal. The new site replaces the FTC Complaint Assistant and provides a more user-friendly, informative, and visually appealing experience for consumers. From government imposter scams to phony weight loss claims, from abusive debt collection to deceptive auto sales, and all sorts of unwanted phone calls, text messages, and emails – we want to hear about all of them. Please help us spread the word and keep Oregonians safe from scams.

After making a report, consumers will be given tailored educational information about next steps that they can take to protect themselves. These materials will be specific to the kind of report that consumers make. If consumers wish to update a report later, they will be given a report number to do so.

The system gives consumers plenty of options for how to report scams that they are concerned about. Consumers can make reports in Spanish at ReporteFraude.FTC.gov. Reports can also be made in French, German, Korean, Japanese, Polish, Spanish, or Turkish at the Commission’s econsumer.gov website. If consumers have questions, the system has a live chat feature or consumers can still call the FTC Consumer Response Center at 877-FTC-HELP (877-382-4357) to make reports by phone. Consumers who prefer to make their report anonymously can do so (but they won’t be able to update the report later).

What happens with your reports? Like its predecessor, ReportFraud.FTC.gov sends reports into the FTC’s Consumer Sentinel Network. The FTC and its more than 3,000 law enforcement partners across the country and around the world use Consumer Sentinel to fight back against scams that hurt consumers and businesses who play by the rules. We don’t publicly post the reports and we don’t contact businesses about individual reports. We use them to build larger law enforcement actions to put an end to the fraud.

Who is reporting fraud to the FTC? Between the old FTC Complaint Assistant and our partner organizations, we gathered more than 3.2 million reports of consumer fraud in 2019 alone. Oregonians accounted for more than 33,000 of those reports, with government imposter scams and identity theft by far the most common reports from the state. You can learn more about the most common reports in the country, state, or metro area on the FTC’s website.

Protecting Oregonians – particularly the most vulnerable consumers – is a team sport. Filing a report with the FTC and seeking help from a private attorney are not mutually exclusive. This new tool in our shared toolbox will help us fight back against scammers and unscrupulous businesses. If you or an organization you are involved with have a website or social media, please consider linking to ReportFraud.FTC.gov using some of the images, videos, and social media badges available at ReportFraud.FTC.gov/Partners.

Colin D. A. MacDonald is a consumer protection attorney for the Federal Trade Commission’s Seattle-based Northwest Region. The views expressed in this article are his own and do not necessarily reflect those of the Commission or of any individual Commissioner.

Every year the OSB Consumer Law Section considers nominations for three distinct awards: the Award of Merit, Lifetime Achievement, and Professionalism Award. These awards are only given to nominees who meet the highest standards and each award is not given every year. For 2020, Kyle Iboshi, Investigative Reporter at KGW news will receive the Award of Merit, Craig Colby, now retired attorney at law, will receive the Lifetime Achievement Award, and Michael Baxter of Baxter & Baxter LLP will also receive the lifetime achievement award.

About the Awards:

The Oregon State Bar Consumer Law Section’s Award of Merit recognizes an individual’s or entity’s recent efforts that have significantly advanced consumer rights in Oregon. These efforts could include a case, advocacy initiative, program or any other work that attempts to advance consumer protections. Particular attention is paid to such achievements which required the recipient to overcome adversity and/or which improved access to justice. It may be awarded to both legal professionals and members of the public.

The Oregon State Bar Consumer Law Section’s Lifetime Achievement Award recognizes an outstanding individual who has dedicated their career to consumer protection and made a significant and sustained impact on the practice of consumer law.

