Amendment ID: S2608-15

Amendment 15

Private Attorney General Action

Messrs. Oliveira and Eldridge and Ms. Edwards move that the proposed new draft be amended by inserting after section 10 the following section:-

Section 10A. (a) For purposes of this section, the following terms shall have the following meanings:

(1) “Aggrieved person”, any consumer against whom one or more of the alleged violations was committed by the alleged violator.

(2) “Public enforcement action”, a civil action brought by a relator under this section to enforce protections enforceable by the attorney general.

(3) “Relator”, a representative organization that acts as a plaintiff in a public enforcement action under this section.

(4) “Representative organization”, an organization that is tax-exempt under subsection (c)(3), (c)(4) or (c)(5) of the federal Internal Revenue Code, 26 U.S.C. section 501, regularly advocates on behalf of civil rights or the interests of consumers or workers, and has been selected by an aggrieved person to initiate a public enforcement action on the aggrieved person’s behalf, in writing in a form prescribed by the attorney general. In such cases, the aggrieved person’s name and personal identifying information shall be kept confidential if the aggrieved person so chooses.

(b)(1) A relator, on behalf of the attorney general, may initiate a public enforcement action pursuant to the procedures and subject to the limitations specified in subsection (d) of this section. Such action may be brought in any court of competent jurisdiction. Such an action may allege multiple violations that have affected different persons aggrieved by the same defendant.

(2) For purposes of public enforcement actions brought pursuant to this section, whenever the attorney general is authorized to assess or seek civil remedies, including penalties, equitable and declaratory relief, and other civil relief, for a violation of this chapter, a court is hereby authorized to assess the same civil remedies.

(3) When a civil remedy is recovered pursuant to a decision or settlement in any public enforcement action, the relator shall be awarded reasonable attorneys’ fees and costs.

(4) Nothing in this section shall operate to limit the attorney general’s right to seek restitution and damages, where available, for aggrieved persons as part of a public enforcement action in which it has intervened.

(5) Civil remedies recovered in a public enforcement action or settlement of a proposed action shall be distributed as follows:

(i) Where the attorney general has not intervened, 50 percent to the relator and 50 percent to the attorney general for enforcement of and education about the rights and obligations enforceable under this chapter. The attorney general shall promulgate regulations relative to further distribution and disbursal of recoveries. Any funding received by the attorney general under this section shall be continuously appropriated to supplement, and not supplant, other funding for those purposes;

(ii) Where the attorney general has intervened, 30 percent to the relator and 70 percent to the attorney general for enforcement of and education about the rights and obligations enforceable under this chapter. The attorney general shall promulgate regulations relative to further distribution and disbursal of recoveries. Any funding received by the attorney general under this section shall be continuously appropriated to supplement, and not supplant, other funding for those purposes;

(6) The right to bring a public enforcement action under this section shall not be impaired by any special contract.

(7) Notwithstanding any other provision of law, a public enforcement action authorized by this section shall be commenced within the same period of time that the attorney general has to take enforcement action under this chapter. The statute of limitations for bringing a public enforcement action under this section shall be tolled from the date that a relator files a notice pursuant to subsection (d) of this section with the attorney general, or the date that the attorney general commences an investigation, whichever is earlier.

(c)(1) Notwithstanding the provisions of subsection (b) of this section, no public enforcement action may be brought by a relator:

(i) If the attorney general, on the same facts and theories, cites a person or entity within the time periods set forth in subsection (d) of this section for a violation of the same section or sections of the General Laws under which such relator is attempting to recover a civil penalty or other remedy on behalf of aggrieved persons, or files a proceeding to assess penalties or to enforce other remedies available to the attorney general, provided that the attorney general serves notice to the relator pursuant to subsection (d) of this section. Public enforcement actions belong to the attorney general and preclude subsequent attorney general enforcement efforts based on the same facts and law, whether brought by the attorney general or a relator under this section. However, nothing in this section shall operate to limit the attorney general’s right to seek additional civil remedies for aggrieved persons as part of a public enforcement action in which it has intervened.

(ii) For any violation of a posting, agency reporting, or filing requirement.

(2) The attorney general shall establish a publicly available online database of public enforcement actions brought pursuant to this section, which shall include the names of the parties, the date filed, the disposition, and any other information that the attorney general shall by regulation prescribe.

(d) (1) No public enforcement action pursuant to this section may be commenced prior to 60 days after written notice of the claim has been filed by the relator with the attorney general.

(2) The relator shall submit a filing fee of 75 dollars with each filing of notice subject to waiver in accordance with regulations promulgated by the attorney general. Notice and submission of the filing fee shall toll the statute of limitations on the enforcement action for which notice has been provided.