About the Recipients:

Kyle Iboshi is an award-winning investigative news reporter with KGW who dedicates a substantial amount of his coverage to consumer protection issues. Last year, Iboshi’s in depth consumer protection reporting helped cause positive changes in the lives of Oregon’s most economically vulnerable citizens. His 2019-2020 series of reports titled “The Cost of Collections” examined the aggressive tactics used by the City of Portland to force people to pay up. Specifically, Iboshi’s reporting shed light on how Professional Credit Service sued an Oregon consumer twice to collect on a debt, at least a portion of which was never owed in the first place. https://www.kgw.com/article/news/investigations/city-of-portland-sent-evicted-homeowner-to-collections-then-sued-him-twice-for-water-he-never-used/283-b3aa1d5f-31f6-4f23-9a69-ce9aa7ef417b Thanks to Iboshi’s consumer protection reporting, the City of Portland actually changed the way it collects debt from Oregon’s most vulnerable consumers. Iboshi also operates as a public watchdog for consumer fraud scams. In November 2019 he dedicated an episode of his program Straight Talk to sharing some of the most common consumer complaints he gets, including the “grandparent scam.” He has helped countless Oregon consumers through his investigative reporting, and makes the job we do as consumer advocates easier by informing the public of the work we do.

Michael Baxter: Throughout his career as a trial lawyer Baxter was a champion of consumer protection in Oregon. Baxter is responsible for the landmark Oregon Supreme Court case, Parrott v. Carr Chevrolet, Inc., 331 Or 537 (2001) that assists attorneys trying UTPA cases or seeking punitive damages in a consumer protection case. Baxter is also responsible for the single largest individual consumer protection verdict in Oregon history, Miller v. Equifax Info. Servs., LLC, No. 3:11-CV-01231-BR, 2014 US Dist LEXIS 70885 (D Or May 23, 2014), which garnered him recognition by The New York Times and other newspapers. In addition to being an incredible advocate for his clients, Baxter has also always been generous to younger lawyers, and has always been happy to share his knowledge with the consumer protection bar. Baxter, along with other consumer protection stalwarts, was responsible for reviving the Oregon Consumer League in the 1990s, an organization that continues to help Oregon consumers to this day. Baxter retired this year. Congratulations on his well-deserved retirement.

Craig Colby: For the last thirty years Craig has contributed substantially in the area of landlord tenant law. For years Colby  maintained hundreds of pages of Annotations to the Residential Landlord and Tenant Act which he provided for free to legal aid and related organizations to make it possible for more lawyers to represent tenants successfully and increase access to justice. Three decades ago lawyers for tenants settled eviction cases by conceding judgments of eviction to the landlords in return for delays in enforcement and tenants then had eviction judgments in the public record that blocked them from finding new rental housing. Colby created the idea of dismissing the eviction cases in return for tenant promises to move out by some agreed date down the line, coupled with stipulations for reinstatement of the case and immediate judgment that landlords could file if tenants didn’t vacate on time. The legislature adopted Colby’s scheme in ORS 105.145(2) – 105.165.  Congratulations on his well-deserved retirement.

Kyle Iboshi & Craig Colby will be presented with their awards, remotely, over the lunch hour at the “Law of Landlords and Tenants” CLE on Friday, October 16, 2020. Michael Baxter will be presented with his award sometime in the future when in-person gatherings become possible again.

By Anthony J. Estrada

Over the past year, the Oregon Division of Financial Regulation (the “Division”) has had an uptick in cases against companies that claim to provide “debt validation” services to consumers. These companies offer to demand that creditors verify and validate their clients’ debts. When pressed, the companies claim this to be the extent of the services they provide and deny providing debt management services regulated by the Division. Their fees total 20-30% of their clients’ enrolled debts.

Debt validation companies frequently invoke the Fair Debt Collection Practices Act in their advertising materials to claim the majority of consumer debts cannot be properly validated. They describe the process to verify debts in terms that suggest it is difficult, confusing and onerous. Their agreements frequently include disclosures identifying specific activities the company does not perform, such as negotiating with creditors, but such disclosures are often ambiguous, buried in the agreement, and/or undermined by other language promising assistance in disputing debts and relief from collection-related harassment. The Division has received complaints from consumers claiming they understood the primary benefit of these companies’ efforts would be a reduction in their debts.

Debt validation companies obtain their clients’ authorization to communicate with creditors on their behalves. They draft and submit form letters demanding verification and validation of the enrolled debts. This is the primary service they provide, in exchange for which they receive thousands of dollars per client. The companies offer to provide clients with case managers to track the progress of their cases and advise them on interacting with creditors, but complaints suggest the companies are often non-responsive to consumer communications. It also seems common for these companies to offer credit repair services or to “transfer” clients to affiliated entities for credit assistance.

The business model for these companies appears designed, at least in part, to evade the Division’s regulatory authority over debt management companies, as set forth in ORS chapter 697. The services they deny performing in their disclosures often overlap with “debt management services” as defined in ORS 697.602(2). However, in addition to the Oregon Debt Management Service Provider Law, which often applies despite their assertions to the contrary, these companies may run afoul of the Oregon Unlawful Trade Practices Act. Their fees are exorbitant, they provide extremely limited services, and their representations are confusing at best.

Finally, the consumers affected by these companies are financially vulnerable and often have limited means with which to seek redress. Similarly, the Department of Justice lacks the funds and staffing to take on cases of this size and scope with regularity. Consumer attorneys are and will continue to be an invaluable resource to consumers seeking relief in these matters.

By Emily Rena-Dozier

In June 2019, the Portland City Council passed an ordinance, PCC 30.01.087, that added significant elements to a residential landlord’s responsibilities relating to tenant security deposits. The ordinance’s effective date was delayed to provide time for comments regarding administrative rules implementing the ordinance. More recently, a group of landlords filed a complaint in federal court (3:20-cv-00294) and sought an injunction to prevent the rules from taking effect.

The request for a preliminary injunction was denied, and as of March 1, 2020, the ordinance is in full effect for all residential tenancies in the City of Portland that begin after March 1, 2020. Only specified portions of the ordinance apply to rental agreements entered into prior to March 1, 2020.

The following summarizes the major provisions of PCC 30.01.087 and its administrative rules but does not cover every element of the new ordinance. Additional information, including the full text of the ordinance and all administrative rules, is available from the Portland Housing Bureau at https://beta.portland.gov/phb/rental-services/security-deposits.

In addition to the provisions of ORS 90.300, the following requirements now apply for  tenancies for property within the City of Portland entered into on or after March 1, 2020:

• Limits on amount of security deposit. A landlord may not require a security deposit that is greater than one-half of one month’s rent, if the landlord also requires payment of a last month’s rent deposit. If the landlord does not require payment of a last month’s rent, the landlord may not require a security deposit that is more than one month’s rent. PCC 30.01.087 A.
• Bank account for security deposits. A landlord must deposit any security deposit collected into a separate bank account. If the account is interest-bearing, the landlord must return any interest collected along with the deposit returned at the end of the tenancy and must also provide an annual accounting to the tenant at least once per year at the tenant’s request. PCC 30.01.087 B.
• Identification of items and depreciation in rental agreement. A landlord must identify in the rental agreement all fixtures, appliances, equipment, and personal property present in the rental unit at the time the tenancy begins, along with a statement of the condition of those items and their replacement cost, factoring depreciation. PCC 30.01.087 C.1-2.
• Condition Report required at beginning of tenancy. A landlord must provide the tenant with a Condition Report at the beginning of the tenancy that lists all fixtures, appliances, equipment, and personal property present in the rental unit. The tenant has seven days to complete the Condition Report, noting the condition of all fixtures, appliances, equipment, and personal property present in the rental unit, and return it to the landlord. Unless the landlord disputes the tenant’s Condition Report, that report establishes the baseline for the condition of all the items in the rental unit. PCC 30.01.087 D. 1.
• Inspection after termination. Within seven days after the tenancy terminates, the landlord must, at the tenant’s request, conduct a walk-through of the unit to document any damage beyond ordinary wear and tear that was not noted on the initial Condition Report. PCC 30.01.087 D. 2.
• Deposit accounting requirements. No more than 31 days after the tenancy terminates, the landlord must either return the tenant’s security deposit in full or send the tenant an accounting of any deductions from the security deposit. All damage in excess of normal wear and tear must be documented with photos, and the landlord may not charge for any damage that was noted in the Condition Report at the beginning of the tenancy. PCC 30.01.087 D.3.
• Notice of Rights required. No more than 31 days after the tenancy terminates, the landlord must also provide the tenant with a Notice of Rights relating to their security deposit. PCC 30.01.087 E.
• Deductions limited to actual cost of repair. A landlord may deduct from the security deposit only what is necessary to reimburse the landlord for actual costs reasonably incurred to repair damage to the premises. A landlord may not use the security deposit to pay for routine maintenance, for damage not caused by the tenant, or for any costs reimbursed by the landlord’s insurance provider. PCC 30.01.087 C.2.
• Limits on deductions for flooring. A landlord may not deduct from the security deposit to clean or repair flooring material other than as provided in ORS 90.300(7), for carpet cleaning, or to repair discrete areas of the floor — in other words, a landlord may not replace all of the flooring if only a portion of it is damaged. PCC 30.01.087 C.4.
• Limits on deductions for painting. Similarly, a landlord may not deduct from the security deposit to repaint the unit unless it was painted by the tenant without the landlord’s permission. A landlord may repaint discrete areas of the unit to repair specific damage in excess of ordinary wear and tear but may not charge the tenant for repainting the entire unit. PCC 30.01.087 C.5.
• Depreciated costs in accounting. Any deductions for damage in excess of normal wear and tear must be based on the depreciated cost of the items, in accordance with the Depreciation Schedule published by the Portland Housing Bureau. Permanent Administrative Rule, PCC 30.01.087.G.
• Damages for noncompliance. Any noncompliance by a landlord with the provisions of PCC 30.01.087 or its administrative rules creates liability for amounts of up to double the amount of the tenant’s security deposit, reasonable attorney fees, and costs. PCC 30.01.087 G.