(3) The attorney general shall establish an online portal to provide for efficient electronic filing of the notice.

(4) The notice shall be construed in the light most favorable to the relator, and shall include:

(i) The name, address, and contact information of the alleged violator.

(ii) The name and contact information of the relator.

(iii) The name, address, and contact information of the relator’s legal counsel, should one exist.

(iv) A concise statement of the underlying claim reasonably calculated to apprise the attorney general of the substance and nature of the claim.

(5) The attorney general shall, by regulation, provide for the right of a relator to furnish an amended notice if the attorney general determines that the relator’s original notice pursuant to paragraph (1) of this subsection was not in compliance with this section or the regulations issued thereunder. Such determination by the attorney general shall identify with particularity the deficiencies in the original notice. If such determination and the opportunity to amend are not provided by the attorney general within thirty days of the original notice, the original notice shall be deemed to comply with this section. The relator shall have thirty days from receiving the determination of the attorney general of noncompliance with this section to amend the notice. The amended notice will relate back to the original notice.

(6) If the attorney general intends to investigate the alleged violation, it shall notify the relator of its decision within 30 calendar days of the date of the notice received pursuant to paragraph (1) of this subsection. Within 120 calendar days of that decision, the attorney general may investigate the alleged violation and issue any appropriate citation. If the attorney general, during the course of its investigation, determines that additional time is necessary to complete the investigation, it may extend the time by not more than 30 additional calendar days and shall issue a notice of the extension. If the attorney general determines that a citation shall not be issued, it shall notify the relator of that decision within five business days thereof by certified mail.

(7) Upon receipt of notice that no citation will be issued, or if no citation is issued by the attorney general within the time limits prescribed herein, or if the attorney general fails to provide timely or any notification, the relator may commence a public enforcement action.

(8) If the attorney general does not object to the filing of a public enforcement action pursuant to this section, but objects to the attorney general represented by a particular attorney proposed by the relator, the attorney general may, within the time limits set forth in paragraph (6) of this subsection, put the relator on notice of the attorney general’s objection. The attorney general will establish regulations for notice and a hearing, for purposes of reviewing the attorney general’s objection to counsel. Upon finding, after notice and hearing, that, based on the attorney’s past conduct while representing a client or clients, the attorney does not meet the required professional standards of representatives, or, alternatively, if the attorney fails to zealously pursue the remedies available under this section, the attorney general may order that the public enforcement shall not be filed by the particular attorney on behalf of the relator.

(9) The attorney general may intervene in a public enforcement action and proceed with any and all claims in the action:

(i) As of right within 30 days after the filing of the action;

(ii) For good cause shown, as determined by the court, after the expiration of the 30 day period after the filing of the action.

(10) If the attorney general intervenes in an action, it shall have primary responsibility for prosecuting the action and shall not be bound by an act of the relator bringing the action. In such cases, the relator shall remain a party to the action. The attorney general may move to dismiss or settle the action after the relator has been notified of the filing of the motion and has been provided with an opportunity to be heard, and the court determines that such dismissal or settlement is fair, adequate, reasonable, and in the public interest. Any disposition by the attorney general shall provide compensation for reasonable attorneys’ fees and costs expended on behalf of the relator in instituting the action.

(11) If the attorney general does not intervene in the action, the relator shall have the right to conduct such an action, subject to the following limitations:

(i) The court shall review and approve any settlement of any action filed pursuant to this section. The proposed settlement shall be submitted to the attorney general concurrent with submission to the court. The court shall approve a settlement of the action only upon a determination by the court that such settlement or voluntary dismissal is fair, adequate, reasonable, and in the public interest.

(ii) If the attorney general so requests, it shall be served with copies of all pleadings filed in the action and shall be supplied with copies of all deposition transcripts. The attorney general shall bear any costs associated with service of such pleadings and depositions.

(12) No public enforcement action brought pursuant to this section shall be subject to the requirements of rule 23 of the Massachusetts rules of civil procedure.

(e) (1) If any word, phrase, clause, sentence, paragraph, section or part of this section or the application thereof to any person or circumstances shall be adjudged invalid by a court of competent jurisdiction, such order or judgment shall be confined in its operation to the controversy in which it was rendered, and shall not affect or invalidate the remainder of this section, but shall be confined in its operation to the word, phrase, clause, sentence, paragraph, section or part thereof directly involved in the controversy in which such judgment shall have been rendered.

(2) This section shall be liberally construed in light of its remedial purposes to expand the enforcement of statutes protecting consumers in the commonwealth.