For tenancies for property within the City of Portland that were entered into before March 1, 2020, the following requirements apply (see Administrative Rules for PCC 30.01.087 C.4):

• Deductions limited to actual cost of repair. A landlord may deduct from the security deposit only what is necessary to reimburse the landlord for actual costs reasonably incurred to repair damage to the premises. A landlord may not use the security deposit to pay for routine maintenance, for damage not caused by the tenant, or for any costs reimbursed by the landlord’s insurance provider. PCC 30.01.087 C.2.
• Limits on deductions for flooring. A landlord may not deduct from the security deposit to clean or repair flooring material other than as provided in ORS 90.300(7), for carpet cleaning, or to repair discrete areas of the floor — in other words, a landlord may not replace all of the flooring if only a portion of it is damaged. PCC 30.01.087 C.4.
• Limits on deductions for painting. Similarly, a landlord may not deduct from the security deposit to repaint the unit unless it was painted by the tenant without the landlord’s permission. A landlord may repaint discrete areas of the unit to repair specific damage in excess of ordinary wear and tear but may not charge the tenant for repainting the entire unit. PCC 30.01.087 C.5.
• Notice of Rights required. No more than 31 days after the tenancy terminates, the landlord must also provide the tenant with a Notice of Rights relating to their security deposit. PCC 30.01.087 E.
• Damages for noncompliance. Any noncompliance by a landlord with the provisions of PCC 30.01.087 or its administrative rules creates liability for amounts of up to double to the amount of the tenant’s security deposit, reasonable attorney fees, and costs. PCC 30.01.087 G.

The new ordinance can appear complicated for both tenants and landlords. The Portland Housing Bureau is providing free trainings for tenants and landlords on the new security deposit provisions. Visit https://beta.portland.gov/phb/rental-services/portland-landlord-tenant-law-training for more details!

By Colin D. A. MacDonald

The rapid spread of the novel coronavirus has been a source of fear and confusion for Oregonians and consumers across the country. The Federal Trade Commission, along with several other federal and state agencies, is warning consumers to be on the lookout for scams that take advantage of the current crisis – and warning businesses that the nation’s consumer protection laws still apply.

The FTC has launched a special website, www.ftc.gov/coronavirus, with regular advice and updates. The agency advises consumers to be wary of claims of cures and vaccinations currently circulating. Some key warnings include:

• Consumers should continue regular techniques of avoiding scams, like researching charities before donating and not clicking links from unknown sources.
• Scammers are using illegal robocalls to pitch everything from scam coronavirus treatments to work-at-home schemes. If you receive a robocall from an unknown source: hang up, do not press any numbers, and do not say anything. Even if the recording says that this will place consumers on a do-not-call list or speak to a live operator, it may lead to more calls.
• Although the government may send out checks to assist struggling Americans, that has not happened yet. If it does, the government will never require you to pay money upfront to get your check; and it will never call you to ask for your Social Security number, bank account number, or credit card number.
• Scammers may pose as the Centers for Disease Control or other public health agencies in an effort to get consumers’ personal information. If you get a call from someone claiming to be from the government, you can always ask to call them back using their agency’s public phone number or email them at an email address ending in “.gov.”
• As more Americans work from home, it is more important than ever to prioritize cybersecurity. Protecting both home and work computers and networks will help prevent data breaches and even identity theft.

In addition to the FTC’s consumer education efforts, the agency along with the Food and Drug Administration sent warning letters to seven companies who made claims that their products treat, cure, or protect against the coronavirus. The warning letters remind businesses that “it is unlawful under the FTC Act, 15 U.S.C. 41 et seq., to advertise that a product can prevent, treat, or cure human disease unless [the advertiser] possess[es] competent and reliable scientific evidence.”

The FTC is not alone in warning the public about scammers taking advantage of the current crisis. The Oregon Department of Justice similarly alerted consumers about coronavirus scams in the state. The federal Securities and Exchange Commission also warned investors about coronavirus-related investment scams. The World Health Organization cautioned the public about scammers pretending to be the WHO as a means of stealing money or sensitive information.

Consumers who suspect they are being scammed can report their scam to the FTC online at www.ftccomplaintassistant.gov or by phone at 877-FTC-HELP (1-877-382-4357). Even though FTC staff are taking precautions to protect themselves and the public against the coronavirus, they continue their work to protect America’s consumers.

Colin D. A. MacDonald is a Seattle-based consumer protection attorney for the Federal Trade Commission. The views expressed in this article are his own and do not necessarily reflect those of the Commission or of any individual Commissioner.

On Tuesday, March 17, 2020 Oregon Governor Kate Brown issued an executive order declaring an “abnormal disruption of the market,” triggering additional protections for consumers against price gouging for “essential consumer goods or services.”  See ORS 401.960 – 401.970.

You can read the executive order at: https://www.oregon.gov/gov/Documents/executive_orders/eo_20-06.pdf

The statute, generally, prohibits charging unconscionably excessive prices and makes charging such excessive prices subject to regulation as an unlawful trade practice.  With some exceptions, prices are presumed to be unconscionably excessive if they exceed 15% above of the price prior to the abnormal disruption of the market.

Additional information, including a link to submit written complaints, can be found on the DOJ website at: https://www.doj.state.or.us/consumer-protection/sales-scams-fraud/price-gouging/

The Oregon Department of Justice, at the request of AG Ellen Rosenblum, has also set up a dedicated hotline specifically to handle complaints related to price gouging.  The hotline number is: 503-378-8442.

Despite the existence of a dedicated hotline, the Department of Justice encourages people to submit written complaints whenever possible, as written complaints often help streamline the review process allowing DOJ to prioritize the most pressing complaints.

While complaints relating to price gouging are important, the Department of Justice is treating complaints of all kinds related to COVID-19 as a priority in order to stay on top of rapidly developing trends.  See, for example, action taken against a Portland CBD store with misleading advertising claiming their products could boost immunity against COVID-19:

https://www.kgw.com/article/news/health/coronavirus/oregon-attorney-general-coronavirus-cbd-store-claims-covid-19-immunity/283-f2d6abbc-2f02-439b-8e36-310b2aa03ea7

Now that we are firmly in 2020 it is safe to start looking back at the year that was 2019.

Each year, the Federal Trade Commission releases its Sentinel Data Book, summarizing the information it has received.

The 2019 Data Book can be found here: https://www.ftc.gov/reports/consumer-sentinel-network-data-book-2019.

During 2019, the FTC gathered over 3.2 million reports nationwide.  These reports are unverified and are comprised of consumer reports made directly to the FTC, along with “reports filed with other federal, state, local, and international law enforcement agencies, as well as other organizations, like the Better Business Bureau and Publishers Clearing House.”

The Data Book does not contain information regarding do-not-call violations, which are compiled in a separate report, available here: https://www.ftc.gov/reports/national-do-not-call-registry-data-book-fiscal-year-2019.

According to the Data Book Oregonians made 32,716 reports and suffered $15.5 million in total fraud losses.  The median loss for Oregonians was $250.

Oregon accounted for the 7^th highest number of fraud reports per 100k population behind only Nevada, Florida, Delaware, Maryland, Georgia and Arizona.

Oregon had 3 Metropolitan Areas in the top 50 for fraud reports with Albany OR coming in at number 42, Eugene, OR at number 49 and the Portland-Vancouver-Hillsboro area at number 50 per 100k population.

Florida, by contrast, accounted for 16 of the top 50 metropolitan areas for fraud reports including 4 of the top 6 per 100k population.

Fairing a little better, Oregon had only the 31^st highest number of reports of identity theft per 100k population and did not place any metropolitan areas in the top 50 for identity theft reports.

“Imposter Scams” were the largest reported complaint in Oregon accounting for 27% of the total number of complaints followed by “Identity Theft at 12%.”  Reports regarding “Telephone and Mobile Services,” “Prizes, Sweepstakes and Lotteries,” and “Online Shopping and Negative Reviews” rounded out Oregon’s top 5 report categories, each coming in at 6-7%.

“Identity Theft” and “Imposter Scams” also led the list of complaints nationally, each accounting for just over 20% of all reports, significantly ahead of the third highest reported complaint, “Telephone and Mobile Services,” at just under 6%.

The Data Book contains a wealth of fascinating information going back over three years which allows practitioners to get a sense of changes in national trends affecting consumers.  For example, while “Debt Collection” reports accounted for over 21% of all reports in 2017 and was the top reported issue for that year, they accounted for less than 5% of all reports in 2019.  “Identity Theft,” by contrast, has risen from under 13% in 2017 to over 20% of all reports in 2019.

by: Hope Del Carlo

Recently, Justin Baxter and Henry Kantor, two of the founding board members of the new non-profit organization Oregon Consumer Justice (OCJ), attended the Consumer Law Section’s monthly executive committee meeting to report on OCJ’s creation and progress. Baxter, an esteemed consumer advocate in the field of Fair Credit Reporting Act litigation, and Kantor, a retired Multnomah County Circuit Court judge, along with Emily Reiman, a respected non-profit housing advocate, formed OCJ in August 2016.

OCJ began as the result of an Oregon class action lawsuit against BP, the petroleum giant. Scharfstein v. BP West Coast Products LLC, Multnomah County Circuit Court Case No. 1112-17046. A jury found that BP violated the Oregon Unlawful Trade Practices Act by charging illegal debit card fees to consumers.  Following an unsuccessful challenge to the validity of OAR 137-020-0150, 284 Or App 723 (2017) and an unsuccessful appeal, 292 Or App 60 (2018), the case was ultimately settled, and BP is in the process of paying damages to consumers. More than 330,000 class members were not found or failed to make a claim.

The Oregon Rules of Civil Procedure, ORCP 32O, require that at least half of the unclaimed funds be paid or delivered to the Oregon State Bar to fund the Legal Services Program, while the rest be awarded to “any entity for purposes that the court determines are directly related to the class action or directly beneficial to the interests of class members.” Thus, in this case, the court ordered the creation of OCJ, Oregon’s first nonprofit organization with the specific mission to advance consumer justice, to receive 50% of the cy pres funds.

OCJ plans to create a multi-pronged approach to advancing consumer protection, such as direct consumer representation in the state and federal courts, legislative and regulatory advocacy, research, and education for both consumers and attorneys.

OCJ is currently seeking members to serve on its board. If you’re interested in applying, please email OCJ stating your interest in board membership at [email protected]

 You can find more information about OCJ at its website, http://www.oregonconsumerjustice.org.

by: Eva Novick and Lauren Butz

Several consumer protection-related bills passed in 2019 legislative session. All bills listed below have a January 1, 2020 effective date, unless otherwise noted. To view the full text of any bill, go to https://olis.leg.state.or.us/.

Data breach protections: SB 684 amends Oregon’s Consumer Identity Theft Protection Act. Under the re-named Oregon Consumer Information Protection Act, personal information includes a user name and password. Additionally, the bill requires third-party vendors, such as data storage companies, to notify the consumer-facing entity within 10 days of discovery of a data breach. The consumer-facing entity is then required to notify consumers and the Attorney General. The vendor must notify the Attorney General if the breach is of over 250 consumers or an unknown number. Lastly, the bill clarifies that entities subject to similar regulation, such as under HIPAA and GLBA, have an affirmative defense if they comply with those laws, for personal information that is covered under those laws.

Elder abuse proceedings: ORS 124.100(6) previously provided that a person commencing a civil action for the abuse of a vulnerable person must serve a copy of the complaint on the Attorney General within 30 days of bringing the action. SB 783 specifically addresses the holding in Bishop v. Waters, 280 Or. App. 537 (2016) by stating that failure to mail a copy of the complaint to the Attorney General may be cured at any time prior to entry of judgment.

Internet of Things: The Internet of Things refers to consumer “smart” devices which communicate with the Internet to send or receive data, such as routers, time clocks, home security cameras, or DVRs. HB 2395 requires manufacturers to equip these connected devices with reasonable security features. This bill will be enforced by the Attorney General and does not create a private right of action.

Manufactured dwelling marina resident protections: SB 586 provides, for the first time, the same protections for marina floating home tenancies that manufactured home parks tenancies receive. These protections include provisions for the sale of the facility in which tenants reside, moving the floating home at landlord’s cost, a required period of time in which to fix disrepair or deterioration, and allowing the tenant a longer storage period post-tenancy. Further, in lieu of, or in addition to, informal dispute resolution, the bill creates a mandatory mediation process. Additionally, for four years, the bill permits up to $200,000 in grants each biennium to attorneys to provide representation to low-income tenants. The bill also updates requirements for landlords that pass along utility charges to tenants.

Payday lenders: HB 2089 prohibits title loan lenders and payday loan lenders from making a loan to a consumer who has not fully repaid an outstanding title loan or payday loan.

Prescription readers for the visually impaired: HB 2935 requires pharmacies to notify customers of the availability of a prescription reading device and make such a device available to individuals who have visual impairments. (Effective 6/20/19.)

Redemption rights: A homeowner has a “right of redemption” 180 days after a sheriff’s sale of property under judicial foreclosure to pay the outstanding amount owed on the property and regain the home. Ordinarily, if a property is sold at auction for a price higher than the amount owed by the homeowner, the homeowner receives the excess funds. However, investors have started to engage in a practice where they offer to buy the homeowner’s redemption rights (often for a few hundred dollars), leading to a situation where the investor both retains the excess funds from the sale and holds the right to repurchase the property. SB 11 requires the purchaser of the redemption rights, the sheriff, and the entity foreclosing on the property to provide separate statutory notices to the homeowner regarding the possible rights lost by selling this interest, including the potential loss of right to surplus funds.

Sweepstakes: The current language of ORS 646A.803 limits the scope of sweepstakes violations to only those sent by US mail. HB 2397 updates the statute to include all types of sweepstakes violations, including internet-based violations. The updated statute is now consistent with the definitions used in OAR 137-020-0410.

Towing notice requirements: SB 372 reduces the period of time that a tower has to notify owners and lienholders that it placed a lien on a vehicle for its charges for the tow and storage. A tower may not obtain more than three business days of storage charges unless it notifies the owner and lienholder within three days of the tow, or within three days of receiving title information for a vehicle titled in a different state. (Effective 7/15/19.)

Failure to transfer title: Under SB 113, if a vehicle dealer does not timely transfer title, a customer can bring an action and recover attorney fees, if the customer made a written demand on the dealer not less than 30 days before filing a complaint and the dealer did not provide a remedy, including payment of reasonable attorney fees and costs, within those 30 days.